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HomeMy WebLinkAboutItem 6 - PH/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: December 6, 2004 Agenda Item Number: 6 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\M041206\S0412066.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\M041206\S0412066.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 8, 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 8 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\M041206\S0412066.doc ATTACHMENT A VERSION A 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"~-o ~""" adjacent ..... '*"" ..... ,4 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-I[T] or GO zone, the [transmission , ....... ho. ~,,~ o,~, ~,o,-~, ~ .... ,~ .... , ..... ,*,,, .... minimum] 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. (I) Interference with Emerqenc¥ Communications. No new Ordinance- ] L:\CMO\2004 Council AgendasLM041206\S0412066-attA. doc ATTACHMENT A VERSION A 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)1 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. (el) 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. 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 Ordinance - 2 L:\CMO\2004 Council Agendas~Vl041206\S0412066-attA. doc ATTACHMENT A VERSION A 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 L:\CMO\2004 Council AgendasLM041206\S0412066-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 clear, 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 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 Co) 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 nde 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-om 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 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 tiffs 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 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 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-Sitin.q Requirements and Procedurec. (7) Standards for Transmission'~owers 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. [Thc ~"'" .... ~ ....,h-..t.o ~ .... ,~ .... , ......,,, ,.',,~,o.. and adjacent~..vo*-~c*o,v v..ok~".. ~...~' ...... ..-.~-.. ~r'~'~ u] Unless a variance is granted pursuant to [*.he prcv!:!onc c~ 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, ~ applicable: ?. fO00 feet from a public 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, that] as required by this land use code or the provisions applicable to the S zone[=]; 2-4. If located within an [RI,] C-1[;] or GO zone, the r, ..... number of feet that is equal to the height of the [Ja~a~smi. ssie~] tower, from adjacent property lines[=]; aS. If located in the [RI,] PL, C-1 [and] orGO zone[E;], r, ..... :o...',.,. the number of feet that is equal to the height of the tower, from adjacent public streets; and 6. In all other zones, [thc o~,h,~..[. ~ .... .~; .... , .,,,~,,;,. o,.~:,o ok,~,, b: a m;-qmu~, c~ 25 feet from adjacent public streets. Ordinance- 1 C:~)ocuments and Settings\cepljec\Local Settings\Temporary Internet Files\OIuK.F0\Ce]l tower siting -- Drat~ #2 (o00~1~9]).Doc · Draft #2 (10/1/04) (!) Interference with Eme~enc¥ 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)1 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 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 vadance 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 fadlities, 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~Local Settings\Temporary Interact FiIes\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:~Documents and Settings\cepljec~ocal Settings\Temporary Internet 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. In.the 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. Given 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, Mona Linstromberg 87140 Territorial Rd. Veneta, OR 97487 11-8-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 loo 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 Af~wrneys 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 (FI?A). 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 o.f c. ove_r.ag_e. I~t. only says you cannot ban the'provision of personal wireless service outright. It- 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-2, R-3, R-4, H, NR, and PRO zones, as well as the Willamette Greenway, on Gillespie Butte above 45o ft elevation, and on Judkins Pont. I am also bewildered by the proposal to reduce the setback in the C-1 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 certs_in~ zones, the heavy industrial and commerci.al zones are theonly reasonable ones to consider. This would maintain the p~se o! setbacks, which is to preserve residential property values, and avoid attractive nmsance. 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. ~ Respectfl~y, Martha F Johnson llO 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. lidz: On August 23, 2004, I submitted a letter on behalf of AT&T wireless Services ("ATTWS") expressing ATTWS' initial concerns regarding Eugene's proposed amendments to its wireless code, EC 9.57c;0. Since then, you and ] have had several discussions regarding the proposed amendments. As you suggested, ATTVV5 has completed a technical analysis cluanti~ying the e{{ects of 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 A~/S' continuing concerns regarding the proposed amendments. ' Overall, ATTVVS opposes these amendments because they will have a significant adverse effect on ATTWS' 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. Ron Fowler of TerraQuest International will attend today's Planning Commission meeting to convey ATTVVS' concerns to the Commissioners. I. ATTWS' Technical Analysis If the City adopts the code amendments currently proposed, Aq-FWS will be prohibited from constructing several wireless ~cilitles needed to provide service within Eugene. Taking into considera+Jon ATTWS' current wireless coverage and its anticipated coverage and capacity needs, ATTWS identi~ed on a map of Eugene several additional locations where it will need to construct wireless ~acilities over the nex~ several years. ATTW$ then overlaid that map with Eugene's zoning map to determine the zoning of each location. Through this analysis, ATTWS cJetermined that over the next several years 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:~/VP~A~GENE'~J~:3 COMM~[T I.TR 11~4.DOC 11/08/04 M0N 10:43 [TX/RX NO 8271] Mr. Jerome Lidz ,i 2 } Noveml3er 8, 2004 I:ug he'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 o~cthese facilities most Iii<ely will need to be new freestanding transmissions.towers. This is 13ecnuse 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 ATTWS' 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 ATTW$ from providing service. !1. Wireless Users Want Service in Their Homes The results of A'r'Fw$' technical analysis highlight a key consideration seemingly absent from the proposed amendments: wireless users want service//~ the//-~ornes. The proposed code amendments make meeting t~at demand much. more di~cult and 'potentially impossible. It has been years since the only people relying on wireless phones were business users whose service needs could be satisfied by facilities in commercial and industrial zones. Wireless services are now used by virtually every segment of society and are increasingly used as a substitute for traditional land lines. Consequently, wireless carriers, now more than ever, need access to residential areas. The Eugene Code currently permits wireless transmission towers in some residential zones. -~ee EC 9.57=i0($)(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 demanded by their customers in residential zones. This is not good policy for ~e myriad wireless users in Eugene and is unnecessary. IlL So,backs ~r~rn Schools A'i-I'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 Enow, restrictions based on alleged health impacts are prohibited by the 1996 Federal Telecommunications Act, 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 of serving the duel purposes of light pole and wireless facility. The City has not provided any legitir~ate explanation for prohibiting these options in Eugene. COMMENT LTR 1101~4.D0C 1.1/08/04 ~ON 10:43 [TX/RX NO 8271] . Mr. Jerome Udz - 3 - November 8, 2004 IV. Variance Provisions A~TTVVS continues to be concerned that the proposed variance language is an inadequate safety valve for the prOposed school and residential sel+~acks. As proposed, a wireless carrier must demonstrate "to the city's satisfaction" that it "is unable to provide an aciec~uate level of telecommunications services to the proposer] 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 arbitral, use of discretion. ATTVV$ suggests that the City modify the proposed variance provisions i~ the following two ways. First, ATTVVS requests that the (;ity consider permitting exceptions from the setback provisions through an aclministratlve adjustment, rather t~an a variance, process. Second, A~-I'VV$ reiterates its recluest 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 capacity demands. It would also require that the issue be evaluated within the context of the carrier's existing wireless network. Aq-FVVS urges the City to consider these revisions. Without such language, the City exposes itself to litigation not only from wireless carriers asserting that the setbacks constitute a prohi}3ition of service, but equally to lawsuits from anti-wireless citizens who will assert that the City has not applied its vague standards strictly enough. Both are likely avoida~D[e through tighter drafting. V. Third Party Technical Review As I explained in my August 24, 2004 letter, ATTWS 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 work should be limited to reviewing and verifying the wireless carrier's technical assertions - e.g., is there a gap in coverage or insufficient call capacity, and will the proposed facility resolve that issue, vv~thout 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 network, to an analysis of the efficacy the carrier's entire netwo~ design. This is not helpful to either the City ortho wireless carrier. We are in the process of formulating language addressing this issue and wild provide it to you later this week. Vi. Other Issues If the Ci~/is committed to amending its wireless code at this time, ATTW$ has several alternative suggestions to those currently proposed. In particular, A-CIRN5 requests that the 11/08/04 ~ON 10:43 [TX/RX NO 8271] Mr. Jerome Lidz ~ - 4 - ~ Nov tuber'8, 2004 City clarify that the term "ex[sting" in its wireless code includes new facilities or poles Constructed to replace a pre-existing facility 5r l~ole in order to accommodate the addition of a wire]ess facility. ~cee, e.g., EC 9.5750(3)(a). This is important t=ecause o~en existing light poles and utility poles are not strucl~rally strong enough to accommodate the addition of a wireless · ~cillty. Consequently, to locate on a light pole or utility p01e, a wireless carrier must replace the existing pole with a new pole to meet height and structural safety requirements. If necessary, A~TWS 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 that A3-rW5 and other carriers will be able to meet the service demands of their customers living in and traveling through Eugene. please contact me [f you have any questions or comments regarding this letter. Very truly yours, Molly A. Lawrence ._ MAL:MAL Dan Smith, A'I-rws Ron Fowler Louis Levy, ATTWS Y.~WP'~,.~GF.-.NE~ND COluI~ENT LTR 110BO4.DOC 11/08/04 MON 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 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 at, er'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 the.provision 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 Co) applicable provisions of the Metro Plan and applicable provisions, if any, of adopted refinement plans. IV-1 Discussion of Spe'cffic 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 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 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 reviewed 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 Telecommanications Ordinance. Msl Muir referenced a map on display that showed buffers currently in the Lane County code applied to the City~ Mr. Poling~ Seconded.by 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 towerz 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 government should be in charge of who should regulate broadcasting. She disagreed, stating that it should be a local matter. Mr. Pap6 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-magnetic 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. Pap~, 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. Papt, seconded by Ms. Nathanson, 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 return for revision in five years. Ms. Nathanson thought it would not take long for staffto do a "quick literature search" to find 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 staff~o 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 IV-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. Mr. 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 ceil'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 M~ 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 Numb0r: B Department: Plaxming 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, thc City CoUncil established a Council Committee to work with staff and the City Attorney in developing a draft 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 cOunciPs 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~ 2002' the number of telecommunication applications has continued to decrease. This is particularly tree for new tower proposals, especially in more sensitive areas. Of the requests made since the adoption of the ordinance, the vast majority ofprop, osals 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. Bo. lane, of Communi _ty Concem.q and Legal C0mtraint*- When the original ordinance was drafted, substantial effort was ~ven to minimizing community impacts · . while meeting the legal mandates established in the Federal Commumcations Act. Since the.adoption of L:K2MO~2004 Council Ag~ndas'dVl040414B0 ~ City Council Agenda Page 567 IV-7 these provisions, the City has experienced a fairly low leve1 of controversy associated with new. fae'flities. Over the past seven years, there have been three laud 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 fi:om the telecommunication industry, while providing au incentive-based approach to minimize impacts to neighborhoods. Council Coals 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 iten~ noted on the Planning and Development Department Workplan 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. ATTACHMENTS None. FOR MORE INFORMATION Staff Contact: TOm Coyle Telephone: $41:682-8817 Staff E-Mail: tom. g.coyle~ci.eugene.or.us L:\CMOk2004 Council Agenda~kM040414KS040414B.doc IV-8 City Council Agenda page 568 ~ ', 9.5650 Recvclinu-Small Collection: Facility Standarde~ A small collection recycling facility may provide source separated collection of recyClable 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 debris, and meet. requirements of the State Structural Specialty Code. (2) Sites: Shall be kept neat and clean. (3) Signage: Appropriate*signage 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. .(5) 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 6/1/02~ ) nded to ensure 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) Outd,clht Permitted Use~. 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 Cdteria - 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 telecdmmunication 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 govem. 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, 1,1,. 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-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 The property is zoned AG, R-l, R-2, R-3, C-1, GO, S, H, or PRO, and the antennas extend no more than 18 feetabove, 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-Sitin,q Requirements and Procedures, the 9-232 01/02/2004 IV-lO Eugene·Code .. " · ' i.i 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 Devicesi-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 inc[ease 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 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 r6quiring a site review or conditional use process. 1. A description of the proposed antennas Io.cation,.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 ancillaryfacilities 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 ora 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. ~f 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 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 ' 1~. 3. of antennas it is designed to accommodate. 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-i2 Eugene Code 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 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- X 3,· C-41 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 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 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 provisions of subsection .(9) of this section: (a) Separation Between Transmission TowersJ No transmission tower may be constructed within 2000 feet of any pre-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 pre-existing t0we~. 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 .govemed 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 forbuildings and structures in the specified areas surrounding Skinner Butte contained in EC 9.6715 Hei~ht -- 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, !-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 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 9-236 0f/02/2004 IV-I/~ .~, .., 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 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 sh'all 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~htin~q.. 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 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 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 0t/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 are permitted on the transmission tower or ancillary facilities except for warning and safety signage with a surface area 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 more than 2,000 feet from a pre-existing .f.)") 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 I 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 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 vadance 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 cdteria in this section. (t0) Removal of Facilities. 9-238 01/02/2004 IV-16 Eugene Code. '} (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 pedod, 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~equire the posting of an open ended bond before · devel0p'.ment permit issuance to insure removal of the transmission tower, substructure or antennas after the facility no longer is being used. (Il) 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 · te!ecommunication facilities,, an amount sufficient to recover all' of the city's costs in retaining consultants to verify statements made in ~ the · ~it application, to the extent that verification reqdires 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 Temrmra,ry Activity special Development Standard,,,. (1) ' Purpose. The provisions of this section establish standards for temporary ~"'" '·! · 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 residential Zone. Temporary activities include, but are not limited to: a. Construction yard, staging area. b. Construction trailer. c. Leasing office. d. Garage sale. e.* Camival 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 during the period 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 us® 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,q~. 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,q Lot Sales. Parking .lot sales in zones where outdoor merchandise display is not otherwise permitted are allowed for up 9-240 01/02/2004 IV-18 h 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 constructing 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 ·collocati°n 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 allows them outright''~mdustrial and our commercial/industrials, x _~ hybrid zone, C-4. Our code requires site review, a slightly more complicated process il' 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 ih the south hills study or on Judkins 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 ih 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 viewsheds. 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 e°sts 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 zonings with minimum parcel sizes of 25-80 acres Has setback limitations of 1200 from'all 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 16.2,64 administrative civil penalty. Continued failure to comply with this chapter 10 days from i 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 eomply 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 Ordinance 3?0. 7-87, Effective 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 sectioni 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 'i transmission facilities and 'facilities used exclusively for the transmission of television and radio signals are not "transmission towers." 16-455 WD 1/c/O0056.Chapter16.25. 0-264/T 1V-21 16.264 ~ Lane Code 16.264 O) 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 16.2640)-(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 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. Co) 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 O) 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 ~i )' . 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. 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 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 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 w~uld 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 WD l/c/O0056.Chapter 16.250-264/T IV-23 16.264 Lane Code 16.264 (i) The toTM 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 ail 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 croTM 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, Silage 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 f~tures. Based '1 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 WD l/c/00056.Chapter 16.250-264/T IV-24 16.264 La~eCode 16.264 euivalentwi?)q th Equipment areas must be enclosed by a chain link fence or or without slats for screening. (7) permit Renewal and Expiration Requirements for Telecommunicatiol., 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 telecommunication facility for a period 0forte (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) 16-459 WD l/c/00056.Chapter 16.250-264/T IV-25 · , y CITY COUNCIL .. '" 'O ,z D.'A ITEM SUMMARY. W,o. rk Session:,'Cell Towers Meeting Date: October 14, 2002 Agenda Item NUmber: C Department: Planning and Development Staff'Contac{: Jerry jaCobsen .www. ci. eugene, or. us Contact Telq~hone Numberi 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 containedin the City Land Use Code, Eugene Code Section 9.5750, TelecommuniCation Devices-Siting Requirements 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 the City 0fEugene Telecommunications Policies. Asa result, the CCT began immediatelyto · review preliminary 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 Plaiming Commission public hearing and recommendation, the City Council held a second public hearing and adopted amendments to the Land Use Code on February 24, 199.7, adding a new section to the Land Use Code: T'elecommunlcation Devices-Siting Requirements and Procedures. There Were no substantial changes to this secti°n 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 Land Use Code concerning telecommunication devices? 2. If so, which areas of this secti°n of the Land Use Code are most important to consider (e.g., setback requirem~ts, separation from Other towers, and zoning district requirement)? Council Goals Not applicable. P:~CMO~2002 Cotmcil A~enda~M021014~S021014C.wpd Eugene City Council Agenda page17 IV-26 Financial and/or ResOurce Considerations Rei, iew of the City's provisions for cell toW& facilities is not °nthe FY03 Planning CommiSsion work program and is not included 8n 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 lengthy. 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. OtherBackground 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's status report'on telecommunication facility siting since the February 1997 adoption of those regulations. since enactment of the telecommunication 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 thc.enactment of the code ' amenaments (two in !999, 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 pendiog at the Court of Appeals (initially approved by the Planning Director and upheld by the Land Use Board of Appeals). The relatively large nUmber of building permits issued compared to the nUmber of land use applications inclicates that the tiered approach established in the code has served as m 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 reView applications received by the Planning Division has not increaSed . since the December 13,200i status report. 'The three applications noted at that ~me 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 Appears. Verizon Wireless (SR 01-5), involving an 80-foot monopole.located at 1859 Franklin Boulevard and zoned C-2 Community Commercial, was'ori~nally denied by the Planning Director. This application was appealed by the applicant to the Hearings Official who. overturned the Planning Director's decision 'and approved the proposed m0nopole. 'Neighbors appealed that decision to the Laud 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 zoning and characterized by mixed.uses, the Sprint site was on the edge of commercial zoning, with an exclusively residential area be~nuing · . immediately adjacent to the south. In general, the Planning Director found that the cell tower Would be incOmPatible with the Surrounding property and that it violated the requirement of a 2,000 foot separation from other towers (the approved Verizon tower was within~2,000 feet of the proposed Sprint tower). 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 standar&. The applicant appealed P:~CMO~2002 Council Agendas~1021014~S021014C.wpd Eugene City Counci[ Agenda pagel8 iV_27 the Planning Director's denial to the Hearings Official who upheld the denial. The applicant did not · appeal to LUBA.' ! Masters Towers LLC (8R 01-33) was an application for a 100-foot tall flagpole-type tower to be located at,103 Oakleigh Lane Oust offofRiver 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 further 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 affirmed 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 . ~ad_o~?ff~ifi,c,r~,eqmr,em. ents !or teleCOmmunications facilities., Lane COunty adopted amendments in "\ ~p,a vi.zovz..~umougn lane ~ounty and Eugene's ordinances contain s'_mj]ar components, Lane County orl~S~S~c~ed its to address rural situations. Lane County did adopt Eugene s telecommunications omance xor the Urban Transition area (the area outside the City limits but within the Urban Growth Boundary). ~' There are no timing requirements related to this item.' ~~'o 4 ~.. The council has requested an opportunity to discuss this item. .~o,,c.,~ STAFF RECOMMENDATION ~z~7/'~-'$ Staffrequests City Council direction on this item. .14 l_ SUGGESTED MOTION ¢~ None. ATTACH1HENT$ A. Memorandum dated December 13, 2001 B. List of Tele~ommtmication Facility Locations C. Copy of Eugene Code Section 9.5750 FOR MORR INFORMATION ~ ~'~e ,~' ,.~f~ Staff Contact: Serry lacobson ~ ~ Telephone: 682-5896 ! StaffE-Malh j erry.p.j acobson~ci.eugene.or, us P:\CM0~002 Counoil Ag~ndashM021014~S021014C.wpd Eugene City Council Agenda page19 IV-28 ATTACHMENT A Planning & Development Planning City of Eugene' MEHORANDUM . w,, Eugene, Oregon. 97401:. (541) 682.-,5481 (541) 682...5572 FAx Date: December 13,200! To: '~ Mayor T°rrey and City.CoUncil · From: Jan Childs, Planning Division (682-5208)~ · Subject: STATUS REPORT ON CELL TOWER SITING IssUE~ This is in response to CoUncilor Rayorts request for a status report on cch tower siting issues. This memo provides a brief review of the City's response to the Federal Telecommunications Act of 1996, an overview of thc 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 arisen dUring review of recent Site Review applications for telecommunications'facilities. City Resoonse to Federal Telecommunications Act of 1996 Following'enactment of .thc 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 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 transmission towers and antennas within Eugene. Since the code did not specifically address telecommunications facilities, the City Attorney determioed that review and approval for these facilities could occur · thrOugh the "ambiguity clause" 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 applications 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 from the' moratorium. In November 1996, the CCT reviewed preliminary concepts forLand Use Code amendments and directed staff to proceed. The dr~ code language prepared by staff and the City Attorney was based on information gained from t~lecommunication 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 the moratorium. The Planning 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 code amendments on February 24, 1997. ' Overview of the CiW's Regulations for Teleconununieations Facilities Siting requirements and procedures for telecommunications 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\citycode~index.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 adminislr~ve decision with appeal to ,the Hearings Official, and Some require Conditional. Use review, a Hearings Official'decision with appeal to' the Planning Commission. 'For exsmPle, collocation of an antenna on an existing transmission tower is a permi~ use in most non, residential zones; while constmction of a new transmission tower or modification to an existing trsn.~mission tower'is a conditioual use in' the R-I zone. This approach provides an incentive to collate new antennas wh.~.e possible, rather than. constructing new towers and an incentive to locatenew towers' inindustrial,areas where they would likely have~a lesser impact than in other areas of the comm~ty. Application Requirements: The code contains a detailed list of information required for all ~ ...... applications. More detailed information is requiredfor.facilities that require Site Review or Conditional Use review, including: a visual study showingthe appearance of the proposed facility from at least 5 points.within a 3-mile radius; evaluation of alternafi've sites; evaluation of co-location options.; an overall system plan for the city, showing existing and planned facilities. ~tdardsfor' Telecommunications Facilities: The code includes a series of standards that govern the installation, Construction or modification of telecommunications facilities. As with the tiered review process, some standards differ from zone to zone. Nor example, standards for locating a new telecommunications tower in a low-density residential zone are more restrictiVe 'with re.~ 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,'teieCommunications 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 Fa'pert 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 Facilitv Sitine Prior to and Since'the Februaxy 1997 Mouflon of the city',~ Telecommunications Facility Remdat~ons ' FOurteen applications were received prior to establishment of the moratorium'pr~eding enactment of the City's telecpmmunications 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 permits have been issued for facilities allowed, as a Permitted use and eight Site Review applications have' been .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 fora 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 buildiqg permit applications compared to the number of land use applications indicates that the tiered approach established in the code has served as an incentive W submission of applications for preferred locations Issues in Recent Telecommunications Facility 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 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 addreised 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, Sprint PCS and SR 01-33, Master Towers LLC. SR 01'5, Vedzon Wireless is an application for an 80-foot monopole located at 1859 Franklin Avenue, between Franklin Boulevard and C-arden Avenue. The property is zoned C-2 General CommerCial. A great deal of public testimony was submitted in opposition to the Site Review application. Opponents in the immediate vicinity of the.site indicated concern about visual · impacts on the'residential character of Garden Avenue. Noise, Potential'bealth risks, poor siting · and inadequate doctimentation of need at the proposed.location were of equal concern to opponents. 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 Official reversed the Planning Director and granted approval with a condition requiring documentation ofFAA approval prior to building permit approval, a standard condition 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 IV-32 Eugene City Council Agenda page23 'viewshed requirements. Oi~ arguments before LUBA are. schedUled.'~or this.week~' ..The LUBA decision, and subseqUent challenges beyond LUBA if filed, Will define the scoPe o£,"surround~og area" in which compatibility is to evaluated and the extent of the collocation'requirement. 8R 01-33, Master Towers LLC is an application for a 100-foot monOP01e on property located at '103 Oakleigh.Lane. The property is'zoned C-2 General Commercial. The primary Concerns raised in public te .s~nony include incompatibilitY with the. adjacent residential areas and nearby school, decreased property values, a perceived lack of need for additional telecommunications service in the vicinity and pOtential.heal, th and safety risks associated with exposure to . electromagnetic emissions. Neighbors.specifiCally ObjeCted to the proposal for a 'stealth" designed flagpole with an American flag at the top. A Planning Director deciSionis pending. SR 01.-32, Sprint PCS is an application for ai20-foot mon0pole lOcated at 140~ Viilard Street'on property owned by Wi!!~ams Bakery. The property is zoned C-2 General Commercial. The tower is proposed.to be a 'stealth. design, a tall slender column that contains the antenna arms within the column. The Site. Review application includes'a variance to EC 9.5750'becanse 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 additional 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-Guard article has generatedmany' letters and - petitions, largetyin opposition to the proposed tower,'. Visual impact, decreased property values and health concerns are the pfirnary issues raised in public.testimony received so far. Citizen concem'.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 Pl~mning 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 ' ' · ~' Conanunica~i°n Facility Location's ^TTA~ 13 ~ Ton~ut ~ Addr~s ~0-119?-l' U S ~ST ~~S ' 4~S3 iS~ELLE ST }0-140~1 '~UCH CELL~AR 1210 ~LAG~LESPm ~ 0-1787-1 ' ~X~L CO~CA~ONS ~C 2503 LA~NCE ST 0-33S&I VOICES~ ~LESS 1601 OL~ ST 0-3899-~ ~X~L CO~CA~ONS'mC 297S6 ~LSO ST ~$096-1 ~ON ~LEss 2505 ~~CE ST ws347-~ ~X~L CO~CA~ONS mC 297S~ ~LSO ST 1-1973-1 SP~T CO~CA~ONS · 119 N G~LD ST 1-333-1 ~X~L CO~CA~ONS ~C 2402 W 00011~' 'A~ 14093-1 · ~S~R ~~ 2002 ~ ST 14216-1 ~S~R~~ 103 S D~BO A~ 1~7-1 ~S~R TO~ 72 ' C~~ LP 1~91-1 C~T O~GON PROPER~ CO 1035 BElL DR lmm7& I. C~T O~N PROPERW CO ' 2620 ~R ~ 1~61~-1 C~T O~N PROPER~ CO 1255 ~Y~ ST 1474~ 1 C~C~T O~N PROP~ CO 222 E' BRO~WAY 1-~003-1 ~ C~C~T O~N PROPER~ CO 2~ E BRO~WAY 1-505&1 ~T O~GON PROPER~ CO '1210 ~LAG~LESP~ ~ 1-~07~1 C~ O~N'PROPER~ CO 29786 ~LSO sT 1-5075-1 C~C~T O~N PROPER~ CO 65 W 00030~ A~ 1-~09~1 C~C~T O~N PROPER~ CO 3815 ~L~Z~ ~ 1-~11~1 C~C~T O~N PROPER~ ~O 2402 W 00011~ A~ 1-5303-1 ~S~R TO~ ' ' 103 S D~BO A~ 1-~6& 1 C~C~ O~GON PKOPEK~ CO 3~0 N DELTA ~ 1-~67-1 C~C~T O~GON PKOPER~ CO 796 W ~013~' A~ )2-~93&1 ~ON ~LESS ]84~ ~~ ' k~ 2M573-1 A T & T ~LESS SER~CES 72 ~ LP 24942-1 SP~T P C S 72 ~~. LP, 98-8130-1 ' · US~ST~LESSLLC 3556 W ~011~ A~ ~-3913-1 CI~ OF EUG~ - ~ STATION 6 2435 ~L~~ ~ 99~80-1 U S ~T ~LESS 288~5 LOC~D DR ~g0-1 CI~ OF EUG~- PW A~ORT . 28855 LOCKED DR ~-5543-1 ~L CO~CA~ONS ~C 3~0 N DELTA ' ~ 99-$881-1 ~TON HOWL 66'E 00006~ A~ Eugene City Council Agenda page25 IV-34 ATTACHMENT C 9.5750 Telecommunication DeVices'Siting R~uirements and procedutes. ' (1) Purpose. The provisions of this section, are intended to ensure that .. telecommunication facilities are located, installed,' maintained and removed hi a manner that.: (a) Minimizes the number of transmission towers throughout the community; Co) Encourages the COllocation of telecommunication fac.ilities; (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 telecommtmication providers to'build out their systems over tim_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 'throughoutthe community, and minimize public inconvenience and disruption. Nothing hi 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 definedin this land use code, may be constructed, modified to increase its height, installed or otherwise located within the city except as provided hi 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). Ou~ght 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. A telecommunication facility which, pursuant to subsections · (3) through (5)of this section, is subject to site review,shall be processed hi accordance with the site review procedures ofthi's land use code. The criteria contained hi 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 hi this section shall gOverm 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 A_~l~rov~ Criteria - General and subsections (6) a~.d (7) of this section shall govern approval or denial of the conditional use permit application. In the event of a conflict, hi 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 · Eugene City Council Agenda page27 7;)7-36 any lOcal appeal; ::' ' ' . · · (3) 'Coll6cation of Aflditlonal Antennas- · · · ' : . · - .. on Ex~stiag Tnmsm~si0n'Tower. (a) P..~llill~l_u~. Collocation of an additional, antenna on an.~xisting transmission tower shall be considered an outright permitted use if property is zoned GO, PL, S, C,2, C-3, C-4, I-L I-2, or I-3 or if the .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. · (b) Site Review. Collocation of an additiohal antenna on an existing transmission tower shall be Subject to site revie, w 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 Wster Towers.' In addition to collocation on a tr0nsmission tower, an antenna maybe collocated on existing buildings, light or utility poles, and :Water towers. (a) Permitted Use. Suc~h 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. Sftln~ Requirements and .... procedUres, the coler 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-l, 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,1, R-2, R-3, C-l, 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 subjectto site review approval provided ti~t the antennas 'and ancillary facilities comply with the standards contained in EC 9.5750' Telecommunications Devices-Sifin~_ Requireme~1s 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-l, 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. (¢) · 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 ~.5750 Tele~mmunications Devices-Sifin? Requirements and Pr0ce~es Shall 'be permitted except as authorized by subsection (9) of this section. In no event shall a conditional use permit authorize a t0wer 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 To~,er. Construction of a transmission tower, or a modification of an existing transmission tower to increase, its height, shall be Eugene City Council Agenda page28 IV-3 7 : ..... .~ . allowed a~ follows: ' ) .(a) g. fxmiimi_u . '. ... 1. Such construction or modification shall be considered an outfight ... permitted use in the C4, I-.1, I-2 and !-3 zone. 2.. Modification to. increase the height of an eyasting' ' transnnss~on' ' 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) ~. Such construction shall require site review approval in the '~ PL; C-2, and C-3 zones. (¢) Conditional Use Permit.. Such construction shall require a conditional use permit in the R-l, C-l, S and GO zofies. (d) Prohibited Zones and Locations. No new'trans~ssion 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 Oreenway, on Oillespie Butte above the elevation of 450 feet, on the ridgeline as defined in the South Hills Study or on Sudkins Point. (6) .Application Requirements. · (a) Collocation of Antenn~. In addition.to standard required application material, an applicant for collocation of antennas shall submit the · ~'ii~ '"'\ 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-i0ni~ing . .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 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. 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. P1ans 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 Eugene City Council Agenda page29 IV-38 statement 1}om th~ 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 demOnstratingthat 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 file 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: lqo development permit ~ . application' shall be submitted without documents demonstrating FAA review and approval and Oregon AeronautiCs Division review. Co) .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 · spec'tried in paragraph (c) below, for applications requiring a site review or - conditional use process: 1." A description of the p.roP6sed tower location, designand 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 applicant will allow collocation with other users, provided all -- Safety, structural, and technological requirements are met. This ageement shall also state that any fiaum 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 landscape plan drawn to scale showing proposed and existing landscaping, including type, spacing, size and irrigation methods. 7. Plans showing the connection to utih'ties/right-of-way cuts required, ownership of utilities and easements required. 8. Documents demonstrating that necessary easements have been IV-39 Eugene City Council Agenda page30 ...... '.obtained; · "' "~ 9~ Plans showing how vehieJe access, will be provided; ' ' i ) 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. 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 Applicotionc. In addition to the .... application requirements specified in paragraph (b) above, applications for .... '~ site review orconditional use permits also shall include the following '~? information: 1. A visual study containing, at a minimum, a graphic simulation showing theappearance of the proposed tower, antennas, and ancillary facilities from at least $ 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-l, I-2, and I-3 must be.considered. 'For conditional use permits alternative sites zoned PL, C-2 and C- 3, C-4, I-l, 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 falling to meet service coverage area needs. . 4. A current overall system plan for the city, showing facilities presently constructed or approved and future expansion plans. ~ 5. A statement 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.~mtennas. !~._~llation, or modification of all transmission towers, and antennas sh_sJl comply with the' "ii 'i following standards, unless a variance is obtained pursuant to the provisions of subsection (9) of this sectiom (a) Separation Between Tm. 'nsm!ssion Towers.. NO transmission tower may be constructed within 2000 feet of any. pre-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 pre-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 Febma~ ": 26, 1997.may be modified to aCCOmmodate additiOnal providers consistent with provisions for colloCation'in this section. 'Co)' Hei_~ht 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, sun~uncling Skinner Butte contained in EC 9.6715 ~ Limitation Areas of this land use earle to protect views to and from' Skinner'Butte. ' - 2. In any zone withio 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, I21,1-2 or 1-3 z~ne, the -. height limltation~ for that zone shall apply. 4. ' If located within'an C-l, 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) iColloeation. -New transmission towers ghall be designed.to accommodate collocation of additional' providers: 1. New'transmission towers ora height of 80 feet or more shall be designed to accommodate collooation 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 ac, com~te collocation of. '. a minimum of 1 additional provider either outright or through :._.::: IV-41 Eugene CRy Council Agenda page32 future'modification to the tower. ""ii"~. ? (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-l, I-2, or I-3 zone, no setback from adjacent property lines shall be require~l beyond that required by this land use code or the provisions applicable to the S zone. 2~ If located within an R-l, C1, 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 adjacenl 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'I, 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, 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) Lighting. 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-l, 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 · IV-42 Eugene City Council Agenda page33 '9.5750 Eugene Code : 9.5750 .. ..... right, of-way line of 18th AvenUe,. the tower does not interrupt the profile "of the ridgeline or Spencer's Butte. In addition, a anmsmission tower shall not interrupt the profile of Spencer Butte when viewed 'from any location in Amazon Park. Visualimpacts to prominent views.of Skinner Butte, ' Judkins Point, and Gillespie 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 si~,n.~ 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-I,PL, C-l, CK), and PRO zone must be located underground to the maximum extent technologyallows, 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 beginniog at EC 9.8750 Purpose of Variances. Co) The city may grant a variance from the provisions of subsection (7)(a) of this section providing the applicant dem0astrates that: .. 1. It is technologicallY impossible to locate the proposed tower on available sites more than 2i000 feet' froma pre-existing transmission tow.er 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. (o) The city may grant a.variance to the setback and undergrounding' requirements of subsections (7)(cl,) 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 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 ~liminate 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_ondifional us~ permit process, If the proposed trahsmission tower or ancillary facility' is an outright penm'tted use, the · request for a variance shah be processed pursuant to Type II application procedures beginning at EC 9.7200 General Overview of Type Il 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. i' ~, (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 o.ther 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, statementsmade 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 .Bu Gor .on ,,,. 2025 First Avenue. Suite 500 Attorneys atLaw " Seattle, WA 98121~3140 206-382-9540 206-626.-0675 Fax · . .Www, buckgordon,corn August 23, 2004 VIA FACSIMILE and US MAIL Jerome Lidz City Attorney City of Eugene 360 E. lOth Ave., Ste 300 Eugene; OR 97401 Re: . Comments regarding Proposed'Amendments to Wireless Ordinance · Eugene Code Section %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 consi'dered by 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-Sitin~ Requirements and Procedure~ (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 se~i0n: (d) Setback. [Thc .r^,^,,; .... .k~.. ~ .... .~= .... . ~.~-..~,, I;~,., ~--J .....................rcqu!rcd u] 6flless a variance is granted pursuant to [thc prc;'!c!c== cfi subsection (9) of this section,-new transmission towers, and any exi#tin~7 transmission tower bein.q modified to Increase t~ heigh~ shall be set back no less than all o£ the foliowin~ distance~, i~appliceble: 1000 feet from a pub~lc school,. 800 feet ~rom all resldentlally ~onedPrope~ty,. If located.within a PL, S, C-2, C-3, C-4, I-1, I-2, or I-3 zones [~e asrequired by this land use bode or th provisions applicable to the S zone(.); Y:\WP~A'I'I'~EUGENE~COMMENT LTR 082304,DOC IV-45 Jerome Lidz - 2'-- August 23, 2004 24. 'If located.within an [R-S], C-1 [T] or (30 zone, the r~.---~.~.;~., ...... ff'~ff~. -z ...... ~ .............. number of feet that is equal to the height of the [~] tower, ~d/~¢~t~~//~ [~]; ~ if/~¢~din the [~] PL, C'1 [~] ~rGO zone[s], .. ~ number o~ feet that is equal to the height of the tower,' ad]acenf pub/lc ~ee~/ and , ~. In all Other.zones, [t~ .~,~.~;. ~ .... ~; .... · -, ,~;- ~+.~.~ D ~ · ,, m,n:m.m of] 25 feet ~ ~ CommenCe.. Fhe ed~ition ora TOe, foot setback ~om pub~ sc~lsand an 800-foo¢ setback ~om residential zones could dramatic~l~ ~ A ~S' abili~'to provide wireless se~ice within Eugene. F~is impa~ couidrise to t~e /evel of ~ pro~ibition of se~ice in violation Federal Fe/ecommun/bations ~ 47 ~S C Locating wireless communication ~cili¢ies in neig~bor~ood commercialzones (Eugene ~ C- T zone) is o~en t~e best option ~r se~ing t~e surrounM~g residendal~reas. proposed 800-foo~ setback from residendalzones would ~e~ e~inete m~nX neig~bor~ood commercial op¢ion~ t~ereb~ making i~ more di~cul¢ for ~ ~S ~nd ot~er wireless ~rrie~ ¢o mee¢ ¢~e se~ice needs of t~eir custome~ in ~ugene. In ewlua#n~ t~ese proposed amendme~t~ i~ wouid be ~e~ful to unders¢and ~e po#cz c~oices underdog t~ese c~anges. For example, i¢ is ~o~ clear w~X t~e Ci~proposes pro~ibi¢in~ wireles~ transmission ¢owers w~in ~000 ~e¢ of Pub/ic schools. Prior e~edence /e~ds us ~o conclude t~at t~e Ci~ is a~empting ¢o ~llay concerns regar~g ~lleged ~e~lt~ e~ct~ of wireless ~cilities on c~ildren. As t~e Ci~ is aware, t~e Federal ~e/ecommUnica¢ions A~pro~ibi~ cities ~nd countie~ ~om regulating ¢~e p/acemen~ constru~ion or modi~c~tion of ~reless ~mmunicetion ~ciii¢ies b~sed on. ~ n~ms regarM~g ~dio fre~uenCX emissions w~ere t~e wireless ~c[li~ meets ~C s¢andards. 47 ~ C ~332(c]~][B][~ ~e Ci~ max not use setbacks to subve~ t~is provision of ~der~l /~ /n anX case, because ¢~ese setback re~uirements would ~pp~ on~ ~o new e~ended transmission ¢ower~ ¢~is proposed emendment wouid nor ~e~ wireless c~rriers' ~bili¢ to Ioca¢e wireless communication ~cili#es on b~ll ~eld ~ts or u#li~poles closer t~an. ~000 feet to ~ public school ~e proposed TOO~f°° t setback and BOO~foot se~ck become pa~i~r~pro~ibitive w~en applied in conjun~ion wit~ t~e separation requirements est~b~ed in existin~ subse~ion (7X~]. ~e combination off, ese ~o se~ions couldcre~te ~ cir~mst~n~ in w~ic~ ~ wireless c~rrier c~nno¢ ~//ocate on ~n existing ¢r~nsmission t~wer because i~ does no¢ meet t~ese setback ~uirement~ b~ ~lso c~nnot ~n~ e new f~dli~ outside of t~e setbacks because ~ ~cili~ would be within 2000 Fee¢ of t~e existing ~ci~ /oceted within t~e setbacks. ~e stend~rds for ~ wri~nce from eider t~ese setbecks ~r sep~retion requirement ~re ¢oo stringent to e~e~ive~ ~olve t~is con~i~ EC ~ ~7~O(PXb)[T) andproposed EC ~ 575~(~)(c). As ~ resu/~ we re~ues¢ end recommend t~e Ci~ modi~ t~e proposed emendmen¢s to address this issue, po~s/~ bX e~in~ting Y;~W~EUGEN~COMME~ L~ 0823~,~C' ~-46 Jerome Lidz - 3 - . A, ugust 23, 2004 the setback requirements or by'elirnina~'ng the separation requirement where c°}/ocation on an ex/sting transmission structure isprec/udedby the setbacks. · The proposed new BOO-foot setback from resident/a/zones con#icts with existing subsections (5)(a) and (g)(d). Existing subsection (5)(a) perm/ts the construction o£new transmission toWers in the R- ! zone with a conditional use permit. The 800-foot setback requirement, however, effect/re, precludes the construction of new transmission towers in the R- I zone. Similar/y, exisD'ng subsection (g)(d) permits the City to grant a variance from the R- I zone'height restn'ction up to a maximum height o.£ 100 feet i£it wil{ e/irninate the need for additional transmission tower. Under the proposed new setback restriction, . hoWever, a wireless carrier may not increase the height oran existing transmission toWer in. the R- f zone. The provisions regarding variances from the setback requirements are too st#ngent, (discussed be/ow), to resolve these contTicts. (!) /,.nterYerence with Hmer._qenc_v Communication:. No new transmission towe~ nor an increase in the height oYan exi~ transm~sion tOwen shallbe pe~iHed unles~ the applicant can demonstrate the sati~n of ~e d~ that the tower wi//not inte~ere ~th or have any e~e~ on emer~en~'communication se~ces. A ~S Commen~: Federa//awpreempts the C/~ ofEu~e~e ~Om re~u/at/~ the constm~ion or operation of wire]ess commum~at]on ~ci]ities ba~ed on potent/a] /~te~rence be~een wireless communication. ~ci]ities and other devices,/nc]u~public sa~ devices used for emer~en~ communication. The Federal Communications Commies/on has exclusive j~dsd/~/on over radio ~equency inte~rence issues..See, e~., Freeman ~ Burn, ton Broadcasters, 204 3~ ], 32~ (2nd Cir. 2000); Southwestern Bell ~re/ess, Inc. ~ Johnson Coun~ BoardOf Coun~ Comm[ssioner~ ~ ~ F.3d ] ] 85, ] ] 90 (] ~ ~ir., ~ 999)] Anne Amndel Coun~ FC~ DA 03- 2] 9~, ~emoran~um O~inion an~ Or, er (July ], 2003). As the COu~e~]a[ned/n ~eeman: Congress did not intend by tYis provision [47 U.S.C. ~332(c)(7)] to repeal tYe FCC's exclusive jurisdi~ion over' RF int~6erence complaints. The statute's prese~ation 'of local power e~ends only to 'placement, con,rub/on and modification' of '~acilities.' In ligYt o~ th~ FCG's pe~asive regulation o~ ~roadcastin9 technology, th]~ provision is mo~ reasonably unde~tood a~ permit/n9 localities to exercis~ zonin9 power Yase~ on ma~ers not dire~ly' " regulated by tY~ FCC. We conclud~ that allow/n9 local zonin9 aut~oritie~ to con,it/on construe/on and u~ permits on any r~uir~m~nt to ~liminat~ or remedv RF inte6erence '~ands a~ an ob~t~cl~ to tY~ accompli~Ym~nt ~n~ ~x~cutio~ of th~ ~ull purpo~ and ob]~iw~ of Congress.' Freeman, 204 ~.3~ at 323 an~ 325. As a msu]~ the C[~ of ~ugene [ac~s author[~ to asse~ regulato~ authori~ over w/m/ess faci]it/es based on potent/a] inte~mnce with emergen~ Y:\WP~ATT~EUGEN~COMMENT LTR 082304.DOC '~ T~'4 7 Jerome Lidz' - 4 - AuguSt 23, 2004 q°mrnunications. As a result, .we request and recommend that the City e~'minate this provision from itsProposed amendments to/ts w/re/ess ordinance. ' ' (9) Variance. (c) The city may grant a variance to the setback requirements of .. subsectZon O')(cl)l a#d2 onlyIfthe applicant demonstrates to the city'~ satis£action= 1,. That the applicant ia ' unable to Provide service to a substantial · port/on o£ the city andalso comply with the setback requirements! and · 2. That the requestedsetback variance complies as closely aa possible with the requiredsetback requirements £or location or any other location In the city ~rom which It possible to provide comparable service, A T-I'~IS Comment.~; · A/though we acknowledge' that variances are genera[~ designedto be ~'f~cult to obtain, the amendments proposedin this section make obtaining a variance effectiveiy impossible. Wireless service is ~ypicaliyprovided through'a network of interconnected and overlaPPing wireless communication facilities.. No single facilityproVides service to a "substantial portion of the City';' it may, however, be critical'to provi~'ng service to a part/cu, lar area of the City. As a result, we request andrecommend that the City change the language o£ proposed subsection (g)(c)(f) to read as fo/lows: 'hat it is notpossibie for the proposed wireless facility 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~Ynegates the eftTcacy of this variance provision. Without some parameters on the City's discretion, the City could deny any request for a Variance under this subsection, lea~'ng to unnecessary ~'sputes and litigation. The secondphase in proposedsubsection (9)(c)(~, Which provides" ., · · the city from which it is possible to provide comparable service, "is unnecessariJy 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 of the proposed wireless facility within the applicant's wireless netwol~. We request andrecommend that the City modify the language to make this intent c/ear (e.g., "any variance granted under this sect/on shal{ be I/rn/ted to the m/n/mum necessary to ensure that the proposed wireless facility sat/sEes i~ £unct/on w/thin the applicant's wireless network"). (d) The cIty may~,rant a variance to;the setbackand undergrounding requirem nts of subsections (7)(d)$. 4. Sand6. or (8) upon finding that stealth design, proposed landscaping, configuration of the site, or the presence of mature trees obviates the need for compliance. Y:\WP~,'I'~EUGENI~COMMENT LTR 082304.D~C TV-4 8 'Jerome Lidz - 5 - ~ Abgust 23, 2004 A,, ,TTVV$ Comments.. ~ The phrase "obviates the need for comPliance "is unnecessarily ambiguous, we assume the intent of this phrase is to enab/e a wireless carrier to reduce the setback where existing or proposed screening or Ca mou#aging mitigate the visual impact of the proposed wireless facility to a degree equal to or better than i£ the proposed facility C°mpiied with the standard setback requirement. We request and recommend that the City modi~ the language to make this intent c/ear.. . (~le) 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 d.i~'ectly eliminate the need for 1 or more additional transmission towers in an R-1 zone. /~ TTWS Comment: See comment above re~TarM'ngproposednew section (7)(ct)(2). (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. /~ TTWS Comments: IVO changespropo~e~,, no comments. ('11) Fees. Notwithstanding any other provision of this code, the city manager · [m~)'] sha//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: Ali fees charged should be reasonable and retTect Ho more than the actual cost incurred by the City in reviewing a wireless carrier's application. Consequently, rather than requi#ng the City Manager to collect fees "suft~cient to cover a/I ofthe City's costs "at the poJ'nt the wireless applicant submits an application, we request and recommend that the CiO/modify this section Y:\WP~ATT~uGEN~COM M ENT LTR 082304.DOC IV-4 9 " -Jerome Lidz - 6- ' ' August 23, 2004 to require the wireless applicant to reimburse the City for its actual ~nd reasonable costs ) incurred "to veri~ statements made in conjunction with the permit appIicat?on. . The City could collect fees at fhe t/me the wire/ess applican~picks up its pe~m/t from the Ci04. Thank you in advance for 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 rniawrence@buckgordon.com or by telephone at 206-382-9540. Mr. McGee can be reached by email at kevin.mcgee@attws.com or by telephone at 858-232-3996. Very truly yours, Molly A. Lawrence MAL:MAL cc: Dan Smith, ATTWS Kevin McGee, ATTWS IV-50 .Y:\wPLA'T'P~UGENE~COMMENT LTR 082304.DOC .......... ~ .... 'Drdinance (Eugene 75 q [Jeror~e LID - Amendments to Cell Toy, . ,,C, gd..e..S, ect!.0n 9.5 0' "~i.:_ . " "~.~ ........... ' Page · From: "Evans, Pat" <Pat. Evans@T~Mobile.com> "~' '~i ' To: .<jerome.s.lidz@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" b'ookstores awayfrom 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 chiJdren 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 Using 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; Thi¢d: 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 allowSthe City to "second guess" the roasons 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 ~equired 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 hiro. We have, in the past, objected to an organization that.the 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 ngineers. And finally, .... IV-51 .... LIDZ- Amendments to Cell Toy. · 3rdinance (Eugene O0de seca,On 9.57~50i i' "__'_'___ ' ................. ~ "~'2~ .......... ' ................... - ' ' .... ' ,,,",, .. ' .......... age 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 SW Washington T-Mobile USA 1500 NE Irving Portland, Oregon 9,7232 .. PCS: (503) 914-8977 - NEW NUMBER Fax: (503) 736-3014 "Be the change you wantto 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> L ~~-fT~'on on C~,'~ .Tower Ordj~nce proposal ~ ' ~ .... , ........... Page I From: KULLBY Kent R <KentR.KULLBY@ci.eugene.or. us> To: ELGIN Lynette K <lynette. elgin@harrang.com> Date: 7/27/2004 8:15:03 AM Subj ct: Public Notification on Cell Tower Ordinance proposal Lynette . Please notify and send a copy of the Telecommunications Ordinance changes to: ' James Barta Voicestrea mr'r-Mobile Wireless 1500 NE Irving St. SUite 530 Portland OR 97217 Sarah Medary City Parks & Open Space ' 1820 Roosevelt Bird Eugene, OR 97408 Note that I have a pending Site Review Permit application, city file (SE 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 City Atto. rney " City Of Eugene 36o East 10t~ Ave., Suite 3oo Eugene OR 97401 . Re: Amendments to Cell TOwer Ordinance (Eugene Code 9.575o) Dear City Attorneys : 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 zomng, and looo feet from public schools. A strong setback reqturement 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-1 and GO zones. It is not clear to me whether the language in (7)(d)2, which states" 8oo feet from ALL residentially zoned property" (emphasis mine), would allow new towers located on C-z 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 tooffoot setbacks wouid still apply, if a public school or residential zoning were within those distances. C~larification is needed. A review of the City zoning map makes it clear that C-1 and GO zoned properties are scattered throughout the City, and occur most frequently in mixed-use areas. Therefore a lesser setback in C-1 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 against 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 (ll) has my heartiest approval. Independent technical review, is 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 ~74o4 IV-55 I 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 oftech,~ical 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 ft or 800 ft 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 e~ons~Jtr~ Placement of cell Phone Transmission Towers 87140 Territorial Rd. ~ ' ' ' Veneta, OR 97487 Also, a Eugene home owner ·. IV-56 .....;... ::.'?':.,Planning Department .. 'APR 1.6 Z004 'De~ ~. Coyle: REC.EIVED ~" ." '~' M~a Jo~on ~d I w~ted to get ~s packet of i~o~ation reg~d~g ~e Eugene Te]eco~cation Ore--ce to you. It seems to be a work in pro~ess M~ addifion~ items c~]ing ~or yet ~other cover . Om iNti~ apprOach ~ October 2002 w~ to provide ~ ~ysis of~e emke Teteco~ Or~. E~lier ~s ye~, bo~ M~a ~d I met Mth sever~ Co~cil memberS ~d the Mayor ~d prodded Packe~ to those we did not meet ~ personally, co--ems.by some of~ose we spoke ~ led ~ to conclude ~m a comprehensive approach to rehsiting ~e. Eugene ore, ce might not be succeSs~ ~' ".'- .where~ ge~Ng to ~e core of o~ conce~ ~d suggesting ~e most ~ects appro~h to resolv~g some of ~ o~'issues might be more productive. We felt a setback prohsion w~ ~e most d~ect approach. From reading the s~ obse~mions subdued t° the Co,oil along M~ the vis~ ~, my impression is . ~at ~e Pl~ng Dept. feels ~m ~e existNg ordN~ce is ~cfio~ngjust fine.' I have worked M~ sever~ nei~borhoo~ in Eugene on ~e siting of cell phone ~ssion.towers. The suggestion ~at ~e nmbers of applications may not w~t rehsifing ~s ordN~ce does ~ Njmtice to ~ose ' nei~borhoods ~pacted not O~y by ~e actual faciliW beNg located N ~ek midst bm also ~e public · "pro,ss M~ WNch ~ey have to comend. ~e t~e, ener~, ~d resomces Ooth emofion~ ~d f~ci~) req~ed on ~eir pm to fi~t ~ inappropriate placement of a tower ~e ~ a~ly high price for ~e public to pay when ~ere may be a be~er approach. Having recently been involved Mth T-Mobile proposals N Hillsboro ~d Newberg, I Mve Mmessed how · e ~e ~d intensi~ of cover~e deemed necess~ by prodders is generating ~e dem~d for more . facilities. Wo~'t it m~e seine to have ~ ord~ce that ~ticipates what may come ~ opposed to one · at Only reflects p~t experience? .~so, one brief cogent on We~esday's discmsion, there is a distNcfion be~een public need ~d Public w~t ~at should to be ac~owledged. I ~ ~m distinction was missing d~g ~e April 14m I have Ncluded ~e recem decision N ~e US Dis~ict Co~ T-Mobile vs ~e Ci~ of Hillsboro, OR. TNs decision Mll have broad.~plicafions in ~e ongoNg discmsion of ~e rights of loc~ j~sdictions in dete~g ~e placemem of ~ese ~s~ssion towers M~n ~e s~c~e of the 1996 Feder~ "Co~cafions Act. As ~ ~ide, Judge Mosm~ is considered a conse~ative judge. Citizens for ~e Responsible Placement of Cell Phone Tr~smission Towers is loohng fo~d worMng "M~ ~e CiW N ~s upcom~g endeavor. ....~6na Lins~omberg cc: Sus~ M~r IV-57 301 F.Supp.2d 1251 (Cite as: 301 1LSupp.2d 1251) Page 1 United States District Court, . 414106 Most Cited Cases D. Oregon. under Oregon law, city can prohibit proposed use VOICE STREAM PC8 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. 414k384.1 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 use' application for wireless telecommunications tower, as long as judgment is grounded in specifics of ease, 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 ~354.1 tower in,:residenfially zoned area. 41410 84.1 Most Cited Cases Holdings: The District Court, Mosman, $., held Substantial evidence supported city's decision to that: " deny, on aesthetic grounds, conditional use (1) substantial evidence supported city's decision application for wireless telecommunications tower to deny application on aesthetic grounds; in residentially zoned area, despite applicant's (2) city's decision did not effectively prolu'oit contention that decision was. based solely on wireless services in city; and general, unsubstantiated aesthetics concerns, in light (3) city did not unreasonably discriminate against of evidence that city considered specific scene in provider, which proposed tower would appear, city gave consideration to proposed tower's distance from Judgment for city. surrounding homes, and proposed tower would not have filled complete void in coverage but instead would only have improved indoor coverage. West Headnotes Communications Act of 1934, § 332(c)(7)(B), 47 U.S.C.A. § 332(e)(7)(B). [i] Z°ning and Planning C=~708 414k708 Most Cited Cases [5] Zoning and Planning C:=~685 414k685 Most Cited Cases Court reviewing local zoning decision affecting 'wireless telecommunications towers pursuant to In seeking to overturn cit,/s decision to deny Telecommunications Act (TCA) must examine conditional use application for wireless entire record, including evidence contradictory to telecommunications tower in resident/ally zoned local government's decision, in determining whether area, burden is on applicant. Communications Act substantial evidence supports - decision, of 1934, § 332(c)(7)(B), 47 U.S.C.A. § 332(c)(7)(B) Communications Act' of 1934, § 332(c)(7)(B), 47 U.S.C.A. § 332(c)(7)(B). [6] Zoning and Planning (g:~642 [2] Zoning and Planning C=~36 414k642 Most Cited Cases Copt. © West 2004 No Claim to Orig. U.S. Govt. Works IV-58 http ://print. westlaw.com/delivery.html? dest=atp&dataid=A O05 5 80000006618000197 8611... 4/14/2004 Page 3 of 12 301 F.Supp.2d 1251 Page 2 · (Cite aa: 301 F.$upp.2d 1251) District court reviews record de'nero to determine bears burden of establishing that city engaged in whether it supports applicanfs claim that 'city% unreasonable discrimination in violation of rejection of application for wireless TeleCommlalications Act (TCA). Communications commRlliCatious 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)iT). 332(C)(7)(B)(i),47U.S.C.A.§332(c)(7)(B)(i). '1253 Christopher P. Koback, Davis Wright Tremaine, LL?, Portland, OR, for Plaintiff. [7] Zoning and Planning C~384.1 414k384.1 Most Cited Cases Pamela J. Beery, Paul C. Eisner, Beery & Eisner, LLP, Portland, OR, for Defendant. Single zoning'decision can give rise to effective prohibition of wireless services in violation of Telecommunications Act (TCA). Communications OPIHIONAND ORDER Act of 1934, § 332(c)(7)(B)(i), 47 U.8.C.A. § 332(c)(7)(B)(i). MOSMAN, District 3udge. '[8] Zoning and Planning C~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% decision to deny conditional use application of Hillsboro's decision to deny plointiffs for wireless telecommun/cat/ous tower /n conditional-use application to erect a resident/ally z~ned area did not effectively, prohibit wireless-telecommunlcatious (or, as commonly wireless seridces in city, in violation of called, a "cell-phone")· ·tower in a residentially Telecommunlcatious Act ('rCA), where proposed zoned area. The issues in this case pit the TCA's tower would have simply hnproved er/sting indoor intention to deregulate the wireless telephone coverage, not filled complete void in coverage, industry aga/ust the tradilional control over local applicant could have-achieved its objectives by ~ land use maintained by municipalities. For the in,stalling two towers at other locations, and city's reasons discussed below, municipal control prevails decision was based on specific circumstances in th is case. 'presented, not on unsubstantiated general observations. Communications Act of 1934, § I. Background 332(c)(7)(B)(i), 47 U.$.C.A. § 332(c)(7)(B)(i). Personal wireless services are dependent upon low [9] Zontng and Planning ~384.1 power, high frequency radio .signals that are 414k384.1Most Cited Cases transmitted from antennae placed on preexisting structures, such as water towers, or on newly City's decision to deny conditional use application constructed towers. See generally Southwestern for wireless telecommunications tower in Bell Mobile Syn.. v. Todd, 244 F.3d 51, 56-$7 (lst .residentially zoned area did not unreasonably Cir.2001); Sprint'Spectrum, £.P.v. Willoth, 176 discriminate again.~t applicant, in violation Of F.3d 630, 634-35 (2d Cir.!999). As a subscn~oer Telecommunications Act ('rCA), even though city travels within a cellular providers service area, the had previously granted conditional use permits for cellular call in progress is transferred from one cell two other wireless communication facilities in site to another without noticeable interruption. To 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.- Communications 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)C0. decrease the geographic coverage of each cell. In furtherance of this plan to improve servia, [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 usc locations of course often fall in residential areas. application for wireless telecommtmication8 tower /Mid because wireless technology is .relatively Copt. © West 2004 No Claim to Orig. U.S. Govt. Works IV-59 httn://nrint we.~tlnw anm/do, llv~rv htrnlgda~t=-ntn~rrl.t~id=Aflfl~q~fiflflflflflAA1 Rflfgl 10'TIK1 1 A/1 A/Otl/~A Page 4 of 12 301 F.Supp,2d 1251 Page 3 (Cite as: 301 F.Supp.2d 1251) 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 accommodate 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 determined the proposal wonld 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 . on surrounding property owners' rights. Both of described as scenic, as it is surrounded by fa' 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 City"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 a chart 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 Hillsboro 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 would look 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) Thc gran~ng of the application would meet residential~area facilities: One of thc facilities, the some public need or convenience, board found, was placed on an existing, light pole at Co) The granting of the application is in the public an athletic field. 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 affirming 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.westlaw.com/delivery.html?dest=atp&dataid=A0055800000066180001978611... 4/14/2004 Page 5 ell2 301 F.Supp.2d 1251 Page 4 ' (Cite as: 301 l~.Supp.2d 12~1) IL Discussion 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 failure to act [regarding siting a cell-phone which federal courts can reverse a local zoning tower] by a State or '12S$ 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 servicesl" 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. [17N2] have created, an inconsistent and, at times, COnfliCting .patchwork of requ'uvments which will inhibif "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.tL 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. Pari~h 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. 124, 124 (stating 'con,scions. 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 accelerate rapidly private sector deployment of growth ofwirelessservices. advanced telecommunications ... and services to all Americans by opening, all telecommunications markets to competition"). FN2. 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 decided. 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.tL 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, ~onstruction, 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). [17N1] However, the standard of the same name set forth in the Copt. © West 2004 No Claim to Orig. U.S. Govt. Works htto://orint, westlaW.¢om/deliverv.htmlTde.~t=atnit,.datald=A OO~;~;ROOOOOilg~ 1ROO0107~t~l 1 d/~ d/onna }'age 0 et 1Z 301 F.Supp.2d 1251 · (Cite as: 301 F.Supp.2d 1251)' Page 5 ~ Adm!nJstrative Procedures Act. See, e.g., Preferred .showing the decision was not supported by Sites, LLC v. Troup County, 296 F.3d 1210, 1218 substantial evidence. See/d. at 830. (llth Cir.2002); Todd, 244 F.3d at 58; Omnipoint Corp., lB1 F,3d at 407-08; Cellular Tel. Co. v. At the outset, the terms of the applicable zoning Town of Oyster Bay, 166 F.3d 490, 494 (2d orrlln,nce 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 (N.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." I-LEO § 83(9). Procedures' Act standard. See H.R. Conf. Rep. In this case, the city made both Of these findings, 104-458, 'at 208, reprinted in 1996 U.S.C.C.A.N. Which plaintiff challenges. 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 ~ 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. R.38. The council 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 (quo~ng Consolidated Edison Co. v. NLRB, 305' property-value devaluation but instead contemplates 'U.S. 197, 229, 59 S.Ct. 206, 83 LEd. 126 0938)). a consideration of 'whether an '1257 owner's 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~ R.40. 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 i~ 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. $chad v. Borough of 340 U.S. 474, 477, 71 S.Ct. 456, 95 LEd. 456 Mt. Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 68 (1951). In short, the governing standard is "highly L.Ed.2d 671 (1981) ("The power of local deferential" to the local governmenfs decision but governments to zone and control land use is does not amount to a mere mbber stamp. Second undoubtedly broad and its proper exercise is an Generation Props., .L.P.v. Town of Pelham, 313 essential aspect of achieving a satisfactory quality F.3d 620, 627 (lst Cir.2002). The court must of life...."); Berman v. Parker, 348 U.S. 26, 33, 75 'examine the entire record, including evidence S.Ct 98, 99 LEd. 27 (1954) ("The concept of the contradictory to the local governmenfs decision, in public welfare is broad and inclusive. The values it determining whether substantial evidence supports represents are' spiritual as well as physical, aesthetic the decision. See Todd, 244 F.3d at 58; MetroPC$, as well as monetary. It is within the power of the 259 F.Supp.2d at 1010. legislature to determine that the comm~lity should be beautiful as well as healthy .... "(citation In searching for substantial evidence, the omitted)). And 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; " '[t]he TCA's the sole ground that the use 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 authority's decision is consistent with the of the applicable ordinance'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 (Tth Cir.2003) (quoting ATC Realty, LLC 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. ovemun the local ensure the city's decision was not "irrational or government's decision carries the burden of substanceless." S~e Todd, 244 F.3d at 57. Copt. © West 2004 No Claim to Orig. U.S. Govt. Works IV-62 http://print'westlaw'c°m/delivery.html?dest=atp&dataid=AO055800000066180001978611... 4/14/2004 Page 7 of 12 · 301 F.Supp.2d 125i Page 6 (Cite as: 301 F.SUpp.2d 12~1) 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 Yirginia Beach, judgment is "grounded in the specffics 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 aa 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 nondiscriminatory location at issue more than a mere scintilla of standards derived from their zoning codes, and ... evidence generally will exist. aesthetic harmony is a prominent goal underlying almost every such code." Aegerter v. City of Plaintiff nevertheless insists the evidence before Delafield, 174 'F.3d 886, 891 (7th Cir. 1999). the city in this case amounted to'no more than Moreover, consistent with traditional zoning unsupported and vague objections. See Plaintiffs standards, local government i~ "entitled to make an Pre-Hearing Memorandum at 9. But a proper -aesthetic 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 !'grounded in the specifics of economic or other quantifiable impact" such as the case." Todd, 244F.3dat6L property value. Todd, 244 F.3d at 61. For example, neighboring residents submitted Plaintiff, 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 evidentiary value. See, neighborhood's prized natural setting, comprised of e,g., PrimeCo Personal Communications, LP v. fir and evergreen trees as well as a greenway. See, City of Mequon, 352 F.3d 1147, 1150-51 (7th e.g., IL 191, R. 195, IL197, IL205, IL207, IL220, Cir.2003) ("The only 'evidence' bearing, on aesthetic IL222, IL407, IL420. 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. IL26, R.205, R.407, R.420. In addition, on church's [the proposed, site's] backyard..L IT]here is each' side of the tower is a single-family residential no' evidence that Verizon'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...."); Troup County, 296 F.3d at R.247-58, IL769, IL816. 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 plaintiffs 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 R.205. 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 ~sthetic concerns did not understand the TCA prevents municipalities from exercising what the .proposed 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 ell2 301 F.gupp.2d 1251 page 7 (Cite as: 301 F.Supp.2d !251) development based upon aesthetic FN3. The court recognizes another conSiderations...."); Aegerter, 174 F.3d at.. 890-91 appraiser mentioned three other homes (upholding zoning board's denial of cell-phone which are within 100 feet of a cell-phone tower because the tower would be "unsightly" and tower. R. 137. However, these sites are not "inconsistent" with the neighborhood, in which in Washington County. Moreover, as residents bought their homes in reliance on the indicated above, the court finds it neighborhood's existing residential character). In significant that plaintiffs own sum, although opponents made general assertions expert-"[a]fter filtering the number of about the nature of cell-phone towers, they also sites for research," R.269~-chose four · considered the specific scene in which the proposed homes which are at least 350 feet from tower would appear, cell-phone towers as the sites most appropriate for purposes of drawing a MoreOver, the city also gave consideration to the comparison to plaintiffs Proposed site. proposed tower's distance from surrounding homes. The city council cited aa appraiser's testimony' that no other cell-phone facility in the city sits as close C~oupled with the city's aesthetic judgment is the to residences as would plaintiffs proposed, tower, fact the proposed tower would not fili a complete R.39. In the board's words, "the cell tower in this void in covorage but instead would only improve case would be in the heart of an R-? single family indoor or, in plaintiffs term, "urban" coverage. residential neighborhood and would be the tL16; see Plaintiffs Reply Memorandum at 3. In functional equivalent of placing a cell tower in the determining whether the tower would be in the center of a subdivision." R.27. In addition, the "public interest," the city was within its authority to board specifically distinguished the two other weigh the.benefit of merely improving the existing previ6usly approved cell-phone facilities which sit coverage agaiost the negative aesthetic impact the in single-family residential zones. R.27. The board tower would cause. See, e.g., City of Mequon, 352 observed-that one of the existing facilities was F.3d at 1149 ("A reasonable decision whether to placed on an existing light pole at an athletic field approve the construction of an antenn~o for .and '1259 that the other sits in abusy section of the cellphone, commllnications requires balancing two city across .from a commercial district. R:27. At the considerations. The first is 'the contribution that the proposed site, the record indicates that many of the antenna will make 'to the availability of cellphone neighboring houses are between 100 and 200 feet services. The second is the aesthetic or other harm 'from the proposed tower. As one witness observed, that the antenna will cause."). Such a policy-based "It]he proposed cell tower site regardless of where decision is precisely the type of decision Congress placed on the property would be within 100 feet of left to local zoning boards. 'a single-family site." 1L769. · [4] Keeping in mind the standard is merely "more In fact, in an attempt to compare the proposed site than a s.cinfilla," and less than a preponderance, the to other Sites where homes are near cell-phone city based its denial on sufficient evidence. facilities, plaintiffs own expert witness Picked four Certainly, as plaintiff contends, it is possible to "subject" homes which are no less than 350 feet conclude the proposed tower would not be a visual from the nearest cell-phone facility. 1L265, blight, judging by the simulated photographs in the IL269-70, K.279, R.289. Each of the expert's four record. This court's role, however, is not to subject homes is in Washington County (which interject its own judgment, but rather to apply the includes the City of Hillsboro) ,and one of the deferential standard of substantial evidence to the homes is in the city. Notably, Washington County city's judgment See Todd, 244 F.3d at 58 ("the records indicate three of the expert's chosen homes possibility of drawing two inconsistent conclusions actually are over 450 feet from the nearest cell- from the evidence does not prevent an phone facility, with one of these three homes being administrative agency's finding from being 900 feet away. R. 138-39. Thus the city had before supported by substantial evidence,"); degerter, 174 it plaintiffs own evidence indicating the proposed F.3d at 888 ("While the conclusions the City site is significantly different from the area's most reached may not be the only poss~le ones, they find 'comparable sites. [171q3] support in the written record and therefore must be respected."). While' the court is obligated to review Copr. © West 2004 No Claim to Orig. U.S. Govt. Works IV-64 http://print.westlaw.com/delivery.html?dest=atp&dataid=AO0'55800000066180001978611... 4/14/2004 Page 9 of 12 301 F.Supp.2d 1251 ' Page 8 (Cite as: 301 F.Supp.2d 1251) thc 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, 1137-38 the. difficulties involved in applying inherently (10th Cir.2003) C %Ve doubt that Congress policy-basedt 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 8print 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. lan, .28, 2003) (finding substantial 695). In any event, as discussed above, the ev/dence 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 "'[l]and us~ 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 (1 lth 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 review, 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 govemmenes zoning decision when the decision has the "effect of prohibiting 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 prolu"oition claim. St. Croix, 342 F.3d at 833; 3?at'l Pre-Hearing Memorandum at i4-15. Tower, LLC v: Plainville 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 talcing measures to ' Props., LP v. Town of Pelharn, 313 F.3d 620, 629 allo,~ate those concerns: Id. But because (lst Cir.2002) (citing Town of Amherst v. the city's decision was not based on the Omnipoint Communications Enters., Inc., 173 F.3d issue of lighting or trees, the court need not 9, 14 (lst Cir. 1999)); ,dPT Pittsburgh LP v. Penn consider this issue. Moreover, plaintiff Township Butler County of Pct, 196 F.3d 469, does not point to evidence in the record 479-80 (3d Cir. 1999); MetroPC$, Inc.} 259 showing what, if any, "reasonable F.Supp.2d at 1013; Airtouch Cellular v. City of El conditions" were feas~le 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 prolu'oition provisio~ 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 protu~oition can be seeking t9 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 prolu'oition clause" 'to apply only '1261 to general Copt. © West 2004 No Claim to Orig. U.S. Govt. Works IV-65 Page 10 ell2 301 F.Supp.2d1251 (Cite as: 301 F.Supp.2d 1251) Page 9 bans would lead to the .conclusion that, in the important, plaintiff does not show "f~J~er absence of an explicit anti-tower policy, a court reasonable efforts are so likely to be fruitless that, it would have to walt for a series of denied is a waste of time even to try." Seco~l Get, ration, 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.' ",qt. Croix, 342 F.3d at 833 installing two towers at other locations. R. 117, (quoting Sprint Spectrum, LP v. ~Yilloth, 176 F.3d R.513-15. 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 eousider whether, as plaintiff contends, the city's FAA regulatory limits, R.425, tL517,19, plaintiff denial in this case' amounts to an effective does not point to any evidence showing the effect prolu'oition- reducing the one tower by, three feet would have on service provided by th~ two-tower alternative. In invoking the effective prohibition clause," 'the Instead, in response to the FAA regulatory limits, it burden 'for the carrier ... is a heavy one.' "Seco~l appears plaintiff submitted a proposal taking into Generation, 313 F.3d at 629 (quoting Town of account only one proposed tower. R.425, IL575. .4mherst, 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 ~eawf burden ofprooP'), show that the proposed tower was the "only feasible plan" or that "there are no other potential solutions [8]. As an initial matter, in deterll~inlng whether a to the purported problem." St. Croix, 342 F.3d at denial is an effective prohibition, courts have 834.[FN5] looked to w.hether the proposed tower would close a "significant gap" in coverage., St. Croix, 342 F.3d at 835 n. 7;. Omnipoint Communications Enters., FN5~ That the possible alternative would L.P.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 Goldea Road proposal the only feasible 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 'reasonable efforts 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 l°eation. 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 only' 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 Tawn of Pelham~ 313 F.3d at 630, 635). instead of one tower at the location Sprint Plaintiff cannot meet the applicable standard: chose); see also Town of dmherst, 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~iHcant 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 '[s]mall areas within a service 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 (quotiag 47 C.F.R. § 22.99). It is undisputed plaintiffs tower would simply improve existing indoor coverage, not fill a complete void in '1262 And contrary to. plaintiffs contention that coverage. See, e.g., Plaintiffs Reply Memorandum .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 city Copr. © West 2004 No Claim to. Orig, U.S. 'Govt. Works IV-66 http://print'wesflaw.c°m/deliVerv.html?dest=ato&dataid=AO0558000000661 gO001979611.., a/la/gof~a Page 11 of 12 301 F.Supp.2d 1251 Page 10 (Cite as: 301 F.Supp.2d 1251) 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 prohi~oiting wireless services, determining whether unlawful discrimination occurred, a court must remain mindful that cities C. Discrimination 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.ting H.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 tho Golden Road permit simply because the Thus a zoning board can treat one prov/defs .. neighborhood at issue is affluent. Plaintiff contends application differently from another provider's a mun/cipality should not be permitt~t to .deny a application based on- "traditional bases of zoning conditional-use application, on -the sole ground the regulation." City of Fa. Beach, 155 F.3d at 427. proposed location'is in a neighborhood more affluent than others: Wlfile plaintiffs position may Plaintiff does not carry its burden to establish be laudable, it points to no evidence showing the unreasonable d/scrimlnat/on. 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 does 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 than the discriminafion.'[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 17N5. It is worth noting that plaintiffs different locations with~ the [city]." MetroPC$, argument regarding discrimination, i.e., 259 F.Supp.2d at 1012 (holding that a mere that other, similar permits have been showing facilities were permitted in different granted, is at least partially inconsistent, locations within a district was not "unreasonable with its argument regarding effective discriminalion under the Telecommunications Act, pr01n'oition, i.e., that the city is effectively asa matter of law"). In fact, the board specifically prohibiting wireless services. distinguished the other two sites. 'See infra at 1259-60. Nor does plaintiff show that the two other residential area permits were approved, as in this The TCA prohibits zoning boards from case, to improve indoor coverage rather than to fill unreasonably discriminaling "among providers of a complete void in coverage. In sum, function.oily equivalent services." 47 U.S.C. § There is no ev/dence that the City Council had 332(0)(7)(B)(/)(1]. As with claims'under the any intent to favor one company or form of effective prohibition clause, there is no deference to service over another. [Instead] the evidence the local government's findings. Airtouch, 83 shows that opposition to the application rested on F.Supp.2d at 1164 (citing Cellular Tel. Co. v. traditional bases of zoning regulation: preserving Zoning Bd. of',idjus~nent of Ho-Ho-Kus, 197 F.3d the character of the neighborhood and avoiding 64, 71 (3d cir. 1999)). aesthetic blight If such behavior is unreasonable then nearly every denial of an application such as [10] The TCA allows discrimination among this will v/elate the Act, an obviously absurd providers as long as the discrimination is result. reasonable. See Willoth, 176 F.Bd at 638. Plaintiff CiO~ofFa. Beach, 155 F,3d at 427. · bears the burden of establishing the city engaged hi unreasonable discrimination. See MetroPC$, 259 IH. Conclusion F.Supp.2d at 1011o12..Plaintiff must show "other Copr. © West 2004 No Cla/m to Orig. U.S. Govt. Works 1V-67 Page 12 o! 12 301 F.Supp.2d 1251 (Cite ns: 301 F.$upp.2d 12'51). Page 11 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 thari a scintilla of evidence, does not effectively prohibit wireless services, and does not discriminate among providers. IT IS SO ORDERED. 301 F.Supp.2d 1251 END OF DOCUMENT Copr. © West 2004 No Claim to Orig. U.S. Govt. Works IV-68 http://print.westlaw.com/delivery.html?dest=atp&dataid=AO05 5800000066180001978611... 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 protect 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: "While local zoning control over cell towers may seem burdensome to telecommunications providers, it is no greater a hurdle than that faced by all 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 M~y ~ 200~ Th~'l~mblo Pstdck L~hy 'Waehinsin~ D.C. 20~10 Oa behalf of the meatb~r~hlp ofth¢ Natior~ l.~at~0 0fCitica. wc am writing.to mq~resa cur ~ttong rmppoxi fnr tl~ Local Control ofBroadoam ToWer~ Act (g.3102) ~ Lo~J COal~O1 of Ceihl~r Towels Ac~ ($J103). WO br.,li~e lhe. 1996 ami local zoning and land use authority wflh regard to tower placer. Th~so mcasum~ would roetorc cite ~bility of local ~vernmerds to cffccdvely balance tl~ ne~ls oftolecommunii:miorl~ provider~ ~ the zontfl~ needs ofthe/r c/tim/tO, As you I~.w, the Tclccommu~/0~livas A~ of 1996101[lSlalion codified the fed-tel 8ovemmetlf~ confide, ut~ o finm-c,m]cd comp~fion e~l dee. ms, ed govg~mem r~ulatto~ ~ tim tclcphorkv industry. For local go,..emm.-r~ C~O~ d~c nation, lher~ h~ been lmme~e local eonv'l~ct over ~ower siting ~at ~V~ms f~ ~ ~n~ of While the Act added Stt~tiol1704. codified a~ Section 3~2(¢)t'7)fA). whioh ner, er~v tow= dfin$, it did ~p~HiosIly If~t fl~ mth~rity of~tc or let:~l go~rmt~at~ m prevmt unmaer,~-blo gi~orlmination m'nong"provid~..s of functionally equt-,ml, e~ r. etvi~,~," The A~ t~-th~ prewntcd state ~ locnl ~ove. l'ma~ttts from prohibiting *'the pro~4sion ofp=sonal wireless s=vices," ~ sccflun al~o l'cqll~s S~0 ~ local Bovernments to rmp~d ~ a ~a.sonable time to requcsis to ~tte wtrele~ tower6 and fam'litf~, hi ~dillor~ ibis ~x~ also c'~cpr~aly ~orS{& loea! ~over~m~ats il'om pmhihl~U~ lower ,,t,,i.~ baa~i oa tho ~ dr~ of RF en~stona, providing flint dlese altos oca~Ply with ~, ~ re~ulati0n$ concmulai such embtaions. Thii measure wotdd amend ~ Tdmommunteltgon~ Act of t ~6 m~[ maffirnl state and lo~al aultmr]ty lo msula~c thc placeme~ c~r~ffuction, and m~lificafit:m of : 'b~ad~ast Ir~nsmisiton/'aoilitie6, Moreov~, it wouMpmhiblt the Pederal i ~.. ~cati_olia Commls~ion 6urn dopt~lg a final ml0 or othsrwis~ im~lcm~li.= ~ pofti0 ora pfop0sod ml~ r~linll ~ pt, wanpti0u of Smte'aud Jo~ zonJlIg ~ ~ ~o tmrioflons oone~r~g the fltiug, placeme~, and Oons~Io~ ~F IV-70 We believe d3et ~ mua ~e ~ ~e ~c ~ of~ ~ti~ ~ wall as ~ ov~ (102) ~6-~022. 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 { 0/2/2002 Ladies and Gentlemen: · Over twenty mOnths ago, we became involved in the issue of appropriate placement of wireless transmission facilities. Our group, Citizens for Responsible Placement of Cell Phone Transmission ToWers, has ~c~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 while still enabling.service providers to provide adequate coverage. We are close to achieving that goal - Lane County, s TelecommunicatiOns Ordinance with soon to be approved amendments. However, we have not limited our efforts to rural Lane County. Ms. Linstromberg personally was active in opposing the SBA/Sprint application for the proposed site on Villard Street (SR 01-32). Martha Johnson has led ·opposition to the proposed Master Towers site on 'Oakleigh off River Road {SR 01-33). Because we are familiar with the City's existing Code 9.5750 as written and as it has been applied, we urge 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. ^tthe time Eugene's telecommunications ordinance was enacted, most local 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 different 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 fadlities. 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 TC^ 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 TC^. 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. ^Ion8 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 afl~.~.artha~iohnson . 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 ina 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 facilities may continue in use but shall not be expanded, altered, or modified other than as necessary for rourine 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 ¢=frlr-f~r limik nn cnllncnfinn ic nr~c=~rv:~fjnn n( r~cirt~nfinl nnd hi Icin~ce. nrnn~rf~! 1V-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 Ca,, 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 dty limits and inside the UGB are zoned EA. 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 Berjac 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. h4cKerrow 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 is 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 .... i From A LOCAL GOVERNMENT OFFICIAL'S GUIDE TO T .RANSMITTING ANTENNA RF EMISSION SAFE IY: RUL_FS, 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 citJzens? Appendix A of'the above-referenced FCC publication, under Evaluation Required If~ states: "Personal Communications Services, building-mounted antennas: total power of all channels > 2000 W ERP." The situation just described serids 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 principles.' 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 fadlity 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 t° 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 leakase of hazardous chemicals. The rationalefor 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 applicant 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 heightand 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 dare'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 facilities requires this type of neighborhood meeting. 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 ahd 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 drde -- 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 independent 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 independenl~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. Inthe 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 ^ttachment 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 dted above regarding RF foo~rint size for PCS sysytems, the required minimum separation between towers should be at least 2600 feel EC 9.5 750(7)(c) Collocation. Current code language allows applicants to meet standard by merely stating in the application that their tower is DESIGNED to · accomodate collocalJon. 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, Medcom submitted a preapplication for a tower only 400 feet from Master Towers site, stating that Medcom 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 drcomference to place Ver~zon's antennas inside the flagpole." EC 9.5750(7)(d) Setback. In terms of preserving property values and p?otectJng the City from lawsuits, this Js the MOST IMPORTANT provision of the entire code on telecommunications facility siting. Howard Richter & Assodates, a 26 year-old Chicago real estate appraisal firm, found as much as 15% devaluation in homes within 2 70 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,/560 (£~geae ,q'~, 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 Tdbone 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 ^medtech 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 Houston 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 lawsuit, 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 fronL Current code states that the city "may require the posting of an open-ended bond before development issuance to 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 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." 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 Sprint'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 application and be available dudn8 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 critical importance to the effectiveness of Eugene's telecommunications cOde. Planning staff lacks the technical expertise to verify 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 RadiO Frequency Emission' Safety: Rules, Procedures, and Practical Guidance, p. 11, .states, "Many larger dries 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 .r. eview. 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 Sheet City code should modified to specify 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 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. Respect~ll~ Submitted' Linstromberg Citizens for Responsible. Placement of Cell Phone Transmission Towers IV¥82. List of Attachments ^. 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)(iii) F. Excerpt from 1998 FCC fact sheet G. Lane County Code 16.266 (new telecommunications ordinance, adopted 06/02) H. Eugene Code 9.5750 IV-83 Attachment A · 186 Chapter 1~ 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 agents7 Where do you start? What Citizens 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 first 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 drafting 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 board? 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 TOWER~ ll~8 You will need to know which board is responsible for writing such An ~ of Zoning: ro~,ulations. It may not be the same board as is given the siting powers, or /47uat It Can -And Cannot Do - According To FederalLaw. 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' servic~ facilities" (SPGA) may be the board of selectmen or the zoning ~_~d of appeals are sot out in federal law, in the Telecommunications Act of 1996, Section (ZBA). 704.' Once you've determined the specifics of your situation, find out '"~' Cutting through the lngaleso of the Telecom Act, a colmnu~ can when and whore 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 personalities of the board member~ and a sense of tall it can be, what caa go on tho tower, and how such installations arc the way they approach their work. monitored for radiofi'equency (RF)'e~ssions to make sure they are in - It helps to contact other municipalities for information, or local compliance with the FCC standards -- among many other things, still fall newspapers that have run articles about other tower-siting scenarios, under local jurisdiction. But, there are better and certa~y worse ways of Network. You will find that people who have been active in this field love going about the exorcise of that control. to share their stories, expertise, and resources. Consider placing an ad in The Telecom Act also stipulates that communities must bo carotid tho local newspaper to attract other citizens wh0are concerned. An ad as' i in denying pormit~. Deniala _~___hould bo for substantial r~asons minted inca simple as: "Interested in the issue of cellular towers in our neighborhoods? written record of tho proceedings. Tho better tho zonln-.° regulations are,, Call mo at..." .will cost only a few dollars and may help you begin a citizens group that can share the workload- ~ inappropriate. Good regulations are tho blueprint for successful le~d It's fair to ~ay one person cannot'do this alone. Few people have .~ actions, should that como to pass. the spare time,, energy, or tenacity to move SUch issues onto center stage What a community cannot do is to completely ban personal and ~e public officials to act constructively. Plus, there is power in. wireless service from that community. Does that mean it must allow a numbe~... No city council, or planning board can afford to ignore a room tower or base station within the community? Not necessarily. If tho full of p~ople who have a clear agenda. But they have little problem ~ company could provide service fi.om another adjacent community, and is ignoring one citizen (or even a small group) whom they can dismiss as ~:" already located on a tower in that nearby town, whore by addling NIMBY's. .~:' · -- By organizing your neighbors and others throughout the ~. antennas they could also cover your town m then you might be able to keep that company from building a now tower in your town.2 Tho bask community, you will develop a larger, voice that will attract tho local ~ legal argument is that your town is not p~ tho company from media. When you attend municipal' meetings to speak about tho issues, .:~, providing service to tho community but rather disaliowing.a now base you will be heard in a very different way than before. ~ ~ station to be ere~tccl within town boundaries. Th~ reason for doing so is Om' local group in Great Barrington, Massachusetts ~ Folks for ~:, ' that the company can already provide service fi.om aa existing tow~ to Appropriate 'Cellular Tower Sites, or FACTS ~ became a force to be .'; which the company already has legal access. reckoned with when it could consistently, and .on very short notice, get · '~' Under the Telecom Act, communities cannot "unreaso~i~ fifty or .so people to any meeting where the .tower issues were up for ' discriminate among providers. This means the town cannot block one disou~on. It did not matter than only about three or four of those people ~ cellular company from providing' service in tho community if' other were really wo~in8 diligently on th issue; Tho-grOup took on a force far greater than the individual efforts of the members. / .... ? ~ 2Reccntcasolawsuppoflsthi_~_ Sco Jam~Hobsoll's~ CdhdlrT?-'~llo . ,, , Co. v. Zo~i~ 13cad or. Adjumum. _- - ~ ~we..a~ C'~L TOWI~IL~ 190 providers have already i=stablished service.~ Bm towns can- and usually ' In addition, towns can require monitoring to make sure that aH do -- require the new Company to co-locate on an existing tower. That is facilities meet the maximum FCC emissions 8uidelines m no matter how reasonable discrimination m allowing them both to cover the same area many providers are co-located at a particular site. Very few people at the from-the same location. You might hear carriers arguing that they want a local level understand that the responsibility for compliance monitoring better location, or'to provide better service -- but your town is not has shifted to municipalities. required to provide the carriers the absolute best possible location -- just a reasonabl location. If another carrier is already providing service from an Hiring E.r. pem 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 lime 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 .states or municipalities, a permit is automatically shy away from it because of the complexity. But what individual board granted if a de~ision-making board does not act within a specified time members are unfamiliar with.can -- and should m be provided by hiring frame. It's a decision by default, outside expertise. One ofthe most vexing clauses in the Telecom Act ~ for citizens One of the first things you will need to know is what in p~ticular 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 RI*. Municipalities ~ to speculate that a company "ought" to be able to provide coverage from canno~ uso 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 effe~s 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 RI: 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 ther~ are Other concerns that parallel environmental and health concerns the systems and technology of radiofrequency communication and will that can be. used as a basis for zoning. Examples include the use of large . help the town'determine if the information on an application is accurate, or setbacks and vegelafive screening. This will prevent facilities from being if other solutions would be better for the town's interests. sited ~oo close to dw~inss, reduce visual impaCts,' and help protect ~ A telecommunications engineer can be helpful Whether an p~ values. Large setbacks will also reduce the potential damage if a t application is pending or not. One proactive approach used by tower collapses or has ice fall from it. Another important avenue is the fact communities is to hire an engineer to help create a telecommunications that lms, era can create an "attraCtive .nuisance" -- especially to students ,~ master plan or overlay district, where facilities can be placed to provide' who may dare each other to.climb them. All, active nuisance is a legal term * adequate service -- while still protecting the town's vital interests. By that could come in handy when denying applications near schools, i having an expert do a few radial or tile 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 dislance fro.m residential areas and schools, thereby reducing ~ interested citizens, understand how toposraphy and demography work as a RI* exposures, 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' ~ own goals in town, a win~win situation may result. The town will have to front money for an RF engineer but the ~ The~ is rec~i c~so law on lhis point tl~_ _ appears to be in direct conflict with the ~ expense is worth, it. A master plan will help with better siting decisions · ~ :~ Act. ~/ames Hobson, Cl~pler 9, l~Senla~ion, APT Pitcst,~h v. Penn 191 CEIL TOWERS C~-~ J. TOWERS 192 and fewer lawsuits by the industry (if applications are denied)' or by irate Moratoriums citizens (if siting deCisions are poor ones.) r-- A 'note of caution, however, is warranted. Do not invite the If the town needs time to study the issuc, 8oin8 into a moratorium T industry in' on early planning efforts in the name -of listening to all period is thc wisest thing to do. During thc pre--dztmmined time-pesiod, no ~ "stakobolders." Be wary when they "want to help thc town." They are applications can be accepted, therefore no legal obligation exists to act n skilled at co-opting the local process and you may find yourself pulled them. A moratorium is espeCially helpful before applications come in. It mOre toward accommodating their needs than your own. Such co-optation will give the town breathing room to do a proactive job of crew_ ti%a good can be subtle. It often seems friendly. They want to help you "avoid law zoning regulations. Ifa town is not in a legal moratorium, any applications mits" t which can be a veiled threat. Inviting them to thc planning table for teleCOm sites will apply to whatever regulations are in lJlace at tho will also provide an. early window into town dynamics and give them an time. Telecom providers have been known to flood some towns with edge later on. applications just before the start of a moratorium in order to'avoid sh-lcter Another note of caution: most telecommunications cngince~ng regulatiOns. fu'ms work 'for thc industry and so .would have a conflict of interest in The FCC has set out voluntary moratorium guidelines for · working for a community. But there are competent indcpend, ent engineers communities? In. general, moratoriums cannot bo used as smokcScrzens who can provide what'the town needs. This is where networkin8 with for obstruction. They cannot be indcfinite,s They must bo good-faith other towns is especially helpful: You may be. able .to find out the names efforts to 8ct one's regulatory house in order. Many communities begin of one or more engineers from other town boards. If not, try local with a three-month t_ime frame and extend it to six months, if neces,saO,. universities with engineering departments. The EMR Network also ~ Thosc areconsideredreasonableperiods. reconuneZds indcl~ndent engineers to municipalities? Ask for references Any applications that are pendi_ng before the moratorium must be from other towns thc individual has worked for. When you contact those . t heard in a timely manner. The moratorium will not apply.to them. references, you will have found a g01d mine of information- not just A mOratorium is a legal entity. It must bo enacted by the about the engineer you are thinking about hiring, but also about the : appropriate authority in your town. Moratorimn language should be process th other town went throush, the lcssons they learned, and thc ~ preCise and include a statement that the purpose of tho moratofimn is to pitfalls they encountered. ~ develop appropriate regulations to control the placemen~ construction, and The other important expert you will need is a lawyer who is t, modification of personal wireless service facilities, in accordance with thc familiar with the recent telecommunications case laTM. In 1996 when the , TeleCOmmunications Act of 1996, and applicable state and local laws. The Telecom Act was passed, very little such case law existed' regarding where , time-period must be sPeCified. Extensions should bo VOted on again. this technology intersects with the rights of local governance. Today, that ., Once a moratorium is in place, the communiW must work quickly case law is accumulating. Many important deCisions in federal courts back ~ on the bylaws you will be drafting. local decision*making powers. The town's mUnicipal attorney may not be familiar with the implications of these decisions, often, the municipal How l)o You Start?. . attorney de. fin s his or her mandate as avoiding lawsuits for the town and ~ may advise the path of least resistance. But, this not the best course of " It helps to define your goals up front: a~tion with this particular issue. Towns need not roll over for the telecom ~ industry. · la What are we trying to accomplish? · la Is our goal to place facilities in specific locations? ~.S~~~-~&Fforwebsites. *-"-'~ 6Afed~lleouttuphe, ldo~eommuaity'$sighltotwo, lm~4o.l~six, .... ~ CELL TOWERS 194 o For how many carders do we anticipate needing to provide service? a What is the infrastructure already in place -- here and'in neighboring " _?_a:~._~,Th!, !s .n~t the a,ver.~e three-bedroom colonial house proposed for a communities? , ~iucm~m p~o~ or a suo-oivision request. cs Are there areas you really want to avoid m scenic ridgelines, other " · Great Barrington, Massachusetts, was one oft. he first communities . In the country to incorporate the requirement for such RI: engineering vulnerable areas? ~ detail, as well as thorough monitoring and proof of liability coverage for cs Are them appmpriam and acceptable town-owned sites Where the' town ~, the town, into zoning regulations. (Numerous communities across the could gain some revenue? o How are you going to handle the NIMBY phenomenonV Arc ,,e thc ' country have subsequently used this model, with various adaptations.) It NIMBY phenomenon? ' - set the bar for telecom siting regulation at a .new high for. a local o How have noighboring communities fared in their dealings with the ' municipality'7 carders? ~. Great Barrington is located in the southern Berkshire Mountains of o Do we need a whole new bylaw, or a revamp ofthe existing bylaws? ~ Massachusetts. The area is scenic and laden with historic assets to prOtect. Its economy is heavily dependent on tourism dollars. InaPPropriately cs 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 , the underlying aesthetic sensibilities of the community. your side? ' · ' The following bylaw was written while the town and some private cs What 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. c~ 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? o Is an application already pending? ~. The following Great Barrington bylaw, with italicized comments, o Are the necessm-y 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 ~ point is to be thorough and adapt it to your town's needs. Note that it is attorney for legal advice as you proceed? What is that person's . written to conform with both Great Barrington existing 'bylaws (so the orientation on thin subject? Are they up to speed on wireless I numbering is Specific to Great Barrington) and with Massachusetts law. telecornmu_ nications issues and case law? If not can theY consult with Any adaptations must be consistent with your own state. another firm that is? The basic attitude you take into the proce~ will often determine what you ge~ out of it. The more professional you are, the better. ' Understand that, according 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. Tho best way to accomplish that balance is to create a stringent, thorough,, and fair bylaw to locate wireless facilities that will be adequate for the cartie~s, and have the least detrimental impact possible. Gaod Telecom Regulations As mentioned before, tl~ is a different kind of land-use regulation iii : The Great Batrington regulations effecl many of the stone prov/sions used by the mn most planners or. zoners are familiar with. It requires a lot of Connecticut Siting Coun¢il-aslateagcncywith vastly greater resources-i are viewing ngiaeering detail for wireless energy ~ something invisible that exists in ~elecom proposals. 195 CELL TOWERS CRLL TOWERS Great Batrington Personal ~treless Service Facilities and Tmvers By-Law Services; b) they are not intended to bo used to unr~onably discriminate among provider~ of fun~onally equivalent 8~rvices; I § 171- 120.Purposes: c) they do not regulate Personal Wh-eless Sea~i~ on. tho Tho purposes of this Personal Wireless Service Facilities and the environmental effects of radio frequency _e~_iSsions 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 St)GA to demonstrate that B. Protect the scenic, historic, environmental, and natural or man- they were cognizant of the federal law 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 m § 171-122. Det'mition,s and word usage; Personal Wireless Service Facilities. As us~ in this Personal Wireless Se,~vice Facilities Article,, the D. Provide a procedural basis'for action within a reasonable folio.wing terms shall have the meaning~ indicated. TI~ word period'oftime for requests for authorization to place, construct, "shall" or "will" indicate mandatory requirom~ "may" is operate or modify Personal Wireless Service Facilities. advisory and indicates recommendations which are not mandatory. E. Pre~ze prop,my.values. ACT - The Telecommunications Act of 1996. F.-.-Minimize the total number and height of Towers throughout ADEQUATE COVERAGE - Coverage'is considered to be · the community. "adequate" within that area surrounding a Base Station (3- Loc, at Towers so that they do not have negative impacts, such the predicted .or measured median field strength of ' as, but not limited: to, attractive nuisance, noise and falling transmitted signal is'greater than -95 dBm- It is accep~l for obj~::ts, on the general safety, ' welfare and quality of'life of the there to be holes within tho area of Adequate Coverage whore .. community, the signal is less than -95 dBm, as long as tbo ~ regains its H..Require owners of Towers and Personal Wireless Service strength to greater'than -95 dBm furtho' away fix)m tho Facilities to configure them so as t° minimize and mitigate the t Station. For tho limited purpose of~ ~ th~ mo adverse visual impact'ofthe Towers and Facilities. of a Re~,,ater.is n~,~ssary or desirable,, the~ shall be I. Require Tower sharing and the clustering of Personal Wireless i not to bo Adequate .Coverage within said holes. Th~ outer Service Facilities Where possible. ".f boundary of the area of.Ad~uate Coveaage~ however, is that . ,4 listing of purtx~$ is useful because it tells your "'""'~i location past which tho signal does not regain a stren~ of Special Permit Granting ~uthority ($PG, d) what it '~ greater than-95 dBm. is trying to accomplish, and gives it the reasons it ~ The te!elcommunications ' _m~___,_sa~ was upset that the needs ~ it is going to deny the permit. It also town defined its own signal strengik &tch a right addre, xses one of the Telecomm ~ct issues ~ timely has subsequently been reserved to the towns and con~.'deratior~ upheld in federal case law in Sprint ~ectt~ v. Igillotlt It is FF_J~. important that YOU deftt~ tl~ ii § 171-121. Consi.ntency with Federal Law: level of signal strength tlgtt is'adequate. ~ is an ~ r~.nml,,_ations are intended to bo consistent with'The .engineering detail. DO 3102'I~TIltE ~ Telecommunications Act of 1996 in that: a) they do not prohibit or · DF, FINE EITH~ ADEQ~I.4TE COFERACtE OR hav~ tl~?~-~'oct of prohibiting the. provision of Per~oaal Wirele~ :. ', ~" ADEQ~r,4TE CAPACITY! You hav~ the right t~ ~' CELL TOWERS CELL TOWERS 198 ~ parhmeters, as long as they are reasonable interference shall be considered when .making this. and do not have the. effect of prohibiting the determination. {amqer~ from providing service. NOTE: The. EMF- EleCtromagnetic FreqUency Radiation definition needs to be updated to the signal strength . FACILITY SITE - A property~, or any pan thereof, which is owned levels that are appropriate for today's equipment or leased by one or more Personal wireless Servic~ Providers and for technologies that have evolved since this and upon which one or more Personal Wireless Service was written. . Facility(s) and required landscaping' are located. ADEQUATE CAPAC1TY - Capacity is considered to be FCC- Federal Communications CommiSsion. The Government agency responsible for regulating telecommunications in the ?~:l~.equ?~.'* fi.tho .Grade of Service is p.05 or better for at least United States. :~/o ot~ the day~ m a preceding month, prior to the date of FCC 96-326 - A Report and Order which sets new'national Application, as measured using direct traffic measurement of Standards for emissions of Radio-Frequency emiSsions from the Pe~onal 'Wireless Service Facility in question, where the' FCC-regulated transmitters. call blocking is due to frequency contention at the antenna(s). GHZ - Gigahertz: One billion hertz. AHTEHNA - A.device which is attached to a Tower, or Other GRADE 'OF SERVICE - A measure of the percentage of calls ~mcture for transmitting 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 as a which Antennas of a Personnl Wh'etess Service Provider are number, such as p.05 - which means that 95% of callers .will both b~u~'ally Able and Electromagnetically Able to be connect on their first try. A lower number (p.04) indicates a attached. · better Grade of Service. BAb~ STATION - The primary .sending and reCeiving site in a HERTZ 'One hertz' is the frequency of an electric or magnetic wirele~ telecommunications network. More than one Base f 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 b~ located on a single Tower or structure. MAJOR MODIFICATION OF AN EXISTING FACILITY - Aay - ~ - The ~"gment of the radiation spectrum from an ! change, or proposed change in power input or output, number Ant~ which carries one signal'. An Antenna may radiate on ~ ' of Antennas, change in Antenna type or model, repositioning many CImmels simultaneously, l of Antenna(s), change in number of channels per Antenna. COMMUI~CATION EQUIP~ SHELTER - A structure ~ above the maximum number approved under an existing Ioe~ at a Base Station designed principally to enclose · ~ SpeCial Permit. ~lUilmm~ used in ~onnection with Personal. Wireless Service MAJOR MODIFICATION OF AN EXISTING TOWER - Any .increa~, 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 nnd/or ELECTROMAGNETICALLY ABLE - The determination that the ~ relaying antennas and/or equipment. new signal from nmi to the proposed new Antennas'will not ~ MHZ- Megahertz: One million hertz. significant~ interf~ with the existing signals from and to · ; MONITORING- The measurement, by the use of instruments in other Facilities' located on the sam 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 use of available technologies to allevinte such + 'Antennas or Repeaters. 1~9 CELL TOWERS CELL TOWERS 2O0 MONITORING PROTOCOL - The testing Protocol, initially the SPECIAL PERMIT GRaSaNTING AIYI'HORITY (SPGA) - Tho Cobbs Protocol, which is to be used to monitor the emissions Board of Selectmen shall be the SPGA for this Article. from 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 structure is capable of carrying Me load imposed by the tecimology changes, .require, by written regulation, the use of proposed new Antennas under all reasonably predictable other te~tin__g 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 single self-supporting vertical pole With. no guy TELEPORT - A facility utilizing satellite dishes ofgrenter than 2.0 .wire anchors, usually consisting °f'a galvnnized or other meters in diameter designed to uplink to conununications unpainted metal, or a wooden pole with below grade satellites for'transmitting in the C-Band (4 - 6 C.d-lz).specuum. foundations. TOWER - A lattice structure or framework, or Monopole, that is PER,5ONAL 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: cellular services, personal communications services (PCS), IV § 171 - 123, Exempted Wireless Telecommunications Uses: Specialized M°bileRadi°Services, andPagingServices. 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; c'~izens 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 part thereof. This Facility may be sited on considered exempt from this Article. for any reason whether or not one. or more Towers or mucU~e(s) owned'and permitted by said Facility is proposed to share a Tower'or other sUucture 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 interfere with your local individuals°rinstituti°ns' emergency services or antagonize'HiM radio RADIATION PROPAGATION STUDIES OR RADIAL PLOTS- operators. ;But.WU also don't want Ham operators Computer generated estimates of the radiation emanating fi.om to /ease their towers to other carriers. ~_~___'o 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 ,4ct onbd preempts local 'aada~O, for output,, type of antenna, antenna gain, topography of the site ' cellular ~elecommunications services. Broadcas~ and its surroundings are all taken into account to create these fac/l/ties for Tg and radio can still be banned simulations. They are the primary tool. for determining whether outright in communities. a site will provide Adequate Coverage for the Personal Wh'eless Service Facility proposed for that Site.' V § 171 - 124, prOvision of Independent Consultants: REPEATER ' A small receiver/relay transmitter of not more thnn A. Upon ~bmlssion of an Applicattion for Spedal Perm~ 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 - Statiotr . .. · ~.,,. terms of Selectmen's Policies n__ncl_ Procedures in ~ .. with c ote 593 ortho Acts ot 1989. COnsu 201 ~ TO~' CELL TOWERS 202 each bo qUalified professionals with a record of service to Details of the application process are ~peciflc to municipalities in one of the. following fields: a) Great Barrington, and would need to be adapted to teleco~licalfiom t~lgine~n~n8, b) I~rtlt:tural engin~ring, c) fit your local and state requirements. 14re require monitoring of electroma~eti¢ fields, and, if determined necessary by the SPi3A, d) other consultants, two different OIoes of permits because the first B. The SP(3A shall select the Independent Consultant(s) at, er carrier, who may build a tower will need to get both consultation with the Planning Board, the Board of Health, and a Tower permit and a Facility permit, but the Conservation Commission, which may propose a list of subsequent carriers, co-locating on that Tower, qualified candidates, need only get a Facifity permit. However, note that' · Major Modifications also require new permits. Because applications for these facilities (when they - B. Adequate Coverage, Adequate Capacity, and Justification include e~ything they should) are voluminous and ~ of Need: technical you need lo be able to hire independent 1 Applicant shall 'provide 'written documentation of any con~ltant(s). The Applicant shouM pay for Facility Sites in Great Barrington, in abutting towns and consal~ not the Town. This language allows in Mount Washington, MA, in which it has a legal, or that to happert Again, note the reference to M~ law and cixmge as necessary, equitable interest, whether by ownership, leasehold or otherwise. From each such Facility Site, it shall VI § 171-12$.ProhtbitionofTeleP°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. Teletm~ create a lot of radiation, are not protected COverage and/or Adequate Capacity to the Town of Great Barrington. The documentation shall include, for each in the Telecommunications AcC and you don't want Facility Site listed, the exact location (in longitude and them anywherenearresidentialareas' latitude, to degrees, ·minutes and seconds), ground VII § 171 - 12~. Application Requirements: elevation, height of Tower or structdre, type of Amennas, - A. No Tower or Personal Wireiess Service Facility shall be Antenna gain, height of Antennas on Tower or structure, output frequency, number of channels, power input and ere~ed, constructed, or installed without first obtaining a maximum power output per channel. Potential Special Permit fi, om the SPGA. One or both of two kinds of Special Permits am required; a)for new Tower construction (or adjustments to these existing Facility -Sites, including changes in Antenna type, orientation, gain, height or Major Modification Of An Existing Towe0; b) for Personal Wh'eless 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 Existing Facility)' to be mounted on an existing, or newly above, shall be provided as part of the ApplicatiOn. permitted, Tower or structure. If Applicant is applying for beth 2. Applicant shall demonstrate with written documentation Permits, they shall bo submitted and examined concurrently. that they have examined all Facility Sites located in Great Appli~ns shall .be submitted using the Long Form ~ Application (SP-2), in accordance with. the requirements of Barrington, in abutting towns and in Mount Washington, ? A,.lide X of tho Bylaw. The following additional information MA, in which Applicant has no legal or equitable interest, ,o whether by ownership, leasehold or otherwise to determine whether those.existing Facility Sites can be ~ used to provide Adequate Coverage and/or Adeoz~te 203 CELL TOWERS CELL TOWERS 204 Capacity to the Town of Great Barrington. Thc documentation ' shall include, for each. Facility Site The purpoSe of this section is to require the carriers 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 conclusive~ that'they ~ tl~ new of Tower or structure, type of Antennas proposed, facil#y they are applying.for. It may be that they proposed Antenna gain, height of proposed Antennas on want the new facili~ (be. cause it may produce Tower or structure, proposed output frequency, proposed income for them as they rent out space on ti~ new number of channels, proposed power input and proposed tower to other competitors), but they may be able to maximum power output per channel. Radial Plots from provide complete~ adequate coverage from an each of~these Facility Sites, as proposed, shall be existing tower (on which they would be paying .... provided as part of the Application.. .rent). In this circumstance, the town is not reauired .3. Applicant shall demonstrate with written documentation to allow a new tower, but could insist tt~ the that they have analyzed the feasibility of Repeaters in carrier ye-locate on the existing tower. conjunction with all Facility Sites listed in compliance with VII, 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 pertaining to: FCC. .Barrington. Radial Plots of all Repeaters considered for licensing; Environmental Ira?act .Statements; FAA Notice use in conjunction with these Facility Sites shall be of Construction or Alteration; Aeronautical Studies; and, provided as part of the Application. all data, assumptions and calculations relating .to service 4. ..Notwithstanding anything else in this §t71-126.B coverage and power levels regardless of wheSher (entitled "Adequate Coverage, Adequate Capacity, and categorical eXemption from Routine Environmental Justification of Need"), Applicant may request that the Evaluation under the FCC rules 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 obtain ali the data §171-126~B.2) be waived or modified as to any such ~ you need from the carrier! The followittg existing Facility Site outside the Town of Great sections spell this out in detail. Barrington .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 shah bo submitted by the Applicant..in writing and requirements of Massachusetts Departm~t of Public shall be supported by a statement of reasons and He~th, 1'05 CE~ 122 Fixed Facilities Whic~h Generate supporting material.. The SPGA may waive or modify ELECTROMAOHETIC FIELD3 IN THE FREQO'ENCY RANCiE OF said requirement only if it finds that consideration of the 300 KHz TO 100 GHz AND MICROWAVE OV~3, or any ' documentation 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 Massaclm~tts regulation, but there may waiver request shall bo based on all the evidence, which-- ' be something zimilar inyour state. Check withyour · may include but is not !!mired to: then-current industry State ~ Hea/th Department to see. · .. standards,..goVernment re~ulato~ .standards or materials, ..~'~md input from the SPGA's Independent Consultant. ~, 3. The exact legal name, address or principal p,~ ~ of 205 CELL TOWER8 CELL TOWERS 206 busincas and .phone nmnber of the Applicant.' If any You will wa, t this lattguage ifyou are ettcouragiltg APplicant is not a natural person,, it shall also give the co-location. Some bylaws itt t°wt~s where the visual state under which it was created ororganized, intpact is a high priority use the Overlay District 4. Th~ name, title, address and phone number of the person approach [see the e/td of this bylaw] attd require to whom correspondence or communications in regard to towers to be camouj7aged attd as Iow bt height as · the application are tO be sent. Notice, orders' and other possible. They do trot i, clude this lattgttage, sittce papers 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. Applicant. 5. Name, address; phone number, and written consent to 2. . II'Applicant is not simultaneously applying for a perSOnal apply' for this"pennit, 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 tobebuiltonsPeCulation.. 7. Required Plans and engineering plans, prepared, stamped It is importattt not to allow towers to be built itt the and signed by a Professional Engineer licensed to hopes that aserviceproviderwillcome. Only allow practice in Massachusetts. (Note:. survey plans should a tower if the applicattt is a service provider. The also be stamped and signed by a Professional Land Telecomm .4ct preempts local zoning for service' Surveyor registered in Massachusetts.) Plans shall be on providers ' ltot tower builders.t Some tOWns 24" x 36' sheets, on as many sheets as necessary, and at require that the tower owner, service provider, a/rd scales which'are no smaller (i.e. no less precise) than lattd owner--all of whom may be different entities listed below, and which show thefollowing information: ~ be signatories to, attd responsible, for att a. Each plan sheet shall have a rifle block application, otherwise the applicafio, is htcomplete indicating the project title, sheet title, sheet attd cart be turtted dowtt. ~111 share'liability. This is number, date, revision dates, scale(s), and original atte way to stop towers built on speculatiott. 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. lter new Tower constrnction, or Major Modification Of An U.S.G.S..Quadrangle map, at a scale of 1:25,000, · ,xisting Tower, a Tower ConstruCtion Special Pemit is and showing'the area within at least two miles from reqntred, 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. H the Tower at fair-market prices and terms, without contour intervals no greater than t0 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 20? CF2~ TO~ ~ TO.WE]~ 208 ~u~ur~ bodies .o~ ~tor, w~i~, l~ds~po s~~ to~o~ ~~ ~d ~o~ f~, historic sites, ~bitats for ~8~ of~'pro~~pm~mo~. ' s~i~. ~di~m &e pm~ lines of &e pro~s~ ii. Tow~ Sito P~I ~d of ~ abuRe~ wi~n 300' of of ' &e Tow~ Site P~k (from ~rs ~ps or '~y' ~ ~ &e ~m~ of ~ ~p~ av~lablo m~eys). '~cludo ~e ~mes of ~1 abuRem s~~. ~n 300' of ~e Tower Site P~I. Indicate ~y iii. Pro~ ~iti~, ~clu~ ~ ~m a~s ~ement or right of.way n~ for ~ess so~ of~r, bom a public way to the Tower, ~d the ~es of r~u~ l~ions of ~y pro~ ~i~ or '~1 abURers or .pmpeRy O~ers ~Ong the a~ss ~u~ion iin~, ~d wh~ ~ement or Who 'have deeded rights to ~e ~d~o~dor~ve~O~d. ~ment. 'iv. .L~i~ of c. E~g Conditions. Plan: A feint sumey of the Tow~ Site m a s~e no s~ler t~ 1" = 40' such ol~ or ~t~on. (1:480 or me~c ~uiv~em 1:500) ~ to~aphy v. ~y ~ or ~ w~& ~t~on dm~ wi~ a ~imumof 2' (0:6 mete0 ~nto~ pro~. " imom~s, showing ~sting u~litios, prop~ lines, . vi. D~ pl~ for ~~ of ~ ~or ~ing b~ldin~ or ~~ gono w~ls or fen~ s~~ lin~, wo~ed ~ in~vid~ ~s wi~ di~eters ~o~on ~ter ~ 12" wit~ a 200' radius b6m ~e ba~ a ~ent m~. of &e prongd Tower (l~ell~ with ~e~ cu~ent vii.' PI~ indi~ l~s ~ sp~ of .. hei~). Show ~e bo~ .of ~y we~ds or pro~ · ~ing ~p~ fl~Pl~ns or wm~r~ur~ ~d of ~y bo&es of ~v~, f~o~g otc; ~y ~or fi~ or water ~olud~ in ~e Watersh~ Preteen Dis~ct ~s. wi~n 2~' ~om ~e Tow~ or ~y related f~ili~es vi~. PI~ ofpropo~ ~ ~v~ay or m~y or a~s ~ys or approves; The s~ey pl~ ~d p~n8 ~ at ~ Tow~ Si~. ~clude m~t ~ve ~n ~mplet~ on ~e ~o~ by 'a ~ ~g ~v~ ~d&; ~l~e a Professio~l ~d Su~eyor,. ~n ~o y~ p~or cro~ ~on of &o ~ ~ ~~ ~ · to ~ appfi~tion&to. ~ ~d~ dop& of ~Vek ~g or'~ d. ~pos~ Site P~ns: Pro~s~ Facility Site ~you~ mate~s. ~ading ~d utifiti~ ~ ~e ~e ~ or ~g~ t~ · e ~g Conditio~ Plan. e. Propos~ Tower ~d Appu~~: i. ' Pm~s~ Tower lo,on ~d any i. appuRe~s,. ~cluding ~ppo~s ~d ~y appmp~ w~, if ~y, ~d ~y acc~so~ building 10'. (~mmu~ion Eq~pmem Sh~t~ ore, er). ii. ~o cm~ ~om ~ pro~ To~ ~&~te pm~ ~d~es ~d ~tback . di~s to ~e b~0 of ~e Tower ~d to ~ ~e n~t ~mers of tach of ~ app~en~t b~o~ ' , ~ ~y 20~ CELL TOWERS CELL TOWEP, S 210 proposed height of tower above average grade beginning at True North-and continuing clock- at Tower Base. Show all .proposed antennas, wise at forty-five degree intervals. including their location on the Tower. ii. A plan map of a circle of two (2) miles ntdius iii. Details 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. Hlustration 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 the vii. ~A StmcmralProfessionalEngineer's written ~ location Of the proposed Tower. The dates, description 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 dm in a to be 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 iHust,-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. Imposed Commnnications Equipment Shelter:. L Floor Plans, elevations and cross sections at a Ba//ool~ Tests are a~t effective way to visualize the scale of no smaller that 1/4" -- 1' (1:48) of any Tower's/~eig/~t catd impact. But the test must beru~ proposed appurtenant structure. ~,he~ people are aware of/t a~td whe~ l/~e bal/oo~zs ii. Representative elevation views, indicating the cca~ be seelt/ ' .root~, facades~ doors and other exterior ap .pearanceand materials. E. For new Personal Wireless Service Facility, or Major ~ g. Sight Lines: Modification of An Existing Facility, a Pets nai Wireless .' ~ i. A'minimum of eight' (g) view lines in a zero (0) to Service l~'neility Special Permit is required. o, tWO (2) mile radius from the site, shown 1.The following Plans.and maps:. - ,-4 ~-' a. Location Map: Copy of a portion of tb.~. most ' . .211 CELL TOWF. RS CI/LL TOWf/RS 212 recent U.S.G.S .Quadrangle map, at a scale of and Longimde. 1:25,000, and .showing the area within at least two m. Mounting locations on Tower or sUucture, miles from the proposed Facility Site. Indicate the including height above ground. location of the proposed Personal Wireless Service iv. Antenna type(s), manu~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 thc vi. Number of channels per Antenna, 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 aa ii. Horizontal and radial distances of Antenna(s) an to nearest dwelling unit. ix. Output frequency of the Transmitter(s). iii: Proposed utilities, including 'distance from .source of power, sizes of service available and This information is critical as it gives your required,, locations of any propo~xl utility or independent consultant the information needed to communication lines, and whether assess the coverage and to generate a 2?adial Plot underground or above ground, to determine whether the information being iv. Any changes to be made to the existing provided by the' carrier is accurate and complete. Facility's landscaping, screening, fencing, Do not be tempted to jettison the engineering detail lighting, drainage, wetlands, grading, just because it is technical,..or becau~ you do not driveways or roadways, parkin___g, or other understtmd the meaning of the terms. It is not infrastructure aa a result of.this proposed necessary for lay?ople to understandsuchdetail. If MOdification of the Facility. this detail is not required in the applicatior~ the -c. .Proposed Communications Equipment Shelter: indosay does not have to provide it Your engine, er i. Floor Plans, elevations and cross' sections at a will then.be working with incomplete information. scale of no smaller that 1/4" = I' (1:48) of any ' proposed appurtenant structure. · VIII § 171 - 127. General Requirements: ii. Representative elevation view~, indicating the A. New Towers shall be set back at least one (1) time th~ height of root~ facades, doors and other exterior the Tower, plus 50', from all boundaries of tho'Site on which appearance and materials, the Tower is located. d. Propo,~d Equipment Plan: B. i. Plans, elevations, sections and details at' buffer strip of undisturbed tree~ shall bo retained for at'leant 50 appropriate scales but no smaller than 1" = feet in width around the entire perimeter ~a:apt whom the 10'. · acc,~s drive is located. Applicant ~ obtain a financial an~ty · ii. Number of Antennas and Repeaters, as well as to cover the cost of the renmiiation of any damage to 'tho · the exact locations, of Antenna(s) and of all lan&capowhichoccun du6agthc cl~uiagofth~ Sit~. ,. Repeaters (if any) located on a map aa well aa C. Fencing and $igm: The area around tho To3~r and , ~ by degrees, minutes, and seconds of Latitude .... ~ Com___m_unication Equipment Shelter(s) shnll bo c ~letely 213 (?~LI. TOWEI~ 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) Whett. this regulation was writtett, Great Barrittgtot! square feet indicating the name of'the facility owner(s) and a is hoping for just o,e ('ugly} tower, but other towns 24-hour emergency telephone number shall be posted adjacent (especially where they have used the overlay district to the entry gate. In addition, No Trespassing or other warning approach} want multiple, smaller 'and less signs may be posted on the fence, cottspicuous tOwer& ~rttfortunately with the advent D. Communication Equipment Shelters and Accessory Buildings of the digital PCS systems, which are higher shall be designed to he architecturally similar and compatible freque,cy attd therefore lower power, marry more with each other, and shall be no more than 12 feet high. The installatio,s may be recltdred PCS claims to treed · buildings shall be used only for the housing of equipment antennas every 1-5 miles apart. related to th_is particular site. Whenever possible, the buildings shall be joined or clustered so as to appear as one building. H. The use of Repeaters to assure Adequate Coverage, or to fill' E. New Towers 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 ' submit a request for additional height to accommodate future Wireless Service Facility Special Permit under this. Article, sharing, 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~ the RI: Engineer'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, praposett The tower may be allowed to be fifteen pow. er output, 'and coverage of any proposed Repeaters in theft or so feet above surrounding growth, for instance, systems and 'provide engineering data to justify their use.- ~lso, betn~use towers fail itt various ways- mean~, they don't just break at the base and fall Repeaters may be a useful tool to allow a carrier to neatly over w many towns require larger fall zo, es, use ~t existi,g tower sittce they cart help fill holes sometimes up to four-times the height of the tower, itt the coverage area. Great Barrington decided to ~ on tower-failure modeling, allow them by right t no Special Permit is "carrot" reqUirea~ as a to encourage their use. F. Tower Finish: Hew Towe~s) shall 'have a galvanized finish Other towns require full permitting. Because unless other~se required. The SPGA may require the repeaters are still P,F generating sources, towns Tower(s) ~o be painted or otherwise camouflaged to minimize vary ht how high they allow them to be, attd how the adverse visual impact, close they wtll allow them'to dwellittgs, ~3. Tower(s)must be of a type which will maximize POtential' H sharing. Lattice type structures are preferred, but where a I. If primary coverage (greater than 50%) fi.om proposed Personal <i . ' Monopole is requested, Applicant must demonstrate the future Wireless Service Facility is outside Great Barrington, then oo utility of such structure for expansion of service for Applicant permit may be denied unless the Applicant can- show that they 215 CELL TOWERS CF~LL TOWERS 216 .ar~ Unable to locate within the Town which is primarily service& 'These distances are justifiable by receiving service from the proposed. Facility. reference to the opening 'Purposes' (especially I: F~ G, H). The greater distance to schools is based If your town is being used to provide service to primarily on attractive nuisance. Bttt 3[0~ in Igld . attother town, gel the carrier to go to the other (below) that we are also mentioning tttat we are town.! Regional approaches, Where there is a taking radiation into account in case emissiOn~ regiot~tl master platt for wireless telecom, exceed FCC_euideliltes. munications would be ideal, but they are rare. Most towns keep their fingers crossed that towers "won't 2. No R~pe.,ater shall be located closer than 50' to an existing haptzen to them." Few 'towt~ cooperate with each Dwelling Unit, nor le~ than 25' above ground. . other for a regio~gd approach. Utttil then, your 3. Within any of the following prohibited areas: '" obligation is to your own towr~ a. Massaz~ or federally.regulated wetland; b. A Massaehu,~tt~ Certifie~d Vernal Pool; I. Commercial advertising shall not be allowed on any Antenna, ¢. The habitat of any State-listed Rare or Endangered Tower, or Ac.~easory Building or Communication Equipment Wildlife or Rare Plant Shelt~. d. With_in_ 100' horizontally-from any K. Unless required by the. Federal Aviation Administration, no regulated wetland; "night lighting of ToWers, or the Personal Wireless Service e. Withi~ the 200' ho. rizontally of the Outer Riparian Zon~ Facility, is permitted, except for manually oPexated emergency . measured horizontally from any river or peteanial lie, bra for u~ only when operating personnel are on site. stream; L. No Tower or Per, hal Wirele~ Service Facility that would be f. Within 500' horizontally from any Historic Di:m'ict or .classified as a hazard to air navigation, as defined by the property listed .or eligible to be Ii,mi on the ~tte or F~le~al Aviation r~:~ulation~ (Title 14 CFR.) is pe~:mitted, federal R~:gi~ter ofI-Iistori¢ P~; M..No Tower or Personal Wimle~' Service Facility with the g. Withi~ 500' horizontally from any known '" ~c~tion ofRepeater~ ~hall be located: archaeological site: 1. a. Clo~.x' than 1500', on a horizontal plane, to any N. Parameters of appropriate siting: ~xucture, existing at the time of Application, which is, 1. Tower~ and Peraonaf 'W'u'eless Service Faailitie~ shall or ia able to be, occupied or habitable, on the property located ~o as to m~imize the following of any school (both public and private), impact~: b. Clo~.x than 750', on a horizontal plane, to an existing a~ Vimal/A~etic: Tower~ shall, whea possible, bo aitn:d Dwelling Unit, or, day-care center, hospital, nursing off ridgeline~, and where their viaud impa~ ia l~ast home, church, synagogue Or other place of worship. · detrimental to highly rated ~.ni~ ar~as.~ b. Diminution of r~ideatial propeay value: Siting shall These setbacks are the teeth of this O¥law -- telling b~ in az low population deosity areas as posaibl . where a tower or facility may go.hr r¢lation to other c. Safety: In c,a~s of ztru~tral fallur~ and attractiv, Uses. YYe checi~d by doing radial plots and fout~ nuisance. 'that there were still areas itt towtt where a carrier · could locate atgt have adequate coverage, before _ we set out these distances. Otherwise we might · .~-"~ve "had the effect of prohibiting" the provision of ' ~ ~ ~ laveatoty, MfL §1:~ 1, ,~;. 39A: ~ by ..... . · D 'pt MamSmm, 217 CELL TOWERg CELL TOWERS 21~ d. Safety from excessive 'electromagnetic radiation:' In B. In addition to the findings required by the Bylaw in Section case the Tower or Personal .Wireless Service Facility is 171-45, the SPGA shall, in consultation with. the Independent found to exceed the FCC guidelines. Consultant(s), make all of the applicable findings before 2. The following locations are ranked in order of preference: l~ranting the Special Permit, as follows: a. Shared use of existing Personal Wireless Service 1. That Applicant is not already providing Adequate Coverage Fav'ilitiesshall be encouraged, and/or Adequate Capacity to the Town of Great b. Clustering of Towers: Applications for Towers adjacent Barrinston; and to Exi.'sting Towers shall 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 from 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, Evnlnation by Independent Consnltnnts. shall be paid for by the Applicant; and A. Upon submission of a complete Application for a Special These findi,gs 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, a,d the SPG~I can include that determination in analysis and review, a written recora~ it has a good chance of prevailing in a B~ ApPlicants for any Special Permit under this Article shall denial oftheApplicatio,. obtain permission from the Owner(s) of the proposed pmpmy(s) .or Faci!iti_'es 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 § 171 - I29. Approval Criteria: .SEC. 332 [47 U.S.C. 332] (7)(B)(iii) of the Act, in that it shall be .in writing .and supported by substantial evidence contained A. In acting on the Special Permit Applicati°n' the SPGA shall in a written record. ~ in accordance with the procedures and timelines established for Special Permits in Article X of the Bylaw. 219 CELL TOWERS . CELL TOWERS 220 XI § 171- 130. M nitoringandEvaluati n fCompllance: of non-compliance. Failure to accomplish this reduction of A. Pre-testing: After the granting of a Special Permit and ~.r~i emission within 15 busineSS days of initial notification of non. ,~. Applicant's Personal Wireless Service · Facilities ' compliance shah be a violation of the Special Permit and trnnsmission, the applicant shall pay for an Independent subject to penalties and fines as specified in Article XH, §l?l- Consultant, hired by the Town, to Monitor the background' 65 of the Bylaw. Such fines shall be payable by the owner(s) of levels of EMF radiation, around the proposed 'Facility Site ,, the Facilities with Antennas on the Fncility 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 Independent Consultant (a licensed professional 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 shaH be Planning Board, the Board of Health, the. Town Engineer, thc inspectcd cvcry three years. Monopoles and non-guyed lattice Building InsPeCtor and the Town Clerk. towers shall be inspected every five years. A report of the B. Post-testing: After transmission begins, the owner(s) of anY inspection results shaH. be prepared by the Independent Personal Wir, less Service Facility(s) located on any Facility Consultant and submitted to the Board of Selectmen, the Site shall pay for an Independent. Consultant, hired by the Planning Board, the Board of Health, the TOwn Engineer, the Town, to conduct testing and Monitoring of F, IViF radiation Building Inspector, and the Town Clerk. Any Major emitted fi-om said Site, and to report results of said Monitoring, Modification of Existing Facility which includes changes to as follows: Tower dimensions or antenna numbers or. type shall .require 1. There shah be routine annual Monitoring of emissions by new'structural' inspection. the Independent Consultant' using actual field E. Unsafe Structure: Should the inspcction of any Tower reveal measurement, of radiation, utilizing the Monitoring any structural defect(s) which, in the opinion of the Protocol~ This Monitoring shaH measure levels of EMF 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 Repesters~ (if any). A report of the notification of unsafe structure,' the owner(s) of the Tower shah Monitoring results shall be prepared by the Independent submit a plan to remediate the structural defect(s). This plan Consultant and submitted to the Board of Selectmen, shah be initiated within 10 days of the submission of the the Planning Board, the Board of Health, the Town remedintion 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 the defect(s) wi_th__i, 10 business days of initial notification shall be activation of any additional permitted'Channels, shall' a violation of the Special Permit and subject to penalties and require new Monitoring. fines as specified in Article XII, §171=65 of the Bylaw. Such C. F,,xcessive Kmissions: Should the Monitoring of a Facility Site fines shall be payable by the owner(s) of'the Tower, until reveal that the Site exceeds the FCC 96-326 standard, then the compliance is achieved. owner(s) of all Facilities utilizing that Site shall be so notified. The owner(s)shaH submit to the SPGA and the Building XII..§ 171- 1;~1. Removal Requirements: h~p~tor a plan for the reduction of emissions tea 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 one year shall be removed. Cease to operate is defined . .day..of.o n o. of.o.compli , shal, duce' as not p-fo -.S tho no. d f.. ons ,o ted tho ,. .~.-'qmss~ons to the standard within 15 days of initial notification Personal Wireless Service Facility and its equipme ~ ~on a 221 ~ ~- TOWER~ CELL TOWERS 222 oontimlous and on~oin~ basis for a p~iod of one yem''. At the time ~' O~erlay l)'~cts of removal, the Facility Site shall be rcmediated such that all Per, mai W'n'eless Service Facility improvements' which have The advantage of an "overlay district" is that the municipality can ~ to operat are removed. If all Facilities on a Tower have map out where the facilities can go, and restrict them to those areas. Thus, oessmi to operate,, the Tower shall 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 difficult to come up with sites no~ssary to mmplete tho required, removal. Applicant shall, as a that don't raise concerns of abutters. ~mdition of the SpeWed Permit, provide a financial surety or other Overlay districts are a proactive approach~ They work less well form of t'mancial guarantee, payable to the Town of Great when a carrier is already considering a site in your community. Under Bsnin~on and m:ceptable to the SPC~A,.to cover the cost of such reactive ~ircumstances, overlay districts are often seen as a ~I~IBY removal of th~ Personal Wireless Service Facility and the effort by the proponents, and are less likely to be politically acceptabl . rmnedisfion of the landscape, should the Facility cease to operate. But with careful consideration of possible sites, determined with the help of'an RF engineer, towns should be able to place the overlay districts xm § 171 - 1~,. l~ees aud Insurance: where the adverse impacts are as minimal as possible. A. Towe~ sad Personal Wireless Service Facilities shall be If you want to create an overlay district, it needs to be done before hlsured by the Owner(s) a~ainst damage to persons or property, you write the bylaw. If your zoning bylaw already defines certain districts Tim owner(s) shall provide a Certificate of Insurance to the -- 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 ~ Barrington shall be an additional named insured, define the overlay district by reference to the assessor's maps and parcel B. A ~lule of fees for Towers and Personal Wireless Service numbers, which~ although not a surveyed definition, is close enough for Facilities permitting and renewal, any Monitoring of emissions' the purposes your town will need. sad inspection of structures, and any other fees Shall be It is important to include in the zoning language that the established by the SI~3A as provided for in Article X, §171- telecommunications overlay district, is mappe~i 'over other districts. It 40.B. of the Zoning Bylaw. This schedule may be amended modifies- and where there .is inconsistency, supersedes -- the re, da- from time to time. tions 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- 13~. Severabillty Clause: overlay district does not result in an overall rezoning of the area affected. The invali~ of any section or provision of this Article shall not invalidate any other section or provision hereof. Fihal Tt~ughts There are many challenges your town will face. as it prepares to use ******** 'zoning to regulate the location of wireless telecommunications facilities. But with careful and thorough work, your community can exercise a ~reat deal of control. That is the end of the Great Barrington by-Iaw. Be aware that the telecommunications industry continues to my, by - a variety of mean~ to reduce the degree of local control avallabl to i...~:ommunities across the country. So it is critical to remain vigilant with fed .:~-"a statewide law Iast year that would have allowed a new o~ . .~[i~.--~. mmunlcations facility on existing structures with a simple building CELL TOWERS permit: ThiS industry-written law was promoted as community friendlyl This law went down to defeat, but only after intensive lobbying by the 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 Barrington, MA 01230 Em ail :. TonyB I air(~woridnet, att. net IV-lO3 Attachment B Proper~ Dm, aluution Citations on Property Devaluation of Homes Locater Near Cell ToW6l~,, 1. Joe Catalano, Similar Houses, Different Prices? It's Time to Look at the ** Externals, Newsday, Mar. 14 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, &O Prac Law 27, 52, 1994. 5. Daley, 253 Cal. Rptr. 144. 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 propertiei. The opinion lists literally dozens of cases which follow this rule. 6. Connor v. City of Univ. Park, 142 S.W. 2d 706, 712 (Tex Civ. App. 19&O) 7. 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 Influence on Property Valuation for Tax Purposes. Microwave and cellular towers are included in.the list of stigrnas. 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 property; $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. l&. Christine Woodside, "Cell Phone Towers Are Sprouting in Unlikely Places', New York Times, Section l&, 1[9/2000. 15. ^llenton 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 CPA) case. Residents say they'll keep fighting the construction. Allenton CPA). 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. &/16/01. 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 Research, University of Illinois at Urbana-Champaign, Winter 1999. 18. Minutes, Vernon Township Zoning Board ot: AdJustment, 8/29[00. 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[18/01. CELLULAR TOWER LEADS TO LOWER ASSESSMENTS Chicago Tribune; Chicago, Ill.; Feb 21, 1999; Anika M. Scott.; Abstract: .rn 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. Full Text: (Copyright 2999 by the Chicago Tribune) Suburban report is a roundup of real estate stories from throughout metropolitan Chicago. in what could be a precedent-setting decision, the Lake County Board of Review has co--ed that · property values of homes in a North Barrington neighborhood have declined because of a celhfla_r 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 fi~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 FINAL Edition] Column Name: Suburban report. Start Page: 1 lQ ISSN: 10856706 Dateline: NORTH BARRINGTON Reproduced with permiSSion of thc copyright owner. Further reproduction or distribution is prohibited without permi~on. IV-lO6 .../00000003 9139120 .htrnl?MAC=0137826bc41 eSadb9939aa78f7622c21 &QIID'~0000003913 .q 0/14/01 . Control.cell tower siting Rural residents deserve protection ~ he cellular telephone industry It's impossible to insulate any propel. ~ is one of the fastest-growing in ty from electronic signals. But it's .~. history -- seemingly overnight, reasonable for property owners to ex. ,t0 percent of the population has cell pect that cell phone towers Will be phones. These phories won't work sited to minimize the strength of sig. without a network of towers to re- nals in nearby homes~ ceive and transmi't signals. The towers State Sen, Rick Metzger, D- .are sprouting in rural areas to fill Welches, has sponsored Senate Bm gaps in coverage. Lane County's land- alS, which would allow local govern- use rules need to catch up with this ments to establish setback requ/re- 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 lJane County banning 'cell towers, .but the act .netdn't wait for the Legislature to · shoukl not be read as allowing the define the scope of its authority. Otb- ' towers to be built anywhere and er- er local governments across the coun- erywhere. The law allows govern- trlr have already taken stel~, within merits to regulate the general place- the limits of the Telecommunications ment, construction and modification Act, to prei~ent .il~tpproprlate cen tow- o_f the towers. _The county should ute er siting. : .~.:: ..... 'i. ~' . ." :~,. ' . ~es,~-P~e~'~n~i~g~.-ctt-°~-0f suggested by County Gomm~ioner ~map_p~r. op. riatel~[ sited towers. .... -, ...... - ...... Cindy Weeldreyer,'ls a requirement The threat to prouert~ ..Y~.-_u~s~is that cell phone companies "co-locate" r e~phonitl~ no setback requirements, their towers -- that is, put their're- e companies can build towers ceiving and transmitting gear 0n the nearly on top of property lines. An same mast rather than buildln~ thre~ .a~.'cle in last week's Register.-(~,:uard[or four..Cg-locati.0n may not be. prac~!~ czted the case ora woma,~:,.~.~.'calin:.a]!;.....hmtan~.",'.but.:it &aild:~p. tl~ house on 8eavey Loop near Lane C0m,'~.s~an~. a .~. ].~'.red ~uce' the 'pi'011ferat/on: of' munity COllege' would be literally'/n towers/ii [4n-al areas. · the shadow of a 125-foot cell tower on ' ' ' Cell phone, towers.may be a tempo- a neighboring piece of property. The 'rary feature .of thi~ lanitscape tower would clearly detract from the intermediate' step to satellite tele. rural atmosphere that attracted her to phone communication For now, how- the Seavey Loop area. ': ' ever, the towers are becoming ubiqul- In addition to aesthetic obJedi°ns, tous, and they are especially notable some people living near cell k,wers /n rural areas where they can't be are .concerned about the health effects hidden on bu/ldings or other struc. of cell phone signals. These effects are tures. The cellular telephone tndustrF unproven, but the concerns can't sim- is rushing to create a network of tow- ply be d/smissed.-- pegple are 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, respects propert~ owners' interests. ¢ IV-lO7 Illinois Offi~ ofR~l ,~tm~ Universit~ of i1~ at U~a~pai~ Real Estate Letter The Price of Zoning Revisited: Zoning Issues Raised bY the Telecommunications Act of 1996 Carol C. McDonough The Teleconununications Act of 1996~ Cleveland, is noteworthy because it The 1996 Act was passed following contains provisions that may affect a reinforced the earlier notion ofa 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, communication(Pcs summarizes the history and purpose of - to be protected. From an economic ~s a type of digital service). Thc deVelop- zoning regulations, discusses the chai- standpoint, municipal zoning regula- ment of PCS, which'offers better sound ienge to local zoning posed by the Tele- tions are meant to.mitigate the negative quality and better' security than thc older communications Act (along with recent externalities that a real estate owner's use cellular systems, has brought withit an activities at,the state level and in thc of his property might impose on other increased need for tower sites on which federal courts), and offers an approach by members of the community, transmitters can be placed. PCS is located which municipalities can Optimize their at a higher frequency range, requiring role in thc process of locating sites for Challenges to Local Zoning towers that are closer together than the telecommunication towers. Municipalities' longstanding and broad older cellular towers were. The improved .. power to oversee land use has been called technology is also likely to necessitate Traditions of Local Control into question ns legislative enactments more towers through increased custom- For the better pan of a 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 ~itters will have mental function in our country. The first wireless phone service. One example is to be situated about a mile apart. comprehemive zoning ordinance in the Congress's 1996 passage of the Telecom- The typical municipal zoning ordi- Unit~l States was adopted in New York munications Act, which opens doors for a ' nance requires a PCS provider to obtain City in ! 916, and other municipalities federal agency to overrule local Officials 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 thc proposed tower 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 pre- such structures; receipt of a variance v. Ambler P, ealty Co., the US Supreme erupt local officials' decisions on thc usually requires prcofofhardship owing Court rejected arguments that zoning placement, construction, and modifies- to the topography of other nearby sites. laws were an uncomtitutional depriva- tion of personal wireless service facili- 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 ire- locus; the permit indicates that the local- the concept of zoning. The Court's deci- quency emissions when concerns arise ity has found ~he proposed tower not to sion, involving a land owner in suburban over possible environmental impacts, be unreasonably detrimental. Ofcourse, under the 1996 Act the FCC can second- Inside This Issue... gue,s a local decision to deny approval. The i~CC seems willing to require a~,~ The Value of~oning 4 tance of towers that loco] officials r~joot, ~ ImPa~s ofl~o,~paable L~nd Uses Z though the evidence to date is limited. The Greatest RealEstnte Movies of~ill T/me 9 The federal judioimy also has shown a willingness to substitute its vi~'s for Deals Illustrated IZ the wishes of local rogulator~, although it IV-lO8 . Illinois Real Estate Letter Policy Perspectives has not completely guttedlocal con~-ol, in which the sale of zoning right~ can be llllnol~ RtndEttate Lener is published by For example, in Sprint ~pectrum, L.P.v. revisited. In fact, the FCC employs a the Office ofRtal F~ate Re~atch at the City of Medina (1996), a federal district ilar process for issuing licenses to ~ University oflllinnis at Urbana-CAampaign court upheld Medina, WA's six-month PCS systems within the fifty-one nutjor h~i*://www.eba.aine, edn/ereW~rer.hCm tower moratorium as an appropriate use trading areas (MTAs), and the 493 basic Copyrlght.1999; Subscriptions $16 per year of the city,s authority to determine a rein- trading areas (BTAs), within which PCS Editor:. l~eter ir. Colwell, University of communications policy, and procedures systems are marketed. Since demand by mmois at Utban~ for processing applications. However, potential.PCS providers typically exceeds ~ rcot~/t~uluc.~tu in Illinois RS~ No.$ v. County of Peoria the limited supply of licenses that the ,,lzwoctate Editor: ,ioseph W. Trefzger, (1997), another federal district court FCC issues in a particular MTA or BT A, Illinois State University overturned a county's decision denying the FCC auctions off the licensing tights. · -maa:j~rcC~a~edu a plaintiff's request for a cellular tower, It should be pointed out that the fed- ,4avtrtant Director. Carolyn A. Dehring ruling that adequate reasons for the denial eral government is not hypocritical in Media ~ectal~: Shelley A. Campbell were not given. Stating that.the mere providing relief from local restrictions; ~.ms~: ~a~nt,twl~uluc.,~ existence of oppusition is insufficient to it also makes its own land available to Se~r~u~ry: $1drley J. Wells support denial, the court directed that the wireless service providers. The 1996 Act Address conespondenee to: permit be issued, without even remanding specifies that a federal department o~ Office of Real Estate Research to the county for further decision making, agency must nmks property under its 304-D David Kinley Hall Even the states may be inclined to control available for the placement of the 1407 W. Orcgoxy Drive overrule local officials when wireless new telecommunication set, rices when. Urbana, IL 61801 phone service is the issue. In Massachu- doing so does not directly conflict with Phone: (21'/) 2440951 setts, municipalities' zoning authority the department's mission. Yet even then, FAX: (217) 244-9867 has been diluted by the Massachusetts reasonable fees may be charged to PCS e-Mail: ~c.edu Deparnnent of Telecommunications and providers. (The Act niso requires the FCC ORER Advisery Committee .Energy'a designation of wireless service to provide technical support to states, to Gary L. Clayton providers as public service utilities. This encourage them to use property under Executive Vice President. Illinois designation exempts the providers from their jurisdictions for PCS pm'poses.) Association of Realtors* Ch. 40A, the State's basic zoning regula- By taking a cue from federal fee- l'etar 1~. Colwell tion, thereby limiting local authority'to collection efforts, and soiling zoning Director ofRr. ni Estate Research, deny permission for tower construction, permits for PCS transmitters, municipall ORER Professor of Real Estate, and ties wou¥ gain revenues to offset, at lead.. Professor of Finance, University of Illinois at Ufoana-Ommp~gn Paying the Freight partially, the cost imposed on municipal In general, opportunities for relief~ from residents by any associated negative Connie Conway zoning,restrictions - through receiving externalities. Residents would benefit Vice President, Koeaig & Stray, Inc. a variance or permit, or the overriding from the sale of zoning permits, in Da, id C. gades actions ora court or a legislative body- that revennea so generated would fund lvin,,n_~g Ocneral Partner, Regency can have unexpected side effects3 The increased municipal services and/or allow Associates recipient of zoning relief obtains windfall for reduced taxes. Such a plan contains Wmlam r.. L~ng economic rent. (a return in excess of that the acknowledgment that perceived P~sidcnt and Chief Executive Officer, LaSalle Home Mortgage Corporation called for by the accompanying risks), aesthetic or health problems can be asso- because he is able to put his property to ciated with towebs and transmitten, and Greg IL Oldham Director of Commes~ Resea~h and a use that had previously been prohibited that residents should be compensated for mE Distinguished Professor of Business or controlled. At the same time, despite those negative effects. The price of a per- .~d,nlnl,~rstion, University of Illinois the fact that a use is not to be approved mit should be based on the magnitude of at Udrana-CImmpaign if it would be unreasonably detrimental the negative externalities, not on the PCS Gerald N. l*eriow to the neighborhood or municipality, provider's expected profit. The greater P~sident,'Pmperty Valuation Services negative extemalities may be suffered by the peroeived visual or health derogation, Past President, Illinois Assn. of Realtors' abutters, and by others in. close proximity the higher the amount that should be Eli $idwell,,It. to the locus on which local, state, or fed- charged for a permit. (It is assumed that Director of Real Estate' Office of Banks eral relief has becn granted, thc PCS provider owns, or has leased, the and Real Estate, State of Illinois In the Summer 199 ! issue of this land on which the tower is to be built.) /U'lea lt. SpeeUman publication? David Mills suggested that, President, Speet~n Realty becanse of such externalities, resource Measuring the Damages Past Ptesideat, Illinois Assn. of Realtors' use would be enhanced if zoning rights How can the magnitude of the negative Donald J. Ursin were bought and sold, rather than given externalities - aesthetic and health issues Retired President, Coldwell-Banger away. The development of PCS and the - associated with towers be estimated? Resi~ P. tal Estate 8erviess Past Presid~t, minois Assn. of Resltors' attendant need for towers creates a forum The aesthetics debate is not easily page 2 lllinoit Real E~ata £attar P~int~' 1999 _. Policy perspectives re.~olved: beauty bin the beholder's eye, health risk, but only that theperCeption 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 ~imost as diffi- central issue of market value impact, on public land under any circumstances, ,zult; with cell towers still in their infan- viewing the receipt of money as inappro- oy, it is far too soon to develop reliable The Rental Alternative priate collaboration with PCS providers. ~ientific information on health effects. Because the PCS operator seeking access However, because the Telecommunica- Moreover, issues of aestheti~ and to a site can poss~ly obtain it by pursu- tions Act of 1996 preludes the blanket health intertwine when tower opponents lng federal, state, or judicial remedies, a denial of permission to build cell towers, argue that ~wers reduce property values, seemingly sens~le 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 cema about aesthetics as health concerns, rights available at an appropriate price, seem to be in residents' best interests to because the latter appear less frivolous. As noted earlier, the municipal sale of participate actively in the process. In fact, Yet whether the dangers are imagined or zoning rights for cellular tower const~..c- by offering to lease municipal land for real, opponents' concerns have delayed · ti°n would enable a community, and thus tower siting, a locality would be able to tower approval by many locel planning its residents, to be compensated for the gain some control over the process, along boards, and several lawsuits have been negative externalities that may derive with some revenue. The prat would corn- brought by reaidents against municipali- from cell towers' existence. Yet while pensute citizens, at least in part, for any negative externalities created by the wire- The municipal $~de of zoning rightS for tower construction less systems. Mo~over, if operators had ~ to price their services to reflect the nega- would enable a comrnuni~, arid thus its residents, to be tive externality cesta ear. nay borne by compensated fOr the negative externalities that mai/derive otherS, the allocation of societal resour- · cea to this burgeoning industry would be from cell towers' existence, reduced to a more efficient level. · Dr. McDonough i~ a Professor of Econ- ties that have approved the construction selling zoning rights is the most efficient ornics at the University of Massachusetts- of towers. Concern over cell towers has economic solution, the outright sale of Lowell. She also serves as Clerk of the led to the formatio~ of organizations such regulatory approval raises legal questions. .4adorer, ~A Zoning Board of Hppealr. 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 T¢lecomnmnications Act of 1996, Sec. 704. · over tower siting, monitors relevant lng legal confrontations, by leasing space Facilities Siting; Radio Frequency Emission $tds. legislation, and maintains a Web site owned by the municipality to PCS oper- 2. Colwell, Pe~' F., "Tender Men:les: Etfi~ient for the dissemination of information, ators for the construction otltowers. The ~nd Equitable Land Use Ch~nge," l~ealr-,tate It'is certainly possible to infer that centralized locations of publicly owned Econo,nic~ 25(4), Win~ 1997, pp. 3. lvlilis, D~vld E., "The Price transmission towers impose negative buildings could prove ideal for the siting ~ E~tate Letter $0), Summer 1991, pp. I-4. externalities on property values, if not of wireless transmitters. Municipally- 4. Colwell, Pe~ F,"Power Lines & land Value,~ necessarily on human health. Available owned.access alrips adjacent to streets J. of Real ~.~ I~cl. 5(I),.~prin~ i~90, pp. !17-127. evidence relates to the siting of electric and highways would be other possible 5. Gregory, Robin and D~lof yon Wint~feldt, "The Eff¢ct~ of Ele~ornasneti~ Fields from Tram- power lines, which admittedly involve sites for the placement of cell towers, mission Lines on Publk Fern & PropeW/Wines,~ higher voltage electrical transmission Several localities have already con- J. of£nviroatnental Mgc 4~, 1996, pp. 201-214. than do cell towers. Colwell's 1990 sidered"renting" out municipal space for ~./btd. article in the Journal of Real Estate cellular towers. Prince Georges County, 7./bid. Re.~earch~ reports that proximity to MD plans to charge rent to telecommuni- ~luthor towers ;uppotiing Iransmissi°n lines cations firms for putting towers on public r*e .e~,~ e~r,~y..ao~ reduces property values, a finding that land. In Illinois, the Warrenville village ~.~L esr,~r~ tzrr~ ~n~-~ t,r*y~,~m is corroborated by the 1993 work of council approved a permit to allow a cell- o,~er,.~t.rU~s,~t~a, iS~r~,.~/e~ byOt. r.~ ,to Gregory and v~ Winterfeldt.~ ular transmitter on the local water tower, #,.~, ~,,~u~ co..~., o/~. o~, Moreover, a 1993 ruling bythe New in exchange for benefits to the village, York State Court of Appeals* (along with although nearby Nsperville rejected plans ~.~ r.s-r,~ r~ txrtrr rn..~ o~ra~ a similar ruling in gornis v. City of Sante to install cellular antennae on a local post ,.~,~..e~w ~ Fe)? supports the idea cfa stigmatization office and the Municipal Center, and t~ associated with power lines. Ruling for North Barrington home owners actually ,~m,e ~o,, ~.~,./.~. ~ the plaintiff, the New York court did not sued local planning officials for approv- require proof that the poower line posed a lng a cellular tower at the Village Hall. Winter 1999 Iilinoi~ R~i l~state l~er page $ IV-ilo TELECOMMUNICATIONS 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 that will 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 leas ability 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 the 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 dose 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 concemed 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 TELECOMMUNICATIONS LEASES '~6~ ,: .changed. It ess ntially impossible to predict where technolog~,' 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' pedods 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 dsk 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 widng which must be connected from the roof to utility and other building systems usually Iocat d 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 IV-Il2 Attachment C Berjac Building Appendix A - Antenna InventorY Thc following antenna inventory was utilized to create the site model diagrams: Table 1: Antenna Inventor [ ,smt,,~. na Operated By TX Freq. Power Antenna A~teuna Model Number_. ~ ~ Gain ~ CricKet Wireless 1895 1805.88W 15.4dBd · EMS RR-6S-I 8~--'~'-'-- ~3 CricKet Wireless 189.__~5 1805.76W 15.4riB'-T- EMS RR-65-18-0T---- 4 CriCKet Wireless 1895 1805.76W 15.4dBd _EMS P-J~-~5-18-02 5 CricKet Wireless ! 895 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 DBgio 8 VoiceStream 1965 ! 50W 10dBd Decibel DBgI0 9 VoiceStream 1965 150W I 0dBd " Decibel DB910 ,~ 10 VoiceStream 1965 ,150W 10dBd DecibelDBgl0 ~' 11 Qwest 1862 200W 7.gdBd Swedcom SP-9014 12 (~vest 1862 200W 7.gdBd '' ' Swedcom SP-9014 13 . Qwest 1862 200w 7.gdBd Swedcom SP-9014 14 Qwcst 1862 200W 7.gdBd Swcdcom SP-9014 1'5 (~vest 1862 200W 7.gdBd ...... Swedcom 8P-9014 .... .. 16 Qwest 1862 200W 7.gdBd "~wedcom $P-90 I,I . NOTE: For other t~arritrv nt thio eit~. th ..... of"r:''-';-" a~ an antenna model or 'Unknnwn "for an operator mear~ the information with regard to carder, their FCC license and/or antenna ~ information was not available nor couM it be secured while on $ite. Equipment. antenna models and nominal transmit power were used for modeling, ha, ed on pa$t experience w;th radio ,ervice providers. 200 N. Glebe Road · Suite 1000 · Arlington, VA 22203.3728 703.276-1100 · Info~.sltesafe.eom IV-ll3 ~ ~ Berjac Building EUG-024B '. Main Vi~ r-i 2o>=x> 1oo IV-114 Bcrja¢ Building EUG-024B 6' Level ~.: ; /--':?.'-.,, , ?,. 'l ! i ' I I I':' * G~D = 1~ X 1~ , J _~*, SITE pLANNING - HAZARDS AND LIABILITIES OF WIRELESS TELECOMMUNI Attachment D Battery Hazards SITE PLANNING - HAZARDS AND LIABILITIES OF WIRELESS TELECOMMUNICATIONS BASE STATION INSTALLATIONS This link contains URL's for articles from various industry and governmeut 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 "substantial 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 proposed for existing structures such as rooftops, historic structures and churches. The equipment shelter/hut that is required for the 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 volt batteries that arCmost often filled with sulfuric 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 rooftops, in steeples, and in residential neighborhoods, notification becomes more critical. http://www.cali¢orp,c0m/articles/batlcries-ho7o rds. hi mi Lead-Acid Battery 14~?~rds http ://w~v. ncs. §ov/n$_hp/informafion AssurancefHazSec2.htm Web site of the National Communicati~-ns 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 hazards that have effected telecommunications systems in the United States. From this on-line 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 Properties 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 averaged29 structure fires, no reported deaths, I injury, and $1.31 million in direct property damage. All communications, defense, and document 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 fo'es, no deaths, 6 injuries, and $7.21 million in direct property damage. The large problem actually occurs in electronic equipment rooms or areas where more than 1,000 structure fires are reported each year to U.S. fire department~. See section entitled "1994 Los A~geles Telephone Exchange Fire*' and paragraph under Tnble 2-8 Chines of Fires at Telecommunications Facilities. http://www.tclecomciick,com Typ~ in "A battery for all seasons7" in the SEARCH box. Click on GO. htt_D ://x~%x%v.calicorp..com/a~iviso~J~B Advisory: Lead-acid Batteries http://www, telecomclick..c0m IV-116 http://emmetwork.org/siting/basehazards.htrn 10/3o/u SITE PLANNING- HAZARDS AND LIABILITIES OF WIRELESS TELECOMMUNI.. Page 2 of 3 Type in "Power Struggle: Battling over battery technologies" in the SEARCH box. Click on GO. http://www, zomeworks.com/tech/H2/H2FAO~ h!ml Hydrogen FAQ [This article discusses how complex proper venting of a battery shelter/room is. This company sells shelters as well as designs to properly vent existing shelters.] "What is the danger 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 prolifer .ation 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, vauJts, 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..." htr_o_ ://www._vowem_uali~.com/art0060/arH,htm From the industry journal, Po~Ver ~uality Journal. The. cogent point in this article is in the first paragraph: "... Most battery owners, including some of the biggest companies isthe country, do not follow IEEE recommendations. They claim that the full program is too expensive. That is short-term thinking and sooner or later they will pay for it." http://www, calicorp.com/arficles/0pen-houSe, html. Fire Department Safely Officers Association - "Open Hons~" Battery Incident httg_ ://www. firehouse.com/news/2000/6/l 4 APstate. htmi Fire Knocks Out State Department Phones http://www, wa. gov/ini/news/p~051800.btm Al! telecommunicatinns contraotors must register with Labor & Industry by June 8 http://www.telecomcl.ick.com Type "Powering wireless telecom base, stations" in the SEARCH box. Click on "GO." htt_p://www.°S_oma g.com/feat0res/1999~t2_olmo, btm I-I2-OhNo! Hydrogen Build-Up Can Cause Battery Cabinets to. EXPLODE · ht~p:I/~vwtlelec0m~li~k.~m Type in "Flirting with disaster, in SEARCH box. Click on GO. http://~vw.calicorp.com/articles/osha_s_t~cial_equip, htm Electrical Safety Requirements for Special Equipment - OSHA Regulatory Profile - Special Equipment httg_ ://www.calicom_ .com/arti~les/batteries-buildings.html Lead-Acid Batteries in Buildings ENVIRONMENTAL HAZARDS O1~ BATTERY .CHK~MICAL5 htt_~://www, calicom.com/articies/osha-altig:les.html Industrial I~ad-Acid Batteries Are Not Considered "Articles" http://www. Calicorp.com/epa_neWs_release, htm EPA News Release - Ten Telecommunications Companies Voluntarily Disclose and Correct Environmental Violations http ://es. em. gov/oeca/ore/enfalert/vol3 hum6, html EPA's "Audit Policy" Offers Opportunity for Teleconun, .un.i..'cations Industry to Remedy Violations TV-! ! 7 htlp://www.america'sne~ork, con0issues/2000S~pplements/20000915~/CC20000915_finesprint.htm http://emrnetwork.org/siting/basehazards.htm 10/30/01 ~'.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 FREQUENCY RADIATION LIABILITY ISSUES - RF IN THE NEIGHBORHOOD http://w~w.tclecomclick 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 interest of over 140,000 electrical, electronic and manufacturing engineers wOrld-wide. Key activities include publishing, the Organization of conferences, the maintenance of technical standards, interaction with government departments and the provision ofseientific and technical information services. http://www.iee.or~.uk/PAB/EMC/cor¢,htm IEE Guidance DocUment on EMC (Electromagnetic Compatfoility) and Functional Safety [From *Introduction and Pmpose"] "One of the problems peculiar to all eieCUOnic technologies is electromagnetic (EM) interference. All electrical and electronic technologies emit EM disturbances that can interfere with the correct operation of radio-communications or other electronics. Modern electronic technologies are in general more likely to cause such disturbances than those All electronic technologies can also suffer from degraded functionality (including complete failure) when exposed to EM dimurbances. Modern electronic technologies are in general more likely to be susceptible in this way than those they. replace... Electroni~ technology is increasingly nsedin safety-related appliCations. Consequently, errors and misoperation of electronic devices due to inadequate EMC can result in ha?o~rdous situations with an increased risk of harm to people's health and safety. REAL ESTATE DEVALUATION .http://www.appraisalinstitute.org/_oubs/ai_oub 125 .htm 'The Home Environmental Sourcebook: 50 Environmental Hazards to Avoid When Buying, Selling, or Maintaining a ~ · ' Home. Although.published in 1996, it is currently om of print. Try to borrow a copy from your state's Appraisal Board*s library. Wireless base stations are included in thc list of 50. http://w~v.abanct, org/publicserv/envguide.htmi 1998 American Bar Association Annual Meeting - Environmental Law Activities Session on Monday, August 3, 1998 - Stigmas, ContZmiuation and the Environment: Their Influence on Property Valuation for Tax Purposes. Microwave and cellular towers are included in the list of stigmas. IV-l18 http://emrnetwork.org/siting/basehazards.htm 10/30/01 · ktta¢hmelR 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 exceptiOn to subsections (b) and (c),in this paragraph is an application for an extension of the development period. 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) Additionalone-yearextensionsmay 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; --,,r (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 provided in LC 14.500 above for appeals to the Hearings Official. 16-83; 9.14.83 14-33 WP 1/co/00029/T : 10-89; 10.4.89 ~.~" 4.96; 11..29.96 Iv-119 ;' Attachment F -'"-' · ' Excerpt from I~C Fact Sheet FEDERAL COMMUNICATIONS COMMISSION WIRELESS 'i'ELECONWiUNiCATiONSBU =REAU 2025 M SI:met, N.W., Washingtc~, DC 205.54. FACT SHEET. NATIONAL WIRELESS FACILITIES SITING POLICES ~'~'~ T¢l~commur~c~dom ..~ of IF:J6 (~',e t~J,6 AC[) coma~ ~ I:~.v~iom con~ d~e pl~ of = s'mx:mr~ a'xt od,~r fa=i~des t'or u~ ~ lxov~dinlt persora. I wi~l~ .~rvic~s. Sm.e .~-,d local ~ ~ a.L, mdy bern ~ closely ,,,,~r.h ,,vi~l~,s .~rvice l:~Vid~ m pla:~ such facilities wid~ ~ localities. The new I~,, ~sr. ablisl'~ a ~"amc~ork t'or d~e ~ of.i~i.~licdc~ by ~ a'xt local ~ ov=r ~ co~o~., rrx:x:~ca~io~ a-x:l p~ of f~cilities tm- ~ The n~,v l=w ~ ~ [he ¢ommmion r.o offer a~~ r~ sm.e a'~ local h= formed a W'u-~l~ Faci~es $itin8 Task For~ = ~ as ~ focal ~ di~~ of' ~on r~Im8 = d.~ =f~r~ of' sm.e ~ locsl ~m'~ a~ well = . provid~'s of ~ wi~les~ ~ r.o addmm ~ ~r+,.~ ~ The Ta.~ Force bdie'ves il: ca~ .~rve as a v~luable ~(~:t mSo~-ce for sm~ ~ locaJ =va. ilabilit"y of ~ ~ a~, ~ [oca. I ~v~as ~ deal wi~ d~e comlfl= ~ of ~ wimlm~. :h=iz local. ~ Fact ~ #!-~xm'a~ ~ ~ or' S~c~m 704, mlX~ed ' :.he corr~lc~ te:~' of Sec6m 704 of d~e 1996 A~ l:rovi~ ~ ~,.fc:rm~oa · ?ART l b ~ new ~on of ~y ~ qu=~i~ s ?ART [I ~ ~ Commmi~'fs r'~o~ ~ ~ ~ov~mi~s ~ ,,vi.~l~s~ s~-vic~ adoF~.Au~ 1, 1~:)6, IV-].20 :,olloc~ion wirJm the ~ t~ Fmvid~,'s may th~r~tom be t~..ht~ically or ~mormcaliv ?ruble, mdc. Additionally, bccaus~,collocali.on .~-o .~. many pk:~s of .mu~p~ o~ a s,,"r'cc,'u~ colloc~ion may r~ult in mr$,~' ma mom ootrusive and '.:,'~.s~_~tl,,,' s~.x.,-:..:...~ muitiPi~ dJscr~e Lnstallariom of' incLividml mm'nas and ,'ansrrau~. It should also be kq:)t-in mi~ that Pcrsoml witless scrvic~ provi~ ar~ fi~':~ comc)etltom ~hat ,-r~.ottm cicl:)loying tim first, comnm-cial us~ of is parricul~, c.~.~log:y..~ a ,'~suit. · pm,.'id(n-s may Im Unwilling to shar~ th~ siting pims, pardcta~y aceaal s~ bec:,,)~ th.cy consid? thcs. plms lxolmctaO, busirma infoar~co, ct thc,/rmy bc rciuc'.xnt FLna. lly, bo:mas~ ~ services ar~ 'ney,, f__,'~r~ologics.'it will be ciiffic~t to predict thc location of all siu~s a~ th~ tirn~ of initial scrvic~ clcploymc~ ard adj~ may be necess~ along the w~. New t~ht~logi~ aLso ~ unic~ t~'tica~ challenges. I ~u F,~c,a. u~c pmpnc~az7 nazure oz slang pu~'a yet s:iu yieia ~on ~ can be useful to · I%!oc~ zorung auzhodt~es for developing ova-aLI zzx~g plans fct pmo¢~ udzeiess faciliti~ o£ a pcrscx'~ c~ It is ac~ tl~ ir.~,~ o(' tbi~ lZOVid~ to gj~ ~ ~ to t~' gun.ally ~ d.~ ~ (~::~ially ~ dmmt ~'~ ~ cr run~v~}~) cau~ 9 IV-121 Attachment G Lane Coun~ COde 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 inApril 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 of the Board felt it should be passed as presented with amendments to be made subsequently. .. 'This document is the ordioance with the Lane County Planoing 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 15a or 16~. 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 ordinances 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 platnnLag. IV-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. (ReVised by Ordinance No. 7-87, Effective 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; Co) 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 aa 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 Faeili~. 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 transmission facilities and facilities used exclusively for the transmission of television and radio signals are not 'itransmission towers." 16-455 WD l/e/OOO56.Chapter16.250.264/T 1ti-123 16,264 Lane Code 16.264 (3) Aoolicafion~ IllfOrma_ti_'on and Proces~in_o 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 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 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 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 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. Co) 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 applieadon; (iv) A signed statemeat 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/e/OOO56.Chapter16.250.264/T IV-124 16.264 Lane Code 16.264 (vii) Documentation demonstrating that the Federal ·Aviation Administration tiAA) 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 find 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 telecommunieafion tower facilities. The application shall include a cel~ifieation 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 (b) are met. (a) An application for eollocati°n of a new or replacement telecommunications facility shall provide the information required in LC 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 TeleCommunicati0, · 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 16.250.264fr IV-125 16.264 Lane Code i 6.264 ) (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 a~d 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 16.211(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 appropri.'ate for blending the tower into the sky background. Nothing in this subsection preempts the coloring requirements of the Federal Aviation Admluistration 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 o~' 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 WD l/c/00056.Chapter 16.250-264/T 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 Telec0mmunicatio,, T0wer . (a) Approved applications for telecommunication towers shall be valid until December 31st of the year following the date of final Lan~ 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 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 for.a 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 tho 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. (RevZsed by Ordinance 4-02, Effective 16459 WI) l/c/O0056.Chapter 16.250-264/'r Iv-127 Attachment !! £ugene Code 9.5?50 · J.$750 Telecommunication Devices.Siting Requirements and Procedure~_. (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. 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 R__eview 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'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 - Ger}eral and subsections (6) and (7) of this section shall govern approval or denial of IV-~ 2 8 .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. N° development permit shall be issued prior to completion of the conditionaI 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, 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 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 exceed the tv-129 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, 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 construction:shall require a conditional use permit in the R-l, C-1, 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 theancillary 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 TV-131 applicant will allow collocation with other users, provided all safety, structurall 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 authorizati°n to · proceed with development permit and land uSe processes; 1:1. 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 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 sit® reviews, ]:~'~132 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 i ~ 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 future expansion plans. 5. A statement providing the reasons 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 provisions of subsection (9) of this section: (a) Separation Between Transmission Towers. No transmission tower may be constructed within 2000 feet of any pre-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 pre-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 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 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 tothe 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, o~' 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) Lighting. 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; ~v-~35 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 t° 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 !00 feet providing the applicant demonstrates that a transmission tower taller than 75 feet will directly eliminate the need for I 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 variance shall be proCessed pursuant to Type II application proCedures beginning at EC 9.7200 General Overview of Type II Application Procedure~ 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) Fe s. Notwithstanding any other provisi°n 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.$800 Tem.=or~.ry_.Activity__S_l)_e._c_i~_.!.D~_v_~o_i3rnen~t S__~n_dar_d_s_.. 9ECEiVEO NYSTROM Steven A ~3Y CITY' From: Jerome LIDZ [jerome.s.lidz@harrang.com] DEC Sent: Tuesday, November 16, 2004 3:44 PM To: Steven.A. NYSTROM@ci.eugene.or.us Subject: Testimony from Pat Evans Steve, This is the e-mail that T-Mobile wants to have included in the record: Jerry: We do 'plan on building several new sites (although perhaps not all cell towers) in the Eugene area over the next cople of years. The primary issue I have with the code change as originally proposed is that it seems that there'has been no GIS review by the City to understand the cumulative effects of the proposed setbacks together with existing restrictions within the current code on the placement of cell sites (including towers). The one instance where T-Mobile has conducted its own study (City of Salem) has indicated that setbacks coupled with limitations on placement within transitional commercial and residential zones results in the majority of the surface area of the City being "off limits" for placement of cell sites. In order to avoid passing legislation that creates a defacto, blanket prohibition on the development of personal communication sites, I would both strongly caution and urge the City Council/Planning commission to direct the Planning Department to come up with a study to demonstrate the impact of the proposed statute on the ability of the wireless industry to place facilities within the boundaries of Eugene. I strongly suspect that the data will show that the proposed code changes will show that the new ordinance (coupled with existing code)will, in fact, create a defacto prohibition · against personal communications facilities within Eugene and thus open the City for a significant, federal legal challenge from T-Mobile and other wireless carriers. In order to avoid that type of a confrontation (in which no one really wins) I would like to make myself available to the Commission staff to craft a GIS study using City resources .... within the next few days if possible. A secondary issue that I also have is the review process. To ask the industry to pay for experts (where none exist) to review its applications for technical issues is a double affront. First, there are no agreed upon technical standards as to what constitutes a "standard" that "experts" can review against...it becomes a matter of the "experts" personal opinion based on years of perhaps good or bad experience in the industry. Second, no other industry (to my knowledge) is subject to such a review prior to siting a business within the City. I would argue, as I have in the past, that there is significantly more clearly and scientifically understood negative health impact from a fast-food restaurant than from a communications facility .... yet no corresponding review is conducted by "experts" from the food industry of requests for placement of a MacDonalds or Burger King. Give me a call at your convenience and we can discuss further. Patrick Evans, Manager, Development Oregon and SW 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 1 November 15, 2004 To: City of Eugene, Planning Attn: Susan Muir Fax #:682-5572 From: Mona Linstromberg Fax #: 935-2709 NUmber of pages (including cover): 12 Dear Susan.. The Iirst page is a 2001 e-mail from Concord, MA Planning Director, Marcia R, asrnussen (currently in that position) explaining basis of setback ti-on't schools. Following is the Concord by-law on telecommunication facilities downloadcd from the interact (Concordnet. org). The last page is correspondence from another planner on cxpert review. Although Concord has a population ora bit over 15,000, I would think the processes and procedm'es would work for any sized jurisdiction. The technical details would probably differ for a larger city, but that is why independent technical review is so important. Thanks, Mona Linstromberg Page ] of 3 Main Iflenti~ . From: "Donna Murray" <peffume@afn.org> To: <monancraig~juno,com> Sen[: Sunday, January 25, 2004 5:32 PM Subject: Concord MA ordinances for Cell tower placenlent From: Marcia Rasmussen <MRasmussen~3,Concordner.org> Donna, We are continuing to refine and improve our zoning tbr cell towers. There is a group here in Concord tlmt has provided Concord zoning bylaw (Concord Citizens for K~pon~ible Tower Siting), They have baen working learn more at their website We have also had the benefit(?) of litigation with AT&T, and are responding to many of the issues raised in that case. Our bylaw w~ amended at ~is year's To~ Meeting, ~o I hope you have the revised version. The amendment expanded ~e area of the dis~ict, provided a mechaaism for granting waivers ~om tiao requirements (rather ~h~ requiring a variance from requirements, which put the Town and wireless communication facility providers into a Catch-22 situation) and addressed some of the tecNaical issues that were problematic. However, the m~endment was ~rther ~ended on the floor of To~ Meeting by the citizen's group, which has created some problems with our new bylaw. You noted that it appem's that it would be up to the local jurisdictions do their own or require their own monitoring by an independent firm. This is so t~e. We require, through the Board of Appeals decision, a~ual monitoring of these facilities by an independent consuhant. I don't ~ow about the success of this requirement, since I'm not the p~y designated to receive the reports. I will need to research ~is ft~er and will let you knOW. On the subject of Concord's 1000 foot setback from schools, this is based on towers being ~ attractive nuisance, We had an incident in the neighboring community where a young man commilted suicide by jumping from a tower just prior to ~e development of our bylaw language. We also have had some ve~ cremive senior high school graduation pranks involving the radio station tower at the school. This is t~e basis for the 1000 foot setback from schools. I hope this iMo~ation is use~fl m you. The whole field of wireless communication is so new, we are continually learning more and t~ing to improve m~ response to the teelmology and the need while being conscious of tiao visual and aesthetic impacts to ~hc communi~, ks ~ot an easy challenge. Please let me ~ow if I can be of Rtrflaer assist~ce. Marcia Rasmussen Director of Pla~ing ~d L~d Managemen~ To~ of Concord, MA 2/9/04 CONCORD zONING magnitude of the sensation of glare depends upon factors such as the size, position, and luminance of the source, the number of sources, and the luminance to which the eyes are adapted. (b) Light spillover shall mean illumination produced by a light fixture, which extends beyond the boundaries of thc lot or parcel upon which the ligh¢ fixture is located. (c) Light pollution shall mean illumination which extends beyond an object, structure or area, which the light fixture is designed to serve, so as ro produce' glare, or odaerwise interfere with viewing of natured vistas such as the night sky. 7. 7.4. I1 Maintenance: Parking and loading facilities and landscaping shall be continuously maintained in good condition and appearance. Whenever t~ecessary, surfiaeing, lighting, curbing, marlcings a~d plantings shall be repaired or replaced with new materials, and drainage structures shall be clea!~ed or replaced in order toinsure continued compliance wifla the provisions of Section 7.7. Failure to maintain parking facilities properly shall be considered a violation office Zoning Bylaw. 7,7.4,12 ~elieJ'.[kom de.s. iga requirement, v: The Board may~ upon advice of the Plamaing Board, grant relief fi'om the design standards contained in subsection 7.7.4.1 where the varia[ion in ~he sta~dards can be supported by a study prepared by a qualified parking consultant, end where the Board finds that' the desired relief may be granted without substantial detriment to the neighborhood and without derogating fi'om the intent and purpose of this Bylaw. 7.8 Personal Wireless Communications FaciLity 7.8.1 Purpose andlnrent: The purpose of this Section is to establish a district within the Town in which personal wireless commtmication facilities may bc provided, to regulate their impacts and to aeco)nmodate their location and use in a manner which: (a) protects the visual, aesthetic, scenic, historic, environmental and natural or man-made resources of the Town; (b) encourages the use of existing structures and towers; (c) protects property values; (d) minimizes the total number and height of towers located withi~ the community by requiring tower sharing and clustering of personal wireless communication facilities where possible; (e) minimizes any adverse impacts on the residents of the Town (such ~, but not limited to, visual blight on viewsheds, attractive nuisance, noise and falling objects) with regard to thc general safety, wclfare and quality of life in the community: (/) provides stand~rds and requirements for regulation, placement, construction, monitoring, design, modification and removal of personal wireless communication facilities; and 64 SPECIAL PROVISIONS (g) provides 'a procedural basis for action within a reasonable period of time for requests for authorization to place, construct, operate or modify personal wireless cmrmmnication facilities', Thc inmm of this Section is to be in compliance with the federal Telecommunications Act of 1996. 7,8,2 Definitions: As used in this Section, the following terms shall have the meanings indicated: 7.8.2.1 Act: The federal Telecommunications Act of 1996. 7.8.2.2 Adaquata coverage: Coverage is considered to be "adequate" within that area surrounding a base station where the predicted or measured median field strength of the transmitted signal is greater than minus 95 (-95)db~a. It is acceptable for there to be holes within tl~e area of adequate coverage where the signal is less than -95dbm, as long as the signal regains its strength to greater than -95dbm further away from the base station. For the limited purpose of determining whether the use of a repeater is necessary or desirable, there shall be deemed not to be adequate coverage within said holes. The outer boundary of the area of adequate coverage, however, is that location past which the signal does not regain its strength to greater than -..95dbm. In applications to the Board, predictions of field strength in proposed coverage areas shall be supported by submission of actual measurements or drive test dam, using at least two methodologies, along the most heavily traveled roads in the proposed coverage area f. br review and analysis by the in&pendent eonsultm~t referred m in subsection 7.8.4.3. 7.8,2,3 Adequatg capacity; In tm m:ea where coverage exists, capacity is considered "adequate" if', during thc busiest hour of the day on at least fifty percent (50%) of the days in any month preceding the date of application, 95% or more of the attempted calls are able to connect on their first attempt, as measured using direct measurement of the coverage area in question. 7, 8.2, 4 Antenna: A device that is attached to a tower, or other structure Ibr transmitting and receiving elecn'omagnetic waves. 7,8,2.5 Array: A set or antennas for one carrier or personal wireless communication service provider that are placed on a mount ar a given height above ground level and spaced so as to avoid internal interference, 7.8.2.6 Available space: The space on a tower or other structure to which antennas of a personal wireless communication service provider are both structurally able and eleetromagnetically able to be attached. 7,8,2.7 Bu~'e .~t~ttion: A fixed-location sending and receiving site serving a coverage area within a wireless communication network. More than one base station and/or facilities as used or operated by more than one variety o£ personal wireless commurficatio~ service provider can be located on a single tower or structure. 7.8.2.8 Channel: A segment of the radiation spectrum radiating £rom an antenna. An antenna may radiate o~ many channels simultaneously. 65 CONCORD ZONING 7.8,2.9 Communication ~quipment shelter: A structure located at the base of a tower or other structure designed principally to enclOse equipment used in conne¢lion with personal wireless comnmnication n'ansmissions. 7.8.2.10 Coverage or pro~agalion .*tudi~s: Computer generated estimates of the radiation emanating from ~ntennas or repeaters sited on a specific tower or structure. The height above ground, power input and output, t'requeney output, type of antenna, antenna gain, topography of the site and its sun'oundings are all taken into account to create these simulations. They are a preliminary mol for determining whether a sire will provide adequate coverage For a personal wireless communication sc~icc facility proposed for that site. 7,8,2, Il £acilio; site; A property, or any p~rt thereof, which is owned or leased by one or more personal wireless communication service providers and upon which one or more personal wireless communication facility(s) and required l~ndseaping arc located. 7.8,2.12 t-Tller site: a snmll~ lower-powered site that uses a repeater or other similar technology to fill a gap in coverage that is otherwise not filled by a base station array. 7.8.2. 13 Mod!/?carion qfcm exisring,/c~cility: Anv material change or proposed change to a personal wireless conmuunication facility including but not limited to power input or output, tmmber of antennas, change in antenna type or mode[, repositioning of antem~a(s), or change in number of channels per antenna above file maximum number approved under an existing special permit. 7.8.2.14 Monitoring: The measurement, by the use of instruments in the fi~ld, of the radiation t?om a Facility site as a whole, or £rom individual personal wireless communication thcilities, towers, antennas or repeaters. 7,8,2. I$ Monitoring protocol: ~he resting protocol adopted by the Board, which is to be used to monitor the emissions fl-oU'l existing and new personal wireless communication ~cilities. A copy of the monitoring protocol shall bc on file with the Building Inspector. 7.8.2.16 Monopole: A single self-supporting vertical pole with no guy wire anchors, usually consisting o~' a galvanized or other painted metal, or a wooden pole with below grade foundations. 7,8,2.17 Personal wireless communication setwices: Commercial mobile services, unlicensed wireless services, and conunon can-ier wireless exchange services, These services include (bu~ arc not limited re): cellular services, personal con'mmnication services (PCS)., specialized mobile radio services and paging services. 7.8,2.]8 Per,¥onal wireless communication facility: All equipment (including any repeaters, micro-cells or other similar technology) with which a personal wireless communication service provider broadcasts and receives the radio-frequency waves that carry their services and all locations of said equipment or any part thereof, 7,8.2,19 Personal wireless communication service provider: An entity licensed by the Federal Comnunication Commission (FCC) to provide personal wireless communication services to individuals or institutions. 66 SPEC.IAI. PROVISIONS 7.8.2.20 Repeater: A small receiver/relay transmitter designed to provide service to areas which are not able to receive adcq-ate coverage from a base station in a wireless communications r~etwork and has no significant visual impact on the surrounding area. 7,8,2.21 Strttcturally able: The determination that a tower or structure is capable of carrying the load imposed by the new antet'mas under all reasonab}y predictable conditions as detem~ined by professional st~'uctural engineering analysis. 7.8.2.22 Tower.. A fi'eestanding lattice structm-e or framework, or monopole, daar is self- supporting, fixed re the ground and is designed to support personal wireless communication transmissions, receiving and/or relaying antennas and/or equipment. An existing lattice tower may be replaced in an existing location but no new lattice structures shall be permitted. 7.8.3 Exemptions: The following wireless comnmnication facilities are exempt: police, fire, ambulance and other emergency dispatch; amateur (ham) radio; citizens band radio; any existing conm~ercial radio tower; and radio dispatch for local businesses. No personal wireless communicatio~ facility shall be considered exempt from this Seetio~ for any reason whether or not said facility is proposed to share a tower or other structure with such exempt uses, 7.8.4 Procedure for review by the Board: Any person Who desires to construct or install a personal wireless communication facility, including co-location on an existing facility, shall submit a written applization for a special pernait and silo plan approval to the Board, with copies to the Planning Board. Applications shall be submitted in accordance with the requirements outlined in the Rules and Regulations for Personal Wireless Communication Facility(s) adopted by the Board. A special permit is required for: a) new tower construction (or modification of an existing tower); and b) personal wireless communication service facilities (or modification of an existing facility) to be mounted in or on a~ existing or newly pem~itted tower or structure, The following additional information shall also be submitted: 7.8,4.1 Adeqttate coverage, adequate capacity and./t~sri, ficatio~ qf need: (a) The applicant shall provide written documentation of any facility sites in the Town and in abutth~g towns in which it has a legal or equitable interest, whether by ownership, leasehold or otherwise. Said documentation shall demonstrate ~he /bllowing: that these fb, cility site(s) are not ah'andy providing, or do nor have aha potential, by adjusting the personal wireless communication facility on the site(s), to provide adequate coverage and/or adequate capacity; that there is a significant gap in covorage; and, that the proposal reduces or eliminates the sit,mificmat gap in coverage in a mamaer that is least intrusive upon the interests of the Town as expressed in the purpose and intent of this Section. A "gap" in coverage exists when a remote user of personal wireless conununication services is unable to either connech directly or hadirectly, with a base station or to maintain a connection capable Of supporting a reasonably uninterrupted communication. A "significant gap" depends upon the physical size of the gap and upon the number o[' castomcrs affected by that gap, Documentation shall include, for each facility site listed, the exact location, ground 67 CONCOI~ ZONING elevation., height of tower or structure, type of antennas, antenna gain, height of antennas on tower or structure, output frequency, number of chmmels, power input m~d maximum output per channel. Potential adjustments to these ~xistfi~g facility sites~ including changes in antenna type, orientation, gain, height or power output shall be specified. Radial plots from each of these facility sites, as they exist and with adjustauents as above, shall be provided as part of the application. (b) The applicant shall provide 'written doemncntatJon that they have exanfined all personal wireless communication facility sites located in the town and in abm-ting towns in which the applicant has no legal or equitable interest to deten'nine whether those existing facility sites can be used to provide adequate coverage and/or adequate, capacity.. Documentation shall include alt information outlined above. Radial plots from each of these facility sites as proposed shall also be provided. (c) The applicant shall provide written documentation (including radial plots) that they have analyzed the provision of adequate coverage and adequate capacity through the use of filler sites in coajunetion wirah all personal wireless communication facility sites listed above. (d) The applicant shall provide a map of all proposed facilities to be applied for over the next twenty (20) months (or a complete build-out analysis) by the personal wireless communication service provider. Such map shall also include any and all existing personal wireless conmaunicalion Facility(s) of the provider and known proposed ~hcilities of other personal wireless co~muunication service providers. (e) The applicant shall provide written documentation that the applicant has examined potentially viable personal wireless facility sites in the overlay districts ha the town and relevant sires in abutting towns that could provide adequate coverage and capacity in the town, including the existing structures and open areas that comply with the relevant zoning bylaws of those towns and m'e consistent with Section 7.8.1 Purpose and b?lert! (a) r_hrough (e). The applicant shall list all such sites examined mad state fully and completely the rationale for rejecting any such sites that are less b~tmsive upon thc interests of the Town lhan the site(s) ±hr which application is being made. 7.8.4.2 Gem'rol reqztireme~tx: (a) New towers shall be set back a distance at least equal to the height of the tower from all lot lines of the site on which the tower is located, unless the tower has been designed to break away at a certain point above the ground, in which case the new tower may be set at least tl~e breakaway distance fi-om all lot lines. (b) If the facility site is in a wooded area, a vegetated buffer strip of undisturbed trees shall be retained ~round the entire perimeter of the personal wireless communication facility site lbr ar least the lesser of(i) the distance to l~hc lot line or (ii) fifty (50) feet. Thc landowner shall enter into a recordable easement, restriction, or similar instrm~xent enforceable by the Town to ensure that the buffer slrip is retained while fl~e facility site is in place. 68 SPECIAL PROVISIONS (c) Fencing and signs: the area m'ound the tower and communication equipment shelters shall be completely fenced tbr secm'ity to a height of six feet and gated (unless the corrmmnication equipment shelter is otherwise secured). Use of razor wh'e is not penmtted. A sign shall be posted adjacent to the entry gate indicating the facility owner(s) and a 24-hour emergency telephone number and any legally required radio-frequency warning sign shall be posted in aa appropriate location. Commea'cial advertising on any antenna, tower, fencing, accessory buildfiag or communication equipment shelter is prohibited. (d) Communication equipment shelters and accessory buildings shall be designed to be architecturally sin-filer and compatible with each other and the sun-ounding area. The building shall be used only tbr the housing et' equipment related to the site. Whenever practical, tlae buildings shall be located underground. Additional supplemental landscape screetfing may be required by the Board to lessen adverse visual impacts. ('e) New towers shall not exceed tl~e minimum height necessary to provide adequa[e coverage for the personal wireless service facilities proposed ~tbr use on the tower; unless the Board determines that co-location with another service provider is desirable, suitable and consistent with this Section. In areas where there is no significant tree canopy, the maximmn height of a tower shall not exceed one- hundred-twenty (120) feet above finished gu'adc of the ground elevation. Such fiaished grade shall not be distorted above the pre-existent natural grade as a way to achieve additional height. I, areas where there is significant tree canopy, the maximum height of a rower shall not exceed twenty (20) feet above the average height of the natural pre-existent tree canopy within a one-hundred fifty (I 50) foot radius of the tower. The Board may permit an increase in the height of a tower, or attacinnent thereto, to facilitate co-location, provided thc Board demnnines that no material increase in visual impacts will result from the increased height, bu~ in no case shall the height exceed one-hundred fitly (150) ti:et. The design of the tower and supporting base stmcrm'e shall accommodate an ultimate height of whatever is approved by the Board. (/9 tf primary coverage from the proposed personal wk'eless con~auunication facility (greater than 50°/;.) is outside the Town of Concord, the permit may be denied unless the Applicant can show that theY arc unable to locate within the Town which is pti marlly receiving service from the proposed fac fl ity. (g) A p~rsonal wlrelc~s communication Facility proposed to be located on an existing, sffirable, non-resident/al structm'e or tower for which an occupancy pen'ait was issued a,q of January 1, 2001 and located within this district, shall not exceed the height of such structure by more than twenty (20) feet. (h) Unless required by the Federal Aviation Administration or Emerson Hospital medi- flight program, no exterior night fighting of towers or the personal wireless conununicarion facility is pcm, irted except for manually operated emergency lights for use when operating pea'sonnel are on site. 69 CONCORD ZONLN'G (0 A persone, l wireless communication facility subject to jul'fsdjctjon by the Federal Aviation Administration (FAA) shall be designed to minimize, to the extent fet~sible, adverse visual effects upon existing single-f~mily detached dwellings and historic or scenic viewsbeds. No new tower that requires striping or lighting per FAA requirements shall be located ~vithin one-thousand (I000) feet of an existing school, day carc center, single-family detached dwelling or historic resource. ~/) No new tower for a personal wireless communication £'~cility, shall be located within: [. One~thousa.nd (I000) fcet, on a horizontal plane, to any existing structure which is, or is able to be, occupied or habitable on the property of any existing child care facility or school:. ii. One thousand (JO00) feet, on a horizontal plane, to the structure of an existing single-family detached dwelling; iii. One thousand (1000) feet, on a horizontal plane, to any structure in an Historic District, or listed, or eligible to be listed, on the state or federal Register of Historic Places: iv. a Massachusetts or federally regulated bordering, vegetated wetland; v. a Massachusetzs certified vernal pool; vi, the habitat of any Massachusetts lis~ed rare or endangered wildlife or rare plant species; (k) New personal wireless commzmication facilities in or on art existing, suitable, non- residential structure or tower for which an occupancy permit was issued as of January 1, 2000 shall be located at least: i. five hundred (500) feet, on a horizontal plane~ fi'om any existing structm-e which is, or is able to be, occupied or habitable on the property of a child care facility or school: ii. three hundred (300) feet, on a horizontal plane, from thc structure of an existing single-~hmily detached dwelling; or iii. three hundred ('300) feet, on a horizontal plane, from any structure in a Historic District or listed (or eligible to be Ifsted) on the State or Federal Register of Historic Places. (l) The following locations are ranked in order of preference and are encouraged: i. personal wireless con'm~urhcation facilily sites that are most distant fi'om single-family detached dwellings and schools. ii. municipa.1 lands which comply with other requirements of flais section. iii. where the visual impact of towers can be minimized by the use of camouflage, stealth design or other innovative measures to reduce, elmainate or disguise the negative visual impa,ct. iv. fille~- sites to provide adequate coverag~ without requiting new towers. 70 ~ V IV/V Iq. SPECIAL PROVISIONS v. ex~sting personal wireless communication facility(s). ('m) Personal wireless communication facilities shall be located so a,~ to provide adequate coverage and adequate capacity with the fewest number of base stations, towers and antenna arrays that are technically feasible. The Board may limit the number of base stations, towers and antenna arrays upon any single parcel. Thc Board may limit the number of base stations, towers and antenna arrays in any given overlay district. 07) Subsequent applieant~, are required to ce-locate and shall submit an application to add to existing towers, installed under the provisions of this ByJaw. (o) The Board shall request input fi'om the Fire, Police and o~ber town emergency services regarding the adequacy for emergency access to the site. (p) Balloon test: within 35 days of submitting an appUcation, the applicant shall arrange to fly, or raise upon a temporary na~st, a three foot dJarnc~cr brightly colored balloon at the maximum height and at the location of the proposed tower. The date(s) (including a second date, in case of poor visibility on the initial date), times and location of the balloon test shall be advertised, by the applicant at seven (7) ,~nd fot~een (14) days ~n advance of the first test date ha a newspaper wi~h a general circulation in the Town. The applican~ shall inibrm the Board aad the Planning Board in writing of the dates and thues of the test at least fourteen days in advance. T3ae balloon shall be flown for at least five consecutive hours between 7:00 a.m. $;00 p.m. on the date(s) chosen. The applicant sha]l bear any and all expenses associated with such balloon test. 7.8,4.3 gval~¢~lion by i. clei.~endent consultant,~: Upon submission of a complete application for a special permit under this Sect[on, th~ Board shall engage the services of a qualified independent consultant and shall provide the independent consultant with the completed application and existing documentation for analysis and review, The independent consultant shall gather additional documentation and conduct additional research as necessary to support the analysis and review, Access lo the site to conduct any necessary site visits shall be provided to the qualified independent consultant. The qualified independent consultant shall submit to the Board a written recommendation and an opinion as to the conformance of the application with the requirements of this Section. 7.8,4.4 Fee~ and inst.'anco: Personal wireless service facilities shall be continuously insured by ~hc owner(s) against damage to persons or property. The owner(s) shall provide a Certificate of Insurance to the Bu~ldbag Inspector on an annual basis in which the Town shall be specifically listed as an additional insm'ed. A schedule of fees for personal ~vireless service Iheilities permitting and renewal, ~my monitoring of emissions and inspection of structures, and any other fees shall be established by the Board as part oflhc Rules and Regulations tbr Personal Wireless Communication Facility(s). 7.8.4.5 l~elie./.[?orn g~,~era! req~iremenr.v: The Board may, upon advice of the Planning Board and a qualified independent consultant, grant relief from the general requirements contained in subsection 7.8,4.2 (rather than require an applicant to seek a variance from this Bylaw) where the Board finds that the relief is supported by the submittal of a study prepared by a qualified technical consultant sl~owiog a significant gap in coverage, where 71 I~, V I I,/V Iq. CONCORD ZONING the Bom'd finds that the extent of the gr~I'ltcd relief is mitigated by a showing that the project provides a minimally intrusive viable means of reducing or eliminating suer significant gap in coverage, and where the Board finds that the desired relief may be granted without substantial detriment to the neighborhood and without derogating from thc intent and prolapse of this Bylaw. However, the Board shall not grant relief from the maximum height limitation in subsection 7.8.4.2(e). The Board shall be 'empowered to grmat relief from any setback requirement ha subsection 7.8.4.2(i), (j) or (k) provided that the site proposed is demonstrated to be necessary re achieve adequate coverage or capacity and to be minimally intrusive upon the interests of thc Town, consistent with Section 7.8.1 Purpose and Intent (a) through (e). The applicant shall provide the Board with a written statement describing why the requested relief is in the best interest of the Town wida references to Section 7.8.1 Purpose andlrttent (a) through (¢)." 7. 8.4. 6 At~t~rovctl c. rit, vio: A spec ial permit shall be issued un der this section Only i f the Board shall find that the project is in hamaony with the general purpose and intent of this Section. In addition, the Board, in consultation with the indcpendcnt eonsultaat referred to in subsection 7.8.4.3 shall make all the applicable findings before granting the special pennit, as follows: (a2 that the applicant is not already providing adequate coverage and/or adequate capacity and that a significant gap in coverage exists; (b) that the applicant is not able to use existing personal wireless co:m~unication, facility site(s) either with or without the use of filler sites to provide adequate coverage_and adequate c~pacity; (~.') that the proposed personal wireless communication facility site selected by the applicant minimizes adverse impacts on historic resources, scenic views (viewshcds) and residential property values by being located most distant from historic resources, scenic views (viewsheds) and single-family detached d.wellings, (d) that the proposed personal wireless communication 'facility site minimizes adverse impacts on historic resources, scenic views, residential property values and natural or man-made resources through the use of camouflage, stealtll or other innovative mcbnology'; (e) that rdae applicant has agreed to implement all reasonable measnres to mitigate the potential adverse impacts of the facilities; (f) that the proposal shall comply with floe appropriate [:CC Regulations regarding en'dssions of electr.oma~aetie radiation and that the required monitoring program is in place ancl shall be paid ibr by the applicant; and (g) that the applicant has agreed ~0 rent or lease available space on the tower, under terms of a fair-market lease, without discrimination to other Personal wireless service providers; If a special permit is grm~ted the Board shall impose any such additional conditions and safeguards as public safety, welfare and convenience may require, either as reconmaended by the independent consultant, ~;he Planning Board or upon its own initiative. 72 SPECIAL PROVISIONS Any decision by the Board to deny a special permit under this Section shall be in conformance with thc Act, in r. hat it shall be in writin§ and supported by substantial evidence contained in a written record. 7. 8.5 Monitoring and evaluation of tempi&ncc: Pre-testing and post-testing (including monitoring) shall be required and in accordance with the Office of Engineering Technology Bulletin 65 "Evaluating Complim~ce the FCC Guidelines for lluman Exposure to Radi0tYequency Electromagnetic Fields" and as defined in "A Local Government Guide re Transmitting Antem]a RI: Emission Safety: Rules, Procedures, and Practical Guidance". (a) Stmctm'.q Inspection: The tower owner(s) shall pay for an independent licensed professional structural cngi~leer to conduct inspection of the tower's structural integrity and safety. Pre-existing guyed towers shall be inspected every tlu'ee years. Monopoles and non-guyed lattice towers shall be inspected every five years. A report of the inspection results shall be prepared by thc structural engineer and submiacd to the Building Inspector, [he Town Clerk and the Planning Board. Any modification of ~m .existing facility, that increases tower dimensions or antenna numbers or type shall require a new structural inspection. (b) Unsafe Structure: Should the inspection of any tower reveal any stmctnral defect(s) that, in the opinion of the independent structural engineer, render(s) the tower unsafe, the following actions shall be taken. Within ten business days of written notification of unsafe structure, fl~e owner(s) of thc tower shall submit a plan to remediate the structural defect(s). This plan shall bc initiated within ten business days of the submission of the remediation plan and completed as soon as reasonably possible. 7.8.6. Removal requirements: Any personal wireless communication facility that ceases to operate for a period of one year shall be removed. Cease to operate is defined as not performirtg the normal functions associated with the personal wireless cormnunication facility and its equipment on a continuous and ongoing basis for a period of one year. At the time of removal, the facility site shall be remediated such thru all personal wkeless communication facility improvemel~ts that have ceased to operate at-e removed. If all facilities on a toxver have ceased to operate, the tower (including the fore, darien to depth of three feet below grade) shall also be removed and the site shall be revegetatcd by the owner of the tower. Existing trees shall only be removed if necessary to complete the required removal. The applicant shall, as a condition of the special permit, provide a finm~cial surety or other ['oma of finm~cjal guarantee acceptable to the Bom'd, to cover the cost of removal of the facility and the remediation of the landscape, should the facility cease to operatel 73 ~ ~'~lccornr~uniea~ion.~ orrlin,,moo Subject: Re: Telecommunications ordinance Date: Wed, 31 Oct 2001 14:22:42 +0000 From: "Martin Connor" <mjconnor(~hotmail.com> To: charb~presys.¢om aaar Mol'la, Sorry our regulations are not yet online, I would be glad to mail them to you or fax the sections on telecommunications. Your ordinace or fee schedule should be written to allow you to hire e×perts at the applicants expense to review the application. We hire an RF Engineer to review the application and be available during the public hearing process. That was key in a denial which went to litigation when ! worked for the Town of Litchfie[d CT. Our denial held up in Yedera] Court. as the technical information supplied by the applicant was woefully inadequate, We would not have known that without our own KF Engineer, I also recommend that your ordinance allow for bonding for removal of the tower and require annua} RF emission reports. These 2 provtsiorls' 'give a small degree of comfort to thc usually very unhappy neighbors, Marty Connor >From: Mona Linstromberg >To: MlConnor~hotmail.com >Subject: Telecommunications ordinance >Date: Tue, 30 Oct 2001 22:49:38 -0500 > >I am writing from Lane County, Oregon. Next Tuesday we will have our >first hearing before the Planning Commission on a proposed dral~ >ordinance for the siting of te[ecommunications facilities. We had >ordered copies of "model" ordinances to give us some clue as to what >other jurisdictions were doing. One was from Warren, CT. I called >today to find out the status of that ordinance and see if it had >withstood the test of time, I spoke with Dan McGinnis (sp?), and he >gave me your e-mail address, He mentioned that Torrington had been >involved in some litigation. I do not have that ordinance but would >appreciate if you could give me some background or point me in the right >direction for getting a copy of the ordinance and any court eases, >Thank you so very much. Mona > Subject: Re: Telecommunications ordinance Date: Wed, 31 Oct 2001 17:22:11 +0000 From: "Martin Connor' <mjconnor~hotma[I,com> To: charb~presys.com Its Mm-tin J Connor, AICP, City Planner, Torrington CT, We'll send you a copy of the rags today, 01/01/2002 1:47 PM RE: [Fwd: 'Re: Cull towers] Sub,leer: RS: IFwd: Re: Cell lowers] From: MUIR Susan 1,-~susan. l.mu~r~{!,c~.eugene.or,us.-, Date: Sat 13 Nov 2004 ] I._7:~., -0800 To: '"Mona & Craig'" <monaner0~g(~jpaeinfb.com> CC: Martha F Johwson ~.n~lbeelady~(~juno,com~,, LIDZ Jerome %jerom'e.s,l, idz~l~tmg.eom'> ,'r;;rr: ',loca & Cra],a I of I I 1/15/04 9:47 PM O / UNIVERSITY OF OREGON November 12, 2004 Mayor ~im Torrey Members of ~e City Council 77? Peri S~eet Eugene O~ 97401 De~ Ma~or Torrey ~d members of ~e City Council: We ~e providing ~e fol]o~ng ~ reference to ~e public he~ing No~ember 22, 2004 reg~ding ~e proposed cell tower ordin~ce. We appreciate ~e oppo~unity to review ~e proposed ord~ce as ~e ch~ges proposed ~ ~e ordin~ce could have a signific~t impact on ~e' U~iversity ~d ~e comm~ity. The proposed ordin~ce has been reviewed by ~e fo]lowing University staff: Dale Smi~, D~ector of Network Se~ices; L~ry Laitinen, Senior Network Eng~eer specializing ~ radio ~equency (~) systems ~d issues; ~d Dave B~ta, M~ager of Telecom Se~ices. There ~e presendy two cell sites on ~e UO c~pus ~d a ~d is about ~o be built. As such, we ~e very fmili~ ~ ~e regulatory process ~d issues s~rounding ~e locating of ceil sites. As ~e discussion evolves, we would be happy to con~ue to p~ticipate as requested. There ~e two issues of p~ticu]~ interest. 1) The concern ~at ~ radiation has a negative he~ ~pact; ~d 2) The ordin~ce's potential impact on ~e deplo~ent of ~e]ess co~unications Lec~ology in Eugene. It appe~s ~at ~e issue ~iving ~is proposed ch~ge is ~e poten~a] impact of ~ radiation on h~s. There is concer~ ~ some sectors of co--unity ~d nation, de ~at expos~e to radio waves c~ cause adverse he~ effects including brain c~cer. Some types of ~ radiation do have ~e potenUal to cause heal~ effects ~d, as -such, ~e ~CC does have specific M~imum Permissible Exposure (~E) ]~its o~ radia~on emissions ~at apply to all sites ~smitting ~y sort of ~, including broadcast radio ~d TV, cellul~ service, two-way radio, microwave, etc. These limits t~e ~e ~equencies involved ~d ~e poWer of ~e ~smitter into account. OFFICE OF THE PRESIDENT 1226 University of Oregon, Eugene OR 97403-1226 T (541) 346-3036 F (541) 346-3017 www. uoregon,edu An equa]-opportal~ity, ~ffirmative-action institution committed to cultural diversity and compliance witl~ the Americans with Disabilitiee Act However, based on past experiences with the chemical industry, for example, many people believe the FCC limits are driven by the industry and are not based on reliable science and may be too high, particularly for long-term exposure to low levels of RF. Other than MPE limits, the FCC regulations exclude health concerns from consideration when establishing cell sites. This is because there are no generally accepted scientific studies linking cell site RF radiation from sites in compliance with MPE limits to negative health effects. However the 1,000' setback from public schools and 800' setback from residences and residentially zoned property are arbitrarily chosen limits added precisely for that reason. These limits do not take any of the variables such as frequency, power, focus of the antenna or distance from the antenna into account. If this proposed ordinance had been in effect when the sites on the UO campus were established, every one of the sites would have required a zoning variance and, in all probability; virtually every existing cell site in Eugene would have required one. Since there were not complying alternatives for most of theie sites, most of them would have ultimately been approved but only after the added expense of the variance process to both the companies and the city. In addition, there are new wireless technological changes coming within the next two or three years that potentially will be very valuable to the community and the University; a poorly crafted ordinance could either greatly slow or eliminate all together our ability take advantage of them. These wireless technolOgies -- generically known as WiFi and WiMax -- have the potential to bring broadband internet access to homes, small businesses, and public agencies throughout the community at a lower cost and with simpler implementation than either the DSL or Cablemodem services offered by the telephone and Cable companies, now. The City, County and University, 'as well as private companies, are all considering these technologies as valuable tools to suPport our various constituencies. A WiFi/WiMax installation would require a dispersal of small transmitters and receivers throughout neighborhoods, probably two or three per square block. These devices would be about the size of a half-gallon milk container or smaller and would likely be mounted on existing utility poles or on street lights. The proposed ordinance does not distinguish between a small WiFi antenna and a 100 foot cell tower and could make implementation of this extraordinary service much more difficult. We believe a study including an inventory of potential sites, an inventory of existing sites, and a careful analysis of what might be needed in the future would help the city move forward with wireless services in a coordinated fashion and should precede any new ordinances on the location of cell sites: Sincerely, Dave Frohnmayer President NYSTROM Steven A From: ROSE Lynda L Sent: Wednesday, December 01, 2004 8:19 AM To: MUIR Susan L; NYSTROM Steven A Subject: FW: FYI- ..... ~ri9ina~ Messa9e ..... From: martha f johnson [mailto:mjbeelady~juno.com] Sent: Tuesday, November 30, 2004 3:01 PM To: mayorandcc@ci.eugene.or.us; monancraig@pacinfo.com Subject: 11/30/04 Dear Mayor and City Councilors, I am here today because my neighbors and I spent over 2 years and several thousand dollars fighting a cell phone tower in our River Road neighborhood. Since January of 2004 I have been living in the shadow of a so-called stealth design tower less than 150 feet from my house. Let me tell you that there is nothing stealthy about a 100 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. Current code leaves homeowners in mixed use areas vulnerable to property devaluation. This is why I researched and asked for setbacks from homes. The City Attorney does not believe that setbacks of 800 and 1000 feet will stand up in court, therefore he included a variance in the proposed revision, which essentially renders setback meaningless. The City Attorney's comments and the planning commission's analysis concur that the variance would become the standard pathway were the amendments adopted as written. I believe the city could codify shorter setback distances, giving the industry some room to work, while still allowing a buffer zone around homes and schools. I would like to see a code that has meaningful setbacks without a variance provision that gives industry the green light to site towers anywhere in town. I would like to see the telecom industry work as hard to be a good neighbor as it does to maximize profits. Minutes from a November 8 City Planning Commission meetin9 quote Ron Fowler, representin9 AT&T and Cingular. Mr. Fowler stated that his clients are seeking to site 8 new towers in Eugene next year, 6 in residential areas. He predicted that Eugene will see as many as 30 new cell tower applications in the comin~ year. With this kind of pressure on residential areas for the first time, I would urge the Council NOT to adopt the proposed revisions as written. The variance provision would allow an unprecedented incursion of towers into residential zones, leaving a~grieved homeowners little recourse other than lawsuits against the city and /or the site owner. Plannin~ staff has maintained that the current ordinance is serving the city pretty well, and might not need revision, based on the number of applications and the fact that most towers have been sited in commercial and industrial zones over the past several years. One 9rear strength of the current code is the 2000 foot separation it requires between new towers. If there is an onslaught of applications for new towers, the existing code will do far more to protect residential property values than the proposed variance. In conclusion, this attempt at a quick fix of the ordinance has not been effective. The one very positive aspect of the proposed amendments is the chan~e to subsection (11), which would make independent technical review a part of every telecom application. If it is possible for Council to pick and choose, I would recommend adoptin9 this chan~e and sendin~ the rest of the ordinance back to Planning Commission for a comprehensive rewrite. Respectfully submitted, ! Martha F Johnson 110 East Hilliard Lane Eugene 97404