HomeMy WebLinkAboutItem A - Cell Tower OrdinanceEUGENE CITY COUNCIL
AGENDA ITEM SUMMARY
Action: An Ordinance Concerning Cell Towers, and Amending Section 9.9750 of the
Eugene Code, 1971
Meeting Dates: December 8, 2004 Agenda Item Number: A
Department: Planning and Development Staff Contact: Susan Muir and Jerome Lidz
www. ci. eugette, or. us Contact Telephone Number: 682-5208 or 682-5080
ISSUE STATEMENT
On December 6, 2004, the council will hold a public hearing on proposed amendments to EC 9.5750,
regulating the siting of cell towers. Action on this item is scheduled for December 8, 2004.
BACKGROUND
Please refer to the Agenda Item Summary and draft ordinance prepared for the November 22, 2004, City
Council public hearing. That public hearing was opened on November 22 and continued to a date
certain, December 6, 2004. This Agenda Item Summary was written prior to the public hearing and
does not address any testimony that may be submitted after the distribution of the original council
packet.
As reported in the original Agenda Item Summary, 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. 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.
If a provider challenged the proposed setbacks in court, as at least one provider has threatened, the cost
of defense would include not only the attorneys' time but also retaining expert engineers to consult and
testify on the effect of setbacks on providers' ability to provide service. The litigation would also
require extensive legal research and briefing to the court, because there are many recent cases involving
regulation of cell tower siting, but the law is not yet well settled. The City Attorney's rough estimate of
the cost of defending the setbacks is $100,000. A separate legal challenge to a prohibition on
interference with emergency communications would be less expensive to defend, but the risk of an
adverse result would be greater.
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\M041208\S041208A. wpd
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
1. Approve the draft ordinance as proposed in Attachment A. That would amend Eugene 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 and from all residential zones; (2) codify the requirement for independent
consultant review and verification, to be paid for by the applicant; and (3) codify zero tolerance for
interference with public safety communications.
2. Adopt only the requirement that an applicant pay for an independent consultant review and
verification, as recommended by the Planning Commission.
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. The review would include, but not
be 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 and not initiate a review process at this time.
CITY MANAGER'S RECOMMENDATION
The City Manager recommends that the council adopt the amendment described in Option 2 above, to
codify the requirement for independent consultant review and verification. The City Manager also
recommends that discussion regarding funding and prioritizing the work program described in option 3
occur during subsequent discussions regarding the entire Planning Division work program in light of
Measure 37.
SUGGESTED MOTIONS
1. Move to adopt Version B of the proposed ordinance, which would adopt the Planning Commission
recommendation as outlined in #2 under Council Options.
2. Move to direct the City Manager to return to the council with a proposal for a comprehensive review
of EC 9.5750, as described in Option #3 above, including a source of funding and a proposed
priority for the review, in conjunction with the next City Council work session concerning the
Planning Division work program.
ATTACHMENTS
A. Ordinance to amend EC 9.5750(7), (9) and (11). (Version A)
B. Ordinance to amend EC 9.5750(11) only. (Version B)
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\M041208\S041208A. wpd
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 AgendasLM041208\S041208A-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 AgendasLM041208\S041208A-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 AgendasLM041208\S041208A-attA. doc
ATTACHMENT B
VERSION B
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 (11) of Section 9.5750 of the Eugene Code, 1971, is
amended, to provide:
9.5750 Telecommunication Devices-Siting Requirements and Procedures.
(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
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
L:\CMO~004 Council Agendas\M041208\S041208A-attB.doc