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HomeMy WebLinkAboutOrdinance No. 20063[NEW APPLICATIONS ONLY) ORDINANCE NO. aDb~ AN ORDINANCE DECLARING AND IMPOSING A MORATORIUM ON BUILDING AND LAND USE PERMITS FOR TELECOMMUNICATION TOWERS AND ANTENNAS WITHIN THE CITY OF EUGENE, AND DECLARING AN EMERGENCY, The City Council of the City of Eugene finds that: A, ORS 197.505 to 197.540 authorize the City to declare and impose a moratorium on construction and land development if the City can demonstrate a compelling need. Such a demonstration must be based upon reasonably available information. B. For the reasons described in Exhibit A attached hereto, and based on the written information contained in the staff report and testimony presented during the Council meeting, a compelling need does exist to establish ashort-term moratorium on building and land use permits far the siting and construction of towers and antennas for wireless communications providers, The City is in the process of developing a local telecommunications plan. Until that plan is completed, the City should not accept new applications for building or land use permits for the siting or construction of such telecommunication towers and antennas. NOW, THEREFORE, THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS: Section 1. Based on the above findings, and the findings attached as Exhibit A hereto, which are hereby adopted, a moratorium is hereby declared and imposed on new applications for building and land use permits which seek to site or construct towers or antennas far wireless communications Ordinance -1 providers. This moratorium shall not apply to any land use application which had been filed prior to September 13,1996, or to a related building permit applicatian for construction of the same tower or antenna covered by the land use application. Section 2. This maratorium shall not apply to towers or antennas which are dedicated exclusively to, and required for, the Emergency Broadcast System, to the extent that federal law mandates installation of the towers or antennas within the next six months.. Section 3. The moratorium adopted pursuant to Section 1 shall expire 120 days after the effective date of this ordinance. Section 4. That the matters contained herein concern the public health, welfare and safety and therefore, an emergency is hereby declared to exist, and this Crdinance shall become effective immediately upon its passage by the City Council and approval by the Mayor, retention by the Mayor for more than ten days, or readoption over a mayoral veto bytwo-thirds of aII members of the City Council. Passed by the City Council this ~~day of ~ 996 ~--` City Recorder Approved by the Mayor this (,(off day of ,1996 t~~~~~~,~i~ Mayor Ordinance - 2 FIl~D.TNGS IN SI~PPORT OF MGRATORIUM GN LAND USE AND BUILDING PERMITS FGR TELECOMMUNICATION FACILITIES GENERAL FINDINGS ~VEW APPLICATIQNSJ' 1. In February 1996, the Telecommunications Act of 1996 the "Act"} became law. The Act is designed to reduce regulatory barriers and encourage competition among all types of telecommunications providers. The Act, however, also expressly preserves local zoning authority over wireless telecommunications facilities, such as antennas and towers used for cellular or personal communication services ~"PCS "}. Among the provisions of the Act is Section 704, which added 47 U.S.C. ~ 332~c}~7}, entitled "Preservation of Local Zoning Authority. " Section 704 expressly allows local zoning regulations as long a5 they do not unreasonably discriminate among equivalent services and do not prohibit or have the effect of prohibiting service. Z. Over the past several years, even before the Act's passage and its removal of regulatory barriers, a host of new wireiess telecommunications technologies have been developed. Telecommunications services include paging service, cellular telephone service, and PCS . All of these wireiess technologies require, to varying degrees, either the construction of transmitting equipment placed on towers} or receiving equipment such as antennas}, or both. The growth of these services could result in a proliferation of new telecommunication towers and receivers throughout the City's landscape -- far more than exist under alder technologies such as radio telephone service and existing cellular and paging services. 3. According to recent articles in the Washington Post and The wall Street Journal, the number of cellular and PCS antennas, for example, could grow by more than six times -- from 1S,0o0 nationwide to 115,000 -- by the end of the decade. Several new PCS companies already have contacted the City to inquire about constructing towers in this area. In addition to the new PCS providers made possible by the Act, cellular providers also are likely to seek installation of more antennas and towers to expand their services. 4. The City is likely to eventually have as many as five or six PCS-type providers. PCS "cells" maybe .5 to 2 miles in diameter versus 3 -15 miles for conventional cellular. One major PCS venture has proposed for another city} one tower every two square miles. If each provider sited its facilities independently, six PCS-type providers could result in approximately 3 separate towers per square mile -- each So' to 150' tall. The size of Eugene exceeds 40 square miles, potentially resulting in more than loo towers. Testimony from the public hearing suggested that this number was calculated incorrectly. That testimony assert that correct calculations would produce a number of only 12.7 towers or sites er rovider. Even if this is true, the same testimony acknowledges that there may be six providers, resulting in more than 75 towers or sites. More importantly, the testimony ignored the basis for the calculation ~i.e., one tower every two square miles}, and assumed, instead, a "ce11" two miles in diameter. 5. It is technologically possible far cellular, PCS and specialized mobile radio EXHI@IT -1- ~"SMR"} providers to share tower structures. There are limits, however, to haw many base station transmitters a single tower can hold, and different tower structures have different limits. Moreover, there are at least three general types of transmitting and receiving antennas used today in the wireless communications technology, including whip antennas, panel antennas, and dish antennas. There also are at least three types of antenna support-structures used today to place antennas at desired heights: lattice towers, monopoles, and building-attached facilities. Lattice towers range from 64 to 204 feet in height, and generally can accommodate a variety of users, including cellular, SMR, PCS and paging companies. Monopoles range in height from 25 to 150 feet, and also can support a variety of telecommunication providers. Building-attached antennas likewise can support all three technologies, with antennas mounted on the roofs of buildings, as well as on the sides of buildings. Antennas also can be mounted on other structures such as water tanks, billboards, church steeples, and similar structures. 6. Given the range of technological options for locating antennas for the various wireless telecommunications providers, it is possible far providers to co-locate or share facilities, and to be somewhat flexible in~ terms of where the antennas are located. Through planning, it is possible to meet the providers' needs for antenna locations and service coverage, in a way which minimizes the impact on the community. Through proper siting and co-location, the number of towers may be minimized by providing facilities which may be shared by several providers. Zt also is possible to minimize the impact of any single tower through the use of a design which has less aesthetic impact than other designs. ~. In order to minimize the number of towers as well as the impact of any single tower, yet accommodate all wireless telecommunication providers which seek to place telecommunications facilities within the City, time is needed to study the technology and develop a plan for this area. A City-wide siting analysis is needed to determine where the telecommunications facilities should be located in order to cover the entire City while, at the same time, minimizing proliferation of towers and antennas. The siting analysis also can identify where telecommunications towers currently are located, and where these existing towers could support co-location. There are several factors that determine feasibility of co-location, including a tower or building's structural capacity; radio frequency interference; mechanical ar electrical incompatibilities; height; and technological differences among providers. To determine the full potential of co-location, an analysis of technology is required. The testimony from the public hearing certainly supports this need for information and analysis. The providers themselves apparently cannot agree on whether co-location is feasible. Several providers testified that they are interested in co-location, and that it is feasible. Another provider testified that each provider has its own unique technology, making co-location not necessarily possible. S, The City already has begun development of a telecommunications plan to address these and other telecommunications issues. Cn May 24, 1996, the City Council conducted a work-session on the development of a City telecommunications plan. The Council appointed a Council Committee an Telecommunications ACCT} to work with staff to develop a set of policy recommendations for the City Council. The CCT already has held two meetings, adopted scoping statements for the work, begun to develop the draft policy statements, and given direction for staff analyses and tasks. The telecommunications plan will include at least three ma~ar components: ~1} development of an ordinance, zoning and right-of way policies; ~2} determination of a fair franchise fee for the use of the right-of--way; and ~3} identification of _Z- community needs and analysis of how those needs can be met, The City anticipates spending at least $55,040 to contract with consultants to assist the City with the development of the Ian. P These consultants include a Washington, D.C. law firm with specialists in telecommunications law, and a Seattle engineering firm with specialists in telecommunications technology. In addition to city staff assigned to work on the project, the City also is using the services of the Lane Council of Governments ~LCOG} to assist with the plan's development. Finally, the City recently hosted a Conference on the Telecanununications Act of 1996 to which local governmental entities including Lane County, Springfield, the University of Oregon, Eugene water and Electric Board, Springfield Utility Board, LCOG, and school districts} were invited. 9. Since the passage of the Act in February, the City has received numerous inquiries from telecommunications providers about construction of telecommunications facilities within the City, including calls from ~1} cellular, paging, and PCS providers, ~2} independent non-providers who want to lease space to telecommunication providers, and ~3} land use consultants and attorneys representing unnamed companies and. individuals. Within the past several weeks, almost IS applications have been filed for conditional use permits for new telecommunications towers and antennas. I0. Consistent with the Telecommunications Act, the City intends to allow all wireless telecammunicationspioviders to locate facilities and do business within the City. with planning, issuance of necessary permits for such providers can be streamlined, and therefore expedited. The City requires time, however, to study the feasibility of requiring co-location of facilities and imposing limits on the type and location of telecommunications facilities. As noted in paragraph 7, even the providers do not all agree on the feasibility of requiring co-location. Time also is needed to develop the telecommunications plan. A short-term moratorium on building and land use permits far telecommunications facilities would provide the City Council with the time to adopt a telecommunications plan and develop implementing ordinances that will meet the needs of both the telecommunications providers and the people who reside and work in the City. In Sprint. SpectrumL L.P,.,,.,,v. Ci~,~,.-of Medina, a federal court concluded that such ashort-term moratorium is consistent with Section 704 of the Telecommunications Act. Based on the general findings above, and the specific findings below, the City Council finds that such ashort-term moratorium also is consistent with state statutes governing moratoria. ORS 197.520(3) FINDINGS 11. ORS 197.5203) provides that a local government may impose a moratorium based on a demonstration of "compelling need. " Such a demonstration must be based upon reasonably available information, and include findings. A. That application of existing development ordinances or regulations and other applicable law is inadequate to prevent irrevocable public. harm from development in affected geographical areas; B, That the moratorium is sufficiently limited to ensure that a needed supply of affected housing types and the supply of commercial and industrial facilities within or in proximity to the city * * * are not unreasonably restricted -3- by the adoption of the moratorium; C. Stating the reasons alternative methods of achieving the objectives of the moratorium are unsatisfactory; D. That the city * * * has determined that the public harm which would be caused by failure to impose a moratorium outweighs the adverse effects on other affected local governments, including shifts in demand for housing or economic development, public facilities and services and buildable lands, and the overall impact of the moratorium on population distribution; and E. That the city * * * proposing the moratorium has determined that sufficient resources are available to complete the ~.eveloprnent of needed interim or permanent changes in plans, regulations or procedures within the period of effectiveness of the morato~~ium. I2. Application of existing development ordinances or regulations and other applicable laws is inadequate to prevent irrevocable public harm from development in affected geographical areas. For the reasons discussed in the general findings, it is likely that the City is facing a proliferation of wireless facilities, with up to 140 or more towers and antennas to serve the City's 40+ square miles. The height of towers can exceed 150 feet, and have a significant and negative visual and aesthetic impact an the land use environment. That harm is irrevocable, for once permitted and constructed, the towers would remain for many years. Moreover, under the Telecommunications Act, the City cannot discriminate among similarly situated providers. Therefore, it is not possible to allow a few providers to build just 1 or 2 facilities, without then opening up the City to the proliferation which, the Council finds, would significantly and negatively and irrevocably harm the public. This harm exists whether the number of towers and antennas is 100, the 75 or so that one provider calculated see paragraph 4}, or even substantially less than that number. With the current lack of knowledge about telecommunications technology, these facilities could be more numerous than necessary, located on sites which cause greater impact than other sites, and designed in a way which causes greater aesthetic impact than necessary. Public testimony suggested that the City cannot base the moratorium on the possibility of 100 or more towers, since not all of those will be constructed in the next 120 days. At this point, it is unknown how many providers will file applications, and for how many sites. Absent a moratorium, a number of other providers could file applications, which the City would have to act upon based on the existing code, rather than on any new code language which the Council may adopt. 13. Current ordinances are not adequate to prevent that irrevocable harm. This new technology and these new telecommunications facilities were not contemplated at the time that the Council adopted the current ordinances. Currently, wireless communications facilities such as towers, antennas, etc. } can be permitted only through the conditional use permit process, which can authorize uses not otherwise permitted such as uses resulting from new technologies and therefore not contemplated at the time the code was adopted}. Section 9.492 of the Eu ene g Code ~"EC "} provides that uses not otherwise authorized by the Eugene Code, or for which there is ambiguity concerning the appropriate procedure, may be permitted only through the conditional use permit process. wireless communications facilities such as towers and antennas _q,_ fall within this category. Testimony by telecommunications providers asserted that the City's requirement that providers obtain a conditional use permit SCUP} fully protects the City, tl-~ereby obviating any need for the moratorium. The providers supported their assertion by acknowledging that through the CUP process, the City can require co-location and the use of tower designs and technology which makes ca-location possible. At present, the criteria contained in EC 9.702~a~ related to compatibility and minimization of impact ~~ will allow consideration of some of the issues related to siting, design, height and co-location. 1t will allow the City to require co-location where technologically possible. However, the conditional use permit process SEC x.696 - 9.722} could not possibly enable the City to fully protect against the proliferation of wireless communications facilities at this time. Absent the City-wide siting analysis covering the various forms of wireless communications providers including cellular, PCS, SMR and paging services}, it will not be possible to determine whether a proposed site is the best site in terms of serving other providers as well, 1n addition, absent a study of the various technologies related to tower construction, it will not be possible to evaluate in a comprehensive manner whether the proposed design is the one best able to accommodate the maximum number of wireless communications providers. Cnly with the gathering of additional information, and possibly a change in the zoning code, can the City ensure that all providers are able to construct the facilities they seek in locations and on towers that minimize the number and impact of those facilities on the public. At least one provider has suggested that the City Council is adopting a moratorium in order to require providers to locate on City-owned sites. Any such suggestion is false. Neither the Council nor the CCT has made any decisions, or even had any discussion, about limiting tower locations to City-owned sites. 14. The moratorium is sufficiently limited to ensure that a needed supply of affected housing types and the supply of commercial and industrial facilities within or in proximity to the City are not unreasonably restricted by the adoption of the moratorium. Indeed, the moratorium is limited to permitting and construction of towers and antennas for wireless telecommunications. The moratorium does not affect in any manner the supply of housing types, or the supply of other commercial or industrial facilities. one provider testified that PCS wireless communications facilities are "needed commercial" facilities that must be allowed to be constructed, since there are no such facilities today. There are, however, cellular facilities already located within, and in proximity to, the City. There is no evidence of an immediate need for PCS services, A 120-day delay in the construction of towers or antennas to provide their new technology will not unreasonably restrict commercial facilities. The City cannot, consistent with the Telecommunications Act, exempt from the moratorium towers for one PCS provider, without also exempting towers for other similarly situated telecommunications providers: to da sa would violate the non-discrimination requirement of that Act. 15. There are no satisfactory alternative methods of achieving the objectives of the moratorium. As noted above, the existing conditional use permit process does not allow the City time to develop a coordinated and consistent approach that ensures all similarly situated providers are treated inexactly the same manner, and to ensure that no more wireless facilities are constructed than necessary to serve all providers desiring access to the City. „ . 16. The public harm which would be caused by failure to impose a moratorium outweighs the adverse effects on other affected local governments, including shifts in demand for housing or economic development, public facilities and services and buildable lands, and the -5- overall impact of the moratorium on population distribution. ~n fact, the imposition of the moratorium should have no adverse effect on other local governments. Nor will the moratorium cause any shift in the demand for housing or economic development, public facilities ar buildable lands. The moratorium will not result in any impact on population distribution. Given the weight of public harm caused by the failure to impose a moratorium, and the absence of adverse effects, the public harm clearly outweighs adverse effects. ~ ~~ ~7. Sufficient resources are available to complete the development of needed interim or permanent changes in plans, regulations or procedures within the period of effectiveness of the moratorium. The Council already has appointed the CCT to develop policies and ordinances. The CCT has conducted its first set of meetings, and has more meetings scheduled throughout the fall. The City has already contracted with LC~G, a Washington, D.C. law firm and Seattle engineering firm to assist with the development of the policies and ordinances, and to provide the technological information such as siting analyses, co-location capabilities, etc. At Least $85,000 has been earmarked to contract with the D. C. and Seattle consultants. A staff team is assigned and has been working on the issues, The City also has contracted with LC(~G to assist in the development of the Plan. The City Council believes that ~ZO days is a sufficient amount of time to complete the necessary analyses, adopt a telecommunications plan, and develop any needed code changes. Testimony suggested that the City cannot, in good faith, assert that the X20-day time period is sufficient. The Council disagrees. This tune period is sufficient to adapt the plan. ~t also is sufficient to complete the needed analyses on siting and technology issues. That information on this new technology -- information presently lacking -- is needed in order to act on a CUP application to determine whether the tower's height, design and location will result in minimal impact and reasonable compatibility. ~$. Based on the foregoing findings, a "compelling need" for a moratorium can be justified under state law both for new applications, as well as pending applications. Nevertheless, pending applications should be excluded from die moratorium. Such an exclusion is consistent with the Council's previous practice of excluding pending applications from the moratorium on tax exemptions for multi-unit rental housing. ~n addition, state law requires that pending applications be processed according to the code Language in effect at the time the completed application was filed. Thus, with respect to pending applications, a moratorium would enable the City to develop the information base, but would not permit the City to change the criteria for approval. A moratorium, however, would enable the City to change those criteria for applications not yet filed. These differences between pending and new applications justify applying the moratorium to new applications only, and not to the pending applications. gblglccitylteiecam mlmora-fig. new