HomeMy WebLinkAboutOrdinance No. 20072ORDINANCE NO. p 7~,.
AN ORDINANCE EXTENDING THE MGRATGRIUM UN BUILDING AND
LAND USE PERMITS FGR TELECUMMUNICATIUN TGWERS AND
ANTENNAS WITHIN THE CITY AS IMPUSED BY ORDINANCE ND.
ZDD63; AND DECLARING AN EMERGENCY,
The City Council of the City of Eugene finds that:
A. Pursuant to the authority of SRS 197.505 to 197.540, and based on the findings
contained therein and in Exhibit A thereto, Ordinance No. 20063 was passed by the City Council
and approved by the Mayor on September 16, 1996 imposing a 120 day moratorium on new
applications for building and land use permits which seek to site or construct towers or antennas for
wireless communications providers in order to allow the City an opportunity to complete its
development of a local telecommunications plan. That moratorium will expire on January 14,1997.
B. The conditions that necessitated the imposition of a moratorium continue to exist, and
the findings contained in ordinance No. 20063 and Exhibit A thereto should be, and are, readopted
in support of this Ordinance to demonstrate the need for a moratorium.
C. The City has made significant progress in development of its telecommunications
plan and implementing ordinances, the adoption of which will alleviate the problems giving rise to
the moratorium. 0n September 26,1996 the Council Committee on Telecommunications ~"CCT"}
received input on telecommunications policies from providers and reviewed the wireless siting study
scope. The conceptual draft of the telecommunications ordinance and draft project warkplan were
reviewed by CCT on October 10,1996. 4n October 24,1996 the CCT received public input on
telecommunications policies, reviewed the Fiber optic Group progress report, and reviewed the
legislative policies. The final telecommunications policies were revised and approved by CCT on
November 7,1996, with direction provided for development of the telecommunications ordinance.
Ordinance -1
Gn November 14, 1996 the CCT reviewed the City of Eugene municipal needs, a summary of
community needs, and discussed telecommunications ownership options. The City Council
approved the telecommunications policies on November 20, 1996, and considered the EwEB
presentation of the Fiber optic Group project. ~n November 26,1996 the City Council took action
to complete and adapt the legislative policies. The CCT reviewed both the wireless siting study
progress report and an overview of a conceptual draft of land use code amendments on November
27,1996.
D. The CCT and City Council have adopted a schedule for completing the necessary
actions within 45 days of the expiration of the current moratorium, A work session on the non•land
use telecommunications ordinance has been scheduled by CCT for December 5, 1996.
Consideration of a consultant report on the Fiber optic Group and the City Telecommunications
Purchasing and Investment Plan has been scheduled by CCT on January 9,1997. A further session
has been scheduled by CCT on January 23,1997 to approve the Siting Study.
E. The City Council has scheduled a work session on the non-land use
telecommunications ordinance and Fiber optic Group discussion on January 22,1997, with a public
hearing on the ordinance scheduled for January 27,1997. Action on the Fiber Optic Group decision
and non-land use telecommunications ordinance is scheduled to occur on January 29, 1997. A
public hearing before the City Council on the wvreless bland use} code amendments is scheduled for
February 10,1997, with action scheduled by the City Council for February 19,1997.
F. As reflected above, extending the moratorium would provide members of the public
and telecomunicatians providers the opportunity to review the draft code amendments prior to action
being taken. If these matters were required to be scheduled prior to the expiration of the moratorium
on January 14,1997, only one week would be available between the Planning Commission public
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hearing and action on the proposed code amendments; and the City Council would be required to
conduct its public hearing and take action on the code amendments the same evening.
G. Because of the level of interest in these proposed code amendments, it would be in
the public interest to extend the moratorium an additional 45 days, from January 15, 1997 to
February 28,1997, in order to allow the public, Planning Commission, and City Council additional
time to review the proposed code amendments.
NOW, THEREFORE,
THE CITY OF EUGENE DUES ORDAIN AS FOLLOWS:
Section 1. Based on the above findings, and the Endings contained in Exhibit A to
Ordinance No. 20063, which are hereby readopted in support of this Ordinance, and pursuant to the
authority of ORS 197.5204}, the moratorium as imposed in Ordinance No. 20063 on new
applications for building and land use permits which seek to site or construct towers or antennas for
wireless communications providers is hereby extended for an additional 45 days, from January 15,
1997 to February 28,1997.
Section Z, That the matters contained herein concern the public health, welfare and safety
and therefore, an emergency is hereby declared to exist, and this Ordinance 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 by two-thirds of all members of
the City Council,
Passed by the City Council this
p2 ~ day of ,1996
City Record r
Approved by the Mayor this
~.D
____~ day of ,1996
..-~~
Mayor
Ordinance - 3
EXHIBIT A TO ORDINANCE NO. 20063, SEPTEMBER 16, 1996
FINDINGS IN SUPPURT aF M4RAT(~RIUM GN
LAND USE AND BUILDING PERMITS F(]R
TELECU CATION FACILITIES
GENERAL FINDINGS
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 as they do not unreasonably discriminate
among equivalent services and do not prohibit or have the effect of prohibiting service.
2. Over the past several years, even before the Act's passage and its removal of
regulatory barriers, a host of new wireless telecommunications technologies have been developed.
Telecommunications services include paging service, cellular telephone service, and PCS. All
of these wireless technologies require, to varying degrees, either the construction of transmitting
equipment placed on towers} ar 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 Nall Street Journal,
the number of cellular and PCS antennas, for example, could grow by more than six times -- from
18,000 nationwide to 115,004 -- 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" may be .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 tulle --each 50' to 150' tall. The size of Eugene exceeds 40 square
miles, potentially resulting in more than 104 towers. Testimony from the public hearing
suggested that this number was calculated incorrectly. That testimony asserts that correct
calculations would produce a number of only 12.7 towers or sites per_urovider. Even if this is
true, the same testimony acknowledges that there may be six providers, resulting in mare than 75
towers or sites. More importantly, the testimony ignored the basis far the calculation ~i.e., one
tower every two square miles}, and assumed, instead, a "cell" two miles in diameter.
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5. It is technologically possible for cellular, PCS and specialized mobile radio
~"SMR"}providers to share tower structures. There are limits, however, to how 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 d0 to 200 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 an 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. 1t
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.
7. 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 ca-location. There are several factors that determine feasibility of co-location, including
a tower or building's structural capacity; radio frequency interference; mechanical or 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 testifted that each provider
has its own unique technology, making co-location not necessarily possible.
8. The City already has begun development of a telecommunications plan to address
these and other telecommunications issues. Gn May 20, 199b, the City Council conducted a
work-session an the development of a City telecommunications plan. The Council appointed a
Council Committee on 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
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analyses and tasks . The telecommunications plan will include at least three major 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 community needs and
analysis of how those needs can be met, The City anticipates spending at least $55,000 to contract
with consultants to assist the City with the development of the plan. 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 ~LCGG} to assist with the plan's development. Finally, the City recently hosted a
Conference on the Telecommunications Act of 1996 to which local governmental entities
including Lane County, Springfield, the University of Oregon, Eugene Water and Electric Board,
Springfield Utility Board, LCGG, 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
15 applications have been filed for conditional use permits far new telecommunications towers and
antennas .
10. Consistent with the Telecommunications Act, the City intends to allow all wireless
telecommunications providers 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 for 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
S rint S estrum 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. GRS 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
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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 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 pppulation distribution; and
~. That the city * * * proposing the moratorium has determined that
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.
12. 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 loo or more towers and antennas to serve the City's
4~+ square miles. The height of towers can exceed 154 feet, and have a significant and negative
visual and aesthetic impact on 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 Z 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 loo, 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 144 or more towers, since not all of Chase will be constructed in the next 12o days. At this
point, it is unknown how many providers will file applications, and far 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
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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 Eugene Cade
~"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 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, thereby 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 co-location possible. At present, the criteria contained in EC 9.702~a} related to
compatibility and minimization of impact will a11ow consideration of some of the issues related
to siting, design, height and ca-location. It will a11ow the City to require co-location where
technologically possible. However, the conditional use permit process SEC 9.69 - 9.722} could
not possibly enable the City to fu11y 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. In 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. 4rily 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 far one PCS provider, without also
exempting towers for other similarly situated telecommunications providers; to do so would
violate the non-discrimination requirement of that Act.
15. There are no satisfactory alternative methods of achieving the objectives of the
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moratorium. As noted above, the existing conditional use permit process does not allow the CiJ''l~~~^~f1]
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tune to develop a coordinated and consistent approach that ensures all similarly situated providers
are treated in exactly 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 another affected local governments, including shifts in demand far
housing or economic development, public facilities and services and buildable lands, and the
overall impact of the moratorium on population distribution. 1n 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 an 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.
17. 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 LC4G, 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 LCDG to assist in the
development of the Plan, The City Council believes that 120 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 120-day
time period is sufftcient. The Council disagrees. This time period is sufficient to adapt the plan.
It 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
muumal impact and reasonable compatibility.
1 S . Based on the foregoing ftndings, 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 the 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. In 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.
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[NEW APPLICATIONS ONLY)
ORDINANCE NO. aob~
AN ORDINANCE DECLARING AND IMPOSING A
MORATORIUM ON BUILDING AND LAND USE PERMITS
FOR TELECO CATION 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.SO5 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
for the siting and construc~on 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 for wireless communications
Grdinance -1
providers. This moratorium shall not apply to any land use application which had been f led rior
p
to.September X3,1996, or to a related building permit application for construction of the same tower
or antenna covered by the land use application.
Section ~. This moratorium shall not appiy to towers or antennas which are dedicated
exclusively ta, 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 i 20 days after the
effective date of this ordinance.
Section 4. That the matters contained herein concern the public health, welfare and safe
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and therefore, an emergency is hereby declared to exist, and this ordinance shall become effective
immediately upon its passage by the City Council and approval by the Mayor, retention b the
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Mayor for mare than ten days, or readoption over a mayoral veto by two-thirds of all members of
the City Council.
Passed by the City Council this
~~day of ~ 996
`~ ~- ~/
City Recorder
Approved by the Mayor this
(,(~~ day of ,1996
Mayor
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