6.15. SR 05-19-1997~ity of
·
,lver
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
Mayor and City Council
.I
Scott Harlicker, Planning Assistant~
May 19, 1997
City of Elk River Request for
Ordinance Amendment Relating to
Telecommunication Towers and
Antennas, Public Hearing Case No.
OA 97-7
Request
Consider a request by the City of Elk River for an ordinance amendment
regulating telecommunication towers and antennas.
Attachments
Ordinance No. 97-__
Existing ordinance
· Section 900.18 Schedule of dimensional regulations
· "Wireless World", an article on the PCS industry from Planning magazine
dated December, 1996
· Section 704 of the Telecommunications Act of 1996 cover facilities siting
· Background information on zoning authority, planning and building codes
Background
Federal Actions
The Federal Government recently auctioned off new licenses for radio
frequencies to allow for the expansion of the wireless communication
industry. The new licenses went to companies that will be providing a new
type of wireless communication service called personal communication
system (PCS). PCS is similar to cellular phones but operate at different
frequencies and require more communication facilities.
The Federal Government also recently passed the Federal
Telecommunications Act. Language in the Act reads, "Except as provided in
this paragraph, nothing in this act shall limit or affect the authority of a
13065 Orono Parkway · P.O. Box 490 · Elk River, MN 55330 · (612) 441-7420 · Fax: (612) 441-7425
Memo to the Mayor and City Council/OA 97-7 Page 2
May 19, 1997
.....................
State or local government or instrumentality thereof over decisions regarding
the placement, construction, and modification of personal wireless service
facilities." The Act does place three important limitations on local
governments: 1) local governments shall not unreasonably discriminate
among providers of functionally equivalent services; 2) local governments
shall not prohibit or have the effect of prohibiting the provision of personal
wireless services, and 3) no local government may regulate the placement,
construction or modification of personal wireless facilities on the basis of the
environmental effects of radio frequency emissions to the extent that such
facilities comply with the FCC's regulations concerning such emissions.
PCS Industry
The expansion of the wireless telecommunications industry will result in the
proliferation of new telecommunication towers. Each of the providers will
have to set up its own antenna and tower sites. As the demand for PCS
increases so will the need for additional antenna locations.
The PCS providers are now in the process of setting up their networks and
locating appropriate sites for the cells. Each cell consists of antennas, a tower
and transmitting equipment. Each tower has it's own services area and once
a customer leaves that service area the call is automatically transferred to
the next tower. Because of the nature of the PCS signal, service areas for
each tower are smaller than those associated with cellular phones resulting
in the need for more towers.
Providers typically have 4 criteria which need to be met when looking for
available sites:
the site must meet locational requirements to be able to send and receive
signals within the service area;
the site must be physically buildable;
· the provider must be able to reach a lease agreement with the landowner,
· the applicant has to be able to get the needed local approvals such as
zoning, planning and building.
Current Ordinance
The current procedure for handling requests for antenna towers involves
rezoning the subject property to Antenna Tower Overlay District (AT) and
requiring a conditional use permit for the tower. The decision to approve a
rezoning request is based on upon compatibility with surrounding land uses.
Along with the all the regulations applicable to the underlying zoning
district, antenna towers are subject to 8 standards as outlined in the AT
Overlay District. (see attached ordinance)
k\elkriver\sys\shrdoc\planning\scott\towercc.doc
Memo to the Mayor and City Council]OA 97-7
May 19, 1997
Page 3
The City recently approved 2 requests for PCS antennas and towers. AT&T
was granted a conditional use permit for a 199 foot tall tower along Highway
10 just north of 173rd Street. APT was also granted a conditional use permit
for a 165 foot tall tower on the Industrial Hardfacing property on County
Road 13. These two applications made it clear that the current ordinance
needed to be updated to better reflect the new telecommunications
technology.
Proposed Ordinance
Staff is suggesting the revised ordinance work within the existing framework
of requiring a rezoning to Antenna Tower Overlay District (AT) and a
conditional use permit for the actual tower. That process would stay
the same; however, performance standards would be added to address the
issues that have come up during the review of APT's and AT&T's requests for
cellular towers and antennas.
Antenna Tower Overlay District
The AT Overlay District would allow the construction of towers anywhere in
the city. The criteria for rezoning would include the following:
The compatibility of the rezoning request with surrounding land uses
· That the proposed rezoning is necessary in order to provide effective
wireless telecommunication coverage for the City
· The rezoning is in accordance with the Comprehensive Plan for the City
This will allow some flexibility in located towers based on adjacent land uses
and service area requirements.
Co-Location
To encourage co-location, all commercial wireless telecommunication towers
would be required to provide for co-location for additional users based on the
proposed height of the tower. Towers 100 feet and higher would be required
to provide for 2 additional users and towers 60 to 100 feet would be required
to provide for one additional user. Applicants would have to prove that the
proposed antennas can not be accommodated on an existing or approved
tower within a one mile search radius (1/2 mile for towers under 120 feet and
1/4 mile for towers under 80 feet).
In addition to the above requirements, requests to locate on existing or
approved structures could be approved administratively without requiring a
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Memo to the Mayor and City Council/OA 97-7 Page 4
May 19, 1997
conditional use permit or a rezoning to AT. The request would require site
plan review and a building permit and would still have to comply with all
applicable sections of the code.
Construction and Design Requirements
Towers and antennas would be required to meet certain construction and
design standards. Construction requirements include compliance with
building and electrical codes, security measures, and one tower per parcel
with a minimum lot size of one acre. Design requirements include designing
the tower to blend in with the surrounding environment and requiring a
mono pole design. No signs or advertising would be allowed.
Illumination would be limited to what was required by federal or state
statute; the placement of lights on a tower would be allowed if they were
going to be used to illuminate a ball field or parking lot. This lighting would
be allowed at the discretion of the city, not the applicant.
Tower Setbacks and Height
Setbacks
It is recommended that the towers be setback a distance equal to the height
of the tower and the height should not exceed 150 feet. The thinking behind
the setback requirement was that it would allow for a margin of safety should
the tower collapse. Other communities deal with setbacks in a variety of
ways:
Setback Requirements From Property Lines
Ramsey
Carver Co.
Brooklyn Center
Bloomington
Richfield
Chanhassen
Rosemount
underlying zone requirements
50 feet from property lines
underlying zone requirements
underlying zone requirements & 4 foot setback for every
one foot tower height in residential zones
underlying zone requirements & setback of 1.5 times the
tower height in residential zones
underlying zone requirements
height of tower
For comparison purposes I attached the current setback requirements for the
various districts. If the Council would like to have tower setback
requirements that comply with the underlying zoning requirements, the
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Memo to the Mayor and City Council/OA 97-7
May 19, 1997
proposed ordinance will have to be changed to incorporate those setback
requirements.
Page 5
Height
Height of the tower could be increased in order to accommodate additional
users. The maximum height for a tower would be set at 198 feet. This height
could only be reached by providing additional locations on the tower for co-
location opportunities. The maximum height for a tower with
accommodations for 2 additional users is 150 feet. For every additional user
over 2, the tower's height can be increased by 24 feet. Therefore, for a tower
to be able to be constructed to a height of 198 feet it would have to be able to
accommodate 4 additional users. The 198 foot maximum height was
suggested because the FAA requires that towers 200 feet high have warning
lights.
Engineer's Report
A report from a qualified licensed engineer would be required. In this report
information regarding structural integrity, co-location positions, steps taken
to avoid interference and compliance with federal regulations will be
provided.
Abandoned and Unused Towers
All abandoned or unused towers will have to be removed within 12 months of
cessation of operation. If the tower is not removed, the tower and associated
facilities may be removed by the city and the cost of removal assessed against
the facility.
Planning Commission meeting
At the Planning Commission held on April 22, 1997 no one spoke at the
public hearing. The Planning Commission reviewed the proposed ordinance
at two public hearings. The first time was as a discussion item at their March
25, 1997 meeting. At that meeting the discussion centered on the maximum
height, lot size, tower setbacks and illumination. Their suggestions included
increasing the maximum height to 200 feet, making the minimum lot size
one acre, and having lights attached to the tower at the discretion of the city.
These suggestions were incorporated into the proposed ordinance and
presented at a public hearing at their April 22, 1997 meeting. At that
meeting there was further discussion regarding maximum height of towers.
It was suggested that in order to avoid mandatory warning lights that the
maximum height be set at 198 feet. There was also some discussion
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Memo to the Mayor and City CouncilYOA 97-7
May 19, 1997
regarding setbacks and the Commission decided to recommend that the
setbacks be equal to the height of the tower.
Page 6
Recommendation
The Planning Commission and staff recommend that the City Council
approve the attached Ordinance No. 97-__ amending Section 900.08
Definitions and Section 900.12 (19) At (Antenna Tower Overlay District).
kkelkriver\sysXshrdocXplanning\scott\towercc.doc
ORDINANCE 97-
CITY OF ELK RIVER
AN ORDINANCE AMENDING SECTIONS 900. 08 AND 900.12 OF THE
CITY OF ELK RIVER CODE OF ORDINANCES RELATING TO
DEFINITIONS AND PERMITTED, ACCESSORY AND CONDITIONAL
USES IN THE AT (ANTENNA TOWER OVERLAY DISTRICT)
CASE NO. OA 97- 7
The City Council of the City of Elk River does hereby ordain as follows:
Section 1. Section 900.08 of the City of Elk River Code of Ordinances titled
"Definitions" is hereby amended by adding the following definitions:
Antenna - Any structure or devise used for the purpose of collecting or
transmitting electromagnetic waves, including but not limited to directional
antennas, such as panels, microwave dishes, and satellite dishes, and omni-
directional antennas, such as whip antennas.
Commercial Wireless Telecommunication Service - Licensed commercial
wireless telecommunication services including cellular, personal
communication services (PCS), specialized mobilized radio (SMR), enhanced
specialized mobilized radio (ESMR), paging and similar services that are
marketed to the general public.
Public Utility- Persons, corporations or governments supplying gas,
electric, transportation, water, sewer, or land line telephone service to the
general public. For the purpose of this ordinance, commercial wireless
telecommunication service facilities shall not be considered public utility
uses, and are defined separately.
Tower - Any ground or roof mounted pole, spire, structure, or combination
thereof taller than 15 feet, including supporting lines, cables, wires, braces,
and masts intended primarily for the purpose of mounting an antenna,
meteorological device, or similar apparatus above grade.
Section 2. Section 900.12 (19) of the City of Elk River Code of Ordinances
titled "Permitted, Accessory, and Conditional Uses" is hereby amended to
read as follows:
Antenna Tower Overlay District
March 25, 1997
Section 900. 12 (19) Antenna Tower Overlay District
Page 2
A. Purpose
The purpose of the Antenna Tower Overlay District is to protect the public
health, safety, general welfare, and to accommodate the telecommunication
needs of residents and businesses by providing a specific zoning district for
the use of land for the establishment and operation of wireless
telecommunication towers. Since this use is unique, a special zoning district
is appropriate, and the City of Elk River reserves the right to determine the
suitability of a rezoning request to Antenna Tower Overlay District based on
criteria which includes the following:
1. The compatibility of the rezoning request with surrounding land uses
o
That the proposed rezoning is necessary in order to provide effective
wireless telecommunication coverage for the City
o
The rezoning is in accordance with the Comprehensive Plan for the
City.
Wireless telecommunication towers shall not be permitted nor conditional
uses in any other zoning district. This section shall apply to all towers over
60 feet in height.
B. Findings
In order to accommodate the communication needs of residents and
businesses while protecting the public health, safety, and general welfare,
the Council finds these regulations necessary in order to:
Establish standards which permit a reasonable and equitable
opportunity for the establishment of wireless telecommunication
service in the City;
Avoid potential damage to adjacent properties from tower failure
through structural standards and setback requirements;
o
Minimize adverse visual effects of towers through careful design and
siting standards which attempt to screen and/or camouflage towers
and antennas from adjacent private and public property;
o
Maximize the use of existing and approved towers, buildings and other
structures to accommodate new wireless telecommunication antennas
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Antenna Tower Overlay District
March 25, 1997
in order to reduce the number of towers needed to serve the
community.
P~ge 3
C. Uses
The Antenna Tower Overlay District (AT) is an overlay zoning district; land
zoned into the AT will also maintain its original zoning classification. All
permitted, accessory, and conditional uses allowed in the underlying zoning
district will continued to be allowed on land rezoned to AT, subject to all
restrictions and requirements applicable in the underlying district. In
addition to the uses allowed in the underlying district, the following uses
shall be allowed as a conditional use in the AT:
Antenna arrays, including radio, television, commercial wireless
telecommunication, and microwave transmitting and receiving
equipment, supporting towers, buildings and enclosures accessory to
the tower and antennas.
D. Co-Location Requirements
All commercial wireless telecommunication towers erected, constructed, or
located within the City shall comply with the following requirements:
1. A proposal for a new commercial wireless communication service tower
shall not be approved unless the City finds that the
telecommunications equipment planned for the proposed tower cannot
be accommodated on an existing or approved tower, building or other
structure within a one mile search radius (one half mile search radius
for towers under 120 feet in height, one quarter mile search radius for
towers under 80 feet in height) of the proposed tower due to one or
more of the following reasons:
The planned equipment would exceed the structural
capacity of the existing or approved tower, building or
structure, as documented by a qualified and licensed
professional engineer, and the existing or approved tower
or structure cannot be modified, reinforced or replaced to
accommodate planned or equivalent equipment at a
reasonable cost.
The planned equipment would cause interference
materially impacting the usability of other existing or
planned equipment at the tower, building or structure as
documented by a qualified and licensed professional
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Antenna Tower Overlay District Page 4
March 25, 1997
engineer and the interference cannot be prevented at a
reasonable cost.
Existing or approved towers, buildings or structures
within the search radius cannot accommodate the
planned equipment at a height necessary to function
reasonably as documented by a qualified and licensed
professional engineer.
do
Other unforeseen reasons that make it not feasible to
locate the planned telecommunications equipment upon
an existing or approved tower, building or structure.
Any proposed wireless telecommunication service tower shall be
designed, structurally, electrically and in all respects constructed, to
accommodate both the applicant's antennas and comparable antennas
for at least two additional users if the tower is over 100 feet in height
or for at least one additional user if the tower is more over 60 feet in
height. Towers must be designed to allow for future arrangement of
antennas upon the tower and to accept antennas mounted at varying
heights.
D. Construction Requirements
All antennas erected, constructed, or located within the City shall comply
with the following requirements:
1. All applicable provisions of this code.
Towers and their antennas shall be certified by a qualified and
licensed professional engineer to conform to the latest structural
standards and wind loading requirements of the Uniform Building
Code and the Electronics Industry Association and all other applicable
reviewing agencies.
With the exception of necessary electric and telephone service and
connection lines approved by the City, no part of any antenna or tower
nor any lines, cable, equipment or wire or braces in connection with
either shall at any time extend across or over any part of any right-of-
way, public street, highway, sidewalk, or property line.
Towers and their antennas shall be designed to conform with accepted
electrical engineering methods and practices and comply with the
provisions of the National Electrical Code.
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Antenna Tower Overlay District Page 5
March 25, 1997
5. All signal and remote control conductors of low energy extending
substantially horizontally above the ground between a tower or
antenna and a structure, or between towers, shall be at least eight feet
above the ground at all points, unless buried underground.
o
All towers shall be protected against unauthorized climbing. The
bottom of the tower (measured from ground level to 12 feet above
ground level) shall be constructed in such a manner to preclude
unauthorized climbing. The tower, antenna and supporting equipment
shall be enclosed by an eight foot high chain link fence with a locked
gate.
Metal towers shall be constructed of, or treated with, corrosive
resistant material.
o
Only one tower shall exist at any one time on any lot or parcel. The
minimum lot size requirement shall be one acre.
E. Design Standards
All antennas erected, constructed, or located within the City shall comply
with the following requirements:
Towers and antennas shall be designed to blend into the surrounding
environment through the use of building materials, color, textures,
camouflaging architectural treatment, screening and landscaping,
except in instances where the color is dictated by federal or state
authorities such as the Federal Aviation Administration.
o
Commercial wireless telecommunication service towers shall be of a
monopole design unless the City Council determines that an
alternative design is preferred.
F. Signs and Advertising
No advertising, logos or identification of any kind is permitted, except
may be required by Federal and State authorities.
as
G. Accessory Structures and Equipment
1. All accessory equipment related to towers and antennas must be
housed within a structure. Existing structures shall be used whenever
possible. Any new accessory buildings or structures shall be
architecturally designed to blend in with the surrounding
environment.
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Antenna Tower Overlay District
March 25, 1997
Page 6
The use of compatible materials such as wood, brick, or stucco is
required for associated support buildings. Equipment located on the
roof of an existing building shall be screened from public view with
building materials identical to or compatible with existing materials.
Ground mounted structures shall be screened from view by suitable
vegetation, except where a design of non-vegetative screening better
reflects and compliments the architectural character of the
surrounding area. Removal of existing vegetation shall be minimized
through careful site selection and design.
H. Illumination
Towers and antennas shall not be illuminated or display strobe lights unless
specifically required by the Federal Aviation Administration or other Federal
or State authority. When incorporated into the approved design of the tower,
light fixtures used to illuminate ball fields, parking lots, or similar areas may
be attached to the tower at the City's discretion.
I. Tower Setbacks and Tower Height
Towers shall conform with each of the following requirements:
Towers shall not be located between a principal structure and a public
street.
Towers shall meet setback requirements, equal to the height of the
tower, from all property lines.
The maximum height of any tower, including antennas and other
attachments, shall not exceed 150 feet.
o
The height of a tower may be increased by 24 feet to accommodate
each additional user above those required by co-location up to a
maximum height of 198 feet.
J. Time Limit on Tower Completion
Once a tower is approved by the City, the tower must be substantially
completed within one year, including any structures accompanying the tower,
following the date of tower approval.
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Antenna Tower Overlay District
March 25, 1997
K. Interference with Public Safety Telecommunications
Page 7
No new or existing telecommunication service shall interfere with public
safety telecommunication. All applications for new service shall be
accompanied by an intermodulation study which provides a technical
evaluation of existing and proposed transmissions and indicates all potential
interference problems. Before the introduction of new service or changes in
existing service, telecommunication providers shall notify the City at least 10
calendar days in advance of such changes and allow the City to monitor
interference levels during the testing process.
L. Support of Public Warning Systems
Telecommunication providers that utilize antennas erected after the effective
date of this ordinance shall participate in the Emergency Alert System (EAS),
as defined by FCC Rules and Regulations, Part 11, by broadcasting warnings
of severe weather and other life threatening emergencies to users of personal
communications equipment served by the antennas. Telecommunication
providers may be exempt from the requirements of this section under the
following circumstances:
The telecommunication provider demonstrates that
participation in EAS is not technologically feasible;
The telecommunication provider is unable to acquire any FCC
waiver or exemption from licensing or other regulations that
would prohibit participation in EAS; or
The state or regional EAS planning committee determine that
participation by the telecommunication provider is not
necessary.
M. Additional Submittal Requirements
In addition to the information required elsewhere in this code, development
applications for towers and/or antennas shall include the following
supplemental information:
A report from a qualified and licensed professional engineer that
provides the following:
ao
Describes the tower and/or antenna height and design
including a cross section and elevation;
Documents the height above grade for all potential
mounting positions for co-located antennas and the
minimum separation distances between antennas;
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Antenna Tower Overlay District
March 25, 1997
Page 8
Co
Describe the tower's capacity, including number and type
of antennas that can be accommodated;
do
Documents what steps the applicant will take to avoid
interference with established public safety
telecommunications;
eo
Proof that the proposed tower complies with regulations
administered by the Federal Aviation Administration and
the FCC; and
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Demonstrates the tower's and/or antennas compliance
with all applicable structural and electrical standards,
and includes an engineers stamp and registration
number.
°
For all commercial wireless telecommunication towers, a letter of
intent committing the tower owner and his or her successors to allow
the shared use of the tower if an additional user agrees in writing to
meet reasonable terms and conditions for shared use.
N. Antennas Mounted on Roofs, Walls, and Existing Towers
The placement of wireless telecommunication antennas on roofs, walls,
and existing towers may be approved administratively, without
requiring rezoning to Antenna Tower Overlay District, provided the
antennas meet all applicable requirements of this code and the
following:
The maximum height of an antenna shall not exceed 15
feet above the roof and shall be set back at least 10 feet
from the roof edge.
bo
Wall or facade mounted antennas may not extend 5 feet
above the cornice line and must be constructed of a
material which matches the exterior of the building or
structure.
In addition to the submittal requirements found elsewhere in this code,
an application for antennas mounted on roofs, walls and existing
towers shall be accompanied by the following information:
ao
A site plan application which includes the location of the
proposed antennas on the structure and elevations;
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Antenna Tower Overlay District
March 25, 1997
b.
C.
Page 9
An application for a building permit, and
A report prepared by a qualified and licensed professional
engineer indicating the structure or tower's suitability to
accept the antenna, and the proposed method of affixing
antenna to the structure. Complete details of all fixtures
and couplings, and the precise point of attachment shall
be indicated.
O. Abandoned or unused Portions of Towers
Abandoned or unused towers or portions of towers and accompanying
accessory facilities shall be removed as follows:
All abandoned or unused towers and associated facilities shall be
removed within 12 months of the cessation of operations at the site
unless a time extension is approved by the City Council. In the event
that tower is not removed within 12 months of the cessation of
operations at the site, the tower and associated facilities may be
removed by the City and the costs of removal assessed against the
property.
Unused portions of towers above a manufactured connection shall be
removed within 6 months of the time of antenna relocation. 'The
replacement of portions of a tower previously removed requires the
issuance of a new conditional use permit.
Section 3. That this Ordinance shall take effect and be in full force from
and after the date of its publication.
Passed and adopted by the City Council of the City of Elk River this __
of ., 1997.
day
ATTEST:
Henry A. Duitsman, Mayor
Sandra A. Thackeray, City Clerk
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900.44 hereof. An application for a conditional use permit to
allow a specific solid waste facility, if timely filed as provided
by the Zoning Ordinance, may be processed by the City and
considered by the City Council along with an application to zone
the affected property into Solid Waste Facilities Overlay
District.
19. Antenna Tower Overlay Zoninq District
A. Purpose. The purpose of the Antenna Tower Overlay Zoning
District is to protect the public health, safety, and general
welfare by providing a specific zoning district for the use
of land for the establishment and operation of Antenna
Towers. Since this use is unique, a special zoning district
is appropriate, and the City of Elk River reserves the right
to determine the suitability of an Antenna Tower request
based upon compatibility with surrounding land uses. Antenna
Towers shall not be permitted nor conditional uses in any
other Zoning District. This section shall apply to all
antenna towers over sixty (60) feet in height.
B. Uses. The Antenna Tower Overlay District is an overlay
zoning district. Land zoned into the Antenna Tower Overl??
District will also remain in its original zoning district
(the Underlying Zoning District). All permitted, accessory,
and conditional uses allowed in the Underlying Zoning
District will continue to be allowed on land zoned into the
Antenna Tower Overlay District, subject to all restrictions
and requirements applicable in the Underlying District. In
addition to the uses allowed in the Underlying Zoning
District, there shall be allowed in the Antenna Tower Overlay
District the conditional uses set forth below:
Antenna arrays, supporting towers or structures
therefore, radio, television, telephone and microwave
transmitting and receiving equipment, and buildings and
enclosures appurtenant thereto may be located in the
Overlay District.
C. Dimensional and Other Requlations and Standards;
Performance Standards. Except as provided to the contrary
herein, Antenna Towers are subject to Dimension Regulations,
Setbacks, Yard Regulations, Height Regulations, Sign
Regulations, Parking and Loading Regulations, Performance
Standards, and all other regulations, standards, and
requirements applicable in the Underlying Zoning District. In
addition, Antenna Towers are subject to special standards set
forth by the conditional use permit and the following:
9..52
i. A qualified registered engineer shall certify that
an Antenna Tower is designed to have all portions of it
land within the lot on which it is situated in the
event it collapses.
ii. Only one Antenna Tower shall exist at any one time
on any one lot or parcel. The minimum lot requirement
shall be one (!) acre, unless the underlying zoning is
more restrictive.
iii. The height of an Antenna Tower and the antenna
thereon shall not exceed 240 feet. In the event
applicable FAA or Minnesota Department of
Transportation regulations are more restrictive as to
height, such more restrictive regulations shall
control.
iv. No part of any Antenna Tower nor any lines, cable,
equipment, wires or braces in connection therewith
shall at any time extend across or over any part of a
right-of-way, public street, highway, sidewalk or
property line. NO part of the Antenna or appurtenances
thereof shall be constructed, maintained or located in
or upon any required setback area for the Underlying
Zoning District.
v. Antenna Towers shall be designated to withstand a
uniform wind loading as prescribed in the Uniform
Building Code.
vi. Antenna Towers shall be grounded for protection
against a direct strike by lighting and shall comply as
to electrical wiring and connections with all
applicable codes and regulations.
vii. Every Antenna Tower shall be protected to
discourage climbing of the Structure by unauthorized
persons. To prevent unauthorized climbing, Antenna
Towers shall comply with one of the following
requirements:
(1) climbing apparatus shall not be located within
twelve feet of the ground;
(2) A locked, anti-climb device shall be installed
on the Structure;
(3) A locked, protective fence at least six feet
high shall be built around the Structure;
9.53
viii.The petitioners for an Antenna Tower must
demonstrate, based on the topography of the site,
surrounding structures and vegetation and the design of
the tower, that off-site impacts from items such as
lighting, electrical interference, and visual impacts
as well as safety issues will be minimal.
D. Administrative Procedure. Establishment of Antenna Tower
Overlay Zoning on a specific parcel of land shall be by
amendment to the City's zoning map as provided by this Zoning
Ordinance and pursuant to the procedures set forth in Section
900.44 hereof. An application for a conditional use permit
pursuant to the standards and procedures set forth in Section
900.42 to allow a specific Antenna Tower, if timely filed as
provided by the Zoning Ordinance, may be processed b~~ the
City and considered by the City Council along with an
application to zone the affected property into Antenna Tower
Overlay District.
20. ME Mineral Excavation Overlay Zoninq District
A. Purpose - The purpose of the Mineral excavation Overlay
Zoning District is to protect the public health, safety, and
general welfare by providing a specific zoning district for
the use of land for the establishment of mineral excavation
operations and related facilities. Since these uses are so
unique, the demands upon public services such as
transportation are so intense, and their potential for
causing harm to the environment and to the public health,
safety and general welfare is so great, a special zoning
district is necessary. Mineral excavation operations and
related facilities shall not be permitted nor conditional
uses in any other zoning district.
B. Uses - The Mineral excavation Overlay District is an
overlay zoning district. Land zoned into the Mineral
Excavation District will also remain in its original zoning
district (the Underlying Zoning District). All permitted,
accessory and conditional uses allowed in the Underlying
Zoning District will continue be allowed on land zoned into
the Mineral Excavation Overlay District, subject to all
restrictions and requirements applicable in the Underlying
District. In addition to the uses allowed in the Underlying
Zoning District, there shall be allowed in the Mineral
Excavation Overlay District the following conditional uses,
subject to all requirements of the City Code for the
establishment and operation of such uses:
9.54
900.18 SCHEDULE OF DIMENSIONAL REGULATIONS
1. PRINCIPAL
STRUCTURES
Minimum Lot Building Setbacks
Requirements Fron~ Side Garage
Side
Rear
Maximum Lot
Coverage
Maximum
Heights
~.-1 10 Acres
[1] Non-Sewered 300' Width
50' 25' 25' 50'
R-la.
Non-Sewered
2-1/2 Acres
160' Width
35' 20' 20' 30'
R- lb
[2] Non-Sewered 1 Acre 35' 10' 10' 25'
160' Width
Note: Interior side yard setback from future lot line 10 feet
Sewered !2,000 sq. ft. 35' 10' 5' 25
80' Width
R-lc
[2] Sewered
10,000 sq. ft.
80' Width
30' !0' 5' 20
[1] Non-Sewered 10 Acres 30' 10' 5' 20
300' width
R-Id
Sewered
14,000 sq. ft.
90' Width
35' 10' 5' 30
[1] Non-Sewered 10 Acres 35' 10' 5' 30'
300' Width
R-le
Sewered
12,000 sq. ft.
80' Width
30' 10' 5' 30'
[!] Non-Sewered 10 Acres 30' 10' 5' 30'
3OO' Width
20 percent
25 percent
25 percent
25 percent
25 percent
25 percent
25 percent
25 percent
25 percent
25 percent
3 Floors
or 40'
3 Floors
or 40'
3 Floors
or 40'
3 Floors
or
3 Floors
or 40'
3 Floors
or 40'
3 Floors
or 40'
3 Floors
or 40'
3 Floors
or 40'
3 Floors
or 40'
9.59
R-2a
[2,3] Duplex Sewered 6,000 sq. ft.
60 ' Width
R- 2_____%b
[2,3,4] Town_house
Sewered
5,500 sq. ft.
20' Width
R-3
[2,3,4,5] Townhouse 4,500 sq. ft.
& Other
Multifamily Sewered 20' Width
30'
30'
30'
10'
10'
10'
10'
10'
10'
10'
!0'
25'
30 percent
30 percent
30 percent
3 Floors
or 40'
3 Floors
or 40'
3 Floors
or 40'
[2,3,4,5] Town-house & Other
Multifamily (not 4,000 sq. ft.
Apartment s }
Sewered 20' Width
30'
Apartment [6] 2,500 sq. ft. 30'
Sewered per
unit (EFFICIENCY)
3,000 sq. ft.
per
unit (1 BDRM)
30'
3,500 sq. ft.
per
unit (2
30'
4,000 sq. ft.
per
unit (3+
BDRMS )
30'
C-1
Sewered
No Limit
Sewered
No Limit
15'
_C-3
[7]
1 Acre
100' Width
25'
[7]
i Acre
150' width
25'
10'
10'
10'
10'
10'
No Limit
15'
20'
20'
25'
25'
25'
25'
25'
40'
40'
20'
30 percent
40 percent
40 percent
40 percent
40 pe'.-cent
3 Floors
or 40,
4 Floors
or 50'
4 Floors
or 50'
4 Floors
or 50'
4 Floors
or 50'
100 percent
50 percent 40'
40 percent 45'
35 percent 30'
45'
9.60
I-1
[7]
~-2
[7]
1 Acre 30' 25' 20' 40 percent
100' Width
1 Acre 30' 25' 20' 40 percent
100' Width
B-P 1-1/2 Acres 35' 20' 20' 40 percent
[7]
45'
60'
45'
[1] 4 Lots per 40 acre maximum, with 2-1/2 acre minimum and one curb cut
[2] Minimum lot width is required to be increased by 20 feet for single family
corner lots.
[3] Single Family 10,000 sq. ft. 30' 10' 10' 25 percent 3 Floors
80' Width or 40'
[4] Duplexes 6,000 sq. ft. 30' 10' 10' 3 Floors
60' Width or 40'
[5] Side and rear setbacks are increased to 30 feet where the lot abuts a
single family residential zone
[6] Muttifamily lot size may be reduced by 400 sq ft for every tuckunder or
underground ~ara~e
[7] Must hook up to City sewer and water if within the City sewer district.
9.61
Planning December 1996
Wireless World
Telecommunications
technolo~,,--and local
government response--
is at a crossroads.
By William Covington
ompanies hoping to succeed
in the highly competitive
~ communications arena must
~k ~, have good relations with lo-
~ cai governments. It's the lo-
cal governments, after all, that supply
e franchises and permits needed to
_ sliver cellular and paging services and
ot?.er communications products.
'So far, those relations have been pretty
good. Local governments want the ben-
efits that new forms of communication
can bring, and wireless service providers
understand that cities and towns must
exercise some control over what comes
into the community. The challenge is to
keep things on an even keel at a time of
rapid growth in the telecommunications
industry.
A sign of that growth is the auctions
held oh August 26 by the Federal Com-
munications Commission. On that date,
the FCC began the second in a series of
auctions that will allow more companies
to offer wireless communication services.
How it works
The term wireless communications re-
fers to a family of communication de-
vices that can send and receive messages
instantly--by voice in the case of cellular
telephones or alphanumerically in the
case of pagers. Soon, too, computer users
· .411 be able to send and receive data via
'eless modems.
One Of the newer forms'of wireless
voide communication is the personal com-
munications service. PCS is similar to a
cellular phone but operates at different
radio frequencies and requires, twice as
many communications facilities. In peg-
ing, the lat-
est innovation is narrowband messaging.
This service allows customers to acknowl-
edge a page by pressing a button on their
pagers. Soon they will be able to receive
short text messages as well.
Wireless communications typically re-.
buildings, on billboards, atop wooden
utility poles, and on metal poles. Lattice
towers are considered a last resort.
On the ground ',
Several considerations determine where
cell sites are Placed. The first is that the
quire three components: a device [tele- site must be close enough to the caller to
phone, pager, or portable computer); a._receive the-signal generated by a half-
cell site/radio link; and a switching of- watt portable phone. The second cons/d-
rice. Every major metropolitan area has
one or more switching offices, where
calls from cell sites are processed. The
calls are then sent out through the tele-
phone system. When a wireless customer
calls another wireless telephone, the
switching office locates the cell site clos-
est to the party being called and connects
that caller via that cell site. Over 90
percent of all wireless communications
still start or end on a traditional tele-
phone system {called "wireline' in the
business}.
When a call is made, the device seeks
eration is that cell sites must be located
far enough apart to eliminate cross-talk.
The third is interference. Tall buildings
and large bodies of water, for instance,
can distort a signal, precluding high-quality
service. -
Finally, according to the industry, good
service requires that there be at least one
cell site in every neighborhood, normally
within every six to eight square miles
depending upon terrain and number of
customers.
Wireless communications companies
can share cell sites. They cannot, how-
out a radio link, also known as a cell site. ever, share the radio equipment that sends
Radio links capture the signal, process it ' and receives calls and information. Should
Iverifying that the caller is a legitimate:':': ~o ca~riers share a site, normally 10 feet
customer), and send it om Most cell sites i 'of'~l~'a-ce m'usi seParate th'~ antennas be-
include one or more antennas, a struc- ' longing to each ~ompany.'A~ the'number
ture to support them, and a building to '. of custo~ners increases, so must the num-
house radio and computer equipment:., b~:'~)fcell .... s~tes.' 7.H°wever;..'-'. ........ the. ..... additional
Cell sites can be located on the roofs of site~'typically are' smaller and easier to
locate on rooft6ps or conceal ih other
ways.
Going once
Back in 1981, the Federal Communica-
tions Commission published a report on
implications for economic development
of the then very new cellular telephone
technology. After 'a series of hearings,
the commission invited providers to ap-
ply for licenses to provide cellular ser-
vices in 306 metropolitan service areas
and 428 rural areas.
So many companies applied that the
FCC decided simply to assign local tele-
phone companies enough radio spectrum
(B bloc spectrum} to offer cellular com-
munications in their own areas. A lottery
was set up to allow non-telephone com-
panies to compete for the remaining A
bloc spectrum. B.v the end of 1984, nearl.v
every, major metropolitan area in the U.S.
had been assigned to a carrier. In 1989,
similar lotteries were held for the rural
areas.
The cellular lotteries exceeded all ex-
pectations. Original estimates predicted
/ewer than a million subscribers by 2000.
But by 1990, the cellular industry had
attracted over 10 million customers. Im-
pressed by this success, the FCC in 1994
decided to auction off enough radio spec-
trum to allow at least two new service
providers in every market. The service to
be offered was referred to as PCS or
personal communications services. The
auctions were completed in March 1995
and raised over $7 billion.
Yet another auction was held earlier
this year, this time to encourage at least
one more nationwide provider. About
$10 billion was raised by auctioning off
what is known as C bloc spectrum. Then,
on August 26, the D and E bloc auctions
were initiated. They are expected to be
completed by the end of this month.
No one is certain how the successful
bidders will make use of this additional
radio frequency. Auction winners with
licenses may simply enhance their cur-
rent systems by providing ancillary ser-
vices, or they may offer dramatic new
communications services. In any case, it
is likely that the D and E bloc offerings
will result in a need for more cellular
towers.
As a result of all this activity, local
governments have been approached by
already operating providers who are seek-
ing to expand their coverage area or to
supplement service where existing ca-
pacity is exhausted. At a time when sub-
scriber lists are growing by over 30 per-
cent a year, incumbent carriers in major
To make cell sites less
obtrustive--and more
politically acceptable--some
firms are choosing stealth
locations. Can you find the
device on this building? See
page 12 for the answer.
metropolitan areas may seek permission
to build 15 to 50 facilities a year.
The new PCS licensees and the new
paging providers are also seeking sites,
and so are the growing numbers of com-
panies offering data communications and
similar services. However messaging and
data delivery services typically can use
much smaller sites and often share exist-
ing facilities with cellular or PCS provid-
ers.
The winners of the C bloc auctions
(companies like Next Wave and Wireless
PCS) are just now beginning to make an
appearance. Like the PCS license hold-
ers, they will need to build an entire
network, with the number of sites de-
pending on the type of technology used
and the degree to which they can
locate' with other providers. Many wire-
less companies also use %teatthing' tech.
niq~es [hiding facilities on rooftops or
elsewhere) to effectively conceal sites.
Local governlments can probably use their
experiences with PCSs, which, typically
request permits for 50 to 100 facilities a
year, as a guide to determine how many
facilities a C bloc carrier might seek.
In a hurry .'
A wireless company typically spends be-
tween $250;000 and $700,000 to get a cell
site up and running. Those A and B bloc
providers that received their licenses in
the t980s have actually built their sys-
tems three times: first to serve customers
with three-watt car phones, then to ac-
commodate half-watt portables, and fi-
nally to convert analog cellular systems
to more efficient digital technology.
Now come the successful PCS and C
bloc bidders, and the soon-to-be-deter-
mined winners of the D and E bloc spec-
trum. All these companies have a tre-
mendous monetary obligation to the federal
government and to banks. In addition,
stiff industry competition is forcing com-
panies to lower access charges and fees
for each minute of use--their two mai,
sources of revenue.
As a result, wireless service providers
will be in a hurry to get construction
permits, and they will resist schemes for
imposing taxes, auctioning off access to
public property, and other assessments.
10 Pianning December 1996
Given that situation, my advice to lo-
cal governments is to get a handie op, the
ey elemen:s of the Telecommunications
Act of 1996,, which lays out the ground
rules for industry and local government
in the area of land-use law.
\.Vhat is required
The law creates a presumption that needed
wireless facilities can be sited in a com-
munity. Flat refusals to grant permit ap-
plications are no longer allowed. The lax,,,
also requires that requests for pern'ds-
sion to build must be acted on promptly.
It forbids regulations from favoring one
sort of wireless service provider over
another. And it prohibits local govern-
m3nts from regulating radio frequency
emissions. A federal standard has been
set in this area and demonstrated compli-'
ance with that standard is alt a locality
can seek from ti~e permit applicant.
Regular con'~munication witi; the car-
tiers serving a community is also essen-
tial. At least once a year every locality
should invite the telecommunications car-
tiers serving the area to a regular meet-
lng. Use this time to review the contents
of permit applications. Place special em-
phasis on the type of information that is
expected fi'om the applicants. Identify
the parts of the application that can be
left blank, which n'mst be filled out, and
under what conditions an application will
be rejected as incomplete. Also, ask ser-
vice providers where they ma)' want to
build facilities in the next },ear.
Increasingly telecommunications com-
panies are teaming up with local govern-
ments to sponsor regional wireless semi-
nars. These educational forums usually
last a full da}' and bring together local
What the l 7ireless Revolution Means
,~. t this moment, . thousands of
~' are standing at planning counters
/...' t~, everv~,here in the U.S., demand-
, ".'..~ing l~ermits--now. In most com-
.,,unities, however, there is no plan for
accommodating the sites over the long
haul.
Both city, and county governments typi-
cally categorize personal wireless facili-
ties as special or conditional uses. Yet
they often rely on outdated radio trans- ''
mission and satellite dish zoning p'rovi- ':.'
sions to regulate them. -
But some communities have instituted '
multitiere~"review 'pr0~e-dui'es. ' Undei- .......
some of thes~ procedures, residential zones
get one approach, commercial and indus-
trial zones another; monopoles require
review While mounts 50 feet and less are ': ".
The advantage to a'zonihg ordinance ' '
approach 'is that each cell. site 'is"dealt '".-.:.:?::~
with consistently and unifgrmly. The dis- · .' ',
advantage' is that the jurisdiction 'deals '-'%%-
with cell sites one at a tim~YAs a result,
wireless carri ers are asking f0r;' ahd lodal
governments are approving, %st'systems
Some. ~itidk.. gn'd. comat~S2knb~',i~a~ t~at
the}, are running out'o( good'¢~'ll .Sit~s~ '
...... ' .... "' .' ". - - :Some communmes leasej~ubhc Iand--mcluding water tanks to
San Ffax~cis~'h'igi:~ b}0;l~"'~f ~ui'ddiii"~'~. ;:!:.: the':lSa~{'gixiddih~s' d6n"t provide.th~ 'cer- fact'that' S0m~' '~omnsunities are leksing
for"planrfiii~ '~0mmis~i~i~r~ t'o' ~i'k~e."ig. ': ~ai/at2/"0f a g6od Plah. '~ ': '": '" ...... : ..... public land--gcater tanks, parkland rights-
review_~g_c~e!! s.i!e, hpp_li, fatisr~..B.ut.~r?-' ',:,The. Situation._-is complicated bv the . of-way--to wireless carriers Leasinor>ublic
11
~992
1993
1994~
1995
2000
0 5,000 10,000 15,000 20,000 2S.000 30.000 35.000
..I s¢,gmcnt Ol'a mtlp i, a hypotheticrtl cit~, [left] shows where
ccll sites ,li.ghl bc placed if no,e of tile 10 corriers will co-
loc'ntt. Above: The ~lt~her of people Itsi~lg cclhtlar devices is
cxpected to explode within tile ,ext few years.
land solves two problems: Local govern-
ments can choose the best locations for
wireless facilities, and applicants can get
in and out-of the permitting process quickly.
New co~mpar~ies have popped up to mar-
ket these public lands and to direct the
zarriers to 'easy~ city and county sites.
The pi:oblem is that the wireless firms
often insist on an ~xclusive arrangement
with the community, in effect tying up
access to public land--and exposing the
community to potential legal challenges.
Further, private landowners may object
to the competition from a public body.
An alternative approach is to require
all ceil sites to be located on land owned
or leased by the jurisdiction. Ringwood,
New Jersey, is trying that, although it has
only three publicly owned sites that qualifT.
The suburban Passaic County commu-
nity has also offered to lease land from
private landowners seeking a cell site
and then to sublease the site to a wireless
carrier.
A wireless master plan is another way
to go. The town of Windsor, Connecticut,
is considering the preparation of such a
plan for the area between Hartford and
Bradley International Airport. Also, the
Mid-America Regional Council, which
encompasses eight counties and 114 mu-
nicipal/ties in two states around Kansas
City., has begun a two-phase process that
could lead to a regional wireless master
plan.
The master plan approach involves two
steps. The first is to approve the areas
where celt facilities could be located. The
second step is to review individual site
applications. A more stringent review
would be required for propertie~ not iden-
tified in the master plan..A twa'step ap-
proach has the advantage of.7~i'ssuring
public input at an early stage. Because it
requires a map, it is also th{';only ap-
proach that ensures some degr'~e of cer-
tainty. ~'
Given all the options, I would say ihat
the wireless master plan is the tool of
choice. At this writing, only a few cities
and counties are exploring the master
plan approach, so there is no model to
follow. But carriers are bound to tire of
the ad hoc approach of siting one cell
facility at a time. I predict that they will
soon request the certainty that comes
with a wireless master plan.
The courts are also pointing the way.
There have been four important court
cases on wireless planning so far,'and
there are sure to be many more. Earlier
this year, a federal court upheld a six-
month moratorium imposed by the city
of Medina, Washington. Sprint Spectrum
had asked for a preliminary, injunction to
override the moratorium, which Medina
argued it needed to give it time to plan for
cell sites. But another federal court up-
held the contention of BellSouth Mobil-
ity that Gwinnett Count, Georgia, had
not presented sufficient evidence to sup-
port its denial of a permit.
Meanwhile, a group of residents in
Franklin County, Texas, won a tempo-
rary injunction against construction of a
multicarrier tower, which they argued
would impair their quality of life and
diminish property values. Franklin County
government officials, community lead-
ers. industry representatives, and other
interested parties. The topics include wire-
less communications; the types of facili-
ties needed; the method used to select
possible sites: how the permitting pro-
cess works; and health issues and prop-
ertv values. AT&T Wireless Services has
hel~t such gatherings in Boston, New York,
Baltimore, Washington, D.C., and sev-
eral other jurisdictions.
Local governments should also review
their land-use legislation to be sure that it
coincides with the provisions of the tele-
communications act. Other elements that
jurisdictions should consider are: use by
right in industrial and commercial zones;
a hearing process for residential areas;
specific, as opposed to qualitative, re-
view standards; fixed time frames for
permit processing; and separation of the
has not r~quired permits for tower con-
struction)In Pennsylvania,. the state court
of appeals denied Bell Atlantic Mobile
Systems' claim.that a 150-foot cellular
tower was an essential service that should
be permitted as of right.
The courts are a bellwether of what's
ahead for planners. It's clear that plan-
ning is needed: So is a factual record and
a review process.
Ted Krefnes, AICP
I'h'eines is president of Kreines & Kreines in
Tiburon, California. The firm specializes in
wireless planning.
Terms of Art
Applicants The people and compa-
nies that apply for personal wireless fa-
cilities: site acquisition representatives,
lawyers, cell site builders, landowners,
and others.. Be aware that some appli-
cants seek approval of cell sites and then
sell or lease them to the carriers or land-
owners' they represent.
· Carriers Companies licensed by the
FCC to build personal wireless facilities
and operate personal wireless services.
There are also unlicensed carriers.
Personal wireless facilities Described
in the Telecommunications Act of 1996
as facilities for the provision of personal
wireless services.
Personal wireless services Commer-
cial mobile services, unlicensed wireless
services, and common carrier wireless
exchange access services.
~-2 16lanning December !996
An example of co-location, shouting
several different services that can be
accommodated at different heights on
one tovoer.
public hearing and the actual vote on
approval.
Getting together
Local legislation should also include pro-
visions for co-location--the sharing of
facilities. Everyone seems to want co-
location. Local governments like
the idea because it reduces site
proliferation, and industry likes
it because construction and op-
erating costs are reduced. There
are some drawbacks, however.
For one thing, co-location cre-
ates larger sites. The more carri-
ers sharing a facilitT, the bigger
land potentially more intrusive)
it will be. Also, permit review
time ma)' increase dramatically,
and the extra height of the facil-
ity can push the application into
a more stringent review category.
Finally, established cellular car-
riers may have reasonable con-
cerns about revenue, operations,
and liability when a new carrier
is added to an exist-
ing site.
For local govern-
ments seeking to
make co-location an
attractive option for
wire]ess providers,
I have three sugges-
tions.
First, provide in-
centives to co-locat-'
lng parties. Assure
the carriers that the
time needed to re-
view a co-location
request and the rules
involved will not
greatly exceed those
for a single applicant.
Second, consider giv-
ing the co-locators
access to municipal
property, speeding 'up per-
mit processing, perhaps even
lowering application fees.
Third, take advantage of
the fact that local govern-
ment is the central clearing-
house for all permit applica-
tions. Use your regular annual meeting
with the cellular companies as an oppor-
tunity to register potential permi! appli-
cants. Every time a permit is sought, the
registered parties could be informed and
invited to contac! the applicant to discuss
sharing the facility.
A final suggestion: Look to the future.
Ask industry representatives to share their
expectations of what's ahead in the way
of services, carriers, and concerns.
William Covington is land-use and environ-
mental policy counsel to AT&T Wireless Ser-
vices in Kirkland, Washington. He was for-
merly director of right-of-way permitting for
King County, Washington.
--::1047Xjp:e313566: at thomas..,,C.gov
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S.652
Telecommunications Act of ]996 (Enrolled Bill (Sent to President))
SEC. 704. FACILITIES SITING; RADIO FREQUENCY EMISSION
STANDARDS.
(a) NATIONAL WIRELESS TELECOMMUNICATIONS SITING POLICY- Section 332(c) (47
U.S.C. 332(c)) is amended by adding at the end the following new paragraph:
'(7) PRESERVATION OF LOCAL ZONING AUTHORITY-
'(A) GENERAL AUTHORITY- Except as provided in this paragraph, nothing in this Act
shall limit or affect the authority of a State or local government or instrumentality thereof
over decisions regarding the placement, construction, and modification of personal wireless
service facilities.
'(B) LIMITATIONS-
'(i) The regulation of the placement, construction, and modification of personal wireless
service facilities by any State or local government or instrumentality thereof--
'(I) shall not unreasonably discriminate among providers of functionally equivalent
services; and
'(II) shall not prohibit or have the effect of prohibiting the provision of personal
wireless services.
'(ii) A State or local government or instrumentality thereof shall act on any request for
authorization to place, construct, or modify personal wireless service facilities within a
reasonable period of time after the request is duly filed with such government or
instrumentality, taking into account the nature and scope of such request.
'(iii) Any decision by a State or local government or instrumentality thereof to deny a
request to place, construct, or modify personal wireless service facilities shall be in
writing and supported by substantial evidence contained in a written record.
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'(iv) No State or local government or instrumentality thereof may regulate the
placement, construction, and modification of personal wireless service facilities on the
basis of the environmental effects of radio frequency emissions to the extent that such
facilities comply with the Commission's regulations concerning such emissions.
'(v) Any person adversely affected by any final action or failure to act by a State or local
government or any instrumentality thereof that is inconsistent with this subparagraph
may, within 30 days after such action or failure to act, commence an action in any court
of competent jurisdiction. The court shall hear and decide such action on an expedited
basis. Any person adversely affected by an act or failure to act by a State or local
government or any instrumentality thereof that is inconsistent with clause (iv) may
petition the Commission for reliefi
'(C) DEFINITIONS- For purposes of this paragraph--
'(i) the term 'personal wireless services' means commercial mobile services, unlicensed
wireless services, and common carrier wireless exchange access services;
'(ii) the term 'personal wireless service facilities' means facilities for the provision of
personal wireless services; and
'(iii) the term 'unlicensed wireless service' means the offering of telecommunications
services using duly authorized devices which do not require individual licenses, but does
not mean the provision of direct-to-home satellite services (as defined in section
303¢)).'.
(b) RADIO FREQUENCY EMISSIONS- Within 180 days after the enactment of this Act, the
Commission shall complete action in ET Docket 93-62 to prescribe and make effective rules
regarding the environmental effects of radio frequency emissions.
(c) AVAILABILITY OF PROPERTY- Within 180 days of the enactment of this Act, the
President or his designee shall prescribe procedures by which Federal departments and agencies
may make available on a fair, reasonable, and nondiscriminatory basis, property, rights-of-way,
and easements under their control for the placement of new telecommunications services that are
dependent, in whole or in part, upon the utilization of Federal spectrum rights for the transmission
or reception of such services.
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http://thomas.loc.gov/cgi-bim'query/1 ?c 104:./temp/-c 1047Xjp:e313566: 12/11/96
Several new wireless communications
technologies have developed in the past
few years. Many are forms of
telecommunications services, such"as
paging service and cellular telephone service.
In the years ahead, personal communications
service ("PCS") will also likely become more
popular. Others are forms of television service
delivery, such as direct broadcast satellite
("DBS") service. Although these technologies
are "wireless," they all require, to varying
degrees, the construction of either transmitting
equipment (placed either on towers or sometimes
on smaller "mono-poles") or receiving equipment
(such as satellite dishes), or both, on public or
private land. Most also require construction in the
rights-of-way to lay wires to connect the towers
with studios, switches, and computer control
points.
The cellular industry estimates that the number
of towers needed will increase from 20,000
currently in use to over 100,000 nationwide over
the next five to ten years.
The businesses seeking to offer these new
services -- primarily the wireless
telecommunications industw and the DBS
industry -- tried very hard to persuade Congress
and the FCC to preempt all local zoning and other
regulatory authority over their facilities. Local
governments responded by pointing out that they
are not delaying industry growth. And industry
claims that local zoning and safety regulations are
major barriers to expansion of
telecommunications competition are greatly
exaggerated. A survey by the American Planning
Association, for example, showed that 92
percent of applications for cellular towers were
approved by local governments, most within 60
days.
Thanks to the efforts of local governments and
organizations, including the National Association
of Counties and the American Planning
Association, the 1996 Act preserves and affirms
local authority over the placement, construction
and modification of cellular telephone facilities
and other "personal wireless telecommunications"
service facilities.
The Act also instructs the FCC to adopt
rules that "prohibit restrictions that impair a
viewer's ability to receive video programming"
using satellite dishes, television antennas, and
multipoint multichannel service antennas.
Unfortunately, the FCC has responded to this
latter directive with rules that greatly limit
local regulation of these types of antennas. The
FCC has also limited non-governmental
restrictions of dishes and antennas, such as
homeowner association rules, condominium
rules and private covenants that affect an
owner's own property, and is considering how
far to go in prohibiting restrictions that are
contained in leases and for common areas of
condominiums, cooperatives and homeowner
associations.
These FCC proposals are vigorously opposed by
local government organizations, including the
National Association of Counties and the
American Planning Association. Efforts will
continue to get the FCC to reconsider and revise
these rules, and if necessary may challenge the
FCC in the courts. In the meantime, the following
paragraphs describe the effect of the Act and the
FCC's current rules on various kinds of
telecommunications facilities, and present some of
the questions that local governments need to
answer.
Personal Wireless Service
Facilities
Personal wireless services include cellular
telephone, personal communications services,
other mobile radio services, and any other FCC-
licensed wireless common carriers. Although
these services are classed together, each service
works with a somewhat different technology and
requires a different type of antenna and
transmission facility.
Cellular telephone service works by
transmitting signals from relatively low-power
transmitters on tall towers. Each transmitter
covers an area called a "cell." As the user travels
through one cell to another, the signal is "handed
off" from one transmitter to another in the
adjacent cell.
Cellular transmitters are on towers of varying
height, usually ranging from 40 to 300 feet and
higher. Cellular transmitters also can be located
on top of tall buildings. The number of towers
needed to serve a particular area depends on the
terrain and the population density-- more users
may mean more and smaller cells, and therefore,
additional facilities, with varying heights required
for clear transmission.
Personal communications service, or "PCS", is
A CouNIY Al'ID LOCAl. OFFICIAL5 (~UtD~ TO THE T~L~:COMMUNICATION5 ACT or 1996
a newer technology just starting to be constructed
that uses even smaller "cells" than the traditional
cellular service. It will compete with cellular
telephone service and may become the service of
the future if it provides better quality and
reception, transmits data and offers paging. Since
PCS transmitters cover an even smaller
geographic area than cellular service, more.
transmitters and towers will be needed, and
towers will be placed much closer together.
Specialized mobile radio (SMR) services
typically consist of one or more base station
transmitters and a mobile radio unit in the vehicle
or premises of the user. Communications are
transmitted through the base station by telephone
wires or by low-power radio signals. Users of SMR
include fleet-dispatched taxicabs and delivery
services and "closed system" mobile telephone
users.
Licenses to use specific portions of the airwaves
in specific geographic areas for cellular telephone,
PCS, and SMR services are issued by the FCC.
SMR licenses have been around a long time,
cellular licenses were first issued about 15 years
ago, and PCS licenses are brand new. The FCC
has allocated new licenses to increase the number
of service providers. A particular geographic area
can now have two cellular providers, six
broadband PCS providers, 26 narrow-band PCS
providers, and an undetermined number of SMR
licensees-- all looking for sites for their facilities.
The provision of the new Act concerning
personal wireless communications facilities
generally preserves local zoning authority over the
siting, construction, modification, and use of these
facilities, but requires zoning and related local
laws to satisfy new requirements. The provision
reads:
Sec. 704 Facilities Siting; Radio
Frequency Emission Standards
a) National Wireless Telecommunications
Siting Policy
Section 332 (c) (47 U.S.C. 332 (c)) is
amended by adding at the end the following new
paragraph:
"(7) Prese~ation of Local Zoning Authority.
"(A) General Authority
Except as provided in this paragraph, nothing
in this Act shall limit or affect the authority Of a
State or local government or instrumentality
thereof over decisions regarding the placement,
construction, and modification of personal
wireless service facilities.
" (B )" Limitations
"(/) The regulation of the placement,
construction, and modification of personal
wireless service facilities by any State or
local government or instrumentality
thereof.
"(I) shall not unreasonably
discriminate among providers of
functionally equivalent services; and
"(II) shall not prohibit or have the
effect of prohibiting the provision of
personal wireless services.
"(ii) a State or local government or
instrumentality thereof shall act on any
request for authorization to place,
construct, or modify personal wireless
service facilities within a reasonable
period of time after the request is duly
filed with such government or
instr, umentality, taking into account the
nature and scope of such request.
"(iii). Any decision by a State or local
government or instrumentality thereof to
deny a request to place, construct, or
modify personal wireless service facilities
shall be in writing and supported by
substantial evidence contained in a
written record.
"(iv) No State or local government or
instrumentality thereof may regulate the
placement, construction, and modification
of personal wireless service facilities on
the basis of the environmental effects of
radio frequency emissions to the extent
that such facilities comply with the
Commission's regulations concerning such
emissions.
"(v) Any person adversely affected by any
find action or failure to act by a State or
local government or any instrumentaliv:t
thereof that is inconsistent with this
subparagraph may, within 30 days after
'such action or failure to act, commence an
aciion in any court of competent jurisdiction.
LOCAL Or~tC~,~L$ C~UIDE TO THE TF. LECOS4S4Ut~tC~nOtX5 ~cr OI· 1996
The court shall hear and decide such
action on an expedited basis. Any person
adversely affected b31 an act or failure to
act by a State or local government o~'any
instrumentality thereof that is inconsistent
with clause (iv) may petition the
Commission for relief.
"(C) Definitions..For purposes of this paragraph.
"(i) the term 'personal wireless services'
means commercial mobile services, unlicensed
wireless services, and common carrier wireless
exchange access services;
"(ii) the term 'personal wireless service
facility, mearts facilities for the provision of
personal wireless services, and
"(iiO the term 'unlicensed wireless service'
means the offering of telecommunications
services using duly authorized devices which do
not require individual licenses, but does not
mean the provision of direct-w-home satellite
services (as defined in section 303 (v) ).".
What should a local government do to
implement this langxmge?
This language applies certain tests to decisions
on locating wireless facilities, the grant of
permission for locating wireless facilities, and the
timing of approval or denial of requests for siting
facilities.
A county or other local government normally
has in place a general zoning ordinance. The
ordinance should be reviewed and, where
necessary, amended to deal with where, and under
what conditions, cellular towers and other wireless
facilities may be located.
Step one is to review the current zoning
ordinance and any proposed cellular siting
language to determine if the ordinance
"unreasonably discriminates among providers
of functionally equivalent services." It would be
wise to revise the ordinance as soon as possible if
the analysis reveals a need to do so.
The federal Act's requirement that a local
zoning law not "unreasonably discriminate"
means that local authorities should treat similar
facilities in the same manner. It does not mean
that all applicants for all uses must be treated the
same, even if they are competitors. For example, a
zoning ordinance that permits towers of a certain
height to be located in industrial zones but does
not permit them in residential zones is likely to
meet the test of reasonableness. On the other
hand, a zoning regulation that allows one wireless
provider to locate a tower in an industrial zone
but prohibits a second provider from locating a
similar-sized tower in the same industrial zone is
likely to attract a challenge as discriminatory.
Different treatment based on good reasons such
as year of entry into the market, or first- come,
first-served, for a limited capacity tower site
should be more defensible. Different treatment of
similar providers with the same characteristics
and no rational distinguishing characteristics is
not.
Step two is to review your local zoning
ordinance to determine if it totally "prohibits or
has the effect of prohibiting" the provision of
personal wireless services, and make changes if
the analysis reveals a need for change. An
example of a provision that might be viewed as
"prohibiting" the provision of personal wireless
services might be an ordinance that prohibits
transmitters anywhere within the county. An
example of a provision that might be viewed as
having "the effect of prohibiting" the provision of
personal wireless services might be a limitation on
the number and location of tower sites that has
the effect of making it physically impossible for
the provider to deliver service due to the nature of
the terrain, such as large hills between the
transmitter site and the customer location, that
prevents reception of the signals.
Since each community's geography is
different, however, determinations on whether
an ordinance prohibits or has the effect of
prohibiting the provision of personal wireless
communications services will ultimately be made
on a c~rse-by-case basis, hence the need for local
review.
Does the ban on prohibiting service
mean that every locality must allow a
cellular tower?
Not necessarily. The number and kinds of
antenna locations needed to provide adequate
personal wireless service signal coverage to a
community will vary depending on terrain and the
density of population and buildings. For example,
a community that is very small geographically and
completely residential might be able to show that
A COUHT~ AND LOCAL Of I"tClAL5 GUIDE TO THE TELECOMMUI'IICATIOi'f5 ACT or 1996
its residents will be able to receive satisfactory
service from cellular towers located in a
neighboring jurisdiction. So prohibiting the
siting of the towers in the town may not have
the effect of prohibiting the provision of the
service to town residents. It is the "provision of
the service" that must be allowed, not the
siting of the facility.
What should the locality do?
In addition to examining its current zoning and
land use ordinances, a county or other local
government should undertake the same kind of
review -- and revision if necessary N of the
permitting and other processes that it uses to
grant permission to construct towers and similar
facilities in the community. Is there a standard,
written procedure for processing siting permits
and other approvals? Are similar services treated
similarly? If there are differences in fees,
processing time, bonding requirements or other
regulations, are the differences reasonably related
to the differences between facilities?
The following techniques have allowed various
local governments to accommodate facilities and
still maintain community attractiveness and quality:
Co-location
Co-location means that a number of different
providers locate their transmitting facilities
together in the same place or on the same towers
or mono-poles. Co-location also can include the
use of the same tower or pole for a number of
different kinds of telecommunications services.
Although competitors may balk, most
communications towers can -- and typically do
-- carry several transmitters of several different
providers. The illustration at the right shows the
range of services that can be accommodated at
different heights on one tower. The television
transmitting antenna, which serves ranges of 30 or
more miles, needs a very tall tower ~ 750 to 1000
feet is common -- and is located on the top of
that tower. Several paging service antennas
occupy different locations, and FM radio, SMK
and cellular transmitters occupy lower levels.
A local government that wants to encourage
co-location should keep in mind that it cannot
"unreasonably discriminate" among personal wireless
communications service providers. To protect a
policy of co-location bom charges of unreasonable
discrimination, a local government might:
lower
Antenna Farm
Tel~4sion
FM
Smafl Fl(
Cenul~
High
microwa~
'\
(~and 8~d Ncaa)
Enact the policy into an ordinance.
Provide for incentives for co°location-- such
as a shorter processing time for applicants
who want to locate on a tower that has
already been approved, based on a
reasonable conclusion that such a site
requires less additional evaluation compared
to the legitimate evaluation and review
needed for a new site.
Set out~ in writing the application process
i~l~ A Cou/¥rY ,~D LOCAL Of'P/C/ALS GU/DL~ TO THE TELECOMMUI'IICATIO115 ACT Of= 1996
and other procedures for use of public
property.
Offer the use of public structures and
property, if made available to one provider,
to other providers on reasonably similar
terms and conditions - no exclusive
contracts.
Advance planning
Local governments can require or encourage
companies to lay out their expected needs for
multiple tower sites over a reasonable time into
the future, rather than applying for one tower site
at a time. Localities might proyide incentives for
applicants to submit long-range plans and
multiple site applications. The application fee
structure can be used to that end, as can a
commitment to expedite processing time.
As with co-location, intergovernmental
cooperation is a key to success in sharing
limited resources across multiple jurisdictions.
Pre-determination and identification
Identifying and "mapping" of appropriate
facility sites in a community can be useful. The
public works director, county engineer or an
outside engineering firm could determine
appropriate sites for cellular towers and other
personal wireless communications facilities. Small
communities might pool resources to prepare an
area-wide list of appropriate sites. This kind of
information will be very useful when a jurisdiction
evaluates a particular application. I~ will also help
when the county reviews and revises its zoning
ordinance. With such a survey in hand, the local
government will also be in a better position to
approach the cellular industry for its cooperation
in agreeing to the siting plan.
Some help is also av~ilable from the FCC to
assist localities in implementing this kind of
advanced planning. The FCC maintains a general
database that lists the location and owner of all
towers over 200 feet, towers over 20 feet on
existing structures, such as on a building or water
tower, and towers that are close to airports. The
FCC also maintains a database of cellular and
SMR licensees that contains some, but not all,
information on their existing tower locations.
Joint ventures with the local government
Some local governments have invited private
telecommunications providers to bid on the
construction of towers to be shared by the local
government for public safety communications and
by the private sector for its own needs. The
private sector gets a tower site on public property,
and the local government gets a facility built at
little or no cost. Other examples of joint ventures
include:
· Leasing space to telecommunications
providers on an existing or new public safety
tower.
Leasing space to telecommunications
providers on public structures that are not
otherwise used for telecommunications B
on a water tower, for example, or on top of a
county office building.
· Leasing street light stations and publicly-
owned utility poles.
Leasing publicly-owned land for
construction of wireless communications
facilities.
Another caveat: .the local government may
assume added liabilities as a tower owner.
Leasing public structures requires compatibility
reviews. For example, if a single water tower
serves the entire, community, the risks of damage
or water contamination may outweigh the benefits
of co-location. Any structure that has a radio
antenna on it that extends more than 20 feet
above the structure is also subject to FCC and
FAA aeronautical limitations and requirements
and must be registered with the FCC by the
owner. Recently amended federal law makes the
tower owner, not just the wireless service provider,
responsible for safety, compliance with FCC and
FAA rules, and other regulations, including
painting and lighting. In this context, the term
%ower" includes any structure to which an
antenna is attached, including buildings.
In implementing a joint-venture with private-
sector providers, a local government should:
· Consider conducting a study of the local
government's telecommunications needs;
Consider a lease-purchase arrangement that
transfers the facility to government
ownership after a certain time; a mm-key
arrangement whereby the private provider
builds to suit; or a long-term lease where
ownership of the facility stays in private hands;
A CoutfTV At'rD LOCAL O~:~C~AL5 GUIDE TO TIlE TELECOMMUt'IICATIOh5 ACT or 1996
Provide for non-discriminatory use of the
facility by all eligible telecommunications
providers;
· Conduct a survey of potential sites for
construction;
· Develop a set of specifications for joint
venture proposals;
· Issue a request for joint venture proposals
that is publicly circulated; and
· Accept Competitive bids and evaluate them
through regular contract procedures.
To implement a public land and structures
leasing program, consider the following:
· A survey of appropriate sites and
structures that might be made available;
Standard terms and conditions for leased use
of public space and structures, including
fees, indemnity, quality of construction,
inspection and code compliance
requirements;
· Standard procedures for applications,
negotiations and awards of leases;
· An ordinance or regulation;
· Public disclosure of known leasing
opportunities and terms and conditions; and
· Publicly documenting decisions.
The. management responsibilities involving
multiple user antenna sites are not trivial, and the
local government may wish to hire a consultant to
manage the interference problem for the local
government, or lease the site to a manager for a
percentage of the rental revenue. This latter
approach, properly handled, obviates the problem
of determining what an appropriate rental fee will
be, which will vary from location to location and
among the different radio services at each
location.
What about the Act's procedural
requirements?
A locality should also review the local zoning
ordinance and other regulations to ensure
compliance with the procedural requirements of
Section 704.
A decision on an application for the
pl~ement, construction, or modification of a
wireless facili~ site ~ public or pri~.te ~ must
be made °'within a reasonable period of time."
What is a reasonable time?
The Best Answer:
The amount of time required for you to reach a
reasonable decision.
A Good Answer:
Roughly the same time as it takes to review and
approve or deny applications of a similar nature
and scope for non-telecommunications facilities
-- no more and no less.
A decision denying a request for
permission to install or construct wireless
telecommunications facilities must be in
wr/ting and must be based on evidence in a
written record. Most zoning boards and
planning commissions do this already. Some
public works departments, however, may have
· to change their procedure. Be sure you have:
· written applications;
· written materials documenting the review of
the application by the staff or officials;
· written transcripts of any hearings on the
application;.
· written copies of testimony presented at
any hearing;
a written denial; and
references in the written denial to the
evidence in the record that formed the
basis for the denial.
Some additional questions a local
government may face:
Citizens are concerned that cellular towers
may emit harmful radiation. Can we deny
an application because of this concern?
As long as the tower meets the radiation
emission standards that have been set by the FCC,
A Cou/'r[y At'iD LOCAL OffiCIALS GUIDE TO TIlE TELI~COMMUI'IICATIOi'f$ ACT O/= 1995
a local government cannot deny a permit based
on concern about radiation. You can, however,
require that the applicant provide evidence that
the tower meets the FCC standards.
We need t/me to review and revise our
oM/nanc~s. Can we ho/d off making any deddons
or taking any applications until we do so?
The cellular industry will argue that any delay
or moratorium in processing applications in effect
prohibits their ability to provide service. The U.S.
District Court for the Western District of
Washington (State), however, in Sprint St~ectrum,
L.P.v. City of Medina, 1996 U.S. Dist. LEXIS
6469, has recently ruled that a city that placed a
six-month moratorium on applications for towers
while it revised its zoning ordinance did not
violate the Telecommunications Act. The court
said that the city clearly intended to process and
approve applications once the ordinance was
revised, and that a temporary moratorium was,
under that State's law, an appropriate zoning tool.
Who &cide~ if a local government body has
violated the Telecommunkatlonz Act provisions
on wireless communications facilities?
Claims that a local government has violated
this section of the Telecommunications Act will
be adjudicated by the appropriate state or federal
court. "Any person adversely affected" by t~he
action of the local government may bring in an
action in either state or federal court. The only
issue that can be appealed to the FCC is a claim
that the local government improperly denied an
application based on the harmful effects of radio
frequency emissions.
Are there any federal requirements applicable
to a wireless provider? Can a local
government require that these be met before
issuing a zoning or other pent, it w conmmct
or modify a cellular tower or other wire/ess
service facility?
Yes. All antenna structures used for
communications must be approved by the FCC in
accordance with its regulations. In general, towers
over 200 feet and antennas that extend more than
20 feet above a supporting structure must meet
Federal Aviation Administration requirements for
marking and lighting, and towers in cririesl
airspace near airports need other FAA clearances.
In addition, towers must meet the requirements of
the National Environmental Policy Act (NEPA).
The FCC requires applicants to show that a new
tower will comply with federal rules affecting
wilderness areas, wildlife preserves, endangered
species, historical sites, American Indian religious
sites, flood plains, wetlands, high-intensity white
lights in residential neighborhoods, and excessive
radio-frequency radiation exposure. Applications
for towers that may have a significant
environmental impact must go on public notice
for comment.
A court is likely to find a local government
acted reasonably if it first required that an
applicant demonstrate that the tower has met
these federal requirements as a condition of local
site, construction, or modification approval.
Does the FCC offer any assistance to local
governments in siting and modifying wireless
facilities?
Yes. The FCC has several databases available
with information on licenses granted by area and
by service. The FCC also has designated a specific
person to answer local governments' technical
questions. For information contact Steve
Markendorff, Chief of the Broadband Branch in
the Wireless Telecommunications Bureau, at
(202) 418-0620 (e-mail: smarkend@fcc.gov). To
access the databases on-line, call Interactive
Systems, Inc., 1601 North Kent Street, Suite
1103, Arlington, Virginia, (703) 812-8270, or visit
the FCC Wireless Bureau's Public Reference
Room, 2025 M Street, N.W., Washington, D.C.
20554, (202) 3418-1350.
Satellite "Dishes"
The Act deals with satellite service reception
antennas differently than it does with wireless
telecommunications towers and antennas. And
the FCC has interpreted the Act's provisions
relating to satellite dishes as being far more
restrictive of local regulations.
Satellite programming services involve the
transmission of signals from a satellite to a
receiver, usually a round "dish" that can vary in
size from 18 inches to 10 or more feet in diameter.
The size of the dish varies with the nature and
strength of the satellite transmissions. The
familiar, large backyard dishes are known as "C-
Band" Satellite dishes. These dishes are used to
receive lower powered transmissions. More
recently, direct broadcast satellite, or "DBS," service
has appeared. DBS uses higher power transmissions,
A Coumy AHD LOCAL Ot:rlCIAIJ GUIDE TO THE TE~CO~4~fUrflCATtOhtS ACT Of= 1995
enabling subscribers to use small 3-foot or even
18-inch dishes. A small, 18-inch flat receiver has
also been developed primarily for home use.
Satellite dishes are anchored to the ground or
to the top of buildings or terraces. Not all "dishes",
however, are used for video programming. Businesses
use dishes called Very Small Aperture Terminals,
or VSATs, for two-way data communications.
These tend to be 5 to 6 feet in diameter.
Section 207 of the Act provides that:
Within 180 days after the date of enactment of
the Act, the Commission shall, pursuant to section
303 of the Communications Act of 1934,
promulgate regulations to prohibit restrictions that
impair a viewer's ability to receive video
programming services through devices designed for
over. the.air reception of television broadcast
signals, multichannel multi-point distribution
service, or direct broadcast satellite services.
To implement this section, the FCC has issued
rules, effective in August 1996, that prohibit most
state and local restrictions on satellite dishes,
MMDS antennas, and television reception
antennas. The rules are in two parts. The first part
covers small dishes and MMDS antennas and all
television antennas. It reads as follows:
· 1.4000. Restrict/ohs impairing reception of
Television Broadcast Signals, Direct Broadcast
Signals, Direct Broadcast Satellite Services or
Mulrichannel Mult/point Distribution Services
(a) Any restriction, including but not limited to
any state or local law or regulation, including zoning,
land-use, or building regulation, or any private
covenant, horneourners' association rule or similar
restrict/on on property within the exclusive use or
control of the antenna user where the user has a direct'
or indirect ownership interest in the property, that
impairs the installation, maintenance, or use of:
(1) an antenna that is designed to receive
d/rect broadcast satellite service, including
or less in diameter or is located in Alaska: or
(2) an antenna that is designed to receive
video programming services via multipoint
distribution services, including mukichannel
mult/point distribution services, instructional
television fixed services, and local multipoint
distribution services, and that is one meter or
less in diameter or diagonal measurement: or
(3) an antenna that is designed to receive
television bi'oadcast signals,
is prohibited, to the extent it so impairs, subject
to paragraph (b). For purposes of this rule, a law,
regulation, or restriction impairs installation,
maintenance or use of an antenna/fit: (I)
unreasonably delays or prevents installation,
maintenance, or use, (2) unreasonably increases
the cost of installation, maintenance, or use, or (3)
precludes reception of an acceptable quality signal.
No cml, criminal, administrative, or other legal action
of any kind shall be taken to enforce any restriction or
regulation prohibited by this rule except pursuant to
paragraph (c) or (d). No fine or other penakies shall
accrue against an antenna user while a proceeding
is pending to determine the validity of any restriction.
In an attempt to provide guidance on
implementing this part of its rules, the FCC has
given several examples of local government
restrictions that would not be prohibited. The
FCC has indicated that a requirement that dishes
be placed in rear yards whenever possible or that
they be screened from sight would not be
prohibited, as long as the result was not to prevent
reception of a signal or to impose "unreasonable"
delay or unreasonable costs. The FCC has not said
what it means by ."unreasonable delay." It does say
that if costs are imposed to screen other similar
devices in the neighborhood, such as air
conditioning units or trash receptacles, similar
requirements imposed on antennas may be
considered reasonable.
This new FCC rule provides certain exceptions
to the general prohibition on restrictions on small
satellite dishes and antennas. A restriction is
permitted, even if it impairs or prevents reception,
or imposes unreasonable cost or delay, under the
following circumstances:
(I) it is necessary to accomplish a clearly
defined safety objective that is either stated
in the text, preamble or legislative history of
the restrict/on or.described as applying to
that restriction in a document that is readily
available to antenna users, and would be
applied to the extent practicable in a non.
discriminatory manner to other
appurtenances, devices, or fixtures that are
CounTY A~fD LOC. At OPt=tCML5 GU~Df TO Tl-lf TgLfCOM~4UMtCAT~O~$ ACT Of 1996
C
comparable in size, weight and appearance
to these antennas and to which local
regulation would normally apply; Or
(2) is necessary to preserve an historic
district listed or eligible for listing in the
National Register of Historic Places, as ~
forth in the National Historic Preservation
Act of 1966, as amended, 16 U.S.C. §
470a, and imposes no greater restrictions on
antennas covered by tiffs rule than are imposed
on the installation, maintenance or use of
other modem appurtenances, devices, or
]baures that are comparable in size, weight
and appearance to these antennas; and
(3) it is no more burdensome to affected
antennas users than is necessary to achieve
the objective described above.
The FCC has given several examples of safety
restrictions on small satellite dishes, MMDS
antennas and television antennas that it considers
acceptable. These include restrictions on the
closeness of antennas to high voltage power lines,
requirements to keep a dear line of sight at
intersections, requirements for adequate bolting
or use of guy wires, prohibitions on blocking ~e
exits, requirements that antennas be a distance
from the lot line, and, in general, provisions of the
National Fire Association's model code and the
BOCA Code of the Building Officials & Code
Administrators International, Inc.
Note that the exception in the rule for
restrictions in historic districts applies only to
federally recognized or eligible sites or areas. To
enforce a restriction in a state or local historic
district that is not on or digible for the National
Register, a local government would have to obtain
a waiver from the FCC.
Local governments that wish to enforce
restrictions that do not meet these exceptions uriI1
have to apply to the FCC for a waiver. Disputes
about whether a restriction for which a waiver has
not been issued can be enforced can be taken to
court or to the FCC.
The second part of the rule applies to medium
size satellite earth stations that are between one
and two meters in diameter and are located in
commercial or industrial areas. That rule is much
broaderw it preempts any regulation that merely
"affects" these dishes, not just regulations that
impair reception. It reads as follows:
25.104 Preempfon of Local Zoning of Earth
Stations
(b) (1) Any state or local zoning, land.use,
building, or similar regulation that affects the
installation, maintenance, or use ora satellite earth
station antenna that/s two meters or/ess in
diameter and is located or proposed to be located in
any area where commercial or industrial uses are
generally permitted by non.federal land-use
regulation shall be presumed unreasonable and is
therefore preempted subject to paragraph (b) (2).
No civil, criminal, administrative, or other legal
action of any kind shall be taken to enforce any
regulation covered by this presumption unless the
promulgating authority has obtained a waiver from
the Commiss/on pursuant to paragraph (e), or a
final declaration from the Commiss/on or a court of
competent jurisdiction that the presumption has
been rebutted pursuant to paragraph (b) (2).
Counties and all other local governments that
believe their building code, zoning, and other
regulations pertaining to satellite dishes between
one and two meters in size in commercial and
industrial areas are reasonable and want to
enforce them must apply to the FCC for a waiver.
To obtain a waiver, the local governing body
must file an original petition and two copies by
mail or hand delivery (faxes are not accepted)
with the Secretary, Federal Communications
Commission, 1919 M Street, N.W., Washington,
D.C. 20554. The petition is a legal document in a
form prescribed by the FCC that should identify
the specific regulation for which the local
government wants a waiver, and discuss in
convincing detail the reasons why the regulation
meets the criteria for a waiver. The FCC will
assign the petition a number and issue a public
notice that the petition has been filed. Anyone
opposed to the petition may file comments with
the FCC within 30 days after the Notice is
published, and replies to the opposition may be filed
by interested parties, including the local
government, within 15 days from the date the
oppositions are due. All the comments and replies
are publii documents. The FCC has not established
any deadlines for itself to make a decision on
petitions from local governments for waivers. The
burden of proof is on the local government to
demonstrate that the restriction is reasonable.
A CourffY AND LOCAL OrI:tCMtJ GUtDf TO THf TfLfCOMMUNtCATIOI~ ACT Of' 1996
Finally, for satellite dishes more than two
meters in diameter, the FCC has kept in place
previous rules. The FCC did not immediately
prohibit the enforcement of local regulation of
these larger dishes, but provided that a citizen
could petition the FCC for a declaration that the
local or state regulation affecting larger dishes is
preempted. If a local regulation of larger dishes is
challenged, the burden is again put on the local
government to prove that its regulation is not
unreasonable. A citizen or business that believes
it has been aggrieved by the application or
potential application of a state or local zoning or
other regulation affecting the larger dishes must
file a petition with the FCC asking that the
regulation be declared unreasonable. The
petitioner must show that it has exhausted all
local administrative remedies before asking the
FCC to get involved. The petitioner must show,
for example, the normal zoning .or other appeal
process has been completed.
A county or other local government will know
when someone has appealed to the FCC: because
the petitioner must serve a copy on the
appropriate local officials, and the FCC] will send a
copy of its notice that the petition has been flied
to affected parties by certified mail. After public
notice the local government and others will have
30 days to comment, and an additional 15 days for
replies. Again, the FCC has not established any
deadlines for its own decision making.
In filing a petition to enforce its regulations or
to defend itself against a petition to bar
enforcement, a local government will want to
consult its attorney or an attorney specializing in
FCC matters.
Television Antennas
and MMDS Antennas
Common television antennas range from small
roof-top extensions to large free-standing
reception towers used by businesses and
homeowners in outlying areas. MMDS, also
known as "wireless cable," is a service involving
the transmission of multiple channels of television
programming through earth-bound (rather than
.satellite) transmitters. To receive MMDS, a
subscriber must have a special antenna installed.
The FCC has adopted the same rules and
procedures for MMDS and television antennas as
for small satellite dishes.
Private Covenants
and Restrictions
In many jurisdictions, restrictions on the use or
place,,,~,~.t of television antennas and satellite
dishes are contained in restrictive covenants in
private developments rather than in any local law
or zoning ordinances. The FCC's rules on small
satellite dishes and antennas discussed above
apply to these private rules and covenants if the
prop~rha question is owned or controlled by the
antenna user. The FCC has not yet made a
decision on how to treat restrictions that apply to
rental property, such as provisions in a tenant's
lease that forbid putting an antenna on the roof,
or restrictions that apply to common areas of
condominiums, cooperatives and similar property.
Telecommunications Facilities
on Federal and State Property
Finally, local governments that have federal
buildings or federally owned lands such as
national parks and forests within their borders will
be interested in new section 704(c) of the
Telecommunications Act. This provision should
be a model for local governments considering
adopting siting policies. Ideally, this policy could
be adopted by the FCC as the standard for all
government entities engaged in cellular tower
siting. The provision encourages federal agencies
to make federal property, rights-of-way, and
easements available for a broad range of private
sector telecommunications facilities, including
television broadcast towers, cellular telephone
towers, and microwave transmitters.
The General Services Administration has
established policy guidelines for federal agencies to
carry out this provision. In contrast to the proposals
of the FCC, the GSA policy is respectful of
governmental interests -- both federal, state and
local. It requires federal agencies to act on requests
for siting commercial facilities "in accordance with.
.. State and local laws and regulations, and
consistent with.., public health and safety
concerns, environmental and aesthetic concerns,
preservation of historic buildings and monuments,
protection of natural and cultural resources .... "
Local governments may want to contact the local
or regional office of federal agencies that have
buildings or. land in the community to ensure that
this coordination takes place.
~ A COUIYTY Al'ID LOCAL OPI=ICt,~L$ GU/DE TO THE Te:LECOMtaUr~ICATIO~$ ACT Or 1996