CITY COUNCIL STUDY SESSION MEMORANDUM

Transcription

1 City and County of Broomfield, Colorado CITY COUNCIL STUDY SESSION MEMORANDUM To: Mayor and City Council From: Charles Ozaki, City and County Manager Prepared by: Kevin Standbridge, Deputy City and County Manager David Shinneman, Director of Community Development Kirk Oglesby, Code Compliance Manager Meeting Date Agenda Item # March 15, Agenda Title Cellular Tower Regulation Summary At the December 15, 2015, City Council meeting, the City Council directed staff to schedule a study session to discuss issues related to cellular tower review and regulation. Cellular towers and antenna placements were handled through the site development plan and urban renewal plan process prior to the 1996 adoption of specific regulations addressing Commercial Mobile Radio Facilities. The Broomfield Municipal Code (BMC) was updated in 2000 to allow administrative approvals for cellular facilities to encourage companies to utilize inconspicuous, aesthetically unobtrusive antenna locations. Attachment 1 summarizes trends in the wireless communication industry and provides general resource information and model codes provided by the research group of the American Planning Association. As a result of these regulations, many installations occurred on existing buildings or existing towers. Co-location of various carriers became common and many antennas were placed on building walls and rooftops as well as on towers. Existing facilities are shown on Attachment 2 and are listed on Attachment 3. An example of a coverage map is included as Attachment 4. Local governments regulate the placement of facilities while the Federal Communications Commission regulates technical issues such as radiofrequency exposure and interference. Broomfield s Wireless Communications Facilities regulations are found in Chapter of the Broomfield Municipal Code (Attachment 5). The Federal Communications Commission (FCC) published a local government guide on radiofrequency (RF) emissions from transmitting antennas (Attachment 6) along with a list of frequently asked questions (Attachment 7). Mark McFarland, an engineering consultant retained by Broomfield, will talk generally about the assignment of band widths to different users. The future trend is for increasing demands for access by a variety of devices. A Verizon Wireless representative will provide general comments on the direction the industry is headed over the next 3-5 years and Mr. McFarland will talk generally about band width in the future. Demand has grown beyond simple phone service to demands for internet access and streaming video. Technological advances and continued consumer demand for more and faster data in a variety of forms is predicted to drive the creation of an increasingly robust delivery system for our future wireless networks. The elements contained in Broomfield s current regulations are found in most local regulations and include best practices in local government regulation. These elements include the following items: o Administrative approval if standards met o Site plan submittal o Visual analysis o Affirmations of FCC compliance o Co-location options o Minimum setbacks o Compatibility with natural features/nearby structures o Height restrictions o Review criteria A Federal Communications Commission order took effect on April 1, 2015, requiring approval of any co-location or modification that does not constitute a substantial change. An amendment to the municipal code could be considered to define what constitutes a substantial change in order to assure compliance with this order. Financial Considerations No financial impact has been identified at this time. Alternatives Amend the Broomfield Municipal Code to comply with recent FCC order. Make no changes to the Broomfield Municipal Code. Make changes to the Broomfield Municipal Code as directed by City Council. Prior Council Action Ordinance No was approved September 10, 1996, regulating Commercial Mobile Radio Service Facilities. Ordinance No was approved December 12, 2000, modifying regulations for Wireless Facilities. Proposed Actions/Recommendations Review and discuss the regulation of Wireless Communications Facilities within Broomfield. Item 2 - Page 1

2 Cellular Tower Regulation Page 2 BACKGROUND At the December 15, 2015, City Council meeting, Council directed staff to schedule a study session to discuss issues related to cell tower review and regulation. Metropolitan areas typically have a large number of cell phone facilities that are placed in a variety of locations. All local municipalities regulate the placement of these facilities but these regulations differ from each other. Information on the issues and approaches to regulation are discussed below. During the Study Session, in addition to a staff summary of the highlights of this memorandum, Verizon will provide a brief presentation regarding their expectations of the changes in the industry in the next 3-5 years and Mark McFarland, an engineer retained by Broomfield, will generally discuss the assignment of band width to users and the protections in place between band widths. Attachment 1 to this memorandum is a summary of best practices and issues affecting the siting of cellular towers provided by the research group of the American Planning Association. The attachment includes numerous links to general resources, model municipal codes for siting cellular tower facilities and examples of siting ordinances from other communities throughout the United States. HISTORY OF REGULATION Prior to 1996, the Broomfield municipal code had no specific provisions for cell phone facilities. The code included restrictions on towers that were commonly used for radio transmission and long distance telephone service. The restrictions also covered structures such as the wind generator tower in Lac Amora and residential towers used by ham radio operators. During the 1990s, long distance telephone service shifted away from the use of microwave dishes which required line of sight transmission. As the demand grew for new towers for cellular phone service, applications for monopoles and installations on existing buildings increased. Two examples during 1996 were a new monopole on the Mile High Water District tanks on W. 152 nd Avenue and the installation of antennas on the old Barber s Turkey building on W. 120 th Avenue now Wal-Mart. The monopole required a site development plan while the antennas on the building required approval of an urban renewal site plan. Both required public hearings and approvals by City Council. This collection of differing processes was complicated and cumbersome so City Council looked at new regulations to establish standards and streamline the process. Initial Regulations 1996 Following a July 1996 study session, City Council approved Ordinance No on September 10, 1996, creating a new section in the municipal code to address towers and accessory buildings for wireless communication facilities, cellular telephone facilities and microwave transmission facilities. The new ordinance restricted facilities to non-residential areas and set design standards. A minimum setback of 200 feet from residential areas was set and height was limited to 50 feet, with an additional 20 feet per co-locating user, up to 70 feet. Administrative approval was discussed but not allowed. Updated Regulations 2000 In 2000 the City Council requested staff develop an administrative process for the review of wireless telecommunications facilities. As noted in the staff memorandum, The administrative approval process will create an incentive for wireless companies to utilize inconspicuous, aesthetically unobtrusive antenna locations by providing a shorter review and process timeline. Ordinance No created an administrative process for co-locations and building mounted Item 2 - Page 2

3 Cellular Tower Regulation Page 3 antennae and also added provisions requiring a visual analysis and conformance with Federal Communications Commission (FCC) regulations. EXISTING FACILITIES AND COVERAGE As intended with the amendments to Broomfield s siting ordinance, many installations occurred on existing buildings or existing towers. Co-location of various carriers became common and many antennas were placed on building walls and rooftops as well as on towers because they could be approved administratively. A map showing existing installations in Broomfield is included as Attachment 2. A descriptive list of the installations is included as Attachment 3 with numbers corresponding to the locations shown on the included map. Several different companies are located on the various towers and buildings. Many towers are owned by property owners or companies such as American Tower Management who do not provide cell service themselves. While smaller carriers have come and gone over the years, the major carriers such as Verizon, AT&T, Sprint and T-Mobile continue to dominate most of the Denver metropolitan market, including Broomfield. An example of a coverage map from T-Mobile is included as Attachment 4. While coverage shown on these types of maps from the major carriers may appear adequate, increasing customer demands for data coupled with the increase in the variety of wireless devices will likely result in additional installations in Broomfield in the future. Examples of different types of installations found in Broomfield are shown following this paragraph. The old microwave tower shown below is located west of Wadsworth Parkway on the south side of State Highway 128. The tower was formerly used to support a very large microwave dish. The large dish was removed and the tower structure was repurposed to support the installation of antennas for many users who co-located on the same tower. Examples also include monopoles in Community Park which replaced a light tower for one of the ball fields and installations on existing buildings. Old microwave tower on SH 128 US Bank on W. 120 th Avenue Community Park monopole Grain elevator on Colmans Way Item 2 - Page 3

4 Cellular Tower Regulation Page 4 EXISTING AND FORECASTED SERVICE LEVELS - TRENDS Existing installations provide varying levels of service for competing providers. Although coverage may appear adequate on the coverage maps shown on local provider websites, coverage by all providers is not complete throughout Broomfield and companies are still seeking to improve their coverage to meet the expectations of their customers. In addition, wireless devices continue to increase in number and type. Wireless internet access is now provided by not only smart phones but is used by new cars, tablets, watches and other new devices. The future trend is for increasing demands for access by a variety of devices. Demand has grown beyond simple phone service to demands for internet access and streaming video. Technological advances and continued consumer demand for more and faster data in a variety of forms is predicted to drive the creation of an increasingly robust delivery system for our future wireless networks. The increasingly decentralized delivery system is likely to result in additional installations in Broomfield and the larger metropolitan area. SITING ISSUES AND AREAS OF RESPONSIBILITY Local governments continue to be responsible for regulating issues related to the location of facilities. Broomfield s Wireless Communications Facilities regulations are found in Chapter of the Broomfield Municipal Code and are included as Attachment 5. The Federal Communications Commission (FCC) regulates technical issues regarding levels of radiofrequency (RF) exposure and signal interference. Some common areas of concern are noted below: 1. RF emissions safety The FCC establishes maximum permissible exposure (MPE) limits and guidelines for RF emissions. Compliance with these guidelines is required to obtain FCC approval to construct or operate a station or transmitter. Detailed information on exposure limits for radio frequency can be found in Attachment 6 A Local Government Official s Guide to Transmitting Antenna RF Emissions Safety. In general, most facilities create exposures that are only a small fraction of the limits. Moreover, the limits are many times below levels that are generally accepted as having the potential to cause adverse health effects. Further, the required setbacks contained in local government regulations exceed the recommended setbacks to ensure compliance with the FCC guidelines. The FCC also publishes a list of frequently asked questions (FAQ) which contains useful information. A copy of this publication is included as Attachment Signal interference The FCC also regulates RF emissions to avoid signal interference with other devices such as televisions or public safety radio channels. These restrictions apply not only to cellular installations but also to private users such as ham radio operators. 3. Aesthetics Visual concerns can arise when a new facility is proposed. The current regulations in the Broomfield Municipal Code require a visual analysis to identify possible visual impacts. Some impacts can be mitigated by color and design to blend in or by creating facilities designed to be compatible with surrounding buildings and structures. Towers and poles can be hidden inside of silos or other structures. Sometimes towers are built to look like trees, windmills, buildings or steeples. Use of color on many building mounted antennas can make them blend in with the building itself. 4. Noise Generators associated with cellular installations can produce noise. Usually the noise is confined to an enclosed structure and is located far enough away from the property line to avoid neighborhood impacts. Although noise complaints have been rare, one complaint arose in the Sunny Slope neighborhood due to a noisy generator that was periodically tested. When the operator was contacted about the complaint, the generator was replaced with a quieter model and the complaint was resolved. Noise in general is Item 2 - Page 4

5 Cellular Tower Regulation Page 5 regulated by Broomfield s noise provisions found in Chapter 9-36 of the Broomfield Municipal Code. 5. Other Other issues associated with installations include access, fencing, and landscaping. These issues are typically resolved during the application and review process for a new facility. Local government regulation of cell towers based upon health and environmental concerns is limited due to Federal pre-emption in this area. Specifically Section 704 (B) (iv) of the Telecommunication Act of 1996 provides that No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless services facilities on the basis of the environmental effects of RF emissions to the extent that such facilities comply with the [Federal Communications] Commission s regulations concerning such emissions. So, to the extent that a proposal is for a tower that complies with all FCC regulations on RF emissions, the City and County cannot deny the application based on the suggested health impacts of the facility. BEST PRACTICES BROOMFIELD AND NEARBY CITIES The elements contained in Broomfield s current regulations are found in most local regulations and include best practices in local government regulation. These elements include the following items: Administrative approval if proposal meets adopted standards; Site plan submittals; Narratives regarding alternatives to the proposed facility and compatibility with natural features and surrounding buildings and structures; Affirmations of FCC compliance; Co-location options; Height restrictions; Minimum setbacks from property lines; and Review criteria. Although the same elements are found in other cities, the elements often vary in their specific requirements. For example, in the cities noted in the table below, different height limits are used. Two of the five cities impose greater setbacks for projects adjacent to residential areas. Some of the key features contained in the regulations for each city are highlighted in the table below: Item 2 - Page 5

6 Cellular Tower Regulation Page 6 City Arvada Broomfield Erie Thornton Westminster Administrative approval allowed? Yes for antennas on existing buildings or towers Yes for antennas on existing buildings or towers Yes for antennas on existing buildings or towers Yes for antennas on existing buildings or towers Yes for new towers and antennas Hearing required for new tower? Yes Height Limit None If > 90 need ¼ mile separation Setback from property line 25% of height or equal to height if adjacent to residential Yes* 50 Equal to height No Yes 75 Additional height up to 150 allowed for colocation Yes 50 residential No 80 nonresidential None Handled on case by case basis Equal to height or 200 if adjacent to residential 50% of height or equal to height if adjacent to residential Equal to height or 200 if adjacent to residential Fencing Required? Yes - 6 Yes 8 Yes 6 Yes 6 *Unless monopole is <5 taller than surrounding light poles In addition to the items shown above, the specific review criteria vary between cities. Broomfield has the most restrictive height limits of the cities noted above. FCC RECENT ORDER POSSIBLE CHANGES The Federal Communications Commission issued an order that took effect on April 1, 2015, requiring approval by local jurisdictions of any co-location or modification that does not constitute a substantial change. Although the implementation of this order might be accomplished under the existing municipal code, it would be helpful to add clarification regarding what constitutes a substantial change. The City and County Attorney s office has reviewed the order and is prepared to submit appropriate modifications to the existing municipal code. If any other changes are made to the municipal code regarding wireless communication facilities, these items can be included as well. Item 2 - Page 6

7 Cellular Tower Regulation Page 7 OPTIONS AND POSSIBLE MODIFICATIONS Possible changes to the municipal code might include some or all of the following elements which could be included in a new ordinance if needed: Define what constitutes a substantial change as discussed above and clarify which facilities are eligible for administrative approval. Increase setbacks from residential property lines to further mitigate impacts on surrounding areas. Allow taller heights for monopoles with co-located facilities similar to other cities. Modify the section on review criteria to include additional aesthetic considerations. Other changes as desired by City Council. NEXT STEPS If City Council is interested in considering modifications to the regulations contained in the municipal code, staff will prepare a draft ordinance for review at an upcoming City Council study session. Item 2 - Page 7

8 From: Ann Dillemuth Sent: Wednesday, February 10, :44 AM To: John Hilgers Subject: PAS Inquiry Response - Wireless Communication Facilities John, Regarding your request for information on best practices for siting cell phone towers and other wireless communication facilities: Generally speaking, the trend in wireless facilities has been moving away from large freestanding towers to co-location of new wireless antennas on existing telecommunications facilities as well as camouflaged or stealth antenna placement on existing buildings and structures. This is reflected in ordinances that establish different levels of review (e.g., by right permission, administrative review, conditional use permit requirements, prohibition) and different standards for different types of wireless facilities (e.g., stealth buildingmounted, utility pole-mounted, collocated, freestanding towers) to encourage these smaller installations in ways that minimize visual impacts. In many communities, new wireless facility installations are trending toward use of mini or micro-cell wireless technology and Distributed Antenna Systems, or DAS: smaller, lowpower wireless telecommunications antennas typically installed as systems on existing structures or poles. Proponents of this type of infrastructure praise it for being able to fill gaps in coverage and boost network capacity while eliminating the need for large monopoles that are more strictly regulated at the local level; the small size of these facilities also means they are more easily installed on existing buildings or structures and may be less aesthetically objectionable than larger cell towers. However, the shorter ranges of these antennae mean that more of them are required. Following the general trends noted above, these smaller antennas are typically placed on existing buildings and structures throughout the community and commonly use camouflage or "stealth" techniques, such as concealment within architectural or structural features, to minimize visual impacts. Such existing structures often include light or utility poles in the public right-of-way, which has set the regulation of DAS apart from traditional wireless communications facilities. As a result, a number of communities have adopted new regulations specific to wireless facility installation in the public right-of-way that take federal telecommunications requirements into consideration. Some communities have also added DAS-specific definitions, provisions, and standards to their codes, in some cases expressing a preference for DAS facilities and allowing the installation of this equipment by right subject to certain standards to reduce negative visual impacts. To run through the federal regulations that affect the ability of local governments to regulate these facilities: Section 332 of the TCA prohibits state and local regulations from unreasonably discriminating among providers of functionally equivalent services and considers the regulatory burden upon wireless providers, the encouragement of competition, and the openness of local markets to any commercial mobile service. Wireless providers have successfully challenged local zoning regulations and site-specific permit denials under this section of the TCA. Wireless providers have also proactively sought enjoinment of excessive local regulations under an additional section of the TCA, Section 253. So far, court rulings have taken aim at application requirements and review processes that lengthen the review time period and make it more costly for developers. On November 18, 2009, the FCC issued a declaratory Item 2 - Page 8

9 ruling to define a reasonable time period for local review of tower applications. Local governments have 90 days to make decisions about collocation and 150 days for other applications. The ruling also prevents local governments from dealing with all new facility proposals through zoning variances. Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (TRA) is the most recent federal law to impact local regulation of telecommunications towers. It significantly impacts the ability of local governments to regulate telecommunications facilities within their jurisdictions, requiring state and local governments to administratively approve any eligible facilities request for a modification of an existing telecommunications tower or base station that does not substantially change the physical dimensions of that tower or base stations. The FCC released its final rulemaking in 2015 to more clearly define the terminology used in the statutes, clarifying which facilities are included by these rules, defining the specifics of "substantial change," and responding to a number of concerns voiced by local governments about the new regulations. As part of the clarification of the Section 6409(a) regulations, two industry groups, CTIA and PCIA, committed to work with municipal representatives to provide resources and assistance to help local governments understand and implement that ruling. The National Association of Counties and the National League of Cities, along with the National Association of Telecommunications Officers, released in early 2015 a model ordinance and application checklist. The model ordinance establishes administrative procedures and an application for "eligible facilities requests" for collocation, removal, or replacement of transmission equipment under Section 6409(a). If the request is eligible under Section 6409(a) (e.g., if it does not "substantially change" as defined the physical dimensions of the tower or base station), it must be approved within 60 days. Since the passage of Section 6409(a), a number of communities have amended their codes to comply with these requirements. In general, these ordinance amendments add definitions for relevant terms such as "eligible facilities request" and "substantial change," and provide that applications for collocation, removal, or replacement of telecommunications that do not result in substantial change must be administratively approved. Below I've provided some background resources on regulating and siting wireless telecommunications facilities and Distributed Antenna Systems. I've also provided links to a number of resources addressing Section 6409(a) interpretation and implementation, including the FCC rules and articles discussing the consequences of these changes, and have provided the model Section 6409(a) ordinance and checklist, as well as some model telecommunications ordinances dating from 2012 or later that take Section 6409(a) into account. I've also provided a number of sample ordinances that show how communities are regulating telecommunications facilities, including microcell or DAS facilities, and how they prioritize their location preferences and establish design and treatment standards for these facilities. I've then provided a number of sample ordinance provisions from different communities that address new Section 6409(a) eligible facilities requests. I will note that a number of these ordinances set a 90-day application approval timeframe for the eligible facilities requests, but Section 6409(a) sets a 60-day shot clock for these applications, so I'm not exactly sure how these local governments are reconciling those two timeframes. Included are two Colorado ordinances from Longmont and Thornton. I hope you find this material helpful! Thank you for using the PAS Inquiry Answer Service, and please let us know if we can be of further assistance. Please return the Outlook read Item 2 - Page 9

10 receipt attached to this message or otherwise let us know that you have received this Inquiry Response. General Resources, Regulating Telecommunications Facilities: CityScape Consultants Albemarle County, Virginia, Analysis of Wireless Telecommunications Trends and Policies. Prepared for Albemarle County, Virginia. Available at ment/forms/other/albemarle_wireless_telcom_analysis_ pdf. Report offers information on trends in wireless technology and deployment; legal issues affecting local regulation of wireless facilities; and analyzes Albemarle County's wireless telecommunications ordinance for compliance with most recent federal and legal decisions. (Note: Albemarle County's ordinance was identified by Scenic America as "one of the best" local wireless policies in the country.) Federal Communications Commission Acceleration of Broadband Deployment by Improving Wireless Siting Facilities, Report and Order, WT Docket No , et. al., FCC October 21. Available at Most recent FCC ruling intended to streamline broadband deployment addresses DAS, small cell, and other wireless facilities and describes their importance in broadband deployment. New Hampshire Office of Energy and Planning Planning for Wireless Telecommunications. Available at Technical bulletin updated though 2014 to address changes in federal law including Section 6409(a). Though set in NH legal context, explains how wireless technology operates and how wireless networks are deployed, suggests issues to consider in regulating these facilities, and provides a checklist for a wireless telecommunications ordinance. Pestle, John Cellular Tower Zoning, Siting, Leasing and Franchising: Federal Developments and Municipal Interests. Grand Rapids, Michigan: Varnum Law. Available at asing_and_franchising.pdf. Excellent overview and summary of how the courts have interpreted the TCA since its adoption. Recommends encouraging (but not requiring) stealth or camouflaging and DAS/microcell systems; see p. 6. Pestle, John Federal Cell Tower Zoning: Key Points and Practical Suggestions. Zoning Practice, August. Available at Excellent overview of how the Telecommunications Act affects local zoning of wireless facilities. Addresses camouflaging on p. 6 and DAS on p. 7. Ramachandran, Srividya Kannan Establishing A Regulatory Framework for Distributed Antenna Systems. July 15, Telecommunications Policy Research Conference. Available for download at See Section IV, Role of Municipalities in Managing Rights-of-Way, which provides an overview of DAS-related municipal level regulations and by analyzing common aspects of various recent and related lawsuits. Case studies "suggest modifications Item 2 - Page 10

11 to the existing regulatory framework to achieve essential policy goals without hindering the growth of the incipient DAS technology." Smith, Robert Managing Wireless Infrastructure Deployment. Practicing Planner 5(2). PDF attached. Overview of important issues to consider when dealing with wireless telecommunications facility siting; addresses updating ordinances. Suggests that encouraging stealth designs can decrease monotony. Steiner, Harriet, and Joseph Van Eaton "Wireless Antenna Update: Distributed Antenna Systems State and Federal Mandatory Collocation; New Regulatory and Legal Challenges." League of California Cities City Attorneys Spring Conference, May 2 4. Available at 487d-88aa-cad be.pdf. Conference presentation describes some of the legal questions that DAS bring, industry arguments, and questions for cities to ask themselves about DAS policies. See also "Wireless Antenna Issues." Part IV, Development to Watch; part A, Industry Expands Deployments of Distributed Antenna System (DAS). League of California Cities 2012 Spring Conference, Available at Conf-Wireless%20Antenna-Issues.pdf. See also similar presentation, Van Eaton, Joseph "Distributed Antenna Systems: Addressing Deployment of New Wireless Technologies." Best Best & Krieger, presentation to Village of Scarsdale, New York, May 7. Available at Stinnett, Gena M "Right-of-Way Turf Wars: Enter DAS Facilities." Advisor, Richards Watson Gershon, Fall. Available at Describes issues and provides recommendations for cities facing requests from providers to locate DAS in public rights-of-way. West, Clarence "Local Regulation of Wireless Antenna Siting: Guide to Impact on Local Regulation of Wireless Antenna Siting in Texas of 1996 and 2012 Federal laws, and the 2009 and 2014 FCC Orders." November 20. Available at Attorney summarizes impacts of FCC rulings on Texas cities; addresses DAS. Resources, Section 6409(a) Implementation: Federal Communications Commission Report and Order FC October 17. Available at See paragraphs for final ruling on implementation of Section 6409(a). Federal Communications Commission Final Rule: Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies. January 8. Available at See Section III (paragraphs ), Implementation of Section 6409(a). Provides further explanation and interpretation of new federal telecommunications regulations. Item 2 - Page 11

12 National League of Cities "FCC Rules on Wireless Facility Siting Order." November 7. Available at Overview of latest FCC rules affecting local regulations of telecommunications facilities. Notes that CTIA and PCIA have committed to providing resources and guidance on implementation of the new rules. Richards, Ronald D "Beware of FCC's New Rules and Deadlines on Handling Telecommunications Equipment." November 24. Available at Telecommunications-Equipment.html. Overview of latest FCC rules and how they could impact local telecommunications regulations. Steiner, Harriet, and Joshua Nelson "FCC's Wireless Facility Rules Implementing Section 6409(a)." May 6. League of California Cities 2015 Spring Conference. Available at Departments/City-Attorneys/Library/2015/2015-Spring-Conference/ Spring-Harriet- Steiner-FCC-s-Wireless-Facil.aspx. Presentation for local governments on federal wireless regulations. Provides TCA background, discusses implications of Section 6409(a) ruling. Model Ordinance and Checklist, Section 6409(a): National Association of Counties, National League of Cities, and NATOA Wireless Facility Siting: Model Chapter Implementing Section 6409(a) and Wireless Facility Siting: Section 6409(a) Checklist. Available at NACo.pdf. These organizations worked with wireless industry groups PCIA and CTIA to create a model ordinance and application review process for Section 6409(a) requests for voluntary use by local governments. PURPOSE This Chapter implements Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 ( Spectrum Act ), 1 as interpreted by the Federal Communications Commission s ( FCC or Commission ) Acceleration of Broadband Deployment Report & Order,2 which requires a state or local government to approve any Eligible Facilities Request for a modification of an existing tower or base station that does not result in a substantial change to the physical dimensions of such tower or base station. Model Wireless Telecommunications Ordinances: New York State Wireless Association "Model Wireless Telecommunications Ordinance." Available at Model ordinance from NYS wireless industry group. Establishes 45-day review period for collocations and minor modifications of existing facilities. North Carolina League of Municipalities "Wireless Telecommunications Model Ordinance and Resource." Available at Recent model ordinance collaboration by NCLM and industry group Carolina Wireless Association. Page also provides links to additional resources. Item 2 - Page 12

13 Model ordinance available at anceoct13.pdf. PCIA The Wireless Infrastructure Association Model Wireless Telecommunications Facility Siting Ordinance. Available at e_june_2012.pdf. Most recent industry model ordinance; incorporates initial Section 6409(a) elements. Includes definitions for COWs, major and minor modifications, and substantial increase. Allows collocation and minor modifications in any zoning districts with administrative approval. Sample Wireless Telecommunication Facility Ordinances: Bedford (Virginia), County of Code of the County. Chapter 30, Zoning; Article IV, Use and Design Standards; Section 30-87, Miscellaneous Uses; part , Wireless communication facility (WCF), Class 1, Class 2, Class 3 and Class 4. Available at COCO_CH30ZO_ARTIVUSDEST_S30-87MIUS. Defines DAS; allows DAS and collocated installations by right. Code also provides general standards for all WCFs. Dublin (Ohio), City of Code of Ordinances. Title IX, General Regulations; Chapter 99, Wireless Communications Regulations. Available at Code defines different types of wireless facilities, including microcells and DAS. See table, Section 99.05B, for summary of which facility types require which level of review (administrative, conditional use, architectural review board) in which zoning districts. Provides application requirements and standards for different facility types. Franklin Park (Illinois), Village of Code of Ordinances. Title 9, Zoning Regulations; Chapter 12, Telecommunications Towers and Antennas; Section , Site Location Preferences. Available at TIT9ZORE_CH12TETOAN. Detailed 5-level list of preferred locations for telecommunications facilities; specifies which installation types are permitted by right and which require conditional use approval. Huntington Woods (Michigan), City of Code of Ordinances. Chapter 34, Telecommunications; Article III, Wireless Communications Facilities (WCFs); Section , Type and Location; part d=coor_ch34te_artiiiwicofawc. Provides basic definitions for telecommunication system components. City classifies wireless facilities in three categories; Type 1 is stealth facilities mounted on existing buildings or structures; Type 2 is DAS facilities mounted on utility poles; Type 3 is freestanding monopoles. Permitted on public property and certain public rights-ofway, subject to standards. Iredell (North Carolina), County of Code of Ordinances. Appendix A, Land Development Code; Chapter 3, Performance Requirements; R64, Wireless Item 2 - Page 13

14 Telecommunication Towers and Facilities; part W, Distributed Antenna Systems. Also see Chapter 16, Definitions. Available at PXALADECO_CH3PERE_R64WITETOFA. Provides general standards for wireless telecommunication facilities, which require a special use permit in certain residential districts; permits DAS by right in all districts in compliance with criteria. Provides criteria for installations within and outside of dedicated ROW. Illustration included. Jackson (Florida), County of Code of Ordinances. Chapter 74, Planning; Article IV, Land Development Regulations; Division 6, Wireless Telecommunications Facilities. Available at OOR_CH74PL_ARTIVLADERE_DIV6WITEFA. Provides several antenna definitions; offers prioritization of facility locations. Antenna placements are accessory uses in all districts; provides hierarchy of review requirements for different placement types. Also provides standards for towers. James City (Virginia), County of Code of Ordinances. Chapter 24, Zoning; Article I, In General; Section 24-2, Definitions. Article II, Special Regulations; Division 6, Wireless Communications Facilities; Section , Antenna Mounting; part b.4, Multi-Antenna System. Available at deid=cd_ord_ch24zo_artiispre_div6wicofa. Code defines various types and components of wireless systems. Establishes 5 categories of antenna mounting and provides mounting restrictions and permit requirements for all types, including "multi-antenna system." Additional sections 123 through 128 provide additional general requirements, performance standards, other standards, and permit processing and submittal requirements. La Habra Heights (California), City of Municipal Code. Chapter 7.8, Wireless Telecommunication Facilities; Section , Application and Permitting Process; part C, Facilities in the Public Right-of-Way. Also see Section , Site Development Standards; part F, Development Standards for Wireless Telecommunication Facilities in the Public Rightof-Way. Part G, Development Standards for the Distributed Antenna Systems. See also Article 12, Chapter 12.2, Definitions. Available at html, Provides definitions and extensive standards for wireless facilities, including facilities in the PROW and DAS. Longboat Key (Florida), Town of Code of Ordinances. Title 15, Land Development Code; Chapter 158, Zoning Code; Article I, General Provisions; Section , Definitions. Article IV, General Regulations; Division 3, Commercial Revitalization; Section , Personal Wireless Service Facilities. Section , Personal Wireless Service Facility Development Standards. Available at 15LADECO_CH158ZOCO_ARTIVGERE_DIV3CORE_ PEWISEFA. Provides definitions, preference hierarchy, and detailed standards with illustrations for different types of wireless facilities as well as ancillary facilities, including small cell wireless facilities primarily mounted on utility poles. Item 2 - Page 14

15 Los Altos (California), City of Code of Ordinances. Title 11, Miscellaneous Property Regulations; Chapter 11.12, Personal Wireless Services and Facilities; Section , Design Requirements. Available at IPRRE_CH11.12PEWISEFA. Prioritizes building-mounted and DAS systems over monopoles; specifies design requirements for all three system types. Modesto (California), City of Municipal Code. Title 10, Planning and Zoning; Chapter 3, Land Use Regulations; Article 4, Wireless Telecommunications Facilities. Available at ORE_CH3LAUSRE_ART4WITEFA. The city prioritizes camouflaged wireless facilities on existing structures and provides development and design standards for different types of wireless facilities. See also Table 3.4-2, Telecom Facility Requirement, which shows which types of wireless facilities are permitted with a building permit, require development plan review, require a conditional use permit, or are not allowed in different zoning districts. Nichols Hills (Oklahoma), City of Code of Ordinances. Chapter 50, Zoning; Article II, District Regulations; Division 5, Additional District Regulations; Section , Communications Tower and Antenna Regulations; part b, Definitions. Part C, Communications devices subject to a special permit; part 5, Distributed Antenna Systems. Available at NIHICO_CH50ZO_ARTIIDIRE_DIV5ADDIRE_S50-127COTOANRE. Defines and provides special permit process and standards for a number of different types of wireless facilities, including communications tower, antennas located within an architectural element, antennas located on existing facilities/sign structures/water towers, and DAS installation in the public right of way. Portola Valley (California), Town of Code of Ordinances. Title 18, Zoning; Chapter 18.41, Wireless Communication Facilities; Section , Preference for Certain Wireless Communication Facilities. Available at T18ZO_CH18.41WICOFA. Ordinance states preference for DAS/"small cell" facilities because they do not require the installation of new towers. Provides extensive standards, permitting process information. Springville (Utah), City of City Code. Title 11, Development Code; Chapter 6, Supplementary Regulations; Article 4, Wireless Telecommunication Facilities. Available at Extensive findings section. Prioritizes existing locations and stealth facilities. Provides specific regulations for wall-mounted, roof-mounted, stealth, and monopole antennas. Ventura (California), County of Code of Ordinances. Division 8, Planning and Development; Chapter 1, Zoning; Article 7, Standards for Specific Uses; Section , Wireless Communications Facilities. Also see Division 12, Highway Encroachments; Chapter 8, Wireless Telecommunications Facilities Public Right of Way. Available at DIV8PLDE_CH1ZO_ART7STSPUS_ WICOFA. Item 2 - Page 15

16 In zoning code, 2015 ordinance lists preferred and not preferred wireless facility locations and types; establishes extremely detailed standards for a wide range of stealth and non-stealth facilities. In Highway Encroachments code, establishes preferences, basic review requirements, and by-right approvals for small cell telecommunications installations in the public ROW. Virginia Beach (Virginia), City of Code of Ordinances. Appendix A, Zoning Ordinance; Article 1, General Provisions; Section 111, Definitions. Also see Article 2, General Requirements and Procedures Applicable to All Districts; Part A, Regulations Relating to Lots, Yards, Heights, etc.; Section 207, Building-Mounted Antennas, Small Wireless Facilities, and Temporary Communication Towers. Also see Part C, Conditional Uses and Structures; Section 232, Communication Towers; Building Mounted Antennas; Small Wireless Facilities; part k. Available at O_APXAZOOR_ART2GEREPRAPALDI_ARERELOYAHEOREPAORELOCEUS_S207BUUNANSMWIF ATECOTO. Provides definition and standards for small wireless facilities, as well as buildingmounted antennas and temporary communication towers. Sample Local Ordinances/Applications, Section 6409(a): Apple Valley (California), Town of Code of Ordinances. Title 9, Development Code; Chapter 9.77, Wireless Telecommunications Towers and Antennas; Sections et seq., Wireless Communications Facilities. Available at 9DECO_CH9.77WITETOAN_ DEAMOR353. Addresses applications for "eligible facilities requests" under Section 6409(a) for collocations and modifications that do not substantially change the existing facility. Calabasas (California), City of Communications and Technology Commission Agenda Report: Proposed Amendment of Calabasas Municipal Code, Section , related to Antennas/Personal Wireless Telecommunications Facilities, to add provisions creating a separate application and approval process for wireless facility permit applications covered under Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, 47 U.S.C. Section 1455(a). February 17. Available at telecommunications ordinance amendments establishing a separate application process for Section 6409(a) applications. See other items linked on agenda at : o Resolution at exhibit-a.pdf o Ordinance No U at exhibit-b.pdf o Ordinance No at exhibit-c.pdf o Revised development code pages at exhibit-d.pdf. Item 2 - Page 16

17 o Also download final Ordinances U and at ances?nodeid=suhita.. Calabasas (California), City of "Communications and Technology Commission Agenda Report: February 10." Available at In 2014 Calabasas added a "Section 6409(a) Analysis" to its staff review of telecommunications applications; see Staff Analysis, item 4. See also "Planning Memorandum Re: Cordillera (T-Mobile West Corporation) from Jonathan Kramer, the city's telecommunications consultant, at (Section 6409(a) applies). Additional Section 6409(a) analyses available at (Section 6409(a) applies) and (Section 6409(a) does not apply). Clayton (North Carolina), Town of Code of Ordinances. Title XV, Land Usage; Chapter 155, Unified Development Code; Section , Telecommunication Facilities. Available at Incorporates administrative approvals for Section 6409(a) eligible facilities requests. Fairfax (Virginia), County of "6409(a) Application Checklist." Available at ated.pdf. Application for Section 6409(a) proposals. King William (Virginia), County of Code of Ordinances. Chapter 86, Zoning; Article XIX, Telecommunication Towers; Section , Collocations. Section , Replacement of Existing Towers. Available at eid=coor_ch86zo_artxixteto_s86-810co telecommunications ordinance amendments address Section 6409(a). Lafayette (California), City of Code of Ordinances. Title 6, Planning and Land Use; Part 4, Special Land Use Regulations; Chapter 6-15, Wireless Communications Facilities; Section , Modification of Existing Wireless Towers and Base Stations. Available at ordinance established new section of code to address Section 6409(a) eligible facilities requests, to become null and void if Section 6409(a) is ever rescinded. Lane (Oregon), County of, Department of Public Works "Section 6409(a) 'Spectrum Act' Advisory." April 7. Available at 20Advisory%204_7_15.pdf. Guidance describing how land management staff will implement an option for Section 6409(a) review of eligible applications. Cites NACo/NLC/NATOA model ordinance. Longmont (Colorado), City of Code of Ordinances. Title 15, Land Development Code; Chapter 15.05, Development Standards; Section , Wireless Telecommunication Item 2 - Page 17

18 Facilities; part G, Exception for Insubstantial Modifications. See also Chapter 15.10, Definitions. Available at OR_TIT15LADECO_CH15.05DEST_ WITEFA. Extensive definitions and standards for wireless facilities, including small cell and wireless mesh telecommunications facilities. Preference for building/structure mounted facilities and collocated facilities. Specifies ministerial approvals for eligible facilities requests. Manassas (Virginia), City of Code of Ordinances. Chapter 130, Zoning; Article III, General Regulations; Division 2, Use Standards; Section , Broadcasting or Telecommunications Towers. Available at OOR_CH130ZO_ARTIIIGERE_DIV2USST_S130-92BRTETO. Establishes administrative approval process for eligible facilities requests for "broadcasting or telecommunications" facility modifications. Sets 90-day approval timeline. McAllen (Texas), City of Code of Ordinances. Subpart B, Land Use Regulations and Related Activities; Chapter 138, Zoning; Article I, In General; Section A, Eligible Facilities Request (Section 6409) Definitions and Procedures. Available at REREAC_CH138ZO_ARTIINGE_S138-1.AELFARESE6409DEPR ordinance establishes administrative procedure and 60-day shot clock for eligible facilities requests under Section 6409(a). San Diego (California), City of Wireless Communication Facility Guidelines. Right-of- Way Installations; Distributed Antenna Systems (DAS). Available at Guidelines for wireless facilities in San Diego favors the use of DAS for right-of-way installations; offers design guidelines for antennas on light or traffic poles. Also addresses design guidelines for equipment associated with WCFs, including cable trays, enclosures and equipment, and generators. Updated to address Section 6409(a) processing requirements. San Jose (California), City of Code of Ordinances. Title 20, Zoning; Chapter 20.80, Specific Use Regulations; Part 20, Wireless Communication Antenna; Section , Modification of Existing Wireless Towers and Base Stations. Available at O_CH20.80SPUSRE_PT20WICOAN_ MOEXWITOBAST ordinance adds administrative application review process for eligible Section 6409(a) requests. Thornton (Colorado), City of Code of Ordinances. Chapter 18, Development Code; Article IX, Wireless Telecommunication Facilities; Division 1, Development Standards. Article XI, Definition of Terms; Section , Definitions. Available at 18DECO_ARTIXWITEFA_DIV1DEST. Provides design standards, development standards for siting wireless facilities in nonresidential and residential districts, as well as in the public right-of-way and in parks and open space ordinance added several definitions relating to eligible facilities requests to the development code, including "base station," "colocation," "eligible facilities request," Item 2 - Page 18

19 "eligible support structure," "existing," "site," "substantial change," "tower," and "transmission equipment." Ventura (California), City of Planning Commission Staff Report: Wireless Communication Facilities (WCF) Ordinance (PL ), which would Amend the Ventura County Non-Coastal Zoning Ordinance. February 5. Available at Report.pdf. Staff report on telecommunications ordinance amendment that would among other things add a "Section 6409(a) Modification" definition and zoning clearance process to comply with new FCC rules. Wilmington (North Carolina), City of Item PH2: Ordinance Amending The Land Development Code Chapter 18, Article 6, Sec Communication Facilities To Make Reasonable Accommodations For Wireless Telecommunications Pursuant To Section 6409 (a) Of The Middle Tax Relief And Job Creation Act Of 2012 (LDC ). February 3. Available at Proposed telecommunications ordinance amendment adds requirement for administrative approval of existing communication tower modifications that do not substantially change the tower, in compliance with Section 6409(a). How d we do? Please share your feedback. Ann Dillemuth, AICP American Planning Association Research Associate Planning Advisory Service adillemuth@planning.org planning.org Join us April 2 5 in Phoenix at APA s National Planning Conference. There s still time to save. Register today! Item 2 - Page 19

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