local regulation of telecommunication facilities

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MICHAEL R. NAVE STEVEN R. MEYERS ELIZABETH H. SILVER MICHAEL S. RIBACK KENNETH A. WILSON DAVID W. SKINNER STEVEN T. MATTAS CLIFFORD F. CAMPBELL MICHAEL F. RODRIQUEZ KATHLEEN FAUBION, AICP RICK W. JARVIS LARISSA M. SETO DEBBIE F. LATHAM WAYNE K. SNODGRASS ARNE B. SANDBERG BENJAMIN P. FAY DANIEL A. MULLER ____ OF COUNSEL ANDREA J. SALTZMAN

MEYERS, NAVE, RIBACK, SILVER & WILSON A PROFESSIONAL LAW CORPORATION

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City Attorney’s Department Spring Meeting League of California Cities

May 7-9, 1997

Larissa M. Seto Assistant City Attorney City of San Leandro & City of Half Moon Bay

LOCAL REGULATION OF TELECOMMUNICATION FACILITIES

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TABLE OF CONTENTS PERSONAL WIRELESS SERVICE FACILITIES: I. Introduction to a Growing Industry. ..................................................................................... 3 II. Areas Cities Can Regulate. ................................................................................................ 3

A. Section 704 of the Telecommunications Act of 1996. ............................................ 3 1. Preservation of Local Zoning and Land Use Authority. .............................. 3 2. Limitations to Authority. ............................................................................... 4

(i) Cannot Unreasonably Discriminate. ............................................... 4 (ii) Cannot Prohibit or Have the Effect of Prohibiting. ......................... 4 (iii) Act in Reasonable Time. ................................................................. 4 (iv) Denials in Writing - Supported by Substantial Evidence. ............... 5 (v) Radio Frequency Emissions ........................................................... 5 (vi) Appeal of Denials. ........................................................................... 5

B. Public Utilities Commission General Order 159. .................................................... 5 III. Technology and Types of Telecommunication Facilities. ................................................... 5

A. Personal Communication Service (PCS). ............................................................... 5 IV. Methods of Zoning Controls. ............................................................................................... 6

A. Guidelines or Policies in General Plan. .................................................................. 6 B. Zoning Code Provisions. ......................................................................................... 7

1. Siting in Residential / Commercial / Industrial Zones. ................................ 7 2. Co-Location. ................................................................................................ 7 3. Mandatory Separation. ................................................................................ 8 4. Use of Publicly Owned Property. ................................................................ 8 5. Information to Seek from Applicants. .......................................................... 8 6. Other Requirements to Consider. ............................................................... 8 7. Other Issues to Consider. ........................................................................... 9

V. Location on Federally Owned Land and Ability to Regulate. .............................................. 9 A. Section 704 of the Telecommunications Act of 1996. ............................................ 9 B. General Services Administration Notice. ................................................................ 9 C. Other Issues to Consider. ..................................................................................... 10

SATELLITE DISHES AND ANTENNAS: I. Different Types of Technology. ......................................................................................... 10 II. Federal Communications Commission Rules. ................................................................. 10

A. Restrictions on Local Authority. ............................................................................ 10 B. Size-Based Rules.................................................................................................. 11

1. Less than One (1) Meter. ........................................................................ 11 2. Dishes Larger than 2 Meters; or Larger than 1 Meter in Areas

Other Than Commercial or Industrial. ...................................................... 11 3. Other Circumstances. ............................................................................... 12 4. Tall masts. ............................................................................................... 12

C. Practical Effect. ..................................................................................................... 12

SAMPLE ORDINANCE To format the information in the following columns, we will cut and paste the info from the left using Bold Italics, adding it to the section it is closest to, and then remove the columns format from the document. See Dar if you have any questions

LOCAL REGULATION OF TELECOMMUNICATION FACILITIES Larissa M. Seto

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Cities can expect up to six PCS carriers to seek to install facilities. FCC rules govern small satellite dishes.

I. Introduction to a Growing Industry.

PERSONAL WIRELESS SERVICE FACILITIES.

The Federal Communications Commission (FCC) raised over $20 billion dollars in an auction of telecommunication licenses. In addition to the two (2) to three (3) cellular carriers in each area, the FCC has now permitted five (5) or six (6) providers of Personal Communication Services (PCS) to enter each market.

These additional carriers are creating a need for more sites for their telecommunication receiving and transmitting facilities. PCS technology requires more facilities than the familiar cellular carriers. While some PCS carriers will form partnerships with existing utilities, cities can expect to receive many applications for the installation of these new personal wireless service facilities.

The first part of this paper will highlight the existing law regarding a city’s ability to regulate the zoning of personal wireless service facilities; discuss the different types of facilities; and suggest provisions to include in a telecommunications ordinance. A sample ordinance is provided at the end.

SATELLITE DISHES AND ANTENNAS.

One of the most poplar consumer applications of satellite technology and communications is the Direct to Home (DTH) Digital Satellite System (DSS). As prices drop for these popular consumer electronic devices - which relay the proverbial 200 channels of television programming - the dish antennas will become a more familiar site on homes and apartments.

The FCC has issued rules regarding local ability to regulate the placement of these types of devices. The second part of this paper will outline the types of technology; the FCC rules; and the practical effect of the rules. II. Personal Wireless Service Facilities -- Areas Cities Can Regulate.

A. Section 704 of the Telecommunications Act of 1996.

Section 704 of the Telecommunications Act of 1996 (Act) [47 U.S.C. section 332(c)] sets forth the framework for federal, state and local regulation of the siting of personal wireless service facilities. These provisions apply to cellular, PCS, and Specialized Mobile Radio (SMR) transmitters.

1. Preservation of Local Zoning and Land Use Authority.

Section 704 of the Act states that local zoning authority over


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Clear differences in the impacts of facilities allow the application of separate regulations. Moratoriums can be defended based on specific findings.

personal wireless service facilities has been preserved. Thus, cities may still enforce height limits in different zoning districts, and other types of land-use regulations. However, specific limitations have been placed on a city’s exercise of its police power.

2. Limitations to Authority.

(i) Cannot Unreasonably Discriminate. The first limitation set forth in the Act is that cities may not “unreasonably discriminate” among “providers of functionally equivalent services.” For example, a city may not impose a limit on the size of transmitters built by PCS providers, and not enforce a similar limit on cellular providers.

But, a city may differentiate among providers if there are distinct visual, aesthetic or safety concerns. For example, a PCS provider may be allowed to attach a transmitter onto a building in a downtown area, but a similar proposal from a different PCS carrier may be rejected if the building selected by the second carrier has historic significance. Also, proposals for facilities in separate zoning districts may be treated differently.

(ii) Cannot Prohibit or Have the Effect of Prohibiting. Another limitation on a city’s authority is that the city’s regulations cannot prohibit personal wireless service facilities, nor can they have the practical effect of prohibiting these facilities.

(iii) Act in Reasonable Time. Additionally, the Act requires that a city must act in a reasonable time upon receiving an application for a personal wireless service facility. The same time periods and procedures which are needed to process other types of applications should also apply to a PCS provider’s application. Thus, if a typical conditional use permit needs ten (10) weeks to make its way through planning commission and city council hearings, a conditional use permit for a wireless facility should be processed in about the same time period. A city may not erect additional barriers for these types of uses.

Notwithstanding the Act’s requirements to “act in a reasonable time” on receipt of an application, moratoriums on the processing of personal wireless service facilities have been upheld. In Sprint Spectrum L.P. v. City of Medina 924 F. Supp. 1036 (W.D. Wash. 1996), the City of Medina’s temporary moratorium on the processing of applications for telecommunications facilities was upheld. The court ruled that the City’s findings that it needed additional time to study the issue and create a comprehensive regulatory scheme was sufficient to support the moratorium.

The record must have substantial

evidence as the basis for a denial.


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RF emissions should be independently verified and regularly monitored. PCS technology requires a higher number of facilities.

(iv) Denials in Writing - Supported by Substantial Evidence. Another requirement placed on cities by the Act is that any denial of an application for a personal wireless service facility must be made in writing, and the denial must be supported by substantial evidence. Such findings should be included in any adopted resolution denying the application, or detailed in a letter to the applicant if the provider is seeking an over-the-counter permit.

(v) Radio Frequency Emissions. While radio frequency emissions may often be a hot-button topic for citizens, the Act limits a city’s ability to regulate regarding this issue. So long as the personal wireless service facility meets the FCC’s radio frequency emissions guidelines, which were issued on August 1, 1996, a city may not deny a proposal based upon radio frequency emissions.

Still, to address concerns of the community, a city may want to require yearly certification by an independent contractor that the radio frequency emission levels continue to be met. This may become more important as providers share locations, or co-locate. A city may even consider levying an annual fee on the provider to pay for this service.

(vi) Appeal of Denials. If a provider’s application is denied, the Act permits the provider to file an appeal within thirty (30) days in federal district court, or state court.

B. Public Utilities Commission General Order 159.

In addition to the requirements of the Act on personal wireless service facilities, cities should not overlook other regulatory authorities. The State Public Utilities Commission also has authority over cellular carriers, and has previously issued rules on that matter in General Order 159. III. Technology and Types of Telecommunication Facilities.

As mentioned above, relevant portions of the Act cover local zoning authority over the construction, modification and siting of personal wireless service facilities. These include Specialized Mobile Radio (SMR) transmitters, Personal Communication Services (PCS), and cellular facilities.

A. Personal Communication Service (PCS).

PCS is the latest technology being licensed by the FCC. PCS utilizes a higher band on the radio frequency spectrum. Because different technology is being used, PCS carriers will have different requirements than the more familiar cellular carriers.

PCS is a “line-of-site” based technology. Therefore, it will require


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Many providers can disguise facilities to blend-in with surroundings. A statutory mandate makes providers implement these more expensive options. Every city should have some policy, guideline, or ordinance regarding telecommunica-tions.

far more transmitters and receivers. A PCS carrier will typically study a geographic area, and divide the area into “cells”. Each cell will carry a certain number of calls, and cover a specific geographic area. The higher the call volume in a cell, the smaller the geographic area which can be served. Plus, hilly topography will require more cells. PCS cells, and their related facilities, may be needed every one-half (½) to two (2) miles, versus the three (3) to fifteen (15) miles separating cellular facilities. Compounding the high number of facilities are the large number of providers, and license requirements that mandate build-out within specific time frames.

All of the transmitting and receiving antennas used by PCS providers must have electricity, as well as the ability to access a fiber optic network.

The types of physical facilities are: (i) monopoles and towers; (ii) building mounted antennas; (iii) ground mounted antennas; and (iv) structure mounted antennas.

Monopoles are giant poles ranging from forty feet (40') to two hundred and fifty feet (250') in height. Their width depends upon the number of antennas mounted at the top of the pole. Towers are typically lattice metal structures, with antenna mounted on all sides.

Building mounted antenna are popular in urban environments. They can be painted to blend-in with existing color schemes. Or, they can be configured to work with existing architectural details. In areas without many tall buildings, church bell towers are popular sites for building mounted facilities.

In rural areas, ground mounted antennas are appearing. Often near the crest of a ridge, these pose special considerations with regard to landscaping, camouflage, fencing, and security.

And lastly, structure mounted antennas are also common. Water towers and billboards are excellent sites for these facilities. IV. Methods of Zoning Controls.

A city has an array of zoning control options with regard to personal wireless service facilities. These include non-binding guidelines, general plan policies, and zoning code provisions.

A. Guidelines or Policies in General Plan.

Many cities have chosen non-binding guidelines as a means of directing providers in their jurisdiction. Providers have stated that they prefer to work with any type of city policy, whether it be binding or non-binding, rather than face a situation where a city has taken no direction on


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Incentive zoning can encourage development in commercial and industrial areas. Providers may resist co-location because it may benefit a competitor.

the matter.

On the opposite side of the spectrum, a city may modify the policies of its general plan to address issues relating to the siting of personal wireless service facilities. These policies may relate to height, siting in specific districts, or aesthetics. This type of approach would mandate compliance with the adopted policies.

B. Zoning Code Provisions.

The most straight-forward approach is to amend the zoning code to include provisions regarding personal wireless service facilities. When considering such an issue, a drafter should keep in mind the following issues:

1. Siting in Residential / Commercial / Industrial Zones. A properly drafted zoning ordinance may provide incentive

zoning. This would encourage development of the facilities in industrial and commercial areas, where they are less likely to meet resistance.

For proposals with minimal impact, incentive zoning may provide for an administratively approved permitted use. For example, an antenna mounted on a water-tower in an industrial area could be approved on a staff level, with notice to adjacent owners, and possibly notice to other carriers in the area. Another way to streamline the approval process for such non-controversial uses might be to treat the antenna as an accessory use.

In situations where there is some sensitivity, a process involving the public may be encouraged. For example, if a provider proposes to install an antenna on a non-historic church tower, an ordinance may want to require planning commission oversight, or design review, and notice to adjacent property owners.

For high impact proposals, the full conditional use permit process should be required. For example, a tower near a school or in a residential area warrants a conditional use permit, and public hearings.

2. Co-Location.

Another popular element of a zoning ordinance is encouraging the sharing of facilities by providers, also known as co-location. The benefits of co-location include fewer facilities in a city. The difficulties and detriments are signal interference when too many users are clustered, competing providers resisting cooperating, and the facilities becoming too large.


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City property should be inventoried for potential sites.

3. Mandatory Separation.

On the opposite end of the spectrum of co-location is mandatory separation. In this case, a city may require minimum spacing between facilities to prevent unsightly concentrations of antennas, or the perception of an “antenna farm”.

4. Use of Publicly Owned Property.

Property owned by the city should not be overlooked as a potential site for a facility. This could be a revenue generating source based on rent paid to lease space. Or, a city may negotiate for free phones or free service.

As the technology and providers continue to evolve, a city leasing its property on a long-term basis may wish to consider a “most

Requesting alternative facilities or use of least intrusive technology softens impacts.

favored city” clause, whereby subsequent contracts entered into by the provider with other cities automatically make more favorable terms apply to the first city.

5. Information to Seek from Applicants.

As part of the permit application process, a city should seek relevant information from the provider. This may include:

(i) a site selection map showing cell coverage plots - which will help staff determine whether there are other possible locations for the facility;

(ii) a list of other sites which have been considered;

(iii) a master plan for all related facilities currently in the city and planned in the future;

(iv) plans and drawings for the proposed facility;

(v) facility design alternatives; and

(vi) a deposit for testing and peer review.

For cities without specialized staff available to scrutinize the

applications and evaluate the ever-changing technology, consultants may be hired for the purposes of peer review.

6. Other Requirements to Consider.

There are other considerations when drafting a zoning ordinance regarding personal wireless service facilities. These include:

The competitive environment will lead to the failure of some providers. A removal plan should be encouraged.


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Photo simulations are excellent tools for educating officials and the public on possible impacts. Privately-owned facilities on federal property are still subject to local zoning controls.

(i) registration of providers and their facilities, to both create a list of possible co-location sites, and provide a method for tracking the payment of fees;

(ii) ensure that the “backhauler” (the provider of the fiber optic network which connects the cell sites and feeds information into the phone line) pays a telephone franchise fee, if any;

(iii) requiring annual certification that radio frequency emissions are within FCC guidelines, and fees for independent analysis;

(iv) removal provisions, agreements, or deposits in the event the facility if abandoned;

(v) relocation requirements for sites used by co-locators;

(vi) requiring the use of least intrusive technology;

(vii) mandatory fencing or security;

(viii) requiring disguises or screening;

(ix) requiring mock-ups or photo simulations to be provided at public hearings or sent to adjacent property owners; and

(x) community meetings and public hearings.

7. Other Issues to Consider.

Other issues to consider when drafting an ordinance include an

exemption for ham radio operators, general plan conformity, building code considerations, and regulations of other authorities such as the FAA and PUC. V. Location on Federally Owned Land and Ability to Regulate.

A. Section 704 of the Telecommunications Act of 1996.

The Telecommunications Act also directed federal governmental departments to make federal sites available to personal wireless service providers, so long as the leasing of such space does not interfere with the governmental purpose of the site. Targeted sites include post offices and other federal buildings.

B. General Services Administration Notice.

Simply because a facility is located on federal property does not


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FCC rules stress access by consumers at the cost of some local regulatory authority.

convey any special exemption from local regulations. The General Services Administration specified that telecommunication providers on federal property are still subject to state and local zoning regulations, as stated in its Notice of Placement of Commercial Antennas on Federal Property (Federal Register, Vol. 61, No. 62, March 29, 1996, page 14100).

C. Other Issues to Consider.

If a provider proposes a facility on federal property, other issues to consider are the National Environmental Protection Act (NEPA) (42 U.S.C. section 4321); the Intergovernmental Cooperation Act (31 U.S.C. section 6501); and Public Building Regulations for Public Buildings (40 U.S.C. section 619). SATELLITE DISHES AND ANTENNAS: I. Different Types of Technology.

Several different types of technology are available to consumers which dramatically increase the quantity of video programming available, as well as the quality of the transmission. These include Direct Broadcast Satellites (DBS), Multichannel Multipoint Distribution (wireless cable) Providers (MMDS), and over-the-air Television Broadcast Stations (TVBS). These technologies require antennas or small satellite dishes, and a receiver. II. Federal Communications Commission Rules.

Section 207 of the Telecommunication Act directed the FCC to prepare rules relating to a viewer’s ability to receive DBS, MMDS or TVBS signals. The FCC issued a general rule in February 1996, and modified it in August of 1996. These rules are supposed to forward the objectives of ensuring consumer access to a broad range of video programming services, and to foster full and fair competition among different providers.

A. Restrictions on Local Authority.

The emphasis on access and ability to receive programming has the practical effect of restricting some local control over zoning and building regulations. Some local regulation is permitted for situations involving safety concerns and historic buildings.

If a city seeks an exception from the FCC rules, the city must apply for a waiver.

Cities cannot place permit requirements or require fees unless there are clear


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safety or historic preservation issues. Evidence supporting safety-based regulations must be specified in the public record.

B. Size-Based Rules.

The regulations are based upon the size of the receiving dishes. They are as follows:

1. Less than One (1) Meter.

For receive-only antenna and satellite dishes which are less than one (1) meter in diameter or diagonal measurement, a city is prohibited from adopting or enforcing regulations which:

(i) unreasonably delay or prevent installation, maintenance or use (e.g. permit requirements would not be allowed unless needed for safety or historic preservation purposes);

(ii) unreasonably increase the cost of installation, maintenance or use (e.g. restrictions cannot mandate expensive screening which are unreasonable in light of the cost of equipment); and

(iii) preclude reception of an acceptable quality signal (e.g. restrictions cannot require placement in a position where reception would be impossible or degraded; but it is acceptable to require placement in areas not visible from the street when feasible).

Safety. The FCC rule specifies that cities may continue to

enforce restrictions relating to safety. For example, restrictions requiring minimum distances from high voltage power lines are permitted.

These safety-related restrictions must be applied in a non-discriminatory manner to other similarly sized devices. For example, precluding installations near intersections in order to preserve clear line of sight for drivers’ safety is permitted, so long as all other comparable installations , e.g. foliage, are also precluded.

Restrictions adopted to enforce safety considerations must state those considerations clearly in the text, preamble or legislative history of the ordinance.

Historic Preservation. Additionally, the FCC rule permits cities to continue to enforce restrictions relating to historic preservation. The FCC adopted the rule to safeguard registered historic preservation areas. Thus, in these designated areas, antennas and satellite dishes may be restricted or prohibited.

2. Dishes Larger than 2 Meters; or Larger than 1 Meter in Areas Other Than Commercial or Industrial.

Another rule applies in situations where the satellite dishes are


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Other rules apply to dishes and antennas of other sizes in different locations. Private restrictions on the use of small dishes or antennas is limited by the FCC rules.

either: (i) larger than two (2) meters; or (ii) larger than one (1) meter in an area other than commercial or industrial zoned.

In these circumstances, local regulations are preempted to the extent in which they materially impact satellite transmission or reception, or they impose more than minimal costs on the dish user.

Exceptions from the FCC rules allow local regulations to control when there is a clearly defined health, safety or aesthetic objective. Again, such objectives must be stated in the text, preamble or legislative history of the adopting ordinance.

3. Other Circumstances.

Yet another rule applies to the following antennas or dishes:

(i) receive-only satellite dish or antenna between one (1) meter and two (2) meters in size in a commercial or industrial area;

(ii) transmission dishes two (2) meters or less in size in commercial or industrial area; and

(iii) transmission dishes one (1) meter or less in areas other than commercial or industrial.

For these three types of dishes and antennas, local regulations

are again preempted to the extent in which they materially limit satellite transmission or reception, or they impose more than minimal costs on the dish user.

While exceptions from the FCC rules again allow local regulations to control when there is a health, safety or aesthetic objective stated in the text, preamble or legislative history of the adopting ordinance, a city may not enforce its regulations without receiving a prior waiver from the FCC. This appears to create a difficult and dangerous burden on a city prior to enforcing critical safety or health standards.

4. Tall masts.

Some antenna need to be mounted on masts to be effective. Masts higher than twelve feet (12') may be subject to local permitting requirements based on building code regulations.

C. Practical Effect.

Private Restrictions. Some of the most common questions which arise relate to private restrictions on satellite dishes.


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The FCC has not established a rule for installations where there is common ownership.

For example, many homeowners’ associations have private restrictive covenants which bar “satellite dishes.” Practically speaking, many of these private restrictions were adopted at a time when a satellite dish was four to six feet in diameter, a much larger and more prominent feature than the small dishes available today.

Under the FCC rule, the private covenants are restricted by the FCC rules outlined in B.1., above, if the property at issue is within the exclusive control of the person installing the antenna or satellite dish, and that person has a direct or indirect ownership interest in the property. Thus, the private covenant may not be enforceable in situations involving an owner desiring to install a small antenna.

Common Ownership. Left unanswered by the FCC’s rule is the installation of antennas and satellite dishes in areas of common ownership, such as condominiums where roofs may be commonly owned; or, at apartment buildings or mobilehome parks where none of the tenants have an “ownership” interest in the property. The FCC has issued a Further Notice of Proposed Rulemaking and is inviting comments on this question.

A practical approach would be to allow the installation if approved by the owner or association.

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The following is a sample ordinance which seeks to direct personal wireless service facilities to industrial and commercial areas by making such facilities permitted uses in those zones. Locating such facilities in a residential area, or near a residential area, generally requires a conditional use permit. A high degree of discretion is vested with the planning director and the planning commission to review applications and modify requirements. This ordinance is a sample only, please review the provisions and modify it carefully to suit the needs of your own jurisdiction. Additionally, adoption of this ordinance may also require modification of other sections of your zoning code relating to permitted and conditionally permitted uses in related zoning districts. CITY OF _______________________ ZONING STANDARDS FOR

PERSONAL WIRELESS SERVICE FACILITIES, ANTENNAS AND TOWERS 1. Definitions. As used in this ordinance, the following terms shall have the meanings indicated:

a. "Alternative tower structure" shall mean man-made trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camouflage or conceal the presence of antennas or towers.

b. "Antenna" shall mean any exterior apparatus designed for telephonic, radio, or television communications through the sending and/or receiving of electromagnetic waves. This includes antennas relating to personal wireless services.

c. "FAA" shall mean the Federal Aviation Administration.

d. "FCC" shall mean the Federal Communications Commission.

e. "Governing authority" shall mean the City Council of the City of _______________________.

f. "Preexisting towers and antennas" shall have the meaning set forth in Section 2(d) of this ordinance.

g. "Height" shall mean, when referring to a tower or other structure, the distance measured from ground level to the highest point on the tower or other structure, even if said highest point is an antenna.

h. "Tower" shall mean any structure that is designed and constructed primarily for the purpose of supporting one or more antennas, including self-supporting lattice towers, guy towers, or monopole towers. The term includes radio and television transmission towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures and the like.

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2. Applicability.

a. District Height Limitations. The requirements set forth in this ordinance shall govern the location of towers that exceed, and antennas that are installed at a height in excess of, the height limitations specified for each zoning district. The height limitations applicable to buildings and structures shall not apply to towers and antennas.

b. Public Property. Antennas or towers located on property owned, leased or otherwise controlled by the City shall be exempt from the requirements of this ordinance, provided a license or lease authorizing such antenna or tower has been approved by the City.

c. Amateur Radio; Receive-Only Antennas. This ordinance shall not govern any tower, or the installation of any antenna, that is under seventy (70) feet in height and is owned and operated by a federally-licensed amateur radio station operator or is used exclusively for receive only antennas.

d. Pre-Existing Towers and Antennas. Any tower or antenna on for which a permit has been properly issued prior to the effective date of this ordinance shall not be required to meet the requirements of this ordinance, other than the requirements of Sections 3.e. Any such towers or antennas shall be referred to in this ordinance as "preexisting towers" or preexisting antennas". 3. General Guidelines and Requirements.

a. Purpose; Goals: The purpose of this ordinance is to establish general guidelines for the siting of towers and antennas. The goals of this ordinance are to: (i) encourage the location of towers in non-residential areas and minimize the total number of towers throughout the City; (ii) encourage strongly the co-location at new and existing tower sites; (iii) encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal; (iv) encourage users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas; and (v) enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively and efficiently.

b. Principal or Accessory Use. Antennas and towers may be considered either principal or accessory uses. A different existing use or an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot. For purposes of determining whether the installation of a tower or antenna complies with zoning district development regulations, including but not limited to set-back requirements, lot-coverage requirements, and other such requirements, the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels within such lots. Towers that are constructed, and antennas that are installed, in accordance with the provisions of this ordinance shall not be deemed to constitute the expansion of a nonconforming use or structure.

c. Inventory of Existing Sites. Each applicant for an antenna and or tower shall provide to the Planning Department an inventory of its existing and planned towers that are either within the jurisdiction of the City or within one-quarter mile of the border thereof, including specific

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information about the (proposed) location, height, and design of each tower. The Planning Department may share such information with other applicants applying for administrative approvals or special use permits under this ordinance or other organizations seeking to locate antennas within the jurisdiction of the City for purposes of encouraging co-location, provided, however, that the Planning Department is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.

d. Aesthetics; Lighting. The guidelines set forth in this Section 3.d. shall govern the location of all towers, and the installation of all antennas, governed by this ordinance; provided, however, that the Planning Commission may waive or modify these requirements if it determines that the goals of this ordinance are better served thereby.

(1) Towers shall either maintain a galvanized steel finish or, subject to any applicable standards of the FAA, be painted a neutral color, so as to reduce visual obtrusiveness.

(2) At a tower site, the design of the buildings and related structures shall, to the

extent possible, use materials, colors, textures, screening, and landscaping that will blend the tower facilities to the natural setting and built environment.

(3) If an antenna is installed on a structure other than a tower, the antenna and supporting

electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible.

(4) Towers shall not be artificially lighted, unless required by the FAA or other

applicable authority. If lighting is required, the Planning Commission may review the available lighting alternatives and approve the design that would cause the least disturbance to the surrounding views.

e. Federal and State Requirements. All towers must meet or exceed current standards and

regulations of the FAA, the FCC, the California Public Utilities Commission and any other agency of the federal or state government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this ordinance shall bring such towers and antennas into compliance with such revised standards and regulations within six (6) months of the effective date of such standards and regulations, unless a more stringent compliance schedule is mandated by the controlling federal or state agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense. 4. Permitted Uses.

a. General. The uses listed in this Section 4 are deemed to be permitted uses in industrial and commercial zoning districts and shall not require Planning Commission review unless the applicant seeks a modification of the guidelines set forth in Section 3.d. Nevertheless, all such

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uses shall comply with Section 3.d., unless a modification is granted, and Section 3.e. of this ordinance and all other applicable ordinances.

b. Specific Permitted Uses. The following uses are specifically permitted:

(1) Locating a tower or antenna, including the placement of additional buildings or other supporting equipment used in connection with said tower or antenna, in any industrial or commercial zoning district; provided, however, that such tower shall be set back from any existing off-site residence a distance equal to _______ feet (____);

(2) Installing an antenna on an existing structure other than a tower (such as a building, sign, light pole, water tower, or other free-standing nonresidential structure) that is fifty (50) feet in height or greater, so long as said additional antenna adds no more than twenty (20) feet to the height of said existing structure; and

(3) Installing an antenna on any existing tower of any height, so long as the addition of

said antenna adds no more than twenty (20) feet to the height of said existing tower and said existing tower is not a preexisting tower; provided, however, that such specific permitted use shall not include the placement of additional buildings or other supporting equipment used in connection with said antenna.

5. Administrative Approvals.

a. General.

(1) The Planning Director may administratively approve the uses listed in this Section 5.

(2) Each applicant for administrative approval shall apply to the Planning Director, providing the information set forth in Sections 6.b. and 6.d. of this ordinance.

(3) The Planning Director shall respond to each such application within thirty (30) days

after receiving it by either approving or denying the application. If the Planning Department fails to respond to the applicant within said thirty (30) days, then the application shall be deemed to be approved.

(4) In connection with any such administrative approval, the Planning Director may, in

order to encourage shared use, administratively waive any zoning district setback requirements by up to _____ percent (___%).

(5) If an administrative approval is denied, the applicant may appeal said denial to the

Planning Commission.

b. Specific Administratively Approved Uses. The following uses may be approved by the Planning Director after conducting an administrative review:

(1) Installing an antenna on an existing structure other than a tower (such as a building, sign, light pole, water tower, or other free standing nonresidential structure) that is less than

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fifty (50) feet in height, so long as such addition does not add more than twenty (20) feet to the height of the existing structure;

(2) Installing an antenna on an existing tower of any height, including a preexisting

tower and further including the placement of additional buildings or other supporting equipment used in connection with said antenna, so long as the addition of said antenna adds no more than twenty (20) feet to the height of said existing tower;

(3) Locating any alternative tower structure in a zoning district other than industrial or

heavy commercial that in the judgment of the Planning Department is in conformity with the goals set forth in Section 3.a. of this ordinance;

(4) Locating any tower in a zoning district other than industrial or heavy commercial,

provided a licensed professional engineer certifies, the tower can structurally accommodate the number of shared users proposed by the applicant; the Planning Director concludes the tower is in conformity with the goals set forth in Section 3.a. and the requirements of Sections 3.d. and 3.e.; the tower is to be set back from any existing off-site residence a distance equal to ____ feet (___); and that the tower meets the following height and usage criteria;

(i) for a single user, up to ninety (90) feet in height;

(ii) for two users, up to one hundred twenty (120) feet in height; and

(iii) for three or more users, up to one hundred fifty (150) feet in height.

6. Conditional Use Permits.

a. General. The following provisions shall govern the issuance of conditional use permits:

(1) If the tower or antenna is not a permitted use under Section 4 of this ordinance or permitted to be approved administratively pursuant to Section 5 of this ordinance, then a conditional use permit shall be required for the construction of a tower or the placement of an antenna in all zoning districts.

(2) In granting a conditional use permit, the Planning Commission may impose

conditions to the extent it concludes such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties.

(3) Any information of an engineering nature that the applicant submits, whether civil,

mechanical, or electrical shall be certified by a licensed professional engineer.

b. Information Required. Each applicant requesting a conditional use permit under this ordinance shall submit a scaled site plan and a scaled elevation view and other supporting drawings, calculations, and other documentation, signed and sealed by appropriate licensed professionals, showing the location and dimensions of all improvements, including information

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concerning topography, radio frequency coverage, tower height requirements, setbacks, drives, parking, fencing, landscaping, adjacent uses, and other information deemed by the Planning Director or Planning Commission to be necessary to assess compliance with this ordinance.

c. Factors Considered in Granting Conditional Use Permits. The Planning Commission shall consider the following factors in determining whether to issue a conditional use permit, although the Planning Commission may waive or reduce the burden on the applicant of one or more of these criteria if the Planning Commission, concludes that the goals of this ordinance are better served thereby.

(1) Height of the proposed tower;

(2) Proximity of the tower to residential structures and residential district boundaries;

(3) Nature of uses on adjacent and nearby properties;

(4) Surrounding topography;

(5) Surrounding tree coverage and foliage; (6) Design the tower, with particular reference to design characteristics that have the

effect of reducing or eliminating visual obtrusiveness; and

(7) Proposed ingress and egress; and

(8) Availability of suitable existing towers and other structures as discussed in Section 6.d. of this ordinance.

d. Availability of Suitable Existing Towers or Other Structures. No new tower shall be

permitted unless the applicant demonstrates to the reasonable satisfaction of the Planning Commission that no existing tower or structure can accommodate the applicant's proposed antenna. Evidence submitted to demonstrate that no existing tower or structure can accommodate the applicant's proposed antenna may consist of any of the following:

(1) No existing towers or structures are located within the geographic area required to meet applicant's engineering requirements.

(2) Existing towers or structures are not of sufficient height to meet applicant's

engineering requirements.

(3) Existing towers or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment.

(4) The applicant's proposed antenna would cause electromagnetic interference with the

antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna.

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(5) The fees, costs, or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower development are presumed to be unreasonable.

(6) The applicant demonstrates that there are other limiting factors that render existing

towers and structures unsuitable.

e. Setbacks and Separation. The following setbacks and separation requirements shall apply to all towers and antennas for which a conditional use permit is required; provided, however, that the Planning Commission may, reduce the standard setbacks and separation requirements if the goals of this ordinance would be better served thereby.

(1) Towers must be set back a distance equal to _____ feet (___) from any off-site residential structure.

(2) Towers, guys, and accessory facilities must satisfy the minimum zoning district

setback requirements.

(3) In zoning districts other than industrial or heavy commercial zoning districts, towers over ninety (90) feet in height shall not be located within one-quarter of a mile from any existing tower that is over ninety (90) feet in height.

f. Security Fencing. Towers shall be enclosed by security fencing not less than six (6) feet

in height and shall also be equipped with an appropriate anti-climbing device; provided, however, that the Planning Commission may waive such requirements, as it deems appropriate.

g. Landscaping. The following requirements shall govern the landscaping surrounding towers for which a special use permit is required; provided, however, that the Planning Commission may waive such requirements if the goals of this ordinance would be better served thereby.

(1) Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound from adjacent residential property. The standard buffer shall consist of a landscaped strip at least four (4) feet wide outside the perimeter of the compound.

(2) In locations where the visual impact of the tower would be minimal, the landscaping

requirement may be reduced or waived altogether.

(3) Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible. In some cases, such as towers sited on large, wooded lots, natural growth around the property perimeter may be sufficient buffer.

7. Removal of Abandoned Antennas and Towers.

Any antenna or tower that is not operated for a continuous period of twelve (12) months shall

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be considered abandoned, and the owner of such antenna or tower shall remove same within ninety (90) days of receipt of notice from the Planning Director notifying the owner of such abandonment. If such antenna or tower is not removed within said ninety (90) days, the Planning Director may remove such antenna or tower at the owner's expense. If there are two (2) or more users of a single tower, then this provision shall not become effective until all users cease using the tower LMS:rja J:\WPD\ATTY\LMS\LOCC\TELECOMM.TLK

local regulation of telecommunication facilities

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