HomeMy WebLinkAboutCity Council Packet 10-29-1997 Special12
PLYMOUTH CITY COUNCIL
SPECIAL COUNCIL MEETING
WEDNESDAY, OCT. 299 1997
7:00 P.M.
PUBLIC SAFETY TRAINING
ROOM
Adopt Street and Utility Assessments - 41 S` Avenue/Hughston Addition,
Project 5037.
II. Discussion and staff direction on amending the text of Chapter 21 of the Plymouth
City Code, the Plymouth Zoning Ordinance in its entirety. The amendments do
not include any changes to the Plymouth, Minnesota Zoning Map adopted by
reference in Section 21000.12 of the Zoning Ordinance. City of Plymouth (97104).
III. Discussion and staff direction on Siting of Wireless Communication Towers.
Agenda Number:
CITY OF PLYMOUTH
CITY COUNCIL AGENDA REPORT
DATE: October 24, 1997 for the City Council Meeting of October 29, 1997
TO: Dwight D. Johnson, City Manager
FROM: Fred G. Moore, Director of Public Works
SUBJECT: ADOPTION OF SPECIAL ASSESSMENTS
41ST AVENUE STREET AND UTILITY IMPROVEMENTS
CITY PROJECT NO. 5037
ACTION REQUESTED: Make a motion to adopt the attached resolution establishing special
assessment for the benefiting properties for the 41" Avenue Street and Utility Improvement
Project. These special assessments would be payable over a 15 year period.
BACKGROUND: On October 15, 1997, the City Council held assessment public hearings for
public improvement projects which were substantially completed in 1997. The City Council
took action to adopt special assessments on four of the projects, but deferred action on the 4151
Avenue Street and Utility Improvements.
At the public hearing, the owners of one of the properties, Larry Babiracki and Sue Jude,
addressed the Council on the period of time that the property owners had to pay these special
assessments and the rate of interest. A 10 year period at 7.5 % interest was proposed in the
resolution. As part of the public process with the property owners in early 1996, information
was presented on a repayment period based upon 10, 15, and 20 years. Attached is a copy of a
letter dated February 28, 1996, giving this information to the property owners. That letter also
states that if it were assessed in 1996, the interest rate would be 7%. A determination of the
payment period and interest rate is not made by the City Council until after the assessment
public hearing at the completion of the project.
After the close of the assessment hearing, the council deferred action on adopting the
assessments and directed staff to survey the property owners on their preference of a payment
period. Staff is not recommending a 20 year period since this is the design life of the street
and could possibly require some street reconstruction before property owners had paid the
original assessment. During the Council discussion of the payment period, I believe Council
concurred with this recommendation.
N:\PVAEnginaring\PROJECI'S\537\MEMOS\Adpt Sp Asmt.doc
SUBJECT: ADOPTION OF SPECIAL ASSESSMENTS
41ST AVENUE STREET AND UTILITY IMPROVEMENTS
S
Page 2
Attached is a copy of a letter sent October 16, to the nine property owners requesting that they
call us and let us know their preference for a 10 or 15 year payment period. Staff also made
telephone calls to the property owners. As of this time, we have heard from five property
owners. They have stated as follows:
Two would prefer a 15 year payment period.
Two will be paying off their assessments immediately and therefore the
payment period will have no effect.
One responded that they would be satisfied with either a 10 or 15 year
period and would go with the majority of the property owners.
RECOMMENDATIONS AND CONCLUSIONS: It is recommended that the City Council
adopt the assessment roll with a 15 year payment period and 7.5 % interest rate. The previous
resolution, which the Council had for consideration, has been revised in accordance with this
recommendation.
Fred G. Moore, P.E.
Director of Public Works
attachments: Resolution
Letters
N:\PW\EngineeringIPROJECTS\537\MEMOS\Adpt_Sp_Asmt.doc
s
CITY OF PLYMOUTH
RESOLUTION NO. 97 -
ADOPTING ASSESSMENTS
CITY PROJECT NO. 5037
41ST AVENUE
STREET AND UTILITIES
WHEREAS, pursuant to proper notice duly given as required by law, the Council has met and
heard and passed upon all objections to the proposed assessments for the improvements of 41"
Avenue• by the construction of a 28 foot wide bituminous street, concrete curb and gutter,
storm sewer, sanitary sewer and water lateral, and all other appurtenances;
NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PLYMOUTH, MINNESOTA:
1. Such proposed assessment, a copy of which is attached hereto and made a part hereof, is
hereby accepted and shall constitute the special assessment against the lands named therein
and each tract of land therein included is hereby found to be benefited by the proposed
improvement in the amount of the assessment levied against it.
2. Such assessment shall be payable in equal annual installments extending over a period of 15
years, the first of the installments to be payable on or before the first Monday in January,
1998, and shall bear interest at the rate of 7.5 % per annum from the date of adoption of
this assessment resolution. To the first installment shall be added interest on the entire
assessment from the date of this resolution until December 31, 1998. To each subsequent
installment when due shall be added. interest for one year on all unpaid installments.
3. The owner of any property so assessed may, at any time prior to certification of the
assessment to the County Finance Director, pay the whole of the assessment on such
property with interest accrued to the date of payment to the City Finance Director, except
that no interest shall be charged if the entire assessment is paid within 30 days from the
adoption of this resolution and he may at any time thereafter pay the City Finance Director
the entire amount of the assessment remaining unpaid with interest accrued to December 31
of the year in which such payment is made. Such payment must be made before November
29 or interest will be charged through December 31, of the next succeeding year.
4. The Clerk shall forthwith transmit a certified duplicate of this assessment to the County
Finance Director to be extended on the proper tax lists of the County and such assessments
shall be collected and paid over in the same manner as other municipal taxes.
5. The total cost of the improvement assessed by this resolution is $124,886.00.
Adopted by the City Council on October 29, 1997.
P1y_nt\ntdiskI\PW\Engineering\PROJECI'S\537\RESOL\Adpt_Asmt 5037.doc
STATE OF MINNESOTA)
COUNTY OF HENNEPIN) SS.
S
The undersigned, being the duly qualified and appointed City Clerk of the City of Plymouth,
Minnesota, certifies that I compared the foregoing resolution adopted at a meeting of the
Plymouth City Council on , with the original thereof on file in my
office, and the same is a correct transcription thereof.
WITNESS my hand officially as such City Clerk and the Corporate seal of the City this
day of
City Clerk
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SUBJECT: 41ST AVENUE STREET AND UTILITY IMPROVEMENTS
ASSESSMENT HEARING
CITY PROJECT NO. 5037
Dear Property Owner:
On Wednesday, October 15, 1997 the City Council held an assessment public hearing for
the improvements on 41" Avenue which included the installation of sanitary sewer,
watermain and street improvements. At the public hearing, several residents spoke
requesting the Council consider a payment schedule for the assessments based on a term
longer than ten years. At the close of the public hearing, the Council deferred action on the
assessment roll pending review by the residents of a payment schedule based on a ten and
fifteen year term at 7.5% interest.
Please find attached for your review a payment schedule for ten and fifteen years on your
proposed assessment. The Council will be meeting again on Wednesday, October 29, 1997
to consider adopting the assessment roll.
Please call me at your convenience at 509-5522 and give me your preference for a ten or
fifteen year payment period. At any time during the payment period the unpaid amount of
the assessment may be paid to the City. If you are unable to reach me, please leave a
message.
Sincerely,
Daniel K. Campbell
Senior Engineering Technician
enclosure
cc: Fred G. Moore, Director of Public Works
Daniel L. Faulkner, City Engineer
1\Ply_nt\ntdisk l\P W\Engineering\PROJECTS153TLTRS\Assessform. doc
PLYMOUTH :4 Betz utifUC'Place'To Live
3400 PLYMOUTH BOULEVARD • PLYMOUTH, MINNESOTA 55447-1482 • TELEPHONE (512) 509-5000
I )i _5! ) 7 Assoai . Is 3 : 02 Am
10 YEAR TERM AT 7.5% INTEREST
A ,n,TUAL
YEAR PRINCIPLE
Al `!EARLY
INTEREST PAYMENT
1998 1,479.90 1,294.91 2,774.81
1999 1479.90 998.93 2478.83
2000 1479.90 887.94 2367.84
2001 1479.90 776.95 2256.85
2002 1479.90 665.96 2145.86
2003 1479.90 554.96 2034.86
2004 1479.90 443.97 1923.87
2005 1479.90 332.98 1812.88
2006 1479.90 221.99 1701.89
2007 1479.90 110.99 1590.89
TOTAL 14,799.00 6,289.58 21,088.58
15 YEAR TERM AT 7.5%- INTEREST
ANNUAL ANNUAL YEARLY
YEAR PRINCIPLE INTEREST PAYMENT
1998 986.60 1,294.91 2,281.51
1999 986.60 1035.93 2022.53
2000 986.60 961.94 1948.54
2001 986.6'0 887.94 1874.54
2002 986.60 813.95 1800.55
2003 986.60 739.95 1726.55
2004 986.60 665.96 1652.56
2005 986.60 591.96 1578.56
2006 986.60 517.97 1504.57
2007 986.60 443.97 1430.57
2008 986.60 369.98 1356.58
2009 986.60 295.98 1282.58
2010 986.60 221.99 1208.59
2011 986.60 147.99 1134.59
2012 986.60 74.00 1060.60
TOTAL 14,799.00 9,064.39 23,863.39
8 prope'j.. es 0.re 0ssedSe d
Fj
4 14,799
10. -7-5/3- Asspa1 . x1s 1: 15 PM '
10 YEAR TERM AT 7.5% INTEREST
ANNUAL
YEAR PRINCIPLE
ANNUAL YEARLY
INTEREST PAYMENT
1998 649.40 568.23 1,217.63
1999 649.40 438.35 1087.75
2000 649.40 389.64 1039.04
2001 649.40 340.94 990.34
2002 649.40 292.23 941.63
2003 649.40 243.53 892.93
2004 649.40 194.82 844.22
2005 649.40 146.12 795.52
2006 649.40 97.41 746.81
2007 649.40 48.71 698.11
TOTAL 6,494.00 2,759.95 9,253.95
15 YEAR TERM AT 7.59. INTEREST
ANNUAL ANNUAL YEARLY
YEAR PRINCIPLE INTEREST PAYMENT
1998 432.93 568.23 1,001.16
1999 432.93 454.58 887.51
2000 432.93 422.11 855.04
2001 432.93 389.64 822.57
2002 432.93 357.17 790.10
2003 432.93 324.70 757.63
2004 432.93 292.23 725.16
2005 432.93 259.76 692.69
2006 432.93 227.29 660.22
2007 432.93 194.82 627.75
2008 432.93 162.35 595.28
2009 432.93 129.88 562.81
2010 432.93 97.41 530.34
2011 432.93 64.94 497.87
2012 432.93 32.47 465.40
TOTAL 6,494.00 3,977.58 10,471.58
r
pe-Gpc - 4'y %s assCssc2 3 6, 494
1811822140003
Patricia & Kathryn McGowan
17530 State Hwy 55
Plymouth, MN 55446
1811822140010
Fred & Kathy Hawkins
17525 41st Ave N
Plymouth, MN 55446
1811822140008
Donna Ann Schaefer
17605 41 st Ave N
Plymouth, MN 55446
1811822140011
Vincent & Marie Hughes
17515 41 st Ave N
Plymouth, MN 55446
1811822140009
Susan & Larry Jude/Babiracki
17535 41st Ave N
Plymouth, MN 55446
1811822140012
Jonathan Cudo
17520 41 st Ave N
Plymouth, MN 55446
1811822140013 1811822140014 1811822140015
Pauline Etzel Kent & Marcia Kivley Charles & Amy Denison
17530 41 st Ave N 17610 41 st Ave N 17620 41 ST AVE N
Plymouth, MN 55446 Plymouth, MN 55446 PLYMOUTH, MN 55446
PIN»
FN» «LN*
BN» «SN»
CTY» , « ST» « ZIPN
SUBJECT: 41ST AVENUE IMPROVEMENTS
CITY PROJECT NO. 537
DEAR « FN» :
At the City's Public Information Meeting held on February 22, 1996, questions and
concerns were raised which City staff is attempting to address. The issues of concern
included the cost of the proposed paved street and the annual assessment payment, tree
removal required to construct the proposed improvements, and the proposed closure of
the 41st Avenue/Highway 55 access.
The City staff is in the process of evaluating these concerns and others expressed at the
meeting. As part of that evaluation, you undoubtedly have noticed stakes placed along
the edges of the existing 41st Avenue with the letters "B/C" painted on the top of the
stake. These stakes represent where a 33 foot wide street measured from the back of
curb to the back of curb would be placed if centered in the existing 60 foot right-of-way
owned by the City. After viewing the placement of these stakes and the relative
closeness to some of the trees in the area, staff will now be recommending a 28 foot
wide paved curb and gutter street. In addition, if the project is authorized with a 28 foot
wide paved street, we will adjust the placement of the street within the existing right-of-
way to further minimize the impact to trees and other existing improvements.
In response to the annual assessment payment spread out over different payout periods,
we have prepared the enclosed annual payment tables based on a payout of 10 years, 15
years, and 20 years at 7% interest. In preparing these tables, it is assumed that the
project would be completed this summer and assessments adopted by the City Council in
October 1996. The assessment could be paid off with no interest within 30 days from
the date of Council adoption, or the costs would be assessed as indicated in the tables.
As you will notice, the first payment is higher than the following years as it includes
interest from the time of City Council adoption through 1997, as required by Minnesota
law.
PLYMOUTH A Beau tlyul Place To Live G:\ENG\PROJECCS\537\LTRS\INFOFORM.DW
3400 PLYMOUTH BOULEVARD • PLYMOUTH, MINNESOTA 55447-1482 • TELEPHONE (612) 509-5000
This information along with a more detailed explanation will be provided to the City
Council in a staff report prior to their March 6 public hearing to consider the proposed
41st Avenue public improvement project. As indicated at our Public Information
Meeting, you should attend this meeting which begins at 7:00 p.m.
If you have any further questions prior to the City Council meeting, please don't hesitate
to contact either myself at 509-5520 or Dan Campbell at 509-5522.
Sincerely,
Daniel L. Faulkner, P.E.
City Engineer
enclosure
cc: Fred G. Moore, Director of Public Works
Daniel K. Campbell, Sr. Engineering Technician
G:\ENG\PROIECI'S\537\LTRS\INFOFORM. DOC
2/28/96 ASSP&I.XLS 9:40 AM
10 YEAR TERM AT 7!r INTEREST
ANNUAL ANNUAL YEARLY
YEAR PRINCIPLE INTEREST PAYMENT
1997 1,702.00 1,389.97 3,091.97
1998 1702.00 1072.26 2774.27
1999 1702.00 953.12 2655.13
2000 1702.00 833.98 2535<99
2001 1702.00 714.84 2416.85
2002 1702.00 595.70 2297.71
2003 1702.00 476.56 2178.57
2004 1702.00 357.42 2059.42
2005 1702.00 238.28 1940.28
2006 1702.00 119.14 1821.14
TOTAL 17,020.04 6,751.28 23,771.32
15 YEAR TERM AT 7% INTEREST
ANNUAL ANNUAL YEARLY
YEAR PRINCIPLE INTEREST PAYMENT
1997 1,134.67 1,389.97 2,524.64
1998 1134.67 1111.98 2246.65
1999 1134.67 1032.55 2167.22
2000 1134.67 953.12 2087.79
2001 1134.67 873.70 2008.36
2002 1134.67 794.27 1928.94
2003 1134.67 714.84 1849.51
2004 1134.67 635.41 1770.08
2005 1134.67 555.99 1690.66
2006 1134.67 476.56 1611.23
2007 1134.67 397.13 1531.80
2008 1134.67 317.71 1452.38
2009 1134.67 238.28 1372.95
2010 1134.67 158.85 1293.52
2011 1134.67 79.43 1214.10
TOTAL 17,020.04 9,729.79 26,749.83
2/28/96 ASSP&I.XLS
20 YEAR TERM AT 7% INTERSET
ANNUAL ANNUAL YEARLY
YEAR PRINCIPLE INTEREST PAYMENT
1997 851.00 1,389.97 2,240.97
1998 851.00 1131.83 1982.83
1999 851.00 1072.26 1923.26
2000 851.00 1012.69 1863.69
2001 851.00 953.12 1804.12
2002 851.00 893.55 1744.55
2003 851.00 833.98 1684.98
2004 851.00 774.41 1625.41
2005 851.00 714.84 1565.84
2006 851.00 655.27 1506.27
2007 851.00 595.70 1446.70
2008 851.00 536.13 1387.13
2009 851.00 476.56 1327.56
2010 851.00 416.99 1267.99
2011 851.00 357.42 1208.42
2012 851.00 297.85 1148.85
2013 851.00 238.28 1089.28
2014 851.00 178.71 1029.71
2015 851.00 119.14 970.14
2016 851.00 59.57 910.57
TOTAL 17,020.04 12,708.30 29,728.34
9:40 AM
Agenda Number: T
TO: Dwight Johnson, City Manager
FROM: Anne `urI lbi rt Community Development Director
SUBJECT: PROPOSED ZONING ORDINANCE AMENDMENTS (97104)
DATE: October 20, 1997 for the City Council Study Session of October 29, 1997
At its October 1 meeting, the City Council tabled the proposed zoning ordinance amendments for
discussion at its October 29 Study Session. Attached is the staff report prepared for the October ]
meeting, which summarizes the amendments.
Based on comments or questions that have been raised previously, two of the specific amendments
that the Council may wish to discuss are:
development standards (lot width, side yard setbacks) in the RSF-1 zoning district (see page 6
of report); and
accessory uses in the B -C zoning district, specifically the proposed 25% limitation on
manufacturing, compounding, assembly, packaging, treatment or warehousing of
merchandise and commodities" (see page 8 of report.)
RECOMMENDATION:
I recommend that the City Council, after reviewing and discussing the proposed amendments, give
its direction to staff on any changes or additions to the recommended amendments so that they
may be placed on the November 5 regular City Council agenda for adoption.
ATTACHMENTS:
1. September 25, 1997 staff report with all attachments
g:\cd\plan\staffrep\cc\CC97\97104b.doc
A.
Agenda Number: q L.
TO: Dwight Johnson, City Manager
FROM: Anne ftrl%urt, Community Development Director
SUBJECT: PROPOSED ZONING ORDINANCE AMENDMENTS (97104)
REVIEW DEADLINE: Not Applicable
DATE: September 25, 1997 for the City Council Meeting of October 1, 1997
1. PROPOSED MOTION:
Move to adopt:
A. An ordinance comprehensively revising and amending the text of Chapter 21 of the Plymouth
City Code, the Plymouth Zoning Ordinance (requires a 5/7 vote of the Council for approval)
B. A resolution approving summary publication of the above described ordinance (requires a 6/7
vote)
C. An ordinance amending Chapter 10 of the City Code regarding zoning and subdivision fees
requires a 4/7 vote)
2. BACKGROUND:
When the new Zoning Ordinance was adopted in 1996, the Planning Commission and City
Council recognized that it would be necessary, after we worked with the new ordinance for
several months, to make additional adjustments and modifications to the ordinance. Staff has
prepared proposed amendments addressing both technical (typographical errors, etc.) as well as
substantive changes. Because of the large number of changes, the City Attorney has
recommended that the Council re -adopt the entire text of the ordinance incorporating the
amendments, and then publish a summary, as was done when the complete revision of the
Zoning Ordinance was done last year. This represents a significant cost savings compared to
publishing the entire text.
The Planning Commission began reviewing the proposed Zoning Ordinance amendments in July,
and discussed the draft amendments at a special meeting on August 4, 1996. One member of the
public (Ed Albro) was present and participated in the special meeting. The Commission
suggested some additional changes and held a public hearing at its September 19, 1997 meeting.
No one testified at the hearing. The draft presented to the Council with this report incorporates
all amendments suggested by the Commission and staff.
J`
3. PROPOSED AMENDMENTS:
We have prepared a "redlined" version of the entire ordinance text, showing the proposed
ordinance changes. New language is underlined, deletions are RtriQk@Q. Pages with amendments
are copied on colored paper for your convenience. For ease of review, we have also prepared a
list of changes, identifying those of a substantive nature as well as technical corrections such as
typographical errors, errors in citations and the like.
There are no amendments recommended to the Zoning Map at this time. There have been a
couple of errors found in the map since adoption, but we have initiated separate actions to correct
them as they were discovered.
In 1996, we made a decision to exclude any amendments to the sign regulations from the Zoning
Ordinance update. While the sign regulations are a part of the Zoning Ordinance, we have
prepared the amendments as a separate document, anticipating that the sign regulations may
require additional public discussion and therefore will be on a different time line. We are
expecting that the Planning Commission will begin reviewing new sign regulations in October.
This report highlights the most significant, substantive amendments for discussion in the general
order in which they appear in the text of the ordinance. For a complete, section -by -section list
of changes, please see the attached list.
Title and Application Section (21000)
Sections adopting the zoning map by reference, explaining how zoning district
boundaries are to be interpreted, and how any future annexation areas would be zoned are
proposed to be added. This language was in the old ordinance but inadvertently was not
carried over.
Definitions (21005)
Several definitions are proposed to be revised, including "coffee house ", "day care
facilities" and "recreation, commercial. " Small changes to these definitions will help
clarify the existing language. Two new definitions are proposed to be added.
Dwelling, elderly (senior citizen)" is a term used in the code but not previously defined.
Manufactured Home Park (Mobile Home Park) ", is not currently defined. Due to a new
state law, the City must include provisions in the ordinance for this use (see separate
discussion of mobile home parks, below.)
Notification Procedures for Rezoning and PUDs (21010)
Amendments will expand mailed notice area for rezonings (map amendments and PUD
amendments) from 500 feet to 750 feet, and add a second mailed notice (upon receipt of
an application). This is the same procedure recently adopted for Comprehensive Plan
amendments.
Public Notice Signage (21022)
The section on public notice signage has been revised to provide for at least one sign per
street frontage of the site. Signs would be posted earlier in the development review
process, and remain in place until after City Council action. There is currently some
2
t
languagelanguage elsewhere in the City Code that is redundant with the language in the zoning
ordinance concerning public notice signage. Item "C " in the recommended motion is an
ordinance that would amend Chapter 10 of the City Code to remove this redundant
language, which is inconsistent with the proposed amendment.
Minor Site Plan Approvals (21045)
City staff currently has authority to administratively approve "minor" projects meeting
certain criteria. (The new ordinance did not change the criteria from the old ordinance.)
The draft proposes a small change to better address the concern over transitions between
residential and commercial or industrial zones. Currently, certain non-residential
development projects that are not adjacent to residential areas may be approved
administratively if they meet all ordinance criteria and do not include requests (such as a
conditional use permit) that would otherwise require a public hearing. The draft
amendments would add a public review by the Planning Commission and City Council
for any non-residential project within 200 feet of residential properties. The distance for
mailed notifications would also increase to 200 feet. This change would provide an
opportunity for the public, the Planning Commission or the City Council to identify any
problems or conflicts and seek to resolve them.
Fencing (21130)
Several amendments affect the requirements for fences. The provision specifying that
fences up to 10 feet in height are allowed for tennis courts has been revised to clarify the
standards and that no conditional use permit is required. Essential service structures
would be exempt from obtaining an interim use permit for barbed wire and electric
fences. Amendments also eliminate provisions for above ground storage tanks that may
duplicate and conflict with the Fire Code, and clarify that 6 -foot fences are not allowed in
front of the home in residential districts.
Landscaping (21130)
A provision has been added to allow seeding instead of sodding of certain portions (the
rear yard 25 feet beyond the house) of single family lots. This was suggested by the
Council in 1996, but too late to include in new ordinance. The Council directed us to
include this in the next ordinance update.
Parking (21135)
A number of changes in this section will clarify requirements for the P -I district, correct a
couple of omissions of language that should have been carried over from the old
ordinance and clarify that each lot needs frontage on a public street. We also propose to
correct a conflict in parking setbacks for residential areas. The text specifies a 6 foot side
yard setback; the table says 3 feet. Since 3 feet has been the standard enforced, we
proposed to continue that standard. A new parking ratio for day care centers (1 space for
each 6 instead of 1 for each 4 children, based on recent project reviews) is recommended.
The parking ratio for senior citizen housing is increased from 1 to 1.5 spaces per unit, to
restore a requirement for guest parking that was not carried over from the old ordinance.
3
16
Home Occupations (21145)
Several changes include eliminating reference to signage (substituting a reference to the
sign section of ordinance) and clarifying that only those who customarily reside on the
premises may be employed on the premises. Day care is eliminated from the list of
interim home occupations, because they are dealt with elsewhere in the ordinance and do
not require a home occupation license. We also propose changing the date by which
residents with existing interim home occupations are required to obtain a license required
by the new ordinance from July 1, 1997 to January 1, 1999. Staff has not yet had time to
contact existing known home occupations to inform them of this requirement, but should
be able by the new deadline. No licenses have been issued based on this requirement to
date.
Temporary Structures (2116 7)
A new section on procedures and requirements for temporary structures has been added.
This section does not apply to model homes/ temporary real estate offices or temporary
classroom structures, but is intended for construction trailers and other temporary
structures, such as the temporary office space used by the City during the City Hall
remodeling or by Life Time Fitness during their construction. The ordinance does not
currently provide any mechanism for allowing these types of structures. Permits would
be approved administratively, in all zoning districts, if the criteria are met. Criteria
include setbacks, Building Code compliance and time limits. No temporary structure
would be allowed unless a site plan had been approved or a building permit had also been
issued for a new structure, addition or remodeling of an existing structure on the property.
Bed & Breakfast Establishments (21190.01)
The performance standards for bed & breakfast establishments currently state that they
are permitted "within any residential district of the City" subject to a conditional use
permit. We propose to change this to "within the FRD and RSF-1 zoning districts". It
was not intended that Bed & Breakfasts would be allowed in all zoning districts, just
those with larger lots that can accommodate the parking requirements and other
standards. To further ensure that B & B's would not have adverse impacts on residential
neighborhoods, the performance standards are proposed to add requirements that the
property be at least 1 acre in size and that it have access from a street classified by the
Transportation Element of the Comprehensive plan as a major collector street or higher.
B & B's have also been added to the lists of conditional uses in the FRD & RSF-1 district
descriptions. The new standards will address the concern that a "standard" RSF-1 lot
may be too small to accommodate the parking and additional visitors without disturbing
the neighborhood, and ensure that traffic from a B & B will not impact low-volume
residential streets and cul-de-sacs.
Residential Shelters (21190.02)
The performance standards are proposed to be amended to delete that residential shelters
are allowed "as a principal or accessory use. " Residential shelters were intended to
require a conditional use permit in P -I and all R districts. Residential shelters are also
added to the list of conditional uses in the R districts. This section applies only to
G
residential shelters that do not meet the definition of state licensed residential facilities, "
which are defined and regulated separately.
Manufactured Home Parks (21190.03)
A new section of performance standards for development and operation of manufactured
home parks (mobile home parks) is proposed. A state law change that became effective
on July 1, 1997 mandates that mobile home parks shall be allowed as a conditional use in
any zoning district that permits a two-family structure or larger. The ordinance currently
has no standards. The proposed standards are based on those currently in effect in
Lakeville, MN. Mobile home parks would also be added to the list of conditional uses in
the RSF-4 and all RMF zoning districts to comply with the law. In our opinion it is
highly unlikely that a mobile home park would be developed, but without this section the
City would have no standards by which to judge such a proposal should one be
submitted.
Essential Services and Essential Service Structures (various sections)
A number of changes throughout the ordinance are related to the requirements for
essential services and essential service structures. They must be allowed in all districts,
but were missing from several. And, in some cases, the permitting process appeared to be
in conflict with the performance standards for these uses. The amendments will clarify
the permits required in each zoning district.
Antenna Regulations (various sections)
Earlier this year, some amendments were made to the regulations affecting cellular
telephone towers and antennas. A number of additional changes are needed to align the
zoning district requirements with the more recently adopted performance standards and
definitions. For example, in several districts, antennas located on an existing tower is in
the list of permitted uses but should actually be in the list of uses by administrative
permit.
Tables, All Zoning Districts (various sections)
The tables included in the zoning district regulations all show some modifications. Most
are technical corrections to make interpretation easier or more clear. The few substantive
changes are included in the descriptions of changes below.
Allowed Uses, Residential Districts (21350-21390)
The lists of uses allowed in each residential zoning district have been modified to clarify
the requirements for a number of uses (such as bed & breakfasts, residential shelters,
mobile home parks, etc.) already noted above. Other changes include:
Landfilling and land excavation/ grading operations subject to Section 21185 have
been added to the lists of interim use permits and administrative permits, to be
consistent with the performance standards.
Dog kennels have been moved from a conditional use in FRD to an interim use. A
time limit on kennels is desirable, to coordinate with animal licensing requirements.
5
Temporary classroom structures for use by public or private schools have been added
to the list of uses by interim use permit in the RSF-1 district. Many of the city's
elementary schools are located in RSF zoning districts.
A number of technical corrections to make sure the list of uses matches definitions used
elsewhere in the ordinance have also been recommended
Development Standards, RSF-1 District (21355.13)
In 1996, the Planning Commission recommended that the minimum lot width in the RSF-
1 zoning district be reduced from 110 feet to 100 feet. The Council did not approve this
amendment, but directed that it be reconsidered in the 1997 update. The change would
not affect lot sizes, only width. A narrower lot width would make more efficient use of
streets and utilities, and recognize the need for additional depth as compared to width in
areas where lots abut wetlands. A large proportion of existing lots in the RSF-1 district
are less than 110 feet wide.
In conjunction with again recommending the reduced lot width, staff is also
recommending that the side yard setback in RSF-1 be reduced from 15 feet to 10 feet.
The smaller setback would be appropriate with a reduced lot width. And since the
ordinance was adopted, we have found many more instances where the City had
previously approved the smaller setbacks, outside of Planned Unit Developments. With
the increased popularity of 3 -car garages, we are seeing more applications for variances
from the side yard setbacks in RSF-1 areas in existing neighborhoods. Ten feet (20 feet
between homes) is an adequate setback to maintain proportionality of the house and lot
and separation between structures.
Allowed Uses, Commercial and Industrial Districts (21450-21570)
As for the residential districts, the lists of uses allowed in C and I zoning districts have
been modified to clarify the requirements for a number of uses (such as essential services,
antennas, etc.) already noted above. Other changes include:
Banks with drive -up tellers were added as a conditional use in the O -R district. The
old `B-1 " district allowed them; some areas that were zoned B-1 are now in the O -R
and making this addition would resolve at least one non -conformity.
Including all usual and customary accessory uses" has been added to residential
uses in the O -R district. This ensures that garages, for example, could be included as
part of any residential project in this district.
Structures exceeding the height limit by conditional use permit were added to the O -R
district (the same language as currently in the RSF-4 district.)
Landfilling and land excavation/ grading operations subject to Section 21185 have
been added to the lists of interim use permits and administrative permits, to be
consistent with the performance standards.
Sporting goods and recreational equipment sales" in the C-2 district was changed to
add "not including motorized vehicles or boats." Motor vehicle sales were intended
to be restricted to the C -W district, and not allowed in "neighborhood" commercial
areas. While a careful reading of the ordinance would indicate that the ordinance
0
does not permit motorized vehicle sales in C-2, we have had this questioned so
believe it is best to state it outright.
Where "banks including drive up tellers" were listed, it was changed to "banks with
or without drive up tellers" to make it clear that drive up tellers are not mandatory.
Cafes " are deleted because they are not defined (cafes are included in the restaurant
definitions.)
Offices, commercial and professional " were added to the list of permitted uses in
the CC -P (City Center -Public) district.
In the CC -RE district, "Book, office supply or stationary stores..." was changed to
Book, office supplies and equipment or stationary stores..."
The term "Religious worship facilities" was changed to "Religious institutions" to
reflect that most churches have additional facilities in addition to those specifically
for "worship" (classrooms etc.) The term "religious institutions" is more inclusive
of uses typically associated with churches and consistent with the term used in the R
districts.
In the C -W district, "Warehousing and warehouse showrooms" was changed to
Warehousing and wholesale showrooms." The term "warehouse showroom" is
often used by retail stores; this was not intended to be a retail use so using the word
wholesale" should help to clarify.
Extended stay hotels" were added as a conditional use in the B -C district.
Several corrections to make sure the lists of uses match definitions used elsewhere in the
ordinance have also been recommended (for example, "Elderly (senior citizen) housing"
becomes "Dwelling, elderly (senior citizen). " Another example: the term "Prepared
food: delivery and/or take-out only" has been changed to "Restaurant, delivery or take
out" to be consistent with the definitions section of the ordinance.
Christmas Tree Sales in Commercial Districts (21455.11)
Currently, the Zoning Ordinance allows temporary outdoor sales activities in commercial
districts by administrative permit, provided they not exceed a total of 60 days per year.
These permits are typically issued for the sale of bedding plants and nursery stock in the
spring, Christmas trees in the winter, and for assorted "sidewalk sales" and other
seasonal sales. Recently, City Council members were contacted by Family Hope
Services, a non-profit agency that has sold Christmas trees at Cub Foods and at Holiday
Plus in previous years. Apparently, Holiday has already used most of their allowed 60
days; leaving insufficient time for the Christmas tree sales this coming December.
In order to deal with this issue, we considered increasing the time allowed for outdoor
sales. However, regardless of the time limit we place on outdoor sales, we cannot require
the business to allow Family Hope Services or any other organization to utilize any of
that time. Another approach, which would more directly address this problem, is to
separate Christmas tree sales from the current restriction on outdoor sales. Outdoor
Christmas tree sales would be permitted in any business district, by an administrative
permit, for up to 45 days. This approach was approved by the City Council and they
directed staff to include amendments in these ordinance changes.
7
i
Accessory uses in the B -C District (21555.07)
Manufacturing, compounding, assembly, packaging, treatment or indoor storage of
products and materials as an accessory use" in the B -C district was discussed extensively
in conjunction with a recent project. The issue was how much of a structure might be
utilized for the accessory uses and still maintain a subordinate relationship to the
permitted uses on the site. The Planning Commission recommended that a maximum of
25% of the gross building floor area be devoted to the accessory uses in that case, and
requested that this be made an ordinance standard. Additional discussion occurred at the
City Council. There was some concern that general storage (such as for office supplies)
needed to be separated from the definition. A text change has been suggested to make the
language more precise. "Indoor storage of products and materials" would be changed to
warehousing of merchandise or commodities ", which may better indicate that general
storage is not included in the 25% area limitation. It would be difficult to make other
changes to further refine the definition. The conditional use permit and building plan
review process are probably the most appropriate points at which to apply the standard to
individual cases, and determine how best to enforce the restrictions in a given situation.
The 25% standard is reasonable to include in the ordinance because it will ensure that the
uses are clearly subordinate to the permitted principal uses.
Height Limit, I-2 District (21565.13)
The building height limit for the I-2, General Industry district was intended to be 45 feet.
The table has been edited to include this change. We current have a 45 foot height limit
in the C-3, C-4, CC, C -W, B -C, I-3 and P -I districts.
Allowed Uses, Public Institutional (P -I) District (21650)
As for the other districts, the lists of uses allowed in the P -I district have been modified to
clarify the requirements for a number of uses (such as essential services, antennas,
residential shelters, etc.) already noted above. Other changes include:
Fire stations" were added to the list of permitted uses.
Provisions to allow accessory structures, on the same basis as in commercial and
industrial districts, were added.
Parks, playgrounds and athletic fields" have been deleted from the list of accessory
uses (they are already a permitted use.)
Temporary classroom structures for use by public or private schools were added to
the list of uses by interim use permit. We have existing temporary classrooms that
were previously allowed by conditional use permit, and this process needed to be
carried over into the new ordinance.
Landfilling operations except mining subject to Section 21185 were added to the list
of uses by interim use permit and administrative permit to be consistent with the
performance standards.
Several corrections to make sure the lists of uses match definitions used elsewhere in the
ordinance have also been recommended (for example, "Day care nurseries" have been
changed to "Day care facilities. ")
Planned Unit Development (PUD) District (21655)
A number of changes to clarify the procedures for review and approval of PUDs are
recommended:
Clarifying that "Final adoption of any required Comprehensive Plan amendment and
the formal establishment of the PUD Zoning district shall take place within sixty (60)
days following the City Council approval of the general plan." The timing of the
City's adoption of related actions is not clear in the current ordinance.
Deleting the requirement that final architectural working drawings of all structures
shall be submitted with final PUD plans. This is not practical for phased projects and
is more appropriate to be submitted prior to building permit review, not the PUD
approval.
Adding that final PUD plan materials are to be submitted for review and approval by
the Zoning Administrator.
Clarifying the reference to a development agreement to indicate it is to be entered into
prior to final plan approval, and that a site improvement performance agreement may
also be required. We have removed the requirement that the contract be recorded, per
the advice of the City Attorney. The specifics of development contracts are
determined by the Subdivision Regulations.
4. RECOMMENDATION:
Community Development Department staff recommends adoption of
A. an ordinance comprehensively revising and amending the text of Chapter 21 of the Plymouth
City Code, the Plymouth Zoning Ordinance;
B. a resolution approving summary publication of the above described ordinance; and
C. an ordinance amending Chapter 10 of the City Code regarding zoning and subdivision fees to
remove inconsistencies in Code language concerning development signage.
ATTACHMENTS:
1. Draft Ordinance Comprehensively Revising and Amending the Text of Chapter 21 of the
Plymouth City Code (Zoning Ordinance)
2. Draft Resolution Approving Summary Publication of Zoning Ordinance
3. Draft Ordinance Amending Chapter 10 of the City Code Regarding Zoning and Subdivision
Fees
4. List of Proposed Zoning Ordinance Amendments
5. Draft Zoning Ordinance
E
CITY OF PLYMOUTH
HENNEPIN COUNTY, MINNESOTA
ORDINANCE NO. 97 -
AN ORDINANCE COMPREHENSIVELY REVISING AND AMENDING
THE TEXT OF CHAPTER 21 OF THE PLYMOUTH CITY CODE,
THE PLYMOUTH ZONING ORDINANCE
THE CITY OF PLYMOUTH ORDAINS:
Section 1. Amendment. The text of Chapter 21 of the City Code, the Plymouth
Zoning Ordinance, not including the Plymouth Minnesota Zoning Map adopted by
reference in Section 21000.12 of the Zoning Ordinance, and all amendments thereto are
hereby repealed and replaced entirely by the following:
SEE ATTACHMENT A
Section 2. Effective Date. This Ordinance shall be in full force and effect upon its
passage.
Adopted by the City Council this day of 11997.
Joycelyn Tierney, Mayor
ATTEST
Laurie Ahrens, City Clerk
staffrep/ord/97104
CITY OF PLYMOUTH
RESOLUTION NO. 97 -
RESOLUTION APPROVING SUMMARY PUBLICATION OF
ORDINANCE NO. 97-_, AN ORDINANCE COMPREHENSIVELY REVISING
AND AMENDING THE TEXT OF CHAPTER 21 OF THE PLYMOUTH CITY
CODE, THE PLYMOUTH ZONING ORDINANCE
WHEREAS, on the Plymouth City Council adopted Ordinance No. 97-_,
an ordinance comprehensively revising and amending the text of Chapter 21 of the
Plymouth City Code, the Plymouth Zoning Ordinance; and
WHEREAS, in lieu of publishing the entire ordinance in the City's official newspaper,
State Law permits the publication of a summary approved by the City Council; and
WHEREAS, the Council has reviewed the summary of Ordinance No. 97- which is
attached to this resolution;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PLYMOUTH, MINNESOTA, that it shall and hereby does approve Summary
Ordinance No. 97-_, Plymouth Zoning Ordinance, for publication in the City's official
newspaper.
Adopted by the City Council on
97104 summary public
ATTACHMENT A
CITY OF PLYMOUTH
HENNEPIN COUNTY, MINNESOTA
SUMMARY ORDINANCE NO. 97 -
CHAPTER 21 OF THE PLYMOUTH CITY CODE,
THE PLYMOUTH ZONING ORDINANCE
This ordinance repeals the text of Chapter 21 of the City Code, the Plymouth Zoning
Ordinance, and all its amendments, and establishes a new Zoning Ordinance which contains the
following articles:
SECTION 21000 - TITLE AND APPLICATION
SECTION 21005 - RULES AND DEFINITIONS
SECTION 21010 - ADMINISTRATION - AMENDMENTS (TEXT AND MAP)
SECTION 21015 - ADMINISTRATION - CONDITIONAL USE PERMITS
SECTION 21020 - INTERIM USES
SECTION 21022 - PUBLIC NOTICE SIGNING
SECTION 21025 - ADMINISTRATION - ADMINISTRATIVE PERMITS AND APPROVALS
SECTION 21030 - ADMINISTRATION - VARIANCES
SECTION 21035 - ADMINISTRATION - APPEALS
SECTION 21040 - ENVIRONMENTAL REVIEW
SECTION 21045 - SITE PLAN REVIEW
SECTION 21050 - ENFORCEMENT AND PENALTIES
SECTION 21100 - NON -CONFORMING BUILDINGS, STRUCTURES, USES AND LOTS
SECTION 21105 - GENERAL BUILDING AND PERFORMANCE STANDARDS
SECTION 21115 - GENERAL YARD, LOT AREA AND BUILDING REGULATIONS
SECTION 21120 - ACCESSORY BUILDINGS, STRUCTURES, USES AND EQUIPMENT
SECTION 21130 - FENCING/SCREENING/LANDSCAPING
SECTION 21135 - OFF-STREET PARKING AND LOADING
SECTION 21140 - BUILDING RELOCATION
SECTION 21145 - HOME OCCUPATIONS
SECTION 21150 - DAY CARE FACILITIES
SECTION 21155 - SIGN REGULATIONS
SECTION 21160 - ESSENTIAL SERVICES
SECTION 21165 - MODEL HOMES/TEMPORARY REAL ESTATE OFFICES
SECTION 21167 - TEMPORARY STRUCTURES
SECTION 21170 - ANIMALS
SECTION 21175 - ANTENNAS
SECTION 21180 - PUBLIC PROPERTY/RIGHTS-OF-WAY
SECTION 21185 - LAND FILLING AND EXCAVATION/GRADING OPERATIONS
SECTION 21190 - SPECIALIZED HOUSING
SECTION 21195 - SEXUALLY ORIENTED USES
SECTION 21350 - FRD, FUTURE RESTRICTED DEVELOPMENT DISTRICT
SECTION 21355 - RSF-1, SINGLE FAMILY DETACHED DWELLING DISTRICT 1
SECTION 21360 - RSF-2, SINGLE FAMILY DETACHED DWELLING DISTRICT 2
SECTION 21365 - RSF-3, SINGLE FAMILY DETACHED DWELLING DISTRICT 3
SECTION 21370 - RSF-4, SINGLE FAMILY AND TWO FAMILY DWELLING DISTRICT
SECTION 21375 - RMF -1, MULTIPLE FAMILY DWELLING DISTRICT 1
SECTION 21380 - RMF -2, MULTIPLE FAMILY DWELLING DISTRICT 2
SECTION 21385 - RMF -3, MULTIPLE FAMILY DWELLING DISTRICT 3
SECTION 21390 - RMF -4, MULTIPLE FAMILY DWELLING DISTRICT 4
SECTION 21450 - O -R, OFFICE/RESIDENTIAL TRANSITION DISTRICT
SECTION 21455 - C-1, CONVENIENCE COMMERCIAL DISTRICT
SECTION 21460 - C-2, NEIGHBORHOOD COMMERCIAL DISTRICT
SECTION 21465 - C-3, HIGHWAY COMMERCIAL DISTRICT
SECTION 21470 - C-4, COMMUNITY COMMERCIAL DISTRICT
SECTION 21475 - CC, CITY CENTER DISTRICT
SECTION 21550 - C -W, COMMERCIAL/WAREHOUSING DISTRICT
SECTION 21555 - B -C, BUSINESS CAMPUS DISTRICT
SECTION 21560 - I-1, LIGHT INDUSTRIAL DISTRICT
SECTION 21565 - I-2, GENERAL INDUSTRIAL DISTRICT
SECTION 21570 - I-3, HEAVY INDUSTRIAL DISTRICT
SECTION 21650 - PI, PUBLIC/INSTITUTIONAL DISTRICT
SECTION 21655 - PUD, PLANNED UNIT DEVELOPMENT DISTRICT
SECTION 21660 - FLOODPLAIN OVERLAY DISTRICT
SECTION 21665 - SHORELAND MANAGEMENT OVERLAY DISTRICT
SECTION 21670 - WETLANDS DISTRICT
The ordinance does not include any changes to the Plymouth, Minnesota Zoning Map
adopted by reference in Section 21000.12 of the Zoning Ordinance.
A printed copy of the entire Zoning Ordinance is available for inspection by any person
during the City Clerk's regular office hours and at the City Hall during regularly scheduled City
Council meetings.
APPROVED by the Plymouth City Council on this day of
1997.
CITY OF PLYMOUTH
Joycelyn Tierney, Mayor
ATTEST
LM
Laurie Ahrens, City Clerk
cd\plan\ord\97104- attachment A
CITY OF PLYMOUTH
HENNEPIN COUNTY, MINNESOTA
ORDINANCE NO. 97 -
AN ORDINANCE AMENDING CHAPTER 10 OF THE CITY CODE
REGARDING ZONING AND SUBDIVISION FEES (97104)
THE CITY OF PLYMOUTH ORDAINS:
Section 1. Section 1015.23 of the Plymouth City Code is hereby amended by revising
Subd. 4 as follows:
Subd. 4. Proposed Development and Land Use Action Announcement Sign Fees. A fee
of $165 will be charged for the installation and removal by the City of each signs announcing 94o
fQ11Q;W,qgproposed developments and land use actions, as required by Section 21022 of the City
Code.3 Tthis fee shall be in addition to the established planning application fee set forth in Subd.
2 and subject to the refund provisions set forth in Subd. 3 of this Subsection:_
Section 2. This Ordinance shall be effective immediately upon its passage.
Ordinance No. 97-
97032)
Page 2
ADOPTED by the City Council on 51997.
Joycelyn H. Tierney, Mayor
ATTEST:
Laurie F. Ahrens, City Clerk
cd\plan\staffrep\ord\97104 Sec1014 re fees.doc
Type:
City of Plymouth
1997 Zoning Ordinance Amendments (97104)
List of Proposed Amendments
September 18, 1997
T= Technical Corrections
S= Substantive Amendments
Section Description
1 T TC -1 Add new sections 21000.12 through 21000.14 to table of contents
2 T TC -2 Correct page number for public notice signing section should be 21022-1
3 T TC -5 Change "Exterior Storage/Display" to "Outside Storage/Display" to be
consistent with terms used elsewhere in the ordinance
4 T TC -6 Table of Contents, Section 21150, Change "Day Care Nursery Facilities" to
Day Care Facilities"
5 T TC -8 Add new section 21167, Temporary Structures, to table of contents
6 T TC -9 Add to Table of Contents, Section 21190.03, Manufactured Home Parks
Mobile Home Parks)
7 S 21000.12 Add sections adopting the zoning map by reference (21000.12), zoning
district boundaries (21000.13) and future annexations (21000.14). Draft
language is taken from old zoning ordinance. Also add sections to table of
Type Section Description
by the ordinance
18 S 21010.01 Change vote necessary to allow reconsideration of rezoning request denied
within prior six months from 2/3 vote to a majority of the full City Council
19 S 21010.01 Procedures for zoning map or PUD text amendments; add second mailed
notice (upon receipt of application in addition to notice mailed prior to
hearing) and expand notification area from 500 feet radius to 750 feet,
except for amendments initiated by the City that affect areas of 40 acres or
more
20 T 21015.02 Subd. 1: change "one thousand tree twenty" to "one thousand three
hundred twenty"
21 T 21015.04 Subd. 5—change "abutting" to "adjacent"
22 T 21015.04 Subd. 6—change "abuts" to "is adjacent to"
23 S 21022.01 Add Subd. 6 to section on public notice signing a requirement that there be
at least one sign placed on the site for each street frontage of the property.
The Zoning Administrator would have authority to require additional signs
if necessary. Revise Subd. 2 of this same section to clarify that the sign fee
is to be paid for each sign required.
24 S 21022.01 Public notice signing; clarify that "residential property" includes all land in
any "RSF" or "RMF" zoning district, and any FRD property that is
designated for residential uses by the Land Use Guide Plan.
ZS S 21022.01 Revise section on public notice signing to permit earlier installation of signs
Type Section Description
Commercial, Public/Institutional and Industrial Zoning Districts"
38 T 21115.03 Change Title of Subd. 3 from "Business Districts" to "Commercial and
Public/Institutional Districts"
39 T 21115.03 Subd. 1(b) ---change "abutting" to "adjacent"
40 T 21115.03 Subd. 2(b)—change "abutting" to "adjacent"
41 T 21115.03 Subd. 4(a) --change "abutting" to "adjacent"
42 T 21115.04 Subd. 5, change plural "buildings" to singular "building"
43 T 21115.04 Subd. 4, change "conditions met" to "conditions are met"
44 S 21120.01 Delete word "required" from Subd. 1, line 2. Now that front yard setbacks
have been reduced in most residential areas, many homes are set back
further than the "required" distance, potentially allowing an accessory use
or structure to be placed in front of the home. In order to make it clear that
accessory buildings are not allowed in front of the house, we should
eliminated "required. "
45 T 21120.01 Subd. 3, delete "In those residential zoning districts which are not specified
in Subd. 2" and replace it with "In RMF Zoning Districts".
46 T 21120.01 Subd. 4, add " Within the FRD and RSF Zoning Districts" to clarify
application of this section.
47 T 21120.08 Add a blank line above 21120.08, CONDITIONAL USE PERMITS
48 S 21130.01 Clarify Subd. 5 (g) specifying that fences up to 10 feet in height are allowed
for tennis courts "provided all other provisions of this subdivision are met,
and shall not require a conditional use permit or interim use permit where a
tennis court is a permitted or accessory use."
49 S 21130.01 Exempt essential service structures in all zoning districts from interim use
permit requirement for barbed wire and electrically charged fences.
50 S 21130.01 Fences—eliminate word "required" from line 2. Plymouth has always
allowed 6 -foot fences in side & rear yards, but not in front yards. Now that
front yard setbacks have been reduced in most residential areas, many
homes are set back further than the "required" distance, allowing a 6 -foot
fence to be placed in front of the home. In order to make it clear that a 6 -
foot fence is not allowed in front of the house, we should eliminated
requi red."
51 S 21130.03 Add provision allowing seeding instead of sodding of certain portions of
single family lots to landscaping regulations (discussed in 1996; Council
direction to include in next update)
52 S 21130.03 Add reference to "manufactured home park" to Subd. 2 (c)(1) (landscaping
standards)
53 S 21130.03 Add reference to "manufactured home park" to Subd. 2 (landscaping
standards)
54 S 21130.03 Delete Subd. 1 (b) (2) regarding setbacks of fencing and screening from
above ground storage tanks. This provision may duplicate and conflict with
the Fire Code in some cases, and be unworkable in others. Other
requirements are adequate to protect fire access while still requiring
appropriate fencing and screening of tanks which are best reviewed on a
Type Section Description
case-by-case basis given the variety of types of tanks and materials stored.
55 S 21130.04 Add reference to "manufactured home park" (tree preservation standards)
56 S 21135.03 Add subsection to Subd. 1 to clarify that "For the purpose of determining
off-street parking and loading requirements, Commercial Districts include
the O -R, Office Residential District. Except where otherwise allowed by
this Chapter, the requirements for the P/I District shall be the same as for
Commercial Districts." Need to clarify application of parking requirements
to new districts that don't necessarily fit categories specified.
57 S 21135.07 Modify first sentence of section (n) to read "Each property other than single
family uses shall be allowed...."
58 T 21135.07 Modify last sentence of section (n) to read "In such cases, if a lot....."
59 S 21135.07 Parking matrix --change front yard setback in R districts from 30 to 20 feet
restore dimension from old ordinance)
60 S 21135.07 Parking setback table (21135.07 Subd. 5(e)) add setbacks for P/I district
same as for commercial districts)
61 S 21135.07 Parking table; add "Q ", parking or drive aisle setback to principal structure,
10 ft. (inadvertently dropped from old ordinance)
62 S 21135.07 Subd. 5(a), compact car parking spaces currently says a sign for each space
is required. This is excessive. Based on practices in other communities,
leaving the number of signs required to the discretion of the city as part of
the site plan review is more reasonable, to allow a case-by-case
determination.
63 S 21135.07 Subd. 5(0), Street Access; revise to state that except by CUP or as approved
as part of a subdivision "each lot shall have frontage and access onto an
abutting, improved and City accepted public street." This adds
requirement already present in subdivision regulations to the zoning
ordinance and eliminates confusion about what might otherwise appear to
be conflicting language.
64 T 21135.07 Subd. 5(p)—change "abutting" to "adjacent"
65 S 21135.08 Location of parking spaces—add language from old ordinance explaining
when driveway areas in front of garages count as required parking spaces
66 S 21135.08 Subd. 5 (a)—change parking setback for residential uses from 6 feet from
side or rear yard to 3 feet. Text currently conflicts with table which
specifies 3 ft. setbacks for both parking and driveway; 3 ft. setbacks are
what has been enforced in past.
67 T 21135.11 Change "Group Day Care Centers" to "Day Care Facility" (on table) to
match definitions
68 S 21135.11 Change parking ratio for Day Care Facilities from one space for each four
4) children to one space for each six (6) children; based on analysis done in
conjunction with recently proposed day care facilities.
69 T 21135.11 Fix error in citation of standards for drive-in banks (21135.07 should be
21120.09)
70 S 21135.11 Parking table: change the parking requirement for senior citizen housing
from 1 space per unit to 1.5 spaces per unit. In the transition to the new
Type Section Description
ordinance, the standards for guest parking and resident parking were added
together, except for senior citizen housing, which formerly required 1 space
plus .5 space per unit for guest parking. Changing the ration from 1 to 1.5
spaces per unit restores the guest parking requirement which was
erroneously deleted.
71 T 21135.11 Subd. 1 of table: change "is to" to "must"
72 T 21135.11 Subd. 2 of table, drive-in banks; change reference to "Subd.,5.s." to "Subd.
4"
73 S 21135.12 Reduction in number of loading space: this section says it is allowed by
IUP; Section 21135.14 says the zoning administrator can approve
reductions. Eliminate the conflict by removing reference to loading in this
section.
74 T 21145.04 Reword Subd. 2.(c): as follows: "All permitted home occupations shall be
conducted entirely within the principal dwelling
g gos, and may not be conducted in an attached garage or in an accessory
building.
75 S 21145.04 Change Subd.3(a) to use same language as Subd. 2(a) to avoid confusion
about employees in home occupations: (a) No person other than a ws
shall c^ndu,Qt th@ hota A ^,.,.uppAi those who reside on the premises shall
engage in business activities on the premises. The business may employ
others only if their work activities are performed off the premises."
76 S 21145.04 Home occupations standards—eliminate reference to any particular type of
signs and simply refer to Section 21155 (Signs) to determine what if any
signs are allowed in residential districts
77 S 21145.04 Subd. 3(b); delete "day care group nursery" from the list of examples of
interim home occupations (day care facilities dealt with separately and do
not require home occupation license)
78 S 21145.05 Change date by which existing interim home occupations are required to
obtain a license required by the new ordinance from July 1, 1997 to January
1, 1999. Staff has not yet had time to contact residents with existing known
home occupations to inform them of this requirement. No licenses have
been issued based on this requirement to date
79 T 21150 Change "Day Care Nursery Facilities" to "Day Care Facilities" in title of
section to be consistent with definitions and other sections of ordinance
80 T 21150.01 Change "day care nursery facilities" to "day care facilities"
81 T 21150.02 Change "Day care nursery facilities" to "Day care facilities"
82 T 21150.02 Change "shall be considered a permitted conditional use within" to "shall
be allowed by conditional use permit within"
83 T 21150.04 Subd. 4 (a)---change "abutting" to "adjacent"
84 T 21155.03 Correct typo at end of third line of Subd. 11—"fro" to "from"
85 T 21160.02 Second line, Subd. 3; delete "aforesaid" before "City Engineer"
86 S 21167 Add a new section to provide a procedure and special requirements for
temporary structures (other than model homes/ temporary real estate offices
and temporary classrooms.) This will provide way to legally permit
Type Section Description
construction trailers and temporary structures like that used at City Hall
during remodeling two years ago. There have been other similar instances
Life Time Fitness, Olympic Steel) that needed temporary structures but the
ordinance provided no procedure or standards.
87 T 21175 Antennas—underline title of section
88 T 21175.01 In line 2, change "predicable" to "predictable"
89 S 21175.09 Subd. 1: add "and the Public/Institutional District as provided by each
district" to indicate that public radio transmitting antennas are an allowed
conditional use in that district.
90 T 21185.05 Move "landfill operations" of (a) up behind Subd. 1 for title of section
91 S 21190.01 Subd. 1, bed and breakfast establishments; change "within any residential
district of the City " to "within the FRD and RSF-1 zoning districts"
92 S 21190.01 Subd. 2 (d); add " is at least one acre in size " to the minimum lot size
criteria for a bed and breakfast establishment
93 S 21190.01 Subd. 2 (1); add new criteria for bed and breakfast establishments, "The
property shall have access from a roadway classified by the Transportation
Element of the Comprehensive Plan as a major collector street or higher."
94 S 21190.02 Delete "as a principal or accessory use"—residential shelters require CUP
in P/I and all R districts
95 S 21190.03 Add new section to provide standards for development and operation of
manufactured home parks (mobile home parks). A recent state law change
mandates that mobile home parks must be allowed as a conditional use in
any zoning district that permits a two-family structure or larger. The
ordinance currently has no standards; proposed standards are similar to
those currently in effect in Lakeville, MN.
96 S 21350.03 Modify permitted essential services to read: "Essential services not
including structures, except those requiring administrative permits or
conditional use permits pursuant to Section 21160 of this Chapter."
97 S 21350.03 Subd. 2—delete cellular tower and antennas as permitted use in FRD
district; renumber following sections as needed
98 S 21350.07 Add "Bed and breakfast in accordance with Section 21190.01 " as
conditional use in FRD district. Ordinance currently provides performance
standards but use is not listed as permitted in any district regulations.
99 S 21350.07 Add "Residential shelters in accordance with 21190.02" as a conditional
use in the FRD district. Ordinance currently provides performance standards
but use is not listed as permitted in any district regulations.
100 S 21350.07 Add to list of conditional uses in FRD "Essential services requiring a
conditional use permit pursuant to Section 21160 of this Chapter."
101 S 21350.07 Change conditional use "Governmental and public regulated utility
essential service) buildings" to "Essential service structures" to be
consistent with definition section of ordinance. (FRD district)
102 S 21350.07 Delete "country clubs" from list of recreational uses by CUP in the FRD
district. This term is not defined; golf course and other uses are included
and are what was intended.
Type Section Description
103 S 21350.07 Delete "Dog kennels as a secondary use" as a conditional use in FRD
district (move to interim use)
104 S 21350.07 Subd. 1—change "Cellular telephone towers and antennas not located on a
public structure..." to "Antennas not located on a public structure or
existing tower..." to be consistent with revised antenna definitions
previously adopted.
105 T 21350.09 Subd. 2; revised to "Landfilling and land excavation/ grading operations,
including Mmining as regulated by Section 21185 of this Chapter." to
clarify that other landfilling requiring an IUP is allowed in the FRD district
106 S 21350.11 Add "Landfilling and land excavation/grading, except mining, as regulated
by Section 21185 of this Chapter" as use by administrative permit in FRD
district
107 S 21350.11 Add "Temporary structures as regulated by Section 21167 of this Chapter"
to the list of uses by administrative permit in the FRD District.
108 S 21350.11 Add Subd. 1-- "Antennas located upon a public structure or existing tower"
as use by administrative permit in FRD district
109 S 21350.11 Add to uses by administrative permit in FRD district: "Essential services
requiring a permit from the City Engineer as provided by Section 21160 of
this Chapter."
1101 T 21350.13 Table, FRD district. Modify as shown.
111 S 21355.03 Modify permitted essential services to read: "Essential services not
including structures, except those requiring administrative permits or
conditional use permits pursuant to Section 21160 of this Chapter."
112 S 21355.03 Subd. l--lelete cellular tower and antennas as permitted use in RSF-1
district (changed to administrative permit)
113 S 21355.07 Add "Bed and breakfast in accordance with Section 21190.01 " as
conditional use in RSF-1 district
114 S 21355.07 Add "Residential shelters in accordance with 21190.02" as a conditional
use in the RSF-1 district. Renumber sections as needed.
115 S 21355.07 Add to list of conditional uses in RSF-1 "Essential services requiring a
conditional use permit pursuant to Section 21160 of this Chapter."
116 T 21355.07 Change "Day care nursery facilities" to "Day care facilities"
117 S 21355.07 Change conditional use "Governmental and public regulated utility
essential service) buildings" to "Essential service structures " to be
consistent with definition section of ordinance. (RSF- 1)
118 S 21355.07 Delete "country clubs" from list of recreational uses by CUP in the RSF-1
district. This term is not defined; golf course and other uses are included
and are what was intended.
119 S 21355.07 Subd. 1—change "Cellular telephone towers and antennas not located on a
public structure..." to "Antennas not located on a public structure or
existing tower..." to be consistent with revised antenna definitions
previously adopted.
120 S 21355.09 Add "Temporary classroom structure for use by public or private school"
as interim use in RSF-1 district
Type Section Description
121 T 21355.09 Subd. 2; revised to "Landfilling and land excavation/ grading operations,
including Mmining as regulated by Section 21185 of this Chapter." to
clarify that other landfilling requiring an IUP is allowed in the RSF-1
district
122 S 21355.11 Add Subd. 1 --"Antennas located upon a public structure or existing tower
as regulated by Section 21175 of this Chapter" as use by administrative
permit in RSF-1 district; renumber following sections as needed
123 T 21355.11 Add "as regulated by Section 21165 of this Chapter" to Subd. on model
homes and real estate offices.
124 S 21355.11 Add "Landfilling and land excavation/grading, except mining, as regulated
by Section 21185 of this Chapter" as use by administrative permit in RSF-1
district. Renumber sections as needed.
125 S 21355.11 Add "Temporary structures as regulated by Section 21167 of this Chapter"
to the list of uses by administrative permit in the RSF-1 District.
126 S 21355.11 Add to uses by administrative permit in RSF-1 district: "Essential services
requiring a permit from the City Engineer as provided by Section 21160 of
this Chapter."
127S 21355.13 Decrease minimum lot size in RSF-1 zoning district from 110 to 100 feet
table.) This was discussed and recommended by the Planning Commission
in 1996; Council directive to revisit issue in 1997 amendments.
128 S 21355.13 RSF-1 District—change side yard setback from 15 feet to 10 feet to reflect
reduction in lot width, historical practice for approving subdivisions (SUP)
with 10 ft. or smaller setbacks in large percentage of RSF-1 areas (table)
129 T 21355.13 Table, RSF-1 district. Modify as shown.
130 S 21360.07 Add "Recreational fields (outdoor)..." and " recreational structures and
buildings (private)..." to the RSF-2 district as conditional uses. Renumber
section as needed.
131 S 21360.07 Add "Residential shelters in accordance with 21190.02" as a conditional
use in the RSF-2 district. Renumber sections as needed.
1 32 S 21360.07 Add retail commercial activities and personal services in allowed non-
residential facilities as conditional use in RSF-2 district, with same
requirements as in RSF-1 district.
133 S 21360.07 Add to list of conditional uses in RSF-2 "Essential services requiring a
conditional use permit pursuant to Section 21160 of this Chapter."
134 T 21360.07 Change "Day care nursery facilities" to "day care facilities"
135 S 21360.07 Change conditional use "Governmental and public regulated utility
essential service) buildings" to "Essential service structures " to be
consistent with definition section of ordinance.(RSF-2)
136 S 21360.07 Subd. 1—change "Cellular telephone towers and antennas not located on a
public structure..." to "Antennas not located on a public structure or
existing tower..." to be consistent with revised antenna definitions
previously adopted.
137 T 21360.09 Add "Landfilling and land excavation/ grading operations, except mining,
as regulated by Section 21185 of this Chapter" as use allowed by IUP in the
Type Section Description
RSF-2 district
138 T 21360.13 Table, RSF-2 district. Modify as shown.
139 T 21365.09 Add "All interim uses subject to the same stipulations as allowed in a RSF-
2 District" to the RSF-3 District regulations
140 T 21365.13 Table, RSF-3 district. Modify as shown.
141 S 21370.07 Add manufactured home parks (mobile home parks) to list of conditional
uses in the RSF-4 district, thereby also making them conditional uses in the
RMF districts as required by 1997 amendment to Minnesota statutes.
142 T 21370.09 Add "All interim uses subject to the same stipulations as allowed in a RSF-
3 District" to the RSF-4 District regulations
143 T 21370.13 Table, RSF-4 district. Modify as shown.
144 T 21375.03 Subd. 1—revise "townhomes and manor home dwellings" to "townhouses
and manor homes."
145 S 21375.07 Add "Residential facility serving more than sixteen (16) persons" as a
conditional use in the RMF -1 district
146 T 21375.09 Add "All interim uses subject to the same stipulations as allowed in a RSF-
4 District" to the RMF -1 District regulations
147 T 21375.13 Table, RMF -1 district. Modify as shown.
148 T 21380.07 Delete "Day care nursery facilities" from list of conditional uses in RMF -2
District; redundant
149 T 21380.09 Add "All interim uses subject to the same stipulations as allowed in a RMF -
1 District" to the RMF -2 District regulations
150 T 21380.13 Table, RMF -2 district. Modify as shown.
151 T 21385.09 Add "All interim uses subject to the same stipulations as allowed in a RMF -
2 District" to the RMF -3 District regulations
152 T 21385.13 Table, RMF -3 district. Modify as shown.
153 T 21390.07 Delete "allowable, actual" from Subd. 2. (a)
154 T 21390.11 Table, RMF -4 district. Modify as shown.
155 S 21455-5 Christmas tree sales—modify administrative permitting requirements for
temporary outdoor sales to exclude Christmas tree sales; add a separate
section allowing administrative permit for up to 45 days for such sales in
addition to the other temporary sales and promotional activities allowed on
a site. Per City Council direction (7/9/97)
156 S 21450.03 Add "Essential services not including structures, except those requiring
administrative permits or conditional use permits pursuant to Section 21160
of this Chapter." as permitted use in O -R district
157 S 21450.03 Add "Residential facilities such as nursing homes, assisted living and
similar group housing, but not including hospitals, sanitariums or similar
institutions" to permitted uses in the O -R, Office/Residential District
158 T 21450.03 Eliminate parenthesis around "not including drive -up tellers"
159 S 21450.03 Subd. 3. Change "Elderly (senior citizen) housing" to "Dwelling, elderly
senior citizen)" to be consistent with revised definition
160 S 21450.03 Subd. 3—delete cellular tower and antennas as permitted use in O -R
district; renumber following sections as needed
10
Type Section Description
S 21450.07 Add "Banks with Drive -Up Tellers" to list of Conditional Uses in the "O-
R" District (was allowed in old B-1 district); renumber subsections
I161
accordingly
S 21450.07 Add as CUP in O -R district to permit buildings exceeding the height limit
same language as in RMF -4)
163 S 21450.07 Add to list of conditional uses in O -R "Essential service structures....... "
1641 S 21450.07 Add to list of conditional uses in O -R "Essential services requiring a
conditional use permit pursuant to Section 21160 of this Chapter."
165 T 21450.07 Change "Day care nursery facilities" to "Day care facilities"
166 T 21450.07 Change order of Subd. 4 & Subd. 5 to restore alphabetical order of
Conditional Uses in O -R District
167 S 21450.07 Expand Subd. re: residential uses by CUP in O -R district to read: "Two
family dwellings, townhouses, manor homes and apartment dwellings,
including all usual and customary accessory uses."
168 S 21450.07 Subd. 1—change "Cellular telephone towers and antennas not located on a
public structure..." to "Antennas not located on a public structure or
existing tower..." to be consistent with revised antenna definitions
previously adopted.
169 T 21450.09 Add "Landfilling and land excavation/ grading operations, except mining,
as regulated by Section 21185 of this Chapter" as use allowed by IUP in the
O -R district
170 T 21450.11 Add "as regulated by Section 21165 " Real estate offices, temporary" (uses
by administrative permit, OR district)
171 T 21450.11 Add "as regulated by Section 21165 " to "Model homes, temporary" (uses
by administrative permit, OR district)
172 S 21450.11 Add "Landfilling and land excavation/grading, except mining, as regulated
by Section 21185 of this Chapter" as use by administrative permit in O -R
district. Renumber sections as needed.
173 S 21450.11 Add "Temporary mobile towers for personal wireless service antennas" as
administrative permit in O -R district
174 S 21450.11 Add "Temporary structures as regulated by Section 21167 of this Chapter"
to the list of uses by administrative permit in the O -R District.
175 S 21450.11 Add Subd. 1—"Antennas located upon an existing structure or tower as
regulated by Section 21175 of this Chapter" as use by administrative permit
in O -R district
1761 S 21450.11 Add to uses by administrative permit in O -R district: "Essential services
requiring a permit from the City Engineer as provided by Section 21160 of
this Chapter."
177 T 21450.13 Table, O -R district. Modify as shown, including addition of side yard
setback for detached accessory uses (6 ft.)
178 S 21455.03 Delete Governmental and public regulated utility buildings as permitted use
in C-1 (changed to conditional use)
179 S 21455.03 Modify permitted essential services to read: "Essential services not
including structures, except those requiring administrative permits or
10
11
Type Section Description
conditional use permits pursuant to Section 21160 of this Chapter." (C-1
district)
1'0S 21455.07 Add "Essential service structures as defined by Section 21005.... ..as
IIIconditional use in C-1 district
181 S 21455.07 Add to list of conditional uses in C-1 "Essential services requiring a
conditional use permit pursuant to Section 21160 of this Chapter."
182 S 21455.07 Change "Day care nursery facilities" to "Day care facilities"
183 S 21455.07 Subd. 1—change "Cellular telephone towers and antennas not located on a
public structure..." to "Antennas not located on an existing structure or
tower..." to be consistent with revised antenna definitions previously
adopted.
184 T 21455.09 Add "Landfilling and land excavation/ grading operations, not including
mining, as regulated by Section 21185 of this Chapter" as use allowed by
IUP in the C-1 district
185 S 21455.11 Add "Landfilling and land excavation/grading, except mining, as regulated
by Section 21185 of this Chapter" as use by administrative permit in C-1
district. Renumber sections as needed.
186 S 21455.11 Add "Temporary mobile towers for personal wireless service antennas as
regulated by Section 21175 of this Chapter" as administrative permit in C-1
district; renumber following sections as needed
187 S 21455..11 Add "Temporary structures as regulated by Section 21167 of this Chapter"
to the list of uses by administrative permit in the C-1 District.
188 S 21455.11 Add to uses by administrative permit in C-1 district: "Essential services
requiring a permit from the City Engineer as provided by Section 21160 of
this Chapter."
189 T 21455.11 Change references in subdivision on Temporary Outdoor Promotional
events in Sec. (c)(3) and Sec. (c)(4) from "this Chapter" to "Section
21155"
190 S 21455.11 Subd. 1—change "Cellular telephone towers and antennas not located on a
public structure..." to "Antennas not located on a public structure or tower
as regulated by Section 21175 of this Chapter..." to be consistent with
revised antenna definitions previously adopted.
191 T 21455.13 Edit table for C-1 area requirements as indicated
192 S 21460.03 Add "not including motorized vehicles or boats " to "Sporting goods and
recreational equipment sales" (C-2)
193 T 21460.03 Delete Subd. 9, commercial and professional offices from list of permitted
uses in C-2; listed as permitted use in C-1 so is carried over and does not
need to be listed here
194 S 21460.03 Revise "including drive up tellers" to "with or without drive up tellers" (C-
2) to clarify that drive up tellers are not rewired
195 S 21460.03 Subd 10—change "coffee shop" to "coffee house"
196 T 21460.13 Edit table for C-2 area requirements as indicated
197 S 21465.03 Add "Essential services not including structures, except those requiring
administrative permits or conditional use permits pursuant to Section 21160
11
12
Type Section Description
of this Chapter." as permitted use in C-3 district
198 S 21465.03 Change "Prepared food: delivery and/or take-out only" to "Restaurant,
delivery or take out" to be consistent with definitions section of ordinance
199 T 21465.03 Change "Recreational indoor, commercial (Le.,... " to "Commercial
recreation indoor, (e.g....."
200 S 21465.03 Delete "cafes" (not defined—included in restaurant definition)
201 S 21465.03 Revise "including drive up tellers" to "with or without drive up tellers" (C-
3)
202 T 21465.07 Change "and" in Subd. 5 to "and/or"
203 T 21465.07 Delete "allowable, actual " from Subd. 3. (a)
204 T 21465.11 Add "compliance with Section 21105.11 " (performance standards) as
condition for outside storage in C-3 district
205 T 21465.11 Change "Open and outside storage" to "Outside storage" to match
definitions
206 T 21465.13 Edit table for C-3 area requirements as indicated
207 T 21470.09 Add "All interim uses as allowed in a C-3 District" to the C-4 District
regulations
208 T 21470.13 Edit table for C-4 area requirements as indicated
209 S 21475.05 Add "Offices, commercial and professional " to list of permitted uses in the
CC -P (City Center -Public) zoning district
210 S 21475.05 Change "Book, office supply or stationary stores... " to "Book, office
supplies and equipment or stationary stores..." (CC -RE)
211 T 21475.05 Change "Day care nurseries" to "Day care facilities"
212 T 21475.05 Change "Recreation indoor/commercial" to Commercial recreation,
indoor" to match definitions; renumber sections as needed (CC -OT)
213 S 21475.05 Change "Recreational indoor, commercial ( i.e....." to "Commercial
recreation, indoor (e.g....." to match definitions (CC districts)
214 S 21475.05 Delete "Cellular telephone towers..... " from permitted uses in CC -P district
should be administrative permit)
215 S 21475.05 Delete Governmental and public regulated utility buildings as permitted use
in CC -R (changed to conditional use)
216 S 21475.05 Modify permitted essential services to read: "Essential services not
including structures, except those requiring administrative permits or
conditional use permits pursuant to Section 21160 of this Chapter." (CC -P
district)
217 S 21475.05 Modify permitted essential services to read: "Essential services not
including structures, except those requiring administrative permits or
conditional use permits pursuant to Section 21160 of this Chapter." (CC -R
district)
218 S 21475.05 Modify permitted essential services to read: "Essential services not
including structures, except those requiring administrative permits or
conditional use permits pursuant to Section 21160 of this Chapter." (CC -RE
district)
219 S 21475.05 Modify permitted essential services to read: "Essential services not
12
13
Type Section Description
including structures, except those requiring administrative permits or
conditional use permits pursuant to Section 21160 of this Chapter." (C -OT
district)
220 S 21475.05 Revise "including drive up tellers" to "with or without drive up tellers"
CC -R)
221 T 21475.05 Revise "including drive up tellers " to "with or without drive up tellers "
CC -OT)
222 S 21475.05 Subd 2—change "coffee shop" to "coffee house" to be consistent with the
definition
223 S 21475.05 Subd 3—change "coffee shop" to "coffee house"
224 S 21475.09 Add essential services requiring CUP and essential service structures as
conditional use in all CC districts
225 T 21475.09 Change "Day care nursery facilities" to "Day care facilities"
226 S 21475.09 Change "Religious worship facilities" to "Religious institutions"; most
churches have additional facilities in addition to those specifically for
worship" (classrooms etc.) and term "religious institutions" is more
inclusive of uses typically associated with churches
227 S 21475.09 Subd. 1(b) --change "Cellular telephone towers and antennas not located on
a public structure..." to "Antennas not located on an existing structure or
tower..." to be consistent with revised antenna definitions previously
adopted; renumber sections as needed.
228 T 21475.11 Add "Landfilling and land excavation/ grading operations, except mining,
as regulated by Section 21185 of this Chapter" as us a allowed by IUP in the
CC district
229 S 21475.13 Add "Antennas located upon an existing structure or tower" as use by
administrative permit in CC district; renumber following sections as needed
230 S 21475.13 Add "Landfilling and land excavation/grading, except mining, as regulated
by Section 21185 of this Chapter" as use by administrative permit in CC
district. Renumber sections as needed.
231 S 21475.13 Add "Temporary mobile towers for personal wireless service antennas" as
administrative permit in CC district; renumber following sections as needed
232 S 21475.13 Add "Temporary structures as regulated by Section 21167 of this Chapter"
to the list of uses by administrative permit in the CC District.
233 S 21475.13 Add to uses by administrative permit in all CC districts: "Essential services
requiring a permit from the City Engineer as provided by Section 21160 of
this Chapter."
234 S 21475.15 City Center districts (table): decrease the minimum structural lot coverage
from 20% to 15%. Experience with the ordinance has shown that 20% can
be high for many of the uses permitted in the CC district because of the
amount of parking required. 15% should ensure that the minimum intensity
of use desired by the City Center plan is maintained.
235 T 21475.15 Edit table for CC area requirements as indicated
21475.17 Subd. 3(a)- change "principal arterials" to "principal or intermediate6236T
arterials" (Highway 55 is intermediate arterial on Comprehensive
13
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
Section Description
Transportation Plan maps)
T 21475.17 Subd. 6 (a); change reference to "2147 5.07 (g)" to 21475.07 Subd. 1.(g)"
T 21475.17 Subd. 6(b)- change "principal arterials" to "principal or intermediate
arterials" (Highway 55 is intermediate arterial on Comprehensive
Transportation Plan maps)
T 21550.03 Change "Commercial printing establishments" to "Printing establishments,
commercial" (C -W)
S 21550.03 Change "Warehousing and warehouse showrooms" to "Warehousing and
wholesale showrooms" (C -W)
S 21550.03 Modify permitted essential services to read: "Essential services not
including structures, except those requiring administrative permits or
conditional use permits pursuant to Section 21160 of this Chapter." (CW
district)
S 21550.07 Add essential services requiring CUP and essential service structures as
conditional use in CW district
T 21550.07 Subd 2(c)- change "i.e." to "e.g."
S 21550.07 Subd. 1—change "Cellular telephone towers and antennas not located on a
public structure..." to "Antennas not located on an existing structure or
tower..." to be consistent with revised antenna definitions previously
adopted.
T 21550.09 Add "All interim uses as allowed in a C-4 District" to the C -W District
regulations
T 21550.13 Edit table for C-4 area requirements as indicated
S 21555.03 Delete "Cellular telephone towers.... " As permitted use in B -C district
requires administrative permit)
S 21555.03 Modify permitted essential services to read: "Essential services not
including structures, except those requiring administrative permits or
conditional use permits pursuant to Section 21160 of this Chapter." (BC
district)
T 21555.03 Revise "including drive up tellers" to "with or without drive up tellers"
BC)
S 21555.07 Add "Extended stay hotels" to list of conditional uses in the B -C district
21555.07 Add essential services requiring CUP and essential service structures asrs— conditional use in BC district
21555.07 Change "coffee shop" to "coffee house" to be consistent with definitions
T 21555.07 Change "Day care nurseries" to "Day care facilities"
S 21555.07 Conditional uses in B -C, manufacturing, compounding, assembly, etc. as
accessory; add condition "(c) The area devoted to the accessory uses shall
not exceed twenty five (25) percent of gross building floor area.
T 21555.07 Delete "allowable, actual" from Subd. 1. (a) (new Subd. 2.(a.))
S 21555.07 Subd. 2—change "Cellular telephone towers and antennas not located on a
public structure..." to "Antennas not located on an existing structure or
tower..." to be consistent with revised antenna definitions previously
adopted; renumber sections as needed.
14
257
Type
S
Section
21555.07
Description
Subd. 4; change "indoor storage of products and materials" to
warehousing of merchandise or commodities" to add greater precision to
intent to limit warehousing, not storage in general
258 T 21555.09 Add "Landfilling and land excavation/ grading operations, except mining,
as regulated by Section 21185 of this Chapter" as use allowed by IUP in the
B -C district
259 S 21555.11 Add "Antennas located upon an existing structure or tower" as use by
administrative permit in BC district; renumber following sections as needed
260 S 21555.11 Add "Landfilling and land excavation/grading, except mining, as regulated
by Section 21185 of this Chapter" as use by administrative permit in B -C
district. Renumber sections as needed.
261 S 21555.11 Add "Temporary mobile towers for personal wireless service antennas as
regulated by Chapter 21175 of this Chapter" as administrative permit in BC
district; renumber following sections as needed
262 S 21555.11 Add "Temporary structures as regulated by Section 21167 of this Chapter"
to the list of uses by administrative permit in the B -C District.
263 S 21555.11 Add to uses by administrative permit in BC district: "Essential services
requiring a permit from the City Engineer as provided by Section 21160 of
this Chapter."
264 T 21555.13 Edit table for B -C area requirements as indicated '
265 S 21560.03 Modify permitted essential services to read: "Essential services and
structures, except those requiring administrative permits or conditional use
permits pursuant to Section 21160 of this Chapter." (I-1 district)
266 S 21560.03 Subd. 3—delete cellular tower and antennas as permitted use in I-1 district;
renumber following sections as needed
267 S 21560.07 Add essential services and structures requiring CUP pursuant to Section
21160 as conditional use in I-1 district
268 S 21560.07 Change "Day care nurseries" to "Day care facilities"
269 T 21560.07 Change "Open and outside storage.. " to "Outside storage " to match
definitions
270 T 21560.07 Change "Recreation indoor/commercial" to Commercial recreation,
indoor" to match definitions; renumber sections as needed (I-1)
271 T 21560.07 Delete "allowable, actual" from Subd. 2. (a)
272 T 21560.07 Fix indent of Subd.8(b)
273 T 21560.09 Add "All interim uses as allowed in a C -W District" to the I-1 District
regulations
274 T 21560.09 Add condition that "all requirements of Section 21105.11 are met" to
outside storage in I-1 district.
275 T 21560.09 Add condition that "all requirements of Section 21105.11 are met" to open
or outdoor service, sale and rental in I-1 district.
276 S 21560.11 Add "Antennas, including necessary equipment buildings and towers, as
regulated by Section 21175 of this Chapter" as use by administrative
permit, I-1 district.
277 S 21560.11 Add "Temporary mobile towers for personal wireless service antennas as
15
16
Type Section Description
regulated by Chapter 21175 of this Chapter" as administrative permit in I-1
district; renumber following sections as needed
278 S 21560.11 Add to uses by administrative permit in I-1 district: "Essential services
requiring a permit from the City Engineer as provided by Section 21160 of
this Chapter."
279 T 21560.11 Change "Open and outside storage" to "Outside storage" to match
definitions
280 T 21560.11 Subd. 1 (a} --change "principle" to "principal"
281 T 21560.13 Edit table for I-1 area requirements as indicated
282 T 21565.09 Add "All interim uses as allowed in a I-1 District" to the 1-2 District
regulations
283 S 21565.13 Edit table for I-2 area requirements as indicated, including increasing
maximum building height from 40 feet to 45 feet
284 T 21570.11 Add "All interim uses as allowed in a 1-2 District" to the I-3 District
regulations
285 S 21650.03 Add "fire stations" to list of public civic buildings permitted in P-1 district
286 S 21650.03 Change "Day care nurseries" to "Day care facilities"
287 S 21650.03 Modify permitted essential services to read: "Essential services and
structures, except those requiring administrative permits or conditional use
permits pursuant to Section 21160 of this Chapter." (P-1 district)
288 S 21650.03 Revise "Parks and recreational fields, and buildings" to read "Parks,
playgrounds, trails, athletic and recreational fields and related buildings"
permitted use, P-1 district)
289 S 21650.03 Subd. 1—delete cellular tower and antennas as permitted use in P -I district;
renumber following sections as needed
290 S 21650.05 Accessory uses in P -I District: add "Buildings and structures for a use
accessory to the principal use but such structure shall not exceed thirty (30)
percent of the gross floor space of the principal use." This provision
applies to all C & I districts; needed to allow accessory structures in P -I
district (for parks, schools, etc.)
291 S 21650.05 Delete "Parks, playgrounds or athletic fields" as accessory use in P -I (they
are permitted uses)
292 S 21650.07 Add "Residential shelters in accordance with 21190.02" as a conditional
use in the P-1 district. Renumber sections as needed.
293 S 21650.07 Add essential services requiring CUP and essential service structures as
conditional use in P -I district
294 T 21650.07 Delete "allowable, actual" from Subd. 2. (a) (new Subd. 3.(a.))
295 T 21650.07 Delete extra line space
296 S 21650.07 Subd. 1—change "Cellular telephone towers and antennas not located on a
public structure..." to "Antennas not located on a public structure or
existing tower..." to be consistent with revised antenna definitions
previously adopted. Renumber preceding subsections as needed.
297 T 21650.09 Add "Landfilling and land excavation/ grading operations, except mining,
as regulated by Section 21185 of this Chapter" as use allowed by IUP in the
16
17
Type Section Description
PI district
298 S 21650.09 Add "Temporary classroom structure for use by public or private school "
as interim use in P/I district
299 S 21650.11 Add Subd. 1 --"Antennas located upon a public structure or existing tower
as regulated by Section 21175 of this Chapter" as use by administrative
permit in P-1 district; renumber following sections as needed
300 S 21650.11 Add "Landfilling and land excavation/grading, except mining, as regulated
by Section 21185 of this Chapter" as use by administrative permit in PI
district. Renumber sections as needed.
301 S 21650.11 Add "Temporary mobile towers for personal wireless service antennas" as
a use by administrative permit in the P-1 district
302 S 21650.11 Add "Temporary structures as regulated by Section 21167 of this Chapter"
to the list of uses by administrative permit in the P-1 District.
303 T 21650.11 Change "open and outdoor storage" to "outside storage" to be consistent
with other sections of ordinance.
304 T 21650.11 Change reference to `B-3 " district to "C-3 " in Subd. 1
305 S 21650.13 Add a rear yard setback, abutting non-residential district: 15 ft (P -I district.)
Currently there is no setback listed.
306 T 21650.13 Revise table, height limit for principle building: change to "45 ft. " instead
of "least of 45 ft. or 4 stories to be consistent with how height limits are
stated for all other districts
307 T 21655.03 Subd. 1.(c.) change "the PUD shall contain provisions to assure" to
provisions shall be made to assure"
308 T 21655.04 Subd 1 (f) --change "imposed" to "impose"
309 S 21655.06 Clarify that "Final adoption of any required Comprehensive Plan
amendment and the formal establishment of the PUD Zoning district shall
take place within sixty (60) days following the City Council approval of the
general plan."
310 S 21655.07 Add that final PUD plan materials are to be submitted for review and
approval by the Zoning Administrator
311 S 21655.07 Delete requirement that final architectural working drawings of all
structures shall be submitted with final PUD plans. This is not practical for
phased projects and is more appropriate to be submitted prior to building
permit review, not the PUD approval
312 T 21655.08 Change "PUD" to "PUD General Plan"
313 T 21655.10 Clarify section on development contract to indicate it is to be entered into
prior to final plan approval, and that a site improvement performance
agreement may also be required, and removing the requirement that the
contract be recorded. Per advice of the City Attorney.
314 S 21655.10 PUD General Requirements; delete "information on a project's allowed
uses," from record-keeping requirements, by advice of the City Attorney.
Statement of the allowed uses in a PUD will be placed in the text of the
zoning ordinance.
315 S 21655.10 Subd. 3, last sentence: change "final stage of the PUD" to "approval of a
17
Type Section Description
final plan"
316 S 21655.10 Subd. 6: delete this section which implies that building permits can be
issued prior to approval of a final PUD plan. It is misleading and not
needed.
317 T 21670.05 Fix spacing problem by correcting tabs in wetland buffer and setback table
318 T 21670.05 Subd. 7 line 2 change "sectin" to "section"
319 S 21670.09 Encroachment in required setback and buffer areas. Change last sentence to
read "Buffer and wetland areas......"
cd\plan\conven\zo_edits\cleanup.doc
18
Agenda Number:
TO: Dwight Johnson, City Manager
7M
w
FROM: John Rask, Planner through Anne Hurlburt, Community Development
Director
SUBJECT: Overview and Background Information on Wireless Communication
Towers and Antennas
DATE: October 20, 1996 for the City Council Work Session of October 29,
1997
SUMMARY
On January 31, 1996, Congress passed the Telecommunication Reform Act of 1996 which opened
additional portions of the radio spectrum for wireless communication services. Prior to the
Telecommunication Act of 1996, two cellular providers operated in the Twin Cities metropolitan
area. Over the past two years, the Federal Communication Commission (FCC) sold five new
licenses in this area for the establishment of wireless services. It is anticipated that there will
eventually be a total of nine licenses. However, the actual number of companies providing
services is likely to be smaller than nine due to the ability of existing cellular and PCS licensees to
obtain more than one license in an area, and the expected consolidation of providers within the
wireless communications industry.
To deregulate the communication industry and allow for the rapid deployment of cellular systems,
the Telecommunication Act of 1996 placed limitations on local units of government ability to
regulate wireless towers and antennas. These limitations largely impact the City's zoning controls
for wireless communication facilities.
The purpose of this report is to summarize the City's effort to regulate and manage the
proliferation of antenna sites and towers that has resulted from these changes. In addition, this
report will discuss recent developments in the telecommunication industry and the impacts that
they may have on the City.
Wireless Communication Facilities
October 20, 1997
Page 2
BACKGROUND
In March 1995, the Federal Communication Commission (FCC) began to auction radio spectrum
to new license holders. The country was originally divided into 51 major trading areas with two
Personal Communication Services (PCS) licenses awarded in each. For this area, those licenses
were purchased by Sprint Spectrum and American Portable Telecomm, APT (also known as Aerial
Communications). In May of 1996, the FCC sold a license to OneComm for an Enhanced
Specialized Mobile Radio (ESMR) system. The FCC sold two additional PCS licenses to US
West and AT&T in January of 1997. Airtouch (formally US West New Vector Group) and AT&T
Wireless (formally Cellular One) are two licensed cellular providers who have been in operation
for over ten years in the Twin Cities. At present, there are a total of seven licensed providers in
the metro area.
AT&T currently has licenses for their existing cellular system as well as a PCS license. At this
time, AT&T has no plans to utilize their PCS license. Therefore, of the seven licenses currently
available in this area, only six have plans to construct wireless phone networks. With the
anticipated sale of two additional licenses, it is possible that there could be other wireless
providers in the future.
Federal Telecommunications Act
On January 31, 1996, Congress passed the Telecommunication Reform Act of 1996 which opened
additional portions of the radio spectrum for PCS licenses. The cellular industry lobbied hard for
federal preemption over local land use regulations. The Act originally included language that
prohibited cities from regulating telecommunication facilities, but that language was removed
shortly before passage. However, the Act does contain language which limits the extent to which
local governments can regulate telecommunication towers. Section 704 (Facilities Siting; Radio
Frequency Emission Standards) prevents local zoning authorities from arbitrarily banning
telecommunication towers. The Act reads as follows, "Except as provided (herein), nothing in this
act shall limit or affect the authority of a State or local government or instrumentality thereof over
decisions regarding the placement, construction, and modification of personal wireless service
facilities." However, Section 704 of the Act places three limitations on local zoning controls:
1. Cities may not, "unreasonably discriminate among providers of functionally equivalent
services";
2. Cities may not, "prohibit or have the effect of prohibiting the provision of personal
wireless services"; and
3. Cities may not regulate personal wireless services, "on the basis of the environmental
effects of radio frequency emission to the extent that such facilities comply with the
FCC's) regulations concerning such emissions."
Wireless Communication Facilities
October 20, 1997
Page 3
Wireless Technology
Personal Communication Systems (PCS) is the new wave of wireless phone services currently
being developed throughout the world. PCS technology is sometimes referred to as "follow -me -
calling" where calls are routed to a person rather than a specific phone number, similar to a
personal pager. PCS will utilize digital interfacing equipment that will allow for the transmission
of computer data, fax, video, etc. using wireless technology. Traditional "cellular" providers are in
the process of converting from an analog to a digital technology, which will also allow for
expanded use and a higher degree of clarity.
It should be emphasized that although the technologies discussed in this report currently function
in slightly different manners, they will offer similar services in the future. In fact, all of these
technologies consist of a system composed of interconnecting cell sites. With this common cell
site base, it is predicted that as these technologies evolve, they will become more and more
similar. For example, a transition to smaller cell sites and the use of more antennas per square
mile are expected.
Both cellular and PCS technologies rely on the use of antennas and low powered radio waves for
transmission. The use of radio waves for transmission is referred to as a "line of sight" signal,
which means that there must be a clear pathway through the air between the transmitting and
receiving antennas. The density of these antennas depends on topographic conditions and the
number of users. An individual cell site is not unlimited in the number of calls that it can process,
and additional sites are often needed to increase capacity in areas with heavy usage. Calls are
dropped" or denied access when a cell site reaches capacity.
Wireless communications are transmitted through the air via radio waves of various frequencies.
Cellular and ESMR operate at frequencies between 800 and 900 MHz, and PCS operates at both
900 MHz as well as between 1,850 and 2,200 MHz.
The technologies described in this report function similarly in that they are composed of
interconnecting "cell sites," or geographical areas that blanket a region. In this sense, all the
technologies discussed in this report are "cellular technologies," although mobile cellular phones
are frequently referred to as the "cellular" technology because they pioneered the concept. As
more people begin to demand wireless communications services, wireless systems will require
additional capacity to handle calls. This additional calling capacity can be acquired in one of
various ways: providers can increase the number of their cell sites, use digital versus analog
technology, or a combination of these methods. As the number of cell sites increase, the area of
each site is reduced in order to avoid overlapping coverage. Overlapping coverage can cause
interference and impact the quality of the transmission. To avoid overlapping coverage, the
antennas are either redirected or placed at a lower height. Therefore, as the density of cell sites
increases, antennas will be placed at lower elevations to avoid overlapping coverage.
Wireless Communication Facilities
October 20, 1997
Page 4
Each cell site within the system contains both transmitting and receiving antennas. Calls placed
from a wireless phone or device are sent to a central computer switching system. The central
switch completes the call by connecting it either to a conventional telephone through a land-based
line, or to another mobile phone through the nearest antenna. As the mobile caller enters one cell
and exits another, the call is transferred between the cells.
Zoning Ordinance Standards
The City's zoning ordinance regulates the placement of wireless communication towers and
antennas. Section 21175 (Antennas) of the zoning ordinance states, "The purpose of this Chapter
is to establish predictable and balanced regulations for the siting and screening of wireless
communications equipment in order to accommodate the growth of wireless communication
systems within the City of Plymouth while protecting the public against any adverse impacts on
the City's aesthetic resources and the public welfare. The provisions of the Chapter are intended
to maximize the use of existing towers, structures, and buildings to accommodate new wireless
telecommunication antennas in order to minimize the number of towers needed to serve the
community."
The City's zoning ordinance provides incentives to locate antennas in industrial zoning districts
and on existing structures (water towers and tall buildings). The primary incentive is to make
antennas a permitted use on existing structures and towers a permitted use in industrial zoning
districts, which makes the permitting process shorter and easier for the applicant. (Note: Towers
located in industrial zoning districts, but adjacent to a residential neighborhood, require Planning
Commission review and City Council approval.)
When constructing a new tower, the applicant must demonstrate why the antennas cannot be
accommodated on an existing tower, building, or structure. And, the applicant is required to first
look for sites in an industrial zoning district before looking for available sites in a commercial or
residential zoning district. Where free standing towers are necessary, the zoning ordinance
requires towers to be designed for co -location so more than one wireless provider can potentially
share the same tower. The zoning ordinance also requires that free-standing towers be of a
monopole design (as opposed to a lattice tower), contain no artificial lighting or signage, and be
painted a non -contrasting color or galvanized to make the tower less visually obtrusive.
A free-standing tower may be allowed in a residential zoning district subject to the approval of a
conditional use permit if the applicant can demonstrate that an alternative site is not available in a
less restrictive zoning district, and that no existing structures are available. However, the zoning
ordinance requires additional performance standards regarding height, setbacks, landscaping, and
screening in these instances.
The Telecommunications Act of 1996 states that, "cities may not prohibit or have the effect of
prohibiting the provision of personal wireless services". If a cellular provider can demonstrate that
a tower is absolutely needed in a residential area and the tower meets all ordinance requirements,
Wireless Communication Facilities
October 20, 1997
Page 5
the City would have to issue a conditional use permit. Failure to issue the permit would put the
City at risk of violating the Telecommunications Act, leading to potential litigation by the cellular
provider. Likewise, prohibiting towers altogether in residential zoning districts could also be
considered a violation of the Telecommunication Act if a wireless communication provider could
demonstrate that a tower is needed for additional capacity or to provide coverage.
Co -location requirements offer a good opportunity to minimize the number of free-standing towers
needed to serve the community. Given the fact that the City of Plymouth has relatively few
buildings of adequate height to support antennas, towers will be needed in the future for both
coverage and capacity. Requiring new towers to be designed to accept more than one set of
antennas will significantly help to reduce the number of towers. However, even co -location has its
disadvantages. Towers designed for co -location will in most cases be higher and larger in
diameter than a tower designed for only one set of antennas. This is why the zoning ordinance
requires towers to be designed to accept the antennas of only one additional user. Towers
designed for three or four users would be larger, higher, and more visually obtrusive. Other
disadvantages to co -location include technical factors such as: a tower or building's structural
capacity, radio frequency interference, mechanical or electrical incompatibilities, and
technological differences among providers.
Approved Tower and Antenna Sites
There are eleven approved antenna sites in the City of Plymouth. Of these eleven sites, only four
consist of free-standing towers. One of the existing towers is a cellular tower approved before the
adoption of the City's antenna regulations. The remaining seven sites are located on existing
structures such as buildings or water towers (see attached map for locations).
Staff is working closely with providers in an attempt to reduce the number of free-standing towers
needed in the City. In one instance, staff was able to convince US West and APT to file a joint
application to co -locate on a single tower. The City approved this tower which will be erected on
the Endurance Transmission property located near the intersection of 36`h Avenue North and
Highway 169. In another case, staff worked with US West to co -locate on an existing AT&T
tower. (This application has not been submitted, but all parties have agreed to the arrangement.)
Wireless communication providers are all in direct competition with each other, and getting them
to work together is not always easy. However, the zoning ordinance mandates that these
companies share towers when possible. To insure that this happens, the ordinance requires that the
lease agreement for a new tower contain a provision to allow for the shared use of the tower,
subject to reasonable terms and conditions.
The City is also reducing the need for additional towers by leasing space on the City's water
towers. Sprint Spectrum placed wireless antennas on three of the City's water towers. It is likely
that as wireless providers need to add capacity that a greater demand will be generated for the use
of city water towers. Each water tower must be examined individually to determine structural
loading requirements and to insure that the antennas will not negatively impact the water tower.
Wireless Communication Facilities
October 20, 1997
Page 6
However, it is likely that multiple sets of wireless antennas could be placed on a single water
tower.
Staff is also participating in discussions with NSP and wireless providers regarding the use of NSP
towers. NSP has formal agreements with several providers for the use of their towers. To date, no
wireless provider has erected antennas on an NSP tower, but several are working through the
technical issues and other problems associated with the use of these towers. In addition, each NSP
tower along with the proposed wireless equipment must be reviewed individually to determine
structural loading requirements. Not all NSP towers will be able to accept wireless
communication antennas because of structural limitations.
Trends in Wireless Communication Services
Many of the licensed providers have plans to construct their cellular system in three phases. The
first phase is to establish coverage in all areas of the City. Once this is completed, providers will
look for in -fill sites in areas with heavy phone usage, such as major transportation corridors or
heavily populated areas. It is unclear as to how many cell sites each provider will need; however,
some urbanized areas in the United States already have cell sites at a density of one site every 1/4
of a mile. The City of Bloomington, Minnesota currently has thirty-four approved antenna sites,
of which fourteen are towers. (see attached map). By way of comparison, the City of Plymouth
has eleven sites, of which four are towers.
The third stage that some providers are planning for is the eventual replacement of the land -line
phone system with wireless services. It is the goal of the cellular industry to replace (not
supplement) the land -line system. One licensed provider in the City would like to start the
residential phase of their system by the end of 1998. Service to neighborhoods will be provided
using microcells. A microcell is a small transceiver unit that weighs as little as 23 -pounds and can
attach to light standards, the roof -top of homes, or co -locate on existing towers (see attachment).
Most of the licensed wireless providers are nearing completion of the first stage of their wireless
systems which is to establish coverage in all areas of the City. At least one provider still needs to
obtain approvals for two sites in the City to establish basic coverage. Staff has met with this
provider concerning these two sites and at this time it looks like both of these sites will be on
existing structures.
Other providers with established systems and customer bases are adding additional sites to
increase capacity. The most recent application that the City Council reviewed for a cellular tower
was based on a need to provide additional capacity.
The City's zoning ordinance is designed to address the issues associated with the first two phases
of a cellular system. The residential phase of cellular systems will require modifications to the
zoning ordinance to adequately address the changing technology and the need to establish sites in
residential neighborhoods. While some providers have indicated a desire to move into the
Wireless Communication Facilities
October 20, 1997
Page 7
residential phase in the near future, it remains to be seen how and at what rate consumers will
switch to wireless phone services in their homes or offices.
CONCLUSION
The establishment of wireless communication facilities will continue to expand in the near future.
Increase in cellular phone use, recent technological advancements, and the federal government's
desire to sell additional licenses create a demand for new antenna sites throughout the City.
Provisions contained in the Telecommunications Act of 1996 limit local governments' ability to
regulate towers and antennas. The City's ordinance provides standards for setbacks, tower design,
co -location, operational standards, landscaping, and other requirements intended to protect the
public health, safety, and aesthetics of the City. Staff will need to monitor trends in wireless
phone services and technological advancements to make sure that the City's zoning ordinance
adequately addresses future changes in technology.
ATTACHMENTS
1. Zoning Ordinance regulating towers and antennas.
2. Article titled, Wireless World, American Planning Association, December 1996.
3. Steve Alexander, "US West, AT&T Wireless buy licenses to offer PCS service", Star
Tribune, Minneapolis Addition, January 18, 1997, p. D1 -D3.
4. SEH, "Taking Part in PCS", SEH Update, Winter 1996
5. Steve Alexander, "US West to offer wireless phone that receives calls made to home or
office", Star Tribune, Minneapolis Addition, September 24, 1997
6. Vince Vittore, "PCS Still Struggling To Gain a Strong Foothold", Cable World, June 10, 1996
7. Bellsouth Cellular Corp., "Wireless Technology Explained"
8. Wireless Lawyer, "Personal Wireless Services and Facilities"
9. Kreines & Kreines, Inc., "Report from Oak Brook: The Residential Phase Has Arrived & It's
Cellular", Planwireless, August 1997
10. Photographs of antennas mounted on power poles and structures
11. Map of Bloomington Minnesota showing approved antenna sites dated October 3, 1997
12. List of approved commercial wireless communication antenna and tower sites in the City of
Plymouth
13. Map of approved sites in Plymouth
Wireless
Telecommunications
technology—and local
government response—
is at a crossroads.
By William Covington
ompanies hoping to succeed
in the highly competitive
communications arena must
have good relations with lo-
cal governments. It's the lo-
cal governments, after all, that supply
the franchises and permits needed to
deliver cellular and paging services and
other communications products.
So far, those relations have been pretty
good. Local governments want the ben-
efits that new forms of communication
can bring, and wireless service providers
understand that cities and towns must
exercise some control over what comes
into the community. The challenge is to
keep things on an even keel at a time of
rapid growth in the telecommunications
industry.
A sign of that growth is the auctions
held on August 26 by the Federal Com-
munications Commission. On that date,
the FCC began the second in a series of
auctions that will allow more companies
to,offer wireless communication services.
How it works
The term wireless communications re-
fers to a family of communication de-
vices that can send and receive messages
instantly—by voice in the case of cellular
telephones or alphanumerically in the
case of pagers. Soon, too, computer users
will be able to send and receive data via
wireless modems.
One of the newer forms of wireless
voice communication is the personal com-
munications service. PCS is similar to a
cellular phone but operates at different
radio frequencies and requires twice as
many communications facilities. In pag-
ing, the lat-
est innovation is narrowband messaging.
This service allows customers to acknowl-
edge a page by pressing a button on their
pagers. Soon they will be able to receive
short text messages as well.
Wireless communications typically re-
quire three components: a device (tele-
phone, pager, or portable computer; a
cell site/radio link; and a switching of-
fice. Every major metropolitan area has
one or more switching offices, where
calls from cell sites are processed. The
calls are then sent out through the tele-
phone system. When a wireless customer
calls another wireless telephone, the
switching office locates the cell site clos-
est to the party being called and connects
that caller via that cell site. Over 90
percent of all wireless communications
still start or end on a traditional tele-
phone system (called "wireline" in the
business.
When a call is made, the device seeks
out a radio link, also known as a cell site.
Radio links capture the signal, process it
verifying that the caller is a legitimate
customer, and send it on. Most cell sites
include one or more antennas, a struc-
ture to support them, and a building to
house radio and computer equipment.
Cell sites can be located on the roofs of
A
buildings, on billboards, atop wooden
utility poles, and on metal poles. Lattice
towers,are considered a last resort.
On the ground
Several considerations determine where
cell sites are placed. The first is that the
site must be close enough to the caller to
receive the signal generated by a half -
watt portable phone. The second consid-
eration is that cell sites must be located
far enough apart to eliminate cross -talk.
The third is interference. Tall buildings
and large bodies of water, for instance,
can distort a signal, precluding high-quality
service.
Finally, according to the industry, good
service requires that there be at least one
cell site in every neighborhood, normally
within every six to eight square miles
depending upon terrain and number of
customers.
Wireless communications companies
can share cell sites. They cannot, how-
ever, share the radio equipment that sends
and receives calls and information. Should
two carriers share a site, normally 10 feet
of space must separate the antennas be-
longing to each company. As the number
of customers increases, so must the num-
ber of cell sites. However, the additional
sites typically are smaller and easier to
locate on rooftops or conceal in other
ways.
Going once
Back in 1981, the Federal Communica-
tions Commission published a report on
implications for economic development
of the then very new cellular telephone
technology. After a series of hearings,
the commission invited providers to ap-
ply for licenses to provide cellular ser-
vices in 306 metropolitan service areas
and 428 rural areas.
So many companies applied that the
FCC decided simply to assign local tele-
phone companies enough radio spectrum
B bloc spectrum) to offer cellular com-
aunications in their own areas. A lottery
was set up to allow non -telephone com-
panies to compete for the remaining A
bloc spectrum. By the end of 1984, nearly
every major metropolitan area in the U.S.
had been assigned to a carrier. In 1989,
similar lotteries were held for the rural
trum to allow at least two new service
providers in every market. The service to
be offered was referred to as PCS or
personal communications services. The
auctions were completed in March 1995
and raised over $7 billion.
Yet another auction was held earlier
this year, this time to encourage at least
one more nationwide provider. About
10 billion was raised by auctioning off
what is known as C bloc spectrum. Then,
on August 26, the D and E bloc auctions
were initiated. They are expected to be
completed by the end of this month.
No one is certain how the successful
bidders will make use of this additional
radio frequency. Auction winners with
licenses may simply enhance their cur-
rent systems by providing ancillary ser-
vices, or they may offer dramatic new
communications services. In any case, it
is likely that the D and E bloc offerings
will result in a need for more cellular
towers.
areas.
As a result of all this activity, localThecellularlotteriesexceededallex- governments have been approached byr,cctations. Original estimates predicted already operating providers who are seek - fewer than a million subscribers by 2000. ing to expand their coverage area or toButby1990, the cellular industry had supplement service where existing ca - attracted over 10 million customers. Im- pacity is exhausted. At a time when sub - pressed by this success, the FCC in 1994 scriber lists are growing by over 30 per - decided to auction off enough radio spec- cent a year, incumbent carriers in major
To make cell sites less
obtrustive—and more
politically acceptable—some
firms are choosing stealth
locations. Can you find the
device on this building? See
page 12 for the answer.
metropolitan areas may seek permission
to build 15 to 50 facilities a year.
The new PCS licensees and the new
paging providers are also seeking sites,
and so are the growing numbers of com-
panies offering data communications and
similar services. However messaging and
data delivery services typically can use
much smaller sites and often share exist-
ing facilities with cellular or PCS provid-
ers.
The winners of the C bloc auctions
companies like Next Wave and Wireless
PCS) are just now beginning to make an
appearance. Like the PCS license hold-
ers, they will need to build an entire
network, with the number of sites de-
pending on the type of technology used
and the degree to which they can "co -
locate" with other providers. Many wire-
less companies also use "stealthing" tech-
niques (hiding facilities on rooftops or
elsewhere) to effectively conceal sites.
Local governments can probably use their
experiences with PCSs, which typically
request permits for 50 to 100 facilities a
year, as a guide to determine how many
facilities a C bloc carrier might seek.
In a hurry
A wireless company typically spends be-
tween $250,000 and $700,000 to get a cell
site up and running. Those A and B bloc
providers that received their licenses in
the 1980s have actually built their sys-
tems three times: first to serve customers
with three -watt car phones, then to ac-
commodate half -watt portables, and fi-
nally to convert analog cellular systems
to more efficient digital technology.
Now come the successful PCS and C
bloc bidders, and the soon -to -be -deter-
mined winners of the D and E bloc spec-
trum. All these companies have a tre-
mendous monetary obligation to the federal
government and to banks. In addition,
stiff industry competition is forcing com-
panies to lower access charges and fees
for each minute of use—their two main
sources of revenue.
As a result, wireless service providers
will be in a hurry to get construction
permits, and they will resist schemes for
imposing taxes, auctioning off access to
public property, and other assessments.
10 Planning December 1996
Given that situation, my advice to lo-
cal governments is to get a handle on the
key elements of the Telecommunications
Act of 1996, which lays out the ground
rules for industry and local government
in the area of land -use law.
What is required
The law creates a presumption that needed
wireless facilities can be sited in a com-
munity. Flat refusals to grant permit ap-
plications are no longer allowed. The law
also requires that requests for permis-
sion to build must be acted on promptly.
It forbids regulations from favoring one
sort of wireless service provider over
another. And it prohibits local govern-
ments from regulating radio frequency
emissions. A federal standard has been
set in this area and demonstrated compli-
ance with that standard is all a locality
Wirele
in
Ls «1C
Bu ome communitie
multitieied review prcw
some of these piocedures
get one approach,,,,oin
trial zones another; m
review while iourits 50
permitted admimstrativ
The'tadvantage'. o a z
app ach is °flat ;each
with consistently and un
advantage 1s"'that' the J
wrth cell sites `one at a t
neVOlu
S of
ve$.:
iters ' -
and --
om=
for
ong
1 ii_
cih-
Yet
ins-
ovi-
ter' ,
a
residenh nes
COMM and nous-
onopoles et tire
feet, andless are
ely "y:
oning ordinance
cell °site isdealt
iformly The dis- 3 y .,;
urisdictlo ;deals =
As aesult,
ing for, and local r
ing, vast systems
can seek from the permit applicant.
Regular communication with the car-
riers serving a community is also essen-
tial. At least once a year every locality
should invite the telecommunications car-
riers serving the area to a regular meet-
ing. Use this time to review the contents
of permit applications. Place special em-
phasis on the type of information that is
expected from the applicants. Identify
the parts of the application that can be
left blank, which must be filled out, and
under what conditions an application will
be rejected as incomplete. Also, ask ser-
vice providers where they may want to
build facilities in the next year.
Increasingly telecommunications com-
panies are teaming up with local govern-
ments to sponsor regional wireless semi-
nars. These educational forums usually
last a full day and bring together local
on a s1te-by s}fe basis.
Some cities and counties—kn owing that
outtheyarerunning of good cell -!`it s—
review, applications in bulk.; San Diego,"`
for example,
s; .
requires annual submissions
of all cell sites from each carrier. Man
Ay 2 -
Some communitie§ FLase pU$c a id sncluing water tanks—to", 1Y
jurisdictions also eneoura a or rerequireg9
wireless carriers. Local o0erng mEnts using that approach Tuve control
over cell sites b:t they alsoope#hemselves to poter:tial Zawsuits. " co-location.b
Sari Francisco has a book of guidelines
for
up
F rr
the best guidelines don't provide the'cer` fact that some communities are leasingplanningcommissionerstousein
reviewing cell site applications. But even tainty of a good planJ lk` publicland—water tanks, parkland, rights
The situation is complicated by the, of way'=to wireless carriers. Leasingpublic
1992
1993
1994
1995
2000
Motal U.S. Digital Cellular Subscribers
D 5,000 10,000 15,000 20,000 25,000 30,000 35,000
A segnlent of a snap in a hypothetical city (lefts shows where
cell sites alight be placed if none of the 10 carriers will co -
locate. Above: The number of people using cellular devices is
expected to explode within the next few years.
11
government officials, community lead-
ers, industry representatives, and other
interested parties. The topics include wire-
less communications; the types of facili-
ties needed; the method used to select
possible sites; how the permitting pro-
cess works; and health issues and prop-
erty values. AT&T Wireless Services has
held such gatherings in Boston, New York,
Baltimore, Washington, D.C., and sev-
eral other jurisdictions.
Local governments should also review
their land -use legislation to be sure that it
coincides with the provisions of the tele-
communications act. Other elements that
jurisdictions should consider are: use by
right in industrial and commercial zones;
a hearing process for residential areas;
specific, as opposed to qualitative, re-
view standards; fixed time frames for
permit processing; and separation of the
ze
land solves two problems: Local go;; n app ations. A more stringent review h ot` uued permits for tower con- q 1?
meats ^can choose the best location`s r Wo be required for properties not iden- ,struc ro` ennsylvania, the state court
w>rele°s's facilities, and applicants c eta fifie e master plan. A two-step ap of flap Hied Bell Atlantic Mobile
in and outofthepermittingprocessqu r0 Alias the advantage of assuring Says "'` T'hat a 150 -foot cellular
flew companies have popped U to, 'ub put at an early stage. Because it ial soentervice that should
ket these public lands and tofrece eq es a map, itis' also the only ap a pe' a as fright.
carriers to easy citydancouniy site roa that ensures some degree of cer o. scar a bellwether of what's
The problem is that the wireless : staliea ers.'.It's clear that plan-
r ,.. _, , 4 t - often insist on an exclusive ari=ange i t en all the options, I would sa " a m is a factual record and
with the community, in effec tyle eless master plan is the ktoo re a
zoeesozl
access to public land—and exp sing hef ' hoice`At this writing, only a few`i a e rez" e''P
community to potential legal challen e$fd ounties are exploring the m er
Further,, private landowners may ob t lan proach, so there is no model o K;e s silent of ixeines & Kreines in
D the competition from a pubs bode ollo '`But carriers are bound to tire of° ;arnia The firm specializes in
p, alternativeapproach is' reit e' `h Choc approach::of siting one ce71Zvir
cell sites to be la d ovr d aeil' at: a time. I predict that they=l
orleasedby the jurisdiction. Ringwo dfoom eguest the certainty that comes7e*Jersey, is trying that; although it as wirclass master plan.
nlythreepubhclyownedsitestliatq e courts are also pointing the, 4
he_ suburban Passaic Countco .liave been four important7court s he people and compa-
has also offered to lease land # iii es n wireless planning so far "and 'Hie y for personal wireless fa-
y p g ,, a,., .
rivate"landowners seeking j, = cell a her ^e sure to be many more E her cal s i e acitsttion representatives,
nd then to sublease the site To, s ear;'. a federal court upheld_ ix 1a a ;rsi a builders, landowners,
th Be ware that some appli- garrier_fin moratorium imposed by tr sty'_ --y
A wireless master plan is anpther a diva, Washington Spnntspeo s' pr val ofll sites and then
fo go: The town of Windsor, Connecticut, had ed for a preliminarynlunc 1 n x e e oto s d- carrier or lan
is consideringthe re azationof sucha ve a the moratorium which edma !? er = prep esepph ' a e
lan, for the area between Hart rd and a it needed to >vo`it a to la q r Co panihcensed by the
Bradley International Airport Also,kthe tes. But another'fede&l cou • , t? t d,P so fireless facilitiesp s r. Mid-America Regional Council, which:.eTd a contention of BellSouth Mo ife e onal 'wireless services. 1?
encompasses eight counties and 114 mu = that `Gwinnett County, Georgia; '{had ,- are o unlicensed carriers.
City>
p
has begun
two states around Kansas not presented sufficient evidence to sup rs6 znr less facilities Described
gun two-phase process;tHat l port its denial of a permit.
h
communications Act of 1996
could lead to a regional wireless master Meanwhile; ' a group of resident s 1as* a orlie provision of personal
plan Franklin County, Texas, won a tempo a es services.
The master plan approach involves two ary injunction against construction of a y So wireless services Commer-
steps. The first is to approve. the areas ,multicarrier tower, which they argued ci obY se rvices,.unlicense'd wireless
where cell facilities could be located. The "would impair their quality ,of life` and se es, rid common 'carrier wireless
second step is to review individual site : diminish property values. Franklin County exc , rigaccess services.
12 Planning December 1996
4i
An example of co -location, showing
several different services that can be
accommodated at different heights on
one tower.
public hearing and the actual vote on
approval.
Getting together
Local legislation should also include pro-
visions for co-location—the sharing of
facilities. Everyone seems to want co -
location. Local governments like
the idea because it reduces site
proliferation, and industry likes
it because construction and op-
erating costs are reduced. There
are some drawbacks, however.
For one thing, co -location cre-
ates larger sites. The more carri-
ers sharing a facility, the bigger
and potentially more intrusive)
it will be. Also, permit review
time may increase dramatically,
and the extra height of the facil-
ity can push the application into
a more stringent review category.
Finally, established cellular car-
riers may have reasonable con-
cerns about revenue, operations,
and liability when a new carrier
is added to an exist-
ing site.
For local govern- h
ments seeking to
make co -location an
attractive option for
kwirelessproviders,
I have three sugges-
tions.
First, provide in -
i
centives to co-locat-
ing parties. Assure a;
the carriers that they
time needed to re-
view a co -location o
request and the rules
involved will not
greatly exceed those
for a single applicant.
Second, consider giv-
ing the co -locators
access to municipal
property, speeding up per- 11.1,,S
mit processing, perhaps even
5
lowering application fees.
HimThird, take advantage of
the fact that local govern- r
ment is the central clearing-
house for all permit applica-
tions. Use your regular annual meeting
with the cellular companies as an oppor-
tunity to register potential permit appli-
cants. Every time a permit is sought, the
registered parties could be informed and
invited to contact the applicant to discuss
sharing the facility.
A final suggestion: Look to the future.
Ask industry representatives to share their
expectations of what's ahead in the way
of services, carriers, and concerns.
William Covington is land -use and environ-
mental policy counsel to AT&T Wireless Ser-
vices in Kirkland, Washington. He was for.
merly director of right-of-way permitting for
King County, Washington.
es publishes a
s Qpdate: Con-
rs Book Ser
29.95 for'.
part `of an'
omrnunica-
s Planning
hlch.is free
ale `or_. ,$50
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year 'bythe
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PnH arhPrl- .
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Bina; Was}i
1tGergia, 'attorney
t laZO-822-8700: Rock
tiffan Gj indm¢n v. 360
to s Com, the case In
a is a ;99 3-860 3799.
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Net/Shr A2 A5 -60.0
Figures in thousands except for earnings
per share.
acquisition
holding firm
operate under the trade name
TCF Bank.
The acquisition, originally an-
iounced `in June, will help TCF
Terve areas that' are now only
nodestly tapped. Free checking,
iome equity loans, investment
services and expanded free ATM
access services are expected to be
craws for Bank of Chicago cus-
omers, officials said.
TCF Bank Illinois has 34 of-
fices and ;about $700 million in
Lssets in Illinois. In addition, TCF
lank also operates in Minnesota
ind Wisconsin and has Michigan
lnd Ohio .subsidiaries operating
Lnder the name Great Lakes
lankcorp.
fs-
Tree Retail Services division
reached an -agreement with
Leath Furniture LLC, to pro-
vide a private-label credit card
for Leath and Modernage fur-
niture stores.
Carg!U nc.,'Minnetonka, said
that its :subsidiary, Cargill de
Mexico, will up a new $30 -
million soybean processing
plant in Tula, Hidalgo, Mexico,
the week of Feb. 3, one month
ahead of.schedule.
MidAmerica Mutual Life.In-
suranoe Co., Roseville, and
World Insurance Co. of Oma-
ha, Neb., said they intend to
merge in second-quarter 1997.
The merged .company will be
called World1risurance and be
based in Omaha.
E.F. Johnson Co., Burnsville,
said that it has completed the
sale of its Data Telemetry busi-
ness unit to Dataradio Inc. of
Mervyn s 410 stores In 14 states cutting. But they are not about to
or sell all or some of its 65 de- sell [the rest of] Mervyn's or the
PCS from D1
U S West, -,4T &T Wireless
secure licenses to offer PCS
In a Federal Communica-
tions Commission auction of
PCS licenses that ended Tues-
day, U S West said it bid a win-
ning $7.2 million for its Twin
Cities PCS license, and AT&T
said it bid about $6.7,million for
its local license. The FCC creat-
ed PCS to provide competition
for cellular firms with the idea
of driving down prices. Some
sellers of PCS say it will have
better voice quality than cellular
because it is completely digital,
while cellular firms tout broader
geographic coverage.
By winning the PCS licenses,
U S West and AT&T automati-
cally became competitors of the
previous PCS license winners
for the Twin Cities, Sprint, Aer-
ial and NextWave.
Sprint and Aerial have said
they will start Twin Cities PCS
operations early, this year. U S
West said Friday it will start PCS
service here in 1998. AT&T said
it doesn't have specific start-up
plans, and NextWave hasn't said
StarTnb"FAX
Earnings reports
are available by fax
The Star Tribune Fax service now has
available complete earnings reports
for many Twin Cities companies. To
order a report, call Star Tribune Fax
at 230-3555 and follow the recorded
instructions. The cost is $1.98 per
order, which is billed to your credit
card. (Some lengthy earnings reports,
such as those of several banking
companies; may have higher fees to
cover the added transmission costs.)
A touch-tone phone is required.
Category numbers are listed below
for earnings reports released yester-
day.
Mirrn Cmmnnm..r... hti lnm, 9 no
when it will start service here.
Corey Ford, Denver-based
vice president of business devel-
opment for the U S West Com-
munications ' wireless group,
said U S West also won several
other PCS licenses in Minneso-
ta, all of which will be operated
from the same central computer
site as its Twin Cities PCS
system.
U S West will pay $1.06 mil-
lion for a PCS license in Roches-
ter, $836,000 for a license in St.
Cloud and $91,100 for a license
in Willmar. U S West will pay a
total of $58 million for 53 PCS
licenses it won Tuesday in the
14 -state region where it offers
traditional phone service. The
cost of building all the Minneso-
ta PCS systems is expected to be
about $100 million.
AT&T also won other Minne-
sota PCS licenses. It will pay
1.4 million for a PCS license in
Mankato, $837,000 in St. Cloud,
271,000 in Duluth and
1'80,000 in Fergus Falls. AT&T
will pay a total of $406.8 million
for 222 PCS licenses nationwide
that it won this week in the FCC
auction.
Ford said U S West's PCS
strategy, would be to make wire-
less PCS service resemble the
traditional phone system. The
PCS phones will have a dial -
tone, something current wire-
less phones don't have, and will
be able to share a single voice
mailbox with a traditional
phone, he said.
We will be offering a wire-
less service that has the look
and feel, and will be used very
much like, the wired tele=
phone," Ford said.
It will be easier for U S West
to make new PCS service similar
to traditional -type phone ser-
vice than it would be to adapt
cellular systems that are more
Hood added:
This is the right move.
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OFFER ENE
f
BORT
C spa g art
The advantage
to a community in
allowing for the use of
its municipal facilities
for PCS expansion is
the potential for
new revenue.
in PCS
What are all those antennas on my neigh-
bor's water tank?" is a question you and your
community may be asking yourselves. It's
the beginning of the booming wireless
communications age.
In the last 10 to 15 years, water storage
tanks and other municipal facilities have
become a common location for communications
equipment serving local, state, and county
government, and dispatch for many cartage
companies. This was soon followed by the
introduction of cellular pagers, and now the
rapidly growing use of mobile phones and/or
Personal Communications Systems (PCS).
The explosion of the PCS market has
prompted the need for additional radio
frequencies to provide for the growth of the
mobile market. The Federal Communications
Commission (FCC) is responsible for issuing
frequency licenses, based on award through
an auctioning process. The frequencies are
divided into narrow band and broad band.
Narrow band serves voice communications,
public works type functions, and pagers.
Broad band encompasses PCS. The need for
5
5
these telecommunications companies to locate
in specific communities is based on:
Latitude and longitude
Elevation
Structure type
Utility availability
Site access and security
The number of sites required to provide
optimum service to its customers is a function
of population density; the greater the popu-
lation, the smaller the distance between sites.
The advantage to a community in allowing
for the use of its municipal facilities for PCS
expansion is the potential for new revenue.
Some of the issues associated with placement
of the antennas and equipment include:
Height and placement restrictions
Noise impact and aesthetics
Future facility maintenance
Security
Structure integrity
SEH has provided planning and site
development services for communications
sites at the Buckhill and Colonial Hill Water
Reservoir Sites in Burnsville, Minnesota.
Improvements included:
Handrail installation or modifications
Aesthetic treatment of cable tray
installations for coaxial cable
Communications equipment building
Development of
weatherproof
equipment sites For more
Installation of
information,
security fencing
contact
Dan zienty
at SEH
continued on page 6 St. Paul.
Ur € Published Wednesday, September 24, 1997
8 = U S West to offer wireless phone that
receives calls made to home or office
starinbune.can Steve Alexander / Star Tribune
n U S West, the latest contender in the growing wireless telephone
market, said Tuesday that it will introduce a wireless phone in
Related ltem5 Denver that can automatically receive calls made to your home or
fia Access 2, advanced
office telephone.
PCS home page The service appears to add a new dimension to the use of wirelessWestpressrelease
telephones, which today are used by about one out of every six
people in the United States. For example, it would allow a caller to
reach you by dialing a single phone number, no matter where you are.
Called "Access2 Advanced PCS," the service uses new Personal
Communications Service (PCS) wireless technology. PCS is a new
competitor of cellular telephone service that is starting up in cities
across the nation as a result of a push by the Federal
Communications Commission (FCC) to create more competition and
drive down wireless phone service prices.
Denver-based U S West is the largest provider of local phone service
in the Twin Cities. It said the service will be introduced in the Twin
Cities sometime in 1998, making it the sixth wireless phone service
offered here. The others are PCS firms Aerial Communications and
Sprint PCS, cellular firms AirTouch Cellular and AT&T Wireless
and an alternative wireless phone provider, Nextel Communications
Inc.
U S West claims it is the first regional Bell operating company to
offer the new service in response to customer demand for more
simplicity in telephone use.
One analyst said that, while it's unclear whether U S West is really
the first to offer the service, it clearly does appeal to a widespread
desire among consumers to have calls follow them as they travel.
Consumers don't want to think about how to get a call, but for the
call to find them," said Gary Arlen, president of telecommunications
research firm Arlen Communications Inc. in Bethesda, Md.
They want something that doesn't require even the minor effort of
setting up call -forwarding," Arlen said.
U S West will sell the service two ways: As a PCS phone only or as a
PCS phone integrated with conventional telephone service. The
http://www.startribune.comlcgi-binlstOnLine/article?thisSlug=PHON24&date=24-Sep-97&wordlOU97
U S West to offer wireless phone that receive... Page 2 of 2
entry-level service price for a PCS phone alone is $24.95 a month
with 60 minutes of talk -time included. For an additional $4.95 a
month, the PCS phone can be linked to a home or office telephone so
that it can intercept calls intended for those phones. The interception
capability is activated by turning on the PCS phone.
The PCS phone itself costs $199, and it is not compatible with
competing cellular telephone systems or, at present, with the PCS
systems of other wireless phone companies.
David Beigie, a spokesman for U S West Communications in
Denver, said the interception capability is faster than today's
call -forwarding, a function available on most conventional
telephones, because it uses the computerized intelligence of the
telephone network to route a call. While call -forwarding sends a call
bouncing from one telephone to another to reach its destination, U S
West's new service will send the call directly to the wireless phone
without any intermediate stops, he said.
Later this year, the service will be expanded to other parts of
Colorado and to portions of Oregon, Washington state and Arizona.
Like Minnesota, all those locations are within the 14 -state area in
which U S West provides local telephone service.
Related Items The Twin Cities is one of 53 areas of the nation in which U S West
Qp Access 2, advanced has FCC licenses to offer PCS service. U S West has been reducingprs-fiost a e
est its presence in the competing cellular hone business and plans toGapressrelease
retain only a minority stake n AirTouch Cellular, a nationide
cellular provider. AirTouch formerly was known in the Twin Cities
startribunexom as U S West Cellular.
Business
Copyright 1997 Star Tribune. All rights reserved.
h4://www.startribune.comlcgi-binlstOnLine/article?thisSlug=PHON24&date=24-Sep-97&wordE(PES7
11
PAGE 50 JUNE 10, 1996/ CABLE WORLD
T$C#-INOLOGY%S
BY VINCE VITTORE
lmost a year after the first round of
PCS auctions have ended, most of
the top bidders — including the ca-
ble -backed Sprint Spectrum venture —
are still haggling over microwave -reloca-
tion issues that are adding significantly to
network startup costs.
But despite the delays, spectrum win-
ners say their networks will be up and
running and competing with current cel-
lular carriers by year's end. And in some
markets, cable operators will play a major
role.
According to FCC rules, A and B band
license holders first must clear
their spectrum of microwave
users who've been using the
same 1.9 -GHz band. In most
cases, that means paying for the
operators of fixed microwave
links — usually public safety or-
ganizations — to move to a dif-
ferent band and upgrade to digi-
tal systems.
However, in some cases,
those incumbents are using
their position to squeeze huge
sums of money from PCS li-
cense holders, who already
have put up several billions in
auctions.
About 85% of our discus-
sions are going well and about
15% fall into requested extor-
tion," says Keith Paglusch, the
VP -networks at Sprint
Spectrum, which is backed by Sprint,
Comcast Corp., Cox Communications
Inc. and Tele-Communications Inc.
In one case cited by the Cellular
Telecommunications Industry Assoc-
iation, the Suffolk County (N.Y.) Police
Dept. demanded that Sprint Spectrum
fork over $18 million to move one mi-
crowave link and pay for a new 21 -link
digital system.
Industry analysts generally peg mov-
ing a :single link at about $500,000, al-
though costs can vary widely.
The situation had deteriorated so bad-
ly for all PCS carriers that the FCC re-
cently reiterated its rules. Even that, how-
ever, hasn't had much effect on some in-
cumbents.
We're not seeing a huge benefit from
the FCC clarification, and that's all it was:
a restating of the rules," Paglusch says.
Even with the microwave -relocation
problem, Sprint intends to be operating
systems in 15 markets by year's end. And
if its first commercial system in
Washington, D.C., is any indication, the
faster they turn on their networks, the
quicker customers will be jumping ship
from other providers.
That first system, which holds one of
three Pioneer's Preference licenses —
Cox and Omnipoint have the others — is
tomers to sign up and migrate the. pro-
cess to other markets.
We are looking at the same thing in
terms of easing the purchase by not hav-
ing contracts and doing over -the -air
signups," Paglusch says.
And as the company moves into 29
other markets, its cable partners will play
a more significant role. Initially, that may
mean nothing more than packaging wire-
less services with cable.
We intend to use their 36 million cus-
tomers as a base from which to start,"
says Ed Mattix, a Sprint Spectrum
spokesman.
Initially, the company is looking at
four network architectures: lo-
cating cell sites on rooftops; co -
locating cells on existing cellu-
lar towers; building new towers;
and hanging microcells on aeri-
al cable plant.
Right away, rooftops will
play a large part in our game
plan, as will collocation,"
Paglusch says.
At the same time, Sprint
Spectrum is trying to avoid
erecting new towers, not only
because it's the most costly op-
tion, but because municipalities
are making it more difficult.
As for the fourth option,
Sprint Spectrum is hoping to
find enough upgraded cable
plant to begin to backhaul sig-
nals to headends as soon as pos-
sible. Several vendors, includ-
ing Lockheed Martin Co.'s Sanders
Telecommunications Systems, have been
experimenting with the concept. They
say the technology will be ready for com-
mercial testing in the next few months.
Cox Communications, which holds
one of the lucrative Southern California li-
censes, also has been running trials for
several years and has solved most of the
technical problems, Gaines says.
We're relying quite a bit on Cox, but
it looks like they have solved most of the
technical problems and are in a cost -re-
duction mode," he notes. "But none of us
ONE PCS PLAY: Sanders Telecommunications Systems says its 23 -
pound Cable Microcell Integrator transceiver supplies the air -to
cable interface for a cable system rollout of PCS.
one of the shining successes in an other-
wise difficult year for PCS. Since turning
on the network in December, the compa-
ny has generated more than 80,000 cus-
tomers, according to Jerry Gaines, the
president of TCI Telephony Services Inc.
And that's on a system that doesn't let
users roam to different markets yet —
something many cellular carriers cite as a
major disadvantage.
Still, what the company has learned
from its Washington customers has been
invaluable, according to Paglusch.
First and foremost, he says Sprint
Spectrum probably will retain many of
the features that make it easy for cus- See Foothold on page 52
TIECHNOLOGY•S
0
BY JIM BARTHOLD
r -home wiring, at least when it in es
signal leakage, is pretty good these da
While a few cable employees and con-
tractors still have some bad habits, and con-
sumers are always a wild card, the problem
essentially has been licked by stepped-up
maintenance and more vigilance.
Still, in-home wiring remains an area of
great concern when it comes to what cable
operators plan for the future, according to
Mary Nelson, the VP -technical programs
at the Society of Cable Telecom-
munications Engineers (SCTE).
Nelson has spent much of his career
tracking and trying to understand the ele-
mental characteristics of in-home wiring.
He's also a driving force behind the SCTE's
Consumer's Guide To In Home Wiring, a
booklet the organization encourages cable
operators to give to their subscribers.
There are a lot more of them b -
scribers] doing [in-home wiring d un-
fortunately alot more of th doing it
without knowledge of wh takes," he
says. "Our point with book was to
raise their awarenes at you can't put
just anything that and and black in and
wire your home it
There ar me requirements, and ca-
letilopera are more than willing to help
who mess around with their
J NE 10, 1996/ CABLE WORLD
TECHNOLOGY'• •
in-home wiring, though, are a relatively
small concern thanks to a 1990 FCC ruling
that prompted operators to improve their
maintenance and boost their subscriber -ed-
ucation efforts, according to Nelson.
The real problem in the home, he say
is way the wiring will handle upco g
servic such as two-way cable ems
and inte ve offerings.
here are a lot of issues there that I'm
not sure have really been recognized yet,"
Nelson says. "CableLabs did a system pro-
file almost two years ago where they re-
searched what it is going to take from the
drop to pass data.
Their research was pretty revealing,
that it's going to be the weak link in try-
ing to promote digital services to the
customer."
Problems with upstream interference
have beegvAell documented, and the alarm
flags aving vigorously, Nelson says.
downstream, he adds, "there are is
s with just how clean the match is with
things like splitters, or, the one that could-
n't be more mundane or generic: the bond-
ing block. There are some real issues
about that F -connector interface causing
distortion problems with digital signals."
Those problems could put a serious
crimp into the revenue streams being
planned in the new world of data
modems and high-speed Internet access,
Nelson warns.
This is not a case of waving a magic
wand and having it all go away," he says. "I
don't know that you can put a point in time
on it. I think its going to be a progressive
thing where we get better and better at
h,at it takes to have a good quality drop
s m in place."
ly, there's one more serious con-
cern, ac ding to Nelson.
What i e message we are putting
out on how to ntrol upstream ingress
from subscriber ho aren't using up-
stream products?" he s.
That question, and ers, ultimately
must be resolved for cable ove to the
next step of interactive deh and that
includes cable modems.
I'm not sure that having mo s
available yet is the big issue," Nels
concludes. m
PCS Still Struggling To Gain a Strong Foothold
Foothold from page 50
felt it was in our interest to hold up mar-
kets until we solved the cable plant."
Several cable operators — particularly
ones without the cash to jump into the
multibillion dollar auctions — also are con-
sidering jumping into the market by selling
network capacity to other license holders.
Jones Intercable, which hasn't bid in
any FCC auctions yet, is considering
such a plan because it gives it another
revenue stream to support more up-
grades, says Chris Bowick, Jones's
group VP -technology.
We took a look at Sprint earlier on and
felt that for our company that it was best
to take a wait-and-see attitude," he notes.
With the recently closed C -band auc-
tions, the potential customer base for
such options has significantly grown.
Bidders in that round put up $10.2 bil-
lion for 493 basic trading area (BTA) li-
censes. For the most part, though, they
have no existing plant.
NextWave Personal Communications,
which bid $4.2 billion for 56 licenses, al-
ready has said it plans to team up with
a
another company. At the top of the list:
cable operators.
Another option for cable operators is
in the 18 C -band licenses that the FCC
intends to reauction after two of the ini-
tially successful bidders defaulted on
down payments. Among the basic trade
area (BTA) licenses up for grabs:
Denver, Seattle, Phoenix, Minneapolis
and Portland.
Another prospect for cable operators:
participating in the D, E and F band auc-
tions, which the FCC says it will begin
this summer. 10
Wireless Technology Explained Page 1 of 2
How a Wireless Telephone System Works
A wireless telephone system divides a city into several service areas called cells, each with its own
low -powered transmitter and receiver. As a car moves between cells, a central computer tracks the
call, switching or "handing off" the call to the nearest cell site.
How Wireless Technology Works
Wireless communications systems provide anytime, anywhere communications. When you talk on a
wireless phone, it transmits low energy radio waves to a local antenna site, which connects through
the mobile switching center to the local telephone office that serves your home or office, or sends
your call to another wireless phone.
Wireless technology uses individual radio frequencies again and again through geographic areas that
can be as small as a microcell in a building or, in the case of mobile satellite services, globally.
Instead of having a few radio channels all users must share, like citizens band (CB) radio, wireless
communications channels are "re -used" simultaneously without callers having to share
conversations.
For wireless communications, the process begins by carving a service area into small areas called
cells. A cell can range from one mile in diameter to 20 miles in diameter, depending on the terrain
and the capacity needs of the system. Each cell is equipped with a radio transmitter/receiver which is
connected through the cellular company's switching center to the local phone network. By lowering
the transmitter's power, the range of the radio frequencies can be shaped to fit a single cell. Those
same frequencies can be used in another cell not far away, with little chance of causing any
interference.
When a mobile phone begins to leave a cell, the network senses that the signal is becoming weak and
connects the call over to the next closest cell site that has a stronger signal. This is known as a
http://www.com/bscc/celltech.html
15PIv
10/16/97
Wireless Technology Explained
handoff.
Page 2 of 2
Wireless carriers bill subscribers based on airtime, that is, how long their phone calls last. Two
different rate periods are commonly used: peak or high -usage time, and off peak. In general, wireless
subscribers pay a flat service charge, which may include a set amount of air time, and then a certain
amount per minute over that time. If a subscriber travels beyond the home geographic area and
makes a call on his or her wireless phone, another carrier will provide the service. This is called
roaming.
Current wireless technology uses a standard analog technique to carry voice conversations. Digital
transmission technology known as TDMA - Time Division Multiple Access - has been chosen by
BellSouth Cellular Corp. for all its markets. The first generation of TDMA will offer a threefold gain
in capacity. Later versions of TDMA will offer six to eight times capacity. The resulting dual -mode
networks - analog and digital - will remain in place for the forseeable future. TDMA will also be
used for BSCC's PCS licenses, which will become operational beginning late 1997. Dual mode, dual
banded phones will be used to allow for easy roaming between markets.
Digital transmission - using the 0's and 1's of computer language - offers a high sound quality and
additional functionality for services.
The Federal Communications Commission (FCC) has allocated 50 Megahertz (MHz) of the radio
spectrum - 824-849 MHz and 869-894 MHz - to wireless telephone service. Our new licenses will
operate at 1.9 Gigahertz (GHz) on the spectrum.
For more information on wireless technology, contact your local library or the Cellular
Telecommunications Industry Association (CTIA).
CTIA
1250 Connecticut Ave. NW
Suite 200
Washington, DC 20036
202)-785-0081
More information on how consumers with hearing impairments can utilize wireless technology.
http://www.com/bscc/celltech.html
1=;11
10/16/97
Personal Wireless Services and Facilities Page 1 of 3
Personal Wireless Services and Facilities
PERSONAL WIRELESS SERVICES & FACILITIES
1. What are "personal wireless facilities" referenced in Section 704 of the 1996 Act?
Answer: Personal wireless facilities are transmitters, antenna structures and other types of
installations used for the provision of personal wireless services. Section 704 defines personal
wireless services to include a broad range of spectrum -based services. All commercial mobile
services fall within the definition of personal wireless services. Elsewhere in the statute, commercial
mobile services have been defined as mobile services that are for-profit, are available to the public or
a substantial portion of the public, and provide subscribers with the ability to access or receive calls
from the public switched telephone network. Common examples of commercial mobile services are
personal communications services (PCS), cellular radio mobile service and paging. Personal wireless
services also includes unlicensed wireless services, which are services that are not licensed by the
Commission, but are deployed through equipment that is authorized by the Commission. Finally,
personal wireless services include common carrier wireless exchange access services, which are
offerings designed as competitive alternatives to traditional wireline local exchange providers.
2. Are home satellite services considered "personal wireless service"?
Answer: No. Section 704 of the 1996 Act specifically excludes "direct -to -home satellite services"
from the definition of personal wireless services. State and local regulation of facilities used to
receive these broadcast services is addressed under Section 207 of the 1996 Act. Pursuant to Section
207, the Commission has adopted rules concerning state, local, and private restrictions on viewers'
ability to receive video programming signals from direct broadcast satellites, multichannel
multipoint distribution (wireless cable) providers, and television broadcast stations. For more
information on the Commission's rules under Section 207, please contact 1-888-225-5322. A
separate fact sheet has been prepared regarding these rules, which is available from the
Commission's fax -on -demand system at (202) 418-2830 or from the Internet at
http:\\www.fcc.gov\Bureaus\Common Carrier\Factsheets\otafacts.html.
3. How can providers of personal wireless services benefit my community?
Answer: Personal wireless services are not just car phones for businesses. Due to technological
innovation and the continuing availability of additional spectrum, PCS and cellular providers are
offering light -weight portable phones at increasingly affordable prices that enable consumers to
make and accept calls anywhere and at anytime. It is also anticipated that providers of personal
wireless services will offer wireless computer networking and wireless Internet access. Many PCS
providers also intend to offer a service that will eventually compete directly with residential local
exchange and exchange access services. The inherent flexibility of wireless services makes it
possible to introduce new service offerings on a dynamic basis as consumer demands grow and
change.
Wireless services are also integral to many businesses that rely on mobility of their operations to
provide goods and services to consumers. Communicating by a wireless network enables companies
in various businesses, from car rentals to package delivery, to operate in a more efficient manner,
http://www.wireless-lawyer.com/wi02002.html 10/16/97
Personal Wireless Services and Facilities Page 2 of 3
and to ultimately lower the cost to the consumer while improving the quality of service.
It is also worthwhile to keep in mind that the antenna structures required to deploy personal wireless
services can be used for other purposes that could benefit your community. For example, a
community that has a long-term plan to improve its public safety communications may be able to
expedite that process by teaming with personal wireless service providers to construct new sites that
could be used for deployment of both public safety and personal wireless communications.
Furthermore, wireless telecommunications and data services play an increasing (and increasingly
sophisticated) role in providing healthcare services. Wireless services may be particularly helpful in
delivering healthcare to the home, for example, by allowing a nurse, while in a patient's home, to
access the patient's vital information directly from the database at the hospital. Personal wireless
service providers may also serve as a lower-cost source of advanced telecommunications capabilities
for schools and libraries. Therefore, state and local governments should engage the personal wireless
service providers in a dialogue about how their offerings can best serve the community.
4. Why do personal wireless service providers require so many antenna structures?
Answer: Generally, low powered transmitters are an inherent characteristic of cellular radio and
broadband PCS. As these systems develop and more subscribers are added, the effective radiated
power of the cell site transmitters is reduced. Channels are reused at closer intervals to increase the
subscriber capacity of the system, and therefore, more transmitting facilities are needed.
Additionally, because broadband PCS operates at a higher frequency than cellular, these providers
may require more antenna structures than cellular services to provide equivalent coverage in their
service areas.
5. It seems as if the Commission is authorizing a large number of these personal wireless service
providers. How many new antenna structures should my community expect to accommodate?
Answer: Currently, there are over 40 million mobile/portable cellular units and over 22,000 cell sites
operating within the United States and its Possessions and Territories. The Commission is allocating
spectrum to personal wireless service providers on an ongoing basis. In addition, at the direction of
Congress, the federal government is making spectrum currently allocated to federal government use
available to the Commission for private sector use. As a result, it is difficult at this time to predict the
ultimate number of personal wireless service providers that may serve your community. At present,
however, the greatest demand for new site construction is concentrated in cellular and broadband
PCS.
In most parts of the country, there are two Commission -licensed entities providing cellular services.
In addition, the Commission has already issued two broadband PCS licenses in each Major Trading
Area, and soon will issue four more broadband PCS licenses for Basic Trading Areas. (PART IV of
this Fact Sheet #2 contains maps showing the Major and Basic Trading Areas). Therefore, during the
upcoming year, local governments can expect approximately eight discrete cellular and broadband
PCS licensees to seek antenna facilities in each community. However, the actual number is likely to
be smaller than eight due to the ability of existing cellular and PCS licensees to obtain more than one
license in an area, and the expected consolidation of providers within the wireless communications
industry.
6. Does the Commission maintain any records on the locations of personal wireless structures
throughout the United States?
Answer: The Commission maintains site information on antenna structures that may affect air
navigation, including (1) antenna structures located over 200 feet above ground, and (2) antenna
structures that are in close proximity to airport runways. Antenna structures that do not exceed 20
feet above existing landscape or buildings, however, are not included. Site information for structures
built prior to July 1, 1996, is contained in the Commission's "tower file" database. Site information
for structures built after July 1, 1996, as well as an increasing number of structures built before that
http://www.wireless-lawyer.com/wi02002.html
a
10/16/97
Personal Wireless Services and Facilities Page 3 of 3
date, is contained in the Commission's "antenna registration" database. The registration database will
contain all the tower file information by July 1998. Additionally, the Commission's cellular and
SMR licensing databases contain some site information for base stations in those services.
For a fee, you can request a search of the tower file or antenna registration databases through
International Transcription Service, Inc. (ITS), 2100 M Street, N.W., Suite 140, Washington, DC
20037, at (202) 857-3800. You may also view the antenna registration database on-line using the
Commission's ASR Electronic Filing/Viewing Software. For more information on this software,
please call (800) 322-1117.
The cellular and SMR databases are available for on-line viewing in the Public Reference Room of
the Wireless Telecommunications Bureau's Commercial Wireless Division, located on the fifth floor
of 2025 M Street, N.W., Washington, DC 20554. For more information, you may contact the
Reference Room at (202) 418-1350. You may also obtain on-line access from a remote location, by
contacting Interactive Systems, Inc., 1601 North Kent Street, Suite 1103, Arlington, VA 22209, at
703) 812-8270. However, because PCS licensees are issued a blanket license for their entire
geographic area, the Commission does not maintain any information in its databases on the specific
locations of any PCS base stations, unless they fall into the categories listed above.
7. Some people consider personal wireless service facilities to be unsightly. Is there some way to
make these structures blend in with their surroundings?
Answer: Antennas for personal wireless services can sometimes be mounted on existing structures
such as building roof tops, church steeples, street lights, traffic lights, or electric utility substations,
where they are relatively unobtrusive. Painting antenna structures to blend in with the existing
structure is also an effective camouflage. Camouflaging of antennas is also used to accommodate
highly specialized land use concerns. For example, a personal wireless service provider seeking to
locate a transmitter site in a historic district may consider camouflaging the antenna in such
structures as clock towers or artificial trees. Such camouflaging is, however, expensive and time
consuming and most service providers are reluctant to routinely use the camouflage option.
http://www.wireless-lawyer.com/wi02002.html
M
10/16/97
Route to:
1. 9KanagerorCA0
2. Planning Director
r. CounsellAttorney
4. yourfocalcarrier
JOHN BASK
PLANNER
CITY OF PLYMOUTH
3400 PLYMOUTH BLVD
PLYMOUTH MN 55447-1482
Report from Oak Brook: The Residential Phase
Has Arrived & It's Cellular
Kreines & Kreines, Inc. has been retained by the Village
of Oak Brook, Illinois to look at a cell site, and it's only 30
feet high. Oak Brook is an applicant -friendly town, so why
the fuss? The answer is that the proposed site, though on a
commercial property, is surrounded by residential land use
and lies within a residential zoning district.
The issues here are part technical (requiring a
radiofregency engineer) and part community acceptance (the
neighbors question the need, location and design).
Regardless on how this particular effort turns out, the
message is: get used to residential cell sites, this is the
future. Cellular and PCS are designed to replace (not
supplement) the wired telephone device next to your
bedside. To achieve the ultimate residential coverage
saturation" would be a better word) each carrier will have
to install cell sites for every 40 to 400 dwelling units. Right
now you may be thinking "I can understand a zoning
ordinance for something that occurs frequently, like fast food
restaurants, but can zoning deal with something that will be
ubiquitous, like fire hydrants or mail boxes?" Ladies and
gentlemen, this is more than land use, this is infrastructure.
Here are the lessons (so far) from Oak Brook:
Zoning alone cannot deal with personal wireless service
facility review and approval (or denial). You'll be calling
Kreines & Kreines, Inc. every month for advice if you're
relying on your revised zoning ordinance.
The carrier in Oak Brook is a cellular provider. Do not
count cellular out because of PCS hype. Cellular
providers are up and running and committed to giving
PCS carriers a run for their money.
The Oak Brook area of the Chicago MSA/MTA/BTA in
question is characterized by high incomes, high traffic
volumes and high rise offices. So, yes, the call density is
very high. There are cell sites every 1/4 -mile.
Do not think, even for a minute, that because your
jurisdiction has moderate incomes, low traffic volumes and
no offices, that this won't be your future. The Residential
Phase is keyed to where people live. Every neighborhood
will have one, or two, or three or more, cell sites.
EGEIVE
AW -- 8 1997 _.
YMOTHIMMUNITYEVELOPMENI FPH.RTYrNT
Stay tuned. Kreines & Kreines, Inc. thinks Oak Brook will
be very important to the way all of us will do our work in
the next five years.
Out of the Hundt, He Still Talks Tough
As PlanWireless reported in the July 1997 issue, Reed
Hundt has announced his resignation as FCC Chairman.
According to Jeff Silva in the 7/21/97 issue of RCR, there are
at least two aspirants for Hundt's job: Kathy Wallman, a
White House aide backed by Vice President Al Gore, and
Ralph Everett, a former aide to Senator Hollings (D, SC).
While the decision on who will replace him is heating up,
Hundt continues to make his presence felt.
There are many theories as to why Reed Hundt is
leaving. PlanWireless believes that the latest allegations of
bid -rigging (which the FBI is investigating) during the A-
bd B -Block auctions for Broadband PCS were the last straw.
But the biggest problem associated with Hundt's aggressive
auction program has been foreclosures. Some of the C -Block
winners haven't paid installments due on their high bids for
their licenses. In one case, a major bidder has declared
Chapter 11.
Some of the fiscally challenged bidders are claiming they
can settle for less than their full payment to the FCC through
the bankruptcy process.
RCR, in its 7/14/97 issue, projected that companies could
be looking to get out of their commitments to purchase
licenses for as little as 20 to 25 cents on the dollar.
Reed Hundt, a lawyer, will have none of it. He told
debtors' lawyers to back off in a speech on 7/17/97 as
follows:
I want) "to make crystal clear to even the most
ingenious, pettifogging, persevering lawyers" that
bankruptcy provisions "are not applicable to any FCC
license for which a payment obligation is owed, do not
relieve any (FCC) licensee from payment obligations, and do
not.affect the cothatissioWs authority.to:revoke, cancel or
assign its licenses.'
Wow! It looks like this lame duck can still bark like a
beagle ... er, fly like an eagle.
Published by Kreines & Kreines, Inc., Consultants to Cities & Counties on Wireless Planning
as
Kreines & Kreines, Inc. Bulk Rate.
Consultants to Cities & Counties U.S. PostageA
on Planning for Personal Wireless
ID
Service Facilities
Tiburon, CA
Permit No. 275
58 Paseo Mirasol
Tiburon, CA 94920
Route to:
1. 9KanagerorCA0
2. Planning Director
r. CounsellAttorney
4. yourfocalcarrier
JOHN BASK
PLANNER
CITY OF PLYMOUTH
3400 PLYMOUTH BLVD
PLYMOUTH MN 55447-1482
Report from Oak Brook: The Residential Phase
Has Arrived & It's Cellular
Kreines & Kreines, Inc. has been retained by the Village
of Oak Brook, Illinois to look at a cell site, and it's only 30
feet high. Oak Brook is an applicant -friendly town, so why
the fuss? The answer is that the proposed site, though on a
commercial property, is surrounded by residential land use
and lies within a residential zoning district.
The issues here are part technical (requiring a
radiofregency engineer) and part community acceptance (the
neighbors question the need, location and design).
Regardless on how this particular effort turns out, the
message is: get used to residential cell sites, this is the
future. Cellular and PCS are designed to replace (not
supplement) the wired telephone device next to your
bedside. To achieve the ultimate residential coverage
saturation" would be a better word) each carrier will have
to install cell sites for every 40 to 400 dwelling units. Right
now you may be thinking "I can understand a zoning
ordinance for something that occurs frequently, like fast food
restaurants, but can zoning deal with something that will be
ubiquitous, like fire hydrants or mail boxes?" Ladies and
gentlemen, this is more than land use, this is infrastructure.
Here are the lessons (so far) from Oak Brook:
Zoning alone cannot deal with personal wireless service
facility review and approval (or denial). You'll be calling
Kreines & Kreines, Inc. every month for advice if you're
relying on your revised zoning ordinance.
The carrier in Oak Brook is a cellular provider. Do not
count cellular out because of PCS hype. Cellular
providers are up and running and committed to giving
PCS carriers a run for their money.
The Oak Brook area of the Chicago MSA/MTA/BTA in
question is characterized by high incomes, high traffic
volumes and high rise offices. So, yes, the call density is
very high. There are cell sites every 1/4 -mile.
Do not think, even for a minute, that because your
jurisdiction has moderate incomes, low traffic volumes and
no offices, that this won't be your future. The Residential
Phase is keyed to where people live. Every neighborhood
will have one, or two, or three or more, cell sites.
EGEIVE
AW -- 8 1997 _.
YMOTHIMMUNITYEVELOPMENI FPH.RTYrNT
Stay tuned. Kreines & Kreines, Inc. thinks Oak Brook will
be very important to the way all of us will do our work in
the next five years.
Out of the Hundt, He Still Talks Tough
As PlanWireless reported in the July 1997 issue, Reed
Hundt has announced his resignation as FCC Chairman.
According to Jeff Silva in the 7/21/97 issue of RCR, there are
at least two aspirants for Hundt's job: Kathy Wallman, a
White House aide backed by Vice President Al Gore, and
Ralph Everett, a former aide to Senator Hollings (D, SC).
While the decision on who will replace him is heating up,
Hundt continues to make his presence felt.
There are many theories as to why Reed Hundt is
leaving. PlanWireless believes that the latest allegations of
bid -rigging (which the FBI is investigating) during the A-
bd B -Block auctions for Broadband PCS were the last straw.
But the biggest problem associated with Hundt's aggressive
auction program has been foreclosures. Some of the C -Block
winners haven't paid installments due on their high bids for
their licenses. In one case, a major bidder has declared
Chapter 11.
Some of the fiscally challenged bidders are claiming they
can settle for less than their full payment to the FCC through
the bankruptcy process.
RCR, in its 7/14/97 issue, projected that companies could
be looking to get out of their commitments to purchase
licenses for as little as 20 to 25 cents on the dollar.
Reed Hundt, a lawyer, will have none of it. He told
debtors' lawyers to back off in a speech on 7/17/97 as
follows:
I want) "to make crystal clear to even the most
ingenious, pettifogging, persevering lawyers" that
bankruptcy provisions "are not applicable to any FCC
license for which a payment obligation is owed, do not
relieve any (FCC) licensee from payment obligations, and do
not.affect the cothatissioWs authority.to:revoke, cancel or
assign its licenses.'
Wow! It looks like this lame duck can still bark like a
beagle ... er, fly like an eagle.
Published by Kreines & Kreines, Inc., Consultants to Cities & Counties on Wireless Planning
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CITY OF PLYMOUTH
APROVED COMMERCIAL WIRELESS COMMUNICATION
ANTENNA AND TOWER SITES
Provider Type of Facility P.I.N. # Site Address
CO -LOCATION SITES
Sprint Spectrum City Water Tower 18-118-22-41-0007 4000 Co. Rd No. 101
55446
Sprint Spectrum City Water Tower 28-118-22-12-0001 14900 23RD Ave N.
55447
US West co -locate w/ APT 24-118-22-11-0001' 3515 N. Hwy 169
AirTouch Cellular Building -mounted 22-118-22-31-0022 2855 Campus Drive
55441
Sprint Spectrum City Water Tower 14-118-22-11-0006 4425 Zachary La N
55442
US West Building -mounted 12-118-22-12-0001 9700 Schmidt Lake Rd.
55442
APT Building -mounted 22-118-22-31-0022 2855 Campus Drive
55441
TOWERS
APT Monopole 24-118-22-11-0001 3515 N. Hwy 169
Sprint Spectrum Monopole 04-118-22-34-0001 5323 Juneau La N
55446
AT&T Monopole 34-118-22-23-0026 701 Berkshire Lane
AT&T Monopole 22-118-22-31-0022 2855 Campus Drive
55441
Antenna is mounted on building owned by provider.
Source: City of Plymouth Community Development Department, October 20, 1997
3a
Existing Towers and Antennas
Water Towers with Antennas
Tower, Single User
Building Mount Antennas
N f Tower, Multi -User
M.U. S. A. Line
W E D City Limits
City Streets
S City Lakes 10/20/97
53
r.
I Agenda Number:
TO: Dwight Johnson, City Manager -
FROM: John Rask, Planner through Ann -?I buurt, Community Development
Director
SUBJECT: FCC proposed rule to preempt local zoning over radio, TV towers, and
cellular antennas
DATE: October 23, 1997 for the City Council Work Session of October 29,
1997
PROPOSED MOTION
Move to approve participation in the League of Minnesota's (LMC) effort to provide comments on
the FCC's proposed rule makings concerning radio and TV towers, and RF emissions associated
with cellular antenna sites.
BACKGROUND
The Federal Communications Commission (FCC) in late August issued two new rule makings to
consider whether to preempt certain local zoning and land use ordinances for (1) the siting of radio
and TV towers and (2) RF emissions associated with cellular tower/antenna sites.
The National Association of Broadcasters and the Association for Maximum Service Television
filed a petition to the FCC seeking preemption over local zoning and land use controls for the
siting of radio and TV towers. The petitioners state that the accelerated High Definition
Television (HDTV) transition schedule will require extensive and concentrated tower construction.
They estimate that 66 percent of existing television broadcasters will require new or upgraded
towers to support HDTV service, involving an estimated 1000 television towers throughout the
United States. Moreover, they state, as a result of the increased weight and windloading of HDTV
facilities and other tower constraints, a number of FM broadcast stations which have collocated
their FM antennas on television towers will be forced to relocate to other existing towers or to
construct new transmission facilities.
All commercial stations are required by the FCC to construct their HDTV facilities by May 1,
2002, and all noncommercial stations must construct their HDTV facilities by May 1, 2003.
Radio and TV Towers
October 23, 1997
Page 2
The preemption sought for cellular tower construction involves only the issue of RF emissions.
The preemption would prohibit cities from requesting information pertaining to RF emissions. It
appears that some cities are requiring providers to demonstrate that a wireless antenna site will not
exceed RF emission standards.
Radio and TV Towers
The FCC has issued a proposed rule requiring municipalities to act on all zoning, building permit
and other requests for radio and TV station towers within 21 days to 45 days, regardless of local
requirements for notice to adjoining landowners and hearing requirements. Failure to act in these
time frames results in automatic approval of the zoning or building permit request As stated
above, the petitioners believe this change is needed to establish new sites within the specified time
frame.
Under the proposed rule, zoning approval and permits could only be denied for clearly stated
safety reasons. Local governments would be strictly prohibited from regulating towers based on
aesthetics, RF emissions and interference problems. Also, local governments could not regulate
tower markings and lighting, provided the marking and lighting complied with FAA requirements.
The provider would have full discretion in determining what type of markings or lighting to use on
the tower.
All appeals of local zoning and other decisions affecting radio and TV towers would go to the
FCC, not to the local courts.
It is anticipated that towers used for HDTV could be as high as two -thousand (2,000) feet. Towers
for HDTV will be higher than conventional TV towers,'which are typically between 1,300 and
1,500 feet in height. HDTV towers would be of a lattice design with guy wires. The land area
needed to erect a tower of this height is quite large because of the need to use guy wires.
One of the questions that staff has not been able to get answered is whether or not the current
television towers that serve the Twin Cities market need to be replaced for the new HDTV
antennas. And, if they do need to be replaced, if new towers would be located at the "antenna
farm" in Shoreview or would stations look for other suitable sites in the metro area.
Any request for a new radio or TV tower in excess of 500 feet in height, or 300 feet in height
within 1,000 feet of any protected water or wetland would require preparation of an Environmental
Assessment Worksheet (EAW). Most HDTV towers would exceed these thresholds. The
proposed 45 day time limit would not allow sufficient time for the preparation of an EAW. It
appears that the requirement to prepare an EAW could be over -ruled by non -safety "Federal
interests."
Staff is opposed to this rule because the time limit of 45 days is unrealistic and bears no relation to
procedural requirements of state and local law, and the proposed rule violates requirements of due
r
Radio and TV Towers
October 23, 1997
Page 3
process by essentially eliminating any opportunity for public input. The proposed rule would also
make it difficult for the City to regulate aesthetic and safety concerns associated with these towers.
Further, staff fails to see how zoning requirements would prevent the establishment of new tower
sites by May 1, 2002.
RF Emissions from Cellular Towers
The FCC is considering a separate rule to preempt local zoning controls over radio frequency (RF)
emissions associated with cellular towers. The City of Plymouth does not currently regulate RF
emissions from cellular towers. Section 704 of the Telecommunications Act states that cities
cannot regulate wireless services on the basis of the environmental effects of radio frequency
emission to the extent that such facilities comply with the FCC's regulations concerning such
emissions. Some communities are requiring providers to demonstrate that antenna sites comply
with FCC standards. The City of Plymouth does not require an applicant to submit evidence that
the site complies with RF emission standards. Further, the City does not have the technical ability
to conduct measurements of RF emissions.
The FCC regulates RF emissions and is the governmental agency responsible to ensure
compliance with the regulations. The FCC adopted the standards set by the American National
Standards Institute (ANSI) and the National Council on Radiation Protection (NCRP). The FCC
does not routinely check each antenna site that is erected; however, most cell sites are well below
allowable limits. If a wireless provider establishes a site that exceeds emission standards, the
provider may have their license revoked.
While staff does not view the preemption over RF emissions for cellular towers as a direct threat
to our ability to effectively regulate this type of use, we are concerned about the FCC attempt to
interfere with local zoning controls and the City's ability to regulate land uses based on health and
safety concerns. Also, the proposed rule would allow a wireless provider to appeal any zoning
decision based on concerns over RF emissions directly to the FCC. The FCC could potentially
reverse zoning decisions if there is any evidence showing that radiation concerns was the reason
for denying an application. Staff opposes this type of judicial review by the FCC. Staff believes
that this type of land use dispute would be better handled in the local courts.
Local Contact for FCC Rule Makings
The FCC has established a Local and State Government Advisory Committee (LSGAC) that
consists of fifteen members from different areas of the country. We are fortunate to have a local
representative on this committee. Hennepin County Commissioner Randy Johnson serves on this
committee. Commissioner Johnson also sits on the LSGAC Wireless subcommittee. It may be
helpful to contact Commissioner Johnson regarding our concerns. (See attachments for phone
numbers and addresses of the LSGAC.)
Radio and TV Towers
October 23, 1997
Page 4
The LSGAC has made recommendations to the FCC on the proposed rules. The LSGAC
recommended against the rule which prohibits communities from requiring additional information
on RF emissions. The LSGAC recommended that the FCC work with state and local governments
and the industry in establishing a mutually acceptable RF testing and documentation mechanism to
demonstrate compliance with RF emissions.
Regarding the proposed rule that would preempt land use controls over the siting of radio and TV
antennas, the LSGAC recommended that further discussion occur between the FCC, broadcasters,
and local units of government. Also, the LSGAC committee recommended that the FCC identify
specific laws or practices that are likely to affect the siting and construction of HDTV facilities, as
well as to identify specific construction plans affected by these laws and practices.
RECOMENDATION
Staff recommends that the City participate in providing comments on both of the proposed rules
discussed above. The City may participate in several ways. First, the City could pay $250 and
join with the law firm of Varnum, Riddering, Schmidt & Howletter in submitting comments to the
FCC. This law firm is the one listed in the LMC Cities Bulletin (see attachment). Secondly, the
City could submit comments on their own to the FCC. Given the complexity of these issues and
the formal procedures established by the FCC for submitting comments, staff recommends that we
participate with other communities in submitting comments through the law firm of Varnum,
Riddering, Schmidt & Howletter.
Attachments
1. LMC Cities Bulletin dated October 8, 1997
2. FCC Notice of Proposed Rule Making released August 19, 1997
3. LSGAC Advisory Recommendation Number 5 concerning Radio Frequency Emissions
4. LSGAC Advisory Recommendation Number 3 concerning Radio and TV Facilities
5. Memorandum from John Pestle and Patrick Miles, Varnum, Riddering, Schmidt & Howlett
regarding FCC preemption of local zoning
6. List of LSGAC committee members
League o`M nnecota i.'ities
Cifies promoting exee%nce
Number 30
Iletin
October 8, 1997
FCC threatens to pre-empt local zoning over
radio, TV towers, and cellular towers
Ann Higgins
In late August, the Federal Com-
munications Commission (FCC) issued
two proposed rulemakings that would
override local zoning authority for the
placement of radio, TV, and cellular
tower sites. Cities are being asked to
contribute to development of comments
and reply comments to be filed on be-
half of local government from several
states opposing the FCC proposals. The
first deadline for comments is this
week.
The League has received a memo-
randum from Varnum, Riddering,
Schmidt & Howletter, LLP, in Grand
Rapids, Mich., requesting cities and
other local units of government partici-
pate in and contribute toward the cost
of preparing and submitting comments
and reply comments in these cases. The
law firm is preparing to file on behalf
of local government units in several
states. Participating cities (which con-
tribute $250) will receive a set of com-
ments and reply comments as they are
filed. If your city is interested in par-
ticipating, call John Pestle or Pat Miles
at (616) 336-6000, or fax your response
to the attention of Nikki Klunge at
616) 336-7000. In your response, indi-
cate that your city wants to participate
in the FCC comment process in these
proceedings and agrees to contribute
250 upon the filing of the first set of
comments and reply comments.
Broadcast towers
The FCC has proposed that cities
be required _to act on all zoning, build-
ing permit, and other requests for radio
and TV station tower siting within 21
to 45 days regardless of local notice re-
quirements, hearing procedures, or ap-
peal periods. The proposed rule would
make failure to act within the given
time frame automatic approval of the
request. The FCC argues this pre-emp-
tion is necessary to support construc-
tion of new digital TV towers. Cities
would only be able to deny approval of
zoning or permit request for clearly
stated safety reasons. No denial or con-
ditional approval would be allowed for
reasons of aesthetics, impact on prop-
erty values, historical site designation,
or other criteria. Cities would have to
prove that local zoning or building
codes are reasonable in view of federal
interest in having radio and TV sta-
tions in operation and in fair competi-
tion among electronic media. The FCC
would handle all local zoning appeals
and other decisions related to radio and
TV tower placement.
Local officials expressed concern
about the structural size of the new
digital TV towers. Proposed time lim-
its for city action are unrealistic and do
not comply with existing state law or
local zoning procedures regarding due
process. Safety restrictions could also
be overridden for non -safety federal in-
terests. Finally, the proposed rule
clearly violates principles of federal-
ism that recognize zoning as a local
concern and province of authority.
Comments on this proceeding are
due October 30, with reply comments
due December 1.
Cellular towers
The FCC has proposed to review
and reverse any local zoning deci-
sion tainted by citizen concerns over
radio frequency (RF) emissions. Cel-
lular companies could appeal any
zoning decision they believe is based
on concerns regarding RF emissions.
Companies could instigate such ap-
peals even from the point at which
an initial decision by a zoning or
planning commission occurs. Any
evidence demonstrating that con-
cerns over RF emissions were even a
partial basis for a zoning decision or
failure to act would be sufficient to
cause the FCC to reverse the local
zoning decision. In addition, the pro-
posed rule would allow the FCC to
intervene in court appeals of local
actions to provide expert opinion on
such cases brought by providers.
The proposed rules also suggest
the FCC would bar cities from re-
quiring cellular phone companies to
conduct RF emissions measure-
ments. The FCC acknowledges that
it does not regularly, if at all, con-
duct RF emission measurements for
some classes of towers, but the pro-
posed rule would keep cities from re-
quiring providers to do so.
Comments on this proceeding
are due October 9, with reply com-
ments due October 24. r
FCC 97-296, MM Docket No. 97-182
Text Version I WordPerfect Version I Acrobat Version - 18 pages, 74 KB
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554
In the Matter of
Preemption of State and Local Zoning and )
Land Use Restrictions on the Siting,
Placement and Construction of Broadcast )
Station Transmission Facilities
Page 1 of 11
FCC 97-296
MM Docket No. 97-182
NOTICE OF PROPOSED RULE MAKING
Adopted: August 18, 1997 Released: August 19, 1997
Comment Date: October 30, 1997
Reply Comment Date: December 1, 1997
By the Commission:
I. Introduction
1. The Commission is undertaking this proceeding to consider whether and in what circumstances to preempt certain
state and local zoning and land use ordinances which present an obstacle to the rapid implementation of digital television
DTV") service. Such ordinances may also serve to unduly inhibit the resiting of antennas made necessary by the
implementation of DTV or stand as an obstacle to the institution and improvement of radio and television broadcast
service generally. This issue has been brought before the Commission in a "Petition for Further Notice of Proposed Rule
Making" filed jointly by the National Association of Broadcasters ("NAB") and the Association for Maximum Service
Television ("Petitioners").Ll) While that Petition raises a number of issues crucial to the successful roll-out of digital
television, it also raises a number of questions concerning the scope of any preemption of state and local laws and
ordinances and the need to exercise that authority.
II. Background
2. In our Fifth Report and Order in the DTV proceeding, we adopted an accelerated schedule for construction of DTV
transmission facilities to ensure the preservation of a universally available, free local broadcasting service and the swift
recovery of broadcast spectrum. Under the construction schedule set forth in the Fifth Report and Order, affiliates of the
top four networks in the top 10 markets are required to be on the air with digital signals by May 1, 1999. Affiliates of the
top four networks in markets 11 - 30 must be on the air by November 1, 1999. Under this schedule, more than half of all
television households will have access to multiple channels of digital broadcast television programming by November 1,
1999. All other commercial stations are required to construct their DTV facilities by May 1, 2002, and all
noncommercial stations must construct their DTV facilities by May 1, 2003.0 Subject to biennial review, and certain
statutory exceptions, the current target date for all stations' return of their analog spectrum is 2006.0
3. Petitioners state that this accelerated DTV transition schedule will require extensive and concentrated tower
construction. They estimate that 66 percent of existing television broadcasters will require new or upgraded towers to
support DTV service, involving an estimated 1000 television towers. Moreover, they state, as a result of the increased
weight and windloading of DTV facilities and other tower constraints, a number of FM broadcast stations which have
collocated their FM antennas on television towers will be forced to relocate to other existing towers or to construct new
transmission facilities.
http://www.fcc-gov/Bureaus/Mass—Media/Notices/I 997/fcc97296.html
ip
10/13/97
FCC 97-296, MM Docket No. 97-182 Page 2 of 11
4. In addition to the logistical problems of modifying and constructing a significant number of towers (e.g., scarcity ofconstructioncrews, weather delays, supply shortages), Petitioners state that there "is an array of obstacles arising fromstateandlocalregulationoftowersitingandconstruction" including environmental assessments, "fall radius,"
collocation and marking/lighting requirements, and concerns with interference to other electronic devices.S42 Petitioners
are particularly concerned with the delays resulting from the administration of such restrictions, noting that multiplelevelsofreviewcanlastforseveralmonths, and that when appeals are involved, the process can take several years.U5
5. In order to meet the Commission's DTV construction schedule, Petitioners ask the Commission to adopt a rule that
would permit the Commission to preempt state and local zoning and other land use regulations to the extent theyunreasonablyprohibitordelaytheDTVroll-out and other ongoing broadcast transmission facilities construction. Theyargue -that the Commission has the legal authority to engage in such preemption where it is pursuing an objective withinthescopeofitsCongressionallydelegatedauthorityandnon-federal regulation stands as an obstacle to the
accomplishment and execution of that objective. Both criteria, Petitioners assert, are present in the instant matter.
6. Petitioners propose a rule which provides specific time limits for state and local government action in response torequestsforapprovaloftheplacement; construction or modification of broadcast transmission facilities. The ruleproposedbythePetitioners, attached as Appendix B, would require action within 21 days with respect to requests tomodifyexistingbroadcasttransmissionfacilitieswherenochangeinlocationoroverallheightisproposedorto
strengthen or replace an existing broadcast transmission facility. Action would be required within 30 days with respect to
requests to relocate existing broadcast transmission facilities from a currently approved location to another location
within 300 feet, to consolidate two or more broadcast transmission facilities at a common tower or other structure or to
increase the height of an existing tower. All other requests would have to be acted upon within 45 days.(6) Failure to actwithinthesetimelimitswouldcausetherequesttobedeemedgranted.
7. Additionally, the requested rule would remove from local consideration certain types of restrictions on the siting andconstructionoftransmissionfacilities. Petitioners would categorically preempt regulations based on the. environmental or
health effects of radio frequency ("RF") emissions to the extent a broadcast facility has been determined by theCommissiontocomplywithitsregulationsandpoliciesconcerningemissions; interference with other
telecommunications signals and consumer electronics devices as long as the broadcast antenna facility has beendeterminedbytheCommissiontocomplywithitsapplicableregulationsand/or policies concerning interference; andtowermarkingandlightingrequirementsprovidedthatthefacilityhasbeendeterminedbytheCommissionorthe
Federal Aviation Administration to comply with applicable tower lighting, painting and marking regulations or policies.
8. Further, the rule would preempt all state and local land use, building, and similar laws, rules or regulations that impair
the ability of licensed broadcasters to place, construct or modify their transmission facilities unless the promulgatingauthoritycandemonstratethattheregulationisreasonableinrelationtoaclearlydefinedandexpresslystatedhealth orsafetyobjectiveotherthanthecategoricalpreemptionsdescribedabove.
9. To provide for expeditious review, the Petitioners' proposed rule requires that any state or local government decision
denying a request be in writing, supported by substantial evidence, and delivered to all applicants within 5 days.0 Anybroadcasteradverselyaffectedbyanysuchactioncould, within 30 days of the decision, petition the Commission for a
declaratory ruling on which the Commission, in turn, would have 30 days in which to act.M The rule would alsoauthorizetheCommissiontoadministerdisputeresolution.
III. Discussion
10. In the Fifth Report and Order, we found that an accelerated roll-out of digital television was essential for four
reasons. We found that absent a speedy roll-out, other digital television services might achieve levels of penetration that
could preclude the success of over -the -air digital television, leaving viewers without a free, universally available digital
programming serviceM Second, we determined that a rapid construction period would promote DTV's competitive
strength internationally, spurring the American economy in terms of manufacturing, trade, technological development,
international investment, and job growth. to Third, we stated that "an aggressive construction schedule helps to offset
possible disincentives that any individual broadcaster may have to begin digital transmissions quickly."2 Finally, wefoundthatarapidbuild -out would work to ensure that the recovery of broadcast spectrum occurs as quickly as possible. i?2 This will enable the federal government to reallocate some of the recovered spectrum for public safety purposes, andtoeventuallyauctiontherest. 13
11. To achieve these purposes, we instituted an "aggressive but reasonable" construction schedule, aimed at exposing asmanyhomestoDTVasearlyaspossible. 14 In the Fifth Report and Order, we noted that circumstances beyond a
broadcaster's control, such as difficulties in obtaining zoning and other approvals, may interfere with its ability to meet
construction schedule requirements. 15 We are, however, also sensitive to the important state and local roles in zoningandlandusemattersandtheirlongstandinginterestintheprotectionandwelfareoftheircitizenry. Given thecountervailingimportanceofacceleratedconstructionofDTVtransmissionfacilities, however, we seek to define those
circumstances in which it may be necessary to preempt state and local regulations in order to achieve the benefits of a
http://www.fcc.gov/Bureaus/Mass_Media/Notices/1997/fcc97296.htm1 10/13/97
FCC 97-296, MM Docket No. 97-182
rapid roll-out of DTV.
Page 3 of 11
12. As a preliminary matter, we note that it is well settled that the Communications Act of 1934, as amendedCommunicationsAct"), comprehensively provides for regulation of radio frequency interference and that the FCC has
exclusive jurisdiction to resolve such questions. 16 With regard to interference affecting home consumer equipment inparticular, Congress plainly stated in the 1982 amendments to the Communications Act that it intended federal
regulation to completely occupy the field to the exclusion of local and state governments. 17 Thus, a rule preemptingstateandlocalzoningregulationsbasedonelectromagneticinterferencewouldsimplycodifytheexistingstateofthelaw. With respect to other aspects of the proposed rule --- preemption of state and local zoning restrictions based on
environmental or health effects of RF emissions, tower lighting, painting and marking, and health, safety and traditionallandusepowers -- we have authority to preempt where state or local law, among other things, stands as an obstacle to
the accomplishment and execution of the full objectives of Congress 18 or where we find preemption is "necessary toachieve [our] purposes" within the scope of our delegated authority. 19
13. Congress explicitly indicated its objective of a speedy recovery of spectrum in Section 336(c) of the 1996
Telecommunications Act, "Recovery of License."(20) That section requires that the Commission establish as a condition
of granting a DTV license the return of either that license or the original license held by the licensee "for reallocation or
reassignment (or both) pursuant to Commission regulation." As indicated above, the Commission found that a speedyconversionwouldenhancethelikelihoodofsuccessfortheDTVroll-out and allow for the rapid recovery of spectrum. The Commission determined that a lethargic conversion would, to the contrary, undermine the potential for a successful
conversion and thereby undermine the potential for such a recovery, as sought by Congress. The Commission also
determined that the prompt, broad availability of DTV to the American public was an important public interest goal. 21
14. Delays in local zoning and land use decisions would hold up the construction of an essential part of the DTV
transmission system and make it impossible for a licensee to satisfy the construction requirement to transmit "a DTV
signal strong enough to encompass the community of license," by the required deadline.(22) This could leave
broadcasters unable to "give a great number of viewers access to a DTV signal in a very short period."(23) To the extent
that state and local ordinances result in delays that make it impossible for broadcasters to meet our construction schedule
and provide DTV service to the public, important Congressional and FCC objectives regarding prompt availability ofthisservicetothepublicandpromptrecoveryofspectrumwouldbefrustrated.
15. At the same time, we are sensitive to the rights of states and localities to protect the legitimate interests of their
citizens and we do not seek to unnecessarily infringe these rights. The Commission recognizes its obligation to "reach a
fair accommodation between federal and nonfederal interests." 24 Thus, it is incumbent upon the Commission not to
unduly interfere with the legitimate affairs of local governments when they do not frustrate federal objectives. "25)
These include not only certain health and safety regulations, which the Petitioners' proposed rule recognizes, but also the
right of localities to maintain their aesthetic qualities. Indeed, historically we have sought to avoid becomingunnecessarilyinvolvedinlocalzoningdisputesregardingtowerplacement. Nevertheless, we have adopted rules
preempting local zoning ordinances where the record established that such ordinances were inhibiting theimplementationofCongressionalorFCCobjectives, including with regard to locating satellite "dish" antennas and
amateur radio towers.)
16. The Petitioners' proposed rule would cover siting of all broadcast transmission facilities construction. That is,
petitioners have not limited their preemption rule to DTV -related construction, including the involuntary relocation ofFMantennasnowcollocatedontelevisiontowers. It is less clear that preemption will be needed where broadcasters do
not face exigencies such as DTV construction deadlines. There are now over 12,000 radio and 1,500 television station
licenses outstanding, totals which suggest that generally compliance with state and federal laws relating to broadcast
station construction and operation has been possible and that state regulation has not been an insuperable obstacle to the
exercise of the Commission's "powers to promote and realize the vast potentialities of radio." 28 In these circumstances,
we seek information on whether any preemption rule should be limited to DTV construction and to radio station
transmission facility relocations resulting from such construction. 29 We also seek additional information on Petitioners'
assertion that local zoning regulation "stands as an obstacle to the implementation of the DTV conversion and to the
institution and improvement of broadcast service generally."(30)
IV. Request for Comments
17. In order to determine whether preemption is necessary and desirable and the scope of any preemption rule, we seek
comment on a number of issues. This will enable the Commission to determine whether and how extensively it shouldexerciseitsauthoritytopreemptstateandlocalzoningandlanduselawsandordinances.
18. As an initial matter, we generally invite comment on the Petitioners' proposals for the preemption of state and local
laws, regulations and restrictions on the siting of broadcast transmission facilities. We seek comment on the Petitioners'
proposed preemption rule. Alternatively, we request comment on whether any rule we adopt should focus on actions
state and local governments would be preempted from taking or what state or local authority would be preempted by
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failure to act within a specified time period.(31)
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19. We seek a detailed record of the nature and scope of broadcast tower siting issues, including delays and relatedmattersencounteredbybroadcasters, tower owners and local government officials. Although Petitioners provide
anecdotal evidence regarding difficulties encountered by several broadcasters in attempting to meet local ordinances inconnectionwithtowersitingandconstruction, we have no basis on which to determine the extent to which suchdifficultiesarerepresentativeofradioandtelevisionbroadcastindustrytowersitingexperiencesgenerally. So that wemighthaveafactualbasisuponwhichtodeterminethenatureandextentoftheproblem, we ask commenters to provideuswithinformationontheirexperiences, both positive and negative, with state and local zoning and land use approvals, and with the application of other laws and ordinances in connection with their efforts to site, construct and operate radioandtelevisiontransmissiontowers. Particularly relevant would be comments on the duration of local permittingprocessestiedtosuchlawsandordinances. We are also particularly interested in receiving information about
experiences related to obstacles and time constraints or delays encountered by broadcasters and tower owners in the top30markets -(L2)
20. We are especially interested in the extent to which commenters believe any such difficulties are representative ofdifficultiesthatarenowbeingfacedorwillbefacedinthecontextofDTVbuild -out. Also, we request comments onwhetherexistinglaws, ordinances and procedures are likely to impede adherence to our accelerated DTV build -outschedule.
21. We seek comment on the scope of the preemption proposed by Petitioners, on the range of facilities to which the rule
should apply and on the state and local laws, regulations, and other restrictions which federal law might preempt. Shouldwepreemptlocalregulationforallbroadcastfacilities? Should the preemption be limited to construction of DTVtransmissionfacilitiesandtherelocationofthoseFMradiofacilitiesdisplacedbyDTV? Should the preemption belimitedtothetopmarketsinwhichtheDTVroll-out schedule is more aggressive?
22. Should the Commission preempt state and local restrictions regarding exposure to RF emissions from broadcast
transmission facilities? Are there other circumstances in which it is appropriate for the Commission to preempt state andlocalregulationofthesitingorconstructionoftransmissionfacilities? Should federal regulation preempt local regulationintendedforaestheticpurposes?
23. We seek comment on the procedural framework proposed by Petitioners. Are the time frames proposed byPetitionersreasonable? Specifically, should we preempt state and local government authority where they fail to actwithincertaintimeperiods? If so, what should be those time periods? Is 45 days appropriate, or would 90 days be morerealisticforbroadcasttowerapplications? Can the DTV construction schedule in the Fifth Report and Order be
reconciled with the procedures of states and localities? In the event that we preempt as to procedural aspects of zoningandlanduseregulation, what constraints, if any, are there on the ability of state and local governments to meet the
expedited procedures sought by Petitioners? We specifically ask states and localities to comment on their current
procedures, their need to use these procedures, the possibility of using expedited procedures to assure our DTV
construction schedule is met, and the nature of such expedited procedures. Is there an appropriate role for the
Commission in resolving disputes between localities and licensees with respect to tower siting issues? What is the natureofthatrole -- arbitrator, mediator or simply the provider of a forum to which parties can turn for suggestions on
resolving local disputes? Is outside arbitration, administered by the Commission, an appropriate forum for alternativedisputeresolution?
24. We note that we recently received an Advisory Recommendation on the Petitioner's proposal from the Commission's
Local and State Government Advisory Committee.(! -32 This recommendation will be incorporated into the public record
of this proceeding, and we will consider the issues raised by the Committee in this and any future filing.
V. Administrative Matters
25. Comments and Reply Comments. Pursuant to applicable procedures set forth in Sections 1.415 and 1.419 of theCommission's Rules, 47 C.F.R. §§ 1.415 and 1.419, interested parties may file comments on or before October 30, 1997,
and reply comments on or before December 1, 1997. To file formally in this proceeding, you must file an original plusfourcopiesofallcomments, reply comments, and supporting comments. If you want each Commissioner to receive a
copy of your comments, you must file an original plus nine copies. You should send comments and reply comments toOfficeoftheSecretary, Federal Communications Commission, Washington, D.C. 20554. Comments and reply . comments will be available for public inspection during regular business hours in the FCC Reference Center (Room239), 1919 M Street, N.W., Washington, D.C. 20554.
26. Initial Paperwork Reduction Act of 1995 Analysis. We have not proposed in this proceeding any proposed ormodifiedinformationcollectionrequirement.
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27. Ex Parte Rules. This is a non -restricted notice and comment rule making proceeding. Ex parte presentations arepermitted, except during the Sunshine Agenda period, provided they are disclosed as provided in the Commission Rules. See enerally 47 C.F.R Sections 1. 1202, 1.1203, and 1.1206(a).
28. Initial Regulatory Flexibility Analysis. With respect to this Notice, an Initial Regulatory Flexibility AnalysisIRFA") is contained in Appendix A. As required by Section 603 of the Regulatory Flexibility Act, the Commission haspreparedanIRFAoftheexpectedimpactonsmallentitiesoftheproposalscontainedinthisNotice. Written public
comments are requested on the IRFA. In order to fulfill the mandate of the Contract with America Advancement Act of1996regardingtheFinalRegulatoryFlexibilityAnalysis, we ask a number of questions in our IRFA regarding theprevalenceofsmallbusinessesintheindustriescoveredbythisNotice. Comments on the IRFA must be filed in
accordance with the same filing deadlines as comments on the Notice, but they must have a distinct heading designatingthemasresponsestotheIRFA. The Secretary shall send a copy of this Notice, including the IRFA, to the Chief CounselforAdvocacyoftheSmallBusinessAdministrationinaccordancewithSection603(a) of the Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. § 601 et seq. (1981), as amended.
29. Authority. This Notice is issued pursuant to authority contained in Sections 4(i), 303, and 336 of theCommunicationsActof1934, as amended, 47 U.S.C. §§ 154(i), 303, 307 and 336.
30. Additional Information. For additional information on this proceeding, please contact Keith Larson, Assistant BureauChiefforEngineeringorSusannaZwerling, Policy and Rules Division, Mass Media Bureau (202) 418-2140.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
Acting Secretary
APPENDIX A
Initial Regulatory Flexibility Analysis
As required by Section 603 of the Regulatory Flexibility Act ("RFA"), 5 U.S.C. § 603, the Commission is incorporatinganInitialRegulatoryFlexibilityAnalysis (IRFA) of the expected impact on small entities of the policies and proposals inthisNoticeofProposedRuleMaking ("Notice"). Written public comments concerning the effect of the proposals in the
Notice, including the IRFA, on small businesses are requested. Comments must be identified as responses to the IRFA
and must be filed by the deadlines for the submission of comments in this proceeding. The Secretary shall send a copy ofthisNotice, including the IRA, to the Chief Counsel for Advocacy of the Small Business Administration in accordance
with paragraph 603(a) of the Regulatory Flexibility Act. 34
Reasons Why Agency Action is Being Considered: In its Fifth Report and Order in its digital television proceedingMMDocketNo. 87-268) the Commission adopted an accelerated roll-out schedule for digital television stations. That
schedule requires the top four network affiliates in the top ten television markets to construct their digital television
facility and begin emitting signals by May 1, 1999. Affiliates of these four networks in markets 11 - 30 must be on the
air by November 1, 1999. All other commercial stations will have to construct their DTV facilities by May 1, 2002, and
noncommercial stations by May 1, 2003. The Commission found this accelerated schedule necessary to promote the
success of DTV and allow for spectrum recovery, a goal shared by Congress. In a rule making petition filed by theNationalAssociationofBroadcastersandtheAssociationofMaximumServiceTelevisionthePetitionersclaimthat state
and local zoning and land use laws, ordinances, and procedures may have a delaying effect on the siting, placement and
construction of new television towers that will be needed for DTV. Additionally, they contend, the antennas of many FMradiostationswillneedtobedisplacedfromexistingtowerstoenablethemtosupportnewDTVantennaarraysand
these FM stations will have to build new towers to enable them to continue to serve the public. Accordingly, they ask theCommissiontoadoptarulepreemptingstateandlocallaws, ordinances and procedures that could work to delay theinaugurationofDTVservice. The Commission believes the prompt deployment of DTV is essential to several goals, and
that compliance with such local requirements may, at least in some cases, both make compliance with both these
procedures and the roll-out schedule impossible. Additionally, it believes that some of these state and local regulations
may stand as obstacles to the accomplishment of the rapid transition to DTV service and the spectrum recovery that itwillpermit. This recovery is also an important congressional purpose as evidenced by its 1996 adoption of 47 U.S.C. § 336.
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Need For and Objectives of the Proposed Rule Changes: Petitioners have demonstrated that at least some state andlocalzoningandlanduselaws, ordinances and procedures may, unless preempted by the Commission, prevent televisionbroadcastersfrommeetingtheconstructionscheduleforDTVstationsestablishedbytheCommission, retarding therecoveryoffrequencyspectrumbythegovernmentforreallotmentanddelayingdigitalservicetothepublic.
Additionally, in some cases they may result in discontinuation of FM radio service to the public should displaced FMantennasbeunabletorelocatetonewantennatowers.
Legal Basis: Authority for the actions proposed in this Notice may be found in Sections 4(i), 303(r), and 336 of theCommunicationsActof1934, as amended, 47 U.S.C. §§ 154(i), 303(r), and 336.
Recording, Recordkeeping, and Other Compliance Requirements: The Commission is not proposing any new ormodifiedrecordkeepingorinformationcollectionrequirementsinthisproceeding.
Federal Rules that Overlap, Duplicate, or Conflict with the Proposed Rules: The initiatives and proposed rules
raised in this proceeding do not overlap, duplicate or conflict with any other rules.
Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply: Under theRFA, small entities may include small organizations, small businesses, and small governmental jurisdictions. 5 U.S.C. § 601(6). The RFA, 5 U.S.C. § 601(3), generally defines the term "small business" as having the same meaning as the termsmallbusinessconcern" under the Small Business Act, 15 U.S.C. § 632. A small business concern is one which: (1) is
independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteriaestablishedbytheSmallBusinessAdministration ("SBA"). Pursuant to 5 U.S.C. § 601(3), the statutory definition of asmallbusinessapplies "unless an agency after consultation with the Office of Advocacy of the SBA and after
opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities
of the agency and publishes such definition(s) in the Federal Register."(35)
The proposed rules and policies will apply to television broadcasting licensees, radio broadcasting licensees and
potential licensees of either service. The Small Business Administration defines a television broadcasting station that has
no more than $10.5 million in annual receipts as a small business. 36 Television broadcasting stations consist of
establishments primarily engaged in broadcasting visual programs by television to the public, except cable and other paytelevisionservices.) Included in this industry are commercial, religious, educational, and other television stations.
Also included are establishments primarily engaged in television broadcasting and which produce taped television
program materials. 39 Separate establishments primarily engaged in producing taped television program materials are
classified under another SIC number.S. There were 1,509 television stations operating in the nation in 1992. 41 That
number has remained fairly constant as indicated by the approximately 1,558 operating television broadcasting stationsinthenationasofMay31, 1997. 42 For 199 43 the number of television stations that produced less than $10.0 million
in revenue was 1,155 establishments. 44
Additionally, the Small Business Administration defines a radio broadcasting station that has no more than $5 million in
annual receipts as a small business. 45 A radio broadcasting station is an establishment primarily engaged in
broadcasting aural programs by radio to the public. 46 Included in this industry are commercial religious, educational,
and other radio stations. Radio broadcasting stations which primarily are engaged in radio broadcasting and which
produce radio program materials are similarly included.(48) However, radio stations which are separate establishments
and are primarily engaged in producing radio program material are classified under another SIC number. 49 The 1992
Census indicates that 96 percent (5,861 of 6,127) radio station establishments produced less than $5 million in revenue
in 1992.0 Official Commission records indicate that 11,334 individual radio stations were operating in 1992. 51 As ofMay31, 1997, official Commission records indicate that 12,156 radio stations were operating, of which 7,342 were FMstations. 52
Thus, the proposed rules will affect many of the approximately 1,558 television stations; approximately 1,200 of those
stations are considered small businesses. 53 Additionally, the proposed rules will affect some of the 12,156 radio
stations, approximately 11,670 of which are small businesses. 54 These estimates may overstate the number of small
entities since the revenue figures on which they are based do not include or aggregate revenues from non -television or
non -radio affiliated companies. `
In addition to owners of operating radio and television stations, any entity who seeks or desires to obtain a television or
radio broadcast license may be affected by the proposals contained in this item. The number of entities that may seek toobtainatelevisionorradiobroadcastlicenseisunknown. We invite comment as to such number.
Any Significant Alternatives Minimizing the Impact on Small Entities and Consistent with the Stated Objectives:
This Notice solicits comment on a variety of alternatives discussed herein. Any significant alternatives presented in the
comments will be considered. The Commission believes that the proposed rules and policies may be necessary topromotethespeedydeploymentofdigitaltelevisionserviceandthepromptrecoveryofbroadcastfrequencyspectrum
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for reallotment. We seek comment on this belief.
Report to Small Business Administration: The Commission shall send a copy of this Initial Regulatory FlexibilityAnalysisalongwiththisNoticetotheSmallBusinessAdministrationpursuanttotheRFA5U.S.C. § 603(a). A copy ofthisIRFAwillalsobepublishedintheFederalRegister.
APPENDIX B
Petitioners' Proposed Preemption Rule
In order to facilitate the rapid deployment of Digital Television ("DTV") services, as authorized by the Commission inMMDocketNo. 87-268, and in recognition of the need to facilitate the siting and construction of broadcast transmissionfacilitiesgenerally, the following procedures and rules shall apply to the siting of new broadcast transmission facilities orthealterationorrelocationofexistingbroadcasttransmissionfacilitiesbytelevisionandradiostationswhoseoperationshavebeenauthorizedbytheCommission.
a) Siting Procedures. A State or local government or instrumentality thereof shall act on any request for authorization toplace, construct, or modify broadcast transmission facilities within a reasonable period of time after a written request isfiledwithsuchgovernmentorinstrumentalityforanyrequiredpermitorotherauthorization. For purposes of thissubsection, a "reasonable period of time" shall mean:
1) within twenty-one (2 1) days, with respect to requests to (i) modify existing broadcast transmission facilities where nochangeinlocationoroverallheightisproposed,- and (ii) strengthen or replace an existing broadcast transmission facility;
2) within thirty (30) days, with respect to requests to (i) relocate existing broadcast transmission facilities from acurrentlyapprovedlocationtoanotherlocationwithin300feet; (ii) consolidate two or more broadcast transmissionfacilitiesonacommontowerotherstructure, whether the tower or other structure is pre-existing or new; or (iii)increasetheheightofanexistingtower;
3) in all other cases, within forty-five (45) days.
The failure of a state or local government or instrumentality thereof to act on any request within a reasonable period oftimewillresultintherequestbeingdeemedgranted.
b) Preemption.
1) No state or local government or instrumentality thereof may deny a request to place, construct or modify a broadcastantennafacilityonthebasisof:
i) the environmental or health effects of radio frequency emissions to the extent that such facility has been determinedbytheCommissiontocomplywiththeCommission's regulations and/or policies concerning such emissions;
ii) interference effects on existing or potential telecommunications providers, end users, broadcasters or third parties, totheextentthatthebroadcastantennafacilityhasbeendeterminedbytheCommissiontocomplywithapplicableCommissionregulationsand/or policies concerning interference;
iii) lighting, painting, and marking requirements, to the extent that the facility has been determined by the FederalAviationAdministration ("FAA") or the Commission to comply with applicable FAA and Commission regulations
and/or policies regarding tower lighting, painting and marking;
2) Any state or local land -use, building, or similar law, rule or regulation that impairs the ability of federally authorizedradioortelevisionoperatorstoplace, construct or modify broadcast transmission facilities, is preempted unless thepromulgatingauthoritycandemonstratethatsuchregulationisreasonableinrelationto:
i) a clearly defined and expressly stated health or safety objective other
than one related to those set forth in Section (1)(i) -(iii) above; and
ii) the federal interests in (i) allowing federally authorized broadcast operators to construct broadcast transmissionfacilitiesinordertorendertheirservicetothepublic; and (ii) fair and effective competition among competing electronicmedia. -
c) Written decision. Any decision by a State or local government or instrumentality thereof to deny a request to place,
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construct, or modify a broadcast antenna facility shall be in writing and supported by substantial evidence contained in awrittenrecord. Such written decisions shall be delivered to all applicants within five (5) days.
d) Alternative Dispute Resolution. In the event that an applicant is denied approval to place, construct, or modify abroadcastantennafacility, the applicant may elect to have its request submitted to an alternate dispute resolution processwhichshallbeadministeredbytheCommission. An Applicant whose request has been denied may elect arbitration byfilingawrittennoticeofelection, including a copy of the written decision of the state or local government orinstrumentalitythereof, with the Commission within ten (10) days of receipt of the decision of the state or localgovernmentorinstrumentalitythereof. The Commission shall select an arbitrator to hear and resolve the dispute withinfive (5) days of receipt of the notice. The Commission shall conduct and complete the arbitration within fifteen (15) daysofreceiptoftheapplicants' written request for arbitration. If it is determined that the decision of the state or localgovernmentorinstrumentalitythereofisunsupportedbytheevidenceintherecordandwould, if allowed to stand, frustrate the federal interests set forth above in paragraph (b)(2)(ii), the Commission shall issue an order vacating thedecisionofthestateorlocalgovernmentorinstrumentalitythereofandgrantingtheapplicant's request to place, construct, or modify its broadcast antenna facility.
e) Declaratory Relief. Any radio or television operator adversely affected by any final action or failure to act by a Stateorlocalgovernmentoranyinstrumentalitythereofthatisinconsistentwiththisrulemay, within 30 days after suchactionorfailuretoact, petition the Commission for a declaratory ruling requesting relief. The Commission shall act onsuchpetitionswithinthirty (30) days
f) Defmitions. For purpose of this section:
i) "Broadcast transmission facilities" shall mean towers, broadcast antennas, associated buildings, and all equipmentcablesandhardwareusedforthepurposeoforinconnectionwithfederallyauthorizedradioortelevisionbroadcasttransmissions.
ii) "Broadcast operator" shall mean a person, firm, corporation or other form of business organization which has beenissuedaconstructionpermit, license, experimental authorization, special temporary authorization, or other authorityfromtheFederalCommunicationsCommission.
1. This petition was filed in the Commission's Digital Television proceeding Fifth Report and Order in MM Docket No. 87-268, FCC 97-116 (April 22, 1997)("Fifth Report and Order"), 62 F.R. 26996 (May 16, 1997). The Commission will, however, treat the Petition as one filed pursuant to 47 C.F.R. § 1.401 seeking the institution of a new rule makingproceeding.
2. Fifth Report and Order, supra at 176. Twenty-four television stations have voluntarily agreed to an 18 -monthschedulefortheconstructionoftheirDTVfacilities.
3. Fifth Report and Order, supra at 1199, 100. See Also Balanced Budget Act of 1997 ("BBA"), Pub. L. 105-33, 111Stat. 251 (1997) (codified at 47 U.S.C. § 3090(14)(A)-(B))(establishing statutory target date for return of the analogspectrumandsettingoutexceptionstothatdeadline).
4. Petition at pages 7-15.
5. The Petition describes several instances in which local zoning regulations and related appeals have resulted in lengthydelaysintheconstructionofbroadcastfacilities. Id. at pages 10-15.
6. Congress addressed the overlap between state and local and federal regulatory authority over tower siting in thecontextofpersonalwirelessservicesfacilitiesintheTelecommunicationsActof1996, P.L. No. 104-104, 110 Stat 561996), codified at 47 U.S.C. § 151 et seq. ("1996 Telecommunications Act"). The statute does not, however, set out aspecifictimeframewithinwhichastateorlocalgovernmentmustactonarequest, rather, it requires that the state orlocalauthorityactwithinareasonabletime. 47 U.S.C. § 332(c)(7)(B)(ii) ("A State or local government orinstrumentalitythereofshallactonanyrequestforauthorizationtoplace, construct, or modify personal wireless servicefacilitieswithinareasonableperiodoftimeaftertherequestisdulyfiledwithsuchgovernmentorinstrumentality, taking into account the nature and scope of such request.")
7. This portion of the proposed rule generally tracks the procedures by which a state or local authority may deny arequesttoconstructpersonalwirelessservicesfacilitiesasoutlinedinthe1996TelecommunicationsAct. 47 U.S.C. § 332(c)(7)(B)(iii) ("Any decision by a state or local government or any instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidencecontainedinawrittenrecord.")
8. While the 1996 Telecommunications Act contains procedures for the appeal of a State or local government decision in
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the context of the construction and placement of personal wireless service facilities, these procedures differ from theproceduresproposedbythePetitioners. 47 U.S.C. § 332(c)(7)(B)(v) ("Any person adversely affected by any final actionorfailuretoactbyastateorlocalgovernmentoranyinstrumentalitythereofthatisinconsistentwiththissubparagraphmay, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. Thecourtshallhearanddecidesuchactiononanexpeditedbasis. Any person adversely affected by an act or failure to actbyaStateorlocalgovernmentoranyinstrumentalitythereofthatisinconsistentwithclause (iv) may petition theCommissionforrelief.")
9. Fifth Report and Order, supra at 180.
10. Id. at q 81.
11. Id. at ¶ 82.
12. Id. at 183.
13. See Notice of Proposed Rule Making in ET Docket No, 97-157, FCC 97-245, Reallocation of Television Channels60-69, the 746-806 MHz Band (July 9, 1997). See Also BBA, supra note 3, (codified at 47 U.S.C. § 337) (providing fortheallocationof24megahertzofreturnedspectrumtobeallocatedforpublicsafetyservicesand36megahertzofthatspectrumtobeauctionedforcommercialuse)
14. Fifth Report and Order, supra at 112, 7.
15. Id. at 177.
16.16 See e.g., 47 U.S.C. §§ 152(a), 301, 303(c), (d), (e), and especially (f); Head v. New Mexico Board of ExaminersinOptometry, 374 U.S. 424, 430 n.6 (1963)(the FCC's "jurisdiction over technical matters" associated with the
transmission of broadcast signals is clearly exclusive); 960 Radio, Inc., FCC 85-578 (released November 4,
1985)(preempts local zoning authority regulation of interference caused by an FM station); Mobilecom of New York, Inc., 2 FCC Rcd 5519 (Com. Car. Bur. 1987)
17-17 H.R. Report No. 765, 97th Cong. 2d Sess. 33 (1982), reprinted in 1982 U.S. Code Cong. & Ad. News 2277amendmenttoSection302(a) of Act)("The Conference substitute is further intended to clarify the reservation of
exclusive jurisdiction to the Federal Communications Commission over matters involving RFI. Such matters shall not be
regulated by local or state law, nor shall radio transmitting be subject to local or state regulation as part of any effort toresolveanRFIcomplaint.")
18. Hines v. Davidowitz, 312 U.S. 52, 68 (1941).
19. City of New York v. FCC, 486 U.S: 57, 63 (1988). See generally Louisiana Public Service Commission v. FCC, 476U.S. 355, 368-69 (1986) and cases cited therein.
20.47 U.S.C. § 336(c). See generally 47 U.S.C. § 151 (purpose of the Act includes "to make available, so far as
possible ... a rapid, efficient Nation-wide and world-wide radio communication service with adequate facilities"); 47U.S.C. § 157 ("It shall be the policy of the United States to encourage the provision of new technologies and services tothepublic.").
21. Fifth Report and Order, supra at 15.
22. Fifth Report and Order, supra at 19 1.
23. Id. at 176. See also id. at 1184-85 and 87.
24.24 Arecibo Radio Corporation, 101 FCC 2d 545, 550 (1985); see City of New York v. FCC, 486 U.S. 57, 64 (1988)
Commission exercise of preemption power must represent reasonable accommodation of conflicting policies.)
25.25 Notice of Proposed Rule Making, In the Matter of Preemption of Local Zoning Regulations of Receive -OnlySatelliteEarthStations, 100 FCC 2d 846, 853 (1985). See also Preemption of Local Zoning Regulations of SatelliteEarthStations, IB Docket No 95-59, 11 FCC Rcd 5809 (1996).
26.26 See Preemption of Local Zoning Regulations of Receive -Only Satellite Earth Stations, 100 FCC 2d 846 at 12 1;
Amendment of Part 73 of the Commission's Rules to More Effectively Resolve Broadcast Blanketing Interference, 11FCCRcd4750, 4754 (1996) (localities best situated to resolve local land use and related aesthetic questions).
27. E.g., Preemption of Local Zoning or Other Regulation of Receive -Only Satellite Earth Stations, CC Docket No.
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85-87, 59 RR 2d 1073 (Released Feb. 5, 1986); Federal Preemption of State and Local Regulations Pertaining toAmateurRadioFacilities, PRB -1 50 Fed. Reg. 38813 (Sept. 25, 1985).
28.28 National Broadcasting Company v. United States, 319 U.S. 190, 217 (1943).
29. But see paragraph 21, infra.
30. Petition at page 22.
31. See, L.L., 47 C.F.R. § 25.104.
32. The top thirty television markets, as ranked by Nielsen Media Research as of April 3, 1997 are: New York, LosAngeles, Chicago, Philadelphia, San Francisco, Boston, Washington, D.C., Dallas -Fort Worth, Detroit Atlanta, Houston, Seattle -Tacoma, Cleveland, Minneapolis -St. Paul, Tampa-St.Petersburg, Miami, Phoenix, Denver, Pittsburgh, Sacramento -Stockton, St. Louis, Orlando -Daytona Beach, Baltimore, Portland, OR, Indianapolis, San Diego, Hartford -New Haven, Charlotte, Raleigh-Durham, and Cincinnati.
33. Local and State Government Advisory Committee Recommendation No. 3, NAB Petition for Further Notice ofProposedRuleMaking, MM Docket 87-286, August 1, 1997.
34. 34 Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. § 601 et seq. (1981), as amended.
35. While we tentatively believe that the SBA's definition of "small business" greatly overstates the number of radio and
television broadcast stations that are small businesses and is not suitable for purposes of determining the impact of the
proposals on small television and radio stations, for purposes of this Notice, we utilize the SBA's definition in
determining the number of small businesses to which the proposed rules would apply, but we reserve the right to adopt amoresuitabledefinitionof "small business" as applied to radio and television broadcast stations or other entities subject
to the proposed rules in this Notice and to consider further the issue of the number of small entities that are radio andtelevisionbroadcastersorothersmallmediaentitiesinthefuture. See Report and Order in MM Docket No. 93-48Children's Television Programming), 11 FCC Rcd 10660, 10737-38 (1996), citing 5 U.S.C. § 601(3).
36. 13 C.F.R. § 121.201, Standard Industrial Code (SIC) 4833 (1996).
37. Economics and Statistics Administration, Bureau of Census, U.S. Department of Commerce, 1992 CENSUS OFTRANSPORTATION, COMMUNICATIONS AND UTILITIES, ESTABLISHMENT AND FIRM SIZE, Series UC92-S-1, Appendix A-91995).
38. Id. See Executive Office of the President, Office of Management and Budget, Standard Industrial ClassificationManual (1987), at 283, which describes "Television Broadcasting Stations (SIC Code 4833) as:
Establishments primarily engaged in broadcasting visual programs by television to the public, except cable and other paytelevisionservices. Included in this industry are commercial, religious, educational and other television stations. Alsoincludedhereareestablishmentsprimarilyengagedintelevisionbroadcastingandwhichproducetapedtelevisionprogrammaterials.
39. Economics and Statistics Administration, Bureau of Census, U.S. Department of Commerce, 1992 CENSUS OFTRANSPORTATION, COMMUNICATIONS AND UTILITIES, ESTABLISHMENT AND FIRM SIZE, Series UC92-S-1, Appendix A-91995).
40. Id. SIC 7812 (Motion Picture and Video Tape Production); SIC 7922 (Theatrical Producers and MiscellaneousTheatricalServices (producers of live radio and television programs).
41. FCC News Release No. 31327, Jan. 13, 1993; Economics and Statistics Administration, Bureau of Census, U.S. Department of Commerce, supra note 78, Appendix A-9.
42. FCC News Release "Broadcast Station Totals as of May 31, 1997.
43. Census for Communications' establishments are performed every five years ending with a "2" or "7". See EconomicsandStatisticsAdministration, Bureau of Census, U.S. Department of Commerce, supra note 78, III.
44. The amount of $10 million was used to estimate the number of small business establishments because the relevantCensuscategoriesstoppedat $9,999,999 and began at $10,000,000. No category for $10.5 million existed. Thus, thenumberisasaccurateasitispossibletocalculatewiththeavailableinformation.
45. 13 C.F.R. § 121.201, SIC 4832.
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46. Economics and Statistics Administration, Bureau of Census, U.S. Department of Commerce, supra note 78, Appendix A-9.
47. Id.
48. Id.
49. Id.
50. The Census Bureau counts radio stations located at the same facility as one establishment. Therefore, each co -locatedAM/FM combination counts as one establishment.
51. FCC News Release No. 31327, Jan. 13, 1993.
52. FCC News Release 'Broadcast Station Totals as of May 31, 1997."
53. We use the 77 percent figure of TV stations operating at less than $10 million for 1992 and apply it to the 1997 totalof1558TVstationstoarriveat1,200 stations categorized as small businesses.
54. We use the 96% figure of radio station establishments with less than $5 million revenue from the Census data andapplyittothe12,156 individual station count to arrive at 11,670 individual stations as small businesses.
http://www.fcc.govBureaus/Mass_Media/Notices/1997/fcc97296.html 10/13/97
1 ''_0
Advisory Recommendation Number 5 Page 1 of 1
FCC Local and State Government Advisory Committee
Advisory Recommendation Number 5
PCIA Letter Concerning Radio Frequency Emissions
1. On March 19, 1997, the Personal Communications Industry Association (PCIA) addressed a letter to the Wireless
Telecommunications Bureau suggesting a variety of methods for limiting local authority to ensure that personal wireless
services facilities comply with the Commission's radio frequency (RF) emission regulations. The PCIA urged the
Commission to act expeditiously by declaratory ruling instead of initiating a rulemaking proceeding. For the reasons
discussed below, The LSGAC recommends instead that the Commission work with state and local governments and the
industry to recommend a mutually acceptable RF testing and documentation protocol that may be adopted by state andlocalgovernments.
2. Section 332(c)(7) of the Communications Act provides that state and local governments may not regulate the
placement, construction and modification of personal wireless service facilities on the basis of the environmental effects
of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning suchemissions. The Telecommunications Act thus preserves the authority of state and local governments to ensure that
personal wireless service facilities comply with the Commission's RF emission regulations.
3. As the use of wireless services expands rapidly, local officials are repeatedly called upon to explain the primacy offederallawandfederalregulationsgoverningthehealtheffectsofRFemissions. When local officials explain that local
governments may not make siting decisions based on the health effects of RF emissions, so long as personal wireless
service facilities comply with federal RF regulations, it is natural for citizens to inquire, "How do we know that these
facilities DO comply with federal regulations?" Local officials must be able to assure their constituents that compliance
with the Commission's radio frequency emission regulations will be monitored.
4. The LSGAC understands that it is possible for facilities that have satisfied Commission design specifications to
nonetheless be operated in a manner that causes human exposure to RF emissions that exceed the Commission's
standards. LSGAC members have been informed that the Commission maintains very few field staff to perform emission
testing, and that there is no regular program for monitoring operational facilities for compliance with RF emission
standards. Unless the Commission intends to initiate a permanent, broad-based program to monitor the operation of all
personal wireless service facilities to ensure that they are operated in compliance with RF emission standards, state and
local governments must have authority to ensure such compliance.
5. Given the possibility that a facility may be operated in a manner that leads to human exposure to RF emissions in
excess of Commission standards, state and local governments may: 1) require companies to demonstrate that they are in
compliance with the Commission's RF emission regulations; 2) investigate complaints that facilities exceed the
Commission's RF emission regulations; and 3) undertake inspections to verify compliance with the Commission's RF
guidelines. Local taxpayers should not bear the costs of these investigations.
RECOMMENDATION: The Commission should reject the PCIA's request for action by declaratory ruling. Instead, the
Commission should work with state and local governments and the industry to establish a mutually acceptable RF testinganddocumentationmechanismthatprovidersmayusetodemonstratecompliancewiththeRFradiationguidelines, and
state and local governments may accept as demonstrating compliance with such guidelines.
Adopted by the LSGAC on June 27, 1997
htt]p://www.fcc.gov/statelocal/recommendation5.html
Kenneth S. Fellman
Chairman, LSGAC
10/23/97
Advisory Recommendation Number 3: Page 1 of 3
FCC Local and State Government Advisory Committee
Advisory Recommendation Number 3:
National Association of Broadcasters / Association for Maximum Service Television
Petition for Further Notice of Proposed Rulemaking
o.
1. The National Association of Broadcasters (NAB) and the Association for Maximum Service Television (AMST) havefiledaPetition ("the Petition") asking the Commission to adopt a rule providing for preemption of state and local laws
that affect the siting and construction of broadcast transmission facilities. Assuming, for the sake of argument, that the
Commission has authority to adopt the proposed rule, the rule far exceeds the scope of any problem the NAB and AMST
allege and is based on "facts" that are misleading. The LSGAC recognizes that the Commission has established a
rigorous timeline for rollout of advanced television. In light of this timeline, the LSGAC urges the Commission to
initiate a dialogue between the petitioners, the LSGAC and the Commission. If the Commission takes any formal action
in response to the Petition, the LSGAC urges the Commission to issue a Notice of Inquiry rather than a Notice of
Proposed Rulemaking.
2. The rule proposed by the NAB and AMST is modeled on Section 704 of the Telecommunications Act of 1996
regarding the placement of personal wireless service facilities (47 U.S.C. §332(c)(7), "Preservation of Local ZoningAuthority"). However, significant differences between personal wireless service facilities and broadcast transmission
facilities limit the usefulness of Section 704 as a model:
a. Unlike personal wireless service facilities, broadcast transmission facilities can be immense. In many
communities, the broadcast transmission facilities are the largest and most conspicuous structures for
many miles. For example, the LSGAC has been advised that some towers for advanced television will be
as high as 2000 feet. These will rival the height of Chicago's Sears Tower.
b. Because each individual facility serves only a small area, personal wireless service facilities must be
widely dispersed throughout a community. In contrast, broadcast transmission facilities are not likely to
be widely dispersed throughout a community. Rather, a single facility may serve many communities.
c. The number of personal wireless service facilities is expected to increase exponentially in the next
several years. Local siting policies must reflect this likelihood. In contrast, the number of broadcast
transmission facilities is not expected to increase at an exponential rate.
3. Just as there are significant differences between personal wireless services facilities and broadcast transmission
facilities, there are significant differences between Section 704 of the Telecommunications Act of 1996 and the proposed
NAB/AMST rule. Despite the absence of any specific legislative authority, the NAB/AMST has proposed a rule that
would have a dramatically broader preemptive effect than Section 704:
a. Although it is justified by concerns about the Commission's schedule for rollout of advanced television
services, the NAB/AMST rule would apply to all broadcast facilities, including radio facilities.
b. Contrary to the philosophical underpinnings of Section704, the proposed rule starts from the
assumption that local siting and building requirements are invalid. Congress adopted Section 704 as a
preservation of local authority. It subjects local zoning authority to only minimal substantive limitations.
Congress recognized that local officials will balance safety and aesthetic concerns with the desire of
citizens to receive new services. The NAB/AMST rule would preempt any state or local land use,
building or similar law that "impairs the ability of federally authorized radio or television operators to
place, construct or modify broadcast transmission facilities" unless the law is justified according to
prescribed purposes. The Commission should not presume that local siting and building requirements
will obstruct the roll-out of advanced television.
c. Although Congress required local jurisdictions to act on personal wireless service permit applications
within a reasonable period of time, the Conference Report accompanying the Act (H.Rept. 104-458)
states that Congress did not intend to give preferential treatment to such permit applications. Rather,
under Section 704, a reasonable period of time is defined by local practice, taking into account the nature
and scope of each request. In contrast, the NAB/AMST rule proposes ridiculously short time for local
action. In some cases, the proposed deadlines would require a decision from a body before a single
meeting of the body is scheduled. The NAB/AMST rule would enforce preferential treatment for
broadcasters by providing that whenever a local government fails to meet the prescribed time for action,
the permit application is deemed granted. There is no precedent for a Commission rule that permit
http://www.fcc.gov/statelocal/recommendation3.html 10/23/97
I
Advisory Recommendation Number 3: Page 2 of 3
applications for broadcast facilities should get preferential treatment over other kinds of pending
applications, such as applications related to office towers, housing developments or sports stadiums.
d. Section 704 provides that most disputes between permit applicants and local entities should be
resolved by courts. It authorizes the Commission to preempt land use decisions only in very limited
circumstances involving decisions based on the health effects of radiofrequency emissions. In contrast,
the NAB/AMST rule would bypass the courts entirely and deliver ALL disputes over siting and
construction of broadcast transmission facilities to the Commission. This proposal would be equally
paralyzing for both local governments, for whom the Commission is an expensive, distant and unfamiliar
forum, and the Commission.
4. The Petition recounts examples from several jurisdictions to suggest that broadcast towers are subject to extraordinary, illogical and obstructionist local requirements. In some cases, the Commission could easily respond to these examples byproducingthesamekindofeducationalmaterialsithasdevelopedtoassistlocalgovernmentshandlingpermit
applications for personal wireless service facilities. In other cases, the Petition seeks preemption of laws of general
application and cites as obstacles procedures that the applicant undertook voluntarily or without complaint to local
officials. For example:
a. The Petition complains that the San Francisco Zoning Administrator required Sutro Tower to construct
a model of proposed tower modifications to help the Zoning Administrator evaluate the visual effects of
the modifications. The construction of models to evaluate visual impacts is a common practice. Sutro
Tower raised no objection to this request to San Francisco officials.
b. The Petition complains that San Francisco required Sutro Tower to obtain a building permit for tower
modifications. Building or modifying any structure in San Francisco -- including a deck on a single
family dwelling -- requires a building permit. The San Francisco Building Code is not unusual. Like
most cities, San Francisco has derived its code from the Uniform Building Code adopted by the
International Conference of Building Officials. Requiring assurance that an 800 foot tall structure will be
structurally sound reflects the local duty to protect public safety.
c. The Petition complains that the requirement of a building permit triggered review of the Sutro Tower
modifications under the California Environmental Quality Act (CEQA). CEQA requires environmental
review of all projects causing a physical impact on the environment. Sutro Tower volunteered to prepare
an environmental impact report without complaint to local officials.
5. Few local officials have had an opportunity to consider how the Commission's timetable for advanced television may
affect local proceedings. Likewise, it appears that the Commission has not considered how necessary local approvals
may affect the Commission's timeline. The Commission's three -stage process for rollout of advanced television services,
with different deadlines for the top ten, next twenty, and remaining television markets, lends itself to a collaborative
intergovernmental process. Rather than issuing a notice of proposed rulemaking that seeks to preempt every local
government throughout the nation, the LSGAC urges the Commission to work with local governments in the top 10
markets and with the television broadcast industry to identify problems and develop solutions that accommodate both the
Commission's deadlines and the need for local review of projects involving very large structures.
6. The LSGAC is already planning to initiate such a process. At its July 25 meeting, the LSGAC decided to invite
representatives from jurisdictions in which broadcast transmission facilities serving the top ten television markets are
located to its September meeting. The purpose of this session will be to discuss methods for expediting local review of
advanced television services transmission facilities. In addition, the LSGAC decided to invite representatives of the NAB
to its September meeting.
RECOMMENDATION: For the reasons discussed above, the LSGAC recommends that the Commission take the
following steps:
1) Assign appropriate technical staff to assist the LSGAC in preparing for its meeting with
representatives of jurisdictions affected by the deployment of advanced television services in the top ten
markets;
2) Participate in discussions with the LSGAC in conjunction with this meeting;
3) Participate in the LSGAC's meeting with representatives of the National Association of Broadcasters;
4) Issue, if anything, a Notice of linquiry rather than a Notice of Proposed Rulemaking. The Noctice of
Inquiry should ask comments to:
a. Identify specific laws or practices that are likely to affect the siting and construction of
http://www.fcc.gov/statelocal/recommendation3.html
IGi
10/23/97
Advisory Recommendation Number 3:
facilities for advanced television services in the top ten markets;
b. Identify specific construction plans affected by these laws and practices; and
c. Identify what broadcasters have done to bring their construction plans and concerns
about local requirements to the attention of local officials.
Approved by the LSGAC on July 25, 1997
http://www.fcc.gov/statelocal/recommendation3.html
Page 3 of 3
Kenneth S. Fellman
Chairman, LSGAC
10/23/97
VARNUM, RIDDERING; SCHMIDT & HOWLETTLLP
A T T O R N E Y S A T L A W
BRIDGEWATER PLACE
POST OFFICE BOX 352 • GRAND RAPIDS, MICHIGAN 49501-0352
TELEPHONE 6161336-6000 • FAX 616/336-7000
JAMES N. NBOER, JR
WILLIAM K. VANT HOF
BRUCE A. BARNHART
FREDRICA.SYTSMA
ERIC]. SCHNEIDEWIND
TERESAS DECKER
MICHAEL G.WOOLDMICHAELC. Q/OOLDRIDCE RICHARD D. FRIES HARVEY KONINGHILARYF. SNELL
PETER ARMSTRONG
JACX D. SAGESGE JEFFREY R HUGHES
TIMOTHY
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JAMES R STADLER
RICHARD
LINDA L BUNGE
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WILLIAM J. HALLIDAY. JR
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JEFFREY
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RICHARD W BUTLER, JR MARKS. ALDERS
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JEFFERY S. CRAMPI'ON
ANTHONY R COMDEN TERRANCE R BACON
CARL E VER BEEK JOHN W PESTLE
LAWRENCE P. BURNS
MATTHEW D. ZIMMERMAN
TIMOTHY E EAGLE ANDREW) POTTER
BEVERLY HOLADAY
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PETER VISSERMAN
JON F. D`WTIT
JOHN C CARLYLE
ROBERT P. COOPER WILLIAM E ROH)
DAVID A. RHEM
DONALD P. LAWLESS
ANDREW). KOKMIL RICHARD B. EVANSDR. EV
FRED M. WOODRUFF
H. RAYMOND ANDREWS
DONALD L JOHNSON
FRANK C. DUNPEN
NYAL D. DEEMS
JOHN PATRICK WHITE MICHAEL S. McELWEE
PATRICK A. MILES, JR
ERIC J. GUERIN
PAMELA H. N DAVID L PORTEOUS
DANIEL C MOLHOEK RICHARD A. HOOKER
CHARLES M. DENTON
PAULA. KARA
GEORGE B. DAVIS STEVEN ). MORREN
CELESTE R GILLCILL
RK]IAAD A. SAMUELTHOMAST. HUFF
TIMOTHY J. Ci)RTIN
RANDALL W KAAKER
PETER
JEFFREY D. SMITH
JACQUELINE D. SCOTT
N. STEVENSON III
KEVIN ABRAHAM RYNBRANDT
MICHAEL X HIDALGO
ANDREW P. PILLSBURY
Of Com+ul
JOHN L WIERETCHI JR
DIRK HOFFIUS
A. SMRENNETTE
MARK C HANISCH
MARK L COLLINSCOLUNS
JONATHAN W. ANDERSON
DAVID E PRESTON THOMAS G. KYROS
DEBORAH L ONDERSI.tA
RANDALL J. GROENDYK
F. WILLIAM H FFILIS SON
J. TERRY MORAN
THOMAS J. MILDER
MARILYN A. LANKFER CARL OOST ERI IOUSE
JEFFREY W.
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ELIZABETH JOY FOBBED
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THOMAS L LOCKHART
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WILLIAM J. LAWRENCE III JOAN SCHLEEF
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PAMELA J. TYLER
MARY C BONNEMA ETH AL JELIZABETHA. JAMIESON
DF)A CORDON B. BOOZERB. BOO
ROBERT D. KlR1CREN BRUCE G. HUDSON
SUSAN M. WYNGAARDEN
KAPUN S. JONES
SCOTT A. HUDiNGA JON M. B.L
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MARK E NETTLETON
H. EDWARD PAUL
RICHARD A. KAY
LARRY J. TTHEY
BRUCE GOODMAN STEPHEN P. ENDODUS
MICHAEL F. KELLY
KATHLEEN P. FOCHTMAN
JOSEPH B. LEVANEVA KATHLEEN M. UNDND
JOSEPH J. VOGAN DAVID E KHOREYO JEFFREY J. ERASER
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MARK M. DAM
JOHN W. PESTLE
DIRECT DIAL 616 / 336.6725
j/{{ *7MORANDUMMEMORANDUM E-MAIL jwpestle@vrsh.com
FROM: John W. Pestle, Patrick Miles
RE: Further FCC Preemption of Local Zoning - Cellular and Broadcast Towers
DATE: September 12, 1997
The FCC (Federal Communications Commission) in late August issued two new rulemakingswhereitisproposingto (1) preempt local zoning over radio and TV towers and(2) zoning authority over many cellular towers. These are in addition to the FCCs July "tentativeconclusion" that it could preempt cellular tower zoning moratoria.
These new rulemakings represent an unprecedented attack on local zoning authority by theFCC. The purpose of this memo is (1) to describe the FCC proceedings and the risks they createforlocalzoningandcodeenforcementovercellularandbroadcasttowers, and (2) requestcommunities' participation in and a $250 contribution towards comments/reply comments whichwewillfileonbehalfofmunicipalitiesfromseveralstatesopposingtheFCC's proposals. Asummaryoftherulemakingsissetforthbelow. Please respond promptly as the first FCC filingdeadlineisOctober9.
Broadcast Towers: The FCC has issued a proposed rule requiring municipalities to act onallzoning, building permit and other requests for radio and TV station towers within 21 days to 45daysirrespectiveoflocalrequirementsfornoticetoadjoininglandowners, hearing requirements, appeal periods and the like. Failure to act in these time frames results in the zoning or other requestautomaticallybeingQranted.
GRAND RAPIDS - LANSING • KALAMAZOO - GRAND HAVEN • SOUTHFIELD
311 t
VARNUM, RIDDERING, SCHMIDT & HOWLETTLLP
A T T O R N E Y S A T L A W
The FCC claims this change is needed to aid the initial construction of new towers needed
for High Definition Television (HDTV): It does not explain why the proposed change should applytoAMbroadcaststationsandcontinueindefinitely.
Under the proposed rule, zoning approval and permits could only be denied for "clearly stated
safety" reasons. Approvals could not be denied or conditioned due to aesthetics, impact on propertyvalues, designation as a historic site or the like. Municipalities must prove that any zoning or
building codes are reasonable in light of the Federal interest in having radio/TV stations and "fair
competition among electronic media."
All appeals of local zoning and other decisions affecting radio and TV towers would go to
the FCC in Washington, not to the local courts.
Municipal Concerns: Municipalities are concerned about this rulemaking for the following
reasons, among others:
Some of the new digital TV towers will be nearly one-half mile high -- taller than the
Sears Tower or Empire State Building.
The time limits proposed by the FCC are unrealistic and bear no relation to the
procedural requirements of state and local law, requirements of due process, or zoninglaw.
The proposed rule totally disregards property values, historic districts, aesthetics and
the like. Even safety rules apparently can be over -ruled by non -safety "Federal
interests."
Rather than change the artificial deadline it set for HDTV (which may not be met for
other reasons) the rule puts zoning, property values, safety and Federalism at risk.
The proposed rule violates principles of Federalism which recognize zoning as being
a uniquely local concern.
In general, the FCC's approach shows a apparent disregard for zoning and due process, a
one-dimensional agenda and a subversion of Federalism and local rights. Comments in this
preceding are due October 30, with replies due December 1.
Cellular Towers: The 1996 Federal Telecommunications Act ("1996 Act") deprived the FCC
of zoning authority of cellular towers with one exception: Municipalities cannot regulate cellular
towers to the extent their radiation complies with FCC rules.
The FCC is trying to have this "exception swallow the rule" with a proposed rule that would
allow the FCC to review and reverse my local zoning decision that it concludes is "tainted" by
VARNUM, RIDDERING, SCHMIDT & HOWLETTLLP
A T T O R N E Y S A T L A W
citizen concerns over RF radiation. The proposed rule would have the following elements, amongothers:
A cellular provider could appeal directly to the FCC any zoning decision (or failuretoact) it claims is based on concerns over radio wave radiation.
Appeals would not be from the final decision of a municipality (e.g.--board of zoningappeals) but instead would be from the initial decision (e.g.--of a zoning or planningcommission).
FCC appeals would proceed in parallel with board of zoning appeal proceedings andanylocalcourtappeals.
The FCC could reverse zoning decisions if there is any evidence showing that concern
over radiation was the basis (or partial basis) for the decision. Elsewhere the FCC has
stated it could reverse zoning decisions that are otherwise perfectly acceptable if
radiation concerns were raised. The FCC apparently will "second-guess" the reasonsgivenbyamunicipalityforitsdecisions.
Where the FCC does not have specific preemption authority" over cellular zoningdecisionsitwouldinterveneincourtappealsbyindustryprovidersto "provide the
court with our expert opinion." Given that Congress has denied the FCC any role in
zoning, what would the FCC be opining on, other than that the municipality shouldlosetheappeal?
The FCC asked whether these rules should also apply to private restrictions affectingcellulartowers, such as condominium rules, homeowner association rules, subdivision
restrictions and deed restrictions. Again, this shows a contempt for property rightsandvalues!
Relatedly, the FCC is proposing to prohibit municipalities from requiring cellular telephone
companies as a condition of zoning approval from conducting measurements to show that radiationfromtheirantennascomplieswithFCCrules. The FCC rarely, if ever, conducts such measurementsforcertainclassesoftowers. Its proposal would prohibit municipalities from requiring cellular
providers to make such measurements (although municipalities could conduct them independently).
Municipal Concerns: Municipal concerns as to this rulemaking include:
The FCC is using the `radiation exception" to overturn the 1996 Telecommunications
Act's preservation of local zoning authority over cellular towers because in contested
cases, usually some resident will mention RF radiation.
The proposal violates principles of Federalism, especially by allowing the FCC tosecond-guess" the reasons for local decisions and reverse decisions that are
VARNUM, RIDDERING, SCHMIDT & HOWLETTLLP
ATTORNEYS AT LAW
otherwise acceptable. It violates the 1996 Act's preservation of local authority overcellulartowerradiationexceedingFCClimits.
It infringes on citizens' Freedom of Speech and right to petition government,
particularly given that in many communities, by statute, charter or local practice, there
is a public comment period where citizens may speak on agenda and non -agenda
items and their comments cannot be restricted. It is a "gag rule" because citizens who
properly raise radiation concerns (e.g--exceeding FCC limits) may increase the
chances towers will be located near them.
The FCC is in a conflict of interest position because it has been directed by CongresstohelpbalancetheFederalbudgetbysellingoffairwavesforcellularservice. It is
giving first priority to this with health and safety of citizens getting little attention.
The FCC's rationale for not measuring radiation from towers typically assumes a
single tower standing by itself. Increasingly, towers are mounted on the sides of
buildings with multiple antennas "collocated" one on top of each other so that theymayinteractinunanticipatedways. If the radiation is within FCC limits, why is it
opposed to measuring it?
Comments in this proceeding are due October 9, replies are due October 24.
Action R uested: The purpose of this memo is to ask for communities' participation in and
a $250 contribution towards the comments and reply comments which we will file in both
proceedings on behalf of municipalities in several states. We will bill municipalities once the first
set of comments and reply comments have been filed. The extent of the comments, in part, will
depend on the number of communities participating.
The comments and replies will generally oppose the FCC's proposed rules. Participatingcommunitieswillbeprovidedcopiesofeachofourfilings. We have made such filings on behalf
of many communities in the past -- the cover page from our current filing with the FCC in its
cellular tower zoning moratoria case on behalf of over 50 municipalities nationwide is attached.
Timing: We urge communities to respond promptly, by Monday October 6 if possible and byNovember27attheoutsideforthelastsetofreplycomments (which are due December 1).
How to Respond: Please respond by returning the attached form.
Municipal Practice: Our law firm is City Attorney, County Civil Counsel or Township Attorneyforseveralmunicipalitiesandhasanextensivemunicipalpractice. The firm's Energy andTelecommunicationsGrouprepresentsmunicipalitiesnationwideoncableandtelecommunicationsmattersandhasrepresentedover200municipalitiesonsuchmatters.
Questions: If you have questions or would like copies of the FCC's proposed rulemakings,
please contact John Pestle or Pat Miles at 616-336-6000. Our fax number is 616-336-7000.
VARNUM, RIDDERING, SCHMIDT & HOWLETI-LLP
A T T O R N E Y S A T L A W
FCC Zoning Preemption Rulemaldngs**
0
Yes, we wish to participate in comments at the FCC. Please bill us $250 upon the filingofthefirstsetofcommentsandreplycontinents.
0 Please send me information on your cellular antenna zoning ordinance package. 0 Please send me information on your cellular antenna zoning lease package.
Municipality/Firm:
Name:
Title:
Address:
Phone:
Fax:
E-mail:
Please mail, fax or e-mail this information to the attention of
Ms. Nikki Klungle
VARMM, RIDDERING, SCFMD:)T & HOwLETTLLP
333 Bridge Street, NW
P.O. Box 352
Grand Rapids, MI 49501-0352
Phone: 616-336-6000
Fax: 616-336-7000
niklungle@vrsh.com
Before the
FEDERAL COMMLWNICATIONS COMMISSION
Washington, D.C. 20054
In the Matter of: )
Petition for Declaratory Ruling ) DA 96-2140
of the Cellular Telecommunications ) FCC 97-264
Industry Association )
To: The Commission
COMMENTS OF CONCERNED COMMUNITIES CONSISTING OF:
AZ: Pinal County
CA: City of Cerritos
CO: City and County of Denver, City of Lakewood, Greater Metro Telecommunications Consortium
consisting of 24 other Colorado local governments
IL: City of Batavia, and the Illinois Chapter of NATOA consisting of the City of Chicago, Cook County
and approximately 50 other Illinois municipalities
MI: City of Detroit, City of Grand Rapids, and 28 other Michigan municipalities
NC: Piedmont Triad Council of Governments consisting of 24 North Carolina local governments
OH: City of Aurora
OK: City of Nichols Hills
OR Metropolitan Area Communications Commission consisting of 16 Oregon municipalities
PA: Upper Merton Township
TX: City of Arlington, City of Irving, and 13 other Texas municipalities
September 10, 1997
John W. Pestle
Patrick A. Miles, Jr.
Mark E. Nettleton
VARNUM, RiDDERING, SCAT & HOWLETTLLP
333 Bridge Street, N.W.
Grand Rapids, MI 49504
Their Attorneys
FCC Focus on State and Local Government Issues Page 6 of 7
The Honorable Victor Ashe The Honorable Darryl T. Owens
Mayor of Knoxville Commissioner, Jefferson County, KY
City County Building 527 West Jefferson, Suite 202
Knoxville, TN 37902 Louisville, ICY 40202
Phone: (423) 215-2040 Phone: (502) 574-6808
email: dowens@unidial.com
The Honorable Bill CampbellMary Poss
Mayor of Atlanta Mayor Pro -Tem City of Dallas
68 Mitchell Street, SW, #2400 1500 Marilla, 5FN
Atlanta, GA 30335-0300 Dallas, TX 75201
Phone: (404) 330-6021 Phone: (214) 670-4069
email: mary@dallastex.com
Kenneth a man, Esq. The Honorable Marilyn J. Praisner
City Council Member, Arvada, CO President, Montgomery County Council
Kissinger & Feliman, P.C. 100 Maryland Avenue
Ptarmigan Place, Suite 900 Rockville, MD 20850
3773 Cherry Creek North Drive Phone: (301) 217-7968
Denver, CO 80209 email: marilyn.praisner@co.mo.md.us
Phone: (303) 320-6100
email: kfelhnan@,kandf corn
The HonoraBl—eMichael Guido The Honorable Louise H. Renne
Mayor of Dearborn City Attorney
13615 Michigan Avenue City and County of San Francisco
Dearborn, MI 48126 Fox Plaza
Phone: (313) 943-2300 1390 Market Street, Sixth Floor
email: maggol@tir.com San Francisco, CA 94102-5408
Phone: (415) 554-4288
Fax: (415) 5544214
Staff Contact: Julia M C Friedlander
julia–friedlander@ci.sfca.us
The Honorable Randy Johnson Patrick Spears
Commissioner, Hennepin County, MN President, Intertribal Council on Utility Policy (ICOUP)
A-2400 Government Center P.O. Box 116
300 S. Sixth Street 30607 S.D. Highway 1806
Minneapolis, MN 55487 Fort Pierre, SD 57532
Phone: (612) 348-7885 Phone: (605) 223-9526
email: randy.johnson@co.hennepm.mn.us
Representative Myra Jones The Honorable David A. Svanda
5201 Country Club Boulevard Commissioner
Little Rock, AR 722074535 Michigan Public Service Commission
Phone: (501) 664-7775 6545 Mercantile Way
email: mljones@aristotle.net P.O. Box 30221
Lansing, MI 48909
Phone: (517) 334-6368
email: david.a.svanda@cis.state.mi.us
Timothy M. Ya-ifnRe, Esq. Lieutenant Governor Fran Ulmer
Council Member P.O. Box 1100115
Mezzullo & McCandlish Juneau, AK 99811-0015
1111 East Main Street, Suite 1500 Phone: (907) 465-3520
Richmond, VA 23219 email: Fran_Ulmer@gov.state.ak.us
Phone: (804) 775-3100
email: TKaine@Mezzullo.com
Senator oug as ristensen
District 37, State Capitol
P.O. Box 94604
Lincoln, NE 68509-4604
Phone: (308) 832-2103
Phone: (402) 471-2726
email: dkristensen@unicam3.lcs.state.ne.us
LSGAC Subcommittees
http://www.fcc.gov/statelocal/ 10/23/97
FCC Focus on State and Local Government Issues
Public Rights -of -Way
Co -Chairs: Michael Guido & David A. Svanda
Members:Myra Jones, Marilyn J. Praisner, Timothy M. Kaine, Mary Poss
Wireless
Chair:Louise H. Renne
Members:Kenneth Fellman, Victor Ashe, Douglas Kristensen, Randy Johnson
Universal Service
Chair:Pat Spears
Members:Fran Ulmer, Bill Campbell, Darryl T. Owens
Local Government Contacts
Page 7 of 7
NAME & TITLE ASSOCIATION PHONE IIAX
ar escquarNational Assoc. of State Utility Consumer
Advocates 727-3908 727-391
BobogeNational ssociation of Counties T
Assoc. Legislative 393-6226 942-42f
Dir.
Eileen Huggard NATOA 703-506-3275703-506-7
Exec. Dir. http://www.natoa.org/
Kevin c arty U.S. Conter-ence of Mayors
Asst. Exec. Dir. 293-7330 293-23-
B r or
Ramsey 898-2200
FCC home Page I Search I Commissioners I Bureaus/Offices I Finding Info
http://www.fcc.gov/statelocal/ 10/23/97