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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 F 0 0 o O O o O O o U) O O O O O O O O O U)m m am m a, m a,m4 m m am m m m m rn a 3) r r r r r r r r Fto a c v' m c cr c c F u} N N N VT N N N F O O O O O O O O r•1 r-1 r-1 r-1 r-1 r7 r-1 r -IOOUOU) U) N N Ln N U) Ui r 4 r-4 -) r-1 '-I .--4 r-4 e-1 F O M M M M M M M M H N . . . . . U m m m m m m m m N UT UT Vl CO. 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OO c mNN Aw 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 A's Chicago is Facilities year 'bythe iments' is`a AG`s home PnH arhPrl- . 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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. 1997 VOLVO 850 WAS AUTOMATIC, AM/FM CASSETTE, ABS, DUAL FRONT AND SIDE SAFETY AIR BAGS, CRUISE TILT, PW, Pt 4 WHEEL DISC ABS 850 Ltd E Save over $210 399/1M- 1997 850 Includes: • Leatl CD player • Spoiler • C Traction Cont 36 mo. lease, 12,000 mi./yr., onl 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 as aL 0 1114WEmSr ME F fir• r' S O 1 ME FRI TIW i c. FRI TIW i tlRoWESr Communications I M t _ 15.0rl im IW I Ad MR; 14-0- us `;, . 12 I LN m MR - J Wtpp oil" ME a O" - 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 http://www.fcc.gov/Bureaus/Mass—Media/Notices/I 997/fcc97296.html 10/13/97 7 FCC 97-296, MM Docket No. 97-182 failure to act within a specified time period.(31) Page 4 of 11 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. http://www.fcc.govBureaus/Mass_Media/Notices/1997/fcc97296.htm1 10/13/97 y1 FCC 97-296, MM Docket No. 97-182 Page 5 of 11 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. http://www.fcc.govBureaus/Mass_Media/Notices/1997/fcc97296.html 10/13/97 FCC 97-296, MM Docket No. 97-182 Page 6 of 11 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 http://www.fcc.govBureaus/Mass_Media/Notices/1997/fcc97296.html 10/13/97 FCC 97-296, MM Docket No. 97-182 Page 7 of 11 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, http://www.fcc.gov/Bureaus/Mass_Media/Notices/1997/fcc97296.html 10/13/97 FCC 97-296, MM Docket No. 97-182 Page 8 of 11 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 http://www.fcc.govBureaus/Mass_Media/Notices/1997/fcc97296.html 10/13/97 1'' FCC 97-296, MM Docket No. 97-182 Page 9 of 11 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. http://www.fcc.govBureaus/Mass_Media/Notices/1997/fcc97296.html 10/13/97 1'- FCC 97-296, MM Docket No. 97-182 Page 10 of 11 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. http://www.fcc.govBureaus/Mass_Media/Notices/1997/fcc97296.htm1 10/13/97 1 FCC 97-296, MM Docket No. 97-182 Page 11 of 11 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 PERIUNRYI. TORNGA RS JAMES R STADLER RICHARD LINDA L BUNGE Canucl WILLIAM J. HALLIDAY. JR KENT). VENA JEFFREY THOMAS S HA/LINC RICHARD W BUTLER, JR MARKS. ALDERS R SYMONS 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 ERIC G AN 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. JOY FO K ELIZABETH JOY FOBBED ALFRED 1. JR MARC N E GENE A KEMA S EUGENE THOMAS J. BARNESJ THOMAS L LOCKHART ROBERTL DIAMOND WILLIAM J. LAWRENCE III JOAN SCHLEEF TYLIUBKEGFl, 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 M. BROWN 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 SAIF R DAVISRG 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