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(,) \1) ."'" rJl = o ::::l ~~ (,) \1)\1) Pd...... <,' f-..t .2 ':",' ,:~ r, ~ ORDINANCE NO. 98 - AN ORDINANCE RELATING TO ZONING: TELECOMMUNICATIONS TOWERS AND FACILITIES; AMENDING CHAPTER 1201.03 OF THE CITY CODE RELATING TO TELECOMMUNICATION FACILITIES THE CITY COUNCIL OF THE CITY OF SHOREWOOD, MINNESOTA, ORDAINS: Section 1: Section 1201.02 Subd. 1. of the Shorewood City Code is hereby amended to add: "ANTENNA SUPPORT STRUCTURE: A building, water tower, or other structure, except a tower, which can be used for location of telecommunications facilities." Section 2: Section 1201.02 Subd. 5. of the Shorewood City Code is hereby amended to add: "ENGINEER: A registered professional engineer licensed by the state of Minnesota." Section 3: Section 1201.02 Subd. 19. of the Shorewood City Code is hereby amended to add: "STEALTH FACILITY: Any telecommunications facility that is designed to blend into the surrounding environment; examples of stealth facilities include architecturally screened roof-mounted antennas, antennas integrated into architectural elements, and telecommunications towers designed to appear other than as a tower such as light poles, power poles, and trees." Section 4: Section 1201.02 Subd. 20. of the Shorewood City Code is hereby amended to add: "TELECOMMUNICATIONS FACILITIES: Cables, wires, lines, wave guides, antennas and any other facilities or equipment associated with the transmission or reception of communications located or installed on or near a tower or antenna support structure. This term does not include: a. A satellite earth station antenna two meters in diameter or less, located in a C-3 or C-4 zoning district; b. A satellite earth station antenna one meter in diameter or less, wherever located. TELECOMMUNICATIONS TOWER (OR TOWER): A self-supporting lattice, guyed, or monopole structure constructed from grade built for the purpose of supporting telecommunications facilities. The term does not include amateur radio operations equipment licensed by the Federal Communications Commission. TOWER HEIGHT: The vertical distance from the grade adjacent to the base pad of the tower to the highest point of the tower or any component of the telecommunication facilities." 10/8/98 Section 5: Section 1201.03 of the Shorewood City Code is hereby amended to add: "Subd. 21.Telecommunications Towers and Facilities. a. Purpose: The general purpose of this Subdivision is to regulate the placement, construction and modification of telecommunications towers and facilities in order to protect the health, safety and welfare of the public, complying with the provisions of the Federal Telecommunications Act of 1934, as amended by the Telecommunications Act of 1996. The specific purposes of this Subdivision are: (1) facilities. To regulate the location of telecommunications towers and (2) To protect residential areas and land uses from potential adverse impacts of telecommunications towers and facilities; (3) To minimize any adverse impacts of telecommunications towers and facilities through design, siting, landscaping, and innovative camouflaging techniques; (4) To promote and encourage shared use and co-location of telecommunications towers and antenna support structures; (5) To avoid damage to adjacent properties caused by telecommunications towers and facilities by ensuring that those structures are soundly and carefully designed, constructed, modified, maintained and promptly removed when no longer used or when determined to be structurally unsound; (6) To ensure that telecommunications towers and facilities are compatible with surrounding land uses. b. Development of Towers. (1) A tower shall be a conditional use in the C-3, General Commercial and C-4, Commercial Service zoning districts. A tower may not be constructed unless a conditional use permit has been issued by, and site plan approval obtained from, the City Council and a building permit issued by the Building Official. (2) The City may, by conditional use permit, authorize the use of city property for towers in accordance with the procedures of this Code. The City has no obligation to allow the use of city property for this purpose. (3) No telecommunications facilities may be located within a distance equal to twice the height of the proposed tower of any use that involves the storage, distribution, or sale of volatile, flammable, explosive, or hazardous 10/8/98 ,.., .. ] 0/8/98 materials such as LP gas, propane, gasoline, natural gas, and corrosive or dangerous chemicals, unless the applicant can demonstrate with credible engineering data, to the satisfaction of the City, that no danger exists in locating the telecommunications facilities in the proposed proximity to said uses. (4) The development of a tower is subject to the following additional restrictions: (a) Unless the applicant presents clear and convincing evidence to the City, that co-location is not feasible, a new tower may not be built, constructed or erected in the city, unless the tower is capable of accommodating additional telecommunications facilities owned by other persons, and the tower owner agrees to comply with the provisions of the subsection relating to existing towers. A new tower shall be designed and built to accommodate three times the tower's initial loading capacity. If the tower is less than 100 feet in height is shall be built to accommodate two times the tower's initial loading capacity. (b) A development approval to develop, build, construct, or erect a tower will not be granted to a person on the basis that it is economically unfeasible for that person to co-locate or install telecommunications facilities on a tower or antenna support structure owned by another person. (5) An application to develop a tower must include: (a) The names, addresses and telephone numbers of all owners of other towers or antenna support structures, and the locations of such structures, within a one mile radius of the proposed new tower site; (b) Written documentation that the applicant has made diligent but unsuccessful efforts for permission to install or co-locate the applicant's telecommunications facilities on towers or antenna support structures located within a one-half mile radius of the proposed tower site; (c) Written, technical evidence from an engineer that the proposed tower or telecommunications facilities cannot be installed or co-located on another person's tower or antenna support structure located within a one half mile radius of the proposed tower site and must be located at the proposed site in order to meet the coverage requirements of the applicant's wireless communications system; (d) A written statement from an engineer that the construction and placement of the tower will not interfere with public safety communications and the usual and customary transmission or reception of radio, television, or other communications service enjoyed by adjacent residential and non-residential properties; (e) Written evidence from an engineer that the proposed structure meets the 3 ] 0/8/98 structural requirements of this Code. (6) Setbacks. (a) A tower must be located on a single parcel such that the base of the tower is no closer to the property line than the height of the tower, unless a qualified engineer specifies in writing that the failure of the tower will occur within a lesser distance under reasonably foreseeable circumstances. In no case will the tower be located outside the buildable area of the lot. (b) Setback requirements for towers are measured form the base of the tower to the property line of the parcel on which it is located. (7) Structural Requirements. Towers must be designed and certified by an engineer to be structurally sound and, at minimum, in conformance with the Uniform Building Code, and any other standards set forth in this subdivision. (8) Height. A tower may not exceed 125 feet in height. (9) Separation or Buffer Requirements. Towers must be separated from residentially zoned lands by a minimum of 90 feet or 100% of the height of the proposed tower, whichever is greater. The minimum tower separation distance is calculated and applied irrespective of city jurisdictional boundaries. Measurement of tower separation distances for the purpose of compliance with this subdivision is measured from the base of a tower to the closest point of the proposed site. (10) Method of Determining Tower Height. Measurement of tower height must include the tower structure itself, the base pad, and any other telecommunications facilities attached thereto. Tower height is measured from grade. (11) lllumination. Towers may not be artificially lighted except as required by the Federal Aviation Administration (FAA). At time of construction of a tower, in cases where there are residential uses located within a distance which is three times the height of the tower from the tower, dual mode lighting must be requested from the FAA. Notwithstanding this provision, the City Council may approve the placement of an antennae on an existing or proposed lighting standard, provided that the antennae is integrated with the lighting standard. (12) Exterior Finish. Towers not requiring FAA painting or marking, must have an exterior finish as approved in the site plan. (13) Fencing. Fences constructed around or upon parcels containing towers, antenna support structures, or telecommunications facilities must be 4 10/8/98 constructed in accordance with the applicable fencing requirements in the zoning district where the tower or antenna support structure is located, unless more stringent fencing requirements are required by FCC regulations. (14) Landscaping. Landscaping on parcels containing towers, antenna support structures or telecommunications facilities must be in accordance with landscaping requirements in the site plan. Utility buildings and structures accessory to a tower must be architecturally designed to blend in with the surrounding environment and to meet such setback requirements as are compatible with the actual placement of the tower. Ground mounted equipment must be screened from view by suitable vegetation, except where a design of non-vegetative screening better reflects and complements the character of the surrounding neighborhood. Accessory buildings may no be more than 2,000 square feet in size. (15) Security. Towers must be reasonably posted and secured to protect against trespass. (16) Access. Parcels upon which towers are located must provide access during normal business hours to at least one paved vehicular parking space on site. (17) Stealth. All towers shall be, to greatest extent reasonably possible, in the discretion of the City, of stealth design. Stealth shall not require towers or telecommunications facilities to be totally hidden, and does not necessarily exclude the use of uncamouflaged lattice, guyed, or monopole tower designs. (18) Existing Towers. (a) Any owner upon whose land a tower is located, which contains additional capacity for installation or co-location of telecommunications facilities, may allow other persons to install or co-locate telecommunications facilities on such a tower. Any such co-location shall require amendment of the original conditional use permit granted for said tower. (b) An existing tower may be modified to accommodate co-location of additional telecommunications facilities as follows: i. Application for a building permit shall be made to the City Building Official. ii. The total height of the modified tower and telecommunications facilities attached thereto shall be established by the new conditional use permit, if granted. 1lI. Permission to exceed the existing height shall not require 5 10/8/98 an additional distance separation from designated areas as set forth in this subdivision. The towers premodification height shall be used to calculate such distance separations. iv. A tower which is being rebuilt to accommodate the co- location of additional telecommunications facilities may be moved on site subject to the setback requirements of this Subdivision. (19) Abandoned or Unused Towers or portions of Towers. Abandoned or unused towers and associated above-ground facilities must be removed within six months of the cessation of operations of an antenna facility at the site unless an extension is approved by the City Council. A copy of the relevant portions of a signed lease that requires the applicant to remove the tower and associated faciljties upon cessation of operations at the site must be submitted at the time of application. If a tower is not removed within six months of the cessation of operations at a site, the tower and associated facilities may be removed by the City and the costs of removal assessed against the property. (20) Evaluation and Monitoring. As a condition of approval for telecommunication facilities the applicant shall reimburse the City for its costs to retain outside expert technical assistance to evaluate any aspect of the proposed siting of telecommunications facilities. The owner of a telecommunications facility shall provide the City with current, technical evidence of compliance with FCC radiation emission requirements, annually or more frequently at the City's reasonable request. If the owner does not promptly provide the City with satisfactory technical evidence of FCC compliance, the City may carry out tests to ensure FCC radiation compliance using a qualified expert. The owner shall reimburse the City for its reasonable costs in carrying out such compliance testing. (21) Variances. The City Council may grant a variance to the setback, separation or buffer requirements, and maximum height provision of this subdivision based only on the criteria set forth in Section 1201.05 of this Code. (22) Additional Criteria for Variance. The City Council may grant a variance pursuant to Section 1201.05 of this Code if the applicant also demonstrates with written or other satisfactory evidence that: (a) The location, shape, appearance or nature of use of the proposed tower will not substantially detract from the aesthetics of the area not change the character of the neighborhood in which the tower is proposed to be located; (b) The variance willnot create a threat to the public health, safety or welfare; (c) In the case of a requested modification to the setback requirement, that the size of plat upon which the tower is proposed to be located makes compliance 6 1 0/8/9~ impossible, and the only alternative for the applicant is to locate the tower at another site but poses a greater threat to the public health, safety or welfare or is closer in proximity to a residentially zoned land; (d) In the case of a request for modification of separation requirements, if the person provides written technical evidence from an engineer that the proposed tower and telecommunications facilities must be located at the proposed site in order to meet the coverage needs of the applicant's wireless communications system and if the person agrees to create approved landscaping and other buffers to screen the tower from being visible to the residential area; (e) In the case of a request for modification of the maximum height limit, that the modification is necessary to (1) facilities co-location of telecommunications facilities in order to avoid construction of a new tower; or (2) to meet the coverage requirements of the applicant's wifeless communications system, which requirements must be documented with written, technical evidence from an engineer. (23) Failure to Comply; (a) If the permittee fails to comply with any of the terms imposed by the conditional use permit, the City may impose penalties or discipline for noncompliance, which may include revocation of the permit, in accordance with the following provisions. (b) Except as provided in subsection (23)(c) below, the imposition of any penalty shall be preceded by (i) written notice to the permittee of the alleged violation, (ii) the opportunity to cure the violation during a period not to exceed thirty days following feceipt of the written notice and (iii) a hearing before the City Council at least fifteen days after sending written notice of the hearing. The notices contained in (i) and (iii) may be contained in the same notification. The hearing shall provide the permittee with an opportunity to show cause why the permit should not be subject to discipline. (c) If the City finds that exigent circumstances exist requiring immediate permit revocation, the City may revoke the permit and shall provide a post- revocation hearing before the City Council not more than fifteen days after permittee's receipt of written notice of the hearing. Following such hearing, the City Council may sustain or rescind the revocation, or may impose such other and further discipline as it deems appropriate. (d) Any decision to impose a penalty or other discipline shall be in writing and supported by substantial evidence contained in a written record. 7 Section 6: This Ordinance shall be in full force and effect from and after its passage and publication. ADOPTED BY THE CITY COUNCIL OF THE CITY OF SHOREWOOD, MINNESOTA, this day of 1998. Tom Dahlberg, Mayor ATTEST: James C. Hurm, City Administrator/Clerk 10/8/98 8 ." ., .OCT - 6-98 TUE 14: 37 BRUNO LAW/MCCULLOUGH LAW FAX NO. 5450834 P. 02 FREDERIC BRUNO Be ASSOCIATES ATTORNEYS AT LAW '!"HI!'; COr..ONNADE :S500 WAV%ATJIo SOUl.avAItO. $UITe: 730 MINNIiAJtOr..IS. MINNESOTA 55418 FRE:OEJ:lJC BRUNO '1'IMOTHY R. ANOERSON TIOLEl"HON&:: (Sl Zl e45-'79oo October 6, 1998 Bv Facsimile and U.S. Mail Attn; James C. Hunn City of Shorewood 5755 Country Club Road Shorevvood,~ 55331 RE: Cell Phone Towers Dear Mr, Hurm~ I recently read in the October, 1998 edition of City Informer that the Planning Commission plans to address a proposed ordinance intended to regulate the location of telecommunication faeilities. The article states that residential areas in Shorewood may have to be designated for such use, because of the limited amount of commercial property on which the towers could be erected. I am a resident of Shorewood. I cannot attend tonight1s Planning Commission meeting because our neighborhood association board also meets tonight. I have some concerns about the possible aesthetic blight which such antenna towers may cause. I am enclosing with this letter a headline article from the September 21, 1998 edition of Lawyers Weekly. This article summarizes the Federal Fourth Circuit's decision in AT&T Wireless PCS v. City Council of Virginia, Beach. This is the first decision by any federal circuit court which has ruled on the issue of how the Federal Telecommunications Act; of 1996 affects the power of a city council to deny a utilities application to place a tower on church property in a heavily-wooded residential area. The court held that it was appropriate for the city to deny the application based upon traditional bases of zoning regulations, such as preserving the character of a neighborhood and avoiding aesthetic blight. The article also contains quotes from two Minnesota municipal lawyers with respect to the tower issues. I do not think that the City Council or the Planning Commission should abdicate any authority in exercising regulatory power over theplacemGnt of utility structures within the..City of Shorewood. .--.- -' ,~ -" OCT- 6-98 TUE 14:38 BRUNO LAW/MCCULLOUGH LAW FAX NO. 5450834 P. 03 James C. Hurm October 6, 1998 Page Two I am hoping that your office can provide a copy of this letter and attaclunent to the Planning Commissiont and to City Council. Please call with any questions or concerns. Respectfully, FREDERIC BRUNO & ASSOCIATES f N'\... V'----- Frederic Bruno FB/mw Enclosure ." FAX NO. 5450834 P.04 .ocr.. 6-98 TUE 14: 38 BRUNO LAW/MCCULLOUGH LAW RS Issue 98-19198lWUSA 745 September 21, 1998 A Bi-Weekly NeW$paj)er From Lawye,s Weekly Publications City Could Reject Cell Phone Tower Dnmk Drivers Ate B Malpractice Trap for Defense 1 By TImothy G. Cross By James L Dam Where a city COtlnci1 denied an appli- cation to build a ce1lQ./ar phone tow- '. er in a residential area because of local oPposition, this cUdn't via- , late federa11alv, says the Fourth Circuit .in reversing a U.S. Dis- trict Court. This is the first time any federal circuit has ruled on this issue under the federal Telecom- munications Act of 1996. Many towns have been strug- glingto stop cellular towers re- cently; with mixed results. The- .. tower.; can exceed 300 feet and ,.';v are often placed in residentiai areas or in the middle of a scenic view. There are oxpected to be over 100,000 towczs in the U.S. within a few years. Many towns' zoning oMi- ". nances weren't Written with '. the towers .in miIld and don;t. contain adequate provisions , lor them.. In additioll, phone 'companies frequently claim that zOlling restrictions on the . towers violate the Te1ccom.:'~ muiUcati6ruiAct. -. . , The Four;b. Circuit's deci- '.~ sion is being hailed by.mu- nidpallawyers as reaffil:rning thepow~rofloea1 zoning au- thority Over the placement of the towers. "The decision con- firms' Congress' in.. tent that gener- al zoning prin- . ciples be appli~d and '1 Cw,t'lUtm Ort 1I"l' 2 t Ii ;------.--- -. Anon-citizen who commits a drunk dri ving felony and is sentenced to a' year ot more in prison now faces man. . - ~d~tionand permanentba:n- t tt\ !:he U.s., as the result01 a decision by the Immigntion Board of Ap~als. This is a dramatic change I:hatshould be considered in every drunk driving case involving a non-cif:izen, experts tell l.muyers Weekly USA. These defendants will now face "the equivalent of the death sentence in hn- migration law, " says attorney Ira Kurz- ban of Miami, author of a book on im- migration law. lilt's a situ~ticn most defense attor- neys haven't fOCUSed on, and it could cause It serious malpractice problem," according to WIlliam Head of Atlanta, CtmtbulM 011 pair 12 INS officials Lynn M. Lig last Call: a plan to depo news conference. Lawyer. Employment Lawyers: Niche: Sex Harassmen By Sylvia Hsieh I More and more companies are hiring lawyers to investigate sexu.llharass_ tnentcomplalnts, creating a new ni<:hc for employment attomeys, e.'<perts tell l.moyers Weekly USA. "This is a bw-seoning area," says Lynn Lieber, a defense lawyer in Redwood City, Calif., who regularly investigates sex harassment COOlp1aints for cOInpa- mes, ---... -. " QCT- 6-98 TUE 14:39 BRUNO LAW/MCCULLOUGH LAW ~ LWU~ 765 I SSl'TEMBn 21, 1998 : I 98 LWUSA 748 ) IrED 'T the . . -- presen- :nent of Jculate 00 een- ~ rather . ). HiJlIse !7'tiarari g beltJw: ~ (1190. Sep- , USA No. o/the apin- ent Not !Law ply state t interest <\. if state \.'5 statu- :uit in at. bectluse dard for :est and d ap?ly FAX NO. 5450834 P. 05 City Council Could Reject CelluJ COIIlimI<<I from /14,. 1 that barrages of experts can't overturn the common sense opinions of local cit- izens," says Grand Rapids, M~ch., at- torney John Pest:le. "'It's saying local zoning authorities have a right to listen to what their con- stituency wants," agrees Kirk Wmes, city attorney for Medina, Wash., and an expert on this issue. But Jonathan Yates, a Charleston, s.c, attomey who represents cellular phone companies, decries the case as tuming towerpiac:ement decisio115 into upopu_ larity con~ts. II It bo."S on a reh.un to "mob rule," argues Ted !<reines of 'Iibu.ron, Calif., a consu.Itantto Ioca1govemments on wim- Jess planning and editor of the newslet- ter Plan Wireless. I<reines doubts the decision will be followed by most judges outside the Fourth Circuit. And William MaIone, a Washington, D.C. attomey who helped represent the ciIy council in the case,.says the decision may be limited to elected bodies, and ntay not apply to the typical, appointed Zoning board. Heavily Wooded Area The pIainl:i!f,AT&:T W.tteless PCS, ap- pUed for a pennit 1:0 put a l35-foot eel- l~ phone tower on church property in a he2lvily wooded residential atea of VIrginia B~ Va. - an area with little comme:cia1 development and no exist- ing communication towers. AT&T claimed itneeded the tower to Jill a "hole" in its V1I8inla Beach service area. The tower was to be used by digi- lal service providers, like AT&: T, as well as existing analog set'llice providers. The city's planning department and. PlantUngconunission bothre:ommend_ ed approving the application. But the city counc:i1 denied it after ahearirlg in which petitions were presentlilc{ and numerous residents spoke in opposition to the tow- er because of its impact on the c:ha.racter of the neighbomood. AT&:Targued thatthecitycoundl'sde- dsion violated the Telecom.munic:;Jtions Act because it (1) unreasonably discrim- inated against digital service providers, (2) amounted to a PltJh1bil:ion on services, and (3) wasn'~ a written decision sup- . --- ported by substmtiaI ev~ence, .in viola- tion of 47 U.s.c. S 332(c)(7). But the court said that because the tower was to be used l:1y both digital and analog service providers, there was no evidence the city council had favored one form of service over another. Rather, "opposition to the application rested on I:raditional bases of zoning teg_ ulation; preserving the character of the neighborhood and avoiding aesthetic blight. 'If such behavior is llIlrea50nable, /:hen nearly every denial of an applica- tion such as this will violate the Act" Nor was the decision a "prohibition on services, n because the Act only pro- hibits "blanket" bans on cellular phone towers, notincUvidual zocing decisions. And the council's decision was dearly "in writing." even though it consisted merely of a two-page summary of the minutes of them.eeting and one-page let- ter slamped "DENIED," said the court "The simple requirement of a 'ded- sion._in Wtiting' cannot reasonably be inflated into a requirement of a 'state- ment of -findings and c:onclusions." Finally, the a>urt said the decision was supported. by II substantial evidence" in the form of resident tcslirnony. "'It is not only proper but even ex- pected that (legislatozs J will cotl5ider the views of their constituents to be partic- ularly coznpe1ling forms of evidence, in zon.ing as in an other matters_.LTJhe re- peated and widespread. opposition of a majority of the citi%ens...amounts to far more than a 'mere scintilla' of evidence to persuade a reasonable mind toop- pose the application. " Written Findings Important Experts say that despite the Fourth Circuit's ru.ling. municipalities shOuld st:i1I support their decisions with written findings oifact and clear expIanatilJllS of those decisions whenever possible. Municipal attorney Fritz I<naak of Vadnais Heights, Minn., points OUt that many $tah!!s, including his own, impose stringent factffnding and review re- quirements on local ZOning authorities, beyond what the Fourth Circuit seems to require. Besides, says WUleS, "written deci.~ons are an ide:tl opportunity to s~r \~'hy ~ evidence from the industry side wam.t credible~'.: Towns'need to mal tween their findings l dsions they reach to s, based solely On ernoti, What Should ToW! Municipal lawyers their towllS to develo -- Municipal la\ Want to help to' a plan for the tc applications arc -- plans that specificaIl~ munication towers ir. applications begin flu Rather than taking;: approach, towns net strategic: vision for t:h~ addresses both its at and its future COUlm says Philip Gibson, ;: vclopmentspecialist" olina University. "Cities have to real gy marches on and t compJ.etelystop tow. Golernbeck, a St. Pau pallawya I':r1stead, towns shou to celluIatphone compc ers away from reside: Jnote preferable ones, J <:onuneIdal a:nters, sa} land use attorney Ken: Incentives may mc ed approval proc::ess I industria! areas, and a view for towers in Ie like .reql1iring applicar ciiic evidence about tJ environmental and p: pact on the local nei Baldwin. Communities can a of SO-<.:allcd "stealth tF , OCT- 6-98 TUE 14:40 BRUNO LAW/MCCULLOUGH LAW FAX NO. 5450834 UW\'fJlS WEm.r USA I Page 21 P.06 ~ct CelluIarPhone Tower ~1a- credible:~ ,. Tow~4need to make a "bridge" be- tween their .findings of fact and the de- cisions iR~y reach to show !:hey weren't based s<?!~y on emotions, $ays I<re.i.nes. .. . What Should Towns Do? Municipal ~ners may want to hclp their towns,~ develop ~omprehensive .' . " ,~ the md no red ion eg- /:he ~tic: Jle, .ca- " ion to- me tlS. rly ~ed the let- :t. ~- be te- M~nicip'allawyers m~y want to help towns develop a pI3!1 for'the towers before applications are flooding in. 'ilS in plans that specifically deal with com- munication towers in advance, before applications begin flooding in. Rather than taking a "crisis-oriented" approach, towns need to clcvelop a strategic vision for the community that addresses both its aesthetic concerns and its futuN communication needs, says Philip Gibson, a community de- velopment spedallstwith Westem Car- olina University. "Cities have to realize /:hat te<:h.nolo- gy marches on and theN's no way to completely stop towers," adds ]ame$ Golembeck, a. St. Paul, Minn., munid- pallawyet. InStead, towm shou1d. offer incentives to <eIlularpl1one Ctlmpallies to direct tow- ers away from residential areas and to more pmerable ones, like industrW and commercial centets, says Hartford. Conn., land use attomey Kenneth Baldwin. Incentives may include an accelerat- ed approval process Eot towers built in industrial areas, and a l%1ore rigorous re. view for towers in .l'e$idential areas _ like requiring applicants to provide spe- cific: evidence about the tower's visual, environmental and property V:lllue im- pact on the local neighborhood. says Bald win. Communities can also require tile use of so-called "stealth technology" in rcs- IX- he ic- in :e- fa :ar ce p- th ld ~ ot jf at ;e !- S, IS IS :e 't . ~_.. ---.-- - -" -- idennal neighborhoods, historic dis- tricts and other sensitive ll.rel:lS, suggesls William Fritz, a senior planner fot' Albe- marle County, Va. Stealth technology aU<2WS ~elfulat phone antennas to be hidden in stree~ lighls or on bilIboards, or ~mouflaged as crees. The drawback is tha,t such antennas must be much shorter than tbestandard tower, and the smaller size dec:eases signal strength, thus requiring more towers within the same area as well as increasing overall cost, says Pestle. Towns may also want to hire engi- neers and te!econununi~tiOllS experts. Zoning authorities are "handicapped" in challenging the tecltnical claims of cellular phone companies if they aren't familiar with tile b:chnology involved, says Nancy Essex, a Raleigh, N.C, at- tome~ More Cases Expected Additional d.rcuit clecisions on this is- sue are likely to appear in the next few months, experts tJo:!l~ WeeIdy USA. The Fourth Circuit has sdteduledoral arguments in October in a North Car- olina case strikingly similar to this one, says Essex, who represents the Winston- SeUern zoning board - the deiendantin /:he case. . Essex e.xpects the Fourth Circuit to clarify whether the current decision ap- plies to un-eI.ected boards, like the one in Wmston-Sa1eJn. And the Second Ci:rcuitis ex~ted to schedule o~ arguments soon on an- other tower case dealing with the pow- er of local boards to limit the loc:a.tion and number Ot towers in an area. : nle board's dedsion in thatc:ase was supported by extensive written evi- dence 8Ild Eact6nciing, says John W1lson, the Rochester, N:'t, attorney represent- ing the defendant pla:nning bolU'd. The issue of celluJar'Phone towezs was disc:usseci in more debnt in an article in uwyers Weekly USA last year. See 97 LWUSA 529i Search words for LWUSA Arcltives: Cellular and PCS. U.S. COllrt of Appmls. 4th Circuit AT&T Wirekss pes l1. City Council of VirginiD Beach, No. 97-2389. September I, 1998.l.4wygs Week- ly USA No. 991401.7 (1S pages), To ordtr~ 0/ the opinion, azll 8t)(}..9J3.5594. ID!li!i] .... ,,. , ' PLANNING COMMISSION MINUTES SEPTEMBER 16, 1998. PAGE 2 discussion did take place. She further explained that according to the current ordinance, recreational structures are allowed. Nielsen explained that there is a nuisance ordinance, however, this structure does not relate to that ordinance. Callies stated that this issue does not have to be resolved immediately but that a discussion should take place. Chair Borkon questioned whether this structure would fit under recreational equipment. Nielsen explained that it could fit and it does meet the height limit of 15 feet. Callies stated that it does not look like a typical recreational structure because of the noise. Nielsen said that it is not in violation of any of the current codes. Chair Borkon asked if this was found as a nuisance violation, what would be the next step. Nielsen clarified that a letter would be sent to the owner and they would be given the chance to appeal within 10 days. He further stated that this would have to qualify as a nuisance and this does not. Anderson moved, Callies seconded to direct the staff to research issues for a future meeting. Motion passed 3/0. 2. DISCUSSION WITH CONSULTANT AND CITY COUNCIL REGARDING TELECOMMUNICATION FACILITIES Nielsen explained the history of utilizing a telecommunications consultant and said that the Council felt it would be important to have a telecommunications consultant involved in the first step of devising an ordinance. He stated that the first draft ordinance attempted to limit antenna sites to the commercial district. Nielsen stated that west Shorewood has no commercial property which raises the issue of the location of an antenna site. There is a public hearing scheduled on this issue for October 6. Garrett Lysiak, telecommunications consultant, reviewed his background with the Commission and Council members. He has been in practice for 13 years and had been employed with the FCC. Lysiak explained that Shorewood is limited in providing service to providers because of the few commercial zones. A tower will need to be erected on the west side in order to provide service to all of Shorewood which is about 6 miles across. Currently, there is a hole in coverage on the western side of Shorewood. Two considerations for placement of towers are Freeman Park and the water tower on the western side of the City. One of the concerns in utilizing the water tower is radiation. Lysiak also explained that the FCC adopted a standard which took force in August of 1997, this is an ANSI standard. He stated that if there is a concern about the radiation level, measurements can be taken before and after the tower is built to reduce anxiety. He further explained that the measurements would be taken every time the tower has maintenance performed. He advised that this method is the best safeguard. He also stated that routine measurements are paid for by the provider. Callies inquired what sites in the city will be able to serve AT&T's needs. Lysiak stated that Freeman Park ,and the water tower are equally as good. Chair Borkon asked about using the city utility building. Nielsen confirmed that public works property can be used, but studies would have to be conducted to check for interference with another tower nearby. Lysiak stated that using the public works building would not serve the western part of the city. . . . . . PLANNING COMMISSION MINUTES SEPTEMBER 16, 1998. PAGE 3 Chair Borkon commented that the issue of placement of a site on the water tower is a large issue and asked if other issues had been discussed regarding the ordinance. Anderson questioned whether these towers would be able to handle all the technology that is on the forefront. Lysiak confirmed that the capacity needs to be taken into consideration. Chair Borkon explained that the law says some provision needs to be made to provide service to a certain area, but it can be located across the street in another town. The Commission must come up with ordinances to fit the government requests. Discussion took place in regard to using the word visual in the draft. Wording should be changed to minimize any adverse impacts rather than minimize any visual impacts. Lysiak suggested adding in the ordinance that a tower should be able to be used up to 3 times the loading capacity. He also mentioned that the ordinance now states tower height should not exceed 160 feet, which is a little high. He noted that there is no height limit in the current ordinance for personal towers and suggested a limit be added. He also suggested removing the word stealth from the ordinance. He stated there is no effective way to beautify a tower and making a tower stealth is difficult. Nielsen concurred that these issues will need to be clarified for the final document. Callies questioned whether a ham operator tower could be erected in a residential back yard. Nielsen explained that it could and this should be handled as a separate issue, although addressed simultaneously with the telecommunications issue. The telecommunications issue is a commercial issue and the ham operator tower is a zoning issue. Brown inquired how much is known in regards to long-term effects of radiation. Lysiak stated overexposure can happen in 6 minutes. There is a conservative standard. Although, he hasn't seen any documentation linking disease to long-term exposure to RF. He reiterated that most members of the general public are never overexposed in relation to the standards. Anderson raised the question of whether a site should be provided for every telecommunications provider; can a tower be full. Chair Borkon said this would be a legal issue. Nielsen stated that he thought there was enough information to draw up an ordinance. Callies stated she is comfortable with the information presented and an ordinance could be drafted. Chair Borkon commented she is not comfortable writing an ordinance yet; stating that the law is too vague. She would like to have an attorney present to guide the discussion. Nielsen suggested scheduling a study session prior to the October 6 hearing. He mentioned that this issue is scheduled for the Council meeting the following Monday. He concluded that he will set up a work session with the attorney on the telecommunications tower. Council members were adjourned at 8:45 p.m. ."." . . .Ii.' PLANNING COMMISSION WORK SESSION MINUTES OCTOBER 6, 1998 - PAGE 2 Anderson stated that he felt this variance was reasonable and was encouraged that both parties agree. Bailey questioned the logic of the averaging of the rear yard setback and asked if this was due to the fact the applicant abuts the golf course. Nielsen stated that the golf course is a factor but that the average setback is a policy that is used when properties abut lakeshore. He stated that the boundary discrepancy is a factor, as well. Nielsen stated that a hardship for the applicant stems from the boundary discrepancy and the fact that the house sits 54 feet from the rear boundary line. Bailey stated that he feels the applicant should be granted the full 16 foot variance. Chair Borkon agreed with Bailey on the full 16 foot variance due to the discrepancy. Callies asked if the applicant purchased the home knowing the location of the rear yard line. The applicant stated that the rear yard line was in question at the time of purchase. Chair Borkon stated that she would like to know if the closing was contingent on the location. She asked that staff research this issue to prove hardship. Callies moved, Bailey seconded to approve the variance for a rear yard setback for Kirk Davis at 5935 Seamans Drive for discussion. Bailey asked if abutting a non-residential property calls for different circumstances. Nielsen stated that this is not the case, but due to the various factors in this case, the effects would be minimal. Motion failed 1/3. (Anderson, Bailey and Borkon opposed). Bailey moved, Anderson seconded to table the variance for a rear yard setback for Kirk Davis at 5935 Seamans Drive to allow staff to gain information on the closing of the property. Motion passed 3/1. (Callies opposed). Nielsen explained this matter will come back to the Planning Commission for their review and consideration on Tuesday, October 20, 1998. 2. 7:15 P.M. PUBLIC HEARING - TELECOMMUNICATIONS ORDINANCE Planning Director Nielsen reviewed with the Commission the factors behind this ordinance for the City. He explained that this Ordinance would limit the location of towers and facilities by zoning districts and sets standards while complying with the Telecommunications Act. Nielsen reviewed the changes to the draft ordinance as suggested by the City's Telecommunications Consultant, Mr. Garrett Lysiak. Nielsen stated that he is looking for the Commission's recommendation for an October City Council review. Chair Borkon opened the public hearing at 8:07 p.m. Peter Beck, 160 South Fifth Street with AT&T Wireless Services, stated that his company is involved in this process and is working with the City on this issue for the southwestern suburbs. He reviewed several comments and concerns that his company "has with the City. He stated concerns about the City's availability of land space and the number of user's per pole. ~ .. j" PLANNING COMMISSION WORK SESSION MINUTES OCTOBER 6, 1998 - PAGE 3 Discussion was held on the number of free standing towers and the height desired in the City. Anderson stated that he would like to see a maximum height be set to provide of the maximum use per pole, thus limiting the number of poles in the City. Mr. Lysiak explained the reasoning for the number of users per pole and the benefits for the City and stated that the heights of towers is coming down. Mr. Beck commented on the 125 feet height limit. He stated that this could limit the number of co-location towers in the City. He encouraged the Planning Commission to change this to 150 feet. Mr. Beck added that he feels the search radius should be limited to one mile. Mr. Beck continued by questioning the conditional use permitting process of additional capacity on towers. He stated that the City may just want to consider the co-user be forced to look here first. Mr. Lysiak encouraged the City to not change this process, because then the City will not be notified of the change. City Engineer Brown stated that this process in place allows the City to maintain the conditional use permit process and look for alternatives as an option. Mr. Beck stated a strong concern regarding the new language regarding the inspection progress, stating that this was to be left up to the FCC. Jim Strommen, City Attorney, stated that the FCC does set standards but stated that the City can monitor the towers in that they comply with the statute. Mr. Lysiak stated that the City is concerned with radiation standards and not emissions or interference. Chris Lizee, 27055 Smithtown Road, asked for clarification on several points in the ordinance. She asked that a change be made to the Ordinance with regard to the residential zoning districts. Nielsen explained that this wording is used to permit tower usage on the water tower sites. Hearing no further public testimony, Anderson moved, Bailey seconded closing the public hearing at 9:00 p.m. Motion passed 4/0. The Commission agreed to a final review of this Ordinance at their October 20, 1998 meeting due to the number of revisions. Callies found that this was redundant due the to length of time the Commission is spending reviewing the Ordinance. Chair Borkon questioned the radius search distance for the tower structures. Mr. Lysiak stated that he would be comfortable with the one mile radius change. Mr. Lysiak explained that the five mile radius is not realistic because many times the sites that the applicant has chosen is only within 1/2 mile to 1 mile for the area they need to serve for capacity and coverage. Chair Borkon asked if this radius could be increased at all in the future. Mr. Lysiak stated that by widening this radius it opens the range of towers that are looked at. Bailey stated that jumping through hoops is not the City's purpose on this and that he didn't see the reasoning for this. He agreed with the one mile radius, along with Callies. Anderson stated that he is concerned about not leaving City limits for the search. Chair Borkon stated that she is comfortable with the mile radius as is the majority of the Commission. . . ... -'" ,-~ PLANNING COMMISSION WORK SESSION MINUTES OCTOBER 6,1998 - PAGE 4 Chair Borkon asked what height requirements Mr. Lysiak recommended. Mr. Lysiak stated that 125 feet is adequate and that he does foresee this dropping in the future. Commission concurred that the 125 feet will be the height limit. Chair Borkon questioned the conditional use permitting process versus permitted uses for towers. Bailey stated that he would like to see the uses conditional and not be stated as permitted uses within the City. The Commission agreed on removing the Other Telecommunications Facilities of towers On existing structures of 50 feet in height from the Ordinance. Chair Borkon questioned the FCC regulations as set forth in the Ordinance regarding inspections. The Commission agreed to the comments as suggested by Mr. Lysiak to change emission to radiation. The Commission reviewed the telecommunications definitions and noted agreed upon changes to Staff. Nielsen was advised to revise the Telecommunications Ordinance and bring this back for the Planning Commission to review at their October 20, 1998 meeting for recommendation to the Council. 3. MATTERS FROM TO THE FLOOR - None. There were none at this time. 4. REPORTS Nielsen reported on a letter he received from Mr. Bruno's. He stated that Mr. Bruno has a 20 acre site and would like to build and accessory structure on this piece of land. Nielsen explained that City Ordinance does not allow for accessory structures on land without a principle structure. He informed the Commission that this is for their .information and that their is no formal action at this time. Bailey stated that he would be absent on November 4, 1998 and he is the designated liaison to Council for that meeting. It was noted that a change will be made in the schedule. Anderson stated that he would change with Bailey on this. 5. ADJOURNMENT Bailey moved, Anderson seconded adjourning the meeting. Meeting adjourned at 10:04 p.m. Motion passed 4/0. RESPECTFULLY SUBMITTED, Heidi Wirth, Recording Secretary TimeSaver Off-Site Secretarial, Inc.