HomeMy WebLinkAboutbocc.packet 04232014 - Land Use Code Amendment Cell TowersMEMORANDUM
TO: Board of County Commissioners
Regular Meeting — April 23, 2014
FROM: Lance Clark tisistant Director Community Development
RE: Proposed Land Use Code Amendment: Cell Tower Revisions
Ordinance -2nd Reading, Public Hearing
SUMMARY/ BACKGROUND: One of the "Strategic Initiatives" of the Board of County
Commissioners for 2013 was improvement to the County's "broadband" services. For practical
purposes this initiative has been concentrated on improving cell phone service throughout the
County. One of the "initiative" implementation steps was for staff to propose some amendments to
the Land Use Code cell tower regulations that might allow broader consideration of wireless
communication facilities and towers.
APPLICANT. Community Development Department
PROPOSAL: Our current cell tower regulations are very uncomplicated and straightforward.
Basically, a cell tower is allowed in almost all rural zone districts and all locations subject to Special
Review approval by the BOCC. Building mounted antennae are allowed subject to Special Review
in most urban and rural zone districts. The primary restrictions, other than the discretionary Special
Review, are that towers cannot exceed 40' in height and must be 200' from a residence. The cell
company representatives with whom we have been working have indicated that these two standards
are too limiting and work against the County's goals of more ubiquitous coverage. These standards
have been addressed in the proposed revisions by not specifying an allowed maximum height;
making the allowed height part of the Special Review. The proposed language would also allow
towers closer than 200' from a residence, if the tower is on a parcel under the same ownership as the
residence, or if the owner of a residence closer than 200' to a proposed tower consents to the
location.
PLANNING AND ZONING COMMISSION: The P &Z recommended approval of the proposed
amendments by a 3 -1 (an abstention) vote on March 4, 2014.
PRIMARY PROPOSED CHANGES:
Definitions: The industry representatives have suggested that our definition of "Cellular Telephone
Facility" is outdated and have suggested a new definition called "Wireless Communication
Facility ".
Height: The current height limit for a freestanding tower is 40'. The proposed amendment does not
specify a height limit. Appropriate height would be determined by the Special Review process and
by additional standards related to coverage areas and number of carriers on a tower.
Setbacks: Currently, the Code requires a 200' setback from a residence. The proposed language
includes schools in the setback requirement, and allows the setback to be waived if the residence is
on a parcel under the same ownership as the tower location or if an abutting 200' residence owner
consents to the location. The general "yard setback" is proposed to be reduced from two times the
000001 0-�' 11
height of the tower to the actual height of the tower, or the required yard setback, whichever is
greater.
Modifications to Existing Facilities: The section on adding to existing towers and facilities
without need for new Special Review approval is expanded to mirror federal regulations which
allow for modifications that do not "substantially change" the physical dimensions of a site.
Board Discussion at 1St Reading: On April 9, 2014, the Board discussed the proposed
amendments. Specific direction was given to:
1) Add language about continued maintenance /upkeep of facilities.
2) Replace omitted language in (6) (b) 2.
3) Propose language for protection of adjoining vacant but developable parcels.
4) In a later phase of potential amendments, consider allowing towers in zone districts where they
are currently prohibited (e.g.; Rural Remote, small lot UGB zones).
RECOMMENDATION: Staff recommends that the BOCC approve the proposed Code
amendments per the attached Ordinance.
lancecicases /codeamendmemoBOCC cell towers 2nd doc
0U0002
ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY,
COLORADO, AMENDING TITLE 8 OF THE PITKIN COUNTY CODE, SPECIFICALLY
THE 2006 LAND USE CODE RELATED TO WIRELESS COMMUNICATION
FACILITIES
Ordinance No. -2014
RECITALS
Pitkin County Community Development Staff has initiated a Land Use Code amendment to
amend the Pitkin County Land Use Code (PCLUC) related to Wireless Communication Facilities
(FKA / Cellular Communications Facilities). Amendments will be made to following chapters
and sections:
Chapter 4
EXHIBIT A - Table 4 -1, Permitted Uses
Chapter 4
EXHIBIT B — Section 4 -3 -40 (g) Cellular Telephone Facility
Chapter 4
EXHIBIT C — Section 4 -30 -50 (b) Accessory and Temporary Uses - Building Mounted Cellular
Telephone Antennae
Chapter 11
EXHIBIT D — Definitions
2. The Planning and Zoning Commission reviewed the proposed amendments at a regularly
scheduled meeting on March 4, 2014. The Commission voted 3- 1(abstention) to recommend
approval to the BOCC.
3. The BOCC reviewed the application at I" Reading at a duly noticed public meeting on April 9th,
2014, and at a duly noticed public hearing on April 23rd, 2014. Evidence and testimony were
presented with respect to this application.
4. The BOCC finds that the Land Use Code Amendments related to wireless communication
facilities is consistent with Pitkin County's goals and policies regarding land use and
development in the County.
5. The BOCC further finds that the amendments are consistent with County Comprehensive Plans
and in compliance with Section 2- 40 -10.
NOW, THEREFORE, BE IT ORDAINED by the Pitkin County Board of County
Commissioners that it hereby amends the above - referenced Sections of the of the 2006 Pitkin County
Land Use Code, as set forth in Exhibits A through D.
090003
INTRODUCED, FIRST READ, AND SET FOR PUBLIC HEARING ON THE 9 "' DAY OF
APRIL, 2014.
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE ORDINANCE
PUBLISHED IN THE ASPEN TIMES WEEKLY ON MARCH 20, 2014.
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE ORDINANCE POSTED ON
THE OFFICIAL PITKIN COUNTY WEBSITE (www.aspe pitkin.com) ON THE DAY
OF 2014.
ADOPTED AFTER FINAL READING AND PUBLIC HEARING ON THE DAY OF
2014.
PUBLISHED BY TITLE AND SHORT SUMMARY, AFTER ADOPTION, IN THE ASPEN
TIMES WEEKLY ON THE DAY OF 2014.
THIS ORDINANCE SHALL BECOME EFFECTIVE 30 DAYS AFTER PUBLICATION FOLLOWING
FINAL ADOPTION BY THE BOARD OF COUNTY COMMISSIONERS.
ATTEST:
Jeanette Jones
Deputy Clerk
APPROVED AS TO FORM:
John Ely,
County Attorney
000004
BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
Robert A. Inner Jr.,
Chair
Date:
APPROVED AS TO CONTENT:
'Cindy Houben,
Community Development Director
Chapter 4 — Permitted Uses
. . . ....... .
Pitkin County Land Use Code CHAPTER 4 — PERMITTED USES
July 2006 Page 10
UG"005
Intended for Rural Areas
for Urban Areas
TABLE 4 -1 Permitted Uses
Rural Districts
Pded
Su6wban Residential
RS
RR
RS
RS
LI
TR-
TR-
RS
A
A
S
B
R
VR
MH
AH
AH
- I—
R-
I
2
R
R
K
15
-
P
Use Category!
G
6
0
35
35
30
&
&
-
10
-
2
I
I
&
i5A
6
P
U
Use - Specific
Use Type
20
it
IS
D
Regulations§
E
B
C
Bed and Breakfast
A
A
JA
S
5 IM
I
S
S Is
I
S
§4- 30-040(d)
Country Inn, Guest Ranch,
S
S
S
S
M
S
S
§4- 30- 040(1)
and Resort Cabins
Hotels, Motel or Lode
S
S
4 -30- 040(1)
Meeting Hall or Conference
Center (formerly Reception
S
S
S
M
S
S
§4- 30- 040(0)
Halls and Meeting Facilities
Restaurant and/or Bar
M
A
A
A
S
§4- 30- 040(u)
Timesharing or Fractional
M
S
§4 -30- 040(x)
Ownership
Office and Clinic Uses
Financial Institution
M
S
S
§4 -30 -040 )
Medical or Dental Clime
M
A
§4- 30 -040(n
Office
M
JA
I
A
M
§4-3M40(2)
Research Facility
I
I
IS
I
Im
§4- 30- 040(t)
Sales and Service Uses
Arts and Craft Studio,
A
A
A
A
§4- 30- 040(h)
Primary
Building Materials and
Landscaping (formerly
Equipment Supplies and
S
S
S
A
§4- 30- 040(e)
Contracting or
Subcontracting)
General Services
S
A
§4- 30- 040(k)
Personal Service Outlet
M
A
A
A
§4- 30- 040(r)
Retail Sale of Goods
(formerly Places for Retailing
M
A
A
A
§4- 30- 040(v)
of Goods)
Vehicle and E w meet Uses
Automobile Parking Lot,
M
S
S
M
S
Commercial
Automobile Service Station
S
A
is
S
§4- 30- 040(c)
Vehicle and Aircraft Sales
and Service (formerly Vehicle
M
and Aircraft Related
Business)
Other Pnnci al Uses
Cellular Telephone Farll,t..
J
S
Wireless Communication
S
S
S
S
S
S
S
M
S
is
5
M
S
§4- 30- 040(g)
F acili
Junk Yard
is
S
S
§4- 30- 040(m)
Radio or TV Transmitting
S
S
S
S
S
S
S
M
S
S
S
S
S
5
S
S
S
M
§4- 30- 040(r)
Station
Solar Farms
S
S
5
S
M
S
S
S
S
S
S
S
S
S
S
S
S
§4- 30-50(m) &§ 4-
S
S
S
S
S
30- 050(h)(5)
Use by Federal Permit
(formerly Uses, Activities &
Facilities Permitted by
S
S
S
S
S
S
S
S
M
S
S
S
S
S
S
S
S
S
S
M
S
Special Use Permit Issued by
Federal Agency)
Accessory Structures with
A
A
A
A
A
§4- 30- 050(a)
Bathing Facility
Agricultural Stand
A
A
A
I
JA
JA
1A
11M
A
A
I
JA
A
M
A
§4- 30- 050(b)
Arts and Crafts Studio,
A
A
A
A
A
JA
A
JA
A
A
A
A
JA
JA
A
M
A
. . . ....... .
Pitkin County Land Use Code CHAPTER 4 — PERMITTED USES
July 2006 Page 10
UG"005
Chapter 4 — Permitted Uses
(Code repealed and reenacted (all sections) by Ord. 014 -D, 2006, 07- 05 -08; § 4 -20 -
Table 4 -1 (part) amended Ord. 012-08,04-09-08; Ord. 019 -2009; 06- 24 -09; Ord. 025 -09,
10- 14 -09; Ord. 010 -11 08- 10 -11; Ord, 011 -11, 08- 10 -11)
Pitkin County Land Use Code CHAPTER 4 — PERMITTED USES
��`�4 Page 11
0100006 July 2006
Intended for Rural Areas
intended for Urban Areas
TABLE 4 -1 Permitted Uses
Rural Districts
roanI Suburban Residential
RS
RR
RS
RS
LI
TR-
TR-
RS
A
A
S
B
R
R
R
VR
MH
AH
AH
- 1—
R-
1
2
-
R
R
1C
30
-15
-
P
Use Category/
G
6
0
35
35
30
&
-
10
-
2
I
I
&
15A
6
P
U
m Use- Specific
Use Type
20
R
15
1)
Regulations §
E
S
C
Accessory
Building- Mounted Cellular
Telephone Antennae Wireless
S
S
S
S
S
S
S
S
S
S
S
S
S
S
§4- 30- 050(c)
Communication Antennae
Bus Stop
A
A
A
A
A
A
A
S
A
A
A
A
A
A
A
A
A
A
A
Camping Area
A JA
A
M
§4- 30- 050(d)
Caretaker Dwelling Unit
S
S
S
S
S
S
is
S
S
S
S
S
M
S
§4- 30- 050(e)
Club House or Recreational
S
S
S
S
S
M
5
S
S
S
S
S
M
Building
Day Care Home
A
A
A
A
JA
IM
A
A
A
A
A
A
A
A
A
A
Employee Dwelling Unit
S
S
S
S
S
I
S
S
S
S
I
is I
M
S
Home Occupation
A
A
A
A
A
A
A
A
A
A
A
A
A
A
A
A
A
A
A
M
A
§4 -30 -050(
Horse Boarding, Accessory
A
A
A
A
S
Satellite Reception Device
S
A
A
A
S
S
A
A
A
M
A
A
A
A
A
A
A
A
A
A
M
A
§4-30-050(g)
Solar Energy Collector
A
A
A
A
A
A
A
A
A
A
M
A
A
A
A
A
A
A
A
A
A
M
A
§4- 30- 050(h)
Ground Mounted Solar
Energy Collector Greater than
S
S
S
S
S
S
S
S
S
S
M
S
S
S
S
S
S
S
S
S
S
M
S
§4- 30- 050(hy)(5)
12' in Height
Temporary Commercial Use
A
JA
A
A
A
A
JA
A
A
A
M
A
A
A
A
A
A
A
A
M
A
§4- 30- 050(1)
Trail
A
A
A
A
A
A
A
A
A
A
M
A
A
A
A
A
A
A
A
M
A
Water Crossin or Diversion
S
IS
S
S
S
S
S
S
S
S
S
M
JAA
S
S
S
5
5
S
S
S
M
S
Wind Powered Electric
S
S
S
S
S
5
S
M
M
§4 -30- 050(1)
Generator
Micro Hydro Electric Energy
S
S
S
S
S
S
S
S
S
S
S
S
S
S
5
S
S
S
S
S
S
S
§4- 30- 050(k)
System
Snow Storage /Dumping
S
FS
S
S
S
S
S
S
Lis
S
S
S
5
S
S
S
S
S
S
S
S
§4 -30- 050(1)
Trucking
(Code repealed and reenacted (all sections) by Ord. 014 -D, 2006, 07- 05 -08; § 4 -20 -
Table 4 -1 (part) amended Ord. 012-08,04-09-08; Ord. 019 -2009; 06- 24 -09; Ord. 025 -09,
10- 14 -09; Ord. 010 -11 08- 10 -11; Ord, 011 -11, 08- 10 -11)
Pitkin County Land Use Code CHAPTER 4 — PERMITTED USES
��`�4 Page 11
0100006 July 2006
CHAPTER 4: PERMITTED USES
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4 -30-40 (g) Wireless Communication Facility
(1) PRINCIPAL USE OF THE LAND
A wireless communication facility is a principal use of land, but may be located
on a legally created lot or parcel without the need to include any additional
acreage for the second principal use.
(2) BUILDING- MOUNTED ANTENNAE AND TOWERS
Building - mounted wireless communication antennae and towers are an
accessory use of the land permitted pursuant to Sec. 4- 10- 10(e).
(3) FREESTANDING TOWERS
A freestanding tower shall not be located within two hundred (200) feet of an
existing residence or school, except for a residence or school under the same
ownership as the parcel containing the tower, or a residence or school where
the owner has given consent to the location of the tower. In the case of a
proposed tower location on a parcel admacent to an existing vacant developable
parcel, the tower shall be located at least 200 feet from the propeqy line of the
adiacent vacant parcel, unless the owner of the adiacent vacant parcel consents
to a proposed closer location.
Any freestanding towers may be approved by the BOCC through Special
Review procedures. In addition to the Special Review criteria in Section 2- 30 -30,
the Board shall consider: 1) the extent to which a proposed tower fills unmet
coverage, capacity, or technology needs; 2) the number of carriers that are
confirmed to be located (or may be located) on the tower; and 3) the
documented need for the proposed height based on these factors, as well as; 4)
any concealment, camouflage, or screening techniques proposed for the tower.
(4) CO-LOCATION REQUIRED
Each new tower shall be designed to accommodate at least one (1) additional
user's equipment.
(5) SETBACKS
(a) All towers, shall be set back from -all property lines at least a distance equal
to the height of the proposed tower or the required yard setback, whichever
is greater.
(6) GENERAL DEVELOPMENT STANDARDS
(a) Design and Neighborhood Compatibility
1. To the extent feasible, the exterior appearance of all towers and
associated support structures and buildings shall be compatible with
other buildings and/or the natural environment in the surrounding area.
2. Support buildings located in any residential district may not be used as
an employment center for any worker. if a support building is to be used
as an employment center in a zone where such use is allowed, the use
is subject to applicable Growth Management regulations. This provision
does not prohibit the periodic maintenance or periodic monitoring of
equipment and instruments.
o l Pitkin County, Colorado Land Use Code
Page 1 July 2006
CHAPTER 4: PERMITTED USES
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3. No advertising sign or logo shall be permitted on any wireless
communication facility.
4. The decision - making body may require any other conditions to mitigate
the impact of the tower on adjacent properties and uses.
(b) Buffering and-Screening, and Maintenance
1. All fences and walls shall be screened with landscaping meeting the
requirements of Sec. 7- 20- 130(d)(2)(a).
2. The Board may require that all towers and antennae and ancilla[y
equipment be appropriately screened, provided that such screening will
not interfere with the transmission and/or reception capabilities of any
antennae located on the tower.
Z3. All aspects of wireless communications facilities shall be maintained in
the condition and manner as represented and approved. For example;
regular painting is expected, and an "stealth" elements such as
branches and limbs shall be replaced as necessa if there is
discoloration or deterioration of such elements.
3.4, Output power levels from the tower and /or all associated antennae shall
not exceed the current federally approved levels for the tower as a
whole for exposure to electromagnetic radiation.
.�s. Radio, television, or other electromagnetic transmission(s) or reception
on other properties shall not be disturbed or diminished.
(7) EXISTING TOWERS AND BASE STATIONS
Requests for collocation, removal, or replacement of transmission equipment on
an existing wireless communication tower or base station or replacement of
towers may be approved with no additional Special Review provided the action
does not substantially change the physical dimensions of the tower or base
station as determined by the Community Development director pursuant to
applicable federal regulations.
(8) OUTSIDE EXPERTS AND DISPUTES
(a) Siting of wireless communications facilities may involve complex technical
issues that may require review and input by outside experts. Staff may
require the applicant to pay the reasonable costs of a third -party technical
study of a proposed facility. Selection of expert(s) to review the proposal
shall be at the sole discretion of the decision- making body. The expert
selected must be a qualified Radio Frequency engineer with general
knowledge of wireless development and the design and placement of
wireless communication facilities.
(b) If an applicant for a wireless communications facility claims that one or more
standards of this section are inconsistent with federal law as applied to a
particular property, or would prohibit the effective provision of wireless
communications within the relevant market area, the decision - making body
may require that the application be reviewed by a qualified Radio Frequency
00000:
Pitkin County, Colorado Land Use Code
Page 2 July 2006
CHAPTER 4: PERMITTED USES
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engineer (pursuant to (a) above) for a determination of the accuracy of such
claims. Any costs shall be charged to the applicant.
4 -30 -50 ACCESSORY AND TEMPORARY USES
(c) Building - Mounted Wireless Communication Antennae
Building - mounted antennae may be located on buildings within or outside the urban
growth boundaries as permitted by Section 4 -20, provided that the maximum height
of the building and tower or antenna does not exceed the maximum building height
in the zone district by more than ten (90) feet.
0 V 0 Q'1 Land Use Code Pitkin County, Colorado
July 2006 Page 3
Chapter 11 Definitions
from one route to another. A bus stop may include a transit facility, where public transit
vehicles other than busses may pick up or drop off passengers, and where routes for such
vehicles cross and passengers may change from one route to another or from one mode of
public transit to another.
CAMPGROUND means an outdoor facility designed for temporary overnight
accommodation of human beings in tents or shelters for recreation, education, naturalist, or
vacation purposes. A campground is a primary use of land. Common accessory uses include
shower or toilet facilities or small retail sales of camping - related items operated solely for the
benefit of those staying in the camping area.
CAMPING AREA means an area of land that is not the primary use of the property, but that
is made available for temporary overnight accommodation of human beings in tents or
shelters for recreation, education, naturalist, or vacation purposes.
CARETAKER DWELLING UNIT (CDU) means a separate, accessory dwelling that is
deed restricted to occupancy by qualified residents, as defined in the employee housing
guidelines, and is subject to the restrictions of Sec. 4- 30 -50(e) of this Land Use Code.
CARRYING CAPACITY is a term borrowed from ecology that represents the upper limit
of population growth that can be achieved in a particular area when individuals are
introduced into that area. Carrying capacity is used in determining the potential of an area to
absorb development. Specifically, the term includes, but is not limited to: (1) the level of land
use, human activity, or development for a specific area that can be accommodated
permanently without an irreversible change in the quality of air, water, land or plant and
animal habitats; (2) the upper limits of development beyond which the quality of human life,
health, welfare, safety, or community character within an area will be impaired; (3) the
maximum level of development allowable under current zoning considering the carrying
capacity of the land from a physical and character based perspective.
CATEGORY AFFORDABLE HOUSING OR CATEGORY INCOME AND PRICE
RESTRICTED HOUSING means housing meeting the definition of Category Affordable
Housing in the employee housing guidelines.
CATEGORY EMPLOYEE HOUSING means affordable housing that has been deed
restricted for particular income categories, as defined in more detail in the employee housing
guidelines.
CEMETERY means a parcel of land or structure dedicated to, and at least a portion of
which is being used for, the interment of human or animal remains. A cemetery may include
crematories, mausoleums, and columbaria.
00001c, Pi #kin County Land Use Code CHAPTER II —DEFINITIONS
July 2006 Page 10
s
- -
-------
..........
CEMETERY means a parcel of land or structure dedicated to, and at least a portion of
which is being used for, the interment of human or animal remains. A cemetery may include
crematories, mausoleums, and columbaria.
00001c, Pi #kin County Land Use Code CHAPTER II —DEFINITIONS
July 2006 Page 10
Chapter 1I Definitions
USES BY FEDERAL PERMIT means any use of land or activities on the land or facilities
related to those uses or activities approved pursuant to a permit issued by an agency of the
federal government, and that have off -site impacts on unincorporated areas of the County not
in federal government ownership.
VEHICLE AND AIRCRAFT SALES AND SERVICE means the sale and rental of
vehicles and aircraft, including accessory gas and fueling stations, related trucking services,
bus and taxi storage and repair, and car washes.
VEHICLE AND EQUIPMENT means pertaining to the maintenance, sale, or rental of
motor vehicles and related equipment. This category includes automobile parts and sales,
new and used automobile sales on the same lot, outside display and storage of vehicles and
equipment, heavy machinery sales and service, new boat sales and service, automobile body
repair, automobile assembly, painting, upholstery and rebuilding, automobile service office
or garage, tire re- treading, tire dealers, and trailer rental, sale, display, and/or storage uses.
Accessory uses may include incidental repair and storage, offices, and sales of parts. This is
a Use Category that includes uses like, but not limited to, the following: "Automobile
Service Station ", "Vehicle and Aircraft Sales and Service ", and other uses that the
Community Development Director determines belong in this Use Category.
VESTED PROPERTY RIGHT means the right to undertake and complete the development
and use of property under the terms and conditions of a site specific development plan, as set
forth in C.R.S. 24 -68 -101 et. seq.
VISITOR TRIP means one automobile arrival or departure, regardless of how many
individuals are in the automobile.
WATER CROSSING OR DIVERSION means a ditch, pipe, bridge, culvert, structure for
irrigation, drainage, flood control, or water diversion, or other pathway in which or through
which water is moved or allowed to move from one point to another, in accordance with
Colorado law, for purposes of irrigation, agricultural use, or domestic use within Pitkin
County.
WEAK SOIL AND ROCK means soil, rock or man -made fill that lacks strength to support
light loads imposed by residential dwellings or structures or similar loads, that may settle
unevenly under loads imposed by such structure, particularly upon application of water, or
that is susceptible to slipping, flowing or creeping due to gravity or leveling as a result of
wetting and drying.
WIRELESS COMMUNICATION FACILITY (WCF) Means an unstaffed facility for the
transmission and reception of radio or microwave signals used for commercial
communications. A WCF provides data and telecommunications services including
commercial mobile services commercial mobile data services unlicensed wireless services
and common carrier wireless exchange access services as defined by federal laws and
regulations.
WETLANDS means areas that are inundated or saturated by surface water or groundwater at
a frequency and duration sufficient to support, and that under normal circumstances does
Pitkin County Land Use Code CHAPTER 11— DEFINITIONS
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BUSCHLAwFI PLLC
April 22, 2014'
Pitkin County
Community Development Department
Attn: Lance Clarke, Assistant Director
130 S. Galena Street
Aspen, CO 81611 -
VIA EMAIL
RE: Proposed Wireless Communication Facility Ordinance—Chapter 4-30-040(g)
April 23, 2014 Public Hearing
Dear Lance:
On behalf of AT&T, this letter provides comments on Pitkin County's proposed wireless
communication facility ordinance ("Ordinance") that was reviewed by the Board of County -
Commissioners("Board") on April 9, 2014 ("First Reading").
We appreciate the Board's careful consideration of the new. Ordinance, balancing important
community values such as aesthetics, viewsheds, public safety, and quality, reliable wireless
services on which residents, businesses, and visitors depend. We also appreciate the Board's
insight and pointed questions that were presented at the First Reading. As the First Reading was
not open for public comment, this letter will address some of the concerns that were raised by the
Board. Ken Lyons's letter dated April 9, 2014, which was provided in anticipation of the First
Reading, also provides information that may be helpful to the County in its review and
consideration of the Ordinance. Please use the information contained in both this letter and Ken's
" letter to provide more comprehensive insight into the wireless industry and applicable law and
regulations.
We understand that the three issues listed below represent the Board's most significant concerns
with the proposed Ordinance as discussed on April 9, 2014.
What is considered a substantial change?
The Board presented the question of what constitutes a "substantial change" for purposes of
understanding how to interpret Section 40-30-40(g)(7) of the revised Ordinance. The proposed
revisions to Section 40-30-40(g)(7) were necessary to reflect federal law as set forth in Section
6409(a) of the "Middle Class Tax Relief and Job Creation Act of 2012" ("Section 6409"): While
Section 6409 does not specifically define what constitutes a "substantial change" in the
dimensions of a tower or a base station, the Federal Communications Commission (the "FCC")
issued guidance in January 2013, providing a definition for "substantial change" and other
SEATTLE LOS ANGELES DENVER PORTLAND BEND.
1624 Market Street,Suite 202 Victoria.Chenault @wirelesscounsel.com t 425.406.7859
Denver,Colorado 80202 www.wirelesscounsel.com f 206.219.6717
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April 22, 2014
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relevant terms referenced in the law. Pursuant to the FCC's guidance, a substantial increase in
the size of a tower occurs if:
(i) the mounting of the proposed modification would increase the existing height of the
tower by more than ten percent (10%), or by the height of one additional antenna array
with separation from the nearest existing antenna not to exceed twenty (20) feet,
• whichever is greater, except that the mounting of the proposed antenna may exceed the
size limits set forth in this paragraph if necessary to avoid interference with existing
antennas; or
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(ii) the mounting of the proposed antenna on the tower would require installation of more
than the standard number of new equipment cabinets for the technology involved, not to
exceed four, or more than one new equipment shelter; or
(iii) the mounting of the proposed antenna would involve adding an appurtenance to the
body of the tower that would protrude from the edge of the tower more than twenty (20)
feet, or more than the width of the tower structure at the level of the appurtenance, •
whichever is greater, except that the mounting of the proposed antenna may exceed the
size limits set forth in this paragraph if necessary to shelter the antenna from inclement
weather or to connect the antenna to the tower via cable; or •
(iv) the mounting of the proposed antenna would involve excavation outside of the
current tower site, defined as the current boundaries of the leased or owned property,
surrounding the tower and any access or utility easements currently related to the site. .
In addition to the guidelines set forth above, the FCC provided definitions for"towers" and "base
stations," and also provided guidance for local jurisdictions on the type of permit process that
should be required for an "eligible facilities request" under Section 6409. A copy of the FCC's
Public Notice is attached to this letter for the Board's consideration. •
How can the County protect its residents in the event wireless communications facilities
interfere with use of cable television and radio?
There is no need for the County to assume the burden of regulating radio frequency interference.
The FCC heavily regulates radio frequency use and interference. In addition, interference
prevention and resolution is a standard provision in wireless lease agreements.
Wireless communications carriers like AT&T, Verizon Wireless, T-Mobile, and Sprint pay •
billions of dollars to obtain licenses to operate within certain frequencies. Those licenses and the
frequency use pursuant to those licenses are specific to the wireless carrier. If a wireless carrier.
operates outside of its licensed frequency, then the wireless carrier is subject to enforcement by
the FCC, which enforcement may include substantial fines and penalties.
Cable television systems and radio transmissions must show deference to the licensed frequencies
and may not operate within the licensed frequencies. In the unlikely event that interference
occurs, a resident has several options. The resident may contact the (i) provider of the cable
television or radio service, (ii) FCC, or (iii) property owner on which the wireless
communications facility is located. If•the cable television or radio provider is contacted, it is the
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April 22, 2014
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cable television or radio operator's responsibility to confirm if its signal has leaked into a licensed
frequency. If the interference"cannot be resolved, or if there is belief that the interference is due
to a frequency leak by the wireless communications carrier, then a resident may file a complaint
- with the FCC. Residents should be aware that the FCC takes interference and enforcement very
seriously and complaints are likely to be heard. In addition to FCC protections, a resident may .
also contact the property owner on which the wireless facility is located. If a resident contacts the
property owner on which the site is located, the property owner may assert its rights and
responsibilities regarding interference as set forth in the lease agreement with the carrier. A
standard wireless lease agreement will require that the wireless carrier resolve all interference
issues that are the carrier's fault within a reasonable period of time.
What if wireless carriers will not agree to co-locate on another carrier's facility?
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A preference for co-location is a standard ttquirement in most wireless ordinances across the
country. All the major wireless carriers and many tower companies (like, American Tower) have
Master Lease Agreements ("MLA") in place that have been negotiated at a national level. If co-
. location is a viable option for a wireless carrier, that carrier will enter into a simple, pre-
negotiated one to two-page agreement with the other carrier or tower company, as applicable,
which is specific to a particular site and which document is governed by the MLA. .The carriers
proceed in this manner so that co-location is a simple transaction and often much more
expeditious and cost-effective than if the carrier were to enter into a separate lease agreement
with a property owner.
As always,we appreciate this opportunity to comment on the proposed Ordinance and to be a part
of the process. Please let us know if you have any questions or if we can be of further assistance.
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Sincerely,
Ycct-orca baa-ckensu df- •
Victoria Davis Chenault
cc: Board of County Commissioners, Pitkin County
Phylis Mattice, Pitkin County, Assistant County Manager
Amber Tafoya, AT&T, Director, External Affairs - Colorado
File
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, . PUBLIC NOTICE
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Federal Communications Commission News Media Information 2021418-0500
445 12th St., S.W. Internet:http://www.fcc.gov.
TTY: T-888-835-5322
Washington, D.C. 20554
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WIRELESS TELECOMMUNICATIONS BUREAU OFFERS GUIDANCE ON
INTERPRETATION OF SECTION 6409(a) OF THE MIDDLE CLASS TAX RELIEF AND
JOB CREATION ACT OF 2012
DA-12-2047
January 25, 2013
On February 22, 2012, the Middle Class Tax Relief and Job Creation Act of 2012 (Tax Act)' became law.
Section 6409(a) of the Tax Act provides that a state or local government"may not deny, and shall
approve" any request for collocation, removal,or replacement of transmission equipment on an existing
wireless tower or base station, provided this action does not substantially change the physical dimensions -
of the tower or base station.' The full text of Section 6409(a) is reproduced in the Appendix to this Public
Notice.
To date, the Commission has not received any formal petition to interpret or apply the provisions of
Section 6409(a). We also are unaware of any judicial precedent interpreting or applying its terms. The
Wireless Telecommunications Bureau has,however,received informal inquiries from service providers,
facilities owners, and state and local governments seeking guidance as to how Section 6409(a) should be
applied. In order to assist interested parties, this Public Notice summarizes the Bureau's understanding of
Section 6409(a) in response to several of the most frequently asked questions.' • •
What does it mean to"substantially change the physical dimensions" of a tower or base station?
Section 6409(a) does not define what constitutes a"substantial[] change" in the dimensions of a tower or
base station: In a similar context, under the Nationwide Collocation Agreement with the Advisory •
Council on Historic Preservation and the National Conference of State Historic Preservation Officers,the
Commission has applied a four-prong test to determine whether a collocation will effect a"substantial
increase in the size of[a] tower."' A proposed collocation that does not involve a substantial increase in
Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, H.R.3630, 126 Stat. 156(enacted Feb. 22,
2012)(Tax Act).
2 Id.,§ 6409(a).
' Although we offer this interpretive guidance to assist parties in understanding their obligations under Section
6409(c),see, e.g.: Truckers United,Jbr Safety v. Federal Highway Administration, 139 F.3d 934(D.C.Cir. 1998),the
Commission remains free to exercise its discretion to interpret Section 6409(a)either by exercising its rulemaking
authority or through adjudication. With two exceptions not relevant here,the Tax Act expressly grants the
Commission authority to"implement and enforce"this and other provisions of Title VI of that Act"as if this title is
a part of the Communications Act of 1934(47 U.S.C. 151 et seq.)." Tax Act § 6003. •
47 C.F.R. Part 1,App.B,Nationwide Prograrmnatic Agreement for the Collocation of Wireless Antennas, § I.0
(Nationwide Collocation Agreement).
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size is ordinarily excluded from the Commission's required historic preservation review under Section
• 106 of the National Historic Preservation Act(NHPA).5 The Commission later adopted the same
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definition in the 2009 Declaratory Ruling to determine whether an application will be treated as a
collocation when applying Section 332(c)(7) of the Communications Act of 1934.6 The Commission has
also applied a similar definition to determine whether a modification of an existing registered tower
• requires public notice for purposes of environmental review.?
Under Section I.0 of the Nationwide Collocation Agreement, a"substantial increase in the size of the
tower" occurs if:
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I) [t]he mounting of the proposed antenna on the tower would increase the existing height of
• the tower by more than 10%, or by the height of one additional antenna array with separation
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from the nearest existing antenna not.to exceed twenty feet, whichever is greater, except that
the mounting of the proposed antenna may exceed the size limits set forth in this paragraph
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if necessary to avoid interference with existing antennas; or
2) [t]he mounting of the proposed antenna would involve the installation of more than the
standard number of new equipment cabinets for the technology involved, not to exceed four,
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or more than one new equipment shelter; or
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3) [t]he mounting of the proposed antenna would involve adding an appurtenance to the
body of the tower that would protrude from the edge'of the tower more than twenty feet, or
more than the width of the tower structure at the level of the appurtenance, whichever is
greater, except that the mounting of the proposed antenna may exceed the size limits set •
forth in this .paragraph if necessary to shelter the antenna from "inclement weather or,to
connect the antenna to the tower via cable; or
4) [t]he mounting of the proposed antenna would involve excavation outside the current
tower site, defined as the current boundaries of the leased or owned property surrounding the
tower and any access or utility easements currently related to the site.
• Although Congress did not adopt the Conunission's terminology of"substantial increase in size" in
Section 6409(a), we believe that the-policy reasons for ekcluding from Section 6409(a)collocations that
substantially change the physical dimensions of a structure are closely analogous to those that animated
the Commission in the Nationwide Collocation Agreement and subsequent proceedings. In light of the
Commission's prior findings, the Bureau believes it is appropriate to look to the existing definition of
"substantial increase in size"to determine whether the collocation,removal, or replacement of equipment ,
5 See 16 U.S.C. § 470f,see also 47 C.F.R. § I.I307(x)(4) (requiring applicants to determine whether proposed
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facilities may affect properties that arc listed,or are eligible for listing, in the National Register of Historic Places). -
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6 See Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review
and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as
Requiring a Variance, WT Docket No. 08-165,Declaratory Ruling,24 FCC Rcd. 13994, 14012,para.46 &n.146
(2009)(2009 Declaratory Ruling),recon. denied, 25 FCC Rcd. 11157(2010),pet.for review denied sub nom. City
•of Arlington, Texas v. FCC,668 F.3d 229(5'"Cir.),cert. granted, 113 S.Ct. 524(2012);47 U.S.C.§ 332(c)(7).
See 47 C.F.R. § 17.4(c)(l)(B);National Environmental Policy Act Compliance for Proposed Tower Registrations,
WT Docket No. 08-61, Order on Remand,26 FCC Rcd. 16700, 16720-21,para. 53 (2011).
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on a wireless tower or base station substantially changes the physical dimensions of the underlying
structure within the meaning of Section 6409(a).
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What is a "wireless tower or base station"?
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A"tower"is defined in the Nationwide Collocation Agreement as"any structure built for the sole or
primary purpose of supporting FCC-licensed antennas and their associated facilities."s The Commission
has described a"base station"as consisting of"radio transceivers, antennas, coaxial cable, a regular and
backup power supply, and other associated electronics."9 Section 6409(a) applies to the collocation, •
• removal, or replacement of equipment on a wireless tower or base station. In this context, we believe it is
reasonable to interpret a"base station" to include a structure that currently supports or houses an antenna, •
transceiver, or other associated equipment that constitutes part of a base station.10 Moreover,given the
absence of any limiting statutory language, we believe a"base station" encompasses such equipment in
any technological configuration, including distributed antenna systems and small cells.
Section 6409(a) by its terms applies to'any "wireless" tower or base station. By contrast, the scope of
Section 332(c)(7) extends only to facilities used for"personal.wireless services" as defined in that
section.'1 Given Congress's decision not to use the pre-existing definition from another statutory
provision relating to wireless siting, we believe the scope of a "wireless" tower or base station under
Section 6409(a) is not intended to be limited to facilities that support"personal wireless services"under
Section 332(c)(7). •
May a state or local government require an application for an action covered under Section
6409(a)?
Section 6409(a) states that a state or local government "may not deny, and shall approve, any eligible •
facilities request...." It does not say that a state or local government may not require an application to be
filed. The provision that a state or local government must approve and may not deny a request to take a
covered action, in the Bureau's view, implies that the relevant government entity may require the filing of
an application for administrative approval.
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8 See Nationwide Collocation Agreement, § I.B.
9 See Implementation of Section 6002(b)of the Omnibus Budget Reconciliation Act of 1993,WT Docket No. 10-
133,Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including
Commercial Mobile Services, Fifteenth Report, 26 FCC Rcd. 9664,9481,para. 308 (2010. •
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- See also 47 C.F.R.-Part I, App. C, Nationwide Programmatic Agreement Regarding the Section l06 National
Historic Preservation Act Review Process, § II.A.14(defining"tower" to include"the on-site fencing,equipment,
• switches,wiring,cabling,power sources,shelters,or cabinets associated with that Tower but not installed as part of
an Antenna as defined herein").
47 U.S.C. § 332(c)(7)(A). "Personal wireless services" is in turn defined to mean"commercial mobile services,
unlicensed wireless services,and common carrier wireless exchange access services." Id. § 332(c)(7)(C)(I).
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Is there a time limit within which an application must be approved?
Section 6409(a)does not specify any period of time for approving an application. However, the statute
clearly contemplates an administrative process that invariably ends in approval of a covered application.
We believe the time period for processing these applications should be commensurate with the nature of
the review.
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In the 2009 Declaratory Ruling, the Commission found that 90 days is a presumptively reasonable period
of time to process collocation applications." In light of the requirement of Section 6409(a)that the -
reviewing authority"may not deny, and shall approve"a covered request,we believe that 90 days should
be the Maximum presumptively reasonable period of time for reviewing such applications,whether for
"personal wireless services"or other wireless facilities.
Wireless Telecommunications Bureau contact: Maria Kirby at(202)418-1476 or by email: •
Maria.Kirby @fcc.gov.
-FCC-
For more news and information about the Federal Communications Commission
• please visit:www.fcc.gov -
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iz See 2009 Declaratory Ruling,24 FCC Rcd.at 14012-13,paras.46-47.
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APPENDIX
SEC. 6409. WIRELESS FACILITIES DEPLOYMENT. •
(a) FACILITY MODIFICATIONS.
(1) IN GENERAL. Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law
104-104) or any other provision of law, a State or local government may not deny, and shall approve, any
eligible facilities request for a modification of an existing wireless tower or base station that does not
substantially change the physical dimensions of such tower or base station.
(2) ELIGIBLE FACILITIES REQUEST. For purposes of this subsection, the tenn "eligible facilities
request",means any request for modification of an existing wireless tower or base station that involves—
(A) collocation of new transmission equipment;
(B)removal of transmission equipment; or
(C)replacement of transmission equipment.
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(3) APPLICABILITY OF ENVIRONMENTAL LAWS. Nothing in paragraph (1) shall be construed to
relieve the Commission from the requirements of the National Historic Preservation Act or the National
Environmental Policy Act of 1969.
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