Staff Response to Comments
Received on the Tower Ordinance
Planning Division Memorandum - November 26, 1997
The following is a response to general questions raised regarding the proposed tower amendments
and to specific issues raised in a November 14, 1997 letter from Peter Beck of the law firm
Doherty, Rumble and Butler.
Do the proposed amendments comply with the Federal Telecommunications Act?
Yes. The Federal Telecommunications Act requires that cities not have the effect of prohibiting
wireless service within their jurisdictions. The Code does not have the effect of prohibiting
wireless service within Bloomington today, nor would it have that effect after the proposed
amendments are enacted. By analyzing sites within Bloomington available for towers after the
proposed amendments are enacted, it is clear that numerous sites will be available and that
these sites are well distributed throughout the city. It is also important to note that the
tower networks of the five cellular/PCS/ESMR providers currently operating in Bloomington
(AirTouch, ATT Wireless, Sprint PCS, Aerial, and Nextel) are 100% in compliance with the height
changes proposed in the amendment, a further indication that the amendment would not have the
effect of prohibiting service within the city.
Will the proposed amendments result in more towers citywide than would occur if the amendments
were not made?
Probably not, but under certain circumstances, it could.
It is generally true that providers can choose between tower networks with tall towers and few
sites or shorter towers and more sites. In most cases, this is a business decision for the
providers. However, strict height caps can tend to make the tall towers/few sites scenario less
achievable. Because cities desire the benefits of wireless service and because the Federal
Telecommunications Act requires that cities not prohibit the service, cities are placed in a
"pick your poison" situation regarding tower height limits. What impacts does a city most want
to avoid, the larger visual impact of tall towers or the lesser visual impact of shorter towers
that may affect more people? One method is not clearly preferable to the other until the needed
antenna heights drop to around 30 feet in height, in which case they can be easily colocated on
existing utility poles and have very little visual impact (a technology that firms such as
Qualcomm and Nokia are working on but is not yet widely available).
None of the six active wireless providers has erected a 100 foot plus tower outside an
industrial area in the past although the ordinance gave them every right to do so. Nor are any
of these providers seeking a 100 foot plus tower outside an industrial area today. Although
some would say the Twin Cities wireless market is saturated with six providers, the possibility
does exist that additional providers would enter the market in the future. In fact, three
additional PCS licenses for this region have already been sold to Nextwave, Norcoast Wireless,
and ATT Wireless (who also has a cellular license). If a new provider were to break with the
system configurations of the previous six providers and seek a network of very tall towers
citywide, the proposed amendments would limit that approach and could cause the provider to
develop more towers than otherwise planned.
An even more likely source of 100 foot plus towers in non-industrial areas are speculative
tower owners. There are groups actively looking for sites to erect towers which would be used
to lease antenna space for miscellaneous antennas such as two way radio and paging. The
speculative tower differs from the cellular/PCS/ESMR tower in so far as it is not as location
sensitive and it is usually developed with the philosophy "the taller the better". Bloomington
has less of a need for these types of towers compared to other suburban communities due to the
relative abundance of tall buildings that can accommodate miscellaneous antennas. The proposed
amendments would encourage speculative towers to locate in industrial areas where their height
can be maximized.
It is true that the proposed amendments have the possibility to increase the number of towers
citywide under a certain set of circumstances. As a matter of public policy, the City must
weigh the impact of the potential of additional towers versus the impact of having tall towers
(150-170 feet) at undesirable sites such as schools or neighborhood commercial centers.
Why treat towers differently than buildings in regards to height limits?
The current tower ordinance was prepared in 1996 after numerous meetings with the wireless
providers. One of the first subjects that came up was tower height limits. With the absence of
a height limit, one of the available approaches was to treat towers the same as buildings in
terms of height limits. This approach would have been very restrictive for towers, however, and
the providers spoke adamantly against it. For example, a building within 300 feet of protected
residential property is limited to 40 feet in height and within 600 feet of protected
residential property is limited to 80 feet in height. Thus, towers were given more lenient
height restrictions than buildings to provide more workable sites for towers.
Staff finds it odd that Mr. Beck now objects to treating towers differently than buildings for
height restriction purposes. Applying the building height restrictions to towers would greatly
reduce the universe of tower sites available. To illustrate, there are currently 12 approved
wireless towers in Bloomington. Under the current ordinance, all 12 comply with the height
restrictions. If the proposed amendments were enacted, 11 of the 12 towers would remain in
compliance. If towers received the same height limits as buildings, however, only 5 of the 12
would remain in compliance.
Why allow public safety radio towers to exceed the height limits for towers?
There are technical and health, safety, and welfare issues that make height exceptions for
public safety radio towers appropriate. While the wireless providers typically use directional
antennas that work well with monopoles, public safety radio typically uses omnidirectional
antennas that are not well suited to monopoles. By placing an omnidirectional antenna next to a
monopole, a large coverage "shadow" is created which results in gaps in coverage.
Public safety towers generally must accommodate a high number and wide range of antennas. The
tower at city hall, for example, is covered with antennas. Monopoles are not well suited to a
wide variety and high number of antennas due to lack of points of attachment. Requiring a
public safety tower to be a monopole may actually result in the need for multiple towers at
city hall to accommodate the necessary antennas, a result that runs contrary to the philosophy
of minimizing the overall number of towers. Public safety towers generally do not have the
locational flexibility that private towers have in so far as a City can not choose between
several available sites. Often the tower needs to be close to the command center and its
associated ground equipment.
Perhaps the most important reason to afford height exceptions to public safety radio is the
health, safety, and welfare of the city's residents. At times, public safety communications or
the lack thereof can be a life or death issue. In the case of public safety radio, the critical
importance of having high quality service outweighs the desire to minimize visual impact.
How will the tower requirements work as the technology changes in the future?
Wireless technology is constantly evolving. Staff understands that fact. The ordinance in place
today is geared towards the technology of today. As the technology changes, the ordinance will
clearly need to change with it. However, we cannot design an ordinance around the technology of
tomorrow until we know what that technology will be. The most common view is that wireless
antennas will come down in height over time, perhaps even to 30 feet in height, and eventually
wireless service will largely replace wireline service. If that evolution in technology occurs,
it may even be appropriate to consider allowing the antennas in public rights of way. However,
that technology is still on the horizon.
Are the proposed height amendments in line with those of other suburban communities in the
area?
Yes, although some communities are more restrictive and other communities are less restrictive.
Staff conducted a telephone survey of seven other southern and western suburbs (included in the
enclosure for this item): Eagan, Burnsville, Richfield, Edina, Eden Prairie, Minnetonka, and
Plymouth. Some cities, notably Burnsville and Richfield, are less restrictive than Bloomington.
Other cities are more restrictive. For example, Edina has a citywide cap of 125 feet, no height
bonus for multi-user towers, and requires that towers over 75 feet in height be located over
six times their height from protected residential property. Minnetonka does not even allow
towers outside of industrial areas. Eagan allows commercial towers only in industrial and
public facility districts.
***********
The text in italic typeface is from the November 14, 1997 letter from Peter Beck. Text in
regular type face is a staff response.
The proposed amendments:
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Prohibit wireless communication poles from all residential property, including
apartment building complexes, in the City and all property located within four times the
height of a proposed pole from any residential property, regardless of intervening land
uses and impacts. This prohibition will eliminate many potential sites for wireless
communication facilities and further reduce the universe of available sites within
Bloomington for the infrastructure necessary to support wireless services.
Under the current Code, PCS and cellular towers are not allowed on residential properties such
as single family homes, townhomes, apartments, or vacant residential lots. The proposed
amendment makes no changes in that respect. Providers are allowed and encouraged to utilize
taller residential structures for roof or wall mounted antennas.
The required setback from designated residential property is two times the tower height
in commercial and industrial zones and four times the tower height in residential zones (such
as parks and schools). The proposed amendment would not affect the ratios but it would add
multiple family zoning districts into the group of properties from which the setback
requirement would apply.
The amendment would reduce the universe of sites available for the erection of towers in so far
as it would remove sites near multiple family dwelling units and it would prohibit very tall
towers (120-170 feet) from parks, schools, and neighborhood commercial centers. Overall, only a
small fraction of the universe of sites currently available to towers would be removed by the
proposed ordinance. The Code would remain in compliance with the Federal Telecommunications
Act, which requires that cities not have the effect of prohibiting wireless service within
their jurisdictions. An analysis of available tower sites shows that they are well distributed
throughout the city. An analysis of the five providers currently operating (AirTouch, ATT
Wireless, Sprint PCS, Aerial, and Nextel) shows that their tower networks are 100% in
compliance with the height changes proposed in the amendment, a further indication that the
amendment would not have the effect of prohibiting service within the city.
The proposed amendments:
-
Increase setback requirements from multiple family property to four times the height of
the pole. This increased setback requirement will force wireless communication poles away
from desirable locations along property lines behind existing uses, and will force wireless
provides to build shorter poles than they need. Shorter poles mean less coverage, reduced
service levels and fewer collocation opportunities, all of which add up to a need for
additional poles to provide coverage for all carriers.
Again, a setback of four times the tower height from designated residential property applies
only to residentially zoned tower sites, such as schools, parks, or switching stations. When a
tower is located on a commercial or industrial site, the required setback (which is actually a
height limits but functions as a setback requirement) is two times the tower height. The
amendment proposes adding multiple family zoning districts to the group of residential
properties from which the setback would apply. This change would force towers away from rear
property lines only if they abutted residential uses on the rear. In many cases, the
residential uses are across the street, which would cause the towers to be pushed towards the
rear of commercial and industrial properties where they are less obtrusive.
Protecting multiple family dwelling units from having towers in close proximity will not force
wireless providers to build shorter towers, it will simply cause them to shift them further
away from the multiple family dwelling units. In few cases would entire parcels become
unavailable due to proximity to designated residential property. In most cases, only portions
of parcels would become off limits. The addition of a 100/120 foot height cap in non-industrial
zoning districts, however, could create a need for additional poles under a certain set of
circumstances (please see the above answer to the question "will the proposed amendments result
in more towers citywide than would occur if the amendments were not made?")
The proposed amendments:
-
Limit the height of wireless communication poles to 100 feet in all but industrial
zones. This height restriction will eliminate even more collocation opportunities,
resulting in even more poles in order to meet the needs of all carriers.
The proposed amendment would cap tower height in non-industrial zoning districts at 100 feet
for single user towers and 120 feet multi-user towers. Height caps in industrial districts
would remain at 150 feet for single user towers and 170 feet for multi-user towers. The height
caps could reduce colocation opportunities only if two new providers enter the market who both
want a system of towers in the 100-170 foot range. There are currently no cellular or PCS
providers looking in this height range.
The two cellular systems, AirTouch and ATT Wireless have their Phase I systems in place, and
are currently looking only for infill sites well below 100 feet. The two existing PCS
providers, Sprint PCS and Aerial have completed Phase I of their systems and are not currently
looking for additional sites in Bloomington. When they do need infill sites down the road,
every indication is that they will be at heights lower than 100 feet. Another PCS provider, US
West Wireless is currently building out its system in Bloomington and is proposing no tower
over 93 feet in height. Commendably, the ESMR provider, Nextel, has built out its entire system
with colocations on rooftops and existing towers. Nextel is looking for roof mounted infill
sites in Bloomington but at heights below 100 feet.
Thus, if the City is to see additional 100 foot towers it will likely be from one of two
sources: 1) speculative towers for two-way radio and paging antennas or 2) new wireless
providers. There are parties interested in erecting speculative towers in Bloomington for the
purpose of leasing space for two way radio, paging, and other miscellaneous antennas. This type
of tower differs from cellular/PCS/ESMR towers in so far as it has a lot more locational
flexibility and is often developed with the approach "the taller the better". Due to these
criteria, these sorts of towers are best suited to industrial locations where their visual
impact on neighboring properties is minimized. The 100 foot height cap for towers in
non-industrial zones would tend to push these types of speculative towers towards industrial
zones where they can acquire greater height.
Another possibility for new 100 foot plus towers would be through the addition of new
providers. Some would argue that, with six providers, the Twin Cities wireless market is
saturated, or even oversaturated. Still, the possibility exists for additional providers to
enter the market. Unused PCS licenses for this area have been sold to Nextwave, Norcoast
Wireless, and ATT Wireless. None of the three active PCS providers have erected or proposed 100
foot plus towers in non-industrial zoning districts.
The proposed 100/120 foot height cap for non-industrial areas could have the effect of limiting
colocation opportunities if each of the following circumstances were to occur: 1) two or more
new providers enter the market, 2) both of these two new providers break with the deployment
patterns set by the existing providers and desire 100 foot plus towers in non-industrial zoning
districts, and 3) both of these two new providers desire to locate their towers in close
proximity to one another. In that case, the proposed Code amendment could have the effect of
limiting colocation opportunities.
The staff report indicates that the proposal before the City Council is an "ordinance
amending height restrictions for towers". This is not the case. The prohibitions and
restrictions proposed in the ordinance amendment apply only to wireless communication
facilities, which are required by the existing ordinance to be monopoles. The ordinance
amendment does not apply to poles or towers of the same height with lights or electric wires
attached to them, nor to water towers, office towers, or any other structure or use in the
City. None of these towers are impacted by the prohibitions and restrictions set forth in the
amendment, which applies only to poles with antennas attached to them. We do not understand why
the presence of an antenna, alone, transforms an otherwise acceptable pole or tower to one
which is anathema to the community.
Wireless towers are not "anathema" to the community. These towers are a byproduct of providing
wireless service to the community. The City desires to facilitate wireless service but also has
the responsibility of ensuring that that service is provided in the least obtrusive fashion
possible. It should again be pointed out that the height restrictions for office towers are
more restrictive than those proposed for towers. Height exceptions are afforded to structures
when the nature of the structure demands that it exceed the height limits in order to function
and those structures are necessary for the general health, safety, and welfare. The fact that
all five of the currently operating wireless providers have built systems that conform to the
proposed height limits when they were under no obligation to do so, demonstrates that they are
workable limits.
The staff report also refers to wireless communication monopoles as a "high impact land
use". We strongly disagree with this characterization. Wireless communication facilities
generate no traffic, no noise, no light and no odors or other emissions. The impact associated
with these facilities is that they are visible. In that regard, they have less impact than a
light pole of the same height, which is just as visible during the daytime and emits light at
night; less impact than a string of lattice towers with electric wires attached to them; less
impact than a water tower, and less impact than an office tower, which generates traffic, air
pollution, noise and light. However, none of these towers, which have significantly more
impacts on surrounding land uses, are covered by the prohibitions and restrictions proposed in
the ordinance amendment.
Towers, due to their height, have the ability to visually impact properties far beyond those
immediately adjacent to the tower. Certainly, other tall structures have the same ability. It
is important to note that the wireless providers are not public utilities and are not directly
comparable with public utilities. Moreover, some public utilities are required to be placed
underground, such as electric lines. Each technology and land use must be evaluated on its own
impacts and limitations.
Finally, the staff report concludes that the proposed ordinance amendments will have little
impact on the industry, because "staff senses little demand for towers over 100 feet in
non-industrial zoning districts". This analysis is completely erroneous. When AWS turned on its
Twin Cities cellular system in 1984 it had one cell in Bloomington, located on top of the NFC
Tower. The fact that we did not need additional sites in Bloomington at that time did not mean
we would not need any in the future.
Staff was not suggesting that no new towers will ever be needed in the future, but rather that
no provider is currently seeking sites for 100 foot plus towers.
Over the past 13 years the AWS system has grown from nine cell sites to over 100 cell
sites, and is continuing to grow at the rate of 15-20 cell sites a year as consumer demand for
this technology skyrockets. AWS now has three cell sites in Bloomington, and will need more in
the future. The fact that we have not needed a site on or within four times the height of the
pole from a multi-family use in the past does not mean that we will not need such a site in the
future. In fact, as the number of cell sites increases, the need is for a wider universe of
available sites, not a narrower one.
As wireless technology evolves, staff recognizes that Bloomington's regulations will need to
evolve accordingly.
Furthermore, the fact that there has been little demand for towers over 100 feet in height
is a factor primarily of the extraordinary setback requirements in the existing ordinance, and
the disincentives in the existing ordinance for collocation. The four times the height setback
requirement in the existing ordinance eliminates many potential sites, and pushes poles away
from property lines and into more visible locations toward the middle of development
properties. Poles are being held to the lowest height possible in an effort to find workable
site: The result is that:
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collocation opportunities are being lost, because the poles do not have enough height
to accommodate additional users.
-
poles are being placed in more visible locations than necessary;
-
wireless service provided to Bloomington customers is not as good as it could be if
poles were in the locations and at the heights needed; and
-
Bloomington has more poles, at lower heights, in more visible locations than
necessary.
The proposed amendment will accelerate all of these results.
Actually, the majority of the wireless towers developed to date have heights well below the
applicable height limits. Existing tower heights are much more a reflection of the business
approaches of the respective providers than a reflection of the City's height limits.
The focus of the tower ordinance has been colocation. Before the tower ordinance was enacted,
there were 9 wireless antenna sites in Bloomington; 2 of those 9 sites (22%) were colocations
on buildings. Since the tower ordinance was adopted in July of 1996, 23 applications for
wireless antenna sites have been approved; 17 of these 23 approved applications (74%) have been
for colocations on towers, water towers, power line support structures, or buildings.
The proposed ordinance amendment creates a whole new definition, "designated residential
property", for the sole purpose of treating wireless communication facilities differently from
every other use in the City. The City has a wide amount of discretion when writing and amending
its zoning ordinance. However, there must be some rational basis for concluding that the
impacts of a wireless communication monopole are so extraordinary that these poles must be
subject to height and setback restrictions which do not apply to similar, higher impact uses as
light towers, electric towers, water towers or even office towers. We see nothing in the staff
report on which such a finding could be made.
As discussed above, the height limits for towers are less restrictive than those for buildings
but are more restrictive than some public utility uses such as water towers. In setting height
limits and exceptions, the City is placed in the role of evaluating the technical height needs
of particular uses, complying with state and federal laws, and considering the potential
impacts to the health, safety, and welfare of the community. Limiting the height of towers may
represent added costs for providers since they have to spend extra time looking for creative
colocation alternatives and engineering their systems in a land use sensitive fashion. Limiting
the height of a water tower, however, may reduce water pressure over a large area, limiting
fire fighting ability for large numbers of residents. The inconveniences created by height
limits applicable to towers are not comparable to the impacts that would be created by height
limits on public utility structures such as water towers.
The only rationale stated is that to treat other uses the same as the ordinance proposes to
treat wireless facilities would have "a major impact on commercial redevelopment of the City".
For instance, a second NFC building could only be 80 feet tall. By what logic does a 100-foot
communications monopole have more impact on adjoining residential uses than a 24-story NFC
Tower?
Towers and buildings are not treated identically under the existing Code or proposed
amendments. Overall, the height limits for towers are less restrictive than those for
buildings. treating towers and buildings in an identical fashion in regards to height limits
would reduce the universe of sites available for towers and render the majority of existing
towers within the City non-conforming.
The City's skyline ordinance treats single-family and multi-family residential differently.
That decision was made seven years ago. If that decision was wrong, it should be addressed with
respect to all uses. There is no basis for creating a special definition in order to treat this
use, which has significantly lower impacts than virtually any other use, differently than
similar uses.
By virtue of their height, staff disagrees that towers have "significantly lower impacts than
virtually any other use".
The existing wireless communication ordinance has many flaws, as we pointed out to the
Planning Commission and City Council when it was adopted. It prohibits wireless facilities from
many areas of the City, and it makes it very difficult for wireless providers to adequately
serve Bloomington. The height and setback requirements have forced down the height of poles,
but the price has been more poles than would otherwise be necessary, in locations that are more
visible and at heights which in many cases will not allow for future collocation, triggering a
need for even more poles in the future.
For the reasons mentioned above, staff disagrees with Mr. Beck's conclusions regarding the
existing tower ordinance.
The proposed ordinance amendments will exacerbate this situation. The height and setback
restrictions will further reduce the height of new poles, creating a need for even more poles
in the future. The prohibition from all property in or within four times the height of a pole
from any residential use will eventually create a situation where one or more providers are
prohibited from effectively serving the City because there are no available sites which comply
with all of the restrictions.
We request that the City not adopt the proposed ordinance amendments, and suggest that the
City consider amendments to the ordinance which will create a situation where poles can be
developed that will accommodate future collocation, reduce the number of poles needed in the
future, and ensure that wireless communication services are available throughout the City.
The required setback from designated residential property is two times the tower height
in commercial and industrial zones and four times the tower height in residential zones (such
as parks and schools).
The Code does not have the effect of prohibiting wireless service within Bloomington today, nor
would it have that effect after the proposed amendments are enacted. By analyzing sites within
Bloomington available for towers after the proposed amendments are enacted, it is clear that
numerous sites will be available and that these sites are well distributed throughout the city.
It is also important to note that the tower networks of the five cellular/PCS/ESMR providers
currently operating in Bloomington (AirTouch, ATT Wireless, Sprint PCS, Aerial, and Nextel) are
100% in compliance with the height changes proposed in the amendment, a further indication that
the amendment would not have the effect of prohibiting service within the city.
For more information, contact:
Planning Division
PH: 952-563-8920, FAX: 952-563-8949
E-mail: planning@ci.bloomington.mn.us
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