Report to the Planning Commission
June 6, 1996

Background on the Original Code Amendments

GENERAL INFORMATION

Applicant: City of Bloomington

Request: 1) Amend Chapters 15 and 19 of the City Code by establishing standards for towers, specifying zoning districts where towers may occur, and deleting a 90 day moratorium within the City on the construction of new towers and on the use and development of property for such new towers; and 2) Adopt a policy statement regarding the use of City owned land for telecommunication antennas, towers, and facilities.

Background

Until recently, wireless telephone service was provided in Bloomington by only two federally licensed providers, US West New Vector Group (currently being marketed under the trade name AirTouch) and ATT Wireless (who bought out Cellular One). In 1995, the Federal Communications Commission (FCC) widened the wireless telecommunications playing field by selling two additional licenses in new frequency ranges (netting $7 billion nationwide). For this area, those licenses were purchased by Sprint Spectrum and American Portable Telecomm (APT). Both Sprint and APT will provide the next generation digital wireless services commonly referred to as PCS (Personal Communication Services). A few weeks ago, the FCC sold an additional PCS license for each region (netting over $10 billion nationwide) and may sell even more PCS licenses in the future. A sixth wireless telecommunications provider is OneComm, who entered the mix by purchasing several of Motorola's Specialized Mobilized Radio (SMR) licenses and then obtaining FCC approval to attach their enhanced system (ESMR) to the land line telephone network.

The expansion of the wireless telecommunications industry, along with its recent technological improvements, will have many positive effects on Bloomington's residents, including lower rates, higher quality service, higher security, and the ability to transmit data and video signals from remote locations. Unfortunately, the positive aspects of this new technology will be accompanied by a proliferation of new communication towers. Each of the four new wireless telecommunication providers will need to set up its own antenna and tower infrastructure in the near future. The two existing providers will also require additional tower sites as their systems continue to evolve. Even more towers will be needed as the FCC auctions additional licenses to new providers. Local governments will need to work closely with the wireless telecommunications industry to provide high quality service while minimizing the negative impacts of numerous communication towers.

Federal Telecommunications Act

Another recent telecommunications development is the passage of the Federal Telecommunications Act. The Act originally included language that would override a municipality's zoning controls over telecommunication towers. This language was removed shortly before passage, however, and the Act now reads, "Except as provided (herein), nothing in this act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities." The Act does place three important limitations on local governments: 1) cities may not "unreasonably discriminate among providers of functionally equivalent services", 2) cities may not "prohibit or have the effect of prohibiting the provision of personal wireless services", and 3) cities may not regulate personal wireless services "on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the (FCC's) regulations concerning such emissions."

Amateur Radio Towers and PRB1

In 1985, the Federal Communications Commission limited the extent to which local governments could regulate amateur radio antennas and towers through the ruling PRB1. Simply stated, PRB1 requires that "local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose."

Amateur radio tower dispute cases involving PRB1 have reached several Federal Circuit Courts with varying results. No case has reached the U.S. Supreme Court, however. The fact that the cases have been litigated in different Circuits means that there is no definitive, binding rule of law that may be garnered from the cases. Localities are best advised to consider those cases within their Circuit. Within our Eighth Circuit, a major case was Pentel v. City of Mendota Heights(1994) in which the court overturned the city's denial of a 68 foot amateur radio tower. Bloomington's zoning ordinance currently limits amateur radio towers to 30 feet in height. The amendments proposed would bring the zoning ordinance into conformance with PRB1.

Existing Regulations

Over the last few months, City staff has received numerous inquiries from wireless telecommunication providers regarding the location of antennas and towers on City owned and privately owned land. These inquiries, along with the recent passage of the Federal Telecommunications Act, have forced a re-evaluation of Bloomington's zoning restrictions on wireless telecommunications facilities. In the past, cellular towers in Bloomington have been considered "public utility uses" for the purposes of obtaining development approval. As a "public utility use", the towers are allowed as a permitted use in all zoning districts and are exempt from the height restrictions. Moreover, there are no design requirements or performance standards in place to ensure that the tower blends into its surroundings to the maximum extent possible. As a "public utility use", the existing regulations could, in theory, allow the placement of a 140 foot metal frame tower on a vacant residential lot.

Today's wireless telecommunication providers do not fit well into the classic "public utility" image. true public utilities have a monopoly on the provision of an essential service and are heavily regulated. Today, with six private providers competing for customers, wireless telecommunications is moving even farther away from what we think of as a "public utility". If, for development approval purposes, wireless telecommunication facilities were not considered "public utility uses", towers would be subject to a very different set of restrictions under Bloomington's current zoning ordinance. First of all, none of the zoning districts reference telecommunication towers as a permitted or conditional use. This fact leaves open to interpretation where towers would be allowed. Moreover, the towers would be subject to the height limitations for structures. Under these height limitations, a tower over 80 feet in height (which most towers are) would have to be located at least 600 feet from the nearest "protected residential property". These height restrictions would preclude placement of towers in large areas of Bloomington and would leave the City open to the challenge that the regulations "have the effect of prohibiting the provision of personal wireless services" as specified in the Federal Telecommunications Act.

In summary, the regulation of towers under Bloomington's current zoning ordinance depends largely on whether or not they are classified as "public utility uses". When classified as "public utility uses", the existing regulations clearly do not provide Bloomington's residents with adequate protection against the negative impacts of telecommunication towers. When not classified as "public utility uses", the existing regulations become so restrictive that they may violate federal law. Either interpretation is very undesirable for the City of Bloomington.

Ordinance Revisions

Staff's overriding goals in the preparation of the ordinance were threefold:

To minimize the overall number of towers through co-location requirements;
To ensure that new towers will be safe, blend into their environments when possible, and be placed in suitable locations; and
To bring the zoning ordinance into conformance with federal requirements.

Below is a summary of the proposed ordinance changes by section:

Changes to Section 15.14

Section 15.14 of the Building Code currently regulates the construction and maintenance of radio and television antennas and supporting towers. Changes include:

The section has been revised to apply to all towers, not simply radio and television towers.
New definitions have been added to conform to the definitions proposed in the zoning ordinance.
The section has been revised to require building permits in all zoning districts, not simply in residential districts.
The exemption of permit and construction requirements for towers erected by the City of Bloomington has been removed.
The section has been revised to require towers to conform to the latest structural and wind loading standards of the Electronics Industry Association in addition to those in the Uniform Building Code.
The variance provisions specific to Section 15.14 have been deleted in favor of the variance provisions common to other land uses.

Changes to Section 19.03, Definitions

New definitions have been added for the terms "antenna", "commercial wireless telecommunication services", "public utility", "tower", "multi-user tower", and "single-user tower".

Changes to Section 19.23.03

This section, approved by the City Council on April 15, 1996, established a 90 day moratorium on the construction of towers. The proposed ordinance would cancel the moratorium effective upon passage of the ordinance.

Changes to District Uses, Sections 19.27 through 19.40.09

Towers have been added as conditional uses to all zoning districts except the Conservation District "SC" and the High Intensity Mixed Use District "HX-2" (where there are no conditional uses). Towers supporting amateur radio towers which otherwise comply with the requirements of Section 15.14, 19.47, and 19.63 have been added as permitted accessory uses in the single-family residential zoning districts. On a housekeeping note, "public and public utility uses" have been added to the General Business (B-3) District.

Several of the providers have requested that towers be classified as permitted uses in industrial zoning districts. Staff feels that, since a conditional use permit requires no greater time for approval than standard final site and building plans, the City should retain the discretion afforded by the conditional use permit process.

Changes to Height Limitations, Section 19.47

In recognition that the existing height limitations for structures may be overly restrictive when applied to towers, several changes have been proposed to Section 19.47 including:

A description of how the height of towers shall be determined.
Height limitations which are dependent upon the location of the tower.
A 20 foot height bonus if a tower is used by two or more providers.
An exception for amateur radio towers to allow tower heights technically necessary to receive and broadcast amateur radio signals up to a maximum height of 70 feet (to comply with the FCC's PRB1 ruling).

New Performance Standards for Towers, Section 19.63.05

The new performance standards include the following provisions:

A statement of purpose section.
A section specifying the residentially zoned sites in which towers will be allowed.
A section on co-location that requires providers to locate new antennas on existing towers or buildings when feasible and to design new towers for multiple users.
A section on design requirements.
A section on setbacks required for towers.
A section requiring utility buildings accessory to a tower to meet the setback requirements of the underlying zoning district and to be screened.
A section requiring abandoned or unused towers to be removed within 12 months and requiring unused portions of towers above a manufactured connection to be removed within 6 months.
A section allowing antennas mounted on roofs, walls, and existing towers to be approved administratively.
A section requiring providers to notify the City of and involve the City in the testing phase of any new or altered service to avoid interference with public safety telecommunications.
A section listing additional submittal information required including a letter of intent committing the tower owner and his or her successors to allow the shared use of the tower if an additional user agrees in writing to meet reasonable terms and conditions for shared use.

Statement of Policy on the Use of City Owned Land

Several of the providers have expressed interest in leasing space on City owned land for their wireless telecommunications facilities. While some City owned land would be inappropriate for such uses, other sites may provide suitable locations and supply a potential revenue stream. The City currently leases land at Dred Scott Park to U.S. West New Vector for an 80 foot monopole cellular tower. It is necessary that the City adopt a consistent statement of policy regarding the placement of such facilities on City owned land, especially in light of the Federal Telecommunications Act which stipulates that cities may not "discriminate among providers of functionally equivalent services". A formally adopted policy will ensure that requests from competing providers are handled on a consistent basis.

RECOMMENDATION

In Case 10000A-96, staff recommends 1) approval of the ordinance amendments to establish standards for towers and delete the 90 day moratorium on towers; and 2) approval of the policy statement regarding the use of City owned land for telecommunication antennas, towers, and facilities.

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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Report to the Planning Commission June 6, 1996