HomeMy WebLinkAbout00073013Staff Analysis:
2. "That the proposed use meets the purpose and intent of the ordinance...." The intent of
the Stealth Technology provision in the ordinance is to encourage creative tower designs
that blend into the surrounding environment with minimal visual impact. Based on
information submitted by the applicant including the visual impact simulation, staff does
not believe that a 118 -foot tall tower in this location meets the intent of the Stealth
Technology ordinance provision.
3. "That the proposed use will not be detrimental to the health... " At a prior public
hearing, adjacent residents expressed concerns about the impacts the smaller tower
previously approved at this location. Residents have also expressed concerns about the
increased impacts associated the proposed taller tower. The puWc hearing is an
opportunity for the Commission to measure additional potential impacts on surrounding
land uses.
Reasons for denial:
Increased height creates increased impact on adjacent neighborhood.
Moving the area toward the front of the property increases the visual impact on Domoik.
Concerns expressed by residents at previous public hearing.
Concerns expressed by Commission at previous hearing, and a split vote by the
Commission.
Concerns expressed by resident regarding the proposed changes.
i
JUL 1 9 2000
CELL TOWER SITING:
ZONING AND PLANNING LAW
IMPLICATIONS
• International Municipal Lawyers Associations
Mid -Year Seminar
Omni Shoreham Hotel
Washington, DC
April 10, 2000
Presented by:John C. Gillespie, Esquire
PARKER, McCAY & CRISCUOLO
Three Greentree Centre
Route 73 and Greentree Road
Marlton, NJ 08053
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." 47 USC Section 332(c)(7)(B), does however, so limit the state or local
government as follows:
The regulation of the placement, construction, and modification of
personal wireless service facilities by any state or local government
or instrumentality thereof - -
(1) Shall not unreasonably discriminate among providers of
functionally equivalent services; and
(II) Shall not prohibit or have the effect of prohibiting the
provision of personal wireless services.
"(ii) A state or local government or instrumentality thereof shall act on
any request or authorization to place, construct, or modify personal
wireless service facilities within a reasonable period of time after
the request is duly filed with such government or instrumentality,
taking in account the nature and scope of such request.
"(iii) Any decision by a state or local government or instrumentality
thereof to deny a request to place, construct, or modify personal
wireless service facilities shall be in writing and supported by
substantial evidence contained in a written record.
"(iv) No state or local government or instrumentality thereof may
regulate the placement, construction and modification of personal
wireless service facilities on the basis of the environmental effects
of radio frequency emission to the extent that such facilities
comply with the Commission's regulations concerning such
emissions.
"(v) Any person adversely affected by any final action or failure to act
by a state or local government or any instrumentality thereof that is
3
personal wireless services." This situation generally arises where a municipality "zones
out" wireless communication facilities by not allowing them as permitted uses in any
zone or simply denies applications for building, zoning, or special use permits for such
activities. In "the early days ", the prohibition also found life through "moratoria" or
"freezes" on the construction of towers. Municipalities simply imposed moratoria and
freezes in order to "get a better handle" on the nature of the industry and the activities
proposed, and, again, to avoid "the fear of the unknown." Cases involving "freezes" are
no longer as frequent, given that municipalities are both more educated and more familiar
with this industry and its activities.
Thus, litigation surrounding this particular clause of the Telecommunications Act
is generally ordinance related, or driven by denials of specific applications.
A. Ordinances.
As practitioners in.the field, we find, far too often, that municipalities simply
make no provision for cellular communication towers and associated facilities as either
permitted uses, accessory uses, or conditional uses under their zoning ordinances. This is
a mistake. Indeed, New Jersey's Supreme Court has encouraged municipalities to adopt
ordinances identifying zones and sites for such facilities. Smart SMR v. Fairlawn Bd. of
Adjustment 152 NJ 309, 334 -336 (1998). Even more recently, that Court has suggested
that a municipality "defaults" on the issue by failing to so zone, thereby giving the carrier
a "leg up" in the application process. New Brunswick Cellular v. South Plainfield Bd. of
Adjustment 160 NJ 1, 15 (1999).
It is not overly complicated for a municipality to enact an ordinance regulating
cellular communications towers. For example, it does not take much imagination to
justify the inclusion of cellular towers as permitted uses in zones typically classified as
"industrial." Such zones generally permit utilities, as well as buildings or operations
which are already in excess of residential height limitations such as hotels, hospitals and
manufacturing plants. Towers may also be appropriate in areas classified as "forest" or
agricultural districts, given their general distance from residential neighborhoods, and the
consequent avoidance of the NIMBY type objections. Moreover, concerns about the
height of a tower are ameliorated when the tower is in a forest surrounded by trees.
5
acted "out of a vacuum."
B. Specific Site Applications: The Typical Factual Situation.
The following typical facts are generally adduced by the applicant
for a cellular communications tower:
1. The applicant provides personal communications services over a
network of wireless telecommunications facilities, pursuant to a
license from the Federal Communications Commission.
2. PCS technology is a new generation of wireless communication
services that uses digital transmission to improve the quality and
reliability of the communications.
3. Under FCC regulations, the applicant operates its wireless
telephone service for the general public as a common carrier.
4. Portable telephones using PCS digital technology operate by
transmitting a very low power radio signal between the telephone
and the applicant's antennas mounted on towers, poles, buildings,
or other structures.
5. In order to provide continuous service to a PCS telephone user,
there must be a series of overlapping cells in a grid pattern
approximating a honeycomb.
6. Without this series of overlapping cells, a PCS telephone users
conversation might be interrupted when he or she enters an area
that is not within a functioning cell, and the service would not be
available, thereby causing the call to abruptly end.
7. The distance from cell site to a PCS telephone needs to be
relatively short.
8. The applicant's engineers use complex computer programs to
complete a propagation study, which shows where a cell site needs
to be located within a cell, based on the boundaries of the cell,
topography of the land, and other factors.
9. Once a potential site is identified, the applicant's engineers verify
7
but which, for various reasons, were not available, thereby leaving the subject site as the
"most suitable site" for the activity. Either the radio frequency engineer, or some other
witness on behalf of the applicant, will further testify that the tower will not interfere with
televisions, radios, household appliances, or with other cell carrier facilities, and
generally that the towers are not harmful to residents, but meet the federal and, if
applicable, state requirements, for radio frequency transmissions.
Applicants will generally produce the testimony of land use planners, who will
advance the notion that the use is "inherently beneficial" and/or that it advances the
public interest; and that this is a suitable site for the particular use. They will urge that
the use will neither negatively impact the zoning plan, nor substantially interfere with the
municipality's master plan. This last piece of testimony is particularly easy for the
planner where the municipality has failed to provide for telecommunications towers
within its master plan and has failed to identify any other sites that would be permitted
for the activity.
Against this backdrop, it is difficult for neighbors to counter such expert
testimony. Neighbors generally care about the aesthetic issues. They fear the unknown
of the radio frequency issues, over which local boards have no jurisdiction. They
complain about de- valuation of their properties caused by the tower's proposed location,
although they generally offer no expert proof in that regard. In short, their testimony is
almost always borne of the NIlVMY mentality.
It is suggested that where a municipality has a legitimate belief that the specific
site is inappropriate, there are a number of ways to validly reject the application. The
first is to have meaningful discussions with the communications provider. They actually
prefer municipal cooperation. The sooner the tower is erected, the sooner they recoup
their expenses and generate revenues. Given the huge amounts of money involved, delay
is an immensely costly proposition. It is incumbent upon the municipality, then, to
encourage, and even assist, the communications provider in finding more suitable
locations that would also meet its "search ring" requirements.
Where municipal cooperation is unavailable, the governmental entity reviewing
the application can, and should, still familiarize itself with other preferable sites in the
I
residential use....is inconsistent with construction of the tower.....And
finally, while the applicant referred to 27 other sites it had examined, it did
not claim or demonstrate that there was no other suitable or adequate site
that could meet its needs. Its reference to 27 sites which were explored
does not negate the possible existence of others that might have served
better and been less intrusive but which were not discussed."
Id. at 160 -161.
The Court's approach to the testimony regarding the 27 other sites is tantamount
to requiring the applicant to "prove a negative ". Under the Court's analysis, a
telecommunications applicant would be required to identify every parcel and tax lot in the
municipality within its "search ring ", perform a propagation study as to each, and then,
based upon those studies, define which sites are suitable for the transmission of the
frequencies. The applicant would then have to negotiate with various owners whose
property qualifies and hope that someone would be interested in allowing the tower to be
constructed on their site. Such a process is unnecessarily unwieldy, overly burdensome,
and too time consuming.
If it wishes to fight the application, local government should also consider the
employment of a real estate expert who can, by way of expert testimony, show the likely
negative impact of the cell tower upon residential real estate values in the neighborhood.
Such concerns are legitimate in the context of evaluating the suitability of the site for the
particular activity.
Notwithstanding the foregoing, it is strongly suggested that cooperation between
the telecommunications carrier and the municipality can result in a "win -win" situation
for all. Yogi Bera recently said "There's no stopping the future." It is equally true that
there's "no stopping the cell towers." It is therefore appropriate for local government to
recognize the needs of this important industry, and attempt to create a means by which a
peaceful co- existence can develop.
Indeed, the New Jersey Supreme Court recently had the following comments
regarding the need for governmental entities and the telecommunications industry to find
a common ground:
"The development of a wireless system that does not adversely
affect surrounding property calls for cooperation between carriers
11
and land use regulators. We anticipate that carriers will continue to
seek sites for telecommunications facilities. Across the country,
antennas will continue to grow to accommodate an increasing
number of subscribers. [The Court cites to one estimate of an
increase of 30,000 new subscribers per day].
At the beginning of the 20`' century, telephone and telegraph
carriers dotted the landscape with poles to support the wires that
were essential for telecommunications. As the century comes to an
end, society is making the transition from wired to wireless
communications. Eventually, towers and monopoles, like the
telephone poles of the past, may become an accepted part of the
scene. At some time, moreover, Congress or the State Legislature
may declare that local land use agencies have no role in deciding
the location of wireless telecommunications facilities. For the
present, we believe it is more consistent with the existing federal
and state statutes to recognize a harmonious role for local land use
agencies in the location of those facilities. That recognition should
permit telecommunications carriers to erect needed
telecommunications facilities on suitable sites." Smart SMR v.
Fairlawn Bd. of Ad]ustment, 152 NJ at 335 -336 (1998).
It is our function as local government attorneys to recognize these realities, and to
guide our clients in effectuating a compromise that balances legitimate public planning
concerns with the needs of an industry that each of us becomes more dependent upon
each day.
12
§ 130 -60.1. Telecommunications towers and antennas. [Added 6 -21 -1999 by Ord. No. 1999 -11]
A. Subject to the conditions set forth in this section, and to plan approval, new
telecommunications towers and antennas shall be permitted as conditional uses in all nonresidential
zoning districts within the Township of Lumberton and upon the proposed new Municipal Complex
located on Municipal Drive. Telecommunications towers and antennas shall not be permitted in the
RA Rural Agricultural District; RA/STDR Sending Area District; RA/R -1 TDR Receiving Area
District; RA/R -2 TDR Receiving Area District; RA/R3 TDR Receiving Area District; RA/R4 TDR
Receiving Area District; RA/R5 TDR Receiving Area District; RA/ST TDR Transition Area District;
R -1.0 Residential Low - Density District; R -2.0 Residential Medium - Density District, with the
exception of Block 19, Lot 2.01, upon which said use shall be permitted as a conditional use; R -6
Residential Townhouse District; R -75 Residential District; and H/A Historic /Architectural Area
District. [Amended 11 -15 -1999 by Ord. No. 1999 -21]
B. Preexisting towers and antennas. Wireless telecommunications towers that existed on the date
of the adoption of this section (nonconforming wireless telecommunications towers) are subject to
the following provisions:
(1) Nonconforming wireless telecommunications towers may continue in use for the purpose
now used, but may not be expanded without complying with this section.
(2) Nonconforming wireless telecommunications towers which are partially damaged or
destroyed due to any reason or cause may be repaired and restored to their former use, location and
physical dimensions subject to obtaining a building permit therefor, but without otherwise
complying with this section. However, should the destruction or damage be determined by the
Lumberton Land Use Board to be of such an extent that it is beyond the scope and intent of the
"partial destruction" clause ofN.J.S.A. 40:55D -68, then repair or restoration will require compliance
with this section.
(3) The owner of any nonconforming wireless telecommunications tower may repair, rebuild
and/or upgrade (but not expand such telecommunications tower or increase its height or reduce the
setbacks) in order to improve the structural integrity of the facility, to allow the facility to
accommodate collocated antennas or facilities or to upgrade the facilities to current engineering,
technological or communications standards, without having to conform to the provisions of this
section.
C. General requirements for towers and antennas.
(1) Locational priority. If needed in accordance with an overall comprehensive plan for the
provision of full wireless telecommunications services within the Lumberton Township area,
wireless telecommunications towers, where permitted as a conditional use, shall be located in
accordance with the following prioritized locations:
(a) Existing towers. The first priority location shall be collocation on existing
telecommunications towers used for transmitting or receiving analog, digital, microwave, cellular,
telephone, personal wireless service or similar forms of an electronic communication, provided,
however, that locations which meet this criteria shall be subject to the design and siting components
of this Ordinance, and collocation sites shall not become "antenna farms" or otherwise be deemed
by the land use board to be visually obtrusive;
(b) Publicly used structures. The second priority location shall be on land or structures owned,
in order of specific preference: (1) the Township of Lumberton; (2) the Board of Education of the
Township of Lumberton; (3) the County of Burlington; (4) the State of New Jersey; (5) any other
state, county or local governmental agencies or bodies. These publicly used structures are preferred
[ 1 ] How the proposed location of the telecommunications tower relates to the obj ect of providing
full wireless communications services within the Township of Lumberton area;
[2] How the proposed location of the proposed wireless telecommunications tower relates to the
location of any existing antennas within and near the Lumberton Township area;
[3] How the proposed location of the proposed telecommunications tower relates to the
anticipated need for additional antennas within and near the Lumberton Township area by the
applicant and by other providers of wireless communications services within the Lumberton
Township area;
[4] How the proposed location ofthe proposed telecommunications tower relates to the objective
of collocating the antenna of many different providers of wireless communications services on the
same wireless telecommunications tower; and
[5] How its plans specifically relates to, and is coordinated with, the needs of all other providers
of wireless communications services within the Lumberton Township area.
(3) State of federal requirements. All towers must meet or exceed current standards and
regulations of the FAA, the FCC and any other agency of the State or Federal Government with the
authority to regulate towers and antennas. If such standards and regulations are changed, the owners
of the towers and antennas governed by this section shall bring such towers and antennas into
compliance with such revised standards and regulations within six months of the effective date of
such standards and regulations, unless a different compliance schedule is mandated by the
controlling state or federal agency, in which case the latter scheduling will control. Failure to bring
towers and antennas into compliance with such revised standards and regulations shall constitute
grounds for the removal of the tower or antenna at the. owner's expense.
(4) Safety standards/building codes. To ensure the structural integrity of towers, the owner of
a telecommunications facility shall ensure that it is maintained in compliance with standards
contained in applicable local building codes and the applicable standards for such
telecommunications facilities, as amended from time to time, and as may be published by the
electronics industries association, or such other agency or association having expertise in the field.
Owners of towers shall conduct periodic inspections of such facilities at least once every year to
ensure structural integrity; said inspection shall be conducted by a qualified, independent engineer
licensed to practice in the State of New Jersey, and the results of such inspection shall be provided,
by way of written report, to the Township Committee of the Township of Lumberton. Failure to
undertake said inspection and/or provide the township with the aforementioned report shall
constitute grounds for the removal of the tower or antenna at the owner's expense.
(5) Tower setbacks. The following setback requirements shall apply to all telecommunications
towers and antennas, provided, however, that the Planning Board may reduce the standard setback
requirements of this section if the goals of this section would be better served thereby; and, in the
event that any of the following provisions conflict with one another, then the more strenuous and
stringent standards shall apply:
(a) Towers shall meet the set backs of the underlying zoning district with the exception of the
industrial zoning districts, where towers may encroach into the rear setback area, provided that the
rear property line abuts another industrially zoned property and the tower does not encroach upon
any easements.
(b) Towers shall be set back from the planned public rights -of -way as shown on the most
recently adopted Master Street Plan of the Township by a minimum distance equal to 1/2 of the
height of the tower, including all antennas and attachments.
not used in direct support of a telecommunications facility shall not be stored or parked on the site
of the telecommunications facility.
(b) Telecommunications towers may be located on sites containing another principal use in the
same billable area.
(9) Monopole construction. Monopole tower construction shall be utilized in all cases except
where it can be conclusively demonstrated that a monopole construction is not suitable for a specific
location or application or that a different type pole is necessary for the collocation of additional
antennas on the tower.
D. Additional submission requirements.
(1) A report from a qualified expert containing the following:
(a) A description of the tower and the technical and other reasons for the tower design and
height, including cross sections and elevations.
(b) Documentation to establish that the tower has sufficient structural integrity for the proposed
use at the proposed location and meets the minimum safety requirements and margins according to
FCC requirements in their current adopted standards and revisions.
(c) Indicates the height above grade for all potential mounting positions for collocated antennas
and the minimum separation distance between antennas.
(d) Description of the tower's capacity, including the number and type of antennas that it can
accommodate.
(e) Statement detailing current FCC information concerning wireless telecommunications towers
and radio frequency admission standards as well as information concerning the projected power
density of the proposed facility and how it meets the FCC standards.
(2) A letter of commitment by the applicant to lease excess space on the tower to other potential
users at prevailing rates and standard terms. The letter of commitment shall be recorded prior to the
issuance of any building permits. The letter shall commit the tower owner and his successors in
interest to this obligation.
(3) Cessation of use. A copy of the relevant portions of a signed lease which requires the
applicant to remove the tower and associated facilities upon cessation of operations of the site shall
be submitted at the time of the application.
(4) Visual impact study. A visual impact study, graphically stimulating through models,
computer enhanced graphics or similar techniques, the appearance of any proposed tower and
indicating its view from at least five locations around and within one mile of the proposed wireless
telecommunications tower where the wireless telecommunications tower will be most visible. Aerial
photographs of the impact area shall also be submitted.
E. Design requirements. Telecommunications towers shall be of a monopole design unless the
Board determines that an alternative design would better blend into the surrounding environment.
(1) Aesthetics. At a tower site, the design of the buildings and related structures shall, to the
extent possible, use materials, colors, textures, screening and landscaping that will blend the tower
and related facilities to the natural setting and built environment. The towers themselves shall be of
a color appropriate to the tower's locational context so as to make it as unobtrusive as possible,
unless otherwise required by the FAA.
(2) Accessory utility buildings. All utility buildings and structures accessory to a tower shall be
architecturally designed to blend in with the surrounding environment and shall meet the minimum
setback requirements of the underlying zoning district. Ground - mounted equipment shall be screened
from view by suitable vegetation, except where a design of nonvegetative screening buffer reflects
to any other remedies, may institute proceedings to prevent such unlawful erection, construction,
reconstruction, alteration, conversion, maintenance or use or to correct or abate such violations. Each
and every day that such unlawful erection, construction, reconstruction, alteration, conversion,
maintenance or use continues shall be deemed a separate offense. In the event that the Township is
successful in securing the judicial relief requested, then the owner and operator of the
telecommunications tower shall be jointly and severally liable for the reasonable costs and attorneys
fees incurred by the township in the course of said action.
FE9 -26 -1999 06:68A FROM:
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4. THERE ARE NO EATSTING INHABDABLE /
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6. FOR RISER POLE, CONTRACTOR TO PROVIDE DO
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NO CRITICAL ENVIRONMFJRAL FEATURES LOCATED
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7. ACCORDING TO THE SURVEY PREPARED 8Y \
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2/9/00, rAS PROPERTY S ROT LOCATED WTTNIN
THE 1 YEAR FLOOOPLAOI.
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4. THERE ARE NO EATSTING INHABDABLE /
STRUCTURES WITHIN SD FT OF THIS PROJECT /
S. THE PROPOSED CONSTRUCTION WILL NOT ALTER
THE DRAINAGE OF THE PROPERrr.
6. FOR RISER POLE, CONTRACTOR TO PROVIDE DO
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T. CONTRACTOR TO INSTALL PULL eox PRONDEO /
BY CITY DF COLLEGE STATION PER CITY /
SPEOPIICATIONS. /
UNDSGAPE POINTS i PT. VALUE Ott. TOTAL /
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FEB -26 -1998 06:23H FRL1 T0:1979764:496 F:9
TeleStructures - Products - MicroPole Engineering Details Page 1 of 3
products technical acceptance case studies catalog request for quotation about us
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TeleStrud ures
a subsidiary of Crown Castle International Corp, search �stk us r" waifi£e 1ndge
Mi croPole' System Solution Engineering Details UNIPOLE
Standard Structure Sizes FLAGPOLE
Material Specifications
Support Pole
The vertical support for the MicroPole System has the option for Talastrucbires tachniidans to pro-
11 ardwnnas, connectors, gromding system, *Iacb tai connections for micro base stations and
fightning protection_ The exterior of the support Is fully pro- engineered to accept a myriad of accessory
chases with no added design cast Upon arrival at the site, the MicroPole system lifted from the
transport with a boom truck using pre- engUwesed IiRing arms_ The bass ptats is sat upon the
foundation and botttd tight. The finish of each system is acrylic enamel banded to mui- tayered
primers assuring maximum corrosion resistance and superior appewance.
Mrrbexall Same
Staet Pole Support 10' W 36' DWnatar
System x Specified Length
2" Thick Diameter
Base Plate
Coaxial Cable
MICROPOLE
Standard Standard Standard Antenna optional Microwave
Acce ss Port
Heights Diameters Module Size With Antenna Module
ENGINEERING DETAILS
160' 10' to 36" Same as pole diameter Same as pole diameter
PHOTO GALLERY
4
OPTIONS
The MicroPole structure is designed in accordance with the ANSI EIA/TIA -222 -F
requirements. The structure is also designed to meet or exceed the
REQUEST FOR QUOTATION
requirements of BOCA National Building Code, Standard Building Code, the
CONFIGURE A MICROPOLE
Manual of Steel Construction ASD Ninth Edition, and the South Florida Building
Code.
Customer specified
BELL TOWER
The MicroPole structure design may vary depending on geographical location and
loading requirements.
5/8 dlarr*W holes
40180-
CLOCK TOWER
CROSSES
CUSTOM STRUCTURE
Material Specifications
Support Pole
The vertical support for the MicroPole System has the option for Talastrucbires tachniidans to pro-
11 ardwnnas, connectors, gromding system, *Iacb tai connections for micro base stations and
fightning protection_ The exterior of the support Is fully pro- engineered to accept a myriad of accessory
chases with no added design cast Upon arrival at the site, the MicroPole system lifted from the
transport with a boom truck using pre- engUwesed IiRing arms_ The bass ptats is sat upon the
foundation and botttd tight. The finish of each system is acrylic enamel banded to mui- tayered
primers assuring maximum corrosion resistance and superior appewance.
Mrrbexall Same
Staet Pole Support 10' W 36' DWnatar
System x Specified Length
2" Thick Diameter
Base Plate
Coaxial Cable
8' W .x 20' L
2
Acce ss Port
Handhole Access
5' W x 7' L
4
Port
Attactirrtants for
5/8' diameter holes
Every 45
Exterior
accessories
Customer specified
fight
Lifting Attachment
5/8 dlarr*W holes
40180-
apart
8 Total @ Top of Pole
Location
Fderglass or Steel
48 tall
1 Unit
Base Endosure
Qasw"V welow Ftabrial
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1 Unit for ASTM A-53
every 40' In ASTM A-871
length. grade 60
ASTM A36, A50,
A441, AS72
ANSI / AWS DIA
ASTM 50 -250
ASTM 50 -250
ASTM E-84
ASTM D 638
ASTM D 790
ASTM O 69S
ASTM D 2583
EIA/TIA -222 -F
Sea Color Chart
for Standard
Colors
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SITE DETAILS
SITE PLAN PROPOSAL
/ CITY OF COLLEGE STATION, TEXAS
SITE NAME:
HASKINS
SPRINT SITE NUMBER:
H057106518
SITE ADDRESS:
207 DOMINL DRIVE
'�" `` >>4 / SITE PROFILE COLLEGE STATION, TEXAS 77s40
Im LEGAL DESCRIP11CW
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1200 SQUARE FEET OF LAN SITUATED IN TN(
RICJLND CARTER W- ADWRGHT LEAGUE. BRAZOS
/ COUNtf, TEXAS. DE94G A PORTION OF LOT IF -3.
RESUBFINSION OF LOT IF. BLOCK A. CULPEPPER
PLAZA ADDITION. A SUBDM90N RECORDED N
/ VOLUME 361 PAGE 647. OF THE DEED RECORDS
OBWITS COUNTY, TEXAS, SJME BEING A
TON OF THAT CERTAIN TRACT OF LAND CRIBED IN OEED lO CO LAWRENCE J. HASKNS, W STEE AND RERDED IN LUNC 1136, PACE
, Of THE DEED RECORDS OF BRAZOS COUNTY.
A5.
/ TOTAL SITE AREA w 1200 SQUARE FEET
PROPERTY OWNER ADDRESS:
LAWRENCE J. HNSKIN5, FRUSTEE
1700 GEORGE BUSH OR. E, SUITE 240
COLLEGE STATION, TE115 17640
:ee PROPERTY OWNER TELEPHONE NUMBER:
\
979- 255 -3015
ARtKAKF
Sprint PCS
1341 W. UDCNINGSIRD LANE
SUITE 1 1200 -E
CALLAS. TEXAS 7524
CONTACT: 84L M,CAN
/ cc,,po ,qc a 1tj PNONE: 214- 325 -4049
PADIKED BY.,
-°- Ja ARCADI S
/ �. S608 Pa,kalsl D,., Suite 3DO
/ I V i' Jk. I r tC +D � AUSOn, TXtae 78731
id: $12- 451 -1188
CUNNINGHAM— INC.
3103 GEC CAVE ROAD, SUITE 202
LPPHONE , SIL) 327 -2946
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PANELBOARD SCHEDULE
FEE - 26 -1998 06: FROM: TO: 19 P:10
TeleStructurw - Products - Mic roPole Engineering Details Page 2 of 3
Copper Grounding 4' x 12' 1- base
Bars
Steel Finish AcrV is Waterborne
Coatings Enamel — D.T.M. — 3-
5 mils
Polymide Epoxy
Primer — 3-5 mils
Intermediate Surface
Primer — 2 mil
Clear Urethane
Topcoat — 2 -3 mils
Galvanized —
Optional
See Color Chart
for Standard
Colors
Antenna Module
The anter s module is designed to enclose the antennas with a fiberglass reirtflorced radome and allow
ease of access to the antennas by an engineered lowering and raising macnnism. The antermas
mounding system is designed to allow the use of a mechanical downdR bracket and azirnuth
adjustment The frequency range is 800 — 9D0 Mhz and 1.85 — 1.99 Ghz. The system insertion loss is -
.25 dB loss and the VSWR is a —3 dB improvement. Independent testing data is also available upon
request.
MaEsrw sroe Q=Ndav Weypirt MaEeri" Notes
Antenna 5' Diameter x i Unit
Module 10' L, 12 - L
System
Fiberglass Pipe Diameter 1 Unit
Antenna x 8' L, 10' L,
Radome or 12' L
Dual
coa•pii�
5D lb per
ASTM A-53
ft.
ASTM A-971
Copper
gee 60
Ground Bar
ASTM A36, A50,
Linear
A441, A572
Amplifiers
ANSI / AWS
(Optional)
01-1
5.15 Ib.
ASTM D 638
perfL
ASTM D 790
ASTM D 695
ASTM D 2583
ASTM E 289
ASTM E-84
See Color Chart
for Standard
Colors
Antenna Module
The anter s module is designed to enclose the antennas with a fiberglass reirtflorced radome and allow
ease of access to the antennas by an engineered lowering and raising macnnism. The antermas
mounding system is designed to allow the use of a mechanical downdR bracket and azirnuth
adjustment The frequency range is 800 — 9D0 Mhz and 1.85 — 1.99 Ghz. The system insertion loss is -
.25 dB loss and the VSWR is a —3 dB improvement. Independent testing data is also available upon
request.
MaEsrw sroe Q=Ndav Weypirt MaEeri" Notes
Antenna 5' Diameter x i Unit
Module 10' L, 12 - L
System
Fiberglass Pipe Diameter 1 Unit
Antenna x 8' L, 10' L,
Radome or 12' L
Dual
Customer 3
Polarized
Specified
Antennas
Copper
2' x 4' Ground 3
Ground Bar
Bar
Linear
Max. 7.6' x 6
Amplifiers
4.1' x 3.4'
(Optional)
Lightning Rod W Diameter x 1
(Optional)
12' L
ASTM E 289
E PIM -222 F
4mm PVC reinforced foam core
inlaymend, fibarghm reinforced
plastic shell, W Inhibited,
NPC -ISO po"star gelcoat
finish
Sege Color Chart for Standard
Colors
800 — 900 Mhz Mechanical downtilt and aztiit
1.85 — L99 Ghz capabilities
Optional Equipment
Sy►stua Options
The optional equipment is an aesthetic add-on complimenting the surrounding area of which the tower
is placed.
Matesil Sias Qaw&*y MWantling Heigbft
Tops and Ornaments 8' Domater Fiberglass Bail 1 Top of Structure
2'-0' H Steel Crass 1
Z-T H Weather Vane 1
Iiii a• - a « ►• • •• a. All T • ••• - :� • 1 1
FEET -26 -1998 06:29H FROM:
TeleStructures - Products - Mic roPole Engineering Details
Banners 4'-W W x 8'-W H
Lighting Futures
TO: 19 9764349E F: 11
Page 3 of 3
Below Antennas
Below Antennas
TeleStructures`" is a subsidiary of Crown Castle International Coro.
4'Ef9!PC��.
home I products I technical acceptance I case studi I cabby I request for quatat3on I about us
seam I contact: us I websits index
W:I/VAM.teWstudum.com/products/micropolp_aV.shtmI 4r22/02
FEB-26-19 06:29A FROM:
http:/Avww.telestructLffes.com/products/phcytostnan photo.html
TO: 197'37643496 P: 13
Page 1 of 1
.-:A;icmpole
FEES -26 -1998 86:29H FROM: T]:19797643496 P:12
TeleStructures - Products - Mic roPoleT" Options Pane 1 of 2
products technical acceptance case studies catalog request for quotation about us
Cy
TeleStructuresR f �
a subsidiary of Crown Castle International Corp. l search s , aQbsltQ r ^',
MicroPole'" System Solution: options
Our MicroPole System is pre- engineered
to acccept a myriad of design choices
without the burden of additional design or
engineering costs. These choices include
lighting systems, promotional banners,
clocks or decorative finials. Our attention
to the engineering details ensures that
each pole can be easily accessorized,
which translates into both cost- and time -
savings.
By adding a flag, our MicroPole System
turns into a fully functioning Flagpole. The
appearance of our MicroPole Flagpole can
be enhanced with a decorative top finial
and with gold, silver, or white ring
accents
Configure a MicroPole
For a sample of what features and
decorative options are available use this
configuration tool to build your own
custom solution. [requires Macromedia Flash 5.0
player - get player
Challenge us.
If you have yet to find a selection of
options that fits your needs, please send
us a photograph of your site's
surroundings. We can develop a MicroPole
System conforming to your unique
requirements. From faux 19th century
gas lamps to art deco lanterns, we can
deliver the options that make wireless
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the possibilities are virtually limitless!
UNIPOLE
FLAGPOLE
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ENGINEERING DETAILS
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OPTIONS
REQUEST FOR QUOTATION
CONFIGURE A MICROPOLE
BELL TOWER
CLOCK TOWER
CROSSES
CUSTOM STRUCTURE
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search I contact us I wahsibe index
hW./twww.telestructures.com/productsimicropoleL options.shtrni
Jenni Reeves - Re: transmission towers P 1
From:
Tom Brymer
To:
Anne Hazen
Date:
3/5/02 5:12PM
Subject:
Re: transmission towers
Anne, I did do some more checking on the situation here, visited with staff that processed these
requests plus were the staff involved in writing our current cell tower location ordinance. Our current
ordinance was passed in 1997 in response to federal law requirements that came out in 1996. The
federal law set out the standards that a city could use in its ordinances for requiring cell tower
co- location /consolidation. Our ordinance tracks the federal requirements. As an aside, other
communities have found out about our ordinance and contact us for a copy because it has a reputation for
being fair. The recent tower permit requests you saw were being processed in accordance with our
ordinance requirements for co- location. A couple of them were for what are called "stealth" towers. They
blend in fairly well from a visual standpoint. They look somewhat like a street light type pole (there's one
behind the old Grace Bible Church sanctuary on the east side of Anderson if you want to look at a "stealth"
tower).
Also, I did check on your question about allowing cell towers on our elevated water tanks on a rental
basis. We did look into this same question last year in response to discussion with the P &Z about these
cell towers. There are a number of issues. First is the possible conflict with our own communications
equipment. Another is a risk management/liability associated with allowing non -city personnel on the tank
to adjust their equipment. Plus, there are franchise issues where we'd have difficulty not opening it up to
all cell carriers, probably would have to take bids. There are also aesthetic issues regarding having a
proliferation of equipment on top of the water tank. Finally, given security concerns for public water
systems due to the the war on terrorism, I don't think we want anyone but City personnel on or near our
water tanks.
Hope this answers some of your concerns, if not, let me know.
Tom Brymer
City Manager
City of College Station
P. O. Box 9960
College Station, TX 77842
www.ci.college- station.tx.us
Office 979/764 -3510
Fax 979/764 -6377
>>> Tom Brymer 02/27/02 01:05PM >>>
Anne, I need to check on this. The reason is my memory tells me that our ordinance regulating cellular
towers has some ability under certain criteria to require different carriers to consolidate on to towers they
build. As to cell phone tower equipment going on our water towers, let me check. However, I think I will
find out there are some problems and issues doing it. I'll get back to you shortly (next day or two).
Tom Brymer
City Manager
City of College Station
P. O. Box 9960
College Station, TX 77842
www.ci.colleae- stati on.tx.us
Office 979/764 -3510
Fax 979/764 -6377
>>> Anne Hazen 02/26/02 09:59AM >>>
L Jen nifer Reeves - Re: transmission towers Page 2
Tom: Did we ever look into allowing transmission towers on our water tower rather than the proliferation
that we will have if the three that are on our new development list are allowed. I sure would rather the city
got the revenue from rental of space and that we didn't have them all over the city. What does the law
allow and do we have a provision about the upkeep and the removal if they are no longer in use. Do the
airlines have any restricitions on the placement? Thanks
The Ci of
`I Cole a Station, Texas
Embracing the Past, Exploring the Future.
P.O. Box 9960 1101 Texas Avenue 0 College Station, TX 77842 (979) 764 -3500
www.ci.college- station. tx.us
June 18, 2002
Attention: Wanda
General Dynamics
Network Systems
6300 Rothway, Suite 190
Houston, TX 77040
RE: Wireless Communication Transmission Antennae's located on
College Station's elevated water storage facilities.
To Whom It May Concern:
This letter is to advise you that it is currently the City of College Station's
policy not to allow Wireless Communication Transmission Antennae's on
our elevated water storage facilities.
If you have any questions regarding this matter, please give me a call.
Sincerely,
Jennifer Reeves
Staff Planner
Home of Texas A&M University
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06/04/02 10:20 V979 764 3496 DEVELOPMENT SVCS
4 001
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ACTIVITY REPORT x:
TRANSMISSION OK
T1 /RY NO. 2662
CONNECTION TEL 145254134PPPP161
CONNECTION ID
START TIME 06/04 10:15
USAGE TIME 04'18
PAGES 7
RESULT OK
06/04/02 10:25 L 764 3496 DEVELOPMENT SVCS
10 001
ACTIVITY REPORT
TRANSMISSION OK
TX /RX NO.
2663
CONNECTION TEL
96963651
CONNECTION ID
REAL ESTATE SERV
START TIME
06/04 10:21
USAGE TIME
03'18
PAGES
8
RESULT
OK
FEB -E6 -199= 06:24A FROM:
GENERAL DYNAMICS
Worldwide Telecommunication Systems
6300 Ftcdwvoy, Sub 190
Houdon. Tens 71040
Phone: 713429.3099
Fax 713.9344772
4 7 0 z
To: Attn: Planning and Zoning Fro Dave Smith
T0:19797643496 P:1
Foac 979 - 764 -3496 Pages: 1
Phone: f ' Date: 4/22/02
i
CC:
Re: -
❑ Urgent ❑ For Review ❑ Please Comment ❑ Please Reply ❑ Please Recycle
e Comments:
Sprint location on Dominik...
and complements the architectural character of the surrounding neighborhood. A landscape plan
shall be submitted for review of proposed screening.
(a) Landscaping shall be provided along the perimeter of a security fence to provide a visual
screen or buffer for adjoining private properties and the public right -of -way. Required front yard
setbacks shall be landscaped. Existing on -site vegetation shall be preserved or improved, and
disturbance of existing topography shall be minimized, unless such disturbance would result in less
visual impact of the site to the surrounding area.
(3) Lighting. No lighting is permitted except as follows:
(a) Equipment buildings and compounds may have security and safety lighting at the entrance,
provided that the light is attached to the facility, is focused downward and is on timing devices
and/or sensors so that the light is turned off when not needed for safety or security purposes; and
(b) No lighting is permitted on a wireless telecommunications tower except lighting that
specifically is required by the FAA, and any such required lighting shall be focused and shielded to
the greatest extent possible so as not to project towards adjacent and nearby properties.
(4) Height. The antenna and any supporting structure shall not exceed 200 feet in height but, if
a lesser height, shall be designed so that its height can be increased to 200 feet if necessary to
accommodate other local communications facilities in the future.
(5) Signs and advertising. No advertising is permitted on a telecommunications tower or
accompanying facilities. Only signs for warning or equipment information shall be permitted on any
portion of a tower or equipment building.
(6) Fencing and other security devices. Telecommunications towers and equipment buildings
in compounds shall be surrounded by a security feature, including an appropriate anti - climbing
device or other similar protective device to prevent unauthorized access to the telecommunications
facilities, and shall be further surrounded with a security fence. Additional safety devices shall be
permitted or required as needed, and as approved, by the Board as may be necessary.
(7) Noise. No equipment shall be operated so as to produce noise in excess of limits set by the
township's noise ordinance,EN except in emergency situations requiring the use of a backup
generator.
(8) Radio frequency emissions. The FTA gives the FCC sole jurisdiction over the field of
regulation of radio frequency (RF) emission and telecommunications towers which meet the FCC
standards shall not be conditioned or denied on the basis of RF impacts. Applicants shall provide
current FCC information concerning wireless telecommunications towers and radio frequency
emissions standards. Applicants for telecommunications towers shall be required to provide
information on the projected power density of the proposed facility and how this meets the FCC
standards.
F. Violations and penalties.
(1) Any person who attempts to erect or erects a telecommunications tower or antennas covered
by this section without having first obtained the necessary approvals, variances or building permits,
in the manner provided in this section, shall be deemed in violation of this section. Any responsible
party or other persons convicted by a court of competent jurisdiction or violating any provision of
this section shall be punished by a fine not to exceed $1,000 or by imprisonment not to exceed 90
days or by a sentence of community service not to exceed 90 days.
(2) If any structure is erected, constructed, reconstructed, altered, repaired, converted or
maintained in violation of this section, or without obtaining the required approvals or permits, or if
any building, structure or land is used in violation of this section, the Township Solicitor, in addition
(c) Towers shall not be located between a principal structure and a public street, with the
following exceptions:
[1] In industrial zoning districts, towers may be placed within a side yard abutting an internal
industrial street; and
[2] On sites adjacent to public streets on all sides, towers may be placed within a side yard
abutting a local street.
(d) Towers must be set back a distance equal to the height of the tower from any off site
residential structure.
(e) For antennas attached to the roof or a supporting structure on a roof top, a 1 to 1 setback ratio
(example: ten - foot -high antenna and supporting structure requires ten -foot setback from edge of
roof) shall be maintained unless an alternative placement is shown to reduce visual impact.
(f) A tower's setback may be reduced, or its location in relation to the public street varied, at the
discretion of the Board, to allow the integration of a tower not an existing or proposed structure, such
as a church steeple, light standard, tower line support device or similar structure.
(6) Lot size. For purposes of determining whether the installation of a tower or antennas
complies with district development regulations, including but not limited to setback requirements,
lot coverage requirements and such other requirements, the dimensions of the entire lot shall control,
even though the antennas or towers may be located only on a portion of such lots.
(7) Abandonment and removal.
(a) Abandonment. Any telecommunications tower and equipment which is not operated for
wireless communications purposes for a continuous period of six months shall be considered
abandoned, whether or not the owner or operator intends to make use of it or any part of it, and shall
be removed by the facility owner at its costs. The owner of a telecommunications tower and the
owner of the property where the facility is located shall be under a duty to remove the abandoned
telecommunications tower. If such antenna and/or tower is not removed within 60 days of receipt
of notice from the township notifying the owner of such abandonment, the township may remove
such tower and/or antenna as set forth below.
[ 1 ] If the owner of an abandoned tower or antenna wishes to use such abandoned tower or
antenna, the owner must first apply for and receive all applicable permits and meet all of the
conditions of this section as if such tower or antenna were a new tower or antenna.
(b) Removal. When an owner ofa telecommunications tower and antenna, who has been notified
to remove the same, fails to do so within 60 days of receipt of notice from the Township notifying
the owner and/or operator of such abandonment and the need to remove the same, then the township
may remove such tower and/or antenna and place a lien upon the property for the cost of removal.
If removed by the owner, a demolition permit shall be obtained and the facility shall be removed.
Upon removal, the site shall be cleaned, restored and revegetated to blend with the existing
surrounding vegetation at the time of abandonment. The facility owner shall post a bond at the time
that a construction permit is issued for demolition, to cover the cost of tower removal and site
restoration. The amount of the bond shall have taken into consideration any cost escalations that may
be reasonably anticipated.
[ 1 ] Any delays by the township in taking action under this clause shall not in any way waive the
township's right to take action.
(8) Principal, accessory and joint uses.
(a) Accessory structures used in direct support of a telecommunications tower shall be allowed
but not be used for offices, vehicle storage or other outdoor storage. Mobile or immobile equipment
locations throughout the township because they appear in many zoning districts, are disbursed
throughout the township and, due to their institutional or infrastructure uses, are generally similar
in appearance to, or readily adaptable for, telecommunications facilities. Therefore,
telecommunications facilities should be less noticeable when placed on publicly used structures than
when placed on a commercial or residential structure. Publicly used structures include, but are not
limited to, facilities such as municipal buildings, police or fire stations, schools, libraries, community
centers, civic centers, utility structures, water towers, elevated roadways, bridges, flagpoles, clock
or bell towers, lightpoles and churches.
(c) The third priority location shall be wholly industrial and commercial structures, such as
warehouses, factories, retail outlets, supermarkets, banks, garages or service stations, particularly
where existing visual obstructions or clutter on the roof or along a roofline can and will be removed
as part of the installation of the telecommunications facility.
(d) The fourth priority location shall be such locations as the applicant proves are essential to
provide required service to the Lumberton Township area.
(2) Collocation policy.
(a) Each applicant for a new telecommunications tower shall present documentary evidence
regarding the need for wireless antennas within the Township of Lumberton. This information shall
identify the wireless network layout and coverage areas to demonstrate the need for such equipment
within this township.
(b) An applicant proposing to erect a new wireless telecommunications tower shall provide
documentary evidence that a legitimate attempt has been made to locate the antennas on existing
buildings or structures or collocation sites. Such evidence shall include a radio frequency
engineering analysis of the potential suitability of existing buildings or structures or collocation sites
in the search area for such antennas. Efforts to secure such locations shall be documented through
correspondence between the wireless telecommunications provider and the property owner(s) of the
existing buildings or structures or collocation sites. The Township reserves the right to engage a
professional radio frequency engineer to review such documentation, the cost of which engineer shall
be paid from escrow funds supplied by the applicant.
(c) Applicants proposing to construct new telecommunications towers shall document the
locations of all existing telecommunications towers within the Township of Lumberton and
surrounding areas with coverage in the township, as well as any changes proposed within the
following twelve -month period, including plans for new locations in the discontinuance or relocation
of existing facilities. Applicants shall provide competent testimony by a radio frequency engineer
regarding the 'suitability of potential locations in light of the design of the wireless
telecommunications network. Where a suitable location on an existing tower is found to exist, but
an applicant is unable to secure an agreement to collocate its equipment on such tower, the applicant
shall provide written evidence of correspondence with the owner of such tower verifying that
suitable space is not available on the existing tower(s). Where an applicant seeking to construct a
new tower is not a wireless service provider, the applicant shall prove that adequate wireless
telecommunications services, sufficient to meet the requirements of the Telecommunications Act
of 1996, as amended, cannot be provided without the proposed tower.
(d) Site location alternative analysis. Each application shall include a site location alternative
analysis describing the location of other sites considered, the availability of those sites, the extent
to which other sites do or do not meet the provider's service or engineering needs and the reason why
the subject site was chosen. The analysis shall address the following issues:
municipality that would appear to be legitimate candidates. The identification of such
sites, and the direct questioning of the applicant as to why those sites are unavailable, is
often helpful. There is a strong likelihood that the applicant will not have identified those
sites as potential candidates, and therefore will not have undertaken a "propagation
study" to determine whether it can meet its coverage requirements using that location.
In one recent New Jersey case, for example, the applicant sought to construct a
tower for Bell Atlantic Nynex in a P -1, or public purpose zone, which permits public or
institutional uses such as hospital, recreational facilities or educational facilities, but not
commercial or industrial uses. The applicant's witnesses testified that they had
investigated 27 sites, none of which were either available or suitable to this proposed use.
The Court, in what can only be characterized as an extraordinarily negative reaction to the
application, wrote: "Although [the applicant] did testify to the unavailability or
unsuitability of 27 sites he had investigated, it did not demonstrate that there might not be
other sites - - available and suitable - - which could meet its need and be less intrusive in
the neighborhood in which it would be located." New York SMSA v. Bd. of Adjustment
of Bernards Twp - , 324 NJ Super 149, 156 (App. Div. 1999).
The Bemards case is also a good example of how a governmental entity can
oppose the application. There, the Board of Adjustment itself presented the testimony of
a planning expert,
"who said that the major negative factor arguing against the variance was
the location of the proposed tower close to the two densely populated
resident developments. He said that because of the height of the tower and
the impossibility of effective screening through natural vegetation,
regardless of the distance, [the tower] will have an impact in terms of daily
comings and goings to that neighborhood in terms of view and a change of
character of their neighborhood."
Id. at 157. In upholding the Board's denial of the variance request, the Court
justified that denial and said:
"First, the parcel was not zoned to permit commercial uses.....Second, the
topography precludes effective screening and makes unavoidable the
negative effect of the unsightly tower on the residences both east and west
of the site. Third, the master plan's designation of the site for future
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that the site actually will provide sufficient coverage of the cell by
performing a `drive test' with radio equipment.
10. In order to provide PCS telephone service to a portion of the area
in which coverage needs to be effectuated to meet FCC licensing
requirements, the applicant needs to place an antenna cell site at a
particular location. Therefore, this location is identified and
becomes the subject of the permit application, special use permit,
or use variance.
[See Onmipoint Comm. Enterprises v. Charlestown Township F. Supp.
, 2000 WL 128703 (E.D. Pa 2000)].
As can be seen from the foregoing, the nature of the application is quite specific,
involves technical information, and is always supported by the applicant's experts. A
standard permit, or variance application, involves the testimony of numerous witnesses.
First, the applicant's site acquisition expert will testify as to the nature of the service that
the applicant provides; (s)he will describe the area licensed to this applicant to provide
telecommunications services; will testify that a number of sites were investigated, but that
this site, because of its location, topography, availability of existing tall structures or
surrounding trees, etc., presents the most suitable site for the location of the tower, in
order to meet the "grid" requirements and provide the coverage needed to comply with
FCC regulations.
The applicant's radio frequency engineer will testify that the tower is needed both
because of the high usage of cell phones along and around the area of the site upon which
the tower is proposed, and because the FCC requires that all "gaps" in this licensed area
be "filled in" and serviced. (S)he will explain why other competitors' towers in the area,
(assuming they exist and that co- location is a possibility), do not satisfy the applicant's
needs, because they are outside its "search ring." (This is the area within which a tower
can be situated in order to "fill in the gap" necessary to provide the required coverage.)
The radio frequency engineer will also describe other sites that were considered by the
applicant, which would have met its needs within the center of the area of the search ring,
N
Likewise, the municipality could, without too much effort or expense, identify
areas within its borders where the topography offers higher elevations than in other areas,
thereby providing a logical and advantageous location for siting such towers. Areas
along State and other major highways also offer an opportunity to encourage cellular
towers: the traveling public is not as offended by the aesthetics; there are generally
pockets where residential development is either absent or isolated; and, again, there is no
significant NIMBY opposition.
Moreover, the enactment of such ordinances allows municipalities to regulate the
construction of new towers by encouraging co- location. Such co- location is permissible,
and can require the telecommunications providers to investigate the possibility of affixing
their antennae on existing towers of competitors. Ordinance provisions can, for example,
require new towers to accommodate other future users. Such ordinances can also
establish priorities for the co- location of antenna on existing structures, such as municipal
water towers, electrical towers, and the like. The encouragement of co- location
simultaneously discourages the construction of new towers, and public opposition to the
installation of mere antennae on existing facilities is generally not as intense as it is to the
construction of new towers.
A properly enacted ordinance also imposes upon the telecommunications provider
the obligation to submit significant amounts of information, which, when properly
digested, can also reduce public opposition and the NMMY fears associated with such
applications. A sample ordinance is attached to this outline.
While such ordinances may not entirely eliminate the need for use variances if
those particular zones do not provide the "gap coverage" needed by the carrier to meet its
FCC requirements, they at least suggest to the Courts that the municipality has
consciously addressed the issue, and has attempted to regulate the activity as opposed to
"prohibiting" the activity. A properly drafted ordinance will also impose greater burdens
upon the applicant in terms of proofs necessary to secure a use variance or special use
permit for construction of a tower in a location where the use is not permitted under the
ordinance. As a consequence, where a land use agency denies the application, it should
be in a better position to defend its actions, and secure affirmance of its decision, than if it
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inconsistent with this subparagraph may, within thirty (30) days
after such action or failure to act, commence an action in any court
of competent jurisdiction. The court shall hear and decide such
action on an expedited basis. Any person adversely affected by an
act or failure to act by a state or local government or any
instrumentality thereof that is inconsistent with clause (iv) may
petition the Commission for relief."
Given the proliferation of cellular towers over the last few years, local agencies
generally do not discriminate against providers of functionally equivalent services, and
Section 332(c)(7)(B)(i)(I) is not generally implicated. Thus, this presentation will not
address that prohibition. Nor will this paper address the other prohibitions in this section
as they really have little to do with the actual siting of towers. Rather, they relate to the
governmental response to siting applications. For example, 332(c)(7)(B)(ii) requires the
governmental entity to respond to the request "within a reasonable period of time after the
request is duly filed "; and subparagraph (iii) requires the governmental response to be "in
writing and supported by substantial evidence contained in a written record."
Subsubparagraph (iv) precludes governmental entities from regulating towers based upon
environmental effects of radio frequency emissions, so long as those emissions comply
with the FCC's regulations governing same. Finally, subsubparagraph (v) requires
communications providers to challenge denials within thirty (30) days. It is suggested, by
the way, that the thirty (30) day time limit applies only to a challenge under the
Telecommunications Act. It does not operate to otherwise shorten the time frame in
which challenges under state or local law can be made. In New Jersey, for example, the
forty-five (45) day rule to challenge governmental actions would apply if the challenge
was based solely on New Jersey's land use laws.
Section 332(c)(7)(B)(i)(II), however, is important to this topic, both because it
relates directly to the siting of towers, and because it is frequently litigated. It precludes
local governments from "prohibiting or having the effect of prohibiting the provision of
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I. Background.
As anyone who has stood on the tenth floor of any building can attest, cellular
towers have come to define "the new American landscape." As far as the eye can see, in
almost any area throughout the country, such towers are visible in all directions. The
Federal Communications Commission ( "FCC ") estimates that there are now
approximately 100,000 such towers constructed across the country. Where did they come
from? How did they get there?
The 1993 Omnibus Budget Reconciliation Act established procedures to be used
by the FCC for licensing personal communications systems ("PCS "). In 1994, the FCC
utilized a competitive bidding procedure by which it raised over $20 billion in the auction
of its PCS licenses. The nation is divided into 734 markets and the FCC grants licenses
within each market. These licensees, generally large corporations, then deal with other
companies who wish to enter that market.
To expedite recovery of their capital investment (i.e., the billions of dollars they
paid for these licenses), these corporations quickly filed applications for zoning, special
use, and building permits to construct the towers necessary to transmit frequencies. Local
governments, unfamiliar with this new technology, and protective of the "not in my
backyard" (NIMBY) mentality of its residents (and often its elected officials) regularly
denied the applications on grounds of, for example, aesthetics, radio frequency emissions,
environmental effects, and the like. The telecommunications industry, tired of
confronting different rules and interference from the 30,000 different zoning jurisdictions
throughout the United States, heavily lobbied Congress for assistance in dealing with
local governments. As a result, the Telecommunications Act of 1996 was enacted.
Although initially intended by the industry to deny local governments any role in
the siting of transmission towers and associated equipment shelters, the Act actually
reposes in local government some regulatory authority over the siting of cellular towers.
II. The Provisions of the Act.
47 USC Section 332 (c)(7) establishes the Local Zoning Authority. Subparagraph
(A) provides that "except as provided in this paragraph, nothing in this chapter shall limit
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