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Planning topics: Community Development Divisions: Related links: |
Staff Response to Comments Received on the Tower OrdinancePlanning Division Memorandum - June 19, 1996The following is a response to each of the written comments we have received on the proposed tower ordinance. The comments are shown in italicized typeface and are sorted by the section of the ordinance they reference. Section 15.14, Building CodeAmateur Radio Operator-Randy Wendel (5/14/96) Page 2, Sec. 15.14, Construction Requirements (d)(3): "With the exception...no part of any antenna or tower lines...extend across...property lines". An amateur radio 1/2 wave wire dipole antenna on 3.9Mhz is approximately 120 ft long, and a 1.9 MHz wire dipole antenna is approximately 240 ft long. At times, radio amateurs have had to ask permission from neighbors to attach an end of their wire antenna to a tree which may be conveniently located on adjacent property, most often in backyard locations. This wire is generally made from 14- gauge wire and is generally unnoticeable. Could verbal permission from such a neighbor exempt such antennae from this section? Staff Response Allowing guy cables or antenna wires to cross property lines is not a good idea even if the neighboring property owner grants permission. Property ownership can change over time, which could create a problem, particularly if the new property owner demanded removal of a guy cable which provided necessary support to the tower. Running cables and wires over property lines also limits access to utility easements and could represent a safety hazard. The tower and its associated equipment should be contained within one parcel. This provision has not been added by the proposed amendments, but rather has been in place for several years. Section 19.03, DefinitionsAPT (5/28/96) As for some of the other subjects discussed, APT has hoped for additional consideration. Among these was the classification of Multi-User towers versus Single-User towers. The distinction here being that at the time of application, the applicant for a multi-user site actually has a contracted co-locating tenant versus the applicant for a single-user site only having the engineered capacity for adding a tenant at some future point in time. Since the City will require all towers in excess of 60' to be structurally engineered to accommodate at least one additional user, we believe that all structures in excess of 60' are designed as multi-user facilities and should be classified as such. Staff Response Definitions for "multi-user" and "single user" towers are proposed. The only way in which we differentiate between the two is that multi-user towers (towers that actually have two or more tenants at the start) are granted a 20 foot height bonus in Section 19.47. This height bonus is consistent with the city's goal of limiting the overall number of towers citywide. Staff believes that one tower would be preferable to two slightly shorter towers and has included the 20 foot height bonus as an incentive towards this end. As mentioned by APT, the ordinance also requires all new towers over 60 feet in height to be designed for multiple users so that space will be available at some point in the future when there is demand for it from other providers. To expand our definition of "multi user tower" to include towers designed for two or more users in addition to towers actually proposed for two or more users would mean that the 20 foot height bonus would apply to any new tower over 60 feet in height. This revision would, in turn, destroy the incentive staff hoped to create to get the providers working together to minimize the overall number of towers through co-location. Sections 19.27 - 19.40.09, District UsesOneComm-Buell Consulting (5/24/96) Restore the language that allows Multi-User Towers as a permitted use in industrial districts. This will add incentive for tower proposers to locate in industrial districts. Without this statutory mandate, communication users may be restricted by anti-trust concerns to pursue cooperative sites. APT (5/28/96) Additionally, we see that the proposed revision to the industrial zoned districts has been downgraded from allowing multi-user towers as a "permitted use" to allowing all towers as a "conditional use". We still believe that industrial property sites that meet the setback requirements should allow towers as a "permitted use". Sprint Spectrum-SBA (5/24/96) We recommend that the following revisions be incorporated into this portion of the proposed amendment:
ATT Wireless-Doherty, Rumble and Butler (6/5/96) We believe the proposed ordinance is too restrictive in its classification of wireless communication facilities as conditional uses in all zoning districts. These facilities should be permitted uses in nonresidential districts, subject to compliance with the required performance standards. Section 19.63.05 has detailed performance standards for these facilities. The performance standards will adequately protect the City in nonresidential districts. More importantly, allowing wireless facilities in nonresidential districts as a permitted use will provide a significant incentive for the wireless providers to locate these facilities in nonresidential districts. A carrot, rather than the stick which the ordinance as drafted relies so heavily on. Staff Response The Bloomington City Code stipulates that "a conditional use is a use which is generally not suitable in a particular zoning district but which may, under some circumstances and with the application of certain conditions be suitable" (Sec. 19.13). Towers are a rather unique land use in that they have the potential to impact a large area due to their height, including areas which may be in zoning districts other than the district underlying their base. Given this potential impact on surrounding property, we feel it is appropriate for the City Council to retain the extra level of discretion afforded by the conditional use permit process in all districts, especially since no more time is required to obtain approval as a conditional use than to obtain final site and building plan approval as a permitted use. For a time, staff had considered proposing multi-user towers as permitted uses in industrial districts as a further incentive to co-locate antennas. Although such an incentive would be consistent with the goal of limiting the overall number of towers through co-location, the direct impacts of a multi-user tower (when evaluated on the basis of one tower only) would not be any less than the direct impacts of a single user tower, and may, in fact, be greater. As brought up by a legal representative of one of the providers at our May 7, 1996 Administrative Hearing, it may be difficult, for this reason, to legally justify the classification of a single user tower as a conditional use when a multi user tower in the same district is classified as a permitted use. To avoid these difficulties, towers have been classified as conditional uses in all districts in which they are allowed. Incentives for co-location are provided through other means. As proposed, the placement of wireless telecommunication antennas on existing buildings or towers can be approved administratively. We disagree with the claim that providers "may be restricted by anti-trust concerns to pursue cooperative sites" without the "statutory mandate" of classifying multi-user towers as permitted uses in industrial districts. First of all, the proposed ordinance is very clear in its intent to promote co-location. Secondly, while there may be anti-trust concerns if two providers work together to design a system over an entire region which gives them advantages over the competition, the co-location of antennas at sites which happen to be needed by two or three separate providers is not an anti-trust concern and is encouraged by the Federal Telecommunications Act. Section 19.47, Height LimitsAmateur Radio Operator-Randy Wendel (5/14/96) Page 14, Sec. 19.47, Height, Height Limitations (c), Towers (2),(a)(b): "In protected residential property the maximum height including all antennas...shall be 30 feet". "In all residential zoning districts...the maximum height...including all antennas...shall not exceed one foot for each four feet the tower is setback...". If a residential lot is 75 feet wide, does that limit a tower, including antenna, to 18 feet? Or, is the height limit set at 30 feet maximum, before a variance is required? Often items a common vertical antenna can reach a length of 17 feet to 26 feet (antenna only). I would suggest the zoning commission be made aware of the Federal Communications Commission preemption ruling called "PRB-1", which recognizes the value of amateur radio as a national public service resource in times of need during emergency communications. This ruling preempts radio amateur towers from local ordinance rulings restricting height limitations of amateur radio towers. The ruling generally mandates local municipalities to accommodate radio amateurs in their requests for permits to erect a tower which may exceed local restrictions. Currently, the FCC is also considering rulings which will preempt amateur radio tower restrictions in areas affected by covenants and housing development regulations. In most cases, an amateur radio tower is mot effective when erected at a height of 40 to 60 feet, not including the antenna. ATT Wireless-Doherty, Rumble and Butler (6/5/96) We believe the height restriction/setback requirements set forth in Section 19.47(c)(2)(b) and (c) are far too restrictive and inflexible. These sections impose super setback requirements notwithstanding the circumstances of the individual site, such as surrounding topography, other uses, vegetation, buildings, etc. that could screen or reduce the impact of the facility on "protected residential property". Furthermore, these setbacks apply even if the "protected residential property" in question is vacant. We believe these sections should be deleted from the ordinance and replaced with reasonable height limits for residential and nonresidential zoning districts, perhaps 100 feet in residential zoning districts and 150 feet in nonresidential zoning districts. The purpose of the different limits would be to encourage the wireless providers to locate in nonresidential districts whenever possible. Staff Response Staff has researched the Federal Communication Commission's PRB1 preemption ruling. The proposed ordinance has been revised since receiving Mr. Wendel's letter in light of PRB1 and in light of a major court case in our Eighth Federal Circuit, Pentel v. City of Mendota Heights. Bloomington limits the height of structures based on their distance away from "protected residential property." When preparing the proposed ordinance amendments, staff determined that the present height limits for structures could be overly restrictive when applied to towers. Therefore, staff is proposing separate height restrictions for towers than for other structures. The proposed height restrictions for towers, like the existing height restrictions for other structures, are based on the distance the tower is removed from protected residential property. Towers are generally more suited to industrial and commercial areas than to residential areas. Hence, staff proposes that towers in industrial and commercial areas be allowed at a taller height than towers in or near residential areas, and, in fact, that the permitted height be a function of the tower's distance from protected residential property. Section 19.63.05, Towers in Residential Zoning DistrictsAmateur Radio Operator-Randy Wendel (5/14/96) Page 15, Sec. 19.63.05, Towers (b)(l): "Towers supporting amateur radio antennas...shall be allowed only in the rear yard...". I might guess that this is for aesthetic reasons. "Hiding" the bottom 10 feet of a tower behind a house or garage will, in my opinion, do little to effectively reduce any aesthetics of the overall tower and antennas attached, which are generally mounted at the upper half and top of the structure. Additionally, it is often an advantage to erect a tower on the side of the house, which greatly increases tower strength because a tower-house bracket may then be utilized. This bracket can be securely bolted through the wall, just under the side--peak of the house, to a treated 2 by 10 mounted across the existing wall studs in the upper attic. Mounting a tower behind the house may otherwise require guy wires to account for the absence of such bracket to insure equal strength. Guy wires are generally not preferred due to the aesthetics involved. I would ask that the restriction of mounting the tower in the rear of the yard be reconsidered...especially due to the safety factor that can be taken advantage of when a tower can be mounted with an attachment to the side of the house. Allowing for a difference which may only involve a few feet, the additional strength is worth this reconsideration. ATT Wireless-Doherty, Rumble and Butler (6/5/96) Section 19.63.05(b)(2) prohibits commercial towers from all vacant residential land in the City, and all land zoned and used for residential purposes. Combined with Section 19.47(c)(2), this section will effectively prohibit wireless facilities from virtually all residential areas of the City. This is not in the best interests of those members of the public and those public safety agencies which use and rely on cellular telephone service. We believe that appropriate wireless facilities should be allowed on nonprotected residential properties including multifamily parcels, the rights of way for such roads as I-35W, I-494, Cedar Avenue and County Road 18, and vacant parcels in residential areas. Allowing wireless facilities in these areas of the City, subject to appropriate performance standards and setbacks from protected residential properties, will not be harmful. The ordinance as drafted would not even make it possible to request a variance to locate on a vacant site or on a developed multifamily site. We suggest that Section 19.63.05(b)(2) be deleted. Staff Response Staff feels that amateur radio towers would not be appropriate in the side yards of the vast majority of Bloomington's residential lots. Towers placed in side yards will have a greater impact on neighboring property owners than towers placed in rear yards in all but the largest of lots. Moreover, the setback requirements would prohibit the placement of towers in the side yards of all but the largest lots. In the event that an applicant with a very large lot (2+ acres) requested the placement of a tower in the side yard due to some topographic restrictions in the rear yard or to achieve a higher level of safety and the proposed tower would be well buffered from adjoining property owners, the circumstances could justify a variance. But, as a general rule, staff feels that amateur radio towers should be limited to the rear yard to minimize impacts on adjacent property. As wireless usership increases, cell sizes are becoming smaller, making it difficult to place every tower within a commercial or industrial area. Realistically, some non-commercial, non-industrial antenna sites will be necessary in Bloomington to provide seamless, high quality service citywide. To meet this need, staff tried to identify residentially zoned sites that may be able to accommodate towers or antennas without impacting negatively on surrounding residential property. Staff is proposing to allow towers at residentially zoned school, utility, institutional, and government sites; certain residentially zoned park sites; and residentially zoned church sites when camouflaged as a steeple or bell tower. The impacts of these towers on surrounding residential property is mitigated primarily through height limitations. There are very few vacant residential parcels in the city. Staff does not feel that commercial towers would be appropriate for these sites, especially since many vacant parcels are platted lots directly abutting other platted lots. In the event that a provider happened upon a remnant parcel zoned residential but otherwise well suited for a tower, the provider would always have the ability to request that the parcel in question be rezoned. Regarding the placement of towers in freeway rights of way, it is staff's understanding that the Minnesota Department of transportation, as the property owner, is not interested in such placement. If such towers were placed in the freeway rights of way, staff would want the zoning authority of the City, including height limitations, to apply to the state owned land. Section 19.63.05, Co-Location RequirementsATT Wireless-Doherty, Rumble and Butler (6/5/96) We suggest that Section 19.63.05(c)(1)(d) be rewritten as follows: (d) Other reasons that make it infeasible to locate the planned telecommunications equipment upon an existing or approved tower or building, including refusal of the owner of the existing tower or building to make space available or the inability of the existing tower or building to meet the technological radio frequency of the proposed wireless facility. AT and T is willing to collocate on existing towers or buildings, but the ordinance must be clear that this requirement does not apply to an existing tower or building which is unavailable or doesn't meet the technical radio frequency requirements of the proposed cell site. Staff Response Staff feels that co-location is one of the best methods available to minimize the negative impacts of communication towers and we are happy to read that ATT Wireless is willing to co-locate. Staff would like co-location to occur if it is technically and otherwise feasible and has drafted the ordinance accordingly. Section 19.63.05, Tower SetbacksOneComm (5/24/96) The current draft creates an exception in industrial districts that towers may be located between a principal structure and a public street but only in a side yard abutting an internal industrial street. This provision severely limits available sites in an industrial district. This is important because industrial districts are the very district where the City would like the towers to be located. We propose the following language for this subsection (3)(a) to be: (a) In industrial zoning districts, towers may be placed between a principal structure and a public street if all setbacks can be met. Industrial developments are most likely to have principal buildings located in the back of a parcel to allow parking areas, outdoor storage and future expansion areas to be on the sides toward the street. It has been my experience, when searching in an industrial area, that most the suitable sites are between a principal structure and a street. To restrict towers in these commonly open industrial areas means vast amounts of land in the industrial districts, that would otherwise be well suited for towers, will be taken away. This will create the incongruous circumstance of forcing tower proposers to consider land in other districts, outside of the industrial districts, that would otherwise not be considered at all. ATT Wireless-Doherty, Rumble and Butler (6/5/96) Section 19.63.05(f) includes a number of additional setback requirements. We suggest that (1) of that section be rewritten as follows: (1) Towers shall meet the setbacks of the underlying zoning district with the exception that towers may encroach into the rear setback area, provided that the rear property line abuts a similarly zoned property and the tower does not encroach upon any easements. We make this suggestion because this concept seems to make sense for all zoning districts, not just industrial zoning districts. With respect to Section 19.63.05(f)(2), we would point out that public rights of way may very well prove to be very desirable locations for wireless facilities as these facilities come down in height in the future. We don't see a need for extraordinary setbacks from public rights of way, particularly in light of the fact the ordinance already prohibits these facilities from any front yard. We therefore suggest that this section be stricken from the proposed ordinance. At a minimum, we suggest that an exception be written into this section for I-35W, I-494, Cedar Avenue, County Road 18, and future highway or freeway level roads. With respect to Section 19.63.05(f)(4), we suggest that this section be rewritten to allow a monopole not just when it is "integrated" into an existing or proposed structure, but also when it is "replicating" an existing or proposed structure. For instance, many times a monopole can be made to replicate a light standard or power line structure, but is cannot actually serve both uses due to the much higher structural needs and electrical power requirements of high power lights and power lines. Staff Response Staff feels that towers are most appropriately located at the rear or side of buildings. For this reason, the performance standards do not allow towers between a building and a public street. In response to a request by one of the providers, we did include an exception to allow towers in a side yard abutting an internal industrial street. We do not feel that this exception would be appropriate for an industrial front yard or for an industrial side yard abutting a primary street. The proposed ordinance also requires that towers meet the setback requirements of the underlying zoning district. Exceptions to the setback requirements should be minimized since adjoining property owners have purchased their property with certain expectations regarding what can occur immediately over the property line. Staff is proposing one exception, namely that towers be allowed to encroach into the rear setback area provided the parcel abuts another industrial zoned parcel and the tower does not encroach upon any easements. While this exception may make sense between industrial parcels, it would not be appropriate for commercial or office parcels where adjoining property owners have a different level of expectations based upon adopted setback requirements. These two exceptions to setback requirements in industrial zoning districts have been included to provide incentives to locate in industrial districts. The use of state owned rights of way for towers has been discussed in the previous section. The proposed ordinance allows the City Council the ability to vary the setback requirements to allow towers to be integrated into existing or proposed structures. This flexibility is important as it rewards the providers for innovative design solutions and allows for the creative camouflage of antenna mounts. ATT Wireless is requesting that this flexibility be extended to cover towers designed to resemble other vertical features on a site but which do not actually function as those features (for example, a tower designed to look like the light standards existing on a site, but without any light fixture attached). When interpreting whether a tower is integrated into an existing or proposed structure, the test should be whether the tower truly resembles the structure in question, not whether the tower functions exactly like the structure in question. Section 19.63.05, Antennas Mounted on Roofs, Walls, and Existing TowersSprint Spectrum-SBA (5/24/96) Applications for antenna co-locations should be approved provided that the subitems (1. A final site plan; and 2. A report prepared by a qualified and licensed professional engineer) are complete and accurate. To avoid subjective decisions, we recommend that line two of the first sentence be modified accordingly by deleting the word "may" and replacing it with the word "shall" or "will." Staff Response Changing the wording to "shall" or "will" would give the Planning Manager no authority to turn down a request, even if it did not comply with various code requirements. Therefore, staff recommends retaining the word "may." Section 19.63.05, Additional Submittal RequirementsSprint Spectrum-SBA (5/24/96) Proposed Item n (l) states that, "Written statements from the Federal Aviation Administration, Federal, Communications Commission, and any appropriate state review authority stating that the proposed tower complies with regulations administered by that agency or that the tower is exempt from those regulations". Verification that Federal Aviation Administration requirements are met is not a zoning issue, and this information should be required to be submitted with the Building Permit application. Staff Response This suggestion has been incorporated into the ordinance. Verification of compliance with FAA requirements is now required prior to the issuance of a building permit but not prior to the issuance of a conditional use permit. General Concerns Regarding the OrdinanceATT Wireless-Doherty, Rumble and Butler (6/5/96) Of particular concern is the disparate treatment between wireless commercial facilities and similar uses and structures. The ordinance as proposed:
On the other hand, the ordinance exempts from any regulation several similar uses and structures, including power and telephone poles, poles supporting emergency warning devices, "public utility antennas" and water towers. These uses can go in any zoning district, at any height, and are subject to none of the performance standards and other restrictions applicable to commercial wireless "towers". We do not believe that the impacts of a 75-foot monopole supporting cellular antennas are so much more intense than those of a 100-foot high string of electric power lines so as to warrant this disparate treatment. There should be more consistent treatment of these similar uses, and more opportunities for the cellular and wireless communication providers to locate and provide their services throughout the City... This letter sets forth AT&T's seven major concerns with the proposed ordinance. We have also made a number of suggestions on smaller items to City staff, which we will follow up on with staff. Our major concern is that the ordinance must be revised to make it possible to serve all areas of the City of Bloomington, including residential areas. We think this concern can be met by providing greater flexibility to locate on or adjacent to public rights of way, particularly the major freeway/highway routes through the City; and greater flexibility in residential areas which are not actually occupied by single family residential uses. Without some increased flexibility, we are concerned that the ordinance will not make it possible for us to provide adequate service. This could put the ordinance in conflict with federal law which provides that the city may not enact legislation which effectively prohibits the provision of wireless services throughout the city. Staff Response Under the proposed ordinance, towers would be allowed in all industrial, all commercial, and certain residential areas scattered widely throughout the City. The numerous locations available will provide opportunity to locate towers in a manner sufficient to provide the city with high quality wireless telecommunication service. It is important to remember that the two existing cellular providers currently provide wireless service to the city with all of their towers and antenna sites located within industrial, commercial, and allowed residential areas. The cellular, PCS, and ESMR providers are not public utilities and should not be compared with public utilities. Moreover, many public utilities are today required to be located underground, including, in some cases, the electric lines referred to by ATT Wireless. Clearly, each technology must be evaluated on its own impacts and limitations. Policy Statement, Minimum RequirementsSprint Spectrum-SBA (5/24/96) Item D states, "The applicant will submit a letter of credit, performance bond, or other security acceptable to the City to cover the costs of the facility's removal". This requirement is acceptable for co-locations on City owned water towers or other structures. However, the construction of a tower on City owned property would require much more of an investment on the part of the telecommunication providers. We recommend that the City of Bloomington consider revising this portion of the policy to reflect a requirement similar to that proposed in the Ordinance Amendment for Towers. Staff Response When towers are located on City owned property, the City needs to fully understand and address the potential risks and costs of leasing land to such a facility. With six wireless providers currently in the mix and with the potential for more in the future, it is not out of the realm of possibility that one of the providers would go bankrupt. In this situation, the City would be faced with the costs of removing a tower. Tower removal is an expensive proposition, especially when one figures in the cost of removing the giant support caisson extending 12 feet into the ground. It is in the City's interests to protect the taxpayers and guard against these potential removal costs. Clearly, the security would represent an additional cost to the providers which they should figure into their equations along with several other factors before signing a lease with the City. Sprint Spectrum-SBA (5/24/96) Item F states, "Upon reasonable notice, the equipment may be required to be removed at the user's expense". This requirement will conflict with Sprint Spectrum's lease, which is essentially an initial term of 5 years, with four additional terms of 5 years, each of which are automatically renewed unless Sprint Spectrum provides 90 days notices. Sprint Spectrum requires this initial term and renewal terms to ensure that once they build the system, individual landlords cannot create gaps in coverage by eliminating individual sites. Each site is crucial to the working of the entire system. Staff Response The policy statement is meant to guide staff in any negotiations with the providers. The actual lease periods and termination provisions will be negotiated before each lease is signed. The City Council will have the final say when it votes to approve or deny a proposed lease. Clearly, before two parties will sign a lease, both parties will need to come to a consensus that the lease provisions are equitable. Policy Statement, TerminationSprint Spectrum-SBA (5/24/96) This section states, The City Council may terminate any lease if it determines that any one of the following situations exist: 1. A potential user with a higher priority cannot find another adequate location and the potential use would be incompatible with the existing use; 2. A user's frequency broadcast unreasonably interferes with other users of a higher priority, regardless of whether or not this interference was adequately predicted in the technical analysis; or 3. A user violates any of the standards in this policy or the conditions attached to the City's permission. We find Items 2 and 3 to be reasonable. However, we recommend that Item 1 be deleted or revised to be less restrictive. Once construction is completed, Sprint Spectrum will have invested significant time and energy in getting the lease signed and obtaining the necessary permits and governmental approval. More importantly, the radio frequency engineers will already have determined the site to be an indispensable pieces of the radio frequently puzzle. The quality of any wireless system is based upon complete coverage, and each site is crucial to this coverage. A requirement to abandon a site after this amount of time and money has been invested is expense, and will cause the site to be inadequately served by the telecommunications provider being affected. Also, with regard to Item 2, the Federal Communications Commission regulates issues related to frequency interference. Therefore, this provision could be deleted. Staff Response Again, the policy statement is designed to serve as guidance to staff as the lease provisions are negotiated. The lease will need to include exact language as to each parties ability to terminate the lease. Staff feels it is necessary to be able to terminate the lease if the City or some other public safety or government agency needs to use the space. The time frame for such removal and the length of each lease period will have to be agreed upon by both parties before the lease is signed. It is reasonable to assume there may be different lease periods assigned to different sorts of antenna mounts. A freestanding monopole tower may need to be treated quite differently than a simple antenna mount on the side of a water tower. SBA is correct that the FCC regulates issues related to frequency interference. However, when it comes to local public safety communications, interference problems need to be addressed immediately, not when the FCC fits it into their schedule. We recommend retaining the language in the policy statement relating to frequency interference. Participation ProcessStaff has communicated extensively with the wireless providers and amateur radio users throughout the ordinance drafting process. We have received numerous written and oral comments during countless phone conversations and several meetings, including an April 30, 1996 meeting attended by a representative of each of the cellular and PCS providers and an advertised Administrative Hearing held May 7, 1996. The information provided by the wireless providers and amateur radio users has proved to be most valuable and we sincerely thank everyone involved for the great deal of time and effort they have contributed. Staff has made numerous changes to the original ordinance drafts to accommodate specific concerns. These changes include:
For more information, contact: Planning Division
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