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HomeMy WebLinkAboutZTA201300001 Executive Summary-UnsignedCOUNTY OF ALBEMARLE EXECUTIVE SUMMARY AGENDA TITLE: ZTA- 2013 -01 Phase I Wireless SUBJECT /PROPOSAL /REQUEST: Zoning Text Amendment on Phase I changes to the wireless regulations to address changes in Federal and State laws and FCC rulings that have occurred since 2004. STAFF CONTACT(S): Mr Fritz; and Ms. Baldwin PRESENTER (S): Ms. Baldwin LEGAL REVIEW: No AGENDA DATE: April 9, 2013 ACTION: X INFORMATION: CONSENT AGENDA: ACTION: INFORMATION: ATTACHMENTS: Yes REVIEWED BY: BACKGROUND: On October 3, 2012, the Board adopted resolutions of intent to amend the wireless regulations in the Zoning Ordinance in two phases. The Phase 1 zoning text amendment (ZTA) will amend the wireless regulations to ensure that the County's regulations are consistent with the recent changes in federal law, add relevant definitions related to those changes in federal law, and delete those requirements that are no longer necessary. The resolution of intent for the Phase 1 ZTA is attached (Attachment A). The Phase 2 ZTA will amend the wireless regulations to change certain application requirements, procedures and standards for reviewing and approving personal wireless facilities, standards for monopoles and the equipment attached to monopoles, and certain definitions and district regulations. The purpose of this public hearing is to review the proposed Phase 1 ZTA and provide a recommendation to the Board of Supervisors. The Phase 2 ZTA will proceed after the Phase 1 ZTA is adopted and implemented. The Board of Supervisors held a worksession on the proposed Zoning Text Amendment on March 13, 2013 and directed staff to proceed to public hearing. STRATEGIC PLAN: Goal 3: Encourage a diverse and vibrant local economy. DISCUSSION: Staff held a roundtable on January 17, 2013 with wireless industry representatives and interested members of the public to discuss the Phase 1 changes. Two primary issues for the roundtable were implementing the requirements of Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 (Section 6409) and the Federal Communications Commission's "shot clock" ruling. A copy of the proposed Phase 1 ZTA is attached (Attachment B). The significant provisions of the proposed ZTA are: - Adds and amends definitions. - Allows collocating and replacing equipment by -right if it does not result in a substantial change to the facility. - Allows Tier II applications to be approved administratively. - Requires balloon tests at the request of the agent, instead of in all cases. - Eliminates the automatic annual reporting requirement. - Clarifies the procedures and requirements for making changes to wireless facilities and sites previously approved. - Codifies review times consistent with the FCC "shot clock" ruling. Adds and clarifies definitions. The proposed ordinance defines some new terminology resulting from Section 6409 and the FCC's shot clock ruling. The proposed ordinance also clarifies some existing definitions. Allows collocatinq and replacing equipment bV -right if it does not result in a substantial change to the facility. Section 6409 requires that localities approve applications to collocate and replace equipment on an existing "tower" if the modification does not result in a substantial change to the physical dimensions of the facility. The proposed ordinance delineates several classes of changes that would not result in a substantial change to the physical dimensions of a facility and, therefore, would have to be approved by the agent: - Adding one or more antennas. - Replacing a tower at an equal or lesser height. - Replacing a treetop tower with one that is not more than 10 feet taller than the reference tree. - Strengthening a tower without the use of guy wires. - Expanding the lease area up to two times the original lease area. - Adding ground equipment. These changes would be considered substantial changes if the facility is located in an avoidance area, an entrance corridor district overlay, or within 500 feet of a dwelling on adjacent property. A change that results in additional tree clearing for the access would also be considered a substantial change. At the January 17, 2013 roundtable, staff received the following additional suggestions about changes that should not be considered substantial: - A requirement that if a treetop facility is increased to 10 feet above the reference tree, the setback to the property line must equal to or exceed the height of the tower. - Allowing an increase in the height of any facility provided that its backdrop is maintained. - Allowing an increase in tower height of 20 feet or the off -set of additional antenna by 20 feet from the face of the tower (from the FCC's shot clock ruling). - Adding cables or other measures to strengthen a tower which results in the design standards for the width being exceeded. - Allowing an increase in facility height if it satisfies "facility height to property line" setback requirements (e.g., a facility could be increased in height to 150 feet if it was set back from the property line at least 150 feet). Staff's opinion is that these changes are substantial and they have not been included in the proposed ordinance. For example, increases in tower height of up to 20 feet or antenna off -sets of up to 20 feet from the face of the tower will be substantial changes to tree top facilities having flush- mounted antennas under Section 6409. These 20 -foot thresholds are derived from the Programmatic Agreement (Attachment C) which establishes a definition of a "substantial increase ". The Programmatic Agreement was developed to streamline federal review of applications to collocate wireless antennas on properties under Section 106 of the National Historic Preservation Act. The Programmatic Agreement lists a limited number of collocations that are exempt from certain Federal requirements for review. The FCC's Wireless Bureau recently issued a public notice suggesting that "substantial change" should be interpreted to mean "substantial increase" as used in the FCC's shot clock ruling. Staff cannot recommend that the concepts of the FCC's shot clock ruling or the Programmatic Agreement be applied to the County's implementation of Section 6409. Simply put, the FCC's shot clock ruling addresses merely the time within which two broad classes of wireless classifications should be acted upon (either within 90 days or 150 days). Section 6409, on the other hand, is a federal divestiture of state and local zoning authority, and one that Congress intentionally left open for interpretation. Although it could have, Congress did not use the term "substantial increase" in Section 6409, which was the term used in the FCC's shot clock ruling. Section 6409 is implemented in proposed subsection 5.1.40(f), and it requires that the County approve equipment collocations and replacement if they do not substantially change the physical dimensions of the facility. The FCC's shot clock ruling is implemented in proposed subsection 5.1.40(h), and it requires that the County act on applications for certain modifications that do not "substantially increase" the size of the facility" within 90 days. Any other wireless application must be acted on within 150 days. For the purpose of deciding whether an application needs to be processed within 90 or 150 days, the 20 foot increase in height or antenna off -sets may be reasonable. However, applying those same thresholds to proposed subsection 5.1.40(f), particularly where multiple modifications to the same facility could be sought over time, would establish a class of facilities essentially exempt from any zoning review, and would significantly reduce the County's zoning authority over wireless facilities. Allows Tier II applications to be approved administratively. Under current regulations, Tier II facilities are not more than seven (7) feet taller than the reference tree and the facility is not located in an avoidance area. Tier II facility review is primarily a ministerial task to confirm that the facility meets the regulations for a Tier II facility. Discretion is limited to deciding whether to allow the facility to be up to ten (10) feet taller than the reference tree, instead of the seven (7) feet allowed by right. Before the Sinclair decision, Tier II facilities were acted on by the Planning Commission. After Sinclair, they are acted on by the Board by special exception. The proposed ordinance will make Tier II applications subject to review and action by the agent and allow facilities to be up to ten (10) feet taller than the reference tree by right. If the facility meets the requirements of the ordinance, it will be approved. If the application is disapproved or requires a special exception to modify a design standard, it will be acted on by the Board of Supervisors. Requires balloon tests at the request of the agent. Currently balloon tests are required for all applications unless a waiver is granted. For many applications, balloon tests are unnecessary or impracticable. For example, balloons cannot be flown when the proposal is to attach to a power line and the tests are unnecessary when the proposal is to modify or add equipment to an existing tower. Revising the ordinance to require balloon tests only at the request of the agent will remove the burden on the applicant and the County to process waivers. Balloon tests will still be required for new facilities where it is possible to fly a balloon. Eliminates the automatic annual reporting requirement. Currently the owner of a wireless facility is required to submit an annual report stating that the facility is still in use. Monitoring this condition is a substantial burden on the Zoning Administrator. The proposed ordinance requires the submittal of a report verifying the status of a facility only at the request of the Zoning Administrator. The proposed ordinance does require that a service provider notify the County if a facility is discontinued. Allows collocation and replacing equipment by -right if it does not result in a substantial change to the facility. The proposed ordinance would allow for administrative approval of the collocation and replacement of equipment that does not result in a substantial change to the facility. This revision is necessary in order to comply with the requirements of Section 6409. Clarifies the process for revisions to wireless facilities and sites previously approved. Before the current wireless regulations were adopted in 2004, wireless facilities were allowed only by special use permit. Some wireless facilities precede the requirement for a special use permit and are nonconforming. Processing requested changes to these older facilities has proven to be administratively difficult, cumbersome and expensive for both the applicant and the County. The proposed ordinance would allow changes to these older facilities and sites to be processed under the proposed regulations. This will make applications easier to process. This revision was one of the industry's most requested amendments. The proposed ordinance also clarifies how the conditions of approval for these older facilities will apply in several circumstances. Codifies review times consistent with the FCC shot clock. The FCC released a Declaratory Ruling in November 2009 which established time frames for acting on applications to collocate and for new facilities, generally referred to as the shot clock ruling. The ruling requires locality action within 90 days on an application for a collocation and within 150 days for a new facility. The proposed ordinance will codify these review timelines. A challenge to the FCC's authority to issue the shot clock ruling is currently pending in the United States Supreme Court. BUDGET IMPACT: No budget impact is anticipated. RECOMMENDATIONS: Staff recommends that the Planning Commission recommend approval of ZTA 2013 -01 to the Board of Supervisors. ATTACHMENTS: Attachment A — Resolution of Intent to Amend the Ordinance Attachment B — Proposed Ordinance Attachment C — Programmatic Agreement Attachment D — FCC Public Notice of January 25, 2013