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HomeMy WebLinkAboutZTA201300001 Executive Summary 2013-03-06COUNTY OF ALBEMARLE EXECUTIVE SUMMARY AGENDA TITLE: ZTA- 2013 -01 Phase I Wireless SUBJECT /PROPOSAL /REQUEST: Work session on Phase I changes to the wireless regula- tions to address changes in Federal and State laws and FCC rulings that have occurred since 2004. STAFF CONTACT(S): Messrs. Foley, Davis, Kamptner, Graham, and Fritz; and Ms. Baldwin PRESENTER (S): Mr. Fritz LEGAL REVIEW: Yes AGENDA DATE: March 6, 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 work session is to review the proposed Phase 1 ZTA prior to holding public hearings. The Phase 2 ZTA will proceed after the Phase 1 ZTA is adopted and implemented. 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 by -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. AGENDA TITLE: ZTA- 2013 -01 Phase I Wireless March 6, 2013 Page 2 - 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. 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. AGENDA TITLE: ZTA- 2013 -01 Phase I Wireless March 6, 2013 Page 3 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. 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 Board identify any provisions of the proposed amendments it would like staff to consider further and direct staff to proceed to public hearing with the Planning Commission. 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 Return to agenda COUNTY OF ALBEMARLE EXECUTIVE SUMMARY AGENDA TITLE: Personal Wireless Service Facilities Update S U BJ ECT /PROPOSAL /REQU EST: Update on review of the County's personal wireless service facilities regulations and the results of the consultant's work STAFF CONTACT(S): Messrs. Foley, Elliott, Davis, Graham and Fritz PRESENTER (S): Bill Fritz LEGAL REVIEW: Yes AGENDA DATE: September 5, 2012 ACTION: X INFORMATION: CONSENT AGENDA: ACTION: INFORMATION: ATTACHMENTS: Yes REVIEWED BY: BACKGROUND: The Board of Supervisors directed staff to research the need to change the County's existing Wireless Policy and regulations. In an effort to determine the needs and desires of the wireless community, staff conducted a roundtable with representatives of the wireless industry on June 7, 2012. A summary of the comments made at the roundtable are included as Attachment A. The County also retained the services of a consultant to provide information and analysis regarding several issues identified by the Board. The report of the consultant is included as Attachment B. STRATEGIC PLAN: Goal 3: Encourage a diverse and vibrant local economy Goal 4: Protect the County's parks and its natural, scenic and historic resources in accordance with the County's established grown management policies Goal 5: Ensure the health and safety of the community DISCUSSION: Cityscape Consultants Inc. was selected to provide information regarding the following issues: 1. Describe how technology may be changing deployment. 2. Describe the court decisions that are influencing the regulating of deployment and why. 3. Describe the FCC rulings, programs and policy initiatives that may impact regulation of deployment and why. 4. Describe how changes in wireless will impact the regulation of deployment. 5. Describe how Albemarle County's policy should change and list those sections in the County Code that need to be revised on the basis of technology, court cases and the recent FCC rulings. 6. Determine how the County could encourage broadband deployment into portions of the County not currently served. Staff has reviewed the consultant's report, considered the comments of the wireless industry made at the roundtable, and conducted its own research. Through this work staff finds, and the consultant agree, that with the exception of the regulatory changes listed below, that the County's current Wireless Policy and regulations are consistent with existing technology, case law and FCC rulings, and that newer technology can be deployed within this framework. Staff recommends a number of changes to the County's Ordinance and Policy that fall into four general categories, as follows: Changes designed to address recent changes in federal law: 1. Add definitions for terms such as "collocation," "substantial change," and "existing facility." 2. Allow equipment to be replaced on existing towers (regardless of how they were permitted), with only building permit review. 3. Other changes to ensure wireless regulations are consistent with recent FCC rulings and changes in federal law. Changes to the design of sites: 1. Remove the limitation on the number of arrays permitted on any individual tower. 2. Investigate potential changes to the antenna mounting and size limitations. AGENDA TITLE: Personal Wireless Service Facilities Update September 5, 2012 Page 2 3. Remove or modify setback requirements. 4. Remove antenna design requirements for antenna located within a structure. 5. Investigate modifications to the maximum monopole width permitted to ensure interior cable routing can occur. 6. Increase the number of facilities permitted within 200 feet of each other from 3 to 4 before a Tier III special use permit review is required. Changes to the review process: 1. Allow wooden poles to be replaced with metal poles, with only building permit review. 2. Allow monopoles of up to 60 feet by right, regardless of their proximity to any tree. 3. Allow Tier 11 monopoles to be 15 feet above the reference tree. 4. Allow Tier II facilities to be approved administratively by staff rather than continuing to be approved by the Board by special exception. 5. Exempt wireless facilities from the critical slopes provisions. 6. Exempt wireless facilities from review by the Architectural Review Board. 7. Remove Rural Historic Districts from the list of Avoidance Areas, which requires the facility to obtain a Tier III special use permit. Changes to submittal requirements: 1. Amend submittal requirements so that only trees or other screening material near the facility or disturbed areas are shown. 2. Eliminate mandatory annual reporting requirement and instead require the service provider to submit a report upon the request of the County. Prior to presenting a zoning text amendment to the Board for consideration, staff recommends that the wireless industry and the general public be further engaged in the process. Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 One recent change in federal law requires preliminary consideration by the Board. Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 states in part that "Local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station." Section 6409 does not alter localities' processes for approving an application for a change that is not substantial; the statute only requires that the application be approved. At the June 7, 2012 wireless roundtable, representatives from the wireless industry urged that a definition of the phrase "substantial increase in the size of the tower" contained in a federal document known as the "Nationwide Programmatic Agreement for the Collocation of Wireless Antennas" (the "Programmatic Agreement ") (Attachment C) be used to define "substantially change" as used in Section 6409. At this point, staff has concerns and doubts as to whether the definition in the Programmatic Agreement should be used to define a "substantial change" under Section 6409, including the following: 1. Although the Programmatic Agreement preceded Section 6409, Congress chose to use the phrase "substantially change" instead of "substantial increase in the size of the tower ". 2. The Programmatic Agreement was entered into between federal agencies and its purpose was to establish guidelines for the speed by which changes to wireless facilities located on historic federal buildings would be acted upon by a federal agency; Section 6409 applies to localities and the exercise of their zoning and police powers. 3. The FCC relied on the Programmatic Agreement in a declaratory ruling directing localities to expedite action on wireless facilities by acting on those that would not require a substantial increase in the size of the tower within 90 days; Section 6409 does not pertain to the speed by which a locality must approve a facility. 4. Extensions to towers that do not increase the height of the tower by more than 10% and new equipment mounted that would not protrude more than 20 feet would not be a "substantial increase in the size of the tower" under the Programmatic Agreement. Thus, under the Agreement's definition, a mountain ridge monopole could be extended so that it would become skylighted in violation of the County's Wireless Policy, and a 40 -foot monopole could have a 20 -foot protrusion mounted to it, and neither of these changes would be considered a substantial change. In addition, the Agreement does not address whether the 10% and 20 foot thresholds pertain only to those towers in existence when the Agreement was entered into, whether they pertain only to towers as they were originally approved, or some other iteration. The Agreement also does not restrict the number of expansions to which the 10% or 20 feet threshold might apply. Thus, a wireless facility AGENDA TITLE: Personal Wireless Service Facilities Update September 5, 2012 Page 3 could be extended multiple times in a series of applications to whatever height the structure would bear. The picture below shows a facility with an array at the top that would not be considered a "substantial increase in the size of the tower ". lIM Photo from https: / /www.law.upenn.edu As can be seen from the photograph, accepting the Programmatic Agreement definition could result in facilities that do not comply with the County's Wireless Policy by simply adding equipment to an existing monopole. The initial applicant for a wireless facility would comply with the County's wireless regulations and be required to use flush mounted antennas. If the Programmatic Agreement definition applied, subsequent additions to the wireless facility would not have flush mounted antenna. Staff believes that Section 6409's failure to use the terminology of the Programmatic Agreement was intentional. Therefore, staff requests that the Board direct staff to develop a reasonable alternative definition of "substantial change" that implements Section 6409 and is consistent with the County's Wireless Policy. Broadband Deployment The Board also requested that the consultant determine how the County could encourage broadband deployment into portions of the County not currently served. The consultant addresses this issue on pages 36 -37 of Attachment B. Staff notes that in 2011 the FCC was estimating that over 71 % of the County's residences had access to broadband service and Centurylink has estimated that over 90% of the County residences will have access by the end of 2012. For the remainder, there appear to be limited options for encouraging broadband deployment. The recommended changes to the wireless regulations should somewhat reduce the requirements that service providers must meet to establish new facilities, but this ultimately becomes a business decision where the cost of providing service must be weighed against the potential revenue, with these remaining low density areas proving an economic challenge. This does not prohibit the County from considering other options. The School Division is investigating options to provide broadband to all of its students within the Rural Areas, but is in the very preliminary stages of developing a plan. At this time it is not known if that service could be provided to the general public or to students only. Further, the system to be used and the number and location of sites required to provide coverage is presently unknown. It is anticipated that more information on the School's project will be available in approximately six months. BUDGET IMPACT: The proposed changes to the County's wireless regulations are not anticipated to require additional County funding, and may result in less staff time spent on wireless facility review. RECOMMENDATIONS: Staff recommends: 1) That the Board direct staff to prepare a Resolution of Intent for adoption to initiate the regulatory changes recommended by staff and any additional changes as directed by the Board. Unless otherwise directed by the Board, the process of ordinance development would include engaging the wireless industry and public to gather input on ordinance concepts before bringing this forward for public hearings. This work will need to be prioritized against other staff efforts and a recommendation for prioritization will also be submitted to the Board for consideration with the Resolution of Intent; and AGENDA TITLE: Personal Wireless Service Facilities Update September 5, 2012 Page 4 2) That the Board direct staff to develop a reasonable alternative definition of "substantial change" that implements Section 6409 and is consistent with the County's Wireless Policy. ATTACHMENTS: A — Summary of Roundtable held with Wireless Industry Representatives B — Report by CityScape Consultants, Inc C — Excerpt from Nationwide Programmatic Agreement for the Collocation of Wireless Antennas Return to agenda COUNTY OF ALBEMARLE EXECUTIVE SUMMARY AGENDA TITLE: AGENDA DATE: Zoning text amendments — Personal wireless service October 3, 2012 facilities ACTION: INFORMATION: SUBJECT /PROPOSAL /REQUEST: Adoption of Resolutions of Intent to amend the personal CONSENT AGENDA: wireless service facilities regulations in the Zoning ACTION: X INFORMATION: Ordinance ATTACHMENTS: Yes STAFF CONTACT(S): Messrs. Foley, Elliott, Davis, Kamptner, Graham, and Fritz REVIEWED BY: PRESENTER (S): N/A LEGAL REVIEW: Yes BACKGROUND: On September 5, 2012, the Board of Supervisors conducted a work session on the County's personal wireless service facilities regulations in the Zoning Ordinance (the "wireless regulations "). The Board received the report from the County's wireless consultant, as well as information regarding recent changes in federal law affecting the review and processing of applications for wireless facilities and a summary of the results of a roundtable that staff held with representatives of the wireless industry. Staff provided the Board with a number of recommended changes to the wireless regulations. At the conclusion of the work session, the Board directed staff to return to the Board with resolutions of intent to amend the wireless regulations. STRATEGIC PLAN: Goal 3: Encourage a diverse and vibrant local economy. DISCUSSION: Staff recommends that the Board consider amending the wireless regulations in two phases. In the first phase, the proposed zoning text amendment would 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 amendments is attached (Attachment A). In the second phase, the proposed zoning text amendment would 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. Staff anticipates that the Phase 2 amendments will take longer to develop than the Phase 1 amendments because extensive research and analysis may be required and public roundtables with the wireless industry and the public will be held. The resolution of intent for the Phase 2 amendments is also attached (Attachment B). Staff recommends that a public roundtable as well as Planning Commission and Board work sessions occur during the first quarter of calendar year 2013 for Phase 1 work. Work sessions and Roundtables for Phase 2 work will commence upon completion of Phase 1 which is expected in the early part of second quarter 2013. This schedule is reflective of the need for staff to complete work on tasks associated with implementing proposed changes to the Ministerial Process being considered by the Board in October as well as the Board's planned review /consideration of proposed changes to Critical Slopes regulations in November /December of this year. BUDGET IMPACT: No budget impact is anticipated. AGENDA TITLE: Zoning text amendments — Personal wireless service facilities October 3, 2012 Page 2 RECOMMENDATIONS: Staff recommends that the Board adopt the attached Resolutions of Intent (Attachments A and B) and direct staff to proceed with work on the zoning text amendments. ATTACHMENTS: A - Resolution of intent to amend the personal wireless service facilities regulations (Phase 1) B - Resolution of intent to amend the Dersonal wireless service facilities reaulations (Phase 2) Return to consent agenda Return to regular agenda COUNTY OF ALBEMARLE EXECUTIVE SUMMARY AGENDA TITLE: Wireless Policy /Regulations Update SUBJECT /PROPOSAL /REQUEST: Provide Update on Wireless Policy and Regulations STAFF CONTACT(S): Messrs. Foley, Elliott, Davis, Kamptner, Graham and Fritz LEGAL REVIEW: Yes AGENDA DATE: May 2, 2012 ACTION: INFORMATION: CONSENT AGENDA: ACTION: INFORMATION: X ATTACHMENTS: No REVIEWED BY: BACKGROUND: On December 7, 2011 the Board of Supervisors authorized an appropriation of up to $12,000 for the purpose of hiring a consultant to assist the County in updating the Wireless Policy /Regulations and to investigate possible strategies to encourage deployment of broadband access throughout the County. The Board also instructed staff to work with industry representatives to discuss possible ordinance amendments to address process improvements. Staff has met with industry representatives to discuss potential changes in the ordinance and the impact of recent rulinr, interpretations and laws. A more formal discussion with industry representatives is scheduled for June 7 to discuss specific changes to the ordinance. Finalization of the contract and the discussions with the industry have been complicated due to a variety of external decisions including the FCC's "Shot Clock" ruling, which requires expedited action on certain wireless applications, the recent adoption of the "Middle Class Tax Relief Act and Job Creation Act of 2012," which includes a provision that affects a locality's authority to deny certain wireless applications that do not propose "substantial changes" to an existing facility's physical dimensions, and the Virginia Supreme Court's decision in Sinclair, which eliminated the Planning Commission's authority to approve Tier II applications. These changes to the regulatory environment have caused the project to be delayed while staff identified the appropriate scope of work. DISCUSSION: The Board expressed an interest in the consultant performing the following scope of work (included as Option 2 in the presentation made to the Board on December 7, 2011): Describe how technology is changing deployment. Describe the court decisions that are influencing the regulating of deployment and why. Describe the FCC rulings, programs and policy initiatives that may impact regulation of deployment and why. Describe how changes in wireless will impact the regulation of deployment. Specifically, describe how Albemarle County's policy should change and list those sections in the County Code that need to be revised on the basis of technology, court cases and the recent FCC rulings. In addition to the above, the Board wanted to determine how the County could encourage broadband deployment into portions of the County not currently served. Staff interpreted this deployment to be wireless broadband which may be met by either licensed or unlicensed providers. Staff has defined the scope of work and is in the process of procuring the consultant's services. The Board did not direct staff to work with the general public initially in any discussions regarding changes in wireless regulations. The original discussions with the public regarding wireless planning occurred over 12 years ago. Since that time, the way individuals use wireless has changed significantly. It is possible that the general attitude toward wireless planning has also changed. Staff recommends that as a part of the process of updating the policy, discussions occur with consultants and industry representatives, as well as the public in general. Any work with the industry and public would occur after the Board has had an opportunity to review and evaluate the work of the consultant. AGENDA TITLE: Wireless Policy /Regulations Update May 2, 2012 Page 2 BUDGET IMPACT: The Board has authorized an appropriation of up to $12,000 for this project. RECOMMENDATIONS: This report is provided as an informational item only and no Board action is required at this time. Staff will proceed with finalizing a contract with the consultant and submit a schedule for this project to the Board once a notice -to- proceed has been issued to this company. Return to consent agenda Return to regular agenda COUNTY OF ALBEMARLE EXECUTIVE SUMMARY AGENDA TITLE: Personal Wireless Service Facilities SUBJECT /PROPOSAL /REQUEST: Revised application and review schedule for Personal Wireless Service Facilities STAFF CONTACT(S): Messrs. Foley, Elliott, Davis, Graham and Fritz LEGAL REVIEW: Yes AGENDA DATE: March 7, 2012 ACTION: INFORMATION: CONSENT AGENDA: ACTION: INFORMATION: X ATTACHMENTS: Yes REVIEWED BY: BACKGROUND: The FCC has established timelines for the processing of personal wireless service facilities. In order to insure that the County meets these timelines and to generally improve the review of personal wireless service facilities a revised application and review schedule has been created. DISCUSSION: At the February 1, 2012 Board meeting, staff notified the Board of Supervisors that changes to the application and review schedule for locating a personal wireless service facility could be done administratively. Following Board direction, staff has completed the application changes, modified the review schedule, and shared this information with representatives of the wireless industry. The application has been revised to clarify the information necessary to process the application. The review schedule has been revised to reduce the review time for a Tier III application by approximately 30 days. BUDGET IMPACT: None RECOMMENDATIONS: This summary is provided for information on administrative action that has taken place, and no Board action is required. ATTACHMENTS A — Personal Wireless Service Facilities Review Schedule B — Personal Wireless Service Facilities Application Return to consent agenda Return to regular agenda COUNTY OF ALBEMARLE EXECUTIVE SUMMARY AGENDA TITLE: Wireless Policy /Regulations Update S U BJ ECT /PROPOSAL /REQU EST: Discussion on the status of potential updates to the County's Wireless Policy and Regulations STAFF CONTACT(S): Messrs. Foley, Elliott, Davis, Graham and Fritz LEGAL REVIEW: Yes AGENDA DATE: February 1, 2012 ACTION: INFORMATION: X CONSENT AGENDA: ACTION: INFORMATION: ATTACHMENTS: No REVIEWED BY: BACKGROUND: On December 7, 2011 the Board appropriated $12,000 to retain a consultant to assist the County in updating its Wireless Policy /Regulations and to investigate mechanisms to encourage the deployment of broadband access throughout the County. The Board also directed staff to work with industry representatives to discuss possible related ordinance amendments. DISCUSSION: Since the Board meeting, staff has confirmed that the consultant's work will be considered Professional Services and that no RFP is required. The Board requested that the consultant perform the following scope of work as outlined in Option 2 of the presentation made to the Board on December 7, 2011: 1. Describe how technology is changing deployment. 2. Describe any Court decisions that are influencing the regulation of deployment and why. 3. Describe the FCC notices, programs and policy initiatives that may impact regulation of deployment and why. 4. Describe how changes in wireless will impact regulation of deployment. 5. Specifically describe how Albemarle County's policy should change and list those sections of the County Code that need to be revised on the basis of technology, court cases and the recent FCC rulings. In addition to the above, the Board wants to determine how the County can encourage broadband deployment into areas of the County not currently served. Staff interpreted this deployment to be wireless broadband which may be met by either licensed or unlicensed providers. Staff has contacted the firm of Kreines and Kreines who assisted the County in the development of the existing Wireless Policy. The County is negotiating with Kreines and Kreines to define the deliverables and to include the added analysis desired by the Board. The Board also directed staff to review the existing related County Code provisions with industry representatives to determine if any helpful minor changes could be made quickly. Staff has scheduled a meeting with industry representatives for January 20 and has begun to review the existing County Code provisions to determine if any changes in submittal criteria or process could be made without significantly affecting the quality of review. Once changes are identified, staff will present a resolution of intent to initiate those changes to the Board. BUDGET IMPACT: The Board has appropriated $12,000 for this project. RECOMMENDATIONS: This item is being provided as an update for the Board's information. Once a contract has been finalized with this firm, staff will inform the Board of a schedule and major milestones for this project. Return to agenda COUNTY OF ALBEMARLE EXECUTIVE SUMMARY AGENDA TITLE: Wireless Policy / Regulations Update SUBJECT /PROPOSAL /REQUEST: Evaluating the need to update the wireless policy and /or regulations, and establish a process for any needed update STAFF CONTACT(S): Messrs. Foley, Elliott, Davis, Graham, and Fritz LEGAL REVIEW: Yes AGENDA DATE: December 7, 2011 ACTION: X INFORMATION: CONSENT AGENDA: ACTION: INFORMATION: ATTACHMENTS: Yes REVIEWED BY: BACKGROUND: The deployment of infrastructure for wireless technology first became a significant issue for the County in the 1990's. By the late 1990's approximately 25% of all special use permit applications were for antennas to provide cellular phone service ( "wireless facilities "). In December 2000, the Board adopted the Personal Wireless Services Facilities Policy to address this growing industry (Attachment A). This policy was a major undertaking involving the use of an outside consultant and numerous public roundtables and worksessions with the Planning Commission and the Board. The policy was used to develop ordinance amendments resulting in the County's current method of reviewing wireless facilities. In staff's opinion, the policy and ordinance amendments were extremely successful in reducing review times, increasing predictability in review and minimizing the adverse visual impacts that can be associated with wireless facilities. DISCUSSION: As wireless systems have matured, the use of wireless technology has rapidly expanded. With changes in technology (smart phones), the citizens of the County began to use wireless services in ways not fully envisioned in the current policy, which has significantly increased the demand for wireless facilities. The wireless industry is again expanding in a manner similar to the growth seen in the 1990s. However, the County has not undertaken any significant review of the policy or the ordinance since their original adoption. Several members of the wireless industry have provided comments indicating that the County's existing policy and regulations are unnecessarily impeding the deployment of new technology, and that some of the County's processes may be inconsistent with recent FCC rulings pertaining to timing action on wireless applications. These comments from the wireless industry are very similar to those received in the 1990s. The current policy has functioned well for the County for 10 years, however, with the changes in technology and the way that wireless is used, it is staff's opinion that revisiting the County's policy and regulations for wireless facilities is warranted. In revisiting the policy and regulations, staff recommends that the County undertake the following proposed steps: 1. Consider updating the policy and regulations to reflect changes in technology, and to incorporate any relevant and applicable FCC rulings. Staff believes this is a fairly narrow and technical review that could be accomplished within a few months by staff with the assistance of a qualified consultant, and without an extensive public engagement process. 2. Consider revising the policy and regulations to address any changes in the desire of the community for the regulation of wireless facilities. Staff believes this would require a much broader review to address whether the community's perception of wireless facilities has changed since the original policy was adopted. Following the process from the original policy development, staff anticipates that this would require a significant public engagement effort. 3. Consider revising the existing tiered review system to reflect and incorporate the proposed changes identified in steps 1 and 2 above. The extent of this work would depend on the outcome of the preceding two steps. Most of the effort would be associated with preparing materials for the Planning Commission and the Board, and addressing the direction they provide. AGENDA TITLE: Wireless Policy / Regulations Update December 7, 2011 Page 2 These three steps are the same steps undertaken by the County when it first developed the wireless policy and regulations. The first step is to understand the current and expected near future state of wireless technology. Once this is understood, the County can participate in a meaningful discussion with the industry and the public to ascertain the goals of all parties. Staff believes that the industry and the public want reliable wireless services in all parts of the County without sacrificing those unique features of Albemarle County that make it such a special place. Next, the need for review of the wireless policy and regulations would need to be prioritized against other Community Development initiatives. Community Development reviews its work program with the Board annually to establish priorities, and there is currently a backlog of priority initiatives awaiting staff resources (e.g. critical slopes, Rural Areas churches). The work program was last updated in September 2011 (Attachment B), and the next annual Board review is planned for February 2012. Staff notes that all available resources are currently working on changes to the development review processes and the Comprehensive Plan update and it will likely be February or March before a concerted effort on the wireless policy could begin without putting those efforts aside. The current policy and ordinance does provide a means to address the industry's needs and the application workload has not become overwhelming as it had in the 1990's. Staff's perspective is that this initiative would likely provide significant benefits by updating the policy and streamlining the review process, but that there is not a crisis. Because staff views this effort as important, but not critical, staff recommends that the Board weigh the importance of this initiative against other priorities. As the annual Community Development work program review is scheduled for February, staff would incorporate any guidance provided today into a recommended work program. During the development of the wireless policy, it was known that at some point technology was going to change and a review of the wireless policy and the corresponding regulations would be required. In response to this, the closing statement of the wireless policy is "Please remember that planning for Albemarle County is a work in progress. County officials and staff invite you to send your comments and suggestions for this Wireless Policy..." BUDGET IMPACT: The services of a consultant to advise the Board and staff on policy and technical issues would be needed for this initiative. Staff has initiated discussions with the consultant who assisted in the development of the original policy to develop an estimate of likely costs. (Attachment C). From this, it is anticipated that a review of the technical and legal issues (1 & 2, draft proposal) would require approximately $20,000, and that expanded public input for policy and regulatory changes (3, 4 & 5, draft proposal) would require approximately $30,000, allowing for one site visit by the consultant for each phase of this work. Staff notes that while this draft proposal helped define the anticipated cost, the public procurement process must be followed and an appropriation would be needed prior to contracting this service. Staff recommends this effort be funded through the Board reserves if the Board wishes to pursue this initiative in FY 12. If the Board wishes to pursue this initiative in a future fiscal year, staff would recommend including this funding as part of that fiscal year's proposed budget. RECOMMENDATIONS: Staff recommends that the Board provide guidance to staff on the appropriate priority for this initiative relative to other initiatives currently in the Community Development work program. 1. As noted in the discussion, it is anticipated that work on this initiative could begin as early as February or March without impacting current efforts. Staff will include the Board's prioritization as part of the Community Development work program annual review in February. 2. If the Board is interested in proceeding with this initiative as soon as possible, the Board should direct staff to proceed with soliciting consultant services and to bring forth an appropriation request to the Board from its reserve fund once a proposed contract has been developed. The Board will also need to determine what items in the work program should be delayed. ATTACHMENTS A— Current Personal Wireless Facilities Policy B -- September 2011 Community Development work program update C — Draft Proposal for Consultant Services Return to agenda COUNTY OF ALBEMARLE EXECUTIVE SUMMARY AGENDA TITLE: Community Development Work Program — midyear update SUBJECT /PROPOSAL /REQUEST: Update on the current status of items in Community Development's Work Program STAFF CONTACT(S): Messrs. Foley, Elliot, Davis, Graham, Cilimberg, Fritz, and Ms. McCulley. LEGAL REVIEW: Yes AGENDA DATE: September 7, 2011 ACTION: INFORMATION: CONSENT AGENDA: ACTION: INFORMATION: X ATTACHMENTS: Yes REVIEWED BY: BACKGROUND: This report provides the Board an update on Community Development's progress on its 2011 work program. This work program was presented to the Board in February, 2011, and includes changes to reflect the Board's direction to prioritize additional work items, such as Critical Slopes and Rural Area Churches. Additionally, the Board directed staff to consider the Interstate Interchange Policy review with the Comprehensive Plan Update so that the targeted industry study may first be completed. DISCUSSION: Attachment 1 is the work program as presented to the Board in February, 2011. Attachment 2 presents the work program status as of August, 2011. Staff notes the following highlights: 1. Work completed since February, 2011 includes Places 29 Master Plan, Redistricting, Zoning Fees, Phase 2 of Winery changes, and Phases 1 and 2 of Light Industrial zoning changes. 2. As a result of work on the LI zoning changes, staff is investigating the need for a third phase beyond what was previously anticipated. This third phase would consider the broadening of uses allowed in the Light Industrial zoning category. 3. Staff estimates the Comprehensive Plan update has been delayed approximately 2 months due to the need to obtain Board concurrence with the Consortium Agreement and the inability to move forward until that agreement was approved. 4. The ministerial and legislative changes remain on schedule, with the ministerial changes anticipated to reach the Board in the fourth quarter of 2011 and the legislative changes anticipated to reach the Board in the first quarter of 2012. 5. Work on the Critical Slopes amendment is anticipated to restart as the ministerial changes are finalized. Work on the Rural Areas churches has been delayed until 2012 pursuant to the Board's direction at the April 2011 work session. 6. Finally, work on possible amendments to the sign ordinance have been delayed approximately six months, but are now proceeding to public hearing, and it is anticipated to be presented to the Board in the fourth quarter of 2011. BUDGET IMPACT: Staff anticipates there will be no budget impact resulting from this executive summary. RECOMMENDATIONS: This report is for information only and no action is required. ATTACHMENTS Attachment A — 2011 Work Program Attachment B — 2011 Work Program, mid year status