HomeMy WebLinkAboutZTA201300001 Executive Summary 2013-04-09 COUNTY OF ALBEMARLE
EXECUTIVE SUMMARY
AGENDA TITLE: AGENDA DATE:
ZTA-2013-01 Phase I Wireless April 9, 2013
SUBJECT/PROPOSAL/REQUEST: ACTION: X INFORMATION:
Zoning Text Amendment on Phase I changes to the
wireless regulations to address changes in Federal and CONSENT AGENDA:
State laws and FCC rulings that have occurred since ACTION: INFORMATION:
2004.
ATTACHMENTS: Yes
STAFF CONTACT(S):
Mr Fritz; and Ms. Baldwin REVIEWED BY:
PRESENTER (5): Ms. Baldwin
LEGAL REVIEW: No
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 collocating 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.
- 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 woL Id 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 facilites precede the requirement for a special use permit and are nonconforming. Processing
requested changes to these .)lder 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— Programmat:c Agreement
Attachment D— FCC Public Notice of January 25, 2013
I
RESOLUTION OF INTENT
WHEREAS,County Code § 18-5.1.40,which is part of the Albemarle County Zoning Ordinance,
establishes regulations pertaining to personal wireless service facilities; and
WHEREAS,County Code § 18-3.1 defines a number of the terms used in County Code
§ 18-5.1.40; and
WHEREAS,recent changes in the law, including the Federal Communications Commission's"Shot
Clock"declaratory ruling,and the enactment of Section 6409 of the Middle Class Tax Relief Act of 2012,
affect the time within which the County must act on certain applications for personal wireless service
facilities,and compel the County to approve certain qualifying applications for the collocation,
replacement or removal of equipment on existing wireless"towers"; and
WHEREAS,practical experience resulting from administering County Code § 18-5.1.40 since it was
adopted in 2004 has allowed the County to identify several requirements of that section that are no longer
necessary; and
WHEREAS, in order to promote the efficient and effective administration of the County's regulations, it
may be desirable to amend County Code §§ 18-3.1 and 18-5.1.40 to expressly incorporate recent changes
in the law, amend and add definitions related to those recent changes in the law, and to delete those
requirements that are no longer necessary.
NOW,THEREFORE,BE IT RESOLVED THAT for purposes of public necessity, convenience,
general welfare and good zoning practices,the Albemarle County Board of Supervisors hereby adopts a
resolution of intent to consider amending Albemarle County Code §§ 18-3.1 and
18-5.1.40 and any other sections of the Zoning Ordinance deemed to be appropriate,to achieve the
purposes described herein; and
BE IT FURTHER RESOLVED THAT the Planning Commission shall hold a public hearing on the
zoning text amendment proposed pursuant to this resolution of intent, and make its recommendations to
the Board of Supervisors at the earliest possible date.
* * * * *
I, Ella W.Jordan, do hereby certify that the foregoing writing is a true, correct copy of a Resolution duly
adopted by the Board of Supervisors of Albemarle County, Virginia, by a vote of to , as
recorded below, at a regular meeting held on
Attachment A I '
Draft: 03/27/13
ORDINANCE NO. 13-18( )
AN ORDINANCE TO AMEND CHAPTER 18,ZONING,ARTICLE I, GENERAL PROVISIONS,AND
ARTICLE II,BASIC REGULATIONS, OF THE CODE OF THE COUNTY OF ALBEMARLE,VIRGINIA
BE IT ORDAINED By the Board of Supervisors of the County of Albemarle,Virginia,that Chapter 18,Zoning,
Article I, General Provisions, and Article II,Basic Regulations, are hereby amended and reordained as follows:
By Amending:
Sec. 3.1 Definitions
Sec. 5.1.40 Personal wireless service facilities
Chapter 18. Zoning
Article I. General Provisions
Sec. 3.1 Definitions
Collocation: As used in section 5.1.40 and any definitions pertaining to personal wireless service facilities,the
mo n i . or ins •11.tion • •6- • mor- antennas for th- . .• e of • • i.in._.-r • wir-l- -t i - • .n
-x' in. I-- •11.1 wir-l- _ -rvi - ili th- .•8i ion •fr-1. -. .bl-s wirin' ..• • • br. k- .1. • her
structural equipment, and the addition of transmission equipment.
Existing b ildin:: As used in section 5.1.40 and an definitions pertainint to personal wireless service facilities a
• il•in. h, w. l.wf.11 •n tr. -• .r - .• • -ea . • .li- i h h- minim m . ..li . Ile • lk h-i.h
setback, floor area, and other structure requirements of the district in which the building is located,
Existing structure: As used in section 5.1.40 and any definitions pertainin8 to personal wireless service facilities,a
structure,other than a fl. .pole or an existing personal wireless service facili that was lawfull constructed or
established and complies with the minimum applicable bulk,height, setback, floor area or other structure
requirements of the district in which the structure is located.
personal wireless service facility or existing facility: As used in section 5.1.40 and any definitions
pertaining to personal wireless service facilities, a personal wireless service facility that was approved under section
1 41 • • .- i.l - .-tui .r'.r o • ..•r 114 w._ th-r-.ft-r - tabli -. .n. h. • in -d i -.i -n -
'n - •-•n8 - .. i -. . • w i h .r• i.- •-r .,. .ir-l- services.
Personal wireless services: Commercial mobile services, unlicensed wireless services, common carrier wireless
exchange access services, as those services are defined by federal law and, for the purposes of this chapter,
unlicensed wireless broadband internet access services.
Personal wireless service facility: A facility for the provision of personal wireless services, as defined by 17 U.S.C.
1
ATTACHMENT B 5
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r
and which may be composed of antennas,cables,wiring, supporting brackets and other
structural equipment, grounding rods,transmission equipment, one or more ground equipment shelters, and a self-
supporting monopole or tower. (Added 10-17-01; Amended 10-13-04; Amended 6-1-11)
Rerl• •m' : . -e 'n section 5.1.40 and .n .efini 'on •- .in' • to .-r •n.1 wir-1- -rvice fa ili i- h-
r- .lac-m-nt of • - •rm•r- .ntennas ables wiring s_ •.•r•n' .r, k-ts an. oth-r truce .1 -• i.m-nt
transmission equipment, and ground equipment shelter, all of which is for the purpose of providing personal
wireless services on an existing personal wireless service facility.
Tier I personal wireless service facility or Tier I facility: A personal wireless service facility that: (i) is located
entirely within an existing building but which may include a self-contained ground equipment shelter er-eabinet not
exceeding one hundred fifty(150) square feet that is not within the building or a whip antenna that satisfy satisfies
the requirements of subsection 5.1.40(c); (ii)consists of one or more antennas, other than a microwave dish,
attached to an existing conforming structure . •- . ' :. - -: :. - --. •- •- _ • - .- . =, -
• . • .. . • _ . _ . -,together with associated personal wireless service equipment;or(iii) is located
within or camouflaged by an addition to an existing structure determined by the agent to be in character with the
structure and the surrounding district; (iv) is a collocation or a replacement that does not substantially change the
physical dimensions of an existing personal wireless service facility as that phrase is used in subsection 5.1.40(f); or
(v) is the replacement of a wooden monopole with a metal monopole that does not exceed the maximum dimensions
permitted under subsection 5.1.40(d)(5). (Added 10-13-04)
Article II. Basic Regulations
Sec. 5.1.40 Personal wireless service facilities
(Amended 10-13-04)
The purpose of this section 5.1.40 is to implement the personal wireless service facilities policy, adopted as part of
the comprehensive plan. Each personal wireless service facility(hereinafter"facility") shall be subject to following,
as applicable:
a. Application for approval: Each request for approval of a facility shall include the following information:
1. Application form and signatures. A completed application form, signed by the parcel owner,the
parcel owner's agent or the contract purchaser, and the proposed facility's owner.If the owner's
agent signs the application,he shall also submit written evidence of the existence and scope of the
agency. If the contract purchaser signs the application,he shall also submit the owner's written
consent to the application.
2. Plat or survey of the parcel. A recorded plat or recorded boundary survey of the parcel on which
the facility will be located;provided, if neither a recorded plat nor boundary survey exists, a copy
of the legal description of the parcel and the Albemarle County Circuit Court deed book and page
number.
3. Ownership. The identity of the owner of the parcel and, if the owner is other than a real person,the
complete legal name of the entity, a description of the type of entity, and written documentation
2
ATTACHMENT B
tD
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that the person signing on behalf of the entity is authorized to do so.
4. Plans and supporting drawings, calculations and documentation. Except where the facility will be
located entirely within an existing structure or an existing building, a scaled plan and a scaled
elevation view and other supporting drawings, calculations, and other documentation required by
the agent, signed and sealed by an appropriate licensed professional. The plans and supporting
drawings, calculations and documentation shall show:
(a) Existing and proposed improvements. The location and dimensions of all existing and
proposed improvements on the parcel including access roads and structures,the location
and dimensions of significant natural features, and the maximum height above ground of
the facility(also identified in height above sea level).
(b) Elevation. The benchmarks and datum used for elevations. The datum shall coincide with
the Virginia State Plane Coordinate System, South Zone,North American Datum of 1983
(NAD83),United States Survey Feet North American Vertical Datum of 1988 (NAVD88),
and the benchmarks shall be acceptable to the county engineer.
(c) Design. The design of the facility, including the specific type of support structure and the
design,type, location, size, height and configuration of all existing and proposed antennas
and other equipment.
(d) Color. Identification of each paint color on the facility,by manufacturer color name and
color number. A paint chip or sample shall be provided for each color.
(e) Topography. Except where the facility would be attached to an existing structure or an
existing building,the topography within two thousand(2,000)feet of the proposed facility,
in contour intervals not to exceed ten(10)feet for all lands within Albemarle County and,
in contour intervals shown on United States Geological Survey topographic survey maps or
the best topographic data available, for lands not within Albemarle County.
(f) Trees. The height, caliper and species of all trees where the dripline is located within fifty
(50)feet of the facility that are relied upon to establish the proposed height andler or
screening,or both,of the monopole or tower. All trees that will be adversely impacted or
removed during installation or maintenance of the facility shall be noted,regardless of their
distances to the facility.
(g) Setbacks,parking,fencing, and landscaping. All existing and proposed setbacks, parking,
fencing and landscaping.
(h) Location of accessways. The location of all existing accessways and the location and design
of all proposed accessways.
(i) Location of certain structures and district boundaries. Except where the facility would be
attached to an existing structure or an existing building,residential and commercial
structures;and residential and rural areas Daning district boundaries.
(j) Proximity to airports. If the proposed monopole or tower will be taller than one hundred
fifty(150) feet,the proximity of the facility to commercial and private airports.
5. Photographs. Photographs,where possible, or perspective drawings of the facility site and all
3
ATTACHMENT B
Draft: 03/27/13
existing facilities within two hundred(200)feet of the site, if any, and the area surrounding the site.
6. Balloon tests. For any proposed monopole or tower, photographs taken of a balloon test,which
shall be conducted, if requested by the agent,as follows:
(a) Scheduling. The applicant shall contact the agent within ten(10)days after the date the
application was submitted to schedule a date and time when the balloon test will be
;onducted. The test shall be conducted within forty(40)days after the date the application
was submitted, and the applicant shall provide the agent with at least seven(7)days prior
notice; provided that this deadline may be extended due to inclement weather or by the
agreement of the applicant and the agent.
(b) Marking key boundaries and locations. Prior to the balloon test,the locations of the access
road,the lease area,the tower site,the reference tree and the tallest tree within twenty five
(25)feet of the proposed monopole shall be surveyed and staked or flagged in the field.
(c) Balloon height. The test shall consist of raising one or more balloons from the site to a
height equal to the proposed facility.
(d) Balloon color or material. The balloons shall be of a color or material that provides
maximum visibility.
(e) Photographing balloon test. The photographs of the balloon test shall be taken from the
nearest residence and from appropriate locations on abutting properties, along each publicly
used road from which the ballocon is visible, and other properties and locations as deemed
appropriate by the agent. The applicant shall identify the camera type, film size,and focal
length of the lens for each photograph.
7. Additions of antennas. If antennas are proposed to be added to an existing structure, existing
building or an existing facility, all existing antennas and other equipment on the structure,building
or facility, as well as all ground equipment, shall be identified by owner,type and size. The
method(s)by which the antennas will be attached to the mounting structure shall be depicted.
8. Site under conservation or open space easement. If the proposed facility would be located on lands
subject to a conservation easement or an open space easement, a copy of the recorded deed of
easement and the express written consent of all easement holders to the proposed facility.
b. Exemption from regulations otherwise applicable: Except as otherwise exempted in this paragraph
subsection, each facility shall be subject to all applicable regulations in this chapter.
1. Building site. Notwithstanding section 4.2.3.1 , a facility may be located in an area on
is not required to be located within a building site.
2. Setbacks. Notwithstanding section 4.10.3.1(b) ,the agent may authorize a facility to
be located closer in distance than the height of the tower or other mounting structure to any lot line
if the applicant obtains an easement or other recordable document showing agreement between the
lot owners, acceptable to the county attorney addressing development on the part of the abutting
parcel sharing the common lot line that is within the facility's fall zone(e.g.,the setback of an
eighty(80)foot-tall facility could be reduced to thirty(30) feet if an easement is established
prohibiting development on the abutting lot within a fifty(50)foot fall zone). If the right-of-way for
a public street is within the fall zone,the Virginia Department of Transportation shall be included in
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ATTACHMENT Bb
Draft: 03/27/13
the staff review, in lieu of recording an easement or other document.
3. Area, bulk and minimum yards. - • -. : •• - - : • - -- -
•_ . _ • _ _ ._• • ._ ... _. . . .. . Notwithstanding the
requirements of the district in which the facility will be locatedLthe area and bulk regulations, and
the minimum yard requirements of the district shall not apply.
4. Required yards. Notwithstanding section 4.11 meter,a facility may be located in a required
yard.
5. Site plan. Notwithstanding section 32.2 meter, a site plan shall not be required for a
facility, but the facility shall be subject to the requirements of section 32 and the applicant shall
submit all schematics, plans, calculations, drawings and other information required by the agent to
determine whether the facility complies with section 32. In making this determination,the agent
may impose reasonable conditions authorized by section 32 in order to assure ensure compliance.
c. Tier I facilities. Each Tier I facility may be established upon approval by the agent of an application
satisfying the requirements of subsection 5.1.40(a)by-the-agent, demonstrating that the facility will be
installed and operated in compliance with all applicable provisions of this chapter,
_ : _ __ . . •_ ... :,and meeting i in the following ee ions:
1. Compliance with subsection 5.1.40(b). The facility shall comply with the applicable requirements
a subsection 5.1.40(b).
2. General design. The facility shall be designed,eked installed and maintained as follows: (i)
guy wires shall not be permitted; (ii)outdoor lighting for the facility shall be permitted only during
maintenance periods; regardless of the lumens emitted, each outdoor luminaire shall be fully
shielded as required by section 4.17 ;provided that these restrictions shall not apply
to any outdoor lighting required by federal law; (iii)any ground equipment eabinet shelter not
located within the an existing structure or an existing building shall be screened from all lot lines
either by terrain, existing structures, existing vegetation, or by added vegetation approved by the
eeutityls-landseape-plannef agent; (iv)a whip antenna less than six(6) inches in diameter may
exceed the height of the existing structure or the existing building; (v)a grounding rod,whose
height shall not exceed two(2)feet and whose width shall not exceed one(1)inch in diameter at
the base and tapering to a point,may be installed at the top of the facility,er the existing structure
or the existing building; and(vi)within one-month thirty(30)days after the completion of the
installation of the facility,the applicant shall provide a statement to the agent certifying that the
height of all components of the facility complies with this regulation.
3. Antennas and associated equipment. be Antennas and associated equipment that
are : - _ - - - - •- • - • • - - not entirely within a proposed facility, an
existing facility, an existing structure, or an existing building shall be subject to the following: (i)
the total number of arrays of antennas : -•:-.-: - - -: • . - • = shall not exceed three(3),
and each antenna proposed te-be-attached under the pending application shall not exceed the size
shown on the application,which size shall not exceed one thousand one hundred fifty two(1152)
square inches; (ii)no antenna shall project from the facility,structure or building beyond the
minimum required by the mounting equipment, and in no case shall any point on the face of an
antenna project more than twelve(12) inches from the existingstfueture facility, structure or
building; and(iii)each antenna and associated equipment shall be a color that matches the existing
structure facility, structure or building. For purposes of this section, all types of antennas and
dishes,regardless of their use,shall be counted toward the limit of three arrays.
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ATTACHMENT B �j�
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4. Tree conservation plan; content. ' •: - .. -- - - .• -- --• Before the building official
issues a building permit for the facility,the applicant shall submit a tree conservation plan prepared
by a certified arborist. The plan shall be submitted to the agent for review and approval to assure
ensure that all applicable requirements have been satisfied.The plan shall specify tree protection
methods,and procedures,and identify all existing trees to be removed on the parcel for the
installation, operation and maintenance of the facility, and identify all dead and dying trees that are
recommended to be removed. - --- - -- - • - - • • - • -• - ,
- . .. . _ • _ _. _ • -• - . • .• - - :..• •• . In addition approving the lean,
the agent may identify additional trees or lands up to two hundred(200)feet from the lease area to
be included in the plan.
5. Tree conservation plan; compliance; amendment. The installation, operation and maintenance of
the facility shall be conducted in accordance with the tree conservation plan.
. 9.1i .n h.11no r-mov- - • in. tr--s • hin h- 1-. - .r-. •rwi of on- h-n:r-: lit f-- 'I
all directions surrounding the lease area of any part of the facility except for those trees identified
on the plan to be removed for the installation,operation and maintenance of the facility and dead
and dying trees. -- - . . • • _ - •- -- : . .. . -- . -- - --
. • : . . . .. . -: Before the applicant removes any tree not designated for removal
on the approved plan,the applicant shall submit and obtain approval of an amended plan. The agent
may approve the amended plan if the proposed tree removal will not adversely affect the visibility
of the facility from any location off of the parcel. The agent may impose reasonable conditions to
asp ensure that the purposes of this paragraph are achieved.
6. Discontii,onc• o • oil e t •reo • r• oval. ur• . • , h' t 1 ... s .ft-r a facili ' . -
for personal wireless service .0 loses is discontinued the owner of the facili shall noti the
z•nin. •. ini or in wr' 'n• hot . 'lit ' - - . di on • _- The facility shall be
disassembled and removed from the site within ninety(90)days e€after the date its use for personal
wireless;service purposes is discontinued. If the agent determines at any time that surety is required
to guarantee that the facility will be removed as required,the agent may require that the parcel
owner or the owner of the facility submit a certified check, a bond with surety, or a letter of credit,
in an amount sufficient for,and conditioned upon,the removal of the facility. The type and form of
the surety guarantee shall be to the satisfaction of the agent and the county attorney. In determining
whether surety should be required,the agent shall consider the following: (i) ert
.. . • ••• whether there is a change in technology that makes it likely that the
monopole or tower or pole will be unnecessary in the near future; (ivii)the permittee fails to
comply with applicable regulations or conditions; (viii)the permittee fails to timely remove another
monopole or tower or pole within the county; and(viy)whenever otherwise deemed necessary by
the agent.
7. The owner of the facility shall submit a report to the agent by no earlier than May or and no later
87. Creation of slopes steeper than 2:1. No slopes associated with the installation of the facility and its
6
ATTACHMENT B
in
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accessory uses shall be created that are steeper than 2:1 unless retaining walls, revetments, or other
stabilization measures acceptable to the county engineer are employed.
18. Ground equipment shelter;fencing. Any run equipment cabinet shelter not located within an
existing building shall be fenced only with the approval of the agent upon finding that the fence: (i)
would protect the facility from trespass in areas of high volumes of vehicular or pedestrian traffic
or, in the rural areas,to protect the facility from livestock or wildlife; (ii)would not be detrimental
to the character of the area;and(iii)would not be detrimental to the public health, safety or general
welfare.
d. Tier II facilities. Each Tier II facility may be established upon commission approval by the agent of an
application satisfying the requirements of subsection 5.1.40(a) : : - - . • _ . - • •
application within the time periods established in section 32.1.2.6. The commission shall approve each
application, without conditions, once it determines tha : . -- - .• - - . - • • •
. ..
• . . . • . . . .. - . • . .• _ -- . and demonstrating that the facility will be
inst.11-d and o.-rated in compliance with all a..li able .r•visi•n of hi ha.t_r and s.tis in the
following:
1. Compliance with subsections 5.1.40(b) and 5.1.40(c). The facility shall comply with the applicable
requirements of subsection 5.1.40(b)and with the requirements of subsections 5.1.40(c)(2)through
(98).
2. Screening and siting to minimize visibility. The site shall provide adequate opportunities for
screening and the facility shall be sited to minimize its visibility from adjacent parcels and streets,
regardless of their distance from the facility. If the facility would be visible from a state scenic river
. . •--. . - . • - , _ . - -- •- •- • _ ' .. . - • •- - .,tThefacility
also shall be sited to minimize its visibility from such river, park or forest any state scenic river,
national park or national fore t regardless of whether the site is adjacent to the river,park or forest.
If the facility would be located on lands subject to a conservation easement or an open space
easement, or adjacent to a conservation easement or open space easement,the facility shall be sited
so that it is not visible from any resources specifically identified for protection in the deed of
easement.
3. Open space plan resources. The facility shall not adversely impact resources identified in the
county's open space plan.
4. Horizontal separation of multiple facilities. The facility shall not be located so that it and three(3)
or more existing or approved personal wireless service facilities would be within an area comprised
of a circle centered anywhere on the ground having a radius of two hundred(200) feet.
5. Diameter of monopole. The maximum base diameter of the monopole shall be thirty(30) inches
and the maximum diameter at the top of the monopole shall be eighteen (18) inches.
6. Height of monopole. The top of the monopole, measured in elevation above mean sea level, shall
not - - •- - . .. . : . -- • •• . . -- . .. . -- -- _ - be more than
seven(7)feet taller than the tallest tree within twenty-five(25) feet of the monopole, and shall
include any base, foundation or grading that raises the monopole above the pre-existing natural
ground elevation; provided that the board of supervisors may approve a special exception allowing
7
ATTACHMENT B(1
Draft: 03/27/13
the height of the monopole may to be up to ten(10)feet taller than the
tallest tree if the owner of the facility demonstrates to the satisfaction of the commission board that
there is not a material difference in the visibility of the monopole at the proposed height, rather than
at a height seven(7) feet taller than the tallest tree; and there is not a material difference in adverse
impacts to resources identified in the county's open space plan caused by the monopole at the
proposed height, rather than at a height seven(7)feet taller than the tallest tree. may
subsection 5.1.40(d)(12).
7. Color of monopole, antennas and equipment. Each weed monopole shall be a dark brown natural or
painted wood color; - - . -. - - - . -•- - •- -• - -• • - - • --. -- - • that
blends into the surrounding trees. The antennas, supporting brackets,and all other equipment
attached to the monopole shall be a color that closely matches that of the monopole.The ground
equipment,the ground equipment cabinet shelter, and the concrete pad shall also be a color that
closely matches that of the monopole, provided that the ground equipment and the concrete pad
need not be-ef-sueh-a closely match the color of the monopole if they are enclosed within a ground
equipment shelter or within or behind an approved structure, facade or fencing that: (i) is a color
that closely matches that of the monopole; (ii)is consistent with the character of the area; and (iii)
makes the ground equipment,ground equipment shelter,and the concrete pad invisible at any time
of year from any other parcel or a public or private street.
8. Placement of cables, wiring and similar attachments. Each wood or concrete monopole shall be
constructed so that all cables,wiring and similar attachments that run vertically from the ground
equipment to the antennas are placed on the monopole to face the interior of the property site and
away from public view,as determined by the agent. Metal monopoles shall be constructed so that
vertical cables,wiring and similar attachments are contained within the monopole's structure.
9. B dein._•ermit •!. • •t•o • 't •n• •r _ t ! •. • on.•• • ••• : : r•v• 'e • • The
following shall be submitted with the building permit application: (i)certification by a registered
surveyor stating the height of the reference tree that is used to determine the permissible height of
the monopole; and(ii)a final revised set of plans for the construction of the facility. The agent shall
review the surveyor's certificate and the plans to assure ensure that all applicable requirements have
been satisfied.
10. • • • •• • • e 10 'si e i tin. c•rt• r • i. . . •,• • Ile 'htnin• rod hei• The
following shall be submitted to the agent after installation of the monopole is completed and prior
to issuance of a certificate of occupancy: (i)certification by a registered surveyor stating the height
of the monopole,measured both in feet above ground level and in elevation above mean sea level,
using the benchmarks or reference datum identified in the application; and(ii)certification stating
that the lightning rod's height does not exceed two(2)feet above the top of the monopole and
width does not exceed a diameter of one(1) inch.
11. Notice. Notice of the commission's agent's consideration of an application for a Tier II facility shall
be sent by the agent to the owner of each let parcel abutting the let parcel on which the proposed
facility will be located. The notice shall describe the nature of the facility, its proposed location on
the lot, its proposed height,and the appropriate county office where the complete Tier II facility
application may be viewed, . •- .. =, • - . . --. •- - - - -- . ••• -• .-
applieatiork The notice shall be mailed by first class mail or hand delivered at least ten(10)days
pries-te before the agent acts on the application. Mailed notice shall be mailed
to the last known address of the owner, and mailing the notice to the address shown on the current
real estate tax assessment records of the county shall be deemed compliance with this requirement.
8
ATTACHMENT B i�
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The failure of an owner to receive the notice as provided herein shall not affect the validity of an
approve]Tier II facility and shall not be the basis for an appeal.
12. Disapproval of application; appeal. If the agent disapproves an application, he shall identify which
requirements were not satisfied and inform the applicant what needs to be done to satisfy each
requirement. The applicant may appeal the disapproval of an application to the board of
supervisors. The board of supervisors may consider an application for a Tier II facility only upon an
appeal of the denial of the application by the commission. An appeal shall be submitted in writing
and be received in the office of the agent clerk of the board of supervisors within ten (10)calendar
days after the date of the denial disapproval by the commission agent. In considering an appeal,the
board may affirm, reverse, or modify in whole or in part,the decision of the commission agent, and
its decision shall be based upon the requirements delineated in this subsection(d).
13. Agent approval of increase in height of monopole based on increase in height of reference free.
Upon the written request of the applicant,the agent may authorize the height of an existing Tier II
facility's monopole to be increased above its originally approved height upon finding that the
reference tree has grown to a height that is relative to the requested increase in height of the
monopole. The application shall include a certified survey of the reference tree's new height, as
well as the heights of other trees to be considered by the agent. The agent shall not grant such a
request if the increase in height would cause the facility to be skylighted or would increase the
extent to which it is skylighted.
e. Tier III facilities. Each Tier III facility may be established upon approval of a special use permit issued
.. •. - - . . - by the board of supervisors, initiated upon an application
satisfying the requirements of subsection 5.1.40(a) and section 31.2.1 33.4, and it shall be installed and
operated in compliance with all applicable provisions of this chapter and the following:
1. The facility shall comply with the applicable requirements of subsections 5.1.40(b),the
requirements of subsections 5.1.40(c)(2)through (98), and the requirements of subsections
5.1.40(d)(2), (3)and(7), unless modified by the board of supervisors during special use permit
review.
2. The facility shall comply with all conditions of approval of the special use permit.
f. Collocation re.1• 'rent or removal.Any collocation-replacement or removal of antennas or equipment
is subject to the following:
1. Collocation or replacement that would not substantially change the physical dimensions of a
• i i •proved as a Tier II or III a ion r -i st . he a'ent of.n ...lication ati in'
the requirements of subsections 5 1 40(x)(1) (31 (4)and (7), any collocation or replacement that
would not substantially change the physical dimensions of an existing facility approved as a Tier I,
II or III facility shall be approved by the agent. The agent shall approve the application regardless
of whether the proposed antennas or equipment are different from those shown on,or were not
shown on,the previously approved application under subsection 5.1.40(a)(4)(c)or any condition
imposed in con'unction with . •eci.1 se .ermi for a Ti-r III f, ili .
2. Collocation or replacement that would substantially change the physical dimensions of a facility
approved as a Tier I, II or Ill facility. Any collocation or replacement that would substantially
change the physical dimensions of an existing facility approved as a Tier I, II or III facility shall
be reviewed and acted upon as a Tier I, II or III facility, as applicable,
9
ATTACHMENT B
Draft: 03/27/13
3 Collocation or replacement that would not substantially change the physical dimensions of a
facility approved by special use permit prior to October 13, 2004 or a facility that is a
nonconforming structure.Upon receipt by the agent of an application satisfying the requirements of
subsections 5.1.40(a)(1), (3), (4)and(7), any collocation or replacement that would not
substantially change the physical dimensions of an existing facility approved by special use permit
prior to October 13, 2004 or that is a nonconforming structure shall be approved by t, he agent The
..-nt shall . ..r• - h- . ..li . ion r- ..r•l- •. . i- h-r h- fro,es-. .n - . • -• i.ment .r-
different from those shown on any plans approved or condition imposed in conjunction with a
special use permit.
4. Collocation or replacement that would substantially change the physical dimensions of a facility
approved by special use permit prior to October 13, 2004 or a facility that is a nonconforming
structure. Any collocation or replacement that would substantially change the physical
dimensions of an existing facility approved by special use permit prior to October 13,2004 or
th. i , •.nc.nformin•_ stru t re 1, 1 •- t • r-v.- -. ,n. act-d son • i-r I II or III
facility, as provided in subsection 5.1.40(g)(2).
5. Removal of antennas or equipment on any Tier I, II or III facility, any facility approved by special
use permit prior to October 13, 2004 or any facility that is a nonconforming structure. Any
antennas or equipment on any existing Tier I, II or III facility, any existing facility approved by
special use .ermit •rior to October 13 2004 or that is a nonconforming structure ma be removed
as a matter of right and regardless of any special use permit condition providing otherwise.
6. Meaning of"collocation or replacement that would not substantially change the physical
dimensions of an existing facility. "A collocation or replacement that would not substantially
change the physical dimensions of an existing facility is any change to the physical dimensions of
an existing facility that is not within either an avoidance area or an entrance corridor overlay district
(section 30.6), and not within five hundred(500)feet of a dwelling unit located on a parcel under
different ownership than the parcel on which the facility is located,that would: (i)add one or more
antennas to the facility provided that the requirements of subsections 5.1,40(c)(1),(2), (3),(6)and
(8)are satisfied: (ii)replace an existing monopole or tower with a monopole or tower of an equal or
lesser height,provided that the requirements of subsection 5.1.40(d)(1),(5),(7), (8)and(10)are
satisfied; (iii)replace an existing treetop facility with a monopole that is not more than ten(10)feet
taller than the reference tree,provided that the requirements of subsection 5.1.40(d) (1), (5), (7), (8)
and(10)are satisfied: (iv) strengthen an existing monopole or tower without the use of guy wires,
provided that the requirements of subsection 5.1.40(d)(5),(7)and(8)are satisfied; or(v)expand
the lease area or add ground equipment either within or outside of a ground equipment shelter,
provides!that the expanded lease area does not exceed twice the square footage of the original lease
area, and further .rovide. h, h- r-. .ir-men of . . - ion 1.40 c .n• .1.4• d 2 4
(5), (8)and(9)are satisfied. Any change to the access to the facility that results in the removal of
any tree shall be deemed to be a substantial change to the physical dimensions of an existing
facility. :
g. Administration of special use permits for facilities approved prior to October 13, 2004. The following
applies to the administration of any special use permit for an existing facility approved prior to October 13,
2004:
1. Conditions. If any condition of the special use permit is more restrictive than a corresponding
standard in subsection 5.1.400 or the cones op nding standard in subsection 5.1.40(c)or(d)
shall apply If any condition of the special use permit is less restrictive than a corr esponding
10
ATTACHMENT B ,
Draft: 03/27/13
standard in subsection 5.1.40(c)or(d)and the applicant establishes that vested rights have attached
to the approved facility,the special use permit conditions shall apply.
2. Change to a facility that would substantially change the physical dimensions of a facility approved
by special use permit prior to October 13, 2004. Any proposed change to a facility that would
substantially change the physical dimensions of the facility approved by special use permit prior to
October 13, 2004 under subsection 5.1.40(0(4) shall be subject to the procedures and standards for
a Tier II facility if the facility would qualify as a Tier II facility, or a Tier III facility if the facility
would not qualify as a Tier II facility,
3. Effect of changes. Any change to a facility by collocation or replacement under subsection
5.1.40(0(3) shall not reclassify the facility as a Tier I, II or III facility. Any change to a facility by
collocation or replacement under subsection 5.1.40(8)(2) shall reclassify the facility as a Tier 11 or
Tier III facility, as applicable. If the facility is approved as a Tier II facility, the prior special use
permit conditions shall have no further force or effect.
h. Time for action. Each action on an application for a Tier I, II or III facility shall be taken within the
following periods:
1. Applications for Tier I and Tier II facilities and applications for existing Tier III facilities that
would not substantially increase the size of an existing tower or monopole.Any application for a
Tier I or Tier II facility, and any application for an existing Tier III facility that would not
substantially increase the size of the existing monopole or tower, shall be approved or
disapproved within ninety(90)days,as calculated under subsection 5.1.40(h)(3).
2. Applications for new Tier III facilities and applications for existing Tier III facilities that would
substantially increase the size of an existing monopole or tower. Any application for a Tier III
facility. and .nv application for an existing Tier III facility that would substantially increa - the
size of an existing monopole or tower, shall be approved or disapproved within one hundred fifty
(150)days, as calculated under subsection 5.1.40(h)(3).
3. Calculating the time for action. The time for action on an application shall be calculated as
follows:
(a) Commencement. The time for action under subsection 5.1,40(h)(1)or(h)(2) shall begin
on the date the application is received in the department of community development.
(b) Determination of completeness. Within thirty(30)days after the application is received,
the department of community development shall determine whether the application
includes all of the applicable information required under subsections 5.1.40(a)through
(e). If any required information was not provided,the department shall inform the
applicant within the thirty(30) day period about which information must be submitted in
order for the application to be determined to be complete.
(c) Tolling. The running of the time for action under subsection 5.1.40(h)(1)or(h)(2)shall
be tolled between the date that the department informs the applicant that its application is
incomplete under subsection 5.1,40(h)(3)(b)and the date on which the department
receives all of the required information from the applicant.
11
ATTACHMENT B
Ic;
Draft: 03/27/13
(d) ..Extension of running of time for action. The time by which action must be taken under
subsection 5.1.40(h)(1)or(h)(2)may be extended upon request by, or with the consent
of,the applicant.
4. Effect of failure to approve or disapprove within time for action. The failure to approve or
disapprove an application within the time for action shall not be deemed to be approval of the
application but, instead, shall only create a rebuttable rp esumption that the failure to timely act
was not reasonable under 47 U.S.C. § 332(c)(7)(B)(ii).
5. Meaning of"substantially increase the size of a monopole or tower". The phrase"substantially
increase the size of a monopole or tower"means: (i)the mounting of the proposed antenna would
increase the height of the monopole or tower by more than ten(10)percent, or by the height of one
additional antenna array with separation from the nearest existing antenna not to exceed twenty(20)
feet,whichever is greater, except that the mounting of the proposed antenna may exceed the size
limits set forth herein if necessary to avoid interference with existing antennas; (ii)the mounting of
the proposed antenna would include installing more than the standard number of new equipment
cabinets for the technology involved, not to exceed four(4), or more than one new ground
equipment shelter; (iii)the mounting of the proposed antenna would involve adding an
appurtenance to the body of the monopole or tower that would protrude from the edge of the
monopole or tower more than twenty(20)feet, or more than the width of the monopole or tower
structure at the level of the appurtenance, whichever is greater, except that the mounting of the
proposed antenna may exceed the size limits set forth herein if necessary to shelter the antenna
from inclement weather or to connect the antenna to the monopole or tower by cable; or(iv)the
mounting of the proposed antenna would involve excavation outside the current boundaries of the
leased or owned property surrounding the monopole or tower and any access or utility easements
currently related to the site.
(§ 5.1.40, Ord. 01-18(9), 10-17-01; Ord. 04-18(2), 10-13-04)
I, Ella W. Jordan,do her...°by certify that the foregoing writing is a true, correct copy of an Ordinance duly adopted
by the Board of Supervisors of Albemarle County,Virginia, by a vote of to , as recorded below,at a
regular meeting held on
Clerk, Board of County Supervisors
Ave Nay
Mr. Boyd
Mr. Dumler
Ms. Mallek
Mr. Rooker
Mr. Snow
Mr. Thomas
12
ATTACHMENT B
1(f)
FCC Programmatic Agreement Definition of "Substantial increase in the
size of the tower"
"Substantial increase in the size of the tower" means:
1) The mounting of the proposed antenna on the tower would increase the existing height of the tower
by more than 10%,or by the height of one additional antenna array with separation from the nearest
existing antenna not to exceed twenty feet,whichever is greater, except that the mounting of the
proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid
interference with existing antennas;or
2) The mounting of the proposed antenna would involve the installation of more than the standard
number of new equipment cabinets for the technology involved, not to exceed four, or more than one
new equipment shelter; or
3) The mounting of the proposed antenna would involve adding an appurtenance to the body of the
tower that would protrude from the edge of the tower more than twenty feet, or more than the width
of the tower structure at the level of the appurtenance,whichever is greater, except that the mounting
of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter
the antenna from inclement weather or to connect the antenna to the tower via cable; or
4) The mounting of the proposed antenna would involve excavation outside the current tower site,
defined as the current boundaries of the leased or owned property surrounding the tower and any
access or utility easements currently related to the site.
Attachment C
c *:; PUBLIC NOTICE
Federal Communications Commission News Media Information 202/418-0500
445 12th St., S.W. Internet:http://www.fcc.gov
Washington, D.C. 20554 TTY: 1-888-835-5322
WIRELESS TELECOMMUNICATIONS BUREAU OFFERS GUIDANCE ON
INTERPRETATION OF SECTION 6409(a)OF THE MIDDLE CLASS TAX RELIEF AND
JOB CREATION ACT OF 2012
DA 12-2047
January 25,2013
On February 22,2012,the Middle Class Tax Relief and Job Creation Act of 2012(Tax Act)' became law.
Section 6409(a)of the Tax Act provides that a state or local government"may not deny,and shall
approve"any request for collocation,removal,or replacement of transmission equipment on an existing
wireless tower or base station,provided this action does not substantially change the physical dimensions
of the tower or base station.2 The full text of Section 6409(a)is reproduced in the Appendix to this Public
Notice.
To date,the Commission has not received any formal petition to interpret or apply the provisions of
Section 6409(a). We also are unaware of any judicial precedent interpreting or applying its terms. The
Wireless Telecommunications Bureau has,however,received informal inquiries from service providers,
facilities owners,and state and local governments seeking guidance as to how Section 6409(a)should be
applied. In order to assist interested parties,this Public Notice summarizes the Bureau's understanding of
Section 6409(a)in response to several of the most frequently asked questions.3
What does it mean to"substantially change the physical dimensions"of a tower or base station?
Section 6409(a)does not define what constitutes a"substantial[] change"in the dimensions of a tower or
base station. In a similar context,under the Nationwide Collocation Agreement with the Advisory
Council on Historic Preservation and the National Conference of State Historic Preservation Officers,the
Commission has applied a four-prong test to determine whether a collocation will effect a"substantial
increase in the size of[a]tower."4 A proposed collocation that does not involve a substantial increase in
Middle Class Tax Relief and Job Creation Act of 2012,Pub.L. 112-96,H.R.3630, 126 Stat. 156(enacted Feb.22,
2012)(Tax Act).
2 Id.,§6409(a).
3 Although we offer this interpretive guidance to assist parties in understanding their obligations under Section
6409(c),see, e.g., Truckers United for Safety v.Federal Highway Administration, 139 F.3d 934(D.C.Cir. 1998),the
Commission remains free to exercise its discretion to interpret Section 6409(a)either by exercising its rulemaking
authority or through adjudication. With two exceptions not relevant here,the Tax Act expressly grants the
Commission authority to"implement and enforce"this and other provisions of Title VI of that Act"as if this title is
a part of the Communications Act of 1934(47 U.S.C. 151 et seq.)." Tax Act§6003.
' 47 C.F.R.Part 1,App.B,Nationwide Programmatic Agreement for the Collocation of Wireless Antennas, § 1.0
(Nationwide Collocation Agreement).
ATTACHMENT D
/C2
size is ordinarily excluded from the Commission's required historic preservation review under Section
106 of the National Historic Preservation Act(NHPA).5 The Commission later adopted the same
definition in the 2009 Declaratory Ruling to determine whether an application will be treated as a
collocation when applying Section 332(c)(7)of the Communications Act of 1934.6 The Commission has
also applied a similar definition to determine whether a modification of an existing registered tower
requires public notice for purposes of environmental review.'
Under Section I.0 of the Nationwide Collocation Agreement,a"substantial increase in the size of the
tower"occurs if:
1) [t]he mounting of the proposed antenna on the tower would increase the existing height of
the tower by more than 10%,or by the height of one additional antenna array with separation
from the nearest existing antenna not to exceed twenty feet,whichever is greater, except that
the mounting of the proposed antenna may exceed the size limits set forth in this paragraph
if necessary to avoid interference with existing antennas;or
2) [t]he mounting of the proposed antenna would involve the installation of more than the
standard number of new equipment cabinets for the technology involved,not to exceed four,
or more than one new equipment shelter;or
3) [t]he mounting of the proposed antenna would involve adding an appurtenance to the
body of the tower that would protrude from the edge of the tower more than twenty feet, or
more than the width of the tower structure at the level of the appurtenance, whichever is
greater, except that the mounting of the proposed antenna may exceed the size limits set
forth in this paragraph if necessary to shelter the antenna from inclement weather or to
connect the antenna to the tower via cable;or
4) [t]he mounting of the proposed antenna would involve excavation outside the current
tower site,defined as the current boundaries of the leased or owned property surrounding the
tower and any access or utility easements currently related to the site.
Although Congress did not adopt the Commission's terminology of"substantial increase in size"in
Section 6409(a),we believe that the policy reasons for excluding from Section 6409(a)collocations that
substantially change the physical dimensions of a structure are closely analogous to those that animated
the Commission in the Nationwide Collocation Agreement and subsequent proceedings. In light of the
Commission's prior findings,the Bureau believes it is appropriate to look to the existing definition of
"substantial increase in size"to determine whether the collocation,removal,or replacement of equipment
5 See 16 U.S.C. §470f,see also 47 C.F.R.§ 1.1307(a)(4) (requiring applicants to determine whether proposed
facilities may affect properties that are listed,or are eligible for listing,in the National Register of Historic Places).
6 See Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B)to Ensure Timely Siting Review
and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as
Requiring a Variance,WT Docket No.08-165,Declaratory Ruling,24 FCC Rcd. 13994, 14012,para.46&n.146
(2009)(2009 Declaratory Ruling),recon. denied, 25 FCC Rcd. 11157(2010),pet.for review denied sub nom. City
of Arlington, Texas v.FCC,668 F.3d 229(5th Cir.),cert.granted, 113 S.Ct.524(2012);47 U.S.C. §332(c)(7).
' See 47 C.F.R. § 17.4(c)(1)(B);National Environmental Policy Act Compliance for Proposed Tower Registrations,
WT Docket No.08-61,Order on Remand,26 FCC Rcd. 16700, 16720-21,para. 53 (2011).
2
ATTACHMENT D
s
on a wireless tower or base station substantially changes the physical dimensions of the underlying
structure within the meaning of Section 6409(a).
What is a"wireless tower or base station"?
A"tower"is defined in the Nationwide Collocation Agreement as"any structure built for the sole or
primary purpose of supporting FCC-licensed antennas and their associated facilities."8 The Commission
has described a"base station"as consisting of"radio transceivers,antennas,coaxial cable,a regular and
backup power supply,and other associated electronics.s9 Section 6409(a)applies to the collocation,
removal,or replacement of equipment on a wireless tower or base station. In this context,we believe it is
reasonable to interpret a"base station"to include a structure that currently supports or houses an antenna,
transceiver,or other associated equipment that constitutes part of a base station.(° Moreover,given the
absence of any limiting statutory language,we believe a"base station"encompasses such equipment in
any technological configuration,including distributed antenna systems and small cells.
Section 6409(a)by its terms applies to any"wireless"tower or base station. By contrast,the scope of
Section 332(c)(7)extends only to facilities used for"personal wireless services"as defined in that
section." Given Congress's decision not to use the pre-existing definition from another statutory
provision relating to wireless siting,we believe the scope of a"wireless"tower or base station under
Section 6409(a)is not intended to be limited to facilities that support"personal wireless services"under
Section 332(c)(7).
May a state or local government require an application for an action covered under Section
6409(a)?
Section 6409(a)states that a state or local government"may not deny,and shall approve,any eligible
facilities request...." It does not say that a state or local government may not require an application to be
filed. The provision that a state or local government must approve and may not deny a request to take a
covered action,in the Bureau's view,implies that the relevant government entity may require the filing of
an application for administrative approval.
s See Nationwide Collocation Agreement, § I.B.
9 See Implementation of Section 6002(b)of the Omnibus Budget Reconciliation Act of 1993,WT Docket No. 10-
133,Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless,Including
Commercial Mobile Services,Fifteenth Report, 26 FCC Rcd.9664,9481,para. 308(2011).
10 See also 47 C.F.R.Part 1,App.C,Nationwide Programmatic Agreement Regarding the Section 106 National
Historic Preservation Act Review Process,§II.A.14(defining"tower"to include"the on-site fencing,equipment,
switches,wiring,cabling,power sources,shelters,or cabinets associated with that Tower but not installed as part of
an Antenna as defined herein").
" 47 U.S.C. § 332(c)(7)(A). "Personal wireless services"is in turn defined to mean"commercial mobile services,
unlicensed wireless services,and common carrier wireless exchange access services." Id. § 332(c)(7)(C)(1).
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Is there a time limit within which an application must be approved?
Section 6409(a)does not specify any period of time for approving an application. However,the statute
clearly contemplates an administrative process that invariably ends in approval of a covered application.
We believe the time period for processing these applications should be commensurate with the nature of
the review.
In the 2009 Declaratory Ruling,the Commission found that 90 days is a presumptively reasonable period
of time to process collocation applications.12 In light of the requirement of Section 6409(a)that the
reviewing authority"may not deny,and shall approve"a covered request,we believe that 90 days should
be the maximum presumptively reasonable period of time for reviewing such applications,whether for
"personal wireless services"or other wireless facilities.
Wireless Telecommunications Bureau contact: Maria Kirby at(202)418-1476 or by email:
Maria.Kirby @fcc.gov.
-FCC-
For more news and information about the Federal Communications Commission
please visit: www.fcc.gov
12 See 2009 Declaratory Ruling,24 FCC Rcd.at 14012-13,paras.46-47.
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APPENDIX
SEC.6409.WIRELESS FACILITIES DEPLOYMENT.
(a)FACILITY MODIFICATIONS.
(1)IN GENERAL.Notwithstanding section 704 of the Telecommunications Act of 1996(Public Law
104-104)or any other provision of law,a State or 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.
(2)ELIGIBLE FACILITIES REQUEST. For purposes of this subsection,the term "eligible facilities
request" means any request for modification of an existing wireless tower or base station that involves—
(A)collocation of new transmission equipment;
(B)removal of transmission equipment;or
(C)replacement of transmission equipment.
(3)APPLICABILITY OF ENVIRONMENTAL LAWS.Nothing in paragraph(1)shall be construed to
relieve the Commission from the requirements of the National Historic Preservation Act or the National
Environmental Policy Act of 1969.
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