Towers: Be prepared is a good motto to follow
(from Maine Townsman, July 1998)
by Jo Josephson
There were already three telecommunication towers in Arundel (pop. 2,783) and applications for two more were waiting in the wings, when Town Meeting adopted a six-month moratorium to amend the towns zoning ordinance so that it adequately addressed issues specific to such towers. Under its existing zoning ordinance, 27 items had to be addressed in order to issue a conditional use permit, but only two were specific to towers.
There werent any telecommunication towers in Bridgton (pop. 4,213) and none were waiting in the wings, but a controversial tower had been built "next door" in Denmark, when Bridgtons code enforcement officer started calling around to get copies of existing ordinances in order to "cut and paste" one that would be suitable for a town like Bridgton that had no zoning ordinance, save for mandated shoreland zoning.
Telecommunication towers, a.k.a. cellular towers/a.k.a. wireless towers. It is estimated that nationally there will be 100,000 of them on the horizon by the year 2000 (it is expected there will be 100 million cellular users by the year 2000). Under federal law, you cant ban them but you can "reasonably" regulate them.
It is better to regulate them before someone proposes building one in your backyard, say those who didnt. And if you think that just because you arent on a major highway you are not susceptible to the growing trend in wireless communication, think again neither was Denmark (pop. 890). Denmarks attraction was a tall (Pleasant) mountain. It now exhibits what most view as an avoidable access "scar" that can been seen for miles around. The town had no authority to prevent it under its existing land use rules. So it is not surprising to read these days that the town has put a moratorium on new applications while it drafts an ordinance with teeth to address future applications.
Ordinances. Moratoriums in order to write them. As the State Planning Office (SPO) points out, the reason for most wireless tower ordinances is because of a towers so-called "visual impact" on a communitys "scenic resources" (see sidebar). The SPO also points out that given the technology involved, visual impacts from towers are unavoidable because such structures must be of a certain height and be in certain locations to do what they have to do. And last but not least, the SPO points out that if your comprehensive plan does not identify your towns scenic resources, then the town should adopt visual impact regulations to protect them.
That said, this article begins with a look at what Section 704 of the Telecommunications Act of 1996 says about local control of the towers. It then offers some tips from the Maine State Planning Office about what to consider when you write your ordinance, especially when it comes to standards of height and location. The article concludes by looking at how ordinances recently adopted in Arundel and Bridgton deal with the issues of height and location along with some bits of seasoned advice from their officials.
LIMITS OF LOCAL CONTROL
While local governments still have control over the wireless towers, as a result of a long and hard fought battle in Washington in recent years, they do not have unlimited control. Under the Telecommunications Act of 1996, there are four basic limitations; some are substantive, some are procedural:
Municipalities cannot prohibit or act in a way that has the effect of prohibiting personal wireless communication services. Which is another way of saying, they cannot prohibit the towers. Although it appears that municipalities can issue a moratorium (or as some prefer to call it, a "finite pause") in order to develop or amend their comprehensive plans and/or tower siting regulations. Under Maine law (30-A M.R.S.A. Section 4356), a moratorium "must be needed" because of the inadequacy of existing comprehensive plans, and/or ordinances to prevent serious public harm from development. And it must be of a definite term of not more than 180 days. Although a zoning moratorium generally may be extended for an additional 180 days, if reasonable progress is being made, a moratorium on towers should be as brief as possible.
Municipalities cannot deny a permit based on the health effects of the radio frequency emissions unless they do not meet the requirements set by the Federal Communications Commission. (FCC). As town officials are not experts in this field, they might wish to seek the advice of those who are during the application process. Or, they might wish to simply avoid the issue as being irrelevant to the local review process.
Municipalities cannot "unreasonably" discriminate among providers of the service. However, that does not mean they cannot treat providers differently. For example, a provider agreeing to "co-locate" on an existing tower might face an abbreviated permitting process, while one seeking to establish a new tower could face a more lengthy process. It also does not mean that municipalities cannot give preference to an applicant that wishes to build a tower in a zoning district that is better suited to the use over an applicant who wishes to build a tower in another, less suitable zoning district. In such an instance, a town might make the tower a permitted use in commercial and industrial zones and a conditional use (with greater scrutiny) in residential zones.
Municipalities must act within a "reasonable" time period on requests for permission to construct wireless telecommunication facilities. Federal law also requires that the reasons for denying a request must be supported by substantial evidence and must be put in writing. Maines Freedom of Access, or "Right-To-Know", law also requires that a denial of a permit application be in writing and contain findings of fact and the reasons for the decision. The SPO recommends that approval by the code enforcement officer be given within 30 days of receiving a completed application, while planning board approval be given within 90 days of receiving the completed application or within 30 days of the public hearing. As implied above, if the reasons for denial are based on undue adverse impact upon certain areas or visual resources, the town should be sure the area or visual resources are "protected" in the towns comprehensive plan.
HEIGHT & LOCATION: TWO AREAS OF LOCAL CONTROL
As indicated above, while you cannot ban the facilities, you can, within reason, using the powers of home rule, set many standards for the towers. While standards related to process (application) and to content (safety and appearance and abandonment) are pretty cut and dried, standards related to the location and height of the towers are unique to each community. And because they are unique there can be no "cookie cutter" approach to setting them.
Nevertheless, the SPO offers the following tips on height and location, stressing the fact that like a large umbrella, the higher the tower, the larger the sphere of coverage; the shorter the tower the more numerous the facilities.
If a community wants only the minimum intrusion, then one tall, well-placed tower with plenty of co-location options may be the best route. If there are not suitable co-location opportunities, then there will be more towers.
If a community wants to require co-location, then leeway must be left either for building a larger tower first, with a condition that other providers will be able to expand on that tower as a co-locator, with minimal additional administrative process. It goes without saying, in order for co-location to work, it must be the easiest path, with the least resistance to the carrier. There must be incentives.
The average free-standing tower is 150-180 feet tall. Limiting height to 195 feet eliminates the need in most cases for lighting and marking, as required by the Federal Communications Commission. The typical tower is 180-195 feet and the difference in height between the two could mean an additional opportunity for co-location.
A community may also wish to designate areas in town where facilities may be constructed. This is useful if the community wants to create "tower farms" in appropriate locations. A community may wish to set different height limits in different zoning districts. This can help direct or concentrate larger facilities to certain areas for consistency and compatibility with existing uses.
TWO APPROACHES TO LOCAL CONTROL
All of which is to say that despite the limitations of federal law, there still appears to be a lot of room left for cities and towns to set their own unique standards for siting towers. What follows are the standards, as set forth in the recently adopted ordinances of two towns in Maine, Bridgton and Arundel. Bridgton does not have town-wide zoning; Arundel, on the other hand, has had a zoning ordinance for at least 20 years, according to Town Planner Roger Cole.
When asked for one word that would describe Bridgtons stand-alone ordinance, Foye, whose background is in the cellular business, said it was "negotiable". By that, he explained it "was not a highly prohibitive ordinance" but rather an ordinance designed to promote negotiation with the industry; that it "opened the door" to discussion.
When the same question was asked of Arundels Cole, he described the recent amendments to the towns zoning ordinance as "creative" and "flexible". Cole said that by establishing overlay zones for the siting of towers, the zoning ordinance encouraged applicants to be creative in seeking the site most appropriate to their needs.
That said, here is how each of the two towns addressed the issues of location and height.
Both Bridgton and Arundel, in their desire to keep down the number of towers in town, prefer that applicants locate their antenna on existing towers or on so-called "alternative" structures such as silos and church steeples. The incentive for providers is that when they follow this route they are put on the fast track, requiring only a building permit from the code enforcement officer.
In both Bridgton and Arundel, an applicant seeking to build a new tower must first demonstrate to the planning board that it cannot provide adequate service utilizing existing towers or "alternative" structures before they can receive a permit to build a new tower. In other words, an applicant must demonstrate that the existing structure is in the wrong location or is not strong enough, tall enough, or otherwise is unacceptable before it can receive a permit to construct a new tower.
In both Bridgton and Arundel, those receiving permits to construct new towers must allow competitors to locate on them in the future and must provide space, at no charge, for use by the towns police, fire, ambulance, and public works departments.
Location & Height
Bridgton, which does not have town-wide zoning, allows towers to be located just about anywhere in town, save for wetlands and floodplains. In Bridgton new towers with one antenna cannot be higher than 150 feet. With each additional antenna, there is an allowance of 20 feet until the maximum 200 feet is reached. Those seeking new towers higher than 70 feet must apply to the towns planning board for a permit; those seeking to co-locate on existing towers or on alternative structures under 70 feet need only apply for a building permit through the towns code enforcement officer.
Arundels Cole explains that it would appear that its town-wide zoning would dictate limiting towers to a commercial or industrial zone. But in Arundels case it already had three towers in its residential zones before it began setting standards for siting future towers in town. Taking that fact into account and the desire not to create a "pin cushion" effect in its commercial zone, Arundels solution was to create what it calls "Telecommunication Facility Overlay Zones" (TFZ). There are three of them:
Zone I is anywhere in town where there are existing towers or alternative structures that can serve as towers. (There are already two towers in this zone) Those locating in this zone cannot increase the height of the existing structure by more than 20 feet and must provide proof that the structures load bearing capability is adequate. Permitting is through the code enforcement officer.
Zone II is the towns so-called "preferred" zone. It consists of 300 acres in a rural residential zone, 60 acres of which are town-owned. The zone is centrally located with access to Route 1 and I-95. (There was already a 180-foot tall cellular tower on town-owned land, with an access road to it before the amendments to the towns zoning ordinance were drafted.) Before constructing a new tower in this zone, the applicant must demonstrate to the planning board that all possible co-location options have been exhausted. New towers and extensions of existing towers shall not exceed a maximum of 190 feet and they shall be designed for a structural capacity of at least two or more additional co-locators.
Zone III is a strip of land that runs through the towns commercial zone; it is also currently the towns most undeveloped section along Route 1. Those seeking to construct a new tower in Zone III must also demonstrate that co-location is not possible. New towers without co-locators shall not exceed 90 feet; new towers with one co-locator shall not exceed 110 feet; and new towers with two co-locators shall not exceed 130 feet. All new towers shall be built to carry the load of at least two additional co-locators. According to Arundels Cole, this zone was created to give providers another option while protecting the strip from a so-called "pin cushion" effect.
Alternative Design Tower Structure: Artificial trees, clock towers, bell steeples, light poles, silos and similar alternative-design mounting structures that camouflage or conceal the presence of antennas or towers (see also Stealth Facility).
Antenna: A device for transmitting and/or receiving electromagnetic waves, which is attached to a tower or other structure.
Antenna Height: The vertical distance measured from the base of the antenna support structure at grade to the highest point of the structure.
Antenna Support Structure: Any pole, telescoping mast, tower tripod, or any other structure which supports a device used in the transmitting and/or receiving of electromagnetic waves.
Available Space: The space on a tower or structure to which antennas of a telecommunications provider are both structurally able and electromagnetically able to be attached.
Cellular Service: A telecommunications service that permits customers to use wireless, mobile telephones to connect via low-power radio transmission sites either to the public switched network or to other mobile cellular phones.
Co-location: Locating wireless communications equipment from more than one provider on a single site. Co-location minimizes the need for new tower construction in a municipality. When a new tower must be built, local government may require it to be constructed with enough capacity to allow future co-location.
FCC: Federal Communications Commission. The government agency responsible for regulating telecommunications in the United States.
FCC 97-303: A Report and Order which sets new national standards for exposure to radio frequency emissions from FCC-regulated transmitters.
Personal Communication Services (PCS): PCS, which is expected to be the primary driver of competition in the wireless market, operates at a higher frequency on the electromagnetic spectrum than traditional cellular services. PCS antennas have to be spaced closer together; this means that to deliver their services, PCS providers require more sites than traditional cellular providers.
Scenic Resources: Specific locations or corridors within the municipality, as identified in its adopted comprehensive plan or by state statute.
Scenic View: A scenic view is a wide angle or panoramic field of sight and may include natural and/or manmade structures or activities. A scenic view may be from a stationary viewpoint or be seen as one travels along a roadway, waterway, or path. A view may be to a far away object, such as a mountain, or a nearby object.
Stealth Facility: Any communications facility which is designed to blend into the surrounding environment. Examples of stealth facilities may include architecturally screened roof-mounted antennas, building mounted antennas painted to match the existing structure, antennas integrated into architectural elements, and antenna structures designed to look like light poles.
Telecommunications Provider: An entity licensed by the Federal Communications Commission to provide telecommunication services to individuals or institutions.
WIRELESS TELECOMMUNICATIONS FACILITY SITING ORDINANCE (sidebar)
As this article is being written, there is a "Wireless Telecommunications Facility Siting Ordinance" on the drawing board at the Maine State Planning Office. In the words of State Planner Erik Carson, it is "all but done". The product of a committee of industry and municipal representatives, the ordinance was created to establish a common language and clear process to be used by municipalities in the drafting of their individual telecommunication ordinances. It was also drafted with the goal of making co-location on existing facilities the preferred option. While most existing ordinances are useful in helping a town avoid reinventing the wheel, the states document is unique in that in addition to providing users with a common language and clear process, it also provides a running commentary with each section, providing a municipality with legal and technical background on the subject at hand. When the final draft is adopted, the document will be distributed to municipalities through their regional planning commissions or councils of government.
For more information, contact Erik Carson, Senior Planner, Maine State Planning Office, 287-8055.
SOME ADVICE & ADDITIONAL THOUGHTS (sidebar)
Dont ignore the issue; if you are behind the curve, it is gruesome. However, the industry will make every effort to work with you if you have an ordinance in place. If you dont have one you are at their mercy, says Bridgtons Foye. Arundels Coles spin on the need for an ordinance was summed up as follows: "Towers are not a planning issue; they are a protection issue; its like sludge, when it comes to your town, will you be ready for it?"
Both Foye and Cole sought out existing ordinances in the creation of their own ordinances. Foye says he doesnt believe in moratoriums to develop an ordinance. He found a good model (Kennebunks) and just "tweaked" it. Cole says that of the five months (one meeting a week) devoted to developing Arundels ordinance, two months were spent on the issues of height and location. Arundels planning board could have avoided the first three months of work on process, if they had had the states "narrated" ordinance to guide it. Cole stresses the fact that while "process" is a good candidate for a cookie cutter approach to crafting an ordinance, your ordinance needs to be carefully crafted to reflect the unique topography of your town.
Both Cole and Foye stress the importance of spelling out where your "concerns" are in your comprehensive plan. If you dont identify scenic resources in your comprehensive plan, you will have no grounds to deny an applicant who wants to impact those resources. Cole stresses the "subjectivity" of visual analyses. He suggests that providers be asked to demonstrate the visual impact of a tower "when the leaves have fallen".
Cole notes that visual impacts from towers do not recognize town boundaries. A tower built in your neighbors back yard could visually impact your backyard more than your neighbors. As such, he wonders whether neighboring towns shouldnt have legal standing in an application. He also wonders whether it wouldnt be better to approach the siting of towers as a regional issue, especially in built-up areas.