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HomeMy WebLinkAboutPCAgenda_96Oct21i• PLANNING COMMISSION AGENDA October 21, 1996 7 p.m. ROLL CALL: Tom Brace _ Wayne Groff _ Alex Hanschen _ Paul Kuettel _ Irene Struck _ Wendy Treadwell _ Betty Wilcox _ Sue Gehrz _ 1. CALL TO ORDER 2. APPROVAL OF MINUTES September 16, 1996 3. CITY COUNCIL MINUTES August 28, 1996 September 1 1, 1996 4. Public Hearing on a Request for a Conditional Use Permit for the Operation of a Secondhand Furniture Store at 1579A N. Hamline Avenue, Chpt 9-8.01 subd.3(d) • 5. Proposed Amendment to Cha ter 9 Part 2.07 of p the Zoning Code Related to Placement of Telecommunications antennas 6. ADJOURN MINUTES CITY OF FALCON HEIGH~fS REGULAR PLANNING COMMISSION MEETING • September 16, 1996 PRESENT Tom Brace, Chair Alex Hanschen Paul Kuettel Irene Struck Betty Wilcox ABSENT Wayne Groff Wendy Treadwell ALSO PRESENT Susan Hoyt,Administrator Sue Gehrz, Council Liaison Meeting was called to order 7:05 p.m. by Chair Brace. Minutes of the July 15, 1995 meeting were approved as published. REQUEST FOR A VARIANCE OF THREE FEET FROM THE REQUIRED FIVE FOOT SIDEYARD SETBACK FOR THE CONSTRUCTION OF A UTILITY SHED AT FALCON HEIGHTS UNITED CHURCH OF CHRIST, 1795 HOLTON STREET. CHAPTER 9-2.04 SUBD. 1(c) Administrator Hoyt explained that a variance was being requested to construct a shed in what is technically the sideyard of the church although it appears to be the rear yard because the zoning code defines the front yard as the yard with the address. Therefore, the sideyard setback must be 5 feet from the lot line. (The rear yard setback requirement is one • foot from the property line.) The only location available for a utility shed is to the rear of the building, this is the sideyard. Mr. Warren West, business manager, and Bob Olson represented the church. After discussing the request, Commissioner Kuettel moved and Commissioner Struck seconded the resolution approving a variance of three feet in the sideyard setback for the construction of a utility shed pending removal of the existing shed. Motion passed unanimously. REVIEW OF THE 1997 15 YEAR CAPITAL IMPROVEMENT PROGRAM Administrator Hoyt reviewed the high points of the capital improvement program for the commission with special attention to the reconstruction of Larpenteur Avenue, which was included in 1997, 1998 and 1999. The commissioners asked questions about various projects. UPDATE ON PLANNING ACTIVITIES Administrator Hoyt updated the commission on upcoming activities including the CUP application for a poolhall in Northome Shopping Center, the antenna moratorium and the comprehensive plan amendments. The meeting was adjourned at 8:05 p.m. • Respectfully submitted. Susan Hoyt CITY OF FALCON HEItSHTS REGULAR CITY COUNCIL MEETING MINUTES OF SEPTEMBER 11, 1996 2~ i • Mayor Gehrz convened the meeting at 7:03 p.m. PRESENT Gehrz, Gibson Talbot, Hustad, Jacobs, and Kuettel. Also present were Hoyt, Asleson, Maurer, and Sampson. COMMUNITY FORUM There was no one wishing to take advantage of the community forum. MINUTES OF AUGUST 28, 1996 Minutes were approved by unanimous consent. CONSENT AGENDA APPROVED Motion was made by Councilmember Hustad to approve the following consent agenda. Motion passed unanimously. • 1. Disbursements 2. Licenses 3. Approval of the use of the Kern, DeWenter, Viere auditing firm for the years ending December 31, 1996, 1997, and 1998. 4. Accept the voluntary resignation of Pete Klingenberg as Parks/Public Works Superintendent 5. Scheduling a council meeting for September 18, 1996 POLICY AGENDA RESOLUTION ORDERING A FEASIBILITY STUDY FOR THE RECONSTRUCTION OF " LINDIG STREET Engineer Maurer reported that the condition of Lindig Street makes it necessary to consider reconstruction next year; the road will not last another two years. The first step for the city council to begin the process is to order a feasibility report. Informational meetings with property owners would begin in mid to late October. The cost for the feasibility study would be between 53500 and 54000. Motion was made by Councilmember Jacobs to approve Resolution 96-10, ordering the preparation of a feasibility report on the Lindig Street improvement. Motion passed unanimously. City Council Minutes September 1 1, 1996 2 ~ J Page 2 CONSIDERATION OF REVISED FEE SCHEDULE Administrative Assistant/Planner Asleson reviewed proposed changes to the city's fee schedule. The major changes included were replacement of the fee schedule for mechanical permits, the adjustment of fees to more accurately reflect costs of providing service, and revision of the fee schedule format to make the schedule more "reader friendly." Motion was made by Councilmember Kuettel to approve the revised fee schedule. Motion passed unanimously. RESOLUTIONS TO AUTHORIZE TRANSFER OF CABLE FRANCHISE TO CONTINENTAL CABLE AND TO U.S. WEST Jerry Wallin, the city's representative to the Cable Commission, updated the council on the proposed transfer of the franchise first to Continental Cable and then to U.S. West after the two companies merge. After outlining the proposed transfer process, Wallin explained that the Cable Commission had examined the four legal criteria that have to be met in order for the transfer to take place. These criteria include: legal qualification, character qualification, technical ability, and other factors such as financial abilities and the company's willingness to abide by current franchise commitments. The Cable Commission has found that Continental and U.S. West have met these obligations. Motion was made by Councilmember Jacobs to approve Resolutions 96-13 and 96- 14authorizing the franchise transfers. Motion passed unanimously. CONSIDERATION OF DONATION REQUESTS The council discussed the items to be included in a letter to the Falcon Heights/Lauderdale Lions Club. The letter will contain proposed donations that the Lions could make to the city. Three of the items were related to the Park and Recreation program. The fourth, a small gazebo in the front of city hall, is still in the planning stages. The council directed staff to include all four items in a letter to the Lions. REVIEW OF THE 1997 GOALS OF THE CITY For the benefit of the viewing audience, the city council read their 1997 goals for the • city. These goals were adopted earlier as a part of the budget process. City Council Minutes September 1 1, 1996 Page 3 L~ CONSIDERATION OF RESOLUTION CERTIFYING THE PROPOSED GENERAL FUND BUDGET AND LEVY Administrator Hoyt explained that a resolution certifying the budget and the levy were necessary. The increase in the levy amount is necessary to offset corresponding increases in the cost of police service. Hoyt also reviewed the impacts of this levy increase on typical homes in Falcon Heights and explained some of the operating transfers made to the budget. Motion was made by Councilmember Hustad to approve Resolution 96-1 1, certifying the proposed general fund budget of 51,029,143 and certified levy of $577,309 to the county auditor. Motion passed unanimously. SETTING OF DATES FOR 1997 BUDGET PRESENTATION The council established Wednesday, December 4, 1996 at about 7:15 p.m. as the date for the city's public budget presentation and hearing. A continuation hearing, if necessary, will be held on Thursday, December 19, 1996. PARTICIPATION IN MINNESOTA CITIES WEEK The council discussed possible ideas for Minnesota Cities Week. In addition to the annual Fire Department Open House on October 12, the council suggested that Larpenteur Avenue plans and a copy of the proposed budget be available to the public. Also suggested was a letter to Falcon Heights Elementary School offering educational speakers throughout the year. CITY INFORMATION AND ANNOUNCEMENTS Councilmember Kuettel reported on a successful Simpson Street block party and thanked the police and the Lions for their assistance. Councilmember Jacobs reported that he, Mayor Gehrz, and Administrator Hoyt had met with the Fire Department regarding their concerns about city's contract with St. Paul Fire to provide ALS service. Jacobs reported that he had assured the department that the present city council does not intend to change how fire protection service is provided. Jacobs also reported that the department is somewhat concerned about their future existence and that the message delivered was that St. Paul Fire will be providing this service and that the departments need to begin a working partnership. i Councilmember Hustad responded that the council must make decisions in the best interest of the public for the least amount of cost. Hustad also reported on a successful Arona lawn party and a Northwest Youth Services fundraiser. 2~J City Council Minutes September 1 1, 1996 Page 4 2~~ Councilmember Gibson Talbot reported on a first-ever block party in her neighborhood, which included a live band. Mayor Gehrz reported on a successful State Fair and a League of Women Voters town meeting. Administrator Hoyt reported a 20% turnout at the recent state primary election. ADJOURNMENT The meeting adjourned at 8:33 p.m. Susan L. Gehrz, Mayor - C~aiQ~ Carla Asleson Recording Secretary • CITY OF FALCON HEIGHTS REGULAR CITY COUNCIL MEETING 2 ~ ~; MINUTES OF AUGUST 28, 1996 r: Mayor Gehrz convened the meeting at 7:00 p.m. PRESENT Gehrz, Hustad, and Jacobs. Also present were Hoyt and Asleson. Gibson Talbot, Kuettel (arrived after adjournment/during workshop) COMMUNITY FORUM There was no one wishing to take advantage of the community forum. MINUTES OF AUGUST 14, 1996 Minutes were approved by unanimous consent. CONSENT AGENDA APPROVED • Motion was made by Councilmember Hustad to approve the following consent agenda. Motion passed unanimously. 1. Disbursements 2. Approval of final memorandum of agreement with St. Paul 3. Authorization to purchase a personal computer for the Fire Department 4. Acceptance of proposal for services related to televising of Larpenteur Avenue sanitary sewers POLICY AGENDA There was no policy agenda for consideration. INFORMATION AND ANNOUNCEMENTS Councilmember Hustad reported on the progress of the Keeping Connected interest groups. Mayor Gehrz announced a League of Women Voters Town Meeting on September 19th to be held at Falcon Heights City Hall. Administrator Hoyt reported on State Fair and boulevard maintenance activities. Administrative Assistant/Planner Asleson reminded the viewing audience of the upcoming state primary election and the location of the two polling places. City Council Minutes August 28, 1996 Page 2 • ADJOURNMENT 2~~ The meeting adjourned at 7:09 p.m. The council then recessed into a workshop to discuss fundraising/contribution requests for 1997 and proposed changes to the city's fee schedule. i,' ~, Susan L. Gehrz, Mayor • Carla Asleson Recording Secretary • • Planning Commission Date: 10/21 /96 Item: 1 ITEM: A public hearing on a request for a conditional use permit for the operation of a secondhand furniture store at 1579A N. Hamline Avenue, Chapter 9-8.01 subd. 3 (d) SUBMITTED BY: Dirk Bordsen, Property Owner REVIEWED BY: Carla Asleson, Administrative Assistant/Planner EXPLANATION/DESCRIPTION: Conditional Use Permit • The purpose of permitting conditional uses is to allow those uses which are not genreally suitable within a zoning district, but which may be suitable under specific circumstances. A conditional use permit allows the city to establish reasonable conditions to make such a use compatible in a particular zoning district. • The planning commission must recommend approval of a conditional use permit unless the commission can demonstrate that the property owner cannot satisfy all reasonable conditions governing the proposed use. • A conditional use permit is issued to a property owner and goes with a property address, not with a particular business or tenant. Proposal Mr. Bordsen is requesting a conditional use permit to operate a secondhand furniture store at his shopping center located at the corner of Hoyt and Hamline Avenues. His initial tenant would be Ms. Sandy Roth, who proposes to open a store called My Turn!. The store will have secondhand goods including used furniture, decorating accessories, and antiques. Ms. Roth plans to purchase items primarily from estate sales and auctions. Zoning Code The proposed use is a conditional use in a B - 1 zone and is defined as a secondhand goods store. A secondhand goods store is defined as: "Any store engaged in the business of selling or receiving tangible personal property which has been previously used, rented, owned, or leased, but excluding stores which in engage in the sale of any used: automobiles; electronic equipment such as stereos, cameras, computers, televisions, audio and video equipment, and similar equipment or appliances; jewelry or precious gems; or guns. Stores which engage in any pawning activity whatsoever fall within the definition of "pawn shop" and shall not be included within the definition of "secondhand goods store." • • This particular retail space was used for a secondhand goods store several years ago before a conditional use permit was required. Since that store left the city, the zoning code has been changed and a conditional use permit must be secured. Response to public notice and mailings The city published a notice on this public hearing and mailed letters to property owners within 350 feet of the property. As of this writing, staff has received one call on the proposed use. The caller voiced concern that the proposed use would bring more people and congestion to the neighborhood. Staff Recommendation Staff recommends that the following conditions be placed upon this use: 1. The store be authorized to sell only used furniture and household furnishings. 2. The hours of operation shall be limited to 9 a.m. to 9 p.m. 3. There shall be no outdoor storage or outdoor display of merchandise. 4. Outdoor sales of merchandise shall be limited to sidewalk sales held not more than twice per calendar year for periods no longer than three days each. 5. Any change or expansion to the type of used goods sold shall require an amendment to the conditional use permit. 6. The city council reserves the right to review these conditions upon a • change in proprietor to the store. As with any business, this business will also be required to obtain an annual city business license and meet all applicable city codes. This recommendation is based upon the following: 1. The secondhand goods store is in keeping with the city's comprehensive plan. 2. The use with the recommended conditions will not adversely affect the noise, traffic, health, or welfare of the surrounding neighborhood. ATTACHMENTS: 1. Location of the proposed business 2. Planning Commission Resolution 96-04 ACTION REQUESTED: 1. Staff report 2. Questions of the staff 3. Questions of the property owner and/or proprietor 4. Conduct public hearing 5. Discussion 6. 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The city wants to: - facilitate the provision of wireless telecommunication services to residents • and businesses within the city; - minimize adverse visual effects of towers and antennas; - avoid potential damage to adjacent properties; - maximize the use of existing towers and buildings to accommodate new wireless telecommunications antennas in order to reduce the number of towers and antennas serving the community. BACKGROUND Moratorium. In June, 1996 the city enacted a moratorium on communications antennas and towers due to the tremendous number of inquiries from commercial telecommunications businesses about where they could locate antennas within the city. These businesses are aggressively seeking out locations on public facilities, typically water towers, where they can locate antennas high enough to avoid interterence from other activities. These requests are considered "commercial towers and antennas". The moratorium expires on December 31, 1996. C~ • Locations in Falcon Heights In Falcon Heights, the staff directs these communication inquiries to the St. Paul Water Utility and the U of M because the companies are looking for water tower locations. The St. Paul Water Utility owns a water tower on the State Fair property and also at Dudley just off of Cleveland Avenue on the southern border of the city. The St. Paul Water Utility will consider leasing space to these communications companies. In addition to these water towers, the University of Minnesota is located on high ground, has the tallest water tower and also several tall buildings on the St. Paul (Falcon Heights) campus. UPDATE OF ORDINANCE Draft ordinance . Despite the fact that most communications companies will want to locate antennas on existing water towers outside the city's land use jurisdiction, it is timely to update the city's ordinance. It is also important to keep it simple. Information from the City of Vadnais Heights, the City of Bloomington and the League of Minnesota Cities was used to prepare the draft ordinance. The draft ordinance reflects the following criteria: • 1. All antennas must be located on a man-made structure, cannot be free-standing and cannot exceed 20 feet in height. maximum height of 20 feet above a principal or accessory structure (the structure must not be constructed for the purpose of supporting the antenna) no free-standing towers or antennas subject to aesthetic requirements regarding color, no signs and no lighting 2. Private antennas over 10 feet in height are a conditional use in any zoning district. requires a conditional use permit for over 10 feet in height above a structure. (Maximum height is 20 feet above a structure) recognizes that the FCC requires cities to allow private communications antennas for amateur radio in every district This means that if technically necessary the conditional use permit can allow a taller antenna or afree-standing antenna or tower for amateur radio transmissions. If found technically necessary, these 2 facilities must be setback in the rear yard -one foot from each property line for every one foot of antenna or tower. (Most cities require a two or four foot setback to one foot of tower but this would make it impossible to accommodate this unique request in almost all yards in Falcon Heights.) From experience, there are very few inquiries about personal amateur radio towers and antennas. (We've had one inquiry in the past seven years). The changes in communications through the Internet and satellite dish antennas probably reduces the likelihood that these antennas will become popular. Nevertheless, the ordinance should address the possibility. 3. Satellite dish antennas are not subject to zoning. Recognizes the likelihood that the FCC ruling would not permit cities' to regulate the location of satellite dish antennas. Technology has made these satellite dish antennas very small so the regulation of location is less critical than ten years ago. • 4. Commercial antennas must be located on the U of M water tower or the U of M or State Fair public buildings or on the St. Paul Water Utility towers if approved by these authorities. There is one possible location proposed on the city hall fire tower (if technically feasible). The ordinance .... does not permit commercial antennas in areas zoned public, residential or commercial because of the city's land use density. Having antennas on top of commercial buildings or park buildings would add to the visual congestion of the area. Also, all commercial buildings are immediately adjacent to residential areas. Antennas are not perceived as an asset adjacent to a residential areas unless much larger setbacks can be accomplished than the available land in Falcon Heights permits. Cities with much larger park, open space and industrial areas have more flexibility in locating antennas and towers. Again, however, these cities typically use their water towers and the vacant property adjacent to these water towers for to locate these, whenever possible. 3 - recognizes the FCC ruling that cities must allow antennas to be placed somewhere by stating that locations on the water towers and public buildings outside the city's land use control (St. Paul Water Utility, U of M) are possible locations. This reference to the other institutions in the city's code may be unnecessary except that it will be a convenient reference for staff in the future when questions arise. Perhaps the city could make a case that the water towers outside the city's control and within the city's geographic boundaries already accomplish the requirement that commercial communications facilities can be accommodated within the city. However, the draft ordinance permits the location of communication antennas on the city hall fire tower. There are some antennas there now. Several criteria must be met prior to this being permitted. It is not known whether this location would meet the commercial communications requirements, but it may be the only logical place that might be available that the city has land use jurisdiction over. A lease would be part of the arrangement. ATTACHMENTS: • 1. Draft ordin ance 2. Current ordinance 3. Information on the Telecommunications Act related to zoning put out by the National League of Cities NEXT STEPS 1. Discuss the draft ordinance. 2. Determine whether city hall should be a possible location for an antenna. 3. Schedule public hearing on the draft ordinance as revised by the commission for November 18, 1996 planning commission meeting. 4 • Draft 10/10/96 9 - 2.07 Heights Limitations. (Delete Subdivision 1. a. (3) and (4) of existing code and replace with Subdivision 2) Subdivision 2. Telecommunication Antennas a. Tower height. Tower height includes the height of the tower from grade to peak including all antennas and other attachments. If the tower is located on a structure, the tower height is from base to peak including all antennas and other attachments. b. Antenna height. Antenna height includes the height of the antenna from the base of the antenna to the peak and all other attachments. c. Private antennas. 1) Private antennas 10 feet or less are a permitted use. 2) Private antennas over 10 feet but no more than 20 feet in height above aman-made structure, where the man-made structure exists as a principal or a permitted accessory use on the property, shall be a conditional use in all districts. a) The setback for the antenna must be one foot/per foot of antenna from all property lines. 3) In accordance with the Federal Communications Commission preemptive ruling PRB1, a) a private antenna may exceed 20 feet in height above aman-made structure for the purpose of supporting amateur radio provided that a determination is made by the city council as part of the conditional use permit that the additional antenna height is technically necessary to successfully engage in amateur radio communications; b) afree-standing tower or afree-standing antenna not to exceed 50 feet from grade to peak may be constructed for the purpose of supporting amateur radio provided that a determination is made by the city council as part of its • conditional use permit that a freestanding tower and/or antenna is technically necessary to successfully engage in amateur radio communications. (1) Afree-standing tower or antenna must be located in the rear yard and be set back one foot from the side and rear property lines for each foot of tower and/or antenna. d. Commercial antennas Commercial receiving or transmitting antennas shall be prohibited in properties zoned residential, commercial or public except 1) when located on existing water towers and public structures within the city limits, but outside the city's land use jurisdiction, as approved by the public institutional property owners controlling these water towers and public structures; 2)) when located on the city hall fire tower with a maximum antenna height of 20 feet under a negotiated lease whenever such placement is technically feasible pending the following minimal conditions: • (a) The antennas will not interfere with the purpose for which the city owned property is intended; (b) The antennas or tower have no adverse impact on surrounding private property; (c) The applicant is willing to obtain adequate liability insurance and commit to a lease agreement which includes equitable compensation for the use of public facilities and other necessary provisions and safeguards. The fees shall be established by the city council; (d) The applicant will submit a letter of credit, pertormance bond, or other security acceptable to the city to cover the antennas' or towers' removal. (e) The antennas or tower will not interfere with other users of a higher priority including law enforcement, fire, ambulance and other governmental agencies. (f) Upon reasonable notice, the antennas or towers may be required to be removed at the owner's expense. (g) The applicant must reimburse the city for any costs which it incurs because of the presence of the applicant's antennas or towers. • e. Antennas -Aesthetics All antennas and towers upon which antennas are placed shall be designed and situated so as to be as visually unobtrusive 2 • as possible, screened when appropriate, utilizing a city approved color and containing no signs, logos or lighting, except as may be required by any state or federal regulation. Free standing antennas and towers (built upon the ground as opposed to placement on the roof of an existing building) are found to be an aesthetic blight and are prohibited. f. License required The applicant shall present documentation of the possession of any required license by local, state or federal agencies. g. Nonconforming Uses Existing transmitting and receiving facilities at the time of the adoption of this section may remain in service. However, at such time as any material change is made in the facilities, full compliance with this section shall be required. No transmitting or receiving antennas or towers may be added to existing nonconforming facilities. h. Building Permit. A building permit shall be required for the construction of new antennas and towers upon which antennas will be placed and shall include wind loading and strength and footing calculations prepared by a Minnesota registered engineer, whenever deemed necessary by the city engineer. _ i. Private satellite dish antennas. Private satellite dish antennas are not • subject to this subdivision. Hand-held teleohone two-wav radio or similar devices Hand-held telephone, two way radio or similar devices not requiring an exterior reception or receiving antennae are permitted if operated so as not to be visible from outside a principal building nor producing any electrical or other affect upon adjacent or nearby properties. 3 • Draft 90/90/96 ADD TO DEFINITIONS SECTION OF CITY CODE Antenna. Equipment used for transmitting or receiving telecommunication, television or radio signals, which is located on the exterior of, or attached to any building or structure, but not including "satellite dish antennas". Antenna -Commercial. Any pole, spire or structure, or any combination, to which an antenna is, or could be attached, or which is designed for an antenna to be attached, and all supporting lines, cables, wires and braces erected for the commercial use of information. Tower site. A location(s) on which is or may be located one or more telecommunication radio or television antennas available for connection and use by any person, firm or corporation. Antenna -satellite dish. A parabolic shaped antenna (including all supporting apparatus) used for receiving televisions signals, which is located on the ground or exterior of, or outside of, any building or structure. • 4 .7 1 8 i ,~ ;~ ~~ I I 1 .,...s...~ _.....__.......e.........,.._-,.~..~.,._.,..-........__---~.....,.~,... _ _ -_..~~.w • ,. .... ~----__.. _~. _ ... _ ..____ ~ U~..., ----___.__ _ ____m.w ._._.~~.....~._.,~ Hypothetical House with Private Antenna maximum of 20 feet high on a structure ZO ~~ ~3~ °~* _..v _ _~ ~ ~ ~ ~ 1 ~ ~`.. ~ ~ 1 must be setback one foot from the lots lines for each foot of tower • 9-2.07 9-2.07 Height Limitations Subdivision 1. Heictht Limitations Any structural height that exceeds the zoning code must have a conditional use permit. a. Exempt• 1. Height limitations shall not apply to belfries, cupolas and domes, monuments, public and public utility facilities, silos, barns, church spires, chimneys, smokestacks, flag poles, and parapet walls extending not more than four feet above the limiting height of the building. 2. Height limitations shall not apply to roof top structures such as mechanical equipment, elevator shaft and equipment enclosures and similar structures, provided said exceptions do not exceed ten (10) feet in height above the roof line and the area does not exceed fifteen percent (150) of the roof area. • !~ Height limitations shall not apply to private T.V. or radio reception antennae extending more than ten ~~'^ (10) feet above the limiting height of the building ~~~~~__„~ ~ except if any portion of the structure exceeds four (4) ,~'" ~y feet in diameter and is more than twenty percent (20 0 ) ~.~- ~ opaque, a conditional use permit shall be required. -°°`~ Any T.V. or radio transmission or reception device or (ye~~ structure not attached to the principal building shall require a conditional use permit. 4. Hand-held telephone, two-way radio or similar devices not requiring an exterior reception or ~,/~ receiving antennae are permitted if operated so as not ~lL~v to be visible from outside a principal building nor producing any electrical or other affect upon adjacent or nearby properties. b. Airport: In all cases, however, no structure shall violate the limits and provisions of the Airport Plan of the Metropolitan Development Guide. 38 • 9-2.08, 2.09 9-2.08 Essential Services. Essential services as defined herein shall be permitted as authorized and regulated by State law and Code of the City of Falcon Heights, except as further regulated herein. 9-2.09 Annexed Territory Areas being annexed shall be appropriately zoned in accordance with the Comprehensive Municipal Plan at the time of annexation. Pending official zoning action by the City Council, all annexed land shall be considered as zoned "R-1." 39 • CHAPTER SEVEN • C Impact of ~e Act on Local Zoning Power The Act generally preserves local zoning authority over wireless telecommunications facilities (such as cellular towers) as long as zoning requirements are nondiscriminatory, do not have the effect of prohibiting service, and are not based on the health effects of radio frequency emissions. Zoning decisions must, however, be made within a reasonable time, be based on evidence, and be in writing. By August 1996, the FCC will complete a proceeding that could affect local zoning authority over rooftop television antennas and satellite dishes. Interested communities should participate in that FCC proceeding. In the past several years, a host of new wireless communications technologies have been developed. Telecommunications services include paging service, cellular telephone service, and personal communications services ("PCS"). Television service delivery includes direct broadcast satellite ("DBS"). What all of these new wireless technologies have in common is that, to varying degrees, they require either the construction of transmitting equipment (placed on towers) or receiving equipment (such as satellite dishes), or both. As a result, if left unchecked, the growth of these services could result in the sprouting of new radio towers and receivers all over a municipality's landscape -far more than exist under older technologies such as radio telephone service and television broadcast service. Most of these new facilities will be sited in developed areas -such as cities and suburbs -where the potential residential and business customers of these new services are located. 3 Local govemments have long exercised zoning authority over development to ensure that the appearance and integrity of neighborhoods are not marred by the cluttering of unsightly facilities or the intrusion of commercial facilities into residential areas. Like warehouses and smokestacks, placement and location of antenna towers and satellite dishes present zoning issues. The Act contains language specifically protecting local zoning authority to a significant degree. However, at the same time, the Act does place some new federal requirements on local zoning authority over wireless telecommunications facilities, and it leaves the door open for the FCC to consider adopting rules that could limit local zoning authority over DBS receiving dishes and television antennas. Local Zoning Authority over Wireless Telecommunications Facilities The Act addresses the issue of local zoning authority over wireless telecommunications facilities in three steps. It (1) establishes a general principle that local zoning authority is preserved, subject to certain conditions; (2) lists the conditions that local zoning requirements must satisfy; and (3) identifies which disputes will be handled by the courts and which will be handled by the FCC. 27 Tile Tel~ommunications Act of 1996: What it Means to Loral Governments General Principle: Local Zoning Authority Preserved The Act makes clear that as long as local zoning requirements satisfy certain conditions, nothing in the entire Communications Act of 1934 will limit or affect zoning authority of local governments over the placement, construction, and modification of wireless telecommunications facilities. This principle is important because over the years, the FCC has attempted to exercise its general authority over wireless transmissions under the Communications Act of 1934 to limit or preempt local zoning authority. Until now, the 1934 Act contained no explicit limit on the FCC's authority over zoning. With this new principle, local governments for the first time will have a statutory basis in the Act to defend themselves against unwarranted federal intrusion into local zoning. Conditions to Local Zoning Requirements In order to take advantage of the Act's general principle of preserving local zoning authority, local government zoning decisions about wireless telecommunications facilities must • satisfy five conditions. Those conditions are: t . Local zoning requirements may not unreasonably discriminate among wireless telecommmunications providers that compete against one another. The legislative history makes clear that local governments do not necessarily have to treat competitive providers exactly the same if their proposed facilities present different zoning concerns. Congress intended to give local governments some flexibility in this area. It recognized, for example, that a proposed 50-foot tower in a residential district presents different concerns than a 50-foot tower in a commercial district, even if the two towers are going to offer services that compete with one another. 2. Local zoning requiremers may not prohibit or have the effect of prohibiting the provision of wireless telecommunications service. :7 This is intended to prevent local governments from imposing outright bans on wireless telecommunications facilities. It probably also prohibits moratoriums on accepting applications, at least any moratorium that is of indefinite length. At the same time, local governments should have the ability to limit the number and placement of facilities as long as those limits do not have the effect of precluding a wireless telecommunications provider's ability to offer service. 3. A local government must act on a request for permission to place or conshuct wireless telecommunications facilities within a r~sonable period of time. The time taken to act on an application will be considered reasonable as long as it is no longer than the time the local government usually takes to act on the other requests (say, for zoning variances) of comparable magnitude that have nothing to do with telecommunications facilities. And Congress emphasized that the Act does not require local governments to give preferential treatment to zoning requests involving telecommunications facilities -such requests can wait their turn. As long as the request is not moved down the list, it does not have to be moved up the list. 4. Any city council or zoning board decL4ion derryirrg a request for perrdssion to install or censduct wireless telecommunications fadlides must be in writing and must be based on evidence in a written recent before the council or board. This requirement may necessitate a considerable change in practice for some city councils and zoning boards. It means that proceedings on a zoning application will need to be reduced to writing. This can be done by having the proceedings transcribed and by requiring the applicant, the city staff and any interested members of the public to reduce their comments and arguments into written submissions to the council or board. This requirement also means that city staff will need to make sure that any facts or arguments on which the council or board may rely on in denying a request are in fact included in the transcribed hearing or written filings submitted to the council or board before its decision is made. That decision also must be in writing and contain reasons that are consistent with the Act's requirements. Municipalities should carefully consult with their city attorneys to implement this requirement. 28 • • • Chapter Seven 5. As long as wireless telecommunications facilities meet standards to be set by the FCC, a local governme~rt may not base arty decision Berrying a request to const~vct such facilities on the ground that radio frequeruy emissions from the facilities will be harmhrl to the emrironmerrt or health of residents. The Act gives the FCC, not local governments, the sole authority to determine what standards wireless facilities must meet to ensure that their radio frequency emissions do not harm humans or the environment. While local governments can require the facilities to comply with FCC emission standards, local governments may not adopt their own standards. This means that, as long as the facilities meet FCC emission standards, concerns about the effects of emissions from radio towers on the health of nearby residents is not a permissible reason for making zoning decisions about the placement of wireless telecommunications facilities. Telecommunications Providers? In a major victory for municipalities, the Act requires that a wireless telecommunications provider claiming that a city has violated any of four out of five conditions listed above must seek relief in a state or federal court, not at the FCC. The disappointed applicant may go to the FCC only if it claims that the municipality improperly based its decision on the harmful effects of radio frequency emissions from the proposed facilities. The FCC is also prevented from preempting local zoning requirements except for those relating to radio frequency emissions. Consistent with this restriction, the Act also requires the FCC to discontinue its pending rulemaking proceeding concerning preemption of local zoning requirements for cellular towers. Zoning Issues Relating to DBS and Television Broadcast Facilities The Act contains no comparable local zoning provisions dealing with the other type of communications facilities that might appear on your city's landscape (e.g., television broadcast antennas and satellite television dishes). This will probably seem odd to most cities, since television antennas and dishes may present precisely the same types of zoning concerns as wireless telecommunications facilities -they can affect neighborhood appearance and integrity. After all, zoning requirements tend to be directed at the physical size and appearance of facilities, not the particular services they are used to provide. The Act does, however, contain two provisions that both the television broadcast and DBS industries are likely to try to use to restrict municipal zoning authority over television antennas and dishes. The first provision gives the FCC exclusive jurisdiction over "direct-to-home satellite services" - in other words, DBS service. This essentially gives the FCC the same broad authority over DBS service that it has long had over television broadcast service. This may strengthen the FCC's hand in adopting rules concerning limitations on local zoning authority over satellite dishes. The second provision may be a bit more of an explicit threat to local governments. This provision requires the FCC - by August 1996 - to adopt rules that prohibit "restrictions" that impair a viewer's ability to receive television programming from over-the-air local television broadcast stations, DBS services, or "multichannel multipoint distribution services" ("MMDS"). The Act does not say what types of "restrictions" the FCC is supposed to prohibit. You should assume, however, that the broadcast and DBS industries will argue to the FCC that local zoning requirements concerning rooftop antennas and backyard satellite dishes are "restrictions" that the FCC should limit or prohibit. 29 Who Resowes Deputes Beirnreen Mutdapailties and Wireless The Telecommunications Act of 1996: What It Meana to Local Governments i Things to Think About ^ ^ ^ Do your zoning ordinances and regulations deal with communications antennas and towers at all? If so, do they address those facilities separately, or as part of general zoning requirements that are applied to other facilities and structures as well? Have you adopted any zoning ordinances or variances or made any zoning decisions concerning communications towers or antennas? If so, what did those ordinances or decisions say? Do you have a strategy for revising your zoning ordinance, code or process o comply with the new Act? Have you considered how you will develop a written record to justify your zoning actions concerning towers and antennas under the new Act? Will youneed to change the process you have used in the past? Will you need to consider using experts who could provide testimony or rebut evidence submitted by the:-industry applicant seeking to erect a new tower or:antenna.' ^ Are your zoning decisions issued in writing, giving detailed reasons for the result? If not, have you ' - ' considered revising the process? ^ Have you imposed a moratorium on zoning requests-for communications towers oc antennas? .If so, do you have a plan for etYiing the moratorium'anijgutting rules in, , ::.place consistyient with the new Act? ~' y. _ r ...r'F y F _ a...~ ~ ,~ ti ~`~. ^ Do you place any restrictions on ~ilacement of rdofto~~ , antennas oratellite dishes`or~backyard sateli~tec3ishe~~:: Are your residents concemed,ahoirt such struct~res~ ~.If~ `,'.~ so, should ygiur.ciryparticipate in the upcoming,FO~ ~,,~ h proceedings telating to there topics Have; youanform~ ~, .your 5enato and memberaf.~ngress~~of your-city's '~ concerns? ~ ~ ~- ~~ ~" 4 k' ~~ , ,, y1' ,: ~,,. ro ?~ g ~~ 1 ti''c 30