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08. Ordinance 1407 - Cellular Towers - 1st ReadingTri-City Planning Office 17 Second Street East -Suite 211 Kalispell, Montana 59901 Phone: (406) 751-1850 Fax: (406) 751-1858 REPORT TO: Kalispell Mayor and City Council FROM: Narda A. Wilson, Senior Planner Chris A. Kukulski, City Manager SUBJECT: Kalispell Zoning Ordinance Text Amendment for Cellular Communication Towers - TriStar Communications MEETING DATE; November 5, 2001 BACKGROUND: This matter came before the city council previously and has not been fully resolved. The applicant awaits an outcome. Our office, and other City offices, have been contacted by wireless service providers regarding locating in Kalispell. This issue remains in limbo and should be resolved. As you may recall this is a proposal for a text amendment to the Kalispell Zoning Regulations that would allow for the installation of cellular towers to be allowed as a permitted use in the B-5, Commercial / Industrial, I-1, Light Industrial and 1-2, Heavy Industrial subject to performance standards. The amendment is based upon the proposal of a company who actually construct the towers and provides for co -location opportunities. TriStar Communications, the applicant, does not actually provide wireless communication service. This matter came before the city council for consideration for first reading at their meeting of May 21, 2001 where there was some discussion regarding areas for placement of the towers, requirements for collocation and a one mile separation requirement between the towers. The one mile separation requirement became an issue for both the city council and the planning board. Staff recommended a one mile separation unless no collocation opportunities exist. The one mile separation requirement was removed by the planning board, but at the first reading of the ordinance, the council passed with an amendment that would require a one mile separation between cellular communication towers unless co -location opportunities do not exist. The city council met again on this proposal on June 4, 2001 to consider the second reading of the ordinance. There were some concerns expressed by some members of the council that the one mile separation requirement might give one company an advantage over a subsequent competitor that would create a monopoly. There were questions whether or not this would be in violation of anti-trust law. The matter was continued until June 18, 2001 at which time it was tabled to provide the staff with an opportunity to do some additional research. Glen Neier obtained information from the International Municipal Lawyers Association (IMLA) and from other municipalities regarding adoption of regulations that relate to wireless cellular communication towers. The IMLA has a draft model ordinance that addresses the purpose of the regulations, setbacks, structural requirements, separation or buffer requirements, landscaping, stealth design, Providing Community Planning Assistance To: • City of Kalispell • City of Whitefish • City of Columbia Falls Memo to Council for Cell Tower Text Amendment November 1, 2001 Page 2 modification, maintenance and abandonment. The model ordinance specifically recognizes the ability of the local government to "regulate the placement, construction and modification of the towers in order to protect the health, safety and welfare of the public. Additionally information was obtained from the Federal Communications Commission web site at www.fcc.eov relating to the 1996 Telecommunications Act. Some basic information regarding the 1996 Telecommunications Act was given to the council in previous memos. To briefly reiterate the information, Federal regulatory actions prevent local governments from prohibiting the provision of wireless telecommunication services outright, although they have the reserved right to regulate the number and placement of telecommunications facilities through local zoning. The 1996 Telecommunications Act list five conditions that local regulations must satisfy to maintain zoning authority over wireless service facilities. Local zoning requirements may not unreasonably discriminate among wireless telecommunications providers that compete against one another. Local zoning requirements may not prohibit or have the effect of prohibiting the provision of wireless telecommunications services. A local government must act within a reasonable period of time on requests for permission to place or construct wireless communications facilities. Any city or county or zoning board of decision denying a request for permission to install or construct wireless telecommunications facilities must be in writing and must be based on evidence in a written record before the council or board. If a wireless telecommunications facility meets technical emissions standards set by the FCC (Federal Communications Commission, it is presumed safe. A local government may not deny a request to construct a facility on grounds that its readio frequency emissions would be harmful to the environment or the health of residents if those emissions meet FCC standards. Some additional information gathered since the mattered was tabled would include the following: Setbacks can be required equal to the distance of the tower. Colocation can be required and can be required on existing buildings if structurally possible. Standards for aesthetic purposes to hide or disguise the towers such as fencing, landscaping and paintings can be required. A requirement for boning for the cost of the removal of the tower(s) is acceptable. A limit on the term of the permit so that it comes up for periodic review is allowable. Requiring the collocation of service providers on a single tower is allowable. Regulations of spacing between towers is allowable. Memo to Council for Cell Tower Text Amendment November 1, 2001 Page 2 It may also be of some general interest to know that the FCC does not maintain a database on all of the cellular communication towers. Rather it only maintains a general data base on towers 1) over 200 feet in height; 2) any towers over 20 feet on an existing structure (such as a building or water tower) and 3) towers that are close to airports that may cause potential hazards to air navigation. The amendments Proposed by the applicant include cellular communication towers as permitted uses in the various zones subject to performance standards. In the commercial or the "B" zones the towers would be a conditionally permitted use. In the industrial zones of the B-5 and the "I" zones, the towers would be a permitted use. The amendments recommended by the Planning board would be to make all wireless service facilities subject to a conditional use permit. Such a change would make every site subject to a case -by -case review. RECOMMENDATION: A motion to adopt the ordinance on first reading would be appropriate. FISCAL EFFECTS: ALTERNATIVES: Narda A. Wilson Senior Planner Potentially minor positive effects. As suggested by the city council. Report compiled: November 1, 2001 c: Theresa White, Kalispell City Clerk H: \FRDO\TRANSMIT\KALISPEL\2001 \KZTA01-3MEM2C A 5`, Chris A. Kukulski City Manager NO. 1407 AN ORDINANCE AMENDING THE KALISPELL ZONING ORDINANCE, (ORDINANCE NO. 1175), BY ALLOWING THE INSTALLATION OF CELLULAR TOWERS IN THE B-5, COMMERCIAL/INDUSTRIAL, I-1, LIGHT INDUSTRIAL AND I-2, HEAVY INDUSTRIAL ZONES AS CONDITIONALLY PERMITTED USES, SUBJECT TO PERFORMANCE STANDARDS, AND DECLARING AN EFFECTIVE DATE. WHEREAS, J.R. Reger of TriStar Communications, LLC has submitted a written request to amend the Kalispell Zoning Ordinance, by allowing the installation of cellular towers in the B-5, Commercial/Industrial, I-1, Light Industrial and I-2, Heavy Industrial zones as conditionally permitted uses, and WHEREAS, the request was forwarded to the Kalispell City -County Planning Board and Zoning Commission by the Flathead Regional Development Office after having been evaluated under 27.14.030, Kalispell Zoning Ordinance, and WHEREAS, the Kalispell City -County Planning Board and Zoning Commission recommended that the text of the Kalispell Zoning Ordinance be amended to reflect the change, and WHEREAS, the City Council has reviewed the FRDO Report and the transmittal from the Kalispell City -County Planning Board and Zoning Commission and hereby adopts the findings made in Report #KZTA-01-3 as the Findings of Fact applicable to this Ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL AS FOLLOWS: SECTION I. The City of Kalispell Zoning Ordinance, Ordinance No. 1175, is hereby amended as follows: See Exhibit "A", attached hereto and made a part hereof. SECTION II. All parts and portions of Ordinance No. 1175 not amended hereby remain unchanged. SECTION III. This Ordinance shall take effect thirty (30) days after its final passage. cell towers.wpd 1 PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE CITY OF KALISPELL THIS DAY OF NOVEMBER, 2001. Wm E. Boharski Mayor ATTEST: Theresa White City Clerk cell towers.wpd 2 EXHIBIT A OPOSED ZONING TEXT AMENDMENT FOR CELLULAR COMMUNICATION TOWERS TRISTAR COMMUNICATIONS, LLC MAY 8, 2001 The following amendments to the Kalispell Zoning Ordinance are recommended by the Kalispell City County Planning Board: A. Add "Transmission Towers and Cellular Communication Towers" as a conditionally permitted use to the B-5, Industrial / Commercial, I-1, Light Industrial, and I-2, Heavy Industrial zones. B. Amend the B-1, B-2, B-3, B-4 and P-1 zoning district to list "Transmission Towers and Cellular Communication Towers" as conditionally permitted uses (and delete other references to transmission towers). C. Add a definition: 27.37.010 Transmission Towers / Cellular Communication Towers and Facilities - Commercial radio and television service antenna, unlicensed wireless service antenna/tower, common carrier wireless exchange structure/antenna/towers commonly referred to as cellular communications. D. Amend Section 27.35.080: Additional Requirements for Specific Conditional Uses, Transmission Towers and Televisiea, Radio, Mic-rewave Tearer and Equipment Cellular Communication Towers, Equipment and Facilities 1 A Conditional Use Permit shall be required for transmission towers and cellular communication towers in the B , o 2, n affia R ^ all zoning districts which list transmission towers and cellular communication towers. of the ._lev. nng 2. These regulations Cenditiona-1 Ust, ne..mits shall not be required for antenna associated with ham radio, citizens band radio, a telecommunications device that only receives an RF signal, and a sole -source emitter with more than one kilowatt average output or the mounting of an antenna or other transmission device on an existing tower provided no structural alterations are made. 3. The location of transmission towers and cellular communication towers, equipment and facilities IsF;u, pop of a Cnnditinnnl Ure neFmit shall take into consideration the following: a. Visual effects; b. Height; c. Structural integrity; d. Radiation emissions; e. Effects on adjoining land use; f. Possibility of shared use; g. Effects on City airport operations; h. Effects on other communication devices; and L Site location alternatives. 4. Application for a Conditional Use Permit shall include a site plan for review by the Site Development Review Committee. 5. General requirements of a Conditional Use Permit for locating a transmission tower or cellular communication tower shall include: a. Required Vie€ colocation on an existing tower or other structure antenn whenever possible and practical; , ete.; E Screening when located adjacent to a residential district ; aind d. Engineer's certification regarding structural safety; limited to the greatest extent possible; f. That the structure be placed to avoid location on the crest of a mountain or hill or extension into the skyline thus creating aesthetic concerns. g. Address potential FAA (Federal Aviation Administration) lighting requirements for aviation safety. h. That the structure/tower be camouflaged to blend in with the surrounding environment when beneficial and practical; L The new structure shall allow for co -location with a minimum of four other users. i. That all transmission and cellular communication towers be located a minimum of one mile apart., unless co -location opportunities do not exist. k. If a security fence is proposed, a five-foot tall dense landscaping screen shall be planted around the security fence of any structure/tower. 1. Where a new tower is proposed, the applicant shall demonstrate that there are no feasible existing structure upon which to locate. 6. Should any cellular communication tower, facility or antenna be abandoned or cease to operate for a period of 180 days, the structure/tower shall be removed at the exvense of the owner. It shall be the responsibility of the structure/tower owner to promptly notify the City if a facility is abandoned or ceases operation. F. Amend Section 27.22.070, Exceptions to Height Restrictions, The height limitations contained in any district regulations do not apply to spires, belfries, cupolas, chimneys, water tanks, ventilators, elevator housing, grain elevators, or other agriculture buildings, transmission towers and cellular communication towers and facilities unless otherwise prohibited by Federal Aviation Regulations, part 77. Masts for flag poles shall not exceed the height limits of the zoning district. Furthermore, said flag mast must be set back from the property line to prevent the intrusion of the extended flag into or over any public right-of-way or adjoining property.