Upcoming Schedule

Date Time Topic Location
Wednesday, Sept. 11 6:30 p.m. Planning Commission Hearing for Wireless Communications Facilities Regulations 200 W. Oak St., Fort Collins (Hearing Room)   
Monday, Oct. 7  6:30 p.m. Board of County Commissioners Hearing for Wireless Communications Facilities Regulations  200 W. Oak St., Fort Collins (Hearing Room)   

Wireless Communications Facilities Proposed Regulations for the September 11th Hearing

Addendum Memo for September 11, 2019 Hearing.pdf

Staff Report for the September 11, 2019 Hearing (Memo Format) 

Background

Since earlier this year, the county has been working on revising the existing Commercial Mobile Radio Service (CMRS) Facility Standards in Section 16 of the Land Use Code. The update to the land use regulations, entitled Wireless Communications Facilities (WCFs), will repeal and replace the current chapter and are intended to:

  1. Carry forward the original intent of allowing WCFs in the county to meet our growing communication needs while minimizing adverse impacts,
  2. Bring local standards into compliance with federal and state requirements (including timing of review and to allow and provide standards for small cell facilities in rights-of-way),
  3. Address new technology and its implications for land use, and
  4. Improve design and compatibility of such facilities and include notification procedures.

Public Process

During this project, staff has conducted prior work sessions to review preliminary concepts and drafts of the standards with:

  • The Board of County Commissioners (April 15, 2019),
  • The Planning Commission (April 17, 2019),
  • Planning Commission and Board of County Commissioners work session (May 8, 2019),
  • Planning Commission hearing on the item tabled (June 19, 2019), and
  • Planning Commission and Board of County Commissioners work session with consultant, Ken Fellman (August 21, 2019).

Additionally, staff conducted a public open house on May 8, 2019 to gather community feedback and answer questions as well as hosted an online questionnaire from May 8 to May 22, 2109.

Approximately 20 people attended the open house and 22 people responded online. Staff shared the input from those events with the boards in previous packets along with additional written correspondence received from community members prior to the June hearing date. The August 14 draft regulations were placed on the project webpage with a comment form to gather feedback.

Results from that feedback and other correspondence received can be found in Attachment C.

Community Development staff and County attorneys have had assistance from attorneys Gabrielle Daley and Ken Fellman stemming from the county’s membership in the nonprofit Colorado Communications and Utility Alliance (CCUA) which provided access to Mr. Fellman for legal advice related to wireless facilities.1 Consultants reviewed the draft regulations along with written public input and feedback from the work session.

Current Legal/Regulatory Framework for the Proposed Regulations

As noted above, part of the reason for updating the regulations is because they are out of compliance with state and federal requirements, as described below.

In 2014, the Federal Communications Commission (FCC) adopted rules under a 2012 federal statute. The statute and the FCC rules require that any existing wireless facility seeking to be modified, that qualifies as an “eligible facilities request” must get regulatory approval from the County, and if the County does not approve the application within 60 days it is “deemed granted” by federal law. The FCC rules adopt multiple definitions of key terms related to wireless facilities, and the draft code amendments incorporate these new definitions and rules.

In 2018, Colorado HB 17-1193, the “Small Cell Law” made small cell facilities a use by right, subject to local police powers, and it applies the state “shot clock” for wireless facilities, which for some WCFs allows for more review time than the federal shot clock standards.

Additionally, in September 2018, the Federal Communications Commission (FCC) issued a small cell order which is being appealed in federal court. Hundreds of local governments nationally are parties to the appeal, including the CCUA, of which the county is a member. There are some conflicts between the FCC rule and state law, including the shot clock provisions, definitions for small cell facilities, fees that can be charged, and the scope of local police power as discussed on August 21.

The work session also included information about the legal framework related to wireless radio frequency (RF) emissions and health. The longstanding 1996 Telecommunications Act, 47 USC 332(c)(7)(b)(iv) restricts any state or local regulation of wireless facilities based on environmental (including health) effects of radio frequency emission, preempting local authority. The Federal Communications Commission (FCC) has sole federal authority to set health emission standards, and case law has supported the preemption. Locally, cities and counties can require telecommunication operators to certify that sites will comply with FCC standards which is included in the proposed regulations.

   1 CCUA is a government trade association that represents and advocates for its member municipalities, counties, school districts and regional entities in a wide variety of telecom, cable, broadband and utility issues. It works closely with CCI and CML and is funded by member dues and an annual conference. CCUA is also the Colorado chapter of the National Association of Telecommunications Officers and Advisors (NATOA).

Some follow up comments noted interest in addressing signage on facilities for people with electro hypersensitivity to address the Americans with Disabilities Act (ADA). The proposed regulations require telecommunication providers to apply with all applicable state and federal laws (in section 16.1.3), now specifically noting ADA requirements. In addition, outside of the regulations, the county can commit to maintaining a database and map of small cell facility locations.

Overview of Proposed Regulations

The proposed regulations are in Attachment A and staff has made modifications since the June and August drafts, initially to provide better organization and clarity and in this draft to address comments discussed at the work session and received through August 28, 2019. Attachment B contains a summary of what changed since the August 14 draft.

Standards

The proposed standards address priority for collocating facilities, include compatibility and concealing standards, and address a number of issues for towers and alternative tower structures such as height, setbacks, new camouflage/concealment language to achieve design in context with surroundings, as well as addressing lighting, noise and landscaping. Table 16.A, on the next page, identifies the zoning districts where WCFs are allowed and their height limits. Generally, taller facilities are allowed in business, commercial, and industrial districts and the O open district. More concealed facilities are encouraged in the estate, residential, farming, and forestry districts. Because of proximity to denser residential areas, Growth Management Areas have heighted standards and procedures, such as encouraging concealed towers, including greater landscaping and screening requirements, and including a referral as part of the review to the respective city or town.

Additionally, the proposed standards now provide guidance on small cell facilities in the right-of-way, which the current standards do not address.

Table 16.A: Zoning Districts Where WCFs are Allowed and Heights

 

ZONING DISTRICT

Attached Facility

on Existing Structure

Small Cell Facility

Alternative Tower

Structure (concealed)

Tower

(non-concealed)

E and E-1 Estate

 

RE and RE-1 Rural Estate R, R-1, and R-2 Residential M and M-1 Multiple Family

SP

SP ≤ 40 feet high

SP ≤ 40 feet high

PSP ≤ 60 feet high

Not permitted

FA and FA-1 Farming FO and FO-1 Forestry

 

 

SP

SP ≤ 40 feet high

SP ≤ 40 feet high

PSP ≤ 60 feet high

PSP ≤ 60 feet high

MS ≤ 80 feet high

A Accommodations T Tourist

 

 

SP

SP ≤ 40 feet high

SP ≤ 40 feet high

PSP ≤ 60 feet high

PSP ≤ 60 feet high

MS ≤ 80 feet high

B Business

 

RFLB Red Feather Lakes Business

 

 

SP

SP ≤ 40 feet high

SP ≤ 40 feet high

PSP ≤ 80 feet high

PSP ≤ 60 feet high

MS ≤ 100 feet high

C – Commercial I – Industrial

 

I-1 – Heavy Industrial

 

PD – Planned Development

 

 

 

SP

SP ≤ 40 feet high

SP ≤ 40 feet high

PSP ≤ 80 feet high

PSP ≤ 60 feet high

MS ≤ 120 feet high

O-Open

 

 

SP

SP ≤ 40 feet high

SP ≤ 40 feet high

MS ≤ 100 feet high

PSP ≤ 60 feet high MS ≤ 120 feet high SR ≤ 160 feet high

AP – Airport

SP

SP ≤ 40 feet high

SP ≤ 40 feet high

PSP ≤ 40 feet high

Public right-of-way

Master License

Agreement (MLA) & right-of-way permit

MLA & right-of-way permit

Not permitted

Not permitted

KEY: (See Table 16.B for procedures) SP = Site Plan

PSP = Public Site Plan

MS = Minor Special Review SR = Special Review

Proposed Review Procedures

The review procedures are summarized in Table 16.B. The procedures expand upon existing notification and referral requirements, so all WCFs will involve some form of notification. Notifying neighbors within 500-feet of a property application is the standard practice with county development review; however, on a case-by-case basis that radius may be expanded to 1,000 feet or more, for instance when 500-feet would dissect a neighborhood or subdivision.

Shot Clock Requirements and Eligible Facilities

The proposed regulations address state legislation pertaining to timely review of wireless facilities, which is referred to as the “shot clock.” Shot clock requirements for final action on complete applications are as follows:

  • 150 days for new structures.
  • 90 days for collocated wireless communication facilities that do not qualify as an eligible facilities request and small cell facilities (collocated or new).
  • 60 days for eligible facilities requests.

Provisions for “tolling the shot clock” (i.e., pausing or stopping the review) for incomplete applications are included. These review time frames have been set by the state statute. The county may stop the clock for incomplete or insufficient information if it provides notice of the deficiency to the applicant early in the process. The proposed regulations also incorporate the 2014 FCC regulations that require “eligible facilities requests” for modifications on existing wireless sites to be processed even more quickly, in this case through a building permit only process. The proposed regulations will give the county staff the information necessary at the time of application to quickly determine whether an application qualifies as an eligible facilities request, which, per federal law, must be approved.

Table 16.B – Review Procedures and Requirements for Different Facility Types

Procedure

Applies to

Notice Given

Referral

Type of Decision

Appeal to

Time- frame

Building permit only

  • Eligible facilities requests
  • n/a
  • n/a

Administrative decision

Board of Appeals

60 days

Site Plan (SP)*– Sec.

6.0 and 6.1 of Code

  • See Table 16 A for zoning districts and WCF types
  • Notice of administrative decision sent to abutting property owners following

administrative decision

  • Sent to referral agencies within 14 days
  • Notice sent to cities if in a GMA

Administrative decision

BCC

90 days

Public Site Plan (PSP)*– Sec. 6.2 of Code

  • See Table 16 A for zoning districts and WCF types
  • Notice sent to neighboring properties within 500 feet of the property
  • Sent to referral agencies within 14 days
  • Notice sent to cities if in a GMA

Administrative decision. If 30% of the neighbors note concerns, it may be reviewed by Board of County Commissioners

(BCC).

BCC

90 days

or 120 if BCC

review

Minor Special Review (MS)*– Sec.

4.5 of Code

  • See Table 16 A for zoning districts and WCF types
  • Notice sent to neighboring properties within 500 feet of the property
  • Sent to referral agencies within 14 days
  • Notice sent to cities if in a

GMA

BCC approval including a public hearing

 

120 days

Special Review (SR)*

– Sec. 4.5 of Code

  • See Table 16 A for zoning districts and WCF types
  • Notice sent to neighboring properties within 500 feet of the property
  • Sent to referral agencies within 14 days
  • Notice sent to cities if in a GMA

Two public hearings: Planning Commission (PC)

recommendation

and BCC approval

 

150 days

Master License Agreement (MLA) with right-of-way permit

  • Small cell facilities in right- of-way
  • Notice sent to neighboring properties within 500 feet of each proposed facility proposed in

supplemental site license

  • Sent to referral agencies within 14 days of the supplemental

site license submittal

Administrative right-of-way permit

 

90 days

* Building permit required in addition to the planning approval.

Master License Agreement (MLA)

The 2017 state statute requires local governments to permit small cell facilities in public rights-of-way. This use is subject to local police power, so each company will need specific authorization for these installations.  It is proposed that the county follow the process used by many other local governments in Colorado, which is to grant a master license agreement (MLA), which generally authorizes the use of the rights-of-way, and contains provisions that the county will want to cover every individual site.

A Sample Master License Agreement (MLA) was included with the August 21 work session materials. The Planning Commission does not need to make a recommendation on the MLA but may offer suggestions. The draft MLA, Particularly Exhibit B, Operational and Design Criteria, will be further updated following revisions to proposed Chapter 16. An excerpt for new language regarding siting preferences to be included in Section 5 of Exhibit B is shown in Attachment D.

The draft MLA addresses topics such as insurance, indemnification, compliance with local laws, relocation obligations. A Supplemental Site License in Exhibit A demonstrates the form to be used when a company applies for a specific site or batch of sites. These site licenses will include drawings and related information ensuring compatibility with the county’s design standards. Each specific location would still be individually evaluated and given a right-of-way permit and will go through a modified version of the county’s development review process with the county engineer involved in reviewing and approving the right-of-way permit. To date, no telecommunication providers have entered an agreement with the county using such template.

Fees

Staff will present an updated fee schedule at the Board of County Commissioners hearing for each of the process types identified in the regulations.

REVIEW CRITERIA:

There are two review criteria for amendments to the text of the Land Use Code, in this case Chapter 16:

  1. The proposed changes are consistent with the Master Plan and the intent and purpose of the County’s Master Plan. It is the overall intent of the County’s Comprehensive Plan that adequate public facilities be provided with all applications. The updated FCC and State of Colorado requirements are based on a policy decision to promote deployment of Wireless Communication Facilities due to the explosion of network demand and the dramatic increase in the number of devices that need wireless access to function. In addition, the proposed regulations include aesthetic, spacing, height, and other criteria for small cell facilities placed in the right-of-way to allow for unimpeded use of the right-of-way, while respecting the need for additional coverage area for small cell facilities.
  2. The proposed changes are necessary to correct an omission or error in the Land Use Code. The County’s current wireless regulations, Commercial Mobile Radio Service regulations, are not consistent with the more recent changes by the FCC and State of Colorado. These updated regulations provide current terminology, updated technology, and provisions for use of the right-of- way.

Work Session Documentation