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Medina Wireless Communications Facilties Siting Policies

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Medina Wireless Communications Facilties Siting Policies
April 14, 1997

INTRODUCTION

The following siting policies are promulgated and adopted by the City Council of the City of Medina, acting with the advice and recommendations of the Medina Planning Commission. These policies have been designed to aid City Staff, City Consultants and wireless communication facility applicants in selecting appropriate sites and/or configurations. These policies are meant to supplement, and not to supersede, the Medina Zoning Code provisions that relate to wireless communications facilities. In the event of any conflict between these policies and the Medina Zoning Code, the provisions of the Medina Code shall govern. When used throughout these policies, the term "wireless communication facilities" include any and all transmitting or receiving antennas and all facilities upon which such antenna are mounted, including existing structures.

Traditional Zoning: Traditional zoning has concentrated on the preservation of property values. This has been done through measures such as minimum setback and maximum height restrictions which create some uniformity of appearance and prevent one residence from "over shadowing" its neighbors. Coverage restrictions are designed to prevent individual residences from dominating neighborhoods. All of these restrictions reduce the visual impact of allowed structures. The Federal Telecommunications Act (TCA) specifically preserved local zoning authority, with only limited exceptions.

Requirements of Federal Telecommunications Act: The TCA prevents cities from discriminating amongst "functionally equivalent providers". The FCC considers cellular, PCS, mobile radio, paging and enhanced mobil radio service providers all to be "functionally equivalent". These policies are designed to prohibit discrimination by requiring that all policies be applied to all providers. Despite industry contentions, the fact that the City has approved one or more facilities in the past does not mean that it must approve a similar facility for each potential provider. All that is required to avoid discrimination is that all providers be treated identically and subjected to the same rules. Similarly, the avoidance of discrimination does not mean that the City cannot change its requirements from time to time.

Historically, the City's Zoning Code and Comprehensive Plan have been subject to continuous review and modification, both major and minor. Non-discrimination is achieved by applying new standards uniformly to all permit applications after adoption. The TCA prohibits the City from banning wireless facilities. Accordingly, these policies are designed to provide adequate facilities for all anticipated providers.

City Attorney and Staff Comments: These siting policies have been prepared by the City Attorney and staff following review of numerous ordinances, from jurisdictions throughout the United States, and numerous articles by wireless providers and planning organizations. Portions of the policies will be incorporated into a new ordinance governing wireless communications facilities. Earlier drafts of these policies have been reviewed by the Medina Planning Commission. Their suggestions and comments have been incorporated into the current draft.

1. POLICY OBJECTIVES

1.1 Provision of Adequate Sites for Wireless Providers

1.2 Preservation of Character of City. Another primary objective of these siting policies is to maintain the existing residential character of the City of Medina and its neighborhoods.

1.3 Balancing. Despite significant public testimony that additional wireless communications services are not needed or desired within the City, these policies seek to balance the desires to provide adequate siting alternatives within the City, to comply with Federal law and to preserve the existing character and appearance of the City and its neighborhoods.

City Attorney and Staff Discussion: The needs of the wireless provider are based primarily upon the information provided by the consortium that addressed the Planning Commission and Council during several workshops. The primary identified needs were for facilities near the 520 corridor to serve the City and the 520 corridor and for additional facilities, further south, to serve Medina citizens. Further evidence of the industry's needs and ability to serve Medina citizens has been provided through information submitted with the four recent applications for sites that have been filed with the City.

2. PUBLIC LANDS

2.1 Public Lands to Be Available

2.2 Criteria for Use of Public Lands. The use of public lands is permitted, but only where the proposed facilities are consistent with existing uses of the land. Siting of facilities on public lands may be allowed where such siting will eliminate the necessity for siting on or near residential properties. All sites on public land must be approved both by the Planning Commission, through the special use permit process, and by the City Council, through approval of a lease agreement.

2.3 Required Demonstration of Need for Use of Public Lands. Before the use of public lands will be approved, the applicant must demonstrate a need for the proposed facility. In order to establish demonstrated need, the applicant must:

Establish an inability to provide service from available sites in neighboring jurisdictions; and
Establish an inability to provide the service from permitted locations on private non-residential property within the City limits; and
Establish that the facility is primarily designed to provide services to residents of the City and to others while within the city limits of Medina.

2.4 Term of Licenses. Licenses for use of City property for wireless communications facilities shall be annual, with provisions for four annual extensions at then current market values. Following four such extensions, the applicant must apply as if for a new facility.

City Attorney and Staff Comments: In some areas adjacent to the 520 corridor, use of City property should avoid any claim that siting on residential properties is necessary. The avoidance of the use of residential property is the primary consideration for the use of public lands. Short term licenses are suggested. This is in keeping with the practice in the neighboring jurisdiction of Clyde Hill. This will allow the City to require that the best available technology be used on City property. The use of City property will also be governed by the policies contained in Section 4, concealment technology.

3. COMPENSATION FOR USE OF PUBLIC LANDS

3.1 Compensation

3.2 Miscellaneous. It is anticipated that lower leasehold rates may apply to co-applicants who do not require separate or additional support structures such as towers. It is the intent of the City Council that the amount of compensation to be received from any wireless service provider shall not be considered by City staff, the Planning Commission or the City Council in approving or denying an application or lease. It is intent of the City Council that the primary consideration in approving an application for a wireless facility on public land shall be the avoidance of facilities on or near residential properties.

City Attorney and Staff Comments: This section is designed to make it clear that income is not even a consideration for approving or denying an application and that the primary reason for allowing public lands to be used is to avoid the placement on residential properties. Since very little is known about rates charged throughout the country, a survey may be quite useful.

4. CONCEALMENT TECHNOLOGY

4.1 Definition

Examples of available existing technology include wireless facilities which are designed to closely resemble trees, street lights, telephone poles and similar objects. Existing technology also includes the use of small "panel" type antennas concealed behind fiberglass panels. Examples of concealment technology may be found in existing facilities in Medina at the Bellevue Christian School and in proposed facilities to be located in the Town of Clyde Hill by Sprint Spectrum, L.P. Additional concealment technology is available which allows installations to blend into their environment, including the use of existing or new vegetation to screen the facilities from observation from roadways and residences.

4.2 Concealment Technology for Equipment Shelters. All shelters for associated equipment needed for the operation of a proposed facility shall be located within an existing non-residential building or underground. Underground shelters shall not extend more than five inches (5") above the existing surface and shall be completely and immediately screened by approved vegetation. Underground shelters shall not be allowed where their presence would interfere with existing uses of public land, such as in established walking trails in City parks.

4.3 Advances in Technology. All applicants must agree to apply any readily available and applicable advances in technology to all existing facilities. For example, if technology becomes available to reduce or eliminate equipment noise from underground shelters, all facilities which have underground shelters shall put the new technology into effect within three (3) months.

City Attorney and Staff Comments: "Concealment Technology" is another term for what has commonly referred to as "Stealth Technology". Technology is readily available, especially at the maximum heights allowed under our zoning regulations, which will make wireless communication facilities difficult for any but the most sophisticated observers to identify. Significant evidence has been presented before the Planning Commission that wireless facilities which are easily recognized as such have a substantial negative impact on the property values of all residences in their immediate vicinity. Evidence also exists that antennas that are not readily recognizable as antennas have less negative affect on property values. These include the two existing cellular facilities in Medina, one of which is concealed as part of the structure of the Bellevue Christian School and the other one of which is hidden from view.

5. TESTING AND TESTING PROTOCOL

5.1 Testing Required

5.2 Testing Procedures or Protocols. The City Manager is directed to obtain information on testing procedures or protocols and to submit his recommendation for adoption of a specific procedure or protocol. The City Manager's recommendation shall be based upon the availability and efficiency of the various procedures and protocols that he becomes aware of.

5.3 Regulations. All existing and future wireless communications facilities must comply with all regulations imposed by federal law or FCC regulations. In addition, all wireless communications facilities must comply with any state or local laws or regulations now or hereafter adopted.

5.4. Cooperation. Existing and future wireless service providers shall cooperate with the City in performing the testing required by this policy.

City Attorney and Staff Comments: At the present time, the FCC does not measure any radio emissions. They do not even require actual field measurements. Their approval of a facility is based on projections or computer generated estimates of the nature and strength of transmissions. There are a number of existing protocols described in the literature. The most controversial is "Cobb's Protocol". The Cobb's Protocol does appear to be more extensive than required as it seeks to measure all radio frequency transmissions both before and after installation of a facility. A more reasonable testing procedure might be limited to measurement of transmissions at the frequency expected to be generated by the proposed facility. It is anticipated that measurements should be taken both before and after installation of the facility. The policies give discretion to the City Manager to establish appropriate test procedures and to make appropriate changes, from time to time, based upon advice from city consultants, the industry, the Planning Commission or the City Council. It is anticipated that the City will hire a consultant to make recommendations on testing procedures and to do the testing.

6. CO-LOCATION

6.1 Co-Location on Public Lands

6.2 Co-Location on Private Lands. Co-location on private land is encouraged.

City Attorney and Staff Comments: Co-location is generally encouraged. As the Planning Commission has indicated its willingness to consider all applications, even "minor" applications, the review process has not been changed for co-located facilities. The requirement for the use of concealment technology may eliminate the possibility of co-location in the immediate future. Hopefully, future technology will make co-location possible.

7. DURATION OF PERMITS FOR WIRELESS COMMUNICATIONS FACILITIES

7.1 Length

7.2 Considerations Governing Length. In establishing the length of a permit, the Planning Commission may consider all information on this subject provided by the wireless communication provider and all others. The Planning Commission may also require any independent analysis that it deems necessary.

City Attorney and Staff Comments: The duration of wireless permits is a fairly complex issue. Under Medina ordinances prior to 1996, all special use permits were good for an indefinite period of time. Under the 1996 ordinance governing wireless facilities, the duration was set at five (5) years with an indication that any request for renewal would have to demonstrate use of currently available technology. As written, Policy 7.1 would allow the Planning Commission to award permits for periods of as little as one (1) year. This is consistent with permits that are granted in the neighboring town of Clyde Hill. The maximum term of years is consistent with the draft WSDOT policies for facilities in State rights-of-way. Permits for facilities on City property are limited to one year under policy 2.4. Limiting the lengths of terms of licenses will allow the Planning Commission to require the implementation of new technologies as they become available.

8. REQUIREMENT TO DEMONSTRATE NEED FOR FACILITY

8.1 Need for Facility to Provide Service to Medina Residents

8.2 Information Required. All applications shall be accompanied with all information required to establish:

A need for local services;
The methods of design or construction of facilities to be used to provide local service;
Coverage studies demonstrating the design and ability of the proposed facility to provide local services as well as the neighboring or regional facilities with which the proposed facilities will or can communicate.

8.3 Additional Considerations. Applicants may submit applications for facilities which are primarily designed to provide services for persons outside of City limits. All such applications must demonstrate:

The need for the applicant to complete a network of regional services;
The ability of the applicant to provide services to Medina residences using other facilities, either existing or planned, within or without the City limits of Medina;
The inability of the applicant to fulfill the need for the facility with sites available in other jurisdictions.

City Attorney and Staff Comments: Section 8 is a new concept. It is supported by a written opinion from one of the attorneys for the wireless communications division of the FCC. This attorney's opinion is, in essence, that cities are not required to allow facilities which are primarily designed to serve persons or locations outside of the city limits. It is also significant that antennas which are only or primarily designed to provide services to nearby residences will not require the same height as antennas designed to service areas in Bellevue or on the other side of Lake Washington. This policy is also supported by the information provided to us by the industry representatives. At several joint workshops of the Planning Commission and City Council it was repeatedly said that the only reason they would want to site facilities in Medina would be to provide services to Medina citizens and that these facilities were only required due to Medina's topography.

9. PROCESS FOR AMENDMENT OF WIRELESS COMMUNICATION POLICIES

9.1 Initiation of Amendments

9.2 Adoption of Amendments. Any citizen may propose amendments to existing policy, or implementation of additional policy statements, by submitting the proposed amendment to the Medina City Manager. The City Manager shall schedule all proposed amendments for consideration by the Medina Planning Commission which may recommend approval. Only those proposed amendments or additions which are recommended to the City Council by the Planning Commission will be considered for adoption.

City Attorney and Staff Comments: It is anticipated that these policies and the ordinance which will be drafted to reflect these policies will need to be amended from time to time. Policy No. 9.1 allows amendments to be proposed by the Planning Commission or by the City Manager. Consultant recommendations for changes could be forwarded through either the Planning Commission or the City Manager. Policy No. 9.2 makes the Planning Commission a screening agency so that only proposals which make sense to the Planning Commission will be sent on to the Council.

10. SETBACK

City Attorney and Staff Comments: Once again, the need arises for balancing conflicting interests. Those persons who are primarily interested in preserving property values want the greatest setback possible from residential structures, arguing that any wireless antenna, even when using concealment technology, will have a substantial adverse impact on property values for all residences in sight of the facility, or even for all residences in the vicinity of the facility. Those who wish enhanced wireless communications want setbacks that will allow for adequate facilities in their neighborhoods to give them the services they desire. At the request of the Planning Commission and City Council, the staff has attempted to set the maximum setback which will still provide adequate areas for wireless providers to site facilities in locations where they will have the least adverse impact upon the neighboring residences. The proposed five hundred foot (500') setback is a compromise. Although many citizens would argue that it is inadequate, when it is combined with the requirement for the use of concealment technology, we believe that a five hundred foot (500') buffer or setback zone is adequate to protect residential property values.

The wireless industry is expected to argue that the buffer zone eliminates their ability to provide quality services to the citizens of Medina. In recommending this buffer zone, staff has taken into consideration the information presented to the joint City Council/Planning Commission workshops conducted in February and March of 1996. In the workshops, industry representatives indicated a need for facilities to serve the 520 corridor and to serve the Medina "bowl". With a five hundred foot (500') buffer zone, facilities can be located in the central portion of Overlake Golf and Country Club and along the 520 corridor. The facilities along or in the 520 corridor will be shielded from residential views to the north by the thickly forested nature preserve and from residential views to the south by the Bellevue Christian School.

The five hundred foot setback, combined with the use of concealment technology, is designed to substantially reduce the adverse aesthetic impact of antenna facilities.

11. HEIGHT

City Attorney and Staff Comments: Height limitations also involve the balancing of competing interests. Taller towers allow for greater coverage, theoretically reducing the number of towers that might be necessary. On the other hand, taller towers have greater visual impact. They are visible from more areas within the City and are more likely to be recognized for what they are, receiving and transmitting antennas.

When new providers enter a market, they want to seek the highest towers possible in order to give them adequate coverage. Once their system has been developed and they start to acquire new customers, they need additional, shorter facilities to increase capacity. As the customer base grows and more capacity installations are put into place, the initial, taller antennas will cause interference and must be reduced in height. In some areas of the country, especially California, the initial coverage installations have been abandoned in place. Because there is no readily assessable way of knowing whether a facility is in actual operation, even those communities which require the removal of abandoned facilities have been unable to enforce compliance.

12. ASSIGNMENT AND SUBLEASING

12.2 No sublease shall be entered into by any provider until the sublessee has obtained a permit for its facility.

12.3 No potential provider shall be allowed to argue that a permit should issue for an assigned or subleased facility on the basis of any expense incurred in relation to the facility.

City Attorney and Staff Comments: Many of the initial, taller, coverage antennas, rather than being abandoned as discussed in Section 11, have been assigned or subleased to new entrants into the market place or non-competing wireless providers, such as paging companies. Allowing subleases or assignments without requiring that the full permitting process be followed could result in the retention of outmoded coverage facilities. In some cases, it may only be easier or cheaper for a provider to use an existing facility rather than taking advantage of developing technology which might not require the height of the existing facility. Requiring complete review will allow these issues to be considered by the Planning Commission.

13. APPLICATION

13.2 These policies shall apply to both privately and publicly owned land, including land owned by the City, by the State, by utilities and by school districts.

City Attorney and Staff Comments: The Council has clearly stated its intention to apply these policies in the subsequently enacted ordinance to all land within the City. In particular, the 520 corridor which is owned by the State of Washington. Although it is not clear the extent to which local zoning regulations can govern facilities located upon State land, it is the clear intent of the Council to impose such regulations, at least as to wireless facilities, to the greatest extent possible. Such policies as the use of concealment technology and minimum setbacks from residential property will not prevent the State from making reasonable use of its property within the 520 corridor and will not prevent wireless communications providers from being able to site adequate facilities within this corridor.

The Washington State Department of Transportation recently released interim policies for siting wireless facilities on WSDOT properties. The current draft does not address local zoning regulations. A reasonable effort should be made to encourage WSDOT to require compliance with local zoning regulations, at least those which specifically address wireless communications facilities.

14. PERMIT FEES

14.1 Basic Fee

14.2 Applications for Multiple Installations: The City Planning Commission should have the authority to reduce the number of permit fees charged for multiple installations under one application when the installations are deemed "minor". Minor installations shall only include facilities that are exempt from FCC regulations. Minor installations shall only include such installations as the City Planning Commission deems to be insignificant in terms of aesthetic impact upon the surrounding neighborhood.

14.3 Consultants Fees: In addition to the permit fee, the wireless service provider must pay all fees incurred by the City for review of the proposal by City consultants at therate charged by said consultants. The basic fee shall not be deducted from the consultant fees to be paid by the applicant. The applicant may be required, from time to time, to pre-pay an estimated fee for consultants' charges.

City Attorney and Staff Comments: The fee for the application is designed to recoup the past and future costs incurred by the City in regulating wireless facilities. This includes the cost of preparing past and future policies, regulations and ordinances. Because of the quickly developing technology in this area, the usual sources of information relied upon by the City are often months or years behind. The City has incurred substantial expenses to date and is likely to incur substantial expenses in the future in regulating wireless communication facilities. The City's expenditures have been greater than they should have been due to the failure of some of the applicants before the City to provide the City with accurate and reliable information. This has caused the need for City consultants to research available technology in order to evaluate the actual need for some of the proposals sought to be sited within the City. The amount of the basic fee proposed by the staff may well be less than one half of the amount necessary to recoup past and future charges incurred by the City.

The City Manager has estimated that new applicants would have to pay a fee ranging from $5,000 to $7,500 in order for the City to recoup its past and anticipated costs, based on the estimated number of applicants. We have chosen to begin by charging at the lower end of that range. Staff will recommend changes if the fee proves to be either inadequate or excessive. Fees greatly in excess of $5,000 are being charged around the nation.

The City has been approached by one provider, Metricom, seeking permission to locate relatively small antenna facilities on light posts. Metricom indicated that it would need six to eight installations to adequately serve the entire City. As the cumulative aesthetic impact of these facilities may be less than a single free standing facility, we are recommending that the Planning Commission be authorized to just charge one license fee for all of the facilities sought under a single application. It is not intent of these policies to allow more than one facility to be licensed under the single application unless they are deemed to be minor facilities by both the FCC and the City Planning Commission.

The policy proposes to charge actual consulting costs incurred by the City in addition to the basic fee. This would only include consulting costs that are directly related to a particular application. This is consistent with the City'sgeneral policy for land use application fees. The City attempts to keep the application fee at a minimum and adds to the application fee actual costs incurred from consultants, including the City Planner, the City Engineer and City Attorney. Applicants who submit complete applications with all necessary reporting data will incur relatively minor consulting costs. It is the applicants who submit incomplete applications and incorrect data that will incur more substantial consulting costs. This appears more fair than just increasing the basic fee to an amount that would include all consulting costs forcing those who submit complete applications to pay a portion of the consulting costs generated by those who submit incomplete applications.

15. SAVINGS CLAUSE

ADOPTED by the Medina City Council this 14th day of April, 1997.

___________________________
Susan Potts, Mayor Pro Tem

Attest:

___________________________
Woody Edvalson, City Clerk

Approved as to form:

____________________________
Kirk R. Wines, City Attorney

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Medina Wireless Communications Facilties Siting Policies April 14, 1997

Medina Wireless Communications Facilties Siting Policies
April 14, 1997