Dover Wireless Ordinance

City of Dover, Idaho

[DRAFT] EMERGENCY ORDINANCE ZONING REGULATIONS (TITLE 12) CHAPTER 7 AND APPENDIX D REGARDING WIRELESS [TELE]COMMUNICATION FACILITIES /CELL TOWERS

Ordinance No. ______________

Wire America: Please see recommended additions and deletions. Analysis from Mar 18, 2023.

TITLE: AN ORDINANCE OF THE CITY OF DOVER, A MUNICIPAL CORPORATION OF THE STATE OF IDAHO, AMENDING DOVER CITY CODE, TITLE 12 (DOVER ZONING REGULATIONS), CHAPTER 7, STANDARDS FOR SPECIFIC USES, AND APPENDIX D, DEFINITIONS, TO PROVIDE AN APPLICATION PROCESS, STANDARDS, PROCEDURES FOR REVIEW, PERMITTED LOCATIONS, AND DEFINITIONS FOR WIRELESS COMMUNICATION FACILITIES; AND PROVIDING A SAVING CAUSE, SEVERABILITY AND A DECLARATION OF AN EMERGENCY, ALLOWING FOR THIS ORDINANCE TO BE IMMEDIATELY EFFECTIVE UPON ADOPTION.

Whereas, the Constitution of the State of Idaho, Article XII, Section 2, the Idaho Local Land Use Planning Act, Title 67, Chapter 65, and the Idaho Municipal Corporations Title 50, Chapters 3 and 9 provide authority for the City of Dover to adopt ordinances establishing land use standards, procedures, and uses; and

Whereas, Idaho Code §67-6523 authorizes the governing board to enact an emergency ordinance when it finds that an imminent peril to the public health, safety, or welfare exists; and

Whereas, the City of Dover (City) finds that an imminent peril to public health, safety, or welfare exists that requires the immediate adoption of an ordinance regarding wireless communication facilities for the following reasons:

  1. The City is aware that a wireless communication facility (cell tower) is being contemplated for location within the city limits and that such a use is a new, unexpected land use that is not a listed use within the City’s zoning regulations.
  2. As an unlisted land use, there are no established standards to protect the public’s health, safety, or welfare , such as: setbacks to protect the public should a tower collapse; adequate security fencing of the facility; tower height; safe “fall zones” to protect the public from failures in the equipment; lighting that doesn’t harm adjacent property owners; protection from noise; neighborhood noticing of the proposed use; airplane flight path lighting; buffering from adjacent uses; tower construction and permitting standards.
  3. The emergency ordinance will allow the City to put in place adequate standards, public noticing, and permitting standards while giving the community sufficient time to consider the effects of wireless communication facility development for the long-term.

Whereas, Section 67-6518 of the Local Land Use Planning Act authorizes each governing board to adopt standards, including building design, setbacks, and other public and private development; and

Whereas, the City conducted a public meeting on an abbreviated agenda notice, as authorized by Idaho Code §67-6523, to consider the emergency ordinance, and voted to approve/deny the proposed ordinance as written or as amended.

Now therefore,

Be it ordained by the Mayor and City Council of the City of Dover, Bonner County, Idaho as follows:

Section 1. Adoption.

Part A: Definitions

The following definitions are hereby added to Appendix D, “Definitions” of Title 12, Dover City Code, to read as follows:

ANTENNA: An apparatus, including wires, poles, rods, dishes, or other similar devices, designed to transmit or receive radio frequency (RF) signals for wireless communication, to be operated or operating from a fixed location pursuant to Federal Communications Commission (FCC) authorization, for the provision of personal wireless service and any commingled information services.

ANTENNA ARRAY: Two or more devices used for the transmission or reception of radio frequency signals, microwave or other signals for personal wireless service commercial communications purposes.

WIRELESS [TELE]COMMUNICATION FACILITY, (WTF): The collective components of an unstaffed facility and its support structures for the transmission and/or reception of radio frequency, [microwave radiation] or other signals for commercial communication personal wireless service purposes, including towers, antennas, antenna arrays, equipment shelters, equipment cabinets, transmission cables, a support structure required to generate, transmit, or , [receive radio frequency microwave radiation for personal wireless service] communication signals.

CELL TOWER: A free-standing structure that is attached to the ground, a rooftop, or other structure that is used for the installation and operation of wireless communication facilities, including monopoles, lattice towers, guy-wire supported towers, or other similar structures.

CO-LOCATION OR CO-LOCATE: The addition or installation of new equipment to an eligible, preexisting wireless [ tele ]communications structure or facility to allow service by a different provider than the original developer of the site WTF so that a new support system is not required.

MINIMUM FUNCTIONAL HEIGHT: Minimum height necessary for a [ WTF ] to function satisfactorily.

PROVIDER: An entity or person that builds, installs, or operates the WTF for personal wireless service communication or wireless service.

TOWER, CELLULAR, WIRELESS: Any structure built or placed for the sole or primary purpose of supporting a wireless [ telecommunications ] facility, such as a self-supporting tower/monopole; a lattice tower, or guyed-wire tower.

Part B: Applicability, Standards and Procedures

There is hereby added to Title 12, Dover City Code, Zoning Regulations, Chapter 7, Standards For Specific Uses, a new Section 12-7-6, “Wireless [ Tele ]communications Facilities [ WTF ],” which shall read as follows:

12-7-6: WIRELESS [ TELE ]COMMUNICATION FACILITIES:

A. Purpose: The purpose of this section is to provide standards and a process for the consideration of applications for wireless [tele]communication facilities to:

  1. Protect property rights [ and property values ];
  2. Protect public health, safety, and welfare by regulating the siting of wireless [tele]communication facilities;
  3. Establish adequate safety standards for the placement, construction, modification and operations and use of [tele]communication facilities.
  4. Address visual impacts upon the City, located along the designated Panhandle Historic Rivers Passage Scenic Byway and within a unique natural setting;
  5. Minimize impacts of wireless [tele]communication facilities of surrounding properties by setting standards for placement, structure safety, construction, modification, operations and compatibility with nearby lands;
  6. Encourage location of facilities on existing structures to reduce visual impact, public safety, and the environment.

B. Applicability: The standards of this section shall apply to the development, installation, construction, or modification of Wireless [Tele]Communication Facilities (WCF WTF ) and including new, replacement, or modified facilities; amateur radio towers; co-location of existing towers or new support cabinets or equipment shelters.

C. Exemptions: The following are exempt from this section, unless otherwise specifically addressed:

  1. Non-commercial amateur radio towers or antennas that are less than fifty feet (50’) tall.
  2. A government-owned tower or emergency beacon placed or required by local, state, or federal agencies.
  3. Regular maintenance of existing WCF WTF that does not include any additional antenna, equipment or shelter expansion, or other additional equipment.
  4. A residential or commercial wireless internet or television antenna or dish for sending and receiving signals that is located at its point of use.

D. Prohibited: Allowed Zones: Wireless [tele]communication towers facilities shall not be permitted only in Residential, Suburban, Commercial and Agricultural zoning districts [to be specified].

E. Permits Required: The following permits shall be required for the development, installation, construction, or modification of WCF WTFs, including new, replacement, modifications, or colocation of facilities and new or expanded support cabinets or equipment shelters:

  1. Where permitted by the zoning district, special use permits are required for all new, expanded, or modified facilities, except as provided in subsection 12-7-6-E2. Any proposed co-location facility that does not meet the criteria for an administrative permit shall require a special use permit.
  2. Administrative zoning permits are required for all proposed co-location facilities. To be eligible for the administrative permit, the proposed co-location facility shall:
    • a. Be proposed for an existing, lawfully permitted structure or a legal, nonconforming facility;
    • b. Not extend beyond the height of the existing support structure;
    • c. Not expand the existing lease or property boundaries for the facility;
    • d. Not expand the equipment shelter or equipment cabinets.
  3. Administrative encroachment permits shall be required for all facilities, where permitted, that are proposed within the public rights-of-way.

F. Applications: An application for a facility governed by this section shall be completed on a form provided by the City for the type of application listed in Section 12-7-6 E. The application and fee established by the official fee schedule shall be submitted to the city clerk. The application shall contain the minimum requirements for the applicable special use permit or administrative applications, in addition to the following:

  1. Detailed construction drawings showing the proposed facility and support structures, including structure footprint and height, antenna and antenna array placement, and dimensions.
  2. A structural report performed by an Idaho-licensed engineer certifying the pole, tower, or other structure can support the proposed facility in accord with applicable codes and standard engineering practices.
  3. Visual depictions, photographs, or representations of the proposed facility from multiple vantage points showing pre- and post-construction views, detailing any buffering, camouflage, paint colors, vegetation, or other measures to screen the facility. Include proof that the facility will be configured and located in a manner that shall minimize adverse effects including visual impacts on adjacent properties.
  4. Substantial written evidence in the form of a spreadsheet of the past 12-months of wireless providers’ anonymized records of individual calls, both completed and dropped calls, in the target search ring of the proposed WTF to establish if a significant gap in telecommunications coverage exists. If no significant gap in telecommunications coverage exists, then the application will be denied based on that finding. Also a full report prepared and stamped by a professional engineer with radio frequency analysis expertise that demonstrates, the need for the proposed WTF and proof that no other existing WCF WTF can meet the need. The applicant shall demonstrate through a narrative and graphic depiction that alternative locations, configurations, and facility types have been examined and the results of those findings. The application shall include a map of wireless service coverage or lack thereof, substantiated by actual signal strength measurements, in decibel-Milliwatt (dBm) units, of all frequencies already reaching the target search ring for the proposed WTF for the vicinity and the effect of the proposed facility on that measured signal strength coverage for every frequency that reaches the target search ring to ensure that no frequency would transmit higher than -85 dBm to areas accessible to people.
  5. A report prepared and stamped by an Idaho-licensed professional engineer confirming compliance with FCC standards for emissions as set forth in the current Code of Federal Regulations and confirming compliance with Title 47 U.S. Code § 324: – Use of Minimum Power: “In all circumstances . . . all radio stations. . . shall use the minimum amount of power necessary to carry out the communication desired.” The communication desired is personal wireless service, as defined in U.S. Code Title 47 § 322(7)(c)(C)(i) and the minimum power is no higher than -85 dBM in areas accessible to people. The report shall also demonstrate the proposed facility will not exceed the maximum permissible exposure level to the general public and will remain in compliance with FCC guidelines, as amended by future FCC work in response to U.S. Court of Appeals D.C. Cir. mandates in Case No. 18-1129: United Keetoowah Band of Cherokee Indians v. Fed. Commc’ns Comm’n, 933 F.3d 728 (D.C. Cir. 2019) and Case No. 20-1025: Envtl. Health Tr. v. Fed. Communications Comm’n, 9 F.4th 893 (D.C. Cir. 2021).
  6. Any additional information deemed necessary by the zoning administrator for a thorough review of the proposed development.
  7. WTF applications will be complete once the applicant provides substantial written evidence that the FCC has completed the US Court of Appeals, D.C. Cir mandates in the following two D.C. Cir. rulings:
    • a. Required FCC environmental analysis prior to the Wireless industry adding any additional WTF deployments, per Case No. 18-1129: United Keetoowah Band of Cherokee Indians v. Fed. Commc’ns Comm’n, 933 F.3d 728 (D.C. Cir. 2019). The ruling in Case No. 18-1129 vacated portions of the FCC Order 18-30 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Second Report and Order. The DC Cir. judges wrote: “We conclude that it impossible on this record to credit the claim that small cell deregulation will ‘leave little to no environmental footprint.’ Order ¶ 41. The FCC anticipates that the needed ‘densification of small deployments over large geographic areas,’ id., could require 800,000 deployments by 2026, FCC, Declaratory Ruling & Third Report & Order, FCC 18-133 ¶ 126 (Sept. 26, 2018). The FCC failed to assess the harms that can attend deployments that do not require new construction, particularly the cumulative harms from densification. . . We conclude that the FCC fails to justify its conclusion that small cells ‘as a class’ and by their ‘nature’ are ‘inherently unlikely’ to trigger concerns. By ignoring the extent to which it had already streamlined review, the Commission overstated the burdens of review . . . The Commission fails to explain why the categorical exclusions in place did not already minimize unnecessary costs while preserving review for deployments with greater potential environmental impacts . . . We hold that the Order’s deregulation of small cells is arbitrary and capricious because its public-interest analysis did not meet the standard of reasoned decision making.”
    • b. Required FCC environmental analysis prior to the Wireless industry adding any additional WTF deployments, per Case No. 20-1025: Envtl. Health Tr. v. Fed. Communications Comm’n, 9 F.4th 893 (D.C. Cir. 2021). The ruling in Case No. 20-1025 vacated portions of the Dec 2019, FCC Order 19-126 Targeted Changes to the Commission’s Rules Regarding Human Exposure to Radiofrequency Electromagnetic Fields. The DC Circuit judges ruled the following in Case 20-1025: “we grant the petitions in part and remand to the Commission to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radio-frequency [microwave] radiation. It must, in particular, (i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines, (ii) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and (iii) address the impacts of RF radiation on the environment.”

G. Design Standards: Wireless [Tele]communication Facilities are subject to the following minimum standards:

  1. Security fencing: An opaque fence or masonry wall no taller than seven feet (7’) tall from finished grade shall be provided around the perimeter of all development areas for ground-mounted wireless [tele]communication facilities and support facilities. If a fence will enclose the site, the fence shall be constructed of wire mesh, metal picket, or an alternative material approved by the zoning administrator. Access to the development area shall be through a locked gate.
  2. Tower height: Towers shall be designed to Minimum Functional Height but not to exceed no shorter than two hundred feet (200’) in height, as measured from the base of the structure to the highest feature of the tower. Applicants must submit documentation justifying the total height. The applicant shall demonstrate that the facility is the minimum height necessary in order for the facility to meet its intended function in the applicant’s system and to provide reliable service. This shall be done through the testimony of a radio frequency design engineer.
  3. Setbacks: The base of a tower shall not be any closer to any property line than a distance equal to twice the height of the tower.
  4. Landscaping/buffering: Landscaping and buffering shall be required around the perimeter of development areas, unless waived by the City as part of the permitting process due to existing buffering features, such as berms, walls, or other buffers. Existing vegetation may be used to meet landscaping requirements, subject to approval by the decision makers for the respective permit. Landscaping shall be designed in accord with the buffering and landscaping requirements of this title and placed in a manner so as to minimize the views of the WCF WTF from residential areas.
  5. Visibility: Antennas and related service equipment mounted on a service tower shall be mounted as close to the tower as possible. All antennas, antenna arrays, transmission lines, equipment enclosures or other ancillary equipment for WCF WTF that are located on existing structures in order to conceal them, such as flagpoles, light standards, church steeples, bell towers, clock towers, or similar facilities, shall not be positioned in such a way that they are readily identifiable from the public domain as wireless [tele]communication equipment. Design for the proposed concealment shall be included in the permit application.
  6. Camouflage: In order to protect the scenic qualities of the community, the provider is required to provide a design and install features to conceal the facility that are compatible with the existing structure or surrounding natural terrain. To meet this design standard, there shall be as little contrast as possible between the [tele]communications equipment and the structure or natural terrain. A determination of appropriate concealment design shall be based on the proposed location and environment, as determined by the governing body or zoning administrator who is charged with permit approval. If the provider proposes the use of artificial trees or vegetation, they shall approximate the features of trees native to Bonner County. The artificial vegetation shall provide sufficient branching, foliage and height to conceal antenna, panels, and any other tower equipment and shall be colored to simulate the native vegetation. Artificial branches shall be applied to the tower in a multi-dimensional pyramid shape pattern to the top of the tower, with branches and foliage material in variable length, width and depth sufficient to obscure physical view of the tower, antenna elements and brackets. As an alternative to the constructed camouflage features, the provider may propose to use existing tree cover to conceal the tower, and shall demonstrate to the satisfaction of the decision makers that the vegetative coverage is sufficient to conceal the tower. Provisions to retain the vegetation or replace it in the event of loss shall be included in the design plans.
  7. Lighting: Towers shall be illuminated only when required and in accordance with Federal Aviation Administration requirements to provide aircraft obstruction lighting. All other on-site lighting required for security or emergency purposes shall be in accordance with local fire district and City standards.
  8. Rights-of-way: Towers, ground-mounted equipment and equipment shelters shall not be located within the public right-of-way unless granted by the City through an approved encroachment permit.

H. Procedures: The process for consideration of the WCF WTF permit, as provided in this subsection, shall be in accord with the following:

  1. Special Use Permits. Those facilities requiring special use permits are subject to the procedures of Chapter 10 of this title. In addition to the conditions and standards of Chapter 10, the governing body shall also determine whether the proposal is in compliance with standards of this subsection.
  2. Administrative Zoning Permits. Those facilities requiring an administrative zoning permit are subject to the procedures of section 12-3-19 of city code. The noticing requirements of section 12-3-19 D shall not apply.
  3. Encroachment permits. Those facilities proposed for location within the public rights-of-way are subject to the procedures of title 7, chapter 1 of city code.

I. Conditions of Approval: In addition to the conditions that may be imposed by the respective type of permit, the governing body may impose conditions, including, but not limited to the following:

  1. Substantial written evidence of current dBm signal strength measurements of every frequency that is currenty being transmitted to the WTF’s proposed target search ring to prove that the following exists: a significant gap in personal wireless service = a significant gap wireless telecommunications service = the inability to make an outdoor wireless phone call in most places for the wireless carrier(s) seeking to operate on the WTF.
  2. Proof of the FAA compliance form, where applicable.
  3. Modifications to size or setbacks to fit particular sites or situations.
  4. Secure access to the site.
  5. Adjustments to limit obstructions of view or compatibility to surroundings.

J. Abandonment: Any WCF WTF that has been damaged, destroyed, or ceases to be used for [tele]communication purposes for a period exceeding one year shall be considered abandoned and deemed a nuisance. Upon abandonment of a WCF WTF , the landowner shall remove the facility with all supporting equipment, apparatus, and foundation. If the landowner fails to remove the abandoned structure, the City is authorized to seek civil or criminal remedies as provided by this code to obtain abatement.

K. Prohibited Uses: WCF WTF shall not be used for signage, symbols, flags, banners or other devices or objects attached to or painted or inscribed upon any [tele]communication facility for the purposes of displaying a message of any kind, except as required by a governmental agency.

Section 2. Saving Clause.

All ordinances repealed by this ordinance shall remain in force to authorize the enforcement, arrest, prosecution, conviction, or punishment of a person who violated said ordinances prior to the effective date of this Ordinance.

Section 3. Severability.

The sections of this ordinance are severable. The invalidity of a section shall not affect the validity of the remaining sections.

Section 4. Effective date.

This ordinance shall be in full force and effect immediately upon the date approved by the City of Dover (“Effective Date”) and shall remain in full force for one hundred eight-two (182) days as an emergency ordinance.

This ordinance passed under suspension of rules and duly enacted as an ordinance of the City of Dover, Idaho on this ____________________, 2023 upon the following roll call vote:

ROLL CALL:

Council Member Parkin

Council Member Hoffman

Council Member Glass

Council Member Bledsoe