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HomeMy WebLinkAboutcoa.lu.ca.Wireless Communication.1998 , 1 ,-.., o TO: MEMORANDUM fli:-CEJ'lE.'O '.. , RECEIVED The Mayor and City Council V SEP It \99& .NT. . ~S, ...;.,' r 21998 Amy Margerum, City Manager 'UNIH G~vccvPI\IIE John Worcester, City Attorney . ASPEN / PITKIN Stan Clauson, Community Development Direc or COMMUNiTY DEVELOPMENT Mitch Haas, Planner~ Code/Text Amendments ._- Wireless Telecommunication Services Facilities and Equipment ---- Second Reading of Ordinance No. 34, Series of 1998. THRU: FROM: RE: DATE: August 24, 1998 Summary: Staff is requesting approval of a series of code amendments which would add a new section (Section 26.40.120) to regulate the development and maintenance of wireless telecommunication services facilities and equipment. The amendments have been drafted to comply with Section 704(a) of the 1996 Federal Communication Act, and would be added to Chapter 26.40, Supplementary Regulations. In addition, this amends Section 26.04.100, Definitions, by adding a definition for "wireless telecommunication services facilities and/or equipment," and amends the definitions of "public facilities," essential services," and "satellite dish antenna or satellite radio frequency signal reception and/or transmission device." Also affected are Section 26.40.11 0, Satellite dish antennas, and Section 15.04.470, Radio Interference Prohibited, of Chapter 15.04, Miscellaneous Offenses and Penalties. These changes include provisions for ameliorating claims of interference caused by wireless telecommunication services facilities or equipment. Staff and the Planning and Zoning Commission recommend City Council approve the proposed amendments. Due to the nature of the wireless telecommunications industry and the limitations set by the Federal Telecommunications Act of 1996, local government regulations pertaining to this industry are inherently and necessarily technical, complex, and lengthy. The IMLA (International Municipal Lawyers Association) has put out a model wireless telecommunications ordinance that is nine (9) pages long with two columns of regulations on each page. Staff has received wireless telecommunications ordinances from more than six other jurisdictions, and these ordinances range from eight to seventeen pages in length. Staff has solicited input from and review of the proposed regulations by industry representatives, including Western Wireless, AirTouch Cellular (US West), and AT&T Wireless. The companies the proposed regulations would apply to, such as those mentioned above, all maintain staff with expertise in working with local governments and local regulations and are prepared to deal with complicated and complex regulatory schemes. The feedback from the consulted industry representatives included statements such as, "On a whole, I believe this is fair and reasonable. . . It identifies and upholds community standards, particularly regarding aesthetics, and . . . should allow the wireless telecommunications industry to construct service systems that meet the needs of residents, businesses and visitors in Aspen." Thus, it can be concluded that the regulated industry is comfortable with the proposed code amendments, and the amendments are not overly technical, lengthy or onerous. ' Background: The term "wireless telecommunication services facilities and equipment" refers to a family of communication devices that can send and receive messages instantly... by voice in the , ,-.... ,......" case of cellular telephones or alphanumerically in the case of pagers. Soon too, computer users will be able to send and receive data via wireless modems. One of the newer forms of wireless voice communication is personal communication services (PCS), which are similar to traditional cellular technology in that they are wireless, but PCSs operate on a network of smaller cells and use a lower frequency in the spectrum to transmit data. PCSs require twice as many communication facilities. In the past, the telecommunications industry was closely regulated by the Federal Communications Commission and its impacts were rarely considered a local concern. Now that many telecommunications carriers have been deregulated, and new markets have been created with the issuing of more licenses and spectrum space, communities need to take a more proactive approach to regulation. To better understand the need for local governments to be proactive in addressing wireless telecommunications, it is helpful to consider the ever increasing demand for these services. For instance, the American Planning Association's magazine publication, Planning, stated in its "Wireless World" article (December, 1996) that "Original estimates predicted fewer than a million subscribers by 2000. But by 1990, the cellular industry had attracted over 10 million customers." Planning magazine conducted a survey regarding applications to local governments for wireless telecornmunication services facilities and equipment and reported (July, 1997) "a gradual increase in cellular tower applications until 1994, when they practically doubled. The number continued to rise until last year. Meanwhile applications for personal communications services (PCS) were also rising; in 1996, they overtook traditional cellular applications." While demand continues to rise, the need for proactive approaches from local governments is further exacerbated by the Federal Telecommunications Act of 1996, which lays out the ground rules for industry and local government in the area ofland-use law. Section 704(a) ofthe 1996 Act puts local authorities (states and local governments) in control of the placement, construction, and modification of personal wireless service facilities; however, the Act sets forth four (4) significant limitations as follows: · Flat refusals to grant permit applications are no longer allowed as local governments "shall not prohibit or have the effect of prohibiting the provision of personal wireless services;" · Requests for permission to build must be acted on promptly, or within a "reasonable period of time," and any decision by a local government to deny an application for such facilities must be "in writing and supported by substantial evidence contained in a written record;" · Regulations are forbidden from favoring one sort of wireless service provider over another; and, . Local governments are prohibited from regulating such facilities on the basis of the environmental effects ofradio frequency (electromagnetic frequencies - EMF) emissions so long as the facilities comply with the Federal Communication Commission's (FCC) regulations concerning such emissions. It has been said that "seemingly nothing raises the ire of local citizens more than a tower facility application at or near a residential area, a high-end commercial district, or a quaint historic town square (R. Todd Hunt, Municipal Lawyer, May/June, 1997)." The most common objections cited by citizens include concerns that the towers and antennas are a visual blight, a threat to property values, and a health concern. The City of Aspen's code, as it currently exists, does not address wireless telecommunication services facilities and equipment. The purpose ofthe proposed amendment is to ensure that such facilities and equipment are designed in such a way as to provide functional operation for the provider and protect the safety, aesthetics, and character of Aspen's neighborhoods. 2 1"""'\. .~ TEXT AMENDMENTS: 1. Section 26.40.120, Wireless Telecommunication Services Facilities and Equipment. The Community Development Department proposes to add a new Section to the Aspen Land Use Code. The new section would be entitled Section 26.40.120, Wireless Telecommunication Services Facilities and Equipment, and would be added to the end of Chapter 26.40, Supplementary Regulations. This proposed section would include the following sub-sections: (A) Intent and Purpose; (B) Applicability; (C) Procedure; (D) Application; (E) General Provisions and Requirements; and, (F) Review Standards. The proposed code section would read as follows: 26.40.120 Wireless Telecommunication Services Facilities and Equipment A. Intent and Purpose. To provide design standards for cellular communication facilities in order to ensure their compatibility with surrounding development. The unique and diverse landscapes of the City of Aspen are among its most valuable assets. Protecting these assets will require that location and design of wireless communication services facilities and equipment be sensitive to, and in scale and harmony with, the character of the community. The purpose of these regulations is to provide predictable and balanced standards for the siting and screening of wireless telecommunication services facilities and equipment on property within the jurisdiction of the City of Aspen in order to: I. Preserve the character and aesthetics of areas which are in close proximity to wireless telecommunication services facilities and equipment by minimizing the visual, aesthetic and safety impacts of such facilities through careful design, siting and screening; 2. Protect the health, safety and welfare of persons living or working in the area surrounding such wireless telecommunication services facilities and equipment from possible adverse environmental effects (within the confines of the Federal Telecommunications Act of 1996) related to the placement, construction or modification of such facilities; 3. Provide development which is compatible in appearance with allowed uses of the underlying zone; 4. Facilitate the City's permitting process to encourage fair and meaningful competition and, to the greatest extent possible, extend to all people in all areas of the City high quality wireless telecommunication services at reasonable costs to promote the public welfare; and, 5. Encourage the joint use and clustering of antenna sites and structures, when practical, to help reduce the number of such facilities which may be required in the future to service the needs of customers and thus avert unnecessary proliferation of facilities on private and public property. B. Applicability. All applications for the installation or development of wireless telecommunication services facilities and/or equipment must receive building permits, prior to installation. Prior to the issuance of appropriate building permits, wireless telecommunication services facilities and/or equipment shall be reviewed for approval by the Community Development Director in conformance with the provisions and criteria of this Section (26.40.120). Wireless telecommunication services facilities and equipment subject to the provisions and criteria of this Section include cellular telephone, paging, enhanced specialized mobile radio (ESMR), personal communication services (PCS), commercial 3 ~ ,r'\, mobile radio service (CMRS), and other wireless commercial telecommunication devices and all associated structures and equipment including transmitters, antennas, monopoles, towers, masts and microwave dishes, cabinets and equipment rooms. These provisions and criteria do not apply to non-commercial satellite dish antennae, radio and television transmitters and antennae incidental to residential use. All references made throughout this Section, 26.40.120, to any of the devices to which this Section is applicable, shall be construed to include all other devices to which this Section, 26.40.120, is applicable. C. Procedure. Pursuant to Section 26.52.020, the applicant shall conduct a pre-application conference with staff of the Community Development Department. The planner shall then prepare a pre-application summary describing the submission requirements and any other pertinent land use material, the fees associated with the review(s), and the review process in general. After the pre-application summary is received by the applicant, said applicant shall prepare an application for review and approval by staff and the Community Development Director, respectively. In order to proceed with additional land use reviews or obtain a Development Order, the Community Development Director shall find the submitted development application consistent with the provisions, requirements and standards of Section 26.40.120. The Community Development Director may apply reasonable conditions to the approval as deemed necessary to insure conformance with applicable review criteria. If the Community Development Director determines that the proposed wireless telecommunication services facilities and equipment does not comply with the review criteria and denies the application, or the applicant does not agree to the conditions of approval determined by the Community Development Director, the applicant may apply for conditional use review by the Planning and Zoning Commission and such application must be made within fifteen (15) calendar days of the day on which the Community Development Director's decision is rendered. Proposals for the location of wireless telecommunication services facilities or equipment on any historic site or structure, or within any historic district shall be reviewed by the City's Historic Preservation Commission (HPC). Review of applications for wireless telecommunication services facilities and/or equipment by the HPC shall replace the need for review by the Community Development Director. Likewise, if the Historic Preservation Commission determines that the proposed wireless telecommunication services facilities and equipment does not comply with the review criteria and denies the application, or the applicant does not agree to the conditions of approval determined by the Historic Preservation Commission, the applicant may appeal the decision to the City Council and such appeal must be filed within fifteen (15) calendar days of the day on which the Historic Preservation Commission's decision is rendered. All appeals shall require public hearings, and shall be noticed by the applicant in accordance with Section 26.52.060(E)(3)(a), (b), and (c) of the Municipal Code. A building permit application cannot be filed unless and until final land use approval has been granted and a Development Order has been issued. When applying for building permit(s), the applicant shall submit a signed letter acknowledging receipt of the decision granting land use approval and his/her agreement with all conditions of approval, as well as a copy of the signed document granting the land use approval for the subject building permit application. 4 1"""'\ ,-., D. Application. An application for approval of new, modified or additional wireless telecommunication services facilities and/or equipment shall comply with the submittal requirements applicable to conditional use reviews pursuant to Chapter 26.52, Common Development Review Procedures, and Chapter 26.60, Conditional Uses, of the Aspen Municipal Code. Also, wireless telecommunication services facilities and equipment applications shall contain at least the following additional information: 1. Site Plan or plans drawn to a scale of one (I") inch equals ten (10') feet or one (I") inch equals twenty (20') feet, including before and "after" photographs (simulations) specifYing the location of antennas, support structures, transmission buildings and/or other accessory uses, access, parking, fences, signs, lighting, landscaped areas and all adjacent land uses within one-hundred fifty (150') feet. Such plans and drawings should demonstrate compliance with the Review Standards of this Section (26.40.l20(F)). 2. Site Improvement Survey including topography and vegetation showing the current status; including all easements and vacated rights of way, of the parcel certified (wet ink signed and stamped, and dated within the past twelve (12) months) by a registered land surveyor, licensed in the State of Colorado. 3. Landscape Plan drawn to a scale of one (I") inch equals ten (10') feet or one (I") inch equals twenty (20') feet, including before and "after" photographs (simulations) indicating size, spacing and type of plantings, and indicating steps to be taken to provide screening as required by the Review Standards of this Section (26.40.l20(F)(5)). The landscape planes) shall also indicate the size, location and species of all existing vegetation and whether each of those indicated are proposed for removal (indicate proposed mitigation), relocation (indicate from and to), or preservation. The planner can determine if a landscape plan is necessary; for instance, when an antenna is to be attached to a building, this requirement may be waived. 4. Elevation drawings or before and "after" photographs/drawings simulating and specifying the location and height of antennas, support structures, transmission building(s) and/or other accessory uses, fences, and signs. 5. Lighting plan and photometric study indicating the size, height, location and wattage of all proposed outdoor lighting sources. This study must also include a graphic indicating the spread and degree/intensity of light from each source/fixture. This requirement can be waived by the Community Development Director if little or no outdoor lighting is proposed. 6. Structural Integrity Report from a professional engineer licensed in the State of Colorado documenting the following: a. Tower height and design, including technical, engineering, economic, and other pertinent factors governing selection of the proposed design; b. Total anticipated capacity of the structure, including number and types of antennas which can be accommodated; c. Failure characteristics of the tower and demonstration that site and setbacks are of adequate size to contain debris in the event of failure; and, d. Specific design and reconstruction plans to allow shared use. This submission is required only in the event that the applicant intends to share use of the facility by subsequent reinforcement and reconstruction of the facility. 7. FAA and FCC Coordination. Statements regarding the regulations of the Federal Aviation Administration (FAA) and the Federal Communications Commission (FCC), respectively, that: a. (Required only if the facility is near an airfield) the application has not been found to be a hazard to air navigation under Part 77, Federal Aviation, Federal Aviation Regulations, or a statement that no compliance with Part 77 is required, and the 5 ~ .~ reasons therefor. A letter from the Sardy Field Airport Administrator will also be required if the Community Development Director determines that the proposed facility may impact airport operations; . b. (Required of all wireless telecommunication services facility or equipment applicants) the application complies with the regulations of the Federal Communications Commission with regard to maximum radio frequency and electromagnetic frequency emissions, or a statement from the applicant that no such compliance is necessary, and the reasons therefor. 8. Evidence that an effort was made to locate on an existing wireless telecommunication services facility site including coverage/ interference analysis and capacity analysis and a brief statement as to other reasons for success or no success. 9. Written documentation in the form of a signed affidavit demonstrating a good faith effort in locating facilities in accordance with Site Selection Order of Preference outline below in Section 26.40.120(E)(2). 10. All companies and providers of wireless telecommunication service facilities and equipment within the City shall, during their pre-application conference for a new facility, be prepared to verbally outline, to the best of current knowledge, a master or long-term plan for all proposed sites within a three-mile radius ofthe City. In particular, companies and providers should be prepared to discuss their need for the proposed site and how it fits into their existing and proposed coverage grids. E. General Provisions and Requirements. The following provisions apply to all wireless telecommunication services facilities and equipment applications, sites, and uses. 1. Prohibitions. Lattice towers (a structure, with three or four steel support legs, used to support a variety of antennae; these towers generally range in height from 60 to 200 feet and are constructed in areas where great height is needed, microwave antennas are required, or where the weather demands a more structurally-sound design) are prohibited within the City of Aspen. Towers (support structures) shall be prohibited in the following zone districts: Medium- Density Residential (R-6); Moderate-Density Residential (R-15, R-15A, R-15B); Low- Density Residential (R-30); Residential Multi-Family (RIMF, R1MFA); and, Affordable Housing/Planned Unit Development (AH-IIPUD). All wireless telecommunication services facilities and equipment not prohibited by the preceding statements shall be allowed in all other zone districts. subject to review and approval by the Community Development Director pursuant to the provisions, requirements and standards of Section 26.40.120, including consistency with the dimensional requirements of the underlying zone district. 2. Site Selection. Wireless communication facilities shall be located in the following Order of Preference: First: On existing structures such as buildings, communication towers, flag poles, church steeples, cupolas, ballfield lights, non-ornamental/antique street lights such as highway lighting, etc. Second: In locations where the existing topography, vegetation, buildings, or other structures provide the greatest amount of screening. Least: On vacant ground or highly visible sites without significant visual mitigation and where screening/buffering is difficult at best. 6 1"""'\ .~ 3. Interference. See Section 15.04.470, Radio Interference Prohibited, of the Municipal Code. 4. Airports and Flight Paths. Wireless telecommunication services facilities and equipment shall not present a hazard to air navigation under Part 77, Federal Aviation, Federal Aviation Regulations. 5. Historic Sites and Structures. In addition to the applicable standards of Chapter 26.72, all of the foregoing and following provisions and standards of Section 26.40.120 shall apply when wireless telecommunication services facilities and equipment are proposed on any historic site or structure, or within any historic district. 6. Public Buildings, Structures and Rights-of-Way. Leasing of public buildings, publicly- owned structures, and/or public rights-of-way for the purposes of locating wireless telecommunication services facilities and/or equipment is encouraged. In cases where a facility is proposed on City property, specific locations and compensation to the City shall be negotiated in lease agreements between the City and the provider on a case-by- case basis, and would be subject to all of the review criteria contained in this Section (26.40.120). Such agreements would not provide exclusive arrangements that could tie up access to the negotiated site(s) or limit competition, and must allow for the possibility of "co-locating" (sharing of facilities) with other providers as described in Section 26.40.120(E)(7), below. 7. Co-Location. Co-location, or sharing, of facilities with other providers is encouraged. Co-location can be achieved as either building-mounted, roof-mounted or ground- mounted facilities. In designing poles, applicants are strongly encouraged to consider the possibility of present or future co-location of other wireless communication equipment by structurally overbuilding in order to handle the loading capacity of additional antennas, for the use of the company and for other companies to use as well. Applicants shall use good faith efforts to negotiate lease rights to other telecommunications users who desire to use the monopole. Co-location on an existing support structure (tower) shall be permitted as an accessory use. A maximum of two (2), twenty-four (24") inch diameter dish antennas are permitted per monopole. Projections of any type on the monopole, which are not antennas, are strongly discouraged. Multiple use facilities are encouraged as well. Wireless telecommunication services facilities and equipment may be integrated into existing or newly developed facilities that are functional for other purposes, such as ball field lights, flag poles, church steeples, highway lighting, etc. All multiple use facilities shall be designed to make the appearance ofthe antennae relatively inconspicuous. The co-location requirement may be waived by the Community Development Director upon a showing that either federal or state regulations prohibit the use, the proposed use will interfere with the current use, the proposed use will interfere with surrounding property or uses, the proposed user will not agree to reasonable terms, or such co- location is not in the best interest of the public health, safety or welfare. Time needed to review a co-location request shall not greatly exceed that for a single applicant. 8. Maintenance. All towers, antennas, related facilities and equipment, and subject sites shall be maintained in a safe and clean manner in accordance with project approvals and building codes. The operator/property owner shall be responsible for maintaining free 7 1"""'\ I""'. from graffiti, debris and litter, those areas of the site which are adjacent to the premises over which s/he has control. The applicant shall be responsible for reasonable upkeep of the facility and subject property. All towers, antennas and related facilities shall be subject to periodic inspection to ensure continuing compliance with all conditions of approval and requirements of this section. 9. Abandonment and Removal. All required approvals will be in effect only so long as the antenna(s) and other structures are operated at the site. Facilities that are not in use for ninety (90) consecutive days for cellular communication purposes shall be considered abandoned and shall be removed by the facility owner. The site shall be restored to the condition it was in prior to the installation/location of the facility. Such removal shall be carried out in accordance with proper health and safety requirements. A written notice of the determination of abandonment shall be sent or delivered to the operator of the wireless communication facility. The operator shall have ninety (90) days to remove the facility or provide the Community Development Department with evidence that the use has not been discontinued. The Community Development Director shall review all evidence and shall determine whether or not the facility is abandoned. Upon refusal or failure of an owner and/or operator to timely remove a facility as required under this section, the facility shall be deemed an abandoned illegal structure subject to abatement as a public nuisance. . 10. Conditions and Limitations. The City shall reserve the right to add, modify or delete conditions after the approval of a request in order to advance a legitimate City interest related to health, safety or welfare. Prior to exercising this right, the City shall notify the owner and operator in advance and shall not impose a substantial expense or deprive the affected party of a substantial revenue source in the exercising of such right. Approval by the Community Development Director for a wireless telecommunication services facility and/or equipment application shall not be construed to waive any applicable zoning or other regulations; and wherein not otherwise specified, all other requirements of the Aspen Municipal Code shall apply. All requests for modifications of existing facilities or approvals shall be submitted to the Community Development Director for review under all provisions and requirements ofthis Section (26.40.120). If other than minor changes are proposed, a new, complete application containing all proposed revisions. shall be required. F. Review Standards. The following standards are designed to foster the City's safety and aesthetic interests without imposing unreasonable limitations on wireless telecommunication services facilities and equipment. I. Setbacks. At a minimum, all wireless telecommunication services facilities and equipment shall comply with the minimum setback requirements of the underlying zone district; if the following requirements are more restrictive than those of the underlying zone district, the more restrictive standard shall apply. a. All facilities shall be located at least fifty (50) feet from any property lines, except when roof-mounted (above the eave line of a building). Flat-roof mounted facilities visible from ground level within one-hundred (lOO) feet of said property shall be concealed to the extent possible within a compatible architectural element, such as a chimney or ventilation pipe, or behind architectural skirting of the type generally used to conceal. HV AC equipment. Pitched-roof mounted facilities shall always be 8 1"""'\ f\. concealed within a compatible architectural element, such as chimneys or ventilation pipes. b. Monopole towers shall be set back from any residentially zoned properties a distance of at least three (3) times the monopole's height (Le., a sixty (60) foot setback would be required for a twenty (20) foot monopole), and the setback from any public road, as measured from the right-of-way line, shall be at least equal to the height of the monopole. c. No wireless communication facility may be established within one-hundred (100) feet of any existing, legally established wireless communication facility except when located on the same building or structure. d. No portion of any antenna array shall extend beyond the property lines or into' any front yard area. Guy wires shall not be anchored within any front yard area, but may be attached to the building. 2. Height. Wireless telecommunication services facilities and/or equipment shall not exceed thirty-five (35) feet in height or the maximum permissible height of the given zone district, whichever is more restrictive. In addition: a. Whenever a wireless telecommunication services antenna is attached to a building roof, the antenna and support system for panel antennas shall not exceed five (5) feet above the highest portion of that roof, including parapet walls, and the antenna and support system for whip antennas shall not exceed fifteen (15) feet above the highest portion of that roof, including parapet walls. b. If the building itself exceeds the height limitations of the zone, and such excess height was legally established (Le., granted a variance, approved by PUD, etc.), then the combined height of the building and antenna shall not exceed the maximum height allowed by such approval unless determined by the Community Development Director to be suitably camouflaged. c. If the building is constructed at or. above the zone district's height limit, or if combined height of the building and the antenna would exceed the applicable height limit, the additional height of the antenna must be reviewed pursuant to the process and standards (in addition to the standards of this Section, 26.40.120) of conditional use review, Section 26.60.040, unless determined by the Community Development Director to be suitably camouflaged (in which case an administrative approval may be granted). d. Support and/or switching equipment shall be located inside the building, unless it can be fully screened from view as provided in the Screening standards (26.40.l20(F)(5)) below. 3. Architectural Compatibility. Whether manned or unmanned, wireless telecommunication services facilities shall be consistent with the architectural style of the surrounding architectural environment (planned or existing) considering exterior materials, roof form, scale, mass, color, texture and character. In addition: a. If such facility is accessory to an existing use, the facility shall be constructed out of materials that are equal to or of better quality than the materials of the principal use. b. Wireless telecommunication services equipment shall be of the same color as the building or structure to which or on which such equipment is mounted, or as required by the appropriate decision-making authority (Community Development Director, Historic Preservation Commission, Planning and Zoning Commission, or City Council, as applicable). c. Whenever wireless telecommunication services equipment is mounted to the wall of a building or structure, the equipment shall be mounted in a configuration designed 9 1""-, 1"""'\ to blend with and be architecturally integrated into a building or other concealing structure, be as flush to the wall as technically possible, and shall not project above the wall on which it is mounted. d. Monopole support buildings, which house cellular switching devices and/or other equipment related to the use, operation or maintenance of the subject monopole, must be designed to match the architecture of adjacent buildings. If no recent and/or reasonable architectural theme is present, the Community Development Director may require a particular design that is deemed to be suitable to the subject location. e. All utilities associated with wireless communication facilities or equipment shall be underground (also see "Screening" below). 4. Compatibility With the Natural Environment. Wireless telecommunication services facilities and equipment shall be compatible with the surrounding natural environment . considering land forms, topography, and other natural features, and shall not dominate the landscape or present a dominant silhouette on a ridge line. In addition: a. If a location at or near a mountain ridge line is selected, the applicant shall provide computerized, three dimensional, visual simulations of the facility or equipment and other appropriate graphics to demonstrate the visual impact on the view of the affected ridge(s) or ridge line(s); an 8040 Greenline Review, pUrsuant to the provisions of Section 26.68.030, may also be required. b. Site disturbances shall be minimized, and existing vegetation shall be preserved or improved to the extent possible, unless it can be demonstrated that such disturbance to vegetation and topography results in less visual impact to the surrounding area. c. Surrounding view planes shall be preserved to the extent possible. d. All wireless telecommunication services facilities and equipment shall comply with the Federal Communication Commission's regulations concerning maximum radio frequency and electromagnetic frequency emissions. 5. Screening. Roof and ground mounted wireless telecommunication services facilities and . equipment, including accessory equipment, shall be screened from adjacent and nearby public rights-of-way and public or private properties by paint color selection, parapet walls, screen walls, fencing, landscaping, and/or berming in a manner compatible with the building's and/or surrounding environment's design, color, materials, texture, land forms and/or topography, as appropriate or applicable. In addition: a. Whenever possible, if monopoles are necessary for the support of antennas, they shall be located near existing utility poles, trees, or other similar objects; consist of colors and materials that best blend with their background; and, have no individual antennas or climbing spikes on the pole other than those approved by the appropriate decision-making authority (Community Development Director, Historic Preservation Commission, Planning and Zoning Commission, or City Council, as applicable). b. For ground mounted facilities, landscaping may be required to achieve a total screening effect at the base of such facilities or equipment in order to screen the mechanical characteristics; a heavy emphasis on coniferous plants for year-round screening may be required. Landscaping shall be of a type and variety capable of growing within one (I) year to a landscape screen which satisfactorily obscures the visibility of the facility. c. Unless otherwise expressly approved, all cables for a facility shall be fully concealed from view underground or inside of the screening or monopole structure supporting the antennas; any cables that cannot be buried or otherwise hidden from view shall be painted to match the color of the building or other existing structure. 10 1"""'\ l"-''r\ d. Chain link fencing shall be unacceptable to screen facilities, support structures, or accessory and related equipment (including HV AC or mechanical equipment present on support buildings); fencing material, if used, shall be six (6) feet in height or less and shall consist of wood, masonry, stucco, stone or other acceptable materials that are opaque. e. Notwithstanding the foregoing, the facility shall comply with all additional measures deemed necessary to mitigate the visual impact ofthe facility. Also, in lieu of these screening standards, the Community Development Director may allow use ofan alternate detailed plan and specifications for landscape and screening, including plantings, fences, walls, sign and structural applications, manufactured devices and other features designed to screen, camouflage and buffer antennas, poles and accessory uses. For example, the antenna and supporting structure or monopole may be of such design and treated with an architectural material so that it is camouflaged to resemble a tree with a single trunk and branches on its upper part. The plan should accomplish the same degree of screening achieved by meeting the standards outlined above. 6. Lighting and Signage. In addition to other applicable sections of the code regulating signage or outdoor lighting, the following standards shall apply to wireless telecommunication services facilities and equipment: a. The light source for security lighting shall feature down-directional, sharp cut-off luminaries to direct, control, screen or shade in such a manner as to ensure that there is no spillage of illumination off-site. b. Light fixtures, whether free-standing or tower-mounted, shall not exceed twelve (12) feet in height as measured from finished grade. c. The display of any sign or advertising device other than public safety warnings, certifications or other required seals on any wireless communication device or structure is prohibited. d. The telephone number(s) to contact in an emergency shall be posted on each facility in conformance with the provisions of Chapter 26.36 of the Aspen Municipal Code. 7. Access Ways. In addition to ingress and egress requirements of the Building Code, access to and from wireless telecommunication services facilities and equipment shall be regulated as follows: a. No wireless communication device or facility shall be located in a required parking, maneuvering or vehicle/pedestrian circulation area such that it interferes with, or in any way impairs, the intent or functionality of the original design. b. The facility must be secured from access by the general public but access for emergency services rnust be ensured. Access roads must be capable of supporting all potential emergency response vehicles and equipment. c. The proposed easement(s) for ingress and egress and for electrical and telephone shall be recorded at the Pitkin County Clerk and Recorder's Office prior to the issuance of building permits. 2. Section 26.04.100, Definitions First, with the proposed amendments to the code, a new definition for the term "wireless telecommunication services facility and/or equipment" needs to be added to Section 26.04.100. The proposed definition would read as follows: 11 f--- t""', " Wireless Telecommunication Services Facilities and/or Equipment means cellular telephone, paging, enhanced specialized mobile radio (ESMR), personal communication services (PCS), commercial mobile radio service (CMRS), and other wireless commercial telecommunication devices and all associated structures and equipment including transmitters, antennas, monopoles, towers, masts and microwave dishes, cabinets and equipment rooms. This definition does not apply to non-commercial satellite dish antennae, radio and television transmitters and antennae incidental to residential use. A. "Cellular" means an analog or digital wireless communication technology that is based on a system of interconnected neighboring cell sites, each of which contains antenna. B. "Enhanced Specialized Mobile Radio" (ESMR) means a digital wireless communication technology that specializes in providing dispatching services. C. "Personal Communication Services" (PCS) means a digital wireless communication technology that has the capacity for multiple communications services and will provide a system in which calls will be routed to individuals rather than places, regardless of location. Next, staff proposes to amend the definitions section of the Land Use Code by refining the definition of "public facilities." The impetus for the proposed change to the definition of "public facilities" comes from the fact that in states such as Colorado that do not have a state-wide law defining such personal wireless service companies as "public utilities" (or facilities), it is highly advisable for local jurisdictions to protect their flexibility in applying land use laws to such companies. The City of Aspen Land Use Code provides numerous exceptions/exemptions for "public facilities," and these should not apply to privately owned and operated wireless telecommunication services facilities and equipment. The proposed definition would read as follows, with items in bold signifying the proposed text: Public facilities means major capital improvements, including but not limited to transportation, sanitary sewer, solid waste, drainage, potable water, education, and parks and recreation facilities. Commercial wireless telecommunication services facilities and/or eqnipment are not public facilities, but those used exclusively for police, fire and/or other emergency response communication systems shall be considered public facilities. Third, and for basically the same reasons given for amending the definition of "public facilities," staff proposes to amend the definitions section of the Land Use Code by refining the definition of "essential services." The proposed definition would read as follows, with items in bold signifying the proposed text: Essential services means the development or maintenance by public utilities or the city of underground, surface or overhead gas, electrical, steam, fuel or water transmission or distribution systems including towers, poles, wires, mains, drains, sewers, pipes, conduits, cables, fire alarm and police call boxes, traffic signals, hydrants, and similar equipment. The development or maintenance of commercial wireless telecommunication services facilities and/or equipment is not an essential service, but the development or maintenance of wireless telecommunication services facilities and/or equipment used exclusively for police, fire and/or other emergency response communication systems shall be considered essential services. Finally, in an effort to remove regulatory language and review standards from the "Definitions" section (26.04.100) of the code, staff proposes to amend the definition of "Satellite dish antenna or satellite radio frequency signal reception and/or transmission device." This proposed amendment would leave the parts of the definition that actually define the terms while moving the review standards to Section 26.40.11 0, Satellite Dish Antennas. The proposed definition would read as 12 ,-, ,r--, follows, with items in bold signifying the proposed text and items 6triekeR ollt signifying the text to be removed (and placed, instead, at Section 26.40.110): Satellite dish antenna or satellite radio frequency signal reception and/or transmission device means a dish-shaped or parabolic-shaped reception or transmission device;-fs used for the reception and/or transmission of satellite signals, including but not limited to television signals, AM radio signals, FM radio signals, telemetry signals, Elata comRlURicatieR signals, or any other reception or transmission signals using free air space as a medium, whether for commercial or private use;. This definition does not apply to wireless telecommunication services facilities and/or equipment including cellnlar telephone, paging, enhanced specialized mobile radio (ESMR), personal communication services (PCS), commercial mobile radio service (CMRS), and other wireless commercial telecommunication devices and all associated structures and equipment including transmitters, antennas, monopoles, towers, masts and microwave dishes, cabinets and equipment rooms. proviEleEl: f.. Area aaEl Balk ReE[airemeHts. The inatallatisn sf a satellite Elish aateflila 6hallnst Calise a vielation of area aeEl salk reEJUiremeHtG withiR the ZORe Elistrict iR '::hich it is locateEl, anless a variaace is gr-aateEl lly the saarEl of aEljastlBent. II. Right sf wa.y. A satellite Elish antoRRa shall not lle placea en aR easemeHt er ia the city right of 'Nay, uRless aa eRcroaehm.eat permit is secureEl. C. IRereasea Daager.The iReta-lIatieR af a satellite aish anteRRa shall not Calise aa-y iRcreasea aanger te ReighlloriRg prsjlerty iR the eyeHt af callajlse or ather failllfe cf the aetelll'la stracturo. D. Visaal Impact. The ':isillility ef the Elish Hem the pll8lie way shall se reaaceEl ta the highest Elegree practical iRe1aEliRg, slit Rot limitea te, seRsiti':e choice iR placemeRt of the Elieh, screeRing with fORciRg, laeElscapiRg, sasgraae placemeRt, sr a!I)' ather effocti':e meaes that soth screeR the aish aaa aaes not ajlpear to se aRRataral OR the site. 3. Section 26.40.110, Satellite Dish Antennas: The Community Development Department proposes to amend Section 26.40.110, Satellite Dish Antennas, by slightly revising paragraph "A," including the regulatory language that is currently included in the Definitions section of the code, and adding the proposed, new sub-sections that are described below. The amended Section 26.40.110 would read as follows, with items in boW signifying the proposed text and items 6trickeR ollt signifying text to be removed: 26.40.110 Satellite dish antennas. A. Satellite Dish Antennas. 1. Satellite dish antennas twenty-four (24) inches in diameter or less must receive building permits, if required, prior to installation. Prior to the issuance of appropriate building permits, satellite dish antennas tweRt)' five (25) iRches or greater than twenty-four (24) inches in diameter shall be reviewed and approved by the Community Development Director in conformance with the following criteria: ofSectioR 2e.ef:J.04lJ(B) a.a.a (C). a. The proposed use is consistent and compatible with the character of the immediate vicinity of the parcel proposed for development and surrounding land uses, or enhances the mixture of complimentary uses and activities in the immediate vicinity of the parcel proposed for development; and b. The location, size, design and operating characteristics of the proposed use minimizes adverse effects, including visual impacts, impacts on pedestrian and vehi.cular circulation, parking, trash, service delivery, noise, vibrations and odor on surrounding properties. 13 ,~ I~ . c. Area and Bulk Requirements. The installation of a satellite dish antenna shall not cause a violation of area and bulk requirements withiu the zone district in which it is located, unless a variance is granted by the Board of Adjustment. d. Right-of-way. A satellite dish antenua shall not be placed on an easement or in the city right-of-way, unless an encroachment permit is secured. e. Increased Danger. The installation of a satellite dish antenna shall not cause any increased danger to neighboring property in the event of collapse or other failure of the antenna structure. f. Visual Impact. The visibility of the dish from the public way shall be reduced to the highest degree practical including, but not limited to, sensitive choice in placement of the dish, screening with fencing, landscaping, subgrade placement, or any other effective means that both screen the dish and does not appear to be unnatural on the site. 2. The Community Development Director may apply reasonable conditions to the approval deemed necessary to insure conformance with said review criteria. If the Community Development Director determines that the proposed satellite dish antenna does not comply with the review criteria and denies the application, or the applicant does not agree to the conditions of approval determined by the Community Development Director, the applicant may apply for conditional use review by the Planning and Zoning Commission. 3. Ih Procedures established in Chapter 26.52, Common Development Review Procedures, shall apply to all satellite dish antennas. 4. Section 15.04.470, Radio Interference Prohibited: The Community Development Department proposes to amend Section 15.04.470, Radio Interference Prohibited, of Chapter 15.04, Miscellaneous Offenses and Penalties in order to include provisions for ameliorating claims of interference caused by wireless telecommunication services facilities or equipment. As currently written, the Section 15.04.470 requires that the "building inspector or other designated municipal officer" investigate complaints by conducting highly technical and specialized studies that no current city employees would be qualified to carry out. The proposed amendment would require that the City coordinate these studies and administer enforcement mechanisms. It would also provide for a determination as to whom would be responsible for bearing the costs of such investigations. The amended Section 15.04.470 would read as follows, with items in bold signifying the proposed text and items DtriclceR oat signifying text to be removed: 15.04.470 Radio interference prohibited. (a) It shall be unlawful for any person to operate within the limits of the city, any electrical device, machine or equipment which needlessly and unnecessarily causes interference with radio, television or other reception, where such interference can be reasonably prevented by means of repair, adjustments, the installation of corrective appliances or other practicable alterations. (b) The administration and enforcement of this section shall be entrusted to and imposed upon the ImileliRg iRSj'lector or ether designateel ffiooicipal officer Chief Building Official whose duty it shall be to investigate complaints of radio interference, to loeate the S(llirce of SIlCB interfereace by finding a qualified, mutually agreeable third party to test actual site conditions, locate the source of such interference, and advise and make recommendations as to its elimination. The Chief Building Official wile is hereby authorized to issue. orders for such repairs, adjustments, or alterations to be complied with within a reasonable length of time, as shall be practicable and reasonably necessary to prevent the continuance of such interference. The cost of testing shall be borne by the facility/equipment operator for the first claim made by a claimant, then by the claimant 14 ,. 1"""'\ ."-"'. . for subsequent claims; however, costs of testing for all verified cases of interference shall he reimbursed to the claimant by the operator of the facility/equipment causing said interference. (c) The bHilding inGflceter ar ether designated effieial Chief Building Official shall, upon presentation of his/her badge or other evidence of his/her authority, have the right of access to any premises at any reasonable hour for the purpose of inspecting tIH-s the installation and operation of any device or equipment coming within the provisions of this section. RECOMMENDATION: Staff recommends that City Council approve the series of related Wireless Telecommunication Services Facilities and Equipment code amendments as proposed in this Community Development Department memorandum, dated July 27, 1998. RECOMMENDED MOTION: "I move to approve Ordinance Number 34, Series of 1998." ATTACHMENTS: . Informational articles regarding the Wireless Telecommunications Industry, The Federal Telecommunications Act of 1996, and Local Regulation of the industry. 15 // MEMORANDUM v,+ ./," TO: The Mayor and City Council Amy Margerum, City Manager ~ John Worcester, City Attorney / r / Stan Clauson, Community Deve op ent irector 7 Mitch Haas, Planner;k: Code/Text Amendments _.. Wireless Telecommunication Services Facilities and Equipment m_ First Reading of Ordinance NO.~ Series of 1998. July 27,1998 THRU: FROM: . RE: DATE: Summary: Staff is requesting approval of a series of code amendments which would add a new section (Section 26.40.120) to regulate the development and maintenance of wireless telecommunication services facilities and equipment. The amendments have been drafted to comply with Section 704(a) of the 1996 Federal Communication Act, and would be added to Chapter 26.40, Supplementary Regulations. In addition, this amends Section 26.04.1 00, Definitions, by adding a definition for "wireless telecommunication services facilities and/or equipment," and amends the definitions of "public facilities," essential services," and "satellite dish antenna or satellite radio frequency signal reception and/or transmission device." Also affected are Section 26.40.11 0, Satellite dish antennas, and Section 15.04.470, Radio Interference Prohibited, of Chapter 15.04, MiscelIaneous Offenses and Penalties. These changes include provisions for ameliorating claims of interference caused by wireless telecommunication services facilities or equipment. Staff is recommending City Council approve the proposed amendments. Due to the nature of the wireless telecommunications industry and the limitations set by the Federal Telecommunications Act of 1996, local government regulations pertaining to this industry are inherently and necessarily technical, complex, and lengthy. The IMLA (International Municipal Lawyers Association) has put out a model wireless telecommunications ordinance that is nine (9) pages long with two columns of regulations on each page. Staff has received wireless telecommunications ordinances from more than six other jurisdictions, and these ordinances range from eight to seventeen pages in length. Staff has solicited input from and review of the proposed regulations by industry representatives, including Western Wireless, AirTouch CelIular (US West), and AT&T Wireless. The companies the proposed regulations would apply to, such as those mentioned above, alI maintl\in staff with expertise in working with local governments and local regulations and are prepared to deal with complicated and complex regulatory schemes. The feedback from the consulted industry representatives included statements such as, "On a whole, I believe this is fair and reasonable . . . It identifies and upholds community standards, particularly regarding aesthetics, and . . . should alIow the wireless telecommunications industry to construct service systems that meet the needs of residents, businesses and visitors in Aspen." Thus, it can be concluded that the regulated industry is comfortable with the proposed code amendments, and the amendments are not overly technical, lengthy or onerous. Background: The term "wireless telecommunication services facilities and equipment" refers to a family of communication devices that can send and receive messages instantly no by voice in the case of celIular telephones or alphanumericalIy in the case of pagers. Soon too, computer users will . I be able to send and receive data via wireless modems. One of the newer forms of wireless voice communication is personal communication services (PCS), which are similar to traditional cellular technology in that they are wireless, but PCSs operate on a network of smaller cells and use a lower frequency in the spectrum to transmit data. PCSs require twice as many communication facilities. In the past, the telecommunications industry was closely regulated by the Federal Communications Commission and its impacts were rarely considered a local concern. Now that many telecommunications carriers have been deregulated, and new markets have been created with the issuing of more licenses and spectrum space, communities need to take a more proactive approach to regulation. To better understand the need for local governments to be proactive in addressing wireless telecommunications, it is helpful to consider the ever increasing demand for these services. For instance, the American Planning Association's magazine publication, Planning, stated in its "Wireless World" article (December, 1996) that "Original estimates predicted fewer than a million subscribers by 2000. But by 1990, the cellular industry had attracted over 10 million customers." Planning magazine conducted.a survey regarding applications to local governments for wireless telecommunication services facilities and equipment and reported (July, 1997) "a gradual increase in cellular tower applications until 1994, when they practically doubled. The number continued to rise until last year. Meanwhile applications for personal communications services (PCS) were also rising; in 1996, they overtook traditional cellular applications." While demand continues to rise, the need for proactive approaches from local governments is further exacerbated by the Federal Telecommunications Act of 1996, which lays out the ground rules for industry and local government in the area of land-use law. Section 704(a) of the 1996 Act puts local authorities (states and local governments) in control ofthe placement, construction, and modification of personal wireless service facilities; however, the Act sets forth four (4) significant limitations as follows: . Flat refusals to grant permit applications are no longer allowed as local governments "shall not prohibit or have the effect of prohibiting the provision of personal wireless services;" . Requests for permission to build must be acted on promptly, or within a "reasonable period of time," and any decision by a local government to deny an application for such facilities must be "in writing and supported by substantial evidence contained in a written.record;" . Regulations are forbidden from favoring one sort of wireless service provider over another; and, . Local governments are prohibited from regulating such facilities on the basis of the. environmental effects of radio frequency (electromagnetic frequencies - EMF) emissions so long as the facilities comply with the Federal Communication Commission's (FCC) regulations concerning such emissions. It has been said that "seemingly nothing raises the ire of local citizens more than a tower facility application at or near a residential area, a high-end commercial district, or a quaint historic town square (R. Todd Hunt, Municipal Lawyer, May/June, 1997)." The most common objections cited by citizens include concerns that the towers and antennas are a visual blight, a threat to property values, and a health concern. The City of Aspen's code, as it currently exists, does not address wireless telecommunication services facilities and equipmerit. The purpose of the proposed amendment is to ensure that such facilities and equipment are designed in such a way as to provide functional operation for the provider and protect the safety, aesthetics, and character of Aspen's neighborhoods. 2 '. TEXT AMENDMENTS: 1. Section 26.40.120, Wireless Telecommunication Services Facilities and Equipment. The Community Development Department proposes to add a new Section to the Aspen Land Use Code. The new section would be entitled Section 26.40.120, Wireless Telecommunication Services Facilities and Equipment, and would be added to the end of Chapter 26.40, Supplementary Regulations. This proposed section would include the following sub-sections: (A) Intent and Purpose; (B) Applicability; (C) Procedure; (D) Application; (E) General Provisions and Requirements; and, (F) Review Standards. The proposed code section would read as follows: 26.40.120 Wireless Telecommunication Services Facilities and Equipment A. Intent and Purpose. To provide design standards for cellular communication facilities in order to ensure their compatibility with surrounding development. The unique and diverse landscapes of the City of Aspen are among its most valuable assets. Protecting these assets will require that location and design of wireless communication services facilities and equipment be sensitive to, and in scale and harmony with, the character of the community. The purpose of these regulations is to provide predictable and balanced standards for the siting and screening of wireless telecommunication services facilities and equipment on property within the jurisdiction of the City of Aspen in order to: 1. Preserve the character and aesthetics of areas which are in close proximity to wireless telecommunication services facilities and equipment by minimizing the visual, aesthetic . and safety impacts of such facilities through careful design, siting and screening; 2. Protect the health, safety and welfare of persons living or working in the area surrounding such wireless telecommunication services facilities and equipment from possible adverse environmental effects (within the confines of the Federal Telecommunications Act of 1996) related to the placement, construction or modification of such facilities; 3. Provide development which is compatible in appearance with allowed uses of the underlying zone; 4. Facilitate the City's permitting process to encourage fair and meaningful competition and, to the greatest extent possible, extend to all people in all areas of the City high quality wireless telecommunication services at reasonable costs to promote the public welfare; and, 5. Encourage the joint use and clustering of antenna sites and structures, when practical, to help reduce the number of such facilities which may be required in the future to service the needs of customers and thus avert unnecessary proliferation of facilities on private and public property. B. Applicability. All applications for the installation or development of wireless telecommunication services facilities and/or equipment must receive building permits, prior to installation. Prior to the issuance of appropriate building permits, wireless telecommunication services facilities and/or equipment shall be reviewed for approval by the Community Development Director in conformance with the. provisions and criteria of this Section (26.40.120). Wireless telecommunication services facilities and equipment subject to the provisions and criteria of this Section include cellular telephone, paging, enhanced specialized mobile radio (ESMR), personal communication services (PCS), commercial mobile radio service (CMRS), and other wireless commercial telecommunication devices 3 '. and all associated structures and equipment including transmitters, antennas, monopoles, towers, masts and microwave dishes, cabinets and equipment rooms. These provisions and criteria do not apply to non-commercial satellite dish antennae, radio and television transmitters and antennae incidental to residential use. All references made throughout this Section, 26.40.120, to any of the devices to which this Section is applicable, shall be construed to include all other devices to which this Section, 26.40.120, is applicable. C. Procedure. Pursuant to Section 26.52.020, the applicant shall conduct a pre-application conference with staff of the Community Development Department. The planner shall then prepare a pre-application summary describing the submission requirements and any other pertinent land use material, the fees associated with the review(s), and the review process in general. After the pre-application summary is received by the applicant, said applicant shall prepare an application for review and approval by staff and the Community Development Director, respectively. In order to proceed with additional land use reviews or obtain a Development Order, the Community Development Director shall find the submitted development application consistent with the provisions, requirements and standards of Section 26.40.120. The Community Development Director may apply reasonable conditions to the approval as deemed necessary to insure conformance with applicable review criteria. If the Community Development Director determines that the proposed wireless telecommunication services facilities and equipment does not comply with the review criteria and denies the application, or the applicant does not agree to the conditions of approval determined by the Community Development Director, the applicant may apply for conditional use review by the Planning and Zoning Commission and such application must be made within fifteen (15) calendar days of the day on which the Community Development Director's decision is rendered. Proposals for the location of wireless telecommunication services facilities or equipment on any historic site or structure, or within any historic district shall be reviewed by the City's Historic Preservation Commission (HPC). . Review of applications for wireless telecommunication services facilities and/or equipment by the HPC shall replace the need for review by the Community Development Director. Likewise, if the Historic Preservation Commission determines that the proposed wireless telecommunication services facilities and equipment does not comply with the review criteria and denies the application, or the applicant does not agree to the conditions of approval determined by the Historic Preservation Commission, the applicant may appeal the decision to the City Council and such appeal must be filed within fifteen (15) calendar days of the day on which the Historic Preservation Commission's decision is rendered. All appeals shall require public hearings, and shall be noticed by the applicant in accordance with Section 26.52.060(E)(3)(a), (b), and (c) of the Municipal Code. A building permit application cannot be filed unless and until final land use approval has been granted and a Development Order has been issued. When applying for building permit(s), the applicant shall submit a signed letter acknowledging receipt of the decision granting land use approval and his/her agreement with all conditions of approval, as well as a copy of the signed document granting the land use approval for the subject building permit application. 4 D. Application. An application for approval of new, modified or additional wireless telecommunication services facilities and/or equipment shall comply with the submittal requirements applicable to conditional use reviews pursuant to Chapter 26.52, Common Development Review Procedures, and Chapter 26.60, Conditional Uses, of the Aspen Municipal Code. Also, wireless telecommunication services facilities and equipment applications shall contain at least the following additional information: 1. Site Plan or plans drawn to a scale of one (1") inch equals ten (10') feet or one (1") inch equals twenty (20') feet, including before and "after" photographs (simulations) specifying the location of antennas, support structures, transmission buildings and/or other accessory uses, access, parking, fences, signs, lighting, landscaped areas and all adjacent land uses within one-hundred fifty (150') feet. Such plans and drawings should demonstrate compliance with the Review Standards of this Section (26.40.120(F)). 2. Site Improvement Survey including topography and vegetation showing the current status, including all easements and vacated rights of way, of the parcel certified (wet ink signed and stamped, and dated within the past twelve (12) months) by a registered land surveyor, licensed in the State of Colorado. 3. Landscape Plan drawn to a scale of one (I") inch equals ten (10') feet or one (1") inch equals twenty (20') feet, including before and "after" photographs (simulations) indicating size, spacing and type of plantings, and indicating steps to be taken to provide screening as required by the Review Standards of this Section (26.40.l20(F)(5)). The landscape plan(s) shall also indicate the size, location and species of all existing vegetation and whether each of those indicated are proposed for removal (indicate proposed mitigation), relocation (indicate from and to), or preservation. The planner can determine if a landscape plan is necessary; for instance, when an antenna is to be attached to a building, this requirement may be waived. 4. Elevation drawings or before and "after" photographs/drawings simulating and specifying the location and height of antennas, support structures, transmission building(s) and/or other accessory uses, fences, and signs. 5. Lighting plan and photometric study indicating the size, height, location and wattage of all proposed outdoor lighting sources. This study must also include a graphic indicating the spread and degree/intensity of light from each source/fixture. This requirement can be waived by the Community Development Director if little or no outdoor lighting is proposed. 6. Structural Integrity Report from a professional engineer licensed in the State of Colorado documenting the following: a. Tower height and design, including technical, engineering, economic, and other pertinent factors governing selection of the proposed design; b. Total anticipated capacity of the structure, including number and types of antennas which can be accommodated; c. Failure characteristics of the tower and demonstration that site and setbacks are of adequate size to contain debris in the event of failure; and, d. Specific design and reconstruction plans to allow shared use. This submission is required only in the event that the applicant intends to share use of the facility by subsequent reinforcement and reconstruction of the facility. 7. FAA and FCC Coordination. Statements regarding the regulations of the Federal Aviation Administration (FAA) and the Federal Communications Commission (FCC), respectively, that: a. (Required only if the facility is near an airfield) the application has not been found to be a hazard to air navigation under Part 77, Federal Aviation, Federal Aviation Regulations, or a statement that no compliance with Part 77 is required, and the 5 reasons therefor. A letter from the Sardy Field Airport Administrator will also be required if the Community Development Director determines that the proposed facility may impact airport operations; b. (Required of all wireless telecommunication services facility or equipment applicants) the application complies with the regulations of the Federal Communications Commission with regard to maximum radio frequency and electromagnetic frequency emissions, or a statement from the applicant that no such compliance is necessary, and the reasons therefor. 8. Evidence that an effort was made to locate on an existing wireless telecommunication services facility site including coverage/ interference analysis and capacity analysis and a brief statement as to other reasons for success or no success. 9. Written documentation in the form of a signed affidavit demonstrating a good faith effort in locating facilities in accordance with Site Selection Order of Preference outline below in Section 26.40.120(E)(2). 10. All companies and providers of wireless telecommunication service facilities and equipment within the City shall, during their pre-application conference for a new facility, be prepared to verbally outline, to the best of current knowledge, a master or long-term plan for all proposed sites within a three-mile radius of the City. In particular, companies and providers should be prepared to discuss their need for the proposed site and how it fits into their existing and proposed coverage grids. E. General Provisions and Requirements. The following provisions apply to all wireless telecommunication services facilities and equipment applications, sites, and uses. I. Prohibitions. Lattice towers (a structure, with three or four steel support legs, used to support a variety of antennae; these towers generally range in height from 60 to 200 feet and are constructed in areas where great height is needed, microwave antennas are required, or where the weather demands a more structurally-sound design) are prohibited within the City of Aspen. Towers (support structures) shall be prohibited in the following zone districts: Medium- Density Residential (R-6); Moderate-Density Residential (R-15, R-15A, R-15B); Low- Density Residential (R-30); Residential Multi-Family (R/MF, R/MFA); and, Affordable Housing/Planned Unit Development (AH-l/PUD). All wireless telecommunication services facilities and equipment not prohibited by the preceding statements shall be allowed in all other zone districts subject to review and approval by the Community Development Director pursuant to the provisions, requirements and standards of Section 26.40.120, including consistency with the dimensional requirements of the underlying zone district. 2. Site Selection. Wireless communication facilities shall be located in the following Order of Preference: First: On existing structures such as buildings, communication towers, flag poles, church steeples, cupolas, ballfield lights, non-ornamental/antique street lights such as highway lighting, etc. Second: In locations where the existing topography, vegetation, buildings, or other structures provide the greatest amount of screening. Least: On vacant ground or highly visible sites without significant visual mitigation and where screening/buffering is difficult at best. 6 3. Interference. See Section 15.04.470, Radio Interference Prohibited, of the Municipal Code. 4. Airports and Flight Paths. Wireless telecommunication services facilities and equipment shall not present a hazard to air navigation under Part 77, Federal Aviation, Federal Aviation Regulations. 5. Historic Sites and Structures. In addition to the applicable standards of Chapter 26.72, all of the foregoing and following provisions and standards of Section 26.40.120 shall apply when wireless telecommunication services facilities and equipment are proposed on any historic site or structure, or within any historic district. . 6. Public Buildings, Structures and Rights-of-Way. Leasing of public buildings, publicly- owned structures, and/or public rights-of-way for the purposes of locating wireless telecommunication services facilities and/or equipment is encouraged. In cases where a facility is proposed on City property, specific locations and compensation to the City shall be negotiated in lease agreements between the City and the provider on a case-by- case basis, and would be subject to all of the review criteria contained in this Section (26.40.120). Such agreements would not provide exclusive arrangements that could tie up access to the negotiated site(s) or limit competition, and must allow for the possibility of "co-locating" (sharing of facilities) with other providers as described in Section 26.40.l20(E)(7), below. 7. Co-Location. Co-location, or sharing, of facilities with other providers is encouraged. Co-location can be achieved as either building-mounted, roof-mounted or ground- mounted facilities. In designing poles, applicants are strongly encouraged to consider the possibility of present or future co-location of other wireless communication equipment by structurally overbuilding in order to handle the loading capacity of additional antennas, for the use of the company and for other companies to use as well. Applicants shall use good faith efforts to negotiate lease rights to other telecommunications users who desire to use the monopole. Co-location on an existing support structure (tower) shall be permitted as an accessory use. A maximum of two (2), twenty-four (24") inch diameter dish antennas. are permitted per monopole. Projections of any type on the monopole, which are not antennas, are strongly discouraged. Multiple use facilities are encouraged as well. Wireless telecommunication services facilities and equipment may be integrated into existing or newly developed facilities that are functional for other purposes, such as ball field lights, flag poles, church steeples, highway lighting, etc. All multiple use facilities shall be designed to make the appearance of the antennae relatively inconspicuous. The co-location requirement may be waived by the Community Development Director upon a showing that either federal or state regulations prohibit the use, the proposed use will interfere with the current use, the proposed use will interfere with surrounding property or uses, the proposed user will not agree to reasonable terms, or such co- location is not in the best interest of the public health, safety or welfare. Time needed to review a co-location request shall not greatly exceed that for a single applicant. 8. Maintenance. All towers, antennas, related facilities and equipment, and subject sites shall be maintained in a safe and clean manner in accordance with project approvals and building codes. The operator/property owner shall be responsible for maintaining free 7 from graffiti, debris and litter, those areas of the site which are adjacent to the premises over which slbe has control. The applicant shall be responsible for reasonable upkeep of the facility and subject property. All towers, antennas and related facilities shall be subject to periodic inspection to ensure continuing compliance with all conditions of approval and requirements of this section. 9. Abandonment and Removal. All required approvals will be in effect only so long as the antenna(s) and other structures are operated at the site. Facilities that are not in use for ninety (90) consecutive days for cellular communication purposes shall be considered abandoned and shall be removed by the facility owner. The site shall be restored to the condition it was in prior to the installation/location of the facility. Such removal shall be carried out in accordance with proper health and safety requirements. A written notice of the determination of abandonment shall be sent or delivered to the operator of the wireless communication facility. The operator shall have ninety (90) days to remove the facility or provide the Community Development Department with evidence that the use has not been discontinued. The Community Development Director shall review all evidence and shall determine whether or not the facility is abandoned. Upon refusal or failure of an owner and/or operator to timely remove a facility as required under this section, the facility shall be deemed an abandoned illegal structure subject to abatement as a public nuisance. 10. Conditions and Limitations. The City shall reserve the right to add, modify or delete conditions after the approval of a request in order to advance a legitimate City interest related to health, safety or welfare. Prior to exercising this right, the City shall notify the owner and operator in advance and shall not impose a substantial expense or deprive the affected party of a substantial revenue source in the exercising of such right. Approval by the Community Development Director for a wireless telecommunication services facility and/or equipment application shall not be construed to waive any applicable zoning or other regulations; and wherein not otherwise specified, all other requirements of the Aspen Municipal Code shall apply. All requests for modifications of existing facilities or approvals shall be submitted to the Community Development Director for review under all provisions and requirements of this Section (26.40.120). If other than minor changes are proposed, a new, complete application containing all proposed revisions shall be required. F. Review Standards. The following standards are designed to foster the City's safety and, aesthetic interests without imposing unreasonable limitations on wireless telecommunication services facilities and equipment. I. Setbacks. At a minimum, all wireless telecommunication services facilities and equipment shall comply with the minimum setback requirements of the underlying zone district; if the following requirements are more restrictive than those of the underlying zone district, the more restrictive standard shall apply. a. All facilities shall be located at least fifty (50) feet from any property lines, except when roof-mounted (above the eave line of a building). Flat-roof mounted facilities visible from ground level within one-hundred (100) feet of said property shall be concealed to the extent possible within a compatible architectural element, such as a chimney or ventilation pipe, or behind architectural skirting of the type generally used to conceal HV AC equipment. Pitched-roof mounted facilities shall always be 8 concealed within a compatible architectural element, such as chimneys or ventilation pipes. b. Monopole towers shall be set back from any residentially zoned properties a distance of at least three (3) times the monopole's height (i.e., a sixty (60) foot setback would be required for a twenty (20) foot monopole), and the setback from any public road, as measured from the right-of-way line, shall be at least equal to the height of the monopole. c. No wireless communication facility may be established within one-hundred (l00) feet of any existing, legally established wireless communication facility except when located on the same building or structure. d. No portion of any antenna array shall extend beyond the property lines or into any front yard area. Guy wires shall not be anchored within any front yard area, but may be attached to the building. 2. Height. Wireless telecommunication services facilities and/or equipment shall not exceed thirty-five (35) feet in height or the maximum permissible height of the given zone district, whichever is more restrictive. In addition: a. Whenever a wireless telecommunication services antenna is attached to a building roof, the antenna and support system for panel antennas shall not exceed five (5) feet above the highest portion of that roof, including parapet walls, and the antenna and support system for whip antennas shall not exceed fifteen (15) feet above the highest portion of that roof, including parapet walls. b. If the building itself exceeds the height limitations of the zone, and such excess height was legally established (i.e., granted a variance, approved by PUD, etc.), then the combined height of the building and antenna shall not exceed the maximum height allowed by such approval unless determined by the Community Development Director to be suitably camouflaged. c. If the building is constructed at or above the zone district's height limit, or if combined height of the building and the antenna would exceed the applicable height limit, the additional height of the antenna must be reviewed pursuant to the process and standards (in addition to the standards of this Section, 26.40.120) of conditional use review, Section 26.60.040, unless determined by the Community Development Director to be suitably camouflaged (in which case an administrative approval may be granted). d. Support and/or switching equipment shall be. located inside the building, unless it can be fully screened from view as provided in the Screening standards (26.40.120(F)(5)) below. 3. Architectural Compatibility. Whether manned or unmanned, wireless telecommunication services facilities shall be consistent with the architectural style of the surrounding architectural environment (planned or existing) considering exterior materials, roof form, scale, mass, color, texture and character. In addition: a. If such facility is accessory to an existing use, the facility shall be constructed out of materials that are equal to or of better quality than the materials ofthe principal use. b. Wireless telecommunication services equipment shall be of the same color as the building or structure to which or on which such equipment is mounted, or as required by the appropriate decision-making authority (Community Development Director, Historic Preservation Commission, Planning and Zoning Commission, or City Council, as applicable). c. Whenever wireless telecommunication services equipment is mounted to the wall of a building or structure, the equipment shall be mounted in a configuration designed 9 to blend with and be architecturally integrated into a building or other concealing structure, be as flush to the wall as technically possible, and shall not project above the wall on which it is mounted. d. Monopole support buildings, which house cellular switching devices and/or other equipment related to the use, operation or maintenance of the subject monopole, must be designed to match the architecture of adjacent buildings. If no recent and/or reasonable architectural theme is present, the Community Development Director may require a particular design that is deemed to be suitable to the subject location. e. All utilities associated with wireless communication facilities or equipment shall be underground (also see "Screening" below). 4. Compatibility With the Natural Environment. Wireless telecommunication services facilities and equipment shall be compatible with the surrounding natural environment considering land forms, topography, and other natural features, and shall not dominate the landscape or present a dominant silhouette on a ridge line. In addition: a. If a location at or near a mountain ridge line is selected, the applicant shall provide computerized, three dimensional, visual simulations of the facility or equipment and other appropriate graphics to demonstrate the visual impact on the view of the affected ridge(s) or ridge line(s); an 8040 Greenline Review, pursuant to the provisions of Section 26.68.030, may also be required. b. Site disturbances shall be minimized, and existing vegetation shall be preserved or improved to the extent possible, unless it can be demonstrated that such disturbance to vegetation and topography results in less visual impact to the surrounding area. c. Surrounding view planes shall be preserved to the extent possible. d. All wireless telecommunication services facilities and equipment shall comply with the Federal Communication Commission's regulations concerning maximum radio frequency and electromagnetic frequency emissions. 5. Screening. Roof and ground mounted wireless telecommunication services facilities and equipment, including accessory equipment, shall be screened from adjacent and nearby public rights-of-way and public or private properties by paint color selection, parapet walls, screen walls, fencing, landscaping, and/or berming in a manner compatible with the building's and/or surrounding environment's design, color, materials, texture, land forms and/or topography, as appropriate or applicable. In addition: a. Whenever possible, if monopoles are necessary for the support of antennas, they shall be located near existing utility poles, trees, or other similar objects; consist of colors and materials that best blend with their background; and, have no individual antennas or climbing spikes on the pole other than those approved by the appropriate decision-making authority (Community Development Director, Historic Preservation Commission, Planning and Zoning Commission, or City Council, as applicable). b. For ground mounted facilities, landscaping may be required to achieve a total screening effect at the base of such facilities or equipment in order to screen the mechanical characteristics; a heavy emphasis on coniferous plants for year-round screening may be required. Landscaping shall be<of a type and variety capable of growing within one (I) year to a landscape screen which satisfactorily obscures the visibility of the facility. c. Unless otherwise expressly approved, all cables for a facility shall be fully concealed from view underground or inside of the screening or monopole structure supporting the antennas; any cables that. cannot be buried or otherwise hidden from view shall be painted to match the color of the building or other existing structure. 10 d. Chain link fencing shall be unacceptable to screen facilities, support structures, or accessory and related equipment (including HV AC or mechanical equipment present on support buildings); fencing material, if used, shall be six (6) feet in height or less and shall consist of wood, masonry, stucco, stone or other acceptable materials that are opaque. e. Notwithstanding the foregoing, the facility shall comply with all additional measures deemed necessary to mitigate the visual impact of the facility. Also, in lieu of these screening standards, the Community Development Director may allow use of an alternate detailed plan and specifications for landscape and screening, including plantings, fences, walls, sign and structural applications, manufactured devices and other features designed to screen, camouflage and buffer antennas, poles and accessory uses. For example, the antenna and supporting structure or monopole may be of such design and treated with an architectural material so that it is camouflaged to resemble a tree with a single trunk and branches on its upper part. The plan should accomplish the same degree of screening achieved by meeting the standards outlined above. 6. Lighting and Signage. In addition to other applicable sections of the code regulating signage or outdoor lighting, the following standards shall apply to wireless telecommunication services facilities and equipment: a. The light source for security lighting shall feature down-directional, sharp cut-off luminaries to direct, control, screen or shade in such a manner as to ensure that there is no spillage of illumination off-site. b. Light fixtures, whether free-standing or tower-mounted, shall not exceed twelve (12) feet in height as measured from finished grade. c. The display of any sign or advertising device other than public safety warnings, certifications or other required seals on any wireless communication device or structure is prohibited. d. The telephone number(s) to contact in an emergency shall be posted on each facility in conformance with the provisions of Chapter 26.36 of the Aspen Municipal Code. 7. Access Ways. In addition to ingress and egress requirements of the Building Code, access to and from wireless telecommunication services facilities and equipment shall be regulated as follows: a. No wireless communication device or facility shall be located in a required parking, maneuvering or vehicle/pedestrian circulation area such that it interferes with, or in any way impairs, the intent or functionality of the original design. b. The facility must be secured from access by the general public but access for emergency services must be ensured. Access roads must be capable of supporting all potential emergency response vehicles and equipment. c. The proposed easement(s) for ingress and egress and for electrical and telephone shall be recorded at the Pitkin County Clerk and Recorder's Office prior to the issuance of building permits. 2. Section 26.04.100, Definitions First, with the proposed amendments to the code, a new definition for the term "wireless telecommunication services facility and/or equipment" needs to be added to Section 26.04.100. The proposed definition would read as follows: 11 , . " Wireless Telecommunication Services Facilities and/or Equipment means cellular telephone, paging, enhanced specialized mobile radio (ESMR), personal communication services (PCS), commercial mobile radio service (CMRS), and other wireless commercial telecommunication devices and all associated structures and equipment including transmitters, antennas, monopoles, towers, masts and microwave dishes, cabinets and equipment rooms. This definition does not apply to non-commercial satellite dish antennae, radio and television transmitters and antennae incidental to residential use. A. "Cellular" means an analog or digital wireless communication technology that is based on a system of interconnected neighboring cell sites, each of which contains antenna. B. "Enhanced Specialized Mobile Radio" (ESMR) means a digital wireless communication technology that specializes in providing dispatching services. C. "Personal Communication Services" (PCS) means a digital wireless communication technology that has the capacity for multiple communications services and will provide a system in which calls will be routed to individuals rather than places, regardless of location. Next, staff proposes to amend the definitions section of the Land Use Code by refining the definition of "public facilities." The impetus for the proposed change to the definition of "public facilities" comes from the fact that in states such as Colorado that do not have a state-wide law defining such personal wireless service companies as "public utilities" (or facilities), it is highly advisable for local jurisdictions to protect their flexibility in applying land use laws to such companies. The City of Aspen Land Use Code provides numerous exceptions/exemptions for "public facilities," and these should not apply to privately owned and operated wireless telecommunication services facilities and equipment. The proposed definition would read as follows, with items in bold signifying the proposed text: Public facilities means major capital improvements, including but not limited to transportation, sanitary sewer, solid waste, drainage, potable water, education, and parks and recreation facilities. Commercial wireless telecommunication services facilities and/or equipment are not public facilities, but those used exclusively for police, fire and/or other emergency response communication systems shall be considered public facilities. . Third, and for basically the same reasons given for amending the definition of "public facilities," staff proposes to amend the definitions section of the Land Use Code by refining the definition of "essential services." The proposed definition would read as follows, with items in bold signifying the proposed text: Essential services means the development or maintenance by public utilities or the city of underground, surface or overhead gas, electrical, steam, fuel or water transmission or distribution systems including towers, poles, wires, mains, drains, sewers, pipes, conduits, cables, fire alarm and police call boxes, traffic signals, hydrants, and similar equipment. The development or maintenance of commercial wireless telecommunication services facilities and/or equipment is uot an esseutial service, but the development or maintenauce of wireless telecommunication services facilities and/or equipment used exclusively for police, fire aud/or other emergency response communicatiou systems shall be considered essential services. Finally, in an effort to remove regulatory language and review standards from the "Definitions" section (26.04.100) 'of the code, staff proposes to amend the definition of "Satellite dish antenna or satellite radio frequency signal reception and/or transmission device." This proposed amendment would leave the parts of the definition that actually define the terms while moving the review standards to Section 26.40.110, Satellite Dish Antennas. The proposed definition would read as 12 '.... . . follows, with items in bold signifying the proposed text and items strieken ollt signifying the text to be removed (and placed, instead, at Section 26.40.110): Satellite dish antenna' or satellite radio frequency signal reception and/or transmission device means a dish-shaped or parabolic-shaped reception or transmission device,is used for the reception and/or transmission of satellite signals, including but not limited to television signals, AM radio signals, FM radio signals, telemetry signals, ElataeslHlHllRieatisn signals, or any other reception or transmission signals using free air space as a medium, whether for commercial or private use,. This definition does not apply to wireless telecommunication services facilities and/or equipment including cellular telephone, paging, enhanced specialized mobile radio (ESMR), personal communication services (PCS), commercial mobile radio service (CMRS), and other wireless commercial telecommunication devices and all associated structures and equipment including transmitters, antennas, monopoles, towers, masts and microwave dishes, cabinets and equipment rooms. pro'/iEleEl: A. ,'\-rea aIlEl BllHc Re'lliirelHellts. The installatioll of a satellite Elish antenlla shall net ealise a violation of afoa SHEl 11lllk re'lHirelHellts withill the ZORe Elislriet iR ""hieh it is loeateEl, unless a variallee is granteEl by the lloard of aEljllstmellt. B. Right of W~'. f. satellite EliGh anteRna shall Rot lle plaeeEl OR SH eaGelHellt er in the eity right of y.vay, liflless an 6nereaehmeat peRllit is Seel:lFea. C. IllereaseEl Danger, The installation of a satellite Elish antelllla shall Rot salise ~' insreaGeEl Elallger to ReiglWering J'lroperty in the e'lellt of sollaj3se or other failure of the antenna stnletere. D. Visual IIHJ'last. The 'fiGibility of the Elish HelH the (lHlllie way shalllle reelaseEl to the highest Elegree J'lraetieal inelllEliRg, llat Ret lilHiteEl to, seRsitive eheiee iR J'llaeelHsllt of the Elish, sereeRiRg '.Yith feReing, lanElGeaJ'liRg, sHllgrade (llaselHellt, or any other effeetiye lHeaRS that lloth sereeR the Elish anEl Eloes Rot aj3J'lea; to lle 1llHlatlH'Sl en the site. 3. Section 26.40.110, Satellite Dish Antennas: The Community Development Department proposes to amend Section 26.40.110, Satellite Dish Antennas, by slightly revising paragraph "A," including the regulatory language that is currently included in the Definitions section of the code, and adding the proposed, new sub-sections that are described below. The amended Section 26.40.110 would read as follows, with items in bold signifying the proposed text and items strieken eat signifying text to be removed: 26.40.110 Satellite dish antennas. A. Satellite Dish Antennas. 1. Satellite dish antennas twenty-four (24) inches in diameter or less must receive building permits, if required, prior to installation. Prior to the issuance of appropriate building permits, satellite dish antennas twellty Five (25) iRehes or greater than twenty-four (24) inches in diameter shall be reviewed and approved by the Community Development Director in conformance with the following criteria: ofSeetion2e.e9.91lJ(B) aflG (C). a. The proposed use is consistent and compatible with the character of the immediate vicinity of the parcel proposed for development and surrounding land uses, or enhances the mixture of complimentary uses and activities in the immediate vicinity of the parcel proposed for development; and b. The location, size, design and operating characteristics of the proposed use minimizes adverse effects, including visual impacts, impacts on pedestrian and vehicular circulation, parking, trash, service delivery, noise, vibrations and odor on surrounding properties. 13 c. Area and Bnlk Requirements. The installatiou of a satellite dish antenna shall not cause a violation of area and bulk requirements within the zone district in which it is located, unless a variance is granted by the Board of Adjustment. d. Right-of-way. A satellite dish antenna shall not be placed on an easement or in the city right-of-way, unless an encroachment permit is secured. e. Increased Danger. The installation of a satellite dish antenna shall not cause any increased danger to neighboring property in the event of collapse or other failure of the antenna structure. f. Visual Impact. The visibility of the dish from the public way shall be reduced to the highest degree practical including, but not limited to, sensitive choice in placement of the dish, screening with fencing, landscaping, subgrade placement, or any other effective means that both screen the dish and does not appear to be unnatural on the site. 2. The Community Development Director may apply reasonable conditions to the approval deemed necessary to insure conformance with said review criteria. If the Community Development Director determines that the proposed satellite dish antenna does not comply with the review criteria and denies the application, or the applicant does not agree to the conditions of approval determined by the Community Development Director, the applicant may apply for conditional use review by the Planning and Zoning Commission. 3. B, Procedures established in Chapter 26.52, Common Development Review Procedures, shall apply to all satellite dish antennas. 4. Section 15.04.470, Radio Interference Prohibited: The Community Development Department proposes to amend Section 15.04.470, Radio Interference Prohibited, of Chapter 15.04, Miscellaneous Offenses and Penalties in order to include provisions for ameliorating claims of interference caused by wireless telecommunication services facilities or equipment. As currently written, the Section 15.04.470 requires that the "building inspector or other designated municipal officer" investigate complaints by conducting highly technical and specialized studies that no current city employees would be qualified to carry out. The proposed amendment would require that the City coordinate these studies and administer enforcement mechanisms. It would also provide for a determination as to whom would be responsible for bearing the costs of such investigations. The amended Section 15.04.470 would read as follows, with items in bold signifying the proposed text and items strieken om signifying text to be removed: 15.04.470 Radio interference prohibited. (a) It shall be unlawful for any person to operate within the limits of the city, any electrical device, machine or equipment which needlessly and unnecessarily causes interference with radio, television or other reception, where such interference can be reasonably prevented by means of repair, adjustments, the installation of corrective appliances or other practicable alterations. (b) The administration and enforcement of this section shall be entrusted to and imposed upon the Building inGjleetor or other aesignatea mUllieijlal sffieer Chief Bnilding Official whose duty it shall be to investigate complaints of radio interference, to loeate tlIe sOUl'ce of sueh interferenee by finding a qualified, mutually agreeable third party to test actual site conditions, locate the source of such interference, and advise and make recommendations as to its elimination. The Chief Building Official wile is hereby authorized to issue orders for such repairs, adjustments, or alterations to be complied with within a reasonable length of time, as shall be practicable and reasonably necessary to prevent the continuance of such interference. The cost of testing shall be borne by the facility/equipment operator for the first claim made by a claimant, then by the claimant 14 . for subsequent claims; however, costs of testing for all verified cases of interference shall be reimbursed to the claimant by the operator of the facility/equipment causing said interference. (c) The Baihliag iaSjgeetor or other Elesigaatea offieial Chief Building Official shall, upon presentation of his/her badge or other evidence of his/her authority, have the right of access to any premises at any reasonable hour for the purpose of inspecting tIHs the installation and operation of any device or equipment coming within the provisions of this section. RECOMMENDATION: Staff recommends that City Council approve the series of related Wireless Telecommunication Services Facilities and Equipment code amendments as proposed in this Community Development Department memorandum, dated July 27, 1998. RECOMMENDED MOTION: "I move to approve first reading of Ordinance Number ~ Series of 1998." ATTACHMENTS: . Informational articles regarding the Wireless Telecommunications Industry, The Federal Telecommunications Act of 1996, and Local Regulation of the industry. 15 , .~.. \. /' ~.,I'/.,.. ...... ../'..' 2-6 INCHES it Iu Ie CD .. o .. WHIP ANTENNA '1~ WHIP ANTENNAS PANa ANTENNAS OlSH ANTENNAS. EQUIPMENT BUILDING TYPICAL MONOPOLE ~~ BUILDING-MOUNTED ANTENNAS ----rn = , = = = oao = oao = OQCl = = '1 I II II 1c:::J1 II II II II ROOF-MOUNTED ANTENNAS BUILDING ATTACHED FACIUTIES 100 , r How Cellular Systems Work 1~ .. ~- , r-,. ./"",\, MEMORANDUM TO: Aspen Planning and Zoning Commission Stan Clauson, Community Development Directo& John Worcester, City Attorney Mitch Haas, PlannerK Code/Text Amendments .n Wireless Telecommunication Services Facilities and Equipment THRU: FROM: RE: DATE: July 21, 1998 Summary: Staff is requesting approval of a series of code amendments which would add a new section (Section 26.40.120) to regulate the development and maintenance of wireless telecommunication services facilities and equipment. The amendments have been drafted to comply with Section 704(a) of the 1996 Federal Communication Act, and would be added to Chapter 26.40, Supplementary Regulations. In addition, this amends Section 26.04.100, Definitions, by adding a definition for "wireless telecommunication services facilities and/or equipment," and amends the definitions of "public facilities," essential services," and "satellite dish antenna or satellite radio frequency signal reception and/or transmission device." Also affected are Section 26.40.110, Satellite dish antennas, and Section 15.04.470, Radio Interference Prohibited, of Chapter 15.04, Miscellaneous Offenses and Penalties. These changes include provisions for ameliorating claims of interference caused by wireless telecommunication services facilities or equipment. Staff is recommending that the Commission advise City Council to approve the proposed amendments. Background: The term "wireless telecommunication services facilities and equipment" refers to a family of communication devices that can send and receive messages instantly ..- by voice in the case of cellular telephones or alphanumerically in the case of pagers. Soon too, computer users will be able to send and receive data via wireless modems. One of the newer forms of wireless voice communication is personal communication services (PCS), which are similar to traditional cellular technology in that they are wireless, but PCSs operate on a network of smaller cells and use a lower frequency in the spectrum to transmit data. PCSs require twice as many communication facilities. In the past, the telecommunications industry was closely regulated by the Federal Communications Commission and its impacts were rarely considered a local concern. Now that many telecommunications carriers have been deregulated, and new markets have been created with the issuing of more licenses and spectrum space, communities need to take a more proactive approach to regulation. To better understand the need for local governments to be proactive in addressing wireless telecommunications, it is helpful to consider the ever increasing demand for these services. For instance, the American Planning Association's magazine publication, Planning, stated in its "Wireless World" article (December, 1996) that "Original estimates predicted fewer than a million subscribers by 2000. But by 1990, the cellular industry had attracted over 10 million customers." 1"""'\ .1'""\ Planning magazine conducted a survey regarding applications to local governments for wireless telecommunication services facilities and equipment and reported (July, 1997) "a gradual increase in cellular tower applications until 1994, when they practically doubled. The number continued to rise until last year. Meanwhile applications for personal communications services (PCS) were also rising; in 1996, they overtook traditional cellular applications." While demand continues to rise, the need for proactive approaches from local governments is further exacerbated by the Federal Telecommunications Act of 1996, which lays out the ground rules for industry and local government in the area ofland-use law. Section 704(a) of the 1996 Act puts local authorities (states and local governments) in control of the placement, construction, and modification of personal wireless service facilities; however, the Act sets forth four (4) significant limitations as follows: · Flat refusals to grant permit applications are no longer allowed as local governments "shall not prohibit or have the effect of prohibiting the provision of personal wireless services;" · Requests for permission to build must be acted on promptly, or within a "reasonable period of time," and any decision by a local government to deny an application for such facilities must be "in writing and supported by substantial evidence contained in a written record;" · Regulations are forbidden from favoring one sort of wireless service provider over another; and, · Local governments are prohibited from regulating such facilities on the basis of the environmental effects of radio frequency (electromagnetic frequencies - EMF) emissions so long as the facilities comply with the Federal Communication Commission's (FCC) regulations concerning such emissions. It has been said that "seemingly nothing raises the ire of local citizens more than a tower facility application at or near a residential area, a high-end commercial district, or a quaint historic town square (R. Todd Hunt, Municipal Lawyer, May/June, 1997)." The most common objections cited by citizens include concerns that the towers and antennas are a visual blight, a threat to property values, and a health concern. The City of Aspen's code, as it currently exists, does not ad.dress wireless telecommunication services facilities and equipment. The purpose of the proposed amendment is to ensure that such facilities and equipment are designed in such a way as to provide functional operation for the provider and protect the safety, aesthetics, and character of Aspen's neighborhoods. TEXT AMENDMENTS: 1. Section 26.40.120, Wireless Telecommunication Services Facilities and Equipment. The Community Development Department proposes to add a new Section to the Aspen Land Use Code. The new section would be entitled Section 26.40.120, Wireless Telecommunication Services Facilities and Equipment, and would be added to the end of Chapter 26.40, Supplementary Regulations. This proposed section would include the following sub-sections: (A) Intent and Purpose; (B) Applicability; (C) Procedure; (D) Application; (E) General Provisions and Requirements; and, (F) Review Standards. The proposed code section would read as follows: 26.40.120 Wireless Telecommunication Services Facilities and Equipment A. Intent and Purpose. To provide design standards for cellular communication facilities in order to ensure their compatibility with surrounding development. The unique and diverse landscapes of the City of Aspen are among its most valuable assets. Protecting these assets 2 1"""'\ 1"""'\ I .., will require that location and design of wireless communication services facilities and equipment be sensitive to, and in scale and harmony with, the character of the community. The purpose of these regulations is to provide predictable and balanced standards for the siting and screening of wireless telecommunication services facilities and equipment on property within the jurisdiction of the City of Aspen Community Development Department in order to: I. Preserve the character and aesthetics of areas which are in close proximity to wireless telecommunication services facilities and equipment by minimizing the visual, aesthetic and safety impacts of such facilities through careful design, siting and screening; 2. Protect the health, safety and welfare of persons living or working in the area surrounding such wireless telecommunication services facilities and equipment from possible adverse environmental effects (within the confines of the Federal Telecommunications Act of 1996) related to the placement, construction or modification of such facilities; 3. Provide development which is compatible in appearance with allowed uses of the underlying zone; 4. Facilitate the City's permitting process to encourage fair and meaningful competition and, to the greatest extent possible, extend to all people in all areas of the City high quality wireless telecommunication services at reasonable costs to promote the public welfare; and, 5. Encourage the joint use and clustering of antenna sites and structures, when practical, to help reduce the number of such facilities which may be required in the future to service the needs of customers and thus avert unnecessary proliferation of facilities on private and public property. B. Applicability. All applications for the installation or development of wireless telecommunication services facilities and/or equipment must receive building permits, prior to installation. Prior' to the issuance of appropriate building permits, wireless telecommunication service.s facilities and/or equipment shall be reviewed for approval by the Community Development Director in conformance with the provisions and criteria of this Section (26.40.120). Wireless telecommunication services facilities and equipment subject to the provisions and criteria of this Section include cellular telephone, paging, enhanced specialized mobile radio (ESMR), personal communication services (PCS), commercial mobile radio service (CMRS), and other wireless commercial telecommunication devices and all associated structures and equipment including transmitters, antennas, monopoles, towers, masts and microwave dishes, cabinets and equipment rooms. These provisions and criteria do not apply to non-commercial satellite dish antennae, radio and television transmitters and antennae incidental to residential use. All references made throughout this Section, 26.40.120, to any of the devices to which this Section is applicable, shall be construed to include all other devices to which this Section, 26.40.120, is applicable. C. Procedure. Pursuant to Section 26.52.020, the applicant shall conduct a pre-application conference with staff of the planning division of the Community Development Department. As a result of the conference, the planner shall prepare a pre-application summary providing the appropriate application packet including the Submission Requirements and any other pertinent land use material, review the fees associated with the review(s), and explain the review process in general. 3 r-. .~ After the pre-application summary is received by the applicant, said applicant shall prepare an application for review and approval by staff and the Community Development Director, respectively. In order to proceed with additional land use reviews or obtain a Development Order, the Community Development Director shall find the submitted development application consistent with the provisions, requirements and standards of Section 26.40.120. The Community Development Director may apply reasonable conditions to the approval as deemed necessary to insure conformance with applicable review criteria. If the Community Development Director determines that the proposed wireless telecommunication services facilities and equipment does not comply with the review criteria and denies the application, or the applicant does not agree to the conditions of approval determined by the Community Development Director, the applicant may apply for conditional use review by the Planning and Zoning Commission and such application must be made within fifteen (15) calendar days of the day on which the Community Development Director's decision is rendered. Proposals for the location of wireless telecommunication services facilities or equipment on any historic site or structure, or within any historic district shall be reviewed by the City's Historic Preservation Commission (HPC). Review of applications for wireless telecommunication services facilities and/or equipment by the HPC shall replace the need for review by the Community Development Director. Likewise, if the Historic Preservation Commission determines that the proposed wireless telecommunication services facilities and equipment does not comply with the review criteria and denies the application, or the applicant does not agree to the conditions of approval determined by the Historic Preservation Commission, the applicant may appeal the decision to the City Council and such appeal must be filed within fifteen (15) calendar days of the day on which the Historic Preservation Commission's decision is rendered. A building permit application cannot be filed unless and until final land use approval has been granted and a Development Order has been issued. When applying for building permit(s), the applicant shall submit a signed letter acknowledging receipt of the decision granting land use approval and his/her agreement with all conditions of approval, as well as a copy of ihe signed document granting the land use approval for the subject building permit application. D. Application. An application for approval of new, modified or additional wireless telecommunication services facilities and/or equipment shall comply with the submittal requirements applicable to conditional use reviews pursuant to Chapter 26.52, Common Development Review Procedures, and Chapter 26.60, Conditional Uses, of the Aspen Municipal Code. Also, wireless telecommunication services facilities and equipment applications shall contain at least the following additional information: I. Site Plan or plans drawn to a scale of one (I") inch equals ten (10') feet or one (I ") inch equals twenty (20') feet, including before and "after" photographs (simulations) specifying the location of antennas, support structures, transmission building and/or other accessory uses, access, parking, fences, signs, lighting, landscaped areas and all adjacent land uses within three-hundred (300') feet. Such plans and drawings should demonstrate compliance with the Review Standards of this Section (26.40.120(F)). 2. Site Improvement Survey including topography and vegetation showing the current status, including all easements and vacated rights of way, of the parcel certified (wet ink signed and stamped, and dated within the past twelve (12) months) by a registered land surveyor, licensed in the State of Colorado. 4 1"""'\ ;-., 3. Landscape Plan drawn to a scale of one (I") inch equals ten (10') feet or one (l") inch equals twenty (20') feet, including before and "after" photographs (simulations) indicating size, spacing and type of plantings, and indicating steps to be taken to provide screening as required by the Review Standards of this Section (26.40.120(F)(5)). The landscape planes) shall also indicate the size, location and species of all existing vegetation and whether each of those indicated are proposed for removal (indicate proposed mitigation), relocation (indicate from and to), or preservation. The planner can determine if a landscape plan is necessary; for instance, when an antenna is to be attached to a building, this requirement may be waived. 4. Elevation drawings or before and "after" photographs/drawings simulating and specifying the location and height of antennas, support structures, transmission building(s) and/or other accessory uses, fences, and signs. 5. Lighting plan and photometric study indicating the size, height, location and wattage of all proposed outdoor lighting sources. This study must also include a graphic indicating the spread and degree/intensity of light from each source/fixture. This requirement can be waived by the Community Development Director if little or no outdoor lighting is proposed. 6. Structural Integrity Report from a professional engineer licensed in the State of Colorado documenting the following: a. Tower height and design, including technical, engineering, economic, and other pertinent factors governing selection of the proposed design; b. Total anticipated capacity of the structure, including number and types of antennas which can be accommodated; c. Failure characteristics of the tower and demonstration that site and setbacks are of adequate size to contain debris in the event of failure; and, d. Specific design and reconstruction plans to allow shared use. This submission is required only in the event that the applicant intends to share use of the facility by subsequent reinforcement and reconstruction of the facility. 7. FAA and FCC Coordination. Statements regarding the regulations of the Federal Aviation Administration (FAA) and the Federal Communications Commission (FCC), respectively, that: a. (Required only ifthe facility is near an airfield) the application has not been found to be a hazard to air navigation under Part 77, Federal Aviation, Federal Aviation Regulations, or a statement that no compliance with Part 77 is required, and the reasons therefor. A letter from the Sardy Field Airport Administrator will also be required if the Community Development Director determines that the proposed facility may impact airport operations; b. (Required of all wireless telecommunication services facility or equipment applicants) the application complies with the regulations of' the Federal Communications Commission with regard to maximum radio frequency and electromagnetic frequency emissions, or a statement from the applicant that no such compliance is necessary, and the reasons therefor. 8. Evidence that an effort was made to locate on an existing wireless telecommunication services facility site including coverage/ interference analysis and capacity analysis and a brief statement as to other reasons for success or no success. 9. Written documentation in the form of a signed affidavit demonstrating a good faith effort in locating facilities in accordance with Site Selection Order of Preference outline below in Section 26.40.120(E)(2). 10. All companies and providers of wireless telecommunication service facilities and equipment within the City shall, during their pre-application conference for a new facility, be prepared to verbally outline, to the best of current knowledge, a master or 5 .1""'. .~ long-term plan for all proposed sites within a three-mile radius of the City. In particular, companies and providers should be prepared to discuss their need for the proposed site and how it fits into their existing and proposed coverage grids. E. General Provisions and Requirements. The following provisions apply to all wireless telecommunication services facilities and equipment applications, sites, and uses. 1. Prohibitions. Lattice towers (a structure, with three or four steel support legs, used to support a variety of antennae; these towers generally range in height from 60 to 200 feet and are constructed in areas where great height is needed, microwave antennas are required, or where the weather demands a more structurally-sound design) are prohibited within the City of Aspen. Towers (support structures) shall be prohibited in the following zone districts: Medium- Density Residential (R-6); Moderate-Density Residential (R-15, R-15A, R-15B); Low- Density Residential (R-30); Residential Multi-Family (RIMF, R1MFA); and, Affordable Housing/Planned Unit Development (AH-l/PUD). All wireless telecommunication services facilities and equipment not prohibited by the preceding statements shall be allowed in all other zone districts subject to review and approval by the Community Development Director pursuant to the provisions, requirements and standards of Section 26.40.120, including consistency with the dimensional requirements of the underlying zone district. 2. Site Selection. Wireless communication facilities shall be located in the following Order of Preference: First: On existing structures such as buildings, communication towers, flag poles, church steeples, cupolas, ballfield lights, non-ornamental/antique street lights such as highway lighting, etc. Second: In locations where the existing topography, vegetation, buildings, or other structures provide the greatest amount of screening. Least: On vacant ground or highly visible sites without significant visual mitigation and where screeninglbuffering is difficult at best. 3.. Interference. Wireless telecommunication services facilities and equipment shall operate in such a manner so as not to cause interference with other electronics such as radios, televisions, computers, etc. Claims of interference with the operations of any business or residential use of radio, television, and/or telephone devices due to the operations of wireless telecommunication services facilities and/or equipment will be subject. to correction by the operator of the facility or equipment causing said interference pursuant to the provisions of Section 15.04.470 of the Municipal Code. 4. Airports and Flight Paths. Wireless telecommunication services facilities and equipment shall not present a hazard to air navigation under Part 77, Federal Aviation, Federal Aviation Regulations. Applicants proposing to locate facilities or equipment near Sardy Field and/or its flight paths shall obtain a letter of approval from the Sardy Field Airport Administration. 5. Historic Sites and Structures. Wireless telecommunication services facilities and equipment shall not be located on any historic site or structure, or within any historic district unless permission is first obtained from the City's Historic Preservation 6 1"""'\ r. Commission (HPC), as required by the City's historic and landmark preservation ordinances. Review of applications for wireless telecommunication services facilities and/or equipment by the HPC shall replace the need for review by the Community Development Director. In addition to the applicable standards of Chapter 26.72, all of the foregoing and following provisions and standards of Section 26.40.120 shall apply. 6. Public Buildings, Structures and Rights-of-Way. Leasing of public buildings, publicly- owned structures, and/or public rights-of-way for the purposes of locating wireless telecommunication services facilities and/or equipment is encouraged. In cases where a facility is proposed on City property, specific locations and compensation to the City shall be negotiated in lease agreements between the City and the provider on a case-by- case basis, and would be subject to all of the review criteria contained in this Section (26.40.120). Such agreements would not provide exclusive arrangements that could tie up access to the negotiated site(s) or limit competition, and must allow for the possibility of "co-locating" (sharing of facilities) with other providers as described in Section 26.40.120(E)(7), below. 7. Co-Location. Co-location, or sharing, of facilities with other providers is encouraged. Co-location can be achieved as either building-mounted, roof-mounted or ground- mounted facilities. In designing poles, applicants are strongly encouraged to consider the possibility of present or future co-location of other wireless communication equipment by structurally overbuilding in order to handle the loading capacity of additional antennas, for the use of the company and for other companies to use as well. Applicants shall use good faith efforts to negotiate lease rights to other telecommunications users who desire to use the monopole. Co-location on an existing support structure (tower) shall be permitted as an accessory use. A maximum of two (2), twenty-four (24") inch diameter dish antennas are permitted per monopole. Projections of any type on the monopole, which are not antennas, are strongly discouraged: Multiple use facilities are encouraged as well. Wireless telecommunication services facilities and equipment may be integrated into existing or newly developed facilities that are functional for other purposes, such as ball field lights, flag poles, church steeples, highway lighting, etc. All multiple use facilities shall be designed to make the appearance ofthe antennae relatively inconspicuous. The co-location requirement may be waived by the Community Development Director upon a showing that either federal or state regulations prohibit the use, the proposed use will interfere with the current use, the proposed use will interfere with surrounding property or uses, the proposed user will not agree to reasonable terms, or such co- location is not in the best interest of the public health, safety or welfare. Time needed to review a co-location request shall not greatly exceed that for a single applicant. 8. Maintenance. All towers, antennas, related facilities and equipment, and subject sites shall be maintained in a safe and clean manner in accordance with project approvals and building codes. The operator/property owner shall be responsible for maintaining free from graffiti, debris and litter, those areas of the site which are adjacent to the premises over which s/he has control. The applicant shall be responsible for reasonable upkeep of the facility and subject property. All towers, antennas and related facilities shall be subject to periodic inspection to ensure continuing compliance with all conditions of approval and requirements of this section. 7 1"""'\ , ~ 9. Abandonment and Removal. All required approvals will be in effect only so long as the antenna(s) and other structures are operated at the site. Facilities that are not in use for ninety (90) consecutive days for cellular communication purposes shall be considered abandoned and shall be removed by the facility owner. The site shall be restored to the condition it was in prior to the installation/location of the facility. Such removal shall be carried out in accordance with proper health and safety requirements. A written notice of the determination of abandonment shall be sent or delivered to the operator of the wireless communication facility. The operator shall have ninety (90) days to remove the facility or provide the Community Development Department with evidence that the use has not been discontinued. The Community Development Director shall review all evidence and shall determine whether or not the facility is abandoned. Upon refusal or failure of an owner and/or operator to timely remove a facility as required under this section, the facility shall be deemed an abandoned illegal structure subject to abatement as a public nuisance. 10. Conditions and Limitations. The City shall reserve the right to add, modify or delete conditions after the approval of a request in order to advance a legitimate City interest related to health, safety or welfare. Prior to exercising this right, the City shall notify the owner and operator in advance and shall not impose a substantial expense or deprive the affected party of a substantial revenue source in the exercising of such right. Approval by the Community Development Director for a wireless telecommunication services facility and/or equipment application shall not be construed to waive any applicable zoning or other regulations; and wherein not otherwise specified, all other requirements of the Aspen Municipal Code shall apply. All requests for modifications of existing facilities or approvals shall be submitted to the Community Development Director for review under all provisions and requirements of this Section (26.40.120). If other than minor changes are proposed, a new, complete application containing all proposed revisions shall be required. II. Building Permits. In addition to the codes regulating building and safety as adopted by the City, the following regulations shall apply to the establishment, installation and operation of wireless telecommunication services facilities and/or equipment in all zoning districts: a. Facilities and equipment shall be installed and maintained in compliance with the requirements of the Building Code. Installers shall obtain a building permit, and all other necessary permits, prior to installation. b. All electrical wiring associated with wireless telecommunication services facilities and equipment shall be buried underground or hidden in a manner acceptable to the Building Official; any cables that cannot be buried or otherwise hidden from view shall be painted to match the color of the building or other existing structure. c. All requirements of the Fire Department shall be met, including but not limited to, all necessary occupancy permits and inspections. d. Every antenna must be adequately grounded for protection against a direct strike of lightning with an adequate ground wire. Ground wires shall be of the type approved by the latest edition of the National Electrical Code, as adopted by the City, for grounding masts and lightning arresters and shall be installed in a mechanical manner, with as few bends as possible, maintaining a clearance of at least two (2) 8 I'"' ."-". inches from combustible materials. Lightning arresters shall be used which are approved as safe by the Underwriter's Laboratories, Inc., and both sides of the line must be adequately protected with proper arresters to remove static charges accumulated on the line. When lead-in conductors of polyethylene ribbon-type are used, lightning arresters must be installed in each conductor. When coaxial cable or shielded twin lead is used for lead-in, suitable protection may be provided without lightning arresters by grounding the exterior metal sheath. e. A wind velocity test shall be required if deemed necessary by the Building Official. F. Review Standards. In the interest of providing local regulation of wireless telecommunication services facilities and equipment, and to protect the health, safety, and welfare of the people of the City of Aspen by preventing significant visual impacts resulting from, and reducing safety hazards associated with the size, height and location of such cellular transmission facilities, the City has developed the following standards. These standards are designed to foster the City's safety and aesthetic interests without imposing unreasonable limitations on wireless telecommunication services facilities and equipment. I. Setbacks. At a minimum, all wireless telecommunication services facilities and equipment shall comply with the minimum setback requirements of the underlying zone district; if the following requirements are more restrictive than those of the underlying zone district, the more restrictive standard shall apply. a. All facilities shall be located at least fifty (50) feet from any property lines, except when roof-mounted (above the eave line of a building). Flat-roof mounted facilities visible from ground level within one-hundred (100) feet of said property shall be concealed to the extent possible within a compatible architectural element, such as a chimney or ventilation pipe, or behind architectural skirting of the type generally used to conceal HV AC equipment. Pitched-roof mounted facilities shall always be concealed within a compatible architectural element, such as chimneys or ventilation pipes. b. Monopole towers shall be set back from any residentially zoned properties a distance of at least three (3) times the monopole's height (Le., a sixty (60) foot setback would be required for a twenty (20) foot monopole), and the setback from any public road, as measured from the right-of-way line, shall be at least equal to the height of the monopole. c. No wireless communication facility may be established within one-hundred (100) feet of any existing, legally established wireless communication facility except when located on the same building or structure. d. No portion of any antenna array shall extend beyond the property lines or into any front yard area. Guy wires shall not be anchored within any front yard area, but may be attached to the building. 2. Height. Wireless telecommunication services facilities and/or equipment shall not exceed thirty-five (35) feet in height or the maximum permissible height of the given zone district, whichever is more restrictive. In addition: a. Whenever a wireless telecommunication services antenna is attached to a building roof, the antenna and support system for panel antennas shall not exceed five (5) feet above the highest portion of that roof, including parapet walls, and the antenna and support system for whip antennas shall not exceed fifteen (15) feet above the highest portion of that roof, including parapet walls. b. If the building itself exceeds the height limitations of the zone, and such excess height was legally established (Le., granted a variance, approved by PUD, etc.), then 9 1"""'\ r-, the combined height of the building and antenna shall not exceed the maximum height allowed by such approval unless determined by the Community Development Director to be suitably camouflaged (in which case an administrative approval can be granted). . c. If the building is constructed at or above the zone district's height limit, or if combined height of the building and the antenna would exceed the applicable height limit, the additional height of the antenna must be reviewed pursuant to the process and standards (in addition to the standards of this Section, 26.40.120) of conditional use review, Section 26.60.040, unless determined by the Community Development Director to be suitably camouflaged (in which case an administrative approval may be granted). d. Support and/or switching equipment shall be located inside the building, unless it can be fully screened from view as provided in the Screening standards (26.40.l20(F)(5)) below. 3. Architectural Compatibility. Whether manned or unmanned, wireless telecommunication services facilities shall be consistent with the architectural style of the surrounding architectural environment (planned or existing) considering exterior materials, roof form, scale, mass, color, texture and character. In addition: a. If such facility is accessory to an existing use, the facility shall be constructed out of materials that are equal to or of better quality than the materials of the principal use. b. Wireless telecommunication services equipment shall be of the same color as the building or structure to which or on which such equipment is mounted, or as required by the appropriate decision-making authority (Community Development Director, Historic Preservation Commission, Planning and Zoning Commission, or City Council, as applicable). c. Whenever wireless telecommunication services equipment is mounted to the wall of a building or structure, the equipment shall be mounted in a configuration designed to blend with and be architecturally integrated into a building or other concealing structure, be as flush to the wall as technically possible, and shall not project above the wall on which it is mounted. d. Monopole support buildings, which house cellular switching devices and/or other equipment related to the use, operation or maintenance of the subject monopole, must be designed to match the architecture of adjacent buildings. If no recent and/or reasonable architectural theme is present, the Community Development Director may require a particular design that is deemed to be suitable to the subject location. e. All utilities associated with wireless communication facilities or equipment shall be underground (also see "Screening" below). 4. Compatibility With the Natural Environment. Wireless telecommunication services facilities and equipment shall be compatible with the surrounding natural environment considering land forms, topography, and other natural features, and shall not dominate the landscape or present a dominant silhouette on a ridge line. In addition: a. If a location at or near a mountain ridge line is selected, the applicant shall provide computerized, three dimensional, visual simulations of the facility or equipment and other appropriate graphics to demonstrate the visual impact on the view of the affected ridge(s) or ridge line(s); an 8040 Greenline Review, pursuant to the provisions of Section 26.68.030, may also be required. b. Site disturbances shall be minimized, and existing vegetation shall be preserved or improved to the extent possible, unless it can be demonstrated that such disturbance to vegetation and topography results in less visual impact to the surrounding area. 10 1"""'\. .,-, c. Surrounding view planes shall be preserved to the extent possible. d. All wireless telecommunication services facilities and equipment shall comply with the Federal Communication Commission's regulations concerning maximum radio frequency and electromagnetic frequency emissions. 5. Screening. Roof and ground mounted wireless telecommunication services facilities and equipment, including accessory equipment, shall be screened from adjacent and nearby public rights-of-way and public or private properties by paint color selection, parapet walls, screen walls, fencing, landscaping, and/or berming in a manner compatible with the building's or surrounding environment's design, color, materials, texture, land forms and/or topography, as appropriate or applicable. In addition: a. Whenever possible, if monopoles are necessary for the support of antennas, they shan be located near existing utility poles, trees, or other similar objects; consist of colors and materials that best blend with their background; and, have no individual antennas or climbing spikes on the pole other than those approved by the appropriate decision-making authority (Community Development Director, Historic Preservation Commission, Planning and Zoning Commission, or City Council, as applicable). b. For ground mounted facilities, landscaping may be required to achieve a total screening effect at the base of such facilities or equipment in order to screen the mechanical characteristics; a heavy emphasis on coniferous plants for year-round screening may be required. Landscaping shan be of a type and variety capable of growing within one (1) year to a landscape screen which satisfactorily obscures the visibility ofthe facility. c. Unless otherwise expressly approved, an cables for a facility shan be fully concealed from view underground or inside of the screening or monopole structure supporting the antennas; any cables that cannot be buried or otherwise hidden from view shan be painted to match the color of the building or other existing structure. d. Chain link fencing shan be unacceptable to screen facilities, support structures, or accessory and related equipment (including HV AC or mechanical equipment present on support buildings); fencing material, if used, shall be six (6) feet in height or less and shall consist of wood, masonry, stucco, stone or other acceptable materials that are opaque. e. Notwithstanding the foregoing, the facility shall comply with an additional measures deemed necessary to mitigate the visual impact of the facility. Also, in lieu of these screening standards, the Community Development Director may allow use of an alternate detailed plan and specifications for landscape and screening, including plantings, fences, walls, sign and structural applications, manufactured devices and other features designed to screen, camouflage and buffer antennas, poles and accessory uses. For example, the antenna and supporting structure or monopole may be of such design and treated with an architectural material so that it is camouflaged to resemble a tree with a single trunk and branches on its upper part. The plan should accomplish the same degree of screening achieved by meeting the standards outlined above. 6. Lighting and Signage. In addition to other applicable sections of the code regulating signage or outdoor lighting, the following standards shall apply to wireless telecommunication services facilities and equipment: a. The light source for security lighting shall feature down-directional, sharp cut-off luminaries to direct, control, screen or shade in such a manner as to ensure that there is no spillage of illumination off-site. 11 . ,,-. "-"1 b. Light fixtures, whether free-standing or tower-mounted, shall not exceed sixteen (16) feet in height as measured from finished grade. c. The display of any sign or advertising device other than public safety warnings, certifications or other required seals on any wireless communication device or structure is prohibited. d. The telephone number( s) to contact in an emergency shall be posted on each facility in conformance with the provisions of Chapter 26.36 ofthe Aspen Municipal Code. 7. Access Ways. In addition to ingress and egress requirements of the Building Code, access to and from wireless telecommunication services facilities and equipment shall be regulated as follows: a. No wireless communication device or facility shall be located in a required parking, maneuvering or vehicle/pedestrian circulation area such that it interferes with, or in imy way impairs, the intent or functionality of the original design. b. The facility must be secured from access by the general public but access for emergency services must be ensured. Access roads must be capable of supporting all potential emergency response vehicles and equipment. c. The proposed easement( s) for ingress and egress and for electrical and telephone shall be recorded at the Pitkin County Clerk and Recorder's Office prior to the issuance of building permits. 2. Section 26,04.100, Definitions First, with the proposed amendments to the code, a new definition for the term "wireless telecommunication services facility and/or equipment" needs to be added to Section 26.04.1 00. The proposed definition would read as follows: Wireless Telecommunication Services Facilities and/or Equipment means cellular telephone, paging, enhanced specialized mobile radio (ESMR), personal communication services (PCS), commercial mobile radio service (CMRS), and other wireless commercial telecommunication devices and all associated structures and equipment including transmitters, antennas, monopoles, towers, masts and microwave dishes, cabinets and equipment rooms. This definition does not apply to non-commercial satellite dish antennae, radio and television transmitters and. antennae incidental to residential use. A. "Cellular" means an analog or digital wireless communication technology that is based on a system of interconnected neighboring cell sites, each of which contains antenna. B. "Enhanced Specialized Mobile Radio" (ESMR) means a digital wireless communication technology that specializes in providing dispatching services. C. "Personal Communication Services" (PCS) means a digital wireless communication technology that has the capacity for multiple communications services and will provide a system in which calls will be routed to individuals rather than places, regardless of location. Next, staff proposes to amend the definitions section of the Land Use Code by refining the definition of "public facilities." The impetus for the proposed change to the definition of "public facilities" comes from the fact that in states such as Colorado that do not have a state-wide law defining such personal wireless service companies as "public utilities" (or facilities), it is highly advisable for local jurisdictions to protect their flexibility in applying land use laws to such companies. The City of Aspen Land Use Code provides numerous exceptions/exemptions for "public facilities," and these should not apply to privately owned and operated wireless telecommunication services facilities and 12 1"""'\ .1"""'\ equipment. The proposed definition would read as follows, with items in bold signifying the proposed text: Public facilities means major capital improvements, including but not limited to transportation, sanitary sewer, solid waste, drainage, potable water, education, and parks and recreation facilities. Commercial wireless telecommunication services facilities and/or equipment are not public facilities, but those used exclusively for police, fire and/or other emergency response communication systems shall be considered public facilities. Third, and for, more or less, the same reasons given for amending the definition of "public facilities," staff proposes to amend the definitions section of the Land Use Code by refining the definition of "essential services." The proposed definition would read as follows, with items in bold signifying the proposed text: Essential services means the development or maintenance by public utilities or the city of underground, surface or overhead gas, electrical, steam, fuel or water transmission or distribution systems including towers, poles, wires, mains, drains, sewers, pipes, conduits, cables, fire alarm and police call boxes, traffic signals, hydrants, and similar equipment. The development or maintenance of commercial wireless telecommunication services facilities and/or equipment is not an essential service, but the development or maintenance of wireless telecommunication services facilities and/or equipment used exclusively for police, fire and/or other emergency response communication systems shall be considered essential services. Finally, in an effort to remove regulatory language and . review standards from the "Definitions" section (26.04.1 00) of the code, staff proposes to amend the definition of "Satellite dish antenna or satellite radio frequency signal reception and/or transmission device." This proposed amendment would leave the parts of the definition that actually define the terms while moving the review standards to Section 26.40.110, Satellite Dish Antennas. The proposed definition would read as follows, with items in bold signifying the proposed text and items at-ricken oat signifying the text to be removed (and placed, instead, at Section 26.40.110): Satellite dish antenna or satellite radio frequency signal reception and/or transmission device means a dish-shaped or parabolic-shaped reception or transmission device,4s used for the reception and/or transmission of satellite signals, including but not limited to television signals, AM radio signals, FM radio signals, telemetry signals, data commllnication signals, or any other reception or transmission signals using free air space as a medium, whether for commercial or private use;. This definition does not apply to wireless telecommunication services facilities and/or equipment including cellular telephone, paging, enhanced specialized mobile radio (ESMR), personal communication services (PCS), commercial mobile radio service (CMRS), and other wireless commercial telecommunication devices and all associated structures and equipment including transmitters, antennas, monopoles, towers, masts and microwave dishes, cabinets and equipment rooms. ]'lra~'ideEl: !.. .-'.-rea allEl Illllk Reljairemellts. The installation of a satellite dish llfltolllla shall not eaRse a violatioll ef area alia balk reEjlJirome!lts witeill the zelle EliGtrict ill whieh it is lecated, IIl1leas a yariallee is gfQllted by the board of aEljllstme!lt. II. Right ef way. !. aatellite Eliah a!ltellna shall net be ]'llaceEl ell an easemellt er in the city right of way, allless 80Il ellereaehme!lt peffllit is seeured. C. IlIereaned Daager. The installatioll ef a satellite dish aIItelllla shall lIet eaRGe SflJ' illereaGeEl daager te lIeighilerillg pre]'le~' in the e>:e!lt ef eellll]'lse er eteer failare of the antellHa straeture. D. Vinlolal Impact. The visibility ef the Elish from the palllie '.'.'ay shall be reEllleeEl te tho higbeGt Elegree ]'lfllctieal inelllElillg, llllt lIet limited te, sellnitiye ehoiee ill ]'llaeem8!lt ef the 13 . 1"""'\ .".-, aiGR, soreening with fencing, IGflasclljling, sH8gmde jllacomeHt, er any ether effective means that 8eth screen tRe aish ana aees net lIjljlear ts 8e HnnatHral en tRe site. 3. Section 26.40.110, Satellite Dish Antennas: The Community Development Department proposes to amend Section 26.40.110, Satellite Dish Antennas, by slightly revising paragraph "A," including the regulatory language that is currently included in the Definitions section of the code, and adding the proposed, new sub-sections that are described below. The amended Section 26.40.110 would read as follows, with items in bold signifying the proposed text and items stricken ollt signifYing text to be removed: 26.40.11 0 Satellite dish antennas. A. Satellite Dish Antennas. 1. Satellite dish antennas twenty-four (24) inches in diameter or less must receive building permits, if required, prior to installation. Prior to the issuance of appropriate building permits, satellite dish antennas tweHty fi':8 (25) inches or greater than twenty-four (24) inches in diameter shall be reviewed and approved by the Community Development Director in conformance with the following criteria: ofSectien 26.60.010(B) and (C). a. The proposed use is consistent and compatible with the character of the immediate vicinity of the parcel proposed for development and surrounding land uses, or enhances the mixture of complimentary uses and activities in the immediate vicinity of the parcel proposed for development; and b. The location, size, design and operating characteristics of the proposed use minimizes adverse effects, including visual impacts, impacts on pedestrian and vehicular circulation, parking, trash, service delivery, noise, vibrations and odor on surrounding properties. c. Area and Bulk Requirements. The installation of a satellite dish antenna shall not cause a violation of area and bulk requirements within the zone district in which it is located, unless a variance is granted by the Board of Adjustment. d. Right-of-way. A satellite dish antenna shall not be placed on an easement or in the city right-of-way, unless an encroachment permit is secured. e. Increased Danger. The installation of a satellite dish antenna shall not cause any increased danger to neighboring property in the event of collapse or other failure of the antenna structure. f. Visual Impact. The visibility of the dish from the public way shall be reduced to the highest degree practical including, but not limited to, sensitive choice in placement of the dish, screening with fencing, landscaping, subgrade placement, or any other effective means that both screen the dish and does not appear to be unnatural on the site. 2. The Community Development Director may apply reasonable conditions to the approval deemed necessary to insure conformance with said review criteria. If the Community Development Director determines that the proposed satellite dish antenna does not comply with the review criteria and denies the application, or the applicant does not agree to the conditions of approval determined by the Community Development Director, the applicant may apply for conditional use review by the Planning and Zoning Commission. 3. B. Procedures established in Chapter 26.52, Common Development Review Procedures, shall apply to all satellite dish antennas. 14 . 1"""'\ ,-.., , ) 4. Section 15.04.470, Radio Interference Prohibited: The Community Development Department proposes to amend Section 15.04.470, Radio Interference Prohibited, of Chapter 15.04, Miscellaneous Offenses and Penalties in order to include provisions for ameliorating claims of interference caused by wireless telecommunication services facilities or equipment. As currently written, the Section 15.04.470 requires that the "building inspector or other designated municipal officer" investigate complaints by conducting highly technical and specialized studies that no current city employees would be qualified to carry out. The proposed amendment would require that the City coordinate these studies and administer enforcement mechanisms. It would also provide for a determination as to whom would be responsible for bearing the costs of such investigations. The amended Section 15.04.470 would read as follows, with items in bold signifying the proposed text and items strickon OHt signifying text to be removed: 15.04.470 Radio interference prohibited. (a) It shall be unlawful for any person to operate within the limits of the city, any electrical device, machine or equipment which needlessly and unnecessarily causes interference with radio reception, which. such interference can be reasonably prevented by means of repair, adjustments, the installation of corrective appliances or other practicable alterations. (b) The administration and enforcement of this section shall be entrusted to and imposed upon the bHilEiing inSj'lector or other E1esigHateEl municipal officer City Zoning Officer whose duty it shall be to investigate complaints of radio interference, to locate the SOHrce of SHCR interference by finding a qualified, mutually agreeable third party to test actual site conditions, locate the source of such iuterference, and advise and make recommendations as to its elimination. The Zoning Officer wile is hereby authorized to issue orders for such repairs, adjustments, or alterations to be complied with within a reasonable length of time, as shall be practicable and reasonably necessary to prevent the continuance of such interference. The cost of testing' shall be borne by the facility/equipment operator for the first claim made by a claimant, then by the claimant for subsequent claims; however, costs of testing for all verified cases of interference shall be reimbursed to the claimant by the operator of the facility/equipment causing said interference. ( c) The !lailEling inSj'lector or otller designated official Zoning Officer shall, upon presentation of his/her badge or other evidence of his/her authority, have the right of access to any premises at any reasonable hour for the purpose of inspecting tIHs the installation and operation of any device or equipment coming within the provisions of this section. RECOMMENDATION: Staff recommends that the Planning and Zoning Commission advise City Council to approve the Wireless Telecommunication Services Facilities and Equipment code amendments as proposed in this Community Development Department memorandum, dated July 21, 1998. RECOMMENDED MOTION: "I move to recommend to Council adoption of the proposed amendments to the Aspen Land Use Code, as described in the staff memorandum dated July 21, 1997." 15 1"""'\ .1"""\ PUBUC NOTICE RE: WIRELESS TELECOMMUNICATION SERVICES FACILITIES AND EQUWMENTCODEAMENDMENTS NOTICE IS HEREBY GIVEN that a public hearing will be held on Tuesday, July 21, 1998 at a meeting to begin at 4:30 p.m. before the Aspen Planning and Zoning Commission, City Council Chambers or the Sister Cities Meeting Room, City Hall, 130 S. Galena St., Aspen, to consider an application submitted by City of Aspen Community Development Department, requesting approval for Proposed Code Amendments creating or revising the following Sections of the Aspen Municipal Code: Section 26.40.120, Wireless Telecommunication Services Facilities and Equipment; Section 26.04.100, Definitions; Section 26.40.110, Satellite Dish Antennas; and, Section 15.04.470, Radio Interference Prohibited. The proposed code amendments would establish a means and process by which the City would regulate the installation and maintenance of wireless telecommunication services facilities and equipment, add a few new definitions to the land use code while modifying a few existing definitions, reorganize the existing satellite dish antenna regulations, and alter the radio interference provisions. For further information, contact Mitch Haas at the Aspen/Pitkin Community Development Department, 130 S. Galena St., Aspen, CO (970) 920-5095. s/Sara Garton. Chair Aspen Planning and Zoning Commission Published in the Aspen Times on July 4,1998 City of Aspen Account . - -~jl"-'iI"r'~ "'-"'"'~"""."""_""''' "',,,,,_____,,,,, ,. .-" )0/16/97 THU 08:29. FAX 303 313 8010 .~ .1""\. '" WW/PCSII DENVER .~ ItJ001 - October 16, 1997 , , western" i i .. wireless Mitch Haas Planner City of Aspen Community Development VIA FAX ('7") 4fZ<:> - $"f3~ Dear Mr. Haas. On behalf of Western Wireless Coxp., I appreciate the opportunity to respond to the City of Aspen's draft ordinance regarding wireless telecomm1.mication service facilities and equipment. As a whole, I believe this is a fair and reasODable first draft. It identifies and upholds community standards, particularly regarding aesth~ics, and, with some minor adjustments, should allow the wireless telecomm1J1lications industry to constJ:uct service systems that meet the needs of residents, businesses and visitors in Aspen. Regarding this last point, there are a few items that I would like highlight for discussion and possible revision. These are as follows: Undated Dnlft . Page 6, Section 26.40.120, Item D., Paragraph 10: "All companies shall providc...a master plan..." We are happy to verbally share our service l1I1d pllllUling objectives with Aspen's planning $Iff. However, given the highly competitive nature of this business, we- would not be willing to commit proprietary potential design information to paper. CO. to. (r'b) Regarding the second sentence, industly standard for facility leases is betweoo20 and 30 years, Leaving existing sites "open for review and alteration" in perpetuity would interfere with private bU8iness contracts, seriously hinder a. company's ability to meet service objectives, and could have the effect of prohibiting the provision of adequate service. For this reason, we request that this paragraph be eliminated or modified to read: "All companies aml providers of wi,.eless telecommunication service facilities and equipment within the City shall, during their pre--appliC{:ltion conference fo1' a new facility, be prepiJred to verbally outline, to the best of current knowledge, a mastu or long-term plan for all proposed ~tes within a three mile radius of {he City, In particular, companies and providers should be prepared to discuss their 1I4edjiJr the prop08ed site, and how it flu into their existing and proposed ~'OVerage grids. " I W._Willlloso(;.:Tpml1ial 232300garySIreet tler>.8-,C080216 0IIic:a1:lOaj313-00CXI Fal<(303)3t3-l1010 ~ }0/16/97 THO 08:30 FAX 303 313 8010 1"""'\ I""", r ~. j' ~ . L: WW/PCSII DENVER ~002 . Page 9, Section 26.40.120, Item E., Paragraph 9, third subparagraph: "A written notice. .." 30 days may not be sufficient to deccmmission and remove of a facility. 90 days would be a more practical time frame. Regarding the fourth subparagraph of Paragraph 9, arrangements for the removal of a facility always all: written into our site le<Ules. Requesting a bond or similar . financial instrument is unnecessarily burdensome and ties up capital that could be better used elsewhere. We request that this paragraph be omitted from subsequent drafts oflbe ordinance. Page 10, Section 26.40.120, Item F., Subparagraph 1, criteria a): "All towers shall be located... " Somewhere in the world there may be a roof-mounted ''tower,'' but such a configuration would be highly non-I<t;onrlgrd. If"antennas" are what is meant, it is categorically not feasible to mount these near the center-point of a roof: PCS radio signals can be susceptible to significant blockage by objects such as buildings, trees and rocks. Requiring anteDnas to be placed away from the edge of a rooftop would cause significant "signal shadowing" in the intended coverage area below. An altema:tive provision might read: "All facilities shall be located at lease fifty (50) .feet from any property line.f, except wltsn roof mounted (abo'V" the eave line ofa building). Flat-roofmountedfacilities visihlefrom ground !eve/within one- hundred (100) feet of said property shall be concealed to the extent possible within a cQ11I]XJiible architect1.l1'al element. such as a chimney or ventilation pipe, or behind architectural skirting of tM type u!Sed to conceal HV AC equipment. Pitched-ro()f mounted facilitie:s shnll always be crmc.ealed within a compatible architectural element, such as chimneys or -ventilation pipes. " . Page 10, Section 26.40.120, Item F., Subparagraph 1, crit.eriac): "In addition..." and Page 11, Section 26.40.120, Item F., Subparagraph 2: "Height" These two subparagraphs need to be considered together. If the height limit throughout the City is 3S feet and given the varied local terrain, the respective 500 and 300-foot setbac:ks on Page 10, Subparagraph 1, are overly restrictive. Reg9l;ding criteria a), again, antennas on pitched roofs can be made compatible with surrounding aesthetics, and antermas on flat rooftops generally caonot be located more than 3 to 5 feet from the edge. Regarding criteria b) and c), as written, these criteria are a disincentive to pu:mring certain roof mounted facilities. Most roof mounted facilities are so inconspicuous that, even in the event they exceed the zoned bcight limit, they should continued to be administmtively reviewed by the Community Development Director. We l"P.Q,uest thPt.~.p exgeptiQft +^ t'hP.QIII h.ia"t 1"~r+in~ np. .m~t1p. fnr suitablv r..JJrnonARO'c4. .wef monnted ;n_lI~tion~. As in criteria a), 10 feet ahove roof grade is an acceptable height. 2 ",> ., "~."'."~~,>.:1:~:">'i""'''''-''';'i'~;''::i'''~'''6' ;"'li~~,,:;''''''~;V;''''~'''''''''' n="""'''~'''~1"''_~> -.-"- ~ ''''''''', ,. J10/20/97 MON 07:42 FAX 303 313 8010 r"-. WW/PCSII DENVER ^ 19J002 " . Page 12, Section 26.40.120, Item F., Subparagraph 5, criteria e): "Notwithstanding th fu . " e regomg... "All additional rneasures...at the sole discretion of the City" is overly vague. !fa company is required to take extraordinary (and potentially costly) measures, it is fair that said company should be able participate in pllwning fur the same. . Page 14, Section 26.04.100, Definitions: This is an intemaI matter fur the City of Aspen, but excludiJJg wireless facilities from the definitions for publie facilities and essential serviees could impede the installation of essential police, fire and other emergency response coOll:ll1lUi.cation systems. Perhaps these definitions are accurate for commercial wireless services, but the City may want to consider exempting its own emergency service organi:mtions. Thank you for giving the industry the opportunity to respond to 1his draft. If you have any questions or require' further assistance, please do not hesitate to ask. We look forward to working with the City of Aspen in the coming months. Sincerely Zoning Specialist Western Wireless Corp. cc: Mike McCreedy, Western Wireless File 3 r-. ,--. CLOSSER CONSULTING LIMITED LIABILITY COMPANY 4720 Table Mesa Drive, Suite F. Boulder, CO. 80303 Phone (303) 499-0710. Fax (303) 494-5832 By Facsimile (970) 920-5439 and U.S. Mail N<f;,Q a~V~':'\ ~~\ 'p b. ~ \ 'l. (\~'" ((~'(; <\)\; ",I'?\ ,,:-,-0 q,'?S ,,~ ~,,~'\' o~~ o October 21, 1997 Mitch Haas Aspen Community Development Department 130 So, Galena Street Aspen, CO 81611-1975 . Re: CodelText Amendments Wireless Telecommunication Facilities Dear Mr. Haas: I am a land use consultant to U S WEST NewVector Group, Inc. d/b/a AirTouch Cellular ("NewVector"). Thank you for allowing me to comment on the proposed code/text amendments concerning Wireless Telecommunication Services, Facilities, and Equipment. My comments will tract the appropriate paragraphs within the Aspen Municipal Code proposed Section 26.40.120. Section 26.40. 120(D)(5) This section requires a lighting plan and a photometric study indicating the size, height, location and wattage of all proposed lighting sources. Unless there are specific lighting requirements mandated by the FAA, which usually are not required unless the tower will attain a height of 200' from grade, a cellular facility will require a single 40-60 watt lightbulb mounted to the side of the equipment shelter. The light fixture is either switched or on a timer so that it is only on during a maintenance visit or within one hour after the technician has left the premises. A cellular facility is serviced one to two times each month. The requirement for a lighting plan and photometric study are not necessary for the minimal lighting associated with a wireless telecommunications facility. The light is akin to a typical porch light, however the light will only be on one or two times each month and not every evening. Section 26.40.120(D)(6)(c) I state without hesitation that monopoles do not fail. A monopole simply will not topple over. However, in extreme circumstances the monopole may bend like a drinking straw. In essence, the monopole will fold back onto itself. A setback to establish safety margins in the event of tower failure is a non-issue. The applicant can submit a set of wet stamped calculations from the tower manufacturer which will address loading and structural integrity. I assume that the wet stamped calculations from the manufacturer will satisfy the request for information presented in paragraph 6 of the proposed regulations. 1"""'\ /~ Section 26.40.120(0)(10) This section requires the applicant to provide a master plan of all locally proposed sites. A wireless telecommunication service provider's build plan is highly proprietary and is safeguarded with utmost care. Information concerning future sites is extremely confidential, and NewVector is not willing to disclose this information. Paragraph 10 also provides that any application to increase the number of sites or alter sites operated by a single company within Aspen shall open all existing sites "for review and alteration, if desired by the City." NewVector cannot agree to this provision. Any existing installations in Aspen must be allowed to continue in their present state notwithstanding any application for a new or modified facility. However, if NewVector files an application to modify a particular existing installation within the City, it follows that the site to be amended will be subject to further review. Other existing sites within Aspen, not related to the specific application, cannot be altered at the whim of the City. Each wireless facility is unique and is designed to accomplish certain coverage/capacity objectives. Once a particular installation is integrated into the network, it cannot be modified without a much broader impact on the system. A particular facility may be changed to optimize performance of a site, but the City cannot unilaterally mandate modifications to a site. Further, any City mandated after-the-fact modification of a lawfully existing facility is not consistent Colorado land use law. Assuming that the existing facility is in compliance with all conditions of approval, the City cannot lawfully deprive the applicant of its vested property right. Further, if the use has become nonconforming, that use has a legal right to continue, so long as the extent of the nonconformance is not expanded. Future reviews of existing (lawful) land uses, which reviews were not identified at the time of the approval, raise due process issues. For these additional reasons, the provision in paragraph (0)(10) which would authorize the City to' open" existing sites for review and alteration is not acceptable. Section 26.40. 120(E)(6) This section requires the applicant to enter into a franchise agreement with the City of Aspen for the use of public buildings, publicly-owned structures and/or public rights-of-way for the purposes of locating a wireless telecommunication facility. NewVector cannot, consistent with federal law, enter into any such franchise agreement. Hence, NewVector will not lease City properties for a wireless installation if a franchise agreement is required. In effect this provision will discourage, rather than encourage, the use of public properties. 2 r--. r-, Section 26.40. 120(E)(9) I suggest the following language changes: The site shall be restored to the condition it was in prior to the installation/location of the facility.....reasonable wear and tear excepted. Such removal shall be carried out in accordance with proper health and safety requirements.... A written notice of the determination of abandonment shall be sent or delivered to the operator of the wireless communication facility. The operator shall have tt-lirty (30) one-hundred eiahtv (180) days to remove the facility or provide the Community Development Department... All facilities not removed within the required thirty (30) one hundred eiahtv (180) day period shall be in violation of the Code and operators of ... In addition to the potential for penalties and to further ensure full and proper removal, prior to building permit issuance, all providers of wireless telecommunication services facilities and equipment shall be required to provide the City with a bond or other legally acceptable financial instrument... ("sufficient to guarantee") shall be construed to mean at least 150% 115% of the valuatian af the facility, insluding construction costs}.- necessary to remove the facilitv and restore the property to the condition it was in prior to the installationllocation of the facilitv. reasonable wear and tear excepted. Section 26.40. 120(E)(10) Again, any attempt to "add, modify or delete conditions after the approval" of a wireless facility is inconsistent with Colorado land use law. For the reasons articulated in relation to paragraph (0)(10) above, any City mandated retroactive alteration of the physical aspects of a site is contrary to laws which protect nonconforming uses and vested rights. An after-the-fact amendment of a lawfully constructed development also raises due process concerns as the future review was not identified at the time of the approval. Each site fits into a network of sites to create a wireless system. An individual site cannot be modified without regard to how that change will impact other facilities within the network. To the extent that the performance of a site (or the wireless system) is compromised by the added or modified conditions, the City's conduct may amount to a taking, for which just compensation must be paid. NewVector stridently objects to the provisions within proposed paragraph (E)(10). Section 26.40.120(E)(11)(b} This section requires that all electrical wiring associated with a facility be buried underground or hidden in a manner acceptable to the Building Official. The coaxial cable which connects each antenna to the equipment cannot be completely hidden. Coaxial cable or a jumper must attach to the back of each 3 r-.. ,,-, antenna. It is not possible to screen or hide the required connections and a cable length of approximately 3'. The cable can be painted to match the building or surrounding structures. The cabling for antennas mounted to a monopole is routed inside the pole. However, the cable connection at the antenna and a certain portion of the cable will be visible. Section 26.40. 120(F)(1)(c) The suggested setback of 500' from residentially zoned properties and 300' from any public road is excessive. The setback from public roads should be a distance equal to the tower height. A more reasonable setback requirement from residentially zoned properties is three times the monopole height. Section 26.40. 120(F)(1)(e) This section prohibits any antenna array from extending into any front yard area. This is not a workable requirement. Antennas may have to be mounted to the front of a building face. In that event, the antennas will extend into the front yard by a distance equal to the distance between the building face and the front of the antenna. Typically, the top of a panel antenna will be mounted up to 2' away from the building face. Even a building mounted antenna would likely extend into the front yard by a modest distance. Section 26.40. 120(F)(2) This section limits the height of all wireless facilities to 35' or less if the zone district limitation is more restrictive. This is not a realistic limitation. The antennas must have line of sight to the intended coverage area. The path from the antennas to the coverage area must be free of obstructions, i.e. buildings or mature trees. Assuming that the prevailing height limit in Aspen is 35', the antennas must exceed this height to see the coverage areas. A roof mounted panel antenna must extend approximately 5' above the parapet to ensure line of sight. A whip antenna must extend approximately 15' above the parapet. Therefore, panel antennas must extend up to 5' above the building height (whip antennas up to 15') notwithstanding whether the building is constructed at or above the zone district limitation. With respect to monopole heights, the applicant should demonstrate the required height given the surrounding structures and vegetation. Based on information provided by the applicant, the Community Development Director should establish the monopole height as an approval condition. A categorical limitation to 35' is too rigid and not workable. Section 26.40. 120(F)(5) This section requires that all roof and ground mounted facilities be screened by parapet walls, screen walls, fencing, landscaping and or berming. suggest that roof mounted antennas be screened only if appropriate given the built environment. Unscreened roof mounted antennas, if painted to match the 4 r--. i"""'. building or other roof mounted appurtenances, will in some instances have less visual impact than screening walls. This section should require screening, or other visual mitigation techniques, which are appropriate for the built environment. Such mitigating measures would include careful selection of antenna colors and placement, and would not necessarily require screening. Section 26.40. 120(F)(5)(b) This section requires that landscaping be installed which is capable of growing within one year to a height which will obscure visibility of the facility and the antennas. I suggest that the reference to antennas be deleted. Landscaping can forseeably screen the base of the facility, but not the antennas. Section 26.40. 120(F)(5)(c) As described above in relation to section (E)(11)(b), it will not be possible to fully conceal a portion of the coaxial cable (or jumper) which will extend from each antenna. A coaxial cable length of approximately 3' cannot be completely concealed. However, this cable length can be painted to match the building or other existing structure. A predominant portion of the cabling can be located in a chase mounted to the building or within the monopole itself. Section 26.40.120(F)(5)(e) This section allows an alternative screening plan which must accomplish the same degree of screening required by earlier provisions in the ordinance. However, the language is somewhat confusing, particularly the qualifier at the end of this section, "... except as fewer requirements are desirable for adequate visibility for security purposes..." Please clarify this paragraph. Section 26.40. 120(F)(6)(a) This paragraph limits lighting to low or high pressure sodium. This is too limiting. Notwithstanding lighting requirements imposed by the FAA (for facilities in close proximity to airfields and over 200' from grade) most lighting associated with a wireless installation is similar to a typical porch light. Any incandescent light should be allowed (not restricted to low or high pressure sodium). The light is typically mounted at 8' from grade on the wall of the equipment shelter. The light is switched or timed to turn off within one hour after the technician has left the premises. Except for an emergency failure of the site, the technician is only on site one to two times each month for routine maintenance. Section 26.40. 120(F)(7)(c) This section requires that all easements for access and utilities be recorded prior to issuance of a building permit. However, if the necessary easements are on the Lessor's property, separate easement agreements are not 5 """"'. """"', prepared. Rather, the lease agreement between the landowner and the provider includes blanket easements for utilities and access necessary to service the site. However, in the event access or utility easements are required from a third party, separate agreements are prepared and recorded. This could be clarified by the following change: The proposed easement for ingress and egress and for electrical and telephone. from third parties [not the applicant or its lessor(s)] shall be recorded at the Pitkin County Clerk and Recorder's Office prior to the issuance of building permits. Definitions (pace 14), Wireless Telecommunication Services Facilities andlor Equipment The subdefinitions for Cellular and Personal Communication Services in this section are misleading. In fact, cellular services include "multiple communication services and will provide a system in which calls will be routed to individuals rather than places, regardless of location." Perhaps the three subcategories could be combined. Thank you for your consideration of my comments. Please keep me advised concerning further drafts, meetings, and any hearings at which the proposed regulations will be considered. Ann S. Closser cc: Ms. Jane Alcorn, U S WEST NewVector Group, Inc. encl. lase 6 ~ , < r---. "-", '~ - - - October 17, 1997 AT&T Cellular Division RECEIVED OCT t. U 1'J'71 - - - Mr. Mitch Haas, Planner City of Aspen 130 South Galena Aspen, CO 81611 A'=:lr'C!'I;/ r'~ I i'~.; COMMUNITY DEVELOl-'MICNT AT&T Wireless Services Suite C-1 1001 16th Street Denver, CO 80265 RE: Telecommunication Ordinance Dear Mr. Haas: Thank you for giving AT&T Wireless Services the opportunity to review the proposed amendments to the Wireless Telecommunication Services Facilities and Equipment Ordinance. My comments are as follows: Section D. Application Subsection 4:. J'his provision is not clear when referencing the requirement for elevation drawings ip.d photosiw-ullition Qn "abu.tting parcels", Further ~Iarification is needed. , .. .' ',," /'," -'_.'- ,,'" c..' _,'," ,_.. , " -,- .' S~bsectiiIll5:' A j\h;;tometri~ studyseerr!sexcessfveiIl1d,nofrequired in other j1.lrisdicitons we cUrrently operate. Consideration must also be given to FCCJF AA lighting requirements in which the City or AT&T have no control. . General Comment: Requiring both photo simulation and elevation drawing seems excessive and hopefully will not be required for future minor modifications on existing facilities. Subsection 6: We have no problem providing engineering information, although, in most jurisdicitons the Building Department handles this function and ascertains conformance with the Uniform Building Code. It is very difficult to anticipate collocations and shared use, therefore, it is our recommendation that the City mandate a free standing (not stealth) facility be built to accommodate one other user. Subsection 10: AT&T will provide a listing of existing sites, but not a Master Plan. This information is confidential and jeopardizes competition. The location of future sites is directly related to the demand in your community and plans consistently change. Plans are normally accurate for no more than one year in the future due to a constantly changing customer base. AT&T stronglYObjects!oth\'last se~ten~e in this subsection. Operting previously approved sites fod-eview and alteration is totally unacceptable. Each sitds interdependent upon an adjace,nt fli9ility. Jeopar:dizingtl).e locatiort ()fpreviousl:y ~pproved}ocations would inhibit our ability to pro:vide acceptable servi. ceo ..... .... '. ...... " ," - 00 \6 S Recycled Paper ~ , . t~ .r-, ~ Section E. General Provisions and Requirements Subsection 1: Prohibiting facilities in any district is a concern to the industry. Technology advancements will allow wireless local phone service to all potential customers in every zone district. What will the City's position be if a wireless provider could use a light pole (support structure) in a residentially zoned area and mitigate visual impacts? Subsection 6: The industry is willing to use all facilities, right of ways, etc. available from the City. The arrangement should be on a lease basis because franchising is not acceptable and in violation ofFCC rulings. Subsection 7: Consideration must be given to the fact that some facilities may require whip antennas and therefore may not be in a triangular or circular array. Subsection 9: AT&T would prefer a sixty (60) day period to remove the facility after abandonment. The City is also requiring a bond for removal in the amount of 150% of the facility valuation. Why can't the bond be in the amount estimated for only removal and restoration? Section F. Review Standards Subsection 1.a. The word "towers" in the third line should be changed to antennas. Roof mounted antennas must be installed at the edge of the roof line. Wireless technology is line of sight, therefore, installing antennas as close to the center-point of the roof will prevent and inhibit signal directly around the building. This shadowing effect is not acceptable. AT&T recommends deleting the provision not allowing antennas on pitched roofs. Stealth designs can incorporate antennas within cupolas, etc., mitigating visual impacts. Subsection 1.c. The setbacks seem excessive especially from public roads. AT&T would recommend the right of way be inclusive of the 300' setback. Subsection 1.d. We must take into consideration that some Landlords may only allow one service provider on their roof. If the rooftop facility is screened to mitigate visual impact, why is the 100' separation pertinent? Subsection 2.a. Does the 10' height restriction take into consideration the parapet wall? Same comments as above as to mounting antenna away from the roof edge and installation on pitched roofs. Again, thank you for the opportunity to comment. Please call me at 303-573-3277 if additional discussion is needed concerning theses comments. Sin rely, ~dz~~ e M~ager ~, " !"""'\ , Aspen-PitkJn County Communications Center , ' ^. , " ,- ,', . ".', . "',',.' , , - , , PlUcin'countY ~i"r!ff . RECEIVED AspOnPOlice BasaIlPolice S EP 4. 1998 . S..wm... YIIlave Police , _ , ,AsperFi,re. ' . ASPEN/ PIl KIN' AspenAmbulan~ COMMUNi-TYDEVELOf'MEN-T ' BasaIlFire&EMS' Snowmass: Wfdcat Fjre' & EMS Carbondale Are & EMS MEMORANDUM -, -- , RECElVED 'r? IllllB . . ASPEN I PITKIN . i COMMUNITY DEVELOPMEN Subj:' . ".. - . . . .'< ' - '." , ' " - , . , . ", - . . . ." , -'.:, ' , ",., ",",';,', -',,'- '" """",, '-:" "",," " . Cod6IT ext Amendments-..Wireless Telecommunications SerVices . Fa.cilities and Equipment . " ": "'-" .;',' ,::',," ',-.,',,:' ",', :'" ,- "'" ,', " '" .." "'.. .,," " """,.' ". . The. following .qremy comments regarding the information you provided to me dated July. 27, 1998. Please let me know if you have.any questions or require 'any clarific~tion~ of the information I provide. , '-, , Page 2 ..,.. Paragraph 1 '. . PCSuses freqLienci!3s hiaher (900 lI/!Hz. t01.9 Ghz.) than traditional cell!Jlar (800 MHz.) not lower. PCSmay' require twice as many communication facilities (or more orless depending on topography and system engineering). . . . . . . , , ,: '" }', ',', ," -', ; , , " " . Page 3 - 26.40.120 (A) . The ferm "cellular' should be replaced with the term . "wireless" ,,~ , " - .', . ,," . , Page 4 - 26.40.120.(8) I. believe that you intend to protect the, typical 'Jesiden~ial radio and t~levision.reception from being impacted by this, code amendment. . If that is the .case, loelieve that you' mean "receivers': and not "trans,mitters" when referring to radio and television. A tran~mitter is the device oWnEid by ttie television/radio station ami/or translator system that sends the signaltothe home to be picked up by the receiver. . " .t . ." 506 East Main Street, Dept. C_ " " ASpen; Colorado 81611 970-920-5310 . FAX: 97()"920~5339 1"""'\ ~ Mitch Haas Memo . 'September 2,1998 Page two . . . Page 6 ~ 2,6.40:120 (1;) . Is it your intent that th.e .general provisior,lS apply to . .' . only cOrTlmercIa:1 service providers within thesco~e~ of_ thi~ document ,or more . generally? For e~ampl,e, are the emergency se,Mce providers that are exempt . from the cOde {based on the changes-in defirlitiops .on page 13) also exempt from the statement in 26,40.120 (E){1) thatLattice towers are prohibited within tile . City of Aspen? . '. " . " "-,' ,-,' ' , ,-' . Page 7 ~ 26.40.120 (E) (3). and Page j5~ 15.04:470 'I.am.unaware as to Where , this procedure/language carn.a from but: according to myinfoirniition, the, City of ASPen would have no autnorityin regards to radio irtte.rfererice. The FCC has a . publication (also available at www.fcc.govJBureaus/Coffioliimce/WWW/tvib06k:html) that is an'lnterf,erence. Handbook. This is an.excellent ~0~1 that explains options fo~ dealing with.interference'includingthe limit,s on responsibility. 'Even if aTadio . system (be it cellular, PCS, paging, etc.) isengineered;properlyand mainreined 'to sPecificatronsand.standards, it may still cause some degree of intElrference. .1 don't believe .that a localgovemment has any jurisdiction 'over the airWaves. or . elec}ronic equipment. '. Perhaps the City could have tn.e applicant provide a . 'staten'1entsayiAg thattl:1e,wireless provider ~i11 strive to identify anq minimize interference complaints received from the public. . . -;\ , '. Page 7 -26:40,120 (E) (4) TheFSderal Aviation Administration is responsible for , the approval oftowers and antennas that ene near airports.. The Federal . Communications Commission wil1n6t approve an FCC license unlesS they are' . satisfied that the FAA has approved ttieplacementand height of an antenna or unless they are satisfied that theldcation (s,oLftside the 100:1 glldeslopeofthe airport.. Pitkin County ("S:ardyField ,A;irport Administration") has no jurisdiction to . . '. . approve 0r'deny a facility' or equipment off of Airportproperty for reasons.of . '. airport safety. 1 do not betievethat a localgoveminent should assume additional ' areas of responsibil.ity for areas th-atthey qonot have juriSdiction. ., '. The terrn"cetlular" should be replaced with th~ term " " ';C",-'-' '.- ,'.: ',', _,' -', "",.' ' ,,',' '~ " Pag~ 10:'- 26.40.120 (~) (3)( d). The term '''cellular'' should be replaced with the term "wirele~sff' . . . ("""\ . ~ . . . . Mitch Haas Memo S~ptember 2,199B. Page tlireE? . '. ,:, " ,: ' , " . .' . - - ~ , < .: " ':",', -' "", ' ',' - , '~~ ,', ',' , - " '.-" " " - " Page 12 - 26.04.1 00 As stated above, I beli~ve the intent would be. to have. the code not apply to residential radio and televisiQn"receivers" and not . '.'transmitters",as itiswritten." .. Page 13- Definitions' . I would suggestmakfng the following change in I;:>oth defioitions of publicfa.cilities a,nd essential se'rvices as' follows: "useg exclusively . for law enforcem.ent, flre,emergency response, or othergovemmentagendes". By adding the phrase "other government agencies",.the City of Aspen's own . radiO systems (City Channel, Parking; Streets, etc.) w041d be covered by the. definition. As your definitions stand now; theywould'not be covered and..would be subject to this new code. . .