11-30-15-R - Laserfiche WebLink

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To: Mayor and City Council From: City Attorney Subject: Regulation of cellular antennas The recent application for additional antennas on an existing structure raised some question to whether the city’s zoning ordinance properly classifies and regulates these antennas. In my opinion, the city’s ordinance follows the prevalent pattern of city regulation. Telecommunications facilities are protected by federal law (The Telecommunications Act of 1996, 47 USC § 332). Local governments may generally regulate the placement, construction and modification of cell tower through zoning ordinances, but the regulations may not unreasonably discriminate among providers nor prohibit or have the effect of prohibiting the provision of services. Consequently, all cities are required by law to allow placement in order to allow effective service. The majority of cities seek to accommodate antennas while simultaneously limiting the number of free- standing monopoles or other towers by requiring co-location, leasing public facilities such as water towers, and allowing use of existing buildings to mount new antennas. The city’s zoning ordinance, in particular § 1325.09 adopts these strategies to “maximize the use of existing and approved towers and buildings to accommodate new personal wireless service antennas in order to reduce the number of new towers necessary to serve the community”. (§1325.09, Subd. 1B). The ordinance is clear in its intent that new antennas are allowed only on property containing an existing principal use. Towers built before 2010 are allowed as conditional uses and may be the primary use on a property. Otherwise, new antennas must be located on existing towers or existing structures. However, as was pointed out at the recent Council meeting, in some cases the ordinance could be amended to clarify that the antennas, while attached or accessory to the principal structure, do not have to complement or support the other uses on the property but rather can be considered more as a secondary principal use. To give some idea regarding this point and how it could be addressed, see the draft red-line below. If Council believes additional clarification is warranted it may direct staff and the Planning Commission to review the ordinance.