Prepared by Kreines & Kreines, Inc.
58 Paseo Mirasol
Tiburon, CA 94920
(415) 435-9214
(415) 435-1522 (fax)
In cooperation with the
Cape Cod Commission
3225 Main Street, P.O. Box 226
Barnstable, MA 02630
(508) 362-3828
(508) 362-3136 (fax)
E-mail: frontdesk@capecodcommission.org
Kreines & Kreines, Inc.
Ted Kreines
Susan Kreines
This project was funded in part by a Municipal Incentive Grant awarded by the Massachusetts Department of Housing and Community Development.
Throughout the United States, there is a proliferation of new structures on the landscape: facilities designed to serve the growing market for mobile telephone and other personal wireless services. Wireless telephone firms have installed approximately 22,000 transmission sites nationwide during the past fifteen years. Another 100,000 antenna installations, including thousands on towers several hundred feet high, will be needed over the next few years to expand services to meet projected demand.
Numerous new wireless facilities have been constructed on Cape Cod in recent years. Varying in height from 35 to over 300 feet, these towers have a powerful impact on the visual character of the Cape. In the relatively flat, low topography of Cape Cod, they create a serious visual intrusion on the landscape.
The Cape Cod Commission was created in 1990 to coordinate and manage growth and development in Barnstable County. Concerned about the impacts of this new communications technology on the Cape's character, the Commission sought and received a Municipal Incentive Grant from the Massachusetts Department of Housing and Community Development to develop Siting Criteria and a Model Bylaw for Cape towns to plan for and regulate the siting and design of what are formally called "personal wireless service facilities". The Commission retained the firm of Kreines & Kreines to assist in the preparation of both the Siting Criteria and Model Bylaw.
The purpose of the Siting Criteria is to provide Cape Cod towns with the knowledge needed to plan for wireless facilities. The document outlines the key factors that towns must consider in planning for these facilities, including the legal requirements of the Telecommunications Act of 1996, technical aspects of wireless technologies, public safety issues and local regulatory mechanisms. It is intended to be a primer for the towns to help them understand industry needs and identify locations for these facilities that are suitable and consistent with community values.
II. Development of Wireless Service Networks
There are three parties to decisions of how personal wireless service facilities are developed. The three parties in this process are:
Each party has an equal role and a great deal of negotiating may be required before wireless system development can be successfully completed.
Until the Master Plan is complete, the towns and the Commission must review applications for wireless service facilities on an individual basis. Every application for a personal wireless service facility begins with a carrier, or some party seeking to work with carriers, who wants to develop a site (see Section III, Definitions). The site may have been determined by one or more different processes, but the result is the same: someone in the wireless industry must approach the local government with an application for the local government's approval of that individual site.
A town should ask an applicant for any information it feels will bear on its review of an application for a personal wireless service facility. Consequently:
The purpose of the Siting Criteria is to assist Cape Cod towns in reviewing these applications. It explains the criteria necessary for good design which can be used to evaluate any individual proposal submitted by the carriers.
The document also provides planning tools necessary to guide the development of wireless networks in Cape Cod towns. With this report, siting and design of wireless facilities can be planned for in advance of receiving applications. The towns may provide this report to personal wireless service facility applicants and indicate that applicants should view the report as guidelines for review of their application.
The language involved in wireless communications can be confusing: there are many technical terms and different individuals and organizations use different terms to describe their facilities. The following are the words most commonly used in regulating and planning for personal wireless services.
This section of the Siting Criteria outlines some key issues and choices in managing the development of wireless services. Some of these issues can be quantified and others will require judgement by each of the towns. This section begins with a discussion of the Telecommunications Act and proceeds into more local issues, concluding with a description of federal environmental review requirements.
The Telecommunications Act of 1996 (the 1996 Act) contains important provisions for towns concerning the development of personal wireless service facilities. The 1996 Act establishes a comprehensive framework for the exercise of jurisdiction by state and local zoning authorities (FCC Fact Sheet #1, 4/23/96, p. 1).
"Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities."
The limitations of Section 704 on local government are that a local government shall:
Section 704 of the Telecommunications Act does not contain any provisions or potential provisions that preempt local land use regulation regarding barriers to entry.
Removal of Barriers to Entry ... No state or local regulation or other legal requirement can prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.
Section 253 (b) states that:
Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis... requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.
Section 253 (d) states that:
If, after notice and an opportunity for public comment, the Commission (FCC) determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates subsection (a) or (b), the Commission shall preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency.
The FCC interprets subsections (a) (b) and (d) as limitations on local government zoning authority outside of the provisions of Section 704. However, nothing in Section 253 restricts local governments from imposing, without discriminating, requirements necessary to protect the public health, safety and welfare.
The most commonly asked question about a personal wireless service facility is "How high does it have to be?" There are many possible answers to this question. A personal wireless service facility can operate at any height which the town and the carrier agree to.
Height is usually measured in two ways:
It order to eliminate error, the term "AMSL" or Above Mean Sea Level, should be used to denote ground elevation and the term "total elevation" should be used to denote AGL plus AMSL.
Height is a determinant of coverage. The taller a personal wireless service facility is, the more coverage can be obtained. Shorter personal wireless service facilities have less coverage than higher personal wireless service facilities and therefore more short personal wireless service facilities are needed than would be needed with tall personal wireless service facilities.
Most very high towers are either lattice towers or guyed towers (see Definitions). Heights can range from hundreds to thousands of feet. The industry uses such towers because:
Some broadcast towers are thousands of feet high, but these services have a very low frequency and a very high power function. Personal wireless service facilities have no need for such heights and, if found on a broadcast tower as a co-location, are usually much lower in position.
Some carriers in other regions of the U.S. offer personal wireless service facilities at very low heights. Figure 9 illustrates that height determines coverage and lower mounts can achieve the same coverage as higher mounts. They just need to be separated by a smaller horizontal distance.
Choice: Local governments can either have a few tall mounts (coverage phase) or a larger number of short mounts (capacity or residential phase) in the initial phase of developing a wireless system. The tradeoff is: accept many short facilities right away, or start with just a few tall ones. Either way, the ultimate pattern is likely to result in many shorter facilities rather than just a few tall ones. Therefore, it may make sense for towns to encourage shorter facilities in the early stages of development.
When buildings of sufficient height (above 25 feet) are available, a personal wireless service facility can be roof-mounted. These roof-mounted facilities are limited in coverage since the signal will only travel so far. Slightly higher buildings (e.g., above 30 feet) and structures may have side-mounted personal wireless service facilities, which attach to a wall or a structural member such as shown in Figure 10. Water tanks, church steeples, even commercial signs and billboards, have side-mount potential if the carrier is willing to use a mount on this type of structure.
Most carriers prefer to build higher facilities in the first phase of development of their systems because the objective initially is to achieve the most coverage from the fewest cell sites. The higher the mount, the greater the coverage from each cell site, but these heights will not be needed later, as the network is more fully developed. As shown in Figure 11, in the initial
phases, the most coverage from each cell site is of primary concern to the carrier due to initial costs. When more subscribers demand service, capacity sites will be added and, since they share service areas with the coverage sites, one of two shifts must occur:
Ultimately, the mounts must serve every residential neighborhood in a jurisdiction, and then the heights and power will be very low. Residential "microcells" illustrated in Figure 12 are probably five to ten years in the future, and their designs are still in the development stages. If carriers were required to begin with the residential phase, instead of ending with the residential phase, the personal wireless service facilities would be much shorter than those in the coverage phase, but there would be many more of them in the early years. That would be very expensive for the carriers.
Choice: While carriers may present proposals for tall facilities based on specific RF engineering requirements, an independent RF engineer will be able to evaluate a carrier's proposal and may find that several short mounts will work just as well as one tall mount. The tradeoff is that someone must pay for the independent RF engineer. As part of the town's review process, the cost of hiring an independent consultant can be passed on to the carrier provided that the town has voted to adopt the provisions of Chapter 593 of the Acts and Resolves of 1989 (for further information see also Section V.D.4).
The term "safety" refers to physical hazards that can be measured. Towns may establish safety requirements to protect both persons and property.
1. Fall Zones
Many jurisdictions are concerned about the hazard of structural collapse of personal wireless service facility structures, thus they wish to delineate a "fall zone" or area within which no other structure, property or use can be located around wireless facilities.
Fall zones should not be confused with setbacks. Fall zones are based on physical phenomena that can result in hazard beneath a tall structure such as a monopole as well as a guyed or lattice tower. The hazard is not only from structural failure but also from ice and other objects being blown or falling from the structure.
A fall zone is measured by radius. Towns should consider requiring a fall zone equal to the height of the personal wireless service facility. Requiring fall zones can prohibit the location of a structure near existing buildings or property lines. This can be especially important on Cape Cod where small lots are common and habitable buildings are in close proximity to each other. Requiring fall zones around wireless facilities would mean that tall facilities could only be located on larger lots and that small lots could contain only short wireless facilities.
There are currently no local standards for fall zones, and most industry spokespeople claim that "towers" don't fail. Some manufacturers of tall mounts claim that their structures are deliberately constructed to bend at the middle or collapse onto themselves when stressed. Other manufacturers do not make such claims. It may be difficult for town representatives to validate carrier and manufacturer claims.
A consultant for Sprint PCS provided the following information about fall zones, using as his source Atmospheric Icing and Tower Collapse in the United States, N.D. Mulherin, U.S. Army Cold Regions Research and Engineering Laboratory, 1996.
A recent study found that of the 146 tower failures in the United States since 1959, only one free standing tower (310 foot) has collapsed. In addition, the study determined that debris from tower failure is usually contained within a radius of 50% of the tower's height (above ground level) from its base.
Part of the rationale for requiring fall zones is that wind can blow litter and ice from the mounts. But wind plays another role in the design of personal wireless service facilities: the amount of "sail" that can catch the wind will affect the structural integrity of the facility. There is a limit to the area of opaque surface(s) that can be placed on a mount before those surfaces risk deflection and (ultimately) structural failure. Wind loading argues for lower mounts with antenna arrays kept close to the mount.
Figure 13
Hurricanes can pose a threat to any structure. Wind loading may be satisfied as a manufacturing standard, but the mount itself could be threatened in some situations. A leading manufacturer of monopoles has stated the following in its literature:
While failure is extremely rare in any kind of tower, it is especially so for monopoles and self-supporting towers. In fact, only if a monopole were subjected to a direct hit from a tornado or the severest of hurricanes would failure be predicted.
Monopoles are not towers, but rather single shafts of steel or concrete (lower monopoles can be made of wood). A monopole is generally structurally acceptable up to 200 feet in height AGL, above which its structural integrity is challenged by wind and deflection.
One of the strongest arguments for fall zones is the risk of ice loading. When ice builds up on tall structures, its effects are hazardous:
Industry Comment: The representative of one carrier commented that a fall zone concept would not work on Cape Cod, where there are many small lots. He further noted that ice loading on tall mounts does not occur in the same season as hurricanes.Response: The Cape has a variety of different sized lots, depending on the location. Also, the Cape often experiences very high winds during winter "northeasters."
Choice: Local governments can exert safety rules within their zoning regulations or they can relax these rules in order to accommodate industry's requests.
2. Railings on Building Mounts
All of the above safety concerns argue for the preference of low-height roof mounts or side mounts on buildings. But installing and servicing these personal wireless service facilities can be dangerous, particularly when they are close to the edge of a roof. Some local governments are requiring handrails so that workers are more aware of the hazard and less prone to accidents. Towns should assess potential safety issues when reviewing applications.
Co-location is the practice of installing facilities for multiple (two or more) uses at one location. Several factors affect the feasibility of co-locating:
Two popular forms of co-location are shown in Figure 4. Horizontal co-location, shown in Figure 7 consists of two or more personal wireless service facilities built next to each other. Some jurisdictions do not permit horizontal co-location, while some encourage it.
Co-location is a double-edged sword. While co-location can maximize the use of prime cell sites, it can create a visual disturbance from such maximization. In addition, the industry maintains that co-location requires a taller structure to accommodate each facility as well to provide the necessary space between facilities. This is shown in Figure 14. And while co-location is economical for carriers, they may avoid it, primarily for competitive reasons. Carriers are also concerned that co-location may cause interference because their antennas are placed close to other antennas. For co-location, a tradeoff must come into balance: is it better to have many single-user sites with limited visual impact at each location, or is it better to concentrate the sites into a few locations with greater visual impact associated with each facility?
Choice: Local governments may limit co-location to the least physically or visibly intrusive configurations (e.g., two or three carriers per vertical co-location), may require it in all cases, or encourage co-location wherever the industry is willing to provide it. In some extreme cases local governments are permitting only low single-user sites everywhere.
The industry cites several barriers to co-location:
In many states, municipalities require applicants for personal wireless service facilities to attempt to co-locate. Documentation must be submitted in some localities proving that co-location is infeasible. This is called a "co-location statement" (see also Section V.D).
Co-location is not simple. Here are some issues for local governments to consider when deciding whether co-location should be required of wireless service providers:
The greatest barrier to be overcome for the public sector is reluctance to co-locate on the part of some carriers. In this case, a carrier must provide the rationale and documentation of why co-location is not appropriate in a co-location statement.
Choice: Encouraging co-location to avoid proliferation has tradeoffs: the more carriers that are grouped together, the greater the visual impact at that particular co-location site, but the less ubiquitous personal wireless service facilities will be.
Similar to radio reception, there are several sources of potential interference to a clear reading of a signal. Two types of interference encountered in the installation and initial operation of personal wireless service facilities are:
There are several variations on the above two types of interference upon which testing can be done, and most varieties can be engineered down to acceptable levels. The determination of how to eliminate interference is best made by a RF engineer. Local governments can retain their own third party expert to test for interference at the applicant's expense.
In order to determine whether interference is going to be a factor, it is imperative that testing of each proposed personal wireless service facility by the applicant be undertaken prior to approval of any personal wireless service facility. It is important that public communications representatives (e.g., fire, police, dispatch, etc.) participate in the test. The precise signal, height and sectorization (directional design) of antennas can be replicated and police cars, fire engines, or any vehicle can drive by to experiment with the potential for intermodulation interference. The same is true of fixed point wireless communications. These tests should be conducted by a RF engineer and must be conducted to satisfy the Federal Communications Commission (FCC) in any event. If, after installation, any new personal wireless service facility creates an interference problem with a pre-existing communications facility, the carrier operating the new personal wireless service facility must resolve the problem or risk revocation of the personal wireless service facility license. Towns could condition projects to require elimination of such interference, but towns should be aware that the carriers are also required by FCC regulations to do so.
Some of the procedures used to resolve interference problems are as follows:
Choice: Towns can become involved in interference testing or they can rely on the carrier's compliance with FCC regulations.
Noise is described as "unwanted sound." Of all the issues and choices, the measurement of noise from a proposed personal wireless service facility is the most difficult to anticipate and measure. In any technology, noise can result from moving parts or as a result of nature impacting a facility. Rain falling on a tin roof or high winds moving through a lattice tower are examples of natural noise impacting man-made structures without moving parts.
There aren't many functioning parts of a personal wireless service facility that generate noise. The most common example is air conditioning, which is only used in cellular equipment shelters. In some cases, other equipment may be included, such as generators for back-up power supply. However, on Cape Cod, where high winds blowing through a structure may be a factor, ambient noise readings should be taken.
Noise can be predetermined from manufacturer's specifications. The local government should have standards comparable to manufacturer's specifications (e.g., decibels at 50 feet from the noise source). It is important to use day/night measures, such as Ldn or CNEL, in order to account for greater nighttime sensitivity.
In the event that measurements of noise are needed, the following protocols should be followed:
Choice: If a town feels that potential noise could be a problem, then an acoustical report should be required. Many times this decision is dependent on sensitive receptors that are nearby: e.g., schools, residences, hospitals, parks and open space. Towns may need the assistance of a consultant to help evaluate potential noise impacts and reports submitted by the carriers to address this issue.
The issues of visibility and design should also be considered by the towns in the review of wireless facilities.
1. Visibility
Visibility is a key consideration in evaluating proposed personal wireless service facilities. It is important to rank areas of high visibility (no visual clutter such as trees and buildings) and low visibility (numerous interruptions to the view, including topography and overhead wires or signs) in order to plan for these facilities.
Scenic vistas are of particular importance. These should be identified and preserved, as shown in Figure 16. Overlay districts can be established for the preservation of scenic viewsheds, as well as for preservation of other environmentally sensitive areas.
However, visibility impacts can occur in individual situations as well as over a general area. For example, as illustrated in Figure 15, placement on a roof or behind (rather than on) a ridgeline can determine how visible a personal wireless service facility will be. It should be noted that handsets can receive signals from antennas even if the antenna is not immediately visible as shown in Figure 17. Radio signals actually penetrate opaque surfaces with varying ability. An antenna that can't be seen is not necessarily a dysfunctional antenna.
A common way to view the landscape is from an automobile. The "view from the road" is of particular concern because road corridors are prime locations for wireless facilities, since the mobile user is most sought after by carriers. Figure 18 is a plan view that suggest breaks in trees and topography should not allow views of personal wireless service facilities. Figure 19 shows how low mounts can serve the road as well as the areas beyond it.
2. Camouflage
There are several ways to disguise wireless facilities from public view. The wireless industry often uses the term "camouflage" to describe these different methods.
For example, placing a personal wireless service facility within trees is an excellent way to camouflage it. The industry resists this approach because leaves and other types of foliage weaken the radio signal; however, the signal will work, it just won't be as strong as without tree cover. Figure 21 shows a drawing of a monopole in trees submitted with an application for a personal wireless service facility. While facilities like this can be effective, keep in mind that the diminished signal of one personal wireless service facility may affect the location of other facilities in the overall network.
Fiberglass is a man-made material that is totally pervious to the radio signal. False walls, columns, and other building elements can be used as screens for personal wireless service facilities that a town doesn't want to be visible to the public. Careful selection of construction materials and color can also help to blend the facility with surrounding buildings and landscapes. Side-mounts on buildings can also be disguised as architectural elements. These applications may be especially useful in historic districts or areas where sufficient development density exists (see Figure 3).
The provision of landscaped buffers may also help to camouflage wireless facilities and equipment shelters (see Section H below). Landscaped buffers should be designed to provide effective screening at the time of planting and to be effective year-round. The depth and height of buffers will depend on surrounding views and the proximity of the facility to residential areas.
3. Design
Closely linked with camouflage techniques is the actual design of an individual wireless facility. Design is often considered separately from "siting" in that design means "appearance" while "siting" refers to placement. However, the two are interrelated and can be considered together. For example, a typical sectorized antenna array on the "top hat" of a tall mount is highly visible as shown in Figure 20.
However, new antenna designs such as the cross-polarized antenna places the antenna next to the mount and can reduce the degree to which a personal wireless service facility is visible. Thus, design of the wireless facility, including the mount and associated antennas, as well as siting can render a proposed personal wireless service facility almost "invisible," as also shown in Figure 22.
Every wireless facility requires an equipment shelter. The design of equipment shelters should be reviewed by local boards because of their potential visual impacts and environmental issues.
1. Environmental Issues
Depending on the type of technology, equipment shelters generally contain batteries and/or fuel-powered generators which provide emergency power to the wireless facility. Within environmentally sensitive areas such as Wellhead Protection Areas, oil generators should not be allowed because of the potential impact to water supplies. Instead, natural gas or propane should be used to provide emergency power. In addition, batteries and any other hazardous materials housed in equipment shelters should be minimized with a containment area designed to ensure protection of sensitive resources.
2. Design of Equipment Shelters
Equipment shelters are large structures which should be designed to minimize visual impacts. When the site is visible from public areas, design of these structures is particularly important. In these cases, towns may consider requiring equipment to be located in underground vaults provided there are no environmental issues or archaeological resources present. If equipment shelters are located above-ground, they should be camouflaged with a landscaped buffer which is effective year-round, or designed to be consistent with traditional Cape Cod architectural styles, including a pitched roof and shingle or clapboard exterior siding.
NEPA requires environmental review of projects capable of having a significant effect on the human environment. In "Radiofrequency Radiation Emissions" below, the FCC Guidelines are discussed. In fact, the FCC Guidelines are:
Choice: Because emissions dissipate very rapidly as they leave the antenna face, one good rule of thumb the towns can follow is to make mounts high enough that emissions are not a problem. However, the dependence on height will be a"trade off" with the visual impact of the personal wireless service facility on the surrounding area.
Most co-locations will probably not exceed the FCC Guideline threshold. A co-location may become a problem when the antennas combined together are close enough to the general population so that radiation hazard could occur. For FCC purposes, any mount less than 10 meters (33 feet) above the general population's access to it may require measurements in the event of co-location.
Choice: Because NEPA is a federal requirement, towns may choose not to be involved in RFR review. However, NEPA provides many of the levers that a town needs to exert its approval authority. These are discussed in the following subsections.
1. Environmental Assessment
NEPA is not only invoked by the potential of RFR. Aside from its concern with RF emissions, the FCC also requires further scrutiny when one or more of several potential environmental impacts are possible. This "further scrutiny" is called an Environmental Assessment (EA). The FCC's interpretation of NEPA requires that an EA be prepared by an applicant for a cell site if the cell site falls into one, or more than one, of the following eight types of categories, as well as if the site would exceed the FCC Guidelines for RFR:
All of the above concerns involve areas or points that can be mapped. The Cape Cod Commission is preparing GIS maps with various data encoded on them. Towns should ensure that NEPA areas of concern within their respective jurisdictions are encoded on the Commission's GIS maps.
The above areas of concern are NEPA standards that are enforced by the FCC. At present, the EA is sent by the applicant to the FCC in Washington, D.C., and the local government never sees the document. But, there are no proscriptions on local governments monitoring NEPA rules, including the FCC Guidelines, at the local level and towns are encouraged to follow the NEPA process closely.
Choice: Towns can waive submission of an EA, since it is generally prepared after their approval of a personal wireless service facility, or towns can require that a Draft EA be submitted to the town prior to the local review process. A few municipalities are undertaking preparation of an EA themselves and then back-charging the applicant for the cost of the EA.
2. Cumulative Impact
The term "cumulative impact" is used as a standard in environmental analysis. One of the major concerns of NEPA is the measurement of impacts that are not part of a proposed action, but rather related to it in time or place. Section 1508.7 of the NEPA regulations defines cumulative impact as follows:
"Cumulative impact" is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from the individually minor but collectively significant actions taking place over a period of time. (Council on Environmental Quality, Executive Office of the President, Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, Reprint, 40 CFR Parts 1500-1508, 1992)
In terms of place, the FCC has determined that RFR is additive. Each PCS personal wireless service facility, for example, is comprised of 30 to 40 transmitters, each of which is limited by the FCC to 100 watts effective radiation power (ERP). If all transmitters were operating, and a measurement was taken at the radiation center of the antennas, two or more carriers' antennas next to each other could exceed the FCC Guidelines. FCC Guidelines require an EA when a personal wireless service facility (or co-location) exceeds 2,000 watts ERP for Broadband PCS (1,000 watts ERP for Cellular). Of course, the further the radiation center is from the measurement, the less the ERP, which falls off rapidly with increased distance from the radiation center.
In terms of time, cell sites are not independent projects, but part of an overall system or network. The FCC is silent on whether cumulative impacts should be determined for these networks on a system-wide basis; however, towns should take note of existing facilities when reviewing applications for proposed personal wireless service facilities that could pose problems due to cumulative effects.
Also, local governments may want to require that the number and location of potential personal wireless service facilities within the jurisdiction (or within a specified distance of the jurisdiction) be disclosed and that the cumulative effect of these facilities be disclosed. Local governments should also consider long-term monitoring in order to detect cumulative buildup of impacts.
Industry Comment: One carrier's representative felt that applicants would balk at revealing proprietary information such as the number and location of potential personal wireless service facilities within any area. Response: Towns may request any information from an applicant that the town feels would bear on a full and reasonable review of the application. Whether the applicant complies with the request or not would be evaluated during project review.Choice: Towns can pursue the subject of cumulative impacts at the risk of being told that these are federal issues or proprietary data. The tradeoff is that if towns leave NEPA to FCC review and don't evaluate cumulative impacts, they must then rely on the FCC to enforce NEPA and to study the cumulative impacts.
3. Environmental Impact Statement
Federal agencies are required to follow NEPA at an early (proposal) stage. Section 1508.23 of NEPA states:
Preparation of an environmental impact statement on a proposal should be timed so that the final statement may be completed in time for the statement to be included in any recommendation or report on the proposal. A proposal may exist in fact as well as by agency declaration that one exists.
The FCC should have prepared an EIS on region-wide impacts of personal wireless service facilities. The region-wide impacts are more than visual. There may be too many applicants for too few prime personal wireless service facility sites and the result may be "force fits" into sensitive communities. These "force fits" can be avoided by regional planning.
The FCC has left the obligation to meet NEPA to the carriers. The FCC and the carriers have interpreted this standard as solely requiring that Environmental Assessments be prepared on selected cell sites. Other than the cumulative impacts of RFR, system-wide impacts of a network have never been examined under the NEPA standard. However, given the Cape Cod Commission's regional planning efforts, this will likely be assessed regionally on Cape Cod.
There are a limited number of prime cell sites in any given market area. By licensing carriers on a staggered basis, the early entrants may monopolize the best sites while the latest entrants may, even with co-location, be forced to make less desirable sites acceptable. This is considered resource deprivation (in this case, prime cell sites are the resource) and resource deprivation can be avoided by planning ahead. The Cape Cod Commission is working directly with all carriers and other interested parties in its regional planning effort.
One of the most controversial and misunderstood aspects of a personal wireless service facility is emissions from radiofrequency radiation, or RFR. While it is true that local governments cannot write their own standards for radiofrequency (RFR) emissions, they can regulate personal wireless service facilities by enforcing the federal standards as set by the FCC.
The Telecommunications Act required the FCC to prepare new regulations for RFR. These new guidelines, called Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation (FCC Guidelines), were published on August 1, 1996. The FCC has extended the implementation date of the FCC Guidelines from January 1, 1997 to September 1, 1997.
The FCC Guidelines set RF radiation standards for all personal wireless service facilities. Carriers can meet these standards by using equipment rated by the FCC as "type-accepted." The FCC believes that the use of "type-accepted" transmitters in single-user cell sites meets the FCC Guidelines. Use of other than "type-accepted" equipment, or the co-location of two or more cell sites, may exceed the FCC Guidelines. An environmental evaluation of RFR is required by the FCC when the FCC Guidelines are exceeded or presumed to be exceeded.
Choice: Towns can administer the FCC Guidelines for RFR for themselves, or they can leave this concern solely to the FCC.
For local governments, the resulting message should be:
The federal government, through the FCC, has set the RFR standard. But local governments are in the best position to determine siting, and thus, other environmental impacts.
Industry Comment: A carrier's attorney maintains that the FCC may preempt local governments when FCC Guidelines aren't followed.Response: There is continuing debate as to whether the FCC can preempt local governments on issues pertaining to personal wireless service facilities. However, the Telecommunications Act is very clear that local governments may not regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radiofrequency emission to the extent that such facilities comply with the FCC's regulations concerning such emissions.
Choice: If towns want to administer the FCC Guidelines, they need to take the proper steps to understand those Guidelines, avoid any conflicts with those Guidelines and have the proper expertise to review data that the applicant submits. The tradeoffs for these responsibilities are time and cost, although most of the costs can be recovered from the applicant if the town has adopted the provisions of Chapter 593 of the Acts and Resolves of 1989.
V. Local Approaches to Regulation
The following section focuses on zoning amendment options available to towns reviewing personal wireless service facilities, criteria for granting variances, and application and review requirements.
Congress preserved "local zoning authority" over personal wireless service facilities under Section 704 of the Telecommunications Act of 1996. However, existing bylaws often do not contain specific language which addresses these types of facilities. Traditional dimensional controls such as frontage, lot size and setbacks are usually designed to control density and separate structures within a given zoning district. These standard regulations may not be sufficient for wireless facilities because the impacts of these facilities may be very different from those of a conventional land use in that district.
Another limitation of existing bylaws is that they often restrict wireless facilities to specified zoning districts, usually industrial or commercial zones. This approach may not be appropriate depending on the location of these districts and visual and environmental resources within the community. This scenario is illustrated below in Figure 24.
In addition, it may not be appropriate to allow these facilities by-right in any zoning district. Consider, for example, a neighborhood commercial district containing a gasoline station and a convenience store surrounded by residential development. Figure 25 illustrates a zoning bylaw which provides for the following:
Placing a tall personal wireless service facility may not be desirable in all the "Yes" areas because these areas may be highly visible to surrounding residences and conservation areas, even though the facility is "permitted" by-right within the commercial district. It is therefore recommended that the towns look beyond the basic zoning district approach in permitting wireless facilities and develop specific zoning provisions (similar to those for parking and landscaping) designed to address the impacts of wireless facilities.
It is important to note that on Cape Cod there are few buildings over 35-40 feet in height. Given the low building heights, limited heights of tree canopies, and the relatively flat terrain, personal wireless service facilities on the Cape may have a much more significant visual impact than in other parts of the country. It should also be stressed that each wireless facility is part of a total network or system. This means that the placement of one facility will in part determine the location of other facilities in the system. For this reason, it is difficult to effectively regulate wireless facilities on an individual basis.
The Cape Cod Commission, with the assistance of Kreines & Kreines, Inc. has developed a Model Bylaw for Personal Wireless Service Facilities to assist the towns in developing or revising their bylaws to regulate wireless facilities. On Cape Cod, where a development threshold has been adopted by the Cape Cod Commission, all ground-mounted personal wireless service facilities with heights over 35 feet are required to be reviewed as a Development of Regional Impact. Locally, there are several approaches to regulating wireless facilities. The following are four options for the towns to consider:
1. Modifications to Existing Sections of the Zoning By-Law
In many towns existing zoning bylaws might be amended to help deal with issues raised in the Siting Criteria. The following are the major issues involved in modifying existing bylaws:
Definitions. There are many technical terms used to describe wireless facilities. Towns should add definitions for those terms most commonly used in regulating and planning for personal wireless services.
Height Limitations. Existing height limits may constrain the carriers everywhere within a community. The carriers state that they can only operate with high mounts and if these are not permitted the town has created a "barrier to entry". As noted above, the Telecommunications Act preserves local zoning authority and therefore zoning requirements, including height limits, should be set by the town's community values and based on protection of visual and environmental resources. Towns should consider adopting different height limits for different zoning districts, based on the visual and/or environmental sensitivity of particular areas within the town to avoid a claim of creating a barrier to entry.
Setback Requirements. Local zoning ordinances often have setback requirements from property lines and other structures. In developing setback requirements for wireless facilities, towns need to consider both the mount and antenna(s) as well as any equipment shelters associated with the facilities.
Setbacks for wireless facilities should consider visibility. For example, front yard setbacks should take into account views from roadways within the zoning district, while rear and side yard setbacks should consider adjacent land uses.
Towns can establish setbacks from buildings and property lines that take into account the fall zone of a wireless facility. The difference between a setback and a fall zone is that the setback is a specified distance designed to separate buildings and other structures from property lines while a fall zone is empirically determined based on the height of a personal wireless service facility. A fall zone can be used to determine the appropriate setback distance for the personal wireless service facility.
If building setbacks are used to regulate these facilities, the result may be that they can be located in close proximity to other buildings or in residential yards (see Figure 26). Towns should consider using a fall zone equal to the height of the personal wireless service facility to determine setback requirements. However, for towns with small lots, this means that a greater number of shorter sites will be required.
Even though using the fall zone to determine the setbacks for a personal wireless service facility may prevent locating these facilities within a building's setback, towns may consider using building setbacks for the equipment shelter associated with a wireless facility. This will vary with each jurisdiction, but a rule of thumb is: if an accessory structure is allowed within a setback, then an equipment shelter may be permissible as well. Also remember that co-locations require separate equipment shelters for each carrier, so a larger footprint (ground area) will be needed to maintain the required setbacks in the event more than one shelter is on the site.
2. Developing a New Section to the Zoning By-Law
Some towns may choose to develop a new section to the zoning bylaw rather than modify existing sections. The following components should be included in a new section to the zoning bylaw:
Please refer to the Model Bylaw for Personal Wireless Service Facilities for more information.
3. Creation of Overlay Zoning District
Creation of an overlay zone is another approach to regulating wireless facilities. Creating an overlay zone requires up-front analysis of the town's resources, such as scenic viewsheds to be protected, historic resources, wetlands and other areas of environmental or visual sensitivity. Mapping these and other resources will help towns identify areas where personal wireless service facilities can be allowed either by right or by special permit. As shown in Figure 27, there are many inputs into such a classification system that could lead to mapping such an overlay zone.
These areas should be identified by the towns and added to the Commission's GIS mapping for inclusion in regional planning efforts. These areas could then be used to designate overlay districts in the town.
4. Pre-Permitted Sites on Town-Owned Land
Towns may also consider adopting a more pro-active approach similar to that used by the town of Arlington, MA. The town first completed a survey of potential municipal locations for wireless facilities, mapped and photographed them, and prepared a description of each. The town included this information in a Request for Proposals for firms to lease portions of these properties for installation of wireless facilities. In evaluating the different proposals, priority was given to using existing facilities or structures, such as pump houses, water towers, and municipal garages, rather than construction of new wireless facilities. The RFP also specified that the Town maintain aesthetic control over design of the facilities, and that co-location would be considered. All leases for land will be subject to town meeting approval. In order to facilitate this effort, wireless facilities are allowed by right on public property in Arlington while a special permit is required for construction on private property.
Cape towns could consider using a similar approach, which has the advantage of providing the towns with income generated by the lease of town properties. Please contact Cape Cod Commission staff for additional information.
Variances are often sought by applicants when a proposed personal wireless service facility can't meet a siting criterion. Variances are most commonly sought for height limits (when a personal wireless service facility is too high to fit within the limit) and setbacks (when a personal wireless service facility is prohibited in the setback). Obviously, there are always extenuating circumstances that warrant a variance. However, variances should be avoided in approving personal wireless service facilities for the following reasons:
Because of this non-discrimination requirement, the concept of a variance being unique is eroded into something that is granted upon request, such as an exception or a conditional use permit.
Industry Comment: Variances are essential to permitting some personal wireless service facilities. It is wrong to assert that granting one variance will require granting all applicants a variance when they claim discrimination. Towns ought to have the judgment to know when to grant a variance and when not to.Response: A variance is not something to be expected. It should be granted only in unique circumstances.
In order to adequately address the development of wireless networks, not only will zoning change in many towns, but 1) the process by which applicants propose personal wireless service facilities, 2) the process by which towns review personal wireless service facilities, and 3) the approval (or denial) process will also change.
Most local governments are experienced in designing and using application forms and procedures for permits and other approvals. However, personal wireless service facilities present unique opportunities to request certain types of technical submittals. The special permit granting authority will need to establish rules and regulations specific to the review of wireless facilities. The following are three examples of technical reports towns should consider requiring when designing its application and review process for personal wireless service facilities.
1. Co-Location Statement
This document acknowledges that co-location is a requirement under the Regional Policy Plan for Barnstable County and assumes that co-location is desired in most instances by the towns. The carriers have indicated that they consider co-location desirable or are at least willing to explore it as an option. The following points regarding co-location should be considered by the towns:
Local governments should remember that there are two ways to implement co-location:
In order to understand how to encourage co-location, the local government should realize that concern over cost (the reduction or elimination of an expense) and effectiveness (e.g., the avoidance of interference) are often less important to most carriers than time. A carrier may give up resisting many Siting Criteria in order to achieve a quick site approval.
Some ways for local government to encourage co-location by carrier(s) are to:
2. Intermodulation Interference Report
Many towns may believe that interference is the carrier's problem, not the town's. However, some carriers only check for co-channel interference because that would directly impede their signal. Intermodulation interference could show up months or years after a personal wireless service facility is installed. At that time, there could be a problem determining who would fix the problem. A preferred way to proceed is to consider the following factors in a report submitted prior to approval:
3. RFR Report
Some jurisdictions would like to require RFR measurements. The Telecommunications Act and the FCC Guidelines set by the FCC do not preclude a local government from enforcing the FCC Guidelines at the local level.
Because this is an environmental analysis, there is a resemblance between traffic impact analysis and RFR analysis. Local jurisdictions that want to require RFR measurements should require applicants to submit the following:
As previously noted, local jurisdictions may want to have a third party RF engineer perform a peer review of the measurements submitted by the applicant to determine their accuracy and impact.
The ambient measurements are particularly important for co-location, even if no other personal wireless service facility is yet built on the site. An ambient measurement establishes a baseline for all future analyses, and it is an invaluable piece of historic data that can not be replicated once a personal wireless service facility is installed. The cumulative measurements are for potential co-locations and, while predictive, would be useful in comparing them with actual measurements once all co-locations are installed. For phased co-locations, this would require periodic readings.
4. Hiring Consultants to Assist in Technical Review
If a town wishes to retain an RF engineer or other consultant to assist certain local boards in reviewing applications for personal wireless service facilities at the applicant's expense, the town must first adopt the provisions of Chapter 593 of the Acts and Resolves of 1989, which allows towns to establish special accounts to hire consultants paid for by the developer. If the Planning Board (or Zoning Board of Appeals) wishes to use developer funds for review of special permits, it must adopt regulations specifying a procedure for the submission and expenditure of such funds. Such rules and regulations must be adopted under Massachusetts General Laws c. 40A Sections 9 & 12.
There are many criteria to consider when reviewing and approving personal wireless service facilities. The Siting Criteria provides Cape Cod towns with the knowledge needed to plan for wireless facilities. It is recommended that a Wireless Master Plan be prepared by the Cape Cod Commission and the fifteen Cape towns in conjunction with development or revision of local regulations for wireless facilities. The Commission has begun this planning effort by preparing GIS maps of existing structures that may be potential sites for wireless facilities. These maps are available for use by the towns in developing more detailed local plans.
The Model Bylaw for Personal Wireless Service Facilities which accompanies the Siting Criteria is designed to assist the towns in developing or revising their local bylaws for wireless facilities. Cape Cod Commission staff is available to assist the towns in the development of their bylaws and to answer questions towns may have concerning personal wireless service facilities. For additional information, please call the Cape Cod Commission at (508)362-3828.