DC-19-0001: Land Use Code Text Amendments related to Small Cell Wireless Facilities

Approval and Effective Date

The Board of County Commissioners approved Resolution 2020-16 on Feb. 13, 2020, effective March 1, 2020.

Referral letter and draft proposed Land Use Code text amendments

View the referral letter and draft proposed Land Use Code text amendments, June 18, 2019.

Background

On Feb. 14, 2019, the Board of County Commissioners approved authorization for text amendments to the Boulder County Land Use Code related to Small Cell Wireless Facilities (“SCWF”).

A need for Land Use Code text amendments was identified by Land Use staff working in collaboration with staff from the County Attorney’s Office. Staff identified opportunities to streamline and clarify Code provisions, and better align land use review of telecommunications facilities for the development of SCWF. The amendment is timely and necessary because the Federal Communications Commission (FCC) recently updated their interpretation of the Telecommunications Act of 1996 with regards to SCWF, and issued orders that restricted the following:

1. the allowed timeline for local government approval of SCWF;
2. the amount of fees local governments may require for approval, siting, and permitting processes; and,
3. the type of aesthetic and design requirements local governments’ may place on SCWF.

Furthermore, relevant Colorado statutes were revised in April 2017 (view HB17-1193 Small Cell Facilities Permitting And Installation information) in anticipation of the emergence of SCWF, and substantially reflect the FCC’s interpretations and orders.

The updated Code language will reflect the goals and policies of the Telecommunications Element of the Boulder County Comprehensive Plan, which calls for the county to accommodate the use of current and evolving new telecommunications technologies. The updated Code language will also balance the need for adequate regional and community telecommunications facilities to serve the needs of governments, businesses, and citizens of Boulder County while minimizing any negative impacts associated with the facilities.

Staff anticipates making amendments to relevant content in Articles 3 and 4 and will make any other revisions to the Code necessary to integrate the changes.

What authority does the county have?

Authority is different depending on if the facility meets the definition of small cell wireless mentioned above. For small cell wireless, although we have to allow these in the Right of Way (ROW), the county will adopt design guidelines (color, consistent architectural design, integration of accessory equipment into the pole or below grade) which facilities will need to meet.

For the non-small cell facilities the Land Use Code has provisions which must be addressed through a more rigorous review process. For new towers:

• Providers must show they have considered alternative sites and the site selected is the most acceptable alternative.
• Facilities should be collocated.
• When feasible use of existing buildings or structures should occur.
• Carriers should take a comprehensive approach to their system in order to minimize the number of sites required.
• Screening and means of camouflage should be utilized such as tower colors or design to blend with surrounding areas, fencing or landscaping around support structures.

County Authority when reviewing telecommunications towers and facilities

The county has local authority regarding the placement, construction and modification of wireless communication facilities. However, this authority is limited by both federal and state laws in the following manner:

• Local Governments may not regulate the siting based on the environmental effects of RF Emissions, although they can require that the FCC standards are met.
• Local Governments may not discriminate among providers.
• Local Government regulations and fees may not have the effect of prohibiting the provision of wireless services, including both coverage and data capacity.
• Local Governments must act on an application within a specified “shot clock” time, which ranges between 60 and 150 days depending on the type and location of the facility.
• Local Government may not deny and shall approve any eligible facility request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station, and defines eligible facility requests as including requests for the collocation, removal, or replacement of transmission equipment.

There are additional limitations on Local Government’s regulatory power for small cell wireless facilities (SCWF):

• These facilities are defined as towers less than 50’ where each antenna is located inside an enclosure no more than three cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than three cubic feet; and primary equipment enclosures are no larger than seventeen cubic feet in volume. The following associated equipment may be located outside of the primary equipment enclosure and, if so located, is not included in the calculation of equipment volume: electric meter, concealment, telecommunications demarcation box ground-based enclosure, back-up power systems, grounding equipment, power transfer switch and cut-off switch.
• The FCC’s recent Declaratory Ruling and Third Report and Order, issued on September 5, 2018, limits Local Government’s to charging fees that are no greater than a reasonable approximation of their costs for processing applications and managing deployment; requires any aesthetic requirements to be objective and published; established shorter shot clocks in which Local Government’s must process applications (60 days for collocation and 90 days for new structures); and disallows Local Governments from engaging in any regulation or the denial of applications that would result in an “effective prohibition” of telecommunication services. These rules and shot clocks thus severely limit and preempt much of Local Government’s regulatory power for telecommunications facilities.
• In 2017, the Colorado State legislature also updated its statutes regarding telecommunications facilities and included SCWF in those statutes. Colorado law thus now provides that the “the siting, mounting, placement, construction, and operation of a small cell facility or a small cell network is a permitted use by right in any zone.”
• Similarly to federal law, Colorado law also disallows Local Governments from regulating “a telecommunications provider or a broadband provider based upon the content or type of signals that are carried or capable of being carried over the provider’s facilities”
• For more information, view FCC Facilitates Wireless Infrastructure Deployment for 5G and Next Generation Local Zoning Authority 5G Wireless Broadband 101 from the National Association of Counties (NACo).

Past Public Meetings and Hearings

Board of County Commissioners Public Hearing, Dec. 12 2019

Staff presented proposed Land Use Code Amendments to Article 4-514 and other relevant sections to address an update of the Telecommunication Facilities Code. After the staff presentation, board discussion and deliberation, and public testimony, the Board of County Commissioners voted (3-0) to approve Docket DC-19-0001. The hearing was webstreamed and archived on the Open Meeting Portal.
Documents:

• Staff report for Dec. 12, 2019
• Updated proposed text amendments and small cell wireless facility design requirements and guidelines, Nov. 25, 2019

Board of County Commissioners and Planning Commission Joint Study Session on Telecommunications Planning Topics – Oct. 15, 2019

At the July 17, 2019 Planning Commission (PC) meeting PC requested a joint study session with the Board of County Commissioners (BOCC) to address the following topics:

1. Understanding the relationship between height, density, and emissions for macro-cells and small cells;
2. Feasibility, analysis, and incentives for co-location;
3. Third party verification; and
4. Small Cell Wireless Facilities Design Requirements and Guidelines associated with proposed Small Cell Wireless Code provisions.

The study session outcomes will inform potential changes to the Design Requirements and Guidelines that staff will present to the BOCC when seeking approval for the proposed Code provisions for Docket DC-19-0001. The session also helped identify additional steps that may be appropriate regarding potential future policy or Land Use Code amendments related to telecommunications.
Action Requested: None, information item only. Public testimony was not taken at this time.
Documents:

• Staff report for Oct. 15, 2019
• Staff report Appendix B – Background on Radiofrequency Electromagnetic Radiation and Health
• Staff presentation, Oct. 15, 2019
• Imagining Future Cities: Aesthetic Design Guidelines for Small Cells, by Irena Stevens, Sept. 26, 2019
• Small cell siting challenges and recommendations, August 2018
• Presentation by Michael Cotton, The Institute for Telecommunication Sciences
• Presentation by Kevin Gifford, University of Colorado
• Presentation by Verizon
• Staff report to Planning Commission for Nov. 20, 2019

Planning Commission Public Hearing, July 17, 2019

Land Use staff presented the current draft proposed Boulder County Land Use Code Amendments to Article 4-514 to address an update of the Telecommunication Facilities Code with relevant content in Articles 3 and 4 and any other revisions to the Code necessary to integrate the changes in Docket DC-19-0001. The hearing was webstreamed and archived on the Open Meeting Portal.
Documents: Staff report for July 17, 2019

Contact for this Docket

Kathy Sandoval, Planner II
Phone: 720-564-2620