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Fredericksburg Planning Commission FROM MEMORANDUM TO: Fredericksburg Planning Commission FROM: Kathleen Dooley, City Attorney DATE: July 31, 2017 RE: Text amendment for wireless communications infrastructure Issue: Shall the Planning Commission recommend approval of changes to zoning regulations for wireless communications infrastructure? The amendments have been developed in response to three events: new legislation from the 2017 General Assembly, City Council’s Broadband Priority, and a franchise application from Mobilitie, a provider of wireless communications infrastructure. The zoning regulation amendments are part of a larger package of City Code amendments that are intended to provide the legal infrastructure for granting franchises to wireless communication infrastructure providers. The other ordinances address the role of City and Public Utility Review Committee (CPURC) and the Department of Public Works in administering these franchises. The draft ordinance package is posted on the City’s website with the City Council agenda packet for July 7, 2017. The legal landscape for broadband deployment is in flux. The Federal Communications Commission is considering changes to the classification of broadband as a “telecommunications service,” and the General Assembly is expected to consider additional changes in 2018. The current legislative proposals will not be the last time we visit this topic. 2017 07 31 Memo to Planning Commission Wireless Communications Infrastructure Page 2 Recommendation: The following amendments are required for compliance with the new state law: • Exempt micro-wireless facilities from zoning regulation (lines 44-46), • Establish a 60 day deadline for review of small cell facility collocation applications (lines 68-70), • Establish criteria for review of small cell facility collocation applications (lines 100- 113), and • Amend definitions (lines 133 – 180). The following amendments are recommended to the Planning Commission in light of the new developments: • Move regulation of facilities in the rights of way to the Public Works Department (lines 42-43), • Permit collocation of small cell facilities in all zoning districts (lines 84-89), • Permit the development of wireless support structures on private property, in compliance with the maximum height standards of the zoning district (lines 91-96, and 122-126). Background: Changes in the deployment of wireless communications services: The new wireless support infrastructure addressed in this amendment is the “next generation” model of wireless communication service –providers supplement the service currently delivered through antennas on “macro” towers. Under the new model, multiple smaller monopoles, micro-wireless facilities, or small cell facilities attached to existing structures – including buildings (inside or outside), utility poles, traffic lights, street lights, etc. – provide faster service within a smaller area. The combination of macro towers, smaller monopoles, small cell facilities, and micro-wireless facilities is referred to as a “distributed 2017 07 31 Memo to Planning Commission Wireless Communications Infrastructure Page 3 antenna system.”1 The new model also focuses on placing these facilities in the public rights of way, as opposed to the traditional use of private property for the taller telecommunication (macro) towers. The challenge for the City is to support the continued deployment of a modern wireless support infrastructure, protect the historic district and commercial and residential neighborhoods, preserve the safety and function of the public rights of way, and make clear assignments of responsibility for management of the public rights of way. City Council Broadband Priority #29: City Council met for a biennial planning offsite on October 14-15, 2016, to develop a new 20-year community Vision Statement, including eight desired future states and 35 implementing projects. Council adopted the final version of the Vision Statement and Priorities Plan by Resolution 17-28 on April 11, 2017. Priority #29 is to “Create more focus on broadband to be the fastest City in Virginia for broadband.” In adopting this priority, City Council recognized the importance of modern communication capacity to community welfare, including economic development and education. 2017 Virginia Acts of Assembly – Chapter 835: This new legislation, which becomes effective July 1, 2017, advances federal, state, and local goals to advance the roll-out of wireless broadband services. The bill is divided into two major topics – (1) local zoning authority and (2) local authority to regulate the rights of way. With respect to zoning, the new Virginia law applies to “small cell facilities” and “micro- 1 A network of spatially separated antenna nodes connected to a common source via a transport medium (the “backhaul”), that provides wireless service within a geographic area or structure. Wikipedia. 2017 07 31 Memo to Planning Commission Wireless Communications Infrastructure Page 4 wireless facilities” only.2 Localities’ traditional zoning authority with respect to wireless support structures and traditional (macro) telecommunications towers is not affected by the new law. Proposed zoning regulation amendments: It is helpful to organize the proposed UDO zoning amendments by the type of facility they will affect. Each of the following discussions will define the type of facility, and then discuss the proposed zoning amendments, and whether the proposal is required by the new state law, or not required but recommended. • “Micro-wireless facilities” A “micro-wireless facility” is a small antenna, not larger than 24 inches in length, 15 inches in width, and 12 inches in height. It has an exterior antenna, if any, not longer than 11 inches.3 Under the new law, the installation, placement, maintenance or replacement of “micro- wireless facilities” that are suspended on cables or lines that are strung between existing utility poles in compliance with national safety codes shall be exempt from local zoning permitting requirements and fees.4 Thus, the ordinance includes an amendment to UDO Article 1, §72- 13.1, “General Applicability,” to exempt these facilities from zoning, and an amendment to §72-84.0 to incorporate the state code definition of “micro-wireless facilities.” Even under the new law, the Department of Public Works retains authority to regulate the installation of these facilities, if the activity involves work within a travel lane or requires 2 The new zoning statutes are codified in Code of Virginia Title 15.2,Chapter 22, Article 7.2, “Zoning for Wireless Communications Infrastructure,” §§15.2-2316.3 et seq. 3 Code of Virginia §15.2-2316.3. 4 Code of Virginia §15.2-2316.4(C). 2017 07 31 Memo to Planning Commission Wireless Communications Infrastructure Page 5 closure of a travel lane, if it disturbs pavement, or if it includes placement on a limited access right of way.5 This regulatory authority concerns the safety of the rights of way, not zoning. This amendment is required by the new Code of Virginia, effective July 1, 2017. • Small cell facilities: A “small cell facility” is an antenna and cabinet that are “collocated” on an “existing structure,” typically, a utility pole. Under the new law, a small cell facility includes an antenna of up to six cubic feet in volume with an associated cabinet. The new legislation also defines “antenna,” “collocation” and “existing structure” – terms that all relate to small cell facilities.6 Small cell facilities are often collocated on existing utility poles. Public utilities are required to negotiate attachment agreements with cable and telecommunications providers by federal law, so long as the attachment may be accomplished in compliance with applicable safety and engineering codes.7 (This federal requirement does not apply to poles owned by local governments. However, under the new state law, if a local government does choose to make its poles that support aerial cables used for video, communications, or electric service available, then it shall comply with the attachment process established by the Federal Communications Commission.8) Fredericksburg has experience with small cell facilities collocated on private utility poles. In March and August, 2016, City Council granted a license for the installation of small cell facilities to a company called Extenet. The March license authorized the installation of 12 small 5 Code of Virginia §56-484.29(C). 6 Code of Virginia §15.2-2316.3. 7 47 USC §224, also known as the Federal Pole Attachment Act. Note, the FCC’s Notice of Proposed Rulemaking, discussed in the conclusion to this memo, would eliminate broadband providers from the protections in the Pole Attachment Act. 8 Code of Virginia §56-474.31. 2017 07 31 Memo to Planning Commission Wireless Communications Infrastructure Page 6 cell facilities on existing utility poles around the UMW campus. The August license authorized two additional collocations on existing utility poles. These installations were all in the public rights of way; they were handled through the license process, and administered by Public Works. After study and consideration, City staff deemed this was the most logical route for approval and regulation of these facilities. Our current experience with the Extenet facilities is positive. They boost wireless service to a targeted area through a relatively unobtrusive attachment to an existing utility pole.9 Under the new state law, a locality shall not require a special exception or special use permit for the collocation of small
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