HomeMy WebLinkAbout08. 15-05
JANUARY 13, 2015 15-05 RESOLUTION
(CARRIED____6-0____LOST________LAID OVER________WITHDRAWN________)
PURPOSE: APPROVAL OF CONDITIONAL USE PERMIT FOR EXTENSION
OF AN EXISTING TELECOMMUNICATIONS TOWER; 1821
JACKSON STREET
INITIATED BY: NSIGHTTEL WIRELESS, LLC
PLAN COMMISSION RECOMMENDATION: Approved with conditions
BE IT RESOLVED by the Common Council of the City of Oshkosh that a
conditional use permit is hereby granted under Section 30-11 of the Oshkosh Zoning
Ordinance to extend the existing 45 ft. telecommunication tower to 80 feet and antenna
on the roof at 1821 Jackson Street, is hereby approved with the following conditions:
1. The proposed tower and tower site shall be designed to accommodate
collocation of at least two additional users per Section 30-35(J)(2)(c)(i) of the
Oshkosh Zoning Ordinance.
2. The permit holder for the tower shall allow collocation of at least two additional
users per Section 30-35(J)(2)(c)(ii) of the Oshkosh Zoning Ordinance.
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TO: Honorable Mayor and Members of the Common Councii
FROM: Darryn Burich
Director of Planning Services
DATE: January 8, 2015
RE: Approve Conditional Use Permit for an Extension of an Existing
Telecommunications Tower; 1821 Jackson Street (Plan Commission
Recommends Approval)
BACKGROUND
The subject 2.05-acre property is zoned C-2 General Commercial District and was
redeveloped in 2013 to the current Dollar Tree retail establishment with associated amenities
including an existing 45-foot tall telecommunication tower located at the southwest corner of
the property fronting Wisconsin Street. The existing tower is located within a 25-foot by 30-
foot area leased by Cellcom that was initially denied in 2000 by the Common Council for
construction of an 80-foot tower due to concerns over aesthetics and possible interFerence
with electronic infrastructure to surrounding businesses. The Council later approved a
modified request for the reduced tower height which was constructed in 2001 and designed
to allow for two additional carriers as required by code. The subject site has triple frontage
on Wisconsin Street, Jackson Street, and Stillwell Avenue and the surrounding area consists
of mostly commercial uses with institutional use to the north and transitioning to residential
uses to the northwest.
ANALYSIS
The petitioner is requesting a conditional use permit to construct a 35-foot extension to the
existing tower for a total height of 80 feet due to increased demand for data services that has
increased to the point that the current tower can no longer provide adequate coverage in its
service area. Increasing the tower height as proposed will resolve this issue. The petitioner
distributed questionnaires regarding the proposed tower extension to surrounding property
owners and requesting their feedback and of the inquiries returned, most were favorable. At
least one property owner is in opposition to the request. The petitioner has no plans to
modify the fenced in area and screening as the existing screening adequately shields the
equipment structures from view. If approved, the tower will be required to have the ability to
serve at least finro additional providers to prevent additional towers from being erected at
several locations and as demand for service increases, providers have a difficult task to find
suitable sites to meet their needs.
.
The Plan Commission initially laid over this request to allow City staff to research Federal and
State laws pertaining to limitations on local regulation of this type of request. In 2013 the
State of Wisconsin through the biennial budget process (WI 2013 Act 20) broadened and
created new legislation pertaining to local regulation of cell towers that has essentially
removed most local decision making flexibility in this regard. In particular, after researching
the new statutory provisions, staff has concluded that telecommunication facilities cannot be
denied due to health concerns, location, aesthetics, height (if it is under 200 feet), or setbacks
of the tower providing it meets minimum setbacks for comme�cial structures. Thus this
relatively new State legislation has made it virtually impossible to control or deny such
requests at the local level even if there are real concerns regarding the aforementioned
conditions. .
FISCAL IMPACT
None anticipated.
RECOMMENDATION
The Plan Commission approved of this request at its January 6, 2015 meeting.
Approved,
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City Manager
City of Oshkosh - Department of Community Development �
215 Church Avenue Oshkosh,WI 54901 (920)236-5055 (920)236-5053 fax �
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ON THE INATER
MEMORANDUM
TO: Oshkosh Plan Commission
FROM: Oshkosh Planning Services
DATE: January 6, 2015
RE: Local Regulation of Cell Phone Transmission Towers
On December 16, 2014 the Plan Commission laid over the conditional use permit request for an
extension of an existing telecommunications tower located at 1821 Jackson Street until the January 6,
2015 meeting to allow Planning Services staff time to conduct research on the Federal and State laws
pertaining to limitations on local regulation and the flexibility that would be allowed when considering
this request. The petitioner agreed to the delay and stated that he did not have any issues with delaying
the request (Staff Report from the December 16th meeting is attached).
Local Regulation of Cell Phone Transmission Towers
Telecommunications Act of 1996
The Federal Telecommunications Act of 1996 contains provisions relating to federal jurisdiction to regulate
human exposure to RF emissions from certain transmitting devices. In particular,the Act states that, "No State
or local government or instrument thereof may regulate the placement, construction, and modification of
personal wireless service facilitiES on the basis of the environmental effects of radio frequency emissions to the
extent that such facilities comply with the Federal Communication Commission's regulations concerning such
emissions."
Middle Class Tax Relief and Job Creation Act of 2012
Section 6409(a)of the Federal Middle Class TaY Relief and Job Creation Act of 2012 provided that a state or
local government"may not deny, and shall approve any request for collocation, removal, or replacement of
transmission equipment on an existing wireless tower or base station,provided this action does not substantially
change the physical dimensions of the tower ar base station".
WI 2013 Act 20
The State of Wisconsin 2013 Biennial Budget Act modified the regulatory powers of Wisconsin's local
governments in regard to cell phone towers. The new law created in 2013 Act 20 states specifically that a
political subdivision may regulate cell phone towers under a zoning ordinance,but places strict limits on how it
may do so and it specifies the procedures and standards a political subdivision must use in reviewing
applications to construct or modify towers. It also lists specific limitations or regulations that a political
subdivision may not impose on the construction or modification of an existing tower. An information
Memorandum produced by the Wisconsin Legislation Council relating to the new law is attached to this
memorandum and is summarized, as it relates to the conditional use request,below.
Appticability of WI 2013 Act 20
The law applies to local regulation of three types of cell phone transmission facility projects:
1. Projects requiring construction of a new tower
2. Projects requiring substantial modification of an existing tower and facilities, but not construction of a
new tower. Projects of this type are referred to as"class 1 collocations."
3. Projects requiring neither construction of a new tower nor substantial modification of an existing tower
and facilities. Projects of this type are referred to as"class 2 collocations."
The following information relates to the ability to review a Conditional Use Permit Request for the 45 foot
height extension of the existing telecommunication tower at 1821 Jackson Street:
1. For structures with an overall height of 200 feet or less, an increase in the overall height of the structure
by more than 20 ft is considered a substantial modification(class 1 collocation).
2. The law treats a substantial modification of an existing tower and facilities the same as a project
requiring construction of a new tower thereby allowing the City to review the request as a conditional
use.
A political subdivision may only regulate class 1 collocations as provided in the law and any state or local
ordinance in effect on the effective date of the law that is inconsistent with the law may not be enforced.
Limitations on Political Subdivisions' Actions
Under the law,the city may not do any of the following with regard to the construction of a new cell phone
tower, class 1 collocations or class 2 collocations:
a. Impose environmental testing, sampling, monitoring requirements or other compliance measures for
radio frequency emissions on mobile service facilities.
b. Enact an ordinance imposing a moratorium on permitting, construction, or approval.
c. Enact an ordinance prohibiting the placement of a cell tower in particular locations within the political
subdivision.
d. Disapprove an application based solely on aesthetic concerns.
e. Enact ar enforce an ordinance related to radio frequency signal strength or the adequacy of mobile
service quality.
£ Disapprove an application based solely on the height of the mobile service support structure or on
whether the structure requires lighting.
g. Disapprove an application based on an assessment by the political subdivision of the suitability of other
locations for conducting the activity.
h. Impose a setback or fall zone requirement that is different from a requirement that is imposed on other
commercial structures.
i. Condition the approval on, or otherwise require,the applicant's agreement to indemnify or insure the
political subdivision in connection with the approval.
j. Condition the approval on,or otherwise require,the applicant's agreement to permit the political
subdivision to place or collocate with the applicant's support structure any mobile service facilities
provided or operated by a political subdivision or an entity in which a political subdivision has
governance, competitive, economic, financial ar other interest.
Summary
The Telecommunications Act of 1996 does not permit review of telecommunication facility siting based on
health concerns. The State of Wisconsin 2013 Biennial Budget Act has also substantially limited the criteria
that can be considered in reviews of such facilities.
Since this is a class 1 collocation, as defined as a substantial modification in the legislation,the City may require
a conditional use permit for the 45 foot height extension of the existing tower. However, it does not appear that
the City would have the ability to deny said permit because the review cannot consider:
• Suitability of the location of the tower versus other locations in the city;
• Aesthetics of the tower now or as proposed to be modified;
• Height of the tower because it is under 200 feet; or
• Setback of the tower in relation to the property lines because it currently meets and will continue to
meet the minimum setbacks for other types of commercial structures within the G2 Zoning District.
Item-CUP Cell Tower Extension-1821 Jackson Street 2
ITEM: CONDITIONAL USE PERMIT FOR AN EXTENSION OF AN EXISTING
TELECOMMUNICATIONS TOWER LOCATED AT 1821 JACKSON STREET
(DOLLAR TREE)
Plan Commission meeting of December 16, 2014 & January 6, 2015
GENERAL INFORMATION
Applicant: Jim Weinmann,Nsighttel Wireless, LLC
Owner: 1821 Jackson Street, LLC
Action(s) Requested:
The applicant is requesting a Conditional Use Permit to construct a 35-foot extension to an existing 45-
foot telecommunications tower located at 1821 Jackson Street.
Applicable Ordinance Provisions:
Telecommunication towers are permitted only through conditional use permits in the C-2 General
Commercial Zoning District as regulated in Section 30-24 (A)(11) of the Zoning Ordinance. Standards
imposed on Conditional Use Permits are located in Section 30-11 (D) of the Zoning Ordinance.
Background Information Property Location and Type:
The subject 2.05-acre property is zoned C-2, General Commercial District and was formally the
Knights of Columbus Hall which redeveloped in 2013 to the current Dollar Tree retail establishment.
The property has triple frontage, located between Wisconsin and Jackson Streets, as well as Stillwell
Avenue on the north. In addition to the retail store,the site contains associated ground signage, off
street parking area, landscaping/green space and 45-foot tall telecommunication tower located at the
southwest corner of the property fronting Wisconsin Street. The tower is located within a 25-foot by
30-foot area leased by Cellcom. The surrounding area consists of mostly commercial uses to the south,
west and east, institutional to the north, and transitioning to residential uses to the northwest.
In 2000, the Oshkosh Common Council denied a request by Cellcom for construction of an 80-foot
telecommunications tower coinciding with recommendations for denial by the Plan Commission and
City staff. The denial was based on concerns of the aesthetics of the tower negatively impacting the
area and fears the transmissions generated would interfere with electronic infrastructure of surrounding
businesses. The Common Council later approved a modified request (with a recommendation for
approval from the Plan Commission, denial from City staffl which reduced the tower height to 45 feet
which was ultimately constructed in 2001. The tower was designed and constructed to allow for two
additional carriers as required by code. In addition to the tower, accessory equipment consisting of
equipment racks and cabinets were placed and screened by a six-foot tall solid fence and vegetative
screen to the north and west of the fenced-in area.
Sub'ect Site
Existin Land Use ` Zonin '
Commercial (Dollar Tree) C-2
Ad'acent Land Use and Zonin
Existin Uses Zonin '' '
North Institutional, Vacant R-1, C-2PD
Item-CUP Cell Tower Extension-1821 Jackson Street 3
South Commercial G2
East Commercial G2
West Commercial G2
Comprehensive Plan Land Ilse Recommendation Land Use
10 Year Land Use Recommendation Institutional
20 Year Land Use Recommendation Institutional
ANALYSIS
Nsighttel, representing Cellcom, is requesting a Conditional Use Permit to construct a 35-foot
extension to the existing 45-foot tower erected in 2001 for a total height of 80 feet. The petitioner
states in their narrative that demand for 4G data services has increased to the point that the current
tower can no longer provide coverage adequately to their customers in the area. The increased tower
height along with upgraded equipment will expand their coverage and absorb capacity from
surrounding sites.
The petitioner states that the increased tower height will have negligible visual impact on the
surrounding area. Renderings were provided to staff depicting before and after conditions of the tower
from several vantage points. Although the increased tower height is noticeable, staff is in the opinion
that the change is not detrimental to the surrounding area. To seek additional feedback and concerns,
the petitioner distributed a questionnaire to surrounding properties explaining the project and asking
for feedback if they supported, opposed or are indifferent to Cellcom's proposal. Of the nine property
owners that responded, seven were in support and two were opposed. Reasons for opposition were due
to a lack of information on the project, negative impact on property values, and health risks associated
with the transmission signals.
The petitioner has no plans to modify the fenced in area and screening currently located around the
leased area. Staff has no concern with the existing screening as the arborvitae along the west and north
side has matured significantly since being planted in 2001 and adequately shields the equipment
structures from view.
If approved,the tower will need to have the ability to serve at least two additional providers, the same
requirement as when the tower was constructed in 2001. This requirement is to prevent additional
towers from being erected at several locations and encourages cohabitation.
As this technology continues to grow and demand for service increases, cellular and data providers
have a difficult task to find sites suitable to meet their needs, especially in heavily developed areas.
Therefore, staff is in support for the 35-foot tower extension to the existing 45-foot tall tower as staff
understands the lack of suitable sites in this area and feels the increased tower height will have
minimal visual impact surrounding the site.
RECOMMENDATION/CONDITIONS
Staff recommends approval of the Conditional Use Permit request for the extension of the existing 45-
foot telecommunications tower to 80 feet with the following conditions:
1 —The proposed tower and tower site shall be designed to accommodate collocation of at least
two additional users per Section 30-35(J)(2)(c)(i) of the Oshkosh Zoning Ordinance.
Item-CUP Cel!Tower Extension-1821 Jackson Street 4
2—The permit holder for the tower shall allow collocation of at least two additional users per
Section 30-35(J)(2)(c)(ii) of the Oshkosh Zoning Ordinance.
The Plan Commission laid over the request until the January 6, 2015 meeting to allow staff time to
complete further research on this request. The following is the Plan Commission's discussion on this
item.
Minutes of December 16, 2014
Mr. Nau presented the item and reviewed the site and surrounding area as well as the zoning
classifications and land use in said area. He discussed the existing conditions of the subject site, the
land uses in the general vicinity, and the past history of the existing telecommunication tower
placement. He reviewed the site plan and the request to extend the height of the tower from 45 feet to
80 feet and the necessity for it due to the need to meet greater demand for cellular services. He
displayed renderings of how the new tower would look and various versions of both the existing tower
and the proposed tower and discussed the questionnaires that were sent to neighboring property owners
which mainly received favorable responses. He also reviewed the conditions recommended for this
request.
Ms. Propp stated that there was some state legislation in place that bars municipalities from denying
telecommunication towers however she was not certain of the specific details.
Mr. Burich responded that he was not sure about the statutory requirements but he was aware that there
were restrictions on what can be denied however he was not sure of the specific requirements. The
municipality may have some jurisdiction when it comes to the increase in height.
Mr. Gray questioned if there were safety issues related to these towers and how many in our
community extended to this height.
Mr. Nau replied that there are several towers that he is aware of however the County maintains this
information as well as the FCC and he did not have a specific number available.
Mr. Gray then questioned how the tower is anchored.
Mr. Nau responded that it is constructed in a fashion that would not allow it to tip over.
Ms. Lohry stated that she would not be supporting this request although there is no substantiated proof
of these towers causing health issues; she feels they could have potential negative health impacts and
she was opposed to its approval.
Mr. Thoms commented that he would like to know the answer to the legislative restrictions and felt the
Common Council should be made aware of it prior to voting on this request. He was not aware of any
scientific proof of health issues from these structures but did not understand why this would be
supported by staff now when it was not approved for this height 15 years ago when the original tower
was erected.
Mr. Nau indicated that staff felt that there was some visual difference but not large enough of an
impact to effect aesthetics of the area and that technology demands had changed dramatically over the
years and the increased demand for services was necessitating the need for more and higher structures
that could provide the ability for these services to be available.
Item-CUP Cell Tower ExYension-1821 Jackson Street 5
Mr. Buck added that he reviewed the minutes from the last request and found there was more
opposition to it at that time however people are more comfortable with these issues now. The existing
tower has been at this location for 15 years with the same amount of capacity and there has not been
any complaints regarding this structure.
Mr. Thoms questioned if other cell tower sites were going to be eliminated if this height extension is
approved.
Mr. Buck responded that he did not believe so but it could absorb some capacity from other sites that
may be over utilized.
Mr. Burich commented that from a brief inquiry online he was able to find that local governments can
no longer deny telecommunication towers for aesthetic reasons alone and that the League of Wisconsin
has mare information that can be researched regarding other restrictions.
Jim Weinmann,Nsighttel Wireless, stated that to his knowledge municipalities are prohibited from
denying cell towers due to health concerns as there is no basis for it and further explained the exposure
issues in relation to health problems. The only health concern that is credible is working very close on
a rooftop (within 2 to 3 feet) for 6 to 8 hours at a time and this information can be researched online.
He further stated that state law limits authorities to deny a request for a tower due to setback
limitations and this request could possibly be denied under this portion of the law. He explained that
the amount of capacity being used has exploded in past years and the increased demand for services
requires an increase in capacity for facilities that provide it. The height extension would cover a larger
area and make for a more efficient use of the existing site.
Mr. Bowen questioned if the existing tower has other companies utilizing it.
Mr. Weinmann responded that the current height limits other users on it now, but if approved, the
increase in height would allow other users to co-habitat on this tower.
Mr. Hinz inquired what a ballpark figure would be for the amount of change in coverage that would
result from the tower extension.
Mr. Weinmann replied that it would be 4 to 8 blocks or possibly up to a quarter of a mile or more.
Mr. Gray questioned how the city would monitor if other users were utilizing the tower.
Mr. Nau responded that the city is aware of any additions to these structures as a building permit has to
be obtained.
Ms. Lohry requested the petitioner to explain the differences between ionized and non-ionized
emissions from these facilities.
Mr. Weinmann replied that ionized emissions are more likely to alter human cells where non-ionized
emissions do not have this aspect.
John Jansen, owner of 1845 and 1847 Wisconsin Street, stated that he was opposed to the height
extension as he did not feel that, as an adjacent property owner,there were any benefits for him. He
felt that it will affect property values in the area and the tower would be unsightly and have potential
health risks. A realtor he contacted indicated that property values will decrease by 10% due to
placement of a cell tower in the vicinity and he questioned if the application substantiates that a gap in
Item-CUP Cel!Tower Extension-1821 Jackson Street 6
coverage currently exists and what evidence do they have to support this claim. He stated that he
understood that the request could not be denied due to health concerns but it sounded like the setback
provisions would allow the ability to block the approval of this request. It was denied 15 years ago and
he felt it should be again.
Mr. Thoms inquired when this request was initially approved if there was a setback issue and if so, was
an exemption or exception granted at that time.
Mr. Nau responded that no exception was given for the previous request and the 45 foot height of the
tower met the City's requirements.
Motion by Borsuk to approve the conditional use permit for an extension of an existing
telecommunications tower located at 1821 Jackson Street with the following conditions:
1. The proposed tower and tower site shall be designed to accommodate collocation of at
least two additional users per Section 30-35(J)(2)(c)(i) of the Oshkosh Zoning
Ordinance.
2. The permit holder for the tower shall allow collocation of at least two additional users
per Section 30-35(J)(2)(c)(ii) of the Oshkosh Zoning Ordinance.
Seconded by Thoms.
Ms. Lohry discussed her allergy issues and that she felt her immune system was compromised due to
workplace conditions and still had concerns about health impacts from this use and would not support
this request.
Ms. Propp commented that the 80 feet in height sounds like it falls within the parameters and although
the existing tower is not noticeable now it will be mare visible when it is extended to 80 feet.
However, she would support this request as the service is necessary.
Mr. Bowen stated that he would be more comfortable with laying this request over until the next
meeting as the Commission is not sure what is allowed to be approved and he felt more information
was necessary for them to make a decision on this request.
Mr. Burich indicated that staff could do more research on the flexibility that would be allowed when
considering this request and questioned if the petitioner had any issues with delaying voting on this
request until the next meeting.
Mr. Weinmann responded that he had no problem with this delay.
Mr. Borsuk withdrew his motion for approval.
Motion by Bowen to lay over the conditional use permit for an extension of an existing
telecommunications tower located at 1821 Jackson Street until the next meeting.
Seconded by Hinz. Motion carried 9-0.
The Plan Commission approved of the conditional use permit as requested with conditions noted at the
January 6, 2015 meeting. The following is the Plan Commission's discussion on this item.
Minutes of January 6, 2015
Item-CUP Ce[!Tower E.x7ension-1821 Jackson Street 7
Mr. Buck presented the item and reviewed the site and surrounding area as well as the discussion
relating to this item from the last meeting. He also reviewed the site plan, landscaping, and photos of
the existing tower as well as renderings of the proposed tower. He reviewed the conditions
recommended for this request which are unchanged from the last meeting. He also discussed the
legislation currently regulating placement of these types of facilities and limitations on municipalities
to deny their installation. He reviewed the memo provided detailing the three legislative acts that
govern cell tower installations and modifications and how they would affect the City's ability to deny
these requests. He further explained that this project would fall under what is referred to as a"class 1
collocation" and that the City may require a conditional use permit and review the request under these
regulations however it prevents municipalities from denying the request due to location, aesthetics,
height of the tower providing it is under 200 feet, or setbacks providing that they meet the City's
standard for building setbacks. The matter was also discussed with the City Attorney to ensure that the
legislation was interpreted correctly.
Mr. Burich further discussed the memo prepared by staff relating to this issue and discussed Wisconsin
2013 Act 20 and reviewed the regulations on page 5 and 6 detailing the restrictions municipalities are
required to follow. He stated that the new Zoning Ordinance currently in progress will address these
changes as the current ordinance does not account for the changes recently enacted.
Mr. Thoms questioned if there were any safety concerns relating to the cell tower's collapse or if the
conversation regarding that they are constructed to self-collapse would address any of those types of
concerns.
Mr. Buck responded that those issues are regulated by the FCC.
Motion by Vajgrt to approve the conditional use permit for an extension of an existing
telecommunications tower located at 1821 Jackson Street with the following conditions:
1. The proposed tower and tower site shall be designed to accommodate collocation of at
least two additional users per Section 30-35(J)(2)(c)(i) of the Oshkosh Zoning
Ordinance.
2. The permit holder for the tower shall allow collocation of at least two additional users
per Section 30-35(J)(2)(c)(ii) of the Oshkosh Zoning Ordinance.
Seconded by Borsuk.
Item-CUP Cell Tower Ez7ension-1821 Jackson Street g
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WISCONSIN LEGISLATIVE COUNCIL
INFORMATION MEMORANDUM
New Law Relating to Local Regulation of Cell Phone
Transmission Towers
The 2013 Biennial Budget Act modified the regulatory powers of local governments in regard to
cell phone towers. The new law specifies the manner in which a political subdivision can use
zoning to regulate cell phone towers and lists specific regulations that a political subdivision
may not apply. �
OVERVIEW
The primary tool used by political subdivisions of the state to regulate the siting and
construction of cell phone transmission towers, and other land uses, is zoning. Zoning serves
to separate incompatible land uses by segregating them in zones, such as residential,
commercial, and industrial zones. A typical zoning ordinance identifies land uses that are
prohibited in a particular zone, those that are permitted,�and those that are permitted subject
to a conditional use permit. For example, cell phone towers are a land use that, under prior
law, might have been prohibited in a residential zone but allowed, subject to`a conditional use
permit, in otlier zones. Note that not all political subdivisions have zoning ordinances, and
those with-zoning ordinances vary considerably in how they regulate various land uses.
Two other tools available to political subdivisions to regulat� cell phone towers are building
codes and other, non-zoning police-power regulations, such as license requirements. Again,
not all political subdivisions require building permits; it is not known how many have enacted
other police-power regulations,but it is presumed to be very few.
The new law created in 2013 Act 2o states specifically that a political subdivision may regulate
cell phone towers under a zoning ordinance, but places strict limits on how it may do so. It
specifies the procedures and standards a political subdivision must use in reviewing
applications for permits to construct or modify towers. It also lists specific limitations or
regulations that a political subdivision may not impose on the construction or modification of a
tower. Significant among these, it specifies that a political subdivision may not prohibit the
placement of cell phone towers in particular locations within the political subdivision, meaning
essentially that it may not designate cell phone towers as a prohibited use in any zone.
The new law does not disturb existing building code requirements, but it expressly prohibits
any regulation of cell phone towers except by zoning ordinances, as specified in the law, and
building codes.
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APPLICABILITY
The new law applies to local regulation of three types of projects, all for the installation of
various types of cell phone transmission facilities:
• Projects requiring construction of a new tower.
• Projects requiring substantial modification of an existing tower and facilities, but not
construction of a new tower. Projects of this type are referred to as "class i
collocations."
• Projects requiring neither construction of a new tower nor substantial modification
of an existing tower and facilities. Projects of this type are referred to as "class 2
collocations."
The new law defines"substantial modification"as a project that does any of the following:
• For structures with an overall height of 20o feet or less, increases the overall height
of the structure by more than 2o feet.
• For structures with an overall height of more than 20o feet, increases the overall
height of the structure by io% or more.
• Measured at the level of the appurtenance added to the structure as a result of the
modification, increases the width of the support structure by 2o feet or more, unless
a larger area is necessary for collocation.
• Increases the square footage of an existing equipment compound to a total area of
more than 2,50o square feet.
The law defines "permit" as "a permit, other than a building permit, or other approval required
, by a political subdivision"for one of these types of projects. It defines "political subdivision" as
a city,village,town, or county.
The new law specifies that a county ordinance to regulate the construction of a new tower or a
class 1 collocation applies only in the unincorporated areas of the county, but not in any town
that has such an ordinance in effect. It does not include a parallel provision regarding the
� applicability of county ordinances regulating class 2 collocations.
PERMITTED REG ULATIONS AND REQ UIRED PROCESSES
The new law specifies the .regulations a political subdivision may impose on cell phone
transmission towers and facilities, and the process a political subdivision must follow in
reviewing an application for a permit.
PROJECTS REQUIRING NEW CONSTRUCTTON OR SUBSTAlV7TAT.MODIFICAT70NS
The new law treats a project requiring substantial modification of an existing tower and
facilities the same as a project requiring construction of a new tower.
Permiited Regulations
The new law specifies that a political subdivision may enact a zoning ordinance to regulate any
of the following:
• The construction of cell phone towers.
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• The substantial modification of existing towers and facilities (class i collocations).
However, it specifies that a political subdivision may only regulate these activities as provided
in the law, and that any ordinance in effect on the effective date of the law that is inconsistent
with the law does not apply to the activities and may not be enforced against them.l
Required Processes
The new law requires that an ordinance prescribe the application process for obtaining a
permit or approval. The ordinance must require that an application include all of the
following:
• The name and business address of, and the contact individual for,the applicant.
• The location of the proposed or affected tower.
• The location of the proposed facilities.
• A construction plan that describes the proposed new tower and facilities or the
proposed modifications to the existing tower and facilities.
• If an application is to construct a new tower, an e�lanation as to why the applicant
chose the proposed location and why the applicant did not choose collocation,
including a sworn statement attesting to one of the following regarding collocation
within the area in which the applicant needs to site the new facilities (termed the
applicant's "search ring"):
o Collocation would not result in the same mobile service functionality, coverage,
and capacity.
o Collocation is technically infeasible.
o Collocation is economically burdensome to the mobile service provider.
The new law specifies that an application is complete if it contains all the information
described above; by implication, a political subdivision may not require any additional
information from an applicant. If a political subdivision does not believe that an application is
complete, it must notify the applicant of this in writing, within 10 days of receiving the
application. The notice must specify in detail the information that was laclang from the
application. The applicant may refile the application as many times as is needed to complete it.
Within 90 days of receiving a complete application, a political subdivision must do all of the
following:
• Review the application to determine whether it complies with all applicable aspects
of the political subdivision's building code and, subject to the limitations in the new
law, zoning ordinances.
• Make a final decision whether to approve or disapprove the application.
1 The law appears to contemplate that a political subdivision will require a person engagi.ng in one of these
activities to obtain a conditional use permit, since the language does not allow treating them as prohibited uses.
However,a political subdivision could elect to treat them as permitted uses.
�I
_4_ .
• Notify the applicant, in writing,of its final decision.
• If the decision is to disapprove the application, include with the written notification
substantial eyidence that supports the decision.
If the political subdivision fails to comply with these requirements by the 9o-day deadline, the
application is considered approved, except that the political subdivision and the applicant may
agree to e�end the deadline.
A political subdivision may disapprove an application if the applicant refuses to evaluate the
feasibility of collocation within its "search ring"and to provide the sworn statement required in
the application.
A party that is aggrieved by the political subdivision's final decision may appeal the decision to
the circuit court for the county in which the project was proposed. This appears to allow the
aggrieved party to appeal to circuit court without first exhausting administrative reviews at the
level of the political subdivision.
Lirnitations
The new law specifies that a zoning ordinance does not apply to a particular structure if the
applicant provides the political subdivision with an engineering certification showing that the
structure is designed to collapse in a smaller area than the setback or fall zone area required in
the ordinance. However, the political subdivision may apply the ordinance to the structure if it
provides the applicant with substantial evidence that the engineering certification is flawed.
PROJECTSREQUIRINGNEITkFR NEW CONSTRUCT70NNOR SUBSTANTTAL MODIFICATIONS
As noted earlier, the new law refers to projects that involve neither new construction nor
substantial modifications of towers as "class 2 collocations."
Permitted Regulations
The new law specifies that a class 2 collocation is a permitted use under a zoning ordinance. It
also provides that class 2 collocations are subject to the same building permit requirements as
other commercial development or land use development.2 Again, the law specifies that a
political subdivision may only regulate class 2 collocations as prouided in the law, and that any
ordinance in effect on the effective date of the law that is inconsistent with the law does not
apply to class 2 collocations and may not be enforced against them.
Required Processes
The new law specifies a process for the review of "an application for a permit to engage in a
class 2 collocation."3 The process is a simplified version of the process for other projects,
� described above. It differs from that process in the following ways:
Z The provisions of the new law relating to construction of a new tower or a class i collocation do not include a
similar statement,but the review process does require the political subdivision to determine whether the proposed
project complies with its building code.
3 As noted above,a class 2 collocation is a permitted use under a zoning ordinance,so there can be no conditional
use permit to apply for. Further,building permits are excluded from the definition of"permit,"so the procedures
described here do not apply to a building permit application. Consequently, it,appears that the new law
contemplates that a political subdivision may iequire a person engaging in a class 2 collocation to apply for a
iz
-5-
• Only the first three items of information (identifying the business and the location of
the project) are required for an application.
• The political subdivision must inform the applicant of deficiencies in the application
within five days of receiving the application, rather than 10 days.
• The political subdivision must complete its actions within 45 days of receiving a
complete application as opposed to 90 days, and the list of actions it must complete
is slightly different:
o Make a final decision whether to approve or disapprove the application.
o Notify the applicant, in writing, of its final decision.
o If the decision is to approve the application, issue the applicant the relevant
permit.
o If the decision is to disapprove the application, include with the written
notification substantial evidence which supports the decision.
• The application is not considered automatically approved if the political subdivision
does not take final action within the specified time frame.
LIMITATIONS ONPOLITICAL SUBDIVISIONS'ACTIONS
Under the new law, a political subdivision may not do any of the following with regard to the
construction of a new cell phone tower or a class 1 or class 2 collocation: �
• Impose environmental testing, sampling, or monitoring requirements, or other
compliance measures for radio frequency emissions, on mobile service facilities or
mobile radio service providers.
• Enact an ordinance imposing a moratorium on the permitting, construction, or
approval of any such activities.
• Enact an ordinance prohibiting the placement of a cell phone tower in particular
locations within the political subdivision.
• Charge a cell phone service provider a fee in excess of one of the following amounts:
o For a permit for a class 2 collocation, the lesser of $500 or the amount charged
by the political subdivision for a building permit for any other type of
commercial development or land use development.
o For a permit for construction of a new tower or a class i collocation, $3,000.
• Charge a cell phone service provider any recurring fee for a project covered by the
law.
• Permit third-party consultants to charge the applicant for any travel expenses
incurred in the consultant's review of cell phone service permits or applications.
determination that the activity is, in fact, a class 2 collocation; that is to say, a determination that the political
subdivision will not require a conditional use permit for the activity. This Information Memorandum assumes
that it is an application for this type of approval to which the process described here applies.
�3
-6- -
• Disapprove an application based solely on aesthetic concerns.
• Enact or enforce an ordinance related to radio frequency signal strength or the
adequacy of mobile service quality.
• Impose a surety requirement, unless the requirement is competitively neutral,
nondiscriminatory, and commensurate with the historical record for surety
requirements for other facilities and structures in the political subdivision which fall
into disuse. The law is a rebuttable presumption .that a surety requirement of
$20,000 or less complies with this limitation.
• Prohibit the placement of emergency power systems.
• Require that a cell phone tower be placed on property owned by the political
subdivision.
• Disapprove an application based solely on the height of the mobile service support
structure or on whether the structure requires lighting.
• Condition approval of such activities on the agreement of the owner of the facilities
to provide space on or near the structure for the use of or by the political subdivision
at less than the market rate, or to provide the political subdivision other services via
the structure or facilities at less than the market rate.
• Limit the duration of any permit that is granted.
• Require an applicant to construct a distributed antenna system instead of either
constructing a new tower or using collocation.
• Disapprove an application based on an assessment by the political subdivision of the
suitability of other locations for conducting the activity.
• Require that a mobile cell phone tower or facilities have or be connected to backup
battery power.
• Impose a setback or fall zone requirement for a cell phone tower that is different
from a requirement that is imposed on other types of commercial structures.
• Consider a project to be a substantial modification if the project adds more than 20
feet to the height of a tower that is not more than 20o feet tall but the greater height
is necessary to avoid interference with an existing antenna. _
• Consider a project to be a substantial modification if the project adds 2o feet or more �
to the diameter of the tower but the greater diameter is necessary to shelter the
antenna from inclement weather or to connect the antenna to the existing structure
by cable.
• Limit the height of a cell phone tower to under 20o feet.
• Condition the approval of an application on, or otherwise require, the applicant's
agreement to indemnify or insure the political subdivision in connection with the
political subdivision's exercise of its authority to approve the application.
- • Condition the approval of an application on, or otherwise require, the applicant's
" agreement to permit the political subdivision to place at or collocate with the
I �
-�-
applicant's support structure any mobile service facilities provided or operated by,
whether in whole or in part, a political subdivision or an entity in which a political
subdivision has a governance, competitive, economic,financial or other interest.
This memorandum is not a policy statement of the Joint Legislative Council or its staff.
This memorandum was prepared by David L. Lovell, Principal Analyst, on December 9, 2013.
WISCONSIN LEGISLATIVE COUNCIL
One East Main Street,Suite 401•P.O.Box 2536•Madison,WI 537oi-2536
Telephone: (608)266-1304•Fax: (608)266-3830
Email:leg.council(�legis.wisconsin.�,ov
htt�//www.leg,is.wisconisn.gov/lc
��
� Ci of Oshkosh A lication susivnT To:
� pp Dept.of Community Development
`► � Planned Develo ment Review 215 Church Ave.,P.O.Box 1130
� Oshkosh,Wisconsin 54903-1130
p�H 0 Conditional Use Permit Review PHONE:(920)236-5059
ON THE WATER
""PLEASE TYPE OR PRINT USING BLACK RVK"*
APPLICANT INFORMATION
� � l �p Ly `
Petitioner: � ►� LV�� n►n'lant'1 Fnr I"�✓4���TLIU"�sr��rsS L�� �I�,�A �tllfCv"1Date: I �
v �
Petitioner's Address: ���� M y ` f s f��L� City: /��`� ��"'�'�a h State:l�.t Zip: �/�/�J
Telephone#:(�ddj ���' ;��'��O Fax:( ) Other Contact#or Email:
J t✓�'I6J�,`r�,vhaHh�i.Jlf'c%sfr'l4►+w,(�Jc.(G 6
Status of Petitioner(Please Check): ❑O er�ep sentativ Tenant ❑ Prospective Buyer
Petitioner's Signature(required): �_ Date:��
OWNER INFORMATION
Owner(s): I�50� I���iG�-,S r�7�r'zt � Li..G Date:
Owner(s)Address:�Q�0''� '�J���'���J�+��G � City: Q`r�'��d g'\ State: k��Zip: Sy Y Q�•
Telephone#:(��') � �� `� l ��� Fax:( ) Other Contact#or Email:
Ownership Status(Please Check): ❑Individual ❑Trust ❑Partnership �Corporation
Property.Owner Consent:(required)
By signature hereon,I/We acknowledge that City of�cials and/or employees may,in the performance of their funcrions,enter upon the
property to inspect or gather other information necessary ta process this application. I also understand that all meeting dates aze tentative
and may be postponed by the Plannin Servi s Di�i ' n or incomplete bmissions or other administrative reasons.
Property Owner's Signature: � �7 Date: / �
SITE INFORMATION
Address/Location of Proposed Project: �Ba i �a�k s� ����f Pazcel No._j_�—�¢a sJ'°ad� t)O
Proposed Project Type: 1 �'L`��`� �K�C'✓'i� (�0�"'r
Current Use of Properiy: �a�"'�wl tf"c`�� Zoning: � — �
Land Uses Surrounding Site: North: Co�✓�'��''C ;�c I
South: C 6'^��^'1 C'�' C;c� �
East: C"� �,►M C✓' �i � i
West: C.��hc�► �✓'Gi'r� (
•"Please note that a meeting notice will be mailed to all abutting property owners regazding your request.
➢ Application fees are due st time of aubmittal. Make check payable to City of Oshkosh.
➢ Please refer to the fee schedule for appropriate fee. FEE IS NON-REFUNDABLE
For more information please the City's website at www.ci.oshkosh.wi.us/Community Developinent/Planning.hhn
StaQ�� Date Rec'd (����f��
��,p
.
• . •
MEMO
To: David Buck �
From: Jim Weinmann
Date: November 10,2014
Re: Cellcom CUP application to extend existing tower from 45'to 80'
David,
The purpose of the following narrative is to provide information as required by page 2 of the
CUP application and to provide additional information explaining why Cellcom desires to
extend this tower and/or if other engineering solutions are available.
1. Health,safety,and general welfare of occupants of surrounding lands. The proposed use
will not have a negative effect on the surrounding properties. The proposal is to extend an
existing 45 foot tower 35 feet for a total height of 80 feet. The use of the tower and
telecommunications equipment are deemed by the federal government not to create a
health hazard if used within FCC mandated guidelines. The existing tower and equipment
are currently operating within FCC guidelines and the proposed.extension will also be
operated within FCC guidelines. If the tower were to fail it could not fall on any adjacent
property.
2. Pedestrian and vehicular circulation and safety. The proposed extension will have no
effect on current pedestrian and vehicular circulation and safety.
3. Noise, air, water, or other forms of pollution. The proposed extension will not create any
form of pollution.
,
4. Demand for and availability of public services and facilities. The proposed tower extension
will not increase demand for, or have an impact on the availability of, public services or
facilities.
5. Character and future development of the area. The area is currently zoned C-2. The
proposed 35 foot extension will have a small visual impact on the area but this impact will
not be significant enough to say it is afFecting either the character or future development of
the area.
6. Existing and proposed use of the property. Currently Knights of Columbus with a
telecommunications facility. The proposed use is an extension of the existing tower.
7. Projected number of residents, employees, and/or daily custorriers. No change from
existing. Approximately 1 employee every three months.
1
��
8. Effects on adjoining properties. Insignificant visual impact. No other effects. �
9. Compatibility with adjacent and other properties in the area. The telecommunications
facility was approved as a compatible use. The extension will have no effect on
compatibility.
10. Traffic generation. None.
11. Any other pertinent information/Reason for tower extension at this location, This tower
was approved in 2000 and built in 2001. At that time, Cellcom was seeking to provide
better coverage and signal strength on the north side of Oshkosh. Cellcom's existing
coverage and signal strength were poor. The area needing coverage did not have any
existing towers or tall structures that were adequate for Cellcom's engineering needs.
Consequently, Cellcom chose to construct an 80 foot tower on the Knights of Columbus
property. The 80 foot tower was denied but a 45 foot tower was approved. Although the
45 foot structure was inadequate, Cellcom built the site anyway because of the glaring
coverage issues. Fast forward to 2014. Cellcom has been managing to get by with the
existing site at 45 feet but new technology and exploding use of 4G data services have put
demands on Cellcom's network that cannot be addressed by an underachieving 45 foot
tall structure. Additional height and new equipment are required at this location to
propagate signal further and handle additional capacity that is currentl.y being absorbed by
the surrounding sites. Increasing the height of the tower 35 feet will allow signal to travel
further in all directions and will allow upgraded equipment to better penetrate a wider area.
In turn this will add capacity and efFciency to Cellcom's network that can't be achieved by
a different location.
Please let me know if you have any questions or need any other information.
Thank you,
Jim Weinmann
Wireless Planning, LLC
414-308-2886
�Page 2
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1821 JACKSON ST 318 SCOTT AVE PO BOX 1130
PC: 12-16-14 OSHKOSH WI 54901-3737 OSHKOSH WI 54903-1130
CED PROPERTIES LLC SAMMONS PLUMBING OSHKOSH KARA PROPERTIES LLC
W7443 WESTBROOK LN INC 2950 W PHEASANT CT
FOND DU LAC WI 54937-9775 522 W MURDOCK AVE OSHKOSH WI 54904-6592
OSHKOSH WI 54901-2298
602 MURDOCK LLC BRUCE M/ROSEMARY SAMMONS SAALSAA BROS REAL ESTATE
566 N MAIN ST REV TRUST LLC
OSHKOSH WI 54901-4925 522 W MURDOCK AVE 7935 ALMOR DR
osxxosx wz 54901-2298 VERONA wz 53593-8654
J M JANSEN PROPERTIES LLC OUR SAVIOR EV LUTH CHURCH FAIR ACRES STATION LZC
3220 SHOREWOOD DR 1860 WISCONSIN ST 11501 NORTHLAKE DR
OSHKOSH WI 54901-1670 OSHKOSH WI 54901-2275 CINCINNATI OH 45249-1618
LASER INVESTMENTS LLC 1821 JACKSON STREET LLC WIRELESS PLANNING LLC
601 OREGON ST STE B JIM WEINMANN
PO BOX 190 OSHKOSH WI 54902 2310 MILL ST
WINNECONNE WI 54986-0190 NEW LONDON WI 54961
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These map(s)Idatasets are provided for information purposes only and may not be sufficient or
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