The Rolla Planning and Zoning Commission held a public hearing on the proposed revisions to the Rolla Planning and Zoning Code in order for the city code to meet state guidelines after the passage of state laws this year that target how localities regulate small cell technology.
Rolla Municipal Utilities (RMU) and Rolla Planning and Zoning commissioners addressed their concerns on the proposed revisions of the city code, since the revisions seemed to grant exceptions to the telecommunications company, AT&T.
The action required by the Rolla Planning and Zoning Commission on Dec. 11, was to recommend the denial, approval or conditional approval of the City of Rolla’s proposal to insert Division 22 into Article 3 of Chapter 42, known as the Rolla Planning and Zoning Code, and for the code to be known as Division 22, Wireless Communications Facilities Code.
Rolla’s Community Development Department had completed the first draft of the proposed Wireless Communications Facilities Code that was then supplied to RMU and the Rolla Planning and Zoning Commission.
However, after AT&T sent comments to the Community Development Department regarding the first draft of the Wireless Communications Facilities Code, the City of Rolla’s attorneys and additional contracted attorneys submitted provisions that addressed AT&T’s concerns, said Rolla City Planner, James Shields.
The revised draft of the Wireless Communications Facilities Code including AT&T’s provisions was then presented by Shields to the Rolla Planning and Zoning Commission.
The addition of the Wireless Communications Facilities Code is in regards to the current Rolla Planning and Zoning Code having to be revised in order to comply with Senate Bill 650 that was signed into law by former Missouri Governor Jay Nixon in 2014.
The Rolla Planning and Zoning Code must also comply with House Bill 1991 that was signed into law by former Missouri Governor Eric Greitens in 2018, said Shields.
SB 650 modified Missouri’s Uniform Wireless Communication Infrastructure Deployment Act – passed in 2013 – by repealing eight sections of the Act and enacting eight new sections related to wireless communications infrastructure deployment.
HB 1991 repealed sections 67.1830 and 67.1846 of the Revised Statutes of Missouri, and enacted fourteen new sections regarding the deployment of wireless infrastructure facilities. The bill eases regulations to access public Right-of-Way to facilitate the deployment of the fifth generation ( 5G) of wireless and mobile broadband, and specifically targets how localities regulate small cell technology that power these networks, said Shields.
With Small Cell Technology, cells are part of a communication network that transmits data to and from a wireless devise. Small cell technology consists of small radio equipment and antennas that can be placed on structures such as street lights, the sides of buildings or poles. Microcells used in small cell technology are categorically different than the wireless infrastructure that uses, what are called, macrocells, said Shields.
Macrocells are the tall cell towers along highways or on city rooftops. Wireless carriers have found that while macrocells are good for wide area coverage for voice services, they are not efficient for data services. Microcells are better for data coverage because they are closer to the user and there is less signal interference, said Shields.
Towers are normally only permitted in certain nonresidential districts, which makes finding ideal sites for coverage difficult. Small cells provide a solution to building more towers – a structure designed for one or more antennas– by being able to be deployed around an urban area on existing structures, such as utility poles, light poles, buildings and traffic lights, said Shields.
In order to facilitate their deployment, state and federal governments have enacted laws that will prevent localities from making it too difficult, timely or costly to deploy such technology. Meanwhile, local governments have been tasked with preventing that same technology from affecting neighborhood character and property values, said Shields.
“So there have been some recent state laws that have passed, one was the Uniform Wireless Communication Infrastructure Deployment Act, which there were revisions done to that more recently,” said Shields. “HB 1991 was released this year, and in part specifically targets how localities regulate small cell technology.”
Missouri’s Uniform Wireless Communication Infrastructure Deployment Act was revised by SB 650 with the stated purpose to encourage and streamline the deployment of broadcast and broadband facilities and to help ensure that robust wireless radio-based communication services are available throughout Missouri.
SB 650 and HB 1991 attempt to ensure that stable wireless radio based communication services are readily available throughout Missouri by easing regulations to access Right-of-Way and city poles by capping costs and fees. And both bills expedite the process for considering and processing small cell sites and applications, so a site and application have to be approved by a certain time or both are automatically approved, said Shields.
“This proposed division of our code is kind of Rolla’s zoning solution, so in August of this year, Rolla zoned all Right-of-Way that is within 250 feet of a residential zoning district, which resulted in about 58 percent of the Right-of -Way being zoned R-1 Single-Family Districts,” said Shields.
This was in part a response to HB 1991 that would preempt certain zoning authority over small cell deployment and certain utility poles, except for those areas zoned R-1 before the bill’s effective date of Aug. 28, 2018, said Shields.
In addition, HB 1991 requires all cities adopt an ordinance or develop an agreement – shortly after its enactment – that makes rate, fees and other terms that comply with the bill available to wireless providers.
As part of satisfying the HB 1991’s requirement, the City of Rolla proposed the addition of Division 22, the Wireless Communications Facilities Code into the Rolla Planning and Zoning Code, said Shields.
“Division 22 will regulate the placement, construction and modification of such facilities. The public purposes of such regulations is to preserve the character, aesthetics and property values of the city, and Division 22 does this by regulating the location, height and appearance of these facilities and ensure adequate camouflaging, fencing and landscaping is provided,” said Shields.
The general requirements of Division 22, the Wireless Communications Facilities Code, can either be reviewed as a permitted use or an administrative approval. If the facilities fail to meet general requirements and don’t fall under permitted use or administrative approval, the facilities would go through the conditional use permit process. Towers permitted in non-residential zones would only be approved through a conditional use permit process, said Shields.
Permitted use general requirements:
– Collocations on existing support structures for all zones, as well as antenna on high-voltage tower for all zones.
– Antennas on existing buildings or structures for all zones except 1-family zones.
– New, replacement and modified authority poles for all zones except 1-family zones.
Administrative approval general requirements:
– Disguised support structures for all zones, and fast-track small wireless facilities for all zones.
General Requirements in Short:
– Security, proof of precautions;
– Lighting, no lighting unless required;
– Parking, one spot per support structures – support structures are towers or a disguise support structure.
– Color must be consistent with environment and equipment must be concealed.
– Height of support structures may exceed the height regulations of the underlying zoning district only if needed and shall not be greater than 120 ft.
– Towers shall be of the monopole design.
– Towers must be surrounded by walls/landscaping.
– Collocations – the attachment of additional or replacement complying antenna or equipment to any existing support structure – on historical structures are to have a 30-day hearing period, a time in which at least one public hearing shall be had on the matter.
Lastly, the revisions addressing AT&T’s comments:
– Added the reasons for denial of small cell facilities and removed from permitted use;
– Inserted AT&T’s language for consolidated applications for small wireless facilities and opportunity to cure;
– Spelled out application fees for the different types of small wireless facilities;
– Added additional language (i.e., reasonable, if not infeasible, etc.) concerning appearance of ground equipment and antenna design;
– Added requirement that any additional information requested by the director for administrative approval must be found in a publicly available document;
– Added desired definitions of person and Right-of-Way and added AT&T additions to utility pole definition;
– Modified description of disguised support structure;
– Added in federal law exemptions through the code;
– Removed requirement that to the extent permitted by applicable law, all information required by the Code and application must be submitted for the applications to be complete.
After Shields stated the revisions that Division 22, the Wireless Communications Facilities Code, would add into the Rolla Planning and Zoning Code, Chad Davis, operations manager for RMU addressed the Rolla Planning and Zoning commissioners, and explained his concerns with the revisions granted to AT&T.
RMU had received AT&T’s proposed changes on Dec. 10, and at the time of the public hearing on Dec. 11, Davis explained RMU had concerns with the additional definition of Right-of-Way that AT&T proposed.
“From a utilities perspective adding easements obtained by utilities or private easements under a Right-of-Way umbrella is concerning for the potential that some of those easements may be restricted to only certain uses by that private utility,” said Davis. “Whether that is RMU’s electric and water service, or Ameren, or inter-county or anyone else that has those easements, maybe those easements are only restricted for certain uses, so to bring other uses into those easements may be a concern.”
Another area of contention was the addition of poles, pipes, cables, conduits, wires and optical cables for electrical current into the definition of Right-of-Way because potentially they could be contradictory to some of the other terms.
“My concern is that putting this back in as a definition of Right-of-Way is to bring back in those electrical distribution poles, now as a place, where these can be put back in where these facilities can be installed under the terms of this ordinance and these codes,” said Davis. “There is still a possibility that even if the electric distribution facilities are exempt from a small wireless facility under the code perspective, it doesn’t prohibit the installation of those facilities on RMU poles.”
Instead, the installation of small wireless facilities on RMU poles would be done in a third party pole-attachment agreement that would be negotiated by the providers and RMU. And in RMU’s case, the agreement would be with any other electrical distribution facility, in a separate agreement outside of a small wireless facility code being proposed, said Davis.
“It’s very fast-growing, and there is a need for this deployment, we do not want to prevent it, we want to encourage this deployment takes place, and that it takes place in a practical manner,” said Davis.
The changes in regards to AT&T’s concerns were also an issue to both Rolla Planning and Zoning commissioners, Matthew Crowell, and, Janece Martin.
“James, it seems like a lot of preeminence was given to AT&T in this case in terms of what they get to define and everything else. Why was so much preeminence given to them and why would we make changes based on what they wanted versus what our utility company needs"? asked Crowell.
Shields stated AT&T’s revisions were added so the revisions could be considered by the Rolla City Council, and the city council wouldn’t have to accept the revisions, or the council could accept part of the revisions.
“Those are just proposed revisions. It’s like saying if you want to give some concessions to AT&T this is what the lawyers would want you to limit it too,” said Shields, who added that the proposed addition of the Wireless Communications Facilities Code into the Rolla Planning and Zoning Code could be set aside for one month, since after the beginning of the year an ordinance has to be in place to comply with the state law within two months.
A motion was made by Rolla Planning and Zoning commissioner, Don Brown, to set the insertion of Division 22, the Wireless Communications Facilities Code into the Rolla Planning and Zoning Code aside with the condition that the lawyers who provided AT&T’s revisions would be at the next meeting, so the commissioners could get their input on the alterations.
The commissioners were in favor and the motion carried for Division 22, the Wireless Communications Facilities Code to be set aside and revisited.
“We are trying to make sure that RMU is not going to be left out in the cold in regards to the new law enacted, in regards to what AT&T wants to come in and do, and what whoever wants to do. I’m getting this feeling that whatever they want to do they are going to come in and do it, but we need to have an ordinance in place that says there are limitations to what they can and cannot do,” said Martin.