HomeMy WebLinkAboutR-2013-066 Telecommunications Towers Six-Month Moratorium - Public HearingRESOLUTION NO. R- 2013 -066
A RESOLUTION adopting Findings of Fact supporting a six -month moratorium, enacted
April 2, 2013 pursuant to emergency Ordinance No. 2013 -14, prohibiting
the filing and acceptance of development applications for, the installation of,
and issuance of permits and approvals for, telecommunication towers, cell
towers, communication towers, and facilities related to such uses, within the
City of Yakima; and authorizing the City Manager to study and develop
appropriate comprehensive land use, licensing or registration regulations
addressing such issues for consideration by the City Council.
WHEREAS, pursuant to RCW 36 70A.390 and RCW 35 63.200, the City Council of the
City of Yakima by unanimous vote of those present on April 2, 2013 adopted Ordinance
No. 2013 -14 imposing a moratorium for six months prohibiting the filing and acceptance of
development applications for, the installation of, and issuance of permits and approvals for,
telecommunication towers, cell towers, communication towers, and facilities related to such
uses, within the City of Yakima; and
WHEREAS, RCW 36.70A.390 and RCW 35.63.200 require the City Council to hold a
public hearing within sixty days after imposition of a moratorium to receive evidence and
testimony regarding imposition of the moratorium, to consider whether such moratorium should
be modified or continue in effect as originally adopted, and to adopt findings of fact supporting
such decision; and
WHEREAS, the City Council has held the required public hearing on May 21, 2013
pursuant to notice duly published, and having considered all evidence and testimony presented,
hereby makes the following:
Findings of Fact
The City Council of the City of Yakima has authority pursuant to RCW 36.70A.390
and RCW 35.63.200 to adopt a moratorium to preserve the status quo pending
development of comprehensive land use controls and regulations, health and safety
regulations, and business licensing or registration regulations and procedures,
concerning telecommunication towers, cell towers, communications towers, and
facilities related to such uses
2. Existing land use regulations in the Yakima Municipal Code consist of the provisions
of YMC 15.04.180 which provide:
15.04.180 Communication towers.
The following provisions shall govern the placement of communication towers
within the urban growth area:
1. Communication towers less than thirty -five feet in height require a Type
(1) review to ensure compliance with minimum setbacks and building code
requirements;
2. Communication towers thirty -five feet or greater in height require a Type
(2) review to ensure compliance with setback provisions and that other permit
procedures are reviewed and met; and
3. Communication towers more than fifty -five feet in height shall follow the
review procedures for Class (3) uses and shall meet all the provisions and the
building code (Ord. 2008 -46 § 1 (part), 2008: Ord. 2947 § 1 (part), 1986
Formerly 15.04 130).
Additional provisions are found within the international building codes pertaining to
structural engineering and issuance of building permits for such uses. Existing
codes and procedures in the Yakima Municipal Code do not adequately address
appropriate priority of zoning, site screening, camouflaging of towers and related
telecommunication facilities, collocation requirements, application requirements,
provisions addressing secondary effects of such facilities upon the quiet use and
enjoyment of property, and other factors as described in Finding 3 below
3. Within the parameters of the Telecommunications Act of 1996, Pub. L. No. 104 -104,
110 Stat. 56 (1996), state law and applicable regulations, the City of Yakima may
consider regulations pertaining to telecommunication towers and facilities in a
number of areas, for example (a) requiring applicants to provide for expert
assistance; (b) verification of the need for a requested tower or facility; (c) prioritizing
preferred locations for telecommunication towers; (d) verification of minimum height
of towers needed to provide adequate coverage; (e) standards governing
appearance and aesthetics; (f) requiring collocation to minimize number of towers in
the community; (g) developing application forms and establishing appropriate
application fees, (h) regulation of lighting, setbacks, signage and site security; (i)
undergrounding of associated utilities; (j) insurance and indemnification; (k)
provisions relating to removal of abandoned structures.
4. Secondary effects arising from inadequate land use controls for telecommunication
towers and facilities include: (a) lack of standards prioritizing zoning districts or types
of property, so that a telecommunication tower or facility could be located in the
vicinity of more sensitive land uses such as residential zones and neighborhoods,
rather than upon existing public property or facilities; (b) no means to require
collocation of telecommunication facilities on existing towers so as to reduce the
number of telecommunication towers and facilities within the community; (c) no
adequate standards requiring telecommunication towers and facilities to be screened
or camouflaged to preserve and promote quiet use and enjoyment of existing
property owners, (d) no means to deny any application for a new telecommunication
tower or facility where no verification of need of such facility exists; (e) no means to
limit construction of telecommunication towers and facilities within or in the near
vicinity of sensitive community uses such as established historic districts.
5. The City Council finds and determines that the City of Yakima needs time to consider
additional zoning regulations, health and safety regulations, and business licensing
regulations which would deal specifically with telecommunication towers and related
facilities within the City of Yakima, and the City Council therefore finds and
determines that the moratorium for the term of six months adopted and implemented
in Ordinance No 2013 -14, commencing on April 2, 2013 and extending through
2
October 1, 2013, is necessary and appropriate in order to study the issues and to
consider adopting appropriate regulations.
6. The City Council finds and determines that certain exemptions from the moratorium
are warranted as set forth in Ordinance No. 2013 -14, including applications for
telecommunication towers and facilities that vested prior to the effective date of the
moratorium As required by Section 6409(a) of the Middle Class Tax Relief and Job
Creation Act of 2012 (H.R. 3630) ( "Act "), also excluded from the moratorium are
eligible facilities' requests 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. For purposes of this subsection, the term "eligible facilities request"
means any request for modification of an existing wireless tower or base station that
involves—
(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C) replacement of transmission equipment.
Application and administration of the moratorium adopted and implemented pursuant
to Ordinance No. 2013 -14 shall be consistent with such provisions and with the
interpretation of Section 6409(a) of the Act as issued by the Federal
Communications Commission on January 25, 2013 (DA 12- 2407).
7. The City Council finds and determines that imposition of the moratorium adopted
pursuant to Ordinance No. 2013 -14 is necessary to (a) provide the City with an
opportunity to study the issues regarding siting, zoning and regulation of
telecommunication towers, cell towers, communications towers, and related facilities
within the City of Yakima and to prepare appropriate revisions to the City's codes
and regulations; (b) to protect the health, safety and welfare of the citizens of Yakima
by avoiding and ameliorating negative impacts of the proliferation of new
telecommunication towers and related facilities; and (c) to avoid applicants possibly
establishing vested rights contrary to and inconsistent with any revisions the City
may make to its regulations and codes as a result of the City's study of this matter.
8 The City Council finds, determines and concludes that an emergency exists justifying
emergency adoption of Ordinance No 2013 -14, to wit: (a) existing city codes and
procedures are inadequate to provide for the receipt and processing of applications
for telecommunication towers and related facilities, designation of appropriate zoning
districts or priority of zoning districts for such uses, and protection of the general
health, safety and welfare of residents of the City of Yakima; (b) neither City staff nor
the Planning Commission have had sufficient opportunity to review the effects of
permitting telecommunication towers and facilities or to formulate, prepare and
recommend appropriate zoning regulations, health and safety regulations, and
business licensing regulations which would deal specifically such uses within the City
of Yakima; and (c) the immediate imposition of this moratorium pursuant to
Ordinance No. 2013 -14 will preserve the status quo to enable the City to further
study the effects of such uses and to devise appropriate zoning and regulatory
controls to address the effects of such uses
9 The City Council finds and determines that the moratorium adopted and
implemented pursuant to Ordinance No. 2013 -14 should remain in effect according
to its terms, and that such is in the best interests of residents of the City of Yakima
and will promote the general health, safety and welfare, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The Findings of Fact set forth above are hereby adopted as the Findings of Fact
supporting the adoption, implementation and continuation of the moratorium adopted
April 2, 2013 pursuant to Ordinance No 2013 -14 according to its terms, with
application and administration of such moratorium consistent with Finding of Fact No.
6 above, pertaining to Section 6409(a) of the Middle Class Tax Relief and Job
Creation Act of 2012 (H.R. 3630).
2. The City Manager of the City of Yakima is hereby authorized and directed to perform
those duties and functions set forth in Ordinance No. 2013 -14, including but not
limited to, development of proposed comprehensive land use, licensing, and health
and safety regulations pertaining to telecommunication lowers and related facilities
and any issues ancillary thereto.
ADOPTED BY THE CITY COUNCIL this 21St day of May, 2013.
Micah Caw y, Mayor
,4 W 449
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No:
For Meeting of: 5/21/2013
ITEM TITLE: Public Hearing, and consideration of a Resolution adopting
findings of fact in support of moratorium regarding
telecommunications towers and facilities.
SUBMITTED BY: Jeff Cutter, City Attorney
Mark Kunkler, Senior Assistant City Attorney
SUMMARY EXPLANATION:
On April 2, 2013, the City Council adopted Ordinance No. 2013 -14 imposing a moratorium on
receipt, processing and issuance of permits for placement and erection of telecommunication
towers and facilities within the City of Yakima, subject to certain exceptions for vested
applications and collocation, repair and replacement of telecommunication equipment. State law
requires that a public hearing be held within 60 days after adoption of the moratorium. The
purpose of the public hearing is to receive public testimony and evidence as to whether the
moratorium should remain unchanged or modified. Following the public hearing the City Council
is asked to adopt a resolution setting forth findings of fact supporting the moratorium as
originally adopted or as modified. The attached resolution sets forth proposed findings in
support of the moratorium as originally adopted, but incorporating findings regarding compliance
with new federal legislation pertaining to telecommunications facilities.
Resolution: X
Other (Specify):
Contract:
Start Date:
Item Budgeted:
Funding Source /Fiscal
Impact:
Strategic Priority:
Insurance Required? No
Mail to:
Phone:
Ordinance:
Contract Term:
End Date:
Amount:
CITY OF YAKIMA
LEGAL
DEPARTMENT
200 South Third Street Yakima, Washuigton %Rn (509)575bQ30 F" (,"P75 61W
MEMORANDUM
May 10, 2013
TO: Honorable Mayor and Members of the City Council
Tony O'Rourke, City Manager
FROM: Mark Kunkler, Senior Assistant City Attorney
SUBJECT: Public Hearing — Moratorium — Telecommunication, Cellular Towers, etc.
The City Council adopted Ordinance No. 2013 -014 on April 2, 2013. This ordinance imposed a
moratorium for up to six months prohibiting the filing and acceptance of development
applications for, the installation of, and issuance of permits and approvals for,
telecommunication towers, cell towers, communication towers, and facilities related to such
uses, within the City of Yakima.
Pursuant to RCW 36.70A.390 and RCW 35.63.200 authorizing the adoption of moratoria, the
City Council is required to hold a public hearing within sixty days after imposition of a
moratorium. The purpose of the public hearing is to receive evidence and testimony regarding
imposition of the moratorium, to consider whether such moratorium should be modified or
continue in effect as originally adopted, and to adopt findings of fact supporting such decision.
To honor this requirement, a public record has been scheduled for May 21, 2013.
Included within this agenda item is a Resolution that adopts proposed findings of fact
supporting the adoption of the moratorium. If the City Council determines, after receipt of
public testimony, comment or evidence, that the original moratorium should be modified in
scope, length or effect, the proposed findings will be modified to reflect the decision of the City
Council.
In response to a comment received from a member of the telecommunication industry,
proposed Finding No. 6 has been included within the proposed Resolution. This Finding recites
and describes certain exceptions to the moratorium, such as applications that have vested prior
to the effective date of the moratorium. The Finding also describes a relatively new law
adopted by Congress in the Middle Class Tax Relief and Job Creation Act of 2012 (H.R. 3630)
( "Act "). Section 6409(a) of the Act provides:
Memorandum to Honorable Mayor and Members of the City Council
May 10, 2013
Page 2
SEC. 6409. WIRELESS FACILITIES DEPLOYMENT.
(a) FACILITY MODIFICATIONS.—
(1) IN GENERAL.— Notwithstanding section 704 of the Telecommunications Act
of 1996 (Public Law 104 -104) or any other provision of law, a State or local
government may not deny, and shall approve, any eligible facilities 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.
(2) ELIGIBLE FACILITIES REQUEST. —For purposes of this subsection, the
term "eligible facilities request" means any request for modification of an existing
wireless tower or base station that involves —
(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C) replacement of transmission equipment.
(3) APPLICABILITY OF ENVIRONMENTAL LAWS.— Nothing in paragraph (1)
shall be construed to relieve the Commission from the requirements of the
National Historic Preservation Act or the National Environmental Policy Act of
1969.
In other words, a collocation, removal or replacement of telecommunication equipment must be
allowed unless it constitutes a "substantial change in the physical dimensions of the tower or
base station." Congress did not tell us what "substantial change" means, so the Federal
Communications Commission (FCC) issued an Interpretation of Section 6409(a) on January 25,
2013. In its interpretation, the FCC stated that the following (summarized) would constitute a
"substantial change"
(a) Any collocation, removal or replacement antenna that increased the height of the
tower by 10 %, or by the height of one additional antenna array, whichever is
greater;
(b) Any mounting of a new antenna that would involve the installation of more than
the standard number of new equipment cabinets;
(c) Any mounting of a new antenna that involves adding an appurtenance to the
body of the tower that would protrude more than 20 feet, or more than the width
of the tower at the level of the appurtenance;
(d) Any mounting of a tower that would involve excavation outside the current tower
site.
In response to the requirements of Section 6409(a) of the Act, Finding No. 6 was included in
the attached Resolution. Application and administration of the moratorium would be subject to
Memorandum to Honorable Mayor and Members of the City Council
May 10, 2013
Page 3
the requirements as stated in Section 6409(a) of the Act and the FCC Interpretation described
above.
Attached for your reference are copies of the following documents:
(a) Resolution adopting proposed findings of fact in support of the moratorium
adopted April 2, 2013 per Ordinance No. 2013 -014.
(b) Ordinance No. 2013 -014 (moratorium ordinance).
(c) FCC Interpretation (January 25, 2013).
RESOLUTION NO. R -2013-
A RESOLUTION adopting Findings of Fact supporting a six -month moratorium, enacted
April 2, 2013 pursuant to emergency Ordinance No. 2013 -14, prohibiting
the filing and acceptance of development applications for, the installation
of, and issuance of permits and approvals for, telecommunication towers,
cell towers, communication towers, and facilities related to such uses,
within the City of Yakima; and authorizing the City Manager to study and
develop appropriate comprehensive land use, licensing or registration
regulations addressing such issues for consideration by the City Council.
WHEREAS, pursuant to RCW 36.70A.390 and RCW 35.63.200, the City Council of the
City of Yakima by unanimous vote of those present on April 2, 2013 adopted Ordinance
No. 2013 -14 imposing a moratorium for six months prohibiting the filing and acceptance of
development applications for, the installation of, and issuance of permits and approvals for,
telecommunication towers, cell towers, communication towers, and facilities related to such
uses, within the City of Yakima; and
WHEREAS, RCW 36.70A.390 and RCW 35.63.200 require the City Council to hold a
public hearing within sixty days after imposition of a moratorium to receive evidence and
testimony regarding imposition of the moratorium, to consider whether such moratorium should
be modified or continue in effect as originally adopted, and to adopt findings of fact supporting
such decision; and
WHEREAS, the City Council has held the required public hearing on May 21, 2013
pursuant to notice duly published, and having considered all evidence and testimony presented,
hereby makes the following:
Findings of Fact
The City Council of the City of Yakima has authority pursuant to RCW 36.70A.390
and RCW 35.63.200 to adopt a moratorium to preserve the status quo pending
development of comprehensive land use controls and regulations, health and safety
regulations, and business licensing or registration regulations and procedures,
concerning telecommunication towers, cell towers, communications towers, and
facilities related to such uses.
2. Existing land use regulations in the Yakima Municipal Code consist of the provisions
of YMC 15.04.180 which provide:
15.04.180 Communication towers.
The following provisions shall govern the placement of communication towers
within the urban growth area:
1. Communication towers less than thirty -five feet in height require a Type
(1) review to ensure compliance with minimum setbacks and building code
requirements;
2. Communication towers thirty -five feet or greater in height require a Type
(2) review to ensure compliance with setback provisions and that other permit
procedures are reviewed and met; and
3. Communication towers more than fifty -five feet in height shall follow the
review procedures for Class (3) uses and shall meet all the provisions and the
building code. (Ord. 2008 -46 § 1 (part), 2008: Ord. 2947 § 1 (part), 1986.
Formerly 15.04.130).
Additional provisions are found within the international building codes pertaining to
structural engineering and issuance of building permits for such uses. Existing
codes and procedures in the Yakima Municipal Code do not adequately address
appropriate priority of zoning, site screening, camouflaging of towers and related
telecommunication facilities, collocation requirements, application requirements,
provisions addressing secondary effects of such facilities upon the quiet use and
enjoyment of property, and other factors as described in Finding 3 below.
3. Within the parameters of the Telecommunications Act of 1996, Pub. L. No. 104 -104,
110 Stat. 56 (1996), state law and applicable regulations, the City of Yakima may
consider regulations pertaining to telecommunication towers and facilities in a
number of areas, for example: (a) requiring applicants to provide for expert
assistance; (b) verification of the need for a requested tower or facility; (c) prioritizing
preferred locations for telecommunication towers; (d) verification of minimum height
of towers needed to provide adequate coverage; (e) standards governing
appearance and aesthetics; (f) requiring collocation to minimize number of towers in
the community; (g) developing application forms and establishing appropriate
application fees; (h) regulation of lighting, setbacks, signage and site security; (i)
undergrounding of associated utilities; 0) insurance and indemnification; (k)
provisions relating to removal of abandoned structures.
4. Secondary effects arising from inadequate land use controls for telecommunication
towers and facilities include: (a) lack of standards prioritizing zoning districts or types
of property, so that a telecommunication tower or facility could be located in the
vicinity of more sensitive land uses such as residential zones and neighborhoods,
rather than upon existing public property or facilities; (b) no means to require
collocation of telecommunication facilities on existing towers so as to reduce the
number of telecommunication towers and facilities within the community; (c) no
adequate standards requiring telecommunication towers and facilities to be
screened or camouflaged to preserve and promote quiet use and enjoyment of
existing property owners; (d) no means to deny any application for a new
telecommunication tower or facility where no verification of need of such facility
exists; (e) no means to limit construction of telecommunication towers and facilities
within or in the near vicinity of sensitive community uses such as established historic
districts.
5. The City Council finds and determines that the City of Yakima needs time to
consider additional zoning regulations, health and safety regulations, and business
licensing regulations which would deal specifically with telecommunication towers
and related facilities within the City of Yakima, and the City Council therefore finds
and determines that the moratorium for the term of six months adopted and
implemented in Ordinance No. 2013 -14, commencing on April 2, 2013 and
extending through October 1, 2013, is necessary and appropriate in order to study
the issues and to consider adopting appropriate regulations.
6. The City Council finds and determines that certain exemptions from the moratorium
are warranted as set forth in Ordinance No. 2013 -14, including applications for
telecommunication towers and facilities that vested prior to the effective date of the
moratorium. As required by Section 6409(a) of the Middle Class Tax Relief and Job
Creation Act of 2012 (H.R. 3630) ( "Act "), also excluded from the moratorium are
eligible facilities' requests 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. For purposes of this subsection, the term "eligible facilities request"
means any request for modification of an existing wireless tower or base station that
involves—
(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C) replacement of transmission equipment.
Application and administration of the moratorium adopted and implemented pursuant
to Ordinance No. 2013 -14 shall be consistent with such provisions and with the
interpretation of Section 6409(a) of the Act as issued by the Federal
Communications Commission on January 25, 2013 (DA 12- 2407).
7. The City Council finds and determines that imposition of the moratorium adopted
pursuant to Ordinance No. 2013 -14 is necessary to (a) provide the City with an
opportunity to study the issues regarding siting, zoning and regulation of
telecommunication towers, cell towers, communications towers, and related facilities
within the City of Yakima and to prepare appropriate revisions to the City's codes
and regulations; (b) to protect the health, safety and welfare of the citizens of
Yakima by avoiding and ameliorating negative impacts of the proliferation of new
telecommunication towers and related facilities; and (c) to avoid applicants possibly
establishing vested rights contrary to and inconsistent with any revisions the City
may make to its regulations and codes as a result of the City's study of this matter.
8. The City Council finds, determines and concludes that an emergency exists
justifying emergency adoption of Ordinance No 2013 -14, to wit: (a) existing city
codes and procedures are inadequate to provide for the receipt and processing of
applications for telecommunication towers and related facilities, designation of
appropriate zoning districts or priority of zoning districts for such uses, and
protection of the general health, safety and welfare of residents of the City of
Yakima; (b) neither City staff nor the Planning Commission have had sufficient
opportunity to review the effects of permitting telecommunication towers and
facilities or to formulate, prepare and recommend appropriate zoning regulations,
health and safety regulations, and business licensing regulations which would deal
specifically such uses within the City of Yakima; and (c) the immediate imposition of
this moratorium pursuant to Ordinance No. 2013 -14 will preserve the status quo to
enable the City to further study the effects of such uses and to devise appropriate
zoning and regulatory controls to address the effects of such uses.
9. The City Council finds and determines that the moratorium adopted and
implemented pursuant to Ordinance No. 2013 -14 should remain in effect according
to its terms, and that such is in the best interests of residents of the City of Yakima
and will promote the general health, safety and welfare; therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The Findings of Fact set forth above are hereby adopted as the Findings of Fact
supporting the adoption, implementation and continuation of the moratorium adopted
April 2, 2013 pursuant to Ordinance No. 2013 -14 according to its terms, with
application and administration of such moratorium consistent with Finding of Fact
No. 6 above, pertaining to Section 6409(a) of the Middle Class Tax Relief and Job
Creation Act of 2012 (H.R. 3630).
2. The City Manager of the City of Yakima is hereby authorized and directed to perform
those duties and functions set forth in Ordinance No. 2013 -14, including but not
limited to, development of proposed comprehensive land use, licensing, and health
and safety regulations pertaining to telecommunication lowers and related facilities
and any issues ancillary thereto.
ADOPTED BY THE CITY COUNCIL this 21St day of May, 2013.
ATTEST:
City Clerk
M
Micah Cawley, Mayor
ORDINANCE NO. 2013 -14
AN ORDINANCE of the City of Yakima, Washington, adopting a six -month
moratorium on the filing and acceptance of development
applications for, the installation of, and issuance of permits and
approvals for, telecommunication towers, cell towers,
communication towers, and facilities related to such uses, within
the City of Yakima; directing development of comprehensive
zoning and business regulations pertaining to such towers and
related facilities; providing that the moratorium shall be in effect for
six months, through October 1, 2013; declaring an emergency in
the passage of this ordinance providing for immediate effective
date; and setting May 21, 2013 as the date for the public hearing
on the moratorium.
WHEREAS, RCW 36.70A.390 and RCW 35.63.200 authorize the City Council to
adopt an ordinance imposing a moratorium and provide a process for public hearing
which must be held within sixty days of the date of adoption of the moratorium; and
WHEREAS, the City Council finds and determines that the City of Yakima needs
time to consider additional zoning regulations, health and safety regulations, and
licensing regulations which would deal specifically with the location, design, construction,
maintenance and operation of telecommunication towers, cell towers, communication
towers, and facilities related to such uses (hereinafter collectively referred to as
"telecommunication towers ") within the City of Yakima, and the City Council has
therefore decided to impose a moratorium for the term of six months, commencing on
the effective date of this ordinance and extending through October 1, 2013, in order to
study the issue as determined by the City Council and to adopt appropriate regulations
and
WHEREAS, the City Council finds and determines that imposition of a moratorium
is necessary to (a) provide the City with an opportunity to study the issues regarding
siting, zoning and regulation of telecommunication towers within the boundaries of the
City of Yakima; (b) to protect the health, safety and welfare of residents of the city, and
to preserve and promote development of comprehensive regulations for siting, zoning,
screening and maintenance of telecommunication towers within the city; and (c) to avoid
applicants possibly establishing vested rights contrary to and inconsistent with any
revisions the City may make to its regulations and codes as a result of the City's study of
this matter; and
WHEREAS, the City Council finds, determines and concludes that an emergency
exists, to wit: (a) the City of Yakima has learned of recent inquiries and proposals being
discussed with regard to locating telecommunication towers within the city, including
proposals for locating such uses within or in close proximity to residential
neighborhoods; (b) neither City staff nor the Planning Commission have had sufficient
opportunity to review the effects of telecommunication tower uses with regard to
concerns for economic development, preservation and /or promotion of site compatibility,
preservation and protection of the rights of residents to the quiet use and enjoyment of
their residential property and neighborhoods, and safety within the city, and development
of a comprehensive plan, program or regulation coordinating the preservation and
promotion of residential, commercial and industrial districts with the needs and uses of
the telecommunication industry; and (c) the immediate imposition of this moratorium will
preserve the status quo to enable the City to further study the effects of such uses and
to devise appropriate zoning and regulatory controls to address the effects of such uses;
and
WHEREAS, the City Council authorizes and directs the City Manager to 1) review
existing City codes and zoning regulations affecting telecommunication tower siting, 2)
further study the effects resulting from locating telecommunication towers within the
boundaries of the city, 3) prepare comprehensive proposed amendments to the City
codes and zoning regulations to address the effects of such uses, 4) to confer with
community members, City advisory commissions and telecommunication providers in
accord with the requirements of RCW 35.99.050, as shall be necessary and appropriate,
and 5) to present recommended legislation addressing such issues to the City Council
for consideration, public comment and action; and
WHEREAS, the City Council finds and determines that a public hearing on this
moratorium should be held on May 21, 2013, whereupon the City Council may adopt
findings of fact in support of the adoption of this moratorium, or modify the terms thereof;
and
WHEREAS, notwithstanding the term of six months set forth above for the
moratorium adopted herein, this moratorium may at any time hereafter be (a) modified
by the City Council in accordance with applicable law; (b) extended for additional term(s)
of six months upon action following public hearing and adoption of findings in support
thereof; (c) terminated by the City Council upon adoption of appropriate zoning and
regulatory codes; or (d) terminated by the City Council for any reason deemed
necessary or appropriate; now, therefore:
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. Moratorium Established. From and after the effective date of this
ordinance, the City shall not allow the filing of or accept any application for a building
permit, tenant improvement, business license, business registration, nonprofit license,
permit, subdivision, short subdivision, site plan review, or any other development for any
telecommunication tower, cell tower, communication tower, and related facilities, land,
structure or use, within the boundaries of the City of Yakima. As used in this ordinance,
the following terms have the meanings set forth below:
A. "Telecommunication tower" includes a "communication tower" as defined in
YMC 15.04.180 and Chapter 15.04 YMC, and "personal wireless service
facilities" defined and regulated by Telecommunications Act of 1996, Pub.
Law 104 -104, 110 Stat. 56 (1996), and Section 302(c) thereof, codified at 47
U.S.0 Section 302(c). The term includes towers and facilities commonly
known as "cell towers" and other towers or structures consisting of
freestanding or monopole construction.
B. "City" means the City of Yakima and all zoning districts within such city.
2
In addition to the above definitions and as necessary to interpret or apply this Ordinance,
the City hereby adopts those definitions and provisions of the Yakima Municipal Code
pertaining to land use, zoning, design and regulation.
Section 2. Exemptions — Vested Rights — Repair and Mandated Safety
Improvements — Collocation. The moratorium shall not apply to applications for new
telecommunication towers and related facilities, or permits for relocation of existing
telecommunication towers and facilities, that have vested prior to the effective date of
this ordinance, permit applications to conduct repair of existing telecommunication
towers and facilities, permit applications to implement safety improvements for existing
telecommunication towers and facilities as mandated by state or federal standards, or
permit applications for collocation on any existing telecommunication tower or facility that
do not extend the height or area of such existing facility. Applications which are legally
vested as of the effective date of this ordinance shall continue to be processed as
provided in the Yakima Municipal Code and according to the land use regulations in
effect on the date of vesting.
Section 3. Public Hearing. Pursuant to RCW 36.70A.390 and RCW 35.63.200,
a public hearing will be held on Tuesday, May 21, 2013, for the purpose of taking
testimony and, if this ordinance is passed, adopting written findings and conclusions
justifying the moratorium established by this ordinance.
Section 4. Effective Period of Moratorium. The moratorium adopted by this
ordinance shall become effective immediately upon passage and approval of the City
Council, and shall remain in effect for six months, through October 1, 2013, subject to
adoption of findings and conclusions as provided in Section 3 above. This moratorium
shall also terminate upon the adoption of permanent regulations governing the location,
land use and regulation of telecommunication towers and facilities. Notwithstanding the
above, this moratorium may be extended as provided in RCW 36.70A.390 and RCW
35.63.200.
Section 5. Directive to City Manager. The City Council hereby authorizes and
directs the City Manager to review existing City codes and zoning regulations; to study
the effects resulting from the siting of telecommunication facilities; to prepare
comprehensive proposed amendments to the City codes and zoning regulations tc
address the effects of such uses; to confer with community members, City advisory
commissions as appropriate and with members of the telecommunication industry that
wish to take part in the review and code development process in accord with the
requirements of RCW 35.99.050; and to present recommended legislation addressing
such issues to the City Council for consideration and action.
Section 6. Declaration of Emergency. Pursuant to Article VI Section 2 of the
Charter of the City of Yakima, the City Council finds, determines and declares that this
ordinance is an emergency ordinance to provide for the immediate preservation of the
public peace, property, health or safety. The unanimous vote of the City Council shall be
necessary for the passage of this emergency ordinance.
Section 7. Severability. If any section, sentence, clause or phrase of this
ordinance should be held to be invalid or unconstitutional by a court of competent
jurisdiction, such invalidity or unconstitutionality shall not affect the validity or
constitutionality of any other section, sentence, clause or phrase of this ordinance.
Section 8. Ordinance to be Transmitted to Department. Pursuant to RCW
36.70A.106, this Ordinance shall be transmitted to the Washington State Department of
Commerce as required by law or otherwise posted, published or recorded as permitted
by law.
Section 9. Effective Date. This ordinance shall be in full force and effect
immediately upon its passage and approval as provided by law and the City Charter.
PASSED BY UNANIMOUS VOTE OF THE CITY COUNCIL, signed and approved
this 2nd day of April, 2013.
ATTEST:
Zvi
City Clerk
Effective Date: April 2, 2013
Publication Date:
Ordinance Approved by Unanimous Vote
of Council Members: Yes
/s/
Micah Cawley, Mayor
JF
PUBLIC NOTICE
Federal Communications Commission News Media Information 2021418-05
44512 Internet: http://www.fcc.g ■
Washington, D.C. 20554 TTY: 1-888-835-53
11 111 11111i'l � 11 11111111i I � 0 ■ 11 1 1111211,1111 M U6111911
11TERPRE I A 11011 011 SEUTI011 6409(a) OVIAL MIDDLE ULASSTAX RELIEF
JOB CREATION ACT OF 2012
What does it can to "substantially change the physical dimensions" of a tower or base station?
Section 6409(a) does not define what constitutes a "substantial[] change" in the dimensions of a tower or
base station. In a similar context, under the Nationwide Collocation Agreement with the Advisory
Council on Historic Preservation and the National Conference of State Historic Preservation Officers, the
Commission has applied a four-prong test to determine whether a collocation will effect a "substantial
increase in the size of [a] tower. ,4 A proposed collocation that does not involve a substantial increase in
' Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, H.R. 3630, 126 Stat. 156 (enacted Feb. 22,
2012) (Tax Act).
2 -1d., § 6409(a).
3 Although we offer this interpretive guidance to assist parties in understanding their obligations under Section
6409(a), see, e.g., Truckers v. Federal Highway -Administration, 139 F.3 )d 934 (D.C.Cir. 1998), the
Commission remains free to exercise its discretion to interpret Section 6409(a) either by exercising its ruleinaking
authority or through adjudication. With two exceptions not relevant here, the Tax Act expressly grants the
Commission authority to '-implement and enforce" this and other provisions of Title VI of that Act "as if this title is
a part of the Communications Act of 1934 (47 U.S.C. 151 et seq.)." Tax Act § 6003.
4 47 C.F.R. Part 1, App. B, Nationwide Programmatic Agreement for the Collocation of Wireless Antennas, § IC
( Nationwide Collocation Agreement).
Under Section LC of the Nationwide Collocation Agreement, a "substantial increase in the size of the
tower" occurs if
proposed 5 �`ee 16 U.S. C. § 470f, see also 47 C.F.R. § 1. 1307(a)(4) (requiring applicants to determine whether ..
See Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review
and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as
Requiring a Variance, WT Docket No. 48 -165, Declaratory Ruling, 24 FCC Red. 13994, 14012, para. 46 & n.146
(2009) (2009 Declaratory Ruling), recon. denied, 25 FCC Red. 11157 (2010), pet. for review denied sub norn. City,
of_Arlington, Texas v. FCC, 668 F.3d 229 (5 "' Cir.), cent. granted, 113 S.Ct. 524 (2012); 47 U.S.C. § 332(c)(7).
7 �ee 47 C.F.R. § 17.4(c)(1)(B); National Environmental Policy Act Compliance for Proposed Tower Registrations,
WT Docket
•
What is a "wireless tower or base station"?
" &e iValiomvide Collocation Agreement, § I.B.
' See Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, WT Docket No. 10-
133, Annual Report and Analysis qf Competitive Market Conditions With Respect to Mobile Wireless, Including
CommerciaLkIlobile Services, Fifteenth Report, 26 FCC Red. 9664, 9481, para. 308 (2011).
10 See also 47 C.F.R. Part 1, App. C. Nationwide Programmatic Agreement Regarding the Section 106 National
Historic Preservation Act Review Process, § II.A. 14 (defining "towefto include "the on-site fencing, equipment,
switches, wiring, cabling, power sources, shelters. or cabinets associated with that Tower but not installed as part of
an Antenna as defined herein' ').
1147U.S.C.§332(c)(7)(A). "Personal wireless sen�ices" is in turn defined to mean "commercial mobile seMces.,
unlicensed wireless services, and common carrier '"Tireless exchange access services." Id. § 332(c)(7)(C)(1).
Is there a time limit within which an application must be approved?
LVIAIRUMN I 01112411JIN -q
the review.
}u the 300y Declaratory Ruling, the Commission found that 98 days iva presumptively reasonable period
ofdn�utoproouamcoUoco1onopp|ioo�onm`z bohohiof the nc untofSoobon640gkddho1dhu
reviewing "may not deny, and shall approve" a covered request, we believe that 90 days should
be the maximum presumptively rcamooub/cpedodofdozcfbcrcvicvrngmucbapplioudoom,xJhedzerfbr
"personal wireless services" or other wireless facilities.
Wireless Telecommunications Bureau contact: Maria Kirby uL(202)410-l476orbyemail:
gov.
oleumovisb:
12 See 2009 Declaratory Rm��24 FCC Rcd. atI40I2-I3,paras. 4647.
11
1111111111 11111 1111111kill !11] 1,111re-EvIrox"
(1) IN GENERAL. Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law
104-104) or any other provision of law, a State or local government may not deny, and shall approve, any
eligible facilities 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.
(2) ELIGIBLE FACILITIES REQUEST. For purposes of this subsection, the term "eligible facilities
request" means any request for modification of an existing wireless tower or base station that involves
(A) collocation of new transmission equipment;
(B) removal of transmission equipment; or
(C) replacement of transmission equipment.
(3) APPLICABILITY OF ENVIRONMENTAL LAWS. Nothing in paragraph (1) shall be construed to
relieve the Commission from the requirements of the National Historic Preservation Act or the National
Environmental Policv Act of 1969.
'Distributed t he'�Z
Meeting �((
Cell Tower Comments Yakima City Council 5/21/2013
Leslie Wahl, 2403 W Yakima Ave.
Mayor Cawley, Council Members,
Tonight I am commenting on the cell tower moratorium as a Director on the board of the
Barge Chestnut Neighborhood Association reflecting the opinion of the board.
We came to the council requesting postponement of cell tower permits until a more
complete, definitive ordinance could be written that would more accurately reflect the
values held by the community at large. Our action was precipitated by the proposal of a
cell tower at 16th & Yakima Avenue on the property of Central Lutheran Church. At that
time we discovered that the City's current ordinance currently permits the construction
of uncamouflaged towers of up to 55 feet with minimal review and no public input.
The BCNA board recently voted to oppose the construction of new cell phone towers in
or near historic districts or homes because these installations are incompatible with
historic properties.
We are also concerned that without appropriate development standards, other
residential areas will be threatened by similar incompatible construction. We believe
residential areas need to be protected from such encroachment for aesthetic reasons,
as well as the potential devaluation of surrounding property values.
We believe it is necessary for the City's new ordinance guiding the installation of new
cell phone towers to balance the desire of cell phone companies to improve service
coverage with our community's need to protect the residential and historic assets of our
City. From our conversations with City staff on this issue, it appears this is the direction
in which the City is moving for the new ordinance, and we endorse and support these
efforts.
Thank You.
O
BARGE - CHESTNUT NEIGHBORHOOD HISTORIC DISTRICT
Brief History
In 2007, the City of Yakima, in partnership with the Barge Chestnut Neighborhood Association applied
for and received a CLG (Certified Local Government) grant in order to accomplish the following:
(Excerpted from the CLG application and bolding added for emphasis)
INTRODUCTION
The goals of the Yakima Historic Preservation Program, as outlined in the ordinance, are to provide for
the identification, evaluation, designation, and protection of historic and prehistoric resources within
the city of Yakima and to preserve and rehabilitate eligible historic properties for future generations.
The program aims to: 1) safeguard the heritage of Yakima as represented by those resources which
reflect significant elements of Yakima history; 2) foster civic and neighborhood pride in the beauty and
accomplishments of the past, and a sense of identity based on Yakima history; 3) stabilize or improve
the aesthetic and economic vitality and values of such resources; 4) encourage capital investment in
the rehabilitation of real property and assist in strategic economic development through. the creation of
jobs, construction spending and physical improvement within Yakima; 5) promote fundamental growth
management principles and the development of sound tools for land use planning, urban design and
environmental protections; 6)conserve valuable material and energy resources by ongoing use and
maintenance of the existing built environment; and 7) assist, encourage and provide incentives to
private owners for preservation, rehabilitation, restoration, redevelopment, and the use of historic
buildings, districts, objects, sites and structures."
The CLG application further recognized, "This volunteer project will serve as a model for future phases
in the Barge- Chestnut neighborhood as well as for other residential neighborhoods in Yakima,
particularly those adjacent to the north and southeast of downtown Yakima."
In the submission of the official nomination of the Barge- Chestnut Neighborhood Historic District to the
city of Yakima Historic Preservation Commission, the Commission, in its approval of the nomination,
issued the following Findings of Facts, "To place the Barge- Chestnut Neighborhood -Phase 1 as a historic
district, bounded by South 32nd Avenue (west), South 24th Avenue (east), Barge Street (north) and W.
Walnut Street (south) on the Yakima Register of Historic Places."
Subsequent to the formation of Phase 1 of the project, neighborhood volunteers are working on the
addition of Phase 2 to the Barge- Chestnut Neighborhood Historic District and have set a goal of
including all those properties from S. 16th Ave. to S. 36th Ave., Tieton Drive to Summitview Avenue in the
Barge- Chestnut Neighborhood Historic District as originally planned.
Is there any benefit to historic designations?
• Local Example: The rehabilitation of Rosedell, 1811 W. Yakima Ave.
Rosedell had long been recognized as a historic property having been built as the personal
residence in the early 201h century by civic leader, A.E. Larson, and listed on the National
Register of Historic Places. The structure had been in a state of declining condition over time
and was rapidly reaching the point of economic unviability for restoration. The owners accessed
the Special Valuations process (available to individual listed properties and contributing
properties within historic districts) in order to make the necessary repairs to the building. The
owners of Rosedell created a small business in the form of a destination Bed & Breakfast which
is contributing to the economic vitality of the city.
• Local Example: Local real estate listings
Yakima realtors are using the Historic District as a selling point in the listings for prospective
buyers who appreciate the qualities of living is a neighborhood with remarkable architecture
and well maintained properties with mature trees. Nationally, surveys cite increased property
values of 10 -20% based on the inclusion within historic districts.
Impact of Cell towers in residential neighborhoods /historic neighborhoods
Placed within R -1 zoning (low density residential designation), cell towers have resulted in
negative outcomes in residential neighborhoods. www.magdahavas.com,
https: // sites /google.com/ site /nocelitowerinourneighborhood /home /decreased. More
information regarding the negative impact of cell towers in residential areas can be located on
the internet by googling "devaluation cell tower."
The devaluation of residential property sales has been well documented in many areas of the
country. The drop in property values vary by the area of the placement of the tower, the height,
whether the tower is camouflaged and other sectional variables, with averages of 2 -20% loss of
value. Some owners have experienced as much as a 50% drop in value.
• It is clear that devaluation of property values is detrimental to a neighborhood /historic
district, as well as the municipality or taxing district with the decrease in property tax
revenues.
Loss of aesthetic values are sometimes hard to quantify but everyone knows when they see it!
Is there any way one can describe a cell tower as aesthetically pleasing? Artificial camouflaging
has had mixed results and photos of those that have been disguised as coniferous trees remain
artificial looking.
• Cell towers are industrial by design and lack aesthetic appeal.
Properties Listed on the National Historic Register
adjacent to /near Central Lutheran Church
• Harrison Dills House —4 N. 16th Ave.
• Dr. Edmund West House — 202 S. 16th Ave.
• William Watt House —1511 W. Chestnut Ave.
• A.E. Larson House (Rosedell) —1811 W. Yakima Ave.
• H. M. Gilbert House — 2109 W. Yakima Ave.
• Barge Chestnut Neighborhood Historic District— Phase 1
• Note: Central Lutheran Church is located in Phase 3 (research for
Phase 3 has been initiated by the Barge Chestnut Neighborhood
Association Historic Preservation Committee.)
Distributed at th
Meeting Y,
Nancy Adele Kenmotsu, Ph. D.
101 N 48th Av, #6B
Yakima, WA 98908
May 21, 2013
Mayor and City Council
City of Yakima
129 N Second St
Yakima, WA 98901
RE: Cell Towers & Neighborhoods
Dear Mayor Cawley and Council Members:
I write to you both as a member of the Yakima Historic Preservation Commission and as
a resident of the City of Yakima. In both capacities, I am in full support of the current
moratorium on cell towers in Yakima. The City needs to develop a process to cite these
facilities without adverse effects to existing residential and historic districts. "Adverse
effect" is a term defined by the regulations for Section 106 of the National Historic
Preservation Act (36CFR800.5) and it includes introduction of visual elements that
diminish the integrity of the property. As an example, the cell tower proposed at the
southwest corner of 16th and Yakima avenues would have an adverse effect on the four
historic properties surrounding it (all listed on the National Register of Historic Places)
and the Barge Chestnut Historic District.
Yet, Yakima has other historic neighborhoods not on any local or national register that
could also be adversely affected by similar proposals simply because we currently have
no means to evaluate the effects of such placement. As well, I live in, and likely some or
all of the people in this room, live in pleasant, peaceful residential neighborhoods. We
too need a means to avoid the introduction of ugly, unwelcome, intrusive elements out of
keeping with the design and scale of our neighborhood.
In sum, the moratorium is a prudent measure to seek resolutions of the need for cell
towers with the need for quality of life. The moratorium comes at a time when the City
seeks to position itself as a destination for visitors and new businesses. Cell towers placed
at random, without any plan, do not impress visitors or potential investors. Without the
moratorium and rules for cell tower placements, adverse effects to historic properties and
historic districts will occur. At the same time, we can also anticipate that citizens in any
residential neighborhood will have no voice in the placement of these towers next to their
homes. That is not the quality of life that I seek in Yakima.
Sincerely,
signed by Nancy Kenmotsu
Nancy Kenmotsu