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The County’s land use regulations for personal wireless communication facilities, often referred to as cell sites, are housed in the Douglas County Zoning Resolution (DCZR), Section 27 – Site Improvement Plan, and Section 27A – Personal Wireless Communication Facility Design Standards. Cell sites are currently subject to a modified Site Improvement Plan (SIP) approval process which considers the limitations on review timelines, scope of review, location considerations, and design standards imposed by the state and federal governments.
The SIP process involves the submittal of an application by the small cell service provider for a specific location and design. Directly abutting property owners, and across any road, will be given a written notice of the application in process. Referral agencies, such as any County-registered homeowners association, will also be given a copy of the request. The application is available to view online and typically includes a photo-simulation of the pole and its equipment, along with detailed plans. The County will continue to encourage heights, locations, and designs that minimize visual impacts to the surrounding neighborhood. The County cannot, however, prohibit small cell facilities from locating within the County-owned right-of-way. Typically, County-ownership extends several feet beyond the curb.
The SIP process is administrative. Planning, Engineering and Building staff review the request, comments received, and applicable standards. Notice of the final action is mailed to abutting property owners.
In late September 2018, the FCC issued an order imposing restrictions on the ability of local governments to regulate small cell facilities. Among other things, the September 2018 order restricts the amount of time local governments have available to review small cell applications and the fees that can be charged for that review and approval. The order appears to interpret federal law as prohibiting local regulations that result in gaps in service as well as regulation that prevent providers from densifying their network, introducing new service, or improving their service capabilities. The FCC’s order treats local regulation of aesthetic requirements as one means of potentially restricting service and imposes constraints on local regulations regarding aesthetics. Under the order, aesthetic requirements are precluded unless they are: (1) reasonable; (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance.
The FCC’s order provides local governments with little guidance on what meets these requirements, including what aesthetic requirements will be considered reasonable, what standards apply in areas where other regulated infrastructure deployments must be underground, what degree of specificity is necessary to be considered objective, and to what extent a provider’s desire to densify its network or upgrade its service could limit or preclude local aesthetic requirements.
The FCC’s September 2018 order is not the only limitation on local regulation of small cell facilities. For example, Colorado enacted a law in 2017 (House Bill 17-1193) making the siting, mounting, placement, construction and operation of small cell facilities and networks a permitted use by right in any land use zone. As a result, local governments in Colorado cannot prohibit small cell sites in residential zones. Federal legislation enacted in 2012 requires local governments to approve certain requests for modifications to existing cell sites. Federal law enacted in 1996 prohibits local governments from regulating cell sites based on the environmental effects of RF emissions that meet FCC standards that have not been revised since 1996. These and other state and federal laws substantially limit local authority to regulate small cell facilities.
Under federal legislation adopted in 1996, local governments are prohibited from regulating the placement, construction or modification of personal wireless service facilities based on the environmental effects of radiofrequency emissions so long as the facilities comply with the Federal Communications Commission’s (FCC’s) regulations on such emissions. This prohibition on local regulation has been broadly interpreted by the courts, leaving enforcement in the hands of the FCC. The County is generally precluded from denying an application based on RF impacts or from enforcing RF standards for any specific site.
In 2013, the FCC opened an administrative proceeding to consider whether its existing RF emission standards needed to be updated, but to date, the FCC has not reached a decision. Some experts believe that newer wireless technology, which use different frequency bands, warrant a thorough reexamination of the FCC’s RF standards, while others believe emissions dissipate within a few feet of the antenna and that current standards are still appropriate. The Board of County Commissioners is urging our federal congressional representatives to require the FCC to complete its inquiry and update its RF emissions standards as necessary based on that inquiry.
FCC warning signs are required to be placed on cell site facilities but should be mounted near the top of the pole where the antennas are housed. These signs are intended to warn maintenance personnel, and others, working directly next to the antenna cluster that higher RF emissions may exist at the top of the pole.. Exposure limits are required to be within acceptable FCC ranges. View the FCC docket here.
Not under current federal law. In August 2018, the FCC issued an order concluding that state and local moratoria on wireless sites are generally prohibited by federal law prohibited.
Most small cell facilities are designed to house all equipment within the pole itself, rather than in a separate equipment shelter. For this reason, the facility tends to be broader at its base and narrow through the middle and top. The County prefers designs with no exposed antennas. While the federal regulations define small cell facilities as those of up to 50-feet in height, most proposals received by the County so far have been for 24-feet in height on local streets and 35 feet in height for locations adjacent to intersections or open space tracts. Proposed pole diameters have typically ranged between 6 and 18 inches, depending on the design. The following are examples of what small cells have and may look like based upon information from the service providers (click on the links below to view):
- Small Cell Facility constructed in the County (near a commercial area)
- Photo simulation of a proposed small cell facility – image 1
- Photo simulation of a proposed cell small facility – image 2
- Small cell facility designs submitted to the County (proposed with residential areas)
For information pertaining to specific applications currently submitted to the County, please visit Project Records Online. A map of active projects is provided with links to the complete project file and status. A contact for the staff planner is provided for each application.
The County’s design standards for cell sites are found in Section 27A of the Douglas County Zoning Resolution or the Supplemental Aesthetic Standards for Personal Wireless Communication Facilities Sited in Public Right-of-Way. Such standards generally focus on designs that are compatible with the surrounding neighborhood. Stealth designs are encouraged. Stealth light pole designs have been commonly used for cell sites in Highlands Ranch and other suburban communities.
Federal and state laws currently define a period of time, often referred to as a shot clock, within which the County is required to make a decision on an application to construct, locate, collocate or make modifications to a cell site. For most small cell facilities, the review timeframe is 90 days. When locating on an existing pole or facility, the review timeframe is reduced to 60 days. Tolling (“on hold status”) occurs when an applicant has been notified that the application is incomplete. The “shot clock” stops, and time is not counted towards the maximum project review time, while the applicant submits additional information.
Under current federal law, the County and its residents have a limited ability to stop, slow down, or otherwise prohibit the deployment of small cell sites. Demands for wireless service are ever-increasing and industry providers, encouraged by the state and federal governments, are gearing up to meet that demand. The County will continue to evaluate its regulatory and legal options and will encourage placements and designs that limit aesthetic impacts on the community. County Planning Services staff would like to extend an invitation to meet with HOAs or other groups to discuss the small cell issue. Some service providers have also indicated that they are open to meeting with such groups to see if preferred designs and locations can be accommodated. Contacting your state and federal representatives may also be an effective means to advocate for changes to the current laws which limit local government control over these issues..
We encourage you to contact your congressional representative directly to discuss your concerns with the federal preemptions on small cell regulation. We also encourage you to contact the cell service provider representatives proposing facilities in your area to discuss your concerns. You may also email Douglas County directly, or fill out the comment card. Comments received by the County will be forwarded to our congressional contacts and cell service providers.
Zayo Fiber Solutions
Paul Bouley – [email protected]
1805 29th Street, Suite 2050
Boulder, CO 80301
Dean Siskowski, Market Manager
Debra Rubio, Network Real Estate Project Manager
3131 S. Vaughn Way, #550
Aurora, CO 80014