Here are some key issues for communities to consider if they choose to regulate the development of wireless facilities. The next section of this document will then elaborate on a checklist for preparing an actual telecommunications ordinance.
Facilities can operate at any height the town and the carrier find agreeable. Although height is one determinant of coverage, lower mounts can achieve almost the same coverage as higher mounts in many cases. The choice to be made is: accept more lower facilities right away, or start with just a few higher ones. Either way, the ultimate pattern will most likely be many lower facilities; therefore, it may be in a community's best interest to encourage a greater number of short facilities in the early stages of development.
Communities may establish safety requirements to protect persons and property. This issue is generally dealt with by establishing "fall zones." Fall zones are based on the possibility that a structure may fail or that ice or other objects may fall off or be blown off of the structure. A fall zone is an area surrounding the structure within which no other structure, property, or use can be located. Remember, the Federal Aviation Administration (FAA) does require airspace safety lighting or markings on towers 200 feet or greater in height.
There are several types of interference which can be subject to testing and most can be engineered down to acceptable levels. Interference is typically caused when one frequency interacts with another, or when signals in the same frequency (such as PWSFs) interfere with each other. This determination is best made by a radio frequency (RF) engineer. Local governments can retain a third party expert to test for interference or evaluate the specifications for the facility at the applicant's expense, or they can rely on the carrier's compliance with FCC regulations.
Of all the issues listed in this document, noise from a PWSF is the most difficult to anticipate and measure. As with any facility, noise can result from moving parts or nature impacting the facility. Noise caused by air conditioning units in equipment shelters and back-up generators may be a consideration. In areas of high wind, the noise of wind blowing through a structure may be a factor and ambient noise readings should be taken. If potential noise could be a problem then an acoustical report should be required. In many cases this is dependant on the proximity of schools, residences, hospitals, parks and open space. It should also be noted that equipment shelters can be located in underground vaults to address certain noise.
Visibility impacts can occur in individual situations or over a general area (scenic viewsheds). Communities can establish overlay districts for the preservation of scenic viewsheds and other environmentally sensitive areas. In some cases placement can determine how visible a PWSF will be. It should be noted that handsets can receive signals from antennas even if they are not immediately visible.
The wireless industry uses the term "camouflage" to describe the different methods of disguise. One technique is to place the PWSF in a forested area. The industry often resists this approach claiming that while the signal will work it will not be as strong as without tree cover. The ideal "line of sight" communication path virtually never exists and the wireless network is designed with that fact in mind. Fiberglass can also be used to camouflage a facility because it does not affect the signal. False walls and other building elements fabricated from fiberglass can therefore be used to hide facilities. Fiberglass can be used in a stealth application to disguise a facility as a large tree or another appropriate object. Landscaped buffers can also be utilized to camouflage PWSFs. These buffers should be designed to provide adequate screening at the time of planting and throughout the year.
Wireless facility design is closely linked with camouflaging techniques. New mount and antenna designs allow the antennas to be placed directly against the mount and can reduce the degree to which a PWSF is visible. Therefore, appropriate design of a PWSF, including the mount and associated antennas, as well as siting, can render a PWSF almost invisible.
Every PWSF requires some kind of equipment shelter. The design of equipment shelters and associated structures should be carefully reviewed by local boards because of their potential visual impacts and environmental issues. Electrical and telephone lines will also be required to connect the facility to the local network. Depending on the technology being used, equipment shelters often house batteries and/or fuel powered generators.
In environmentally sensitive areas, propane or natural gas powered generators should be used instead of oil generators, and batteries and any other hazardous materials should be housed within a containment area. Equipment shelters can be located in underground vaults if the visual impacts are of concern. If the structures are located above ground, they should be treated with appropriate architectural design elements and colors and possibly screened with a landscaped buffer.
Under the National Environmental Policy Act (NEPA), the FCC requires applicants to prepare "environmental assessments" for facilities that are proposed to be located in certain environmentally sensitive areas, including: officially designated wildlife preserves or wilderness areas; 100-year floodplains; situations which may affect threatened or endangered species or critical habitats; or situations which may cause significant change in surface features, such as wetland fills, deforestation or water diversion. The fact that an environmental assessment is required does not necessarily mean the tower cannot be built. It does, however, call for public notice and opportunity to comment on the environmental impacts of the proposed facility. An FCC finding of "no significant impact" means the project has cleared NEPA scrutiny.
Although it is frequently folded into the NEPA process, Section 106 of the National Historic Preservation Act is an independent, stand-alone federal requirement. It has no injunctive power but it can be a strong incentive for finding win/win resolutions as quickly as possible. The historic preservation review process is intended to be a problem-solving approach for avoiding or mitigating harm to historic properties from government actions. For information about Section 106 criteria and procedures relating to wireless projects in New Hampshire, contact the Division of Historical Resources at 603-271-3483.
This is one of the most controversial and misunderstood aspects of a PWSF. Communities may not regulate RFR emissions unless they have exceeded the federal standards as set by the FCC. Frequent discussion of this issue during the consideration of a proposal will also cause legal headaches if the application is eventually denied. Communities can require that an applicant demonstrate that a proposed PWSF meets FCC Guidelines.
The FCC's Local and State Government Advisory Committee, CTIA, and other wireless industry associations in 1997, developed guidelines on wireless facility siting where moratoria are involved. The guidelines provide:
A. "Local governments and the wireless industry should work cooperatively to facilitate the siting of wireless telecommunications facilities. Moratoria, where necessary, may be utilized when a local government needs time to review and possibly amend its land use regulations to adequately address issues relating to the siting of wireless telecommunications facilities in a manner that addresses local concerns, provides the public with access to wireless service for its safety, convenience and productivity, and complies with the [TCA].
B. Moratoria should be for a fixed (as opposed to open-ended) period of time, with a specified termination date. The length of the moratorium should be that which is reasonably necessary for the local government to adequately address [the situation]. In many cases, the issues that need to be addressed during a moratorium can be resolved within 180 days." See FCC Guidelines. Most communities will have addressed the challenges posed by the TCA by now. New Hampshire communities must enact a moratorium by a vote of their legislative body.
FCC "Shot Clock" Order - The boards, or a knowledgeable staff person, must immediately determine whether additional information is needed to evaluate the application, and the board must request it within thirty (30) days. Failure to timely request additional information means the "clock" continues to run while the applicant collects and provides the information. Note that the "additional information" referenced in the shot clock order pertains to cell tower applications only. This requirement is distinct from the requirement set forth in RSA 676:4 which references a "complete" application only in the context of the planning board's generic submittal requirements. The board must render its decision, in writing and based upon substantial evidence, no later than 90 days after the delivery of an application for co-location or 150 days after the delivery of an application for new construction.
RSA 676:4 - An application filed with the planning board must be filed at least 15 days prior to the meeting at which the application will be formally submitted. Once the application has been filed and placed on the planning board's agenda for submission, notice must be sent to the applicant, all abutters, and others required by statute at least 10 days prior to the date of submission. At its next regular meeting, or within 30 days following the delivery of the application, the planning board shall determine if the application is complete. If it is not complete, the planning board must notify the applicant. If it is complete, the board must accept the application. Once the application is accepted, the board must approve, conditionally approve, or disapprove the application within 65 days, subject to extensions or waivers.
RSA 12-K - Any municipality that receives an application for construction of a PWSF must provide written notice of the application and any pending action to any municipality within 20 miles of the proposed PWSF from which the PWSF will be visible. This notice must include (1) a letter to the governing body of the municipality within the 20-mile radius detailing the pending action on the application; and (2) publishing notice in a newspaper customarily used for legal notice by the municipality within the 20-mile radius. These notices must be published or received not less than 7 days nor more than 21 days prior to the date of the public hearing on the matter.
Chapter 267 of the laws of 2013 (SB101) significantly revised RSA 12-K to facilitate a streamlined application process for the collocation or modification of personal wireless service facilities. Under the revised law, within 45 days of receiving a collocation or modification application, the municipality must: 1) review the same in light of its conformity with applicable building permit requirements and consistency with RSA 12-K; 2) make a final decision to approve or disapprove the application; and 3) advise the applicant in writing of its final decision. A collocation or modification application is deemed to be complete unless the municipality notifies the applicant, in writing, within 15 calendar days of submission, of the deficiencies in the collocation or modification application which, if cured, would make the it complete. If the municipality fails to act on a collocation or modification application within 45 calendar days, the application is deemed approved.
For more information about these changes see Upgrades to Wireless Infrastructure, by Paul Sanderson, New Hampshire Town and City, January/February 2014 and Streamlined Application Process for the Collocation and Modification of Personal Wireless Service Facilities in NH, by Justin L. Pasay, Esq. DTC Lawyers, November 12, 2014.
RSA 36:54 - A municipality that receives a proposal for a PWSF that the municipality determines is a "development of regional impact," due to factors such as noise or emissions, must provide notice of the receipt within five business days of the determination to its regional planning commission and to the affected municipalities. The municipality must also submit an initial set of plans to the regional planning commission.
Further, at least 14 days prior to the public hearing, the municipality must notify all affected municipalities and the regional planning commission of the date, time, and place of the hearing and the right to testify.
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NH Office of Energy and Planning
Governor Hugh J. Gallen State Office Park
Johnson Hall, 3rd Floor | 107 Pleasant Street | Concord, NH 03301
(603) 271-2155 | fax: (603) 271-2615