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HomeMy WebLinkAboutPowerPoint Presentation Planning Director PL-PDI-2024-000008 PLANNING DIRECTOR INITIATED RELATED TO TELECOMMUNICATION ANTENNAS AND TOWERS AMENDMENT TO CHAPTER 25, ARTICLE 2, ARTICLE ARTICLE S. AND ARTICLE 7 OF THE HAWAII COUNTY CODE 1983 (2016 EDITION, AS AMENDED) THE AFFECT OF THE BILL IS TO REMOVE THE REQUIREMENT FOR A USE PERMIT TO ESTABLISH TELECOMMUNICATION ANTENNAS AND TOWERS IN CERTAIN ZONING DISTRICTS, ADD PLAN APPROVAL APPLICATION REQUIREMENTS, AND AMEND STANDARDS FOR THE ESTABLISHMENT OF TELECOMMUNICATION ANTENNAS AND TOWERS. PURPOSE The Zoning Code currently requires the issuance of a Use Permit to construct and operate telecommunication antennas and/or towers in certain zoning districts. This process includes review and approval by the Planning Commissions, which are allowed 90 days to commence a public hearing on a Use Permit application and an additional 60 days thereafter to render a decision on the request. Use Permit applications heard by the Planning Commissions are subject to contested case hearings. Should the Planning Commissions grant standing to a contested case petitioner, the subsequent contested case process can take a significant additional amount of time. HRS Section §46-89 requires that all broadband-related permits be either approved, approved with modifications, or denied within sixty days of receiving a complete application. To comply with this state statute, the Planning Director is amending the Zoning Code to ensure that the review and processing of permits for telecommunication towers and antennas meet these legal requirements, based on a legal opinion and recommendation from the Hawai'i Corporation Counsel C KO In 1996, the Hawai -, i County Council adopted Ordinance 96-160, which • defined and regulated telecommunication antennas and towers. Ordinance ► • No. 96-160 required the issuance of a Use Permit for telecommunication antennas and towers on lands zoned RS, RD, RM, and RCX, while permitting them in lands zoned RA, FA, A, IA, V, CN, CG, CV, MCX, ML, MG, O, and CDH. Prior to 2007, a Special Permit was required for telecommunication antennas and towers within the State Land Use Agricultural District. Act 171 however, permitted the construction and operation of wireless telecommunication antennas and towers within the State Land Use Agricultural District without this issuance of a Special Permit by the Planning Commission. Due to Act 171 removing the requirement for a Special Permit, the Hawai �i County Council adopted Ordinance No. 10-17 to require the issuance of a Use Permit by the Planning Commission for telecommunication antennas and • • towers on lands zoned RA, FA, A and IA by the County. In 2011, the Hawai -,i • County Council adopted Ordinance No. 11-25, requiring a Use Permit for telecommunication antennas and towers to be located within any O zoned district. This aimed to align with the intent of the Open-zoned district. Act 264 (which later became HRS §46-89) mandated that Counties act on all � broadband-related permits within sixty days of a complete application. Despite the preceding, there was no subsequent update made to the Hawai -,i County Code to address the change. A Use Permit application for a telecommunication tower facility was heard by the Windward Planning Commission on December 7, 2023. In addition, a a petition for standing in a contested case hearing was filed for the application. The Windward Planning Commission voted to grant the petition for standing. After standing was granted, the applicant's representative requested a determination on whether the Commission's action was at odds with the timeframes in State Law for taking action on a broadband-related permit. As a result of this request, the Corporation Counsel provided the Planning Department with a legal opinion on December 27, 2023, and opined that based on Hawai -,i Revised Statutes §46-89, telecommunication antenna and tower use permit applications are not subject to a contested case hearing. The permit was then issued, and Corporation Counsel advised the Planning Department to make necessary revisions to the Hawai -,i County Code. In response to Corporation Counsel's advice, the Planning Department is \ transitioning the approval process for telecommunication facilities from a Use Permit issued by the Planning Commission in a public forum to a Plan Approval issued by the Planning Director. We have drafted this bill to incorporate the most common feedback heard over the past 28 years including: • Visual impacts, with measures to mitigate where possible; • Proper setbacks and siting; and Health concerns, recognizing that federal law prohibits the County from denying a telecommunications tower permit based on health concerns. Additionally, the bill incorporates new standards that were created from - standard conditions from prior Use Permits that were issued by the Planning Commission as well as other best management practices. PROPOSED AMENDMENTS Section 25-2-61 (a) is proposed to be amended as follows: (a)The following uses shall be permitted within designated County zoning districts only if a use permit is obtained for the use from the commission: [ , A, IA and 0 districts.] Section 25-4-12(a) is proposed to be amended as follows: a) A telecommunication antenna or tower shall be permitted in [the V r-N rr_ r-V �� IVI , IVIG ,nor r-DHI all zoning districts; provided that the antenna, tower, and its use are not hazardous or dangerous to the surrounding area and the director has issued plan approval for such use... Reason for the Amendment: This amendment is necessary to expedite the development of telecommunication infrastructure by removing the requirement for use permits and comply with the 60-day action requirement found in HRS §46-89. RelatingPOSED AMENDMENTS toStandards Section 25-4-12(a) is proposed to be amended to include the following: a) ...Co-location of antennas upon an existing privately owned tower and expansion of related support equipment within the project site is permitted and encouraged provided the director issued plan approval for the existing tower. The ground lease areas of co-locating carriers must be adjacent to the existing ground lease area and not located within the V open and setback areas and the co-location must not result \p in a 'substantial change , as defined by the Federal Communication Commission. Co location that results in a 'substantial change' to the tower height or ground lease area, as defined by the Federal Communication Commission, requires issuance of a new plan approval. RelatingPOSED AMENDMENTS toStandards Reason for the Amendment: The Planning Director is encouraging co-location in an effort to improve coverage and capacity in high-demand areas while reducing the need for additional towers, and expediting the approval process. A new plan approval will be required if the co- location results in a "substantial" change as defined by the Federal Communications Commission \ (FCC) Section 6409(a) of the Spectrum Act. According to the FCC, a modification is deemed "substantial" if it involves a height increase of more than 10% or one additional antenna array (up to 20 feet) for towers outside public rights- of-way, or more than 10% or 10 feet for towers within public rights-of-way and base stations; a width increase of more than 20 feet or the width of the tower structure for towers outside public rights-of-way, or more than 6 feet for towers within public rights-of-way and base stations; installation of more than four new equipment cabinets, or one new cabinet if no pre-existing cabinets or ground cabinets increasing by more than 10% in size for towers within public rights- of-way and base stations; any excavation or deployment outside current property boundaries; modifications that defeat existing concealment elements; and non-compliance with prior conditions of approval unless due to specified changes. RelatingPOSED AMENDMENTS toStandards Section 25-4-12(c) is proposed to be added as follows 1 ) The minimum lot size for the placement of any telecommunication tower within an A, FA, IA and O zoning districts shall be five (5) acres. 2) The minimum lot size for the placement of any telecommunication tower within a RS, RD, RM and RA zoning district shall be one (1 ) acre. \ 3 No minimum lot size shall be required for the placement of telecommunication towers ) a p -; within the V, CN, CG, CV, MCX, ML, MG, and CDH zoning districts. 4) The minimum lot size may be reduced upon finding that the issuance of a variance b the director will not result in adverse impacts, including but not limited to noise, light, glare, visual, drainage, or other detrimental effects to adjacent property. RelatingPOSED AMENDMENTS toStandards Section 25-4-12(d) is proposed to be added as follows 1 ) Telecommunication towers shall be set back from any property line with a minimum distance equal to one hundred and twenty (120) percent of the tower height as measured from the ground level. 2) Telecommunication towers must be sited at least 1 ,200 feet from nearby residences and schools not on the subject property. 3) Telecommunication towers located within Commercial or Industrial zoning districts shall be exempt from the property line setback requirement stated in Section 25-4-12(dX1 ). Reasons for the Amendment: These are all necessary site improvements, such as setbacks and minimum lot sizes. The only requirement currently in the code is the setback for telecommunication facilities from the property line. RelatingPOSED AMENDMENTS toStandards For example, the current zoning code would require a 100 ft tower to be setback from the property line a minimum of 20 feet. With the changes proposed in Section 25-4-12(d)(3) a tower would be required to be setback a minimum of 120 feet. POSED AMENDMENTS Relating toStandards Section 25-4-12(b) is proposed to be added as follows: b) Telecommunication facilities developed by government agencies primarily to protect public health, saw and welfare, including but not limited to facilities for police, fire \ ambulance, and other emergency dispatch services, shall be exempt from the \ telecommunication tower requirements outlined in this chapter. \ Reasons for the Amendment: The proposed amendment to Section 25-4-12(b) aims to exempt telecommunication facilities that are developed primarily to protect public health, � safety, and welfare from the standard telecommunication tower requirements. Facilities supporting police, fire, ambulance, and other emergency dispatch services are essential for the safety and well-being of the community. Exempting these facilities from certain requirements ensures that they can be established and maintained without unnecessary delays, ensuring uninterrupted emergency services. n RelatingPROPOSED AMENDMENTS toStandards Section 25-4-12(e) is proposed to be amended as follows: e) Fencing and Safety Measures. Telecommunication towers must be enclosed by fencing a minimum of6 feet in height, and towers must be equipped with an anti-climbing device. Reason for the Amendment: This amendment aims to add safety requirements that protect both the public and the tower facility, ensuring that ground equipment is securely enclosed and that towers are safeguarded against potential unauthorized climbing risks. PROPOSED AMEND Relating to Standards Section 25-4-12(g) is proposed to be added as follows: g) The telecommunication antennas and tower shall comply with all applicable rules, regulations and requirements of the affected agencies, including the Federal Aviation Administration and Federal Communications Commission. All exterior lighting, except safety beacons required by the FAA, shall be shielded to minimize impacts to migratingseabirds. Reason for the Amendments: This amendment ensures that telecommunication towers and antennas meet the necessary regulatory standards set by the FAA and FCC, enhancing safety and compliance. These statements are currently required as �__ part of the Use Permit process. RelatingPROPOSED AMENDMENTS toStandards Section 25-4-12(h) is proposed to be added as follows: h) To enhance wildfire detection and response capabilities, telecommunication towers located in areas identified as high-risk for wildfire activity be required to provide space for a surveillance camera system designed to monitor and detect wildfire activity as a condition of Final Plan Approval. High-risk wildfire activity areas shall be determined by the director in consultation with any relevant federal, state, and county emergency service agencies. Reasons for the Amendment: This amendment aims to enhance wildfire detection and response capabilities by requiring tower developers to provide space for wildfire surveillance camera systems on telecommunication towers located in high-risk wildfire areas. RelatingPROPOSED AMENDMENTS toStandards Section 25-4-120) is proposed to be added as follows: j) Within 120 days of the permanent abandonment of the tower, the apples shall remove the tower and its antenna and accessory structures (including the equipment building and the fence), down to, but not including the concrete foundation. The applicant shall immediately provide written notification to the director of the termination of the telecommunication tower and related improvements and the removal of all structures. Reasons for the Amendment: This amendment is crucial to address concerns regarding the long-term impacts of abandoned telecommunication towers. This language has also been a standard condition in all Use Permits issued for telecommunication towers. .PROPOSED AMENDR*i. Relating • Plan Approval Section 25-2-74(2) is proposed to be amended as follows: 2) Building plans for the tower, certified by a licensed structural engineer, verifying that the tower, [+nrro+hor i+h the ir,i+ial ar,+or,r,ac ar,r! ether orri IIr- m v-%+ with prer es Mtn be thereGRj at full build out inclusive of all potential antennas and equipment, will have a hard survivability for sustained winds of one hundred thirty miles per hour; Reason for the Amendments: This amendment aims to ensure telecommunication towers are strong enough to handle future additions, enhancing their long-term �-� safety and reliability. RelatingPROPOSED AMENDMENTS toPlanApproval Section 25-2-74(5) is proposed to be added as follows: 5) Documentation demonstrating compliance with the National Historic Preservation Act of 1966 Section 106 review has been completed. Reasons for the Amendment: Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to consider the potential impact of their actions on historic properties. Our current Use Permit application process requires Section 106 compliance documentation, but as a Use Permit will no longer be required for telecommunication towers and antennas, this amendment will ensure compliance with Federal law as part of the Plan Approval process. RelatingPROPOSED AMENDMENTS toPlanApproval Section 25-2-74 (7) is proposed to be added as follows: 7) A statement providing the reasons for the location, design and height of the proposed tower or antennas and the efforts made to meet with the adjacent landowners and/or community regarding the development. Reasons for the Amendment: This amendment is essential to promote responsible development practices that consider community preferences and minimize potential impacts on surrounding properties. By requiring a comprehensive statement on location rationale, design considerations, and outreach efforts, it enhances public trust, facilitates informed decision-making, and promotes the integration of telecommunication infrastructure in a manner that respects the surrounding properties. .PROPOSED AMENDR*i. Relating • Plan Approval In addition, the following are proposed to be added to Section 25-2-74(6) and (8): • To ensure that proposed telecommunication facilities are sited in a way that maximizes co-location opportunities, minimizes visual and environmental impacts, encourages efficient use of existing infrastructure, and includes maps showing coverage areas, Section 25-2-74 (6) is proposed to be added which requires a report on specific siting opportunities; and • To ensure that telecommunication antennas are sited and designed in a manner that minimizes visual impacts on the surrounding community and landscape. Section 25-2-74 (8) is added to require a comprehensive visual impact analysis and mitigation measures. RelatingPOSED AMENDMENTS toAction • a PlanApproval Section 25-2-76(d)(3) is proposed to be amended as follows: 3) For a telecommunication antenna or tower, the director shall render a decision to either approve or deny the plan approval application within sixty days after acceptance of the application, in accordance with Hawaii Revised Statutes, Chapter 46-89. If the director fails to render a decision within the time frame specified by Hawaii Revised Statutes Chapter 46-89, the application shall be considered approved without further \ certification by the director. Reasons for the Amendment: This amendment is necessary to enhance efficiency and accountability in the planning approval process. Moreover, the provision for automatic approval if deadlines are not met encourages proactive review and timely decision-making by the director, reinforcing transparency and responsiveness in regulatory procedures. PLANNING DIRECTOR ' S RE COMMEND AT ,,,, ON Forward a favorable recommendation to the County Council