GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2007

S                                                                                                                                                    D

SENATE DRS75234-LM-71  (02/20)

 

 

 

 

 

 

Short Title:     Wireless Telecommunications Facilities.

(Public)

Sponsors:

Senator Hoyle.

Referred to:

 

 

 

A BILL TO BE ENTITLED

AN ACT streamlining local government regulation of wireless facilities and wireless support structures and the collocation of wireless facilities.

The General Assembly of North Carolina enacts:

SECTION 1.  Chapter 62A of the General Statutes is amended by adding a new Article to read:

"Article 3.

"Wireless Telecommunications Facilities Advancement and Streamlining Act.

"§ 62A‑40.  Purpose.

The purpose of this Act is to ensure the safe and efficient integration of facilities necessary for the provision of advanced wireless telecommunications services throughout the community and to ensure the ready availability of reliable wireless service to the public and government agencies and first responders, with the intention of furthering the public safety and general welfare. Notwithstanding any other law or local ordinance to the contrary, the following standards shall apply to an authority's actions, as a regulatory body, in the regulation of the placement, construction, or modification of a wireless communications facility.

"§ 62A‑41. Definitions.

The following definitions apply in this Article:

(1)       Antenna. – Communications equipment that transmits and receives electromagnetic radio signals used in the provision of all types of wireless communications services.

(2)       Application. – A formal request submitted to the local authority to construct or modify a wireless support structure or a wireless facility.

(3)       Authority. – A municipality, township, county, or regional planning commission, or any municipal or county legislative body or political subdivision or agency of a municipality, county, or political subdivision that has adopted land development regulations.

(4)       Building permit. – An official administrative authorization issued by an authority prior to the beginning of construction. The issuance of a building permit is not a mechanism for the approval or denial of a zoning or land-use application.

(5)       Collocation. – The installation of wireless facilities on existing structures, including towers, buildings, utility poles, and water tanks in a manner that negates the need to construct a new wireless support structure.

(6)       Equipment enclosure. – An enclosed structure, cabinet, or shelter used to contain radio or other equipment necessary for the transmission or reception of wireless communication signals.

(7)       Land development regulations. – Any ordinance enacted by an authority for the regulation of any aspect of development, including an ordinance governing zoning, subdivisions, landscaping, tree protection, or signs, the authority's comprehensive plan, or any other ordinance concerning any aspect of the development of land.

(8)       Substantial modification. – The mounting of a proposed antenna on a wireless support structure that: (i) would increase the existing vertical height of the structure by more than ten percent (10%), or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; or (ii) would involve adding an appurtenance to the body of the tower that would protrude horizontally from the edge of the tower more than 20 feet or more than the width of the tower structure at the level of the appurtenance, whichever is greater, except where necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable.

(9)       Utility pole. – A structure that is designed for and used to carry lines, cables, or wires for telephone, cable television, or electricity or to provide lighting.

(10)     Wireless facility. – The set of equipment and network components, exclusive of the underlying support structure or tower, including antennas, transmitters, receivers base stations, power supplies cabling, and associated equipment necessary to provide wireless data and telecommunications services to a discrete geographic area.

(11)     Wireless support structure. – A new or existing structure, including a monopole, lattice tower, or guyed tower that is designed to support or is capable of supporting wireless facilities. A utility pole is not a wireless support structure.

"§ 62A‑42.  Construction and modification of wireless facilities and wireless support structures.

(a)       An authority may plan for and regulate the siting or modification of wireless support structures and wireless facilities in accordance with land development regulations and in conformity with this Article. Any person that proposes to construct or substantially modify a wireless support structure or wireless facility within the jurisdiction of an authority that has adopted land development regulations in accordance with this Article shall submit the necessary copies and attachments of the applicant's completed application to the appropriate planning authority and comply with any local ordinances concerning land use and any applicable permitting process.

(b)       The authority shall issue a written decision approving or denying the application within 30 days in the case of collocation and modification applications entitled to streamlined processing under G.S. 62A‑43(b), and within 45 days in the case of other applications, as measured from the date the application is deemed complete by the authority, or any other date mutually agreed to in writing by the authority and the applicant. Any decision denying an application must be supported by substantial evidence in the record before the authority and must set forth the reasons for the denial with sufficient particularity to allow a reviewing entity to review the evidence supporting the reasons for denial. An application shall be deemed complete unless the authority notifies the applicant in writing within 15 days of submission of the application and identifies with specificity any deficiencies in the application which, if cured, would make the application complete. The application shall be deemed complete on resubmission if the application addresses the deficiencies identified.

(c)       Except as expressly stated, nothing in this Article shall limit an authority from regulating applications to construct, modify, maintain, or collocate wireless facilities on a wireless support structure based on consideration of land-use and zoning considerations, including aesthetics, landscaping, land-use‑based location priorities, structural design, and setbacks. Notwithstanding the provisions of this subsection, an authority may not:

(1)       Impose requirements in connection with the siting or modification of wireless support structures or facilities relating to the radio frequency emissions of wireless facilities, including any environmental testing, sampling, monitoring, or other compliance requirements.

(2)       Require the applicant for siting or modification of wireless support structures or facilities to provide a justification of radio frequency need or impose requirements relating to radio frequency signal strength, system design, use of specific technology, or service quality.

(3)       Institute a moratorium on the construction or modification of wireless support structures lasting over 90 days in duration or institute any moratorium within six months of the conclusion of any previous moratorium on the construction or modification of wireless support structures.

(4)       Charge an application fee, consulting fee, or other fee associated with the submission, review, processing, or approval of an application for siting or modification of wireless support structures or facilities that is not required for other types of commercial development. Any fee or charge must apply uniformly and on a competitively neutral and nondiscriminatory basis to all comparable activities and uses and cannot exceed what is usual and customary for the services. Total charges and fees, including consultant, application, permit, and any other fees or charges, including reimbursement for consultant's out‑of‑pocket expenses, shall not exceed one thousand dollars ($1,000) for a collocation or two thousand dollars ($2,000) for the construction or modification of a wireless facility or wireless support structure.

(5)       To the extent that zoning approval has been obtained or is not required, utilize the issuance of a building permit as a mechanism for the approval or denial of a zoning or land-use application to construct or modify a wireless facility or wireless support structure.

(6)       Impose surety requirements, including bonds, escrow deposits, or any other type of financial surety, to ensure that abandoned or unused facilities can be removed unless the jurisdiction imposes similar requirements on other permits for other types of commercial development or land uses. If surety requirements are imposed, they must be competitively neutral, nondiscriminatory, reasonable in amount, and commensurate with the historical record for local facilities and structures that fall into disuse.

(7)       Adopt rules or regulations for siting or modification of wireless support structures or wireless facilities that discriminate on the basis of the ownership, including by the authority, of any property, structure, or tower, or condition the approval of a wireless support structure or wireless facility on the agreement of the structure or facility owner to provide space on or near the structure for authority or governmental services at less than market rate or to provide services via the structure or facilities at less than market rate.

(8)       Limit the duration of any permit for a wireless facility or support structure.

(9)       Impose structure lighting and marking requirements applicable to wireless support structures or facilities that exceed or differ from those imposed by the Federal Aviation Administration.

(10)     Impose a blanket prohibition on placement of wireless support structures or facilities in a residential area or residential zoning district.

(11)     Impose inflexible separation requirements between wireless support structures that prohibit the construction or collocation of wireless facilities based solely on the distance between the proposed facility and an existing facility.

(12)     Require an ANSI inspection report prepared pursuant to ANSI/TIA/EIA‑222‑G, Annex E, Tower Maintenance and Inspection Procedures in connection with any application for collocation.

(13)     Prohibit the placement of emergency power systems that comply with federal and State environmental requirements.

(14)     Require an applicant to construct a Distributed Antenna System instead of constructing a wireless support structure or collocating on an existing wireless support structure.

(d)       All records, including any documents or electronic data, in the possession or custody of authority personnel relating to applications for siting or modification of wireless support structures and wireless facilities are subject to the provisions of the Public Records Law, Chapter 132 of the General Statutes, including provisions providing for nondisclosure of confidential or proprietary information. Any disclosure of the records must be in accordance with applicable State law.

(e)       A party aggrieved by the final action of an authority denying an application under the provisions of this Article may bring an action for review in any court of competent jurisdiction.

"§ 62A‑43.  Collocation of wireless facilities.

(a)       An authority may deny an application to construct a new wireless support structure based upon an applicant's unwillingness to evaluate the reasonable feasibility of collocating new antennas and equipment on an existing structure within the applicant's search ring. An authority may not deny an application to construct a new wireless communications support structure if evidence is provided that collocation on an existing structure is technically infeasible, unduly economically burdensome, or otherwise impracticable because of contractual, engineering, or other similar impediments.

(b)       Applications for collocation that meet the following requirements shall be entitled to streamlined processing:  (i) the collocation does not increase the overall height of the tower or wireless support structure to which the wireless facilities are to be attached; (ii) the collocation does not increase the ground space area approved in the site plan for equipment enclosures and ancillary facilities; and (iii) the wireless facilities in the proposed collocation comply with applicable regulations, restrictions, or conditions, if any, applied to the initial wireless facilities placed on the tower or other wireless support structure.

(c)       Applications for collocation entitled to streamlined processing under subsection (b) of this section, and applications to modify wireless support structures, other than applications that constitute substantial modifications, under G.S. 62A‑42 shall be reviewed for conformance with applicable building permit requirements, if any, but shall not otherwise be subject to zoning requirements, including design or placement requirements or public hearing review. The construction of a replacement tower to accommodate collocation shall not be considered a substantial modification where the replacement tower is a monopole tower or, if the existing tower is a camouflaged tower, the replacement tower is a camouflaged‑like tower."

SECTION 2.  If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

SECTION 3.  This act is effective when it becomes law.