Draft 3 for Planning Commission hearing – January 28, 2021

CITY OF DALTON GARDENS, IDAHO ORDINANCE NO. ___
AN ORDINANCE OF THE CITY OF DALTON GARDENS, A MUNICIPAL CORPORATION OF THE STATE OF IDAHO;

• AMENDING TITLE 5, CHAPTER 1, SECTION 4 TO ADD DEFINITIONS;
• AMENDING TITLE 5, CHAPTER 3, SECTION 1 TO ADD A NEW ALLOWED USE TO THE COMMERCIAL DISTRICT AND TO CLARIFY REQUIREMENTS FOR A SPECIAL USE PERMIT;
• AMENDING TITLE 5, CHAPTER 3, SECTION 14 TO DELETE WIRELESS COMMUNICATION FACILITY;
• AMENDING TITLE 5, CHAPTER 4, SECTION 1 TO REVISE THE USES ALLOWED IN THE UTILITY DISTRICT;
• AMENDING TITLE 5, CHAPTER 5, SECTION 1 TO ADD A NEW ALLOWED USE IN THE RESIDENTIAL DISTRICT;
• AMENDING TITLE 5, CHAPTER 5, SECTION 2 TO CLARIFY USES WHICH REQUIRE A SPECIAL USE PERMIT;
• AMENDING TITLE 5 TO ADD A NEW CHAPTER 13 FOR STANDARDS FOR SPECIFIC USES AND A NEW SECTION 1 TO SAID CHAPTER TO ADD STANDARDS FOR DISTRIBUTED ANTENNA SYSTEMS AND SMALL CELL WIRELESS COMMUNICATION FACILITIES, PROVIDING SEVERABILITY, REPEALING CONFLICTING PROVISIONS, AND PROVIDING AN EFFECTIVE DATE.

SECTION 1:

AMENDMENTS TO TITLE 5, CHAPTER 1, SECTION 4

5-1-4: [PURPOSE AND] DEFINITIONS:

1. Purpose

Wireless telecommunication facilities (WTFs), also known as personal wireless service facilities, are comprised of antennas and ancillary equipment that transmit electromagnetic power through-the-air for the provision of personal wireless services. Though convenient for everyday living and commerce, WTFs of any size or any "G", can have adverse effects on the community, including, but not limited to public safety harms, privacy harms and property value harms.

Note: "G" as in 2G, 3G, 4G, 5G are just fuzzy Wireless industry marketing terms for "generations" of pulsation, modulation, phase specifications for wireless transmissions. As such, any reference to any "G" is immaterial to this proposed ordinance.

This ordinance is intended to provide local standards and a process for evaluating the need for WTFs, a process for permitting needed WTFs, with an emphasis on assessing and minimizing any negative impacts from the placement, construction, modification and operations of any WTFs within the boundaries of Dalton Gardens, ID.

The Ordinance will comply with

• the Dalton Gardens Comprehensive Plan,
• the 1934 Commmunications Act, as amended by the 1996 Telecommunications Act (herein "1996-TCA") and by the 2012 Spectrum Act (herein "2012-SA").
• Idaho Public Utilities Commission Code

• FCC Orders that are consistent with the underlying federal statutes (1996-TCA and 2012-SA)

2. Definitions

Incorporate Title 47 U.S. Code §153 Definitions

• (50) Telecommunications. The term “telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.
• (53) Telecommunications service. The term “telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
• (24) Information service. The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

• (33) Mobile service. The term “mobile service” means a radio communication service carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves, which includes

  • (A) both one-way and two-way radio communication services,

  • (B) a mobile service which provides a regularly interacting group of base, mobile, portable, and associated control and relay stations (whether licensed on an individual, cooperative, or multiple basis) for private one-way or two-way land mobile radio communications by eligible users over designated areas of operation, and

  • (C) any service for which a license is required in a personal communications service established pursuant to the proceeding entitled “Amendment to the Commission’s Rules to Establish New Personal Communications Services” (GEN Docket No. 90–314; ET Docket No. 92–100), or any successor proceeding.

• (11) Common carrier: The term “common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter;

• (57) Transmission of energy by radio. The term “transmission of energy by radio” or “radio transmission of energy” includes both such transmission and all instrumentalities, facilities, and services incidental to such transmission.

• (40) Radio communication. The term “radio communication” or “communication by radio” means the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.

• (59) Wire communication. The term “wire communication” or “communication by wire” means the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.

• (42) Radio station. The term “radio station” or “station” means a station equipped to engage in radio communication or radio transmission of energy.

• (29) Land station. The term “land station” means a station, other than a mobile station, used for radio communication with mobile stations.

• (34) Mobile station. The term “mobile station” means a radio-communication station capable of being moved and which ordinarily does move.

Incorporate Title 47 U.S. Code §324 Use of minimum power

"In all circumstances . . . all radio stations, . . . shall use the minimum amount of power necessary to carry out the communication desired."

Incorporate Definitions from 2005 Ninth Circuit Court of Appeals Ruling in Metro-PCS vs. San Francisco:

D. Prohibition Claim / 2. Service Gap

(a) Definition of “Significant Gap:” Having considered both the avowed policy goals of the 1996-TCA and the practical implications of the various constructional options, we elect to follow the district court’s lead and formally adopt the First Circuit’s rule that a significant gap in service (and thus an effective prohibition of service) exists whenever a provider is prevented from filling a significant gap in its own service coverage.

(b) Definition of “Least Intrusive Means:" The Second and Third Circuit “least intrusive” standard . . . allows for a meaningful comparison of alternative sites before the siting application process is needlessly repeated. It also gives providers an incentive to choose the least intrusive site in their first siting applications, and it promises to ultimately identify the best solution for the community, not merely the last one remaining after a series of application denials. For these reasons, we now adopt the “least intrusive means” standard and instruct the district court to apply this rule as necessary in its consideration of the prohibition issue.

Dalton Gardens Wireless Telecommunications Facilities Ordinance Proposed Amendments

PURPOSE

The purpose of this Ordinance is to regulate the placement, construction, modification and operations installation, operation, and maintenance of Wireless Telecommunications Facilities (WTFs) and Wireline Broadband Facilities (WBFs) in the City of Dalton Gardens, ID (the “City”).

The City recognizes that the unrestricted installation of redundant WTFs and WBFs is contrary to the City’s efforts to stabilize economic and social aspects of neighborhood environments, and to promote safety and aesthetic considerations, family environments, and a basic rural residential character within the City.

INTENT.

In enacting this Ordinance, the City intends to:

1. Preserve the visual character of the community;
2. Protect environmental resources
3. Protect the property rights of the property owners of Dalton Gardens including the quiet enjoyment of streets, parks and homes;
4. Promote and protect the health, safety, comfort, convenience, and general welfare of the residents and business of Dalton Gardens in accord with the Comprehensive Plan and Title 5 of this Code;
5. Protect the benefits derived by the City, its residents and the general public from access to personal wireless services and wireline broadband services, while minimizing, to the greatest extent feasible, the redundancy of Wireless Telecommunications Facilities and Wireline Broadband Facilities in the City.
6. Balance these goals by permitting placement, construction, modification and operations of personal WTFs and WBFs where they are needed, while reducing, to the greatest extent feasible, adverse economic, safety and/or aesthetic effects on nearby properties and the community as a whole.
7. Comply with applicable laws, including but not limited to X, Y, Z

APPLICABILITY OF THIS ORDINANCE

1. Placement of WTFs and WBFs
2. Construction of WTFs and WBFs
3. Modification of WTFs and WBFs
4. Operations of WTFs and WBFs