NS ORD-1996-033 Zoning Ordinance Text Amendments - Telecommunication Towers

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July 23, 1996 34 Page 5 5) Both the November and May drafts provide that minimum setbacks from the base of the tower to the property boundary will be equal to the height of the tower unless the tower owner acquires an easement to adjacent property. (Section 8.8.17.2.(b)) In that case, the setback may be reduced by up to 50%. An easement is a legal estate in land. Easements are purchased just like other estates in real property. The easement requirement will provide the level of legal formality necessary to prevent a neighboring property owner from simply giving permission to a tower owner to reduce the setback. An illustration of the typical use of a setback reduction easement is attached. 6) At the public hearing considerable interest was expressed in the health effects of electro-magnetic radiation from cellular antennas. Questions were raised as to whether local governments regulatory authority has been preempted by Congress. Section 704 (B)(iv) of the Telecommunications Act of 1996 reads, "No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions." Section 704 (b) requires the FCC to "make effective rules regarding the environmental effects of radio frequency emissions" within 180 days of the passage of the Act, or by early August. The Federal Communications Commission New National Wireless Tower Siting Policies, dated April 23, 1996, established the uniform national standards for evaluating tower siting decisions based on the health effects of electro-magnetic frequency radiation. The Policies state "Section 704(b) gives preemptive effect to these existing rules. ... Presently, RF emission requirements are contained in Section 1 .1307(b) of the FCC's rules, 47 C.F.R. §1 .1307(b), for all services." Section 1 .1307 (b) cross- references the "Radio Frequency Protection Guides recommended in American National Standard Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic Fields, 300 kHz to 100 GHz (ANSI C95.1-1982) issued by the American National Standards Institute..." This means that no application for a cellular telephone facility may be rejected on the grounds of health effects if the proposed facility meets the federally established radio frequency thresholds contained in ANSI (95.1- 1982). Local governments can (and should) require a statement that a proposed facility will be operated in compliance with the federal standards.