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Full Text of HB2974  97th General Assembly

HB2974 97TH GENERAL ASSEMBLY

  
  

 


 
97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB2974

 

Introduced 2/23/2011, by Rep. Renée Kosel

 

SYNOPSIS AS INTRODUCED:
 
55 ILCS 5/5-12001.1

    Amends the Counties Code. Provides that 30 days prior to the issuance of a building permit for a facility necessitating the erection of a new tower, the permit applicant shall provide written notice of its intent to construct the facility to the owners of record of all residential property that is adjacent to the lot where the facility is proposed to be sited. Sets forth requirements for the notice. Further provides that nothing in the published notice sent to the owners shall contain any material that appears to be an advertisement for the telecommunications carrier or any services provided by that carrier. Effective immediately.


LRB097 10838 KMW 51321 b

 

 

A BILL FOR

 

HB2974LRB097 10838 KMW 51321 b

1    AN ACT concerning local government.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Counties Code is amended by changing Section
55-12001.1 as follows:
 
6    (55 ILCS 5/5-12001.1)
7    Sec. 5-12001.1. Authority to regulate certain specified
8facilities of a telecommunications carrier and to regulate,
9pursuant to subsections (a) through (g), AM broadcast towers
10and facilities.
11    (a) Notwithstanding any other Section in this Division, the
12county board or board of county commissioners of any county
13shall have the power to regulate the location of the
14facilities, as defined in subsection (c), of a
15telecommunications carrier or AM broadcast station established
16outside the corporate limits of cities, villages, and
17incorporated towns that have municipal zoning ordinances in
18effect. The power shall only be exercised to the extent and in
19the manner set forth in this Section.
20    (b) The provisions of this Section shall not abridge any
21rights created by or authority confirmed in the federal
22Telecommunications Act of 1996, P.L. 104-104.
23    (c) As used in this Section, unless the context otherwise

 

 

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1requires:
2        (1) "county jurisdiction area" means those portions of
3    a county that lie outside the corporate limits of cities,
4    villages, and incorporated towns that have municipal
5    zoning ordinances in effect;
6        (2) "county board" means the county board or board of
7    county commissioners of any county;
8        (3) "residential zoning district" means a zoning
9    district that is designated under a county zoning ordinance
10    and is zoned predominantly for residential uses;
11        (4) "non-residential zoning district" means the county
12    jurisdiction area of a county, except for those portions
13    within a residential zoning district;
14        (5) "residentially zoned lot" means a zoning lot in a
15    residential zoning district;
16        (6) "non-residentially zoned lot" means a zoning lot in
17    a non-residential zoning district;
18        (7) "telecommunications carrier" means a
19    telecommunications carrier as defined in the Public
20    Utilities Act as of January 1, 1997;
21        (8) "facility" means that part of the signal
22    distribution system used or operated by a
23    telecommunications carrier or AM broadcast station under a
24    license from the FCC consisting of a combination of
25    improvements and equipment including (i) one or more
26    antennas, (ii) a supporting structure and the hardware by

 

 

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1    which antennas are attached; (iii) equipment housing; and
2    (iv) ancillary equipment such as signal transmission
3    cables and miscellaneous hardware;
4        (9) "FAA" means the Federal Aviation Administration of
5    the United States Department of Transportation;
6        (10) "FCC" means the Federal Communications
7    Commission;
8        (11) "antenna" means an antenna device by which radio
9    signals are transmitted, received, or both;
10        (12) "supporting structure" means a structure, whether
11    an antenna tower or another type of structure, that
12    supports one or more antennas as part of a facility;
13        (13) "qualifying structure" means a supporting
14    structure that is (i) an existing structure, if the height
15    of the facility, including the structure, is not more than
16    15 feet higher than the structure just before the facility
17    is installed, or (ii) a substantially similar,
18    substantially same-location replacement of an existing
19    structure, if the height of the facility, including the
20    replacement structure, is not more than 15 feet higher than
21    the height of the existing structure just before the
22    facility is installed;
23        (14) "equipment housing" means a combination of one or
24    more equipment buildings or enclosures housing equipment
25    that operates in conjunction with the antennas of a
26    facility, and the equipment itself;

 

 

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1        (15) "height" of a facility means the total height of
2    the facility's supporting structure and any antennas that
3    will extend above the top of the supporting structure;
4    however, if the supporting structure's foundation extends
5    more than 3 feet above the uppermost ground level along the
6    perimeter of the foundation, then each full foot in excess
7    of 3 feet shall be counted as an additional foot of
8    facility height. The height of a facility's supporting
9    structure is to be measured from the highest point of the
10    supporting structure's foundation;
11        (16) "facility lot" means the zoning lot on which a
12    facility is or will be located;
13        (17) "principal residential building" has its common
14    meaning but shall not include any building under the same
15    ownership as the land of the facility lot. "Principal
16    residential building" shall not include any structure that
17    is not designed for human habitation;
18        (18) "horizontal separation distance" means the
19    distance measured from the center of the base of the
20    facility's supporting structure to the point where the
21    ground meets a vertical wall of a principal residential
22    building;
23        (19) "lot line set back distance" means the distance
24    measured from the center of the base of the facility's
25    supporting structure to the nearest point on the common lot
26    line between the facility lot and the nearest residentially

 

 

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1    zoned lot. If there is no common lot line, the measurement
2    shall be made to the nearest point on the lot line of the
3    nearest residentially zoned lot without deducting the
4    width of any intervening right of way; and
5        (20) "AM broadcast station" means a facility and one or
6    more towers for the purpose of transmitting communication
7    in the 540 kHz to 1700 kHz band for public reception
8    authorized by the FCC.
9    (d) In choosing a location for a facility, a
10telecommunications carrier or AM broadcast station shall
11consider the following:
12        (1) A non-residentially zoned lot is the most desirable
13    location.
14        (2) A residentially zoned lot that is not used for
15    residential purposes is the second most desirable
16    location.
17        (3) A residentially zoned lot that is 2 acres or more
18    in size and is used for residential purposes is the third
19    most desirable location.
20        (4) A residentially zoned lot that is less than 2 acres
21    in size and is used for residential purposes is the least
22    desirable location.
23    The size of a lot shall be the lot's gross area in square
24feet without deduction of any unbuildable or unusable land, any
25roadway, or any other easement.
26    (e) In designing a facility, a telecommunications carrier

 

 

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1or AM broadcast station shall consider the following
2guidelines:
3        (1) No building or tower that is part of a facility
4    should encroach onto any recorded easement prohibiting the
5    encroachment unless the grantees of the easement have given
6    their approval.
7        (2) Lighting should be installed for security and
8    safety purposes only. Except with respect to lighting
9    required by the FCC or FAA, all lighting should be shielded
10    so that no glare extends substantially beyond the
11    boundaries of a facility.
12        (3) No facility should encroach onto an existing septic
13    field.
14        (4) Any facility located in a special flood hazard area
15    or wetland should meet the legal requirements for those
16    lands.
17        (5) Existing trees more than 3 inches in diameter
18    should be preserved if reasonably feasible during
19    construction. If any tree more than 3 inches in diameter is
20    removed during construction a tree 3 inches or more in
21    diameter of the same or a similar species shall be planted
22    as a replacement if reasonably feasible. Tree diameter
23    shall be measured at a point 3 feet above ground level.
24        (6) If any elevation of a facility faces an existing,
25    adjoining residential use within a residential zoning
26    district, low maintenance landscaping should be provided

 

 

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1    on or near the facility lot to provide at least partial
2    screening of the facility. The quantity and type of that
3    landscaping should be in accordance with any county
4    landscaping regulations of general applicability, except
5    that paragraph (5) of this subsection (e) shall control
6    over any tree-related regulations imposing a greater
7    burden.
8        (7) Fencing should be installed around a facility. The
9    height and materials of the fencing should be in accordance
10    with any county fence regulations of general
11    applicability.
12        (8) Any building that is part of a facility located
13    adjacent to a residentially zoned lot should be designed
14    with exterior materials and colors that are reasonably
15    compatible with the residential character of the area.
16    (f) The following provisions shall apply to all facilities
17established in any county jurisdiction area (i) after the
18effective date of the amendatory Act of 1997 with respect to
19telecommunications carriers and (ii) after the effective date
20of this amendatory Act of the 94th General Assembly with
21respect to AM broadcast stations:
22        (1) Except as provided in this Section, no yard or set
23    back regulations shall apply to or be required for a
24    facility.
25        (2) A facility may be located on the same zoning lot as
26    one or more other structures or uses without violating any

 

 

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1    ordinance or regulation that prohibits or limits multiple
2    structures, buildings, or uses on a zoning lot.
3        (3) No minimum lot area, width, or depth shall be
4    required for a facility, and unless the facility is to be
5    manned on a regular, daily basis, no off-street parking
6    spaces shall be required for a facility. If the facility is
7    to be manned on a regular, daily basis, one off-street
8    parking space shall be provided for each employee regularly
9    at the facility. No loading facilities are required.
10        (4) No portion of a facility's supporting structure or
11    equipment housing shall be less than 15 feet from the front
12    lot line of the facility lot or less than 10 feet from any
13    other lot line.
14        (5) No bulk regulations or lot coverage, building
15    coverage, or floor area ratio limitations shall be applied
16    to a facility or to any existing use or structure
17    coincident with the establishment of a facility. Except as
18    provided in this Section, no height limits or restrictions
19    shall apply to a facility.
20        (6) A county's review of a building permit application
21    for a facility shall be completed within 30 days. If a
22    decision of the county board is required to permit the
23    establishment of a facility, the county's review of the
24    application shall be simultaneous with the process leading
25    to the county board's decision.
26        (7) The improvements and equipment comprising the

 

 

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1    facility may be wholly or partly freestanding or wholly or
2    partly attached to, enclosed in, or installed in or on a
3    structure or structures.
4        (8) Any public hearing authorized under this Section
5    shall be conducted in a manner determined by the county
6    board. Notice of any such public hearing shall be published
7    at least 15 days before the hearing in a newspaper of
8    general circulation published in the county. Notice of any
9    such public hearing shall also be sent by certified mail at
10    least 15 days prior to the hearing to the owners of record
11    of all residential property that is adjacent to the lot
12    upon which the facility is proposed to be sited.
13        (9) Any decision regarding a facility by the county
14    board or a county agency or official shall be supported by
15    written findings of fact. The circuit court shall have
16    jurisdiction to review the reasonableness of any adverse
17    decision and the plaintiff shall bear the burden of proof,
18    but there shall be no presumption of the validity of the
19    decision.
20        (10) 30 days prior to the issuance of a building permit
21    for a facility necessitating the erection of a new tower,
22    the permit applicant shall provide written notice of its
23    intent to construct the facility to the owners of record of
24    all residential property that is adjacent to the lot where
25    the facility is proposed to be sited. Additionally, the
26    permit applicant shall provide notice in a newspaper of

 

 

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1    general circulation published in the county. The published
2    notice and notice sent to the owners of record shall
3    contain a section map indicating the exact site location of
4    the facility and any other structures to be erected,
5    fencing and lighting, the property identification number,
6    the common address, and general information on the nature
7    and size of the proposed facility. The published notice
8    sent to the owners of record shall not contain any material
9    that appears to be an advertisement for the
10    telecommunications carrier or any services provided by the
11    telecommunications carrier.
12    (g) The following provisions shall apply to all facilities
13established (i) after the effective date of this amendatory Act
14of 1997 with respect to telecommunications carriers and (ii)
15after the effective date of this amendatory Act of the 94th
16General Assembly with respect to AM broadcast stations in the
17county jurisdiction area of any county with a population of
18less than 180,000:
19        (1) A facility is permitted if its supporting structure
20    is a qualifying structure or if both of the following
21    conditions are met:
22            (A) the height of the facility shall not exceed 200
23        feet, except that if a facility is located more than
24        one and one-half miles from the corporate limits of any
25        municipality with a population of 25,000 or more the
26        height of the facility shall not exceed 350 feet; and

 

 

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1            (B) the horizontal separation distance to the
2        nearest principal residential building shall not be
3        less than the height of the supporting structure;
4        except that if the supporting structure exceeds 99 feet
5        in height, the horizontal separation distance to the
6        nearest principal residential building shall be at
7        least 100 feet or 80% of the height of the supporting
8        structure, whichever is greater. Compliance with this
9        paragraph shall only be evaluated as of the time that a
10        building permit application for the facility is
11        submitted. If the supporting structure is not an
12        antenna tower this paragraph is satisfied.
13        (2) Unless a facility is permitted under paragraph (1)
14    of this subsection (g), a facility can be established only
15    after the county board gives its approval following
16    consideration of the provisions of paragraph (3) of this
17    subsection (g). The county board may give its approval
18    after one public hearing on the proposal, but only by the
19    favorable vote of a majority of the members present at a
20    meeting held no later than 75 days after submission of a
21    complete application by the telecommunications carrier. If
22    the county board fails to act on the application within 75
23    days after its submission, the application shall be deemed
24    to have been approved. No more than one public hearing
25    shall be required.
26        (3) For purposes of paragraph (2) of this subsection

 

 

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1    (g), the following siting considerations, but no other
2    matter, shall be considered by the county board or any
3    other body conducting the public hearing:
4            (A) the criteria in subsection (d) of this Section;
5            (B) whether a substantial adverse effect on public
6        safety will result from some aspect of the facility's
7        design or proposed construction, but only if that
8        aspect of design or construction is modifiable by the
9        applicant;
10            (C) the benefits to be derived by the users of the
11        services to be provided or enhanced by the facility and
12        whether public safety and emergency response
13        capabilities would benefit by the establishment of the
14        facility;
15            (D) the existing uses on adjacent and nearby
16        properties; and
17            (E) the extent to which the design of the proposed
18        facility reflects compliance with subsection (e) of
19        this Section.
20        (4) On judicial review of an adverse decision, the
21    issue shall be the reasonableness of the county board's
22    decision in light of the evidence presented on the siting
23    considerations and the well-reasoned recommendations of
24    any other body that conducts the public hearing.
25    (h) The following provisions shall apply to all facilities
26established after the effective date of this amendatory Act of

 

 

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11997 in the county jurisdiction area of any county with a
2population of 180,000 or more. A facility is permitted in any
3zoning district subject to the following:
4        (1) A facility shall not be located on a lot under
5    paragraph (4) of subsection (d) unless a variation is
6    granted by the county board under paragraph (4) of this
7    subsection (h).
8        (2) Unless a height variation is granted by the county
9    board, the height of a facility shall not exceed 75 feet if
10    the facility will be located in a residential zoning
11    district or 200 feet if the facility will be located in a
12    non-residential zoning district. However, the height of a
13    facility may exceed the height limit in this paragraph, and
14    no height variation shall be required, if the supporting
15    structure is a qualifying structure.
16        (3) The improvements and equipment of the facility
17    shall be placed to comply with the requirements of this
18    paragraph at the time a building permit application for the
19    facility is submitted. If the supporting structure is an
20    antenna tower other than a qualifying structure then (i) if
21    the facility will be located in a residential zoning
22    district the lot line set back distance to the nearest
23    residentially zoned lot shall be at least 50% of the height
24    of the facility's supporting structure or (ii) if the
25    facility will be located in a non-residential zoning
26    district the horizontal separation distance to the nearest

 

 

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1    principal residential building shall be at least equal to
2    the height of the facility's supporting structure.
3        (4) The county board may grant variations for any of
4    the regulations, conditions, and restrictions of this
5    subsection (h), after one public hearing on the proposed
6    variations held at a zoning or other appropriate committee
7    meeting with proper notice given as provided in this
8    Section, by a favorable vote of a majority of the members
9    present at a meeting held no later than 75 days after
10    submission of an application by the telecommunications
11    carrier. If the county board fails to act on the
12    application within 75 days after submission, the
13    application shall be deemed to have been approved. In its
14    consideration of an application for variations, the county
15    board, and any other body conducting the public hearing,
16    shall consider the following, and no other matters:
17            (A) whether, but for the granting of a variation,
18        the service that the telecommunications carrier seeks
19        to enhance or provide with the proposed facility will
20        be less available, impaired, or diminished in quality,
21        quantity, or scope of coverage;
22            (B) whether the conditions upon which the
23        application for variations is based are unique in some
24        respect or, if not, whether the strict application of
25        the regulations would result in a hardship on the
26        telecommunications carrier;

 

 

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1            (C) whether a substantial adverse effect on public
2        safety will result from some aspect of the facility's
3        design or proposed construction, but only if that
4        aspect of design or construction is modifiable by the
5        applicant;
6            (D) whether there are benefits to be derived by the
7        users of the services to be provided or enhanced by the
8        facility and whether public safety and emergency
9        response capabilities would benefit by the
10        establishment of the facility; and
11            (E) the extent to which the design of the proposed
12        facility reflects compliance with subsection (e) of
13        this Section.
14    No more than one public hearing shall be required.
15        (5) On judicial review of an adverse decision, the
16    issue shall be the reasonableness of the county board's
17    decision in light of the evidence presented and the
18    well-reasoned recommendations of any other body that
19    conducted the public hearing.
20(Source: P.A. 95-815, eff. 8-13-08; 96-696, eff. 1-1-10.)
 
21    Section 99. Effective date. This Act takes effect upon
22becoming law.