Sen. Linda Holmes

Filed: 5/17/2011

 

 


 

 


 
09700HB2974sam002LRB097 10838 KMW 55755 a

1
AMENDMENT TO HOUSE BILL 2974

2    AMENDMENT NO. ______. Amend House Bill 2974 on page 1, by
3replacing line 4 with the following:
 
4    "Section 5. The Counties Code is amended by changing
5Section 5-12001.1 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

 

 

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1incorporated towns that have municipal zoning ordinances in
2effect. The power shall only be exercised to the extent and in
3the manner set forth in this Section.
4    (b) The provisions of this Section shall not abridge any
5rights created by or authority confirmed in the federal
6Telecommunications Act of 1996, P.L. 104-104.
7    (c) As used in this Section, unless the context otherwise
8requires:
9        (1) "county jurisdiction area" means those portions of
10    a county that lie outside the corporate limits of cities,
11    villages, and incorporated towns that have municipal
12    zoning ordinances in effect;
13        (2) "county board" means the county board or board of
14    county commissioners of any county;
15        (3) "residential zoning district" means a zoning
16    district that is designated under a county zoning ordinance
17    and is zoned predominantly for residential uses;
18        (4) "non-residential zoning district" means the county
19    jurisdiction area of a county, except for those portions
20    within a residential zoning district;
21        (5) "residentially zoned lot" means a zoning lot in a
22    residential zoning district;
23        (6) "non-residentially zoned lot" means a zoning lot in
24    a non-residential zoning district;
25        (7) "telecommunications carrier" means a
26    telecommunications carrier as defined in the Public

 

 

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1    Utilities Act as of January 1, 1997;
2        (8) "facility" means that part of the signal
3    distribution system used or operated by a
4    telecommunications carrier or AM broadcast station under a
5    license from the FCC consisting of a combination of
6    improvements and equipment including (i) one or more
7    antennas, (ii) a supporting structure and the hardware by
8    which antennas are attached; (iii) equipment housing; and
9    (iv) ancillary equipment such as signal transmission
10    cables and miscellaneous hardware;
11        (9) "FAA" means the Federal Aviation Administration of
12    the United States Department of Transportation;
13        (10) "FCC" means the Federal Communications
14    Commission;
15        (11) "antenna" means an antenna device by which radio
16    signals are transmitted, received, or both;
17        (12) "supporting structure" means a structure, whether
18    an antenna tower or another type of structure, that
19    supports one or more antennas as part of a facility;
20        (13) "qualifying structure" means a supporting
21    structure that is (i) an existing structure, if the height
22    of the facility, including the structure, is not more than
23    15 feet higher than the structure just before the facility
24    is installed, or (ii) a substantially similar,
25    substantially same-location replacement of an existing
26    structure, if the height of the facility, including the

 

 

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

 

 

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1    facility's supporting structure to the point where the
2    ground meets a vertical wall of a principal residential
3    building;
4        (19) "lot line set back distance" means the distance
5    measured from the center of the base of the facility's
6    supporting structure to the nearest point on the common lot
7    line between the facility lot and the nearest residentially
8    zoned lot. If there is no common lot line, the measurement
9    shall be made to the nearest point on the lot line of the
10    nearest residentially zoned lot without deducting the
11    width of any intervening right of way; and
12        (20) "AM broadcast station" means a facility and one or
13    more towers for the purpose of transmitting communication
14    in the 540 kHz to 1700 kHz band for public reception
15    authorized by the FCC.
16    (d) In choosing a location for a facility, a
17telecommunications carrier or AM broadcast station shall
18consider the following:
19        (1) A non-residentially zoned lot is the most desirable
20    location.
21        (2) A residentially zoned lot that is not used for
22    residential purposes is the second most desirable
23    location.
24        (3) A residentially zoned lot that is 2 acres or more
25    in size and is used for residential purposes is the third
26    most desirable location.

 

 

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1        (4) A residentially zoned lot that is less than 2 acres
2    in size and is used for residential purposes is the least
3    desirable location.
4    The size of a lot shall be the lot's gross area in square
5feet without deduction of any unbuildable or unusable land, any
6roadway, or any other easement.
7    (e) In designing a facility, a telecommunications carrier
8or AM broadcast station shall consider the following
9guidelines:
10        (1) No building or tower that is part of a facility
11    should encroach onto any recorded easement prohibiting the
12    encroachment unless the grantees of the easement have given
13    their approval.
14        (2) Lighting should be installed for security and
15    safety purposes only. Except with respect to lighting
16    required by the FCC or FAA, all lighting should be shielded
17    so that no glare extends substantially beyond the
18    boundaries of a facility.
19        (3) No facility should encroach onto an existing septic
20    field.
21        (4) Any facility located in a special flood hazard area
22    or wetland should meet the legal requirements for those
23    lands.
24        (5) Existing trees more than 3 inches in diameter
25    should be preserved if reasonably feasible during
26    construction. If any tree more than 3 inches in diameter is

 

 

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1    removed during construction a tree 3 inches or more in
2    diameter of the same or a similar species shall be planted
3    as a replacement if reasonably feasible. Tree diameter
4    shall be measured at a point 3 feet above ground level.
5        (6) If any elevation of a facility faces an existing,
6    adjoining residential use within a residential zoning
7    district, low maintenance landscaping should be provided
8    on or near the facility lot to provide at least partial
9    screening of the facility. The quantity and type of that
10    landscaping should be in accordance with any county
11    landscaping regulations of general applicability, except
12    that paragraph (5) of this subsection (e) shall control
13    over any tree-related regulations imposing a greater
14    burden.
15        (7) Fencing should be installed around a facility. The
16    height and materials of the fencing should be in accordance
17    with any county fence regulations of general
18    applicability.
19        (8) Any building that is part of a facility located
20    adjacent to a residentially zoned lot should be designed
21    with exterior materials and colors that are reasonably
22    compatible with the residential character of the area.
23    (f) The following provisions shall apply to all facilities
24established in any county jurisdiction area (i) after the
25effective date of the amendatory Act of 1997 with respect to
26telecommunications carriers and (ii) after the effective date

 

 

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1of this amendatory Act of the 94th General Assembly with
2respect to AM broadcast stations:
3        (1) Except as provided in this Section, no yard or set
4    back regulations shall apply to or be required for a
5    facility.
6        (2) A facility may be located on the same zoning lot as
7    one or more other structures or uses without violating any
8    ordinance or regulation that prohibits or limits multiple
9    structures, buildings, or uses on a zoning lot.
10        (3) No minimum lot area, width, or depth shall be
11    required for a facility, and unless the facility is to be
12    manned on a regular, daily basis, no off-street parking
13    spaces shall be required for a facility. If the facility is
14    to be manned on a regular, daily basis, one off-street
15    parking space shall be provided for each employee regularly
16    at the facility. No loading facilities are required.
17        (4) No portion of a facility's supporting structure or
18    equipment housing shall be less than 15 feet from the front
19    lot line of the facility lot or less than 10 feet from any
20    other lot line.
21        (5) No bulk regulations or lot coverage, building
22    coverage, or floor area ratio limitations shall be applied
23    to a facility or to any existing use or structure
24    coincident with the establishment of a facility. Except as
25    provided in this Section, no height limits or restrictions
26    shall apply to a facility.

 

 

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

 

 

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1    (g) The following provisions shall apply to all facilities
2established (i) after the effective date of this amendatory Act
3of 1997 with respect to telecommunications carriers and (ii)
4after the effective date of this amendatory Act of the 94th
5General Assembly with respect to AM broadcast stations in the
6county jurisdiction area of any county with a population of
7less than 180,000:
8        (1) A facility is permitted if its supporting structure
9    is a qualifying structure or if both of the following
10    conditions are met:
11            (A) the height of the facility shall not exceed 200
12        feet, except that if a facility is located more than
13        one and one-half miles from the corporate limits of any
14        municipality with a population of 25,000 or more the
15        height of the facility shall not exceed 350 feet; and
16            (B) the horizontal separation distance to the
17        nearest principal residential building shall not be
18        less than the height of the supporting structure;
19        except that if the supporting structure exceeds 99 feet
20        in height, the horizontal separation distance to the
21        nearest principal residential building shall be at
22        least 100 feet or 80% of the height of the supporting
23        structure, whichever is greater. Compliance with this
24        paragraph shall only be evaluated as of the time that a
25        building permit application for the facility is
26        submitted. If the supporting structure is not an

 

 

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1        antenna tower this paragraph is satisfied.
2        (2) Unless a facility is permitted under paragraph (1)
3    of this subsection (g), a facility can be established only
4    after the county board gives its approval following
5    consideration of the provisions of paragraph (3) of this
6    subsection (g). The county board may give its approval
7    after one public hearing on the proposal, but only by the
8    favorable vote of a majority of the members present at a
9    meeting held no later than 75 days after submission of a
10    complete application by the telecommunications carrier. If
11    the county board fails to act on the application within 75
12    days after its submission, the application shall be deemed
13    to have been approved. No more than one public hearing
14    shall be required.
15        (3) For purposes of paragraph (2) of this subsection
16    (g), the following siting considerations, but no other
17    matter, shall be considered by the county board or any
18    other body conducting the public hearing:
19            (A) the criteria in subsection (d) of this Section;
20            (B) whether a substantial adverse effect on public
21        safety will result from some aspect of the facility's
22        design or proposed construction, but only if that
23        aspect of design or construction is modifiable by the
24        applicant;
25            (C) the benefits to be derived by the users of the
26        services to be provided or enhanced by the facility and

 

 

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1        whether public safety and emergency response
2        capabilities would benefit by the establishment of the
3        facility;
4            (D) the existing uses on adjacent and nearby
5        properties; and
6            (E) the extent to which the design of the proposed
7        facility reflects compliance with subsection (e) of
8        this Section.
9        (4) On judicial review of an adverse decision, the
10    issue shall be the reasonableness of the county board's
11    decision in light of the evidence presented on the siting
12    considerations and the well-reasoned recommendations of
13    any other body that conducts the public hearing.
14    (h) The following provisions shall apply to all facilities
15established after the effective date of this amendatory Act of
161997 in the county jurisdiction area of any county with a
17population of 180,000 or more. A facility is permitted in any
18zoning district subject to the following:
19        (1) A facility shall not be located on a lot under
20    paragraph (4) of subsection (d) unless a variation is
21    granted by the county board under paragraph (4) of this
22    subsection (h).
23        (2) Unless a height variation is granted by the county
24    board, the height of a facility shall not exceed 75 feet if
25    the facility will be located in a residential zoning
26    district or 200 feet if the facility will be located in a

 

 

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1    non-residential zoning district. However, the height of a
2    facility may exceed the height limit in this paragraph, and
3    no height variation shall be required, if the supporting
4    structure is a qualifying structure.
5        (3) The improvements and equipment of the facility
6    shall be placed to comply with the requirements of this
7    paragraph at the time a building permit application for the
8    facility is submitted. If the supporting structure is an
9    antenna tower other than a qualifying structure then (i) if
10    the facility will be located in a residential zoning
11    district the lot line set back distance to the nearest
12    residentially zoned lot shall be at least 50% of the height
13    of the facility's supporting structure or (ii) if the
14    facility will be located in a non-residential zoning
15    district the horizontal separation distance to the nearest
16    principal residential building shall be at least equal to
17    the height of the facility's supporting structure.
18        (4) The county board may grant variations for any of
19    the regulations, conditions, and restrictions of this
20    subsection (h), after one public hearing on the proposed
21    variations held at a zoning or other appropriate committee
22    meeting with proper notice given as provided in this
23    Section, by a favorable vote of a majority of the members
24    present at a meeting held no later than 75 days after
25    submission of an application by the telecommunications
26    carrier. If the county board fails to act on the

 

 

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1    application within 75 days after submission, the
2    application shall be deemed to have been approved. In its
3    consideration of an application for variations, the county
4    board, and any other body conducting the public hearing,
5    shall consider the following, and no other matters:
6            (A) whether, but for the granting of a variation,
7        the service that the telecommunications carrier seeks
8        to enhance or provide with the proposed facility will
9        be less available, impaired, or diminished in quality,
10        quantity, or scope of coverage;
11            (B) whether the conditions upon which the
12        application for variations is based are unique in some
13        respect or, if not, whether the strict application of
14        the regulations would result in a hardship on the
15        telecommunications carrier;
16            (C) whether a substantial adverse effect on public
17        safety will result from some aspect of the facility's
18        design or proposed construction, but only if that
19        aspect of design or construction is modifiable by the
20        applicant;
21            (D) whether there are benefits to be derived by the
22        users of the services to be provided or enhanced by the
23        facility and whether public safety and emergency
24        response capabilities would benefit by the
25        establishment of the facility; and
26            (E) the extent to which the design of the proposed

 

 

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1        facility reflects compliance with subsection (e) of
2        this Section.
3    No more than one public hearing shall be required.
4        (5) On judicial review of an adverse decision, the
5    issue shall be the reasonableness of the county board's
6    decision in light of the evidence presented and the
7    well-reasoned recommendations of any other body that
8    conducted the public hearing.
9    (i) Notwithstanding any other provision of law to the
10contrary, 30 days prior to the issuance of any permits for a
11new telecommunications facility within a county, the
12telecommunications carrier constructing the facility shall
13provide written notice of its intent to construct the facility.
14The notice shall include, but not be limited to, the following
15information: (i) the name, address, and telephone number of the
16company responsible for the construction of the facility, (ii)
17the address and telephone number of the governmental entity
18that is to issue the building permit for the telecommunications
19facility, (iii) a site plan and site map of sufficient
20specificity to indicate both the location of the parcel where
21the telecommunications facility is to be constructed and the
22location of all the telecommunications facilities within that
23parcel, and (iv) the property index number and common address
24of the parcel where the telecommunications facility is to be
25located. The notice shall not contain any material that appears
26to be an advertisement for the telecommunications carrier or

 

 

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1any services provided by the telecommunications carrier. The
2notice shall be provided in person, by overnight private
3courier, or by certified mail to all owners of property within
4250 feet of the parcel in which the telecommunications carrier
5has a leasehold or ownership interest. For the purposes of this
6notice requirement, "owners" means those persons or entities
7identified from the authentic tax records of the county in
8which the telecommunications facility is to be located. If,
9after a bona fide effort by the telecommunications carrier to
10determine the owner and his or her address, the owner of the
11property on whom the notice must be served cannot be found at
12the owner's last known address, or if the mailed notice is
13returned because the owner cannot be found at the last known
14address, the notice requirement of this paragraph is deemed
15satisfied.
16(Source: P.A. 95-815, eff. 8-13-08; 96-696, eff. 1-1-10.)
 
17    Section 10. The Illinois Municipal Code is amended by".