SB3464ham003 96TH GENERAL ASSEMBLY

Rep. Robert Rita

Filed: 4/30/2010

09600SB3464ham003 LRB096 16565 AMC 41002 a

AMENDMENT TO SENATE BILL 3464

AMENDMENT NO. ______. Amend Senate Bill 3464 by replacing everything after the enacting clause with the following:

"Section 5. The Counties Code is amended by changing Section 5-12001.1 as follows:

(55 ILCS 5/5-12001.1)

Sec. 5-12001.1. Authority to regulate certain specified facilities of a telecommunications carrier and to regulate, pursuant to subsections (a) through (g), AM broadcast towers and facilities.

(a) Notwithstanding any other Section in this Division, the county board or board of county commissioners of any county shall have the power to regulate the location of the facilities, as defined in subsection (c), of a telecommunications carrier or AM broadcast station established outside the corporate limits of cities, villages, and incorporated towns that have municipal zoning ordinances in effect. The power shall only be exercised to the extent and in the manner set forth in this Section.

(b) The provisions of this Section shall not abridge any rights created by or authority confirmed in the federal Telecommunications Act of 1996, P.L. 104-104.

(c) As used in this Section, unless the context otherwise requires:

(1) "county jurisdiction area" means those portions of a county that lie outside the corporate limits of cities, villages, and incorporated towns that have municipal zoning ordinances in effect;

(2) "county board" means the county board or board of county commissioners of any county;

(3) "residential zoning district" means a zoning district that is designated under a county zoning ordinance and is zoned predominantly for residential uses;

(4) "non-residential zoning district" means the county jurisdiction area of a county, except for those portions within a residential zoning district;

(5) "residentially zoned lot" means a zoning lot in a residential zoning district;

(6) "non-residentially zoned lot" means a zoning lot in a non-residential zoning district;

(7) "telecommunications carrier" means a telecommunications carrier as defined in the Public Utilities Act as of January 1, 1997;

(8) "facility" means that part of the signal distribution system used or operated by a telecommunications carrier or AM broadcast station under a license from the FCC consisting of a combination of improvements and equipment including (i) one or more antennas, (ii) a supporting structure and the hardware by which antennas are attached; (iii) equipment housing; and (iv) ancillary equipment such as signal transmission cables and miscellaneous hardware;

(9) "FAA" means the Federal Aviation Administration of the United States Department of Transportation;

(10) "FCC" means the Federal Communications Commission;

(11) "antenna" means an antenna device by which radio signals are transmitted, received, or both;

(12) "supporting structure" means a structure, whether an antenna tower or another type of structure, that supports one or more antennas as part of a facility;

(13) "qualifying structure" means a supporting structure that is (i) an existing structure, if the height of the facility, including the structure, is not more than 15 feet higher than the structure just before the facility is installed, or (ii) a substantially similar, substantially same-location replacement of an existing structure, if the height of the facility, including the replacement structure, is not more than 15 feet higher than the height of the existing structure just before the facility is installed;

(14) "equipment housing" means a combination of one or more equipment buildings or enclosures housing equipment that operates in conjunction with the antennas of a facility, and the equipment itself;

(15) "height" of a facility means the total height of the facility's supporting structure and any antennas that will extend above the top of the supporting structure; however, if the supporting structure's foundation extends more than 3 feet above the uppermost ground level along the perimeter of the foundation, then each full foot in excess of 3 feet shall be counted as an additional foot of facility height. The height of a facility's supporting structure is to be measured from the highest point of the supporting structure's foundation;

(16) "facility lot" means the zoning lot on which a facility is or will be located;

(17) "principal residential building" has its common meaning but shall not include any building under the same ownership as the land of the facility lot. "Principal residential building" shall not include any structure that is not designed for human habitation;

(18) "horizontal separation distance" means the distance measured from the center of the base of the facility's supporting structure to the point where the ground meets a vertical wall of a principal residential building;

(19) "lot line set back distance" means the distance measured from the center of the base of the facility's supporting structure to the nearest point on the common lot line between the facility lot and the nearest residentially zoned lot. If there is no common lot line, the measurement shall be made to the nearest point on the lot line of the nearest residentially zoned lot without deducting the width of any intervening right of way; and

(20) "AM broadcast station" means a facility and one or more towers for the purpose of transmitting communication in the 540 kHz to 1700 kHz band for public reception authorized by the FCC.

(d) In choosing a location for a facility, a telecommunications carrier or AM broadcast station shall consider the following:

(1) A non-residentially zoned lot is the most desirable location.

(2) A residentially zoned lot that is not used for residential purposes is the second most desirable location.

(3) A residentially zoned lot that is 2 acres or more in size and is used for residential purposes is the third most desirable location.

(4) A residentially zoned lot that is less than 2 acres in size and is used for residential purposes is the least desirable location.

The size of a lot shall be the lot's gross area in square feet without deduction of any unbuildable or unusable land, any roadway, or any other easement.

(e) In designing a facility, a telecommunications carrier or AM broadcast station shall consider the following guidelines:

(1) No building or tower that is part of a facility should encroach onto any recorded easement prohibiting the encroachment unless the grantees of the easement have given their approval.

(2) Lighting should be installed for security and safety purposes only. Except with respect to lighting required by the FCC or FAA, all lighting should be shielded so that no glare extends substantially beyond the boundaries of a facility.

(3) No facility should encroach onto an existing septic field.

(4) Any facility located in a special flood hazard area or wetland should meet the legal requirements for those lands.

(5) Existing trees more than 3 inches in diameter should be preserved if reasonably feasible during construction. If any tree more than 3 inches in diameter is removed during construction a tree 3 inches or more in diameter of the same or a similar species shall be planted as a replacement if reasonably feasible. Tree diameter shall be measured at a point 3 feet above ground level.

(6) If any elevation of a facility faces an existing, adjoining residential use within a residential zoning district, low maintenance landscaping should be provided on or near the facility lot to provide at least partial screening of the facility. The quantity and type of that landscaping should be in accordance with any county landscaping regulations of general applicability, except that paragraph (5) of this subsection (e) shall control over any tree-related regulations imposing a greater burden.

(7) Fencing should be installed around a facility. The height and materials of the fencing should be in accordance with any county fence regulations of general applicability.

(8) Any building that is part of a facility located adjacent to a residentially zoned lot should be designed with exterior materials and colors that are reasonably compatible with the residential character of the area.

(f) The following provisions shall apply to all facilities established in any county jurisdiction area (i) after the effective date of the amendatory Act of 1997 with respect to telecommunications carriers and (ii) after the effective date of this amendatory Act of the 94th General Assembly with respect to AM broadcast stations:

(1) Except as provided in this Section, no yard or set back regulations shall apply to or be required for a facility.

(2) A facility may be located on the same zoning lot as one or more other structures or uses without violating any ordinance or regulation that prohibits or limits multiple structures, buildings, or uses on a zoning lot.

(3) No minimum lot area, width, or depth shall be required for a facility, and unless the facility is to be manned on a regular, daily basis, no off-street parking spaces shall be required for a facility. If the facility is to be manned on a regular, daily basis, one off-street parking space shall be provided for each employee regularly at the facility. No loading facilities are required.

(4) No portion of a facility's supporting structure or equipment housing shall be less than 15 feet from the front lot line of the facility lot or less than 10 feet from any other lot line.

(5) No bulk regulations or lot coverage, building coverage, or floor area ratio limitations shall be applied to a facility or to any existing use or structure coincident with the establishment of a facility. Except as provided in this Section, no height limits or restrictions shall apply to a facility.

(6) A county's review of a building permit application for a facility shall be completed within 30 days. If a decision of the county board is required to permit the establishment of a facility, the county's review of the application shall be simultaneous with the process leading to the county board's decision.

(7) The improvements and equipment comprising the facility may be wholly or partly freestanding or wholly or partly attached to, enclosed in, or installed in or on a structure or structures.

(8) Any public hearing authorized under this Section shall be conducted in a manner determined by the county board. Notice of any such public hearing shall be published at least 15 days before the hearing in a newspaper of general circulation published in the county. Notice of any such public hearing shall also be sent by certified mail at least 15 days prior to the hearing to the owners of record of all residential property that is adjacent to the lot upon which the facility is proposed to be sited.

(9) Any decision regarding a facility by the county board or a county agency or official shall be supported by written findings of fact. The circuit court shall have jurisdiction to review the reasonableness of any adverse decision and the plaintiff shall bear the burden of proof, but there shall be no presumption of the validity of the decision.

(10) Thirty 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 State Representative and the State Senator of the district in which the subject facility is to be constructed and each member of the county board representing the area within the county in which the subject facility is to be constructed. This notice shall include, but not be limited to, the following information: (i) the name, address, and telephone number of the company responsible for the construction of the facility; (ii) the name, address, and telephone number of the governmental entity authorized to issue the building permit; and (iii) the location of the proposed facility. The applicant shall demonstrate compliance with the notice requirements set forth in this item (10) by submitting certified mail receipts or equivalent mail service receipts at the same time that the applicant submits the permit application.

(g) The following provisions shall apply to all facilities established (i) after the effective date of this amendatory Act of 1997 with respect to telecommunications carriers and (ii) after the effective date of this amendatory Act of the 94th General Assembly with respect to AM broadcast stations in the county jurisdiction area of any county with a population of less than 180,000:

(1) A facility is permitted if its supporting structure is a qualifying structure or if both of the following conditions are met:

(A) the height of the facility shall not exceed 200 feet, except that if a facility is located more than one and one-half miles from the corporate limits of any municipality with a population of 25,000 or more the height of the facility shall not exceed 350 feet; and

(B) the horizontal separation distance to the nearest principal residential building shall not be less than the height of the supporting structure; except that if the supporting structure exceeds 99 feet in height, the horizontal separation distance to the nearest principal residential building shall be at least 100 feet or 80% of the height of the supporting structure, whichever is greater. Compliance with this paragraph shall only be evaluated as of the time that a building permit application for the facility is submitted. If the supporting structure is not an antenna tower this paragraph is satisfied.

(2) Unless a facility is permitted under paragraph (1) of this subsection (g), a facility can be established only after the county board gives its approval following consideration of the provisions of paragraph (3) of this subsection (g). The county board may give its approval after one public hearing on the proposal, but only by the favorable vote of a majority of the members present at a meeting held no later than 75 days after submission of a complete application by the telecommunications carrier. If the county board fails to act on the application within 75 days after its submission, the application shall be deemed to have been approved. No more than one public hearing shall be required.

(3) For purposes of paragraph (2) of this subsection (g), the following siting considerations, but no other matter, shall be considered by the county board or any other body conducting the public hearing:

(A) the criteria in subsection (d) of this Section;

(B) whether a substantial adverse effect on public safety will result from some aspect of the facility's design or proposed construction, but only if that aspect of design or construction is modifiable by the applicant;

(C) the benefits to be derived by the users of the services to be provided or enhanced by the facility and whether public safety and emergency response capabilities would benefit by the establishment of the facility;

(D) the existing uses on adjacent and nearby properties; and

(E) the extent to which the design of the proposed facility reflects compliance with subsection (e) of this Section.

(4) On judicial review of an adverse decision, the issue shall be the reasonableness of the county board's decision in light of the evidence presented on the siting considerations and the well-reasoned recommendations of any other body that conducts the public hearing.

(h) The following provisions shall apply to all facilities established after the effective date of this amendatory Act of 1997 in the county jurisdiction area of any county with a population of 180,000 or more. A facility is permitted in any zoning district subject to the following:

(1) A facility shall not be located on a lot under paragraph (4) of subsection (d) unless a variation is granted by the county board under paragraph (4) of this subsection (h).

(2) Unless a height variation is granted by the county board, the height of a facility shall not exceed 75 feet if the facility will be located in a residential zoning district or 200 feet if the facility will be located in a non-residential zoning district. However, the height of a facility may exceed the height limit in this paragraph, and no height variation shall be required, if the supporting structure is a qualifying structure.

(3) The improvements and equipment of the facility shall be placed to comply with the requirements of this paragraph at the time a building permit application for the facility is submitted. If the supporting structure is an antenna tower other than a qualifying structure then (i) if the facility will be located in a residential zoning district the lot line set back distance to the nearest residentially zoned lot shall be at least 50% of the height of the facility's supporting structure or (ii) if the facility will be located in a non-residential zoning district the horizontal separation distance to the nearest principal residential building shall be at least equal to the height of the facility's supporting structure.

(4) The county board may grant variations for any of the regulations, conditions, and restrictions of this subsection (h), after one public hearing on the proposed variations held at a zoning or other appropriate committee meeting with proper notice given as provided in this Section, by a favorable vote of a majority of the members present at a meeting held no later than 75 days after submission of an application by the telecommunications carrier. If the county board fails to act on the application within 75 days after submission, the application shall be deemed to have been approved. In its consideration of an application for variations, the county board, and any other body conducting the public hearing, shall consider the following, and no other matters:

(A) whether, but for the granting of a variation, the service that the telecommunications carrier seeks to enhance or provide with the proposed facility will be less available, impaired, or diminished in quality, quantity, or scope of coverage;

(B) whether the conditions upon which the application for variations is based are unique in some respect or, if not, whether the strict application of the regulations would result in a hardship on the telecommunications carrier;

(C) whether a substantial adverse effect on public safety will result from some aspect of the facility's design or proposed construction, but only if that aspect of design or construction is modifiable by the applicant;

(D) whether there are benefits to be derived by the users of the services to be provided or enhanced by the facility and whether public safety and emergency response capabilities would benefit by the establishment of the facility; and

(E) the extent to which the design of the proposed facility reflects compliance with subsection (e) of this Section.

No more than one public hearing shall be required.

(5) On judicial review of an adverse decision, the issue shall be the reasonableness of the county board's decision in light of the evidence presented and the well-reasoned recommendations of any other body that conducted the public hearing.

(Source: P.A. 95-815, eff. 8-13-08; 96-696, eff. 1-1-10.)

Section 10. The Public Utilities Act is amended by changing Sections 13-301 as follows:

(220 ILCS 5/13-301) (from Ch. 111 2/3, par. 13-301)

(Section scheduled to be repealed on July 1, 2010)

Sec. 13-301. Consistent with the findings and policy established in paragraph (a) of Section 13-102 and paragraph (a) of Section 13-103, and in order to ensure the attainment of such policies, the Commission shall:

(a) participate in all federal programs intended to preserve or extend universal telecommunications service, unless such programs would place cost burdens on Illinois customers of telecommunications services in excess of the benefits they would receive through participation, provided, however, the Commission shall not approve or permit the imposition of any surcharge or other fee designed to subsidize or provide a waiver for subscriber line charges; and shall report on such programs together with an assessment of their adequacy and the advisability of participating therein in its annual report to the General Assembly, or more often as necessary;

(b) establish a program to monitor the level of telecommunications subscriber connection within each exchange in Illinois, and shall report the results of such monitoring and any actions it has taken or recommends be taken to maintain and increase such levels in its annual report to the General Assembly, or more often if necessary;

(c) order all telecommunications carriers offering or providing local exchange telecommunications service to propose low-cost or budget service tariffs and any other rate design or pricing mechanisms designed to facilitate customer access to such telecommunications service, and shall after notice and hearing, implement any such proposals which it finds likely to achieve such purpose;

(d) investigate the necessity of and, if appropriate, establish a universal service support fund from which local exchange telecommunications carriers who pursuant to the Twenty-Seventh Interim Order of the Commission in Docket No. 83-0142 or the orders of the Commission in Docket No. 97-0621 and Docket No. 98-0679 received funding and whose economic costs of providing services for which universal service support may be made available exceed the affordable rate established by the Commission for such services may be eligible to receive support, less any federal universal service support received for the same or similar costs of providing the supported services; provided, however, that if a universal service support fund is established, the Commission shall require that all costs of the fund be recovered from all local exchange and interexchange telecommunications carriers certificated in Illinois on a competitively neutral and nondiscriminatory basis. In establishing any such universal service support fund, the Commission shall, in addition to the determination of costs for supported services, consider and make findings pursuant to paragraphs (1), (2), and (4) of item (e) of this Section. Proxy cost, as determined by the Commission, may be used for this purpose. In determining cost recovery for any universal service support fund, the Commission shall not permit recovery of such costs from another certificated carrier for any service purchased and used solely as an input to a service provided to such certificated carrier's retail customers; and

(e) investigate the necessity of and, if appropriate, establish a universal service support fund in addition to any fund that may be established pursuant to item (d) of this Section; provided, however, that if a telecommunications carrier receives universal service support pursuant to item (d) of this Section, that telecommunications carrier shall not receive universal service support pursuant to this item. Recipients of any universal service support funding created by this item shall be "eligible" telecommunications carriers, as designated by the Commission in accordance with 47 U.S.C. 214(e)(2). Eligible telecommunications carriers providing local exchange telecommunications service may be eligible to receive support for such services, less any federal universal service support received for the same or similar costs of providing the supported services. If a fund is established, the Commission shall require that the costs of such fund be recovered from all telecommunications carriers, with the exception of wireless carriers who are providers of two-way cellular telecommunications service and who have not been designated as eligible telecommunications carriers, on a competitively neutral and non-discriminatory basis. In any order creating a fund pursuant to this item, the Commission, after notice and hearing, shall:

(1) Define the group of services to be declared "supported telecommunications services" that constitute "universal service". This group of services shall, at a minimum, include those services as defined by the Federal Communications Commission and as from time to time amended. In addition, the Commission shall consider the range of services currently offered by telecommunications carriers offering local exchange telecommunications service, the existing rate structures for the supported telecommunications services, and the telecommunications needs of Illinois consumers in determining the supported telecommunications services. The Commission shall, from time to time or upon request, review and, if appropriate, revise the group of Illinois supported telecommunications services and the terms of the fund to reflect changes or enhancements in telecommunications needs, technologies, and available services.

(2) Identify all implicit subsidies contained in rates or charges of incumbent local exchange carriers, including all subsidies in interexchange access charges, and determine how such subsidies can be made explicit by the creation of the fund.

(3) Identify the incumbent local exchange carriers' economic costs of providing the supported telecommunications services.

(4) Establish an affordable price for the supported telecommunications services for the respective incumbent local exchange carrier. The affordable price shall be no less than the rates in effect at the time the Commission creates a fund pursuant to this item. The Commission may establish and utilize indices or models for updating the affordable price for supported telecommunications services.

(5) Identify the telecommunications carriers from whom the costs of the fund shall be recovered and the mechanism to be used to determine and establish a competitively neutral and non-discriminatory funding basis. From time to time, or upon request, the Commission shall consider whether, based upon changes in technology or other factors, additional telecommunications providers should contribute to the fund. The Commission shall establish the basis upon which telecommunications carriers contributing to the fund shall recover contributions on a competitively neutral and non-discriminatory basis. In determining cost recovery for any universal support fund, the Commission shall not permit recovery of such costs from another certificated carrier for any service purchased and used solely as an input to a service provided to such certificated carriers' retail customers.

(6) Approve a plan for the administration and operation of the fund by a neutral third party consistent with the requirements of this item.

No fund shall be created pursuant to this item until existing implicit subsidies, including, but not limited to, those subsidies contained in interexchange access charges, have been identified and eliminated through revisions to rates or charges. Prior to May 1, 2000, such revisions to rates or charges to eliminate implicit subsidies shall occur contemporaneously with any funding established pursuant to this item. However, if the Commission does not establish a universal service support fund by May 1, 2000, the Commission shall not be prevented from entering an order or taking other actions to reduce or eliminate existing subsidies as well as considering the effect of such reduction or elimination on local exchange carriers; and .

(f) provide for a universal and emergency services support program under which all payphone service providers operating under certificates of service authority issued by the Commission shall receive financial support for all local exchange services identified in this subsection (f) that are used in the provisioning of payphone services, other than for payphones located at inmate institutions or airports, provided that such payphone service provider submits itself to the universal and emergency services support program (participating provider). The General Assembly finds that the continued provision of payphones is fundamental to the public policy goals of providing universal access and emergency links to the communications network in the public interest of providing for the health, welfare, prosperity, and security of Illinois citizens. Developments in the telecommunications industry make it necessary to take steps to ensure the continued availability of payphones as part of the overall communications network. Therefore, no later than December 1, 2010, the Commission, after notice and hearing, shall have in effect a universal and emergency services support program that shall provide that all payphone lines of a participating provider, other than those payphones located at inmate institutions or airports, shall receive universal and emergency services support in an amount equal to the charges for the telephone line, the subscriber line charge, all usage of up to 15 miles, and the features (collectively "local charges") for each payphone each month, to be paid directly by the fund for the universal and emergency services support program to the local exchange carrier providing the telephone subscriber line to the payphone. The participating provider shall remain responsible for the remainder of any other charges. The Commission shall require that all costs of the fund for the universal and emergency services support program be recovered from the same entities as those required for the recovery of costs under subsection (d) of this Section on a competitively neutral and nondiscriminatory basis. The funding for the universal and emergency services support program for this subsection may be through a separate fund or through another fund established pursuant to this Article, as the Commission deems to be the most efficient and effective, provided that any inclusion in another fund established pursuant to this Article is neither detrimental to, nor diminishes the benefits of that fund to, the other participants.

Any telecommunications carrier providing local exchange telecommunications service which offers to its local exchange customers a choice of two or more local exchange telecommunications service offerings shall provide, to any such customer requesting it, once a year without charge, a report describing which local exchange telecommunications service offering would result in the lowest bill for such customer's local exchange service, based on such customer's calling pattern and usage for the previous 6 months. At least once a year, each such carrier shall provide a notice to each of its local exchange telecommunications service customers describing the availability of this report and the specific procedures by which customers may receive it. Such report shall only be available to current and future customers who have received at least 6 months of continuous local exchange service from such carrier.

(Source: P.A. 91-636, eff. 8-20-99.)

(220 ILCS 5/9-216 rep.)

Section 15. The Public Utilities Act is amended by repealing Section 9-216.

Section 99. Effective date. This Act takes effect upon becoming law.".