Sen. Terry Link

Filed: 3/1/2012

 

 


 

 


 
09700SB2895sam001LRB097 17641 KMW 67045 a

1
AMENDMENT TO SENATE BILL 2895

2    AMENDMENT NO. ______. Amend Senate Bill 2895 by replacing
3everything after the enacting clause 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 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

 

 

09700SB2895sam001- 2 -LRB097 17641 KMW 67045 a

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

 

 

09700SB2895sam001- 3 -LRB097 17641 KMW 67045 a

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

 

 

09700SB2895sam001- 4 -LRB097 17641 KMW 67045 a

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

 

 

09700SB2895sam001- 5 -LRB097 17641 KMW 67045 a

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.

 

 

09700SB2895sam001- 6 -LRB097 17641 KMW 67045 a

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

 

 

09700SB2895sam001- 7 -LRB097 17641 KMW 67045 a

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

 

 

09700SB2895sam001- 8 -LRB097 17641 KMW 67045 a

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.

 

 

09700SB2895sam001- 9 -LRB097 17641 KMW 67045 a

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.

 

 

09700SB2895sam001- 10 -LRB097 17641 KMW 67045 a

1        (10) Thirty days prior to the issuance of a building
2    permit for a facility necessitating the erection of a new
3    tower, the permit applicant shall provide written notice of
4    its intent to construct the facility to the State
5    Representative and the State Senator of the district in
6    which the subject facility is to be constructed and all
7    county board members for the county board district in the
8    county in which the subject facility is to be constructed.
9    This notice shall include, but not be limited to, the
10    following information: (i) the name, address, and
11    telephone number of the company responsible for the
12    construction of the facility; (ii) the name, address, and
13    telephone number of the governmental entity authorized to
14    issue the building permit; and (iii) the location of the
15    proposed facility. The applicant shall demonstrate
16    compliance with the notice requirements set forth in this
17    item (10) by submitting certified mail receipts or
18    equivalent mail service receipts at the same time that the
19    applicant submits the permit application.
20    (g) The following provisions shall apply to all facilities
21established (i) after the effective date of this amendatory Act
22of 1997 with respect to telecommunications carriers and (ii)
23after the effective date of this amendatory Act of the 94th
24General Assembly with respect to AM broadcast stations in the
25county jurisdiction area of any county with a population of
26less than 180,000:

 

 

09700SB2895sam001- 11 -LRB097 17641 KMW 67045 a

1        (1) A facility is permitted if its supporting structure
2    is a qualifying structure or if both of the following
3    conditions are met:
4            (A) the height of the facility shall not exceed 200
5        feet, except that if a facility is located more than
6        one and one-half miles from the corporate limits of any
7        municipality with a population of 25,000 or more the
8        height of the facility shall not exceed 350 feet; and
9            (B) the horizontal separation distance to the
10        nearest principal residential building shall not be
11        less than the height of the supporting structure;
12        except that if the supporting structure exceeds 99 feet
13        in height, the horizontal separation distance to the
14        nearest principal residential building shall be at
15        least 100 feet or 80% of the height of the supporting
16        structure, whichever is greater. Compliance with this
17        paragraph shall only be evaluated as of the time that a
18        building permit application for the facility is
19        submitted. If the supporting structure is not an
20        antenna tower this paragraph is satisfied.
21        (2) Unless a facility is permitted under paragraph (1)
22    of this subsection (g), a facility can be established only
23    after the county board gives its approval following
24    consideration of the provisions of paragraph (3) of this
25    subsection (g). The county board may give its approval
26    after one public hearing on the proposal, but only by the

 

 

09700SB2895sam001- 12 -LRB097 17641 KMW 67045 a

1    favorable vote of a majority of the members present at a
2    meeting held no later than 75 days after submission of a
3    complete application by the telecommunications carrier. If
4    the county board fails to act on the application within 75
5    days after its submission, the application shall be deemed
6    to have been approved. No more than one public hearing
7    shall be required.
8        (3) For purposes of paragraph (2) of this subsection
9    (g), the following siting considerations, but no other
10    matter, shall be considered by the county board or any
11    other body conducting the public hearing:
12            (A) the criteria in subsection (d) of this Section;
13            (B) whether a substantial adverse effect on public
14        safety will result from some aspect of the facility's
15        design or proposed construction, but only if that
16        aspect of design or construction is modifiable by the
17        applicant;
18            (C) the benefits to be derived by the users of the
19        services to be provided or enhanced by the facility and
20        whether public safety and emergency response
21        capabilities would benefit by the establishment of the
22        facility;
23            (D) the existing uses on adjacent and nearby
24        properties; and
25            (E) the extent to which the design of the proposed
26        facility reflects compliance with subsection (e) of

 

 

09700SB2895sam001- 13 -LRB097 17641 KMW 67045 a

1        this Section.
2        (4) On judicial review of an adverse decision, the
3    issue shall be the reasonableness of the county board's
4    decision in light of the evidence presented on the siting
5    considerations and the well-reasoned recommendations of
6    any other body that conducts the public hearing.
7    (h) The following provisions shall apply to all facilities
8established after the effective date of this amendatory Act of
91997 in the county jurisdiction area of any county with a
10population of 180,000 or more. A facility is permitted in any
11zoning district subject to the following:
12        (1) A facility shall not be located on a lot under
13    paragraph (4) of subsection (d) unless a variation is
14    granted by the county board under paragraph (4) of this
15    subsection (h).
16        (2) Unless a height variation is granted by the county
17    board, the height of a facility shall not exceed 75 feet if
18    the facility will be located in a residential zoning
19    district or 200 feet if the facility will be located in a
20    non-residential zoning district. However, the height of a
21    facility may exceed the height limit in this paragraph, and
22    no height variation shall be required, if the supporting
23    structure is a qualifying structure.
24        (3) The improvements and equipment of the facility
25    shall be placed to comply with the requirements of this
26    paragraph at the time a building permit application for the

 

 

09700SB2895sam001- 14 -LRB097 17641 KMW 67045 a

1    facility is submitted. If the supporting structure is an
2    antenna tower other than a qualifying structure then (i) if
3    the facility will be located in a residential zoning
4    district the lot line set back distance to the nearest
5    residentially zoned lot shall be at least 50% of the height
6    of the facility's supporting structure or (ii) if the
7    facility will be located in a non-residential zoning
8    district the horizontal separation distance to the nearest
9    principal residential building shall be at least equal to
10    the height of the facility's supporting structure.
11        (4) The county board may grant variations for any of
12    the regulations, conditions, and restrictions of this
13    subsection (h), after one public hearing on the proposed
14    variations held at a zoning or other appropriate committee
15    meeting with proper notice given as provided in this
16    Section, by a favorable vote of a majority of the members
17    present at a meeting held no later than 75 days after
18    submission of an application by the telecommunications
19    carrier. If the county board fails to act on the
20    application within 75 days after submission, the
21    application shall be deemed to have been approved. In its
22    consideration of an application for variations, the county
23    board, and any other body conducting the public hearing,
24    shall consider the following, and no other matters:
25            (A) whether, but for the granting of a variation,
26        the service that the telecommunications carrier seeks

 

 

09700SB2895sam001- 15 -LRB097 17641 KMW 67045 a

1        to enhance or provide with the proposed facility will
2        be less available, impaired, or diminished in quality,
3        quantity, or scope of coverage;
4            (B) whether the conditions upon which the
5        application for variations is based are unique in some
6        respect or, if not, whether the strict application of
7        the regulations would result in a hardship on the
8        telecommunications carrier;
9            (C) whether a substantial adverse effect on public
10        safety will result from some aspect of the facility's
11        design or proposed construction, but only if that
12        aspect of design or construction is modifiable by the
13        applicant;
14            (D) whether there are benefits to be derived by the
15        users of the services to be provided or enhanced by the
16        facility and whether public safety and emergency
17        response capabilities would benefit by the
18        establishment of the facility; and
19            (E) the extent to which the design of the proposed
20        facility reflects compliance with subsection (e) of
21        this Section.
22    No more than one public hearing shall be required.
23        (5) On judicial review of an adverse decision, the
24    issue shall be the reasonableness of the county board's
25    decision in light of the evidence presented and the
26    well-reasoned recommendations of any other body that

 

 

09700SB2895sam001- 16 -LRB097 17641 KMW 67045 a

1    conducted the public hearing.
2    (i) Notwithstanding any other provision of law to the
3contrary, 30 days prior to the issuance of any permits for a
4new telecommunications facility within a county, the
5telecommunications carrier constructing the facility shall
6provide written notice of its intent to construct the facility.
7The notice shall include, but not be limited to, the following
8information: (i) the name, address, and telephone number of the
9company responsible for the construction of the facility, (ii)
10the address and telephone number of the governmental entity
11that is to issue the building permit for the telecommunications
12facility, (iii) a site plan and site map of sufficient
13specificity to indicate both the location of the parcel where
14the telecommunications facility is to be constructed and the
15location of all the telecommunications facilities within that
16parcel, and (iv) the property index number and common address
17of the parcel where the telecommunications facility is to be
18located. The notice shall not contain any material that appears
19to be an advertisement for the telecommunications carrier or
20any services provided by the telecommunications carrier. The
21notice shall be provided in person, by overnight private
22courier, or by certified mail to all owners of property within
23250 feet of the parcel in which the telecommunications carrier
24has a leasehold or ownership interest. For the purposes of this
25notice requirement, "owners" means those persons or entities
26identified from the authentic tax records of the county in

 

 

09700SB2895sam001- 17 -LRB097 17641 KMW 67045 a

1which the telecommunications facility is to be located. If,
2after a bona fide effort by the telecommunications carrier to
3determine the owner and his or her address, the owner of the
4property on whom the notice must be served cannot be found at
5the owner's last known address, or if the mailed notice is
6returned because the owner cannot be found at the last known
7address, the notice requirement of this paragraph is deemed
8satisfied.
9(Source: P.A. 96-696, eff. 1-1-10; 97-242, eff. 8-4-11; 97-496,
10eff. 8-22-11; revised 9-28-11.)".