97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB4114

 

Introduced , by Rep. JoAnn D. Osmond

 

SYNOPSIS AS INTRODUCED:
 
55 ILCS 5/5-12001.1

    Amends the Counties Code. Authorizes the county board or board of county commissioners of any county to regulate the placement, construction, and modification of the facilities of a telecommunications carrier as provided in the federal Telecommunications Act of 1996. In provisions concerning the design of a facility, provides that a telecommunications carrier or AM broadcast station shall abide by (now, consider) the specified guidelines. Removes provisions concerning the placement of a facility, review of permits, improvements and equipment, public hearings, and decisions regarding a facility. Further provides that a permit applicant shall provide performance and restoration assurances for facility removal and site restoration in the event of permanent cessation of use or abandonment. Sets rules concerning the assurances. Makes other changes. Effective immediately.


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FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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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) The Notwithstanding any other Section in this Division,
12the county 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. The county board
23or board of county commissioners of any county is authorized to

 

 

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1regulate the placement, construction, and modification of the
2facilities of a telecommunications carrier as provided for in
3the federal Telecommunications Act of 1996, P.L. 104-104. The
4county board or board of county commissioners may not
5unreasonably discriminate among providers of functionally
6equivalent services and may not prohibit or have the effect of
7prohibiting the provision of telecommunications services as
8provided for in the federal Telecommunications Act of 1996,
9P.L. 104-104.
10    (c) As used in this Section, unless the context otherwise
11requires:
12        (1) "county jurisdiction area" means those portions of
13    a county that lie outside the corporate limits of cities,
14    villages, and incorporated towns that have municipal
15    zoning ordinances in effect;
16        (2) "county board" means the county board or board of
17    county commissioners of any county;
18        (3) "residential zoning district" means a zoning
19    district that is designated under a county zoning ordinance
20    and is zoned predominantly for residential uses;
21        (4) "non-residential zoning district" means the county
22    jurisdiction area of a county, except for those portions
23    within a residential zoning district;
24        (5) "residentially zoned lot" means a zoning lot in a
25    residential zoning district;
26        (6) "non-residentially zoned lot" means a zoning lot in

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1        (9) A facility shall provide additional capacity for at
2    least 2 additional carriers' antennae, equipment housing,
3    and ancillary equipment.
4    (f) The following provisions shall apply to all facilities
5established in any county jurisdiction area (i) after the
6effective date of the amendatory Act of 1997 with respect to
7telecommunications carriers and (ii) after the effective date
8of this amendatory Act of the 94th General Assembly with
9respect to AM broadcast stations:
10        (1) (Blank). Except as provided in this Section, no
11    yard or set back regulations shall apply to or be required
12    for a facility.
13        (2) (Blank). A facility may be located on the same
14    zoning lot as one or more other structures or uses without
15    violating any ordinance or regulation that prohibits or
16    limits multiple structures, buildings, or uses on a zoning
17    lot.
18        (3) (Blank). No minimum lot area, width, or depth shall
19    be required for a facility, and unless the facility is to
20    be manned on a regular, daily basis, no off-street parking
21    spaces shall be required for a facility. If the facility is
22    to be manned on a regular, daily basis, one off-street
23    parking space shall be provided for each employee regularly
24    at the facility. No loading facilities are required.
25        (4) (Blank). No portion of a facility's supporting
26    structure or equipment housing shall be less than 15 feet

 

 

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1    from the front lot line of the facility lot or less than 10
2    feet from any other lot line.
3        (5) (Blank). No bulk regulations or lot coverage,
4    building coverage, or floor area ratio limitations shall be
5    applied to a facility or to any existing use or structure
6    coincident with the establishment of a facility. Except as
7    provided in this Section, no height limits or restrictions
8    shall apply to a facility.
9        (6) (Blank). A county's review of a building permit
10    application for a facility shall be completed within 30
11    days. If a decision of the county board is required to
12    permit the establishment of a facility, the county's review
13    of the application shall be simultaneous with the process
14    leading to the county board's decision.
15        (7) (Blank). The improvements and equipment comprising
16    the facility may be wholly or partly freestanding or wholly
17    or partly attached to, enclosed in, or installed in or on a
18    structure or structures.
19        (8) (Blank). Any public hearing authorized under this
20    Section shall be conducted in a manner determined by the
21    county board. Notice of any such public hearing shall be
22    published at least 15 days before the hearing in a
23    newspaper of general circulation published in the county.
24    Notice of any such public hearing shall also be sent by
25    certified mail at least 15 days prior to the hearing to the
26    owners of record of all residential property that is

 

 

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1    adjacent to the lot upon which the facility is proposed to
2    be sited.
3        (9) (Blank). Any decision regarding a facility by the
4    county board or a county agency or official shall be
5    supported by written findings of fact. The circuit court
6    shall have jurisdiction to review the reasonableness of any
7    adverse decision and the plaintiff shall bear the burden of
8    proof, but there shall be no presumption of the validity of
9    the decision.
10        (10) Thirty days prior to the issuance of a building
11    permit for a facility necessitating the erection of a new
12    tower, the permit applicant shall provide written notice of
13    its intent to construct the facility to the State
14    Representative and the State Senator of the district in
15    which the subject facility is to be constructed and all
16    county board members for the county board district in the
17    county in which the subject facility is to be constructed.
18    This notice shall include, but not be limited to, the
19    following information: (i) the name, address, and
20    telephone number of the company responsible for the
21    construction of the facility; (ii) the name, address, and
22    telephone number of the governmental entity authorized to
23    issue the building permit; and (iii) the location of the
24    proposed facility. The applicant shall demonstrate
25    compliance with the notice requirements set forth in this
26    item (10) by submitting certified mail receipts or

 

 

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1    equivalent mail service receipts at the same time that the
2    applicant submits the permit application.
3        (11) The permit applicant shall provide, concurrent
4    with the building permit application for a new facility,
5    performance and restoration assurances for facility
6    removal and site restoration in the event of the facility's
7    permanent cessation of use or abandonment. Such
8    assurances, in the form of a cash bond or irrevocable
9    letter of credit, shall be sufficient to cover 100% of the
10    cost of (i) dismantling and removal of the facility as
11    defined herein in addition to any co-locate equipment,
12    equipment housing, and other ground-based improvements,
13    and (ii) corresponding housing site stabilization.
14    (g) The following provisions shall apply to all facilities
15established (i) after the effective date of this amendatory Act
16of 1997 with respect to telecommunications carriers and (ii)
17after the effective date of this amendatory Act of the 94th
18General Assembly with respect to AM broadcast stations in the
19county jurisdiction area of any county with a population of
20less than 180,000:
21        (1) A facility is permitted if its supporting structure
22    is a qualifying structure or if both of the following
23    conditions are met:
24            (A) the height of the facility shall not exceed 200
25        feet, except that if a facility is located more than
26        one and one-half miles from the corporate limits of any

 

 

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1        municipality with a population of 25,000 or more the
2        height of the facility shall not exceed 350 feet; and
3            (B) the horizontal separation distance to the
4        nearest principal residential building shall not be
5        less than the height of the supporting structure;
6        except that if the supporting structure exceeds 99 feet
7        in height, the horizontal separation distance to the
8        nearest principal residential building shall be at
9        least 100 feet or 80% of the height of the supporting
10        structure, whichever is greater. Compliance with this
11        paragraph shall only be evaluated as of the time that a
12        building permit application for the facility is
13        submitted. If the supporting structure is not an
14        antenna tower this paragraph is satisfied.
15        (2) Unless a facility is permitted under paragraph (1)
16    of this subsection (g), a facility can be established only
17    after the county board gives its approval following
18    consideration of the provisions of paragraph (3) of this
19    subsection (g). The county board may give its approval
20    after one public hearing on the proposal, but only by the
21    favorable vote of a majority of the members present at a
22    meeting held no later than 75 days after submission of a
23    complete application by the telecommunications carrier. If
24    the county board fails to act on the application within 75
25    days after its submission, the application shall be deemed
26    to have been approved. No more than one public hearing

 

 

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

 

 

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1    (h) The following provisions shall apply to all facilities
2established after the effective date of this amendatory Act of
31997 in the county jurisdiction area of any county with a
4population of 180,000 or more that has not adopted an ordinance
5to exercise the powers granted in Division 5-12 or Division
65-13. A facility is permitted in any zoning district subject to
7the following:
8        (1) A facility shall not be located on a lot under
9    paragraph (4) of subsection (d) unless a variation is
10    granted by the county board under paragraph (4) of this
11    subsection (h).
12        (2) Unless a height variation is granted by the county
13    board, the height of a facility shall not exceed 75 feet if
14    the facility will be located in a residential zoning
15    district or 200 feet if the facility will be located in a
16    non-residential zoning district. However, the height of a
17    facility may exceed the height limit in this paragraph, and
18    no height variation shall be required, if the supporting
19    structure is a qualifying structure.
20        (3) The improvements and equipment of the facility
21    shall be placed to comply with the requirements of this
22    paragraph at the time a building permit application for the
23    facility is submitted. If the supporting structure is an
24    antenna tower other than a qualifying structure then (i) if
25    the facility will be located in a residential zoning
26    district the lot line set back distance to the nearest

 

 

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

 

 

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1        application for variations is based are unique in some
2        respect or, if not, whether the strict application of
3        the regulations would result in a hardship on the
4        telecommunications carrier;
5            (C) 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            (D) whether there are benefits to be derived by the
11        users of the services to be provided or enhanced by the
12        facility and whether public safety and emergency
13        response capabilities would benefit by the
14        establishment of the facility; and
15            (E) the extent to which the design of the proposed
16        facility reflects compliance with subsection (e) of
17        this Section.
18    No more than one public hearing shall be required.
19        (5) On judicial review of an adverse decision, the
20    issue shall be the reasonableness of the county board's
21    decision in light of the evidence presented and the
22    well-reasoned recommendations of any other body that
23    conducted the public hearing.
24    (i) Notwithstanding any other provision of law to the
25contrary, 30 days prior to the issuance of any permits for a
26new telecommunications facility within a county, the

 

 

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1telecommunications carrier constructing the facility shall
2provide written notice of its intent to construct the facility.
3The notice shall include, but not be limited to, the following
4information: (i) the name, address, and telephone number of the
5company responsible for the construction of the facility, (ii)
6the address and telephone number of the governmental entity
7that is to issue the building permit for the telecommunications
8facility, (iii) a site plan and site map of sufficient
9specificity to indicate both the location of the parcel where
10the telecommunications facility is to be constructed and the
11location of all the telecommunications facilities within that
12parcel, and (iv) the property index number and common address
13of the parcel where the telecommunications facility is to be
14located. The notice shall not contain any material that appears
15to be an advertisement for the telecommunications carrier or
16any services provided by the telecommunications carrier. The
17notice shall be provided in person, by overnight private
18courier, or by certified mail to all owners of property within
19250 feet of the parcel in which the telecommunications carrier
20has a leasehold or ownership interest. For the purposes of this
21notice requirement, "owners" means those persons or entities
22identified from the authentic tax records of the county in
23which the telecommunications facility is to be located. If,
24after a bona fide effort by the telecommunications carrier to
25determine the owner and his or her address, the owner of the
26property on whom the notice must be served cannot be found at

 

 

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1the owner's last known address, or if the mailed notice is
2returned because the owner cannot be found at the last known
3address, the notice requirement of this paragraph is deemed
4satisfied.
5(Source: P.A. 96-696, eff. 1-1-10; 97-242, eff. 8-4-11; 97-496,
6eff. 8-22-11; revised 9-28-11.)
 
7    Section 99. Effective date. This Act takes effect upon
8becoming law.