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Lake Saint Louis set to amend its code governing cell towers

About the only thing that Lake Saint Louis officials can do right now to regulate telecommunications towers is try to make sure they don’t fall on anybody.

Lake Saint Louis and other municipal officials throughout Missouri are facing the prospect of having their authority pulled out from under them when it comes to reviewing and regulating new communications towers. State law now restricts the zoning authority cities have over cell towers on private property.

City officials fear that state legislation signed into law in 2014 that limits the authority of Missouri cities and counties to restrict towers may lead to more being erected, with little local control over them. Federal rules also apply that restrict local oversight.

In April, Lake Saint Louis imposed a 180-day moratorium on the processing of applications and approval of new communications cell towers to allow the city to review how it can regulate them. Federal officials gave local governments authority to impose the moratorium to review their ordinances.

The moratorium is ending soon and the city’s Board of Aldermen is poised to update is city code in response to state and federal limits over local cell tower regulation. A cell tower bill was given a first reading at the board’s regular meeting on August 15 but final action may not be taken until later this month or in September.

City Administrator Paul Markworth said the city is not going to change its code, but recognize that state and federal law preempts it.

The city’s amended ordinance will add that no structure other than a parking lot or tower building can be within a “fall zone” – an area equal to the height of the tower – that might be hit if a tower falls down.  The idea is to safeguard buildings and people using sidewalks or driving on streets. In the old ordinance, the fall zone was half the tower height. But that’s about it as far as the city can go, Markworth said.

“That’s the way we view it,” Markworth said. “We have very limited control, other than public health and safety from the fall zone. We don’t even have control over radio frequencies.”

The state legislation was supported by the telecommunications industry as a means of streamlining local regulations that have slowed the installation of high-speed Internet service throughout Missouri.

The legislation passed after a 2013 state law was struck down by a Cole County judge. Missouri Governor Jay Nixon signed four bills into law in 2014 that impose 19 new restrictions on how local governments can restrict cellphone towers.

The restrictions include: not requiring the removal of existing facilities as a condition for approving an application, evaluating an application based on the availability of other potential locations, dictating the type of wireless facilities or infrastructure, limiting application fees, limiting landscaping and setting deadlines for deciding on an application.

Markworth said the legislation prohibits municipalities from requiring telecommunications companies to study other potential locations were they could locate their antenna array before submitting a site plan for a new tower.

Cities can no longer require telecommunications companies establish or enforce radio frequency emissions, or impose environment testing, sampling of monitoring requirements and compliance measures excluded under federal law.

Cities also cannot readily impose escrows or other measures to ensure that abandoned or unused facilities be taken down. An abandoned tower can become a nuisance or safety concern.

The state laws prohibit this practice unless cities impose similar requirements or permits on other types of commercial development or land use. Requiring an escrow to allow a commercial building to be removed is impractical and have a chilling effect on economic development, Markworth said.

New laws also impose a shock clock that deems any tower application to be complete unless the city notifies the telecommunication company within 30 days for any deficiency in their application. If the city fails to act within a 120-day review period, the application is also deemed to be approved,

The end result of the law may be a proliferation of cell towers in places where they are unwelcome to city residents, Markworth said. That may change over time.

“I think over time there is going to be enough lawsuits that may kind of help settle this area of law,” Markworth said. “Even federal and state law conflict with each other.”

Markworth said before the moratorium the city had applications including indications from one company that they may propose building seven, 100-foot-tall fiberglass towers in the city. The application has not been submitted.

“They told us they were going to put them between the street, curb and sideway,” Markworth said. “It’s crazy.”

Changes to laws governing telecommunications have been opposed by the Missouri Municipal League, which represents 670 municipalities throughout the state.

Richard Sheets deputy director of the Missouri Municipal League, said that court challenges to the legislation have been largely thrown out for now. But Sheets said state legislation that may be filed for the next session of the Missouri General Assembly, which begins in January, may address some issues particularly placing towers in road right of way.

“It’s shifted from zoning to safety and some aesthetics,” Sheets said.  Sheets said the league is also working with the telecommunications industry to craft legislation that may address local concerns.

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