HB2974sam001 97TH GENERAL ASSEMBLY

Sen. Linda Holmes

Filed: 5/5/2011

09700HB2974sam001 LRB097 10838 KMW 54584 a

AMENDMENT TO HOUSE BILL 2974

AMENDMENT NO. ______. Amend House Bill 2974 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; and .

(21) "co-location" means a tower shared by 2 or more wireless communications providers.

(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.

(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, and (iii) after the effective date of this amendatory Act of the 97th General Assembly with respect to regulation of support structures under item (5):

(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.

(5) When regulating the placement of a support structure, a county may not:

(A) regulate the placement of an antenna or related equipment for an existing support structure; except that if the placement of an antenna on an existing support structure requires an extension, the placement may be regulated if the extension would require the support structure to have lighting as required by federal law; if a co-location occurs, the co-location may not be considered an expansion, and the county may not impose additional costs or operating restrictions on the applicant for the co-location unless the support structure is owned by the county;

(B) require the applicant to provide justification for radio frequency need; or

(C) prohibit the provision of personal wireless services.

(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 Illinois Municipal Code is amended by changing Section 11-13-1 as follows:

(65 ILCS 5/11-13-1) (from Ch. 24, par. 11-13-1)

Sec. 11-13-1. To the end that adequate light, pure air, and safety from fire and other dangers may be secured, that the taxable value of land and buildings throughout the municipality may be conserved, that congestion in the public streets may be lessened or avoided, that the hazards to persons and damage to property resulting from the accumulation or runoff of storm or flood waters may be lessened or avoided, and that the public health, safety, comfort, morals, and welfare may otherwise be promoted, and to insure and facilitate the preservation of sites, areas, and structures of historical, architectural and aesthetic importance; the corporate authorities in each municipality have the following powers:

(1) to regulate and limit the height and bulk of buildings hereafter to be erected;

(2) to establish, regulate and limit, subject to the provisions of Division 14 of this Article 11, the building or set-back lines on or along any street, traffic-way, drive, parkway or storm or floodwater runoff channel or basin;

(3) to regulate and limit the intensity of the use of lot areas, and to regulate and determine the area of open spaces, within and surrounding such buildings;

(4) to classify, regulate and restrict the location of trades and industries and the location of buildings designed for specified industrial, business, residential, and other uses;

(5) to divide the entire municipality into districts of such number, shape, area, and of such different classes (according to use of land and buildings, height and bulk of buildings, intensity of the use of lot area, area of open spaces, or other classification) as may be deemed best suited to carry out the purposes of this Division 13;

(6) to fix standards to which buildings or structures therein shall conform;

(7) to prohibit uses, buildings, or structures incompatible with the character of such districts;

(8) to prevent additions to and alteration or remodeling of existing buildings or structures in such a way as to avoid the restrictions and limitations lawfully imposed under this Division 13;

(9) to classify, to regulate and restrict the use of property on the basis of family relationship, which family relationship may be defined as one or more persons each related to the other by blood, marriage or adoption and maintaining a common household;

(10) to regulate or forbid any structure or activity which may hinder access to solar energy necessary for the proper functioning of a solar energy system, as defined in Section 1.2 of the Comprehensive Solar Energy Act of 1977;

(11) to require the creation and preservation of affordable housing, including the power to provide increased density or other zoning incentives to developers who are creating, establishing, or preserving affordable housing; and

(12) to establish local standards solely for the review of the exterior design of buildings and structures, excluding utility facilities and outdoor off-premises advertising signs, and designate a board or commission to implement the review process; except that, other than reasonable restrictions as to size, no home rule or non-home rule municipality may prohibit the display of outdoor political campaign signs on residential property during any period of time, the regulation of these signs being a power and function of the State and, therefor, this item (12) is a denial and limitation of concurrent home rule powers and functions under subsection (i) of Section 6 of Article VII of the Illinois Constitution.

The powers enumerated may be exercised within the corporate limits or within contiguous territory not more than one and one-half miles beyond the corporate limits and not included within any municipality. However, if any municipality adopts a plan pursuant to Division 12 of Article 11 which plan includes in its provisions a provision that the plan applies to such contiguous territory not more than one and one-half miles beyond the corporate limits and not included in any municipality, then no other municipality shall adopt a plan that shall apply to any territory included within the territory provided in the plan first so adopted by another municipality. No municipality shall exercise any power set forth in this Division 13 outside the corporate limits thereof, if the county in which such municipality is situated has adopted "An Act in relation to county zoning", approved June 12, 1935, as amended. Nothing in this Section prevents a municipality of more than 112,000 population located in a county of less than 185,000 population that has adopted a zoning ordinance and the county that adopted the zoning ordinance from entering into an intergovernmental agreement that allows the municipality to exercise its zoning powers beyond its territorial limits; provided, however, that the intergovernmental agreement must be limited to the territory within the municipality's planning jurisdiction as defined by law or any existing boundary agreement. The county and the municipality must amend their individual zoning maps in the same manner as other zoning changes are incorporated into revised zoning maps. No such intergovernmental agreement may authorize a municipality to exercise its zoning powers, other than powers that a county may exercise under Section 5-12001 of the Counties Code, with respect to land used for agricultural purposes. This amendatory Act of the 92nd General Assembly is declarative of existing law. No municipality may exercise any power set forth in this Division 13 outside the corporate limits of the municipality with respect to a facility of a telecommunications carrier defined in Section 5-12001.1 of the Counties Code.

Notwithstanding any other provision of law to the contrary, at least 30 days prior to the issuance of any permits for commencing construction of a new telecommunications facility within 1.5 miles of a municipality, the telecommunications carrier constructing the facility shall provide written notice of its intent to construct the facility. The 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, and (ii) the address and telephone number of the governmental entity that is to issue issued the building permit for the telecommunications facility, (iii) a site plan and site map of sufficient specificity to indicate both the location of the parcel where the telecommunications facility is to be constructed and the location of all the telecommunications facilities within that parcel, and (iv) the property index number and common address of the parcel where the telecommunications facility is to be located. The notice shall not contain any material that appears to be an advertisement for the telecommunications carrier or any services provided by the telecommunications carrier. The notice shall be provided in person, by overnight private courier, or by certified mail to all owners of property within 250 feet of the parcel in which the telecommunications carrier has a leasehold or ownership interest. For the purposes of this notice requirement, "owners" means those persons or entities identified from the authentic tax records of the county in which the telecommunications facility is to be located. If, after a bona fide effort by the telecommunications carrier to determine the owner and his or her address, the owner of the property on whom the notice must be served cannot be found at the owner's last known address, or if the mailed notice is returned because the owner cannot be found at the last known address, the notice requirement of this paragraph is deemed satisfied. For the purposes of this paragraph, "facility" means that term as it is defined in Section 5-12001.1 of the Counties Code.

When regulating the placement of a telecommunications support structure, a municipality may not:

(1) regulate the placement of an antenna or related equipment for an existing support structure; except that if the placement of an antenna on an existing support structure requires an extension, the placement may be regulated if the extension would require the support structure to have lighting as required by federal law; if a co-location occurs, the co-location may not be considered an expansion, and the municipality may not impose additional costs or operating restrictions on the applicant for the co-location unless the support structure is owned by the municipality;

(2) require the applicant to provide justification for radio frequency need; or

(3) prohibit the provision of personal wireless services.

For the purposes of this Section, "co-location" means a tower shared by 2 or more wireless communications providers.

If a municipality adopts a zoning plan covering an area outside its corporate limits, the plan adopted shall be reasonable with respect to the area outside the corporate limits so that future development will not be hindered or impaired; it is reasonable for a municipality to regulate or prohibit the extraction of sand, gravel, or limestone even when those activities are related to an agricultural purpose. If all or any part of the area outside the corporate limits of a municipality which has been zoned in accordance with the provisions of this Division 13 is annexed to another municipality or municipalities, the annexing unit shall thereafter exercise all zoning powers and regulations over the annexed area.

In all ordinances passed under the authority of this Division 13, due allowance shall be made for existing conditions, the conservation of property values, the direction of building development to the best advantage of the entire municipality and the uses to which the property is devoted at the time of the enactment of such an ordinance. The powers conferred by this Division 13 shall not be exercised so as to deprive the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted, but provisions may be made for the gradual elimination of uses, buildings and structures which are incompatible with the character of the districts in which they are made or located, including, without being limited thereto, provisions (a) for the elimination of such uses of unimproved lands or lot areas when the existing rights of the persons in possession thereof are terminated or when the uses to which they are devoted are discontinued; (b) for the elimination of uses to which such buildings and structures are devoted, if they are adaptable for permitted uses; and (c) for the elimination of such buildings and structures when they are destroyed or damaged in major part, or when they have reached the age fixed by the corporate authorities of the municipality as the normal useful life of such buildings or structures.

This amendatory Act of 1971 does not apply to any municipality which is a home rule unit, except as provided in item (12).

(Source: P.A. 95-475, eff. 1-1-08; 96-904, eff. 1-1-11.)

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