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Background information related to City regulation of telecommunication facilities in the Right of Way

Process to date

An Administrative Regulation has been established regarding the implementation and enforcement of Takoma Park Code, Chapter 11.12 Streets – Permits and Improvements, to regulate the installation of certain telecommunications facilities and equipment in City rights-of-way. A copy of the Administrative Regulation, effective July 15, 2019, is available here.

The regulation addresses permit applications, the process for review of applications, requirements for approval of applications, aesthetic requirements, fees, and continuing obligations of permittees.

Amendments to City Code

The City has the authority to regulate some aspects of cell tower installation, such as the location, placement, aesthetics, notification process, and fees. Montgomery County zoning codes govern where wireless telecommunication facilities can be sited generally and governs setbacks from dwellings. The City can also establish a permitting process to ensure that any small cell towers or antennas, permitted by the County for placement in Takoma Park, meet certain safety and aesthetic requirements.

After several public discussions about the various issues noted above, the Council voted to amend the City’s Code regarding right-of-way work permits on January 9, 2019, just days before the FCC ruling went into effect. The amendments are intended to comply with the limitations of federal law while maximizing the City’s control over its rights-of-way.

Because Takoma Park was developed before 1968 and has above-ground utilities, the amendments favor the installation of antennas on existing Pepco-owned utility poles, which are prevalent throughout the City. (The only potential support structures the City owns are decorative light poles.) New poles will be permitted only when there is no existing pole in a location necessary to provide wireless coverage or when an existing pole is inadequate to support necessary wireless equipment.

The amended ordinance is intended to maximize the City’s influence over aesthetic considerations. It authorizes the Public Works Director to develop regulations that limit the size of antennas and related equipment and requires that new installations be designed to minimize their visual impact and noise emissions. To comply with the federal requirement that local regulations not discriminate against wireless communications facilities, the proposed amendments incorporate the aesthetic requirements into the requirements for other installations in the right of way.

Although federal law prohibits local radio frequency emission regulations, the ordinance requires an initial certification that the emissions meet federal standards and annual testing.

The amendments also include changes to the Code not specifically related to the installation of wireless facilities. In addition to addressing permit fees, the amendments also eliminate the charge per linear foot for right-of-way disturbances, as the current practice of the City is to charge only the permit application fee and require that the permittee restore the right-of-way.

Providing for the establishment of fees and additional aesthetic requirements via regulation gives the City flexibility to increase fees and further protect the public interest in the event that the legal challenges reduce the preemptive impact of the FCC Order.

Resources and Links

Council Agenda Items/Resources

Small Cell Antennas in the City’s Rights-of-Way Sections