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Legislation relaxes rules for smaller cell towers

In the coming months, smaller wireless towers could start popping up around Virginia at a faster pace.

Gov. Ralph Northam has signed legislation that will allow the construction of structures less than 50 feet tall without a special exception, special-use permit or variance from local governments. The towers are designed to support small-cell facilities.

The Federal Communications Commission describes small cells as low-powered wireless base stations that typically are “for targeted indoor or localized outdoor areas ranging in size from homes and offices to stadiums, shopping malls, hospitals and metropolitan outdoor spaces.”

State Sen. Ryan McDougle, R-Hanover, who sponsored SB 405, said wireless companies are expanding services in states where they can have a “certainty of plans,” including streamlined application schedules and fee structures across the state.

“Right now … in Virginia, we have a disjointed structure,” he said at a Senate Commerce and Labor committee meeting in February. “Each of the 130-some different jurisdictions in the commonwealth of Virginia make individual determinations, and when you’re building an infrastructure system that crosses multiple jurisdictions, that system does not provide for that certainty.”

He said he was concerned for his constituents in rural areas, who sometimes cannot get 3G or 4G service.

“If we don’t do something to build out these systems, they’re going to continue to be left behind,” McDougle said. “These are areas where you can’t get fiber, you can’t get hardwire because the population densities are not sufficient enough.”

At that same committee meeting, a Verizon representative said that, without the bill, it would be difficult to “pay the prices and go through the regiment we’ve gone through in the past to get a tower built” for the number of small-cell facilities they will need for 5G service.

“There will still be a need for towers in rural areas, because that’s the best way to provide service, but in a more urban area or where the population’s greater, we’re going to small cell,” the Verizon representative said.

Northern Virginia Technology Council, the Northern Virginia Chamber of Commerce and the Virginia Chamber of Commerce, as well as many wireless companies and industry associations, also gave support of the bill.

The Virginia Municipal League and the Virginia Association of Counties, organizations that represent local governments, have said they opposed the legislation.

“While our localities want service, we feel strongly that the importance is that our localities have the ability to have input from their local elected officials and from the citizens,” Michelle Gowdy, executive director of VML, said at the committee meeting.

Bill Fritz, chief of special projects for Albemarle County, said the legislation allows localities to regulate the facilities, but authority is limited to the point “that, effectively, we would not be able to deny one.”

“The long and short of it is the bill really does limit our authority to regulate small cells,” he said. “The other takeaway is we haven’t had anybody coming to us proposing small cells, so I’m not sure how much it directly affects Albemarle County right now. It may in the future, but we haven’t had any applications.”

Fritz said this new legislation is related to a bill Gov. Terry McAuliffe signed in 2017. That legislation, SB 1282, that said localities cannot require a special exception or special-use permit for any small-cell facility installed on an existing structure where providers have permission to co-locate equipment. Furthermore, the legislation requires localities to make a decision on completed applications within 60 days of receiving them and sets maximums on fees that can be charged.

In August, Fritz presented the Planning Commission with a possible zoning text amendment that would make small-cell facilities a by-right use in every zoning district, subject to the state code, but staff later delayed moving forward after it became clear more small-cell legislation was on the horizon.

Albemarle currently has a policy that breaks applications into three tiers. Tier I facilities are located within or on existing structures, Tier II facilities are treetop-height facilities and Tier III facilities are anything that is neither a Tier I nor a Tier II facility.

“There are some things we have to change, if we choose to continue to regulate [small-cell facilities], and that will have to be something the Board of Supervisors decides,” Fritz said.

There also are changes to how localities can regulate larger towers in the legislation

“We have not fully reviewed the ordinance against the most recent code,” he said. “We will be doing so soon.”

The legislation also calls for creating by Dec. 15 a stakeholder group that will include representatives from various departments in the state, industry representatives and representatives of affected communities to develop a plan for expanding access to wireless services in unserved and underserved areas.

Ann H. Mallek, Supervisors chairwoman, said she would have preferred a veto of the bill. She said the wireless companies are asking to be treated as utilities while not having to follow local rules and not providing services to everybody.

“They’re still saying ‘we have to have all this help,’ but they’re only using that help in the areas where the market is strong and they’re very successfully doing the work,” she said. “They’re not using the money that they get, or the benefits from these extra legislation pieces, to get into the rural areas. They’re still ignoring the underserved completely. That just does not seem to be fair to me. It’s like socializing the cost and privatizing the gains.”

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