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Lorain County municipalities work on small cell tower rules

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NORTH RIDGEVILLE — North Ridgeville and surrounding cities are putting together regulations on small cell towers, now that they soon will be allowed to do so.

Small cell towers are transmitters for mobile phone carriers that will provide wireless 5G in the surrounding area. The 5G technology, which is expected to be launched in 2019, offers a higher-speed data connection, but its availability will depend on how individual carriers, such as Verizon and T-Mobile, roll out the technology.

Major cities have been the main pilot locations for the small cell towers, but smaller municipalities also have become a testing ground as carriers use public right-of-ways.

Under Ohio Senate Bill 331, carriers could place the modules on utility poles with little say-so from municipalities, but cities challenged the bill in late 2016, and a compromise was reached that led to the passage of House Bill 478.

HB 478, which goes into effect Aug. 1, allows municipalities to place some regulations on carriers, including application fees and limits on where modules can be placed. But the bill also places stipulations on cities, including time limits on how long they can view applications and whether each application will have to go through commissions or committees. Now, cities are working to pass regulations regarding small cell towers in anticipation of applications coming in the first few weeks of August.

Attorney Bill Hanna, partner at Walter Haverfield LLP, worked on one of the five lawsuits challenging the original bill. While his lawsuit was focused in Summit County, with Hudson as the lead municipality, Avon, Avon Lake, Oberlin and Sheffield Lake also were plaintiffs.

“The lawsuits, the five of them, were filed by around 100 municipalities around the state in response to a law that was passed in Ohio, Senate Bill 331, at the end of 2016,” Hanna explained. “The purpose of it was to set up statewide rules for deploying small cell wireless antennas and poles in municipals’ rights of way — along streets and so forth — but (it) was very regulatory over municipalities and it curtailed municipal authority to an extent we thought was not appropriate or lawful and, in addition, the law contained a number of (other matters).”

Rulings in four of the lawsuits came down in favor of the municipalities, while the one Walter Haverfield LLP was representing a judge found the single subject rule — the basis for the suit — had not been violated. During appeal processes the five lawsuits suits, the state began negotiations with municipalities and wireless carriers to create House Bill 478.

“People still aren’t in love with it,” Hanna said, “but it’s a lot better than 331, and there’s a lot more protections for municipalities.”

HB 478 allows municipalities to stipulate designs and charge fees. Municipalities can impose height restrictions and require designs to match the character and aesthetic of a neighborhood, as well as charge up to a $250 application fee and up to a $200-per-year “rent” for use of city-owned poles. They still only have 90 days to process applications and cannot completely ban carriers, but stipulations can take historic districts and neighborhoods with underground utilities into account.

“(House Bill) 478 provides a skeleton,” Hanna explained. “Cities can add more meat to the bones with their local regulations, but the skeleton would still be there.”

North Ridgeville passed its regulations Monday, which will allow the city to impose application fees and other stipulations. Council President Kevin Corcoran said the city now will be notified when a carrier wants to place a small cell tower in the city.

“We were allowed to put some limited restrictions on where they can go … and they are pretty limited,” he said. “But we can at least get notified of them going in and also can charge a fee to review the application and those kinds of things.”

Under the original Senate Bill 331, two small cell towers were put up on Lorain Road, according to Corcoran, one across from Panera Bread and the other across from Speedway gas station. As the technology was new and they were put up quickly, the towers were supplied electricity via large generators, which sat on the tree lawn near the road, without the city’s prior approval.

“There was no notice that they were coming or anything, they just came, put them up and dropped these giant generators in the way — which being placed right on the side of the road like that was a little bit of a safety issue,” Corcoran said. “But there was a limit as to what we could do about it because at the time that was what the state law said and that was before it was challenged in court.”

Corcoran said under the city’s new regulations, applications for small cell towers have to come before the Planning Commission and City Council, but he stressed municipalities are limited on the regulations they can place because carriers are considered public utilities.

In neighboring Avon, Law Director John Gasior is in the midst of drafting the city’s regulations, which he said will be approved by the mayor by Aug. 1. Avon’s biggest concern for the technology is the location — because many developments’ utilities are underground and officials don’t want carriers putting poles up and ruining a residential area’s aesthetic — but he said it is expected the towers would go up in business districts, like along Detroit Road and state Route 83, rather than in densely residential areas.

“I think the cell companies, when you sit down and talk with them, they really want to cooperate with the cities but they’d need the devices because otherwise we won’t be able to do the things we want to do with our phones,” Gasior said. “Both parties recognize each others’ goals.”

He said in talking to contractors, there are options that may fit the city’s aesthetic needs, as carriers are getting creative with the packaging of these towers.

“They’ve shown us examples of small cell technology into an artificial palm tree … and (in) Colorado they’ve built them into pine trees,” he said. “They’re being creative; they realize people don’t want an eyesore out there in the community.”

He said there are five small cell towers already in Avon, put up under a compromise with Crown Castle Towers LLC before the latest legislation was passed. This includes a tower on Mills Road and another in front of the Bob-O-Link golf course on state Route 83.

“They did it under the old rules; we negotiated a deal,” he said. “We like to think in regard to the five poles, the deal that we negotiated would still be valid and there’d be nothing in HB 478 that would interfere with whatever the obligations were.”

Gasior anticipates a number of applications to come in the latter half of August, which is why the design standards will go before the mayor before the next Council meeting Aug. 6.

“There’s a pent-up demand to come in and do this now that the new law has taken effect, and quite honestly those first 13 days of August are critical, and we want to be able to enforce something,” he said. “We want to be able to say we adopted this.”

But as the technology changes, state and municipal laws must also adapt. Gasior and Corcoran said their cities would have to review their laws as the towers advance.

“I’m sure that it will have to change over time,” Corcoran said. “I know that a bunch of cities are trying to enact this type of legislation all at the same time, so there might be some things that come along to make (the technology) better, so we’ll have to review it every once in a while. And then who knows what happens when 6G comes.”

Attorney Hanna agreed, and said the next thing to watch for is the implementation of the new technology.

“Cities know from their residents that they want those services, they want good coverage, they want high-speed coverage,” he said. “So there is certainly demand. (It’s) a balancing act, I think, between trying to manage the process and manage the proliferation of antennas and poles while the residents and business-residents get the services they want.”

Contact Carissa Woytach at 329-7245 or cwoytach@chroniclet.com.
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