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Council Member Inquiry/Motion Form Demande de renseignements d’un membre du Conseil /Formulaire de motion |
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From/Exp. : Councillor S.
Desroches |
Date
: 13
April 2010 |
File/Dossier
: PEC
01-10 |
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To/Dest. : Nancy Schepers, Deputy City Manager, Infrastructure Services and Community Sustainability |
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Subject/Objet : Regulatory
Jurisdiction for new Cell Towers
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Inquiry/Demande de renseignements What is the City's regulatory jurisdiction related to new cell towers? How are the concerns of local residents addressed under the current regulatory framework? |
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Response/Réponse |
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What
is the City’s regulatory jurisdiction related to new cell towers?
Response:
The City currently reviews development proposals for new cell towers, i.e. communication towers greater than 16.6 metres in height, through its site plan control process. Although the City provides site plan approval, its regulatory jurisdiction related to communication towers is questionable as communication towers fall under the jurisdiction of the Federal Government and are regulated by Industry Canada.
However, Industry Canada does require a proponent seeking to install a new communication tower, with the proposed height of 15 meters and higher, to consult on the siting of the tower with the ‘land use authority’, the City in this case, and to obtain concurrence in writing. The attached Document 1, entitled CPC-2-0-03 “Radiocommunication and Broadcasting Antenna Systems”, sets out the requirements of Industry Canada.
Although, the City’s site plan control process has been recognized by proponents as the method for consultation with the land use authority and for obtaining written concurrence, there is now a question as to whether or not the use of site plan control is legal. In a 2007 court case, Telus Communications Co. v. Toronto, the Ontario Superior Court was asked to determine whether the City of Toronto’s site plan control by-laws enacted pursuant to s. 41 of the Planning Act applied to Telus, a federally regulated undertaking. The case considered the needs of telecommunications providers for better quality wireless networks and the impact of municipal development controls.
The court found that the City’s site plan control by-laws did impair the telecommunication provider’s ability to operate its wireless networks. Because of this, and the fact that the provider was a federally regulated undertaking, the court declared that the City’s site plan control by-laws could no longer be applied to the provider’s communications towers.
Staff have reviewed this
decision with Legal Services and are currently preparing a report for
consideration by the Planning and Environment Committee, setting out
recommendations for the removal of communication towers from the City's site
plan control process and the establishment of a similar process wherein the
City would review and provide municipal "concurrence" to, or
address any reasonable and relevant concerns with proponents seeking approval
for the development of new communication towers, in accordance with Industry
Canada’s regulatory framework (Document
1). A staff
report recommending a review process under Industry Canada’s regulatory
framework is anticipated to form part of the July agenda. It should be noted that other municipalities
in Ontario have implemented municipal concurrence processes for the review of
communication towers.
How are the concerns of local residents addressed
under the current regulatory framework?
Response:
Given the limited size of the accessory buildings related to communications towers, new communication towers are administered via a site plan approval process that is delegated to staff and requires no public consultation. A Ward Councillor can withdraw delegated authority and in those instances, an application is considered by either the Planning and Environment Committee or the Agriculture and Rural Affairs Committee.
Where delegated authority has been lifted by the Ward Councillor, the concerns of local residents can be brought before the appropriate standing committee at its public meeting. However, as indicated above, the ability of the City to require concerns to be addressed through site plan approval, to the satisfaction of residents or Committee, is questionable if not doubtful.
Industry Canada’s CPC-2-0-03 (see Document 1) stipulates that all proponents of new communication towers 15 metres in height or greater must contact the land use authority and submit to the process the municipality has put in place for reviewing proposals for new communication towers, and undertake public notification. Pursuant to CPC-2-0-03 a proponent must discuss site options with the City and address all reasonable and relevant concerns that have been identified by both the City and the public, and receive concurrence from the municipality.
Under CPC-2-0-03 proponents must follow the City’s public consultation process as set out in its process for the review of new communication towers. Where a municipality does not have a review process, or its process is silent with respect to public consultation, proponents must follow Industry Canada’s default public consultation process, as outlined in CPC-2-0-03. If a municipality’s process explicitly excludes a type of development from public consultation, or the development is excluded under CPC-2-0-03, Industry Canada does not require public consultation. Under the City’s current process, public consultation is not undertaken.
The following additional information is provided:
Ontario Building Code
As the towers are federally regulated, these are not subject to the Ontario Building Code and accordingly, the municipality is not able to require the owner of the tower to submit a building permit application for its construction and installation, no matter the size. Should a building that houses the equipment for the tower have a surface area of greater than 10 square meters, a building permit, for the construction of the building only, is required.
Some tower owners submit a building permit application for a tower and/or the accessory building even though these are not required, as a courtesy and for obtaining code advice. The municipality in this case is only able to provide comments which the applicant may or may not choose to incorporate into their proposal.
Towers that are attached to a building or installed atop a building are subject to the building permit process but again, the municipality is not able to dictate any standards regarding the tower itself, and can only direct the applicant vis a vis the implications of the installation to the building’s structure itself.
Response to be listed on the Planning and Environment Committee
Agenda of 25 May 2010.
Industry Canada CPC-2-0-03 - Radiocommunication and Broadcasting Antenna Systems
1. Introduction
Radiocommunication and broadcasting services
are important for all Canadians and are used daily by the public, safety and
security organizations, government, wireless service providers, broadcasters,
utilities and businesses. In order for radiocommunication and broadcasting services
to work, antenna systems including masts, towers, and other supporting
structures are required. There is a certain measure of flexibility in the
placement of antenna systems which is constrained to some degree by: the
need to achieve acceptable coverage for the service area; the availability of
sites; technical limitations; and safety. In exercising its mandate, Industry
Canada believes that it is important that antenna systems be deployed in a
manner that considers the local surroundings.
Section 5 of the Radiocommunication
Act
states that the Minister may, taking into account all matters the Minister
considers relevant for ensuring the orderly development and efficient operation
of radiocommunication in Canada, issue radio authorizations and approve each
site on which radio apparatus, including antenna systems, may be located.
Further, the Minister may approve the erection of all masts, towers and other
antenna-supporting structures. Accordingly, proponents must follow the process
outlined in this document when installing or modifying an antenna system. Also,
the installation of an antenna system or the operation of a currently existing
antenna system that is not in accordance with this process may result in its
alteration or removal and other sanctions against the operator in accordance
with the Radiocommunication Act.
The requirements of this document apply to
anyone (referred to in this document as the proponent) who is planning to
install or modify an antenna system regardless of the type of installation or
service. This includes, amongst others, Personal Communications Services (PCS) and cellular, fixed
wireless, broadcasting, land-mobile, licence-exempt and amateur radio
operators. As well, parts of this process contain obligations that apply to
existing antenna system operators.
This document outlines the process that must
be followed by proponents seeking to install or modify antenna systems. The
broad elements of the process are as follows:
1.
Investigating sharing or using existing infrastructure
before proposing new antenna-supporting structures.
2.
Contacting the land-use authority (LUA) to determine local
requirements regarding antenna systems.
3.
Undertaking public notification and addressing relevant
concerns, whether by following local LUA requirements or Industry
Canada's default process, as is required and appropriate.
4.
Satisfying Industry Canada's general and technical
requirements.
It is Industry Canada's expectation that
steps (2) to (4) will normally be completed within 120
days.
Some proposals may be excluded from certain elements of the process (see
Section 6). It is Industry Canada's expectation that all parties will carry out
their roles and responsibilities in good faith and in a manner that respects
the spirit of this document.
There are a number of points in the processes
outlined in this document where parties must contact Industry Canada to
proceed. Further, anyone with any question regarding the process may contact
the local Industry Canada office1 for
guidance. Based on a query by an interested party, Industry Canada may request
parties to provide relevant records and/or may provide direction to one or more
parties to undertake certain actions to help move the process forward.
3. Use of Existing
Infrastructure (Sharing)
This section outlines the roles of proponents
and owners/operators of existing antenna systems. In all cases, parties should
retain records (such as analyses, correspondence and engineering reports)
relating to this section.
Before building a new antenna-supporting
structure, Industry Canada requires that proponents first explore the following
options:
·
consider sharing an existing antenna system, modifying or
replacing a structure if necessary;
·
locate, analyze and attempt to
use any feasible existing infrastructure such as rooftops, water towers etc.
Proponents are not normally expected to build
new antenna-supporting structures where it is feasible to locate their antenna
on an existing structure, unless a new structure is preferred by land-use
authorities.
Owners and operators of existing antenna
systems are to respond to a request to share in a timely fashion and to
negotiate in good faith to facilitate sharing where feasible. It is anticipated
that 30 days is reasonable time for existing antenna system owners/operators to
reply to a request by a proponent in writing with either:
·
a proposed set of reasonable terms to govern the sharing
of the antenna system; or
·
a detailed explanation of
why sharing is not possible.
4. Land-use Authority and
Public Consultation
Contacting the Land-use
Authority
Proponents must always contact the applicable
land-use authorities to determine the local consultation requirements unless
their proposal falls within the exclusion criteria outlined in Section 6. If
the land-use authority has designated an official to deal with antenna systems,
then proponents are to engage the authority through that person. If not,
proponents must submit their plans directly to the council, elected local
official or executive. Proponents are expected to establish initial formal
contact with the land-use authority in writing in order to mark the official
commencement of the 120-day consultation process.
Proponents should note that there may be more
than one land-use authority with an interest in the proposal. Where no
established agreement exists between such land-use authorities, proponents must,
as a minimum, contact the land-use authority(ies) and/or neighbouring land-use
authorities located within a radius of three times the tower height, measured
from the tower base or the outside perimeter of the supporting structure,
whichever is greater. As well, in cases where proponents are aware that a
potential Aboriginal or treaty right or land claim may
be affected by the proposed installation, they must contact Industry Canada in
order to ensure that the requirements for consultation are met.
Following the Land-use
Authority Process
Proponents must follow the land-use
consultation process for the siting of antenna systems, established by the
land-use authority, where one exists. In the event that a land-use authority's
existing process has no public consultation requirement, proponents must then
fulfill the public consultation requirements contained in Industry Canada's
Default Public Consultation Process (see Section 4.2). Proponents are not required
to follow this requirement if the LUA's established process
explicitly excludes their type of proposal from consultation or it is excluded
by Industry Canada's criteria. Where proponents believe the local consultation
requirements are unreasonable, they may contact the local Industry Canada
office in writing for guidance.
Broadcasting Undertakings
Applicants for broadcasting undertakings are
subject to Canadian Radio-television and Telecommunications (CRTC) licensing processes in
addition to Industry Canada requirements. Although Industry Canada encourages
applicants to consult as early as practical in the application process, in some
cases it may not be prudent for the applicants to initiate public and
municipal/land-use consultation before receiving CRTC approval, as application
denial by the CRTC would result in unnecessary work for all
parties involved. Therefore, assuming that the proposal is not otherwise
excluded, broadcasting applicants may opt to commence land-use consultation
after having received CRTC approval. However, broadcasting applicants
choosing this option are required, at the time of the CRTC application, to notify the
land-use authority with a Letter of Intent outlining a commitment to conduct
consultation after receiving CRTC approval. If the land-use
authority raises concerns with the proposal as described in the Letter of
Intent, applicants are encouraged to engage in discussions with the land-use
authority regarding their concerns and attempt to resolve any issues. See
Broadcasting Procedures and Rules, Part 1 (BPR-1), for further details.
4.1 Land-use Authority
Consultation
Industry Canada believes that any concerns or
suggestions expressed by land-use authorities are important elements to be considered
by proponents regarding proposals to install, or make changes to, antenna
systems. As part of their community planning processes, land-use authorities
should facilitate the implementation of local radiocommunication services by
establishing consultation processes for the siting of antenna systems.
Unless the proposal meets the exclusion
criteria outlined in Section 6, proponents must consult with the local land-use
authority(ies) on any proposed antenna system prior to
any construction with the aim of:
·
discussing site options;
·
ensuring that local processes related to antenna systems
are respected;
·
addressing reasonable and relevant concerns (see Section
4.2) from both the land-use authority and the community they represent; and
·
obtaining land-use authority
concurrence in writing.
Land-use authorities are encouraged to
establish reasonable, relevant, and predictable consultation processes2
specific to antenna systems that consider such things as:
·
the designation of suitable contacts or responsible
officials;
·
proposal submission requirements;
·
public consultation;
·
documentation of the concurrence process; and
·
the establishment of
milestones to ensure consultation process completion within 120
days.
Where they have specific concerns regarding a
proposed antenna system, land-use authorities are expected to discuss
reasonable alternatives and/or mitigation measures with proponents.
Under their processes, land-use authorities
may exclude from consultation any antenna system installation in addition to
those identified by Industry Canada's own consultation exclusion criteria
(Section 6). For example, an authority may wish to exclude from public
consultation those installations located within industrial areas removed from
residential areas, low visual impact installations, or certain types of
structures located within residential areas.
4.2 Industry Canada's
Default Public Consultation Process
Proponents must follow Industry Canada's
Default Public Consultation Process where the local land-use authority does not
have an established and documented public consultation process applicable to
antenna siting. Proponents are not required to follow Industry Canada's Default
Public Consultation Process if the land-use authority's established process
explicitly excludes their type of proposal from public consultation or it is
excluded by Industry Canada's criteria (see Section 6). Industry Canada's
default process has three steps whereby the proponent:
1. provides written
notification to the public, the land-use authority and Industry Canada of the
proposed antenna system installation or modification (i.e. public
notification);
2. engages the public and the
land-use authority in order to address relevant questions, comments and
concerns regarding the proposal (i.e. responding to the public); and
3. provides an opportunity to the
public and the land-use authority to formally respond in writing to the
proponent regarding measures taken to address reasonable and relevant concerns
(i.e. public reply comment).
Public Notification
1. Proponents must ensure that
the local public, the land-use authority and Industry Canada are notified of
the proposed antenna system. As a minimum, proponents must provide a
notification package (see Appendix 2) to the local public (including nearby
residences, community gathering areas, public institutions, schools, etc.),
neighbouring land-use authorities, businesses, and property owners, etc.
located within a radius of three times the tower height, measured from the
tower base or the outside perimeter of the supporting structure, whichever is
greater. For the purpose of this requirement, the outside perimeter begins at
the furthest point of the supporting mechanism, be it the outermost guy line,
building edge, face of the self-supporting tower, etc.
2. It is the proponent's
responsibility to ensure that the notification provides at least 30
days
for written public comment.
3. In addition to the minimum
notification distance noted above, in areas of seasonal residence, the
proponent, in consultation with the land-use authority, is responsible for
determining the best manner to notify such residents to ensure their
engagement.
4. In addition to the public
notification requirements noted above, proponents of antenna-supporting
structures that are proposed to be 30 metres or more in height must place a
notice in a local community newspaper circulating in the proposed area.3
Responding to the Public
Proponents are to address all reasonable and
relevant concerns, make all reasonable efforts to resolve them in a mutually
acceptable manner and must keep a record of all associated communications. If
the local public or land-use authority raises a question, comment or concern
relating to the antenna system as a result of the public notification process,
then the proponent is required to:
1. respond to the party in
writing within 14 days acknowledging receipt of
the question, comment or concern and keep a record of the communication;
2. address in writing all
reasonable and relevant concerns within 60
days of
receipt or explain why the question, comment or concern is not, in the view of
the proponent, reasonable or relevant; and
3. in the written communication
referred to in the preceding point, clearly indicate that the party has 21
days
from the date of the correspondence to reply to the proponent's response. The
proponent must provide a copy of all public reply comments to the local
Industry Canada office.
Responding to reasonable and relevant
concerns may include contacting a party by telephone, engaging in a community
meeting or having an informal, personal discussion. Between steps 1 and 2
above, the proponent is expected to engage the public in a manner it deems most
appropriate. Therefore, the letter at step 2 above may be a record of how the
proponent and the other party addressed the concern at hand.
Public Reply Comments
As indicated in step 3 above, the proponent
must clearly indicate that the party has 21
days
from the date of the correspondence to reply to the response. The proponent
must also keep a record of all correspondence/discussions that occurred within
the 21-day public reply comment
period. This includes records of any agreements that may have been reached
and/or any concerns that remain outstanding.
The factors that will determine whether a
concern is reasonable or relevant according to this process will vary but will
generally be considered if they relate to the requirements of this document and
to the particular amenities or important characteristics of the area
surrounding the proposed antenna system. Examples of concerns that proponents
are to address may include:
·
Why is the use of an existing antenna system or structure
not possible?
·
Why is an alternate site not possible?
·
What is the proponent doing to ensure that the antenna
system is not accessible to the general public?
·
How is the proponent trying to integrate the antenna into
the local surroundings?
·
What options are available to satisfy aeronautical
obstruction marking requirements at this site?
·
What are the steps the proponent took to ensure
compliance with the general requirements of this document including the Canadian
Environmental Assessment Act (CEAA), Safety Code 6, etc.?
Concerns that are not relevant include:
·
disputes with members of the public relating to the
proponent's service, but unrelated to antenna installations;
·
potential effects that a proposed antenna system will
have on property values or municipal taxes;
·
questions whether the Radiocommunication
Act,
this document, Safety Code 6, locally established by-laws, other legislation,
procedures or processes are valid or should be reformed in some manner.
The proponent may only commence
installation/modification of an antenna system after the consultation process
has been completed by the land-use authority, or Industry Canada confirms
concurrence with the consultation portion of this process, and after all other
requirements under this process have been met. Consultation responsibilities
will normally be considered complete when the proponent has:
1. concluded consultation
requirements (Section 4.1) with the land-use authority;
2. carried out public
consultation either through the process established by the land-use authority
or the Industry Canada's Default Public Consultation Process where required;
and
3. addressed all reasonable and
relevant concerns.
Concluding Land-use
Authority Consultation
Industry Canada expects that land-use
consultation will be completed within 120 days from the proponent's
initial formal contact with the local land-use authority. Where unavoidable
delays may be encountered, the land-use authority is expected to indicate when
the proponent can expect a response to the proposal. If the authority is not
responsive, the proponent may contact Industry Canada. Depending on individual
circumstances, Industry Canada may support additional time or consider the
land-use authority consultation process concluded.
Depending on the land-use authority's own
process, conclusion of local consultation may include such steps as obtaining
final concurrence for the proposal via the relevant committee, a letter or
report acknowledging that the relevant municipal process or other requirements
have been satisfied, or other valid indication, such as the minutes of a town
council meeting indicating LUA approval. Compliance with
informal city staff procedures, or grants of approval strictly related to
zoning, construction, etc. will not normally be sufficient.
Industry Canada recognizes that approvals for
construction (e.g. building permits) are used by some land-use authorities as
evidence of consultation being concluded. Proponents should note that
Industry Canada does not consider the fact a permit was issued as
confirmation of concurrence, as different land-use authorities have different
approaches. As such, Industry Canada will only consider such approvals as valid
when the proponent can demonstrate that the LUA's process was followed and
that the LUA's preferred method of concluding LUA consultation is through
such an approval.
Concluding Industry
Canada's Default Public Consultation Process
Industry Canada's Default Public Consultation
Process will be considered concluded when the proponent has either:
·
received no written questions, comments or concerns to
the formal notification within the 30-day public comment period; or
·
if written questions,
comments or concerns were received, the proponent has addressed and resolved
all reasonable and relevant concerns and the public has not provided further
comment within the 21-day reply comment period.
In the case where the public responds within
the 21-day reply comment period, the
proponent has the option of making further attempts to address the concern on
its own, or can request Industry Canada engagement. If a request for engagement
is made at this stage, Industry Canada will review the relevant material,
request any further information it deems pertinent from any party and may then
decide that:
·
the proponent has met the consultation requirements of
this process and that Industry Canada concurs that installation or modification
may proceed; or
·
the parties should participate
in further attempts to mitigate or resolve any outstanding concern.
The dispute resolution process is a formal
process intended to bring about the timely resolution where the parties have
reached an impasse.
Upon receipt of a written request, from a
stakeholder other than the general public, asking for Departmental intervention
concerning a reasonable and relevant concern, the Department may request that
all involved parties provide and share all relevant information. The Department
may also gather or obtain other relevant information and request that parties
provide any further submissions if applicable. The Department will, based on
the information provided, either:
·
make a final decision on the issue(s) in question, and
advise the parties of its decision; or
·
suggest the parties enter into an
alternate dispute resolution process in order to come to a final decision.
Should the parties be unable to reach a mutually agreeable solution, either
party may request that the Department make a final decision.
Upon resolution of the issue under dispute,
the proponent is to continue with the process contained within this document as
required.
For the following types of installations,
proponents are excluded from the requirement to consult with the LUA and the public, but must
still fulfill the General Requirements outlined in Section 7:
·
maintenance of existing radio apparatus including the
antenna system, transmission line, mast, tower or other antenna-supporting
structure;
·
addition or modification of an antenna system (including
improving the structural integrity of its integral mast to facilitate sharing),
the transmission line, antenna-supporting structure or other radio apparatus to
existing infrastructure, a building, water tower, etc. provided the addition or
modification does not result in an overall height increase above the existing
structure of 25% of the original structure's height;
·
maintenance of an antenna system's painting or lighting
in order to comply with Transport Canada's requirements;
·
installation, for a limited duration (typically not more
than 3 months), of an antenna system that is used for a special event, or one
that is used to support local, provincial, territorial or national emergency
operations during the emergency, and is removed within 3 months after the
emergency or special event; and
·
new antenna systems, including masts, towers or other
antenna-supporting structure, with a height of less than 15 metres above ground
level.
Individual circumstances vary with each
antenna system installation and modification, and the exclusion criteria above
should be applied in consideration of local circumstances. Consequently, it may
be prudent for the proponents to consult the LUA and the public even though
the proposal meets an exclusion noted above. Therefore, when applying the
criteria for exclusion, proponents should consider such things as:
·
the antenna system's physical dimensions, including the
antenna, mast, and tower, compared to the local surroundings;
·
the location of the proposed antenna system on the
property and its proximity to neighbouring residents;
·
the likelihood of an area being a community-sensitive
location; and
·
Transport Canada marking and lighting requirements for
the proposed structure.
Proponents who are not certain if
their proposed structure is excluded, or whether consultation may still be
prudent, are advised to contact the land-use authority and/or Industry Canada
for guidance.