HomeMy WebLinkAboutPD-187-92 T"F~ C POS~°IO~t OF THE T"Ol~6N F ~ICS1°L.
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General Purpose and Administration Committee
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Tuesday. September 8 1992
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PD- 187-92 Sgr_~~~ ~
Reporf File
LOCATION OF TELECOMMUNICATION TOWERS IN NEWCASTLE
Subject:
H~c~r~rn~nciti~e
It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the following:
1. THAT Report PD-187-92 be received for information purposes;
1. BACKGROUND
1.1 At the General Purpose Administration Committee Meeting held
on October 7, 1991, Committee forwarded the following
resolution;
"THAT the Director of Planning and Development review
and report on an applicant not being required to make
application to amend the zoning by-law prior to
installing a communication tower with a flashing
light."
The focus of this review is threefold. Firstly, we will
examine which government body possesses the jurisdictional
authority to regulate communication towers, secondly the
licensing requirements of these towers will be discusses,
and lastly, an examination of municipal requirements will be
carried out.
2. JURISDICTIONAL AUTHORITY
2.1 Canada's Constitution defines those matters which fall under
federal, provincial or municipal jurisdiction. The
Constitution came into effect in 1867, and the lack of
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REPORT NO. PD- 187-92 PAGE 2
discussion regarding federal jurisdiction with respect to
electronic communications is explicable in terms of the
state of technology in 1867. However, the Constitution Act,
1867, does refer to telegraphs as the primary mode of
communication. According to this Act, the Federal
Government possessed jurisdiction with respect to
telegraphs, hence reflecting the importance of
communications.
2.2 The jurisdictional battle has been fought in the court
system and it is stated in "Canadian Municipalities and the
Regulation of Radio Antennae and Their Support Structures"
by D. Townsend, that in 1931 the Supreme Court of Canada
determined that the Parliament of Canada possesses the
jurisdiction to regulate the character, use and location of
apparatus used for communication purposes. Hence the
federal control over communications and their apparatus' is
exclusive. Therefore, if a municipality was to attempt to
regulate the height, dimensions or the structure itself, of
a communication tower, then these by-laws or regulations
would be ultra wires, that is, beyond the legitimate scope
of the municipality or enacting body.
3. FEDERAL REGULATIONS
3.1 The Erection of a communication tower is regulated by a
three federal departments being; The Federal Department of
Communications, Federal Department of Transportation and the
Canadian Radio Television Communications (CRTC).
3.2 The Federal Department of Communications must review and
approve the tower structure and clearance. They must also
be satisfied that the tower does not interfere with other
electromagnetic signals nationally or internationally.
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REPORT NO. PD- 187-92 PAGE 3
3.3 The Federal Department of Transportation regulates
telecommunication towers for safety reasons. It is a
requirement of this department that lights be placed atop
such structures. Inasmuch as these lights become beacons,
they signify the location of a structure for aviation
purposes. Therefore, the requirement of illuminating the
top of the tower is for reasons of safety.
3.4 The CRTC must review all applications to erect a
communications tower. The exact coordinates of the proposed
tower are obtained and a "priority range impact" analysis is
conducted. This analysis determines whether or not other
communication towers in the immediate area would be affected
in anyway due to the establishment of said communication
tower.
4. MUNICIPAL REQUIREMENTS
4.1 Through the years, Durham Region Planning Department have
interpreted that telecommunication towers are utilities and
that Section 14.2.3 of the 1976 Durham Region Official Plan
applies to the location of these towers. This section
states:
"Notwithstanding any other provision in this Plan to
the contrary, utilities and telephone exchanges serving
their immediate surroundings, fire halls, police
stations, water wells, water storage facilities, water
supply and water pollution control plans, and pumping
stations operated by public agencies, and pipeline
rights-of-way, may be allowed in any land use
designation."
The 1991 Durham Region Official Plan requires all agencies,
boards and commissions which issue licences or have
jurisdiction over utilities to consult with Regional Council
during their licensing processes (Section 5.3.23).
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REPORT NO. PD- 187-92 PAGE 4
4.2 Within the Town of Newcastle Comprehensive Zoning By-law,
84-63, as amended, Section 3.16 states:
"Public Uses
The provisions of this By-law shall not apply to
prohibit the use of any lot or the erection or use of
any building or structure for the purposes of public
services provided by the Corporation of the Town of
Newcastle, any. School Board; or any Public Authority
including any department of the Regional Municipality
of Durham or any Department or Ministry of the
Government of Canada or Ontario, or any Conservation
Authority established by the Government of Ontario,
and, for the purposes of this Section shall include
Ontario Hydro, any telephone, cable television or
telegraph company and any natural gas distribution
system operated by a company distributing gas to the
residents of the Town, which company possesses all the
necessary powers, rights, licences and franchises."
4.3 This provision specifies that telephone, cable television,
or telegraph companies are deemed to be a public service.
Thus according to the above, public services can use any lot
regardless of zoning, for the erection or use of the land or
any building for their operation. In other words, a
rezoning application is not required when a company deemed
to provide a public service, wishes to erect a
communications tower or a structure.
4.4 Staff conducted a brief survey of 11 municipalities to
determine how other municipalities regulate public
utilities, specifically communication towers. All 11
municipalities had provisions within their comprehensive
zoning by-laws. Seven of these municipalities permit the
establishment of public utilities, including communication
towers, on any lands regardless of zone. Four
municipalities permitted these uses on lands adequately
zoned (generally industrial, utility, commercial or
transportation zones).
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REPORT NO. PD- 187-92 PAGE 5
Of all municipalities surveyed, they like Newcastle,
regulate communication towers under Section 41 (Site Plan
Control) in the Planning Act. Site Plan Control provides
the municipality with the ability to regulate the siting of
the structure, landscaping, and obtain valleylands,
easements or road widenings, if required. However, due to
Federal jurisdiction, the height of the tower can not be
regulated by the municipality.
5. CONCLUSION
5.1 All Telecommunication Towers fall under Federal jurisdiction
and local or regional municipalities do not have authority
to prohibit or restrict land use for a federally regulated
tower.
Additionally, municipal planning documents are not required
to recognize these types of facilities. The only control
the Town of Newcastle has on the siting of
telecommunications towers and associated structures is
through Section 41 of the Planning Act, Site Plan Control.
Respectfully submitted, Recommended for presentation
to the Committee
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Franklin Wu, M.C.I.P. Lawrence E. Ko~s~~eff
Director of Planning Chief Adminis~r,~t`ve
and Development Officer
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*Attach
20 August 1992
Interested parties to be notified of Council and Committee's decision:
Mr. M. E. Power
District Director, Toronto
Government of Canada
55 St. Clair Avenue East
Room 909, 9th Floor
TORONTO, Ontario M4T 1M2