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HomeMy WebLinkAboutPD-187-92 T"F~ C POS~°IO~t OF THE T"Ol~6N F ~ICS1°L. DN: CABLE.GPA General Purpose and Administration Committee beefing: File ~ Tuesday. September 8 1992 D~fe: Fees. # 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 ....2 1 P~P~~ ~ ~ TIVIS IS PRIIliEU =CYCL[U PAPCfi 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. ....3 y, '~E I 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). ....4 --Y , ; ~ '_m L' 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). ....5 -f ~ ` } 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 ~ .a. _ j ~ r Er _ ~rv Franklin Wu, M.C.I.P. Lawrence E. Ko~s~~eff Director of Planning Chief Adminis~r,~t`ve and Development Officer HB*FW*cc *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