Following recent action by the Texas State Senate, the city of Denison is updating a city ordinance regarding cellphone towers and network nodes. Earlier this year, Texas legislators approved Texas Senate Bill 1004, which will allow telecommunications providers to build communications poles within public right of way and limits how much cities can charge for this use.
The amendment was unanimously approved by the city council. This comes nearly six months after the Denison Zoning Board of Appeals unanimously rejected an appeal by Mobilitie, a telecommunication infrastructure company, related to two communications towers that were constructed within the public right of way. One of these towers was placed just across the street from Denison City Hall but was taken down before the appeal.
“The Senate bill that passed really favors telecommunications companies and takes away a historic right for cities to control what goes in the public right of way,” City Manager Jud Rex said.
Senate Bill 1004 was passed in early June and requires local municipalities and cities to allow cellular antennae, towers and equipment to be placed within the public right of way. The bill also limits how much a city can charge each year for land use related to each tower. Rex estimated that the city will receive only about $250 each year for each tower.
In documents for the meeting, city staff said the amendment was necessary for the city “in order to meet its fiduciary duty to the citizens of the city.” Additionally, the amendment gives wireless network providers guidance to assist “in the timely, efficient, safe and aesthetically pleasing installation of technologically competitive equipment.”
Despite the changes, Rex said the city still has some control over where the towers can be placed and the city can require certain design features. Among these features, the city can require that the equipment on a tower be concealed and lines running down tower be sheathed. The city can also set distance requirements between nodes, Rex said. In response to this ability, the city has approved a design manual to offer an overview of these requirements.
However, the greatest control comes from the city’s ability to restrict the towers from certain protected areas. The ordinance amendment names several of these districts as protected, including the downtown historic area, the city’s two tax increment reinvestment zones, city parks and the city’s highway overlay districts. Rex said the city maintains overlay districts, which guide development on many of the city’s major roadways, along U.S. Highway 75, Morton Street, Austin Avenue and Spur 503.
Rex said other laws may also supersede the requirements under the bill. As an example, if the installation of a tower would cause a sidewalk to no longer meet the requirements of the Americans with Disabilities Act, the city can deny the placement.
While Rex maintained that the bill ultimately takes away some control from cities, he added that the language of the bill also reflects recent changes in the technology. In recent years, the telecommunications equipment has become smaller and less of an eyesore than previous years.
However, he added that these changes in technology also can be a negative. As technology continues to change and shift, the city will be forced to be reactive rather than proactive and working with telecommunications companies in the future, he said.
“The big take away for the city is that Denison no longer has control of the right of way,” he said.
The city of Denison is not alone in its opposition to the bill and new legislation. The Texas Municipal League, which represents cities across the state including both Sherman and Denison, also opposed the bill saying it was unnecessary. In a news release issued in opposition, the league noted that many cities already have licensing agreements in place.
“The Houston rental rate is at least $2,500 per node, and the bill would reduce that to $250 per node, with application fees capped at $100,” TML said in a news release. “The estimated future financial losses to the city taxpayers are in the hundreds of millions of dollars. The price per node in the current bill is a taxpayer subsidy to the telecom industry, as are the capped application fees.”
TML also had an issue with the use of traffic, light and utility poles for telecommunication purposes. The league argued that the use of traffic control devices for telecommunications providers presented a real safety issue.
Meanwhile, officials with Sherman said the city is currently in a holding pattern to assess what impacts these new changes may bring.
“The Texas Municipal League — of which we are a part — was vehemently against the bill prior to passage, saying the legislation would handcuff cities’ ability to control how this technology was rolled out,” Sherman Community and Support Services Manager Nate Strauch said in an email last month. “But since those lobbying efforts failed to stop SB 1004 on its way to the Governor’s desk, all that cities like Sherman can do now is sit back and wait to see how and when the private sector will take advantage of the new freedoms they’ve been afforded.”