City

City of Tucson

The City of Tucson hosts a discrete number of poles and reservations of about 500 sWTF sites.

sWTFs in the City of Tucson are governed by A.R.S TItle 9 chapter 5 Article 8

A.R.S. Title 9 Chapter 5 Article 8

This article is only marginally more restrictive than is the County’s law.

*We strongly suggest that no one accept any interpretations of preemption laws, including ours. There is a rule in deciding the meaning of preemption laws such as this: No interpretations are to be made, the plain reading of the text is the law; no more no less. The best thing to do is to read the law for yourself and regard the plain reading of it.*

Luckily there are many reasons to deny permits which we can codify, most notably establishing these conditions that we seek to compel (among other things):
1.) No sWTFs in residential zones
2.) Enforce co-location onto nearby existing infrastructure
3.) Such co-located structures within 1000 feet of residences shall operate no higher than -85dBm ERP.
4.) All sWTFs located in commercial zones which are allowed to use power in excess of -85dBm must have evidence of NEPA review when it exceeds 1000W ERP
5.) Fuse box and police fees for overages
6.) Regular testing for compliance, charges for non-compliance. (WART Report Card)
7.) sWTFs MUST be SMALL and aesthetically pleasing (good luck!)

Here are a number of quotes given ad nauseam from City representatives and staff when asked to resolve residents’ issues regarding siting, such as incomplete applications, ugliness, property values and facilities that violate federal

The City has a bad habit of crying preemption. Claiming “can’t do anything” “state legislature removed ability to regulate” etc. But right now the city is drafting a Utility Manual containing 66 pages of regulations. Nothing changed since the law passed in 2017, except that many residents complained. Much of which includes some really great stuff (albeit not nearly enough) such as notifying residents compelling the carrier to have direct discussions with those residents and attractive design requirements that satisfy residents.

The best feature of the Utility Manual is that it requires telecoms to have discussions with residents, the agreement of the residents and provide documentation of such. Review the Utility Manual here

This manual precedes any vote of council on an ordinance to demand it. It’s a backward way to do things, and this method should not be accepted by the public, we can and must do better.

It’s important to note that the city has been wrong before very recently, and is in a process of evolving and still is not to a point where relevant parties have understood the contents of the recent State Law. Post Utility Manual Draft, it is apparent that there always was and is plenty in the City’s power to resolve issues in the best interest of residents, some of which the City had previously outright denied:

“When the legislature passed HB2365, it gave license to telecom providers to freely select locations for their ‘small cell poles’ without any requirement for consultation ahead of time with residents whose homes will be impacted. The Bill prevents cities from compelling any contact with residents. The notice property owners receive is literally the arrival of a back-hoe and trencher in front of their home. At the conclusion of the work, a new 35’ tall cell pole, with a 4’ tall electric meter box and a 5’ tall orange and white PVC ‘warning post’ sit in the Right of Way immediately outside homes throughout residential areas, all over the state.” Steve K.’s March 22, 2021 Newsletter

The evolution is interesting to observe, to say the least. It stands to reason that they still have a way to go in understanding all our rights.

We are still unsure if Council member Kozachik has read the actual law. Last we were notified, Steve was reading and citing Title 11 (governing the county) in his newsletters and worse, a version of a bill that never passed into law. No apparent effort has been made to retract the clearly errant published statements.

He has never cited the law verbatim to our group, or anywhere else to our knowledge. Where is Mike Rankin is in ensuring that Steve at the very least, knows where to find the laws he must uphold?

It has been reported to us by Steve K. that Mike Rankin, the City Attorney among the longest serving & highest paid city employees, is “tired of dealing with 5G groups“.

If you make a complaint and get a response that is insufficient to accommodate your needs, please reach out to us and we will help you rebut, email action@wiretucson.org

We can assure you, The authority to regulate, as listed above (and among other provisions), is not only expressly preserved but required by the state law:

K.  AN AUTHORITY MAY REQUIRE AN APPLICATION UNDER THIS SECTION FOR THE INSTALLATION OF NEW, REPLACEMENT OR MODIFIED UTILITY POLES ASSOCIATED WITH THE COLLOCATION OF SMALL WIRELESS FACILITIES.  AN AUTHORITY SHALL APPROVE AN APPLICATION UNLESS THE AUTHORITY FINDS THAT THE UTILITY POLE FAILS TO COMPLY WITH ANY OF THE FOLLOWING:

1.  APPLICABLE CODES.
2.  LOCAL CODE PROVISIONS OR REGULATIONS THAT CONCERN ANY OF THE FOLLOWING:

(a)  PUBLIC SAFETY.

(b)  OBJECTIVE DESIGN STANDARDS AND REASONABLE STEALTH AND CONCEALMENT REQUIREMENTS.

(c)  UNDERGROUNDING REQUIREMENTS THAT PROHIBIT THE INSTALLATION OF NEW OR THE MODIFICATION OF EXISTING UTILITY POLES OR MONOPOLES IN A RIGHT‑OF‑WAY WITHOUT PRIOR APPROVAL, IF SUCH REQUIREMENTS INCLUDE A WAIVER, ZONING OR ANOTHER PROCESS THAT ADDRESSES REQUESTS TO INSTALL SUCH NEW UTILITY POLES OR MONOPOLES OR MODIFY SUCH EXISTING UTILITY POLES OR MONOPOLES AND DO NOT PROHIBIT THE REPLACEMENT OF UTILITY POLES OR MONOPOLES.

3.  REQUIREMENTS THAT ARE IMPOSED BY A CONTRACT BETWEEN AN AUTHORITY AND A PRIVATE PROPERTY OWNER AND THAT CONCERN DESIGN STANDARDS APPLICABLE TO UTILITY POLES IN THE RIGHT‑OF‑WAY.
4.  THE AUTHORITY’S PUBLIC SAFETY AND REASONABLE SPACING REQUIREMENTS THAT CONCERN THE LOCATION OF NEW UTILITY POLES IN A RIGHT‑OF‑WAY.

L.  AN AUTHORITY SHALL PROCESS APPLICATIONS UNDER SUBSECTION K OF THIS SECTION IN COMPLIANCE WITH APPLICABLE LAW. 

9-598.  General requirements for use of the right‑of‑way

STRUCTURES AND FACILITIES DEPLOYED BY WIRELESS PROVIDERS PURSUANT TO THIS ARTICLE SHALL BE CONSTRUCTED, MAINTAINED AND LOCATED AS TO NOT OBSTRUCT, ENDANGER OR HINDER THE USUAL TRAVEL OR PUBLIC SAFETY ON THE RIGHT‑OF‑WAY,

9‑596.  Scope of local authority

A.  SUBJECT TO THIS ARTICLE AND APPLICABLE FEDERAL LAW, AN AUTHORITY MAY EXERCISE ZONING, LAND USE, PLANNING AND PERMITTING AUTHORITY AND THE AUTHORITY’S POLICE POWER WITHIN THE AUTHORITY’S TERRITORIAL BOUNDARIES, INCLUDING FOR THE INSTALLATION, MODIFICATION AND REPLACEMENT OF WIRELESS SUPPORT STRUCTURES AND UTILITY POLES

We highly recommend reading this law, it’s very short easy reading, you decide what you think. We’ve taken the liberty of extracting the highlights, which will prove useful in communications with the City. While any preemption of local authority is wrong and we support the repeal of the legislation, what we have is workable and the County is refusing to do the bare minimum.

Careful now, don’t go googling “HB.2365”, like Steve K has recommended in his newsletters. That would land you in a heap of trouble, as one can easily find
a.) a version of a bill that never passed into law
b.) a law that is not relevant to your locality
c.) a bill for another topic entirely as HB.2365 revising the states’ WTF standards was passed in 2017. AZ.HB.2365 2021 is about criminal offenses.

So here it is from the source:

A.R.S. -Click “Next Section” as you read
https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/9/00591.htm

AZ.HB2365 (2017) -from beginning to CHAPTER 13 (in black)
https://www.azleg.gov/legtext/53leg/1R/laws/0124.htm1R/laws/0124.hvtm

Reading the bill can be simpler, as it is all located all on one page. To be certain that it is the correct version of the bill that was signed into law, it will read at the very end: "APPROVED BY THE GOVERNOR"