Pima County
Pima County currently hosts a discrete number of poles and reservations of 50 sWTF sites.
sWTFs in Pima County are governed by a different law than the City:
A.R.S. Title 11, Chapter 13, Article 1
This chapter is even less restricting than the City’s legislation.
*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. What is not read is not. The best thing to do is to read the law for yourself and regard the plain reading of it.*
It essentially reads that, among some procedural requirements, the County writes an ordinance for the terms under which it would permit a facility, and if the facility meets these terms then the facility shall be approved. In other words, the County can’t deny a permit “for no reason” or a reason made up on the spot, such reasons to deny permits must be those that are codified. 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 County staff when asked to resolve residents’ issues regarding siting, such as incomplete applications, ugliness, property values and facilities that violate federal law:
From: Jennifer Cabrera <Jennifer.Cabrera@pima.gov> on behalf of District3 <District.3@pima.gov>
Sent: Tuesday, May 25, 2021, 10:15 AM
I reached out to our Chief Zoning Inspector, Tom Drzazgowski, for his input on this issue. The State Legislature took away Counties’ ability to regulate small wireless facilities, such as this one.
Here is Mr. Drzazgowski’s response:
“The tower height is 35 feet and meets the exemptions criteria for permitting without neighbor input. When the state legislature passed the law, they removed counties abilities to regulate small wireless facilities. Prior to the change by the state legislature, these sites would have required a conditional use permit with notice to neighbors. After the law was changed, the county was not able to subject these sites to public processes.”
On 04/05/2021 9:06 AM Carla Blackwell <carla.blackwell@pima.gov> wrote:
the state legislature passed laws that prohibit local governments from regulating cell tower facilities in the right of way. Development Services can only review and issue building permits to these private companies if they meet the code standard for the tower structure, traffic control and the electrical connection. The state has much more control and I would suggest that you contact them since they preempted any local control.
County staff, although pressed for a citation, have refused to cite any law that reads the way they say it does other than to say “Chapter 13”.
If you make a complaint and get a response such as this, please reach out to us and we will help you rebut, email action@wiretucson.org
We can assure you, the words “exempt”, “can’t do anything”, or “removes the County’s ability to regulate”, are not contained therein, nor anything to that effect. In fact, the authority to regulate, as listed above and among other things, is expressly preserved:
11-1808. Scope of local authority
A. Subject to this article and applicable federal law, a county may exercise zoning, land use, planning and permitting authority and the county’s police power within the county’s territorial boundaries, including for the installation, modification and replacement of wireless support structures and utility poles.
Contrastingly, the county’s permits read thus:
4:County may require permittee to remove, relocate or underground, at permittee’s sole expense, any of permittee’s facilities that present a potential hazard to the public, that interfere with the public’s use of the public rights-of-way, or are determined by county to be aesthetically undesirable.
Clearly someone somewhere knows that the County reserves its authority to regulate location, hazards and aesthetics.
What’s very interesting is that the City has similarly cried preemption for the past year or more, claiming the same: “can’t do anything”, “hands are tied”.
But right now –500 sites and a thousand angry and dissatisfied residents later– is in the process of drafting a Administrative Utility Manual, in other words, regulations; 51 pages of regulations. 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.
We highly recommend reading this law, it’s very short easy reading, you decide what you think. 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 some officials would recommend. 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/11/01801.htm
AZ.HB2365 (2017) -scroll down halfway to CHAPTER 13 (in black)
https://www.azleg.gov/legtext/53leg/1R/laws/0124.htm
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"