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I In accordance with LDR sections 914.07(2)(g) and 902.07, the Board of County Commissioners is to consider the appeal and either uphold or overturn the Planning and Zoning Commission's decision. ANALYSIS: The request for after -the -fact approval was trade by 21' Century via a minor site plan application that was reviewed by the TRC (Technical Review Committee) on February 10, 1999. Subsequently, over a period of several months, staff from the county planning division, telecommunications division, and the attorney's office discussed various alternatives and proposals with 21' Century, its attorneys and its design professional. Those alternatives include meeting existing county LDR tower regulations or seeking a change to the county tower regulations. The applicant -has chosen to apply for after -the -fact approval under the existing county tower regulations, although the applicant's presentation to the Planning and Zoning Commission was more appropriate for an LDR amendment request than an appeal based on the existing LDRs. It is staff s position that the unpermitted tower construction performed to date has no bearing on review of the application and that the tower request should be reviewed as if the subject site is vacant. Therefore, in accordance with the approach of the county's tower LDRs, staff directed 21' Century to assess the feasibility of locating its antennas in off-site areas where commercial towers exist and are allowed or in areas where the zoning allows new, non -camouflaged towers. Staff also explored technical issues with the applicant regarding justification for the tower's function and height, and legal issues regarding constraints on local regulating authority. These issues are summarized below. 1. Local Regulatory Authority At the time of TRC review, the County Attorneys Office reviewed relevant statutes and case law, and concluded that the county has the authority to control the siting (location), construction, and modification of communication towers, so long as local regulations do not unreasonably discriminate among telecommunication providers of the same services (e.g. TV broadcast providers) or prohibit or have the effect of prohibiting the provision of wireless communications services (see attachment #2). Staff's conclusion is that the LDRs reasonably provide areas (sites) where antennas may be located (existing structures, retro- ftttedlrebuilt structures, new towers). At this time, 21' Century is challenging before the FCC the county's authority to regulate 2191 Century's type of service and the county's tower LDRs. At the same time, 2V Century is contesting the Planning and Zoning Commission's determination that its proposal does not constitute a "camouflaged" tower under the existing LDRs. 2. The Proposed Tower's Function 21" Century contends that, to effectively compete with cable TV providers, it must provide its customers over the air "local" (e.g. Orlando and West Palm Beach) TV broadcasts as well as broadcasts it can pull off of satellites. At some point in time, these "local" broadcasts may be available via satellite. Currently, local broadcasts are available by satellite in major markets. If these "local" broadcasts were available via satellite, rather than over the air only, then there would be no need for a tall tower, and lower level satellite dishes could be used. Staff, however, accepts 21" Century's assertion that, for now, certain "local" broadcasts can be received only over the air via antennas. APRIL 4, 2000