[HISTORY: Adopted by the Town Council of
the Town of Bethany Beach 11-18-2005 by Ord. No. 400 (Ch. 239 of the 1992 Code);
amended in its entirety 1-21-2011 by Ord. No. 461. Subsequent amendments
noted where applicable.]
Article I Personal Wireless Services Facilities
§ 525-1 Purpose.
§ 525-2 Definitions.
§ 525-3 Use regulations.
§ 525-4 Standards.
§ 525-5 Standards for special exceptions and conditional uses.
§ 525-6 Submission of plans.
§ 525-7 Exemptions.
In order to comply with wireless communications
systems and the Federal Telecommunications Act of 1996, the following
regulations shall apply:
§ 525-1 Purpose.
The purpose of this article and the standards
established herein is to govern the use, construction and siting of
personal wireless services so as to:
A.
Accommodate the need for personal wireless services
facilities while regulating their location and number in the Town
and to ensure compliance with all applicable governmental regulations.
B.
Minimize any adverse and visual effects of personal
wireless services facilities antenna(s) and antenna support structures
through proper design, siting, and screening.
C.
Ensure the structural integrity of the antenna support
structure through compliance with applicable industry standards and
regulations.
D.
Encourage the joint use of any new antenna support
structures to reduce the number of such structures needed in the future.
E.
Promote the health, safety, and welfare of the residents
of the Town.
§ 525-2 Definitions.
For the purpose of this article, the following
definitions shall apply:
- ANTENNA
- A device used to collect and/or transmit personal wireless services or radio signals.
- ANTENNA SUPPORT STRUCTURE
- Any pole, telescope mast, tower, tripod, lattice construction steel structure or any other structure which supports or has attached to it, an antenna(s).
- ANTENNA SUPPORT STRUCTURE HEIGHT
- The vertical distance measured from the base of an antenna support structure at grade to the highest point of the structure, including any antenna(s) affixed thereto. If the antenna support structure is on a sloped grade, then the average between the highest and lowest grades shall be used in calculating the antenna support structure height.
- LAND SITE
- A tract or parcel of land that contains a personal wireless services facility and associated parking, and may include other uses associated with and ancillary to personal wireless services transmission.
- PERSONAL WIRELESS FACILITIES
- Facilities for the provision of wireless services.
- PERSONAL WIRELESS SERVICES
- Commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services.
- UNLICENSED WIRELESS SERVICE
- The offering of telecommunications services using duly authorized devices which do not require individual licenses, but does not mean the provision of direct-to-home satellite services.
§ 525-3 Use regulations. [1]
Personal wireless services facilities may be
erected in the Town subject to the following location restrictions:
§ 525-4 Standards.
All applicants seeking to construct, erect,
relocate or alter a personal wireless services facility shall comply
with this chapter and shall demonstrate to the Town Council the following:
A.
Antenna location. The applicant shall demonstrate,
using accepted technological documentary evidence, that the antenna
and/or antenna support structure must be located where proposed in
order to satisfy its function within the applicants regional plan
or grid system. An accurate description of each relevant "area of
service" shall be included in such evidence.
B.
Antenna height.
(1)
The applicant shall demonstrate that the antenna(s)
and antenna support structure must be at the height proposed in order
to satisfy their function in the applicant's regional plan or grid
system. The applicant shall also demonstrate that the antenna height
requested is not in excess of the minimum required to function satisfactorily.
(2)
An antenna that is attached to a support structure
such as telephone electric or utility pole, existing personal wireless
services, cellular communications or personal communications services
tower, water tower or other similar tall structure, together with
any antenna support structure, shall not exceed the height of the
existing structure by more than 10 feet.
(3)
An antenna that is not mounted on an existing antenna
support structure shall not have an antenna height or tower in excess
of the height restrictions in the zoning district in which it is located.
C.
D.
Antenna support structure safety.
(1)
The applicant shall demonstrate that the proposed
antenna(s) and antenna support structure are designed and constructed
in accordance with all applicable national building standards for
such facilities and structures, including but not limited to the standards
developed by the Electronics Industry Association, Institute of Electrical
and Electronics Engineers, Telecommunications Industry Association,
American National Standards Institute and Electrical Industry Association.
The applicant shall demonstrate that the proposed personal wireless
services facility is designed in such a manner so that no part of
the facility will attract/deflect lighting onto adjacent properties.
(2)
When an antenna(s) is to be located on an existing
structure and the general public has access to the structure on which
the antenna(s) is to be located, the applicant shall provide engineering
details showing what steps have been taken to prevent microwave binding
to wiring, pipes, and other metals.
E.
Safety to surrounding properties/other persons. The
applicant shall demonstrate that the proposed antenna and antenna
structure, and entire personal wireless services facility, are safe
and are in accordance with applicable Town codes, and the surrounding
properties will not be negatively affected by antenna support structure
failure, falling ice or debris. All antenna support structures shall
be fitted with anti-climbing devices, as comply with industry standards.
F.
Fencing. A security fence shall be required around
the antenna support structure and other equipment, unless the antenna(s)
is mounted on an existing structure. The security fence shall be a
maximum of eight feet in height and maintained in proper condition.
No barbed wire or razor wire fencing will be permitted.
G.
Licensing and applicable regulations. If the applicant
is a commercial personal wireless services company, it must demonstrate
that it is licensed by the Federal Communications Commission (FCC)
and provide the Town Manager with copies of all FCC applications,
permits, approvals, licenses, and site inspection records. All such
information shall be accompanied by a certification signed by two
officers of the applicant, providing that, after due inquiry, the
information being supplied is true and correct to the best of their
knowledge, information and belief. The applicant shall also provide
the Town Manager with copies of all applicable federal regulations
with which it is required to comply and a schedule of estimated FCC
inspections.
H.
Proof of Inspection. The owner of an antenna support
structure shall submit to the Building Inspector proof of the annual
inspection of the antenna support structure and antenna(s) by an independent
professional engineer as required by the ANSI/EIA/TIA-222-E Code.
Based upon the results of such an inspection, the Town Council may
require removal or repair of the personal wireless services facility.
I.
Inspection by engineer. A structural engineer registered in Delaware shall attest to the proposed antenna support structure's ability to meet the structural standards of Subsection D preceding, herein, or those offered by either the Electrical Industries Association or Telecommunications Industry Associations and certify the proper attachment of antenna(s) and proper construction of the foundation and the erection of the antenna support structure.
J.
Fully automated/required parking. The personal wireless
services facility shall be fully automated and not require any maintenance
workers to be present on a full-time basis. Adequate parking shall
be required for all maintenance workers, with a minimum of two spaces
provided. All parking spaces shall be constructed to conform to applicable
stormwater management regulations.
K.
Site plan. A full site plan shall be required for all personal wireless services facilities, showing all existing and proposed structures and improvements, including but not limited to the antenna(s), antenna support structure, building, fencing, landscape, buffering, and ingress and egress; the plan shall include all necessary elevations and photo overlays demonstrating the illustrated appearance of all facilities against actual photographic backgrounds in each of the four directions. The plan shall comply with Chapter 410, Subdivision and Land Development, as amended.
L.
Signs. No signs or other structure shall be mounted
on the personal wireless services facility, except as may be required
by the FCC, FAA or other governmental agencies.
M.
Lighting. Antenna support structures shall meet all
Federal Aviation Administration (FAA) regulations. No antenna support
structure may be artificially lighted except when required by the
FAA or other governmental authority. When lighting is required by
the FAA or other governmental authority, it shall be oriented inward
so as not to project onto surrounding properties. The applicant shall
promptly report any outage or malfunction of FAA-mandated lighting
to the appropriate governmental authorities.
N.
Soil report. In the case of newly constructed antenna
support structure, a soil report complying with the standards of Geotechnical
Investigations, ANSI/EIA-222E, as amended, shall be submitted to the
Building Inspector to document and verify the design specifications
of the foundation for the antenna support structure, and anchors for
the guy wires, if used.
O.
Visual appearance. Antenna support structures shall
be painted silver, or have a galvanized finish or may be painted green
up to the height of nearby trees to disguise its appearance. All personal
wireless services facilities shall be aesthetically and architecturally
compatible with the surrounding environment and shall maximize the
use of like facades to blend with the existing surroundings and neighboring
buildings to the greatest extent possible.
P.
Additional developmental regulations.
(1)
Sole use on a lot. A personal wireless services facility
is permitted as a sole use on a lot subject to the minimum lot area
and yards complying with the requirements for the applicable zoning
district, except as modified herein.
(2)
Combined with another use. A personal wireless services
facility may be permitted on a property with an existing use, or on
a vacant parcel in combination with another municipal or other use
subject to the following conditions.
(a)
The existing use on the property must be a permitted
use in the applicable district or any lawful nonconforming use, and
need not be affiliated with the personal wireless services facility.
(b)
Minimum lot area: minimum lot area for a land
site shall be 3,600 square feet.
(c)
Where the personal wireless services facility
is located on a property with another principal use, vehicular access
to the personal wireless services facility shall, whenever feasible,
be provided along the circulation driveways of the existing use. The
applicant shall present documentation that the owner of the property
has granted an easement for the proposed facility.
(3)
Combined with an existing structure. An antenna(s)
may be attached to an existing structure or building subject to the
condition that the vehicular access to the personal wireless services
facility shall not interfere with the parking or vehicular circulation
on the site for the principal use.
Q.
Maintenance. The personal wireless services facility
shall be maintained and kept in good repair as required by Federal
Law H.R. 6180/S. 2882, the Telecommunications Authorization Act of
1992, including amendments to Sections 303(q) and 503(b)(5) of the
Communications Act of 1934 and all Town ordinances not inconsistent
therewith. Every year, the facility owner shall certify to the Town
of the structural integrity of the personal wireless services facility.
R.
Landscaping for newly constructed antenna support
structures. The following landscaping shall be required to screen
as much of a newly constructed antenna support structure, the fence
surrounding the newly constructed antenna support structure, and any
other new-constructed ground-level features (such as a building) as
possible and, in general, soften the appearance of the personal wireless
services facility.
(1)
The disturbance of the existing topography shall be
minimized, unless such disturbance would result in less visual impact
of the facility on the surrounding area.
(2)
Existing vegetation on and around the land site shall
be preserved to the greatest extent possible. Any tree or vegetative
element which dies must be replaced within one month, ground permitting.
(3)
An evergreen screen shall be required to surround
the antenna support structure. The screen can either be a hedge (planted
three feet on center maximum) or a row of evergreen tress (planted
10 feet on center maximum). The evergreen screen shall be a minimum
of six feet at planting, and shall grow to a minimum of 15 feet at
maturity.
(4)
Where the personal wireless services facility abuts
residentially developed land, a residential zoning district, public
land, or streets, the land site perimeter shall be landscaped with
at least one row of deciduous trees, not less than 3 1/2 inches
in caliper, spaced not more than 30 feet apart, on center, and within
25 feet of the land site boundary, as well as at least one row of
evergreen trees or shrubs, at least 14 feet high when planted and
spaced not more than 15 feet apart and within 40 feet of the land
site boundary.
S.
Notification. All applicants seeking to construct,
erect, relocate, or alter a personal wireless services facility shall
demonstrate that all property owners within a two-hundred-foot radius
of the proposed antenna support structure have been provided written
notice of the applicant's intent to construct, erect, relocate or
alter a personal wireless services facility. Such notice shall also
contain the date and time of the hearing before the Town of Bethany
Beach Town Council where the applicant will appear and demonstrate
compliance with the provisions of this chapter.
T.
Abandonment/height reduction. It being the legislative
finding of the Town Council of the Town of Bethany Beach that the
personal wireless services facilities which have been abandoned present
a danger to the health, safety and welfare of the general public,
all abandoned structures shall be removed no more than 90 days after
abandonment. The owner shall be responsible for any demolition costs
related to the facilities. If in the future, technology is developed
that the state-of-the-art for such facilities permits antenna(s) of
a lesser height, the facilities owner shall be required to reduce
the height of its antenna to the lower height that the new technology
permits within one year of written notification of the Town.
U.
Annual report. In January of each year, the owner
of any personal wireless services facility shall pay the registration
fee established from time to time by the resolution of the Town Council
and shall provide the Town Manager with the following information:
(1)
The name and address of the owner of the personal
wireless services facility and telephone number of the appropriate
contact person in case of emergency.
(2)
The name and address of the property owner on which
the personal wireless services facility is located.
(3)
The location of the personal wireless services facility
by geographic coordinates, indicating the latitude and longitude.
(4)
Output frequency of the transmitter.
(5)
The type of modulation, digital format and class of
service.
(6)
Antenna(s) gain.
(7)
The certified and effective radiated power of the
antenna(s).
(8)
The number of transmitters, channels and antenna(s).
(9)
A copy of the owner's or operator's FCC authorization.
(10)
Antenna(s) height.
(11)
Power input to the antenna(s).
(12)
Distance to the nearest base station.
(13)
A certification signed by two officers of the
applicant that the personal wireless services facility is continuing
to comply with this chapter and all applicable governmental regulations.
V.
Federal Communications Commission License/certificate
of insurance. The applicant shall submit a copy of its current Federal
Communications Commission License; the name, address and emergency
telephone number for the operator of the personal wireless services
facility; and a certificate of insurance evidencing general liability
coverage in the minimum amount of $1,000,000 per occurrence covering
the communications tower and communications antenna.
§ 525-5 Standards for special exceptions and conditional uses.
A.
Burden of proof. The applicant shall have the duty
of presenting evidence and the duty of presenting all studies and
materials required herein, as well as the additional burden of persuading
the Board of Adjustment or Town Council, as appropriate, that:
B.
Designed for co-location; notice to other users. In
order to reduce the number of antenna support structures needed in
the Town in the future, the proposed antenna support structure shall
also be required to accommodate, where possible, other users, including
other personal wireless services, cellular communication and personal
communication service provider companies, and local police, fire,
and ambulance companies. Applicants shall provide documentary evidence
that all other authorized users have been contacted by the applicant
with an offer of co-location on the applicant's proposed antenna support
structure.
C.
Review of site alternatives for new structures. If
the applicant proposes to build an antenna support structure [as opposed
to mounting the antenna(s) on an existing structure], the applicant
shall demonstrate with documentary evidence that it has contacted
the owners of structures of suitable location and height (such as
smoke stacks, water towers and buildings housing existing antenna
support structures) within a one-mile radius of the site proposed,
requested for permission to install the antenna(s) on those structures,
and has been denied. An application to construct a new antenna support
structure will be denied if the applicant has not made a good faith
effort to mount the antenna(s) on an existing structure as set forth
in this section.
§ 525-6 Submission of plans.
All plans for the erection of personal wireless
services facilities shall be submitted to and be reviewed by the Town
of Bethany Beach Planning and Zoning Commission[1] for compliance with Chapter 410, Subdivision and Land Development, with the exception of new antenna(s) attached to existing structures in municipal use sites. The Building Inspector and Solicitor shall review the plans for compliance with this chapter and other applicable local regulations and evidence of review and approval of other agencies with jurisdiction over such facilities. The cost of review fees shall be reimbursed to the Town by the owner. These fees shall be in addition to any applicable Town building permit fees.
[1]
Editor's Note: Ordinance No. 527, adopted 11-18-2016, established
the Planning and Zoning Commission. Pursuant to this ordinance, references
throughout the Code to the “Planning Commission” have
been revised to the “Planning and Zoning Commission.”
§ 525-7 Exemptions.
Any federally licensed amateur radio operator may apply to the
Building Inspector and be approved by the Town Council for an exemption
from any provision of this chapter upon a showing that strict conformance
therewith would interfere with the operator's ability to receive or
transmit signals or would impose unreasonable costs on the amateur
radio operator. Such application must be accompanied by:
A.
Proof of
a current federal license for an amateur radio operator.
B.
Site plans
drawn to scale and dimensions showing the proposed location of the
antenna.
C.
Manufacturer's
specifications of the antenna structure.
D.
Details
of footings and supports.
E.
If applicable,
details of attaching or affixing the antenna to the roof.
F.
Elevations
drawn to scale and dimensioned so as to fully describe the proposed
structure.