[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
In order to comply with wireless communications systems and the Federal Telecommunications Act of 1996, the following regulations shall apply:
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:
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.
Minimize any adverse and visual effects of personal wireless services facilities antenna(s) and antenna support structures through proper design, siting, and screening.
Ensure the structural integrity of the antenna support structure through compliance with applicable industry standards and regulations.
Encourage the joint use of any new antenna support structures to reduce the number of such structures needed in the future.
Promote the health, safety, and welfare of the residents of the Town.
For the purpose of this article, the following definitions shall apply:
- 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.
Personal wireless services facilities may be erected in the Town subject to the following location restrictions:
Attachment of facilities to existing antenna(s) support structures.
Erection of new antenna support structures and personal wireless services facilities.
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:
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.
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.
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.
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.
Setbacks from base of antenna support structure.
The minimum distance between the base of any guy wire anchors and any property line or right-of-way line shall equal 40% of the proposed antenna support structure height.
Antenna support structure safety.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Additional developmental regulations.
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.
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.
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.
Minimum lot area: minimum lot area for a land site shall be 3,600 square feet.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
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.
The name and address of the property owner on which the personal wireless services facility is located.
The location of the personal wireless services facility by geographic coordinates, indicating the latitude and longitude.
Output frequency of the transmitter.
The type of modulation, digital format and class of service.
The certified and effective radiated power of the antenna(s).
The number of transmitters, channels and antenna(s).
A copy of the owner's or operator's FCC authorization.
Power input to the antenna(s).
Distance to the nearest base station.
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.
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.
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:
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.
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.
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 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.
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.”
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:
Proof of a current federal license for an amateur radio operator.
Site plans drawn to scale and dimensions showing the proposed location of the antenna.
Manufacturer's specifications of the antenna structure.
Details of footings and supports.
If applicable, details of attaching or affixing the antenna to the roof.
Elevations drawn to scale and dimensioned so as to fully describe the proposed structure.