[HISTORY: Adopted by the Common Council of
the City of North Tonawanda 6-1-2005 by L.L. No. 1-2005. Amendments noted where
applicable.]
The Telecommunications Act of 1996 affirmed
the City of North Tonawanda's authority concerning the placement,
construction and modification of wireless telecommunications facilities.
The City of North Tonawanda finds that wireless telecommunications
facilities may pose significant concerns to the health, safety, public
welfare, character and environment of the City and its inhabitants.
The City also recognizes that facilitating the development of wireless
service technology can be an economic development asset to the City
and of significant benefit to the City and its residents. In order
to insure that the placement, construction or modification of wireless
telecommunications facilities is consistent with the City's land use
policies, the City is adopting a single, comprehensive, wireless telecommunications
facilities application and permit process. The intent of this chapter
is to minimize impact of wireless telecommunications facilities, establish
a fair and efficient process for review and approval of applications,
assure an integrated, comprehensive review of environmental impacts
of such facilities, and protect the health, safety and welfare of
the City of North Tonawanda.
This chapter shall be known and cited as the
"Wireless Telecommunications Facilities Siting Law for the City of
North Tonawanda."
A.
If any word, phrase, sentence, part, section, subsection,
or other portion of this chapter or any application thereof to any
person or circumstance is declared void, unconstitutional, or invalid
for any reason, then such word, phrase, sentence, part, section, subsection,
or other portion, or the proscribed application thereof, shall be
severable, and the remaining provisions of this chapter, and all applications
thereof, not having been declared void, unconstitutional, or invalid,
shall remain in full force and effect.
B.
Any special use permit issued under this chapter shall
be comprehensive and not severable. If part of a permit is deemed
or ruled to be invalid or unenforceable in any material respect, by
a competent authority, or is overturned by a competent authority,
the permit shall be void in total, upon determination by the City.
For purposes of this chapter, and where not
inconsistent with the context of a particular section, the defined
terms, phrases, words, abbreviations, and their derivations shall
have the meaning given in this section. When not inconsistent with
the context, words in the present tense include the future tense,
words used in the plural number include words in the singular number,
and words in the singular number include the plural number. The word
"shall" is always mandatory, and not merely directory.
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
including but not limited to, utility or transmission equipment storage
sheds or cabinets.
Any wireless service provider submitting an application for
a special use permit for wireless telecommunications facilities.
All necessary and appropriate documentation that an applicant
submits in order to receive a special use permit for wireless telecommunications
facilities.
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
The Planning Board of the City of North Tonawanda.
The use of an existing tower or structure to support antennae
for the provision of wireless services.
The inability to perform an act on terms that are reasonable
in commerce; the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be commercial impracticable and shall not render an act or the
terms of an agreement commercially impracticable.
An application that contains all information and/or data
necessary to enable an informed decision to be made with respect to
an application.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
When referring to a tower or structure, the distance measured
from the preexisting grade level to the highest point on the tower
or structure, even if said highest point is an antenna or lightening
protection device.
The addition, removal or change of any of the physical and
visually discernible components or aspects of a wireless facility,
such as antennas, cabling, equipment shelters, landscaping, fencing,
utility feeds, changing the color or materials of any visually discernible
components, vehicular access, parking and/or an upgrade or changeout
of equipment for better or more modern equipment. Adding a new wireless
carrier or service provider to a telecommunications tower or telecommunications
site as a co-location is a modification. The addition or change of
any components of a wireless facility that increases the height of
said facility or the addition of a co-location as defined by this
chapter. A modification shall not include the replacement of any components
of a wireless facility where the replacement is identical to the component
being replaced or for any matters that involve the normal repair and
maintenance of a wireless facility without adding, removing or changing
anything.
[Amended 8-18-2009 by L.L. No. 4-2009]
Nonionizing electromagnetic radiation.
Any individual, corporation, estate, trust, partnership,
joint stock company, association of two or more persons having a joint
common interest, or any other entity.
See definition for "wireless telecommunications facilities."
The same meaning as defined and used in the 1996 Telecommunications
Act.
The replacement of any components of a wireless facility
where the replacement is identical to the component being replaced
or for any matter that involves the normal repair and maintenance
of a wireless facility without the addition, removal or change of
any of the physical or visually discernible components or aspects
of a wireless facility that will add to the visible appearance of
the facility as originally permitted. The replacement of any components
of a wireless facility with similar or "like" components that do not
increase the height of the existing wireless facility. In no case
shall a co-location be considered repair or maintenance.
[Amended 8-18-2009 by L.L. No. 4-2009]
The official document or permit by which an applicant is
allowed to file for a building permit to construct and use wireless
telecommunications facilities as granted or issued by the City.
The State of New York.
To minimize adverse aesthetic and visual impacts on the land,
property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
See definition for "wireless telecommunications facilities."
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
Temporary in relation to all aspects and components of this
chapter, something intended to, or that does, exist for fewer than
90 days.
Any structure designed primarily to support an antenna for
receiving and/or transmitting a wireless signal.
Includes a telecommunications site and personal wireless
facility. It means a structure, facility or location designed, or
intended to be used as, or used to support antennas or other transmitting
or receiving devices. This includes without limit, towers of all types
and kinds and structures, including, but not limited to buildings,
church steeples, silos, water towers, signs or other structures that
can be used as a support structure for antennas or the functional
equivalent of such. It further includes all related facilities and
equipment such as cabling, equipment shelters and other structures
associated with the site. It is a structure and facility intended
for transmitting and/or receiving radio, television, cellular, SMR,
paging, 911, personal communications services (PCS), commercial satellite
services, microwave services and any commercial wireless telecommunication
service not licensed by the FCC.
In order to ensure that the placement, construction,
and modification of wireless telecommunications facilities protects
the City's health, safety, public welfare, environmental features,
the nature and character of the community and neighborhood and other
aspects of the quality of life specifically listed elsewhere in this
chapter, the City hereby adopts an overall policy with respect to
a special use permit for wireless telecommunications facilities for
the express purpose of achieving the following goals:
A.
Requiring a special use permit for any new, colocation
or modification of a wireless telecommunications facility.
B.
Implementing an application process for person(s)
seeking a special use permit for wireless telecommunications facilities.
C.
Establishing a policy for examining an application
for and issuing a special use permit for wireless telecommunications
facilities that is both fair and consistent.
D.
Promoting and encouraging, wherever possible, the
sharing and/or colocation of wireless telecommunications facilities
among service providers.
E.
Promoting and encouraging, wherever possible, the
placement, height and quantity of wireless telecommunications facilities
in such a manner, including but not limited to the use of stealth
technology, to minimize adverse aesthetic and visual impacts on the
land, property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
F.
That in granting a special use permit, the City has
found that the facility shall be the most appropriate site as regards
being the least visually intrusive among those available in the City.
A.
No person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of, wireless telecommunications facilities as of the effective date of this chapter without having first obtained a special use permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this section, no special use permit shall be required for those noncommercial exceptions noted in § 101-7.
B.
All wireless telecommunications facilities existing
on or before the effective date of this chapter shall be allowed to
continue as they presently exist; provided, however, that any visible
modification of an existing wireless telecommunications facility will
require the complete facility and any new installation to comply with
this chapter.
The following shall be exempt from this chapter:
A.
The City's fire, police, Department of Transportation
or other public service facilities owned and operated by the local
government.
B.
Any facilities expressly exempt from the City's siting,
building and permitting authority.
C.
Over-the-air reception devices including the reception
antennas for direct broadcast satellites (DBS), multichannel multipoint
distribution (wireless cable) providers (MMDS), television broadcast
stations (TVBS) and other customer-end antennas that receive and transmit
fixed wireless signals that are primarily used for reception.
D.
Facilities exclusively for private, noncommercial
radio and television reception and private citizen's bands, licensed
amateur radio and other similar noncommercial telecommunications.
E.
Facilities exclusively for providing unlicensed spread
spectrum technologies [such as IEEE 802.11a, b, g (Wi-Fi) and Bluetooth]
where the facility does not require a new tower.
A.
All applicants for a special use permit for wireless
telecommunications facilities or any modification of such facility
shall comply with the requirements set forth in this chapter. The
City Council is the officially designated agency or body of the City
to whom applications for a special use permit for wireless telecommunications
facilities must be made, and that is authorized to review, analyze,
evaluate and make decisions with respect to granting or not granting
or revoking special use permits for wireless telecommunications facilities.
The City may at its discretion delegate or designate other official
agencies or officials of the City to accept, review, analyze, evaluate
and make recommendations to the City Council with respect to the granting
or not granting or revoking special use permits for wireless telecommunications
facilities.
B.
The City may reject applications not meeting the requirements
stated herein or which are otherwise incomplete.
C.
No wireless telecommunications facilities shall be
installed, constructed or modified until the application is reviewed
and approved by the City, and the special use permit has been issued.
D.
Any and all representations made by the applicant
to the City on the record during the application process, whether
written or verbal, shall be deemed a part of the application and may
be relied upon in good faith by the City.
E.
An application for a special use permit for wireless
telecommunications facilities shall be signed on behalf of the applicant
by the person preparing the same and with knowledge of the contents
and representations made therein and attesting to the truth and completeness
of the information.
F.
The applicant must provide documentation to verify
it has the right to proceed as proposed on the site. This would require
an executed copy of the lease with the landowner or landlord or a
signed letter acknowledging authorization. If the applicant owns the
site, a copy of the ownership record is required.
G.
The applicant shall include a statement in writing:
(1)
That the applicant's proposed wireless telecommunications
facilities shall be maintained in a safe manner, and in compliance
with all conditions of the special use permit, without exception,
unless specifically granted relief by the City in writing, as well
as all applicable and permissible local codes, laws, and regulations,
including any and all applicable City, state and federal laws, rules,
and regulations;
(2)
That the construction of the wireless telecommunications
facilities is legally permissible, including, but not limited to the
fact that the applicant is authorized to do business in the state.
H.
Where a certification is called for in this chapter,
such certification shall bear the signature and seal of a professional
engineer licensed in the state.
I.
In addition to all other required information as stated
in this chapter, all applications for the construction or installation
of new wireless telecommunications facilities or modification of an
existing facility shall contain the information hereinafter set forth.
(1)
A descriptive statement of the objective(s) for the
new facility or modification including and expanding on a need such
as coverage and/or capacity requirements;
(2)
Documentation that demonstrates and proves the need
for the wireless telecommunications facility to provide service primarily
and essentially within the City. Such documentation shall include
propagation studies of the proposed site and all adjoining planned,
proposed, in-service or existing sites that demonstrate a significant
gap in coverage and/or if a capacity need, include an analysis of
current and projected usage;
(3)
The name, address and phone number of the person preparing
the report;
(4)
The name, address, and phone number of the property
owner and applicant, and to include the legal name of the applicant.
If the site is a tower and the owner is different that the applicant,
provide name and address of the tower owner;
(5)
The postal address and tax map parcel number of the
property;
(6)
The zoning district or designation in which the property
is situated;
(7)
Size of the property stated both in square feet and
lot line dimensions, and a survey showing the location of all lot
lines;
(8)
The location of nearest residential structure;
(9)
The location, size and height of all existing and
proposed structures on the property which is the subject of the application;
(10)
The type, locations and dimensions of all proposed
and existing landscaping, and fencing;
(11)
The azimuth, size and center line height location
of all proposed and existing antennae on the supporting structure;
(12)
The number, type and model of the antenna(s)
proposed with a copy of the specification sheet;
(13)
The make, model, type and manufacturer of the
tower and design plan stating the tower's capacity to accommodate
multiple users;
(14)
A site plan describing the proposed tower and
antenna(s) and all related fixtures, structures, appurtenances and
apparatus, including height above preexisting grade, materials, color
and lighting;
(15)
The frequency, modulation and class of service
of radio or other transmitting equipment;
(16)
The actual intended transmission power stated
as the maximum effective radiated power (ERP) in watts;
(17)
Signed documentation such as the "Checklist
to Determine Whether a facility is Categorically Excluded" to verify
that the wireless telecommunication facility with the proposed installation
will be in full compliance with the current FCC RF Emissions guidelines
(NIER). If not categorically excluded, a complete RF Emissions study
is required to provide verification;
(18)
A signed statement that the proposed installation
will not cause physical or RF interference with other telecommunications
devices;
(19)
A copy of the FCC license applicable for the
intended use of the wireless telecommunications facilities; and
(20)
A copy of the geotechnical subsurface soils
investigation, evaluation report and foundation recommendation for
a proposed or existing tower site and if existing tower or water tank
site, a copy of the installed foundation design.
J.
The applicant will provide a written copy of an analysis,
completed by a qualified individual or organization, to determine
if the proposed new tower or existing structure intended to support
wireless facilities is in compliance with Federal Aviation Administration
Regulation Part 77 and if it requires lighting. This requirement shall
also be for any existing structure or building where the application
increases the height of the structure or building. If this analysis
determines, that an FAA determination is required, then all filings
with the FAA, all responses from the FAA and any related correspondence
shall be provided with the application.
K.
Application for new tower.
(1)
In the case of a new tower, the applicant shall be
required to submit a written report demonstrating its meaningful efforts
to secure shared use of existing tower(s) or the use of alternative
buildings or other structures within the City. Copies of written requests
and responses for shared use shall be provided to the City in the
application, along with any letters of rejection stating the reason
for rejection.
(2)
In order to better inform the public, in the case
of a new telecommunication tower, the applicant shall, prior to the
public hearing on the application, hold a balloon test. The applicant
shall arrange to fly, or raise upon a temporary mast, a minimum of
a three foot in diameter brightly colored balloon at the maximum height
of the proposed new tower. The dates, (including a second date, in
case of poor visibility on the initial date) times and location of
this balloon test shall be advertised by the applicant seven and 14
days in advance of the first test date in a newspaper with a general
circulation in the City. The applicant shall inform the City, in writing,
of the dates and times of the test, at least 14 days in advance. The
balloon shall be flown for at least four consecutive hours sometime
between 7:00 a.m. and 4:00 p.m. on the dates chosen. The primary date
shall be on a weekend, but in case of poor weather on the initial
date, the secondary date may be on a weekday. A report with pictures
from various locations of the balloon shall be provided with the application.
(3)
The applicant shall examine the feasibility of designing
the proposed tower to accommodate future demand for at least four
additional commercial applications, for example, future colocations.
The tower shall be structurally designed to accommodate at least four
additional antenna arrays equal to those of the applicant, and located
as close to the applicant's antenna as possible without causing interference.
This requirement may be waived, provided that the applicant, in writing,
demonstrates that the provisions of future shared usage of the tower
is not technologically feasible, is commercially impracticable or
creates an unnecessary and unreasonable burden, based upon:
(a)
The foreseeable number of FCC licenses available
for the area;
(b)
The kind of wireless telecommunications facilities
site and structure proposed;
(c)
The number of existing and potential licenses
without wireless telecommunications facilities spaces/sites;
(d)
Available space on existing and approved towers.
(4)
The owner of a proposed new tower, and his/her successors
in interest, shall negotiate in good faith for the shared use of the
proposed tower by other wireless service providers in the future,
and shall:
(a)
Respond within 60 days to a request for information
from a potential shared-use applicant;
(b)
Negotiate in good faith concerning future requests
for shared use of the new tower by other telecommunications providers;
(c)
Allow shared use of the new tower if another
telecommunications provider agrees in writing to pay reasonable charges.
The charges may include, but are not limited to, a pro rata share
of the cost of site selection, planning, project administration, land
costs, site design, construction and maintenance financing, return
on equity, less depreciation, and all of the costs of adapting the
tower or equipment to accommodate a shared user without causing electromagnetic
interference.
(d)
Failure to abide by the conditions outlined
above may be grounds for revocation of the special use permit.
L.
The applicant shall provide certification with documentation
(structural analysis) including calculations that the telecommunication
facility tower and foundation and attachments, rooftop support structure,
water tank structure, and any other supporting structure as proposed
to be utilized are designed and will be constructed to meet all local,
City, state and federal structural requirements for loads, including
wind and ice loads.
M.
If proposal is for a colocation or modification on
an existing tower, the applicant is to provide signed documentation
of the tower condition such as an ANSI report as per Annex E, Tower
Maintenance and Inspection Procedures, ANSI/TIA/EIA-222F or most recent
version. The inspection report must be performed every three years
for a guyed tower and five years for monopoles and self-supporting
towers.
N.
All proposed wireless telecommunications facilities
shall contain a demonstration that the facility be sited so as to
be the least visually intrusive reasonably possible, given the facts
and circumstances involved and thereby have the least adverse visual
effect on the environment and its character, on existing vegetation,
and on the residences in the area of the wireless telecommunications
facility.
O.
If a new tower, proposal for a new antenna attachment
to an existing structure, or modification adding to a visual impact,
the applicant shall furnish a visual impact assessment, which shall
include:
(1)
If a new tower or increasing the height of an existing
structure is proposed, a computer-generated Zone of Visibility Map
at a minimum of one-mile radius from the proposed structure, with
and without foliage, shall be provided to illustrate locations from
which the proposed installation may be seen.
(2)
Pictorial representations of before and after (photo
simulations) views from key viewpoints both inside and outside of
the City as may be appropriate, including but not limited to state
highways and other major roads; state and local parks; other public
lands; historic districts; preserves and historic sites normally open
to the public; and from any other location where the site is visible
to a large number of visitors, travelers or residents. Guidance will
be provided, concerning the appropriate key sites at the preapplication
meeting. Provide a map showing the locations of where the pictures
were taken and distance from the proposed structure.
(3)
A written description of the visual impact of the
proposed facility including as applicable the tower base, guy wires,
fencing and accessory buildings from abutting and adjacent properties
and streets as relates to the need or appropriateness of screening.
P.
The applicant shall demonstrate and provide in writing
and/or by drawing how it shall effectively screen from view the base
and all related equipment and structures of the proposed wireless
telecommunications facility.
Q.
The wireless telecommunications facility and any and
all accessory or associated facilities shall maximize the use of building
materials, colors and textures designed to blend with the structure
to which it may be affixed and/or to harmonize with the natural surroundings,
this shall include the utilization of stealth or concealment technology
as may be required by the City.
R.
All utilities at a wireless telecommunications facilities
site shall be installed underground and in compliance with all laws,
rules and regulations of the City, including specifically, but not
limited to, the National Electrical Safety Code and the National Electrical
Code where appropriate.
S.
At a telecommunications site, an access road, turnaround
space and parking shall be provided to assure adequate emergency and
service access. Maximum use of existing roads, whether public or private,
shall be made to the extent practicable. Road construction shall at
all times minimize ground disturbance and the cutting of vegetation.
Road grades shall closely follow natural contours to assure minimal
visual disturbance and reduce soil erosion.
T.
All wireless telecommunications facilities shall be
constructed, operated, maintained, repaired, provided for removal
of, modified or restored in strict compliance with all current applicable
technical, safety and safety-related codes adopted by the City, state,
or United States, including but not limited to the most recent editions
of the ANSI Code, National Electrical Safety Code and the National
Electrical Code, as well as accepted and responsible workmanlike industry
practices and recommended practices of the National Association of
Tower Erectors. The codes referred to are codes that include, but
are not limited to, construction, building, electrical, fire, safety,
health, and land use codes. In the event of a conflict between or
among any of the preceding the more stringent shall apply.
U.
A holder of a special use permit granted under this
chapter shall obtain, at its own expense, all permits and licenses
required by applicable Law, rule, regulation or code, and must maintain
the same, in full force and effect, for as long as required by the
City or other governmental entity or agency having jurisdiction over
the applicant.
V.
There shall be a preapplication meeting. The purpose
of the preapplication meeting will be to address issues that will
help to expedite the review and permitting process. A preapplication
meeting shall also include a site visit if there has not been a prior
site visit for the requested site. Costs of the City's consultants
to prepare for and attend the preapplication meeting will be borne
by the applicant.
W.
An applicant shall submit to the City the number of
completed applications determined to be needed at the preapplication
meeting. Written notification of the application shall be provided
to the legislative body of all adjacent municipalities as applicable
and/or requested.
X.
The holder of a special use permit shall notify the
City of any intended modification of a wireless telecommunication
facility and shall apply to the City to modify, relocate or rebuild
a wireless telecommunications facility.
Y.
With respect to this application process, the Council
will normally seek to have lead agency status pursuant to SEQRA. The
Council shall conduct an environmental review of the proposed project
pursuant to SEQRA in combination with its review of the application
pursuant to this chapter.
A.
Applicants for wireless telecommunications facilities
shall locate, site and erect said wireless telecommunications facilities
in accordance with the following priorities, one being the highest
priority and seven being the lowest priority.
(1)
On existing towers or other structures on City-owned
properties.
(2)
On existing towers or other structures on other property
in the City.
(3)
A new tower on City-owned properties.
(4)
A new tower on properties in areas zoned M1 —
M2.
(5)
A new tower on properties in areas zoned C1 —
C2.
(6)
A new tower on properties in areas zoned R2.
(7)
A new tower on properties in areas zoned R1 —
R2.
B.
If the proposed site is not proposed for the highest
priority listed above, then a detailed explanation must be provided
as to why a site of a higher priority was not selected. The person
seeking such an exception must satisfactorily demonstrate the reason
or reasons why such a permit should be granted for the proposed site,
and the hardship that would be incurred by the applicant if the permit
were not granted for the proposed site.
C.
An applicant may not bypass sites of higher priority
by stating the site proposed is the only site leased or selected.
An application shall address colocation as an option. If such option
is not proposed, the applicant must explain to the reasonable satisfaction
of the Village why colocation is commercially or otherwise impracticable.
Agreements between providers limiting or prohibiting colocation shall
not be a valid basis for any claim of commercial impracticability
or hardship.
D.
Notwithstanding the above, the City may approve any
site located within an area in the above list of priorities, provided
that the City finds that the proposed site is in the best interest
of the health, safety and welfare of the City and its inhabitants
and will not have a deleterious effect on the nature and character
of the community and neighborhood.
E.
The applicant shall submit a written report demonstrating
the applicant's review of the above locations in order of priority,
demonstrating the technological reason for the site selection. If
appropriate, based on selecting a site of lower priority, a detailed
written explanation as to why sites of a higher priority were not
selected shall be included with the application.
F.
Notwithstanding that a potential site may be situated
in an area of highest priority or highest available priority, the
City may disapprove an application for any of the following reasons.
(1)
Conflict with safety and safety-related codes and
requirements;
(2)
Conflict with the historic nature or character of
a neighborhood or historical district;
(3)
The use or construction of wireless telecommunications
facilities which is contrary to an already stated purpose of a specific
zoning or land use designation;
(4)
The placement and location of wireless telecommunications
facilities which would create an unacceptable risk, or the reasonable
probability of such, to residents, the public, employees and agents
of the City, or employees of the service provider or other service
providers;
(5)
Conflicts with the provisions of this chapter.
A.
The City, as opposed to the construction of a new
tower, shall prefer locating on existing towers or others structures
without increasing the height. The applicant shall submit a comprehensive
report inventorying existing towers and other suitable structures
within four miles of the location of any proposed new tower, unless
the applicant can show that some other distance is more reasonable
and demonstrate conclusively why an exiting tower or other suitable
structure cannot be used.
B.
An applicant intending to locate on an existing tower
or other suitable structure shall be required to document the intent
of the existing owner to permit its use by the applicant.
C.
Such shared use shall consist only of the minimum
antenna array technologically required to provide service primarily
and essentially within the City, to the extent practicable, unless
good cause is shown.
A.
The applicant shall submit documentation justifying
the total height of any tower, facility and/or antenna requested and
the basis therefor. Documentation in the form of propagation studies
must include all backup data used to perform at requested height and
a minimum of 10 feet lower height to allow verification of this height
need. Such documentation will be analyzed in the context of the justification
of the height needed to provide service primarily and essentially
within the City, to the extent practicable, unless good cause is shown.
B.
No tower constructed after the effective date of this
chapter, including allowing for all attachments, shall exceed that
height which shall permit operation without required artificial lighting
of any kind in accordance with municipal, City, state, and/or any
federal statute, law, local law, City law, code, rule or regulation.
A.
Wireless telecommunications facilities shall not be
artificially lighted or marked, except as required by Law.
B.
Towers shall be galvanized and/or painted with a rustpreventive
paint of an appropriate color to harmonize with the surroundings and
shall be maintained in accordance with the requirements of this chapter.
C.
If lighting is required, applicant shall provide a
detailed plan for sufficient lighting of as unobtrusive and inoffensive
an effect as is permissible under state and federal regulations.
All wireless telecommunications facilities and
antennas shall be located, fenced or otherwise secured in a manner
that prevents unauthorized access. Specifically:
A.
All antennas, towers and other supporting structures,
including guy anchor points and wires, shall be made inaccessible
to individuals and constructed or shielded in such a manner that they
cannot be climbed or collided with; and
B.
Transmitters and telecommunications control points
shall be installed in such a manner that they are readily accessible
only to persons authorized to operate or service them.
Wireless telecommunications facilities shall
contain a sign no larger than four square feet in order to provide
adequate notification to persons in the immediate area of the presence
of RF radiation or to control exposure to RF radiation within a given
area. A sign of the same size is also to be installed to contain the
name(s) of the owner(s) and operator(s) of the antenna(s) as well
as emergency phone number(s). The sign shall be on the equipment shelter
or cabinet of the applicant and be visible from the access point of
the site and must identify the equipment owner of the shelter or cabinet.
On tower sites, an FCC registration site as applicable is also to
be present. The signs shall not be lighted, unless applicable law,
rule or regulation requires lighting. No other signage, including
advertising, shall be permitted.
All proposed towers and any other proposed wireless
telecommunications facility structures shall be set back from abutting
parcels, recorded rights-of-way and road and street lines by the greater
of the following distances: a distance equal to the height of the
proposed tower or wireless telecommunications facility structure plus
10% of the height of the tower or structure, or the existing setback
requirement of the underlying zoning district, whichever is greater.
Any Accessory structure shall be located so as to comply with the
applicable minimum setback requirements for the property on which
it is situated.
A.
The City may hire any consultant and/or expert necessary
to assist the City in reviewing and evaluating the application, including
the construction and modification of the site, once permitted, and
any site inspections.
B.
An applicant shall deposit with the City funds sufficient
to reimburse the City for all reasonable costs of consultant and expert
evaluation and consultation to the City in connection with the review
of any application including the construction and modification of
the site, once permitted. The initial deposit shall be $8,500. The
placement of the $8,500 with the City shall precede the preapplication
meeting. The City will maintain a separate escrow account for all
such funds. The City's consultants/experts shall invoice the City
for its services in reviewing the application, including the construction
and modification of the site, once permitted. If at any time during
the process this escrow account has a balance less than $2,500, the
applicant shall immediately, upon notification by the City, replenish
said escrow account so that it has a balance of at least $5,000. Such
additional escrow funds shall be deposited with the City before any
further action or consideration is taken on the application. In the
event that the amount held in escrow by the City is more than the
amount of the actual invoicing at the conclusion of the project, the
remaining balance shall be promptly refunded to the applicant.
C.
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
A.
Prior to the approval of any application for a special
use permit for wireless telecommunications facilities, a public hearing
shall be held by the City, notice of which shall be published in the
official newspaper of the City no less than 10 calendar days prior
to the scheduled date of the public hearing. In order that the City
may notify nearby landowners, the application shall contain the names
and address of all landowners whose property is located within 1,500
feet of any property line of the lot or parcel on which the new wireless
telecommunications facilities are proposed to be located.
A.
The City will undertake a review of an application
pursuant to this chapter in a timely fashion, consistent with its
responsibilities, and shall act within a reasonable period of time
given the relative complexity of the application and the circumstances,
with due regard for the public's interest and need to be involved,
and the applicant's desire for a timely resolution.
B.
The City may refer any application or part thereof
to any advisory or other committee for a nonbinding recommendation.
C.
After the public hearing and after formally considering
the application, the City may approve, approve with conditions, or
deny a special use permit. Its decision shall be in writing and shall
be supported by substantial evidence contained in a written record.
The burden of proof for the grant of the permit shall always be upon
the applicant.
D.
If the City approves the special use permit for wireless
telecommunications facilities, then the applicant shall be notified
of such approval in writing within 10 calendar days of the City's
action, and the special use permit shall be issued within 30 days
after such approval. Except for necessary building permits, and subsequent
certificates of compliance, once a special use permit has been granted
hereunder, no additional permits or approvals from the City, such
as site plan or zoning approvals, shall be required by the City for
the wireless telecommunications facilities covered by the special
use permit.
E.
If the City denies the special use permit for wireless
telecommunications facilities, then the applicant shall be notified
of such denial in writing within 10 calendar days of the City's action.
The extent and parameters of a special use permit
for wireless telecommunications facilities shall be as follows:
A.
Such special use permit shall not be assigned, transferred
or conveyed without the express prior written notification to the
City.
B.
Such special use permit may, following a hearing upon
due prior notice to the applicant, be revoked, canceled, or terminated
for a violation of the conditions and provisions of the special use
permit, or for a material violation of this chapter after prior written
notice to the holder of the special use permit.
[Amended 8-18-2009 by L.L. No. 4-2009]
A.
At the
time that a person submits an application for a special use permit
for a new tower, such person shall pay a nonrefundable application
fee of $5,000 to the City.
B.
If the application is for co-locating on an existing tower or other suitable structure, where no increase in height to the tower or structure is required, a nonrefundable application fee of $2,500 shall be paid to the City in addition to a permit fee per § 101-20.1.
C.
If the
application is for replacement of existing antennas or ground equipment
where no increase in height to the tower or structure is required,
a nonrefundable application fee of $2,500 shall be paid to the City
in addition to a permit fee per § 101.20-1.
[Added 8-18-2009 by L.L.
No. 4-2009]
The applicant and the owner of record of any
proposed wireless telecommunications facilities property site shall,
at its cost and expense, be jointly required to execute and file with
the City a bond, or other form of security acceptable to the City
as to type of security and the form and manner of execution, in an
amount of at least $75,000 for a tower facility and $25,000 for a
colocation on an existing tower or other structure and with such sureties
as are deemed sufficient by the City to assure the faithful performance
of the terms and conditions of this chapter and conditions of any
special use permit issued pursuant to this chapter. The full amount
of the bond or security shall remain in full force and effect throughout
the term of the special use permit and/or until any necessary site
restoration is completed to restore the site to a condition comparable
to that, which existed prior to the issuance of the original special
use permit.
In order to verify that the holder of a special
use permit for wireless telecommunications facilities and any and
all lessees, renters, and/or licensees of wireless telecommunications
facilities, place and construct such facilities, including towers
and antennas, in accordance with all applicable technical, safety,
fire, building, and zoning codes, laws and regulations and other applicable
requirements, the City may inspect all facets of said permit holder's,
renter's, lessee's or licensee's placement, construction, modification
and maintenance of such facilities, including, but not limited to,
towers, antennas and buildings or other structures constructed or
located on the permitted site.
A.
A holder of a special use permit for wireless telecommunications
facilities shall secure and at all times maintain public liability
insurance for personal injuries, death and property damage, and umbrella
insurance coverage, for the duration of the special use permit in
amounts as set forth below.
B.
For a wireless telecommunications facility on City
property, the commercial general liability insurance policy shall
specifically include the City and its officers, councils, employees,
committee members, attorneys, agents and consultants as additional
insureds.
C.
The insurance policies shall be issued by an agent
or representative of an insurance company licensed to do business
in the state and with a Best's rating of at least A.
D.
The insurance policies shall contain an endorsement
obligating the insurance company to furnish the City with at least
30 days' prior written notice in advance of the cancellation of the
insurance.
E.
Renewal or replacement policies or certificates shall
be delivered to the City at least 15 days before the expiration of
the insurance that such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunications
facilities is initiated, but in no case later than 15 days after the
grant of the special use permit, the holder of the special use permit
shall deliver to the City a copy of each of the policies or certificates
representing the insurance in the required amounts.
A.
Any application for wireless telecommunication facilities
that is proposed for City property, pursuant to this chapter, shall
contain a provision with respect to indemnification. Such provision
shall require the applicant, to the extent permitted by the Law, to
at all times defend, indemnify, protect, save, hold harmless, and
exempt the City, and its officers, councils, employees, committee
members, attorneys, agents, and consultants from any and all penalties,
damages, costs, or charges arising out of any and all claims, suits,
demands, causes of action, or award of damages, whether compensatory
or punitive, or expenses arising therefrom, either at law or in equity,
which might arise out of, or are caused by, the placement, construction,
erection, modification, location, products performance, use, operation,
maintenance, repair, installation, replacement, removal, or restoration
of said facility, excepting, however, any portion of such claims,
suits, demands, causes of action or award of damages as may be attributable
to the negligent or intentional acts or omissions of the City, or
its servants or agents. With respect to the penalties, damages or
charges referenced herein, reasonable attorneys' fees, consultants'
fees, and expert witness fees are included in those costs that are
recoverable by the City.
A.
In the event of a violation of this chapter or any
special use permit issued pursuant to this chapter, the City may impose
and collect, and the holder of the special use permit for wireless
telecommunications facilities shall pay to the City, fines or penalties
as set forth below.
B.
The holder of a special use permits failure to comply with provisions of this chapter shall constitute a violation of this chapter and shall subject the applicant to fines of $250 per day, for each day the site is out of compliance and two times the application fee, outlined in § 101-20 of this chapter.
C.
Notwithstanding anything in this chapter, the holder
of the special use permit for wireless telecommunications facilities
may not use the payment of fines, liquidated damages or other penalties,
to evade or avoid compliance with this chapter or any section of this
chapter. An attempt to do so shall subject the holder of the special
use permit to termination and revocation of the special use permit.
The City may also seek injunctive relief to prevent the continued
violation of this chapter, without limiting other remedies available
to the City.
If a wireless telecommunications facility is repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter or of the special use permit, then the City shall notify the holder of the special use permit in writing of such violation. A permit holder in violation may be considered in default and subject to fines as in § 101-25 and if a violation is not corrected to the satisfaction of the City in a reasonable period of time the special use permit is subject to revocation.
A.
Under the following circumstances, the City may determine
that the health, safety, and welfare interests of the City warrant
and require the removal of wireless telecommunications facilities.
(1)
Wireless telecommunications facilities with a permit
have been abandoned (i.e., not used as wireless telecommunications
facilities) for a period exceeding 90 consecutive days or a total
of 180 days in any three-hundred-sixty-five-day period, except for
periods caused by force majeure or Acts of God, in which case, repair
or removal shall commence within 90 days;
(2)
Permitted wireless telecommunications facilities fall
into such a state of disrepair that it creates a health or safety
hazard;
(3)
Wireless telecommunications facilities have been located,
constructed, or modified without first obtaining, or in a manner not
authorized by, the required special use permit, or any other necessary
authorization and the Special Permit may be revoked.
B.
If the City makes such a determination as noted in Subsection A of this section, then the City shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed, the City may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
C.
The holder of the special use permit, or its successors
or assigns, shall dismantle and remove such wireless telecommunications
facilities, and all associated structures and facilities, from the
site and restore the site to as close to its original condition as
is possible, such restoration being limited only by physical or commercial
impracticability, within 90 days of receipt of written notice from
the City. However, if the owner of the property upon which the wireless
telecommunications facilities are located wishes to retain any access
roadway to the wireless telecommunications facilities, the owner may
do so with the approval of the City.
D.
If wireless telecommunications facilities are not
removed or substantial progress has not been made to remove the wireless
telecommunications facilities within 90 days after the permit holder
has received notice, then the City may order officials or representatives
of the City to remove the wireless telecommunications facilities at
the sole expense of the owner or special use permit holder.
E.
If the City removes, or causes to be removed, wireless
telecommunications facilities, and the owner of the wireless telecommunications
facilities does not claim and remove it from the site to a lawful
location within 10 days, then the City may take steps to declare the
wireless telecommunications facilities abandoned, and sell them and
their components.
F.
Notwithstanding anything in this section to the contrary,
the City may approve a temporary use permit/agreement for the wireless
telecommunications facilities, for no more 90 days, during which time
a suitable plan for removal, conversion, or relocation of the affected
wireless telecommunications facilities shall be developed by the holder
of the special use permit, subject to the approval of the City, and
an agreement to such plan shall be executed by the holder of the special
use permit and the City. If such a plan is not developed, approved
and executed within the ninety-day time period, then the City may
take possession of and dispose of the affected wireless telecommunications
facilities in the manner provided in this section.
Any applicant desiring relief, waiver or exemption
from any aspect or requirement of this chapter may request such at
the preapplication meeting, provided that the relief or exemption
is contained in the submitted application for either a special use
permit, or in the case of an existing or previously granted special
use permit a request for modification of its tower and/or facilities.
Such relief may be temporary or permanent, partial or complete. However,
the burden of proving the need for the requested relief, waiver or
exemption is solely on the applicant to prove. The applicant shall
bear all costs of the City in considering the request and the relief,
waiver or exemption. No such relief or exemption shall be approved
unless the applicant demonstrates by clear and convincing evidence
that, if granted the relief, waiver or exemption will have no significant
affect on the health, safety and welfare of the City, its residents
and other service providers.
A.
The City may at any time conduct a review and examination
of this entire chapter.
B.
If after such a periodic review and examination of
this chapter, the City determines that one or more provisions of this
chapter should be amended, repealed, revised, clarified, or deleted,
then the City may take whatever measures are necessary in accordance
with applicable law in order to accomplish the same. It is noted that
where warranted, and in the best interests of the City, the City may
repeal this entire chapter at any time.
A.
To the extent that the holder of a special use permit
for wireless telecommunications facilities has not received relief,
or is otherwise exempt, from appropriate state and/or federal agency
rules or regulations, then the holder of such a special use permit
shall adhere to, and comply with, all applicable rules, regulations,
standards, and provisions of any state or federal agency, including,
but not limited to, the FAA and the FCC. Specifically included in
this requirement are any rules and regulations regarding height, lighting,
security, electrical and RF emission standards.
B.
To the extent that applicable rules, regulations,
standards, and provisions of any State or Federal agency, including
but not limited to, the FAA and the FCC, and specifically including
any rules and regulations regarding height, lighting, and security
are changed and/or are modified during the duration of a special use
permit for wireless telecommunications facilities, then the holder
of such a special use permit shall conform the permitted wireless
telecommunications facilities to the applicable changed and/or modified
rule, regulation, standard, or provision within a maximum of 24 months
of the effective date of the applicable changed and/or modified rule,
regulation, standard, or provision, or sooner as may be required by
the issuing entity.
Where this chapter differs or conflicts with
other laws, rules and regulations, unless the right to do so is preempted
or prohibited by the City, state or federal government, this chapter
shall apply.
This chapter shall be effective immediately
upon passage, pursuant to applicable legal and procedural requirements.
This chapter is enacted pursuant to applicable
authority granted by the state and federal government.
