[R.O. 2005 §30-80; Ord. No. 2848 §5(A), 10-15-2007; Ord. No. 3552, 6-21-2023]
A. The general purpose of this Article is to regulate the placement,
construction and modification of telecommunications towers, support
structures and antennas in order to protect the health, safety and
welfare of the public, while at the same time not unreasonably interfering
with the development of the competitive wireless telecommunications
marketplace in Ellisville. Specifically, this Article is intended:
1.
To provide for the appropriate location and development of antennas
and antenna support structures to serve the citizens and businesses
of the City of Ellisville;
2.
To minimize adverse visual impacts of communications antennas
and support structure through the careful design, siting, landscape
screening and innovative camouflaging techniques;
3.
To maximize the use of existing and new support structures so
as to minimize the need to construct new or additional facilities;
4.
To promote and encourage shared use/collocation of towers and
antenna support structures as a primary option rather than construction
of additional single-use towers;
5.
To ensure that any new telecommunications tower or structure
is located in an area compatible with the neighborhood or surrounding
community to the extent possible; and
6.
To ensure that regulation of telecommunications towers and structures
does not have the effect of prohibiting the provision of personal
wireless services and does not unreasonable discriminate among functionally
equivalent providers of such service.
[R.O. 2005 §30-81; Ord.
No. 3552, 6-21-2023]
A. On February 9, 1996, Congress enacted the Federal Telecommunications
Act of 1996 P.L. No. 104-458, 47 U.S.C. § 332. The purpose
of the Act included deregulation of the telecommunications industry
and providing a more competitive environment for wired and wireless
telecommunication services in the United States.
B. The Telecommunications Act of 1996 preserves the authority of the
City to regulate the placement, construction and modification of towers
and antenna support structures and to protect the health, safety and
welfare of the public.
C. The City has been granted the authority to enact legislation to regulate
the construction, placement and operation of telecommunications towers
and antennas pursuant to its zoning powers established in Chapter
89, RSMo., and additionally pursuant to its general and specific Police
powers established by Statute authorizing the regulations herein to
protect the public health, safety and welfare.
D. The Federal Communications Commission (FCC) has exclusive jurisdiction
over:
1.
The regulation of the environmental effects of radio frequency
emissions from telecommunications facilities; and
2.
The regulation of radio signal interference among users of the
radio frequency spectrum.
E. Consistent with the Telecommunications Act of 1996, regulation of
towers and telecommunications facilities in certain areas of the City
of Ellisville as provided in this Article will not have the effect
of prohibiting any person from providing wireless telecommunications
services in violation of the Act.
F. The uncontrolled proliferation of towers would diminish property
values, the aesthetic quality of the City and would otherwise threaten
the health, safety and welfare of the public.
G. This Article is intended and designed to comply with the Missouri
Uniform Wireless Communications Deployment Act, Section 67.5090, RSMo.
et seq., and, to the extent applicable, the Missouri Uniform Small
Wireless Facility Deployment Act, Section 67.5110, RSMo. et seq.
[R.O. 2005 §30-82; Ord.
No. 3552, 6-21-2023]
A. All towers, antenna support structures and telecommunications facilities,
any portion of which are located within the City of Ellisville, are
subject to this Article. Failure to register an existing tower shall
raise a presumption that said tower was not a legal non-conforming
use on the date of passage of this Article.
B. Exception: However, this Article shall not apply to: (i) tower structures
used or to be used solely for services provided pursuant to a broadcast
radio or television license issued by the Federal Communications Commission;
or (ii) to antennas used solely for private telecommunications services
when the equipment is located on the premises of the entity using
said private telecommunication services or the antennas, support structure
or masts are located on the primary business premises of a provider
of communications services and the antennas are used to monitor the
provider's services and the equipment used by the broadcaster, private
telecommunicator or provider is in compliance with any Federal, State
or local laws and does not encroach on the public rights-of-way.
C. Except as provided in this Article, any current legal use being made
of an existing tower or antenna support structure on the effective
date of this Article (herein "non-conforming structures") shall be
allowed to continue, even if in conflict with the terms of this Article.
Any tower site that has received City approval in the form of either
a conditional use permit or building permit, but has not yet been
constructed or located, shall be considered a non-conforming structure
so long as such approval is current and not expired.
[R.O. 2005 §30-84; Ord. No. 2450 §1, 8-15-2001; Ord. No. 2514 §2, 7-17-2002; Ord. No. 3317 § 1, 3-15-2017; Ord. No. 3552, 6-21-2023]
A. The requirements set forth in this Section shall be applicable to
all towers, antennas and other support structures installed, built
or modified after the effective date of this Article to the full extent
permitted by law.
1.
Principal Or Incidental Use. Antennas and support structures
may be either a principal use in all non-residential zoning districts
or an incidental use to existing multiple-family, institutional or
non-residential uses, subject to any applicable district requirement.
Antennas and support structures are not permitted in the "OS" Open
Space Single-Family Residential Zoning District, the "R-1" Single-Family
Residential Zoning District, the "R-2" Planned Residential Zoning
District, the "R-3" Residential District, the "R-4A" Residential District,
or the "R-4B" Residential District.
2.
Conditional Use Permit. Antennas and support structures, whether
a principal or incidental use, require a conditional use permit, except
as provided herein.
3.
Building Codes, Safety Standards And Zoning Compliance. To ensure
the structural integrity of antenna support structures, the applicant
shall see that it is constructed and maintained in compliance with
all standards contained in applicable State and local building codes
and the applicable standards published by the Electronics Industries
Association. In addition to any other approvals required by this Article,
no antenna, tower or support structure shall be installed, erected,
altered, modified, replaced or expanded prior to issuance of a building
permit. Collocation and replacement applications shall be required
to comply with all applicable State and local building codes, National
Electric Safety Code, recognized industry standards for structural
safety, capacity, reliability, and engineering, but shall not be required
to comply with other zoning or land use requirements, including design
or placement requirements or public hearing review.
4.
Regulatory Compliance. All antennas and support structures shall
meet or exceed current standards and regulations of the FAA, FCC and
any other State or Federal agency with the authority to regulate communications
antennas and support structures. Should such standards or regulations
be amended, then the applicant shall bring such devices and structure
into compliance with the revised standards or regulations within the
time period mandated by the controlling agency. No approval for any
placement, construction or modification of any antenna or structure
permitted by this Article shall be granted for any applicant having
an uncured violation of this Article or any other governmental regulatory
requirement related to such antenna or structures within the City.
5.
Security. All antennas and support structures shall be protected
from unauthorized access by appropriate security measures. A description
of proposed security measures shall be provided as part of any petition
for a conditional use permit. Additional measures may be deemed necessary
by the Council and made part of the conditional use permit.
6.
Lighting And Landscaping. Unless required by the FAA or other State or Federal agency with authority to regulate, in which case a description of the required lighting scheme will be made a part of the petition for a conditional use permit, no antenna, tower or support structure shall be lighted unless specifically set out in the permit. Equipment cabinets and shelters may have lighting only as approved on the approved site plan. Lighting shall comply with the applicable provisions of Sections
400.492 and
400.493 of this Chapter.
a.
With a petition for a conditional use permit, the applicant
shall submit a lighting and landscape plan depicting the landscaping,
lighting and fencing around the proposed tower or support structure
to ensure that the structure will be aesthetically compatible with
its surroundings and the aesthetic standards of the community and
neighboring property. Such plans shall be reviewed by both the City's
Director and third-party landscape architect. They shall take into
consideration the nature of the location, the impact on surrounding
properties, the safety and security of the proposed tower or support
structure and the relative cost of the landscaping, lighting and fencing
to the applicant in relationship to the overall impact upon the property
values in the immediate area which would be caused by a lack of such
landscaping, lighting and fencing for the proposed tower or support
structure. All approved lighting and landscaping plans shall be made
a part of the conditional use permit.
(1) A performance bond, cash escrow or other instrument
acceptable to the City's Attorney shall be posted prior to the issuance
of any building permit with the City to guarantee the installation
and continued care of all lighting, landscaping, fencing and all other
improvements, including, but not limited to, flags. Said instrument
shall be deposited with the City Clerk; the amount of such instrument
to be determined and approved by the City Planner. Said instrument
shall be held by the City for a term of not less than five (5) years
and may subsequently be released on replacement with a maintenance
agreement approved by the City identifying such persons or entity
responsible for continued care for the term of operation of such facility.
(2) In the case of a "flagpole" type disguised support
structure, no permit shall be issued for the construction thereof
until a maintenance agreement has been submitted to and approved by
the City for the appropriate care of any flag(s) approved on said
support structure. This provision shall also apply to any such existing
disguised support structure wherein application is submitted for any
addition, alteration or modification thereof, including any ground
base equipment associated therewith.
(3) United States flags which are no longer fitting
emblems for display, which includes, but is not limited to, torn,
soiled, damaged, worn, tattered, frayed or faded, shall promptly be
repaired or replaced. Any person or business having been notified
by the City to repair/replace any such flag shall comply immediately
after such service or be subject to a fine not to exceed five hundred
dollars ($500.00) each day of non-compliance.
b.
No revolving or rotating beam or beacon of light that simulates
any emergency light or device shall be permitted as part of any tower
or support structure unless required by the FAA or other agency. No
flashing, intermittent or moving light or lights will be permitted.
c.
External lighting, such as floodlights, may be permitted, provided
the light source is directed upon the tower or support structure and
is effectively shielded so as to prevent beams or rays of light from
being directed onto adjacent residential property.
d.
The maximum average lighting intensity level for towers or support
structures shall be specifically set out in the permit.
7.
Advertising. Unless a disguised antenna support structure in
the form of an otherwise lawfully permitted pylon sign, the placement
of advertising on structures regulated by this Article is prohibited.
8.
Design.
a.
Towers shall maintain a galvanized steel finish or, subject
to the requirements of the FAA or any applicable State or Federal
agency, be painted a neutral color consistent with the natural or
built environment of the site.
b.
Equipment shelters or cabinets shall have an exterior finish
compatible with the natural or built environment of the site and shall
also comply with any design guidelines as may be applicable to the
particular zoning district in which the facility is located.
c.
Towers shall not exceed the height limitation of any airport
overlay zone as may be adopted by the City.
d.
Antennas attached to a building or disguised antenna support
structure shall be of a color identical to or closely compatible with
the surface to which they are mounted.
e.
All towers shall be surrounded by a minimum six (6) foot high sightproof decorative wall of "masonry construction" as defined in Section
400.090, and
a landscape strip of not less than ten (10) feet in width and planted with materials which will provide a visual barrier to a minimum height of six (6) feet. The landscape strip shall be exterior to any security wall.
f.
All towers shall be set back from all yard lines at least one
(1) foot for each foot of height. Setback requirements for towers
shall be measured from the base of the tower to the property line
of the parcel on which it is located.
g.
Ground anchors of all guyed towers, if permitted, shall be located
on the same parcel as the tower and meet the setbacks of the applicable
zoning district.
h.
Vehicle or outdoor storage on any tower site is prohibited,
unless otherwise permitted by the zoning.
i.
On-site parking for periodic maintenance and service shall be
provided at all antenna or tower locations consistent with the underlying
zoning district.
9.
Shared Use Opportunities.
a.
Prior to the issuance of any conditional use permit for any
antenna, tower or disguised support structure existing on the effective
date of this Article, the applicant shall provide to the City a written
and notarized agreement committing to make said antenna, tower or
disguised support structure available for use by others subject to
reasonable technical limitations and reasonable financial terms. The
willful and knowing failure of an antenna, tower or disguised support
structure applicant to agree to shared use or to negotiate in good
faith with potential users shall be cause for the withholding of future
conditional use permits to the same applicant.
b.
Prior to the issuance of any conditional use permit for any
new tower, support structure, or disguised support structure, the
applicant shall furnish the Director a statement affirming that applicant
conducted an analysis of available collocation opportunities on existing
wireless towers within the search ring defined by the applicant.
c.
Any new tower approved at a height of sixty (60) feet AGL or higher shall be designed and constructed to accommodate at least one (1) additional user unless a larger number is indicated by the response to the notification provisions herein. A written agreement committing to shared use as required by Subsection
(A)(9)(a) shall be submitted by the tower applicant. The willful and knowing failure of the applicant for a tower built for shared use to negotiate in good faith with potential users shall be cause for the withholding of future conditional use permits to the same applicant.
d.
Any new tower approved within a communication tower multi-use
interest area as designated by the map of the same title shall be
designed and constructed to accommodate the number of users indicated
by the plan to the extent feasible. The willful and knowing failure
of the applicant for a tower built for shared use to negotiate in
good faith with potential users shall be cause for the withholding
of future conditional use permits to the same applicant.
10.
Time Limits. All applications under this Article shall be processed
in accordance with the time limits established by Sections 67.5090
through 67.5103, RSMo., or, if applicable Sections 67.5110 through
67.5125, RSMo.
11.
Fees. Fees for applications under this Article shall not exceed
the limits established by Sections 67.5090 through 67.5103, RSMo.,
or, if applicable Sections 67.5110 through 67.5125, RSMo.
12.
New Wireless Support Structure/Substantial Modification. Prior
to the issuance of a building permit or conditional use permit, the
City shall require an applicant proposing to construct a new wireless
support structure, or to make a substantial modification, as defined
in Section 67.5092, RSMo., to a wireless support structure, to include
a copy of a lease, letter of authorization, or other agreement from
the property owner evidencing applicant's right to pursue the application,
and shall require such applicant to comply with all applicable permitting
and land use ordinances of the City. Any decision denying such application
shall be provided in writing to the applicant.
[R.O. 2005 §30-86; Ord. No. 2450 §1, 8-15-2001; Ord. No. 3222 §1, 7-15-2015; Ord. No. 3552, 6-21-2023]
A. With the exception of modifications that do not constitute a "substantial modification," as defined in Section 67.5092, RSMo., all proposals to operate, install, build, alter, modify, or expand any antenna, tower or disguised support structure shall require the approval of a conditional use permit. Applications for conditional use permits shall be filed and processed subject to and in the manner and time frame as established in Section
400.150, unless a different time frame is required by Section 67.5090, RSMo., et seq. A decision by the Council shall be accompanied by substantial evidence supporting the decision which shall be made a part of the written record of the meeting at which a final decision on the application is rendered. Evidence shall be under oath and may be submitted with the application or thereafter or presented during the public hearing(s) by the applicant or others.
B. All requests for collocation or replacement of transmission equipment
shall require a building permit, and shall be reviewed by the City
Planner.
1.
Within forty-five (45) days of receipt of the request, the City
Planner shall notify the applicant, in writing, whether the request
is approved or denied.
2.
The City Planner shall approve the request within forty-five
(45) days of receipt of the request, unless the City Planner determines
that the application is deficient or does not comply with applicable
building permit requirements.
3.
The application shall be deemed complete unless the City Planner
notifies the applicant in writing, within fifteen (15) days of submission,
of the specific deficiencies in the application which, if cured, would
make the application complete. Upon receipt of a timely written notice
that an application is deficient, an applicant may take fifteen (15)
calendar days from receiving such notice to cure the specific deficiencies.
4.
If the applicant cures the deficiencies within fifteen (15)
calendar days, the application shall be reviewed and processed within
forty-five (45) calendar days from the initial date the application
was received. If the applicant requires a period of time beyond fifteen
(15) calendar days to cure the specific deficiencies, the forty-five
(45) calendar days' deadline for review shall be extended by the same
period of time.
5.
If the City Planner fails to approve or deny the request within
the forty-five-day review period, accounting for all periods of tolling,
the request shall be deemed granted.
6.
Upon approval pursuant to this Section, no Architectural Review
Board approval shall be required.
7.
Historic Structures. No permit may be issued for collocation
to a certified historic structure as defined in Section 253.545, RSMo.,
until at least one (1) public hearing has been held by the City within
thirty (30) days prior to issuance. The City shall post public notice
of such hearing in a prominent location at City Hall at least fifteen
(15) days in advance of such hearing and shall provide written notice
to all property owners within the City limits whose property lies
within three hundred (300) feet of the parcel for which an application
has been submitted.
C. Findings Required. For those applications which require a conditional use permit, in addition to the determinations or limitations specified herein and by Section
400.150 for the consideration of conditional use permits, the Council shall also base its decision upon and shall make findings as to the existence of the following conditions:
1.
The design of the tower or structure, including the antennas,
shelter and ground layout, maximally reduces visual degradation and
otherwise complies with provisions and intent of the Article. New
towers shall be of a monopole design, unless it is shown that an alternative
design would equally or better satisfy this provision.
2.
The proposal minimizes the size of towers or structures that
will be required in the area.
If any one (1), but not more than one (1), of the above is not
satisfied, approval may be granted only on a finding of unique circumstances
otherwise necessitating approval to satisfy the purposes of this Article.
|
D. Additional Limitations.
1.
No tower or disguised support structure shall be approved at
a height exceeding one hundred fifty (150) feet AGL unless the applicant
clearly demonstrates that such height is required for the proper function
of the applicant's system or that such height is required for the
proper function of the applicant's system or that of a public safety
communications system of a governmental entity sharing the tower.
Such showing must also be supported by the opinion of a telecommunications
consultant hired by the City at the expense of the applicant. The
opinion of the consultant shall include a statement that no available
alternatives exist to exceeding the height limit or the reason why
such alternatives are not viable.
2.
If the City has by order agreed to participate in a multi-municipality
commission to coordinate new tower or structure applications, an application
made pursuant to this Article shall also be submitted to such commission
simultaneous with the filing of the request with the City. The Council
may consider any comments from such commission but shall not allow
a delay in receiving such comments to significantly delay a decision
on the conditional use permit.
[R.O. 2005 §30-87; Ord. No. 2450 §1, 8-15-2001; Ord. No. 3552, 6-21-2023]
A. In addition to conditional use permit approval, all antennas, towers,
shelters, disguised support structures or any other proposed equipment
placed on-site and/or associated with the use shall also be approved
by the Architectural Review Board.
B. The appearance, design and all construction materials must be approved
by a majority vote of the Architectural Review Board. Presentations
shall include renderings, photos, blueprints and other graphic aids
as may be required to define the appearance and design of the finished
product as well as its durability as to construction.
[R.O. 2005 §30-88; Ord. No. 2450 §1, 8-15-2001; Ord. No. 3552, 6-21-2023]
A. Inspections. By applying for a permit to operate, install, build
or modify any antenna, tower or support structure, an applicant grants
the City authority to enter onto its property to inspect the antenna,
tower or support structure for the purpose of determining whether
it complies with the applicable State law and all other construction
standards provided by the Code, Federal and State law. The City reserves
the right to conduct such inspections at any time.
B. Annual Filing Requirement. An applicant or antenna, tower or support
structure owner shall certify in writing that its antenna, tower or
support structure is structurally sound and conforms to the requirements
of the applicable State law and all other construction standards set
forth by the City Code, Federal and State law every year by filing
by January 1 of every year following the date of the grant of its
permit a sworn statement by the applicant or his/her representative
to that effect. All applicants with permits or owners of antenna,
tower or support structure in existence on the effective date of this
Article shall submit a statement no later than sixty (60) days from
the effective date and by January 1 of every year thereafter that
said antenna, tower or support structure is free from hazards and
that the antenna, tower or support structure does not pose an imminent
threat to the surrounding area or public health and safety. Together
with this statement, every applicant or owner shall provide a certificate
of liability insurance for no less than three hundred thousand dollars
($300,000.00) coverage for injury to persons or property as a result
of any antenna, tower or support structure failure or malfunction
or defect. All applicants or owners shall list the City as a party
who must be notified should this insurance be canceled or discontinued
for any reason thirty (30) days before the expiration of coverage.
C. Discontinuance/Sale/Transfer Of Use. In the event the permitted use
of a antenna, tower or support structure is discontinued, sold, transferred,
leased or assigned by the applicant or owner, written notice shall
be provided to the City of applicant's or owner's said intent.
[R.O. 2005 §30-89; Ord. No. 2450 §1, 8-15-2001; Ord. No. 3552, 6-21-2023]
A. The City may at any time revoke a permit for failure to comply with
the provisions of this Article and/or Code. To properly revoke a permit,
the City must comply with the procedures set forth below.
1.
The Director shall provide the applicant with written notice
of a cause for revocation and the intent to revoke and shall allow
applicant sixty (60) days subsequent to receipt of the notice in which
to correct the violation or to provide adequate assurance of performance
in compliance with this Article. Together with the notice required
herein, the Director shall provide applicant with written findings
of fact which are the basis of the revocation.
2.
The City shall provide the applicant with the right to a public hearing before the Council, which public hearing shall follow the sixty (60) days' notice required in Subsection
(A)(1). All interested parties shall be allowed an opportunity to be heard at the public hearing and present evidence.
3.
After the public hearing, the Council shall, within thirty (30)
days after the public hearing date, issue a written order setting
forth its findings of fact and conclusions of law forming the basis
for its decision.
4.
Upon written determination by the Council to revoke a permit,
the applicant may appeal the decision to a court of competent jurisdiction
pursuant to Chapter 536, RSMo.
5.
Upon satisfactory correction by applicant of the violation upon
which said notice was given as determined in the Director's sole discretion,
the initial notice shall become void.
6.
Upon applicant's failure to correct a violation as found by
the Council, the City Manager or his/her designee may issue an order
to disconnect utilities to said antenna, tower or support structure
to any utility company providing same. Said order shall not be issued
prior to thirty (30) days from the date of the Council's written determination.
Said order shall be served upon the Chief Executive Officer thereof,
together with the applicant at the last known address, and have attached
to it the findings of the Council.
[R.O. 2005 §30-90; Ord. No. 2450 §1, 8-15-2001; Ord. No. 3552, 6-21-2023]
A permit may not be sold, transferred, leased or assigned to
any other person.
[R.O. 2005 §30-91; Ord. No. 2450 §1, 8-15-2001; Ord. No. 3552, 6-21-2023]
A. Abandonment Of Antenna, Tower Or Support Structure. In the event the use of any antenna, tower or support structure has been discontinued for a period of one (1) year or in the event that an applicant has taken no action within one hundred eighty (180) days after the revocation of an antenna, tower or support structure permit pursuant to Section
400.580, such antenna, tower or support structure shall be deemed abandoned.
B. The City shall provide the antenna, tower or support structure owner
three (3) months' notice and an opportunity to be heard before the
Council before initiating such action. After such notice has been
provided, the City shall have the authority to initiate proceedings
to either acquire the antenna, tower or support structure and any
appurtenances attached thereto at the then fair market value, to approve
the sale of the antenna, tower or support structure to a third party
or, in the alternative, order the demolition of the antenna, tower
or support structure and all appurtenances.
C. The City shall provide the antenna, tower or support structure owner with the right to a public hearing before the Council, which public hearing shall follow the three (3) month notice required in Subsection
(B). All interested parties shall be allowed an opportunity to be heard at the public hearing.
D. After a public hearing is held pursuant to Subsection
(C), the Council may order the forfeiture to the City or demolition of the antenna, tower or support structure at the antenna, tower or support structure or property owner's expense.
[R.O. 2005 §30-93; Ord. No. 2450 §1, 8-15-2001; Ord. No. 3552, 6-21-2023]
The City Manager or his/her designee may authorize any person
to locate a tower, disguised support structure or antenna support
structure on publicly owned property and subject to the terms and
conditions of any lease agreement executed between the City and such
person.
[R.O. 2005 §30-94; Ord. No. 2450 §1, 8-15-2001; Ord. No. 3552, 6-21-2023]
A. Dangerous Structures. Should the City have to take action under the
Code provisions to remove a dangerous structure or abate a nuisance
or health hazard, then a tax bill may be assessed in the same manner
as for a building that is demolished or for the abatement of a nuisance.
B. Non-Waiver. Nothing in this Article shall preclude the City from
exercising any right or remedy it may have in law or equity to enforce
the terms and conditions of this Article.
C. Commercial Operation Of Unlawful Tower Or Antennas. Notwithstanding
any right that may exist for a governmental entity to operate or construct
a tower or structure, it shall be unlawful for any person to erect
or operate for any private commercial purpose any new antenna, tower
or disguised support structure in violation of any provision of this
Article, regardless of whether such antenna or structure is located
on land owned by a governmental entity.
D. Notwithstanding any right that may exist for a governmental entity
to operate or construct an antenna, tower, or support structure, it
shall be unlawful for any person to erect or operate for any private
commercial purpose any new antenna, tower, or support structure in
violation of this Article, regardless of whether such antenna, tower,
or support structure is located on land owned by a governmental entity.