[CC 1988 §29-86; Ord. No. 2788 §4, 10-21-1985]
Whenever there is an intended use which does not exactly fit into an existing permissive or conditional use category, the intended use shall be classified under the category to which it is most similar in nature. In such case the Planning Commission shall have the authority to further condition the operation of the intended use such that there can be no changes or alterations in the intended use.
[CC 1988 §29-87; Ord. No. 2788 §4, 10-21-1985]
Any ground-mounted satellite receiving antenna shall be located within the rear yard but not closer than ten (10) feet to any side lot line, except on corner lots the setback shall be equal to the front yard requirements.
[Ord. No. 3601 §1, 11-15-2004]
A. 
On corner lots, nothing shall be erected, placed, planted or allowed to grow in such a manner as to materially impede vision between a height of two (2) feet and eight (8) feet above curb grade within the triangular area formed by an imaginary line that follows street pavement edges and a line connecting them twenty (20) feet from their point of intersection. This sight triangle standard may be increased or decreased by the City Manager, when deemed necessary for traffic safety.
B. 
Except as provided in Subsection (A) above, no fence more than thirty percent (30%) solid or more than four (4) feet high may be located on any part of a lot.
C. 
Except as provided in Subsection (A) above, fences not more than six (6) feet high may be erected on those parts of a lot that are as far back or further from the street than the main building.
D. 
All supporting posts, cross members and protruding bolts, screws and/or hardware of site-obscuring fences and privacy screens shall be inside the lot and face toward the interior of the lot of the person, firm or corporation who erects, constructs or causes to have erected or constructed the site-obscuring fence or privacy screen.
[R.O. 1952 §23.8; CC 1988 §24-11; Ord. No. 2729 §1, 10-18-1982]
Any person who shall place, or permit to be placed or to remain, on or along any railroad or building front or any part of a building, fence or premises adjacent or contiguous to any street, alley or sidewalk any spikes or sharp-pointed cresting or any barbed wire or other things dangerous or liable to tear, snag, cut or injure any person or animal coming in contact therewith shall be deemed guilty of a misdemeanor; except, that use of materials described above shall be permitted for security purposes only in an industrial "M" or "M-1" or commercial zone "C-1", "C-2" or "C-3" if the subject wire is at least six (6) feet off the ground and attached to or associated with a fence of material which complies with this Section.
[CC 1988 §29-89; Ord. No. 2788 §5, 10-21-1985; Ord. No. 3195 §2 10-24-1994]
A. 
Maximum Height Generally. Maximum height limits for buildings and structures are as follows:
1. 
Agricultural district. No building shall exceed two and one-half (2½) stories or thirty-five (35) feet in height.
2. 
Residential district. No building shall exceed:
In the "R-1" and "R-2" Districts — two and one-half (2½) stories or thirty-five (35) feet.
In the "R-3" and "R-4" Districts — three (3) stories or forty-five (45) feet.
3. 
Commercial district. No building shall exceed four (4) stories or sixty-five (65) feet in height.
4. 
Industrial district. No building shall exceed four (4) stories or sixty-five (65) feet in height.
B. 
Exceptions.
1. 
The height limitations shall not apply to any of the following that would be incidental to uses permitted in this district: church steeples or spires, belfries, monuments, water towers, tanks, fire towers, stage towers or scenery lofts, cooling towers, ornamental towers or spires, radio and television towers, antenna or aerials, chimneys, elevator bulkheads, smokestacks, conveyors and flagpoles.
2. 
Public or semi-public service buildings, hospitals, institutions or schools when permitted in a district may be erected to a height not exceeding sixty (60) feet, and churches may be erected to a height not exceeding sixty-five (65) feet when the required side and rear yards are each increased by at least one (1) foot for each one (1) foot of additional building height above the height limit otherwise provided in the district in which the building is located.
3. 
Buildings that are to be used for storage purposes only may exceed the maximum number of stories that are permitted in the district in which they are located but such buildings shall not exceed the number of feet of building height permitted in such districts.
[CC 1988 §29-90; Ord. No. 2788 §6, 10-21-1985]
A. 
Minimum Yard Requirements. The following minimum yards, measured in feet, shall be provided within the districts as indicated below:
District
Front
Rear
Side
R-1
40
35
10
R-2
30
30
10
R-3
25
25
5
R-4
25
25
*#1FN
C-1
25
25
*#1FN
C-2
None
5
*#2FN
C-3
25
*#3FN
*#4FN
M-1
25
25
10
M-2
25
25
*#4FN
FN*
#1
Five (5) feet except for multiple-family-ten (10) feet.
#2
None unless the lot abuts a residential district-then five (5) feet.
#3
Ten (10) feet except where the lot abuts an alley-then none.
#4
Ten (10) feet except where the lot abuts a residential district-then twenty-five (25) feet.
B. 
Additional Requirements. The following additional requirements must also be observed.
1. 
Except for fences as allowed in Section 405.350, every part of required yard shall be open from its lowest point to the sky unobstructed, except for the ordinary projection of sills, belt courses, cornices, chimneys, buttresses, pilasters, solar energy systems, ornamental features, window air-conditioning units and eaves. None of the above projections shall extend into a minimum yard more than twelve (12) inches.
2. 
Where a lot or tract is used for educational, institutional, multiple-family, commercial, hotel, motel or industrial purposes, more than one (1) main building may be located upon the lot or tract, but all such buildings must provide the required yards around them for the district in which they are located.
3. 
An interior lot having a frontage on two (2) streets shall provide the required front yard on both streets.
4. 
On corner lots, there shall be a front yard provided on each street side, except that the buildable width of such lot shall not be reduced to less than thirty (30) feet. No accessory building shall project beyond the front yard line on either street.
5. 
Commercial or industrial buildings used in part for dwelling purposes shall provide side yards not less than five (5) feet in width, unless every dwelling room opens directly upon a front yard, side yard or court.
6. 
Where a lot abuts upon an alley, one-half (½) of the alley width may be considered as part of the required rear yard.
C. 
Exceptions To Yard Requirements.
1. 
In all residential districts, when lots composing forty percent (40%) or more of the frontage on the same side of the street between two (2) intersecting streets (excluding reverse corner lots) are developed with buildings, the front yard is established in the following manner:
a. 
Where the building farthermost from the street provides a front yard not more than ten (10) feet deeper than the building closest to the street, then the front yard for the frontage is and remains an average of the then existing front yards.
b. 
Where this subparagraph (a) is not the case and a lot is within one hundred (100) feet of a building on each side, then the front yard is a line drawn from the closest front corner of these two (2) adjacent buildings.
c. 
Where neither subparagraph (a) nor (b) is the case, and the lot is within one hundred (100) feet of an existing building on one (1) side only, then the front yard is the same as that of the existing adjacent building.
2. 
Public or semi-public service buildings, hospitals, institutions or schools when permitted in a district may be erected to a height not exceeding sixty (60) feet and churches may be erected to a height not exceeding sixty-five (65) feet when the required side and rear yards are each increased by at least one (1) foot for each one (1) foot of additional building height above the height limit otherwise provided in the district in which the building is located.
3. 
Open or lattice enclosed fire escapes, required by law, shall be permitted to project into a yard not to exceed five (5) feet when placed so as not to obstruct light and ventilation.
4. 
Terraces, uncovered porches and ornamental features may project into a required yard; provided, they do not extend more than three (3) feet above the floor level of the ground story and are at least two (2) feet from the adjacent side lot line.
5. 
Filling station pumps and pump islands may occupy required yards, provided however, that they are not less than fifteen (15) feet from all lot lines.
6. 
Signs in accordance with Article V of this Chapter are permitted.
7. 
An unenclosed balcony or unenclosed porch may project into a front yard for a distance not exceeding ten (10) feet. An enclosed vestibule, containing not more than forty (40) square feet, may project into a front yard for a distance not to exceed four (4) feet.
[CC 1988 §29-91; Ord. No. 2788 §7, 10-21-1985; Ord. No. 2802 §1, 6-4-1986]
A. 
Minimum Lot Area And Width.
Minimum Lot Area Table
District
Lot Width In Feet
Lot Area In Sq. Feet
Single-Family
Two-Family
Multiple- Family
"R-1"
100
20,000
20,000
N/A
N/A
"R-2"
65
12,000
12,000
N/A
N/A
"R-3"
50
7,200
7,200
3,600
N/A
"R-4"
50
6,250
6,250
3,125
1,500
"C-1"
None
N/A
"C-2"
None
N/A
If dwelling, as above
"C-3"
None
N/A
"M-1"
None
Dwellings prohibited
"M-2"
None
Dwellings prohibited
B. 
Exceptions To Lot Area And Width Requirements. When a lot of record, as of October 21, 1985, has less area or width than herein required in the district in which it is located, and the owner of such lot does not own any other parcel or tract adjacent thereto, said lot may nevertheless be used for a one-family dwelling or for any use permitted in the district in which it is located.
A. 
Purposes. The general purpose of this Section 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 communications and marketplace in De Soto; specifically, this Section is intended to:
1. 
Provide for the appropriate location and development of telecommunications facilities and systems to serve the citizens and businesses of the City of De Soto;
2. 
Minimize adverse visual impacts of communications antennas and support structure through careful design, siting, landscape screening and innovative camouflaging techniques;
3. 
Maximize the use of existing and new support structures so as to minimize the need to construct new or additional facilities;
4. 
Maximize the co-location of facilities on any new support structures;
5. 
Ensure that any new telecommunications tower or structure is located in an area compatible with the neighborhood or surrounding community;
6. 
Ensure that regulation of telecommunications towers and structures does not have the effect of prohibiting the provision of personal wireless services, and does not unreasonably discriminate among functionally equivalent providers of such service.
B. 
The Legislative Findings.
1. 
On February 8, 1996, Congress enacted the Federal Telecommunications Act of 1996 P.L. No. 104-104. 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.
2. 
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.
3. 
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.
4. 
The Federal Communications Commission (FCC) has exclusive jurisdiction over
a. 
The regulation of the environmental effects of radio frequency emissions from telecommunications facilities, and
b. 
The regulation of radio signal interference among users of the radio frequency spectrum.
5. 
Consistent with the Telecommunications Act of 1996, the regulations of this Section will not have the effect of prohibiting the provision of personal wireless services, and do not unreasonably discriminate among functionally equivalent providers of such service. The regulations also impose reasonable restrictions to protect the public safety and welfare and ensure opportunities for placement of antennas with prompt approval by the City. The ordinance does not attempt to regulate in areas within the exclusive jurisdiction of the FCC.
6. 
The uncontrolled proliferation of towers in the City of De Soto without adoption of new regulations would diminish property values, the aesthetic quality of the City, and would otherwise threaten the health, safety and welfare of the public.
C. 
Definitions. For the purposes of this Section, the following terms shall be deemed to have the meaning indicated below:
AGL (Above Ground Level)
Ground level shall be determined by the average elevation of the natural ground level within a radius of fifty (50) feet from the center location of measurement.
ANTENNA
Any device that transmits and/or receives radio waves for voice, data, or video communications purposes including, but not limited to, television, AM/FM radio, microwave, cellular telephone and similar forms of communications. The term shall exclude satellite earth station antennas less than two (2) meters in diameter (mounted within twelve (12) feet of the ground or building-mounted) and any receive-only home television antennas.
CABINET
A structure for the protection and security of communications equipment associated with one (1) or more antennas where direct access to equipment is provided from the exterior and that has a horizontal dimension that does not exceed four (4) feet by six (6) feet, and vertical height that does not exceed six (6) feet.
CITY MANAGER
City Manager designated by the City Council.
DISGUISED SUPPORT STRUCTURE
Any free-standing, manmade structure designed for the support of antennas, the presence of which is camouflaged or concealed as an appropriately-placed architectural or natural feature. Depending on the location and type of disguise used, such concealment may require placement underground of the utilities leading to the structure. Such structures may include but are not limited to clock towers, campaniles, observation towers, water towers, light standards, flag poles and artificial trees.
FAA
The Federal Aviation Administration.
FCC
The Federal Communications Commission.
HEIGHT
The vertical distance measured from the average grade of the base of the structure at ground level to its highest point and including the main structure and all attachments thereto.
MODIFICATION
Any addition, deletion, or change, including the addition or replacement of antennas, or any change to a structure requiring a building permit or other governmental approval.
SHELTER
A building for the protection and security of communications equipment associated with one (1) or more antennas and where access to equipment is gained from the interior of the building. Human occupancy for office or other uses or the storage of other materials and equipment not in direct support of the connected antennas is prohibited.
SUPPORT STRUCTURE
A tower or disguised support structure.
TOWER
A structure designed for the support of one (1) or more antennas and including guyed towers, self-supporting (lattice) towers or monopoles but not disguised support structures or buildings. The term shall also not include any support structure including attachments of sixty-five (65) feet or less in height owned and operated by an amateur radio operator licensed by the Federal Communications Commission.
D. 
General Requirements. The requirements set forth in this Section shall be applicable to all towers, antennas and other support structures installed, built or modified after March 17, 2003, to the full extent permitted by law.
1. 
Principal or incidental use. Antennas and support structures may be either a principal or incidental use in a commercial zoning district or park.
2. 
Building codes, safety standards and zoning compliance. To ensure the structural integrity of antenna support structures, the owner shall see that it is constructed and maintained in compliance with all standards contained in applicable State and local Building Codes, as amended from time to time. In addition to any other approvals required by this Section, no antenna, tower, or support structure shall be erected prior to receipt of a certificate of zoning authorization and the issuance of a building permit.
3. 
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 owner shall bring such devices and structures 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 Section shall be granted for any applicant having an uncured violation of this Section or any other governmental regulatory requirement related to such antenna or structures within the City.
4. 
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 application to install, build or modify antennas or support structures. Additional measures may be required as a condition of the issuance of a building permit or administrative permit as deemed necessary by the City Manager or by the Planning and Zoning Commission in the case of a conditional use permit.
5. 
Lighting. Antennas and support structures shall not be lighted 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 application to install, build or modify the antennas or support structure. Equipment cabinets and shelters may have lighting only as approved by the City Manager on the approved site development plan.
6. 
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 Section is prohibited.
7. 
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. 
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.
d. 
All towers shall be surrounded by a minimum six (6) foot high decorative wall constructed of brick, stone or comparable masonry materials and a landscape strip of not less than ten (10) feet in width and planted and maintained 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. In lieu of the required wall and landscape strip, an alternative means of screening may be approved by the City Manager in the case of a permitted use or use permitted by administrative permit, or by the Planning and Zoning Commission in the case of a conditional use permit, upon demonstration by the applicant that an equivalent degree of visual screening will be achieved.
e. 
All towers shall be separated from any off-site single or two (2) family residential structure a distance equal to the height of the tower. Towers on parcels adjacent to residentially zoned property shall meet the setbacks of the applicable zoning district as are required for a principal structure along the adjoining property line(s). Where adjacent to non-residentially zoned property, towers shall maintain setbacks as are required for accessory structures.
f. 
Ground anchors of all guyed towers, if permitted, shall be located on the same parcels as the tower and meet the setbacks of the applicable zoning district.
g. 
Vehicle or outdoor storage on any tower site is prohibited, unless otherwise permitted by the zoning.
h. 
On-site parking for periodic maintenance and service shall be provided at all antenna or tower locations consistent with the underlying zoning district.
8. 
Shared use.
a. 
Prior to the issuance of any permit to install, build or modify any tower, the tower owner shall furnish the City Manager an inventory of all of that owner's towers in or within one-half (½) mile of the City limits of De Soto and agree to shared use of such facilities subject to such technical limitations and financial terms as are reasonable. The inventory shall include the tower's reference name and number, the street location, latitude and longitude, structure type, height, type and mounting height of existing antennas and an assessment of available ground space for the placement of additional equipment shelters.
b. 
Any new tower approved at a height of sixty (60) feet AGL (Above Ground Level) 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 Subparagraph (a) shall be submitted by the tower applicant. The willful and knowing failure of the owner of a tower built for shared use to negotiate in good faith with potential users shall be cause for the withholding of future permits to the same owner to install, build or modify antennas or towers within the City.
c. 
Prior to any application for the construction of a new tower or disguised support structure, a copy of the application or a summary containing the height, design, location and type and frequency of antennas shall be delivered by certified mail to all known potential tower users as identified by a schedule maintained by the City. Proof of such delivery shall be submitted with the application to the City. The City Manager may establish a form required to be used for such notifications. Upon request, the City Manager shall place on a list the name and address of any user of towers or prospective user to receive notification of applications. The City Manager shall, before deciding on the application or forwarding it to the Planning and Zoning Commission for consideration, allow all persons receiving notice at least ten (10) business days to respond to the City applicant that the party receiving notice be permitted to share the proposed tower. The failure of the receiving party to use this process or respond to any such notice shall be considered cause for denying requests by such party for new towers or structures.
d. 
Any party seeking shared use of a tower subject to this provision shall, after responding to notice of an application, negotiate with the applicant for such use. The applicant may on a legitimate and reasonable business basis choose between multiple requests for shared use on the same tower or structure, and may reject any request where legitimate technical obstacles cannot be reasonably overcome or where the party requesting shared use will not agree to reasonable financial terms. Any party believing that the applicant has breached its duty to negotiate in good faith for shared use shall immediately notify the applicant and the City Manager in writing. The City Manager may reject the application upon a finding that shared use has been improperly denied. A notice of breach of duty shall explain the precise basis for the claim and shall be accompanied by payment of an administrative review fee of five hundred dollars ($500.00) to the City to offset the cost of review. After the applicant's receipt of the notice, the applicant shall have ten (10) calendar days to provide a written submission to the City Manager responding to the alleged violation of the shared use requirement. If deemed necessary by the City Manager, he/she may engage, at the cost of the party alleging the violation, a neutral, qualified technical consultant to provide an opinion on feasibility or costs of the shared use request. If the City Manager receives a notice alleging a violation of the shared use requirement, the time for a decision on an administrative permit is automatically extended for up to thirty (30) days until the City Manager has determined that the applicant has complied. An application for conditional use permit shall not be deemed complete for acceptance until a decision on compliance is reached.
E. 
Permitted Use. The placement as follows of antenna and towers are permitted in all zoning districts other than residential:
1. 
The attachment of additional or replacement antennas or shelters to any tower existing on the effective date of this Section or subsequently approved in accordance with these regulations, provided that additional equipment shelters or cabinets are located within the existing tower compound area.
2. 
The mounting of antennas on any existing building or structure provided that the presence of the antennas is concealed by architectural elements or satisfactorily camouflaged by painting a color identical to surface on which they are attached.
3. 
The mounting of antennas on or within any existing high-voltage electric transmission tower, but not exceeding the height of such tower by more than ten (10) feet.
4. 
The installation of antennas or the construction of a tower or support structure on buildings or land owned by the City following the approval of a lease agreement by the City Manager.
F. 
Authorization By Administrative Permit. The placement as follows of antenna and towers are permitted only by administrative permit approved by the City Manager.
1. 
The attachment of additional or replacement antennas or shelters to any tower existing on the effective date of this Section or subsequently approved in accordance with these regulations and requiring the enlargement of the existing tower compound area as long as all other requirements of this Section and the underlying zoning district are met.
2. 
The construction of a disguised support structure provided that all related equipment shall be placed underground or concealed within the structure when the structure is located in any district other than a district authorizing industrial uses. Equipment may be placed in a cabinet if the disguised support structure is incidental to an industrial, commercial, institutional or other non-residential use.
3. 
The placement of dual polar panel antennas on wooden or steel utility poles not to exceed forty (40) feet in height provided that all related equipment is contained in a cabinet.
4. 
Towers erected and maintained for a period not to exceed thirty (30) days for the purpose of replacing an existing tower, testing an existing or proposed network, or special events requiring mobile towers.
G. 
Application Procedures. Applications for administrative permits shall be made on the appropriate forms to the City Manager and accompanied by payment of the established fee.
1. 
A detailed site plan, based on a closed boundary survey of the host parcel, shall be submitted indicating all existing and proposed improvements including buildings, drives, walkway, parking areas and other structures, public rights-of-way, the zoning categories of the subject and adjoining properties, the location of and distance to off-site residential structures, required setbacks, required buffer and landscape areas, hydrologic features, and the coordinates and height AGL of the existing or proposed tower.
2. 
The City Manager shall issue a decision on the permit within forty-five (45) days of the date of application or the application shall be deemed approved unless the time period for review and action was extended pursuant to Subsection (D)(8). The City Manager may deny the application or approve the application as submitted or with such modifications are, in his/her judgment, reasonably necessary to protect the safety or general welfare of the citizens consistent with the purposes of this Section. The City Manager may consider the purposes of this Section and the factors established herein for granting a conditional use permit, as well as any other considerations consistent with this Section. A decision to deny an application shall be made in writing, and state the specific reasons for the denial.
H. 
Appeals. Appeals from the decision of the City Manager shall be made in the same manner as otherwise provided for the appeal of administrative decisions and directly to the City Council.
I. 
Conditional Use Permit Required. All proposals to install, build or modify an antenna or support structure not permitted by Subsections (E) and (F), shall require the approval of a conditional use permit following a duly advertised public hearing by the Planning and Zoning Commission.
1. 
Applications for conditional use permits shall be filed and processed subject to and in the manner and time frame as established in Section 405.430 of the Zoning Code. A decision by the Commission 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 by the applicant or others.
2. 
Additional minimum requirements. No conditional use permit shall be issued unless the applicant has clearly demonstrated by substantive evidence that placement of an antenna or support structure pursuant to Subsection (E) (Permitted Use) or Subsection (F) (Administrative Permits) of this Section is not technologically or economically feasible. The Planning and Zoning Commission may consider current or emerging industry standards and practices, among other information, in determining feasibility.
3. 
Findings required. In addition to the determinations or limitations specified herein and by Section 405.430 for the consideration of conditional use permits, the Commission shall also base its decision upon, and shall make findings as to, the existence of the following conditions:
a. 
No existing towers, structures or buildings within the necessary geographic area for the applicant's tower meet the applicant's necessary engineering requirements considering
(1) 
Height,
(2) 
Structural strength,
(3) 
Resulting signal interference,
(4) 
Feasibility of retrofitting,
(5) 
Feasibility of redesigning the applicant's tower network, or
(6) 
Other limiting conditions that render existing towers, structures or buildings within the applicant's required geographic area unsuitable.
b. 
That 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 this Section. New towers shall be of a monopole design, unless it is shown that an alternative design would equally or better satisfy this provision.
c. 
That the proposal minimizes the number and/or size of towers or structures that will be required in the area.
d. 
That the applicant has not previously failed to take advantage of reasonably available shared use opportunities or procedures provided by this Section or otherwise.
If any one (1), but not more than one (1), of the first five (5) determinations is not satisfied, approval may be granted only on a finding of unique circumstances otherwise necessitating approval to satisfy the purposes of this Section.
4. 
Additional limitations. No tower 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 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.
J. 
Obsolete Tower Structures. Any upper portion of a tower which is not occupied by active antennas for a period of twelve (12) months, and any entire tower which is not so occupied for a period of six (6) months, shall be removed at the owner's expense. Removal of upper portions of a tower manufactured as a single unit shall not be required. Failure to comply with this provision or to properly maintain the tower and premises shall constitute a nuisance that may be remedied by the City at the tower or property owner's expense.
K. 
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 Section, regardless of whether such antenna or structure is located on land owned by a governmental entity.