[Added 7-22-2014 by Ord.
No. 14-03]
The purpose of these regulations is to provide for the safest
and most efficient integration of cellular antenna towers for cellular
telecommunications services or personal communications services within
the community; to provide for such facilities in coordination with
the recommendations of the Comprehensive Plan; and to allow for such
facilities with the intention of furthering the public health, safety,
and general welfare.
As used in this article, the following terms shall have the
meanings indicated:
Man-made trees, clock towers, bell towers, steeples, light
poles and similar alternative-design mounting structures that accommodate,
camouflage, minimize or conceal the presence of cellular antennas
or cellular antenna towers and that are constructed primarily for
the purpose of accommodating cellular antennas or cellular antenna
towers or are reconstructed for the purpose of accommodating cellular
antennas or cellular antenna towers. This does not include existing
structures erected for another primary purpose, but which subsequently
have cellular antennas attached to or located within them, without
any reconstruction of the original structure. For the provisions of
these regulations, an alternative cellular antenna tower is considered
a cellular antenna tower.
Transmitting, receiving, or other equipment used to support
cellular telecommunications service or personal communications service.
This definition does not include towers.
Any exterior transmitting or receiving device mounted on,
or attached to, the rooftop of a building through gravity mounts or
other surface attachments used for wireless or other telecommunications
signals; integrated into the natural rooftop profile of a building
so that it resembles a permissible rooftop structure, such as a ventilator,
cooling equipment, solar equipment, water tank, chimney or parapet.
A tower constructed for, or an existing facility that has
been adapted for, the location of transmission or related equipment
to be used in the provision of cellular telecommunications services
or personal communications services.
The distance from the anchored base of the tower, whether
on the top of another building or at grade, to the highest point of
the antenna structure.
A cabinet designed to house radio equipment, similar in size
to a traffic signal cabinet, not designed for human occupancy. Any
maintenance to radio equipment can only be done from outside the cabinet,
as opposed to a larger-sized equipment shelter that can be totally
accessed by service personnel.
A retail telecommunications service that uses radio signals
transmitted through cell sites and mobile switching stations.
Any system of wires, poles, rods, reflecting disks, or similar
devices used for the transmission or reception of electromagnetic
waves, not meeting the definition of a "structure" as defined by this
chapter. Temporary facilities shall be subject to issuance of a locational
permit from the Division of Planning prior to being located on a property.
Locating two or more transmission antennas or related equipment
on the same cellular antenna tower.
Significant wildlife habitat and migration corridors, unique
vegetation and critical plant communities, and ridgelines.
Unstable or potentially unstable slopes, undermining, faulting,
landslides, rockfalls, flood, wildfire, or similar naturally occurring
dangerous features or soil conditions or natural features unfavorable
to development.
A type of wireless transmission tower that is supported by
thin guy wires.
A self-supporting tower with multiple legs and cross-bracing
of structural steel.
A slender self-supporting tower on which wireless antennas
can be placed.
Has the meaning as defined in 47 U.S.C. § 332(c).
The necessary search area within which a site for a cellular
antenna tower should, pursuant to radio frequency requirements, be
located.
An application to construct a cellular antenna tower submitted
to the Planning Commission in conformity with KRS 100.985 through
KRS 100.987.
Has the meaning as defined in KRS 278.010(3).
To the greatest extent feasible, applicants are encouraged to
consider properties owned by the local government for the location
of cellular towers. Whenever possible, cellular antenna towers, whether
temporary or permanent, shall be sited at locations that minimize
their adverse effect on residential uses in the immediate area. Only
when no other adequate site is available shall a cellular antenna
tower be permitted in a residential zone, unless located on a property
not used or intended for residential purposes. In accordance with
the procedures established by this article, cellular antenna towers
may be permitted in any zone when approved by the Planning Commission,
with the following exceptions:
A.
No cellular
antenna tower shall be constructed on land that is environmentally
sensitive or a geologic hazard area as delineated in the Henderson
City-County Comprehensive Plan and the definitions herein, unless
the tower has received approval or necessary permits from the appropriate
state or federal governmental regulatory agency charged with permitting
activities in these areas.
B.
No cellular
antenna tower shall be located along a scenic byway, as designated
by the Commonwealth of Kentucky, so as to have a negative impact on
the scenic qualities of the roadway and the views from the roadway.
When approved by the Planning Commission, any wireless communications
facility proposed to be located along a state and/or federally designated
scenic byway, or within a scenic view corridor, shall be located on
an existing tower structure or utility pole, or shall be designed
as an alternative tower, as described in § 29.02. Any tower
or antenna that is not an alternative tower design shall be designed
to blend into the surrounding environment through the use of color
and/or other camouflaging architectural treatments, except in instances
where color is dictated by federal or state authorities, such as the
Federal Aviation Administration. In addition, the base of the tower
and any supporting equipment shall be located either 300 feet from
the right-of-way or beyond the viewshed of the designated scenic byway,
whichever is greater.
Cellular antenna towers for cellular telecommunications services
or personal communications services may be allowed in any zone after
a Planning Commission review in accordance with the following procedures
to ascertain agreement with the adopted Comprehensive Plan and the
regulations contained within this chapter.
A.
Applicability.
Every utility, or company that is engaged in the business of providing
the required infrastructure to a utility, that proposes to construct
a cellular antenna tower shall submit a completed uniform application
to the Planning Commission. Where the Planning Commission finds that
circumstances or conditions relating to the application of an alternative
cellular antenna tower are such that one or more of the requirements
of the uniform application listed below are not necessary or desirable
for the protection of surrounding property or the public health, safety,
and general welfare, and that such special conditions or circumstances
make one or more said requirements unreasonable, the Planning Commission,
or its duly authorized representative, may modify or waive such requirement
of the uniform application, either permanently or on a temporary basis.
Any such modification or waiver shall be requested by the applicant,
and the applicant shall submit a written justification for each requested
modification or waiver. The Planning Commission shall not regulate
the placement of antennas or related equipment on an existing structure.
B.
Uniform
application requirements. Applications for the construction of cellular
antenna towers for cellular telecommunications services or personal
communications services shall include the following:
(1)
The
full name and address of the applicant.
(2)
The
applicant's articles of incorporation, if applicable.
(3)
A
geotechnical investigation report signed and sealed by a professional
engineer registered in Kentucky that includes boring logs and foundation
design recommendations.
(4)
A
written report, prepared by a professional engineer or land surveyor
registered in Kentucky, of findings as to the proximity of the proposed
site to flood hazard areas.
(5)
The
lease or sale agreement for the property on which the tower is proposed
to be located, except that if the agreement has been filed in abbreviated
form with the County Clerk, an applicant may file a copy of the agreement
as recorded by the County Clerk and, if applicable, the portion of
the agreement that specifies, in the case of abandonment, a method
that the utility will follow in dismantling and removing the proposed
cellular antenna tower, including a timetable for removal.
(6)
The
identity and qualifications of each person directly responsible for
the design and construction of the proposed tower.
(7)
A
site development plan or survey, signed and sealed by a professional
engineer registered in Kentucky, that shows the proposed location
of the tower and all easements and existing structures within 500
feet of the proposed site on the property on which the tower will
be located, and all easements and existing structures within 200 feet
of the access drive, including the intersection with the public street
system.
(8)
A
vertical profile sketch of the tower, signed and sealed by a professional
engineer registered in Kentucky, indicating the height of the tower
and the placement of all antennas.
(9)
The
tower and foundation design plans and a description of the standard
according to which the tower was designed, signed, and sealed by a
professional engineer registered in Kentucky.
(10)
A map, drawn to a scale no less than one inch equals 200 feet, that
identifies every structure and every owner of real estate within 500
feet of the proposed tower.
(11)
A statement that every person who, according to the records of the
property valuation administrator, owns property within 500 feet of
the proposed tower or property contiguous to the site upon which the
tower is proposed to be constructed has been:
(a)
Notified by certified mail, return receipt requested, of the proposed
construction, which notice shall include a map of the location of
the proposed construction;
(b)
Given the telephone number and address of the local Planning Commission;
and
(c)
Informed of his or her right to participate in the Planning Commission's
proceedings on the application.
(12)
A list of the property owners who received the notice, together with
copies of the certified letters sent to the listed property owners.
(13)
A copy of the notice that the Chief Executive Officer of the affected
local government and the legislative body (i.e., City Manager, Board
of Commissioners of the City of Henderson; County Judge/Executive,
Henderson County Fiscal Court; Mayor of Corydon) have been notified,
in writing, of the proposed construction.
(14)
A statement that the Henderson City-County Airport has been notified,
in writing, of the proposed construction and a copy of the notification.
(15)
A statement that the applicant has considered the likely effects
of the installation on nearby land uses and values and has concluded
that there is no more suitable location reasonably available from
which adequate service to the area can be provided, and that there
is no reasonably available opportunity to locate its antennas and
related facilities on an existing structure, including documentation
of attempts to locate its antennas and related facilities on an existing
structure, if any, with supporting radiofrequency analysis, where
applicable, and a statement indicating that the applicant attempted
to locate its antennas and related facilities on a tower designed
to host multiple wireless service providers' facilities or on an existing
structure, such as a telecommunications tower or other suitable structure
capable of supporting the applicant's antennas and related facilities.
(16)
A map of the area in which the tower is proposed to be located, that
is drawn to scale, and that clearly depicts the necessary search area
within which an antenna tower should, pursuant to radiofrequency requirements,
be located.
(17)
A grid map that shows the location of towers or other structures
(including buildings) located within the search ring for the subject
facility and which are capable of its support within an area that
includes:
C.
Confidentiality
of application. All information contained in the application and any
updates, except for any map or other information that specifically
identifies the proposed location of the cellular antenna tower then
being reviewed, shall be deemed confidential and proprietary within
the meaning of KRS 61.878. The Planning Commission shall deny any
public request for the inspection of this information, whether submitted
under Kentucky's Open Records Act or otherwise, except when ordered
to release the information by a court of competent jurisdiction. Any
person violating this subsection shall be guilty of official misconduct
in the second degree as provided under KRS 522.030. The confidentiality
of the applications and any updates of the application can be waived
by the written authorization of the applicant.
D.
Application
fee. An applicant for the construction of cellular antenna towers
for cellular telecommunications services or personal communications
services shall pay an application fee in the amount set by the Planning
Commission upon submission of a uniform application.
E.
Processing
of application. Applications for the construction of cellular antenna
towers for cellular telecommunications services or personal communications
services shall be processed as follows:
(1)
At
least one public hearing on the proposal shall be held, at which hearing
interested parties and citizens shall have the opportunity to be heard.
Notice of the time and place of such hearing shall be published at
least once, in the highest circulation newspaper in the City-County,
provided that one publication occurs not less than seven calendar
days nor more than 21 calendar days before the occurrence of such
hearing. A public notice sign will also be placed on the property
by the Planning Commission.
(2)
Notice
of the hearing shall be given at least 14 days in advance of the hearing
to the owner of every parcel of property within 500 feet of the proposed
tower or property contiguous to the site upon which the tower is proposed
to be constructed. Records maintained by the property valuation administrator
may be relied upon conclusively to determine the identity and address
of said owner. In the event a property is in condominium or cooperative
forms of ownership, then the person notified by mail shall be the
president or chairperson of the owner group that administers property
commonly owned by the condominium or cooperative owners. A joint notice
may be mailed to two or more co-owners of an adjoining property who
are listed in the property valuation administrator's records as having
the same address.
(3)
Upon
holding the hearing, the Planning Commission shall, within 60 days,
commencing from the date that the application is received by the Planning
Commission, or within a date specified in a written agreement between
the Planning Commission and the applicant, make its final decision
to approve or disapprove the uniform application. If the Planning
Commission fails to issue a final decision within 60 days, and if
there is no written agreement between the Planning Commission and
the utility to a specific date for the Planning Commission to issue
a decision, it shall be presumed that the Planning Commission has
approved the utility's uniform application.
An applicant shall provide information demonstrating compliance
with the requirements contained herein. Potential sites that should
be considered (in order from most preferred to least preferred) include
street rights-of-way, existing utility towers, industrial zones, commercial
zones, and government buildings. Where the Planning Commission finds
that circumstances or conditions relating to the particular application
are such that one or more of the requirements listed below are not
necessary or desirable for the protection of surrounding property
or the public health, safety, and general welfare, and that such special
conditions or circumstances make one or more said requirements unreasonable,
the Planning Commission, or its duly authorized representative, may
modify or waive such requirement, either permanently or on a temporary
basis. Any such modification or waiver shall be requested by the applicant,
and the applicant shall submit a written justification for each requested
modification or waiver.
A.
Monopole
cellular antenna towers shall be permitted in any zone. Lattice and
guyed cellular antenna towers shall be permitted in any zone except
for residential zones.
B.
Lattice
and guyed cellular antenna towers distance from residential buildings.
When constructed in an agricultural zone, said towers shall be located
a minimum distance of not less than 250 feet from all existing residential
structures. Distance shall be measured from the base of the tower
to the nearest wall of the residential structure.
C.
Setbacks.
All structures constructed in connection with guyed or lattice cellular
antenna towers, except fences and/or guy wires, shall be a minimum
distance from the property line or lease line equal to at least 1/2
the height of the tower, but not less than 50 feet. All structures
constructed in connection with monopole or alternative cellular antenna
tower shall comply with the applicable setback requirements established
for other structures within the applicable zoning district. Alternative
cellular antenna towers that are to be located as part of a utility
service facility (e.g., power pole or telephone pole) shall comply
with setback requirements applicable to such utility service facilities,
if any.
D.
Height.
A cellular antenna tower, or alternative antenna tower structure,
may be constructed to a maximum height of 200 feet, regardless of
the maximum height requirements listed in the specific zoning district.
This also applies to any tower taller than 15 feet constructed on
the top of another building or structure, with the height being the
overall height of building/structure and tower together, measured
from the grade to the highest point. The Planning Commission may allow
antennas greater than 200 feet in height upon review of the applicant's
justification that the additional height meets the criteria identified
herein § 29.05.
E.
Construction.
The cellular antenna tower shall be constructed in compliance with
the current ANSI/EIA/TIA 222-F standards and other applicable state
standards.
F.
Illumination.
Cellular antenna towers shall not be illuminated, except in accordance
with other state or federal regulations.
G.
Site
unstaffed. Personnel may periodically visit the site for maintenance,
equipment modification, or repairs. To accommodate such visits, ingress/egress
shall be only from approved access points.
H.
Fencing.
Woven wire or chain link (eighty-percent open) or solid fences made
from wood or other materials (less than fifty-percent open) shall
be used to enclose the site. Such fences shall not be more than eight
feet in height and may be located within the front, side, or rear
yard. The use of barbed-wire or sharp pointed fences shall be prohibited
in or along any boundary adjoining residential or MHP Zones.
I.
Screening.
Screening shall be provided by evergreen trees, with a minimum height
of six feet, planted in a staggered pattern at a maximum distance
of 15 feet on center. The screening shall be placed in an area between
the property line, or lease line, and a ten-foot setback.
J.
Access
drives. Surfacing of all driveways and off-street parking areas shall
comply with the requirements of the applicable local zoning ordinance;
the Planning Commission may allow gravel access drives in cases where
it is determined there is a hardship or other mitigating circumstances.
K.
Signs.
There shall be no signs permitted, except those displaying emergency
information, owner contact information, warning or safety instructions,
or signs that are required by a federal, state, or local agency. Such
signs shall not exceed five square feet in area.
L.
Number
of service providers. All new cellular antenna towers shall be designed
and constructed to accommodate a minimum of three service providers.
M.
Lease
agreements. All option and site lease agreements shall not prohibit
the possibility of co-location, and in the case of abandonment, shall
include a method that the utility will follow in dismantling and removing
the proposed cellular antenna tower, including a timetable for removal.
N.
Approval
of Federal Aviation Administration and the Kentucky Airport Zoning
Commission is required; or documentation where approval is not required
shall be submitted prior to the issuance of a building permit for
the construction of the cellular antenna tower.
O.
Mitigating
design standards for cellular antenna towers in residential zones.
When no adequate alternate site for a cellular antenna tower is available,
a site in a residential zone may be permitted. The Planning Commission
shall consider the following mitigating design standards and may reduce
or modify these standards in cases where it can be demonstrated that
there is extreme hardship:
(1)
The
Planning Commission shall have the power to impose additional landscaping
requirements, which may include plantings, trees, and fencing designed
to complement the character of the landscaping in the surrounding
residential area.
(2)
Design
and materials to be used in the accessory building or buildings may
be required to be submitted to the Planning Commission for review
and approval.
(3)
Asphalt
or other hard-surface paving shall be provided for driveways and parking.
(4)
A
1:1 height-to-yard ratio shall be required. A reduction in the height-to-yard
ratio may be permitted if no other location for the tower can be found.
(5)
Monopole
or alternative tower design shall be used in any residential zone;
and paint colors, such as light gray or light blue, shall be used
to minimize any negative visual impact the tower or antenna may have
on adjoining properties. The tower must be maintained on a regular
basis by the owner of the facility in order to ensure that it continues
to have a minimal visual impact on the surrounding area.
The Planning Commission shall have the authority to hear and
decide requests by an applicant for a cellular antenna tower. The
Planning Commission may approve, disapprove, or take no action on
the request for a cellular antenna tower.
A.
The burden
shall be on the applicant to establish the following by a clear preponderance
of the evidence:
(1)
The
application is in agreement with the Comprehensive Plan;
The application meets all requirements of the Zoning Ordinance;
(2)
Reasons
why the site is appropriate for a cellular antenna tower and why it
will not have an adverse effect on the health, safety and welfare
of the adjoining area;
(3)
Reasons
why the tower will not alter the essential character of the surrounding
area;
(4)
Reasons
why the applicant has been unsuccessful in its attempts to co-locate
on towers designed to host multiple wireless service providers' facilities
or other existing structures, such as a telecommunications tower or
another suitable structure capable of supporting the applicant's facilities.
B.
The Planning
Commission shall not regulate the placement of a cellular antenna
tower on the basis of the environmental effects of radiofrequency
emissions to the extent that the proposed facility complies with the
regulations of the Federal Communications Commission concerning radiofrequency
emissions.
Any amendments to plans, except for minor adjustments as determined
by the Planning Commission, or its duly authorized representative,
shall be made in accordance with the procedure required by § 29.04,
subject to the same limitations and requirements as those under which
such plans were originally approved.
