City of Cottleville, MO Article II Board of Adjustment

Section 400.090 Board of Adjustment.

[Ord. No. 20 §2, 4-5-1984]

A. The Board of Adjustment shall be appointed and organized and have such powers and duties as provided by Sections 89.080, 89.090, 89.100 and 89.110, RSMo.; provided however, that the Board of Adjustment may only grant variances as to the height, area and lot requirements as are herein or hereafter enacted or amended and shall not have authority to vary or modify the application of any other zoning regulations or zoning districts as are herein or hereafter enacted or amended. Applications for variances shall be signed by all the owners of the property involved or by their agent or agents authorized to sign the application on their behalf, shall be submitted to the Board of Adjustment and shall contain or be submitted concurrently with the following information:

1. A legal description of the property to be affected.

2. A scaled map of such property, correlated with the legal description and clearly showing the property's location.

3. The names and addresses of all the owners of such property.

4. Date of filing with the Board of Adjustment.

5. The present zoning of such property.

6. The variance requested and the reason the variance is requested.

7. The names and addresses of all the owners of all the parcels of property which abut such property.

B. A non-refundable fee as set forth in the Schedule of Zoning and Subdivision Fees, as provided for in Section 405.790 of the Municipal Code, shall be paid by the applicant or applicants. At least fifteen (15) days' notice of the time and place of such hearing shall be published in a legal newspaper of general circulation within the City. The Board of Adjustment shall notify by mail all property owners known to the Board of Adjustment whose property abuts the property to be affected. Such notice shall be postmarked at least fifteen (15) days prior to the date of the hearing.

[Ord. No. 1778, 7-31-2019]

Section 400.095 Variance For Wireless Support Structures Or Wireless Facilities.

[Ord. No. 1748, 1-16-2019]

A. Notwithstanding the provisions of this Article II of Chapter 400 to the contrary, an application for a variance for a new wireless support structure, or for a substantial modification of a wireless support structure, shall be subject to the provisions of this Section.

B. Variance For A New Wireless Support Structure Or Substantial Modification Of A Wireless Support Structure.

1. When an applicant requests some variation in the requirements of Chapter 405 of the Municipal Code of the City of Cottleville to construct a new wireless support structure or for a substantial modification of a wireless support structure, and where the strict application of Chapter 405 would involve undue hardship, the applicant may request a variance pursuant to this Section 400.095.

2. In reviewing a requested variance under this Section 400.095, the Board of Adjustment shall consider the standards set forth in Section 400.090 of the Municipal Code of the City of Cottleville and whether denial of the variance will prohibit or have the effect of prohibiting the provision of personal wireless services under 47 U.S.C. § 332(C)(7)(B)(i)(II).

C. Application For A Variance.

1. An application for a variance to construct a new wireless support structure, or for a substantial modification of a wireless support structure, shall be made on an application form provided by the Director of Public Works. Each application shall be filed with the Director of Public Works and shall be accompanied by the data prescribed on the form and any additional information deemed necessary by the Board of Adjustment. The application shall be accompanied by the fee set forth in Section 400.090 of the Municipal Code, payable to the City to cover the costs of advertising, notification, and other administrative expenses associated with the review of the application. No part of such fee shall be returnable to the applicant.

2. An application for a variance to construct a new wireless support structure, or for a substantial modification of a wireless support structure, shall be signed by all fee owners of the real property for which the variance is sought or by their agent or agents having authority to sign the application on their behalf, accompanied by proper evidence of such agency relationship, and by the applicant, if other than the fee owners. The application shall be submitted to the Director of Public Works and shall contain or be submitted concurrently with the following information:

a. The information set forth in Section 400.090(A);

b. Photographs or other pictorial representations of the new wireless support structure, or the substantial modification of a wireless support structure, as viewed from neighboring properties to demonstrate if the wireless support structure is harmonious with the appearance and character of the neighborhood;

c. The type of wireless facilities, infrastructure or technology to be used by the applicant;

d. Solely with respect to an application for a new wireless support structure, a statement by the applicant that it conducted an analysis of available collocation opportunities on existing wireless support structures within the same search ring defined by the applicant, solely for the purpose of confirming that an applicant undertook such an analysis;

e. Copies of any submitted applications for building permits, electrical permits, road closure permits and/or architectural or engineering permits;

f. Any applicable indemnity, insurance or performance bond information required by law or City ordinance;

g. Proof of liability insurance coverage against any damage or personal injury caused by the negligence of the applicant or its employees, agents or contractors. Such insurance coverage must be with companies licensed to do business in the State of Missouri and rated no less than AA by Best or equivalent and must be maintained in force for the duration of the period during which the applicant holds the permit and for the all applicable statute of limitations periods. Certificates evidencing such insurance shall be furnished to the City prior to the issuance of the permit and must state, "The City of Cottleville is an additional insured," on a primary and non-contributory basis. The Certificate Holder shall be listed as "City of Cottleville, Attention City Clerk, 5490 Fifth Street, Cottleville, MO 63304" and the certificate shall bear an endorsement precluding cancellation of or change in coverage without at least thirty (30) days' written notice to the City. In the alterative of such insurance coverage, an applicant must demonstrate that it has in effect a comparable self-insurance program; and

h. All other information deemed necessary by the Director of Public Works.

D. Procedure.

1. Except as otherwise provided in this Section 400.095, the procedures set forth in Section 400.090 of the Municipal Code shall apply to all applications for a variance to construct a new wireless support structure, or for a substantial modification of a wireless support structure.

2. Within one hundred twenty (120) calendar days of receiving an application for a variance to construct a new wireless support structure, or for a substantial modification of a wireless support structure, or within such additional time as may be mutually agreed to by an applicant and the Board of Adjustment, the Board of Adjustment shall:

a. Conduct a hearing and review the application in light of its conformity with this Section 400.095:

(i) An application is deemed to be complete unless the Director of Public Works notifies the applicant, in writing, within thirty (30) calendar days of submission of the application, of the specific deficiencies in the application which, if cured, would make the application complete. This notice must specify the Municipal Code provision, ordinance, application instruction, or other publicly stated procedure that requires the information to be submitted. All deadlines for action in this Section shall be tolled from the time the Director of Public Works sends such notice to the applicant to the time the applicant provides the missing information.

(ii) Upon receipt of a timely written notice that an application is deficient, an applicant may take thirty (30) calendar days from receiving such notice to cure the deficiencies.

(iii) After the applicant makes a supplemental submission in response to this notice, the Director of Public Works must notify the applicant within ten (10) calendar days if the supplemental submission did not provide the information identified in the original notice of incompleteness. Missing documents or information that is not delineated in the original notice of incompleteness may not be delineated in this subsequent notice. All deadlines for action in this Section shall be tolled from the time the Director of Public Works sends such notice to the applicant to the time the applicant provides the missing information.

(iv) If the applicant cures the deficiencies within said period of thirty (30) calendar days from receipt of the initial notice of incompleteness, the application shall be reviewed and finally acted upon by the Board of Adjustment within one hundred twenty (120) calendar days from the initial date the application was received.

(v) If the applicant requires a period of time beyond thirty (30) calendar days to cure the specific deficiencies, the one hundred twenty (120) calendar day deadline for the Board of Adjustment to review the application, make the final decision, and advise the applicant, in writing, of its final decision, shall be extended by the same period of time.

(vi) Applications for building permits, electrical permits, road closure permits and/or architectural or engineering permits shall be considered, and final decisions rendered, in accordance with the time frames set forth in this Section.

b. Make its final decision to approve or disapprove the application;

c. Make findings of fact as to whether or not the standards described in this Section 400.095 have been met by the applicant. The burden of proof shall be on the applicant to prove that such standards have been met by the applicant. Thereafter, the Board of Adjustment shall either:

(i) Postpone consideration of the application because the application is incomplete;

(ii) Approve the application;

(iii) Approve the application with conditions; or

(iv) Deny the application; and

(v) Advise the applicant, in writing, of its final decision.

3. If the Board of Adjustment fails to act on an application for a variance to construct a new wireless support structure, or for a substantial modification of a wireless support structure, within the one hundred twenty (120) calendar day review period, or within such additional time as may be mutually agreed to by an applicant and the Board of Adjustment, the application shall be deemed approved.

4. Upon any final action being taken by the Board of Adjustment, the Board of Adjustment shall deliver, by registered mail, to the applicant a written decision which shall include or be accompanied by findings of fact and conclusions of law. The findings of fact shall be stated separately from the conclusions of law, but shall be delivered at the same time, and shall include a concise statement of the findings on which the Board of Adjustment based its decision. The decision shall be supported by substantial evidence in a written record and, if the application is denied, it must describe the specific reasons for denial.