[HISTORY: Adopted by the Common Council of the City of Muskego at time of adoption of Code (see Ch. 1, General Provisions, Art. II). Amendments noted where applicable.]
GENERAL REFERENCES
Construction standards — See Ch. 164.
Zoning — See Ch. 400.
A. 
Title. These regulations shall officially be known, cited, and referred to as the "Wireless Communications Facilities Siting Ordinance of the City of Muskego" (hereinafter "these regulations" or "this chapter").
B. 
Authority.
(1) 
This chapter is adopted under the authority of the Federal Telecommunications Act of 1996, §§ 62.23 and 66.0404, Wis. Stats., and Chapter 400, Zoning, of the City Code.
(2) 
The Plan Commission is vested with the authority to review, approve, conditionally approve, and disapprove applications for wireless communications facilities, including sketch, preliminary, and final plans.
C. 
Jurisdiction. These regulations apply to all mobile service support structures, as defined in § 66.0404, Wis. Stats., located within the corporate limits of the municipality or outside the corporate limits as provided by law. No mobile service support structure may be constructed without a building, site and operation plan approval from the Plan Commission and a conditional use grant.
D. 
Findings.
(1) 
Wireless communications comprise a rapidly growing segment of the utilities and communications sector and have merit and value for the City of Muskego and the region as a whole.
(2) 
The use of wireless services has grown substantially on a national basis since 1991, and it is estimated that more than 90% of all households in the United States currently utilize wireless service.
(3) 
Wireless communications are supportive of the public health, safety, and welfare in that they provide useful portable communications services for personal convenience, commerce, and emergency purposes.
(4) 
Police and emergency services are using portable wireless services more and more to communicate in times of crisis and natural disaster.
(5) 
The Federal Communications Commission requires license holders to provide coverage to areas within certain time frames where wireless communications licenses have been acquired; wireless communication providers are required to furnish quality communications services to meet the growing needs of both the public and businesses.
(6) 
Delays and uncertainty in the permit process which result from a lack of clear standards are an unreasonable limitation upon wireless service providers.
(7) 
The City of Muskego Plan Commission and Common Council undertook a deliberate process to establish policies, standards, guidelines, and ordinances regarding the siting of tower structures and antenna arrays for wireless communications.
(8) 
The Federal Telecommunications Act of 1996 preserves local zoning authority to reasonably regulate wireless communications; provided, however, that localities may not unreasonably discriminate among Federal Communications Commission license holders, and that localities may not prohibit or have the effect of prohibiting wireless communications facilities.
(9) 
The Federal Communications Commission has sole jurisdiction over the radio frequency emissions of wireless communications facilities so long as said facilities meet the standards thereof.
(10) 
State law was amended on or about July 2, 2013, by creating § 66.0404, Wis. Stats., which limits municipal authority with regard to telecommunications facilities in many respects, and the federal government also limits municipal authority concerning modifications to telecommunications facilities by 47 U.S.C. § 1455, and the City intends by this chapter to regulate telecommunications facilities only to the extent allowed by such state and federal laws.
E. 
Purpose. In order to protect the public health, safety, and general welfare of the community, while accommodating the communication needs of residents and business, these regulations are necessary to:
(1) 
Facilitate the provision of wireless telecommunications services to the residents and businesses of the municipality;
(2) 
Minimize adverse visual effects of towers through careful design and siting standards;
(3) 
Encourage the location of towers in nonresidential areas through performance standards and incentives;
(4) 
Avoid potential damage to adjacent properties from tower failure through structural standards and setback requirements;
(5) 
Provide mechanisms for the mitigation of tower proliferation when possible;
(6) 
Allow competition in wireless communications services;
(7) 
Encourage the provision of advanced communications services to the community; and
(8) 
Enable the City of Muskego to discharge its public trust consistent with the rapidly changing federal and state regulatory environment, industry competition, and technological development.
F. 
Interpretation; conflicts.
(1) 
Interpretation. In their interpretation and application, the provisions of these regulations shall be held to be the minimum requirements for the protection of public health, safety, and general welfare. These regulations shall be construed broadly to promote the purposes for which they are adopted.
(2) 
Conflicts. These regulations are not intended to interfere with, abrogate, or annul any other ordinance, rule or regulation, statute, or other provision of law except as authorized by applicable federal or state law and as provided in these regulations. Except to the extent that the City of Muskego is not authorized or is prohibited by applicable federal or state law from imposing higher or more restrictive standards, where any provision of these regulations imposes restrictions different from any other ordinance, rule or regulation, statute, or other provision of law, the provision which is more restrictive or imposes higher standards shall govern.
All terms used herein shall have the meaning described in § 66.0404(1), Wis. Stats. In addition, the following usage and defined terms apply throughout this chapter:
A. 
Usage.
(1) 
For the purpose of these regulations, certain abbreviations, terms, and words shall be used, interpreted, and defined as set forth in this section.
(2) 
Unless the context clearly indicates to the contrary, words used in the present tense include the future tense, and words used in the plural shall also indicate the singular.
B. 
Words and terms defined. As used in this chapter, the following terms shall have the meanings indicated:
APPLICANT
A person who applies for a wireless facility siting. An applicant can be the owner of the property or someone who is representing the owner of the property, such as a tenant, licensee, operator, builder, developer, optional purchaser, consultant, or architect.
COMPREHENSIVE PLAN
The current adopted Comprehensive Plan of the City of Muskego.
FAA
Federal Aviation Administration.
FCC
Federal Communications Commission.
GUYED TOWER
A mobile service support structure that is supported, in whole or in part, by guy wires and ground anchors.
LATTICE TOWER
A guyed or self-supporting, three- or four-sided, open, steel frame mobile service support structure.
LINE OF SIGHT
The direct view of an object from a designated location.
MONOPOLE TOWER
A mobile service support structure consisting of a single pole, constructed without guy wires and ground anchors.
MSSF
Mobile service support structures and mobile service facilities.
NATURAL AREAS and NATURAL AREA CORRIDORS
A specific location, area, or corridor as specifically established herein, in § 362-3D, that consists of:
(1) 
A three-dimensional area extending out from a particular viewpoint, focusing on a single object or group of objects, such as a ridgeline or a grouping of trees, resulting in an aesthetically pleasing view.
(2) 
Lateral terrain features such as valley sides or woodland as observed to either side of the observer, constraining the view into a narrow or particular field.
OPERATOR
A person or entity that owns or operates a wireless communications facility.
OWNER
The owner of the title to real property or the contract purchaser of real property of record, as shown on the latest assessment records of the City of Muskego. "Owner" also includes a deed holder or contract purchaser whose name does not appear in the latest assessment records but who presents to the municipality a copy of a deed or contract of sale showing date, book, and page of recording.
PUBLIC PROPERTY
Any real property, easement, air space, or other interest in real estate, including a street, owned by or controlled by this municipality or any other governmental unit.
SELF-SUPPORTED TOWER
A mobile service support structure that is constructed without guy wires and ground anchors.
STEALTH FACILITY
Any MSSF which is designed to blend into the surrounding environment. Examples of stealth facilities may include architecturally screened roof-mounted antennas, building-mounted antennas painted to match the existing structure, antennas integrated into architectural elements, and antenna structures designed to look like light poles.
SUPPORT STRUCTURE HEIGHT
The vertical distance measured from the base of the antenna support structure at grade to the highest point of the structure. If the support structure is on a sloped grade, then the average between the highest and lowest grades shall be used in calculating the antenna height.
A. 
Administration and enforcement officer.
(1) 
Public Works and Development Director or designee designated. The Public Works and Development Director or designee is hereby designated as the administrative and enforcement officer for the provisions of this chapter. For such duties he may be provided with the assistance of such additional persons as the Common Council may direct.
(2) 
Duties. In the enforcement of this chapter the Public Works and Development Director or designee shall perform the following duties:
(a) 
Issue the necessary zoning use permits and/or conditional use grants required by the provisions of this chapter and provided its provisions and those of the Building Code have been complied with.
(b) 
Keep an accurate record of all permits, numbered in the order of issuance.
(c) 
In case of any finding of a violation of a provision of this chapter, notify in writing the actual violator, where known, and the owner of the property on which the violation has taken place, indicating the nature of the violation and the action necessary to correct it.
(d) 
Carry out such additional responsibilities as are hereinafter set forth by the provisions of this chapter.
(3) 
Authority. In the enforcement of this chapter, the Public Works and Development Director or designee shall have the power and authority for the following:
(a) 
At any reasonable time and for any proper purpose, to enter upon any public or private premises and make inspection thereof.
(b) 
Upon reasonable cause or question as to proper compliance, to notify of violations and initiate penalty actions as described in Subsection G, requiring the cessation of any building, moving, alteration or use which is in violation of the provisions of this chapter, such revocation to be in effect until reinstated by the Public Works and Development Director or designee or the Zoning Board of Appeals, or take any other action as directed by the Common Council to ensure compliance with or to prevent violation of its provisions.
(c) 
In the name of the City and with authorization of the Common Council, to commence any legal proceedings necessary to enforce the provisions of this chapter or the Building Code, including the collection of forfeitures provided for herein.
B. 
Permits.
(1) 
Permit required. No MSSF shall be erected, structurally altered, or relocated within the City of Muskego until a building, site and operation plan has been approved and a conditional use permit has been issued by the Public Works and Development Director or designee and a building permit has been issued by the Building Inspector certifying that such building or structure, as proposed, would be in compliance with the provisions of this chapter and with the Building Code of the City.
(2) 
Permit procedure. An application for a building, site and operation plan and conditional use grant shall be made in conformity with this chapter.
(3) 
Permit expiration. If within 18 months of the date of application no occupancy permit has been issued, any building permit and zoning permit related thereto shall lapse and the Public Works and Development Director or designee shall make immediate investigation to ascertain that no use or occupancy has in fact commenced without proper authority. Upon showing of valid cause, the Public Works and Development Director or designee may grant an extension of such permit for a period not to exceed six months.
C. 
Relation to Zoning Code; performance standards.
(1) 
Relation to City Zoning Code. This chapter is adopted by zoning powers pursuant to §§ 62.23 and 66.0404, Wis. Stats., and except as noted herein is intended to be the sole City zoning regulation of MSSF facilities and operations within the City of Muskego. In the event of a conflict between these regulations and Chapter 400, Zoning, of the City Code, these regulations shall control.
(2) 
Performance standards. All wireless communications facilities shall adhere to the zoning and use performance standards described in § 362-4.
D. 
Natural areas and natural area corridors established. In order to protect and preserve natural areas within the City, the following natural areas and natural area corridors are established. All natural areas and natural area corridors established by this chapter shall be mapped, and all the notations, references and other information shown thereon shall be as much a part of this chapter as if the matters and information set forth by said map were all fully described herein.
(1) 
The following areas are designated as natural areas as defined in § 362-2B: Big Muskego Lake Wildlife Area.
(2) 
The following areas are designated as natural area corridors as defined in § 362-2B:
(a) 
The following corridors measured parallel to the right-of-way and measuring a distance 400 feet from the edge of the ultimate right-of-way, as illustrated in the adopted street system plan for the City of Muskego:
[1] 
County Trunk Highway HH/College Avenue.
[2] 
County Trunk Highway OO/North Cape Road.
[3] 
Crowbar Road.
[4] 
Durham Drive.
[5] 
Hillendale Drive.
[6] 
Tans Drive.
[7] 
Tess Corners Drive.
[8] 
Woods Road.
(b) 
The following corridors measured parallel to the right-of-way and measuring a distance 600 feet from the edge of the ultimate right-of-way, as illustrated in the adopted street system plan for the City of Muskego:
[1] 
County Trunk Highway L/Janesville Road.
[2] 
County Trunk Highway O/Moorland Road north of Janesville Road.
[3] 
County Trunk Highway Y/Racine Avenue.
[4] 
Moorland Road extension, between Janesville Road and Woods Road.
[5] 
State Trunk Highway 36/Loomis Road.
[6] 
State Trunk Highway 45.
E. 
Exemptions. The following are exempt from the provisions of this chapter:
(1) 
Emergency wireless communications facilities used for emergency communications by public officials.
(2) 
Amateur (ham) radio stations licensed by the Federal Communications Commission.
(3) 
Parabolic antennas less than three feet in diameter.
F. 
Amendments. For the purpose of protecting the public health, safety, and general welfare, the Plan Commission or Common Council may from time to time propose amendments to these regulations which may be acted on by the Common Council at a public meeting following any public notice as required by Wisconsin Statutes for an amendment to a zoning ordinance, in a manner similar to a zoning ordinance. Realizing that communication technologies are evolving and changing quickly, future innovations may reduce the impacts of individual facilities and render portions of these regulations obsolete. Therefore, periodic review and revision of these regulations will be necessary.
G. 
Violations and penalties.
(1) 
Penalties. Any person, firm, company, or corporation who or which violates, disobeys, omits, neglects or refuses to comply with, or who resists the enforcement of any of the provisions of this chapter shall be subject to a penalty as provided in § 1-4 of this Code, together with the costs of the action. Each day that a violation is permitted to exist shall constitute a separate violation and be punishable as such.
(2) 
Enforcement by injunction. Compliance with the provisions of this chapter may also be enforced by injunction order at the suit of the City or one or more owners of real estate situated within an area affected by the regulations of this chapter.
(3) 
Declared nuisances. Any building erected, structurally altered, or placed on a lot or any use carried on in violation of the provisions of this chapter is hereby declared to be a nuisance per se, and the City may apply to any court of competent jurisdiction to restrain or abate such nuisance.
H. 
Appeals. Petitioners requesting approval of an MSSF who are aggrieved by a decision of the Plan Commission or its administrative officers relating to a basic zoning regulation may appeal said decision to the Zoning Board of Appeals. The Zoning Board of Appeals shall hear said cases in accordance with Chapter 400, Zoning, of the City Code.
A. 
Co-location requirements. A proposal for a new mobile service support structure shall include an explanation as to why the applicant chose the proposed location and why the applicant did not choose co-location. This explanation shall include a sworn statement from the responsible party attesting that co-location within the applicant's search ring would not result in the same mobile service functionality, coverage and capacity, or is technically infeasible, or is economically burdensome.
B. 
Tower and antenna design requirements. Proposed or modified wireless communications towers and antennas shall meet the following design requirements:
(1) 
All MSSF proposed to be located within the Big Muskego Lake Wildlife Area shall be located on an existing tower structure or shall be stealth facilities.
(2) 
All MSSF proposed to be located within a designated scenic view shall be located on an existing tower structure or shall be stealth facilities.
(3) 
Mobile service support structures and antennas shall be designed to blend into the surrounding environment through the use of color and other camouflaging architectural treatments, except in instances where the color is dictated by federal or state authorities such as the Federal Aviation Administration.
(4) 
Mobile service support structures shall be designed structurally, electrically, and in all other respects to accommodate both the applicant's antennas and comparable antennas for at least three additional users if the tower is over 150 feet in height; at least two additional users if the mobile service support structure is between 100 feet and 150 feet in height; or at least one additional user if the mobile service support structure is between 60 feet and 99 feet in height. Mobile service support structures must be designed to allow for future rearrangement of antennas and to accept antennas mounted at varying heights.
(5) 
Mobile service support structures shall be of an unguyed monopole design. Lattice towers and guyed monopole towers shall be prohibited unless the Plan Commission determines that any such alternative designs would better blend in to the surrounding environment.
C. 
Accessory uses and accessory structures. All accessory uses and structures associated with MSSF shall comply with the following:
(1) 
Ground-mounted equipment, including but not limited to equipment cabinets and generators, shall be enclosed in a structure which is architecturally designed to be of residential character and screened from view by suitable vegetation, except where a design of nonvegetative screening better reflects and complements the architectural character of the surrounding neighborhood. Only one such structure shall be permitted per site; all co-locators must be housed within a common structure.
(2) 
All utility buildings and structures accessory to a wireless communications tower shall be architecturally designed to be of residential character and shall meet the minimum setback requirements of the underlying zoning district.
(3) 
No outdoor storage shall be permitted at any wireless communications tower site, unless specifically identified and approved in a building, site and operation plan.
D. 
Zoning and use. An MSSF shall be a conditional use, though it is not subject to the ordinary conditional regulations and procedures of Chapter 400, Zoning, of the City Code. Instead, the conditional use shall be reviewed pursuant to these regulations.
E. 
Lighting.
(1) 
Towers shall not be illuminated by artificial means and shall not display strobe lights unless such lighting is specifically required by the Federal Aviation Administration or other federal or state authority for a particular tower.
(2) 
Site lighting shall be permitted in accordance with the standards identified in the City of Muskego Design Manual.
F. 
Interference with public safety communications.
(1) 
No new or existing telecommunications service shall interfere with public safety telecommunications.
(2) 
All new or existing telecommunications service providers shall route cellular 911 calls originating within the City of Muskego directly to the City of Muskego Public Safety Answering Point as demanded by the City of Muskego Chief of Police, subject to the following: the Chief of Police shall impose no demands that conflict with any express requirement of any state or federal law or regulation, and all necessary procedures to implement this change shall be made pursuant to applicable state and federal laws.
G. 
Use and occupancy of public rights-of-way. The overhead, underground, or surface use and occupancy of public streets, alleys, rights-of-way, parks or other public spaces by wireless communications service providers are prohibited without a valid right-of-way occupancy permit. Requests for such permits by wireless communications service providers shall be processed in accordance with the requirements of Chapter 313, Streets and Sidewalks, of the City Code and the Common Council's policies related thereto.
H. 
Signs and advertising. The use of any portion of a tower for signs other than warning or equipment information signs is prohibited.
I. 
Noise. All noises emanating from MSSF, including their accessory structures and uses, shall be prohibited as described by § 263-6 of the City Code.
A. 
Abandoned or unused MSSF.
(1) 
Annual review. On or before July 1 of each calendar year, the owner of a mobile service support structure shall file annually a declaration with the Muskego Planning Division as to the continuing operation of every locator and co-locator installed subject to these regulations. Failure to do so may result in a determination by the City that the facility is no longer in use and considered abandoned.
(2) 
Determination of abandonment. A mobile service support structure that is not operated for a continuous period of six months shall be considered abandoned unless a building, site and operation plan or conditional use grant has been approved by the Plan Commission within the past 18 months and said facility is yet to be constructed.
(3) 
Abandoned MSSF shall be removed as follows:
(a) 
The City shall notify the owner of an abandoned mobile service support structure in writing and order the removal of the facility within 90 days of the receipt of the written notice.
(b) 
The owner of the facility shall have 30 days from the receipt of the written notice to demonstrate to the City that the facility has not been abandoned.
(c) 
In the event that a mobile service support structure is not removed within 90 days of the receipt of written notice, the MSSF may be removed by the City and the costs of removal seized from the surety, if applicable. Costs for removal may include all reclamation costs deemed necessary by the City to return the site to its pre-construction condition, including but not limited to road removal and establishment of vegetation. Costs for removal which are in excess of sureties provided in accordance with Subsection B shall be assessed against the property.
B. 
Security for removal.
(1) 
Prior to commencement of installation of any MSSF, the applicant shall establish a security mechanism (as hereinafter defined) to ensure that all of applicant's MSSF, including all components, including but not limited to antennas, equipment, shelter, tower, cables and any and all other physical materials of any kind or nature, will be removed and the property restored to its previous condition, reasonable wear and tear excepted, at termination or expiration of the use. For purposes hereof, "security mechanism" shall mean either (at the applicant's election) a cash security deposit posted with the City, an irrevocable letter of credit, or an escrow deposit established with a title company. Any such security deposit, letter of credit or escrow deposit shall be in the amount of $20,000.
(2) 
In the event the applicant establishes a security mechanism by posting a cash security deposit with the City, the City shall not be responsible for paying interest on said deposit. In the event the applicant establishes a security mechanism by establishing an escrow, interest accruing on said deposit shall be payable to the applicant from time to time, as and to the extent established within the escrow agreement with the title company.
(3) 
The applicant shall have the right to approve the title company and the form of escrow agreement with respect to any such escrow or the issuing bank and form of letter of credit with respect to any such letter of credit, if applicable. Any such escrow agreement or letter of credit shall, in part, include provisions that said agreement or letter of credit, as the case may be, cannot be terminated without the prior written consent of the City and a provision that the title company or issuer, as the case may be, pay all moneys held in said account to the City upon receipt of a written statement by the City certifying that the MSSF has not been removed and the property restored to its previous condition, reasonable wear and tear excepted, at the termination or expiration of the use.
(4) 
The applicant may, from time to time, substitute for the then-existing security mechanism one of the other two types of security mechanism described herein, and the City shall cooperate in connection with each such substitution.
(5) 
Upon final satisfaction of the applicant's removal obligations described in this section, all funds in the escrow or the letter of credit or the security deposit, as the case may be, less any funds claimed by the City to enforce compliance, shall be promptly returned to the applicant. In the event the City incurs expenses that exceed the amount of the security mechanism and/or if the security mechanism fails to reimburse the City for any of the City's expenses in fully removing the MSSF and restoring the property, for any reason, the City may impose a special charge against the property pursuant to § 66.0627, Wis. Stats., in addition to such other rights and remedies that may be available to the City, and all such rights are reserved.
A. 
New towers and facilities. The siting and construction of new mobile service support structures and facilities shall be subject to the following requirements:
(1) 
Application process. The applicant shall submit a written application which shall include all of the following information:
(a) 
The name and business address of, and the contact individual for, the applicant.
(b) 
The location of the proposed tower.
(c) 
The location of the mobile service facility.
(d) 
A construction plan which describes the tower, equipment, network components, antennas, transmitters, receivers, base stations, power supplies, cabling, and related equipment to be placed on or around the new tower.
(e) 
An explanation as to why the applicant chose the proposed location and why the applicant did not choose co-location, including a sworn statement from the responsible party attesting that co-location within the applicant's service area would not result in the same mobile service functionality, coverage, and capacity; is technically infeasible; or is economically burdensome.
(2) 
Determination of completeness within 10 days of submittal. The Public Works and Development Director or designee shall review the application and determine whether the application is complete. If the application includes all of the foregoing information, the application shall be found to be complete. The Public Works and Development Director or designee shall notify the applicant in writing within 10 days of receiving the application if it is found not to be complete, and such notice shall specify in detail the required information that was incomplete. Applicants are allowed to resubmit their application as often as necessary until it is complete.
(3) 
Conditional use review procedure. The MSSF shall be a conditional use and shall be reviewed pursuant to the following procedures:
(a) 
Plan Commission review. After an application and all required information have been filed, the Plan Commission shall review the matter and shall make a recommendation to the Common Council.
(b) 
Fee. Any petition shall be accompanied by a fee as set from time to time by the Common Council to defray the cost of notification and holding of public hearing. Such fee shall not exceed the limits established by § 66.0404(4)(d), Wis. Stats.
(c) 
Costs. Costs incurred by the City in obtaining legal, planning, engineering and other technical and professional advice in connection with the review of the conditional use and preparation of the conditions to be imposed shall be charged to the applicant.
(d) 
Determination. The Common Council shall hold a public hearing upon Class 2 notice as described in Ch. 985, Wis. Stats. The Common Council shall make a decision on the application within a reasonable time after receipt of the Plan Commission recommendations, provided further that final action shall be taken within 90 days of receipt of a complete application unless the time is extended by the applicant. Said decision shall be stated in writing and a copy made a permanent part of the City records. If conditional use status is not granted, the reasons therefor will be included in such record. A grant of conditional use status, subsequent changes or additions thereto and terminations thereof shall be recorded as follows:
[1] 
An official record of such conditional grant shall be prepared by the City Clerk on a form prescribed therefor which shall include the description of the use for which the grant is given and all conditions attached thereto. A copy of the completed form shall be recorded at the Waukesha County Register of Deeds as a covenant on the title for the premises for which the conditional use was granted.
[2] 
The occupancy permit shall be appropriately noted as to the conditional status granted.
[3] 
Indication shall also be made on the Zoning Map by appropriate code number or symbol.
B. 
Modifications. The construction of modifications to an existing mobile service support structure or mobile service facility shall be subject to the following requirements:
(1) 
Substantial modification. A substantial modification is regulated the same as a new structure or facility, as described in Subsection A above, except that the required plans should describe the proposed modifications rather than describe the new structure or facility.
(2) 
Not substantial modification.
(a) 
Application information. The applicant shall submit a written application that describes the applicant's basis for concluding that the modification is not substantial and all of the following information:
[1] 
The name and business address of, and the contact individual for, the applicant.
[2] 
The location of the affected support structure.
[3] 
The location of the proposed facility.
(b) 
Completeness determination within five days. The Public Works and Development Director or designee will determine whether the application is complete. If the application includes all of the foregoing information, the application shall be found to be complete. The Public Works and Development Director or designee must notify the applicant in writing within five days of receiving the application if it is found not to be complete, specifying in detail the required information that was incomplete. The applicant may resubmit as often as necessary until it is complete.
(c) 
Fee. Any petition shall be accompanied by a fee as set from time to time by the Common Council to defray the cost of review. Such fee shall not exceed the limits established by § 66.0404(4)(d), Wis. Stats.
(d) 
Costs. Costs incurred by the City in obtaining legal, planning, engineering and other technical and professional advice in connection with the review of the conditional use and preparation of the conditions to be imposed shall be charged to the applicant.
(e) 
Determination. The Common Council shall make a decision on the application within a reasonable time after receipt of the Plan Commission recommendations, provided further that final action shall be taken within 45 days of receipt of a complete application unless the time is extended by the applicant. Said decision shall be stated in writing and a copy made a permanent part of the City records. If approval is not granted, the reasons therefor will be included in such record.
(f) 
Limitations upon authority. The City review and action in the matter shall be subject to the limitations imposed by § 66.0404(4), Wis. Stats., and such other laws as may apply, which may include 47 U.S.C. § 1455. In the event the applicant believes the City has exceeded its authority in this regard, the applicant shall notify the Common Council in writing, and the Common Council reserves the right to reconsider the matter, to ensure that applicable laws are followed.
C. 
General approval standards. The following standards apply to all MSSF:
(1) 
The location of a proposed tower shall be compatible with the Comprehensive Plan and this chapter.
(2) 
The submitted site plan must comply with the performance criteria set in these regulations.
(3) 
The proposed facility/tower shall not unreasonably interfere with the view from any public park, natural scenic vista, historic building or district, or major view corridor.
(4) 
The MSSF will not interfere with a natural area or natural area corridor.
(5) 
The lowest six feet of the facility/tower must be visually screened by trees, large shrubs, solid walls, or fences and/or nearby buildings.
(6) 
The height and mass of the facility/tower must not exceed that which is essential for its intended use and public safety.
(7) 
The owner of the wireless communications facility must agree to permit other persons/cellular providers to attach cellular antenna or other communications apparatus which do not interfere with the primary purpose of the facility.
(8) 
The color of the proposed mobile service support structure shall be of a light tone or color (except where required otherwise by the FAA) so as to minimize the visual impact and the tower will have a security fence around the tower base or the lot where the tower is located.
(9) 
The mobile service support structure shall comply with any other applicable local, state, or federal regulations.
(10) 
All equipment for the applicant and all potential co-locators shall be housed in one building, to be designed and built by the applicant.
(11) 
No MSSF shall be located on a site containing a dwelling or be closer than 500 feet to a property line of an existing dwelling. No MSSF shall be closer than 500 feet to the property line of a vacant lot or vacant parcel in a residentially zoned district. These requirements are imposed primarily to preserve the residential character of such areas, to preserve residential property values, and avoid blight, and also for aesthetic reasons. The five-hundred-foot distances may be reduced in individual situations if the Plan Commission finds these purposes to be inapplicable to individual applications.
(12) 
An MSSF shall be set back from all property lines a distance equal to the height of the MSSF and comply with all setback and offset requirements of Chapter 400, Zoning, of the City Code, subject to the following: if an applicant provides the City with engineering certification showing that the tower is designed to collapse within a smaller area than the radius equal to the height of the tower, the smaller area shall be used unless the City has and provides to the applicant substantial evidence that the engineering certification is flawed.
(13) 
A side-mounted MSSF shall not project more than 42 inches from the side of the building facade, shall not extend above the highest point of the roof of the structure and shall be screened and camouflaged as required herein. The MSSF shall not project into an easement, driveway or setback unless otherwise specified in the conditional use permit.
(14) 
An equipment cabinet shall be located within or adjacent to the structure on which an MSSF is placed or located below natural grade underground, if site conditions permit and if technically feasible.
(15) 
The applicant(s) and the personal wireless service carrier shall jointly and severally warrant and represent to the City and its residents the safety of the MSSF. The personal wireless service carrier and the applicant(s), upon granting of a conditional use permit or amendment for an MSSF use, shall indemnify, protect and hold harmless the City, its officers and agents, and residents from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attorney fees (collectively "liabilities"), incurred by the City arising directly or indirectly from the MSSF use as contemplated herein and within the conditional use permit and the installation and operation of the MSSF. The personal wireless service carrier's compliance with this subsection is an express condition of the conditional use permit and is binding on any and all of personal wireless service carrier's or applicant's successors and assigns. The requirements of this subsection shall survive the termination of any such permit or amendment.
(16) 
The applicant shall carry a commercial general liability insurance policy with limits of liability not less than $1,000,000 general aggregate, $1,000,000 personal injury and $1,000,000 each occurrence. The applicant shall also carry umbrella liability insurance with limits of liability not less than $10,000,000 each occurrence and $10,000,000 aggregate. Coverage under either policy shall not contain a standard form pollution exclusion, nor shall it exclude claims or suits that arise from the effects of electromagnetic fields or radiation, if such coverage is available. The maximum deductible shall be $5,000 per occurrence.
(17) 
The applicant shall maintain the MSSF to standards that are imposed by the City at the time of granting of a permit or amendment thereto. Such maintenance shall include but shall not be limited to maintenance of the paint, structural integrity and landscaping. If the applicant fails to maintain the facility, the City may undertake the maintenance at the expense of the applicant or terminate or revoke the permit, at its sole option. If such maintenance expense is not paid by the owner within 30 days of notice by the City, the applicant agrees that the City's costs shall constitute a lien upon the subject property upon its execution and filing with the County Recorder's office.
(18) 
A conditional use permit or amendment granted to an applicant is specific to the owner and personal wireless service carrier and may not be assigned; provided, however, that the personal wireless service carrier may assign its interest in the permit to any subsidiary or other affiliate of the personal wireless service carrier. In the event of such assignment, the assignee shall re-execute the conditional use permit or amendment thereto within 30 days of the effective date of the assignment or the permit shall automatically expire. The applicant shall notify the City of any change in ownership or operations of the MSSF at least 90 days prior to such change taking place for approval by the City, which approval shall not be unreasonably withheld.
(19) 
Where the Common Council finds that strict compliance with the requirements of this section may result in extraordinary hardship or is not needed to ensure the City's compliance with federal or state law, the Common Council may modify such requirements only upon a written showing by the applicant(s) of noncompliance with applicable law or extraordinary hardship so that substantial justice may be done and the public interest secured. "Hardship" as used herein shall include, but not be limited to, a finding that special circumstances applicable to the property, including its size, shape, topography, location or surroundings, will deprive such property of privileges enjoyed by other property in the same classification in the same zoning district through the strict application of this section. In granting such modifications, the Common Council may require such conditions as will, in its judgment, secure substantially the objective of the standards or requirements so varied and modified.
(20) 
Any violation of the terms of this section or the conditional use permit may result in revocation by the City of the conditional use permit. The City may revoke the conditional use permit upon 60 days' prior notice if, in its sole judgment, it determines the MSSF poses a safety risk. If such safety risk is not cured by the applicant within 60 days after notice from the City, the City may revoke or modify the conditional use permit. Acceptance of any portion of the conditional use permit is acceptance of the entire conditional use permit and the terms of this section.
(21) 
Within 90 days after issuance of the FCC operational permit, the personal wireless service carrier shall provide a copy of such permit to the City and register the MSSF, providing information and data as may be requested by the City. Any change in the permit or registration data shall be filed with the City within 30 days after the change is made. The personal wireless service carrier shall submit to the City a copy of its FCC Form 600 prior to the City's approval of final inspection of a building permit for the MSSF or portion thereof.
(22) 
The City and its agents are authorized to enter on the subject property and MSSF site for the purpose of inspection and determining compliance with this section and the provisions of the conditional use permit.