This chapter shall be known and cited as the "Wireless Telecommunications
Facilities Siting Ordinance" of Kennebunkport, Maine (hereinafter
referred to as the "chapter").
This chapter is adopted pursuant to the enabling provisions
of Article VIII, Part Second, Section 1 of the Maine Constitution;
the provisions of 30-A M.R.S.A. § 3001 (Home Rule), and
the provisions of the Planning and Land Use Regulation Act, 30-A M.R.S.A.
§ 4312 et seq.
The purpose of this chapter is to provide a process and a set
of standards for the construction of wireless telecommunications facilities
in order to:
A. Implement a municipal policy concerning the provision of wireless
telecommunications services and the siting of their facilities;
B. Establish clear guidelines, standards and time frames for the exercise
of municipal authority to regulate wireless telecommunications facilities;
C. Allow competition in telecommunications service;
D. Encourage the provision of advanced telecommunications services to
the largest number of businesses, institutions and residents of Kennebunkport;
E. Permit and manage reasonable access to the public rights-of-way of
Kennebunkport for telecommunications purposes on a competitively neutral
basis;
F. Ensure that all telecommunications carriers providing facilities
or services within Kennebunkport comply with the ordinances of Kennebunkport;
G. Ensure that Kennebunkport can continue to fairly and responsibly
protect the public health, safety and welfare;
H. Encourage the co-location of wireless telecommunications facilities
and alternative technologies, thus helping to minimize adverse visual
impacts on the community;
I. Enable Kennebunkport to discharge its public trust consistent with
rapidly evolving federal and state regulatory policies, industry competition
and technological development;
J. Further the goals and policies of the Comprehensive Plan, while promoting
orderly development of the Town with minimal impacts on existing uses;
K. Protect the scenic and visual character of the community; and
L. Comply with the 2012 Spectrum Act and the Telecommunications Act
of 1996, as each is amended.
To obtain approval from the CEO or the Planning Board, an application
must comply with the standards in this section.
A. CEO approval standards. An application for approval by the CEO under §
290-5A(1) must meet the following standards:
(1) The proposed facility is an expansion, accessory use, or co-location
to a conforming structure legally existing at the time the application
is submitted.
(2) The applicant has sufficient right, title, or interest to locate
the proposed facility on the existing structure.
(3) The proposed facility increases the height of the existing structure
by no more than 20 feet.
(4) The proposed facility will be constructed with materials and colors
that match or blend with the surrounding natural or built environment
to the maximum extent practicable.
(5) The proposed facility, to the greatest degree practicable, shall
have no unreasonable adverse impact upon districts, sites, buildings,
structures or objects, significant in American history, architecture,
archaeology, engineering or culture, that are listed, or eligible
for listing, in the National Register of Historic Places [see 54 U.S.C.
§ 300308; 36 CFR 60 and 800].
B. Planning Board approval standards. An application for approval by the Planning Board under §
290-5A(2) must meet the following standards:
(1) Location. New wireless telecommunications facilities installed on new towers may be permitted only in the following district as designated in Chapter
240, Land Use: Free Enterprise Zone.
(2) Siting on municipal property. If an applicant proposes to locate
a new wireless telecommunications facility or expand an existing facility
on Town property, the applicant must show the following:
(a)
The proposed location complies with applicable municipal policies
and ordinances.
(b)
The proposed facility will not interfere with the intended purpose
of the property.
(c)
The applicant has adequate liability insurance and a lease agreement
with the Town that includes reasonable compensation for the use of
the property and other provisions to safeguard the public rights and
interests in the property.
(3) Design for co-location. A new wireless telecommunications facility
and related equipment must be designated and constructed to accommodate
expansion for future co-location of at least three additional wireless
telecommunications facilities or providers. However, the Planning
Board may waive or modify this standard where the district height
limitation effectively prevents future co-location.
(4) Height. A new wireless telecommunications facility must be no more
than 200 feet in height.
(5) Setbacks. A new or expanded wireless telecommunications facility
must comply with the setback requirements for the zoning district
in which it is located, or be set back 105% of its height from all
property lines, whichever is greater. The setback may be satisfied
by including the areas outside the property boundaries if secured
by an easement. The following exemptions apply:
(a)
The setback may be reduced by the Planning Board upon a showing
by the applicant that the facility is designed to collapse in a manner
that will not harm other property.
(b)
An antenna is exempt from the setback requirement if it extends
no more than five feet horizontally from the edge of the structure
to which it is attached, and it does not encroach upon an abutting
property.
(c)
This setback does not apply to the installation of co-located
wireless telecommunication facilities or small-cell facilities on
alternative tower structures.
(6) Landscaping. A new wireless telecommunications facility and related
equipment must be screened with plants from view by abutting properties,
to the maximum extent practicable. Existing plants and natural land
forms on the site shall also be preserved to the maximum extent practicable.
(7) Fencing. A new wireless telecommunications facility must be fenced
to discourage trespass on the facility and to discourage climbing
on any structure by trespassers.
(8) Lighting. A new wireless telecommunications facility must be illuminated
only as necessary to comply with FAA or other applicable state and
federal requirements. However, security lighting may be used as long
as it is shielded to be down-directional to retain light within the
boundaries of the site to the maximum extent practicable.
(9) Color and materials. A new wireless telecommunications facility must
be constructed with materials and colors that match or blend with
the surrounding natural or built environment, to the maximum extent
practicable. Unless otherwise required, muted colors, earth tones,
and subdued hues shall be used.
(10)
Structural standards. A new wireless telecommunications facility
must comply with the current Electronic Industries Association/Telecommunications
Industries Association (EIA/TIA) 222 Revision Standard entitled "Structural
Standards for Steel Antenna Towers and Antenna Supporting Structures."
(11)
Visual impact. The proposed wireless telecommunications facility
will have no unreasonable adverse impact upon designated scenic resources
within the Town, as identified either in the Town's Comprehensive
Plan, or by a state or federal agency. In determining the potential
unreasonable adverse impact of the proposed facility upon the designated
scenic resources, the Planning Board shall consider the following
factors:
(a)
The extent to which the proposed wireless telecommunications
facility is visible above tree line, from the viewpoint(s) of the
impacted designated scenic resource;
(b)
The type, number, height, and proximity of existing structures
and features, and background features within the same line of sight
as the proposed facility;
(c)
The extent to which the proposed wireless telecommunications
facility would be visible from the viewpoint(s);
(d)
The amount of vegetative screening;
(e)
The distance of the proposed facility from the viewpoint and
the facility's location within the designated scenic resource; and
(f)
The presence of reasonable alternatives that allow the facility
to function consistently with its purpose.
(12)
Noise. During construction, repair, or replacement, operation
of a backup power generator at any time during a power failure, and
testing of a backup generator between 8:00 a.m. and 9:00 p.m. is exempt
from existing municipal noise standards.
(13)
Historic and archaeological properties. The proposed facility,
to the greatest degree practicable, will have no unreasonable adverse
impact upon a historic district, site or structure which is currently
listed on or eligible for listing on the National Register of Historic
Places.
C. Standard conditions of approval. The following standard conditions
of approval shall be a part of any approval or conditional approval
issued by the CEO or Planning Board. Where necessary to ensure that
an approved project meets the criteria of this chapter, the Planning
Board can impose additional conditions of approval. Reference to the
conditions of approval shall be clearly noted on the final approved
site plan, and shall include:
(1) The owner of the wireless telecommunications facility and his or
her successors and assigns agree to:
(a)
Respond in a timely, comprehensive manner to a request for information
from a potential co-location applicant, in exchange for a reasonable
fee not in excess of the actual cost of preparing a response.
(b)
Negotiate in good faith for shared use of the wireless telecommunications
facility by third parties.
(c)
Allow shared use of the wireless telecommunications facility
if an applicant agrees in writing to pay reasonable charges for co-location.
(d)
Require no more than a reasonable charge for shared use of the
wireless telecommunications facility, based on community rates and
generally accepted accounting principles. This charge may include,
but is not limited to, a pro rata share of the cost of site selection,
planning project administration, land costs, site design, construction
and maintenance, financing, return on equity, depreciation, and all
of the costs of adapting the tower or equipment to accommodate a shared
user without causing electromagnetic interference. The amortization
of the above costs by the facility owner shall be accomplished at
a reasonable rate, over the life span of the useful life of the wireless
telecommunications facility.
(2) Upon request by the Town, the applicant shall certify compliance
with all applicable FCC radio frequency emissions regulations.
Any changes to an approved application must be approved by the CEO or the Planning Board, in accordance with §
290-5.
Any person aggrieved by a decision of the CEO or the Planning Board under this chapter may appeal the decision to the Zoning Board of Appeals as an administrative appeal under Chapter
240, Land Use. Written notice of an appeal must be filed with the Zoning Board of Appeals within 30 days of the decision. The notice of appeal shall clearly state the reasons for the appeal.
Any person who owns or controls any building or property that
violates this chapter shall be fined in accordance with 30-A M.R.S.A.
§ 4452. Each day such violation continues after notification
by the CEO shall constitute a separate offense.
The terms used in this chapter shall have the following meanings:
ALTERNATIVE TOWER STRUCTURE
Clock towers, bell steeples, light poles, water towers, electrical
transmission line towers, smokestacks, existing buildings, and similar
mounting structures that camouflage, or conceal or support the presence
of an antenna(s).
ANTENNA HEIGHT
The vertical distance measured from the base of the antenna
support structure at grade to the highest point of the structure,
even if said highest point is an antenna. Measurement of tower height
shall include antenna, base pad, and other appurtenances and shall
be measured from the finished grade of the facility site. 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.
ANTENNA/ANTENNA ARRAY
A system of one or more rods, panels, discs or similar devices
used for the transmission or reception of radio frequency signals.
These include, but are not limited to, omnidirectional antennas (whips
or rods), directional antennas (panels) and parabolic antennas (dish
or disc).
CO-LOCATION
The use of a wireless telecommunications facility by more
than one wireless telecommunications provider.
DESIGNATED SCENIC RESOURCE
That specific location, view, or corridor, as identified
as a scenic resource in the Town's Comprehensive Plan or by a state
or federal agency, that consists of:
A.
A three-dimensional area extending out from a particular viewpoint
on a public way or within a public recreational area, focusing on
a single object, such as a mountain, resulting in a narrow corridor,
or a group of objects, such as a downtown skyline or mountain range,
resulting in a panoramic view corridor; or
B.
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, as seen from a viewpoint on a public
way or within a public recreational area.
EXPANSION
The addition of antennas, towers, or other devices to an
existing structure.
FAA
The Federal Aviation Administration or its lawful successor.
FCC
The Federal Communications Commission or its lawful successor.
HEIGHT
The vertical measurement from a point on the ground at the
mean finish grade adjoining the foundation as calculated by averaging
the highest and lowest finished grade around the building or structure,
to the highest point of the building or structure. The highest point
shall exclude farm building components, flagpoles, chimneys, ventilators,
skylights, domes, water towers, bell towers, church spires, processing
towers, tanks, bulkheads, or other building accessory features usually
erected at a height greater than the main roofs of buildings.
HISTORIC DISTRICT
A geographically definable area possessing a significant
concentration, linkage or continuity of sites, buildings, structures
or objects united by past events or aesthetically by plan or physical
development and identified in the Town's Comprehensive Plan, which
is listed or is eligible to be listed on the National Register of
Historic Places. Such historic districts may also comprise individual
elements separated geographically, but linked by association or history.
HISTORIC LANDMARK
Any improvement, building or structure of particular historic
or architectural significance to the Town relating to its heritage,
cultural, social, economic or political history, or which exemplifies
historic personages or important events in local, state or national
history identified in the Town's Comprehensive Plan, which has been
listed or is eligible to be listed on the National Register of Historic
Places.
HISTORIC OR ARCHAEOLOGICAL RESOURCES
Resources that are:
A.
Listed individually in the National Register of Historic Places
or eligible for listing on the National Register;
B.
Certified or preliminarily determined by the Secretary of the
Interior as contributing to the historical significance of a registered
historic district or a district preliminarily determined by the Secretary
of the Interior to qualify as a registered historic district;
C.
Individually listed on a state inventory of historic places
in states with historic preservation programs approved by the Secretary
of the Interior;
D.
Individually listed on a local inventory of historic places
in communities with historic preservation programs that have been
certified by Secretary of the Interior through the Maine Historic
Preservation Commission; or
E.
Areas identified by a governmental agency such as the Maine
Historic Preservation Commission as having significant value as an
historic or archaeological resource and any areas identified in the
Town's Comprehensive Plan, which have been listed or are eligible
to be listed on the National Register of Historic Places.
LINE OF SIGHT
The direct view of the object from the designated scenic
resource.
PRINCIPAL USE
The use other than one which is wholly incidental or accessory
to another use on the same premises.
PUBLIC RECREATIONAL FACILITY
A regionally or locally significant facility, as defined
and identified either by state statute or in the Town's Comprehensive
Plan, designed to serve the recreational needs of Kennebunkport property
owners.
SMALL-CELL FACILITY
An antenna, radio, power source and meter, disconnect switch,
fiber optic cable, and supporting equipment, if any, installed on
a utility pole owned by a regulated public utility and installed within
the public right-of-way.
UNREASONABLE ADVERSE IMPACT
That the proposed project would produce an end result which:
A.
Is excessively out of character with the designated scenic resources
affected, including existing buildings, structures and features within
the designated scenic resource; and
B.
Would significantly diminish the scenic value of the designated
scenic resource.
VIEWPOINT
That location which is identified either in the Town's Comprehensive
Plan or by a federal or state agency, and which serves as the basis
for the location and determination of a particular designated scenic
resource.
WIRELESS TELECOMMUNICATIONS FACILITY
A facility that transmits, receives, distributes, provides
or offers telecommunications services, radio or television signals,
or any other spectrum-based transmissions/receptions, together with
the facility's associated antennas, microwave dishes, horns, cables,
wires, conduits, ducts, lightning rods, electronics and other types
of equipment for the transmission, receipt, distribution or offering
of such signals; wireless communication towers, antenna support structures,
and other structures supporting said equipment and any attachments
to those structures including guy wires and anchors, equipment buildings,
generators, parking areas, utility services, driveways and roads and
other accessory features.
Notwithstanding any other provision of law to the contrary,
this chapter shall become effective immediately upon passage but shall
be retroactive to any application not pending within the meaning of
1 M.R.S.A. § 302 as of August 26, 1999.