[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
A.
Statement Of Purpose. The general purpose of this Article XI ("Article") is to regulate the placement, construction, and modification of telecommunications wireless communications facilities to protect the health, safety, and welfare of the public, while at the same time not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in the City of Monett. Specifically, this Article is intended to:
1.
Provide for the appropriate location and development of telecommunications
facilities and systems to serve the citizens and businesses of the
City of Monett;
2.
Minimize adverse visual impacts of wireless communications facilities
through careful design, siting, landscape screening, and innovative
camouflaging techniques that provide predictability for nearby property
owners and others that future uses will not materially alter such
approved aesthetic protections without zoning hearing procedures and
input from interested parties;
3.
Ensure that any new wireless communications facilities are located
in an area compatible with the neighborhood or surrounding community
to the extent possible; and
4.
Ensure that regulation of wireless communications facilities
does not have the effect of prohibiting the provision of personal
wireless services and does not unreasonably discriminate among functionally
equivalent providers of such service and promotes the provision and
availability of communication services within the City.
B.
Applicability; Preemption. Notwithstanding any ordinance to the contrary,
the procedures set forth in this Article shall be applicable to all
wireless communications facilities existing or installed, built or
modified after the effective date of this Article to the fullest extent
permitted by law. No provision of this Article shall apply to any
circumstance in which such application shall be unlawful under superseding
Federal or State law, and furthermore, if any Section, Subsection,
sentence, clause, phrase, or portion of this Article is now or in
the future superseded or preempted by State or Federal law or found
by a court of competent jurisdiction to be unauthorized, such provision
shall be automatically interpreted and applied as required by law.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
As used in this Article, the following terms shall have the
meanings and usages indicated:
Ground level shall be determined by the average elevation
of the natural ground level within a radius of fifty (50) feet from
the center location of measurement.
Any device that transmits and/or receives wireless radio
waves for voice, data, or video communications purposes, including,
but not limited to, television, AM/FM radio, texts, microwave, cellular
telephone, broadband, internet, and similar forms of communications.
The term shall exclude satellite earth station antenna less than two
(2) meters in diameter [mounted within twelve (12) feet of the ground
or building-mounted] and any receive-only home television antenna.
A utility pole that is owned and/or operated by the City
but shall not include municipal electric utility distribution poles
or facilities.
A structure for the protection and security of communications
equipment associated with one (1) or more antennas where direct access
to equipment is provided from the exterior and that has horizontal
dimensions that do not exceed four (4) feet by six (6) feet, and vertical
height that does not exceed six (6) feet.
To install, attach, construct, mount, maintain, modify, operate,
or replace wireless communications facilities on or immediately adjacent
to a wireless support structure or pole for the purpose of transmitting
and/or receiving radio frequency signals whether or not there is an
existing antenna or other attachment on the wireless support structure
or pole, and/or to modify an existing wireless support structure for
the purpose of installing, attaching, or mounting an antenna or other
attachment on such structure all in compliance with applicable standards
and laws.
The Zoning Inspector or his/her designee or official acting
in such capacity.
Any free-standing, man-made structure designed for the support
of antennas, the presence of which is camouflaged or concealed as
an appropriately placed and designed architectural or natural feature.
Depending on the location and type of disguise used, such concealment
may require placement underground of the utilities leading to the
structure. Such structures may include but are not limited to clock
towers, campaniles, observation towers, light standards, flag poles,
and artificial trees. For purposes of this definition, a structure
"camouflaged or concealed as an appropriately placed and designed
architectural or natural feature" shall mean:
It is consistent with and contributes to and does not detract
from the character and property values and use of the area and neighborhood
in which it is located;
It does not contain distorted proportions, size, or other features
not typically found on the type of structure or feature to which it
is designed to replicate;
It cannot be identified as a support structure by persons with
reasonable sensibilities and knowledge;
Its equipment, accessory buildings, or other aspects or attachments
relating to the disguised support structure are wholly concealed using
a manner consistent with and typically associated with the architectural
or natural structure or feature being replicated; and
It is of a height, design, and type that would ordinarily occur
at the location and neighborhood selected.
Any structure capable of supporting wireless communications
facilities (other than a support structure) in full conformance with
the design and other requirements of this Article and is:
The Federal Aviation Administration.
A small wireless facility that meets the following requirements
for an antenna and associated equipment:
No more than seven (7) cubic feet in volume [comprised of no
more than twenty-seven (27) square feet of exterior surface area,
excluding the surface width equal to the width of the existing structure
or utility pole to which it is mounted, on an imaginary enclosure
around the perimeter thereof, excluding cable or cable conduit of
four (4) inches or less]. Volume shall be the measure of the exterior
displacement of the antenna and associated equipment;
Located with the consent of the owner on an existing structure
or utility pole, or concealed within or on a replacement utility pole
if the appearance is not materially altered and the existing structure
or utility pole is no more than five (5) feet taller;
Not exceeding six (6) feet above the top of an existing structure
or utility pole for a total height not exceeding forty-five (45) feet
[nor taller than more than six (6) feet above the average of similar
poles within three hundred (300) feet].
The Federal Communications Commission.
The vertical distance measured from the average grade of
the base of the structure at ground level to its highest point and
including the main structure and all attachments thereto.
Any use authorized herein that exists in addition to the
principal use of the property.
Any addition, deletion, or change, including the addition
or replacement of antennas, or any change to a structure requiring
a building permit or other governmental approval.
The area on, below, or above a public roadway, highway, street,
public sidewalk, alley, or utility easement dedicated for compatible
use. Right-of-way does not include any City-owned aerial lines.
A building for the protection and security of communications
equipment associated with one (1) or more antennas and where access
to equipment is gained from the interior of the building. Human occupancy
for office or other uses or the storage of other materials and equipment
not in direct support of the connected antenna is prohibited.
An antenna and associated equipment that meets the following:
An antenna of no more than three (3) cubic feet in volume; and
All other associated equipment, to the extent permitted by applicable
law to be calculated, of cumulatively no more than twenty-eight (28)
cubic feet in volume; provided, that no single piece of equipment
on the utility pole shall exceed nine (9) cubic feet in volume, and
no single piece of ground-mounted equipment shall exceed fifteen (15)
cubic feet in volume.
A tower or disguised support structure.
A structure designed for the support of one (1) or more antennas
and including guyed towers, self-supporting (lattice) towers, or monopoles,
but not disguised support structures, utility poles, or buildings.
The term shall also not include any support structure that includes
attachments of sixty-five (65) feet or less in height owned and operated
solely for use by an amateur radio operator licensed by the FCC.
A pole that is or may be used for wireline communications,
lighting, traffic control, signage, or a similar function, which may
also support a small wireless facility or fast-track.
The requisite agreement between a wireless communications
services provider and the City which is submitted along with all applications
for co-location or attachment of any device to City property or City
utility pole.
Any antenna, small wireless facility, "fast-track," cabinet,
shelter, support structure, and associated equipment, which in combination
transmits and/or receives wireless radio waves for voice, data, or
video communications purposes, including, but not limited to, television,
AM/FM radio, texts, microwave, cellular telephone, broadband, internet,
and similar forms of communications.
Any person or entity that provides wireless communications
services, to also include any person or entity that builds or installs
wireless communication or broadband transmission equipment, wireless
facilities, wireless support structures, or utility poles and that
is not a wireless services provider but is acting as an agent or a
contractor for a wireless services provider or applicant for the application
submitted to the City.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
A.
Applications. Applications for permitted, administrative, or special
uses pursuant to this Article shall be subject to the supplementary
procedures in this Article. Applications shall be submitted to the
City as a complete application on forms provided by the City. A complete
application shall be an application submitted on the forms provided
by the City, fully executed by the applicant, identifying the specific
approval sought, and containing all attachments, fees as may be established
to reimburse the City for its inspection and review costs, and information
as required thereon or by the City, consistent with this Article.
Applications shall be accompanied by an executed wireless communications
agreement with the City, a building permit application and other applicable
forms.
B.
Proof Of Owner Consent. Applications for permitted, administrative,
or special uses pursuant to this Article shall be required to provide
proof of landlord consent, which shall minimally include:
1.
Written consent to pursue the application by all fee simple
owners of the underlying real estate (or where located in street right-of-way,
the right-of-way owner thereof), including when the proposed location
is also in a utility easement; and
2.
Written consent to pursue the application of the owner of the
structure on which such facility is to be placed, if different than
the applicant.
C.
Timing. Applications shall be decided upon within a reasonable time,
subject further to State or Federal specific additional time requirements
as may apply to the particular application.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
A.
Applicability. The requirements set forth in this Article shall be
applicable to all wireless communications facilities within the City
installed, built, or modified after the effective date of this Article
to the full extent permitted by law. Such zoning review and approvals
required in this Article shall be in addition to any other generally
applicable permitting requirement, including applicable building,
excavation, or other right-of-way permits.
1.
Principal Or Incidental Use. Towers may be either a principal
or incidental use in all commercial and industrial zoning districts,
subject to any applicable requirement relating to yard or setback.
An incidental use subject to a leasehold interest of a person other
than the lot owner may be approved for a tower only if the leasehold
area separately meets all requirements for a separate subdivided lot,
including dedicated access, parking, setbacks, and lot size, applicable
to a primary use in the district in which the use is proposed as if
it was a separate subdivided lot. No other district shall allow towers
unless required by law. All other wireless facilities other than towers
may be a principal or incidental use in all districts subject to the
requirements herein.
2.
Building Codes, Safety Standards, And Zoning Compliance. Wireless
communications facilities shall be constructed and maintained in compliance
with all standards contained in applicable State and local building
codes. A certified engineer's set of plans and a structural report
shall be required for all applications to construct a new or modify,
or any way alter, a support structure, a utility pole, or antenna,
including small wireless facility and fast-track, unless waived upon
application to the Director stating why such report and plans are
unnecessary to the specific application and a determination in the
discretion of the Director approving such statement. In addition to
any other approvals required by this Article, no wireless communications
facility or portion thereof shall be erected, replaced, or expanded
prior to receipt of a certificate of zoning compliance, unless otherwise
required by law, and the issuance of a building permit. For sites
within the City right-of-way:
a.
The most restrictive adjacent underlying zoning district classification
shall apply unless otherwise specifically zoned and designated on
the Official Zoning Map;
b.
No application shall be submitted for permit approval without
attaching the City's consent to use the right-of-way for the specific
construction application, to the extent permitted by applicable law;
c.
Wireless communications facilities shall be installed and maintained
as not to obstruct or hinder the usual travel or public safety on
the right-of-way or obstruct the legal use of such right-of-way by
authorities or authorized right-of-way users; and
3.
Regulatory Compliance. All wireless communications facilities
shall meet or exceed current standards and regulations of the FAA,
FCC, and any other local, State, or Federal agency with the authority
to regulate wireless communications facilities, and including all
required licenses, permits, and taxes applicable to such structure
and/or modification. Should such standards or regulations be amended,
then the owner shall bring such devices and structures into compliance
with the revised standards or regulations within the time period mandated
by the controlling agency. No approval for any placement, construction,
or modification of any wireless communications facilities permitted
by this Article shall be granted for any applicant having an uncured
violation of this Article, any zoning regulation regarding the lot
on which the structure is proposed, or any other governmental regulatory,
licensing, or tax requirement applicable to such wireless communications
facilities within the City unless preempted by applicable law.
4.
Security. All wireless communications facilities shall be protected
from unauthorized access by appropriate security measures. A description
of proposed security measures shall be provided as part of any application
to install, build, alter, or modify wireless communications facilities.
Additional measures may be required as a condition of the issuance
of a building permit as deemed necessary by the Director or by the
City Council in the case of a special use permit.
5.
Lighting. Antennas, small wireless facilities, fast-track, and
support structures shall not be lighted unless required by the FAA
or other State or Federal agency with authority to regulate, in which
case a description of the required lighting scheme will be made a
part of the application to install, build, alter, or modify the antenna,
small wireless facilities, fast-track, or support structure. Lighting
may also be approved as a consistent component of a disguised support
structure. Equipment cabinets and shelters may have lighting only
as approved by the Director or City Council on the approved site plan.
6.
Advertising. Except for a disguised support structure in the
form of an otherwise lawfully permitted sign, the placement of advertising
on wireless communications facilities is prohibited other than identification
sign age or required safety signage of not greater than one (1) square
foot on ground equipment.
7.
Design.
a.
Color. Subject to the requirements of the FAA or any applicable
State or Federal agency, wireless communications facilities and attachments
shall be painted a neutral color consistent with the natural or built
environment of the site or an alternative painting scheme approved
by the Director, or the City Council in the case of special use permits,
consistent with the requirements of this Article. Unpainted galvanized
steel support structures are not permitted.
b.
Ground Equipment. When authorized, equipment shelters or cabinets
shall have an exterior finish compatible with the natural or built
environment of the site and shall also comply with any design guidelines
as may be applicable to the particular zoning district in which the
facility is located. All equipment shall be either placed underground,
contained in a single shelter or cabinet, or wholly concealed within
a building or approved walled compound.
c.
Antenna Design. Unless the City consents otherwise, only one
(1) wireless device may be attached to a streetlight bracket, no more
than three (3) feet and no less than six (6) inches from the streetlight
pole. The maximum weight of such device shall not exceed fifteen (15)
pounds when installed on a streetlight arm. Antennas attached to a
disguised support structure or tower shall be contained within the
disguised support structure or within or mounted flush on the surface
of the tower to which they are mounted. Antennas attached to an existing
building, utility pole, or structure shall be of a color identical
to the surface to which they are mounted. Antennas on the rooftop
or attached to a building shall be screened or constructed and/or
colored to match the structure to which they are attached. All antennas
shall be designed to be disguised and maximally concealed on or within
the support structure, or other structure. Exposed antennas on a crow's
nest or other visible platforms or extensions are prohibited.
d.
Height. Support structures and antennas shall be no taller than
necessary and shall not exceed the height limitation of any airport
overlay zone as may be adopted by the City or other regulatory agency.
Support structures may exceed underlying zoning district height restrictions
for buildings and structures only where shown to be necessary, provided
that no reasonable alternative exists. To the extent permitted by
applicable law, district height restrictions shall be considered by
the City in determining the appropriateness of the design and location
of the application under the applicable standards for approval. No
support structure shall be approved at a height exceeding one hundred
twenty (120) feet AGL unless the applicant clearly demonstrates that
such height is required for the proper function of the applicant's
system.
e.
Monopole Design. All towers shall be of a monopole design. Lattice,
guyed towers, or other non-monopole tower designs shall not be permitted.
f.
Compound Walls/Landscaping. All towers shall be surrounded by
a minimum of a six (6) foot high, decorative wall constructed of brick,
stone, or comparable masonry materials and a landscape strip of not
less than ten (10) feet in width and planted with materials which
will provide a visual barrier to a minimum height of six (6) feet.
The landscape strip shall be exterior to any security wall. In lieu
of the required wall and landscape strip, an alternative means of
screening may be approved by the Director, or by the City Council
in the case of a special use permit, upon demonstration by the applicant
that an equivalent degree of visual screening will be achieved. Landscaping
or other improvements may be required for disguised support structures
if needed to implement an approved disguise.
g.
Setbacks. All support structures, including any portions of
any wireless communications facilities thereon and associated structures,
fences, and walls (except for parking associated with the wireless
communications facility) shall be separated from any public right-of-way,
sidewalk or street, alley, parking area, playground, or other building,
and from the property line of any adjacent property at least a horizontal
distance equal to the height of the support structure, including any
portions of any wireless communications facilities thereon, whichever
is greater.
h.
Storage. Vehicle or outdoor storage on any wireless communications
facilities site is prohibited, unless otherwise permitted by the zoning
district.
i.
Parking. On-site parking for periodic maintenance and service shall
be provided at all support structure locations consistent with the
underlying zoning district and the type of antenna or support structure
approval granted.
j.
Decorative Poles. In districts where there are utility poles
that were specifically designed for their aesthetic nature and compatibility
with the built environment of that district, as determined by the
City, such utility poles shall be deemed to be decorative utility
poles. Such decorative utility poles, when authorized to be replaced
by an applicant for wireless communications facilities pursuant to
applicable law and in compliance with this Article and Code, shall
only be replaced with a substantially similar decorative utility pole
which matches the aesthetics and decorative elements of the original
decorative utility pole being replaced. Such replacement expenses
shall be borne wholly by the applicant seeking to place wireless communications
facilities on such decorative utility pole.
8.
Public Property. Wireless communications facilities located
on property owned, leased, or otherwise controlled by the City shall
be subject to the requirements of this Article. A license or lease
with the City authorizing the location of such wireless communications
facilities shall be required for each site.
9.
As-Built Plans. Within sixty (60) days of completion of the
initial construction and any additional construction, two (2) complete
sets of plans drawn to scale and certified as accurately depicting
the location of all wireless communications facilities constructed
shall be furnished to the City.
10.
Historic Preservation; Thirty-Day Hearing Period. To the extent permitted
by law, approval shall not be issued for any wireless communications
facility that the Director or City Council determines would create
a significant negative visual impact or otherwise have a significant
negative impact on the historical character and quality of any property
within a Historic Preservation District or such district as a whole.
For co-location of any certified historic structure as defined in
Section 253.545, RSMo., in addition to all other applicable time requirements,
there shall be a thirty-day time period before approval of an application
during which one (1) or more public hearings on co-location to a certified
historic structure are held. The City may require reasonable, technically
feasible and technological neutral design and concealment measures
as a condition of approval of a wireless communications facility within
a historic district or upon a historic structure.
11.
Radio Frequency Radiation. The facilities do not result in human
exposure to radio frequency ("RF") radiation in excess of the applicable
safety standards specified by the FCC or NESC, whichever is least.
12.
Lockout/Tagout Procedures. All wireless communications facilities
and antennas which require electrical power shall be installed with
disconnects/shutoffs allowing the City to disconnect power (including
both ac and de battery power) to avoid RF exposure to its employees
when working around such facilities. However, such shutoffs shall
only be performed in coordination with the wireless provider's lock
out and/or tag out procedures which are required with all wireless
communications facilities.
13.
Work In Electrical Supply Space. For safety, no work shall be completed
in the Supply Space on City poles without written approval of the
City. Supply Space means that portion of City poles which is determined
to be usable for electric power supply distributed or transmitted
by the City and that is located between the topmost location of the
communication worker safety zone and the top of the pole.
14.
All wireless communication service providers and wireless communications
infrastructure providers shall provide and keep updated a contact
number available 24/7 for use in the event of any emergency, and to
assist the City in addressing violations, in a timely manner.
B.
Administration. The Director shall have the authority to establish
forms and procedures consistent with this Article and applicable Federal,
State, and local law to ensure compliance and to facilitate prompt
review and administration of applications.
[Ord. No. 8977, 10-20-2023]
A.
Insurance
Requirements. Each wireless communications provider shall provide,
at its sole expense, and maintain during the term of the wireless
communications agreement, permit, or anytime the wireless communications
provider has facilities on City property or in the ROW, commercial
general liability insurance with a reputable, qualified, and financially
sound company licensed to do business in the State of Missouri, and
unless otherwise approved by the City, with a rating by Best of not
less than "A," that shall protect the wireless communications provider,
the City, and the City's officials, officers, and employees, from
claims which may arise from such use of the City's property and/or
ROW, whether such operations are by the wireless communications provider,
its officers, directors, employees, and agents, or any contractors
or subcontractors, or any service providers or carriers of the wireless
communications providers. This liability insurance, shall include,
but shall not be limited to, protection from claims arising from bodily
and personal injury and damage not to be limited to, protection against
claims arising from bodily and personal injury and damage to property,
resulting from all wireless communications provider's operations,
products, services, or use of automobiles or construction equipment.
The amount of insurance for single limit coverage applying to bodily
and personal injury and property damage shall be in no event less
than the individual and combined sovereign immunity limits established
by Section 537.610, RSMo., for political subdivisions, provided that
nothing herein shall be deemed to waive the City's municipal or sovereign
immunity. Such insurance shall include an endorsement which states
that the City is an additional insured with full and equivalent coverage
as the insured under the insured's policy and stating that the policy
shall not be cancelled or materially modified so as to be out of compliance
with the requirements of this Section, or not renewed without thirty
(30) days' advance written notice of such event being given to the
City. If the wireless communications provider is self-insured, it
shall provide the City proof of compliance regarding its ability to
self-insure and proof of its ability to provide coverage in the above
amounts. Prior to January l, 2025, the insurance requirements in this
Section or otherwise shall not apply to a wireless communications
provider to the extent and for such period as the wireless communications
provider is exempted from such requirements pursuant to Section 67.1830(6)(a),
RSMo., and has on file with the City Clerk an affidavit certifying
that the wireless communications provider has twenty-five million
dollars ($25,000,000.00) in net assets and does not have a history
of permitting non-compliance with the City. Additionally, in accordance
with Section 67.5121(3), RSMo., a self-insured wireless communications
provider shall not be required to obtain insurance naming the City
as an additional insured solely to the extent such wireless service
provider is utilizing "small wireless facilities" as defined in the
Uniform Small Wireless Facility Deployment Act on City property or
within the ROW. These exceptions to the City's insurance requirements
shall only apply as related to "small wireless facilities" and shall
not otherwise alter the obligations of the wireless communications
provider to provide appropriate insurance to the City for any other
activities or operations. These exceptions to the City's insurance
requirements shall only apply prior to July 1, 2025. Thereafter, all
wireless communications providers shall be subject to the City's insurance
requirements.
B.
Performance
And Maintenance Bonds.
1.
Bond Required. Prior to any work, a wireless communications provider
shall establish in the City's favor a performance and maintenance
bond in an amount to be determined by the Director or the City to
guarantee the restoration of the City property or ROW. The bond shall
continue in full force and effect for a period of forty-eight (48)
months following completion of any work on City property or in the
ROW. The Director or City may waive this requirement when the work
involves, as determined in the sole discretion of the Direction, no
or only minor disruption or damage to the City property or ROW.
2.
Failure To Satisfactorily Complete Restoration. If a wireless communications
provider fails to restore the City's property or ROW in a safe, timely,
and competent manner or if the completed restorative work fails without
remediation within the time period for the bond (as determined by
the Director), then after notice and a reasonable opportunity to cure,
there shall be recoverable, jointly and severally from the principal
and surety of the bond, any damages or loss suffered by the City as
a result, including the full amount of any compensation, indemnification,
or cost of removal or abandonment of any property of the wireless
communications provider and the cost of completing work in or restoring
the City's property or ROW, up to the full amount of the bond. The
City may also recover against the bond any amount recoverable against
a security fund or letter of credit where such amount exceeds that
available under a security fund or letter of credit.
3.
Bond Terms. The bond shall be issued by a surety with an "A" or better
rating of insurance in Best's Key Rating Guide, Property/Casualty
Edition, shall be subject to the approval of the City's attorney and
shall contain the following endorsement: "This bond may not be cancelled
or allowed to lapse until sixty (60) days after receipt by the City,
by certified mail, return receipt requested, of a written notice from
the issuer of the bond of intent to cancel or not to renew."
4.
Exception. The City may waive any and all requirements under this
Subsection when deemed to be lawful and in the public interest. Further,
in lieu of the bond required herein, the wireless communications provider
may establish in the City's favor such other security as the Director
or City may determine to be commensurate with the noted bonding requirements,
including, but not limited to, an annual bond to be maintained in
the minimum amount of twenty-five thousand dollars ($25,000.00). Until
July l, 2025, the bond requirements in this Section or otherwise shall
not apply to a wireless communications provider to the extent and
for such period as the wireless communications provider is exempted
from such requirements pursuant to Section 67.1830(6)(a), RSMo., and
has on file with the City Clerk an affidavit certifying that the wireless
communications provider has twenty-five million dollars ($25,000,000.00)
in net assets and facts otherwise demonstrating the wireless communications
provider is exempted, unless otherwise provided by a wireless communications
agreement or permit or the City determines such exemption has not
been adequately shown. Additionally, in accordance with Section 67.5121(4),
RSMo., the bonds required for "small wireless facilities" as defined
in the Uniform Small Wireless Facility Deployment Act shall not exceed
one thousand five hundred dollars ($1,500.00) per "small wireless
facility" or more than seventy-five thousand dollars ($75,000.00)
for all "small wireless facilities" on City property or within the
ROW. This exception to the City's bonding requirements shall only
apply as related to such "small wireless facilities" and shall not
otherwise alter the obligations of a wireless communications provider
to provide appropriate bonds to the City for any other activities
or operations. After July 1, 2025, such exceptions for "small wireless
facilities" shall no longer apply.
C.
Indemnification.
Any person performing excavation or any wireless communications provider
as a condition of use of City property or the ROW shall at its sole
cost and expense fully indemnify, protect, defend (with counsel acceptable
to the City), and hold harmless the City, its municipal officials,
officers, employees, and agents, from and against any and all claims,
demands, suits, proceedings, and actions, liability, and judgment
by other persons for damages, losses, costs, and expenses, including
attorney fees, arising, directly or indirectly, in whole or in part,
from the action or inaction of the wireless communication provider
or the person performing such excavation, and the wireless communication
provider's agents, representatives, employees, contractors, subcontractors,
or any other person for whose acts the wireless communication provider
or the person performing excavation may be liable, in constructing,
operating, maintaining, repairing, restoring, or removing facilities
or other structures, or use of City property or the ROW or the activities
performed, or failed to be performed, by the wireless communications
provider or the person performing excavation under this Article or
applicable law, or otherwise, except to the extent arising from or
caused by the sole gross negligence or willful misconduct of the City,
its elected officials, officers, employees, agents, or contractors.
Nothing herein shall be deemed to prevent the City, or any agent from
participating in the defense of any litigation by their own counsel
at their own expense. Such participation shall not under any circumstances
relieve the person from the duty to defend against liability or its
duty to pay any judgment entered against the City or its agents. This
indemnification shall survive the expiration or termination of any
wireless communications agreement, ROW use agreement, license, or
permit. Provided, however, until July 1, 2025, and in accordance with
Section 67.5121(2), RSMo., a wireless communications provider, for
and in relation to the wireless communications provider's operation
of a "small wireless facility" as defined in the Uniform Small Wireless
Facility Deployment Act on City property or within the ROW, shall
only indemnify and hold the City, its officers and employees, harmless
against any damage or personal injury caused by the negligence of
the wireless communications provider, its employees, agents, or contractors.
After July l, 2025, this exception for "small wireless facilities"
shall no longer apply and the City's indemnification requirements
shall apply to all wireless communication providers operations utilizing
City property or the ROW.
D.
Wireless
Communications Providers Responsible For Costs. The wireless communications
provider shall be responsible for all reasonable costs borne by the
City that are directly associated with the wireless communication
provider's installation, maintenance, repair, operation, use, and
replacement of its facilities on City property or in the ROW that
are not otherwise accounted for as part of the permitting and/or application
fee established by the City with respect to a wireless communications
property's request to place facilities on City property or in the
ROW, to the extent permitted by law. All such costs shall be itemized,
and the City's books and records related to these costs shall be made
available for review upon request by the wireless communications property.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
A.
Permitted Use. The placement of wireless communications facilities
fully conforming with the general requirements in this Article are
permitted in all zoning districts only as follows:
1.
Co-Locations On Existing Support Structures. The attachment of additional or replacement complying antennas or equipment to any existing fully conforming support structure or as otherwise authorized by State or Federal law where local zoning is preempted, provided that building permit requirements, national safety codes, and other applicable codes, including recognized accepted industry standards for structural, safety, capacity, reliability, and engineering are satisfied, including specifically the requirement to submit a certified structural engineering report as provided in Section 400.500.
2.
Antennas On High-Voltage Towers. Due to the increased voltages
and risks, applications for antennas on high-voltage poles or towers
will require additional review. The City encourages Wireless Communications
Providers to avoid such placements. To that end, the City will assist
the Wireless Communications Providers in finding a different location
to avoid the high voltages or in some instances the City will place
a separate pole for the Small Wireless Facility. However, in the event
there is no other economically feasible alternative, the mounting
of antennas on or within any existing high-voltage electric transmission
pole or tower, shall not increase the height of such pole or tower
by more than ten percent (10%), including the antenna, provided that
all requirements of this Article and the underlying zoning ordinance
are met, except minimum setbacks provided in this Article shall not
apply. In addition, such Wireless Communications Provider shall assume
all liabilities which may result due to the placement of the Small
Wireless Facility on a high-voltage pole or tower and shall hold the
City harmless.
3.
Antennas On Existing Buildings/Structures. In all districts,
except not on single-family residential or two-family dwellings, the
mounting of antennas on any existing and conforming building or structure
(other than a support structure or utility pole), provided that the
presence of the antenna and equipment is concealed by architectural
elements or fully camouflaged or concealed by painting a color identical
to the surface to which they are attached, and further, provided,
that all requirements of this Article and the underlying zoning ordinance
are met.
4.
Co-Location Of Small Wireless Facilities On Authority Poles.
a.
A wireless provider may co-locate small wireless facilities
and install, maintain, modify, operate, and replace authority poles
at heights below the height limitations outlined in this Subsection,
which shall be a permitted use in all districts except single-family
residential and historic districts, provided the proposed installation
does not:
(1)
Materially interfere with the safe operation of
traffic and control equipment or City-owned communications equipment;
(3)
Materially obstruct or hinder the usual travel
or public safety on the rights-of-way;
(4)
Materially obstruct the legal use of the rights-of-way
by the City, utility, or other third patty;
(6)
Fail to comply with applicable national safety
codes, including recognized engineering standards for utility poles
or support structures;
(7)
Fail to comply with the decorative pole replacement
requirements herein;
(9)
Interfere or impair the operation of existing utility
facilities, or City or third-party attachments.
b.
New, replacement, or modification of utility poles under the
following circumstances shall not be considered a permitted use under
this Section:
B.
Application Procedure. Application for a permitted use under this Section shall require submission of an application with proof of owner consent as required by Section 400.490 and an application fee of five hundred dollars ($500.00) as required to partly cover the City's actual costs, but not to exceed such amounts as may be limited by law. If the applicant is not a wireless services provider or wireless infrastructure provider, then the applicant must submit evidence of agreements or plans, or otherwise provide attestations to the same, which conclusively demonstrate to the City that the proposed site(s) will become operational and used by a wireless services provider within one (1) year of the permit's issuance date. For any application for a small wireless facility, the applicant shall provide an attestation that the proposed small wireless facility complies with the volumetric limitations as required to meet the definition of a small wireless facility in accordance with this Article and pursuant to the FCC regulations. The applicant shall also submit a certified structural analysis as required in the general requirements of this Article. Applications requesting any information that is prohibited by Federal or State law under the applicable circumstance shall be deemed inapplicable to the subject application. The Director shall issue a decision on the application for a permitted use within the time frame permitted by applicable law. A decision to deny an application shall be made in writing and state the specific reasons for the denial.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
A.
Administrative Approval. The placement of wireless communications
facilities fully conforming with the general requirements in this
Article are permitted in all zoning districts by administrative permit
approved by the Director only as follows:
1.
Disguised Support Structures. The construction of a disguised
support structure, provided that all related equipment shall be placed
underground or concealed within the structure. Equipment may be placed
in an appropriately concealed cabinet if the disguised support structure
is incidental to an industrial, commercial, or other non-residential
use and fits with the natural built environment or the disguised support
structure. Any disguised support structure shall have as a condition
of approval, unless expressly exempted in the approval, an obligation
and corresponding covenant recorded on the property that runs with
the land to the benefit of the City on behalf of the public, prohibiting
modifications to the disguised support structure that eliminate or
are materially detrimental to the disguise, unless such proposed modification
is approved by a duly authorized zoning or special use approval approved.
If the applicant does not wish to have such a covenant, the application
shall not qualify for administrative permit approval, unless another
mechanism is proposed and approved to ensure that the disguise is
not subsequently eliminated or materially detrimentally altered. A
disguised support structure proposed to be located within a public
or private right-of-way, street, or other pedestrian or vehicular
way may be exempted from the general requirements of this Article
relating to parking/access and setbacks, unless determined by the
Director as applicable to the specific location for safety reasons
or other applicable reasons.
2.
Fast-Track Small Wireless Facilities.
a.
An application for a fast-track small wireless facility may
be approved administratively by the Director, subject to meeting the
following requirements:
(1)
General Requirements. The following requirements
shall generally apply to all fast-track small wireless facilities
located within the City:
(a)
The fast-track shall substantially match any current
aesthetic or ornamental elements of the existing structure or utility
pole, or otherwise be designed to maximally blend in to the built
environment, with attention to the current uses within the district
at the proposed site;
(b)
Any portion above the existing structure or utility
pole shall be concealed and of the same dimensions and appearance
so as to appear to be a natural extension of the existing structure
or utility pole in lieu of an enclosure or concealment;
(c)
The fast-track equipment shall not emit noise audible
from the building line of any residentially zoned or used property;
and
(d)
Location, placement, and orientation of the fast-track
shall, to the extent feasible, minimize the obstruction to, or visibility
from, the closest adjacent properties unless otherwise required by
the City for safety reasons.
(2)
Additional Requirements When Sited Near Pedestrian
And Vehicle Ways. When a fast-track is proposed to be located on an
existing structure or utility pole on or adjacent to public or private
streets, sidewalks, or other pedestrian or vehicle ways:
(a)
Only one (1) fast-track shall be permitted per
structure or utility pole in the rights-of-way, which may be waived
by the Director upon good cause shown;
(b)
The height of all portions of the fast-track shall
be located at least eight (8) feet above ground level;
(c)
No ground equipment shall be permitted; and
(d)
No portions of the fast-track shall extend horizontally
from the surface of the utility pole or existing structure more than
sixteen (16) inches.
(3)
Waiver For Good Cause Shown. Additionally, the
Director may for good cause shown increase any one (1) or more of
the maximum volumetric specifications from the definition of a fast-track
by up to fifty percent (50%) if the applicant demonstrates that it:
b.
The City Council may further waive one (1) or more of the requirements found in the definition of "fast-track," or from Subsection (A)(2)(a)(1), General Requirements, or Subsection (A)(2)(a)(2), Additional Requirements When Sited Near Pedestrian And Vehicle Ways, of this Section, upon good cause shown by the applicant, and provided a showing that the waiver is the minimum necessary to accomplish the purposes of this Article. The burden of proof for any waiver shall be wholly on the applicant and must be shown by clear and convincing evidence.
B.
Application Procedures. Applications for administrative permits shall
be made on the appropriate forms to the Director consistent with the
requirements of this Article. Applications requesting any information
that is prohibited by Federal or State law under the applicable circumstance
shall be deemed inapplicable to the subject application.
1.
General Application Requirements. The applicant shall submit
along with its completed application form:
a.
An application fee of five hundred dollars ($500.00) as required
to partly cover the City's actual costs, but not to exceed such amounts
as may be limited by law; any amount not used by the City shall be
refunded to the applicant upon written request after a final decision;
b.
A detailed site plan, based on a closed boundary survey of the
host parcel, shall be submitted indicating the exact location of the
facility, all dimensions and orientations of the facility and associated
equipment, in addition to all existing and proposed improvements,
including buildings, drives, walkways, parking areas, and other structures,
public rights-of-way, the zoning categories of the subject and adjoining
properties, the location of and distance to off-site residential structures,
required setbacks, required buffer and landscape areas, hydro logic
features, and the coordinates and height AGL of the utility pole,
or existing structure, if applicable;
c.
Specifications, dimensions, photos, or drawings of the completed
installation;
e.
Certified structural analysis as required in the general requirements
of this Article;
f.
All applicants, whether wireless services providers or wireless
infrastructure providers, must submit evidence of agreements or plans,
or otherwise provide attestations to the same, which conclusively
demonstrate to the City that the proposed site(s) will become operational
and used by a wireless services provider within one (1) year of the
permit's issuance date; and
g.
All other information necessary to show compliance with the
applicable requirements of this Article.
2.
Fast-Track — Specific Application Requirements. In addition
to the above general application requirements, applications for a
fast-track shall include the following:
a.
An attestation that the proposed fast-track meets the volumetric
and other requirements to meet the definition of "fast-track" provided
in this Article; and
b.
Information demonstrating that the applicant's proposed plans
are in compliance with Section 67.5113.3(9), RSMo., to the satisfaction
of the City.
3.
Review. The application shall be reviewed by the Director to
determine compliance with the above standards, including specifically
design, location, safety, and appearance requirements and transmit
the application for review and comment by other departments and public
agencies as may be affected by the proposed facility.
4.
Additional Information May Be Required. In reviewing an application,
the Director may require the applicant to provide additional information,
including technical studies, to the extent permitted by applicable
law. An application shall not be deemed complete until satisfaction
of all application requirements and submission of all requested information
as provided herein.
5.
Decisions; Denials Required In Writing. The Director shall issue
a decision on the permit within the time frame permitted by applicable
law. The Director may deny the application or approve the application
as submitted or with such modifications or conditions as are, in his/her
judgment, reasonably necessary to protect the safety or general welfare
of the citizens and property values consistent with and to effect
the purposes of this Article. The Director may consider the purposes
of this Article and the factors established herein for granting a
special use permit as well as any other considerations consistent
with this Article. A decision to deny an application shall be made
in writing and state the specific reasons for the denial.
6.
Resubmission. In the event an application is denied by the City,
the applicant may resubmit the application with such additional information
as the City indicates is needed. Any such resubmission made within
sixty (60) days of the initial denial shall be re-considered by the
City and applicant shall not be assessed any additional application
fee.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
A.
Special Use Permit Required. All proposals to construct or modify a wireless communications facility not permitted by Section 400.510 (Permitted Use) or Section 400.520 (Administrative Approval) or not fully complying with the general requirements of this Article shall be permitted only upon the approval of a special use perm it authorized consistent with Section 400.120 following a duly advertised public hearing by the Zoning and Planning Commission and City Council, subject to the following additional requirements, procedures, and limitations:
1.
Applications. Applications for special use permits shall be filed on such forms required by the Director and processed subject to the requirements of and in the manner established by applicable law, herein, and for special use permits in the Zoning Code and, in addition to such other requirements, shall be accompanied by a deposit of one thousand five hundred dollars ($1,500.00), to the extent permitted by applicable law to the specific wireless communications facility. Any amount not used by the City shall be refunded to the applicant upon written request after a final decision. Except as otherwise provided by law, no application for a special use permit under this Section shall be deemed complete until the applicant has paid all fees and deposits required under this Article, submitted certified engineering plans, and provided proof of owner consent as required by Section 400.490. Applications requesting any information that is prohibited by Federal or State law under the applicable circumstance shall be deemed inapplicable to the subject application.
2.
Decision And Findings Required. A decision shall be contemporaneously
accompanied by substantial evidence supporting the decision, which
shall be made a part of the written record of the meeting at which
a final decision on the application is rendered. Evidence shall be
under oath and may be submitted with the application or thereafter
or presented during the public hearing by the applicant or others.
3.
Additional Minimum Requirements. No special use permit shall be issued unless the applicant has clearly demonstrated by substantial evidence that placement of wireless communications facilities pursuant to Section 400.510 (Permitted Use) or Section 400.520 (Administrative Approval) of this Article is not technologically or economically feasible. The City may consider current or emerging industry standards and practices, among other information, in determining feasibility.
4.
Findings Required. In addition to the determinations or limitations specified herein and by the applicable provisions of Section 400.120 of this Zoning Code for the consideration of special use permits, no special use permit shall be approved by the City Council unless findings in the affirmative are made that the following conditions exist:
a.
That the design of the wireless communications facilities, including
ground layout, maximally reduces visual degradation and otherwise
complies with provisions and intent of this Article;
b.
That the design is visually compatible with the area, will not
distract from the view of the surrounding area, is maximally concealed
or blended in with the environment, and will not adversely affect
property values;
c.
That such special use shall not be inconsistent or adversely
affect the regular permitted uses in the district in which the same
is located; and
d.
That the proposal fully complies with applicable law, including
the general requirements herein; provided, that an exception to the
general requirements, other than building or safety code compliance,
may be approved upon evidence that compliance is not feasible or is
shown to be unreasonable under the specific circumstances shown.
[Ord. No. 8977, 10-20-2023]
All wireless communication providers shall pay to City an annual
fee for each small wireless facility in an amount established by the
Director. Upon thirty (30) days notice to the City, wireless communication
providers may remove their small wireless facilities. However no annual
fee already paid to the City will be refunded, or prorated.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
Notwithstanding any right that may exist for a governmental
entity to operate or construct wireless communications facilities,
it shall be unlawful for any person to erect or operate for any private
commercial purpose any wireless communications facilities in violation
of any provision of this Article, regardless of whether such wireless
communications facilities are located on land owned by a governmental
entity.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
Any wireless communications facility or portion thereof that
is no longer in use for its original communications purpose shall
be removed at the owner's expense. In the case of multiple operators
sharing use of a single support structure, this provision shall not
become effective until all users cease operations.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
Except as may otherwise be provided by law, any person violating any provision in this Article shall be subject to Section 100.080.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
The procedures of Section 400.250 shall govern appeals by any aggrieved person of a final action of any City Officer, employee, board, commission, or the City Council that are claimed by an aggrieved person to be unlawful or an unconstitutional taking of property without compensation. To the fullest extent permitted by law, the review procedures of Section 400.250 shall be exhausted before any action may be filed in any court against the City or its officers, employees, boards, officials or commissions. Nothing herein shall be deemed to unlawfully limit any remedy that is required to be available as a matter of law.
