Article
XXXVIII shall be known as the "Wireless Telecommunications Facilities Regulations." The Telecommunications Act of 1996 affirmed the City's authority concerning the placement, construction, and modification of wireless telecommunications facilities. The City finds that wireless telecommunications facilities may pose significant concerns to the health, safety, public welfare, character, and environment of the City, its zoning jurisdiction, and its inhabitants. The City also recognizes that facilitating the development of wireless service technology can be an economic development asset to the City and of significant benefit to the City, its zoning jurisdiction, and its residents. The purposes of these regulations are to:
A. Create streamlined, comprehensive wireless telecommunications facilities
application and permit processes to ensure that the placement, construction,
or modification of wireless telecommunications facilities is consistent
with the City's land use policies.
B. Establish a fair and efficient process for review and approval of
applications.
C. Assure an integrated, comprehensive review of environmental impacts
of such facilities.
D. Protect the health, safety, and welfare of the City's zoning jurisdiction.
[Amended 3-19-2019 by Ord. No. 1832; 12-17-2019 by Ord. No. 1859]
For the purposes of this article, the defined terms, phrases,
words, abbreviations, and their derivations shall have the meaning
given in this section. The purpose of these provisions is to promote
consistency and precision in the interpretation of this article. The
meanings and construction of words as set forth shall apply throughout
this article, unless where modified in a specific section or where
the context of such words or phrases clearly indicates a different
meaning or construction.
ANTENNA
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
APPLICANT
Any wireless service provider submitting an application for
either a special use permit for wireless telecommunications facilities.
APPLICATION
All necessary and appropriate documentation that an applicant
submits in order to receive zoning approval for a particular wireless
telecommunications facility. For eligible facilities, this shall mean
a building permit application. For all other facilities, this shall
mean a special use permit application.
BASE STATION
A.
A structure or equipment at a fixed location that enables FCC-licensed
or authorized wireless communications between user equipment and a
communications network. The term does not encompass a tower as defined
within this section or any equipment associated with a tower. "Base
station" includes, without limitation:
(1)
Equipment associated with wireless communications services such
as private, broadcast, and public safety services, as well as unlicensed
wireless services and fixed wireless services such as microwave backhaul.
(2)
Radio transceivers, antennas, coaxial or fiber-optic cable,
regular and backup power supplies, and comparable equipment, regardless
of technological configuration [including distributed antenna systems
(DAS) and small cell networks].
(3)
Any structure other than a tower that, at the time the relevant
application is filed with City pursuant to this article, supports
or houses equipment described in Subsections A(1) and (2) of this
definition that has been reviewed and approved in accordance with
this article, or under another state or local regulatory review process,
even if the structure was not built for the sole or primary purpose
of providing that support.
B.
The term does not include any structure that, at the time the
relevant application is filed with City under this article, does not
support or house equipment described in Subsection A(1) through (3)
of this definition.
COLLOCATION OR SHARED USE
The use of an existing tower or structure to support antennae
for the provision of wireless services. A replacement tower that is
constructed on the same site as a previously existing tower will be
considered a collocation as long as the new tower is no taller than
the old tower and the old tower is removed within the time frame established
in the special use permit for the tower replacement and removal.
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
The inability to perform an act on terms that are reasonable
in commerce; the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be "commercially impracticable" and shall not render an act or
the terms of an agreement "commercially impracticable."
DISTRIBUTED ANTENNA SYSTEM (DAS)
A network of spatially separated antenna nodes connected
to a common source via a transport medium that provides wireless service
within a geographic area or structure, and generally serves multiple
carriers. For the purposes of this article, a distributed antenna
system is considered a small wireless facility.
ELIGIBLE FACILITIES REQUEST
A.
Any request for modification of an existing tower or base station
that does not substantially change the physical dimensions of such
tower or base station involving:
(1)
Collocation of new wireless telecommunications facilities transmission
equipment including a new carrier;
(2)
Removal of wireless telecommunications facilities transmission
equipment; or
(3)
Replacement of wireless telecommunications facilities transmission
equipment.
B.
For the purposes of determining whether a modification qualifies
as an eligible facilities request, substantial change shall mean a
modification that meets the following criteria:
(1)
For towers outside the public rights-of-way, any increase in
the height of a tower by more than 10% or by the height of one additional
antenna array with separation from the nearest antenna not to exceed
20 feet, whichever is greater;
(2)
For towers in public rights-of-ways and all base stations, any
increase in the height of the tower or base station by more than 10%
or more than 10 feet, whichever is greater;
(3)
For towers outside the public rights-of-ways, the addition of
an appurtenance to the body of the tower that would protrude from
the edge of the tower more than 20 feet, or more than the width of
the tower structure at the level of the appurtenance, whichever is
greater;
(4)
For towers in public rights-of-way and all base stations, the
addition of an appurtenance to the body of the structure that would
protrude from the edge of the structure by more than six feet;
(5)
Installation of more than the standard number of new equipment
cabinets for the technology involved, which shall not exceed four
cabinets;
(6)
Installation of more than one equipment shelter;
(7)
Any excavation or deployment outside the current site;
(8)
Any change that would defeat the concealment elements of the
eligible support structure; or
(9)
Any failure to comply with conditions associated with the original
siting approval of the construction or modification of the eligible
support structure or base station equipment; provided, however, that
this subsection shall not apply to any modification that is noncompliant
only in a manner that would not exceed the foregoing thresholds identified
in Subsection B(1) through (6) of the definition of substantial change.
FAA
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
FCC
The Federal Communications Commission, or its duly designated
and authorized successor agency.
HEIGHT
When referring to a tower or structure, the distance measured
from the preexisting grade level at the time of application to the
highest point on the tower or structure, even if said highest point
is an antenna or a lightning protection device.
MODIFICATION or MODIFY
The addition, removal, or change of any of the physical and
visually discernable components or aspects of a wireless telecommunications
facility, such as antennas, cabling, equipment shelters, landscaping,
fencing, utility feeds, changing the color or materials of any visually
discernable components, vehicular access, parking, and/or an upgrade
or change out of equipment for better or more modern equipment. Adding
a new wireless carrier or service provider to a telecommunications
tower or telecommunications site as a collocation is a modification.
A "modification" shall not include the replacement of any components
of a wireless telecommunications facility where the replacement is
identical to the component being replaced or for any matters that
involve the normal repair and maintenance of a wireless telecommunications
facility without adding, removing, or changing anything.
NIER
Non-lonizing electromagnetic radiation.
PERSON
Any individual, corporation, estate, trust, partnership,
joint stock company, association of two or more persons having a joint
common interest, or any other entity.
POLE
A service pole, municipally owned utility pole, small wireless
facility support pole, or other utility pole.
REPAIR AND MAINTENANCE
The replacement of any components of a wireless telecommunications
facility where the replacement is identical to the component being
replaced or for any matters that involve the normal repair and maintenance
of a wireless telecommunications facility without the addition, removal,
or change of any of the physical or visually discernable components
or aspects of a wireless telecommunications facility that will add
to the visible appearance of the facility as originally permitted.
SMALL WIRELESS FACILITY
A.
Any wireless facility that meets each of the following conditions:
1) The facilities a) are mounted on structures 50 feet or less in
height including the antennas or b) are mounted on structures no more
than 10% taller than other adjacent structures; 2) each antenna associated
with the deployment is no more than three cubic feet in volume; 3)
all other equipment associated with the structure, whether ground-mounted
or pole-mounted, is no more than 28 cubic feet in volume; 4) the facilities
do not require antenna structure registration under 47 CFR 17, as
such regulation existed on January 1, 2019; 5) the facilities are
not located on tribal lands, as defined in 36 CFR 800.16(x), as such
regulation existed on January 1, 2019; and 6) the facilities do not
result in human exposure to radio frequency radiation in excess of
the applicable safety standards specified in 47 CFR 1.1307(b), as
such regulation existed on January 1, 2019.
B.
Small wireless facility(s) are governed under Ch.
205, Zoning, Article
XXXVIII, Wireless Telecommunications Facilities Regulations, of the Papillion Municipal Code.
SPECIAL USE PERMIT
The official resolution approved by City Council which authorizes
an applicant to apply for a valid building permit to construct and
use wireless telecommunications facilities at a particular site.
STEALTH or STEALTH TECHNOLOGY
Using the least visually and physically intrusive wireless
telecommunications facility that is not technologically or commercially
impracticable under the facts and circumstances to minimize adverse
aesthetic and visual impacts on the land, property, buildings, and
other facilities adjacent to, surrounding, and in generally the same
area as the requested location of such wireless telecommunications
facility.
SUPPORT STRUCTURE
Any structure such as a guyed or self-supporting tower, billboard,
building, or other existing or proposed structure designed to support
or capable of supporting wireless facilities other than a structure
designed solely for the collocation of small wireless facilities.
"Support structure" does not include a utility pole.
TELECOMMUNICATIONS
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
TELECOMMUNICATIONS STRUCTURE
A structure used in the provision of services described in
the definition of wireless telecommunications facilities.
TEMPORARY
Something, in relation to all aspects and components of this
article, that is not intended or that does not exist for more than
90 days.
TOWER
Any structure that is designed and constructed primarily
for the purpose of supporting one or more antennas, including self-supporting
lattice towers, guy towers, or monopoles, and that is not a utility
pole, an alternative antenna telecommunications structure, or a City-owned
infrastructure.
UTILITY POLE
An upright pole designed and used to support electric cables,
telephone cables, telecommunication cables or cable service cables,
which are used to provide lighting, traffic control, signage, or a
similar function.
WIRELESS TELECOMMUNICATIONS FACILITY or TELECOMMUNICATIONS SITE
or PERSONAL WIRELESS TELECOMMUNICATIONS FACILITY
A structure, facility, or location designed, intended to
be used as, or used to support antennas or other transmitting or receiving
devices. This includes, but is not limited to, towers of all types
and kinds and structures, including, but not limited to, buildings,
spires, belfries, silos, water towers, signs, or other structures
that can be used as a support structure for antennas or the functional
equivalent of such. This definition further includes all related facilities,
structures, and equipment such as cabling, equipment shelters, and
other structures associated with the site which are intended for transmitting
and/or receiving radio, television, cellular, SMR, paging, 911, personal
communications services (PCS), commercial satellite services, microwave
services, and any commercial wireless telecommunication service not
licensed by the FCC.
[Amended 12-17-2019 by Ord. No. 1859]
In order to ensure that the placement, construction, and modification
of wireless telecommunications facilities protects the health, safety,
public welfare, environmental features, nature and character of the
community and neighborhoods within the City's zoning jurisdiction,
and other aspects of the quality of life specifically listed elsewhere
in this article, the City hereby adopts an overall policy with respect
to the permitting of wireless telecommunications facilities for the
express purpose of achieving the following goals:
A. Requiring a special use permit for any new, collocation, or modification
of a wireless telecommunications facility that does not meet the criteria
for an eligible facilities request.
B. Implementing an application process for person(s) seeking approval
for wireless telecommunications facilities.
C. Establishing a policy for examining applications and issuing approvals
for wireless telecommunications facilities that is both fair and consistent.
D. Promoting and encouraging, wherever possible, the sharing and/or
collocation of wireless telecommunications facilities among service
providers.
E. Promoting and encouraging, wherever possible, the placement, height,
and quantity of wireless telecommunications facilities in such a manner,
including, but not limited to, the use of stealth technology, to minimize
adverse aesthetic and visual impacts on the land, property, buildings,
and other facilities adjacent to, surrounding, and in generally the
same area as the requested location of such wireless telecommunications
facilities, which shall mean using the least visually and physically
intrusive facility that is not technologically impracticable or commercially
impracticable under the facts and circumstances.
[Amended 3-19-2019 by Ord. No. 1832; 12-17-2019 by Ord. No. 1859]
A. Exceptions from special use permit requirement. No person shall be
permitted to site, place, build, construct, modify, or prepare any
site for the placement or use of wireless telecommunications facilities
without having first obtained a special use permit for wireless telecommunications
facilities unless such corresponding wireless telecommunications facility
is classified by the Planning Director, or his or her designee, as:
(1)
An eligible facilities request; or
(2)
A request for the installation of new or collocations of small wireless facility(s) located in the public right-of-way as defined in §
205-270; or
(3)
One of the noncommercial exclusions delineated in §
205-273; or
(4)
Repair and maintenance as defined in §
205-270.
B. Existing wireless telecommunications facilities. All legally permitted
wireless telecommunications facilities, constructed as permitted and
existing on or before the effective date of this section shall be
allowed to continue as they presently exist; provided, however, that
any modification of an existing wireless telecommunications facility
that is visible or impacts public health, safety and welfare shall
require the entire facility and any new installation to comply with
this article.
C. Repair and maintenance of a wireless telecommunications facility.
Any repair and maintenance of a wireless telecommunications facility.
The following noncommercial exclusions shall be exempt from
regulation under this article:
A. Any fire, police, Department of Transportation, or other public service
facilities owned by, operated by, or operated in partnership with
the City, Sarpy County, or a state or federal authority.
B. Over-the-air reception devices including the reception antennas for
direct broadcast satellites (DBS), multichannel multipoint distribution
(wireless cable) providers (MMDS), television broadcast stations (TVBS),
and other customer-end antennas that receive and transmit fixed wireless
signals that are primarily used for reception.
C. Facilities exclusively for private, noncommercial radio and television
reception and private citizen's bands, licensed amateur radio equipment,
and other similar noncommercial telecommunications.
D. Facilities used exclusively for providing unlicensed spread spectrum
technology (i.e., Bluetooth or a hot spot), where the facility does
not require a new tower, where the service is not to be used for commercial
purposes, where there is no fee or charge for the use of the service,
and where the service is intended to be usable for a distance of less
than 200 feet.
[Amended 12-17-2019 by Ord. No. 1859]
A. Timely review. The City will undertake a review of any special use
permit application pursuant to this article in a timely fashion, consistent
with its responsibilities, and shall act within a reasonable period
of time given the relative complexity of the application and the circumstances,
with due regard for the public's interest and needs, and the applicant's
desire for a timely resolution.
B. Review of applications. The Planning Director or his or her designee
shall review any special use permit application for completeness within
30 days of receipt of the application or as required by FCC regulations.
C. Invalid or incomplete applications. The Planning Director or his
or her designee may reject any special use permit or eligible facilities
permit application that does not meet the requirements stated within
this article or which are otherwise incomplete.
D. Notification of incomplete application. The Planning Director or
his or her designee shall notify an applicant if the special use permit
application is deemed incomplete. Such notification shall be in writing
and shall occur within 30 days of receipt of the application or as
required by FCC regulations. For the first notification of an incomplete
submittal, the letter shall delineate any missing or incorrect information
and specify the code, provision, ordinance, application instruction
or other publicly stated procedures that required such information
to be submitted. For any subsequent notification of completeness,
only written notification of an incomplete submittal is required.
E. Supplemental information. The City, at any stage prior to issuing
a special use permit, may require any supplemental information as
it deems necessary to determine that the application complies with
this article.
F. Review of a supplemental submittal. The Planning Director or his
or her designee shall review any supplemental submittal to a special
use permit application for completeness within 10 days of receipt
of such submittal or as required by FCC regulations.
G. Notification of incomplete supplemental submittal. In the event that
an applicant submits supplemental documentation or information and
such supplemental submittal is deemed to not provide the requested
information or documentation, the Planning Director or his or her
designee shall notify the applicant that the supplemental submittal
is incomplete. Such notification shall be in writing and shall occur
within 10 days of receipt of the supplemental submittal or as required
by FCC regulations.
H. Authorization for a special use permit. For any special use permit application, the approval process established in §
205-302D shall be utilized provided that only a complete application shall be eligible to be considered at Planning Commission or City Council.
I. City Council authority. After the public hearing and after formally
considering the special use permit application, the City Council may
approve, approve with conditions, or deny a special use permit. Its
decision shall be in writing and shall be supported by substantial
evidence contained in a written record. The burden of proof for the
granting of the special use permit shall always be upon the applicant.
J. Denial of special use permit. If the City Council denies the special
use permit application, then the applicant shall be notified of such
denial in writing within 10 days of the City Council's action.
Setbacks for towers, wireless telecommunications facility structures,
and wireless telecommunications facilities accessory structures shall
be established within the special use permit. The setback shall be
analyzed and established in the context of the surrounding land uses,
the proximity to surrounding structures and improvements, and the
proximity to public right(s)-of-way. In the event that the wireless
telecommunications facility site or the adjoining land is zoned Agricultural
or undeveloped, the future land use designation and the anticipated
growth within the immediate vicinity shall be considered in the analysis.
City Council may condition approval of a special use permit on any
safeguards as necessary to protect the public health, safety, and
welfare as it relates to the establishment of setbacks.
[Amended 12-17-2019 by Ord. No. 1859]
The applicant for each special use permit and the owner of record
of any proposed wireless telecommunications facilities property site
shall be required to execute and file with the City a bond, or other
form of security, at its cost and expense, which is acceptable to
the City as to the type of security and the form and manner of execution,
in an amount as specified in the Master Fee Schedule. Such performance
guaranty shall be sufficient to assure the faithful performance of
the terms and conditions of this article and the conditions of any
special use permit issued pursuant to this article. The full amount
of the bond or security shall remain in full force and effect until
any necessary site restoration is completed to restore the site to
a condition comparable to that which existed prior to the issuance
of the original special use permit or the applicable eligible facilities
permit(s). Notwithstanding the foregoing, the Planning Director or
his or her designee may waive the requirement for a performance guaranty
provided that the applicant provides documentation that said applicant
established a performance guaranty for the wireless telecommunication
facilities property site as part of a previous application process
and that such performance guaranty remains in full force.
[Amended 12-17-2019 by Ord. No. 1859]
A. A holder of a special use permit for wireless telecommunications
facilities shall secure and at all times maintain public liability
insurance for personal injuries, death and property damage, and umbrella
insurance coverage, for the duration of the special use permit in
amounts as set forth in the Master Fee Schedule.
B. For a wireless telecommunications facility on City property, the
commercial general liability insurance policy shall specifically include
the City and its officers, elected and appointed officials, employees,
and agents as additional insureds.
C. The insurance policies shall be issued by an agent or representative
of an insurance company licensed to do business in the state and with
a Best's rating of at least A.
D. The insurance policies shall contain an endorsement obligating the
insurance company to furnish the City Clerk with at least 30 days'
prior written notice in advance of the cancellation of the insurance.
E. Before construction of a permitted wireless telecommunications facilities
is initiated, but in no case later than 15 days after the granting
of the special use permit, the holder of such permit shall deliver
to the City Clerk a copy of each of the policies or certificates representing
the insurance in the required amounts.
F. Renewal or replacement policies or certificates shall be delivered
to the City Clerk at least 15 days before the expiration of any such
liability insurance policies.
[Amended 3-19-2019 by Ord. No. 1832; 12-17-2019 by Ord. No. 1859]
A. Removal required. Under the following circumstances, the City may
determine that the health, safety, and welfare interests of the City
warrant and require the removal of wireless telecommunications facilities.
(1)
Permitted wireless telecommunications facilities shall be deemed
abandoned if not used as wireless telecommunications facilities for
a period exceeding 90 consecutive days or a total of 180 days in any
three-hundred-sixty-five-day period, except for periods caused by
a force majeure, in which case, repair or removal shall commence within
90 days;
(2)
Permitted wireless telecommunications facilities fall into such
a state of disrepair that the City determines that it creates a public
health or safety hazard;
(3)
Wireless telecommunications facilities have been located, constructed,
or modified without first obtaining, or in a manner not authorized
by, the required special use permit, or any other necessary authorization;
(4)
The special use permit has been revoked by City Council as authorized by §
205-302G(2); or
(5)
A presumed special use permit has become void as defined in §
205-302G(3).
B. Notification of removal. If the Planning Director or his or her designee makes a determination that the removal of wireless telecommunications facilities is required as authorized in Subsection
A of this section, then the Planning Director or his or her designee shall notify the holders of any special use permit for wireless telecommunications facilities that said wireless telecommunications facilities are to be removed.
C. Restoration of site. The holder of any special use permit, or their
respective successors or assigns, shall dismantle and remove such
wireless telecommunications facilities, and all associated structures
and facilities, from the site and restore the site to as close to
its original condition as is possible, such restoration being limited
only by physical or commercial impracticability, within 90 days of
receipt of written notice from the City. However, if the owner of
the property upon which the wireless telecommunications facilities
are located wishes to retain any access roadway to the wireless telecommunications
facilities, the owner may do so with the approval of City Council.
D. Authorization to cause removal of wireless telecommunications facilities. If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications facilities within 90 days after the applicable special use permit holders have received notice, then the City may cause the removal of the wireless telecommunications facilities at the sole expense of the owner and the applicable special use permit holders using the performance guaranty(ies) required pursuant to §
205-285. In the event that the cost of the removal exceeds the performance guaranty(ies), the City shall invoice the owner and the applicable special use and eligible facilities permit holders for the remaining balance.
E. Abandoned wireless telecommunications facilities. If the City orders the removal of any wireless telecommunications facilities pursuant to §
205-288 and the owner of the wireless telecommunications facilities does not claim and remove such facilities from the site to a lawful location within 10 days of such order, then the City may take steps to declare the wireless telecommunications facilities abandoned, and to sell said abandoned wireless telecommunications facilities and their components.
F. Temporary use permit permitted for sale of the wireless telecommunications facilities. The owner of the wireless telecommunications facilities or any special use or permit holder impacted by the order to remove the wireless facilities may apply for a temporary use permit using the process established in §
205-210D to:
(1)
Enable the sale of the wireless telecommunications facilities;
or
(2)
Develop a suitable plan for removal, conversion, or relocation of the affected wireless telecommunications facilities. Such plan shall be developed by the applicable permit holder or tower owner and shall be subject to the approval of the City. Such plan shall not be valid until an agreement authorizing such plan is executed by the applicable special use permit holder(s) and the City. If such agreement is not approved and executed by the parties within the ninety-day time period of the temporary use permit, then the City may cause the removal of the applicable wireless telecommunications facilities in accordance with §
205-288D.
[Amended 12-17-2019 by Ord. No. 1859]
An applicant may request a waiver of any requirement of this
article as part of the applicable special use permit application.
The burden to prove the need for the requested waiver shall rest solely
on the applicant. The applicant shall bear all costs of the City in
considering the requested waiver. City Council shall be authorized
to grant a waiver for special use permit applications for wireless
telecommunications facilities. A waiver shall not be approved unless
the applicant demonstrates by clear and convincing evidence to the
satisfaction of the approving authority that the waiver will have
no significant effect on the health, safety and welfare of the City,
its residents, and other service providers. Any waiver that is granted
may be designated as temporary or permanent, partial or complete.
[Amended 12-17-2019 by Ord. No. 1859]
A. To the extent that a special use permit holder for wireless telecommunications facilities has not received a waiver in accordance with §
205-288, or is otherwise exempt, from applicable state and federal agency rules or regulations, then such permit holder shall adhere to, and comply with all applicable rules, regulations, standards, and provisions of the City and any state or federal agency, including, but not limited to, the FAA and the FCC. Specifically included in this requirement are any rules and regulations regarding height, lighting, security, electrical, and RF emission standards.
B. To the extent that applicable rules, regulations, standards, and
provisions of the City and any state or federal agency, including,
but not limited to, the FAA and the FCC, and specifically including
any rules and regulations regarding height, lighting, and security
are changed or are modified during the duration of a special use permit
for wireless telecommunications facilities, then such permit holder
shall conform the permitted wireless telecommunications facilities
to the applicable changed or modified rule, regulation, standard,
or provision within a maximum of 24 months of the effective date of
the applicable changed or modified rule, regulation, standard, or
provision, or sooner as may be required by the issuing entity.