[Ord. No. 1124, 7-11-2019]
A.
Statement Of Purpose. The general purpose of this Article X ("Article") is to regulate the placement, construction, and modification of 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 Memphis. 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 Memphis;
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the future superseded or preempted by State or Federal law or found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. 1124, 7-11-2019]
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, 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 antenna 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.
The Zoning Administrator or his/her designee or official
acting in such capacity.
Any free-standing, man-made structure designed for the support
of antenna, 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 communication
facilities (other than a support structure) in full conformance with
the design and other requirements of this Article and is: (1) existing
prior to the date of all applicable permit applications seeking City
authorization for installation of such facilities thereon, and (2)
not built or installed in anticipation of such specific installation
or erected as a means to evade approvals applicable to a non-existing
structure.
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
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; and
Not exceeding six (6) feet above the top of an existing structure
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 antenna, or any change to a structure requiring
a building permit or other governmental approval.
A building for the protection and security of communications
equipment associated with one (1) or more antenna 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 six (6) 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 antenna
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."
Any antenna, small wireless facility, "fast-track," cabinet,
shelter, and support structure, and associated equipment.
[Ord. No. 1124, 7-11-2019]
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 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
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. 1124, 7-11-2019]
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 communication 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 City right-of-way, as defined by Chapter 515: (1) the most restrictive adjacent underlying zoning district classification shall apply unless otherwise specifically zoned and designated on the official zoning map, (2) 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; (3) 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, as defined by Chapter 515; and (4) such use shall be required to obtain applicable permits and comply with the City's ROW management rules and regulations set forth in Chapter 515.
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
Board of Aldermen in the case of a special use permit.
5.
Lighting. Antenna, 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 Board of Aldermen 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
signage 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 Board of Aldermen 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. Antenna 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. Antenna attached to an existing building, utility pole,
or structure shall be of a color identical to the surface to which
they are mounted. Antenna 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 antenna shall be designed to be disguised
and maximally concealed on or within the support structure, or other
structure. Exposed antenna on "crow's nest" or other visible
platforms or extensions are prohibited.
d.
Height. Support structures and antenna 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.
Additionally, towers shall be reasonably designed to maximally reduce
or eliminate the potential damage to persons or property from falling
ice or equipment from the tower or from wind damage or structural
failure.
f.
Compound Walls/Landscaping. All towers shall be surrounded by
a minimum of a six-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 Board of Aldermen
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. Such setbacks described herein shall also constitute safety fall zones to protect the public, nearby persons, and property from falling ice, debris, and structural elements, as well as to protect the public, nearby persons, and property from other documented safety hazards that arise from such structures, attachments, or wireless communications facilities. Due to the potential public hazards from falling ice, debris, equipment, and structural elements posed by wireless communications facilities and support structures, violation of these established safety fall zones which affects more than one (1) property within the City (or within the City's one-half (1/2) mile jurisdiction for abatement of nuisances) shall be deemed injurious to the public health and safety of the City and as such shall be presumed a public nuisance which the City may abate, suppress, and prevent pursuant to the Municipal Code of the City of Memphis, Missouri's (the "City Code") Chapter 220.
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 bore 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 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 collocation
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 collocation to a certified
historic structure are held. The City may require reasonable, technically
feasible and technological neutral deign and concealment measures
as a condition of approval of a wireless communication facility within
a historic district or upon a historic structure.
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. 1124, 7-11-2019]
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.
Collocations On Existing Support Structures. The attachment of additional or replacement complying antenna 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 405.540.
2.
Antenna On High-Voltage Towers. The mounting of antenna on or
within any existing high-voltage electric transmission tower, but
not exceeding the height of such tower by more than ten (10) feet,
provided that all requirements of this Article and the underlying
zoning ordinance are met, except minimum setbacks provided in this
Article shall not apply.
3.
Antenna On Existing Buildings/Structures. In all districts,
except not on single-family residential or two-family dwellings, the
mounting of antenna 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.
Collocation Of Small Wireless Facilities On Authority Poles.
In accordance with Section 67.5112, RSMo., a wireless provider may
collocate small wireless facilities and install, maintain, modify,
operate, and replace authority poles, at heights below the height
limitations outlined in this Subdivision, which shall be a permitted
use in all districts except single-family residential and historic
districts provided the proposed installation does not:
a.
Materially interfere with the safe operation of traffic and
control equipment or City-owned communications equipment;
b.
Materially interfere with compliance with the American Disabilities
Act, or similar Federal or State standards regarding pedestrian access
or movement;
c.
Materially obstruct or hinder the usual travel or public safety
on the rights-of-way;
d.
Materially obstruct the legal use of the rights-of-way by the
City, utility, or other third-party;
f.
Fail to comply with applicable national safety codes, including
recognized engineering standards for utility poles or support structures;
g.
Fail to comply with the decorative pole replacement requirements
herein;
i.
Interfere or impair the operation of existing utility facilities,
or City or third-party attachments.
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New, replacement, or modification of authority poles under the
following circumstances shall not be considered a permitted use under
this Section: (1) proposals to construct or modify an authority pole
which exceeds the greater of: (i) fifty (50) feet AGL; or (ii) more
than ten (10) feet above the tallest existing utility pole as of January
1, 2019, within five hundred (500) feet of the proposed authority
pole in the City; and (2) proposals to collocate on an existing authority
pole in place on August 28, 2018, which exceeds the height of the
existing authority pole by more than ten (10) feet.
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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 405.530 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 as defined by Section 67.5111, RSMo., 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 such 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 applicable law. Applicant shall also submit a certified structural analysis as required in Section 405.540 (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. 1124, 7-11-2019]
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. 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. An application for a
"fast-track" small wireless facility may be approved administratively
by the Director, subject to meeting the following requirements:
a.
General Requirements. The following requirements shall generally
apply to all "fast-track" small wireless facilities located within
the City:
(1)
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;
(2)
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;
(3)
The "fast-track" equipment shall not emit noise
audible from the building line of any residentially zoned or used
property;
(4)
The "fast-track" shall be:
(a)
Located on an existing structure or concealed within
such existing structure; or
(b)
Located on a modified or replacement utility pole
or concealed within such utility pole if the appearance of such utility
pole is not materially altered and the replacement or modified utility
pole is no more than five (5) feet taller;
(5)
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.
b.
Additional Requirements When Sited Near Pedestrian And Vehicle
Ways. When a "fast-track" is proposed to be located on an existing
structure or on a modified or replacement utility pole on or adjacent
to public or private streets, sidewalks, or other pedestrian or vehicle
ways:
(1)
Only one (1) "fast-track" shall be permitted per
structure;
(2)
The height of all portions of the "fast-track"
shall be located at least eight (8) feet above ground level;
(3)
No ground equipment shall be permitted; and
(4)
No portions of the "fast-track" shall extend horizontally
from the surface of the utility pole or existing structure more than
sixteen (16) inches.
c.
Waiver For Good Cause Shown. 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", or the requirement of 405.560(A)(2)(a)(4)(b),
by up to fifty percent (50%) if the applicant demonstrates that it:
(1)
Does not in any location nationally use equipment
capable of meeting the specifications and the purpose of the equipment;
and
(2)
Cannot feasibly meet the requirements as defined
and described.
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The Director may further waive one (1) or more of the requirements
found in the definition of "fast-track," or from: a. General Requirements,
or b. Additional Requirements When Sited Near Pedestrian or Vehicle
Ways of this Subdivision, 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. Provided, however, that to
meet the required finding for the Board of Aldermen to waive the requirement
that a "fast-track" be located on an existing structure as provided
in 405.560(A)(2)(a)(4) above, the applicant must prove that an existing
support structure cannot be replaced or modified in accordance with
this Section. The burden of proof for any waiver shall be wholly on
the applicant and must be shown by clear and convincing evidence.
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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. 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, walkway, parking areas, and other structures, public
right-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, hydrologic 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 Section 405.540 (General Requirements) of this Article;
f.
If the applicant is not a wireless services provider as defined
by Section 67.5111, RSMo., 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 such 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 affect
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 the Article. A decision to deny an application shall be made
in writing and state the specific reasons for the denial.
[Ord. No. 1124, 7-11-2019]
A.
Special Use Permit Required. All proposals to construct or modify a wireless communications facilities not permitted by Section 405.550 (Permitted Uses) or Section 405.560 (Administrative Approval) or not fully complying with Section 405.540 (General Requirements) of this Article shall be permitted only upon the approval of a special use permit authorized consistent with Section 405.460 following a duly advertised public hearing by the Planning and Zoning Commission and Board of Aldermen, 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 and submitted all information and documentation required herein or thereon including certified engineering plans and proof of owner consent as required by Section 405.530. 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 405.550 (Permitted Uses) or Section 405.560 (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 405.460 of the Zoning Code for the consideration of special use permits, no special use permit shall be approved by the Board of Aldermen 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. 1124, 7-11-2019]
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. 1124, 7-11-2019]
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. 1124, 7-11-2019]
Except as may otherwise be provided by law, any person violating any provision in this Article shall be subject to Section 100.210.
[Ord. No. 1124, 7-11-2019]
The procedures of 405.490, shall govern appeals by any aggrieved
person of a final action of any City officer, employee, board, commission,
or the Board of Aldermen 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 405.490
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.
