In order to ensure that the placement, construction or modification
of wireless telecommunications facilities is consistent with the City's
land use policies and the Telecommunications Act of 1996 (the "Act"),
the City is adopting a comprehensive, wireless telecommunications
facilities application and permit process. The intent of this chapter
is to minimize impact of wireless telecommunications facilities, establish
a balanced, fair and efficient process for review and approval of
applications, assure an integrated, comprehensive review of environmental
impacts of such facilities, and protect the health, safety and welfare
of the City of Española.
For the purpose of this chapter, and where not inconsistent
with the context of a particular section, the defined terms, phrases,
words, abbreviations, and their derivations shall have the meanings
given in this section. When not inconsistent with the context, words
in the present tense include the future tense, words used in the plural
number include words in the singular number and words in the singular
number include the plural number. The word "shall" is always mandatory,
and not merely directory.
ACCESSORY FACILITY OR STRUCTURE
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
including but not limited to, utility or transmission equipment, storage
sheds or cabinets.
ADMINISTRATIVE APPROVAL
After administrative review, the Planning Director or designee
is authorized to grant zoning approval and the procedures for administrative
review are established in Section § 1508 of this chapter.
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
a telecommunications permit.
APPLICATION
All necessary and appropriate documentation that an applicant
submits in order to receive a telecommunications permit.
BALLOON TEST
A test for a reasonable period of time to fly, or raise upon
a temporary mast, a brightly colored balloon, that is representative
in size of the initial antenna array including all standoffs, at the
maximum height of the proposed tower.
CO-LOCATION
The use of an existing tower (as defined herein) or other
structure to support one or more antennas for the provision of wireless
services.
COMPLETED APPLICATION
An application that contains all the submittals, information
and/or data required under this chapter and necessary to enable an
informed decision to be made with respect to an application.
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 level to the highest point on the tower or structure,
even if the highest point is an antenna or lightning protection device.
MATERIAL MODIFICATION
An important, essential or significant change to an existing
wireless telecommunications facility. Changes that materially affect
the obvious physical appearance of a facility, materially increase
a facility's height or structural loading, or otherwise materially
affect the safety of the facility would be material modifications.
An increase of 10 feet or more in the height of a wireless telecommunications
facility shall be presumed to constitute a material modification,
unless the applicant, owner or operator of the facility demonstrates
that such increase or addition will not materially affect the appearance
or safety of the facility. Ordinary repair and/or maintenance without
any material addition, removal or other material modification of any
visible components or aspects of a wireless telecommunications facility
shall not be considered a material modification for purposes of this
chapter.
MINOR MODIFICATIONS
Improvements to existing structures that result in some material
change to the facility or structure, but of a level or intensity that
is less than a modification. Minor modifications include the replacement
or upgrade of components with substantially similar components. These
components or aspects of a telecommunication facility may not be physically
or visually discernible.
MODIFICATION or MODIFY
The addition, removal or change of any of the physical and
visually discernible components or aspects of a wireless telecommunications
facility, such as antennas, cabling, equipment shelters, fencing,
utility feeds, changing the color or materials of any visually discernible
components, vehicular access, parking and/or equipment. Adding a new
wireless carrier or service provider to a telecommunications tower
or telecommunications site as a co-location is a modification.
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.
STATE
The State of New Mexico.
STORY POLE
A pole or temporary mast, cut to the maximum height of the
tower, and erected in the proposed location.
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 PERMIT
The official document or permit by which an applicant is
allowed to file for a building permit to construct and use wireless
telecommunications facilities as granted or issued by the City.
TELECOMMUNICATIONS STRUCTURE
A structure used in the provision of services described in
the definition of wireless telecommunications facilities.
TEMPORARY
Temporary in relation to all aspects and components of this
chapter; something intended to, or that does, exist for fewer than
90 days.
TOWER
Any structure designed primarily to support one or more antenna.
WIRELESS TELECOMMUNICATIONS FACILITIES
This term means the structure, facility or location designed,
or intended to be used as, or used to support antennas or other telecommunications
transmitting or receiving devices, including, without limit, towers
of all types and kinds and structures, including, but not limited
to buildings, church steeples, silos, water towers, signs or other
structures that can be used as a support structure for antennas or
their functional equivalent, and all related facilities and equipment,
such as cabling, equipment shelters and other structures associated
with the site. It is a structure and facility 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 telecommunications service not
licensed by the FCC.
In order to ensure that the placement, construction, and material
modification of wireless telecommunications facilities are conducted
with due regard for the City's health, safety, public welfare,
environmental features, the nature and character of the community
and neighborhood and other aspects of the quality of life specifically
listed elsewhere in this chapter, the City hereby adopts an overall
policy with respect to a telecommunications permit for wireless telecommunications
facilities for the express purpose of achieving the following goals:
A. Requiring a telecommunications permit for any new, co-location or
material modification of a wireless telecommunications facility.
B. Implementing an application process for person(s) seeking a telecommunications
permit.
C. Establishing a policy for examining an application for and issuing
a telecommunications permit that is both fair and consistent.
D. Promoting and encouraging, wherever possible, the sharing and/or
co-location 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 camouflaged wireless telecommunications
facilities 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 under the facts and circumstances.
F. In granting a telecommunications permit, the City has determined
that the facility shall be located in the most appropriate site in
regards to being the least visually and physically intrusive among
those available in the City.
The following shall be exempt from this chapter:
A. The City's fire, police, Department of Transportation or other
public service facilities owned and operated by the local government.
B. Any facilities expressly exempt from the City's siting, building
and permitting authority.
C. Over-the-air reception devices including the reception antennas for
direct broadcast satellites (DBS), multi-channel 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.
D. Facilities exclusively for private, noncommercial radio and television reception and private citizen's bands, and other similar noncommercial telecommunications, subject to applicable zoning and building requirements of this Chapter
350, Zoning and Development.
E. FCC-licensed amateur radio facilities require an administrative approval
and are exempt from all aspects of this chapter except reasonable
screening, setback, placement, construction, tower height, and health
and safety standards in accordance with New Mexico state law.
F. Facilities exclusively for providing unlicensed spread spectrum technologies
(such as IEEE 802.11 a, b, g (Wi-Fi) and Bluetooth) for the benefit
of a limited area, where telecommunications service is not sold but
is provided for the benefit or convenience of patrons or residents,
and where the facility does not require a new tower.
G. Facilities that do not increase the overall height of an existing
structure (taking into account all parts of the facility, including
all antennas and support structures) by 10 feet or more, provided
that:
(1)
Such facilities are appropriately screened, considering the
height and nature of the existing structure;
(2)
Such facilities do not otherwise constitute a material modification
under this chapter;
(3)
Any such facility exempted under this paragraph complies with
all other applicable laws and regulations, including without limitation,
building codes;
(4)
And no facility located on the structure on which such facility
is constructed or installed has been exempt under this paragraph within
the previous four years.
The extent and parameters of a telecommunications permit shall
be as follows:
A. The telecommunications permit shall not be assigned, transferred
or conveyed without written notification to the City. Such notification
will occur within 60 calendar days of such assignment, transfer or
conveyance.
B. A telecommunications permit may, following a hearing upon due prior
notice to the holder of the permit, be revoked, canceled, or terminated
for a violation of the conditions and provisions of the telecommunications
permit, or for a material violation of this chapter after prior written
notice to the holder of the telecommunications permit and an opportunity
to cure.
[Amended 7-11-2019 by Ord. No. 2019-03]
At the time that a person submits an application for a telecommunications permit, such person shall pay a nonrefundable application fee to the City as specified in Chapter
171. The application fee is a one-time cost at permit application and covers administrative expenses, legal notice, material modification, records retention, future code adherence inspections, providing access to and information from records to other wireless companies seeking information on a particular site or sites and the same for co-location. These fees represent the City's best estimate of the actual cost of City personnel and resources for processing applications and monitoring compliance with this chapter for the life of a wireless telecommunications facility, which is estimated to be 30 years. Application review costs and fees shall be reviewed and adjusted biennially, as needed to insure that the amount of the fees represents, as accurately as practicable, the City's cost of reviewing and processing applications and monitoring compliance with this chapter.
Any applicant desiring relief, waiver or exemption from any
aspect or requirement of this chapter may request such at the preapplication
meeting, provided that the relief or exemption sought is contained
in the submitted application for a telecommunications permit, or an
amendment to the permit application. Such relief may be temporary
or permanent, partial or complete. The applicant shall have the burden
of showing the need for the requested relief, waiver or exemption
and shall bear all costs of the City's consultants/experts (if
any) in considering the request for relief. No such relief shall be
approved unless the applicant demonstrates by clear and convincing
evidence that, if granted the relief, waiver or exemption will have
no significant effect on the health, safety and welfare of the City,
its residents and other service providers.
Applicants for wireless telecommunications facilities shall
locate, site and erect the wireless telecommunications facilities
in accordance with the following priorities, Subsection A being the
highest priority and Subsection F being the lowest priority:
A. On existing towers or other structures without increasing the height
of the tower or structure;
B. On existing towers or other structures without increasing the overall
height of the tower or structure by more than 10 feet;
C. On properties in areas zoned nonresidential/heavy industrial, including
H-I Heavy Industrial District, L-I Light Industrial District, and
SU Special Use Districts approved for such uses;
D. On properties in areas zoned nonresidential/commercial, to include
B-1 Local Commercial District, B-2 General Commercial District, and
B-3 Central Commercial District, and SU Special Use Districts approved
for such uses;
E. On City-owned properties or structures (provided space is available,
loading is within the structure's capacity, and the City deems
the use appropriate);
F. On properties in areas zoned for residential uses, subject to the
public hearing requirements of § 1508, in the following
descending order of priority:
(1)
R-O-I Residential-Office-Institutional District;
(2)
R-1, R-2 and R-4 Residential Districts, and SU Special Use for
single family residential uses;
(3)
R-6 Residential Districts, RM Multifamily Residential Districts,
and SU Special Use for multifamily residential uses; and
(4)
No facilities shall be located with Historic or Tourist-Commercial
Districts.
All wireless telecommunications facilities and antennas shall
be located, fenced or otherwise secured in a manner that prevents
unauthorized access. Specifically:
A. All antennas, towers and other supporting structures, including guy
anchor points and wires, shall be made inaccessible to individuals
and constructed or shielded in such a manner that they cannot be climbed
or collided with; and
B. Transmitters, telecommunications control points, and all utility
connections shall be installed in such a manner that they are readily
accessible only to persons authorized to operate or service them.
All proposed towers and any other proposed wireless telecommunications
facility structures shall be set back from abutting parcels, recorded
rights-of-way and road and street lines by sufficient distance to
assure safety of persons and structures in the vicinity. A standard
of acceptable distance shall be equal to the height of the proposed
tower or wireless telecommunications facility structure. A freestanding
wireless telecommunications structure plus 10 feet that abuts a residential
district shall establish the setback equal to the height of the structure.
Applicants proposing a smaller setback shall demonstrate ancillary
safety precautions in the design of the structure that justify the
smaller setback.
An applicant for a telecommunications permit, and/or the owner
of record of the proposed wireless telecommunications facility shall,
at their cost and expense, execute and file with the City a bond with
one or more sureties reasonably satisfactory to the City or other
form of security acceptable to the City, in an amount of at least
$25,000 for a tower and $5,000 for a co-location, to assure the faithful
performance of the terms and conditions of this chapter and conditions
of any telecommunications permit issued pursuant to this chapter.
The full amount of the bond or security shall remain in full force
and effect throughout the term of the telecommunications permit and/or
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 telecommunications permit. No bond or other security
shall be required for permits issued for material modification of,
or co-location on, an existing wireless telecommunications facility
for which a bond has already been provided.
In order to verify that the holder of a telecommunications permit
and any and all lessees and/or licensees of wireless telecommunications
facilities, place, construct, maintain and operate such facilities
in accordance with all applicable provisions of this chapter, the
telecommunications permit issued for such facility, and all technical,
safety, fire, building, and zoning codes, laws, ordinances and regulations
and other applicable requirements, the City may inspect all facets
of the permit holder's, lessee's or licensee's placement,
construction, modification and maintenance of such facilities, including,
but not limited to, towers, antennas and buildings or other structures
constructed or located on the permitted site.
An application for any wireless telecommunications facility
to be located on City property shall include a binding, written undertaking
by the applicant to defend and indemnify the City and its officers,
officials, employees and agents, and to hold them harmless from and
for any and all penalties, damages, costs, charges, claims, suits,
demands, causes of action or award of damages, of any kind and nature,
known or unknown, at law or in equity, arising from or relating to
the placement, construction, erection, modification, location, use,
operation, maintenance, repair, installation, replacement, removal,
or restoration of the proposed wireless telecommunications facility,
to the extent permitted by law; excepting, however, any portion of
such claims, suits, demands, causes of action or damages as may be
attributable to the fault of the City, or its servants or agents.
If a wireless telecommunications facility is repaired, rebuilt,
placed, and moved, relocated, modified or maintained in a way that
is inconsistent or not in compliance with the provisions of this chapter
or of the telecommunications permit, then the City shall notify the
holder of the telecommunications permit, in writing, of the violation.
After receiving written notification, a permit holder shall have 60
calendar days to cure the violation. The City shall consider extensions
to the cure period as may be required upon the permit holder's
demonstration that, despite its good faith efforts, such default cannot
be reasonably cured within the provided time. A permit holder still
in violation after expiration of the cure period may be considered
in default, subject to fines as in § 1529, and its telecommunications
permit may be revoked.
Except as otherwise provided in this chapter, the City may impose
against the holder of a telecommunications permit the penalties as
set forth below.
A. A failure to obtain a permit when required or a violation of any
telecommunications permit issued pursuant to this chapter is hereby
declared to be an offense, punishable by a fine not exceeding $500
per occurrence upon conviction. Each week's continued violation
shall constitute a separate additional violation.
B. Notwithstanding anything in this chapter, the holder of a wireless
telecommunications permit may not use the payment of fines, liquidated
damages or other penalties, to evade or avoid compliance with this
chapter or any section of this chapter. An attempt to do so shall
subject the holder of the telecommunications permit to termination
and revocation of its telecommunications permit. The City may also
seek injunctive relief to prevent the continued violation of this
chapter, without limiting other remedies available to the City.