[Ord. No. 10702, 2-18-2021]
This section provides for the appropriate location and deployment
of wireless communications infrastructure to better serve the citizens
and businesses of the City of Kirkwood. The purpose of this section
is to:
(a)
Minimize adverse visual impacts of wireless facilities and support
structures through careful design, siting, and landscaped screening;
(b)
Maximize the use of existing and new facilities so as to minimize
the need to construct new or additional facilities; and
(c)
Comply with applicable federal and state laws, including the Federal
Telecommunications Act of 1996 and the Uniform Wireless Communications
Infrastructure Deployment Act, Section 67.5090 RSMo., et seq.
[Ord. No. 10702, 2-18-2021]
The following general requirements shall apply to all telecommunications
infrastructure permitted in all zoning districts:
(a)
Antenna support structures over 150 feet in height. Any antenna support
structure that is proposed to be in excess of 150 feet in height is
not permitted unless authorized by the Planning and Zoning Commission
for co-use or other considerations, such as to provide personal wireless
services, or reasonably required for public safety communications
of a governmental entity sharing the antenna support structure.
(b)
Lighting. Antennas and antenna support structures shall not be lighted
unless required by the FAA or a state or federal agency with authority
to regulate, in which case a description of the required lighting
scheme will be made part of the application to install, build, or
modify the antenna or antenna support structure.
(c)
Advertising. Unless a disguised support structure is in the form
of an otherwise lawfully placed pylon sign, the placement of signs
on structures regulated by this section is prohibited.
(d)
Design.
(1)
Unless subject to the requirements of the FAA or any applicable
state or federal agency, towers shall maintain a galvanized steel
finish or be painted a neutral color consistent with the natural or
built environment of the site.
(2)
Antenna equipment shelters or cabinets shall have an exterior
finish compatible with the natural or built environment of the site,
and may also be brick or other masonry material as required by the
Planning and Zoning Commission as part of a major telecommunications
facilities permit.
(3)
Antennas attached to a building or antenna support structure
shall be painted a color identical to, or compatible with, the surface
to which they are mounted.
(4)
All towers shall be surrounded by a landscape strip of not less
than 10 feet in width, and planted with materials that will provide
a visual barrier of a minimum height of six feet. Evergreen trees
should be at least six feet tall, and deciduous trees at least 2.5
inches in caliper. Said landscape strip shall be exterior to any security
fencing. In instances where a landscape strip is not practical or
feasible, a minimum six-foot-high decorative fence or wall in lieu
of the landscape strip may be approved by the Planning and Zoning
Commission in conjunction with a major telecommunications facilities
permit approval.
(5)
All towers shall be set back from any adjacent residentially
zoned property a distance equal to the height of the tower, and shall
maintain setbacks as are required by the zoning district regulations.
Alternatively, a signed and sealed engineer's report regarding a decreased
fall zone for the proposed tower may be submitted for consideration
in reducing said setbacks; however, this shall not be utilized to
reduce the setbacks lower than those required by the applicable zoning
district.
(6)
Ground anchors of all guyed towers shall be located on the same
parcel as the tower and meet the setbacks of the applicable zoning
district.
(7)
Vehicle or outdoor storage on any antenna support structure
site is prohibited.
(8)
On-site parking for periodic maintenance and service shall be
provided at all antenna or antenna support structure locations. Access
to and parking for antenna or antenna support structure locations
shall be provided on a paved surface.
(e)
Shared use.
(1)
In order to maximize the use of an existing or proposed wireless
tower, the tower owner shall, prior to the issuance of any minor telecommunications
permit to alter or modify any tower existing on the effective date
of this Code, provide to the City a written and notarized statement
agreeing to make said tower available for use by others subject to
reasonable technical limitations and at a fair market rate. The willful
and knowing failure of a tower owner to agree to shared use or to
negotiate in good faith with potential users shall be cause for the
withholding of future permits to the same tower owner to install,
build or modify antennas or antenna support structures within the
City.
(2)
Any new tower at a height of 60 feet above ground level or higher
shall be designed and constructed to accommodate at least one additional
user unless a larger number is indicated by the City. In addition,
the tower shall be designed and constructed to reasonably accommodate
use by the City and made available at a fair market value for space.
The willful and knowing failure of the owner of a tower built for
shared use to negotiate in good faith with potential users shall be
cause for the withholding of future permits to the same owner to install,
build or modify antennas or antenna support structures within the
City.
(f)
Modifications.
(1)
Changes to existing antennas, towers, or structures that are
not "substantial modifications" as defined herein shall only be reviewed
for conformance with applicable building permit requirements, National
Electric Safety Codes, and recognized industry standards for structural
safety, capacity, reliability and engineering, without any Planning
and Zoning Commission review.
(2)
Upon receipt of a minor facilities permit subject to § 25-89(c), the following are allowed:
(i)
The attachment of additional antennas or the replacement of
antennas to any tower or the addition or replacement of antenna equipment
shelters existing on the effective date of this Code or subsequently
approved in accordance with these regulations, provided that additional
antenna equipment shelters or cabinets are located within the existing
antenna support structure site.
(ii)
The mounting of antennas in or on any existing building or structure
(such as a water tower, church steeple, billboard, utility pole, or
tower used for high voltage electric lines), provided that the building
or structure has been in service for at least one year in a functional
use prior to application and provided that the height of the antenna
does not exceed 20 feet from its mounting.
(iii)
The installation of antennas on buildings or
structures or the construction of an antenna support structure on
land owned by the City of Kirkwood following the approval of a lease
agreement by the City Council.
(iv)
The maintenance without alteration of any antenna support structure
existing on the date of the enactment of this Code. Modification to
an existing antenna support structure, including but not limited to
the replacement or addition of any antennas or equipment shelters,
shall be subject to all the provisions of this Code.
(3)
For purposes of this section, a "substantial modification" is
defined as the mounting of an antenna on a tower or other structure
which, as applied to the structure as it was originally constructed,
meets any of the following criteria:
(ii)
Involves adding an appurtenance to the body of a tower or structure
that protrudes horizontally from the edge of the existing tower or
structure more than 20 feet or more than the width of the wireless
support structure at the level of the appurtenance, whichever is greater
(except where necessary to shelter the antenna from inclement weather
or to connect the antenna to the tower via cable);
(iii)
Involves the installation of more than the standard
number of new outdoor equipment cabinets for the technology involved,
not to exceed four new equipment cabinets; or
(iv)
Increases the square footage of the existing equipment compound
by more than 1,250 square feet.
(g)
Limitation on regulations and Commission exceptions.
(1)
In considering a major telecommunications facilities permit
application, the Planning and Zoning Commission may grant an exception
to any such regulation based on a clear showing that the exception
is reasonably required to provide communications services. Such showing
shall be supported by the opinion of a telecommunications consultant
hired by the City at the expense of the applicant. The opinion of
the consultant shall include a statement explaining why alternatives
are not available or viable.
(2)
Nothing in this article shall be construed or deemed to supersede
any applicable state or federal law or any applicable regulation issued
by a state or federal agency, including, but not limited to, the Missouri
Public Service Commission and the Federal Communications Commission.
In the event of any conflict between such laws or regulations and
this article, the applicable state or federal law or regulation shall
apply.
[Ord. No. 10702, 2-18-2021]
(a)
General permit requirements. The following information applies to
both major and minor facilities permits.
(1)
Applications for major or minor telecommunications facilities
permits under this article shall be accompanied by an application
fee approved by the City to cover the cost of processing the application,
any deposit otherwise required by law for the proposed work, and any
other amounts due to the City from the applicant, including but not
limited to prior delinquent fees, costs, and any loss, damage, or
expense suffered by the City because of the applicant's prior work
in the City or for any emergency actions taken by the City, but the
Director of Public Services may modify this requirement to the extent
the Director of Public Services determines any such fees to be in
good-faith dispute or beyond the ability of the applicant to control.
(2)
If the regulations of this article would prohibit facilities at a specified location, the applicant may request an exception from the Planning and Zoning Commission as provided in § 25-88(g). The City's form application shall include an exception option by which the applicant shall provide the reasons for the requested exception.
(3)
Applications shall be reviewed and acted upon within the time
frames provided in this article. The City acknowledges that federal
law or regulations may prescribe deadlines not consistent with those
included in this article, but the certainty of such federal deadlines
cannot be effectively ascertained and prescribed herein. It shall
be incumbent upon the applicant to inform the City of any desire to
utilize federal deadlines and to explain the applicability of same
at the time of application. The City's form application shall include
a federal deadline option.
(b)
Major telecommunications facilities permits.
(1)
Permit process.
(i)
The construction, installation, and substantial modification
of antennas and towers shall require a major telecommunications facilities
permit approved by the Planning and Zoning Commission.
(ii)
Applications for a major facilities permit shall be filed in
conjunction with a building permit application.
(iii)
Applications for major telecommunications facilities
permits shall be made to the Director of Public Services on forms
provided by the Director. Prior to filing an application, the applicant
shall meet with the Director of Public Services to determine the information
to be required in support of the application.
(iv)
Major telecommunications facilities permit applications shall
be accompanied by detailed construction and installation plans demonstrating
proof of compliance with the regulations of this article and the need
for any exception to any such regulation. An application proposing
a tower shall include a detailed site plan based on a closed boundary
survey of the host parcel indicating:
a.
All existing and proposed improvements, including buildings,
drives, walkway, parking areas and other structures;
b.
The location of trees on such parcel;
c.
The general location of the improvements on all adjoining properties;
d.
Public rights-of-way, the zoning categories of the host parcel
and adjoining properties, the location of buffer and landscape areas,
hydrologic features, and the coordinates and height of the proposed
facility;
e.
Any statements or information required by this article; and
f.
Such other information as the Director of Public Services reasonably
deems appropriate.
(v)
After receiving an application to construct a new tower, the
Planning and Zoning Commission shall have 120 days from the date of
the application's submission, or such additional time as may be agreed
to by an applicant and the Director of Public Services, to approve
or deny the application and to advise the applicant in writing of
its final decision.
a.
Within 30 days of receiving the application, the Director of
Public Services shall review the application and, if the application
does not conform to the submission requirements of this section, shall
notify the applicant in writing of the specific deficiencies in the
application which, if cured, would make the application complete.
b.
Upon receipt of a timely written notice that an application
is deficient, an applicant may take 30 calendar days from receiving
such notice to cure the specific deficiencies. If the applicant cures
the deficiencies within 30 calendar days, the application shall be
reviewed and processed within 120 calendar days from the initial date
the application was received. If the applicant requires a period of
time beyond 30 calendar days to cure the specific deficiencies, the
deadline of 120 calendar days for review shall be extended by the
same period of time.
c.
If the Commission fails to act on an application within the
review period of 120 calendar days, or an extension thereof due to
an incomplete application, or within such additional time as may be
agreed to by an applicant and the Director of Public Services, the
application shall be deemed approved.
(2)
Criteria for telecommunications facilities permit approval.
The Planning and Zoning Commission shall consider the evidence submitted
with the major telecommunications facilities permit application as
well as additional information presented by the applicant or others.
Before approving a major telecommunications facilities permit, the
Planning and Zoning Commission shall consider and determine the following,
as may be applicable, based on the evidence submitted:
(i)
Whether the application complies with the requirements of this
article;
(ii)
Whether an existing tower or structure may meet the applicant's
requirements;
(iii)
Whether a tower has sufficient structural strength
to support the applicant's proposed antenna and required screening;
(iv)
Whether the proposed antenna would experience or cause signal
interference with other telecommunication facilities;
(v)
Whether the design of the antenna, tower, or structure maximally
reduces visual degradation; and
(vi)
Whether the proposed antenna or tower minimizes the number and
size of similar facilities that will be required in the geographic
area surrounding the proposed site.
(3)
Review, determination and appeal.
(i)
The Planning and Zoning Commission shall review and determine applications as provided in this article and any application regulations of § 25-16.
(ii)
A decision to deny an application shall be based upon substantial
evidence that shall be made a part of the written record of the meeting
at which a final decision on the application is rendered.
(iii)
Any aggrieved person may, within 15 days of the
decision for which redress is sought, file with the City Council a
written request for reconsideration and appeal of any decision of
the Planning and Zoning Commission or Director of Public Services
under this article. The written request must set forth in a concise
manner the decision being appealed and all grounds known to the appellant
as to wherein and why the decision is allegedly in error. The request
for reconsideration and appeal must be filed with the City Clerk within
the time specified above. A copy of the request and any supporting
documents or materials filed by the aggrieved party must be served
by the aggrieved party on the applicant (if different than the aggrieved
party) by certified U.S. mail, return receipt requested, within three
days of filing with the City Clerk. Proof of service on the applicant
must be filed with the City Clerk within six days of filing of the
request. The City Council may consider the appeal on the record of
the prior decision by the Planning and Zoning Commission or may, at
its sole discretion, receive additional evidence in such manner as
it deems appropriate in light of the circumstances.
(iv)
Any person aggrieved by the City Council's final decision on
an appeal may bring an action for review in the St. Louis County Circuit
Court.
(c)
Minor telecommunications permits.
(1)
Antennas not requiring a minor telecommunications facilities permit, and proposals for tower or structure co-use or proposed replacements for already permitted towers or antennas, when such proposals do not constitute substantial modifications as defined in § 25-88(f) hereof, shall be subject to a minor telecommunications permit. Such permit applications shall only be reviewed for conformance with applicable building permit requirements, National Electric Safety Codes, and recognized industry standards for structural safety, capacity, reliability and engineering, without any Planning and Zoning Commission review.
(2)
An application for a minor telecommunications permit shall be
filed with the Director of Public Services and shall include, among
other information that may be required, the following:
(i)
Detailed construction and installation plans demonstrating proof
of compliance with this article;
(ii)
Site plan of the parcel upon which the installation is to be
made showing the specific location of the proposed installation and
all improvements on the parcel;
(iii)
A copy of a lease, letter of authorization or
other agreement from the property owner evidencing the applicant's
right to pursue the application; and
(iv)
Such other information reasonably required by the Director of
Public Services.
(3)
After receiving a minor telecommunications permit application,
the Director of Public Services shall have 45 days from the date of
the application's submission, or such additional time as may be agreed
to by an applicant and the Director, to approve or deny the application
and to advise the applicant in writing of a final decision.
(4)
Within 15 days of receiving the application, the Director shall
review the application and, if the application does not conform to
the submission requirements of this section, shall notify the applicant
in writing of the specific deficiencies in the application which,
if cured, would make the application complete.
(5)
Upon receipt of a timely written notice that an application
is deficient, an applicant may take 15 calendar days from receiving
such notice to cure the specific deficiencies. If the applicant cures
the deficiencies within 15 calendar days, the application shall be
reviewed and processed within 45 calendar days from the initial date
the application was received. If the applicant requires a period of
time beyond 15 calendar days to cure the specific deficiencies, the
forty-five-calendar-day deadline for review shall be extended by the
same period of time.
(6)
If the Director fails to act on an application within the review
period of 45 calendar days, or an extension thereof due to an incomplete
application as provided in this section, or within such additional
time as may be agreed to by an applicant and the Director, the application
shall be deemed approved.
(7)
A party aggrieved by either the Director's final decision or
the purported failure to timely act may file an action for review
in the St. Louis County Circuit Court, without filing an appeal to
the City, in accordance with this Code.
[Ord. No. 10702, 2-18-2021]
Any tower, or the upper portion of any tower, which is occupied
by inactive antennas for a period of 12 months shall be considered
a public nuisance and the tower and support structure, including footings,
where appropriate, shall be removed at the owner's expense. Removal
of upper portions of a tower manufactured as a single object shall
not be required. In instances where more than one antenna is collocated
on the tower, it shall not be considered inactive until all antennas
are no longer in use.
