City of Odessa, TX ARTICLE 14-6 WIRELESS COMMUNICATIONS SYSTEMS

§ 14-6-1 Wireless communications systems regulations.

(a) 

Permits.

(1) 

Permits.

Prior to construction or placement of an antenna, antenna support structure, tower, unmanned equipment building or satellite Earth station, a person must obtain a building permit; and in an O, MC, and NS and R district, a specific use permit as well. However, such permits shall not be required for (A) a small antenna unless specifically required by the building regulations of the city or by this ordinance and (B) a Conforming commercial Earth station. For purpose of public safety, it is required that any antenna for which the highest point of the antenna is more than twenty (20) feet above the peak of the roof, is required to obtain a permit.

(2) 

Regulations.

All antennas must comply with the applicable regulations herein, or by other ordinances, regardless of whether a permit is required. The regulations do not apply to an antenna located within a building.

(3) 

Small antennas.

The building official may designate other regulations which apply to small antennas, by listing them on a document to be made readily available to antenna users. The building official shall only include those regulations which are: (A) necessary to accomplish a clearly defined safety objective and (B) not more burdensome to affected antenna users than is necessary to achieve the stated objective. The building official shall state each such safety objective in the document. A copy of this document shall also be made readily available to antenna users. The regulations stated in the document, plus any others made applicable by this ordinance, are the only city regulations applicable to small antennas.

(4) 

Applications.

Applications for a permit shall be accompanied by the following in duplicate:

(A) A complete set of construction documents showing the proposed method of installation.

(B) A copy of the manufacturer’s recommended installation instructions, if any.

(C) A diagram to scale showing the location of the antenna, property and setback lines, easements, power lines and all structures.

(D) A certification by a structural or civil engineer registered by the State of Texas, if required by the Texas Engineer Practices Act, that the proposed installation complies with the structure requirements of the City of Odessa building code, and other applicable codes, regulations, and customary and reasonable industry standards, with the most restrictive to apply.

(5) 

Administrative rulings.

Decisions shall be made on a case by case basis in a reasonable period of time, supported by substantial evidence contained in a written record, taking into consideration the nature and scope of each request and all appeals to court shall be made within 30 days after the final decision or order by the city, and shall be based on the substantial evidence rule and shall be considered by the court on an expedited basis pursuant to 47 U.S.C. section 704. All appeals of decisions by the director of planning shall go to the zoning board of adjustment in the same manner as all other appeals based on the zoning ordinance.

(6) 

Variances or special exceptions.

In addition to their other powers, the building board of appeals with regard to safety issues, and the zoning board of adjustment with regard to zoning issues may grant a variance or special exception for an antenna, tower, alternate structure, or antenna support structure, if: (A) the board finds that the intended function of the antenna, tower or structure would be adversely affected, in some significant way, if the antenna, tower or structure had to be constructed in accordance with the other provisions of this section, or (B) the variance or special exception is necessary to harmonize the city’s ordinances and federal laws, rules or regulations, or (C) the board finds that by modifying the height limitation to provide additional space for co-location of other antenna, the number of antenna support structures can be reduced. Unless otherwise ordered by the building board of appeals, or zoning board of adjustment, civil, criminal, administrative and other legal actions are stayed during the time that an application for a variance or special exception is pending.

(7) 

Nuisance.

In addition to the penalties provided in this code, any violation of this subsection if hereby declared to be a nuisance. In addition to any other relief provided by this subsection, the city may apply to a court of competent jurisdiction for an injunction to prohibit the continuation of any violation of this article, and other available relief.

(b) 

Special requirements.

(1) 

Tower illumination.

Towers shall not be illuminated except as required by the Federal Aviation Administration (FAA) or other applicable federal or state agencies. In addition, lighting shall be shielded or directed so as not to project directly onto surrounding residential property.

(2) 

Radiation standards.

Wireless communication systems shall comply with current Federal Communication Commission (FCC) standards for nonionizing electromagnetic radiation (NIER). The applicant shall submit verification that the proposed site plan ensures compliance with these standards.

(3) 

Fencing for wireless communication systems.

A fence shall be required around the antenna support structure and other related equipment, unless the antenna is mounted on a building or other independent support structure. The fence shall not be less than eight (8) feet in height measured from finished grade. Access to the antenna support structure shall be through a locked gate.

(4) 

Setbacks.

Antenna support structures and unmanned equipment buildings shall meet the minimum building setback requirements for the zoning district in which they are located. Setbacks shall be measured from the base of the antenna support structure to all front, rear and side property lines. In addition all towers shall be set back from habitable structures at least to the extent of the height of the tower. The property owner shall not be required to set back from habitable structures located on the property where the tower is to be located. No antenna or antenna support structure shall be located in any required front yard setback or anywhere in the front yard between the principal building and the front setback.

(5) 

Abandonment.

In the event the use of any wireless communication system, which would include any antenna support structure, has been discontinued for a period of twelve (12) months, the antenna support structure shall be deemed to be abandoned. Determination of the date of abandonment shall be made by the building official who shall have the right to request documentation and/or affidavits from the antenna support structure owner/operator regarding the issue of usage. Upon determination of abandonment, the owner/operator of the antenna support structure shall remove the antenna support structure within ninety (90) days, of receipt of notice from the building official notifying the owner/operator of such abandonment. If such antenna support structure is not removed within said ninety (90) days, the building official may cause such antenna support structure to be removed at the owner’s expense. If there are two or more uses of an antenna support structure, then this provision shall not become effective until all users cease using the antenna support structure.

(6) 

Notice.

At least thirty (30) days prior written notice must be provided to the director of planning prior to the relocation, modification, co-location or change in backhaul providers, showing continued compliance with all laws, ordinances and regulations.

(7) 

Signs.

In no event shall any sign be placed on any facilities subject to the requirements of this ordinance except in strict compliance with all sign ordinances of the city.

(8) 

Backhaul providers.

Backhaul providers shall be identified and must have all necessary approvals to operate as such, including holding necessary franchises, permits and certificates.

(9) 

Floor area.

An unmanned equipment building shall not exceed seven hundred fifty (750) square feet of gross floor area per building.

(10) 

Height.

An unmanned equipment building shall not exceed fifteen (15) feet in overall height. An antenna support structure shall not exceed one hundred and sixty (160) feet in height, which height shall be measured from the ground level to the highest point on the structure, even if the highest point is an antenna. All antennas and antenna support structures shall comply with the height restrictions established by FAA or any other federal or state agency. There shall be no antenna and/or tower, located in a residential district that is seventy (70) feet or more in height measured from the ground level to the highest point of the structure, even if the highest point is an antenna.

(11) 

Zoning districts.

Antenna support structures shall be an allowed use in the retail (R), retail-1 (R-1), central business-1 (CB-1), central business-2 (CB-2), light commercial (LC), heavy commercial (HC), light industrial (LI), and heavy industrial (HI) districts and by specific use permit in the office (O), medical center (MC), neighborhood service (NS) districts and retail (R) districts. Antenna support structures shall also be allowed on any government owned property, however, they shall be subject to all health and safety requirements contained in this or any other ordinance. Nonconforming provisions of the city zoning ordinance shall apply.

(12) 

Existing co-location.

No new wireless communication system shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the planning director that no existing tower or structure can accommodate the applicant’s proposed antenna. Evidence submitted to demonstrate that no existing tower or structure can accommodate the applicant’s proposed antenna may consist of any of the following:

(A) No existing tower or structure is located within the geographic area required to meet applicant’s engineering requirements.

(B) Existing towers or structures are not of sufficient height to meet applicant’s engineering requirements.

(C) Existing towers or structures do not have sufficient structural strength to support applicant’s proposed antenna and related equipment and cannot be reinforced to provide sufficient structural strength.

(D) The applicant’s proposed antenna would cause electromagnetic interference with the antenna on the existing tower or structure, or the antenna on the existing tower or structure would cause interference with the applicant’s proposed antenna.

(E) The fees or costs required to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs below new tower development are presumed reasonable.

(F) Property owners or owners of an existing tower or structure are unwilling to accommodate the applicant’s needs.

(G) The applicant demonstrates that there are other limiting factors that render existing tower and structure unsuitable.

(13) 

Future co-location.

If permitted, the antenna support structure must be constructed to support a minimum of two (2) antenna arrays for two (2) separate wireless communication system providers or users. Annually, the planning director shall keep a list of known wireless communication system providers. Prior to certification of any application, all applicants for antenna support structures shall comply with the following procedures:

(14) All wireless communication system applicants shall provide notice by mail to all providers on the wireless communication system providers’ list with the following information: specifications of the proposed antenna support structures; its general location; its proposed height; and a phone number to locate the owner of the antenna support structure. A copy of the notice shall be mailed to the planning director’s office. The notices shall invite potential wireless communication system providers to apply for space on the proposed antenna support structure.

(15) The applicant shall submit a report inventorying existing antenna support structures and antenna sites within a one-mile distance from the proposed site outlining opportunities for shared use as an alternative to the proposed one. In the case of co-location, the pro-rata reimbursement to the initial applicant from the future provider shall not exceed fifty-five percent (55%) of the original cost for construction of the antenna support structure.

(16) 

City property.

In order for a person to occupy or use city property or public rights-of-way for the purpose of wireless communication, the person shall make an application, obtain a license or franchise, to be determined by the city, based on the circumstances, signed by the city manager, setting forth terms and conditions that impose reasonable requirements, including the term, provisions for payment of fees or consideration, requirements for co-location of facilities, required specifications for facilities, protection of city right-of-way and city property, applicable construction requirements, requirements regarding broadcasting frequency, insurance, indemnity, restrictions on assignment, transfer and termination and other necessary provisions to protect the public health, property and safety of the city and its citizens. The provision of city property and public right-of-way is subject to the needs of the city, and availability of space. No license or franchise granted hereunder shall be effective until the applicant the city have executed a written agreement setting forth the terms and conditions under which the license or franchise shall be granted.

(Ordinance 2019-13 adopted 4/9/19)