(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)