Otero County, NM Chapter 226 Wireless Telecommunications Facilities

[HISTORY: Adopted by the Board of County Commissioners of Otero County 10-10-2024 by Ord. No. 24-03. Amendments noted where applicable.]

STATE LAW REFERENCES

Open Meetings Act — See NMSA 1978, § 10-15-1 et seq.

§ 226-1 Purpose and intent.

A. The purpose and intent of this chapter are to protect the health, safety, and welfare of the citizens of the County by minimizing the negative impact of wireless telecommunications facilities, by establishing a fair and efficient process for review and approval of applications per federal, state, and local regulations, by encouraging the use of existing facilities, by promoting the improved appearance and functionality of any new facilities and ensuring that all new facilities are constructed using current technologies that are designed to conceal the site and to accommodate future growth.

§ 226-2 Definitions.

ABANDONMENT

Cessation of use of a wireless support structure for wireless telecommunications activity for at least the minimum period specified by this chapter.

ADMINISTRATIVE APPROVAL

Approval that the Administrator or designee is authorized to give.

ANTENNA

Communications equipment that transmits, receives or transmits and receives electromagnetic radio signals used in the provisions of wireless telecommunications services.

CARRIER ON WHEELS (COW)

A portable, self-contained wireless telecommunications facility that can be moved to a location and set up to provide wireless services on a temporary or emergency basis.

COLOCATION

Placement or installation of wireless facilities on existing structures, including electrical transmission towers, water towers, buildings, and other structures capable of supporting wireless facilities' attachment in compliance with all applicable codes and standards.

CONCEALED WIRELESS FACILITY

Any wireless facility that is blended as an architectural feature of any existing structure or any new wireless support structure designed to camouflage or hide the presence of antennas or towers so that the purpose of the facility or wireless support structure is not readily apparent to casual observation.

ELIGIBLE FACILITY REQUEST

A request for modification or colocation of an existing wireless tower that involves new transmission equipment or replacement of transmission equipment but does not include a substantial change of the existing structure.

EXISTING STRUCTURE

A wireless support structure erected before the application for an eligible facility request, colocation, or modification under this chapter capable of supporting wireless facilities' attachment. The term includes but is not limited to electrical transmission towers, buildings, and water towers. The term shall not include any utility pole.

SETBACK

The area in which a wireless support structure may be expected to fall in the event of a structural failure as defined by this chapter.

SMALL WIRELESS FACILITIES/SYSTEMS

One of several specialized systems that comprises mini-macro cells, distributed antenna systems (DAS), or Wi-Fi hot spots specifically for outdoor coverage. Individual small cell sites typically cover a small radius (less than 2,000 feet). However, they are used in conjunction with the "typical" cell sites or a group of other small cell sites, a system, to cover a broad area of dense usage requirements. These facilities' nature and character, their minimal impact, and that they are typically permitted in quantity justify permitting considerations.

TOWER

A structure, guided or freestanding, that supports one or more antenna.

WIRELESS FACILITY or WIRELESS FACILITIES

The set of equipment and network components exclusive of the underlying wireless support structure, including but not limited to antennas, accessory equipment, transmitters, receivers, base stations, power supplies, cabling, and associated equipment necessary to provide wireless telecommunications services.

§ 226-3 Applicability.

A. This chapter applies to all construction and expansion of wireless telecommunications facilities, except as provided in Subsection B, Exemptions.

B. Exemptions:

(1) Fire, police, Department of Transportation, or other public service facilities owned and operated by the County, local, state, or federal government.

(2) Any facilities expressly exempt for the jurisdiction's citing, building, and permitting authority.

(3) 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 and are primarily used for reception.

(4) Facilities exclusively for private, non-commercial radio and television reception and private citizens bands, and other similar non-commercial telecommunications.

(5) FCC-licensed amateur radio facilities require administrative approval and are exempt from all requirements of this chapter except reasonable screening, setback, placement, construction, tower height, and health and safety standards per New Mexico state law.

(6) Facilities that exclusively provide unlicensed spread spectrum technologies [such as IEEE 802.11a/b/g/n/ac/ax (Wi-Fi and Bluetooth)] where the facility does not require a new tower.

§ 226-4 Permit application process and other requirements.

A. All applicants for special use permits and conditional special use permits shall comply with the requirements outlined in this section.

B. The Board of County Commissioners of Otero County designates the Otero County Manager (or other designee made by the County Manager) as the Administrator to whom applications for a special use permits and conditional special use permits must be made. The Administrator is authorized to review, analyze, evaluate, and make decisions with respect to granting, not granting, or revoking permits.

C. The applicant shall complete the following steps to assist the Administrator in expediting the completion of the process:

(1) Optional pre-application conference. At the Administrator's discretion, applicants seeking a telecommunications permit will obtain and review this chapter and meet with the Administrator, either electronically or in person, before submitting an application. Typically called for on more complex applications (new towers, 5G, etc.), the meeting intends to review the requirements of this chapter, processes, and method of submissions with the applicant. The pre-application session may include the following:

(a) A discussion of potential best locations for the telecommunications facility, taking into consideration the County's defined priorities that meet the applicant's requirements for service. The application process may require an explanation for a selected location not using the highest priority available to the applicant. The County's priorities (listed from highest to lowest) are:

[1] On existing towers or structures without increasing their height.

[2] On existing towers or structures with a height increase.

[3] On County-owned properties.

[4] On properties zoned, or if not zoned, characterized predominantly by industrial use.

[5] On properties zoned, or if not zoned, characterized predominantly by commercial use.

[6] On properties zoned, or if not zoned, characterized predominantly by agricultural use.

[7] On properties zoned, or if not zoned, characterized predominantly by residential use.

(b) A discussion of issues will help expedite the review and permitting process;

(c) A site visit to potential best location sites, if deemed necessary by the Administrator;

(d) A determination of the type of applications to be made;

(e) A discussion of the defined information required to support the proposed location;

(f) A discussion of the specific application requirements that are needed for review and consideration by the Administrator. Requirements for the application may vary based on the specific location, type of facility selected, and the potential impact to the County and its citizens; and

(g) Any applicant desiring relief, waiver, or exemption from any requirement of this chapter may request such at the pre-application meeting. The burden of proving the need for the request lies solely with the applicant. No request shall be approved unless the applicant provides convincing evidence that the request will have no significant effect on the health, safety, and welfare of the County or its residents.

(2) Application process. The applicant shall complete the online application processes as defined by the Administrator at the outset of the process.

(a) All applications shall contain a demonstration that the telecommunications facility will be sited to be the least visually intrusive, as reasonably possible.

(b) In addition to demonstrating that the proposed modification, colocation, eligible facility, or new tower or telecommunications facility blends into the character and environment of the proposed location, all applications shall contain the following information and shall be submitted through the online system designated by the County:

[1] Registration of an agent, including the name, address, and telephone numbers of the designated agent and his/her company;

[2] Authorization of the agent as an official and representative of the applicant; then pending approval;

[3] Complete a project description which shall include a general description of the applicant's project and its proposed location;

[4] Contact information including the name, address, and telephone number of the person or entity who will be responsible for the applicant's construction and management of the project;

[5] Contact information for the support structure project manager for the proposed location and contact information for any manager of the real property for the proposed site (e.g., building manager, tower owner);

[6] Define the type of project (colocation, modification, new tower, etc.), and the specific site address and description of the project.

[7] Completing a tower/wireless facility registration or, if a tower/wireless facility registration already exists for the proposed location, completing a tower/wireless facility registration update, if needed. The tower/wireless facility registration shall include:

[a] Name address, and telephone contact number for the tower owner;

[b] Name, address, and telephone contact number for the real property owner, if different than the tower owner;

[c] Current number and identification of co-locators on the tower/facility;

[d] Site name, number, and physical address;

[e] Documentation and specifics regarding the agreement terms (other than financial) demonstrating the applicant's right, title, or interest in the real property where the facility is to be sited, including the name, address, and phone number of the property owner;

[f] Description of the tower/facility, including but not limited to height, setback, type of structure, and the number of existing co-locators;

[g] Verifiable copy of the current tower inspection report using ANSI/TIA-222-G (or newer), including the expiration date, the company performing the inspection, and the ANSI standard used;

[h] Contact information including name, address, and telephone number for the person or entity performing the most recent or current tower inspection;

[i] A copy of the soils study report including but not limited to the date completed, person or entity name performing the soils study, project number, identification of the professional engineer providing certification of the study with the New Mexico registration or license number of the professional engineer; and

[j] Any other information deemed necessary or required by the County.

(c) Applications for a modification, colocation, or eligible facility to an existing structure, without an increase of height or size, shall include:

[1] All items listed in Subsection C(2)(b) above which do not exist or are no longer current or have not recently been updated;

[2] Project name for the existing colocation site or project;

[3] Names, addresses, and phone numbers of the person or entity preparing the application;

[4] A copy of the FCC license for the carrier and a signed statement from the owner or operator of the facility attesting that the facility complies with current FCC regulations concerning radio frequency (RF), including a certified non-ionizing electromagnetic radiation (NIER) report demonstrating full compliance. In cases where an installation of RF equipment complies with the FCC criteria for exemption for NIER reporting, an RF compliance letter prepared and signed by a New Mexico State licensed professional engineer (PE) shall be required. The RF compliance letter shall include the FCC ID of the RF equipment and the type of exemption, as allowed by FCC OET Bulletin 65 and FCC 19-126;

[5] Certified site plans using ANSI/TIA-222-G (or newer), including the professional engineer's name and New Mexico registration/license number, physical description of the current configuration of the site, physical description of the proposed design of the site, contacts, setbacks, grounding plans, security, parking, turnarounds, description of the components including the sizes of the components to determine that the proposal is the least visibly intrusive design;

[6] Certified structural analysis using ANSI/TIA-222-G (or newer), including identification of the professional engineer's name and registration/license number providing the analysis, a copy of all calculations, reference documents and results, percent loading, that include all components, structures, and foundations per rigorous standards. Loading may not exceed 100%;

[7] Performance bond including amounts as set by the County, to remain in place as long as the site remains active and in place and until the tower or facilities are removed as required by this chapter;

[8] Copy of the certificate of insurance demonstrating that the requirements of this chapter are met;

[9] Identification of the general contractor(s) with proof of state licensure as required by the State of New Mexico; and

[10] Projected start and completion dates of construction.

(d) Applications to install a new tower or telecommunications facility will include the following:

[1] All information listed in Subsection C(2)(b) and (c) above;

[2] The number, type, and design of the tower(s) and antenna(s) proposed;

[3] All reports, data, calculation, and design criteria which demonstrate the tower's capability to accommodate multiple users;

[4] Demonstration of the applicant's meaningful efforts to secure shared use of existing towers or other structures within the defined parameter of one mile including but not limited to copies of written requests and responses for shared use;

[5] The new wireless facility justification includes capacity information, the gap in coverage information, or other information demonstrating rationale for the application;

[6] The applicant will obtain a list of property owners and nearby homeowner associations, to include their addresses, within 2,000 feet of the proposed site's property lines. This list of owners and addresses must be submitted early in the application process so specific notice of any needed or required hearing can be given to them at least seven days prior to any needed or required hearing.

[7] Public hearing and notification requirements.

[a] In order that the County may notify nearby landowners, prior to the approval of any application for a telecommunications permit for a new tower, a public hearing shall be held by the County, notice of which shall be published in accordance with the New Mexico Open Meetings Act,[1] and the annual County of Otero Notice of Meetings Resolution, which sets the notice and type of publication for meetings, prior to the scheduled date of the public hearing.

[1] Editor's Note: See NMSA 1978, § 10-15-1 et seq.

[b] The County shall schedule the public hearing referred to in Subsection C(2)(d)[7][a] of this section once it finds the application is complete; the County, at any stage prior to issuing a telecommunications permit, may require such additional information as it deems necessary.

[c] All public hearings pursuant to this chapter are to be held before the Board of County Commissioners of the County of Otero unless specifically excepted by this chapter; and, for any appeal purposes, the decision of the Board of County Commissioners of the County of Otero is the final decision of the County.

(e) Applications to install small wireless facilities/systems will include the following (Note: A special meeting with the agents/engineers/representatives of the applicant may be needed to ensure that systems' documentation requirements are fully understood.). The County's defined small wireless facilities design requirements are made available to applicants by the Administrator in a resolution approved by the Board of County Commissioners each year.

[1] All information listed in Subsection C(2)(b), (c) and (d) above;

[2] The entire system and any associated groups of small wireless facilities, within limits defined by the online application, may be included in a single application process.

[3] Each component of the system must be represented in the online application process.

[4] Each system's unique components must be shown and include all the relevant data to complete the process. However, all like (virtually identical) nodes may be demonstrated once but must consist of all the physical locations for each node.

(3) Review of application. The Administrator and the consultant(s) shall review the application within 30 days of submission to determine if the application is complete and meets the requirements of this chapter. The County and the applicant can, by a mutual written agreement, extend the period in which the review for completeness is conducted.

(a) Incomplete applications will not be accepted for further review and processing.

(b) Applications submitted without the payment of costs and fees as required by the County are incomplete and shall not be accepted for further review and processing.

(c) If the application is not complete, the County shall notify the applicant in writing or via email of the provisions of the code, ordinance, application process, or publicly stated procedures that were not completed and inform the applicant that the application may be resubmitted.

(d) If a resubmitted application is not complete, within 10 days of the resubmission of the application, the County shall notify the applicant in writing or via email of whether the resubmission is complete and that the application may be resubmitted, and inform the applicant of the code, ordinance, application process or publicly stated procedures which remain incomplete.

(e) If the application is complete and based on the review of the application, the Administrator shall, within the periods allowed under federal, state, and local law:

[1] Approve, approve with conditions or deny a special use or conditional special use permit;

[2] Issue a written decision within 10 days of deciding on the application, which is supported by evidence contained in the online information and record submitted by the applicant;

[3] Place the burden of proof for the granting of the permit upon the applicant;

[4] Refer the application to the Board of County Commissioners of the County for review and consideration; once a variance or waiver is obtained or granted, the Administrator may request the applicant update the application if the Administrator deems it necessary to complete the application process.

(4) Public hearing and appeal of Administrator's decision. The decision of the Administrator can be appealed by the applicant or by the County by submitting written notification to the Administrator. The notice of appeal's content shall contain the applicant's name and a description of the wireless telecommunications facilities. The applicant must submit the notice of appeal within 30 calendar days after the decision.

(a) The hearing or appeal will be heard and considered at the next available meeting of the Board of Commissioners.

(b) For any application or appeal which is to be presented to the Board of County Commissioners of the County or Otero, the County Administrator must have all documentation well prior to the time of the meeting such that all proper notices can be made timely.

(5) Construction of the proposed facility. If an application is approved or approved with conditions, a special use or conditional special use permit will be issued to the applicant:

(a) The applicant must comply with all requirements of the special use or conditional special use permit;

(b) The applicant will be required to meet and satisfy all building inspection processes generally needed for a construction project;

(c) The special use or conditional special use permit shall not be assigned, transferred, or conveyed without written notification to and approval from the County within six months;

(d) The special use or conditional special use permit may be revoked, canceled, or terminated for violation of the permit's conditions and provisions or for a material breach of this chapter as permitted by local ordinance, state, and federal law;

(e) The County will provide the permit holder written notice of an intent to revoke, cancel or terminate the permit with identification of the violation(s) and give the holder of the special use or conditional special use permit an opportunity for a hearing before the Board of County Commissioners of the County of Otero before revocation, cancellation or termination.

(6) Completion of construction. When the applicant completes the project's construction, the applicant shall notify the Administrator of the need for a final inspection. The County or the consultant for the County will verify that the site is constructed in accordance with the application, meets all the requirements of this chapter, and that the applicant has paid all monies due to the County. If all requirements of this chapter and the special use or conditional special use permit have been met, the County will issue a certificate of compliance to the applicant that allows operational use of the site.

§ 226-5 General requirements of wireless telecommunications facilities.

A. Lighting. Telecommunications facilities shall not be lighted or marked unless required by law. If lighting is needed, the applicant shall provide a detailed plan for sufficient lighting as inoffensive as permissible under state and federal regulations. The applicant shall also comply with any local or state "Night Skies" requirements.

B. Materials. Towers shall be galvanized or painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings and shall be maintained for the tower's life.

C. Setback requirements. Stand-alone wireless telecommunications facilities shall be no closer to any property line than the total height of the completed unit, plus 10%. The structure should not be capable of falling onto an adjacent property or building should the facility collapse for any reason. The height is measured from the pre-existing grade to the highest point of the structure.

D. Security of wireless telecommunications facilities. All wireless telecommunications facilities and antennas shall be located, fenced, or otherwise secured in a manner that prevents unauthorized access.

E. Signage. Telecommunications facilities shall contain a sign to provide adequate notification to persons in the immediate area of the presence of RF radiation or to control exposure to RF radiation within a given area. A sign of the same size shall also be installed to contain the site identification number and emergency phone number(s). The sign shall be on the fence, equipment shelter, or cabinet and be visible from an access point outside the secured site area. On tower sites, an FCC registration sign shall also be present. The signs shall not be lighted unless required by law, rule, or regulation. No other signage, including advertising, shall be permitted.

F. Update of signage. The applicant or future owner of the site shall update the site identification number and emergency phone numbers of the wireless telecommunications facility as displayed on the required sign within one month of any sale, assignment, or transfer.

G. Temporary communications on wheels (COW). In the event of an emergency or natural disaster which renders other forms of communication nonviable, thus necessitating a COW, the County and the telecommunications provider shall agree to special terms and conditions as needed by the County and the telecommunications provider:

(1) If a COW becomes inoperable due to force majeure or Acts of God, it must be removed from the site within 30 days of becoming unusable.

(2) Regarding a special event where a COW is used, it must be removed from the site within 48 hours of the conclusion of the event.

§ 226-6 Application fees and other requirements.

A. At the time a person submits an application for a special use or conditional special use permit for a new tower or requires an increase in height to an existing tower or for colocating on an existing tower or other suitable structure, where no increase will occur in the height of the tower or other appropriate structure, such applicant shall pay a non-refundable application fee to the County.

B. In addition to the application fee, the County may retain the services of an expert consultant in connection with the processing and/or review of the application and the permitting and final inspection of the site. The applicant shall be responsible for reimbursing the County for all costs and amounts incurred by the County for such expert consultation.

C. The applicant shall pay for the projected consultation costs to the County at the time of the application.

D. An application is incomplete until the application fee is paid and the applicant has paid the costs for the expert consultant.

E. The consultant shall provide the County with an invoice for the costs for the consultation. The amount invoiced by the consultant will be assessed to the applicant as the application processing and review fee.

F. The application fees and costs are defined by the resolution associated with this chapter, adopted, amended or replaced from time to time as the County Commission determines.

G. The applicant, the County, and the consultant will comply with all state and local requirements concerning payment of the consultant's fees.

H. Bond/security.

(1) The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall, at their cost and expense, be jointly required to execute and file with the County a bond, or other form of security acceptable to the County, in at least the following amounts:

(a) Colocation or modification of an existing tower: $25,000.

(b) Small wireless facility: $15,000.

(c) New tower or other structure: $75,000.

(2) Such sureties as are deemed sufficient by the County to assure the faithful performance of the terms and conditions of this chapter and conditions of any telecommunications permit or conditional use permit issued according 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 any conditional use permit has been fulfilled, and until any necessary site restoration is completed to restore the site to a condition comparable to that which existed before the issuance of the original special use or conditional special use permit.

I. A holder of a special use or conditional special use permit shall secure and at all times maintain public liability insurance for personal injuries, death, and property damage and umbrella insurance coverage for the duration of the permit in amounts as set forth below:

(1) Commercial general liability covering personal injuries, death, and property damage: $1,000,000 per occurrence/$2,000,000 aggregate;

(2) Automobile coverage: $1,000,000 per occurrence/$2,000,000 aggregate;

(3) Workers' compensation and disability: amount required by New Mexico state law;

(4) The commercial general liability insurance policy shall specifically include the County of Otero, and its officers, employees, agents, and consultants as additional named insureds;

(5) Insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the state and with a Best rating of at least A;

(6) Insurance policies shall contain an endorsement obligating the insurance company to furnish the County with at least 30 days' prior written notice of the cancellation of the insurance;

(7) Renewal or replacement policies or certificates shall be delivered to the County at least 15 days before the expiration of the insurance that such policies are to renew or replace;

(8) The permit holder shall provide the County a copy of the policies/certificates before construction and upon written request by the County.

§ 226-7 Removal of tower/antenna; revocation; default.

A. Cessation of operations/abandonment/disrepair. The County may require the removal of a telecommunications facility(ies) when: such items with a permit have been abandoned or operations of telecommunications facility have ceased for a period exceeding 90 consecutive days or a total of 180 calendar days. All items and equipment subject to the telecommunications permit shall be removed within 90 days of abandonment or the cessation of operations. If equipment or items subject to the telecommunications permit fall into such disrepair that a health or safety hazard is created as determined according to a review by a state licensed engineer and such items are not repaired within 60 days, or longer as necessary upon the permit holder demonstrating that despite good faith efforts, such disrepair could not be responsibly cured within the provided time, the County may require the removal of the item of the telecommunications facility.

B. Modification, location, or construction without permit. If any equipment or item has been located, constructed, or modified without a permit, or in a manner inconsistent with the approved permit requirements, and the facilities have been located, constructed, or modified without first obtaining, or in a way not authorized by, the required permit, or any other necessary authorization, the County may require the removal of the item, equipment or the telecommunications facility.

C. Lack of insurance. If a permit holder has failed to comply with the liability insurance requirements required by The County, The County may require the removal of the item, equipment or the telecommunications facility.

D. Notification of violation. If telecommunications facilities are repaired, rebuilt, placed, moved, relocated, modified, or maintained in a way not in compliance with this chapter or the telecommunications permit, the County shall notify the permit holder in writing of such violation. If the County makes such a determination that removal of an item, equipment or telecommunications facility is required, then the County shall notify the permit holder within 48 hours that said items are to be removed. The County may approve an interim temporary use agreement/permit, such as to enable the removal and/or sale of the item.

E. Failure to cure. After receiving notice of a violation, the permit holder shall have 90 calendar days to cure or remove the violation. The County shall extend such cure period as necessary upon the permit holder demonstrating that despite good faith efforts, such default cannot be reasonably cured.

F. Failure to cure (removal of an item, equipment, or telecommunications facility is not required). For all violations other than a violation which requires removal of an item, equipment, or telecommunications facility, a permit holder has 30 days to cure such violation(s) after notice has been mailed or delivered to the permit holder's address of record. The County may extend the cure period upon demonstration that the permit holder has made good faith efforts to cure and that despite its good faith efforts, such default cannot be reasonably cured within the provided time.

G. Failure to cure (removal of the item, equipment, or telecommunications facility is required). If the permit holder cannot cure the violation that involves removal of an item, equipment, or telecommunications facility within the cure period, the permit holder shall dismantle and remove such item, and any associated structures, from the site and restore the site to as close to its original condition as possible, reasonable wear and tear excepted, within 90 days of the expiration of the cure period.

H. Removal by the County. If the item, equipment or telecommunications facility is not removed or substantial progress has not been made to remove it within 90 days of the permit holder receiving notice, then the County may order officials or representatives of the County to remove the item at the sole expense of the owner or permit holder.

I. Sale upon abandonment. If the County removes or causes to be removed, the item, and the owner does not claim and remove it from the site to a lawful location within 120 days, then the County may take steps to declare the item abandoned, and sell it and its components.

J. Temporary use permit/agreement. Notwithstanding anything in this section to the contrary, the County may approve an interim use permit/agreement for the item for no more than 90 days, during which time a suitable plan for removal, conversion or re-location of the affected item shall be developed by the holder of the permit, subject to the approval of the County, and an agreement to such plan shall be executed the holder of the permit and the County. Suppose such a plan is not developed, approved, and completed within the ninety-day time period. In that case, the County may take possession of and dispose of the affected item in the manner provided in this section.

K. Emergency removal. If the County determines the item is hazardous, creates an emergency situation, or adversely affects public safety, the County may remove or cause to be removed the item after three days' written notice to the permit holder or the holder of the certificate of compliance.

L. Failure to cure. A permit holder still in violation after the expiration of the cure period may be considered in default, subject to fines as outlined in this chapter, and the permit is subject to revocation.

M. Fines. A permit holder who violates this chapter may be fined up to $500 for each violation, and each day that a violation exists shall be deemed to be a separate violation.