Ashland City Zoning Code

CELLULAR ANTENNA

TOWER AND SMALL CELL TOWER REGULATIONS

§ 157.295 PURPOSE.

The purpose of these regulations are: to provide for the safest and most efficient integration of cellular antenna towers and small cell towers for cellular telecommunications services or personal communications services within the community; to provide for such facilities in coordination with the recommendations of the comprehensive plan; and to allow for such facilities with the intention of furthering the public health, safety and general welfare.

(Prior Code, § 157.280) (Ord. 71, 2021, passed 6-10-2021)

§ 157.296 GENERAL.

Cellular antenna towers and small cell system towers for cellular telecommunications services or personal communications services may be allowed in any zoning district after Planning Commission or staff review in accordance with the following procedures to ascertain agreement with the adopted comprehensive plan and the regulations contained within the zoning ordinance.

(Prior Code, § 157.281) (Ord. 71, 2021, passed 6-10-2021)

§ 157.297 APPLICABILITY.

These regulations apply to every utility or company that is engaged in the business of providing the required infrastructure to a utility that proposes to construct a cellular antenna, small wireless facility or small cell tower for cellular telecommunications services or personal communications services.

(Prior Code, § 157.282) (Ord. 71, 2021, passed 6-10-2021)

§ 157.298 DEFINITIONS.

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ANTENNA OR RELATED EQUIPMENT. Any transmitting, receiving, or other equipment used to support cellular telecommunications service or personal communications service. This definition does not include towers.

APPLICANT. A person or entity who is authorized by the provisions of these regulations to file an application for approval under these regulations.

APPLICATION. The completed form or forms and all accompanying documents, exhibits, and fees required of an applicant by staff or the Planning Commission as part of a submission for review.

CELLULAR ANTENNA TOWER. A tower constructed for, or an existing facility that has been adapted for, the location of transmission or related equipment to be used in the provision of cellular telecommunications services or personal communications services.

CELLULAR COMMUNICATIONS SERVICE. A retail telecommunications service that uses radio signals transmitted through cell sites and mobile switching stations.

CO-LOCATION. Locating two or more transmission antennas or related equipment on the same cellular antenna tower.

NON-TOWER WIRELESS COMMUNICATIONS FACILITIES. Wireless communications facilities other than tower-based that are located on buildings, utility poles as defined by this section, and other existing structures.

PERSONAL COMMUNICATIONS SERVICES. Commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services as defined in 47 U.S.C. § 332(c).

PLANNING COMMISSION. The City of Ashland Planning Commission.

RIGHT-OF-WAY. The surface of and space above and below any real property in the city in which the federal government, Commonwealth, or city has a regulatory interest, or interest as a trustee for the public, as such interests now or hereafter exist, including, but not limited to, all streets, highways, avenues, roads, alleys, sidewalks, tunnels, bridges, or any other public place, area, or property under the control of the federal government, Commonwealth or city.

SMALL CELL TOWER. A pole originally installed for the primary purpose of supporting wireless telecommunications equipment.

SMALL WIRELESS FACILITIES. Facilities that meet each of the following conditions:

(1) The facilities:

(a) Are mounted on structures 50 feet or less in height including their antennas;

(b) Are mounted on structures no more than 10% taller than other adjacent structures; or

(c) Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10%, whichever is greater.

(2) Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three cubic feet in volume;

(3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; and

(4) The facilities do not result in human exposure to radio frequency in excess of the applicable safety standards specified in 47 C.F.R. part 1.1307(b).

STAFF. Those employees of the City of Ashland assigned to support and/or administer the powers and duties proscribed to the Planning Commission.

STEALTH TECHNOLOGY. Design techniques used to blend objects into the surrounding environment and to minimize visual impact. These design techniques may be applied to wireless communications towers, antennas and other facilities, which blend the proposed facility into the existing structure or visual backdrop in such a manner as to render it less visible to the casual observer. Such methods include, but are not limited to, facilities constructed to resemble light poles, flag poles or other streetscape amenities.

UTILITY POLE. A structure originally constructed for the support of electrical, telephone, cable television or other video services, street lighting, or other similar cables and located within the right-of-way or utility easements. A pole originally installed for the primary purpose of supporting wireless telecommunications equipment, regardless of the timeframe between pole installation and connection/implementation of transmission equipment, is considered a small cell tower and is not a UTILITY POLE.

(Prior Code, § 157.283) (Ord. 71, 2021, passed 6-10-2021)

§ 157.299 REGULATIONS FOR CELLULAR ANTENNA TOWERS.

(A) Application requirements. Applications for the construction of cellular antenna towers for cellular telecommunications services or personal communications services shall include the following:

(1) The full name and address of the applicant;

(2) The applicant’s articles of incorporation, if applicable;

(3) A geotechnical investigation report, signed and sealed by a professional engineer registered in the state, that includes boring logs and foundation design recommendations;

(4) A written report, prepared by a professional engineer or land surveyor, of findings as to the proximity of the proposed site to flood hazard areas;

(5) Clear directions from the City Building located at 1700 Greenup Avenue to the proposed site, including highway numbers and street names, if applicable, with the telephone number of the person who prepared the directions;

(6) The lease or sale agreement for the property on which the tower is proposed to be located, except that, if the agreement has been filed in abbreviated form with the Boyd County Clerk, an applicant may file a copy of the agreement as recorded by the County Clerk and, if applicable, the portion of the agreement that specifies, in the case of abandonment, a method that the utility will follow in dismantling and removing the proposed cellular antenna tower including a timetable for removal;

(7) The identity and qualifications of each person directly responsible for the design and construction of the proposed tower;

(8) A (site) development plan or survey, signed and sealed by a professional engineer registered in the state, that shows the proposed location of the tower and all easements and existing structures within 500 feet of the proposed site on the property on which the tower will be located, and all easements and existing structures within 200 feet of the access drive, including the intersection with the public street system;

(9) A vertical profile sketch of the tower, signed and sealed by a professional engineer registered in Kentucky, indicating the height of the tower and the placement of all antennas;

(10) The tower and foundation design plans and a description of the standard according to which the tower was designed, signed and sealed by a professional engineer registered in the state;

(11) A map, drawn to scale no less than one inch equals 200 feet, that identifies every structure and every owner of real estate within 500 feet of the proposed tower;

(12) A statement that every person who, according to the records of the property valuation administrator, owns property within 500 feet of the proposed tower or property contiguous to the site upon which the tower is proposed to be constructed, has been:

(a) Notified by certified mail, return receipt requested, of the proposed construction which notice shall include a map of the location of the proposed construction;

(b) Given the telephone number and address of the local Planning Commission; and

(13) A list of the property owners who received the notice, together with copies of the certified letters sent to the listed property owners;

(14) A statement that the chief executive officer of the appropriate and affected local government and legislative bodies (City of Ashland and Boyd County Fiscal Court) have been notified, in writing of the proposed construction;

(15) A copy of the notice sent to the chief executive officer of the appropriate and affected local government and the legislative body (see division (A)(14) of this section);

(16) A statement that:

(a) A written notice, of durable material at least two feet by four feet in size, stating that “Applicant proposes to construct a telecommunications tower on this site” and including the addresses and telephone numbers of the applicant and the Planning Commission, has been posted in a visible location on the proposed site; and

(b) A written notice, at least two feet by four feet in size, stating that “Applicant proposes to construct a telecommunications tower on this site” and including the addresses and telephone numbers of the applicant and the Planning Commission, has been posted on the public road nearest the site.

(17) A statement that notice of the location of the proposed construction has been published in a newspaper of general circulation in the county in which the construction is proposed;

(18) A brief description of the character of the general area in which the tower is proposed to be constructed, which includes the existing land use and zoning for the specific property involved;

(19) A statement that the applicant has considered the likely effects of the installation on nearby land uses and values and has concluded that there is no more suitable location reasonably available from which adequate service to the area can be provided, and that there is no reasonably available opportunity to locate its antennas and related facilities on an existing structure (i.e., co-locate), including documentation of attempts to locate its antennas and related facilities on an existing structure, if any, with supporting radio frequency analysis, where applicable, and a statement indicating that the applicant attempted to locate its antennas and related facilities on a tower designed to host multiple wireless service providers’ facilities or on an existing structure, such as a telecommunications tower or other suitable structure capable of supporting the applicant’s antennas and related facilities;

(20) A map of the area in which the tower is proposed to be located, that is drawn to scale, and that clearly depicts the necessary search area within which an antenna tower should, pursuant to radio frequency requirements, be located; and

(21) A grid map that shows the location of all existing cellular antenna towers and that indicates the general position of proposed construction sites for new cellular antenna towers within an area that includes:

(a) All of the planning unit’s jurisdiction; and

(b) A one-half mile area outside of the boundaries of the planning unit’s jurisdiction, if that area contains either existing or proposed construction sites for cellular antenna towers.

(B) Application fee. An applicant for the construction of cellular antenna towers for cellular telecommunications services or personal communications services shall pay an application fee in the amount of $2,500 upon submission of an application. This fee includes review of the Planning Commission based upon the required development plan and review and issuance of a building permit.

(1) After an applicant’s submission of the application to construct a cellular antenna tower, the Planning Commission shall:

(a) In a public hearing, review the application in light of its agreement with the comprehensive plan and adopted zoning regulations;

(b) Make its final decision to approve or disapprove the application; and

(c) Advise the applicant in writing of its final decision within 60 days commencing from the date that the application is submitted to the Planning Commission or within a date certain specified in a written agreement between the Planning Commission and the applicant. If the Planning Commission fails to issue a final decision within 60 days and if there is no written agreement between the Planning Commission and the applicant to a specific date for the Planning Commission to issue a decision, the application shall be deemed approved.

(2) If the Planning Commission disapproves of the proposed construction, it shall state the reasons for disapproval in its written decision any may make suggestions which, in its opinion, better accomplish the objectives of the comprehensive plan and the adopted zoning regulations. No permit for construction of a cellular or personal communications services antenna tower shall be issued until the Planning Commission approves the application or the 60-day time period has expired, whichever occurs first.

(3) The Planning Commission may require the applicant to make a reasonable attempt to co-locate additional transmitting or related equipment. The Planning Commission may provide the location of existing cellular antenna towers on which the Commission deems the applicant can successfully co-locate its transmitting and related equipment. If the Planning Commission requires the applicant to attempt co-location, the applicant shall provide the local planning unit with a statement indicating that the application has:

(a) Successfully attempted to co-locate on towers designed to host multiple wireless service provider’s facilities or existing structures such as a telecommunications owner or another suitable structure capable of supporting the applicant’s facilities, and that identifies the location of the tower or suitable structure on which the applicant will co-locate its transmission and related facilities; or

(b) Unsuccessfully attempted to co-locate on towers designed to host multiple wireless service provider’s facilities or existing structures such as a telecommunications tower or another suitable structure capable of supporting the applicant’s facilities and that:

1. Identifies the location of the towers or other structures on which the applicant attempted to co-locate; and

2. Lists the reasons and document why the co-location was unsuccessful in each instance.

(4) The Planning Commission may deny an application to construct a cellular antenna based on an applicant’s unwillingness to attempt to co-locate additional transmitting or related equipment on any new or existing towers or other structures.

(5) In the event of co-location, a utility shall be considered the primary user of the tower, if the utility is the owner of the antenna tower and if no other agreement exists that prescribes an alternate arrangement between the parties for use of the tower. Any other entity that co-locates transmission or related facilities on a cellular antenna tower shall do so in a manner that does not impose additional costs or operating restrictions on the primary user.

(6) Upon the approval of an application for the construction of a cellular antenna tower by the Planning Commission, the applicant shall notify the Public Service Commission within ten working days of the approval. The notice to the Public Service Commission shall include a map showing the location of the construction site. If an applicant fails to file notice of an approved application with the Public Service Commission, the applicant shall be prohibited from beginning construction on the cellular antenna tower until such notice has been made.

(7) A party aggrieved by a final action of the Planning Commission under the provisions of KRS 100.985 to 100.987 may bring an action for review in any court of competent jurisdiction.

(Prior Code, § 157.284) (Ord. 71, 2021, passed 6-10-2021)

§ 157.300 REGULATIONS FOR SMALL CELL TOWERS AND FACILITIES.

(A) Application requirement. Applications for the construction or installation of small wireless facilities and/or small cell towers shall include the following:

(1) The applicant’s name, address, telephone number, e-mail addresses;

(2) The names, addresses, telephone numbers and e-mail addresses of all duly authorized representatives and consultants, if any, acting on behalf of the applicant with respect to the filing of the application;

(3) The applicant shall provide a map of the propose site(s) and photographs of the structure if the installation is a proposed co-location. The applicant’s map shall show all land uses within 800 feet of the proposed small cell facility or tower;

(4) The applicant shall provide a photo simulation showing the proposed small cell facility and any related equipment;

(5) The applicant shall furnish site plan, plans, and elevations drawn to scale that identify the proposed small cell facility and all structures on which facilities are proposed to be located;

(6) For new small cell towers, a site development plan, signed and sealed by a professional engineer registered in Kentucky, showing the proposed location of the new small cell tower(s) and existing structures within 500 feet of the proposed new small cell tower(s); and

(7) For new small cell towers, a vertical profile drawing of the proposed new small cell tower(s), signed and sealed by a professional engineer registered in Kentucky, indicating the height of the proposed new small cell tower(s) and the placement of all antennas and equipment enclosures associated with the new small cell tower(s).

(B) Application fee.

(1) The fee shall not exceed $500 for an application covering up to five small wireless facilities, with an additional $100 for each additional small wireless facility beyond five.

(2) The application fee for the installation, modification, or replacement of a new pole (i.e., not a co-location with other non-small cell facilities) intended to support one or more small wireless facilities shall not exceed $1,000 per pole.

(3) An applicant authorized to place small wireless facilities and any related poles in the right-of-way shall pay to the city compensation for use of the rights-of-way an aggregate annual rate not to exceed $270 per small wireless facility. This rate, together with the application fee(s), shall be the total compensation that the applicant is required to pay the city for the deployment of each small wireless facility.

(C) Processing of application. Staff shall review an application subject to this subchapter considering its conformity with applicable provisions of this subchapter.

(1) For an initial application, staff shall notify the applicant within ten calendar days from the submission of the application if the application is materially incomplete. In the written notice, staff must clearly and specifically identify all of the missing documents or information. No further review of the application will take place until the application is complete.

(2) Staff shall review and take final action on applications for non-tower wireless communication facilities within 60 calendar days of a completed application. Staff shall either approve, approve with conditions, or deny the application. If staff does not make a final decision within the required 60 calendar days, the application shall be deemed to be approved as submitted.

(3) Planning Commission shall review and take final action on applications for new small cell towers within 90 calendar days of a completed application. Planning Commission shall either approve, approve with conditions or deny the application. If the Planning Commission does not make a final decision within the required 90 calendar days, the application shall be deemed to be approved as submitted.

(4) The applicant must be advised in writing of the final decision of either staff or the Planning Commission. If the final decision is to deny the application, the final decision document shall state the basis for a denial, including specific code provisions on which the denial was based, and send the documentation to the applicant on or before the day the application is denied.

(Prior Code, § 157.285) (Ord. 71, 2021, passed 6-10-2021)

§ 157.301 SMALL CELL WIRELESS FACILITY AND SMALL CELL TOWER LOCATION AND DESIGN REGULATIONS.

A new small wireless facility is subject to design review and approval by the Planning Commission, either by staff for small wireless facilities on existing structures or after a public hearing, by the Planning Commission Board for new small cell towers. The design criteria required for the new small wireless facility is determined by the type of location or zoning district in which the facility is to be located. The design review and approval process, including any public hearing, shall be compliant with state and federal law.

(A) Non-tower wireless communications facilities locations and small wireless facilities on existing utility poles or small cell towers. Administrative review by staff is required for non-tower wireless communications facilities and small wireless facilities on existing utility poles or small cell towers. A utility planning to erect said non-tower wireless communications facilities and small wireless facilities on existing utility poles or small cell towers shall file an application in accordance with § 157.300(A).

(B) New small wireless facilities and small cell location in all zoning districts. The regulations in this division (B) apply to all new small wireless facilities and small cell towers.

(1) Except when deployed in response to temporary service outages; as a result of emergencies; or at the request of first responders, temporary, mobile or wheeled cellular antenna towers or small cell towers shall not be permitted.

(2) New small cell towers shall not exceed the greater of the maximum building height for the zoning district (or adjacent zoning district if in right-of-way) within which they are located or 35 feet. A height that is in excess of what is permitted within the zoning district may be approved by staff if it integrates stealth technology that better meets the objectives of these regulations.

(3) If technologically possible, new small cell towers shall be designed and constructed to accommodate a minimum of two service providers.

(4) New small cell towers may be located on public or private nonresidential land or within a public right-of-way provided it does not interfere with other utilities, functionality of sidewalks, visibility or other matters of public safety.

(5) New small cell towers shall not be illuminated, except in accord with state or federal regulations, or unless illumination is integral to the stealth technology, such as a design intended to look like a street light pole.

(6) New small cell towers shall not include advertisements and may only display information required by a federal, state or local agency. Such display shall not exceed one square foot in area, unless required by state or federal regulations, or unless a larger display is integral to the stealth technology. Such display shall not exceed the width of the pole, unless required by state or federal regulations or a wider sign is integral to the stealth technology such as a design which integrates a decorative banner.

(7) If a new small cell tower is located in an area with primarily underground utilities, or where no adjacent overhead utility lines exist, it shall not utilize overhead utility lines.

(C) New small wireless facilities and small cell towers locations in residential zones. The regulations in this division (C) apply to small cell systems and small cell towers to be located within, or immediately adjacent to, residential zoning districts as defined in this chapter.

(1) Facilities in residential areas are strongly encouraged to be non-tower wireless communication facilities, which are eligible for staff approval from these regulations per division (A) of this section.

(2) New small cell towers and small wireless facilities shall be camouflaged by stealth technology. Examples of appropriate stealth technology for residential areas includes, at a minimum, towers with all cables, wires, transmission equipment, electric meters, power equipment and the like installed inside the small cell tower to the extent technologically feasible. Other types of stealth technology or other methods which will reduce the visual impact may be approved by staff.

(3) All poles and antennas shall be uniform grey or black in color, unless another color is integral to the stealth technology as approved by staff or the applicant shows that grey and black are not technologically feasible.

(4) The use of cooling fans is discouraged. When needed, fans with lower noise profiles must be used.

(5) New small cell towers should avoid areas without overhead utilities. If a small cell tower is located in an area with primarily underground utilities it must adhere to stealth technology that incorporates the telecommunications equipment into a streetscape amenity such as a decorative lamp post, streetlight or other approved design. In areas with overhead utilities, cylindrical antennas or antennas house within cylindrical canisters or shrouds are required.

(6) In residential areas, a small cell tower shall not be located closer than the height of the proposed tower to an existing or proposed residential structure, or no closer than 30 feet, whichever is greater.

(7) Efforts should be made to locate new small cell towers in the yard location where other overhead utilities are located, in the event that co-location has been demonstrated to be infeasible.

(8) New small cell towers within residential areas should be located to avoid obstructing the view of building facades by placing the tower at a corner, intersection or along a lot line.

(9) When technologically feasible new small cell tower shall not be located within 500 feet of an existing small cell tower. Multiple carriers are permitted and encouraged to locate on one small cell tower, where technologically feasible.

(10) Reasonable efforts shall be made to locate new small cell towers in the order of hierarchy below, based on the following functional roadway classification from the most to least preferred:

(a) Interstate;

(b) Arterial;

(d) Local.

(D) New small wireless system and small cell tower locations in nonresidential zones. The regulations in this division apply to towers to be located within nonresidential zoning districts.

(1) In instances where a facility is proposed to be constructed in the right-of-way within 100 feet of a residential zone or use, even if the antenna’s physical location is within a nonresidential zone, regulations in division (C) of this section, shall be followed.

(2) Antennas in commercial, institutional or park areas are encouraged to be installed as non-tower wireless communication facilities, which are eligible for staff approval per division (A) of this section.

(3) Reasonable effort shall be given to locate new equipment based upon the following hierarchy of zones and land uses from the most to least preferred:

(a) Co-locate on an existing structure whenever possible;

(b) Institutional;

(d) Commercial; or

(e) Public parks.

(4) Equipment enclosures, including electric meters, should be nearly the same width as the pole or as small as possible.

(5) Shrouds, risers and conduits shall be used to reduce the appearance of external cabling.

(6) All poles, antennas, brackets, cabling, risers, shrouds and conduits shall be uniform grey or black in color, or other color as approved by staff.

(7) All poles, antennas, brackets, cabling, risers, shrouds and conduits shall be uniform grey or black in color, or other color as approved by staff.

(8) There shall be no more than a four-inch off-set between the pole and pole-mounted equipment enclosures.

(E) Evaluation criteria. Evaluation of the proposal shall be based upon the following criteria and shall be subject to administrative approval by staff or approval by the Planning Commission after a public hearing, as applicable:

(1) The extent to which the proposal is consistent with the purposes of these regulations;

(2) The extent to which the proposal minimizes the impact on adjacent land uses, especially in terms of visual impact;

(3) The extent to which the proposed facility is camouflaged (i.e., use of stealth technology); and

(4) The extent to which the proposed facility conforms to the character of the surrounding area (i.e., buildings, street lighting, signs).

(F) Amendments to approved plan.

(1) Any amendments to plans for small wireless facilities and small cell towers, except for the minor adjustments outlined below, shall be made in accordance with the procedure required in § 157.300(A), subject to the same limitations and requirements as those under which such plans were originally approved.

(2) The following activities shall be considered minor adjustments from the original approval of an application for towers located in the right-of-way. Changes are measured cumulatively from the original approval of the small cell tower or small wireless facility:

(a) Tower height increases by less than 10%; and

(b) Change in the tower width of less than 10%.

(Prior Code, § 157.286) (Ord. 71, 2021, passed 6-10-2021)

§ 157.302 CONFIDENTIALITY OF APPLICATIONS.

All information contained in any application for a cellular antenna tower or small cell tower and/or facility, except for any map or other information that specifically identifies the proposed location being reviewed, shall be deemed confidential and proprietary within the meaning of KRS 61.878. The Planning Commission or staff shall deny any public request for the inspection of this information, whether submitted under Kentucky’s Open Records Act or otherwise, except when ordered to release the information by a court of competent jurisdiction. Any person violating this section shall be guilty of official misconduct in the second degree as provided under KRS 522.030. The confidentiality of any applications can be waived by the written authorization of the applicant.

(Prior Code, § 157.287) (Ord. 71, 2021, passed 6-10-2021)

§ 157.999 PENALTY.

(A) Any person violating any provision of this chapter shall be subject to the penalty provisions of § 10.99.

(B) Nothing contained herein shall prevent the city from taking such other lawful action as is necessary to prevent or remedy any violation.