The planning and zoning director may permit in a particular district a use not listed in this chapter, provided the use is of the same general type as the uses permitted there by this chapter. However, this section does not authorize the inclusion of a use in a district where it is not listed or a use specifically listed in another district or one which is of the same general type to a use specifically listed in another district. Uses listed as special exception may be established in that district only after approval of an application for the applicable permit in accordance with the procedures and requirements of article X of this chapter.

(LDR 2014, § 3.04.32.00; Ord. No. 2013-04, § 1, 7-15-2014)

(a)

Generally.

(1)

Provisions set forth in these sections apply to all areas subject to this chapter and all zoning districts therein, unless exceptions are specifically provided relating to one or more zoning districts or except as otherwise provided in this chapter.

(2)

This section is taken in conjunction with sections 24-457 and 24-458.

(b)

Limited notice permit. An application for a special exception shall be filed with the planning and zoning director. If the application demonstrates compliance with the standards of section 24-458(a), then a hearing shall be scheduled before the land planning agency (LPA) pursuant to the procedures for a special exception, except that the notice shall state: Any person receiving this notice must notify the planning and zoning director at least five days prior to the hearing (specify date) of any objections or the objection and right to be heard at the public hearing is waived. If no objections are received by the planning and zoning director, the planning and zoning director may cancel the hearing and issue a limited use permit. If an objection is received or if the application does not meet the standards, then the application shall be treated as a request for a special exception.

(c)

Special use permit. The special uses contained in this section shall be considered and approved, approved with conditions, or denied in accordance with the requirements of this chapter. Special uses, if allowed in a zoning district, may only be permitted upon demonstration of compliance with all the requirements of this section. Special uses may include utilities, transportation terminals and facilities, horses and ponies, household animals/pets numbering more than ten per residence, and other animals.

(1)

Special uses permitted.

a.

Essential public and private utility installations shall be permitted in any zoning district. Essential utility services are hereby defined as installations for the transmission of cable TV, drainage systems, electricity, gas, sewer, telephone, and water.

b.

Major utility installations may be permitted in any zoning district, provided that such application is made to the land planning agency (LPA) who shall hold a public hearing for approval. Major utility installations include electric or gas generating plants, electric transmission lines exceeding 115 KV, electric transmissions towers, radio and television stations, telephone and telegraph towers, and water or sewer treatment plants.

c.

Transportation terminals may be permitted in any nonresidential district, provided that such application is made to the local planning agency who shall hold a public hearing for approval. Transportation terminals include bus, railroad, air and water facilities.

d.

Horses and ponies may be permitted in residential districts with minimum lot sizes of one acre or greater provided that such application is made to the local planning agency who shall hold a public hearing for approval and such application meets the requirements of section 24-148(c).

e.

Household animals/pets in excess of ten per residence may be permitted in any residential district that such application is made to the local planning agency who shall hold a public hearing for approval and such application meets the requirements of section 24-148(a).

f.

Other animals may be permitted within any residential district that such application is made to the local planning agency who shall hold a public hearing for approval and such application meets the requirements of section 24-148(b).

(2)

Lot and building requirements. All special uses shall meet the lot and building requirements of the district in which they are located unless it is determined by the local planning agency at a public hearing that such lot and building requirements would not permit the best use of the land and would not provide the best return of the public investment.

(3)

Procedures for special use permit.

a.

A request for a hearing before the local planning agency for a special use shall be made as follows:

1.

A completed application form shall be filed with the planning and zoning director. Such application shall state the pertinent facts on which the request is based. The planning and zoning director may assist the applicant in preparing the application.

2.

The application shall be accompanied by an acceptable site plan with such reasonable information shown thereon as may be required by the planning and zoning director. Such site plan shall include as a minimum:

(i)

Lot dimensions with property line monuments located thereon.

(ii)

Location and size of existing and proposed structures.

(iii)

Easements (public and private); watercourses; fences; street names and street right-of-way lines, if existing and proposed; and such information regarding abutting property as directly affects the application.

b.

The planning and zoning director shall schedule a hearing before the local planning agency to consider the application in accordance with the procedures established herein and in article X of this chapter.

c.

The hearing provided for under this section shall be for the purpose of reviewing relevant information from the applicant regarding the requested special use. The local planning agency shall also review written and/or oral comments from the public in accordance with its established procedures.

d.

At the conclusion of the hearing, the local planning agency shall render a decision on the application. The local planning agency may approve, deny or impose conditions of approval for such uses, including, but not limited to, setbacks, buffers, height limitations, parking, etc. Any decision rendered by the local planning agency during this hearing shall be deemed final.

Special uses existing at the time of the effective date of the ordinance from which this chapter is derived and as indicated on the map or text, are hereby legally established as conforming public and semipublic uses.

(d)

Temporary use permit. Before a temporary use permit is approved by the planning and zoning director as a semi-restricted use, findings will be made to show compliance with the following provisions:

(1)

Types of temporary uses that may be allowed.

a.

A temporary building or yard for construction offices, material, or equipment provided such use is on or adjacent to the construction site and is adequately equipped with sanitary facilities.

b.

A real estate sales office used for the sale of lots or housing in subdivisions provided such office is in or adjacent to the subdivision and is adequately equipped with sanitary facilities.

c.

Temporary housing, including mobile homes, for households displaced from their residences due to fires, floods, or other disasters provided the temporary housing is adequately equipped with sanitary facilities.

d.

A circus, carnival, religious service, show exhibition, or other gathering provided adequate sanitary facilities are provided and the use does not remain for more than 21 days.

(2)

Compatibility standards. No temporary use will be allowed unless:

a.

Any nuisance or hazardous features of the use are suitably separated from adjacent uses.

b.

The use will not generate excessive traffic congestion on nearby streets.

c.

A vehicular parking problem will not be created.

(3)

Period allowed. The period for which a temporary use is allowed will be specified by the planning and zoning director.

(4)

Security. Security for performance of the applicants' obligations, including removal of any structures, equipment, and materials, shall be posted in all cases. The security may be a performance bond, cash, and certificate of deposit payable to the county and/or other negotiable instrument.

(5)

Application for temporary use. A property owner or their designated representative may initiate a request for a temporary use by filing an application with the planning and zoning department using forms prescribed by the county. The application will be accompanied by a set of findings which demonstrate the applicable zoning and other requirements of this chapter will be satisfied. The planning and zoning director may request other drawings or information necessary for an understanding of the request.

(LDR 2014, §§ 3.05.00—3.05.03; Ord. No. 2013-04, § 1, 7-15-2014)

(a)

Generally. The provisions of this section apply to wireless telecommunications facilities and are intended to promote the health, safety and general welfare of the citizens by regulating the siting of communications towers and to establish the necessary legal framework to encourage the use of towers which are compatible with their surroundings.

(b)

Purpose. The board of county commissioners finds that the promulgation of this section is warranted and necessary to accomplish the following purposes:

(1)

To direct the location of communication towers within the county;

(2)

To protect residential areas and land uses from the potential adverse impacts of communication towers;

(3)

To minimize adverse visual and aesthetic impacts of communication towers through careful design, siting, landscape screening, and innovative aesthetic mitigation;

(4)

To accommodate the growing demand for communication towers;

(5)

To promote and encourage shared use and co-location of existing and new communication towers as the preferred option rather than construction of additional single-use towers;

(6)

To consider the public health and safety of communication towers;

(7)

To avoid or minimize potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures.

(c)

Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

Alternative support structure means any manmade structure, except towers, including, but not limited to, buildings, power poles, light poles, clock towers, bell towers, steeples, water towers and the like, which allow for the attachment of antennas.

Antenna means a device for radiating or receiving radio waves. As used in this section, the term "antenna" shall include all antennas integrated and used as a single unit, such as an antenna array.

Camouflaged means a structure designed to support one or more antenna but designed to unobtrusively blend into the existing surroundings and disguised so as to not have the appearance of a tower. Such tower shall be consistent in size, scale and appearance with the type of object it is designed to resemble.

Customer premises equipment means telecommunications equipment on the premises of a telecommunications customer for the sole use of the occupants of the premises.

Guyed means a tower anchored with guide wires.

Lattice means a self-supporting tower with three or more side or open-framed supports.

Mobile station means equipment which is not fixed and ordinarily moves. Such a facility is typically the end users' equipment such as a wireless telephone.

Monopole means a single, self-supporting tower of concrete, steel, or similar materials having a solid appearance and no guide wires.

Speculative means a tower which is proposed for erection without evidence of any antenna leases or agreement for use of the tower.

Tower means a structure, greater than 15 feet in height, designed and used primarily to support one or more antenna of any type.

(d)

Special use permit required.

(1)

All wireless telecommunication facilities shall constitute a special use as permitted herein. Such facilities may be permitted in any district under the criteria set forth hereafter and upon the approval of the board of county commissioners. This provision shall supersede the existing provisions which limit special use permits to certain zoning districts.

(2)

No development permit, including building permit, shall be issued until after a public hearing is held on the application and the special use permit is approved by the board of county commissioners authorizing the construction of the proposed tower or other telecommunication facility.

(e)

Applicability regulations and exemptions to existing structures.

(1)

All new communication towers in the county shall be subject to this chapter and all other applicable building and construction codes. In the event of any conflict between the zoning district regulations and the regulations contained in this section, the provisions of this section shall override and supersede such other regulations unless otherwise specifically set forth herein.

(2)

The provisions of this section, other than the minimum distance requirements from residential districts, shall not apply to communication towers and communication antenna located on property, rights-of-way or easements owned by any governmental entity.

(3)

Communication towers existing on January 1, 1998, shall be allowed to continue to be used as they presently exist. Routine maintenance including replacement with a new tower of like construction and height and modifications to accommodate the co-location of an additional user or users shall be permitted on such existing towers. New construction, other than routine maintenance and modification to accommodate co-location on an existing communication tower, shall comply with the requirements of this section.

(4)

For purposes of this section, a communication tower that has received final approval by the board of county commissioners, but has not yet been constructed, shall be considered an existing tower so long as such approval is valid and unexpired.

(5)

No special use permit, zoning exception or variance shall be required to locate a communication antenna on an alternative support structure, provided, however, that the antenna does not extend more than 20 feet above the existing structure. Such structures may include, but are not limited to, buildings, water towers, existing communication towers, recreational light fixtures and other essential public service structures.

(f)

Location on lot. A communication tower may be located on a lot utilized for other principal uses and on a parcel smaller than the minimum lot size required in the zoning district. This parcel shall be considered as the tower site. The tower site, but not the entire lot, shall be subject to all of the requirements of this section, except as specifically provided herein.

(g)

Minimum distance of towers from residential zones.

(1)

Regardless of the zoning district in which the communication tower is located, the minimum distance of the tower shall be not less than 200 feet from the nearest residential lot line of any residential districts or from any parcel containing a residence in an agricultural district except that in the agricultural districts the communication tower may be closer to a parcel boundary provided it remains a minimum of 400 feet from any residence existing at the time of approval.

(2)

Minimum distances shall be measured from the center of the base of the communication tower to the lot line of the applicable residential zoning district or parcel, as the case may be.

(3)

Notwithstanding anything to the contrary in this chapter, no communication tower other than a monopole (freestanding) tower or alternative tower structure shall be located in any residential zoning district.

(h)

Maximum height. The minimum height of communication towers shall be:

(1)

In all residential districts:

a.

If constructed for a single user, up to 90 feet in height; and

b.

If constructed for two or more users, up to 150 feet in height.

(2)

In all other zoning districts:

a.

If constructed for a single user, up to 150 feet in height;

b.

If constructed for two users, up to 250 feet in height;

c.

If constructed for three or more users, up to 330 feet in height.

(3)

A communication tower shall be considered to be constructed for more than one user if:

a.

It is constructed so as to provide sufficient excess capacity over the initial single user loading for one or more additional comparable users; and

b.

The applicant consents in writing with the county to permit one or more additional comparable communication providers to use the proposed tower where feasible and subject to reasonable terms.

(4)

Measurement of communication tower height shall include antenna, base pad, and other appurtenances and shall be measured from the finished grade of the tower site.

(5)

Application may be made to exceed the height limitation. The zoning agency shall determine if the goal and objective of promoting co-location will be served by granting a variance to exceed the maximum height and may approve such application if consistent with the goals and objectives of this section and if necessary to comply with the Telecommunications Act of 1996.

(i)

Minimum yard requirements. There are no minimum yard requirements for communication towers.

(j)

Illumination. Communication towers shall not be artificially lighted except as may be required by Federal Aviation Administration. If lighting is required, the applicant must present the county with available lighting alternatives and obtain approval of the county commission so that the county is ensured that the design utilized will cause the least possible disturbance to the surroundings.

(k)

Finished color. Communication towers not requiring FAA painting/marking shall have either a galvanized finish or painted a dull blue or gray finish.

(l)

Structural design. Communication towers shall be designed and constructed to ensure that the structural failure or collapse of the tower will not create a safety hazard to adjoining properties. Communication towers shall be constructed to EIA/TIA 222-F Standards or the most current equivalent standards, as published by the Electronic Industries Association, which may be amended from time to time, and all applicable county building codes. All plans for the construction of towers shall be sealed by a state-registered professional engineer. Further, any improvements and/or additions (i.e., antenna, satellite dishes, etc.) to existing communication towers shall require submission of site plans sealed and verified by a professional engineer which demonstrates compliance with EIA/TIA 222-F Standards or most current equivalent standards in effect at the time of said improvement or addition. Said plans shall be submitted to, reviewed and approved by the planning and zoning department at the time building permits are requested. A fall zone shall be provided to the extent that is required by EIA/TIA 222-F Standards or the most current equivalent standards.

(m)

Fencing. A six-foot finished masonry wall or fence, other than chain link, with not less than 85 percent opacity shall be required as a minimum around all communication towers located in a residential or commercial zoning district. In all other zoning districts, the fence may be any type of security fence provided that is at least six feet in height. Access to all towers shall be through a locked gate.

(n)

No advertising. Neither the communication tower nor the tower site shall be used for advertising purposes and shall not contain any signs for the purpose of advertising.

(o)

Landscaping. The visual impacts of residentially or commercially located communication towers shall be mitigated through landscaping or the screening materials at the base of the tower and ancillary structures.

(1)

The following landscaping and buffering of communication towers shall be required around the perimeter of the tower and accessory structures:

a.

A row of shade trees a minimum of ten feet tall and a maximum of 20 feet apart shall be planted around the perimeter of the fence;

b.

A continuous hedge at least 36 inches high at the time of planting, capable of growing to at least 48 inches in height within 18 months, shall be planted in front of the tree line referenced in subsection (o)(1)a of this section;

c.

All required landscaping shall be of the evergreen variety;

d.

All required landscaping shall be native drought tolerant species and/or irrigated and properly maintained to ensure good health and vitality.

(2)

Required landscaping shall be installed outside the fence or wall.

(3)

Existing vegetation shall be preserved to the maximum extent practicable and may be credited as appropriate toward landscaping requirements.

(4)

These standards may be waived by the planning and zoning director for those sides of the proposed tower that are located adjacent to undevelopable lands and lands not in public view.

(p)

Abandonment.

(1)

In the event the use of any communication tower has been discontinued for a period of 180 consecutive days, the tower shall be deemed abandoned. Determination of the abandonment shall be made by the planning and zoning director. Upon the planning and zoning director's determination of such abandonment, the owner/operator of the tower shall have an additional 180 days within which to:

a.

Reactivate use of the tower or transfer the tower to another owner/operator who makes actual use of the tower; or

b.

Dismantle and remove the tower.

(2)

After that date, the county may dismantle and remove the tower at the owner's expense. The owner/operator shall be responsible for all costs associated therewith. At the earlier of 185 days from the date of abandonment without reactivation or upon completion of dismantling and removal, any special use permit, exception and/or variance approval for the tower shall automatically expire.

(q)

Certification of compliance. Prior to receiving final inspection, adequate proof shall be submitted to the zoning and planning and zoning department documenting that the communication tower complies with all current FCC regulations and non-ionizing electromagnetic/radiation (NICER) and that the radio frequency levels meet the American National Standards Institute.

(r)

Supplemental information required for applications. The applicant must also submit the following information in addition to the standard information required of all special use permit applicants:

(1)

A scaled site plan clearly indicating the tower site, type and height of the proposed tower, the location of the accessory building, on-site land uses and zoning, adjacent land uses and zoning, adjacent roadways, proposed means of access, distances from property lines, elevation drawings of the proposed tower, and any other proposed structures;

(2)

A current zoning or tax map or aerial, as maintained by the county property appraiser's office, showing the location of the proposed tower;

(3)

A legal description of the parent tract and tower site (if applicable);

(4)

Engineering specifications for the proposed tower setting forth the number of users the tower is designed to accommodate and the number of antennas to be located on the tower;

(5)

If the proposed tower site meets the required minimum distance from residential zones, the approximate distance between the proposed tower and the nearest residential dwelling, platted residentially zoned properties, or unplatted residentially zoned properties. If the proposed tower site does not meet the minimum distance requirements, then exact distances, locations and identifications of said properties shall be shown on an updated zoning or tax map;

(6)

A landscape plan showing specific landscape materials;

(7)

The method of fencing, finished color if applicable, the method of aesthetic mitigation and illumination;

(8)

If the applicant is not co-locating (sharing space) on the proposed communication tower of another communication provider, evidence that it has made diligent but unsuccessful efforts to co-locate its antenna and associated equipment on and existing structure. 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 towers or structures are located within the geographic area required to meet the applicant's engineering requirements;

b.

Existing towers or structures are not of sufficient height to meet applicants engineering requirements;

c.

Existing towers or structures do not have sufficient structural strength to support applicants proposed antenna and related equipment;

d.

The applicants proposed antenna would cause impermissible electromagnetic interference, as determined by the FCC, with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause impermissible interference, as determined by the FCC, with the applicants 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. Cost exceeding new tower development are presumed unreasonable;

f.

Property owners or owners of existing towers or structures are unwilling to accommodate the applicant's needs; or

g.

The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable; and

h.

If the applicant demonstrates and provides evidence that the proposed facility is designed to accommodate five or more users, the applicant shall be exempt from the provisions of this subsection (r)(8);

(9)

The written consent by the applicant that any special permit shall be conditioned upon requiring the applicant to:

a.

Construct the proposed communication tower so as to provide sufficient excess capacity over the initial single user loading for one or more additional comparable users; and

b.

Permit at least one other comparable communication provider to use the proposed tower where feasible and subject to reasonable terms. The term where feasible, as it applies to co-location, means that utilization of a tower by another tower carrier which would, at the time of such utilization, comply with sound engineering principles, would not materially degrade or impair the communication tower's utilization by existing users, would not unduly burden the tower structurally, and would not otherwise materially and adversely impact existing users. Reasonable terms for use of a communication tower that may be imposed by the owner including a requirement for reasonable rent or fees, taking into consideration the capitalized cost of the communication tower and land, the amount of lease payments by the owner, the incremental cost of designing and constructing the tower so as to accommodate additional users, increases in maintenance expenses relating to the tower and a fair return on investment, provided such amount is also consistent with rates paid by other co-locators at comparable tower sites.

(s)

Criteria for special use permits. In addition to meeting the requirements set forth in this chapter, the following findings must be made before the county commission may grant a special use permit for the construction of a communication tower:

(1)

The communication tower shall be compatible with the existing contiguous uses or with the general character and aesthetics of the neighborhood or the area, considering the design and height of the communication tower, the mitigating effect of any existing or proposed landscaping, fencing or other structures, and similar factors;

(2)

The communication tower shall not have any significant detrimental impact on adjacent property values.

(t)

Waiver and variance standards and criteria. Notwithstanding any other variance criteria, with respect to action upon applications for zoning variances from the minimum distances required pursuant to subsection (g) of this section and maximum height requirements of subsection (h) of this section:

(1)

The planning and zoning director shall grant a variance only if it finds from a preponderance of the evidence that the variance meets all of the following standards and criteria:

a.

Certification by a radio frequency engineer, whose credentials are acceptable to the planning and zoning director, that the proposed communication tower is reasonably necessary to serve an adjacent or nearby residential area or other areas.

b.

The variance sought is the minimum necessary to address the need for the variance, subsequent to exploring all reasonable siting alternatives.

c.

The location of the proposed communication tower in relation to the existing structures, trees and other visual buffers shall minimize, to the greatest extent reasonably practicable under the circumstances, any impacts on affected residentially zoned property.

d.

The location of the communication tower will not have a significant detrimental impact on adjacent property values and any property formally designated by the comprehensive plan as protected or environmentally sensitive, or judged to possess unique environmental or cultural qualities as determined by current permitting regulations of the county.

(2)

If a particular request for a variance or exception has been denied by the planning and zoning director, the board of county commissioners may grant such waiver to any particular requirement of this section in a particular individual circumstance, which may be conditioned on the applicant complying with an alternative requirement to protect the public health, welfare and safety, if it finds that:

a.

Compliance with the particular requirement of this section is substantially impractical; or

b.

Granting the particular variance or waiver will not adversely affect the public interest and the particular variance or waiver will not permit a use of land that is incompatible with surrounding properties.

(LDR 2014, §§ 3.04.30.00—3.04.30.03; Ord. No. 2013-04, § 1, 7-15-2014)