11.1.1. Submittal. Submittals seeking authorization of a conditional use shall be submitted to the planning and zoning department on the applicable form provided by the department.

11.1.2. Zoning administrator review.

A.

The zoning administrator reviews the application to determine whether all conditions set forth in this ordinance for the conditional use requested have been satisfied.

B.

The zoning administrator may issue authorizations only for those uses permitted with conditions that are in accordance with the provisions of this ordinance and the specific conditions set forth.

C.

Upon receipt of a completed submittal for conditional use authorization, required supporting documentation, including single-site development plans, when applicable, the zoning administrator or his/her designee shall review the submittal in conjunction with any other applicable county departments in the order that the submittal was received.

11.1.3. Appeal of zoning administrator decision. The applicant may appeal the zoning administrator's decision to deny the authorization of a conditional use to the board of zoning appeals following the procedures outlined in article 21.

(Ord. No. 20-12-50, 12-14-2020; Ord. No. 21-01-02, 1-25-2021)

Editor's note— Ord. No. 21-01-02, adopted Jan. 25, 2021, amended § 11.1 and in doing so changed the title of said § from "Conditional use permit" to "Conditional use requirements," as set out herein.

Special exceptions are issued by the board of zoning appeals authorizing a particular use in a specified location within a zoning district, upon demonstrating that such use complied with the conditions and standards specified by this ordinance.

11.2.1. Criteria for application and approval.

A.

Applications for special exceptions shall be submitted to the planning and zoning director or designee and accompany payment of fees as set forth in chapter 47.

B.

Applications shall document how the terms and conditions set forth in this section and/or within the applicable zoning district for the proposed use will be met and include a single-site development plan, when applicable.

C.

All applications shall be reviewed by the board of zoning appeals following the procedures set forth in article 21.

11.2.2. Consideration by the board of zoning appeals (BZA). The board of zoning appeals (BZA) will use the following criteria, based upon factual evidence presented by the applicant and/or the public during the public hearing, for judging the compatibility of the requested special exception with the surrounding area:

A.

Is the requested special exception consistent with the recommendations contained in the Berkeley County Comprehensive Plan as well as the purpose and intent of the underlying zoning district?

B.

Is the proposed site's access, configuration of primary and accessory uses, and operations located where existing residences may be negatively impacted by the operation of the intended use?

C.

Will private and/or surface water facilities, and existing stormwater/drainage systems be negatively impacted by the proposed use?

D.

Will pedestrian and/or vehicular transportation corridors and access be negatively impacted? In considering the effect upon transportation corridors, the board of zoning appeals (BZA) shall find that (1) the trips generated by the proposed use will not adversely affect the public roadway network, and (2) a public or private school, public park or public recreation area (Within the Francis Marion National Forest, includes only designated recreation areas), youth activity center, public library, and/or a child care facility will not be negatively impacted by the operations of the intended use.

E.

Will the proposed use negatively impact the character of the surrounding area, and is it compatible with surrounding uses?

11.2.3. Conditions. The board of zoning appeals may impose additional conditions on the approval of a special exception. All conditions and restrictions shall be written into record and given to the applicant in writing within five business days of approval. The board of zoning appeals may impose additional conditions to accomplish any of the following:

A.

Ensure the special exception is developed exactly as presented in drawings, exhibits, and assertions made at the hearing.

B.

Limit the length of time a use may exist, or provide for periodic review of the appropriateness of the use, or provide for the elimination of the use.

C.

Impose conditions that ensure the general purposes and goals of the comprehensive plan and this ordinance are met.

D.

Prevent or minimize adverse effects from the proposed use and development on other properties in the neighborhood and on the public health, safety, and welfare.

11.2.4. Permit compliance. Should the board of zoning appeals (BZA) approve a request for special exception, the applicant and/or operator shall meet the conditions of the special exception permit, including those imposed by the BZA as a means of ensuring land use compatibility, prior to commencement of operations and at all times thereafter.

11.2.5. Commencement. Construction of the intended special exception use and associated site improvements shall not commence until a special exception is issued by the board of zoning appeals (BZA), the associated single-site development (site) plan is submitted, reviewed, and, upon demonstrated compliance to applicable requirements and any additional conditions imposed by the BZA, approved in accordance with the processes and requirements set forth in chapter 59, and all applicable building, trades, and other applicable permits have been issued. Operations shall not commence until the site is inspected by applicable county personnel and deemed to be in conformance with the approved single-site development (site) plan, the standards stipulated in this article, and applicable authorizations for occupancy have been issued by the building and codes department.

11.2.6. Amendment to a special exception permit. A special exception permit may be amended, extended, varied, or altered subsequent to approval only pursuant to the standards and procedures for the approval of the original use set forth in this article.

11.2.7. Board of zoning appeals review. The board of zoning appeals may issue special exception permits only for those uses permitted by special exception that are in accordance with the provisions of this ordinance and the specific conditions set forth.

(Ord. No. 21-01-02, 1-25-2021)

11.3.1. Agriculture, intensive animal production.

A.

Definition. Intensive animal production operations are defined as facilities with a capacity of 30,000 pounds or more or are determined by SCDHEC to require an agricultural NPDES permit. This includes the production principally for the sale to others of animals or their products, including, but not limited to: dairy animals and dairy products; livestock, including dairy and beef cattle, poultry, sheep, swine, horses, ponies, mules, and goats; and where manure may accumulate, or where the concentration of animals is such that vegetative cover cannot be maintained within the enclosure. Pastures shall not be considered intensive animal production.

B.

Purpose. Intense animal production can produce nuisance and hazardous fumes, odors, and runoff for neighboring property and water bodies. The conditions outlined herein are intended to limit the negative impacts of intense animal production operations.

C.

Minimum lot size: 25 acres.

D.

Buffers. See article 11 for bufferyard requirements.

E.

Setbacks for intensive animal production operations. In addition to the required setbacks outlined in the district, pens, housing, and associated lagoons for intensive animal production operations shall be required to conform to the following setbacks:

1.

Existing occupied residences: 5,280 feet minimum.

2.

Public facilities (including school, hospital, church, outdoor recreational facility, national park, state park, historical property listed in the National Register for Historic Places, or child care center): 5,280 feet minimum.

3.

Property boundary: 500 feet minimum.

4.

Drinking water well for human consumption: 500 feet minimum.

5.

Waters of the state: 500 feet minimum.

6.

The outer perimeter of the land area onto which waste is applied for a lagoon that is a component of a swine farm shall be at least 100 feet from any boundary of property on which an occupied residence is located and from any perennial stream or river, other than an irrigation ditch or canal.

7.

The setback distances required by these standards shall not be required with respect to residences or other structures that are built or established after a new or expanded operation has been appropriately established under this ordinance.

F.

Waste management.

1.

Applicant shall submit a waste management plan for the proposed facility, as approved by SCDHEC, to the county for its review. The plan shall detail the handling, storage, treatment (if required), and final disposal of the manure, litter, and dead animals generated at the facility. Additionally, soil monitoring, vector abatement, odor abatement, and emergency plans shall be part of the waste management plan.

2.

The premises shall be maintained by keeping manure piles in covered containers at least 50 feet from any dwelling or any pool, patio, or other recreational structure on an adjoining lot and at least 25 feet from any property line.

3.

Waste piles are prohibited:

a.

Within zone A, or V on the FIRM FEMA flood zone map.

b.

In waterway.

4.

All manure must be removed as necessary so as to prevent the propagation of flies and creation of odors.

G.

Drainage.

1.

The lot shall be designed and maintained to drain so as to prevent ponding and propagation of insects.

2.

The lot shall be designed and maintained so as to prevent the pollution from drainage into adjacent streams and other water bodies.

3.

A vegetative strip at least 25 feet wide shall be maintained between any corral, manure pile, or application area and any surface water, in order to minimize runoff, prevent erosion, and promote quick nitrogen adsorption.

H.

Feed storage.

1.

All grain and feed on the lot shall be stored in rodentproof containers.

2.

All feed spillages on the lot must be promptly removed so as to prevent attraction of flies, rodents, and birds, and creation of odors.

I.

Other standards.

1.

The premises shall be maintained in a sanitary condition through the proper use of lime and pesticides.

2.

All exercise and training areas on the lot shall be dampened so as to prevent dust.

3.

Livestock shall be confined to property boundaries through use of proper fencing or other acceptable means.

4.

Relevant information required for appropriate state and federal applications shall also be provided to the county during the conditional use permit application and review process.

J.

Conflict with other laws and regulations. The provisions of any federal or state law or regulation establishing standards affording greater protection to public health, safety, and general welfare for the surface and ground water resources of the state shall prevail over the standards in this ordinance.

11.3.2. Agriculture, home horses only.

A.

Minimum lot requirements. Two acres for one horse and one additional acre for each additional horse.

B.

Setbacks from all property lines.

1.

Barn or agricultural structure: 60 feet minimum.

2.

Manure piles: 60 feet minimum.

C.

Waste management.

1.

The premises shall be maintained by keeping manure piles in covered containers at least 60 feet from any property line.

2.

Waste piles are prohibited:

a.

Within zone A, or V on the FIRM FEMA flood zone map.

b.

In waterway.

3.

All manure must be removed as necessary so as to prevent the propagation of flies and creation of odors.

D.

Drainage.

1.

The lot shall be designed and maintained to drain so as to prevent ponding and propagation of insects.

2.

The lot shall be designed and maintained so as to prevent the pollution from drainage into adjacent streams and other water bodies.

3.

A vegetative strip at least 25 feet wide shall be maintained between any corral, manure pile, or application area and any surface water, in order to minimize runoff, prevent erosion, and promote quick nitrogen adsorption.

E.

Feed storage.

1.

All grain and feed on the lot shall be stored in rodentproof containers.

2.

All feed spillages on the lot must be promptly removed so as to prevent attraction of flies, rodents, and birds, and creation of odors.

F.

Other standards.

1.

The premises shall be maintained in a sanitary condition through the proper use of lime and pesticides.

2.

All exercise and training areas on the lot shall be dampened so as to prevent dust.

3.

Horses shall be confined to property boundaries through use of proper fencing or other acceptable means.

11.3.3. Boarding facility.

A.

Minimum density requirements. Two acres for one horse and one additional acre for each additional horse.

B.

Minimum lot size. Five acres, or minimum district requirements (whichever is greater).

C.

Setbacks from all property lines.

1.

Barn or agricultural structure: 60 feet minimum.

2.

Manure piles: 60 feet minimum.

3.

Feeding area: 25 feet minimum.

D.

Waste management.

1.

The premises shall be maintained by keeping manure piles in covered containers at least 50 feet from any dwelling or any pool, patio, or other recreational structure on an adjoining lot and at least 25 feet from any property line.

2.

Waste piles are prohibited:

a.

Within zone A, or V on the FIRM FEMA flood zone map.

b.

In waterway.

3.

All manure must be removed as necessary so as to prevent the propagation of flies and creation of odors.

E.

Drainage.

1.

The lot shall be designed and maintained to drain so as to prevent ponding and propagation of insects.

2.

The lot shall be designed and maintained so as to prevent the pollution from drainage into adjacent streams and other water bodies.

3.

A vegetative strip at least 25 feet wide shall be maintained between any corral, manure pile, or application area and any surface water, in order to minimize runoff, prevent erosion, and promote quick nitrogen adsorption.

F.

Feed storage.

1.

All grain and feed on the lot shall be stored in rodentproof containers.

2.

All feed spillages on the lot must be promptly removed so as to prevent attraction of flies, rodents, and birds, and creation of odors.

G.

Other standards.

1.

The premises shall be maintained in a sanitary condition through the proper use of lime and pesticides.

2.

All exercise and training areas on the lot shall be dampened so as to prevent dust.

3.

Horses shall be confined to property boundaries through use of proper fencing or other acceptable means.

11.3.4

For the keeping of residential chickens as a conditional use.

A.

Keeping of chickens lawful. Subject to the standards in this article, it shall be lawful to keep of up to eight female domestic chickens (hens) in accordance with the standards contained herein.

B.

Number of chickens. The number of chickens authorized per parcel shall comply with the following, subject to all other standards in this article:

a.

Minimum lot size of 10,000 square feet of any residential parcel is required for the keeping of up to two chickens; and

b.

For each additional 4,500 square feet of any residential parcel, one additional hen may be kept up to a maximum of eight.

C.

Specific standards for chickens.

a.

No male chickens (roosters) over the age of three months are permitted.

b.

No chickens may run at large. All chickens must be contained with the property boundary.

c.

The property's occupant shall provide the chickens with a covered, predator-proof chicken house that is thoroughly ventilated, and of sufficient size to admit free movement of the chickens. The chicken house must be adjacent to and provide free access to the chicken enclosure. Any heat source or electrical facilities installed in a chicken house must comply with all adopted building and electrical codes of the county.

d.

Chickens shall be secured within the chicken house from sunset to sunrise.

e.

Chicken enclosures and houses must be kept in a neat and sanitary condition at all times and must be cleaned on a regular basis so as to prevent offensive odors.

f.

Chickens shall have continuous access to adequate food and water.

g.

Stored feed must be kept in a rodent-and predator-proof container.

h.

Chickens shall be maintained in a healthy condition. Ill chickens shall either receive appropriate medical care or be culled.

i.

No chicken house shall be located closer than 20 feet to any structure inhabited by someone other than the chicken owner, custodian, or keeper, and not closer than ten feet to any property line. Chicken houses may be movable but must comply with all standards of this section.

j.

No chicken shall be kept in a manner so as to create noxious odors or noise of a loud, persistent and habitual nature.

k.

No chickens shall be slaughtered within the public view.

D.

Property owner's consent. Where the party seeking to keep chickens is not the fee owner of the property upon which chickens will be kept, the applicant shall obtain the property owner's consent in writing to keep chickens on the property. The owner's consent shall be submitted with the permit application or renewal.

E.

Enforcement. Upon receiving a complaint of a possible violation, the code enforcement officer will investigate and determine if a violation of this section exists. If the animal control officer determines a violation exists, the officer may serve upon the permit holder or the owner or lessee of the property a written notice of violation and an order to take corrective action, may issue a warning, or may immediately issue a violation notice.

(Ord. No. 15-01-01, 1-26-2015; Ord. No. 23-07-42, 7-24-2023)

11.4.1. Bed and breakfast.

A.

All bed and breakfast facilities must meet all tax, fire, and building code requirements, health department requirements, and zoning license requirements prior to the commencement of operations and at all times thereafter.

B.

All bed and breakfast facilities must conform to the requirements of the zoning district in which they are located.

11.4.2. Commercial, bar and/or liquor store.

A.

No establishment or use in which the predominant activity, or the majority of gross sales, involves the sale of alcohol or alcoholic beverages shall be located within 1,000 feet of any other such establishment or use.

B.

A commercial bar and/or liquor store shall not operate within 1,000 feet of:

1.

A sexually oriented business, or

2.

A religious institution, or

3.

A public or private school, or

4.

A public park or public recreation area, or

5.

A youth activity center, or

6.

A public library, or

7.

A licensed child care facility.

C.

For the purpose of this section, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a commercial bar and/or liquor store is operated, to the nearest property line of the premises of a religious institution, or public or private school, or public park or public recreation area, or youth activity center, or public library, or child care facility, or to the nearest boundary of any residential district or residential lot.

D.

A commercial bar and/or liquor store lawfully operating as a conforming use is not rendered a nonconforming use by the location of a religious institution, public or private school, boundary of a residential district, public park or recreation area, property line of a lot devoted to residential use, youth activity center, public library or child care facility subsequent to the grant or renewal of a license. This provision only applies to the renewal of a license, and does not apply when an application for a license is submitted after the license has expired or has been revoked.

11.4.3. Commercial, drive-through windows.

A.

Drive-through stacking spaces.

1.

Minimum spaces: Five stacking spaces per drive-through window.

2.

Location: These spaces shall be located off the public right-of-way and shall not conflict with the parking and circulation in the balance of the required parking area.

3.

Minimum size: 18 feet long and nine feet wide.

4.

Ensure that stacking of spaces gives the driver the ability to exit out of the line in cases of emergency.

11.4.4. Sexually oriented businesses.

A.

Purpose and intent. It is the purpose of the article of the Berkeley County zoning ordinance to regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the county, and to establish reasonable and uniform regulations to prevent the continued deleterious locating and concentration of sexually oriented businesses within the county. The provisions of this article have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials including sexually oriented materials. Similarly, it is not the intent or effect of this article to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent or effect of this article to condone or legitimize any use or act that is otherwise prohibited or punishable by law.

B.

Findings of fact.

1.

Although there are no known sexually oriented businesses currently operating in Berkeley County, a number of sexually oriented businesses are located in adjoining jurisdictions. It is possible and probable, that at some point one or more sexually oriented business would desire to locate in Berkeley County, and it is in the interests of the health, safety, and welfare of the patrons of such businesses, as well as the citizens of Berkeley County, to provide certain minimum standards and regulations for sexually oriented businesses, as well as the operators and employees of such businesses.

2.

Sexually oriented businesses generate secondary effects, which are detrimental to the public health, safety, and welfare. Additionally, sexually oriented businesses are frequently used for unlawful sexual activities, including public sexual indecency, prostitution, and sexual encounters of a casual nature. Such businesses are of particular concern to the community when they are located in close proximity to each other, or close to schools, churches, or parks and playgrounds.

3.

The concern over sexually transmitted diseases is a legitimate health concern of the county, which demands reasonable regulation of sexually oriented businesses in order to protect the health and well-being of our citizens.

4.

Live entertainment presented by some sexually oriented businesses involves a considerable amount of bodily contact between patrons and semi-nude and nude employees and dancers, including physical contact while giving and receiving gratuities, hugging, kissing, and sexual fondling of employees and patrons. Many sexually oriented businesses have "couch" or "straddle" dancing, and in these "dances," employees sometimes do such things as sit in a patron's lap, place their breasts against the patron's face while physical contact is maintained, and gyrate in such a manner as to simulate sexual intercourse. As such behavior can lead to prostitution, a number of federal and state courts have upheld distance limitations between performers and patrons, prohibitions against physical contact between performers and patrons, and direct payment and receipt of gratuities between performers and patrons at sexually oriented businesses that provide live entertainment. BSA, Inc. v. King County, 804 F.2d 1104, 1110-11 (9th Cir. 1986) (six feet); Kev. Inc. v. Kitsap County, 793 F.2d 1091 (9th Cir. 1986) (ten feet); Zanganeh v. Hymes, 844 F. Supp. 1087, 1091 (D.Md. 1994) (six feet); T-Marc, Inc. v. Pinellas County, 804 F. Supp. 1500, 1506 (M.D. Fla. 1992) (three feet); DLS, Inc. v. City of Chattanooga, 894 F. Supp. 1140 (E.D. Tenn. 1995) (six feet and prohibiting direct payment and receipt of gratuities); Parker v. Whitefield County, 463 S.E.2d 116 (Ga. 1995) (prohibiting tipping and contact between dancers and patrons); and Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995) (aff'd prohibition on touching or any contact between dancers and patrons).

5.

Berkeley County Council recognizes that preventing prostitution and the spread of sexually transmitted diseases are clearly within its police powers. Southeastern Promotions, Inc. v. Conrad, 341 F. Supp. 465,477 (E.D. Tenn. 1972), rev'd on other grounds, 420 U.S. 546 (1975). Berkeley County Council believes that prohibiting physical contact between performers and patrons at sexually oriented business establishments, prohibiting performers from soliciting payment of gratuities from patrons, and the direct payment of gratuities to performers by patrons, are a reasonable and effective means of addressing these legitimate governmental interests.

6.

Licensing is a legitimate and reasonable means of accountability to ensure that operators of sexually oriented businesses comply with reasonable regulations, to facilitate the enforcement of legitimate location and distancing requirements, and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation.

7.

The location of sexually oriented businesses close to residential areas diminishes property values and leads to conditions that give rise to crime in residential neighborhoods. Many studies performed in other communities indicate conclusively that property crimes and sexual crimes increase significantly in neighborhoods in which a sexually oriented business is located.

8.

It is not the intent of this article to suppress any speech activities protected by the First Amendment or to place any impermissible burden on any constitutionally protected expression or expressive conduct by the enactment or enforcement of this ordinance. Rather, it is the intent of Berkeley County Council to enact a "content neutral regulation" which addresses the secondary effects of sexually oriented businesses.

C.

Definitions. Terms, as they are used in this article, have the following meanings:

1.

Adult arcade means any place to which the public is permitted or invited wherein coin-operated, slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors or other image-producing devices are maintained to show images to one or more persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of "specified sexual activities" or "specified anatomical areas."

2.

Adult bookstore, adult retail store, or adult video store means a commercial establishment which excludes any person by virtue of age from all or part of the premises generally held opened to the public where products or equipment distinguished or characterized by a predominate emphasis or simulation of "specified sexual activities" or "specified anatomical areas" are sold, rented or displayed therein (unless the business complies with the requirements of [subsection] 2.c. herein) or, which has as one of its principal business purposes, the sale or rental of any form, for consideration, one or more of the following:

a.

Books, magazines, periodicals or other printed matter, or photographs, films, motion picture, videocassettes or video reproductions, slides, or other visual representations that depict or describe "specified sexual activities" or "specified anatomical areas."

b.

Instruments, devices, paraphernalia or clothing which are designed for use in connection with "specified sexual activities," excluding condoms and other birth control and disease prevention products. A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing "specified sexual activities" or "specified anatomical areas" and still be categorized as an adult bookstore or adult video store. Such other business purposes will not serve to exempt such commercial establishment from being categorized as an adult bookstore or adult video store so long as one of its principal business purposes is the offering for sale or rental, the specified materials which depict or describe "specified sexual activities" or "specified anatomical areas."

c.

Adult bookstore, adult retail store, or adult video store does not mean any establishment which displays, rents or sells sexually explicit materials in an enclosed room equal to less than ten percent of the business's total square footage, and which prohibits anyone under 18 years of age from entering the room.

3.

Principal business purpose, as used in this subsection, means that more than 25 percent of the "stock in trade" of the business is devoted to the display, rent or sale of items, products or equipment distinguished or characterized by a predominant emphasis or, or simulation of, "specified sexual activities" or "specified anatomical areas."

4.

Stock in trade for purposes of this subsection shall mean the greater of:

a.

The retail dollar value of all items, products or equipment readily available for purchase, rental, viewing or use by patrons of the establishment, excluding material located in any storeroom or other portion of the premises not regularly open to patrons; or

b.

The total volume of shelf space and display area.

5.

Adult cabaret means a nightclub, bar, restaurant or similar commercial eating or drinking establishment, which regularly features:

a.

Persons who appear in a state of nudity, or

b.

Live performances which are characterized by the exposure of "specified anatomical areas,"

c.

Films, motion pictures, videocassettes, slides or other photographic reproductions that are characterized by the depletion [depiction] or description of "specified sexual activities" or "specified anatomical areas."

6.

Adult carwash means a carwash where some or all of the employees are semi-nude or nude and/or where "specified anatomical areas" are exhibited.

7.

Adult health club or adult bathhouse means a health club or bathhouse where some or all of the employees are nude or semi-nude, or in which "specified anatomical areas" are exhibited.

8.

Adult motel means a hotel, motel or similar commercial establishment which offers accommodations to the public for any form of consideration and routinely offers a sleeping room for rent for a period of time that is less than eight hours, or routinely allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than eight hours, and which may provide closed-circuit television transmissions, films, motion pictures, videocassettes, slides or other photographic reproductions which are characterized by the depletion [depiction] or description of "specified sexual activities" or "specified anatomical areas." Evidence that a sleeping room in a hotel, motel, or a similar commercial establishment has been rented and vacated two or more times in a period of time that is less than eight hours creates a rebuttable presumption that the establishment is an adult motel as that term is defined in this section.

9.

Adult motion picture theater means a commercial motion picture theater, one of whose primary business purposes is, for any form of consideration, to regularly show films, motion pictures, videocassettes, slides or similar photographic reproductions which are characterized by the depletion [depiction] or description of "specified sexual activities" or "specified anatomical areas."

10.

Adult theater means a commercial theater, concert hall, auditorium, or similar commercial establishment, one of whose primary business purpose is to regularly feature persons who appear in a state of nudity, or which features live performances which are characterized by the exposure of "specified anatomical areas."

11.

Dancer means an employee of a sexually oriented business who entertains patrons through expressive forms of dance and/or movement.

12.

Employee means an individual working and performing services for any sexually oriented business, including any independent contractor who provides services on behalf of any sexually oriented business to the patrons of such business.

13.

Established or establishment means and includes any of the following:

a.

The opening or commencement of any sexually oriented business as a new business.

b.

The conversion of an existing business, whether or not a sexually oriented business, to a sexually oriented business.

c.

The addition of any sexually oriented business to any other existing sexually oriented business.

d.

The relocation of any sexually oriented business.

14.

Gratuities means the payment of money, tips or anything of value, by a patron of a sexually oriented business directly to an employee of a sexually oriented business as compensation for services performed.

15.

Licensee means a person in whose name a sexually oriented business regulatory license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a sexually oriented business regulatory license.

16.

Live entertainment means a person who appears nude, semi-nude, or a performance that is characterized by the exposure of "specified anatomical areas."

17.

Nude, nudity, or state of nudity means: a) the appearance of a bare human buttock, anus, male genitals, female genitals, or the areola or nipple of the female breast; or b) a state of dress which fails to completely cover a human buttocks, anus, male or female genitals, pubic region or areola or nipple of the female breast.

18.

Nude model studio means any place where a person appears in a state of nudity or displays "specified anatomical areas" and is observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any other form of consideration. Nude model studio does not mean: a) a proprietary school, licensed by the State of South Carolina, b) a college, junior college, or university supported entirely or partly by taxation, or c) a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation.

19.

Operate or causes to be operated means to cause to function or to put or keep in operation.

20.

Operator means any person on the premises of a sexually oriented business who is authorized to exercise overall operational control of the business, or who causes to function or who puts or keeps in operation the business. A person may be found to be operating or causing to be operated a sexually oriented business whether or not the person is an owner, part owner, or licensee of the business.

21.

Patron means any person who pays a sexually oriented business any form of consideration for services provided to him or her by the sexually oriented business.

22.

Person means an individual, proprietorship, partnership, corporation, association, or other legal entity.

23.

Semi-nude or semi-nudity means a state of dress in which clothing covers no more than the genitals of a man, or the pubic region and areola of the breasts of a woman.

24.

Sexually oriented business includes an adult arcade, adult bookstore, adult retail store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, adult carwash, adult health club, adult bathhouse, nude model studio, or any other business which offers, for consideration, materials or services characterized as depicting "specified sexual activities" or "specified anatomical areas," or whose employees perform services in a state of nudity or semi-nudity.

25.

Sexually oriented business regulatory license means a special annual operating license necessary for a sexually oriented business to do business in Berkeley County, which is issued by the Berkeley County Permitting and Codes Enforcement Department.

26.

Specified anatomical areas means and includes any of the following:

a.

Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breast below a point immediately above the top of the areola.

b.

Human genitals in a discernibly turgid state, even if completely and opaquely covered.

27.

Specified sexual activities means and includes any of the following:

a.

The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts.

b.

Sex acts, normal or perverted, actual or simulated, including intercourse, or oral copulation.

c.

Masturbation, actual or simulated.

d.

Excretory functions as part of or in connection with any of the activities set forth in (a) through (c) above.

28.

Substantial enlargement of a sexually oriented business means the increase in floor areas occupied by the business by more than 25 percent, as the floor areas exist on the date the original "sexually oriented business regulatory license" was obtained.

29.

Transfer of ownership or transfer of control of a sexually oriented business means and includes any of the following:

a.

The sale, lease or sublease of the business.

b.

The transfer of securities that constitute a controlling interest in the business, whether by sale, exchange or similar means.

c.

The establishment of a trust, gift or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.

30.

Viewing room means the room, booth, or area where a patron of a sexually oriented business would ordinarily be positioned while watching a film, videocassette, video reproduction, or live production; and such room, booth, or area consists of less than 150 square feet of floorspace.

31.

Viewing room area means the area of a sexually oriented business where viewing rooms are located.

D.

Sexually oriented business regulatory license required.

1.

Every person engaged or intending to engage in a sexually oriented business is required to obtain a sexually oriented business regulatory license (hereinafter "license") from the Berkeley County Permitting Department.

2.

The individual(s) intending to operate a sexually oriented business must submit a completed and signed application for a license to the Berkeley County Planning and Zoning Department. A nonrefundable fee in the amount set forth in section 47-1 of the Berkeley County Code of Ordinances (as amended) must accompany the application. If an entity other than an individual intends to operate a sexually oriented business, each individual who has a ten percent or greater interest in the business must sign the application for a license as an applicant.

3.

The application for a "sexually oriented business regulatory license" shall be sworn to be true and correct by the applicant.

4.

The Berkeley County Zoning Administrator, or his designee, shall approve the issuance of a license to an applicant within 30 days after receipt of an application unless one of the following is found to be true:

a.

The applicant is under 18 years of age,

b.

The applicant has failed to provide information reasonably necessary for issuance of a license or has falsely answered a question or request for information on the application form,

c.

The premises to be used for the sexually oriented business have not been approved by the health department (DHEC) or the county building official as being in compliance with applicable laws and/or ordinances, or

d.

The applicant of the sexually oriented business is in violation of, or is not in compliance with, any one or more of the provisions of this article of the Berkeley County zoning ordinance.

5.

The license, if granted, shall state on its face the name(s) of the person(s) to whom it is granted, the expiration date, and the address of the sexually oriented business. The license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time.

E.

Inspection. The licensee (or his agent or employee) shall permit representatives of the Berkeley County Sheriff's Department, health department (DHEC), local fire department, Berkeley County Planning and Zoning Department, and/or Berkeley County Codes Enforcement Department to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law, at any time it is occupied or open for business.

F.

Expiration of sexually oriented business regulatory license.

1.

A license must be renewed each year by making application as provided in section 11.4 at least 30 days prior to the expiration date.

2.

If, after denying the issuance or renewal of a license, the Berkeley County Zoning Administrator, or his designee, finds that the basis for denial of the license has been corrected or abated, the applicant may then be granted a license.

G.

Suspension of sexually oriented business regulatory license. The Berkeley County Zoning Administrator, or his designee, shall suspend a license for a period not to exceed 30 days if it is determined that a licensee or an agent or an employee of a licensee:

1.

Has violated or is not in compliance with any section of this article; or

2.

Has refused to allow an inspection of the sexually oriented business premises as authorized by this article; or

3.

Has knowingly permitted unlawful gambling by any person on the premises of the sexually oriented business.

H.

Revocation of sexually oriented business regulatory license.

1.

The Berkeley County Zoning Administrator, or his designee, shall revoke a license if it is determined that:

a.

The licensee gave false or misleading information in the material submitted to the Berkeley County Planning and Zoning Department during the application process; or

b.

The licensee or an agent or an employee knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended; or

c.

The licensee or an agent or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, or masturbation to occur in or on the business's premises; or

d.

The licensee or any agent or any employee is under the age of 18; or

e.

The licensee or an agent or an employee has knowingly allowed a person under the age of 18 in or on the business's premises; or

f.

The licensee or an agent or an employee is in violation of any state or federal law.

2.

If subsequent to revocation, the Berkeley County Zoning Administrator, or his designee, finds that the basis for the revocation of the license has been corrected or abated, the applicant may retain the license.

I.

Appeal of designation, suspension, or revocation of sexually oriented business regulatory license. A business or a licensee may appeal, in writing, the county's designation of such business as a sexually oriented business, or may appeal (in writing) the suspension or revocation of a license to the Berkeley County Zoning Board of Appeals under article 21.

J.

Transfer of sexually oriented business regulatory license. A licensee shall not transfer a license to another sexually oriented business, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the application.

K.

Location restrictions.

1.

Sexually oriented businesses shall not operate in any area of the county other than those districts zoned HI, heavy industrial.

2.

A sexually oriented business shall not operate within 1,000 feet of:

a.

A religious institution, or

b.

A public or private school, or

c.

A boundary of any residential district, or

d.

A public park or public recreation area, or

e.

The property line of a lot devoted to residential use, or

f.

A youth activity center, or

g.

A public library, or

h.

A licensed child care facility, or

i.

Another sexually oriented business.

3.

No more than one sexually oriented business shall be operated in any one building, structure, or portion thereof.

4.

For the purpose of this section, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is operated, to the nearest property line of the premises of a religious institution, or public or private school, or public park or public recreation area, or youth activity center, or public library, or child care facility, or to the nearest boundary of any residential district or residential lot. For the purpose of subsection 11.5.11(B)(9) [11.4.4(K)2.i] of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.

5.

A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location of a religious institution, public or private school, boundary of a residential district, public park or recreation area, property line of a lot devoted to residential use, youth activity center, public library, or child care facility subsequent to the grant or renewal of a license. This provision only applies to the renewal of a license, and does not apply when an application for a license is submitted after the license has expired or has been revoked.

L.

Signs. Sexually oriented businesses shall not display a sign or advertising visible from public streets, or sidewalks, or outside the premises, which is photographic, pictorial, or illustrative of sexually oriented entertainment, services, or merchandise offered on the premises.

M.

Regulation of adult carwashes. Nude or semi-nude employees of adult carwashes must not be able to be seen from any public right-of-way of adjoining parcels. Necessary fencing and/or buffers must be placed around the establishment in order to ensure that patrons can only view the employees once the patrons are inside the establishment.

N.

Six-foot distance rule applicable to sexually oriented businesses offering nude or semi-nude entertainment. No nude or semi-nude employee or dancer shall perform live entertainment within six feet of any patron, nor shall any patron experience live entertainment within six feet of any nude or semi-nude employee or dancer, in a sexually oriented business. (In the case of adult carwashes, the six-foot distance rule necessitates that patrons get out of their vehicles, and watch the vehicles being washed at least six feet away from the employee(s).)

O.

Direct gratuities to dancers or nude or semi-nude employees prohibited.

1.

No patron shall directly pay or directly give a gratuity to any dancer or nude or semi-nude employee in a sexually oriented business establishment.

2.

No dancer or nude or semi-nude employee of a sexually oriented business shall solicit or accept any pay or gratuity directly from a patron.

3.

Sexually oriented businesses that have dancers or nude or semi-nude employees shall conspicuously post a sign that advises patrons that direct gratuities to dancers and nude and semi-nude employees are prohibited.

P.

No fondling or caressing in sexually oriented businesses. A nude or semi-nude employee or dancer shall not fondle or caress any patron, and no patron shall fondle or caress any nude or semi-nude employee or dancer in any sexually oriented business establishment.

Q.

Adult motels prohibited. A person in control of a sleeping room in a hotel, motel, or similar commercial establishment, shall not rent or sub-rent a sleeping room to a person, and then, within eight hours from the time the room is rented, rent or sub-rent the same sleeping room again, as such creates a rebuttable presumption that the establishment is an adult motel as that term is defined in this article. For purposes of this section, "rent" or "sub-rent" means the act of permitting a room to be occupied for any form of consideration.

R.

Additional regulations pertaining to viewing rooms and viewing room areas.

1.

A person who operates or causes to be operated a sexually oriented business, as defined in this article, which exhibits on the premises in a viewing room a film, videocassette, or other video reproduction which depicts "specified sexual activities" or "specified anatomical areas," or which provides a viewing room for the viewing of live entertainment, shall comply with the following requirements:

a.

Upon application for a "sexually oriented business regulatory license," the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations and the location of all overhead lighting fixtures, and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed 32 square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or recognized landmark, and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches. The Berkeley County Zoning Administrator may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.

b.

No alteration in the configuration or location of a manager's station may be made without the prior approval of the Berkeley County Zoning Administrator or his designee.

c.

It is the duty of the owner(s) and operator(s) of the premises to ensure that at least one employee is on duty and situated in each manager's station at all times that any patron is present inside the premises.

d.

The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises, including the viewing room area, to which any patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises, including the viewing room area, to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station.

e.

It shall be the duty of the owner(s) and operator(s), and also the duty of any agent(s) and employee(s) in the premises, to ensure that the viewing room area remains unobstructed by any doors, walls, merchandise, display racks, or other materials at all times and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to subsection a. of this section.

f.

The entryway to a viewing room shall remain open and unobstructed at all times.

g.

No viewing room may be occupied by more than one person at any time.

h.

The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than one candle foot [footcandle] as measured at the floor level.

i.

It shall be the duty of the owner(s) and operator(s), and also the duty of any agent(s) and employee(s) present on the premises, to ensure that the illumination described above is maintained at all times that any patron is present on the premises.

2.

A person having a duty under this section commits a misdemeanor if he or she knowingly fails to fulfill that duty.

S.

Penalties. Any person who violates any provision of this article shall be deemed guilty of a misdemeanor and upon conviction shall pay a fine not exceeding $500.00 or be imprisoned for a period not exceeding 30 days.

T.

Injunction. In addition to the penalties of section 14.5.20 [11.4.4(S)] above, any person who operates or causes to be operated a sexually oriented business without a valid "sexually oriented business regulatory license" or is in violation of this ordinance is subject to a suit for injunctive relief.

(Ord. No. 02-08-33, 8-26-2002; Ord. No. 20-12-50, 12-14-2020)

11.5.1. Outdoor recreation, active. (Reserved)

Cross reference— Parks and recreation, ch. 41.

11.6.1. Family day care home.

A.

Permitted as an accessory to a permitted residential use only.

B.

Shall comply with all South Carolina Department of Social Services (DSS) requirements.

C.

Care is provided for no more than six children.

D.

Employees, other than the resident, are prohibited.

(Ord. No. 06-09-63, 9-25-2006; Ord. No. 14-03-03, 3-24-2014)

11.7.1. Communication towers.

A.

Purpose and intent.

1.

The purpose of this section is to establish general guidelines for the siting of wireless communications towers and antennas. The goals of this section are to:

a.

Provide guidelines that allow for the siting of cellular towers within Berkeley County.

b.

Provide for the ever-expanding communications needs of Berkeley County, its residents and business community.

2.

Within those goals the objectives of this section are to:

a.

Protect residential areas and land uses from potential adverse impacts of towers and antennas.

b.

Encourage the location of towers in nonresidential areas.

c.

Minimize the total number of towers located throughout the community.

d.

Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers.

e.

Encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal.

f.

Encourage users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening and innovative camouflaging techniques.

g.

Enhance the ability of the providers of telecommunications services to provide services to the community quickly, effectively and efficiently.

h.

Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures.

B.

Building permit required.

1.

Prior to the erection of a communication tower within the unincorporated area of Berkeley County, a building permit must be obtained from the permitting and codes enforcement department.

2.

Prior to the issuance of a building permit, the Berkeley County Building Official or his designee must approve the proposed construction or erection of a communication tower pursuant to the general requirements listed in section 11.7.1.D.

C.

Applicability.

1.

New towers and antennas. All new towers or antennas in Berkeley County shall be subject to these regulations, except as provided in subsection C(2) through C(4).

2.

Amateur radio station operators/receive only antennas. This section shall not govern the installation of any antenna owned and operated by an amateur radio operator and used exclusively for private noncommercial purposes.

3.

Preexisting towers or antennas. Preexisting towers and preexisting antennas shall not be required to meet the requirements of this section.

4.

Proposed communications equipment co-locating [collocating] on existing towers and structures without addition to their height shall not be subject to the requirements of this section.

5.

Proposed small wireless facilities that conform to the requirements established in section 11.7.2.

D.

General conditions.

1.

A freestanding or guyed communication tower may only be located in the following zoning districts: GC, OI, LI, HI, PD, Flex1.

2.

The height of a freestanding or guyed communication tower must not exceed:

a.

Three hundred feet in the LI, light industrial district; HI, heavy industrial district; unless a special exception permit is granted by the Berkeley County Board of Zoning Appeals.

b.

Two hundred feet in the GC, general commercial district; unless a special exception permit is granted by the Berkeley County Board of Zoning Appeals.

c.

One hundred fifty feet in the OI, office institutional district; F-1 [Flex1], agricultural district; unless a special exception permit is granted by the Berkeley County Board of Zoning Appeals.

d.

A tower and/or antenna mounted on an existing building, water tank, or structure other than a freestanding or guyed tower must not extend more than 20 feet above the highest part of the structure.

3.

All conditions listed under the specific zoning district shall be met.

4.

Setbacks.

a.

Minimum setback from residential structures/districts. One foot setback for each foot in height of the proposed tower, plus 50 feet measured from the base of the tower.

(1)

In the case of a tower and/or antenna on a building, the setback shall be measured from the base of the building.

(2)

This requirement may be waived by the owner(s) of the residential structure.

b.

Minimum setback for fall zone. A communication tower must be located such that adequate setbacks are provided on all sides to prevent the tower's fall from encroaching onto adjoining properties (the fall zone shall be determined by an engineer certified by the State of South Carolina in a letter which includes the engineer's signature and seal).

5.

Historic and scenic property. A communication tower must not adversely affect any property listed in the National Register of Historic Places, or any road or river which had been officially designated as a scenic road or river. In addition, a communication tower must not be located so as to conflict with the requirements of article 10: Special Areas.

6.

Co-location [collocation].

a.

Certification of unavailability of existing towers for co-location [collocation]. For the purpose of co-location [collocation] review, the applicant shall submit satisfactory written evidence (such as correspondence, agreements, contracts, etc.) that alternative towers, buildings, or other tall structures are not available for use within the tower applicant's tower site search area that are structurally capable of supporting the intended antenna or meeting the applicant's necessary height criteria, providing a location free of interference from other communication towers, or available at the prevailing market rate (as determined by county staff communication with persons doing business within the industry).

b.

Future co-location [collocation] opportunity. A communication tower shall be constructed for future co-location [collocation] opportunity subject to engineering capabilities of that design. The tower's owner must submit documentation of his/her willingness to allow other users to co-locate [collocate] on the tower at the prevailing market rate (as determined by county staff communication with persons doing business within the industry).

7.

Screening. A minimum of a six-foot nonclimbable fence shall be placed around the tower and any associated building. Guy wires may be fenced separately.

8.

Lighting. A communications tower shall only be illuminated as required by the Federal Communications Commission or the Federal Aviation Administration. Nighttime strobe lighting shall not be incorporated unless required by the Federal Communications Commission, Federal Aviation Administration, or other regulatory agency.

9.

Signage. A communication tower shall not include signs on any portion of the tower, except as is required by applicable state or federal law, rule, or regulation. However, signs for the purpose of identification, warning, emergency function or contact may be placed as required by standard industry practices.

10.

Aesthetics. Towers and antennas shall meet the following requirements.

a.

Applicants must provide camouflaging such as manmade trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camouflage or conceal the presence of antennas or towers, or provide documentation as to why camouflage is not feasible.

b.

The tower shall either maintain a galvanized steel finish or meet the applicable standards of the FAA. If the tower is not to be camouflaged by an alternative tower structure, the tower is to be painted a neutral color so as to reduce visual obtrusiveness.

c.

Whether a tower is camouflaged or not at a tower site, the design of the buildings and related structures shall, to the extent possible, use materials, colors, textures, screening, and landscaping that will blend them into the natural setting and surrounding buildings.

d.

If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be a neutral color that is identical to or closely compatible with the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible.

e.

Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible.

11.

State or federal requirements. All towers must meet or exceed current standards and regulations of the FAA, the FCC and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this section shall bring such towers and antennas into compliance with such revised standards and regulations within six months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense.

12.

Building codes; safety standards. To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes. If, upon inspection, the county concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have 30 days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said 30 days shall constitute grounds for the removal of the tower or antenna at the owner's expense.

13.

Minimum distance between towers. Separation distances between towers shall be applicable to and measured between the proposed tower and preexisting towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower.

E.

Application requirements. An application for a building permit for a communications tower shall include the following information:

1.

A scaled site plan showing the location of the tower, guy anchors (if any), buildings and other structures or improvements, parking, driveways, and fences. Adjacent land uses shall also be noted on the site plan, with precise measurements noted between the proposed tower and any surrounding residential structures.

2.

Elevation drawing(s) shall clearly show the height and design of the tower, and the materials to be used, including color.

3.

Documentation indicating that co-location [collocation] on existing towers or buildings in the vicinity of the proposed tower was attempted by the applicant but found unfeasible, with reasons noted.

4.

Documentation showing the structural capability of the communication tower to accommodate co-location [collocation] and the willingness of the tower owner to allow co-location [collocation] on the tower.

5.

Inventory of existing sites. Each applicant for an antenna and/or tower shall provide to the zoning administrator an inventory of its existing towers, antennas or sites approved for towers or antennas that are either within the jurisdiction of the county or within one mile of the border thereof, including specific information about the location, height and design of each tower. The zoning administrator may share such information with other applicants applying for administrative approvals or conditional use permits under this section or other organizations seeing [seeking] to locate antennas within the jurisdiction of the county; provided, however that the zoning administrator is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.

6.

Any other information as requested by staff or by the board of zoning appeals to allow adequate review of approval criteria, including a line of sight analysis showing potential visual and aesthetic impacts. For instance, photographs may be required with the tower superimposed to assess visual impact. Additionally, the proposed tower's FAA study number may be required.

F.

Conditionally approved uses.

1.

General. The following provisions shall govern the issuance of conditional use permits for towers or antennas either as primary or accessory uses.

a.

The zoning administrator shall review the application and determine if the proposed use complies with the conditions outlined in this section.

b.

The zoning administrator may administratively approve the uses listed in this subsection.

c.

Upon receipt of a completed application for a communication tower, building permit and all requested documentation, the county planning and zoning, building and codes, and engineering departments shall review the application. Each department shall have a maximum of 30 days each to act on the application. Staff's failure to act on the application within 90 days will result in the applicant being granted a building permit unless the applicant's obligation to provide requested information as specified by this ordinance and/or the zoning administrator, the chief building official, county engineer, or their designee is not met.

2.

List of conditionally approved uses.

a.

Locating antennas on existing structures with modifications consistent with the general conditions listed in this section and provided that:

(1)

The antenna, as measured from the lowest grade, does not extend more than the maximum allowed building height for the zone wherein the structure is located.

(2)

The antenna complies with all applicable FCC and FAA regulations.

(3)

The antenna complies with all applicable building codes.

b.

Locating antennas on existing towers with modifications made consistent with the general conditions listed in this section and provided co-location [collocation] is accomplished in a manner consistent with the following:

(1)

Any tower modifications or reconstructions to accommodate the co-location [collocation] of an additional antenna is of the same tower type as the existing tower, unless the zoning administrator allows reconstruction as a monopole.

(2)

An existing tower may be modified or rebuilt to a taller height provided that it does not exceed the maximum allowed tower height established by the applicable zoning district.

(3)

A tower which is being rebuilt to accommodate the co-location [collocation] of an additional antenna may be moved on-site within 50 feet of its existing location, provided only one tower will remain on the site.

c.

Locating new towers consistent with the general conditions listed in this section and the following:

(1)

Proposed tower does not exceed the maximum tower height established by the applicable zoning district.

(2)

Proposed tower is not closer in proximity to adjacent towers than allowed.

(3)

Zoning administrator has certified that co-location [collocation] with an existing tower or attachment to an existing structure is not feasible.

(4)

Proposed tower is to be built using monopole, guyed, or lattice construction.

G.

Special exception uses.

1.

General. The following provisions shall govern the issuance of special exception permits for towers or antennas either as primary or accessory uses by the board of zoning appeals.

a.

If the tower or antenna is not an exempt use listed under subsection C or a conditionally approved use listed under subsection F of this section, then a special exception permit shall be required for the construction of a tower or the placement of an antenna.

b.

In granting a special exception permit, the board of zoning appeals may impose conditions to the extent that the board of zoning appeals concludes such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties.

c.

Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certified by a licensed professional engineer.

2.

Towers. Factors considered in granting special exception permits for towers. In addition to the general conditions required for consideration, the board of zoning appeals shall consider the following:

a.

Proposed tower does not exceed the maximum height established by the applicable zoning district.

b.

Proximity of the tower to residential structures and residential district boundaries. Towers shall be a minimum of 500 feet from existing residential, public, school, or church areas.

c.

Nature of uses on adjacent and nearby properties.

d.

Design of the tower.

e.

Availability of suitable existing towers, other structures, or alternative technologies not requiring the use of towers or structures. Availability of suitable existing towers, other structures or alternative technology. No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the board of zoning appeals that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant's proposed antenna. An applicant shall submit information requested by the board of zoning appeals related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant's proposed antenna may consist of any of the following (although nothing should be construed to infer that meeting one, some or all of the following shall entitle the applicant to approval):

(1)

No existing towers or structures are located within the geographic area which meet applicant's engineering requirements.

(2)

Existing towers or structures are not of sufficient height to meet applicant's engineering requirements.

(3)

Existing towers or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment.

(4)

The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna.

(5)

The fees, costs or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower development by 25 percent are presumed to be unreasonable.

(6)

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

(7)

The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a cable microcell network using multiple low-powered transmitters/receivers attached to a wireline system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable.

f.

Minimum distance between towers. Separation distances between towers shall be applicable for and measured between the proposed tower and preexisting towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower.

(1)

Minimum distance between towers may be waived if applicant documents that existing towers in the area are incapable of supporting their equipment from a structural standpoint.

(2)

Minimum distance between towers may be waived if applicant documents that transmission equipment on existing towers in the area would result in interference and impede their ability to transmit.

(3)

Minimum distance between towers may be waived if applicant documents that the owner(s) of existing towers in the area refuses to make the tower space available at prevailing market rates for the Berkeley-Charleston-Dorchester market.

g.

The board of zoning appeals may waive or reduce the burden on the applicant of one or more of these criteria if the board concludes and documents that the goals of this section are better served thereby.

H.

Tower abandonment. A communication tower that is not used for communication purposes for more than 120 days (with no new application on file for any communication user) is presumed to be out of service and the owner of such tower must notify the staff and remove the tower within 60 days.

(Ord. No. 04-11-68, 11-23-2004; Ord. No. 19-10-52, 10-28-2019)

11.7.2. Small wireless facilities.

A.

Definitions.

1.

"Antenna" means communication equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.

2.

"Applicable codes" means uniform building, energy, electrical, plumbing, mechanical, gas, and fire codes in S.C. Code tit. 6, ch. 9, local amendments to those codes authorized by state law, and local codes or ordinances which impose requirements defined herein, including objective design and concealment standards to regulate location, context, material, color, stealth and concealment standards on a uniform and nondiscriminatory basis.

3.

"Applicant" means any person who submits an application to the county and is a wireless services provider or a wireless infrastructure provider.

4.

"Application" means a request submitted by an applicant for a permit to (i) collocate small wireless facilities; or, (ii) construct, install, maintain, operate, replace or modify a utility pole or wireless support structure.

5.

"Cable, communications, fiber, utility, or electric easement" means an easement, granted to a cable or video service provider, a communications service provider (including without limitation a telephone utility), a fiber optics cable services provider, a public water, sewer, and/or stormwater utility provider, or an electric services provider created or authorized by state law to provide such services, that runs parallel to and abuts or within a rights-of-way and is occupied by existing utility poles or wireless support structures carrying electric distribution lines, wires, cable, conduit, fiber optic cable for telecommunications, cable or electric service or supporting county street lights, or security lights. The term cable, communications, fiber or electric easement excludes easements for service drops or lines connecting the customer's premises to the cable, communications, fiber or electrical provider.

6.

"County-owned pole" means (i) a utility pole owned, operated, and/or maintained by the county in covered areas, including a utility pole that provides lighting or traffic control functions, or other law enforcement functions, including light poles, traffic signals, and structures for signage, and (ii) a pole or similar structure owned or operated by the county in a covered area that supports only wireless facilities. The term does not include a utility pole owned or operated by and accounted for as an asset of a county electric utility.

7.

"Collocate" means to install, mount, maintain, modify, operate, or replace one or more wireless facilities on, under, within, or adjacent to an existing wireless support structure or utility pole located in covered areas within the jurisdiction of the county. "Collocation" has a corresponding meaning.

8.

"Covered areas" means the surface of, and the space above and below, any public "rights-of-way," "ROW," "county rights-of-way," "public rights-of-way," "cable, communications, fiber, utility, or electric easement," provided that the location/collocation of small wireless facilities is not otherwise prohibited in said easements, and applicable "private property" in which the standards of this section are met and as those terms are defined herein.

9.

"Day" means calendar day unless the last day for the county or an applicant to take action under this section ends on a weekend, holiday, or time when all but county emergency services are closed due to weather or some unforeseen situation.

10.

"Decorative pole" means a utility pole specially designed and placed for aesthetic purposes and on which no appurtenances or attachments, other than specially designed informational or directional signage or a temporary holiday or special event attachments, have been placed or are permitted to be placed according to nondiscriminatory county practices.

11.

"Department" means the Berkeley County Planning and Zoning Department.

12.

"Design district" means an area that is zoned, or otherwise designated by county ordinance, and for which the county maintains and enforces unique design and aesthetic standards on a uniform and nondiscriminatory basis.

13.

"Fee" means a one-time charge.

14.

"Historic district" means an area that is zoned or otherwise designated as a historic district under county, state or federal law and for which the county maintains and enforces unique design and aesthetic standards on a uniform and nondiscriminatory basis.

15.

"Micro wireless facility" means a small wireless facility that meets the following qualifications: (i) is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height; and, (ii) any exterior antenna is no longer than 11 inches.

16.

"Person" means an individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including the county.

17.

"Private property" refers to property located in unincorporated Berkeley County that is privately-owned and maintained.

18.

"Rate" means a recurring charge.

19.

"Rights-of-way" or "ROW" or "county rights-of-way" or "public rights-of-way" means that area on, below, or above a public roadway, highway, street, sidewalk, alley dedicated to, managed, or controlled by the county, county or the state, but not including a federal interstate highway, in the county.

20.

"Roadway maintenance authority" means the South Carolina Department of Transportation (SCDOT) or the Berkeley County Roads and Bridges Division, whichever possesses public right-of-way maintenance authorities.

21.

"Small wireless facility" means a wireless facility that meets both of the following qualifications: (i) each antenna is located inside an enclosure of no more than six cubic feet in volume, or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of not more than six cubic feet; and (ii) all other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meter, concealment elements, telecommunications demarcation box, ground-based enclosures, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for the connection of power and other services.

22.

"Transmission pole" means a pole or similar structure that is used in whole or in part to carry electric transmission (as opposed to distribution) lines.

23.

"Underground district" means an area that is designated herein or by ordinance, that prohibit installing above ground structures in a covered area and for which the county maintains and enforces standards on a uniform and nondiscriminatory basis.

24.

"Utility pole" means a pole or similar structure that is used in whole or in part for the purpose of carrying electric lines or cables or wires for telecommunications, cable or electric service, or for lighting, traffic control devices, traffic control or directional signage, or a similar function regardless of ownership, including county-owned poles. Such term shall not include structures supporting only wireless facilities, nor shall it include wireless support structures.

25.

"Waiver" means administrative relief granted at the discretion of the zoning administrator or designee when a request is made by an applicant in writing. The zoning administrator or designee shall not issue a waiver that would nullify the intent or purpose of this chapter.

26.

"Wireless facility" means equipment at a fixed location that enables wireless services between user equipment and a communications network, including: (i) equipment associated with wireless communications; (ii) radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. The term includes small wireless facilities. The term does not include the structure or improvements on, under, or within which the equipment is collocated, wireline backhaul facilities, coaxial or fiber optic cable that is between wireless support structures or utility poles or coaxial or fiber optic cable that is otherwise not immediately adjacent to, or directly associated with, an antenna.

27.

"Wireless infrastructure provider" means any person including a person authorized to provide telecommunications service in the state, that builds, installs or maintains utility poles, wireless communication transmission equipment, wireless facilities or wireless support structures.

28.

"Wireless services" means any services provided using licensed or unlicensed spectrum, including the use of wi-fi, whether at a fixed location or mobile, delivered to the public using wireless facilities.

29.

"Wireless services provider" means a person who provides wireless services.

30.

"Wireless support structure" means a freestanding structure, such as a monopole or, other existing or proposed structure designed to support or capable of supporting wireless facilities. Such term shall not include a utility pole.

B.

Purpose and scope.

1.

The purpose of this section is to provide policies and procedures for the placement of small wireless facilities in covered areas within the jurisdiction of the county.

2.

It is the intent of this section to establish uniform standards including, but not limited to:

a.

Prevention of interference with the use of streets, sidewalks, alleys, parkways, traffic light poles or other light poles, and other public ways and places; and

b.

Prevention of visual and physical obstructions and other conditions that are hazardous to vehicular and pedestrian traffic; and

c.

Prevention of interference with other facilities and operations of facilities lawfully located in covered areas or public property; and

d.

Preservation of the character of neighborhoods where facilities are installed; and

e.

Preservation of the character of historic structures, or historic neighborhoods, including but not limited to such structures or neighborhoods listed on the National Register of Historic Places or locally designated Historic Districts; and

f.

Facilitation of the rapid deployment of small wireless facilities to provide the citizens with the benefits of advanced wireless services.

C.

Permitted use; application process and fees.

1.

Permitted use and consent. Collocation of a small wireless facility on an existing utility pole or wireless support structure, or a new or modified utility pole or wireless support structure installed in a covered area shall be a permitted use, subject to administrative review, conditions, and other requirements found herein. In accord with Article VIII, Section 15 of the State Constitution and related county code and ordinance provisions, the county consents to the use of public rights-of-way by permit holders acting in compliance with this section.

2.

Permit required. No person shall place a small wireless facility in a covered area without first filing a small wireless facility application and obtaining a permit, except as otherwise provided in this section.

3.

Permit applications. All small wireless facility applications filed pursuant to this section shall be on a form, paper or electronic, as required by the county. The applicant may designate portions of its application materials that it reasonably believes contain proprietary or confidential information as "proprietary" or "confidential" by clearly marking each page of such materials accordingly, and the county shall endeavor to protect materials so designated from public disclosure to the fullest extent permitted by state law.

4.

Application requirements. The small wireless facility permit application shall be made by the applicant, or its duly authorized representative as noted in a notarized statement from a person with the applicant with authority to make such an authorization, and shall contain the following:

a.

The applicant's name, address, telephone number and e-mail address; and

b.

Facility owner's name, address, telephone number and email address, if different from applicant; and

c.

Intended facility use: owner-operated or owner-leased capacity; and

d.

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

e.

A general description of the proposed scope of work for the collocation of the small wireless facility. The scope and detail of such description shall be appropriate to the nature and character of the work to be performed, with special emphasis on those matters, including, but not limited to, sub-surface utilities, likely to be affected or impacted by the work proposed; and

f.

Identification of any consultant that is acting on behalf of the applicant and that is authorized to speak with the county, or a designee of the county, on the area of consultation for the applicant even if the applicant cannot be available; and

g.

Verification from an appropriate representative of the applicant that the small wireless facility shall comply with all applicable codes; and

h.

Verification of payment of the annual county consent or administrative fee for telecommunications companies to use public rights-of-ways pursuant to S.C. Code § 58-9-2230; and

i.

Verification of local business license, if applicable; and

j.

Evidence the applicant is duly authorized to do business in South Carolina; and

k.

Evidence the applicant has received any necessary certificate of public convenience and necessity or other required authority from the South Carolina Public Service Commission or the Federal Communications Commission or evidence that it is not required; and

l.

A copy of an approved encroachment permit and all documents required as part of the encroachment permit application, by the applicable roadway maintenance authority, if the proposed location is within a public right-of-way; and

m.

If the small wireless facility is proposed to collocate on a utility pole or locate within an easement or right-of-way that is owned, managed, and/or operated by an entity other than those identified in section 11.7.2c(4)(1), a statement that the applicant has a lease, attachment agreement, or other authorization from the applicable entity who possesses ownership and/or maintenance responsibilities of the easement and/or utility pole affected by the proposed collocation/location; and

n.

If the small wireless facility is proposed to locate on private property, the applicant shall provide to the department a lease or other written authorization from the affected property owner(s); and

o.

Any building construction and/or trades permits required by the Berkeley County Building and Codes Department have been applied for and issued concurrent with approval of the small wireless facility permit application.

5.

Routine maintenance and replacement. An application shall not be required for the following maintenance and replacement activities, provided that the applicant obtains any required authorizations to conduct work within the covered area by the entities possessing ownership and/or maintenance authorities over underlying easements and/or rights-of-way prior to doing so:

a.

Routine maintenance;

b.

The replacement of a small wireless facility with another small wireless facility that is substantially similar or smaller in size, weight, and height; or

c.

The installation, placement, maintenance, operation, or replacement of micro wireless facilities that are strung on cables between existing utility poles and/or wireless support structures in compliance with the national electrical safety code by a wireless services provider or a wireless infrastructure provider that is authorized to occupy the public rights-of-way and that is remitting a consent, franchise, or administrative fee pursuant to S.C. Code § 58-9-2230.

6.

Information updates. Any amendment to information contained in a permit Application shall be submitted in writing to the county within ten business days after the change necessitating the amendment.

7.

Consolidated application. An applicant seeking to collocate multiple small wireless facilities may, at the applicant's discretion, file a consolidated application and receive a single permit for up to 20 small wireless facilities. Provided, however, the county's denial of any site or sites within a single application shall not affect other sites submitted in the same application. The county shall grant a permit for any and all sites in a single application that it does not deny subject to the requirements established herein.

8.

Application fees. Unless otherwise provided by law, and except as to telecommunication companies exempted pursuant to S.C. Code § 58-9-2230, all applications for permits pursuant to this section shall be accompanied by a fee in the amount set forth in section 47-1 of the Berkeley County Code of Ordinances (as amended). For clarity, any applicant that pays either a franchise, consent fee, or administrative fee pursuant to the requirements of S.C. Code § 58-9-2230 shall not be required to pay any building permit fee, zoning permit fee, encroachment fee, degradation fee, or any other fee assessed on a telecommunications provider for its occupation of or work within the ROW.

9.

Interference with public safety equipment. A small wireless facility shall be operated and maintained in a manner that does not interfere with public safety (police, traffic control, fire and emergency services) equipment.

D.

Action on permit application.

1.

Review of small wireless facility applications. The county shall review the application for a small wireless facility permit for conformity with applicable requirements of this section, and shall issue a permit on nondiscriminatory terms and conditions subject to the following requirements:

a.

Within ten days of receiving an application, the county must determine and notify the applicant whether the application is complete; or if an application is incomplete, the county must specifically identify the missing information.

b.

Make its final decision to approve or deny the application within 45 days of submission of a completed application.

c.

Notify the applicant in writing of its final decision, and if the application is denied, specify the basis for a denial, including citations to federal, state or local code provisions and/or statutes on which the denial was based.

d.

Notwithstanding an initial denial, the applicant may cure the deficiencies identified by the county and resubmit the application within 30 days of the denial, and the county shall approve or deny the revised application within 30 days of receipt of it. The subsequent review by the county shall be limited to the deficiencies cited in the original denial.

2.

Review deadline. If the county fails to act on an application within the 45 day review period (or within the 30 day review period for an amended application), the applicant may provide written notice that the time period for acting has lapsed. If the county fails to respond to this written notice or complete review of the application within 15 days of this written notice, then the application is deemed approved.

3.

Review of eligible facilities requests. Notwithstanding any other provisions of this section, the county shall approve and may not deny applications that constitute eligible facilities requests for modification of an eligible support structure that does not substantially change the physical dimensions of such structure as provided in 47 CFR 1.40001, within 60 days according to the procedures established under 47 CFR 1.40001(c).

4.

Compensation. Subject to the limitations set forth in § 11.7.2(C)(8) herein, every permit shall include as a condition the applicant's agreement to pay such lawful franchise fees, business license taxes, administrative fees and consent fees as are permitted under applicable state and federal law. The applicant shall also pay all applicable ad valorem taxes, service fees, sales taxes, or other taxes and fees as may now or hereafter be lawfully imposed on other businesses within the county.

E.

Requirements for small wireless facilities in covered areas.

1.

Administrative review. The county shall perform an administrative review of permit applications including the location or installation of new, modified, or replacement utility poles and/or wireless support structures and the attachment of wireless facilities and equipment on utility poles or wireless support structures as stated herein. Review factors, in addition to location, shall include the size, shape, color, texture, and materials of the structures and attachments.

a.

The zoning administrator or designee may require a proposed wireless facility be designed to not be significantly more readily-apparent or plainly visible (to a reasonable person of ordinary sensibilities) from covered areas than existing utility structures, poles and equipment located within 500 linear feet on the same covered area as the subject utility pole or wireless support structure.

b.

Where small wireless facilities are determined to be appropriate, the use of reasonable stealth and concealment treatments, low profile equipment and control boxes, and screening may be required to avoid significant negative impacts on the character and visual aesthetics of the area. However, such requirements may be waived by the zoning administrator or designee upon a showing that the particular location of a small wireless facility does not warrant stealth or concealment treatments or imposes an excessive expense. The waiver shall be granted or denied within 45 days after the date of the request.

c.

Supplemental review districts identified in § 11.7.2(E)(3) and listed in Appendix A may be subject to a higher level of review.

2.

Maximum size of permitted use.

a.

The height of an antenna of a collocated small wireless facility shall be limited to the greater of ten feet above either of the two:

1.

The height of an existing or modified utility pole or wireless support structure; or

2.

The height of a new or modified utility pole, or wireless support structure, provided it is limited in height in accordance with the criteria below:

a.

The tallest utility pole, excluding transmission poles, or wireless support structure located in the same covered area, measured from grade, in place within 500 linear feet on the same covered area as the subject utility pole or wireless support structure as of the effective date of this ordinance; or

b.

In the absence of any such utility pole or wireless support structure, either (i) 40 feet in any area zoned or used exclusively for residential use, unless a waiver is granted for good cause shown, or (ii) 50 feet in any other area.

b.

Collocation is not allowed on a decorative pole less than 20 feet in height.

3.

Supplemental review districts. Collocated small wireless facilities and new or modified utility poles or wireless support structures located in supplemental review districts shall be a conditional use and subject to the design and aesthetic requirements and review processes for structures specified in this section establishing the supplemental review district(s) in addition to the requirement of this section, provided that the county will work in good faith with the applicant to accommodate the installation of collocated small wireless facilities and new or modified utility poles or wireless support structures in supplemental review districts to the fullest extent practicable. The county reserves its right to maintain and implement the following types of supplemental review districts.

a.

Underground districts. A wireless services provider or a wireless infrastructure provider shall comply with nondiscriminatory requirements that prohibit electric utilities, telecommunications or cable providers from installing above-ground structures in the covered area in these districts. Nothing in this section shall prohibit the use or replacement of existing utility poles or wireless support structures in underground districts for the collocation of small wireless facilities subject to administrative review by the zoning administrator, appropriate design and concealment and a finding that such use does not increase the height by more than three feet.

1.

Location of underground districts: underground districts include those areas within the covered area in which electric utilities are located underground or are planned to be located underground.

b.

Historic and design districts. As a condition for approval of new small wireless facilities or new wireless support structure in a historic district or a design district, the zoning administrator or designee may require that a wireless services provider or a wireless infrastructure provider comply with the design and aesthetic standards of the historic district or design district to minimize the impact to the aesthetics in a historic district or on a design district's decorative poles. If design and concealment treatments are determined on review by the zoning administrator or designee to be insufficient to mitigate harm to the historic district or design district, the application may be denied. This section may not be construed to limit Berkeley County's authority to enforce historic preservation zoning regulations consistent with the preservation of local zoning authority under 47 U.S.C. Section 332(c)(7), the requirements for facility modifications under 47 U.S.C. Section 1455(a), or the National Historic Preservation Act of 1966 (54 U.S.C. Section 300101 et seq.), and the regulations adopted to implement those laws.

4.

Appeals, special exceptions and variance requirements. Appeals of administrative decisions and requests for special exception(s) and variance(s) from the provisions of this section, when strict application would result in an unnecessary hardship or in the inability to deploy needed small wireless facilities, shall be heard and decided by the board of zoning appeals (BZA) in accordance with the requirements and procedures set forth in article 21 and section 11.2 as applicable. An applicant seeking a special exception to construct a new decorative pole, utility pole or other wireless support structure to collocate a small wireless facility in an underground district shall demonstrate, including certification through an engineer, that it has diligently attempted to locate the proposed decorative pole, utility pole, wireless support structure, or small wireless facility outside of the underground district and that placement of the decorative pole, utility pole, wireless support structure, or small wireless facility within the underground district is necessary to provide the needed wireless coverage or capacity, and one or more of the following conditions exist supporting a special exception:

a.

No existing utility pole or wireless support structure is located within the location search radius or to the extent a utility pole or wireless support structure is located within the search radius, such utility pole or wireless support structure:

1.

Is not available for collocation under commercially reasonable rates, terms, and conditions;

2.

Cannot accommodate the collocation of the small wireless facility and meet the technical requirements necessary to deliver adequate wireless service coverage or capacity; or

3.

Would require modifications exceeding the three feet height limitation imposed in section 11.7.2(E)(3).

b.

The only available option to deliver adequate wireless service coverage or capacity in the search radius requires modifications to an existing utility pole or wireless support structure exceeding the three feet height limitation imposed in section 11.7.2(e)(3) or the installation of a new utility pole or wireless support structure for collocation of a small wireless facility, or

c.

The applicant has demonstrated other circumstances that, in the reasonable discretion of the board of zoning appeals (BZA), warrant a special exception or variance.

d.

The applicant shall abide by the design, stealth and concealment treatments imposed as conditions of the special exception.

5.

Existing supplemental review districts. Nothing in this section shall prohibit or otherwise limit the county from establishing additional supplemental review districts, provided however, that facilities and structures for which a permit was approved or deemed approved pursuant to this section prior to the establishment of the additional supplemental review district remain subject to the provisions of this section, including routine maintenance and replacement of those facilities and structures as set out in section 11.7.2(E)(3) of this section, and not to any provisions otherwise applicable to the additional supplemental review district. If a wireless services provider or a wireless infrastructure provider voluntarily replaces such facilities in a manner that does not comply with section 11.7.2(e)(3) of this section, or if a wireless services provider or a wireless infrastructure provider voluntarily relocates such facilities, such replacement or relocation is subject to the then-existing provisions and requirements of the additional supplemental review district.

6.

Repair of damage. A wireless services provider or a wireless infrastructure provider shall repair all damage to a county right-of-way directly caused by the activities of the wireless services provider or the wireless infrastructure provider, while occupying, installing, repairing, or maintaining wireless facilities, wireless support structures, county utility poles, or utility poles and to return the right-of-way to its functional equivalence before the damage. If the wireless services provider or the wireless infrastructure provider fails to make the repairs required by the county within 45 days after written notice, unless the county and the wireless services provider or the wireless infrastructure provider agree in writing to a longer time period, the county may undertake those repairs and charge the applicable party the reasonable and documented cost of the repairs. The county may maintain an action to recover the costs of the repairs.

F.

Effect of permit.

1.

Authority granted: No property right or other interest created. A permit from the county authorizes an applicant to undertake only certain activities in accordance with the section and does not create a property right or grant any authority whatsoever to the applicant to impinge upon the rights of others who may already have an interest in the covered area.

2.

Duration. Unless construction has actually begun and is diligently pursued to completion at that point, no permit for construction issued under this section shall be valid for a period longer than 12 months unless both county and applicant agree to a reasonable extension and all required fees are paid for the term regardless of construction. The inability of the applicant to obtain electrical power or backhaul transport services to serve the wireless facility such that it is operational within the 12 months due to the action or inaction of third-party utility providers shall not result in the invalidity of the permit.

G.

Removal, relocation or modification of a small wireless facility in the ROW.

1.

Notice. Within 90 days following written notice from the county, a wireless services provider or a wireless infrastructure provider shall, at its own expense, protect, support, temporarily or permanently disconnect, remove, relocate, change or alter the position of any wireless facilities or wireless support structures within the rights-of-way whenever the county, in its reasonable discretion, has determined that such removal, relocation, change or alteration, is reasonably necessary for the construction, repair, maintenance, or installation of any county improvement in or upon, or the operations of the county in or upon, the rights-of-way.

2.

Emergency removal or relocation of facilities. The county retains the right to cut or move any wireless facility or wireless support structure located within its rights-of-way as the county, in its reasonable discretion, may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. If circumstances permit, the county shall notify the wireless services provider or the wireless infrastructure provider and provide opportunity to move its own wireless facilities or wireless support structure prior to the county cutting or removing a wireless facility or wireless support structure and the county shall notify the wireless services provider or the wireless infrastructure provider after cutting or removing a wireless facility.

3.

Abandonment of facilities. Upon abandonment of a wireless facility or wireless support structure within the county rights-of-way, the wireless services provider or the wireless infrastructure provider shall notify the county within 90 days of such abandonment. Following receipt of such notice the county may direct the wireless services provider or the wireless infrastructure provider to remove all or any portion of the wireless facility or wireless support structure if the county, in its sole discretion, determines that such removal will be in the best interests of the public health, safety, and welfare.

4.

Abandonment by inaction. At any point when a wireless services provider or a wireless infrastructure provider fails to pay any required fee, or annual payment to the county, and fails to respond within 60 days to a written inquiry from the county as to whether the wireless services provider or the wireless infrastructure provider intends to continue to operate a wireless facility or wireless support structure, for whatever reason, the wireless facility shall be deemed abandoned and the county may, at its sole option, remove all or any portion of the wireless facility or wireless support structure, or take other action as authorized by law, including recovery of actual costs incurred in removing the wireless facility or wireless support structure.

H.

Attachment to county-owned utility poles in the covered areas.

1.

Annual rate. The rate to place a small wireless facility on a county-owned pole in covered areas shall be $50.00 per year per wooden pole or $200.00 per year for all other county-owned poles. This rate is in addition to reimbursement to the county for any expenses for make-ready work. The county reserves the right to require a pole attachment agreement to further define the terms and conditions of attachments to county-owned poles. The rates specified in this section shall not apply to poles owned, or operated and accounted for as an asset of, a county electric utility.

2.

Cease payment. A wireless services provider or a wireless infrastructure provider is authorized to remove its facilities at any time from a county-owned pole in covered areas and cease paying the annual rate to the county as of the next due date for payment following the removal.

3.

Make-ready. For county-owned utility poles in covered areas, the applicant shall reimburse the county for expenses for any reasonable make-ready work. The county shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested small wireless facility, including pole replacement if necessary, within 60 days after receipt of a completed request. Make-ready work including any pole replacement shall be completed within 60 days of written acceptance of the good faith estimate by the wireless services provider or the wireless infrastructure provider.

4.

County utilities excluded. Nothing in this section shall be construed to affect the authority of a county electric utility to deny, limit, restrict, or determine the rates, fees, terms, and conditions for the use of or attachment to a utility pole owned, or operated and accounted for as an asset of, a county electric utility.

(Ord. No. 19-10-52, 10-28-2019; Ord. No. 20-12-50, 12-14-2020)

11.8.1. Storage facility (miniwarehouse).

A.

General conditions.

1.

Facility shall meet all applicable performance standards with regard to lighting, parking lot design, bufferyards, and landscaping as established in articles 10, 14, 15, and 17.

2.

Outdoor storage shall meet the requirements for found in 11.8.2, Outdoor storage (accessory use).

B.

Front setback. Minimum 25 feet from the right-of-way or the district minimum, whichever is greater.

C.

Storage siting. Sites abutting parcels that contain residential-zoning or uses shall orient buildings adjacent to the perimeter so that they face inward with their doors away from such areas.

D.

Building lengths and access. To ensure ease of access for emergency vehicles:

1.

Maximum building length: 300 feet.

2.

Minimum spacing between buildings: Thirty feet.

E.

Accessory office/apartment. One management and/or accessory residence shall be permitted.

F.

Signs. Signs shall not be attached to or displayed on walls or fences used as required screening.

G.

Operating conditions.

1.

The manufacture or sale of any commercial commodity or the provision of any service from the premises is prohibited.

2.

Commercial repairs of autos, boats, motors, furniture, or other items on the premises are prohibited.

3.

Storage of toxic, hazardous, flammable, explosive, or noxious materials is prohibited.

11.8.2. Outdoor storage (accessory use).

A.

Permitted only as an accessory use, which also shall be defined as a detached structure or use subordinate to the main building or use classification that is used for purposes customarily incidental to the principal use.

B.

Outdoor storage activity shall not exceed 25 percent of the total land area of the principal use and does not include the storage of junked and/or salvaged vehicles, equipment, appliances, or materials otherwise known as junk or salvage yards.

C.

The outdoor storage use shall be located to the side or rear of the principal use.

D.

Screening. Open storage shall be enclosed by a continuous eight foot opaque visual screen, constructed of wood, brick, or masonry, and buffered in accordance to the requirements as applicable to the principal use as set forth in article 17.

E.

Materials stored. Materials stored in the open shall not be stacked higher than the required screen.

F.

All operating conditions found in section 11.8.1(G) shall be met.

(Ord. No. 21-01-03, 1-25-2021)

11.9.1. Home occupation.

A.

Accessory use. Home occupations that comply with the regulations shall be allowed as an accessory use to any allowed residential or agricultural principal use.

B.

Prohibited uses.

1.

Vehicle/equipment repair, rental or sales. Any type of repair, rental, sales, or assembly of vehicles or equipment with internal combustion engines (such as autos, motorcycles, scooters, snowmobiles, outboard marine engines, lawn mowers, chain saws, and other small engines) or of commercial appliances (household appliances not included in this definition) or any other work related to automobiles and their parts is prohibited as a home occupation.

2.

Restaurants. Restaurants and food service establishments are not allowed as home occupations.

3.

Employee dispatch centers. Dispatch centers, where employees come to the site to be dispatched to other locations, are not allowed as home occupations.

4.

Animal care or boarding. Animal care or boarding facilities (including animal hospitals, kennels, stables, and all other types of animal boarding and care facilities) are not allowed as home occupations.

5.

Medical clinics, laboratories, research centers, urgent/emergency care, convalescent care, hospitals, facilities providing surgical and procedural diagnostic services, inpatient care, and similar medical facilities.

6.

Funeral home.

7.

Other uses determined by the zoning administrator to have a detrimental effect on the surrounding neighborhood.

C.

Employees. No person who is not a resident on the premises shall be employed specifically in connection with the activity, except that not more than one assistant may be employed by the following home occupations: lawyer, realtor, salesman, and other similar professional occupations.

D.

Customers, clients, and patients. Customers, clients, and patients shall visit the site of a home occupation only during the hours of 6:00 a.m. to 6:00 p.m., and public access to the home occupation shall be provided by a separate exterior entrance that is not visible from the street right-of-way or from an adjacent lot.

E.

Floor area. The total square footage of the home occupation shall not exceed 25 percent of the total floor area of the principal dwelling.

F.

Outdoor activities. No activities associated with the home occupation will be allowed outside the structure in which the home occupation is permitted.

G.

Exterior appearance. There shall be no visible evidence of the conduct of a home occupation when viewed from the street right-of-way or from an adjacent lot. Prohibited alterations include, but are not limited to, construction of parking lots, paving of required setbacks, or use of commercial lighting.

H.

Operational impacts. No major mechanical equipment shall be installed or used for domestic or professional purposes. No home occupation or equipment used in conjunction with a home occupation may cause odor, vibration, excessive noise as defined in section 38.1 - Noise, electrical interference, or fluctuation in voltage that is perceptible beyond the lot line. No hazardous substances may be used or stored in conjunction with a home occupation.

I.

Deliveries. No more than four deliveries or pickups of supplies or products associated with home occupations are allowed per week and shall be made only during the hours of 8:00 a.m. to 6:00 p.m.

J.

Sales. No article, product, or service may be sold in connection with a home occupation, other than those produced on the premises.

K.

Traffic. The home occupation shall not generate greater volumes of traffic than would normally be expected in a residential district. The total vehicle trips generated by the home occupation shall not exceed ten total trips per day (50 percent entering/50 percent exiting) during the typical weekday and weekend.

L.

Parking. All parking associated with a home occupation shall be provided off-street.

M.

Building Code. The portion of the principal or accessory structure that is utilized for the home occupation shall meet all applicable fire and building code requirements, as determined by the chief building official or his/her designee, prior to the commencement of operations and at all times thereafter.

N.

All other regulations. The portion of the principal or accessory structure that is utilized for the home occupation shall meet all applicable tax, health department requirements, and zoning permit requirements prior to the commencement of operations and at all times thereafter.

O.

Any other reasonable development and performance standards imposed by the zoning administrator as a means of ensuring land use compatibility.

(Ord. No. 17-11-43, 11-27-2017)