A.

It is the duty of the city to protect the public health, safety and welfare and the city has the authority to regulate the placement, construction and modification of wireless facilities in the advancement of that duty.

B.

The city commission finds that:

1.

The aesthetic character of the city is a matter of substantial economic importance and general concern to the citizens of the city, as described in the city's adopted growth policy, and is an important part of the public welfare;

2.

Wireless facilities are often visually obtrusive due to their necessary height, support equipment and interruption of the viewscape, and can have substantial negative impacts on the character of the city and its surrounding viewsheds;

3.

The impacts of wireless facilities can be reduced by establishing standards for location, structural integrity, compatibility and collocation;

4.

To reduce visual and other impacts on the community the city desires to promote collocation, use of stealth installations of wireless facilities and the use of smaller less intrusive facilities to minimize the need to construct new large scale wireless facilities;

5.

The city desires to provide clear and consistent regulations for review of proposed wireless facilities;

6.

The city desires to support the ability of telecommunication service providers to deliver such services to the community consistent with other community objectives;

7.

The construction of new large scale wireless facilities is the action of last resort to provide for wireless communication services and should only be undertaken when alternatives are not available;

8.

It is necessary to determine the locations and circumstances most appropriate for placement of wireless facilities to serve the community;

9.

Consistent with applicable law, the city desires to minimize the adverse visual impacts of towers and antennas through careful siting, design, landscape screening and innovative camouflaging screening;

10.

The city seeks to protect against potential health and safety hazards to citizens and prevent damage to adjacent properties;

11.

The city intends to exercise its authority with respect to the regulation of the placement, construction and modification of wireless facilities, to the fullest extent permitted by applicable law;

12.

The city recognizes the need to respond to the policies in the Telecommunications Act of 1996 and has constructed its regulations in a manner that does not unreasonably discriminate between providers of functionally equivalent personal wireless service, and that does not prohibit or has the effect of prohibiting personal wireless service in the city;

13.

The city recognizes that the Federal Communication Commission exercises certain sole authority in the licensing and other regulation of wireless services;

14.

The adequate review of a telecommunications application may require expertise not typically possessed by city staff which would require the city to obtain qualified outside expertise to properly evaluate an application; and

15.

Outside review would generate additional costs to the public to preserve the public interest these costs must be mitigated and should properly be mitigated by those causing such additional costs.

C.

General application. All uses listed in this division 38.370 are subject to the specific standards described for each use, in addition to all other applicable standards which may apply, and are limited to those districts specified. The provisions of this division 38.370 apply to development and modification of large scale wireless facilities, micro-scale wireless facilities, non-broadcast telecommunication facilities and small scale wireless facilities. These and other terms are defined in article 7 of this chapter.

1.

The provisions of this division 38.370 only apply to facilities which meet the definition of a wireless facility or that are otherwise specifically brought under the authority of this division 38.370.

In addition to the materials required by division 38.220 of this chapter for site plans or special use permits, the materials required by section 38.220.170 must be submitted.

(Ord. No. 2124, § 27, 10-18-2022)

A.

Purpose. This section authorizes telecommunication uses in specific districts. Unless specifically exempted by this division 38.370, all other standards and procedures of this chapter must apply.

1.

The Montana Subdivision and Platting Act (MCA 76-3-101 et seq.) may require subdivision review when land interests are created by rent or lease. Depending on how the ownership and use of land for a facility subject to this division 38.370 is established, subdivision review may be required in addition to site plan review.

B.

No wireless facility may be permitted except in accordance with the development review processes indicated in Table 38.370.030 in subsection B.1 of this section, based on the applicable zoning district and scope of the proposed facility. All applications are subject to the review processes, submittal requirements and other requirements of articles 38.230, 38.430 and 38.220 of this chapter as may be applicable.

1.

Review procedures. Uses: P = Principal uses; S = Special uses; A = Accessory uses; — = Uses which are not permitted.

Table 38.370.030

C.

Special review requirements by type.

1.

Special use review is required when the proposed facility exceeds the height limitation of the district.

2.

Collocation upon a previously approved wireless facility, when such additional facilities were contemplated as part of the original review, must be reviewed as a sketch plan in all zones.

3.

A wireless facility may be permitted as an accessory use in any non-residential district when:

a.

It is for the exclusive use of a single on-site business when the business has otherwise been approved under division 38.230 or 38.430 of this chapter, rather than offered to additional parties;

b.

It is in compliance with the maximum building height limitations of the zoning district;

c.

It complies with all setback and other zoning requirements; and

d.

Has eight or less square feet of total antenna surface area.

4.

Installations located within the neighborhood conservation overlay district must be reviewed against the criteria of division 38.340 of this chapter as applicable, and a certificate of appropriateness is required before issuance of a building permit.

5.

Prior to submitting an application for a large scale or small scale wireless facility, the applicant complete a concept review per 38.230 with the community development department. The purpose of the concept review is to acquaint the participants with the applicable requirements of this division 38.370, as well as with any preliminary concerns the department may have.

6.

The applicant's concept review submittal must include the following information with regard to the proposed facility:

a.

Location;

b.

Overall height;

c.

Number of antennas proposed, including those of other providers to be collocated;

d.

Type of wireless communication services to be provided; and

e.

Coordination of ground equipment shelters.

7.

Adequate review of applications may require the city to retain consultants or other third party assistance to review an application. In such event the applicant must reimburse the city for the actual costs incurred prior to issuance of a building permit.

8.

The provisions of division 38.280 of this chapter must apply for all nonconforming facilities subject to this division 38.370.

9.

When demonstrated to be necessary to meet federal requirements for continuity of service in an area.

(Ord. No. 2104, § 18, 9-27-2022; Ord. No. 2124, § 28, 10-18-2022)

A.

Safety. All wireless facilities subject to this division 38.370 must meet the following standards:

1.

The structural design for all wireless facilities greater than ten feet in height or which have more than four square feet of total antenna area must be certified by a professional structural engineer licensed to practice in the state. A building permit must be obtained prior to the installation of any facility subject to this division 38.370.

2.

All wireless facilities must meet or exceed current standards and regulations of the FCC, FAA and any other agency with the authority to regulate wireless facilities. If such standards are changed, the owner must modify the installation to comply with the new standards within six months of the effective date of the new standards or regulations unless a different implementation schedule is required by the issuing agency.

3.

Wireless facilities with a base located at grade must be enclosed within a secure fence not less than six feet in height, or the tower itself must be equipped with an appropriate anti-climbing device.

B.

Aesthetics.

1.

All wireless facilities.

a.

The provisions of section 38.370.040.B may be waived by the review authority as determined by division 38.220 of this chapter where it has been demonstrated that the waiver will result in superior compliance with the intent and purposes of this chapter.

b.

All installations must be as visually unobtrusive as is feasible. Facilities and equipment mounted on existing structures must be visually incorporated into the structure or background by the use of architectural elements, color, screening or other methods.

c.

No lighted signage is permitted.

d.

All structures must be constructed in conformance with the standards of the city's adopted International Building Code.

e.

In addition to landscaping required by division 38.550, visual screening of ground mounted equipment must be provided in all residential areas and where a facility is located within a non-residential area which is visible, from a viewpoint five feet above grade, from a residential area. Screening must provide an opaque screen within 18 months of establishment and be a minimum of four feet in height. The screening may be of landscape materials or a fence which otherwise complies with this chapter. The site must comply with the landscaping provisions of article 5 of this chapter.

f.

Exterior façade materials and the character of equipment shelters used in residential areas must be of materials commonly used in the immediate area. The architectural design of the exterior of the shelter must be compatible with surrounding residential structures. The intent of the requirements of this subsection B.1.f may be met by providing opaque fencing or other visual screening compatible with the neighborhood, in compliance with all other sections of this chapter, which will obscure the entire equipment shelter. The screening must be in place prior to the commencement of operations of the facility.

2.

Preferences. In order to justify the construction of a wireless structure, the applicant must demonstrate that higher ranking alternatives in the following hierarchy, beginning with subsection 2.a.(1) of this section, do not constitute feasible alternatives. The order of preference, from most preferred to least preferred and based on technical feasibility, for new wireless facilities is:

a.

Facility size.

(1)

Micro-scale wireless facilities or collocation on existing large scale wireless facilities;

(2)

Small scale wireless facilities;

(3)

Large scale wireless facilities 50 feet or less in height; and

(4)

Large scale wireless facilities in excess of 50 feet in height.

b.

A facility meeting the definition of stealth, as defined in section 38.700.170 of this chapter, is always preferred over a facility of the same scope which does not meet the definition of stealth. Stealth facilities may be required in historic districts and under other circumstances.

c.

As appropriate, the following evidence may also be submitted to demonstrate compliance with this section:

(1)

That no existing wireless communications facility within the search area meets the applicant's radio frequency engineering or height requirements;

(2)

That no structure within the search area has sufficient structural strength to support the applicant's proposed antennas; or

(3)

That there are other verifiable limiting factors that render collocated or other more preferred options unsuitable or unreasonable.

d.

Self-supporting lattice or guyed structures are generally preferred over monopoles.

3.

Special standards. The following special standards apply as shown in Table 38.370.040:

a.

Stealth installation is required;

b.

Wireless facilities are exempt from the height limitations of section 38.350.050, but are subject to the height limitations of section 38.370.040;

c.

The height limitation of the district may be exceeded by the least amount necessary to provide services, but only when service may not otherwise be provided by a less intensive facility or an alternative site; and

d.

Only allowed when service may not be provided from an alternative site or a less intensive installation or set of installations.

Table 38.370.040

4.

Stealth.

a.

Installations located within the conservation overlay district must be stealth facilities.

b.

A stealth wireless facility may exceed the height limitations of the district by ten feet.

5.

Small scale wireless facilities. All small scale wireless facilities established in the neighborhood conservation district must be installed in such a way as to maintain the historic or architectural character of the host site. All sites must maintain the least possible visual obtrusiveness.

6.

Large scale wireless facilities. No large scale wireless facility will be permitted unless the applicant demonstrates that the proposed facility cannot be accommodated on an existing structure or by placement of a smaller facility. In order to justify the construction of a large-scale wireless facility, the applicant must demonstrate that higher ranking alternatives in the hierarchy, beginning with section 38.370.040.B.2.a.(1), do not constitute feasible alternatives. Such demonstration must be made by submission of a statement of position, qualifications and experience by a licensed radio frequency engineer; and must address the required findings of this section.

a.

If collocation is feasible, the owner of the large scale wireless facility must certify in writing, prior to final permit approval, that the owner will accept for collocation any FCC-licensed or licensing exempt wireless communication provider using compatible technology at reasonable and customary rates and terms up to the structural capacity to accommodate additional antennas. Collocation may be denied based on verifiable and substantial expectations of interference from additional users. Later failure to comply with the requirements supporting collocation may result in the revocation of city approvals or other penalties stipulated by the municipal code as the requirements of the title will have been violated.

b.

The city must find the proposed guarantee, assurances or provisions for the perpetual maintenance and for removal of an abandoned large scale wireless facility to be adequate.

c.

A large scale wireless facility must not either:

(1)

Exceed 190 feet in height; or

(2)

When located east of the alignment of Church Avenue/Sourdough Road and west of the extended alignment of Bozeman Trail Road/Arnica Drive;

(a)

Exceed 100 feet in height when its base elevation is greater than 4,800;

(b)

Exceed 40 feet in height when its base elevation is above 4,850;

(c)

Notwithstanding the provisions of subsections B.6.c.(2)(a) and (b) of this section, these restrictions must not apply for those areas lying east of the extended alignment of Bozeman Trail Road/Arnica Drive and south of Interstate 90.

d.

Where multiple service providers will be utilizing the same ground area and/or support structure, a single structure must be provided to house all ground based equipment.

e.

Special setbacks for large scale wireless facilities must be provided and/or a design for internal structural collapse to avoid damage or injury to adjoining property or users must be provided.

(1)

Residential district setbacks for a large scale wireless facility must be 100 percent of facility height, which may be reduced to no less than 50 percent upon the provision and approval of an engineered design, stamped by a professional structural engineer licensed to practice in the state, establishing a smaller collapse area.

(2)

A large scale wireless facility in non-residential zones must provide a minimum setback from the property lines of 75 percent of facility height, which may be reduced to no less than 30 percent of facility height upon the provision and approval of an engineered design, stamped by a professional structural engineer licensed to practice in the state, establishing a smaller collapse area. Large scale wireless facilities located within non-residential zones, but adjacent to a residential zone or residentially developed areas, must maintain a minimum setback from residential zoning or property boundaries of at least 50 percent of facility height. All installations must maintain the minimum zoning district setbacks, including special setbacks for applicable block frontage in division 38.510 of this chapter.

f.

New large scale wireless facilities greater than 50 feet in height must be designed in all respects to accommodate both the applicant's antennas and antennas for at least two additional users. A new large scale wireless facility may meet this requirement by correctly sizing the foundation and other structural elements to allow the future addition of height to the structure to accommodate additional users rather than immediately constructing the entire large scale wireless facility. This requirement may be waived by the governing body upon a showing of fact to overcome the presumption that multiple transmitters are desirable on the proposed facility.

g.

All large scale wireless facilities 50 feet or greater in height, regardless of the zoning district in which the structure is located, must be located at least one mile, measured in a straight line, from any other large scale wireless facility that is 50 feet or greater in height. An exception to this requirement may be granted by the approval body when it is found and factually supported in the written record that the criteria of subsection B.6.i of this section are met and a critical need exists for the proposed location, or that a closer placement is desirable to advance the intent of this chapter.

h.

A large scale wireless facility greater than 50 feet in height must only be approved when the applicant can demonstrate in writing that no existing or approved micro-scale, small scale or large scale wireless facility within the required separation distance of the proposed site can accommodate the applicant's proposed antenna.

i.

In addition to the other review criteria of this chapter, affirmative findings for at least one of the following items must be made in order for the conditions necessary for approval to exist:

(1)

No existing or proposed structures located within the geographic area are adequate to support the proposed antennas are required to meet the applicant's engineering and service requirements;

(2)

Existing or approved structures are not of sufficient height to meet the applicant's engineering and service requirements and a combination of smaller scale facilities will not provide for adequate service delivery;

(3)

Existing or approved structures do not have sufficient structural strength to support the applicant's proposed antenna and related equipment and cannot be reinforced to provide sufficient structural strength;

(4)

The applicant's proposed antennas would cause electromagnetic interference with the antenna on the existing or approved antenna support structures, or the antenna on the existing or approved antenna support structures would cause interference with the applicant's proposed antenna;

(5)

Property owners' or owners of existing or approved wireless facilities or locations for smaller scale installations are unwilling to accommodate the applicant's needs; or

(6)

The applicant demonstrates that there are other factual and verifiable limiting factors that render existing or approved wireless facilities unsuitable.

j.

Height and number of users. A large scale wireless facility may be reviewed as a multiple phase project and be constructed over time as provided for in section 38.370.040.B. Prior to the approval of a final site plan, or a building permit if it is a latter phase of a phased project, an applicant must provide:

(1)

For the first 70 feet of tower height, for an applicant who is not a wireless service provider, a copy of an executed lease from a wireless service provider of not less than 12 months duration;

(2)

For a height of greater than 70 feet and not more than 110 feet of structure height, one additional executed lease;

(3)

For a height greater than 110 feet, a second additional executed lease;

(4)

Leases may be redacted to remove proprietary information but must identify the parties.

7.

Non-broadcast. A non-broadcast telecommunication facility located within a B-1, B-2, B-2M or B-3 district, a mixed-use district, the neighborhood conservation overlay district or a residential zoning district must be enclosed within a structure. The structure must be of materials and architectural character compatible with the adjacent properties. The facility must comply with all applicable side, front and rear setback setbacks.

C.

Administrative.

1.

An inventory of existing sites utilized by the applicant must be provided. The inventory must note the feasibility of accommodating other users. The city may share this information with other applicants or interested parties to encourage collocation.

2.

The public land and agencies exemption from full compliance with zoning in MCA 76-2-402 does not apply to private entities utilizing publicly owned lands.

3.

Any antennas or antenna support structures not utilized for the provision of wireless services for a continuous period of six months will be considered abandoned. All facilities must be removed within six months of the cessation of operations. If a facility is not removed within six months the city may remove the facility at the facility or landowner's expense. Where multiple users share a facility, the non-operational antennas and associated ground-mounted equipment may be removed, but any common equipment may be retained until all users have terminated the utilization of the site.

4.

Any emergency power supply or other equipment installed at the facility must comply with section 38.520.070.

5.

No facilities which require employees to be present on a routine basis may be established in residential areas, with the exception of periodic maintenance activities, unless the zone allows offices and appropriate review has been completed.

6.

Failure to comply with the terms of this chapter is grounds for facilities to be removed by action of the city at the facility or landowner's expense.

7.

Any modifications to existing wireless sites shall only occur in compliance with the review procedures required in section 38.370.030.

8.

Denial of an application must be made only after the review body has determined that specific criteria of this chapter cannot be met. Said determination must be made in writing and must include the reasons for the denial and the evidence which supports those reasons. Public opposition alone is not sufficient to deny the application.

(Order No. 2018-01, § 14, 4-18-2018; Ord. No. 2124, § 29, 10-18-2022)