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Brooklyn City Zoning Code

CHAPTER 1110

Wireless and Cellular Communication Facilities

1110.01 PURPOSE AND LEGISLATIVE INTENT.

   (a)   The telecommunications act of 1996 affirmed the City authority concerning the placement, construction, and modification of wireless communications facilities.
   (b)   City Council finds that wireless communication facilities may pose a unique hazard to the health, safety, public welfare, and environment of the City and its inhabitants.
   (c)   City Council also recognizes that facilitating the development of wireless service technology can be an economic development asset to the city and of significant benefit to the City and its residents.
   (d)   The City recognizes a specific sub-category of telecommunication provider called Microcell Wireless Internet Service Provider, hereinafter referred to as "MWISP," and high-speed broadband Internet Wireless Communication Facilities are hereinafter referred to as "WCF".
   (e)   In order to ensure that the placement, construction, or modification of Wireless Communications and MWISP Facilities are consistent with the City's land use policies, the City is adopting a single, comprehensive, Wireless Communication Facilities application, and permit process.
   (f)   The intent of this chapter is to minimize the negative impact of Wireless Communications Facilities, establish a fair and efficient process for review and approval of applications, assure an integrated, comprehensive review of environmental impacts of such facilities, and protect the health, safety, and welfare of the City.
(Ord. 2022-34. Passed 1-9-23.)

1110.02 GENERAL REGULATIONS AND PROCEDURES.

   (a)   Title. This section may be known and cited as the Wireless Communication Facilities Siting section for the City.
 
   (b)   Severability.
      (1)   If any word, phrase, sentence, part, section, subsection, or other portion of this chapter or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this chapter, and all applications thereof, not having been declared void, unconstitutional, or invalid, shall remain in full force and effect.
      (2)   Any special use permit issued under this chapter shall be comprehensive and not severable. If part of a permit is deemed or ruled to be invalid or unenforceable in any material respect, by a competent authority, or is overturned by a competent authority, the permit shall be void in total, upon determination by the Planning Commission.
   (c)   Policies and Goals for Special Use Permits for Wireless Communication and MWISP Facilities. In order to ensure that the placement, construction, and modification of Wireless Communication and MWISP Facilities protects the City's health, safety, public welfare, environmental features, and other aspects of quality of life specifically listed elsewhere in this chapter, the Planning Commission hereby adopts an overall policy with respect to a Special Use Permit for Wireless Communication and MWISP Facilities for the express purpose of achieving the following goals:
      (1)   Implementing an application process for person(s) seeking a special use permit for Wireless Communication and MWISP Facilities;
      (2)   Establishing a policy for examining an application for issuing a special use permit for Wireless Communication and MWISP Facilities that is both fair consistent;
      (3)   Establishing reasonable time frames for granting or not granting a special use permit for Wireless Communication and MWISP Facilities, or recertifying or not recertifying, or evoking the Special Use Permit granted under this chapter;
      (4)   Promoting and encouraging, wherever possible, the sharing or co-location of Wireless Communication Facilities among service providers; MWISP does not co-locate; and
       (5)   Promoting and encouraging, wherever possible, the placement, height, and quantity of Wireless Communication and MWISP Facilities in such a manner as to minimize adverse aesthetic impacts to the land, property, buildings, and other facilities adjacent to surrounding, and in generally the same area as the requested location of such Wireless Communication and MWISP Facilities.
   (d)   Special Use Permit Application and Other Requirements.
      (1)   All applicants for a special use permit for Wireless Communication and MWISP Facilities or any modification of such facility shall comply with the requirements set forth in this section. The Planning Commission is the officially designated agency or body of the community to whom applications for a special use permit for Wireless Communication and MWISP Facilities
must be made, and that is authorized to review, analyze, evaluate, and make decisions with respect to granting or not granting, recertifying, or not recertifying, or revoking special use permits for Wireless Communication and MWISP Facilities. The Planning Commission may at its discretion delegate or designate other official agencies of the city to, review, analyze, evaluate, and make recommendations to the Planning Commission with respect to the granting or not granting, recertifying, or not recertifying, or revoking special use permits for Wireless Communication and MWISP Facilities.
      (2)   An application for a special use permit for Wireless Communication and MWISP Facilities shall be signed on behalf of the applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information. The landowner, if different than the applicant, shall also sign the application. At the discretion of the Planning Commission, any intentional and materially false or misleading statement in the application will delay processing the application until appropriate corrections have been made.
      (3)   Applications not meeting the requirements stated herein or which are otherwise incomplete, may be rejected by the Planning Commission.
       (4)   The applicant shall include a statement in writing:
         A.   That the applicant's proposed Wireless Communication and MWISP Facilities shall be maintained in a safe manner, and in compliance in all material respects with all conditions of the special use permit, without exception, unless specifically granted relief by the Planning Commission in writing, as well as in compliance, in all material respects, with all applicable and permissible local codes, ordinances, and regulations, including any and all applicable city, state, and federal ordinances, rules, and regulations;
         B.   That the construction of Wireless Communication or MWISP Facilities is legally permissible, including, but not limited to the fact that the applicant is authorized to do business in the State of Ohio.
      (5)   No Wireless Communication or MWISP Facilities shall be installed or constructed until the site plan is reviewed and approved by the Planning Commission, and the special use permit has been issued. No Wireless Communication or MWISP Facilities shall be approved by the Planning Commission until the site plan has been reviewed by the City Engineer.
      (6)   All applications for the construction or installation of new Wireless Communication and MWISP Facilities shall be accompanied by a report containing the information hereinafter set forth. Where this section calls for engineering certification, such certification shall be by a qualified Ohio State licensed Professional Engineer, unless otherwise noted. The application shall include, in addition to the other requirements for the special use permit, the following information:
         A.   Documentation that demonstrates the need for the Wireless Communication or MWISP Facilities to provide service primarily within the City;
         B.   Name, address, and phone number of the person preparing the report;
         C.   Name, address, and phone number of the property owner, operator, and applicant, to include the legal form of the applicant;
         D.   Postal address and tax map parcel number of the property;
         E.   Zoning district or designation in which the property is situated;
         F.   Size of the property stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines, including length and bearings;
         G.   Location of nearest residential structure;
         H.   Location of nearest habitable structure;
         I.   Location, size, and height of all structures on the property which is the subject of the application;
         J.   Location, size, and height of all proposed and existing antennae and all appurtenant structures;
         K.   Type, locations, and dimensions of all proposed and existing landscaping, and fencing;
         L.   For WTF, the number, type, and design of the Telecommunications Tower(s) Antenna(s) proposed and the basis for the calculations of the Telecommunications Tower's capacity to accommodate multiple users; MWISP does not co-locate;
         M.   The make, model, and manufacturer of the Tower and Antenna(s);
         N.   A description of the proposed Tower and Antenna(s) and all related fixtures, structures, appurtenances, and apparatus, including height above pre-existing grade, materials, color, and lighting;
         O.   The frequency, modulation, and class of service of radio or other transmitting equipment;
         P.   Transmission and maximum effective radiated power of the Antenna(s);
         Q.   Direction of maximum lobes and associated radiation of the Antenna(s);
         R.   For WCF, certification that NIER levels at the proposed site will be within the threshold levels adopted by the FCC; MWISP equipment is pre-certified;
         S.   For WCF, certification that the proposed Antenna(s) will not cause interference with existing telecommunications devices, which certification shall be reviewed by a licensed engineer designated by City;
         T.   For WCF, a copy of the FCC license applicable for the use of Wireless Communication Facilities;
          U.   For WCF, certification that a topographic and geomorphologic study and analysis has been conducted, and that considering the subsurface and substrata, and the proposed drainage plan, that the site is adequate to assure the stability of the proposed Wireless Communication Facilities on the proposed site, which certification shall be reviewed by a licensed engineer designated by the City;
         V.   For WCF, propagation studies of the proposed site and all adjoining proposed, in-service, or existing sites;
         W.   For WCF, applicants shall disclose in writing any agreement in existence prior to submission of the application that would limit or preclude the ability of the applicant to share any new Telecommunication Tower that it constructs.
      (7)   In the case of a new Telecommunication Tower for WCF, the applicant shall be required to submit a written report demonstrating its efforts to secure shared use of existing Telecommunications Tower(s) or use of existing buildings or other structures within the City. Copies of written requests and responses for shared use shall be provided to the Planning Commission.
      (8)   For WCF, the applicant shall furnish written certification that the Communication Facility, foundation, and attachments are designed and will be constructed to meet all local, county, state, federal structural requirements for loads, including wind and ice loads. For MWISP, the applicant shall provide a copy of comprehensive specifications and installation requirements of each piece of equipment used in the supporting structure from each manufacturer thereof.
      (9)   For WCF, after construction and prior to receiving a certificate of compliance, the Applicant shall furnish written certification that the Wireless Communication Facilities are grounded and bonded so as to protect persons and property and installed with appropriate surge protectors. For MWISP, the supporting structure's grounding requirements per the comprehensive manufacturer's recommendations must be strictly adhered to. And for MWISP frequency specific surge protection equipment must be utilized in conjunction with each antenna and the attached cabling and a copy of the manufacturer's comprehensive specifications for each piece of surge protection equipment be furnish to the City.
       (10)   If requested by the Planning Commission, the WCF Applicant shall furnish a Visual Impact Assessment which shall include:
         A.   A "Zone of Visibility Map" which shall be provided in order to determine locations where the Tower may be seen.
         B.   Pictorial representations of "before and after" views from key viewpoints both inside and outside of the City, including but not limited to state highways and other major roads; state and local parks' other public lands' historic districts; preserves and historic sites normally open to the public; and from any other location where the site is visible to a large number of visitors, travelers, or residents. The City, acting in consultation with its consultants or experts, will provide guidance concerning the appropriate key sites at a pre-application meeting.
         C.   An assessment of the visual impact of the tower base, guy wires, and accessory buildings from abutting and adjacent properties and streets.
      (11)   Any and all representations made by the applicant to the Planning Commission, on the record, during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the Planning Commission.
      (12)   For WCF, the applicant shall, in a manner approved by the Planning Commission, demonstrate and provide in writing or by drawing how it shall effectively screen from view its proposed Wireless Communication Facilities base and all related facilities and structures.
       (13)   All utilities from Wireless Communication and MWISP Facilities sites shall be installed underground and in compliance with all ordinances, rules, and regulations of the City, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate. The Planning Commission may waive or vary the requirements of undergrounding installation of utilities whenever, in the opinion of the Planning Commission, such variance or waiver shall not be detrimental to the health, safety, general welfare, and environment, including the visual and scenic characteristics of the area.
       (14)   All Wireless Communication and MWISP Facilities shall contain a demonstration that the Facility will be sited so as to have the least adverse visual effect on the environment and its character, and the residences in the area of the WCF and MWISP Facilities sites.
      (15)   Both the Wireless Communications Facility and any and all accessory or associated facilities shall maximize use of building materials, colors, and textures designed to blend with the structure to which it may be affixed or to harmonize with the natural surroundings, this shall include the utilization of stealth or concealment technology as required by the City. New MWISP support structures must be self-supporting or must use a horizontal support brace attached to a building. MWISP support structures may not use guy wires for support.
      (16)   At a WCF site, the applicant shall furnish the City with a site plan showing an access road and parking for adequate emergency and service access. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and vegetation cutting. Road grades shall closely follow natural contours to assure minimal visual disturbance and duce soil erosion.
      (17)   A person who holds a special use permit for WCF and MWISP Facilities shall construct, operate, maintain, repair, provide for removal of, modify, or restore the permitted Wireless Communication Facilities in strict compliance with all current technical, safety and safety-related codes adopted by the City, county, state, or United States, including but not limited to, the most recent editions of the National Electrical Safety Code and the National Electrical Code, as well as accepted and responsibly workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but a not limited to, construction, building, electrical, fire, safety, health, and land use codes. In the event of a conflict between or among any of the preceding, the more stringent shall apply.
      (18)   A holder of a special use permit granted under this chapter shall obtain, at its own expense, all permits, and licenses required by applicable rule, regulation, or chapter, and must maintain the same, in full force and effect, for as long as required by the City or other governmental entity or agency having jurisdiction over the applicant.
       (19)   The Planning Commission may conduct an environmental review of the proposed project in combination with its review of the application under this chapter. The applicant shall provide written documentation that it is in compliance with all federal, state, local environmental regulations, such as NHPA and NEPA.
      (20)   An applicant shall submit to the Planning Commission the number of completed applications determined to be needed at a pre-application meeting with the appropriate City official or consultant. A copy of the application shall be provided to the legislative body of all adjacent municipalities.
      (21)   WCF Applicants shall examine the feasibility of designing a proposed Telecommunications Tower to accommodate future demand for at least two (2) additional commercial applications, for example, future co-locations. The scope of this examination shall be determined by the Planning Commission. The telecommunications tower shall be structurally designed to accommodate at least two (2) additional antenna arrays equal to those of the applicant and located as close to the applicant's antenna as possible without causing interference. This requirement may be waived, provided that the applicant, in writing, demonstrates that the provisions of future shared usage of the telecommunications tower is not technologically feasible, or is commercially impracticable and creates an unnecessary and unreasonable burden, based upon:
         A.   The foreseeable number of FCC licenses available for the area;
         B.   The kind of Wireless Communication Facilities site and structure proposed;
         C.   The number of existing and potential licenses without Wireless Communication Facilities spaces or sites;
         D.   Available space on existing and approved telecommunications towers.
      (22)   WCF applicants shall submit to the Planning Commission a letter of intent committing the owner of the proposed new tower, and his or her successors in interest, to negotiate in good faith for shared use of the proposed tower by other telecommunications providers in the future. This letter shall be filed with the Planning Commission. Failure to abide by the conditions outlined in the letter may be grounds for revocation of the special use permits. The letter shall commit the new tower owner and their successors in interest to:
         A.   Respond within sixty (60) days to a request for information from a potential shared-use applicant;
          B.   Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers;
         C.   Allow shared use of the new tower if another telecommunications provider agrees in writing to pay reasonable charges. The charges may include, but are not limited to, a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction, and maintenance financing, return on equity, less depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference.
      (23)   For WCF, unless waived by the Planning Commission, there shall be a pe- application meeting. The purpose of the pre-application meeting will be to address issues which will help to expedite the review and permitting process. A pre-application meeting may also include a site visit. Costs of the City's consultants to prepare for and attend the pre-application meeting will be borne by the applicant.
      (24)   The holder of a special use permit shall notify the City before making any material medication of a Wireless Communication Facility and shall apply to the City to materially modify, relocate, or rebuild a Wireless Communication Facility. MWISP special use permit holders may modify antenna arrangements without a medication permit. All other Support structure modifications require application for a permit.
      (25)   A new WCF Tower Applicant, upon request of the Planning Commission shall, hold a "balloon test" as follows:
         A.   Applicant shall arrange to fly, or raise upon a temporary mast, a brightly colored balloon, minimum diameter of three (3) feet at the maximum height of the proposed new Tower. The applicant shall inform the Planning Commission, in writing, of the dates and times of the test, including a second date, in case of poor visibility on the initial date, at least fourteen (14) days in advance. The balloon shall be flown for at least eight (8) consecutive hours sometime between 7:00 am and 4:00 pm of the dates chosen. The primary date shall be on a weekend, but the second date, in case of poor visibility on the initial date, may be on a weekday.
       (26)   The applicant will provide a written copy of an analysis, completed by a qualified individual or organization, to determine if the WCF Tower or existing structure intended to support wireless facilities requires lighting under Federal Aviation Regulation Part 77. This requirement shall be for any new tower, or for an existing structure or building where the application increases the height of the structure or building. If this analysis determines that the FAA must be contacted, then all filings with the FAA, all responses from the FAA and any related correspondence shall be provided in a timely manner by the Applicant.
   (e)   Location of Wireless Communication Facilities.
      (1)   Applicants for Wireless Communication Facilities shall locate, site, and erect said Wireless Communication Facilities in accordance with the following priorities, one being the highest priority and four being the lowest priority:
         A.   On existing telecommunications towers or other tall structures;
         B.   Co-location on a site with existing Wireless Communication Facilities or structures;
         C.   On municipally owned properties;
         D.   On other property in the City.
      (2)   If the proposed property site is not the highest priority listed above, then a detailed explanation must be provided as to why a site of a higher priority was not selected. The person seeking such an exception must satisfactorily demonstrate the reason or reasons why such a permit should be granted for the proposed site, and the hardship that would be incurred by the applicant if the permit were not granted for the proposed site.
      (3)   An applicant may not by-pass sites of higher priority by stating the site presented the only site leased or selected. An application shall address co-location as an option and if such option is not proposed, the applicant must explain why co- location is commercially or otherwise impracticable. Agreements between providers limiting or prohibiting co-location, shall not be a valid basis for any claim of commercial impracticability or hardship.
      (4)   Notwithstanding the above, the Planning Commission may approve any site located within an area in the above list of priorities, provided that the Planning Commission finds that the proposed site is in the best interest of the health, safety, and welfare of the City and its inhabitants.
      (5)   The applicant shall submit a written report demonstrating the applicant's view of the above locations in order of priority, demonstrating the technological reason for the site selection. If the site selected is not the highest priority, then a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.
      (6)   The applicant shall, in writing, identify and disclose the number and locations of any additional sites that the applicant has been, or is, considering, reviewing, or planning for Wireless Communication Facilities in the City, and all municipalities adjoining the City.
      (7)   Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the Planning Commission may disapprove an application for any of the following reasons:
         A.   Conflict with safety and safety-related codes and requirements;
         B.   Conflict with traffic needs or traffic ordinances, or definitive plans for changes in traffic flow or traffic ordinances;
         C.   Conflict with the historic nature of a neighborhood or historical district;
         D.   The use or construction of Wireless Communication Facilities which is contrary to an already stated purpose of a specific zoning or land use designation;
         E.   The placement and location of Wireless Communication Facilities which would create an unacceptable risk, or he probability of such, to residents, the public, employees, and agents of the city, or employees of the service provider or other service providers;
         F.   Conflicts with the provisions of this chapter.
 
   (f)   Shared Use of Wireless Communication Facilities and Other Structures.
      (1)   Shared use of existing WCF Facilities shall be preferred by the City, as opposed to the proposed construction of a new telecommunications tower. MWISP facilities cannot be shared. Where such shared use is unavailable, location of antennas on other pre-existing structures shall be considered and preferred. The applicant shall submit a comprehensive report inventorying existing towers and other appropriate structures within four (4) miles of any proposed new tower site, unless the applicant can show that some other distance is more reasonable and outlining opportunities for shared use of existing facilities and the use of other pre-existing structures as a preferred alternatives to new construction.
      (2)   An applicant intending to share use of an existing telecommunications towers or other structure shall be required to document the intent of the existing owner to share use. In the event of an application to share the use of an existing telecommunications tower does not increase the height of the telecommunications tower, the Planning Commission shall waive such requirements of the application required by this chapter as may be for good cause shown.
      (3)   Such shared use shall consist only of the minimum antenna array technologically required to provide service within the City, to the extent practicable, unless good cause is shown.
    (g)   Height of WCF Tower(s).
      (1)   The applicant must submit documentation justifying to the Planning Commission the total height of any telecommunications tower, facility, or antenna and the basis therefor. Such justification shall be to provide service within the City, to the extent practicable, unless good cause is shown.
      (2)   Communication towers shall be no higher than the minimum height necessary. Unless waived by the Planning Commission upon good cause shown, the maximum height shall be 110 feet, based on three co-located antenna arrays and ambient tree height of eighty (80) feet.
      (3)   The maximum height of any communication tower and attached antennas constructed after the effective date of this chapter shall not exceed that which shall permit operation without artificial lighting of any kind, in accordance with municipal, county, state, or federal statue, code, rule or regulation.
 
   (h)   Visibility of WCF Facilities.
      (1)   Wireless Communication Facilities shall not be artificially lighted or marked, except as required by this chapter or other regulatory authority.
      (2)   Communication towers shall be of galvanized finish or painted with a rust- preventive paint of an appropriate color to harmonize with the surroundings as approved by the Planning Commission and shall be maintained in accordance with the requirements of this chapter.
      (3)   If lighting is required, applicant shall provide a detailed plan for sufficient lighting of as unobtrusive and inoffensive an effect as is permissible under state and federal regulations, and an artist's rendering or other visual representation showing the effect of light emanating from the site on neighboring habitable structures within 1,500 feet of all property lines of the parcel on which the Wireless Communication Facilities are located.
   (i)   Security for Wireless Communication and MWISP Facilities. All Wireless Communication Facilities and Antennas shall be located, fenced, or otherwise secured in a manner which prevents unauthorized access. Specially as follows:
      (1)   All antennas, towers, and other supporting structures, including guy wires, shall be made inaccessible to individuals, and constructed or shielded in such a manner that they are not climbed or run into;
      (2)   Transmitters and telecommunications control points must be installed such that they are readily accessible only to persons authorized to operate or service them.
   (j)   Signage. Wireless Communication and MWISP Facilities shall contain a sign no larger than four (4) square feet to provide adequate notification to persons in the immediate area of the presence of an Antenna that has ten (10) transmission capabilities. The sign shall contain the name(s) of the owner(s) and operator(s) of the Antenna(s) as well as emergency phone number(s). The sign shall not be located so as to be visible from the access point of the site and must identify the equipment shelter of the applicant. The sign shall not be lighted unless the Planning Commission shall have allowed such lighting or unless such lighting is required by applicable provisions of chapter. The sign shall be approved by the Planning Commission before installation. No other signage, including advertising, shall be permitted on any facilities, antennas, antenna supporting structure, or antenna towers, unless otherwise required by law.
 
   (k)   Lot Size and Setbacks.
      (1)   All proposed Wireless Communication and MWISP Facilities shall be setback from abutting parcels, recorded rights-of-way, and road and street lines a distance sufficient to substantially contain onsite icefall or debris from a tower or tower failure, and to preserve the privacy and sanctity of any adjoining properties.
      (2)   All proposed Wireless Communication and MWISP Facilities shall be setback from residential lots or residential zoned areas a minimum of 200 feet, or the height of the tower, whichever is greater.
   (l)   Retention of Expert Assistance and Reimbursement by Applicant for WTF Facilities.
      (1)   The Planning Commission may hire any consultant or expert necessary to assist the planning commission in reviewing and evaluating the application, including the construction and modification of the site, once permitted, and any requests for rectification.
      (2)   An applicant shall deposit with the City funds sufficient to reimburse the City for all reasonable costs of consultant and expert evaluation and consultation to the Planning Commission in connection with the review of any application. The initial deposit shall be five thousand dollars ($5,000); these funds shall accompany the filing of an application and the City will maintain a separate escrow account for all such funds. The City, its consultants or experts shall bill or invoice the city no less frequently than monthly for its services in reviewing the application and performing its duties. If at any time during the review process this escrow account has a balance less than two thousand dollars ($2,000), applicant shall immediately, upon notification by the City, replenish said escrow account so that it has a balance of at least two thousand dollars ($2,000). Such additional escrow funds must be deposited with the City before any further action or consideration is taken on the application. In the event that the amount held in escrow by the City is more than the amount of the actual billing or invoicing at the conclusion of the review process, the difference shall be promptly refunded to the applicant.
      (3)   The total amount of the funds set forth in subsection (n)(2) of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed by the Planning Commission or its consultant or expert to complete the necessary review and analysis. Additional escrow funds, as required and requested by the city, shall be paid by the applicant.
   (m)   Exceptions from a Special Use Permit for Wireless Communication and MWISP Facilities.
      (1)   No person shall be permitted to site, place, build, construct, or modify, or prepare any site for the placement or use of, Wireless Communication and MWISP Facilities as of the effective date of this chapter without having first obtained a special use permit for Wireless Communication or MWISP Facilities. Notwithstanding anything to the contrary in this section, no special use permit shall be required for those exceptions noted in the definition of Wireless Communication facilities, such as those used exclusively for fire, police, and other dispatch telecommunications or exclusively for private radio and television reception and private citizen's bands, amateur radio, and other similar telecommunications.
      (2)   Routine maintenance on existing Wireless Communication and MWISP Facilities, shall comply with the requirements of this chapter.
      (3)   All Wireless Communication Facilities existing on or before the effective date of the chapter shall be allowed to continue as they presently exist, provided however, that any medication to existing Wireless Communication Facilities must comply with this chapter.
   (n)   Action on an Application for a Special Use Permit for Wireless Communication Facilities.
      (1)   The Planning Commission will undertake a view of an application pursuant to this chapter in a timely fashion and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public's interest and need to be involved, and the applicant's desire for a timely resolution.
       (2)   After formally considering the application, the Planning Commission may approve, approve with conditions, or deny a special use permit. Its decision shall be in writing and shall be supported by substantial evidence contained in a written record. The burden of proof for the grant of the permit shall always be upon the applicant.
      (3)   If the Planning Commission approves the special use permit for Wireless Communication Facilities except, then the applicant shall be notified of such approval in writing within ten (10) calendar days of the Planning Commission's action, and the special use permit shall be issued within thirty (30) days after such approval. Except for necessary building permits, and subsequent certificates of compliance, once a special use permit has been granted hereunder, no additional permits or approvals from the Planning Commission, such as site plan or zoning approvals, shall be required for the Wireless Communication Facilities covered by the special use permits.
      (4)   If the Planning Commission denies the special use permit for Wireless Communication or MWISP Facilities, then the applicant shall be notified of such denial in writing within ten (10) days of the Planning Commission's action.
   (o)   Recertification of a Special Use Permit for Wireless Communication Facilities.
      (1)   For MWISP Facilities, the holder of the special use permit must apply for re- inspection at any time between three (3) months prior to the two (2) year anniversary after the effective date of the special use permit and all subsequent two (2) year anniversaries of the effective date of the original special use permit. For WTF Facilities, at any time between twelve (12) months and six (6) months prior to the five (5) year anniversary date after the effective date of the special use permit and all subsequent fifth anniversaries of the effective date of the original special use permit for Wireless Communication Facilities, the holder of a Special Use Permit for such Wireless Communication Facilities shall submit a signed written request to the planning commission for recertification. In the written request for recertification, the holder of such special use permit shall note the following:
         A.   The name of the holder of the special use permit for the Wireless Communication Facilities;
         B.   If applicable, the number or title of the special use permit;
         C.   The date of the original granting of the special use permit;
          D.   Whether the Wireless Communication Facilities have been moved, relocated, rebuilt, or otherwise modified since the issuance of the special use permit and is so, in what manner;
         E.   If the Wireless Communication Facilities have been moved, re-located, rebuilt, or otherwise modified, then whether the Planning Commission approved such action, and under what terms and conditions, and whether those terms and conditions were complied with;
         F.   Any requests for waivers of relief of any kind whatsoever from the requirements of this chapter and any requirements for a special use permit;
         G.   That the Wireless Communication Facilities are in compliance with the special use permit and compliance with all applicable codes, ordinance, rules, and regulations;
         H.   Recertification that the telecommunication tower and attachments both are designed and constructed ("As Built") and continue to meet all local, county, state, and federal structural requirements for loads, including wind and ice loads. Such recertification shall be by a qualified Ohio State licensed Professional Engineer, the cost of which shall be borne by the Applicant.
      (2)   If, after such review, the Planning Commission determines that the permitted Wireless Communication or MWISP Facilities are in compliance with the special use permit and all applicable statues, local laws, codes, rules, and regulations, then the Planning Commission shall issue a recertification special use permit for the Wireless Communication Facilities, which may include any new provisions or conditions that are mutually agreed upon, or required by applicable statures, ordinances, local ordinances, codes, rules, and regulations. If, after such review, the Planning Commission determines that the permitted Wireless Communication Facilities are not in compliance with the special use permit and all applicable statues, local laws, codes, rules, and regulations, then the Planning Commission may refuse to issue a recertification special use permit for the Wireless Communication Facilities, and in such event, such Wireless Communication Facilities shall not be used after the date that the applicant receives written notice of such decision by the Planning Commission. Any such decision shall be in writing and supported by substantial evidence contained in a written record.
      (3)   If the applicant has submitted all of the information requested by the Planning Commission and required by this chapter, and if the Planning Commission does not complete its review, as noted in subsection (o)(2) of this section, prior to the five (5) year anniversary date of the special use permit, or subsequent fifth anniversaries, then the Applicant for the permitted Wireless Communication or MWISP Facilities shall receive an extension of the special use permit for up to six (6) months, in order for the Planning Commission to complete its review.
      (4)   If the holder of a special use permit for Wireless Communication or MWISP Facilities does not submit a request for recertification of such special use permit within the time frame noted in subsection (o)(1) of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary (second for MWISP) of the original granting of the special use permit, or subsequent fifth anniversaries(second for MWISP), unless the holder of the special use permit adequately demonstrates to the Planning Commission that extenuating circumstances prevented a timely recertification request. If the Planning Commission agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.
   (p)   Extent and Parameters of Special Use Permits for Wireless Communication and MWISP Facilities. The extent and parameters of a special use permit for Wireless Communication and MWISP Facilities shall be as follows:
      (1)   Such special use permit shall be non-exclusive;
      (2)   Such special use permit shall not be assigned, transferred, or conveyed without the express prior written notification of the Planning Commission;
      (3)   Such special use permit may, following a hearing upon due prior notice to the applicant, be revoked, canceled, or terminated for a violation of the conditions and provisions of the special use permit for Wireless Communication and MWISP Facilities, or for a material violation of this chapter after prior written notice to the applicant and the holder of the special use permit.
 
   (q)   Applicant Fee.
      (1)   At the time that person submits an application for a special use permit for a new communication tower, MWISP, or a modification which increases the height of an existing facility, such person shall pay a non-refundable application fee of five hundred dollars ($500.00) to the City. If the applicant is for a special use permit for collocating on an existing telecommunications tower or high structure, where no increase in height of the tower or structure is required, the non-refundable fee shall be two hundred fifty dollars ($250.00).
      (2)   No application fee is required in order to recertify a special use permit for Wireless Communication Facilities unless there has been a material modification of the Wireless Communication Facilities since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the fees provided in subsection (q)(1) shall apply.
   (r)   Construction Permit Fees.
      (1)   Prior to construction of a new communications tower, MWISP, or co-location on an existing tower or tall structure, a building permit shall be secured by a general contractor, registered with the City, upon payment of a permit fee of one percent (1%) of the construction cost.
      (2)   Prior to construction of a new communications tower, MWSIP, or co-location on an existing tower or tall structure, an electrical permit shall be secured by an electrical contractor, registered with the Ccity, upon the payment of a permit fee of one hundred fifty dollars ($150.00).
      (3)   In addition to the above fees, there is a State of Ohio Board of Building Standards three percent permit fee surcharge required on all permits regulated by the Ohio Building Code.
 
   (s)   Performance Security. The applicant and the owner of record of any proposed Wireless Communication Facilities property site shall at its cost and expense, be jointly required to execute and file with the City a bond, or other form of security acceptable to the City as to type of security and the form and manner of execution, in an amount of at least seventy-five thousand dollars ($75,000) and with such sureties as are deemed sufficient by the Planning Commission to assure the faithful performance of the terms and conditions of this chapter and conditions of any special use permit issued pursuant to this chapter. The full amount of the bond or security shall remain in full force and effect throughout the term of the special use permit or until the removal of the Wireless Communication Facilities, and any necessary site restoration is completed. The failure to pay any annual premium for the renewal of any such security shall be a violation of the provisions of the special use permit and shall entitle the Planning Commission to revoke the special use permit after prior written notice to the applicant and holder of the permit and after a hearing upon due prior notice to the applicant and holder of the special use permit.
   (t)   Reservation of Authority to Inspect Wireless Communication and MWISP Facilities. In order to verify that the holder of a special use permit for Wireless Communication Facilities and any and all lessees, renters, and licensees of Wireless Communication Facilities, place and construct such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building, and codes, the Zoning Code, the Codified Ordinances, and all applicable regulations and other applicable requirements, the city may inspect all facets of said permits holder's, renter's, lessee's or licensee's placement, construction, modification, and maintenance of such facilities, including, but not limited to, towers, antennas, and buildings or other structures constructed or located on the permitted site.
   (u)   Liability Insurance.
      (1)   A holder of a special use permit for Wireless Communication and MWISP Facilities shall secure and at all times maintain public liability insurance for bodily injury, property damage and personal injury, and umbrella insurance coverage, for the duration of the special use permit in amounts as set forth below:
         A.   Commercial General Liability covering bodily injury, property damage, and personal injury: ten million dollars ($10,000,000) per occurrence or ten million dollars ($10,0000,000) aggregate;
         B.   Workers Compensation and Disability: Statutory amounts.
       (2)   The Commercial General liability insurance policy shall specifically include the City and its officers, employees, committee members, attorneys, agents, and consultants as additional named insureds.
      (3)   The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the State of Ohio and with a Best's rating of at least A.
      (4)   The insurance policies shall contain an endorsement obligating the insurance company to furnish the City with at least thirty (30) days prior written notice in advance of the cancellation of the insurance.
      (5)   Renewal or replacement policies or certificates shall be delivered to the City at least fifteen (15) days before the expiration of the insurance which such policies are to renew or replace.
      (6)   Before construction of a permitted Wireless Communication and MWISP Facilities are initiated, but in no case later than fifteen (15) days after the grant of the special use permit, the holder of the special use permit shall deliver to the City a copy of each of the policies or certificates representing the insurance in the required amounts.
   (v)   Indemnification.
      (1)   Any application for Wireless Communication and MWISP Facilities that is proposed for City property pursuant to this chapter, shall contain a provision with respect to indemnification. Such provision shall require the applicant, to the extent permitted by this chapter, to at all times defend, indemnify, protect, save, hold harmless, and exempt the City, and its officers, employees, committee members, attorneys, agents, and consultants from any and all penalties, damages, costs, or charges arising out of any and all claims, suits, demands, causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at, with respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees, and expert witness fees are included in those costs that are recoverable by the City.
      (2)   Notwithstanding the requirements noted in subsection (v)(1) of this section, an indemnification provision will not be required in those instances where the city itself applies for and secures a special use permit for Wireless Communication and MWISP Facilities.
 
   (w)   Default and Revocation.
      (1)   If Wireless Communication and MWISP Facilities are repaired, rebuilt, placed, moved, re-located, modified, or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter or of the special use permit, then the City shall notify the holder of the special use permit in writing of such violation. Such notice shall specify the nature of the violation or non-compliance and that the violations must be corrected within seven (7) days of the date of the postmark of the notice, or of the date of personal services of the notice, whichever is earlier. Notwithstanding anything to the contrary in this subsection or any other section of this chapter, if the violation causes, creates, or presents an imminent danger or threat to the health or safety of lives or property, the City may, at its sole discretion, order the violation remedied within twenty-four (24) hours.
      (2)   If within the period set forth in subsection (w)(1) above the Wireless Communication Facilities are not brought into compliance with the provisions of this chapter, or of the special use permit, or substantial steps are not taken in order to bring the affected Wireless Communication and MWISP Facilities into compliance, then the city may revoke such special use permit for Wireless Communication Facilities, and shall notify the holder of the special use permit within forty-eight (48) hours such of action.
   
   (x)   Removal of Wireless Communication and MWISP Facilities.
      (1)   Under the following circumstances, the City may determine that the health, safety, and welfare Interests of the city warrant and require the removal of Wireless Communication Facilities.
         A.   Wireless Communication Facilities with a permit have been abandoned (that is, not used as Wireless Communication Facilities) for a period exceeding ninety (90) consecutive days or a total of 180 days in any 365 day period, except for periods caused by force majeure or Acts of God, in which case, repair, or removal shall commence within ninety (90) days;
         B.   Permitted Wireless Communication Facilities fall into such a state of disrepair that it creates a health or safety hazard;
         C.   Wireless Communication Facilities have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required Special Use Permit, or other necessary authorization.
       (2)   If the City makes such a determination as noted in subsection (x)(1) of this section, then the City shall notify the holder of the special use permit for the Wireless Communication Facilities within forty-eight (48) hours that said Wireless Communication Facilities are to be removed, the City Building Department may approve an interim temporary use agreement or permit, such as to enable the sale of the Wireless Communication Facilities.
      (3)   The holder of the special use permit, or its successors or assigns, shall dismantle and remove such Wireless Communication Facilities, and all associated structures and facilities, from the site and restore the site to as close to its original condition as is possible, such restoration being limited only by physical or commercial impracticability, within ninety (90) days of receipt of written notice from the City. However, if the owner of the property upon which the Wireless Communication Facilities are located wishes to retain any access roadway to the Wireless Communication Facilities, the owner may do so with the approval of the Planning Commission.
      (4)   If Wireless Communication Facilities are not removed or substantial progress has not been made to remove the Wireless Communication Facilities within ninety (90) days after the permit holder has received notice, then the City may order officials or representatives of the City to remove the Wireless Communication Facilities at the sole expense of the owner or special use permit holder.
      (5)   If the City removes or causes to be removed, Wireless Communication Facilities, and the owner of the Wireless Communication Facilities does not claim and remove it from the site to a lawful location within ten (10) days, then the City may take steps to declare the Wireless Communication Facilities abandoned and sell them and their components.
      (6)   Notwithstanding anything in this section to the contrary, the City may approve a temporary use permit or agreement for the Wireless Communication Facilities, for no more ninety (90) days, during which time a suitable plan for removal, conversion, or relation of the affected Wireless Communication Facilities shall be developed by the holder of the special use permit, subject to the approval of the City, and an agreement to such plan shall be executed by the holder of the special use permit and the City. If such a plan is not developed, approved, and executed within the ninety (90) day time period, then the City may take possession of and dispose of the affected Wireless Communication Facilities in the manner provided in this section.
 
   (y)   Relief. Any applicant desiring relief or exemption from any aspect or requirement of this chapter may request such from the Planning Commission, provided that the relief or exemption is contained in the original application for either a special use permit, or in the case of an existing or previously granted special use permit a request for medication of its tower or facilities. Such relief may be temporary or permanent, partial, or complete, at the sole discretion of the Planning Commission. However, the burden of proving the need for the requested relief or exemption, is solely on the applicant to prove to the satisfaction of the Planning Commission. The applicant shall bear all costs of the Planning Commission or the City in considering the request and the relief shall not be transferable to a new or different holder of the permit or owner of the tower or facilities without the specific written permission of the Planning Commission. Such permission shall not be unreasonably withheld or delated. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted the relief or exemption will have no significant effect on the health, safety, and welfare of the City, its residents and other service providers.
   (z)   Adherence to State and Federal Rules and Regulations.
      (1)   To the extent that the holder of a special use permit for Wireless Communication and MWISP Facilities has not received relief, or is otherwise exempt, from appropriate state or federal agency rules or regulations, then the holder of such a special use permit shall adhere to, and comply with, all applicable rules, regulations, standards, and provisions of any state or federal agency, including, but not limited to, the FAA and the FCC. Specifically included in this requirement are any rules and regulations regarding height, lighting, security, electrical, and RF emission standards.
      (2)   To the extent that applicable rules, regulations, standards, and provisions of any State or Federal agency, including but not limited to, the FAA and the FCC, and specifically including any regulations regarding height, lighting, and security are changed or modified during duration of a special use permit for Wireless Communication or MWISP Facilities, then the holder of such a special use permit shall conform the permitted Wireless Communication or MWISP Facilities to the applicable changed or modified rule, regulation, standard, or provision within a maximum of twenty-four (24) months of the effective date of the applicable changed or modified rule, regulation, standard, or provision, or sooner as may be required by the issuing entity.
 
   (aa)   Conflict with Other Laws or Ordinances. Where this ordinance differs or conflicts with other laws, rules, regulations, unless the right to do so is preempted or prohibited by the county, state, or federal government, the more restrictive or protective of the City and the public shall apply.
(Ord. 2022-34. Passed 1-9-23.)