This section is intended to regulate mobile service facilities to the full extent allowed by Wis. Stats. §§ 66.0404, 66.0414 and other applicable laws. Nothing herein is intended to regulate or to authorize the regulation of mobile service facilities in a manner that is preempted or prohibited by Wis. Stats. §§ 66.0404, 66.0414 or other applicable laws. These regulations apply equally to small wireless facilities; however, nothing herein is intended to regulate or to authorize the regulation of small wireless facilities in a manner that is preempted or prohibited by Wis. Stats. § 66.0414, or Subpart U to Part 1 of Title 47 of the United States Code of Federal Regulations or other applicable laws or regulations.

(Ord. No. 2518, § 1, 5-17-2022)

All terms used herein shall have the meaning described in Wis. Stats. § 66.0404(1). Mobile service support structures and mobile service facilities are referred to herein in some cases as "MSSF." "Small wireless facilities" as used herein shall have the meaning described in Wis. Stats. § 66.0414(1)(u).

(Ord. No. 2518, § 1, 5-17-2022)

(a)

In conjunction with the special use review required by section 44-11, the siting and construction of a new mobile service support structure and facilities whether intended to serve small wireless facilities or any other MSSF, shall be subject to the following requirements:

(1)

Application process. The applicant shall submit a written application which shall include all of the following information:

a.

The name and business address of, and the contact individual for, the applicant.

b.

The location of the proposed tower.

c.

The location of the mobile service facility.

d.

A construction plan which describes the tower, equipment, network components, antennas, transmitters, receivers, base stations, power supplies, cabling, and related equipment to be placed on or around the new tower.

e.

An explanation as to why the applicant chose the proposed location, and why the applicant did not choose collocation, including a sworn statement from the responsible party attesting that collocation within the applicant's service area would not result in the same mobile service functionality, coverage, and capacity; is technically infeasible; or is economically burdensome.

(2)

Determination of completeness. The city administrator shall review the application and determine whether the application is complete, within the time required by applicable laws. If the application includes all of the foregoing information, the application shall be found to be complete. The city administrator shall notify the applicant in writing, within the time required by applicable laws if it is found not to be complete, and such notice shall specify in detail the required information that was incomplete. Applicants are allowed to resubmit their applications as often as necessary until it is complete

(3)

Conditional use review procedure. The wireless telecommunications mobile service facility shall be a conditional use; however, it is not subject to section 44-1317, et seq. of this Code, and instead shall be reviewed pursuant to the following procedures:

a.

Public hearing. Within a reasonable time after an application and all required information has been filed, a public hearing shall be held by the plan commission pursuant to this chapter.

b.

Fee. Any petition shall be accompanied by a fee as set from time-to-time by the common council to defray the cost of notification and holding of public hearing. Costs incurred by the city in obtaining legal, planning, engineering and other technical and professional advice in connection with the review of the conditional use and preparation of the conditions to be improved shall be charged to the petitioner. Such fee shall not exceed the limits established by Wis. Stats. § 66.0404(4)(d) or other applicable laws.

c.

Requirements.

1.

Conditional use status shall not be granted to communication towers unless the tower is located so that there is sufficient radius of clear land around the tower so that its collapse shall be completely contained on the property, subject to the following. If an applicant provides the city with engineering certification showing that the tower is designed to collapse within a smaller area than the radius equal to the height of the tower, the smaller area shall be used unless the city has and provides to the applicant substantial evidence that the engineering certification is flawed.

2.

All facilities shall meet all State and Federal codes.

3.

Adverse impact. The proposed wireless communications towers, antennas, and associated accessory structures and facilities use will not have a substantial or undue adverse or detrimental effect upon or endanger adjacent property, the character of the area, or the public health, safety, morals, comfort, and general welfare and will not substantially diminish and impair property values within the community or neighborhood and:

(i)

Interference with surrounding development. Will be constructed, arranged, and operated so as not to unreasonably interfere with the use and development of neighboring property according to the applicable zoning district regulations.

(ii)

Adequate public facilities. Will be served adequately by any required essential public facilities and services.

(iii)

Traffic congestion. Will not cause undue traffic congestion nor draw significant amounts of traffic through residential streets. Adequate measures will be taken to provide ingress and egress so designed as to minimize traffic congestion on the public streets.

(iv)

Destruction of significant features. Will not result in the destruction, loss, or damage of any points of visual interest, including views of waterways, open spaces, historic buildings or historic landscapes or city-scapes, architecturally significant structures, or other scenic views or natural, scenic, or historic feature of significant importance.

(v)

Hazard protection. Shall reasonably protect persons and property from erosion, flooding, fire, noise, glare, falling debris or ice, or similar hazards.

(vi)

Compliance with State of Wisconsin Statutes and the Wisconsin Administrative Code. The proposed facilities shall be in compliance with all applicable State of Wisconsin Statutes and Wisconsin Administrative Code provisions and requirements.

(Ord. No. 2518, § 1, 5-17-2022)

The following aesthetic standards apply:

(1)

In areas where facilities are currently nonexistent or underground, undergrounding is required.

(2)

No new above ground structures, including co-locations on existing structures, shall be placed within 500 feet of a historic structure recognized as a Historic Landmark by the U.S. Department of the Interior, or the State of Wisconsin Historical Society. The 500-foot separation is waived for installations that are completely concealed from view or are not visible from locations where the historic structure can be observed.

(3)

Attachments to existing structures shall be designed to be flush with the existing structure as much as can reasonably be done, shall be a color that matches the existing structure and shall be the smallest size possible to reasonably accommodate the intended purpose. If the structure to which the attachment is made changes color due to repainting, resurfacing or other means, the attachment shall be modified to match the new color.

(4)

Any party objecting to the requirements of section 44-965 shall have an opportunity to demonstrate that the requirement constitutes an effective prohibition in violation of state or federal law, upon application to the plan commission, and the plan commission shall waive the requirement if it finds the standard to effectively prohibit the expansion of wireless technology in the city or otherwise violates state or federal law.

(Ord. No. 2518, § 1, 5-17-2022)

The plan commission shall make a decision on the application within a reasonable time after the public hearing, provided further that final action shall be taken within the time required by applicable laws unless the time extended by the petitioner. Said decision shall be stated in writing and a copy made a permanent part of the city records. If conditional use status is not granted, the reasons therefor will be included in such record.

(Ord. No. 2518, § 1, 5-17-2022)

Subsequent change or addition to the approved plans or use shall first be submitted for approval to the plan commission and, if in the opinion of the plan commission, such change or addition constitutes a substantial alteration, a public hearing before the plan commission shall be required and notice thereof be given pursuant to this chapter.

(Ord. No. 2518, § 1, 5-17-2022)

Conditions such as landscaping, architectural design, type of construction, floodproofing, anchoring of structures, construction commencement and completion dates, sureties, lighting, fencing, planting screens, operational control, hours of operation, improved traffic circulation, deed restrictions, highway access restrictions, increased yards, or parking requirements, among other issues as deemed appropriate may be required by the plan commission upon its finding that these are necessary to fulfill the purpose and intent of this chapter; subject to the limitations of section 44-969, below. Particular conditions may include the following:

(1)

Interference with air traffic prohibited. The proposed antenna or antenna structure shall not result in restriction or interference with air traffic or air travel to or from any existing or proposed airport and must meet the applicable Federal Aviation Administration (FAA) regulations.

(2)

Interference with radio or television reception and/or any other form of wireless communication prohibited. The proposed tower, alternative tower structure and/or antenna(s) shall not result in interference with radio and/or television reception and/or any other form of wireless communication in nearby residential or nonresidential areas based upon the applicable Federal Communications Commission (FCC) regulations. In the event that any complaints of interference are received, and they are reasonably suspected by the City of Cudahy to be caused by the tower, alternative tower structure and/or antenna(s), the city shall notify the applicant and property owner. The applicant shall have a period of 30 days following receipt of said notification to investigate said complaints and respond to the City of Cudahy. In the event that it is determined that the tower, alternative tower structure and/or antenna(s) is the source of interference, the applicant shall have ten days to correct all problems.

(3)

Access. The use shall be located along and have direct vehicular access to a public street. Access to and from the site shall be in accord with the requirements of the applicable highway or arterial street access authority, including the Wisconsin Department of Transportation, Milwaukee County and/or the City of Cudahy.

(4)

Limitation on use of drives or required off-street parking spaces. No wireless communications towers, antennas, and associated accessory structures and facilities shall occupy any drive and/or off-street parking space which is required by this chapter for the principal use of the property.

(5)

Blocking of ingress/egress routes prohibited. No wireless communications towers, antennas, and associated accessory structures and facilities shall block any permanent vehicular and/or pedestrian ingress and egress route or access aisle or drive (including entrances and/or exits to a site or building).

(6)

Visibility and safety. The location of wireless communications towers, antennas, and associated accessory structures and facilities on the property shall not block visibility for vehicles or pedestrians on or off the lot in a way that would create a safety hazard.

(7)

Unless otherwise determined by the common council as provided herein, all new wireless communications towers shall be of a monopole tower design and shall not exceed a width or diameter of five feet in diameter as measured at its base. However, the common council shall have authority to require a special design of new wireless communications towers where findings of particular sensitivity are made, such as proximity to historic or aesthetically significant structures, views and/or community features or other factors as determined by the common council.

(8)

Wireless communications towers, antennas, and associated accessory structures to be structurally self-supporting. All wireless communications towers, antennas, and associated accessory structures and facilities shall be structurally self-supporting without the use of guy wires and shall be specified or plan approved by a structural professional engineer licensed in the State of Wisconsin. All wireless communications towers, antennas, and associated accessory structures and facilities shall be permanently anchored to the ground.

(9)

Minimum of four service providers to be allowed to use tower facilities. Unless specifically waived by the City of Cudahy, new towers shall be designed to accommodate at least three other wireless communication service providers at market rate. The applicant shall allow the sharing of the antenna support facilities with three or more other service providers through the use of a collocation agreement. The holder of a special use permit for an antenna support facility shall not make access to the antenna support facility and site economically unfeasible. If additional users demonstrate (through an independent arbitrator or other pertinent means) that the holder of a special use permit for an antenna support facility and site has made access to such antenna support facility and site economically unfeasible, then the special use permit for said facility shall become null and void. All towers and structures shall be designed structurally, electrically, and in all respects to:

a.

Accommodate both the applicant's antennas and comparable antennas.

b.

Allow for the future rearrangement of antennas upon the commercial communication tower or structure.

c.

Accept antennas mounted at varying heights, provided that said heights do not exceed the maximum height approved or the height of the approved commercial communication tower or existing structure.

(10)

Buildings, enclosures, equipment and associated devices. All buildings, enclosures, equipment, and other associated devices ancillary to wireless communications towers and antennas shall be placed in close proximity to the base of the tower located on the wireless communications site. If the wireless communications facility does not have a tower, the buildings, equipment, and other associated devices shall be placed in close proximity to the alternative tower structure. If the wireless communications facility has a roof-mounted antenna support structure, an equipment enclosure may be located on the roof, provided that such enclosure is placed as unobtrusively as possible and in compliance with all applicable building codes and this chapter.

a.

All buildings, enclosures, equipment, and other associated devices shall be kept locked at all times.

b.

Each building, enclosure, equipment, and other associated device shall have a label attached to it. The label shall give the name, address, and telephone number of the person who should be contacted in the event of an emergency.

c.

The aggregate floor area of all buildings and enclosures shall not exceed 500 square feet per tower.

d.

The total height of the structures shall not exceed 15 feet in height, and the construction materials shall consist of a brick or decorative concrete block exterior on all sides of the structures.

e.

Backup electrical power generators, if provided, shall only be operated during electrical power outages and for testing and maintenance purposes. If the electrical power generator is located within 100 feet of a residential zoning district boundary line, noise attenuation measures shall be included to reduce noise levels to an exterior noise level of not greater than 45 Ldn at the property line. Testing and maintenance of said electrical power generators shall only take place on weekdays between the hours of 9:00 a.m. and 5:00 p.m.

f.

An "RF Safety Hazard" sign per ANSI Standard C95.2-1982, including descriptive wording or warning information at the user's option, shall be located on the tower and facilities where appropriate to create an awareness of a possible RF exposure to personnel. Sign lettering is recommended to conform to ANSI Z35.1-1972m while the yellow triangle shall conform to ANSI Z53.1-1979. ANSI Z35.1-1972 details construction guidance in the selection of finishes, illumination and placement.

(11)

Anticlimbing measures. Towers shall be designed to prevent children and trespassers from climbing on those structures. Sufficient anticlimbing measures shall be incorporated into the facility to reduce the potential for trespass and injury. Ladder rungs on towers shall be placed a minimum of 20 feet above the ground.

(12)

Advertising and signage. No form of advertising or signage (other than warning or equipment information signage) shall be allowed on the wireless communications towers, antennas, and associated accessory structures and facilities. All signage shall be according to the sign regulations set forth in the City of Cudahy sign regulations.

(13)

Cable installation. All cable to and from the antenna and/or antenna structure shall be installed underground unless the antenna is mounted on a building where cable will go directly into the structure. Aboveground cable installation may be allowed if it is adequately screened from view from outside the fenced area as determined by the plan commission and common council.

(14)

Security and fencing. The base of the tower and its associated accessory structures shall be enclosed and fenced by a security fence not less than six feet in height and secured so that it is not accessible by the general public. Fence design, materials, and colors shall reflect the character of the surrounding area as determined by the plan commission and common council. Electrical fencing is prohibited. All fencing shall meet the applicable fence requirements of the City of Cudahy Code.

(15)

Landscaped buffer yard required. A buffer yard of plant materials of sufficient maturity and size (as determined by the common council) to immediately and effectively screen the equipment cabinets, structures, or buildings from public view and from adjacent properties shall be provided.

a.

The minimum buffer yard shall consist of a landscaped strip at least ten feet in width outside the entire perimeter of the wireless communications facility.

b.

In locations where the visual impact of the tower would be minimal (as determined by the common council), the landscaping requirement may be reduced or waived with the approval of the common council.

c.

Existing mature tree growth and natural land forms shall be preserved to the maximum extent possible. In some cases, when such towers are sited on large, wooded lots, natural growth around the property perimeter may be a sufficient buffer yard.

d.

All landscaping requirements detailed here shall be properly maintained in perpetuity.

e.

The minimum size of plant materials used in the required buffer yard shall be as indicated below:

(16)

Lighting. No tower, antenna support structure, or antenna shall be artificially illuminated unless required by the Federal Aviation Administration or other applicable authority. This subsection does not prohibit the use of motion detectors and associated lighting for security nor the use of full cutoff luminaire design outdoor lights when the wireless communication provider's personnel are present. This subsection is not intended to prohibit any lighting required by any local, state, or federal law, rule, or regulation. If lighting is required by such law, rule, or regulation, the operator and owner shall choose the lighting which causes the least disturbance to the occupants of the adjacent properties.

(17)

Color and finish. All towers and antennas shall be of a color that best allows them to blend into the surroundings so as to reduce visual obtrusiveness or to camouflage the tower and antennas. The use of grays, blues, and greens may be appropriate; however, each case shall be evaluated by the City of Cudahy on an individual basis. All finishes shall be nonreflective.

(18)

No outdoor storage permitted. There shall be no outdoor storage of any vehicles, equipment, or other goods permitted in conjunction with wireless communications towers, antennas, and associated accessory structures and facilities. This subsection does not apply to overnight storage of vehicles or equipment necessary for the construction or repair of the wireless communications tower, antennas, and associated accessory structures and facilities.

(19)

Hazardous materials. There shall be no use of, generation of, storage of, or disposal of any hazardous materials on, under, about, or within the land in violation of any law or regulation in conjunction with wireless communications towers, antennas, and associated accessory structures and facilities.

(20)

Maintenance. All wireless communications towers, antennas, and associated accessory structures and facilities shall be maintained in a clean, rust-free, sanitary, and safe manner and kept free from trash, refuse, and debris. In addition, all wireless communications towers, antennas, and associated accessory structures and facilities shall be maintained in accordance with all applicable local, state, and federal regulations. If the zoning administrator concludes that a wireless communications tower, antenna(s), and associated accessory structure(s) and facility(s) fail to comply with such codes and regulations and constitute a danger to persons or property in the vicinity, the city zoning administrator shall notify the owner or operator of the wireless communications tower, antenna(s), and associated accessory structure(s) and facility(s) of such fact. The notice shall be in writing and shall require the owner or operator to bring the facility into compliance with such codes and regulations within a time frame set forth by the city zoning administrator but not to exceed 30 days of the date of service of the notice whichever is earlier. If the owner or operator fails to bring the wireless communications tower, antenna(s), and associated accessory structure(s) and facility(s) into compliance within the time provided, the city zoning administrator may order the wireless communications tower, antenna(s), and associated accessory structure(s) and facility(s) to be removed to the extent necessary to protect persons or property in the vicinity. The cost of removing the wireless communications tower, antenna(s), and associated accessory structure(s) and facility(s) shall be at the owner's expense.

(21)

Antennas on existing towers. The attachment of a new antenna on an existing tower may be allowed to minimize adverse visual impacts associated with the proliferation and clustering of towers.

(22)

Electrical wiring. Electrical wiring shall be installed by a licensed electrical contractor and approved by the city electrical inspector.

(23)

Financial guaranty and agreement for abandoned facilities removal and site restoration required. An applicant shall provide to the City of Cudahy, as a condition of issuance of a special use permit for wireless communications towers, antennas, and associated accessory structures and facilities, an irrevocable letter of credit or cash in the amount of $20,000 to guaranty facilities removal and site restoration if the wireless communications towers, antennas, and associated accessory structures and facilities are abandoned or no longer used. The property owner shall also sign, as a condition of issuance of a special use permit, an agreement and record (with the Milwaukee County Register of Deeds) a deed restriction to remove the wireless communications tower, antenna(s), and associated accessory structure(s) and/or facility(s) within six months of the discontinuance of its use.

(24)

Certificate(s) of insurance required. No use shall be permitted until the applicant has placed on file with the zoning administrator a certificate or certificates of insurance indicating that there is in effect general public liability insurance covering any damages arising out of the use or operation of any devices and facilities operated in connection with such wireless communications towers, antennas, and associated accessory structures and facilities. Such insurance shall be in the minimal amount of $2,000,000.00 per person, $2,000,000.00 for each accident and $6,000,000.00 property damage. Said certificate or certificates of insurance shall be furnished the zoning administrator annually.

(25)

Indemnification. The owner and operator agree to indemnify, defend, and hold harmless the City of Cudahy and its elected officials, officers, employees, agents, departments, agencies, committees, boards, and representatives from and against any and all claims, costs, losses, expenses, demands, actions, or causes of action, including reasonable attorney fees and other costs and expenses of litigation, which may be asserted against or incurred by the City of Cudahy or for which the City of Cudahy may be held liable, which arise from the negligence, willful misconduct, or other fault of the owner and operator or their employees, agents, or subcontractors from the installation, operation, use, maintenance, repair, removal, or presence of such wireless communications towers, antennas, and associated accessory structures and facilities on any property.

(26)

Debris. Any debris arising from the permittee's use, whether arising from construction or at any time thereafter, must be promptly removed by the permittee. Debris remaining for more than five business days constitutes a violation of this article subject to the violations and penalties provisions of section 1-15 of this Code. Each day that the debris remains after such time constitutes a separate offense.

(27)

Fall zone. Conditional use status shall not be granted to communication towers unless the tower is located so that there is sufficient radius of clear land around the tower so that its collapse shall be completely contained on the property, subject to the following. Except as provided in subsection (28), below, if an applicant provides the city with engineering certification showing that the tower is designed to collapse within a smaller area than the radius equal to the height of the tower, the smaller area shall be used unless the city has and provides to the applicant substantial evidence that the engineering certification is flawed.

(28)

Single family setback. Any tower that is constructed on or adjacent to a parcel of land on or adjacent to which single-family residential use is permitted shall be setback from every lot line of a parcel for which single-family residential use is permitted by a distance that equals or exceeds the height of the tower.

(Ord. No. 2518, § 1, 5-17-2022)

The city review and action in the matter shall be subject to the limitations imposed by Wis. Stats. § 66.0404(4) and other applicable laws. In the event the applicant believes the city has exceeded its authority in this regard, the applicant shall notify the plan commission in writing and the plan commission reserves the right to reconsider the matter, to ensure that applicable laws are followed.

(Ord. No. 2518, § 1, 5-17-2022)

The construction of modifications to an existing mobile service support structure or mobile service facility, and any installation of a small wireless facility on an existing structure, shall be subject to the following requirements:

(1)

Substantial modification.

a.

Application and review process. The application and review process for a substantial modification is identical to the application and review process for a new tower, as described in section 44-964, above, except that the required plans should describe the proposed modifications, rather than describe the new structure.

(2)

Not substantial modifications.

a.

Application information. The applicant shall submit a written application that describes the applicant's basis for concluding that the modification is not substantial, and all of the following information:

1.

The name and business address of, and the contact individual for, the applicant.

2.

The location of the affected support structure.

3.

The location of the proposed facility.

b.

Completeness determination within five days. The city administrator will determine whether the application is complete. If the application includes all of the foregoing information, the application shall be found to be complete. The city administrator must notify the applicant in writing within five days of receiving the application if it is found not to be complete, specifying in detail the required information that was incomplete. The applicant may resubmit as often as necessary until it is complete.

c.

Fee. Any petition shall be accompanied by a fee as set from time-to-time by the common council to defray the cost of review. Costs incurred by the city in obtaining legal, planning, engineering and other technical and professional advice in connection with the review of the conditional use and preparation of the conditions to be improved shall be charged to the petitioner. Such fee shall not exceed the limits established by Wis. Stats. § 66.0404(4)(d).

d.

Determination. The plan commission shall make a decision on the application within a reasonable time, provided further that final action shall be taken within the time required by applicable laws unless the time extended by the petitioner. Said decision shall be stated in writing and a copy made a permanent part of the city records. If approval is not granted, the reasons therefor will be included in such record.

e.

Limitations upon authority. The city review and action in the matter shall be subject to the limitations imposed by Wis. Stats. § 66.0404(4), 66.0414 and such other laws as may apply which may include 47 USCA §1455. In the event the applicant believes the city has exceeded its authority in this regard, the applicant shall notify the plan commission in writing and the plan commission reserves the right to reconsider the matter, to ensure that applicable laws are followed.

(Ord. No. 2518, § 1, 5-17-2022)