This chapter shall govern all lands within the jurisdiction of the Custer city council for Custer City, South Dakota.

(Ord. 665 (part), 2009)

   For the purposes of this chapter, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number and words in the singular number include the plural number. The word “shall” is always mandatory, and not merely directory.

   “Accessory facility or structure” means an accessory facility or structure serving or being used in conjunction with wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including but not limited to, utility or transmission equipment storage sheds or cabinets.

   “Applicant” means any wireless service provider submitting an application for a land use permit for wireless telecommunications facilities.

   “Application” means all necessary and appropriate documentation that an applicant submits in order to receive a land use permit for wireless telecommunications facilities.

   “Antenna” means a system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless signals.

   “Board” means the Custer city council shall serve as the board.

   “Co-location” means the use by more than one (1) wireless telecommunication provider, of an existing tower or structure to support antennae for the provision of wireless services. A replacement tower that is constructed on the same site as an existing tower will be considered a co-location as long as the new tower is no taller than the old tower and that the old tower is removed in a reasonable short timeframe after the new tower is constructed.

   “Commercial impracticability” or “commercially impracticable” means the inability to perform an act on terms that are reasonable in commerce; the cause or occurrence of which could not have been reasonably anticipated or foreseen and that jeopardizes the financial efficacy of the project. The inability to achieve a satisfactory financial return on investment or profit, standing alone, shall not deem a situation to be “commercial impracticable” and shall not render an act or the terms of an agreement “commercially impracticable”.

   “Completed application” means an application that contains all information and/or data necessary to enable an informed decision to be made with respect to an application.

   “FAA” means the Federal Aviation Administration, or its duly designated and authorized successor agency.    “FCC” means the Federal Communications Council, or its duly designated and authorized successor agency.    “Height” means, when referring to a tower or structure, the distance measured from the preexisting grade level to the highest point on the tower or structure, even if said highest point is an antenna or lightning protection device.

   “Land use permit” means the official document or permit by which an applicant is allowed to file for a building permit to construct and use wireless telecommunications facilities as granted or issued by the city.

   “Modification” or “modify” means, the addition, removal or change of any of the physical and visually discernable components or aspects of a wireless facility, such as antennas, cabling, equipment shelters, landscaping, fencing, utility feeds, changing the color or materials of any visually discernable components, vehicular access, parking and/or an upgrade or change out of equipment for better or more modern equipment. Adding a new wireless carrier or service provider to a telecommunications tower or telecommunications site as a co-location is a modification. A modification shall not include the replacement of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without adding, removing or changing anything.

   “NIER” means non-ionizing electromagnetic radiation.

   “Person” means any individual, corporation, estate, trust, partnership, joint stock company, association of two (2) or more persons having a joint common interest, or any other entity.

   “Personal wireless facility.” See definition for “wireless telecommunications facilities”.

   “Personal wireless services” or “PWS” or “personal telecommunications service” or “PCS” shall have the same meaning as defined and used in the 1996 Telecommunications Act.

   “Planning commission” means the planning commission of Custer City.

   “Repairs and maintenance” means the replacement of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without the addition, removal or change of any of the physical or visually discernable components or aspects of a wireless facility that will add to the visible appearance of the facility as originally permitted.

   “Stealth” or “stealth technology” means to minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in general the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.

   “State” means the State of South Dakota.

   “Telecommunications” means the transmission and/or reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.

   “Telecommunication site.” See definition for “wireless telecommunications facilities”.

   “Telecommunications structure” means a structure used in the provision of services described in the definition of “wireless telecommunications facilities”.

   “Temporary” means, temporary in relation to all aspects and components of this section, something intended to, or that does not exist for more than ninety (90) days.

   “Tower” means any structure designed primarily to support an antenna for receiving and/or transmitting a wireless signal.

   “Wireless telecommunications facilities” means and includes a “telecommunications site” and “personal wireless facility”. It means a structure, facility or location designed, or intended to be used as, or used to support antennas or other transmitting or receiving devices. This includes without limit, towers of all types and kinds and structures, including, but not limited to buildings, church steeples, silos, water towers, signs or other structures that can be used as a support structure for antennas or the functional equivalent of such. It further includes all related facilities and equipment such as cabling, equipment shelters and other structures associated with the site. It is a structure and facility intended for transmitting and/or receiving radio, television, cellular, SMR, paging, 911, personal communications services (PCS), commercial satellite services, microwave services and any commercial wireless telecommunication service not licensed by the FCC.

(Ord. 665 (part), 2009)

   In order to ensure that the placement, construction, and modification of wireless telecommunications facilities protects the city's health, safety, public welfare, environmental features, the nature and character of the community and neighborhood and other aspects of the quality of life specifically listed elsewhere in this section, the city hereby adopts an overall policy with respect to a land use permit for wireless telecommunications facilities for the express purpose of achieving the following goals:

   A.   Requiring a land use permit for any new, co-location or modification of a wireless telecommunications facility.

   B.   Implementing an application process for person(s) seeking a land use permit for wireless tele- communications facilities.

   C.   Establishing a policy for examining an application for and issuing a land use permit for wireless tele- communications facilities that is both fair and consistent.

   D.   Promoting and encouraging, wherever possible, the sharing and/or co-location of wireless tele- communications facilities among service providers.

   E.   Promoting and encouraging, wherever possible, the placement, height and quantity of wireless telecommunications facilities in such a manner, including but not limited to the use of stealth technology, to minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.

   F.   That in granting a land use permit, the city has found that the facility shall be the most appropriate site in regards to being the least visually intrusive among those available in the city.

(Ord. 665 (part), 2009)

   A.   No person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of wireless telecommunications facilities as of the effective date of this chapter without having first obtained a land use permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this section, no land use permit will be required for those non-commercial exceptions noted in Section 17.42.050.

   B.   All legally permitted wireless telecommunications facilities, constructed as permitted, existing on or before the effective date of this section shall be allowed to continue as they presently exist, provided however, that any visible modification of an existing wireless telecommunications facility shall require the complete facility and any new installation to comply with this section.

   C.   Any repair and maintenance of a wireless facility does not require an application for a land use permit.

(Ord. 665 (part), 2009)

   The following shall be exempt from this chapter.

   A.   Fire, police and highway departments or other public service facilities owned and operated by the local government and located in Custer City.

   B.   Any facilities expressly exempt from the city's siting, building and permitting authority.

   C.   Over-the-air reception devices including the reception antennas for direct broadcast satellites (DBS), multichannel multipoint distribution (wireless cable) providers(MMDS), television broadcast stations (TVBS) and other customer-end antennas that receive and transmit fixed wireless signals that are primarily used for reception.

   D.   Facilities exclusively for private, non-commercial radio and television reception and private citizen's bands, licensed amateur radio and other similar non-commercial telecommunications.

   E.   Facilities exclusively for providing unlicensed spread spectrum technologies (such as IEEE 802.11a, b, g (Wi-Fi) and Bluetooth) where the facility does not require a new tower.

(Ord. 665 (part), 2009)

   A.   All applicants for a land use permit for wireless telecommunications facilities or any modification of such facility shall comply with the requirements set forth in this section. The planning council is the officially designated agency or body of the city to whom applications for a land use permit for wireless telecommunications facilities must be made, and that is authorized to review, analyze, evaluate and make decisions with respect to recommending the granting or not granting or revoking land use permits for wireless telecommunications facilities to the Custer City board. The board shall have the power to hear and decide the granting of land use permits. The city may at its discretion delegate or designate other official agencies or officials of the city to accept, review, analyze, evaluate and make recommendations to the planning council with respect to the granting or not granting or revoking land use permits for wireless telecommunications facilities.

   B.   The city may reject applications not meeting the requirements stated herein or which are otherwise incomplete.

   C.   No wireless telecommunications facilities shall be installed, constructed or modified until the application is reviewed and approved by the city, and the land use permit has been issued.

   D.   Any and all representations made by the applicant to the city 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 city.

   E.   An application for a land use permit for wireless telecommunications 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.

   F.   The applicant must provide documentation to verify it has the right to proceed as proposed on the site. This would require an executed copy of the lease with the landowner or landlord or a signed letter acknowledging authorization. If the applicant owns the site, a copy of the ownership record is required.

   G.   The applicant shall include a statement in writing:

   1.   That the applicant's proposed wireless telecommunications facilities shall be maintained in a safe manner, and in compliance with all conditions of the land use permit, without exception, unless specifically granted relief by the city in writing, as well as all applicable and permissible local codes, ordinances, and regulations, including any and all applicable city, county, state and federal laws, rules, and regulations; and

   2.   That the construction of the wireless telecommunications facilities is legally permissible, including, but not limited to the fact that the applicant is authorized to do business in the state.

   H.   Where a certification is called for in this section, such certification shall bear the signature and seal of a

registered professional engineer licensed in the state.

   I.   In addition to all other required information as stated in this chapter, all applications for the construction or installation of new wireless telecommunications facilities or modification of an existing facility shall contain the information hereinafter set forth.

   1.   A descriptive statement of the objective(s) for the new facility or modification including and expanding on a need such as coverage and/or capacity requirements;

   2.   Documentation that demonstrates and proves the need for the wireless telecommunications facility to provide service primarily and essentially within the city. Such documentation shall include propagation studies of the proposed site and all adjoining planned, proposed, in-service or existing sites that demonstrate a significant gap in coverage and/or if a capacity need, including an analysis of current and projected usage;

   3.   The name, address and phone number of the person preparing the report;

   4.   The name, address, and phone number of the property owner and applicant, and to include the legal name of the applicant. If the site is a tower and the owner is different that the applicant, provide name and address of the tower owner;

   5.   The postal address and tax map parcel number of the property;

   6.   Size of the property stated both in square feet and lot line dimensions, and a survey showing the location of all lot lines;

   7.   The location of the nearest residential structure;

   8.   The location, size and height of all existing and proposed structures on the property which is the subject of the application;

   9.   The type, locations and dimensions of all proposed and existing landscaping, and fencing;

   10.   The azimuth size and center-line height location of all proposed and existing antennae on the supporting structure;

   11.   The number, type and model of the antenna(s) proposed with a copy of the specification sheet;

   12.   The make, model, type and manufacturer of the tower and design plan stating the tower's capacity to accommodate multiple users;

   13.   A site plan describing the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above pre-existing grade, materials, color and lighting;

   14.   The frequency, modulation and class of service of radio or other transmitting equipment;

   15.   The actual intended transmission power stated as the maximum effective radiated power (ERP) in watts;

   16.   Signed documentation such as the "Checklist to Determine Whether a Facility is Categorically Excluded" to verify that the wireless telecommunication facility with the proposed installation will be in full compliance with the current FCC RF Emissions guidelines (NIER). If not categorically excluded, a complete RF Emissions study is required to provide verification;

   17.   A signed statement that the proposed installation will not cause physical or RF interference with other telecommunications devices;

   18.   A copy of the FCC license applicable for the intended use of the wireless telecommunications facilities; and

   19.   A copy of the geotechnical sub-surface soils investigation, evaluation report and foundation recommendation for a proposed or existing tower site and if existing tower or water tank site, a copy of the installed foundation design.

   J.   The applicant will provide a written copy of an analysis, completed by a qualified individual or organization, to determine if the proposed new tower or existing structure intended to support wireless facilities is in compliance with Federal Aviation Administration Regulation Part 77 and if it requires lighting. This requirement shall also be for any existing structure or building where the application increases the height of the structure or building. If this analysis determines that an FAA determination is required, then all filings with the FAA, all responses from the FAA and any related correspondence shall be provided with the application.

   K.   Application for new tower.

   1.   In the case of a new tower, the applicant shall be required to submit a written report demonstrating its meaningful efforts to secure shared use of existing tower(s) or the use of alternative buildings or other structures within the city. Copies of written requests and responses for shared use shall be provided to the city in the application, along with any letters of rejection stating the reason for rejection.

   2.   The applicant shall examine the feasibility of designing the proposed tower to accommodate future demand for at least four (4) additional commercial applications, for example, future co-locations. The tower shall be structurally designed to accommodate at least four (4) 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 tower is not technologically feasible, is commercially impracticable or creates an unnecessary and unreasonable burden, based upon:

   a.   The foreseeable number of FCC licenses available for the area;

   b.   The type of wireless telecommunications facilities site and structure proposed;

   c.   The number of existing and potential licenses without wireless telecommunications facilities spaces/sites; and

   d.   Available space on existing and approved towers.

   L.   The owner of a proposed new tower, and his/her successors in interest, shall negotiate in good faith for the shared use of the proposed tower by other wireless service providers in the future, and shall:

   1.   Respond within sixty (60) days to a request for information from a potential shared use applicant;

   2.   Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers; and

   3.   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.

   4.   Failure to abide by the conditions outlined above may be grounds for revocation of the land use permit.

   M.   The applicant shall provide certification with documentation (structural analysis) including calculations that the telecommunication facility tower and foundation and attachments, rooftop support structure, water tank structure, and any other supporting structure as proposed to be utilized are designed and will be constructed to meet all local, city, state and federal structural requirements for loads, including wind and ice loads.

   N.   If proposal is for a co-location or modification on an existing tower, the applicant is to provide signed documentation of the tower condition such as an ANSI report as per Annex E, Tower Maintenance and Inspection Procedures, ANSI/TIA/EIA-222F or most recent version. The inspection report must be performed every three (3) years for a guyed tower and five (5) years for monopoles and self-supporting towers.

   O.   All proposed wireless telecommunications facilities shall contain a demonstration that the facility be sited so as to be the least visually intrusive as reasonably possible, given the facts and circumstances involved and thereby have the least adverse visual effect on the environment and its character, on existing vegetation, and on the residences in the area of the wireless telecommunications facility.

   P.   If a new tower, proposal for a new antenna attachment to an existing structure, or modification adding to a visual impact, the applicant shall furnish a visual impact assessment, which shall include:

   1.   If a new tower or increasing the height of an existing structure is proposed, a computer generated “Zone of Visibility Map” at a minimum of one (1) mile radius from the proposed structure, with and without foliage shall be provided to illustrate locations from which the proposed installation may be seen.

   2.   Pictorial representations of “before and after” (photo simulations) views from key viewpoints both inside and outside of the city as may be appropriate, 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. Guidance will be provided, concerning the appropriate key sites at the pre-application meeting. Provide a map showing the locations of where the pictures were taken and distance from the proposed structure.

   3.   A written description of the visual impact of the proposed facility including; and as applicable the tower base, guy wires, fencing and accessory buildings from abutting and adjacent properties and streets as relates to the need or appropriateness of screening.

   Q.   The applicant shall demonstrate and provide in writing and/or by drawing how it shall effectively screen from view the base and all related equipment and structures of the proposed wireless telecommunications facility.

   R.   The wireless telecommunications facility and any and all accessory or associated facilities shall maximize the use of building materials, colors and textures designed to blend with the structure to which it may be affixed and/or to harmonize with the natural surroundings, this shall include the utilization of stealth or concealment technology as may be required by the city.

   S.   All utilities at a wireless telecommunications facilities site shall be installed underground and in compliance with all laws, 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.

   T.   At a telecommunications site, an access road, turn-around space and parking shall be provided to assure 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 the cutting of vegetation. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion.

   U.   All wireless telecommunications facilities shall be constructed, operated, maintained, repaired, provided for removal of, modified or restored in strict compliance with all current applicable technical, safety and safety-related codes adopted by the city, state, or United States, including but not limited to the most recent editions of the ANSI Code, National Electrical Safety Code and the National Electrical Code, as well as accepted and responsible workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but are 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.

   V.   A holder of a land use permit granted under this section shall obtain, at his/her own expense, all permits and licenses required by applicable law, rule, regulation or code, 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.

   W.   There shall be a pre-application meeting. The purpose of the pre-application meeting will be to address issues that will help to expedite the review and permitting process. A pre-application meeting shall also include a site visit if there has not been a prior site visit for the requested site.

   X.   An applicant shall submit to the city the number of completed applications determined to be needed at the pre-application meeting. Written notification of the application shall be provided to the legislative body of all adjacent entities as applicable and/or requested.

   Y.   The holder of a land use permit shall notify the city of any intended modification of a wireless telecommunication facility and shall apply to the city to modify, relocate or rebuild a wireless telecommunications facility.

(Ord. 665 (part), 2009)

   A.   Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities in accordance with the following priorities, 1. being the highest priority and 4. being the lowest priority.

   1.   On existing towers or other structures.

   2.   A new tower on properties in areas in general commercial use.

   3.   A new tower on properties in areas in general agricultural use.

   4.   A new tower on properties in areas in general residential use.

   B.   If the proposed site is not proposed for 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.

   C.   An applicant may not by-pass sites of higher priority by stating the site proposed is the only site leased or selected. An application shall address co-location as an option. If such option is not proposed, the applicant must explain to the reasonable satisfaction of the city 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.

   D.   Notwithstanding the above, the city may approve any site located within an area in the above list of priorities, provided that the city finds that the proposed site is in the best interest of the health, safety and welfare of the city and its inhabitants and will not have a deleterious effect on the nature and character of the community and neighborhood.

   E.   The applicant shall submit a written report demonstrating the applicant's review of the above locations in order of priority, demonstrating the technological reason for the site selection. If appropriate, based on selecting a site of lower priority, a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.

   F.   Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the city may disapprove an application for any of the following reasons.

   1.   Conflict with safety and safety-related codes and requirements;

   2.   Conflict with the historic nature or character of a neighborhood;

   3.   The placement and location of wireless telecommunications facilities which would create an unacceptable risk, or the reasonable probability of such, to residents, the public, employees and agents of the city, or employees of the service provider or other service providers; or

   4.   Conflicts with the provisions of this chapter.

(Ord. 665 (part), 2009)

   A.   The city shall prefer locating on existing towers or others structures without increasing the height as opposed to the construction of a new tower. The applicant shall submit a comprehensive report inventorying existing towers and other suitable structures within two (2) miles of the location of any proposed new tower, unless the applicant can show that some other distance is more reasonable and demonstrate conclusively why an existing tower or other suitable structure cannot be used.

   B.   An applicant intending to locate on an existing tower or other suitable structure shall be required to document the intent of the existing owner to permit its use by the applicant.

   C.   Such shared use shall consist only of the minimum antenna array technologically required to provide service primarily and essentially within the city, to the extent practicable, unless good cause is shown.

(Ord. 665 (part), 2009)

   A.   The applicant shall submit documentation justifying the total height of any tower, facility and/or antenna requested and the basis therefore. Documentation in the form of propagation studies must include all backup data used to perform at requested height and a minimum of ten (10) feet lower height to allow verification of this height need. Such documentation will be analyzed in the context of the justification of the height needed to provide service primarily and essentially within the city, to the extent practicable, unless good cause is shown.

   B.   No tower constructed after the effective date of this chapter, including allowing for all attachments, shall exceed that height which shall permit operation without required artificial lighting of any kind in accordance with city, state, and/or any federal statute, law, local law, city ordinance, code, rule or regulation.

(Ord. 665 (part), 2009)

   A.   Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.

   B.   Towers shall be galvanized and/or painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings and shall be maintained in accordance with the requirements of this chapter.

   C.   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.

(Ord. 665 (part), 2009)

   All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner that prevents unauthorized access. Specifically:

   A.   All antennas, towers and other supporting structures, including guy anchor points and wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or collided with; and

   B.   Transmitters and telecommunications control points shall be installed in such a manner that they are readily accessible only to persons authorized to operate or service them.

(Ord. 665 (part), 2009)

   Wireless telecommunications facilities shall contain a sign no larger than four (4) square feet in order to provide adequate notification to persons in the immediate area of the presence of RF radiation or to control exposure to RF radiation within a given area. A sign of the same size is also to be installed to 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 be on the equipment shelter or cabinet of the applicant and be visible from the access point of the site and must identify the equipment owner of the shelter or cabinet. On tower sites, an FCC registration site as applicable is also to be present. The signs shall not be lighted, unless applicable law, rule or regulation requires lighting. No other signage, including advertising, shall be permitted.

(Ord. 665 (part), 2009)

   All proposed towers and any other proposed wireless telecommunications facility structures shall be set back from abutting parcels, recorded rights-of-way and road and street lines by the following distances: A distance equal to the height of the proposed tower or wireless telecommunications facility structure plus ten percent (10%) of the height of the tower or structure. Any accessory structure shall be located so as to comply with the applicable minimum setback requirements for the property on which it is situated.

(Ord. 665 (part), 2009)

   A.   Prior to the approval of any application for a land use permit for wireless telecommunications facilities, a public hearing shall be held by the city, notice of which shall be published in the newspaper of general circulation in the city no less than ten (10) calendar days prior to the scheduled date of the public hearing. In order that the nearby landowners are notified, the applicant shall notify all landowners whose property is located within two thousand six hundred forty feet (2,640) feet of the base structure of the proposed wireless telecommunications facility. A list of property owners that lie within the notification area shall be furnished to the applicant by Custer City.

   B.   There shall be no public hearing required for an application to co-locate on an existing tower or other structure or a modification at an existing site, as long as there is no proposed increase in the height of the tower or structure, including attachments thereto.

   C.   The city shall schedule a public hearing once it finds the application is complete. The city, at any stage prior to issuing a land use permit, may require such additional information as it deems necessary.

(Ord. 665 (part), 2009)

   A.   The city will undertake a review of an application pursuant to this section in a timely fashion, consistent with its responsibilities, 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.

   B.   The city may refer any application or part thereof to any advisory, other committee or council for a non-binding recommendation.

   C.   After the public hearing and after formally considering the application, the city may approve, approve with conditions, or deny a land 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 granting of the permit shall always be upon the applicant.

   D.   If the city approves the land use permit for wireless telecommunications facilities, then the applicant shall be notified of such approval in writing within ten (10) calendar days of the city's action, and the land use permit shall be issued within thirty (30) days after such approval. Except for necessary building permits, and grading permits, once a land use permit has been granted hereunder, no additional permits or approvals from the city, such as site plan, shall be required by the city for the wireless telecommunications facilities covered by the land use permit.

   E.   If the city denies the land use permit for wireless telecommunications facilities, then the applicant shall be notified of such denial in writing within ten (10) calendar days of the city's action.

(Ord. 665 (part), 2009)

   The extent and parameters of a land use permit for wireless telecommunications facilities shall be as follows:

   A.   Such land use permit shall not be assigned, transferred or conveyed without the express prior written notification to the city.

   B.   Such land 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 land use permit, or for a material violation of this chapter after prior written notice to the holder of the land use permit.

(Ord. 665 (part), 2009)

   At the time that a person submits an application for a land use permit for a new tower, or modification of an existing tower, such person shall pay a non-refundable application fee to the city. The application fee shall be established by resolution of the board of city council. Application fee rates may be adjusted, when deemed appropriate, by resolution of the board.

(Ord. 665 (part), 2009)

   The applicant and the owner of record of any proposed wireless telecommunications 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 ($75,000.00) for a tower facility and twenty-five thousand dollars ($25,000.00) for a co-location on an existing tower or other structure and with such sureties as are deemed sufficient by the city to assure the faithful performance of the terms and conditions of this chapter and conditions of any land 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 land use permit and/or until any necessary site restoration is completed to restore the site to a condition comparable to that, which existed prior to the issuance of the original land use permit.

(Ord. 665 (part), 2009)

   In order to verify that the holder of a land use permit for wireless telecommunications facilities and any and all lessees, renters, and/or licensees of wireless telecommunications facilities, place and construct such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building codes, laws, ordinances and regulations and other applicable requirements, the city may inspect all facets of said permit 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.

(Ord. 665 (part), 2009)

   A.   A holder of a land use permit for wireless telecommunications facilities shall secure and at all times maintain public liability insurance for personal injuries, death and property damage, and umbrella insurance coverage, for the duration of the land use permit in amounts as set forth below:

   1.   Commercial general liability covering personal injuries, death and property damage: $2,000,000 per occurrence/$5,000,000 aggregate;

   2.   Automobile coverage: statutory amounts;

   3.   Workers' compensation and disability: statutory amounts.

   B.   For a wireless telecommunications facility on city property, the commercial general liability insurance policy shall specifically include the city and its officers, councils, employees, committee members, attorneys, agents and consultants as additional insureds.

   C.   The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the state and with an A.M. Best's rating of at least A.

   D.   The insurance policies shall contain an endorsement obligating the insurance company to furnish the city with at least thirty (30) day's prior written notice in advance of the cancellation of the insurance.

   E.   Renewal or replacement policies or certificates shall be delivered to the community development office at least fifteen (15) days before the expiration of the insurance that such policies are to renew or replace.

   F.   Before construction of a permitted wireless telecommunications facilities is initiated, but in no case later than fifteen (15) days after the granting of the land use permit, the holder of the land use permit shall deliver to the city a copy of each of the policies or certificates representing the insurance in the required amounts.

(Ord. 665 (part), 2009)

   A.   Any application for wireless telecommunication 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 the law, to at all times defend, indemnify, protect, save, hold harmless, and exempt the city, and its officers, councils, 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 law or in equity, which might arise out of, or are caused by, the placement, construction, erection, modification, location, products performance, use, operation, maintenance, repair, installation, replacement, removal, or restoration of said facility, excepting, however, any portion of such claims, suits, demands, causes of action or award of damages as may be attributable to the negligent or intentional acts or omissions of the city, or its servants or agents. 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.

   B.   Notwithstanding the requirements noted in subsection A. of this section, an indemnification provision will not be required in those instances where the city itself applies for and secures a land use permit for wireless telecommunications facilities.

(Ord. 665 (part), 2009)

   A.   Violation of this chapter is a Class II misdemeanor. In the event of a violation of this chapter or any land use permit issued pursuant to this chapter, the city may impose and collect, and the holder of the land use permit for wireless telecommunications facilities shall pay to the city, fines or penalties of a minimum of one hundred dollars ($100.00) but not more than three hundred dollars ($300.00) per day of violation. Each day of continuing violation after notification shall constitute a separate offense under this section.

   B.   Notwithstanding anything in this chapter, the holder of the land use permit for wireless telecommunications facilities may not use the payment of fines, liquidated damages or other penalties, to evade or avoid compliance with this chapter or any section of this chapter. An attempt to do so shall subject the holder of the land use permit to termination and revocation of the land use permit. The city may also seek injunctive relief to prevent the continued violation of this chapter, without limiting other remedies available to the city.

(Ord. 665 (part), 2009)

   If a wireless telecommunications facility is 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 land use permit, then the city shall notify the holder of the land use permit in writing of such violation. A permit holder in violation may be considered in default and subject to fines as in section 17.42.220 and if a violation is not corrected to the satisfaction of the city in a reasonable period of time the land use permit is subject to revocation.

(Ord. 665 (part), 2009)

   A.   Under the following circumstances, but not limited to the following circumstances, the city may determine that the health, safety, and welfare interests of the city warrant and require the removal of wireless telecommunications facilities.

   1.   Wireless telecommunications facilities with a permit have been abandoned (i.e. not used as wireless telecommunications facilities) for a period exceeding ninety (90) consecutive days or a total of one hundred-eighty (180) days in any three hundred sixty-five (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;

   2.   Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard;

   3.   Wireless telecommunications facilities have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required land use permit, or any other necessary authorization then the land use permit may be revoked.

   B.   If the city makes such a determination as noted in subsection A. of this section, then the city shall notify the holder of the land use permit for the wireless telecommunications facilities within forty-eight (48) hours that said wireless telecommunications facilities are to be removed. The city may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.

   C.   The holder of the land use permit, or its successors or assigns, shall dismantle and remove such wireless telecommunications 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 telecommunications facilities are located wishes to retain any access roadway to the wireless telecommunications facilities, the owner may do so with the approval of the city.

   D.   If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications 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 telecommunications facilities at the sole expense of the owner or land use permit holder.

   E.   If the city removes, or causes to be removed, wireless telecommunications facilities, and the owner of the wireless telecommunications 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 telecommunications facilities abandoned, and sell them and their components.

(Ord. 665 (part), 2009)

   Any applicant desiring relief, waiver or exemption from any aspect or requirement of this chapter may request such at the pre-application meeting, provided that the relief or exemption is contained in the submitted application for either a land use permit, or in the case of an existing or previously granted land use permit a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete. However, the burden of proving the need for the requested relief, waiver or exemption is solely on the applicant to prove. The applicant shall bear all costs of the city in considering the request and the relief, waiver or exemption. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted, the relief, waiver or exemption will have no significant affect on the health, safety and welfare of the city, its residents and other service providers.

(Ord. 665 (part), 2009)

   A.   To the extent that the holder of a land use permit for wireless telecommunications facilities has not received relief, or is otherwise exempt, from appropriate state and/or federal agency rules or regulations, then the holder of such a land 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:

   1.   Wireless telecommunications facilities with a permit have been abandoned (i.e. not used as wireless telecommunications facilities) for a period exceeding ninety (90) consecutive days or a total of one hundred eighty (180) days in any three hundred sixty-five (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;

   2.   Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard;

   3.   Wireless telecommunications facilities have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required land use permit, or any other necessary authorization then the land use permit may be revoked.

   B.   If the city makes such a determination as noted in subsection A. of this section, then the city shall notify the holder of the land use permit for the wireless telecommunications facilities within forty-eight (48) hours that said wireless telecommunications facilities are to be removed. The city may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.

   C.   The holder of the land use permit, or its successors or assigns, shall dismantle and remove such wireless telecommunications 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 telecommunications facilities are located wishes to retain any access roadway to the wireless telecommunications facilities, the owner may do so with the approval of the city.

   D.   If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications 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 telecommunications facilities at the sole expense of the owner or land use permit holder.

   E.   If the city removes, or causes to be removed, wireless telecommunications facilities, and the owner of the wireless telecommunications 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 telecommunications facilities abandoned, and sell them and their components.

(Ord. 665 (part), 2009)

   A.   To the extent that the holder of a land use permit for wireless telecommunications facilities has not received relief, or is otherwise exempt, from appropriate state and/or federal agency rules or regulations, then the holder of such a land 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.

   B.   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 rules and regulations regarding height, lighting, and security are changed and/or are modified during the duration of a land use permit for wireless telecommunications facilities, then the holder of such a land use permit shall conform the permitted wireless telecommunications facilities to the applicable changed and/or modified rule, regulation, standard, or provision within a maximum of twenty-four (24) months of the effective date of the applicable changed and/or modified rule, regulation, standard, or provision, or sooner as may be required by the issuing entity.

(Ord. 665 (part), 2009)