The purpose of this Article is to facilitate the expansion of the wireless telecommunications industry through the use of reasonable and nondiscriminatory policies designed to encourage growth and competition for the benefit of the citizens of the City of Diamondhead, but at the same time to protect the public against any adverse impact upon the City's aesthetic resources, avoid potential damage to the adjacent properties from tower failure through structural standards and setback requirements, maximize the use of existing and approved towers, and buildings through co-location, insure the use of disguised facilities so as to blend them with the surrounding environment, and protect the public health, safety and welfare.

For the purpose of this Article, the following definitions shall apply.

A.

Antenna. Any structure or device used for the purpose of collecting or radiating electromagnetic waves, including, but not limited to, directional antennas, such as panels, microwaves dishes, satellite dishes, and omni-directional antennas, such as whip antennas.

B.

Commercial Wireless Telecommunication Services. Licensed commercial wireless telecommunication services including cellular, personal communication services (PCS), specialized mobilized radio (SMR), enhanced specialized mobilized radio (ESMR), paging, and similar services that are marketed to the general public.

C.

FAA. Federal Aviation Administration.

D.

FCC. Federal Communications Commission.

E.

Governing Authority. Shall mean the City Council of the City of Diamondhead.

F.

Guyed Tower. A telecommunications tower that is supported or stabilized in whole or in part by guy wires and ground.

G.

Height. The height of a tower generally is the distance from the base of the tower to the top of the structure. Height is more specifically defined herein.

H.

Person. Any natural person, a partnership of two (2) or more persons having a joint or common interest, corporation, partnership, limited partnership, limited liability company, or other entity or form of entity, including an association of persons or entities.

I.

Protected areas. Any property within the city that meets all of the following requirements:

i.

Except as otherwise provided, properties within the city are protected from the installation of telecommunication towers if the property is zoned and designated R-1 (single-family residential district), R-2 (single-family residential district), R-3 (single-family residential district), R-4 (multi-family residential district), MH (residential manufactured homes district), or any other areas protected under the National Environmental Policy Act of 1969 such as historic sites and wetlands.

ii.

The property is used or subdivided for use as one of the aforesaid zoning designations.

J.

Public Utility. Persons, corporations, or governments supplying gas, electric, transportation, water, sewer, or land line telephone service to the general public. For the purpose of this ordinance, commercial wireless telecommunication service facilities shall not be considered public utility uses, and are defined separately.

K.

Satellite Dish. The term satellite dish shall be an inclusive term and shall mean any antenna designed to receive direct broadcast satellite service, including direct-to-home satellite service, video programming services via multi-point distribution services, including multichannel multi point distribution services, instruction television fixed services, local multi-point distribution services, or television broadcast signals, via direct or orbital satellite signals.

L.

Self-Support/Lattice Tower. A telecommunication tower that is constructed without guy wires and ground anchors.

M.

Stealth Building-Mounted Antennas. Antennas which are mounted on an existing structure with or without a mast and which are painted to match the color of the exterior material of the structure and placed so as not to obscure any significant architectural feature of the structure.

N.

Tower. Any ground- or roof-mounted pole, spire, mast, structure, or combination thereof taller than 12 feet, including supporting lines, cables, wires, braces, and masts, intended primarily for the purpose of mounting an antenna, meteorological device, or similar apparatus above grade.

13.3.1

District Height Limits.

In accordance with existing zoning regulations, the requirements set forth in this ordinance shall govern the location of towers that exceed, and antennas that are installed at a height in excess of, the height specified for each zoning district. The height limitations applicable to building and structures shall not apply to towers and antennas.

13.3.2

Amateur Radio Antennas.

This ordinance shall not govern any tower, or the installation of any antenna, that is under seventy (70) feet in height, located in the rear yard of residentially zoned parcels, and is owned and operated by a federally-licensed amateur radio operator.

13.3.3

Grandfathered Towers and Antennas.

Any tower or antenna existing on the effective date of this ordinance shall not be required to meet the requirements of this ordinance, other than the requirements of any and all preexisting zoning ordinances and any state, FAA or FCC requirements. Any such towers or antennas that fail to meet the requirements of this ordinance shall be referred to in this ordinance as grandfathered towers or grandfathered antennas.

13.3.4

Application to Satellite Dishes.

A.

This ordinance shall apply to all satellite dishes and other forms of antennas located within the City of Diamondhead, except that the following shall be exempt from the requirements of this ordinance:

Any antenna or satellite dish described below that is mounted at a height no greater than twelve (12) feet above ground and is not in violation of setback requirements for the zoning district in which it is located (this measurement includes both the height of the mast or tower to which the antenna is attached as well as the height of the structure upon which it is mounted, such as a house, if applicable);

i.

That is designed to receive direct broadcast satellite service, including direct-to-home satellite services, that is 3 feet or less in diameter; or

ii.

That is designed to receive video programming services via multi-point distribution services, including multi-channel, multi-point distribution services, instructional television fixed services, and local multi-point distribution services, and that is 3 feet or less in diameter or diagonal measurement.

iii.

Any antenna that is planned for co-location on previously approved or pre-existing towers; notwithstanding other regulations contained herein.

B.

The City of Diamondhead expressly finds that in order to protect the safety and welfare of its citizens, to protect adjacent property owners from damage by excessively tall, bulky, or heavy antennas mounted on insufficiently designed or constructed towers or masts, and to ensure the aesthetic value of the city is protected and that it is necessary to regulate antennas that exceed the requirements of Paragraph (A) by application of the provisions of this ordinance and by requiring that permit requests for such towers and/or antenna be subject to conditional use review and approval.

C.

Any antenna or satellite dish that does not fall within the exceptions set forth in (A) above shall be subject to applicable regulations contained in this ordinance and shall only be approved upon review by the Planning Commission and approval by the Diamondhead Mayor and Council through the conditional use procedure as contained in Section 2.5.

13.4.1

Permit.

It shall be unlawful for any person, firm, or corporation to erect, construct in place, place or erect, replace, or repair any tower without first making application to the Zoning Administrator and securing a permit therefor as provided herein and in any other building codes. Towers, antenna, or associated structures permitted following the adoption of this ordinance which are damaged or destroyed due to natural causes may be rebuilt subject to criteria set forth in Section 5.6 of the City's zoning ordinance governing non-conforming buildings and structures. In the event that repairs involve upgrades substantially beyond original configuration such upgrades will require approval in accordance with criteria established herein.

13.4.2

Fees.

The application shall be accompanied by a non-refundable application fee as established by the City Council.

13.4.3

Application.

Each application shall contain the following information as well as additional information that the City Council and the Zoning Administrator may from time to time require:

A.

The name, address, and telephone number of the person requesting the permit. The person named shall be a primary contact who has authority to act on behalf of the person or entity requesting the permit.

B.

Site plan: The site plan shall contain a scaled site plan and a scaled elevation view and other supporting drawings and design data showing the proposed location of the tower, antenna, or both, as well as the location of all other towers used to provide services within the City of Diamondhead.

C.

Each application shall state whether the tower will be a permitted use or one for which a conditional use permit is required.

D.

A report from a qualified and Mississippi-licensed professional engineer which describes:

i.

The tower height and design, including cross sections, elevations and wind load characteristics in accordance with the adopted building code;

ii.

The height above grade for all potential mounting positions for co-located antennas and the minimum separation distances between antennas;

iii.

Describes the towers' capacity, including the number and type of antennas that it can accommodate;

iv.

Documented steps that applicant will take to avoid interference with established public safety telecommunications;

v.

Includes an engineer's seal and registration number; and

vi.

Includes other information necessary to evaluate the request.

E.

Owners of all commercial wireless telecommunications service towers shall file a letter of intent committing the tower owner and his or her successors to allow the shared use of the tower in accordance with 13.6.1.A of this Section if an additional user agrees in writing to meet reasonable terms and conditions for shared use.

F.

Written authorization from the site owner for the application.

G.

Before the issuance of a permit for the construction of a tower the following supplemental information shall be submitted:

i.

Proof that the proposed tower complies with regulations administered by the FAA and FCC; and

ii.

A report from a qualified and Mississippi-licensed professional engineer which demonstrates the tower's compliance with structural and electrical needs required by this ordinance and the City's building codes.

13.4.4

Processing.

A.

Each application shall be processed within a reasonable period of time after application has been filed. A permit or denial of permit shall be issued not later than 30 (thirty) days after the date on which the application was made except as otherwise provided. The Zoning Administrator may extend the time period for granting or denial of a permit beyond the allowed time in increments not to exceed thirty (30) days if the Zoning Administrator finds that, due to the nature and scope of the application, additional time is required. The reasons for the additional time shall be provided to the applicant in writing.

B.

If the request for a permit is denied, then the denial shall be in writing setting forth each specific reason for such denial. The reasons for the denial shall be entered in the written records of the City.

C.

A denial shall be supported by substantial evidence.

13.5.1

Permitted Uses.

A.

General. The uses listed herein are permitted uses; but are nonetheless subject to review by the City Planning Commission. Notwithstanding the foregoing, all such uses shall comply with all applicable safety and building codes established by the City of Diamondhead or any other FAA or FCC requirements. Prior to the installation of any antenna or tower, the owner of such antenna or tower shall make written application as required in Article 2 of this code.

B.

Specific permitted uses are as follows:

i.

The placement of a tower or antenna, including additional buildings or other supporting equipment, in I - Industrial District, C-1 General Commercial District, or C-2 Interstate Commercial District; provided, however, that such tower shall not exceed one foot for each two feet the tower is set back from residential property up to a maximum of 2,000 feet;

ii.

Installation of an antenna on an existing structure other than a tower (such as a building, light pole, water tower, or other freestanding non-residential structure) that is fifty (50) feet in height or greater, provided that the additional antenna adds no more than twenty (20) feet to the height of the existing structure; and

iii.

Installation of an antenna on any existing tower of any height, so long as the addition of said antenna adds no more than twenty (20) feet to the height of the existing tower and the existing tower is not a grandfathered tower; provided, however, that such specific permitted use shall not include the placement of additional buildings or other supporting equipment used in connection with said antenna.

iv.

Buffering:

a.

An eight (8) foot fence or wall constructed as measured from the finished grade for the site and designed to prohibit unauthorized entry on the premises shall be required around the base of any lattice tower and may be permitted around accessory buildings or structures.

b.

Landscaping shall be installed and maintained around the entire perimeter of any fence or wall. Additional landscaping may be required around the perimeter of a fence or wall and around any or all anchors of supports, if deemed necessary to buffer adjacent properties. The City may require landscaping in excess of the requirements of the City's ordinances in order to enhance compatibility with adjacent residential and non-residential land uses. Landscaping shall be installed and maintained on the outside of the perimeter fence or wall.

c.

Landscaping consistent with perimeter and on-site requirements shall be installed and maintained around any accessory buildings or structures.

v.

In all prohibited areas the maximum height of any tower, including all antennas and other attachments, shall conform to preexisting height restrictions established for said area, except that conditional use permits or variances may be granted under the terms set forth in Section 5.3.1 of this ordinance to allow attachments to existing structures.

vi.

Colors: Except where superseded by the requirements of other county, state, or federal regulatory agencies possessing jurisdiction over telecommunication towers, all monopoles shall be constructed of galvanized or unpainted metal or shall be painted in neutral colors, designed to blend into the surrounding environment.

13.5.2

Conditional Use Permits.

A.

General. The following provisions shall govern the issuance of conditional use permits:

i.

If the tower or antenna is not a permitted use under Section 4.21, then a conditional use permit shall be required for the construction of a tower or the placement of an antenna in prohibited areas.

ii.

In granting a conditional use permit, conditions may be imposed to the extent necessary to buffer or otherwise minimize any adverse effect of the proposed tower on adjoining properties.

B.

Factors considered in granting conditional use permits. The City Council shall consider the following factors in determining whether to issue a conditional use permit, although the governing authority may waive or reduce the burden on the applicant of one or more of these criteria, if, in the sole discretion of the governing authority, the goals of this ordinance are better served thereby:

i.

Height of the proposed tower or antenna;

ii.

Proximity of the tower to residential structures and residential district boundaries;

iii.

Technical or engineering requirements limiting placement of the tower in other areas in order to provide coverage;

iv.

Nature of uses on adjacent and nearby properties;

v.

Surrounding topography, tree coverage and foliage;

vi.

Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness; and

vii.

Availability of suitable existing towers and other structures; and

viii.

Use of stealth features designed to disguise such towers or to otherwise cause them to be less visible.

Applicants for permits for the placement of telecommunication towers within the City of Diamondhead shall produce certificates from qualified Mississippi registered engineers or architects indicating that proposed towers are designed so as to meet minimum requirements for wind load characteristics as defined by the adopted building code, FAA and/or FCC regulations, and other generally accepted standards designed to assure public safety and well-being as well as protection of the aesthetic environment.

13.6.1

Co-Location Requirements with Existing Towers or Other Structures.

Co-location or placement of additional antenna on existing previously approved or grandfathered towers shall be authorized by the Zoning Administrator subject to compliance with applicable conditions set forth herein. Preferences, therefore, are authorized herewith for the installation of such facilities provided that the addition or co-location does not result in further violations of existing regulations by pre-existing non-conforming structures. All new towers erected, constructed, or located within the City shall comply with the following requirements:

A.

Any proposed tower shall be designed structurally, electrically, and in all respects to accommodate both the applicant's antennas and comparable antennas for at least two additional users if the tower is over 100 feet in height or for at least one additional user if the tower is over 60 feet in height. Towers must be designed to allow for future rearrangement of antennas upon the tower and to accept antennas mounted at varying heights.

B.

No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Zoning Administrator that no existing tower or other structure can accommodate the applicant's proposed antenna within a one-mile search radius (one-half mile for towers under 120 feet in height, one-quarter mile for towers under 80 feet in height) of the proposed tower. Evidence submitted to demonstrate that no existing tower or structure can accommodate the applicant's proposed antenna may consist of any of the following:

i.

No existing towers or structures are located within the geographic area required to meet applicant's engineering requirements;

ii.

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

iii.

Existing towers or structures do not have sufficient structural capacity to support applicant's proposed antenna and related equipment and the existing or approved tower cannot be reinforced, modified, or replaced to accommodate planned or equivalent equipment at a reasonable cost;

iv.

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

v.

The fees or costs required to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower construction are presumed unreasonable;

vi.

Property owners or owners of existing towers or structures are unwilling to accommodate reasonably the applicant's need;

vii.

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

C.

Any evidence submitted to the Zoning Administrator in order to meet the requirements of Paragraph B shall be documented by a qualified and licensed professional engineer.

13.6.2

Tower Construction Requirements.

All towers erected, constructed, or located within the City, and all wiring therefor, shall comply with the requirements set forth by any and all applicable building codes.

13.6.3

Tower and Antenna Design Requirements.

A.

Towers and antennas shall be designed to blend into the surrounding environment to the extent possible, through the use of color and camouflaging architectural treatment, unless the FAA or other federal or state authorities require otherwise or that the goal of the co-location would be better served by an alternate design. The use of guyed wires is prohibited.

B.

Towers shall be of a monopole design unless the Zoning Administrator determines that an alternative design would better blend in to the surrounding environment.

13.6.4

Tower Setbacks.

Notwithstanding Article 5 of this ordinance, if the Zoning Administrator and the City Council determine that the integration of a tower into an existing or proposed structure such as a church steeple, light standard, power line supports, athletic field lighting supports or other similar structure does not compromise the aesthetic appearance of the property, setback requirements may be waived under the terms of Section 5.4.2.

13.6.5

Tower Lighting.

A.

Towers shall not be illuminated through the use of artificial lights such as strobe lights or other lighting devices unless specifically required by the FAA or other state and federal government agencies. Light fixtures may be attached if it is part of the design incorporated into the tower structure to be used for the illumination of athletic fields, parking lots, streets, or other similar areas. Lighting of the accessory buildings for basic security purposes is permissible but may not result in unnecessary glare on adjacent properties in residentially zoned areas. Lighting shall comply with Article 18.

B.

Should lighting be required by state or federal law, such lighting shall be placed on the tower and designed in such a way as to minimize the glare on adjacent residential properties. White strobe lights may not be used unless required.

13.6.6

Signs and Advertising.

Towers shall not display signs or advertisements for commercial or non-commercial purposes, unless such signs are for the purpose of providing warning or specific equipment information and/or unless required by any federal or state regulations.

13.6.7

Accessory Utility Buildings and Screening.

All utility buildings and structures accessory to a tower shall be architecturally designed to blend in with the surrounding environment and shall meet the minimum setback requirements of the underlying zoning district. Ground-mounted equipment shall be screened from view by suitable vegetation, except where a design of non-vegetative screening better reflects and compliments the architectural character of the surrounding neighborhood. The governing authority may require additional screening or otherwise require design modifications to ensure that the attractiveness and the aesthetic quality of the area is not adversely impacted. Use of approved tower sites is approved for telecommunication purposes only. Secondary uses such as maintenance shops, contractors' offices, etc., if requested, shall be reviewed as a conditional use and approved by the City Council upon recommendation of the Planning Commission.

13.6.8

Abandoned or Unused Towers.

All abandoned, unused or obsolete towers and accompanying accessory facilities shall be removed by the property owner within six (6) months of cessation of use. In the event that a tower and its associated facilities are not removed within six (6) months of cessation of operations at a site, the tower and associated facilities may be removed by the City and the costs of removal assessed against the property.

13.6.9

Proof of Non-Interference.

Each application for construction of a wireless telecommunication facility shall include either a preliminary or a certified statement that the construction of the tower, including reception and transmission functions, will not interfere with the radio, television, and public safety communications devices or other services enjoyed by adjacent residential and non-residential properties. In the event only a preliminary statement is submitted with the application, a final certified statement of noninterference will be provided and approved prior to issuance of a building permit. The certificate shall be certified by a licensed engineer.

13.6.10

Radio Frequency Emissions.

Each application must show that any antennae placed on the tower meets state and federal regulations pertaining to non-ionizing radiation and other health hazards related to such facilities. If new or more restrictive standards are adopted, then the antennae shall be made to comply or continued operation may be restricted.

13.6.11

Spacing.

Tower locations may not be closer than one-quarter (¼) of a mile.

13.6.12

Indemnity: Claim Resolution.

The owner of the tower and all communications service providers must show by certificate from a registered engineer that the proposed facility will contain only equipment meeting FCC rules, and must file with the Zoning Administrator a written indemnification of the City of Diamondhead and proof of liability insurance or financial ability to respond to claims up to $1,000,000.00 in the aggregate which may arise from operation of the facility during its life, at no cost to the City, in form approved by the City's Attorney.