Espanola City Zoning Code
ARTICLE XV
Telecommunications Facilities
§ 1500 Purpose; legislative intent.
In order to ensure that the placement, construction or modification of wireless telecommunications facilities is consistent with the City's land use policies and the Telecommunications Act of 1996 (the "Act"), the City is adopting a comprehensive, wireless telecommunications facilities application and permit process. The intent of this chapter is to minimize impact of wireless telecommunications facilities, establish a balanced, fair and efficient process for review and approval of applications, assure an integrated, comprehensive review of environmental impacts of such facilities, and protect the health, safety and welfare of the City of Española.
§ 1501 Definitions.
For the purpose 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 meanings 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.
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.
After administrative review, the Planning Director or designee is authorized to grant zoning approval and the procedures for administrative review are established in Section § 1508 of this chapter.
A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless signals.
Any wireless service provider submitting an application for a telecommunications permit.
All necessary and appropriate documentation that an applicant submits in order to receive a telecommunications permit.
A test for a reasonable period of time to fly, or raise upon a temporary mast, a brightly colored balloon, that is representative in size of the initial antenna array including all standoffs, at the maximum height of the proposed tower.
The use of an existing tower (as defined herein) or other structure to support one or more antennas for the provision of wireless services.
An application that contains all the submittals, information and/or data required under this chapter and necessary to enable an informed decision to be made with respect to an application.
The Federal Aviation Administration, or its duly designated and authorized successor agency.
The Federal Communications Commission, or its duly designated and authorized successor agency.
When referring to a tower or structure, the distance measured from the preexisting level to the highest point on the tower or structure, even if the highest point is an antenna or lightning protection device.
An important, essential or significant change to an existing wireless telecommunications facility. Changes that materially affect the obvious physical appearance of a facility, materially increase a facility's height or structural loading, or otherwise materially affect the safety of the facility would be material modifications. An increase of 10 feet or more in the height of a wireless telecommunications facility shall be presumed to constitute a material modification, unless the applicant, owner or operator of the facility demonstrates that such increase or addition will not materially affect the appearance or safety of the facility. Ordinary repair and/or maintenance without any material addition, removal or other material modification of any visible components or aspects of a wireless telecommunications facility shall not be considered a material modification for purposes of this chapter.
Improvements to existing structures that result in some material change to the facility or structure, but of a level or intensity that is less than a modification. Minor modifications include the replacement or upgrade of components with substantially similar components. These components or aspects of a telecommunication facility may not be physically or visually discernible.
The addition, removal or change of any of the physical and visually discernible components or aspects of a wireless telecommunications facility, such as antennas, cabling, equipment shelters, fencing, utility feeds, changing the color or materials of any visually discernible components, vehicular access, parking and/or equipment. Adding a new wireless carrier or service provider to a telecommunications tower or telecommunications site as a co-location is a modification.
Any individual, corporation, estate, trust, partnership, joint-stock company, association of two or more persons having a joint common interest, or any other entity.
These terms shall have the same meaning as defined and used in the 1996 Telecommunications Act.
The State of New Mexico.
A pole or temporary mast, cut to the maximum height of the tower, and erected in the proposed location.
The transmission and/or reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.
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.
A structure used in the provision of services described in the definition of wireless telecommunications facilities.
Temporary in relation to all aspects and components of this chapter; something intended to, or that does, exist for fewer than 90 days.
Any structure designed primarily to support one or more antenna.
This term means the structure, facility or location designed, or intended to be used as, or used to support antennas or other telecommunications transmitting or receiving devices, including, 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 their functional equivalent, and 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 telecommunications service not licensed by the FCC.
§ 1502 Overall policy and goals.
In order to ensure that the placement, construction, and material modification of wireless telecommunications facilities are conducted with due regard for 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 chapter, the City hereby adopts an overall policy with respect to a telecommunications permit for wireless telecommunications facilities for the express purpose of achieving the following goals:
A.
Requiring a telecommunications permit for any new, co-location or material modification of a wireless telecommunications facility.
B.
Implementing an application process for person(s) seeking a telecommunications permit.
C.
Establishing a policy for examining an application for and issuing a telecommunications permit that is both fair and consistent.
D.
Promoting and encouraging, wherever possible, the sharing and/or co-location of wireless telecommunications 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 camouflaged wireless telecommunications facilities 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 impracticable under the facts and circumstances.
F.
In granting a telecommunications permit, the City has determined that the facility shall be located in the most appropriate site in regards to being the least visually and physically intrusive among those available in the City.
§ 1503 Periodic regulatory review.
A.
The City may at any time conduct a review and examination of this entire chapter.
B.
If after such a periodic review and examination of this chapter, the City determines that one or more provisions of this chapter should be amended, repealed, revised, clarified, or deleted, then the City may take whatever measures are necessary in accordance with applicable law in order to accomplish the same. It is noted that where warranted, and in the best interests of the City, the City may repeal this entire chapter at any time.
§ 1504 Permit required.
A.
No person shall be permitted to site, place, build, construct, or materially modify a wireless telecommunications facility after the effective date of this chapter without having first obtained a telecommunications permit for such facility. Notwithstanding anything to the contrary in this section, no telecommunications permit shall be required for those facilities listed in § 1505.
B.
No person shall perform any construction of or on a wireless telecommunications facility without having first obtained a building permit for such construction. In order to obtain a building permit for a wireless telecommunications facility, the applicant shall present a copy of a duly issued telecommunications permit with the building permit application.
C.
No person shall use a wireless telecommunications facility for which a telecommunications permit is required without having first obtained a certificate of compliance for such wireless telecommunications facility. A certificate of compliance shall be issued to an applicant upon a final inspection of the wireless telecommunications facility showing that the construction of the facility meets all requirements and conditions of the telecommunications permit, and that all applicable codes and related building requirements have been met.
D.
An applicant for or holder of a telecommunications permit shall obtain, at its 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 having jurisdiction over the wireless telecommunications facility.
E.
All wireless telecommunications facilities legally permitted and existing on or before the effective date of this chapter shall be allowed to continue as they presently exist, as legally permitted nonconforming uses. These facilities may be used, maintained, or repaired without having to comply with the permit provisions of this chapter. Any material modification of such an existing wireless telecommunications facility will require compliance with all requirements of this chapter.
F.
Repair and maintenance of a wireless telecommunications facility shall not require a telecommunications permit.
§ 1505 Exemptions.
The following shall be exempt from this chapter:
A.
The City's fire, police, Department of Transportation or other public service facilities owned and operated by the local government.
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), multi-channel 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, noncommercial radio and television reception and private citizen's bands, and other similar noncommercial telecommunications, subject to applicable zoning and building requirements of this Chapter 350, Zoning and Development.
E.
FCC-licensed amateur radio facilities require an administrative approval and are exempt from all aspects of this chapter except reasonable screening, setback, placement, construction, tower height, and health and safety standards in accordance with New Mexico state law.
F.
Facilities exclusively for providing unlicensed spread spectrum technologies (such as IEEE 802.11 a, b, g (Wi-Fi) and Bluetooth) for the benefit of a limited area, where telecommunications service is not sold but is provided for the benefit or convenience of patrons or residents, and where the facility does not require a new tower.
G.
Facilities that do not increase the overall height of an existing structure (taking into account all parts of the facility, including all antennas and support structures) by 10 feet or more, provided that:
(1)
Such facilities are appropriately screened, considering the height and nature of the existing structure;
(2)
Such facilities do not otherwise constitute a material modification under this chapter;
(3)
Any such facility exempted under this paragraph complies with all other applicable laws and regulations, including without limitation, building codes;
(4)
And no facility located on the structure on which such facility is constructed or installed has been exempt under this paragraph within the previous four years.
§ 1506 Application.
A.
All applicants for a telecommunications permit shall comply with the requirements set forth in this chapter. Applications for wireless telecommunications facilities shall be submitted to the Department of Planning and Land Use. Except for those applications for which a public hearing is required under § 1509, the City Manager or his or her designee shall review, analyze, evaluate and make decisions with respect to granting, not granting, or revoking telecommunications permits. The City may at its discretion delegate or designate other official agencies or agents of the City to accept, review, analyze, evaluate and make recommendations to the City Manager or Planning and Zoning Commission with respect to the granting, not granting, or revoking telecommunications permits.
B.
The City may reject applications not meeting the requirements stated herein or which are incomplete. An application will be considered complete when the applicant has provided all submittals required by this section, including but not limited to all required data, reports, attachments, certifications, and authorizations.
C.
Any and all written representations made by the applicant to the City on the record during the application process, and oral representations made on the record during a hearing before the Planning and Zoning Commission, governing body, or other public meeting, shall be deemed a part of the application and may be relied upon in good faith by the City.
D.
An application for a telecommunications permit 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.
E.
The applicant shall provide written and notarized documentation to verify it has the right to proceed as proposed on the site and to employ such easements and/or other property interests to access the site as may be necessary for repair and maintenance of the facility. Such documentation may consist of a summary plat or duly executed deeds or other conveyances clearly depicting the site and all easements or other authorized access routes.
F.
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 telecommunications 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, state and federal laws, rules, and regulations;
(2)
That the construction of the applicant's wireless telecommunications facilities is legally permissible, including, but not limited to demonstration of the applicant's authority to do business in the state.
G.
Where a certification is called for in this chapter, such certification shall bear the signature and seal of a professional engineer licensed in the state.
H.
In addition to all other required information as stated in this chapter, all applications for the construction or installation of new wireless telecommunications facilities, co-locations and material modifications of existing facilities shall contain the information hereinafter set forth, except as otherwise provided in this section.
(1)
A generally descriptive statement of the objective(s) for the new facility or material modification including and expanding on a need, such as type of coverage ("in building" or "in vehicle") and/or capacity requirements. Such statements shall not contain proprietary information, such as build out plans and projected number of customers. Such statement may focus on past and current needs rather than future needs.
(2)
The applicant shall provide documentation that demonstrates and proves the need for the wireless telecommunications facility to provide service. 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, include an analysis of current and projected usage. Such propagation studies (including all backup data and assumptions used) shall show signal propagation at the height of the proposed antenna(s) and at increments of 10 feet lower, to allow verification of the applicant's need for the proposed height.
(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 than the applicant, provide name and address of the tower owner.
(5)
The postal address and Tax Map parcel number of the property.
(6)
The zoning district or designation in which the property is situated.
(7)
Size of the property stated both in square feet and lot line dimensions, and a survey showing the location of all lot lines.
(8)
The location of nearest residential structure.
(9)
The location, size and height of all existing and proposed structures on the property which is the subject of the application.
(10)
The type, locations and dimensions of all proposed and existing landscaping, and fencing.
(11)
The number and azimuth, size and center line height location of all proposed and existing antennas on the supporting structure.
(12)
The number and type of the antenna(s) proposed with a copy of the specification sheet.
(13)
The make, model, type and manufacturer of the tower and design plan stating the tower's capacity to accommodate multiple users.
(14)
A site plan describing the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above preexisting grade, materials, color and lighting.
(15)
The frequency, modulation and class of service of radio or other transmitting equipment.
(16)
The actual intended transmission power stated as the maximum effective radiated power in watts.
(17)
Signed documentation such as the "Checklist to Determine Whether a Facility Is Categorically Excluded" showing that the wireless telecommunication facility with the proposed installation will be in full compliance with current FCC RF emissions guidelines. If not categorically excluded, a complete RF emissions study is required to provide verification.
(18)
A copy of the FCC license applicable for the intended use of the wireless telecommunications facilities if the applicant is not licensed by the FCC.
(19)
A copy of the geotechnical subsurface 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. This information may be provided following the issuance of a telecommunications permit, but must be provided prior to the issuance of a building permit and prior to the start of construction.
(20)
A copy of the City of Española business registration.
I.
The applicant shall provide a written analysis, completed by a qualified individual or organization, showing that the proposed wireless telecommunications facility is in compliance with Federal Aviation Administration Regulation Part 77 and if it requires lighting. If this analysis shows 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. This information may be provided following the issuance of a telecommunications permit, but must be provided prior to the issuance of a building permit.
J.
When a permit is required under this chapter for a material modification of, or co-location on, an existing wireless telecommunications facility for which a telecommunications permit has previously been issued, the applicant shall submit only those items, reports, certifications, documentation and other matters that reflect and pertain to changes in the information submitted in application for the previous permit; no propagations studies shall be required under Subsection (H)(2) of this section in an application for a co-location no more than 10 feet higher than an existing, permitted antenna on a previously permitted structure.
K.
An applicant proposing a new tower shall submit a written inventory of all existing towers, buildings, and other structures within one mile of the proposed site. Applicant shall document, in writing, its efforts to secure shared use of such existing structures within one mile of the proposed structure. Satisfactory evidence of applicant's efforts to secure shared use of existing facilities may consist of copies of written requests for shared use directed to the owner(s) or other person(s) in possession or control of such facilities and responses thereto.
L.
The applicant shall provide certification with documentation (structural analysis) including calculations showing that the telecommunications facility tower and foundation and attachments, rooftop support structure, water tank structure, and any other proposed supporting structure are designed and will be constructed to meet all local, City, state and federal structural requirements for loads, including wind and ice loads. This information may be submitted following the issuance of the telecommunications permit but shall be provided prior to the issuance of the building permit and prior to the start of construction.
M.
If the applicant's proposal is for a co-location or material modification on an existing tower, the applicant shall provide signed documentation of the tower condition, such as an ANSI report as per Annex E, Tower Maintenance and Inspection Procedures, ANSI/TIA/E1 222F-96 or most recent version. The inspection report must be performed every three years for a guyed tower and five years for monopoles and self-supporting towers.
N.
The applicant shall provide to the City photo simulations of all proposed new wireless telecommunications facilities or co-locations on existing wireless telecommunications facilities from at least four directions exceeding 45° angular separation, facing the proposed location.
O.
The applicant shall demonstrate, 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.
Q.
An applicant shall attend a preapplication meeting with City staff and the City's expert/consultant, to address issues that will help to expedite the review and permitting process. A preapplication meeting shall also include a site visit if there has not been a prior site visit for the requested site. Costs of the City's consultants to prepare for and attend the preapplication meeting will be charged to the applicant's escrow account established under § 1507.
R.
An applicant shall submit to the City the number of copies of its completed application determined to be needed at the preapplication meeting.
S.
Except when due to circumstances beyond an applicant's reasonable control, all applications for a telecommunications permit shall be completed, including all submittals, reports, documentation, certifications and payments required under this chapter, within one year from the applicant's initial submittal relating to the application. An application that is not so completed within one year (except when due to circumstances beyond the applicant's control) shall be disregarded, and the applicant shall comply with all applicable requirements of this chapter anew, as if the previous application had not been submitted.
T.
Where reasonably possible and practicable all applicants for telecommunications permit should develop their plans to allow reasonable requests from the City to use space on its towers and space within the existing or planned compound for deploying and operating public service radio facilities (e.g., police, fire, emergency, homeland security, and the like). Should the addition of City requirements exceed structural limits the request may be denied by the permit holder or owner of the telecommunications facility. The City will pay reasonable market value for any such use. Where reasonably practicable, the City will also require access to its equipment on a 24-by-7 basis for maintenance and operating requirements. However, the City will work with applicants to insure they receive adequate advance notice for routine activities (excluding emergencies).
§ 1507 Application review costs.
A.
The City may hire any consultant and/or expert necessary to assist the City in reviewing and evaluating applications, and for inspecting construction and/or modification of wireless telecommunications facilities. All costs for application review are specified in Chapter 171.
[Amended 7-11-2019 by Ord. No. 2019-03]
B.
An applicant shall deposit with the City funds sufficient to reimburse the City for all reasonable costs of consultants and expert evaluation and consultation to the City in connection with the review of any application including the construction and modification of the site, once permitted. However, should multiple (three or more) projects, by the same applicant, be started to proceed concurrently the escrow amounts may be negotiated. The placement of the escrow amounts with the City shall precede the preapplication meeting and is the official start of the application process. The City will provide reasonable information about this chapter and the process prior to official start of the process. The City will maintain a separate escrow account for all such funds. The City's consultants/experts shall invoice the City for its services in reviewing the application, including the construction and modification of the site, once permitted. If at any time during the process this escrow account appears to be inadequate to complete the consultants'/experts' review, the applicant shall immediately, upon notification by the City, replenish that escrow account so that it has a balance of at least $1,000. Such additional escrow funds shall be deposited with the City before any further action or consideration is taken on the application. In the event that the amount held in escrow by the City is more than the amount of the actual invoicing at the conclusion of the project, the remaining balance shall be promptly refunded to the applicant.
[Amended 7-11-2019 by Ord. No. 2019-03]
C.
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
D.
Application review costs and fees shall be reviewed and adjusted biennially, as needed to insure that the amounts required to be deposited into escrow under this section and the amount of the nonrefundable fee the application fee charged under § 1514 represent, as accurately as practicable, the City's cost of reviewing and processing applications.
E.
In no event shall the total application review costs under this section and the City's fee paid pursuant to § 1514 exceed $15,000 for a new tower, or $8,000 for a co-location or material modification. All invoices received by the City to be paid out of funds held in escrow under this section shall be open to inspection by the applicant during regular business hours upon reasonable prior notice.
§ 1508 Administrative approval.
A.
The Planning Director may administratively approve an application to perform minor modifications to existing telecommunications facilities in all zoning districts subject to the requirements of this article.
B.
Administrative review process.
(1)
All administrative review applications must contain the following:
(a)
Copy of lease or letter of authorization from property owner evidencing applicant's authority to pursue zoning application. Such submissions need not disclose financial lease terms.
(2)
Procedure.
(a)
Within 30 days of receipt of an application for administrative review, the Planning Director shall either 1) inform the applicant, in writing, of the specific reasons why the application is incomplete and does not meet the submittal requirements; or 2) deem the application complete. If the Planning Director informs the applicant of an incomplete application within 30 days, the overall timeframe for review is suspended until such a time that the applicant provides the requested information.
(b)
An applicant that receives notice of an incomplete application may submit additional documentation to complete the application. An applicant's unreasonable failure to complete the application within 60 business days after receipt of written notice shall constitute a withdrawal of the application without prejudice. An application withdrawn without prejudice may be resubmitted upon the filing of a new application fee.
(c)
The Planning Director must issue a written decision granting or denying the request within 90 days of the submission of the initial application, unless:
(d)
Should the Planning Director deny the application, the Planning Director shall provide written justification for the denial. The denial must be based on substantial evidence of inconsistencies between the application and this chapter.
(e)
Applicant may appeal any decision of the Planning Director approving, approving with conditions, or denying an application or deeming an application incomplete, within 30 days to the Planning and Zoning Commission in accordance with this chapter.
§ 1509 Public hearing; notice requirements.
A.
A public hearing before the City's Planning and Zoning Commission shall be held prior to approval of any application to construct a new tower for a telecommunications facility in any allowable zone, or a co-location or material modification at such an existing site, notice of which shall be published in the official newspaper of the City, and sent by mail to all adjacent landowners whose property (as shown on the records of the County Assessor) is located within 500 feet (exclusive of right-of-way) of any property line of the lot or parcel on which the new wireless telecommunications facilities are proposed to be located, no less than 15 calendar days prior to the date of the hearing.
B.
The hearing referred to in Subsection A of this section shall concern only the applicant's compliance with the provisions of this chapter. The Planning and Zoning Commission shall render a determination as to whether the application complies with this chapter, based on its review of the applicant's submittals and the matters appropriately raised at the hearing. The Director of Planning and Land Use or his designee shall provide a written summary of the determination rendered to the applicant no later than 10 calendar days following the public hearing.
C.
In order to better inform the public, in the case of a new tower, the applicant shall hold a balloon test or erect a story pole prior to the initial public hearing of the application. The use of either a balloon test or a story pole, i.e., a temporary mast, shall be at the determination of the City based upon the fact and circumstances involved. The applicant shall arrange to fly, or raise upon story pole, a minimum of ten feet in length brightly colored balloon at the maximum height of the proposed new tower, on two separate dates, one of which shall be on a weekday, and the other on a weekend.
D.
At least 14 days prior to the conduct of the balloon test, a sign shall be erected so as to be clearly visible from the road nearest to the proposed site and at the major roads intersecting this nearest road and shall be removed no later than 14 days after the conduct of the final balloon test. The sign shall be at least four feet by eight feet in size and shall be readable from the road by a person with 20/20 vision.
E.
Such sign shall be placed off, but as near to, the public right-of-way as is possible.
F.
Such sign shall contain the times and date(s) of the balloon test and contact information.
G.
The dates (including a third date, in case of poor visibility or wind in excess of 15 mph on either of the initial dates), times and location of this balloon test shall be advertised by the applicant seven and 14 days in advance of the first test date in a newspaper with general circulation in the City and as agreed to by the City. The applicant shall inform the City, in writing, of the dates and times of the test, at least 14 days in advance. The balloon shall be flown for a minimum of four consecutive hours between 9:00 a.m. and 3:00 p.m. on the dates chosen. In case of poor visibility on either of the initial dates, the third date may be on any day of the week, excluding Sunday. A report with photos of the balloon test from at least four directions exceeding 45° angular separation, and to-scale superimposed photo simulations of the facility when completed shall be provided with the application.
H.
The applicant shall notify all property owners and residents located within 500 feet, exclusive of right-of-way, of the subject property of the proposed construction of the tower and wireless facility and of the date(s) and time(s) of the balloon test. Such notice shall be provided at least 15 days prior to the conduct of the balloon test and shall be delivered by first-class mail. The applicant shall bear all costs associated with said notification.
I.
The hearing referred to in Subsection A of this section shall be held no later than 30 days after the applicant's submission of a completed application, with all reports and other submittals required hereunder.
J.
Notwithstanding anything to the contrary contained in this section, no public hearing shall be required for the issuance of a permit for:
(1)
Any co-location on, or material modification of, a wireless telecommunications facility for which a permit has previously been issued under this chapter, if such co-location or material modification does not significantly change the appearance or height of the facility; or
§ 1510 Action on application.
A.
The City will undertake a review of a completed application pursuant to this chapter 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. When an application is complete, including the submission of all reports and other submittals required hereunder, the City shall act on the proposed permit within 30 calendar days unless a public hearing is required under § 1509.
B.
After the public hearing (if required) and/or after formally considering the application, the City may approve, approve with conditions, or deny a telecommunications permit, based on the applicant's compliance with the requirements of this chapter. Its decision shall be in writing and shall be supported by substantial evidence contained in a written record. The burden of proof for the grant of the permit shall always be upon the applicant.
C.
If the City approves the telecommunications permit, then the applicant shall be notified of such approval in writing, and the telecommunications permit shall be issued within 10 calendar days of the City's action. Except for necessary building permits, and subsequent certificates of compliance, once a telecommunications permit has been granted hereunder, no additional permits or approvals from the City, such as site plan or zoning approvals, shall be required by the City for the wireless telecommunications facilities covered by the telecommunications permit.
D.
If the City denies the telecommunications permit, then the applicant shall be notified of such denial in writing within 10 calendar days of the City's action. Such written notice shall enumerate, with particularity, the specific deficiencies, omissions, and/or instances of noncompliance with the requirements of this chapter.
E.
If the City denies a telecommunications permit, and the grounds for such denial concern matters that may be cured within a reasonable time, the applicant may amend, supplement, or resubmit its application within 60 days of the City's denial, and such amendment(s), supplement(s), or resubmission shall be evaluated as part of the applicant's original application.
§ 1511 Transfer/revocation of permit application fee.
The extent and parameters of a telecommunications permit shall be as follows:
A.
The telecommunications permit shall not be assigned, transferred or conveyed without written notification to the City. Such notification will occur within 60 calendar days of such assignment, transfer or conveyance.
B.
A telecommunications permit may, following a hearing upon due prior notice to the holder of the permit, be revoked, canceled, or terminated for a violation of the conditions and provisions of the telecommunications permit, or for a material violation of this chapter after prior written notice to the holder of the telecommunications permit and an opportunity to cure.
§ 1512 Application fee.
[Amended 7-11-2019 by Ord. No. 2019-03]
At the time that a person submits an application for a telecommunications permit, such person shall pay a nonrefundable application fee to the City as specified in Chapter 171. The application fee is a one-time cost at permit application and covers administrative expenses, legal notice, material modification, records retention, future code adherence inspections, providing access to and information from records to other wireless companies seeking information on a particular site or sites and the same for co-location. These fees represent the City's best estimate of the actual cost of City personnel and resources for processing applications and monitoring compliance with this chapter for the life of a wireless telecommunications facility, which is estimated to be 30 years. Application review costs and fees shall be reviewed and adjusted biennially, as needed to insure that the amount of the fees represents, as accurately as practicable, the City's cost of reviewing and processing applications and monitoring compliance with this chapter.
§ 1513 Relief.
Any applicant desiring relief, waiver or exemption from any aspect or requirement of this chapter may request such at the preapplication meeting, provided that the relief or exemption sought is contained in the submitted application for a telecommunications permit, or an amendment to the permit application. Such relief may be temporary or permanent, partial or complete. The applicant shall have the burden of showing the need for the requested relief, waiver or exemption and shall bear all costs of the City's consultants/experts (if any) in considering the request for relief. No such relief shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted the relief, waiver or exemption will have no significant effect on the health, safety and welfare of the City, its residents and other service providers.
§ 1514 Location of facilities.
Applicants for wireless telecommunications facilities shall locate, site and erect the wireless telecommunications facilities in accordance with the following priorities, Subsection A being the highest priority and Subsection F being the lowest priority:
A.
On existing towers or other structures without increasing the height of the tower or structure;
B.
On existing towers or other structures without increasing the overall height of the tower or structure by more than 10 feet;
C.
On properties in areas zoned nonresidential/heavy industrial, including H-I Heavy Industrial District, L-I Light Industrial District, and SU Special Use Districts approved for such uses;
D.
On properties in areas zoned nonresidential/commercial, to include B-1 Local Commercial District, B-2 General Commercial District, and B-3 Central Commercial District, and SU Special Use Districts approved for such uses;
E.
On City-owned properties or structures (provided space is available, loading is within the structure's capacity, and the City deems the use appropriate);
F.
On properties in areas zoned for residential uses, subject to the public hearing requirements of § 1508, in the following descending order of priority:
(1)
R-O-I Residential-Office-Institutional District;
(2)
R-1, R-2 and R-4 Residential Districts, and SU Special Use for single family residential uses;
(3)
R-6 Residential Districts, RM Multifamily Residential Districts, and SU Special Use for multifamily residential uses; and
(4)
No facilities shall be located with Historic or Tourist-Commercial Districts.
§ 1515 Shared use of facilities.
A.
The policy of this chapter is to favor co-location or wireless telecommunications facilities on existing towers and other structures, over the construction of new towers. To that end, an applicant for a new tower permit shall examine the feasibility of designing the proposed tower to accommodate future demand for at least two additional commercial applications, such as future co-locations, and shall design the proposed tower to structurally accommodate at least two 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 or creates an unnecessary and unreasonable burden, based upon:
(1)
The foreseeable number of FCC licenses available for the area, and the number of existing and potential licenses without available telecommunications sites;
(2)
The kind of wireless telecommunications facility and structure proposed; and
(3)
Space available in the vicinity on existing and approved telecommunications sites.
B.
The owner of a tower permitted under this chapter shall negotiate in good faith for the shared use of the tower by other wireless service providers in the future, and shall:
(1)
Respond within 60 days to a request for information from a potential shared-use applicant;
(2)
Allow shared use of the tower if another telecommunications provider agrees, in writing, to pay reasonable, fair market charges for such use, and the services are technologically compatible. Such 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, permitting costs, return on equity, less depreciation, and all of the costs of adapting the tower or equipment to accommodate such shared use without causing electromagnetic interference.
(3)
Failure to abide by the conditions of this section may be grounds for revocation of the telecommunications permit.
C.
All co-locations shall comprise the minimum antenna array technologically required to provide service in the manner described in the application, to the extent practicable.
§ 1516 Height of towers; compliance with codes and regulations.
A.
No tower constructed after the effective date of this chapter shall exceed the minimum height necessary to eliminate gaps in coverage or otherwise to provide service, as demonstrated by the propagation studies submitted under Subsection H(2) of § 1506.
B.
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 rule shall apply.
C.
All utilities at a wireless telecommunications facilities site shall be installed underground, to the extent practicable, 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.
D.
All telecommunications sites shall include an access road, turnaround space and parking, adequate to assure 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.
§ 1517 Visibility.
A.
Telecommunications facilities shall not be artificially lighted or marked, except as required by law.
B.
Towers shall be galvanized, camouflaged, 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.
D.
Wireless telecommunications facilities and any and all accessory or associated facilities shall be effectively screened from view to the extent practicable, and 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, including the use of camouflage technology to the extent practicable.
§ 1518 Security.
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, telecommunications control points, and all utility connections shall be installed in such a manner that they are readily accessible only to persons authorized to operate or service them.
§ 1519 Signage.
A.
Each wireless telecommunications facility shall display a sign no larger than four square feet, containing the site identification number and emergency phone number(s) of the permit holder or other person operating the facility. 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. The signs shall not be lighted, unless applicable law, rule or regulation requires lighting. No other signage, including advertising, shall be permitted.
B.
The applicant or future owner of the site shall update the site identification number and emergency phone number of the wireless telecommunications facility as displayed on the required sign within 60 calendar days of any sale, assignment or transfer.
§ 1520 Lot size and setbacks.
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 sufficient distance to assure safety of persons and structures in the vicinity. A standard of acceptable distance shall be equal to the height of the proposed tower or wireless telecommunications facility structure. A freestanding wireless telecommunications structure plus 10 feet that abuts a residential district shall establish the setback equal to the height of the structure. Applicants proposing a smaller setback shall demonstrate ancillary safety precautions in the design of the structure that justify the smaller setback.
§ 1521 Performance security.
An applicant for a telecommunications permit, and/or the owner of record of the proposed wireless telecommunications facility shall, at their cost and expense, execute and file with the City a bond with one or more sureties reasonably satisfactory to the City or other form of security acceptable to the City, in an amount of at least $25,000 for a tower and $5,000 for a co-location, to assure the faithful performance of the terms and conditions of this chapter and conditions of any telecommunications 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 telecommunications 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 telecommunications permit. No bond or other security shall be required for permits issued for material modification of, or co-location on, an existing wireless telecommunications facility for which a bond has already been provided.
§ 1522 Inspection.
In order to verify that the holder of a telecommunications permit and any and all lessees and/or licensees of wireless telecommunications facilities, place, construct, maintain and operate such facilities in accordance with all applicable provisions of this chapter, the telecommunications permit issued for such facility, and all technical, safety, fire, building, and zoning codes, laws, ordinances and regulations and other applicable requirements, the City may inspect all facets of the permit holder'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.
§ 1523 Liability insurance.
A.
A holder of a telecommunications permit shall secure and at all times maintain public liability insurance with one or more insurance carriers licensed to do business in the state and having an A.M. Best rating of "A" or better, for personal injuries, death and property damage for the duration of the telecommunications permit, with policy limits of at least $1,000,000 per occurrence/$2,000,000 aggregate.
B.
For a wireless telecommunications facility on City property, such insurance policy shall name the City an additional insured.
C.
A certificate of insurance evidencing the insurance coverage required by this section shall be provided to the City prior to the construction of any wireless telecommunications facility, and within 10 days of any renewal policy or replacement policy therefor. The policy or policies required by this section shall include an endorsement obligating the insurer to provide the City at least 30 days' prior written notice of any change in or cancellation of such policy or coverage.
§ 1524 Indemnification.
An application for any wireless telecommunications facility to be located on City property shall include a binding, written undertaking by the applicant to defend and indemnify the City and its officers, officials, employees and agents, and to hold them harmless from and for any and all penalties, damages, costs, charges, claims, suits, demands, causes of action or award of damages, of any kind and nature, known or unknown, at law or in equity, arising from or relating to the placement, construction, erection, modification, location, use, operation, maintenance, repair, installation, replacement, removal, or restoration of the proposed wireless telecommunications facility, to the extent permitted by law; excepting, however, any portion of such claims, suits, demands, causes of action or damages as may be attributable to the fault of the City, or its servants or agents.
§ 1525 Default.
If a wireless telecommunications facility is repaired, rebuilt, placed, and moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter or of the telecommunications permit, then the City shall notify the holder of the telecommunications permit, in writing, of the violation. After receiving written notification, a permit holder shall have 60 calendar days to cure the violation. The City shall consider extensions to the cure period as may be required upon the permit holder's demonstration that, despite its good faith efforts, such default cannot be reasonably cured within the provided time. A permit holder still in violation after expiration of the cure period may be considered in default, subject to fines as in § 1529, and its telecommunications permit may be revoked.
§ 1526 Removal of facilities.
A.
Under the following circumstances, the City may determine that the health, safety, and welfare of the City warrant the removal of a wireless telecommunications facility.
(1)
A wireless telecommunications facility that has been abandoned (i.e., not used as a wireless telecommunications facility) for a period exceeding 90 consecutive days, or a total of 180 days in any 365-day period except for periods of nonuse caused by circumstances beyond the facility operator's reasonable control, such as force majeure or acts of God, shall be either restored to use (with such repairs as may be required) or removed within 90 days of the City's notice, as described below;
(2)
A wireless telecommunications facility that falls into such a state of disrepair that it creates a health or safety hazard, as determined by a licensed engineer, shall be repaired or removed within 60 days of such determination, unless the owner or operator of such facility demonstrates that it has made substantial progress to repair the facility, but that its good faith efforts could not restore the disrepair within the 60-day time period;
(3)
A wireless telecommunications facility located, constructed, or modified without a telecommunications permit when one is required, or in a manner not authorized by the required telecommunications permit or any other necessary license, permit or authorization, may be subject to immediate removal.
B.
If the City makes a determination that a wireless telecommunications facility is in a condition described in the Subsection A of this section, the City shall notify the holder of the telecommunications permit that the wireless telecommunications facilities must be repaired or removed, as provided above. Notwithstanding the foregoing, the City may approve an interim temporary use permit for the facility, to enable the sale or cure of the condition(s) requiring repair or removal, if the City in its discretion determines that such a temporary use permit is in the City's best interest.
C.
Whenever a wireless telecommunications facility is required to be removed under this section the holder of a telecommunications 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 the time required under this section. Notwithstanding the foregoing, the owner of the property upon which such a wireless telecommunications facility is located may retain any access roadway and any improvements thereto.
D.
The City may remove, or cause to be removed, any wireless telecommunications facility which remains in violation of this section after the expiration of the period provided for repair or removal, at the sole expense of the owner of the property on which the facility is situated. If the components and other materials of such wireless telecommunications facility have not been claimed within 10 working days of the City's removal of the facility, the City may declare such components and other material abandoned and dispose of the same in any manner the City deems fit.
E.
The City shall approve a temporary wireless telecommunications facility under any of the following circumstances, in the manner provided in this section:
(1)
In the event that an existing wireless telecommunications facility becomes inoperable due to force majeure or an act of God, the City will approve a temporary telecommunications permit, with the condition that any temporary wireless telecommunications facility installed or employed to provide service must be removed from the site within 30 days of the existing wireless telecommunications facility resuming service, or the completion of a replacement wireless telecommunications facility;
(2)
Due to a special event occurring in the City which draws a large number of visitors and requires extra resources to maintain service, in which case any and all temporary wireless telecommunications facility must be removed from the site within 48 hours of the conclusion of the event;
(3)
In the event of an emergency or natural disaster which renders other forms of communication nonviable, thus necessitating a temporary wireless telecommunications facility, the City shall permit any temporary wireless communications facilities, on such terms and conditions as the City and the telecommunications provider, based on the needs of the City and the capabilities of the telecommunications provider.
§ 1527 Compliance with federal and state regulations.
A.
To the extent that the holder of a telecommunications permit has not received relief, or is otherwise exempt, from appropriate state and/or federal agency rules or regulations, then the holder of such a telecommunications 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 telecommunications permit, then the holder of such a telecommunications permit shall conform the permitted wireless telecommunications facilities to the applicable changed and/or modified rule, regulation, standard, or provision within a maximum of 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.
C.
A determination by a state or federal agency with jurisdiction that a rule or regulation has been violated shall be grounds to revoke a telecommunications permit.
§ 1528 Appeals.
A.
Any telecommunications provider aggrieved by the City's failure to issue a telecommunications permit under this chapter, by any conditions imposed by an issued telecommunications permit, or any other final decision regarding the issuance of, or failure to issue, a telecommunications permit (other than a decision made by the Planning and Zoning Commission following a public hearing under § 1509), may appeal to the Planning and Zoning Commission in the manner provided by§ 1004 of this chapter.
§ 1529 Violations and penalties.
Except as otherwise provided in this chapter, the City may impose against the holder of a telecommunications permit the penalties as set forth below.
A.
A failure to obtain a permit when required or a violation of any telecommunications permit issued pursuant to this chapter is hereby declared to be an offense, punishable by a fine not exceeding $500 per occurrence upon conviction. Each week's continued violation shall constitute a separate additional violation.
B.
Notwithstanding anything in this chapter, the holder of a wireless telecommunications permit 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 telecommunications permit to termination and revocation of its telecommunications permit. The City may also seek injunctive relief to prevent the continued violation of this chapter, without limiting other remedies available to the City.