Fox Point Village City Zoning Code
§ 745-23
Wireless telecommunications mobile service facilities.
[Amended 12-10-2013 by Ord. No. 2013-10]
A.
Purpose. This section is intended to regulate mobile service facilities to the full extent allowed by Wisconsin Statutes § 66.0404 and other applicable laws. Nothing herein is intended to regulate or to authorize the regulation of mobile service facilities in a manner that is preempted or prohibited by Wisconsin Statutes § 66.0404 or other applicable laws. These regulations apply equally to small wireless facilities, however, nothing herein is intended to regulate or to authorize the regulation of small wireless facilities in a manner that is preempted or prohibited by Subpart U to Part 1 of Title 47 of the United States Code of Federal Regulations or other applicable laws or regulations.
[Amended 4-9-2019 by Ord. No. 2019-03]
B.
Definitions. All terms used herein shall have the meaning described in Wisconsin Statutes § 66.0404(1). Mobile service support structures and mobile service facilities are referred to herein in some cases as "MSSF." "Small wireless facilities" as used herein shall have the meaning described in Part 1 Title 47 CFR Subpart U, § 1.6002(1).
[Amended 4-9-2019 by Ord. No. 2019-03]
C.
New towers and facilities. The siting and construction of new mobile service support structures and facilities whether intended to serve small wireless facilities or any other MSSF, shall be subject to the following requirements:
[Amended 4-9-2019 by Ord. No. 2019-03]
(1)
Application process. The applicant shall submit a written application which shall include all of the following information:
(a)
The name and business address of, and the contact individual for, the applicant.
(b)
The location of the proposed tower.
(c)
The location of the mobile service facility.
(d)
A construction plan which describes the tower, equipment, network components, antennas, transmitters, receivers, base stations, power supplies, cabling, and related equipment to be placed on or around the new tower.
(e)
An explanation as to why the applicant chose the proposed location, and why the applicant did not choose co-location, including a sworn statement from the responsible party attesting that co-location within the applicant's service area would not result in the same mobile service functionality, coverage, and capacity; is technically infeasible; or is economically burdensome.
(2)
Determination of completeness within 10 days of submittal. The Village Building Inspector shall review the application and determine whether the application is complete. If the application includes all of the foregoing information, the application shall be found to be complete. The Village Building Inspector shall notify the applicant in writing within 10 days of receiving the application if it is found not to be complete, and such notice shall specify in detail the required information that was incomplete. Applicants are allowed to resubmit their applications as often as necessary until it is complete.
(3)
Conditional use review procedure. The MSSF shall be a conditional use, and shall be reviewed pursuant to the following procedures:
(a)
Plan Commission review. After an application and all required information has been filed, the Plan Commission shall review the matter and shall make a recommendation to the Village Board.
(b)
Fee. Any petition shall be accompanied by a fee as set from time to time by the Village Board to defray the cost of notification and holding of public hearing. Costs incurred by the Village in obtaining legal, planning, engineering and other technical and professional advice in connection with the review of the conditional use and preparation of the conditions to be improved shall be charged to the petitioner. Such fee shall not exceed the limits established by Wisconsin Statutes § 66.0404(4)(d).
(c)
Determination. The Village Board shall hold a public hearing, upon Class 2 notice as described in Chapter 985, Wisconsin Statutes. The Village Board shall make a decision on the application within a reasonable time after receipt of the Plan Commission recommendations, provided further that final action shall be taken within 90 days of receipt of a complete application unless the time extended by the petitioner. Said decision shall be stated in writing and a copy made a permanent part of the Village records. If conditional use status is not granted, the reasons therefor will be included in such record. A grant of conditional use status, subsequent changes or additions thereto and terminations thereof shall be recorded as follows:
[1]
An official record of such conditional grant shall be prepared by the Village Clerk/Treasurer on a form prescribed therefor which shall include the description of the use for which the grant is given and all conditions attached thereto. A copy of the completed form shall be recorded at the Milwaukee County Register of Deeds as a covenant on the title for the premises for which the conditional use was granted.
[2]
The occupancy permit shall be appropriately noted as to the conditional status granted.
[3]
Indication shall also be made on the Zoning Map by appropriate code number or symbol.
(4)
Requirements.
(a)
Siting standards.
[1]
AMSSF shall:
[a]
Be substantially screened from public view and rights-of-way by trees, mature vegetation, natural features or structures on the subject property;
[b]
Be completely camouflaged in a manner that is architecturally compatible with the structure on which it is mounted and integrated as an integral architectural element of the structure; or
[c]
Not contain guyed towers or lattice towers.
[2]
The screening required in this section may exist on the subject property or be installed as part of the proposed MSSF or a combination of both.
[3]
No MSSF shall be located on a site containing a dwelling, nor be closer than 500 feet from a property line of an existing dwelling. No MSSF shall be closer than 500 feet from the property line of a vacant lot or vacant parcel in a residentially zoned district or a school, except as follows: The minimum setback from dwellings and schools may be reduced to no less than 100 feet for communications facilities that are up to 100 feet in height that are located on lots that have existing public utility, state, federal, Milwaukee County, or Village government structure(s) at the time of the application, and provided further that the Board finds in its consideration of the conditional use order that this reduction is appropriate and consistent with the intent of the Code under all of the facts and circumstances presented.
[Amended 10-13-2015 by Ord. No. 2015-03]
[4]
A MSSF shall be set back from all property lines a distance equal to the height of the MSSF and comply with any other zoning setback requirements, subject to the following. If an applicant provides the Village with engineering certification showing that the tower is designed to collapse within a smaller area than the radius equal to the height of the tower, the smaller area shall be used unless the Village has and provides to the applicant substantial evidence that the engineering certification is flawed. The front, side, or rear setbacks, building size, open space requirements, and use limitations of Chapter 745, may be modified by the Village Board in its consideration of the application and the standards of § 745-23, and shall be determined by the grant or denial of the conditional use permit. Due to the constraints of § 66.0404, Wis. Stats., and other laws, the conditional use approval procedures of this § 745-23 shall be the exclusive zoning approval procedure for a new or substantially modified MSSF, eliminating the need for any other procedural reviews or approvals described in Chapter 745, including but not limited to the review and approval procedures described §§ 745-18, 745-19 and 745-20; although the intent of such sections may be considered to the extent that they are relevant to the standards of this § 745-23.
[Amended 10-13-2015 by Ord. No. 2015-03]
[5]
A side-mounted MSSF shall not project more than 42 inches from the side of a non-dwelling unit facade, shall not extend above the highest point of the roof of the structure and shall be screened and camouflaged as required herein. The MSSF shall not project into an easement, driveway or setback unless otherwise specified in the conditional use permit.
[6]
An equipment cabinet shall be located within or adjacent to the structure on which a MSSF is placed, or located below natural grade underground, if site conditions permit and if technically feasible. An equipment cabinet shall be completely screened from view by compatible wall, fence or landscaping consistent with Village landscaping guidelines, except that an equipment cabinet larger than 144 cubic feet may not be required to be totally screened from view if the Village Board finds, at its discretion, that the cabinet has been designed with a structure or facade, materials, colors or detailing that effect a structure which emulates the residential character of the area.
[7]
A security barrier shall be screened from view through the use of appropriate landscaping materials consistent with Village landscaping guidelines.
(b)
Design standards. The following design criteria apply to consideration of a conditional use permit for a MSSF, in addition to others which may be identified and utilized by the Village Board in its consideration of the conditional use permit or amendment thereto:
[1]
Appearance. The degree to which the MSSF "blends with" or "disturbs" the setting, the subject property and its character and use, or neighboring properties and their character and use; and to the extent allowed by law, the Village shall consider the cumulative visual effects of MSSFs and any mount, specifically their appearance or domination of the skyline, natural and structural features or terrain, in determining whether to approve a conditional use permit;
[2]
Form. The degree to which the shape of the MSSF and any equipment cabinet relates to its surroundings;
[3]
Color. A MSSF shall be in natural tones and a nonreflective color or color scheme appropriate to the background against which the MSSF would be viewed from a majority of points within its viewshed. "Natural" tones are those reflected in the natural features and structural background against which the MSSF is viewed from a majority of points within its viewshed. Final colors and color scheme must be approved by the Village Board;
[4]
Size. The silhouette of the MSSF shall be reduced to minimize visual impact.
[5]
Materials. Materials will be durable and maintain their aesthetic appearance.
(c)
Noise and environmental standards.
[1]
To the extent allowed by law, the following noise and environmental standards apply to consideration of a conditional use permit for a MSSF in addition to the monitoring requirements of this section:
[a]
MSSF shall not generate noise in excess of 50 decibels (dba).
[b]
An environmental assessment is required by the National Environmental Policy Act (NEPA) for any MSSF prior to commencing operations where any of the following exist: wilderness area; wildlife preserve; endangered species; historical site; Indian religious site; floodplain; high intensity white lights in residential neighborhoods. An environmental assessment which, at a minimum, conforms with FCC requirements shall be submitted to the Village for each MSSF where any of the above exists, and when the FCC requires such an environmental assessment to be submitted to the FCC. If the applicant has determined that an environmental assessment is not required pursuant to FCC rules, this article and applicable state law and Village Code, a written certification to that effect must be submitted to the Village. If an application has not included an environmental assessment that the Village finds to be necessary under the National Environmental Policy Act, the Village may prepare, or cause to be prepared, such an environmental assessment at the applicant's expense. The environmental assessment shall be amended or revised by the applicant within 30 days after notice to do so from the Village when modifications are made or occur on the MSSF. Failure to amend or revise shall constitute grounds for revocation of the conditional use permit or amendment.
[2]
Within 90 days after the approval of the conditional use permit, and annually from the date of approval of the permit or amendment, the permittee shall submit existing and maximum future projected measurements of noise from the MSSF for the following:
[a]
Existing MSSF: maximum noise from the MSSF.
[b]
Existing MSSF plus cumulative: maximum estimate of noise from the existing MSSF plus the maximum estimate of noise from the total addition of co-located MSSFs.
[c]
Certification, signed by an acoustical engineer, stating that noise measurements are accurate and meet Subsection C(4)(c)[2](a) above.
(d)
Co-location and limitations.
[1]
A permittee shall cooperate with other personal wireless service carriers in co-locating antennas and mounts, provided the proposed co-locators have received a conditional use permit for the use at such site from the Village. A permittee shall exercise good faith in co-locating other personal wireless service carriers and sharing the permitted site, provided such shared use does not give rise to a substantial technical level impairment of the ability to provide the permitted use (i.e., a significant interference in broadcast or reception capabilities).
[2]
All applicants shall demonstrate reasonable efforts in developing a co-location alternative for their proposal. Applicants choosing to construct a new mobile service support structure must provide an explanation as to why the applicant chose the proposed location and why the applicant did not choose co-location. Such explanation shall include a sworn statement from an individual who has responsibility over the placement of the mobile service support structure attesting that co-location within the applicant's search ring would not result in the same mobile service functionality, coverage, and capacity; is technically infeasible ; or is economically burdensome to the mobile service provider.
[3]
Failure to comply with the co-location requirements of this section may result in the denial of a permit request or revocation of an existing permit.
(e)
Aesthetic requirements. The following aesthetic standards apply:
[1]
In areas where facilities are currently nonexistent or underground, undergrounding is required.
[2]
No new aboveground structures, including colocations on existing structures, shall be placed within 500 feet of an historic structure recognized as a historic landmark by the U.S. Department of the Interior, or the State of Wisconsin Historical Society. The 500-foot separation is waived for installations that are completely concealed from view, or are not visible from locations where the historic structure can be observed.
[3]
Attachments to existing structures shall be designed to be flush with the existing structure as much as can reasonably be done, shall be a color that matches the existing structure and shall be the smallest size possible to reasonably accommodate the intended purpose. If the structure to which the attachment is made changes color due to repainting, resurfacing or other means, the attachment shall be modified to match the new color.
[4]
Any party objecting to the requirements of this Subsection C(4)(e) shall have an opportunity to demonstrate that the requirement constitutes an effective prohibition in violation of state or federal law, upon application to the Village Board, and the Village Board shall waive the requirement if it finds the standard to effectively prohibit the expansion of wireless technology in the Village or otherwise violate state or federal law.
(5)
Permit limitations and general conditions.
(a)
In addition to the general authority of the Village to review a conditional use permit, the conditional use shall be reviewed in each of every fifth year after the date of permit approval. Continuation of the use after each such review shall be specifically conditioned upon continued compliance with all existing regulations affecting the MSSF.
(b)
The conditional use permit shall become null, void and nonrenewable if the permitted facility is not constructed and placed into use within one year of the date of Village Board permit approval, provided that the conditional use permit may be extended one time for six months if construction has commenced before expiration of the initial year.
(c)
The permit shall expire and the permittee must remove the MSSF if the use is discontinued for a period in excess of 90 days in any three-hundred-sixty-five-day period. A permittee shall notify the Village in writing at least 30 days prior to abandonment or discontinuance of the conditional use permit.
(d)
If the conditional use permit expires, terminates, is abandoned or revoked for any reason pursuant to this section, if removal of the MSSF is required in this article, or if the use is discontinued pursuant to this section, the MSSF shall be removed as required herein. If the MSSF is not so removed, the Village may cause the facility to be removed and all expenses of removal shall be paid by the owner of the land where the facility is located. If not paid by the owner within 30 days of notice by the Village, the Village's costs shall be charged against the property pursuant to Wisconsin Statutes Section 66.0627, and shall constitute a lien against the subject property. The term "remove" shall include but not be limited to the following:
[1]
Removal of antenna, equipment cabinet, security barrier from the site;
[2]
Transportation of the antenna, mount, equipment, equipment cabinet or security barrier to a location off-site; if the location is within the Village limits, it is subject to approval by the Village.
[3]
Restoration of the site of the MSSF to its natural condition, except that any landscaping and grading shall remain in finished condition.
(e)
The permittee(s) and the personal wireless service carrier shall jointly and severally warrant and represent to the Village and its residents the safety of the MSSF. The personal wireless service carrier and the permittee(s), upon granting of a conditional use permit or amendment for a MSSF use, shall indemnify, protect and hold harmless the Village, its officers and agents and residents, from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attorney fees (collectively "liabilities") incurred by the Village arising directly or indirectly from: the MSSF use as contemplated herein and within the conditional use permit; and the installation and operation of the MSSF. The personal wireless service carriers' compliance with this section is an express condition of the conditional use permit and is binding on any and all of personal wireless service carriers or permittee(s) successors and assigns. The requirements of this section shall survive the termination of any such permit or amendment.
(f)
The permittee shall carry a commercial general liability insurance policy with limits of liability not less than $1,000,000 general aggregate, $1,000,000 personal injury and $1,000,000 each occurrence. Permittee shall also carry umbrella liability insurance with limits of liability not less than $10,000,000 each occurrence, $10,000,000 aggregate. Coverage under either policy shall not contain a standard form pollution exclusion, nor shall it exclude claims or suits that arise from the effects of electromagnetic fields or radiation, if such coverage is available. The maximum deductible shall be $5,000 per occurrence.
(g)
The permittee shall maintain the MSSF to standards that are imposed by the Village at the time of granting of a permit or amendment thereto. Such maintenance shall include, but shall not be limited to, maintenance of the paint, structural integrity and landscaping. If the permittee fails to maintain the facility, the Village may undertake the maintenance at the expense of the permittee or terminate or revoke the permit, at its sole option. If such maintenance expense is not paid by the owner within 30 days of notice by the Village, the permittee agrees that the Village's costs shall constitute a lien upon the subject property upon its execution and filing with the county recorder's office.
(h)
A conditional use permit or amendment granted to a permittee is specific to the owner and personal wireless service carrier and may not be assigned; provided, however, that the personal wireless service carrier may assign its interest in the permit to any subsidiary or other affiliate of the personal wireless service carrier. In the event of such assignment, the assignee shall re-execute the conditional use permit or amendment thereto within 30 days of the effective date of the assignment or the permit shall automatically expire. Permittee shall notify the Village of any change in ownership or operations of the MSSF at least 90 days prior to such change taking place for approval by the Village, which approval shall not be unreasonably withheld.
(i)
Where the Village Board finds that strict compliance with the requirements of this section may result in extraordinary hardship or are needed to ensure the Village's compliance with federal or state law, the Village Board may modify such requirements only upon a written showing by the permittee(s) of noncompliance with applicable law or extraordinary hardship so that substantial justice may be done and the public interest secured. "Hardship," as used herein, shall include, but not be limited to, a finding that special circumstances applicable to the property, including its size, shape, topography, location or surroundings, will deprive such property of privileges enjoyed by other property in the same classification in the same zoning district through the strict application of this chapter. In granting such modifications, the Village Board may require such conditions as will, in its judgment, secure substantially the objective of the standards or requirements so varied and modified.
(j)
Any violation of the terms of this section or the conditional use permit may result in revocation by the Village of the conditional use permit. The Village may revoke the conditional use permit upon 60 days' prior notice, if, in its sole judgment, it determines the MSSF poses a safety risk. If such safety risk(s) are not cured by the permittee within 60 days after notice from the Village, the Village may revoke or modify the conditional use permit. Acceptance of any portion of the conditional use permit is acceptance of the entire conditional use permit and the terms of this section.
(k)
Within 90 days after issuance of the FCC operational permit, the personal wireless service carrier shall provide a copy of such permit to the Village and register the MSSF, providing information and data as may be requested by the Village. Any change in the permit or registration data shall be filed with the Village within 30 days after the change is made. The personal wireless service carrier shall submit to the Village a copy of its FCC Form 600 prior to the Village's approval of final inspection of a building permit for the MSSF or portion thereof.
(l)
The Village and its agents are authorized to enter on the subject property and MSSF site for the purpose of inspection and determining compliance with this section and the provisions of the conditional use permit.
(6)
Limitations upon authority. The Village review and action in the matter shall be subject to the limitations imposed by Wisconsin Statutes Section 66.0404(4). In the event the applicant believes the Village has exceeded its authority in this regard, the applicant shall notify the Village Board in writing and the Village Board reserves the right to reconsider the matter, to ensure that applicable laws are followed.
D.
Modifications. The construction of modifications to an existing mobile service support structure or mobile service facility, and any installation of a small wireless facility on an existing structure, shall be subject to the following requirements:
[Amended 4-9-2019 by Ord. No. 2019-03]
(1)
Substantial modification.
(a)
Application and review process. A substantial modification is regulated the same as a new structure or facility, as described in Subsection C above, except that the required plans should describe the proposed modifications, rather than describe the new structure or facility.
(2)
Not substantial modifications.
(a)
Application information. The applicant shall submit a written application that describes the applicant's basis for concluding that the modification is not substantial, and all of the following information:
[1]
The name and business address of, and the contact individual for, the applicant.
[2]
The location of the affected support structure.
[3]
The location of the proposed facility.
(b)
Completeness determination within five days. The Village Building Inspector will determine whether the application is complete. If the application includes all of the foregoing information, the application shall be found to be complete. The Village Building Inspector must notify the applicant in writing within five days of receiving the application if it is found not to be complete, specifying in detail the required information that was incomplete. The applicant may resubmit as often as necessary until it is complete.
(c)
Fee. Any petition shall be accompanied by a fee as set from time to time by the Village Board to defray the cost of review. Costs incurred by the Village in obtaining legal, planning, engineering and other technical and professional advice in connection with the review of the conditional use and preparation of the conditions to be improved shall be charged to the petitioner. Such fee shall not exceed the limits established by Wisconsin Statutes § 66.0404(4)(d).
(d)
Determination. The Village Board shall make a decision on the application within a reasonable time after receipt of the Plan Commission recommendations, provided further that final action shall be taken within 45 days of receipt of a complete application unless the time is extended by the petitioner. Said decision shall be stated in writing and a copy made a permanent part of the Village records. If approval is not granted, the reasons therefor will be included in such record.
(e)
Limitations upon authority. The Village review and action in the matter shall be subject to the limitations imposed by Wisconsin Statutes § 66.0404(4), and such other laws as may apply which may include 47 U.S.C.A. § 1455. In the event the applicant believes the Village has exceeded its authority in this regard, the applicant shall notify the Village Board in writing and the Village Board reserves the right to reconsider the matter, to ensure that applicable laws are followed.
