Lewes City Zoning Code
ARTICLE X
Streets and Other Infrastructure
§ 197-79 Streets and roads.
§ 197-80 Water supply and distribution.
§ 197-81 Sewage collection and disposal.
§ 197-82 Electricity.
§ 197-83 Other utilities.
[Amended 9-10-2018; 11-9-2020]
B.
Wireless facilities.
(1)
Purposes. The City of Lewes is the first town in the first state. The City has a history and aesthetic that is important to retain. The installation of small cell technology will enhance wireless capabilities while harmoniously blending into the existing character and context of the City. Installation of the technology shall take into consideration the area in which it will be placed. The City wants to ensure its small town historic character is maintained when development occurs in any form.
(2)
Applicability. This article applies to all wireless communications facilities within the City of Lewes or permitted by the Lewes Board of Public Works, including the expansion, co-location and/or modification of any existing small cell wireless communications facilities, subject to the following procedures.
(a)
Permit. No wireless facility shall be erected, constructed, installed or modified without first obtaining a permit (see § 197-83B(4), Application process).
(b)
City reviews for installations or maintenance of wireless facilities covered by federal or state legislation are confined to the procedures and limits on review and approval for siting, co-locating and modifying wireless facilities and equipment as defined by those regulations, as amended, and all applicable codes regarding building standards. Applications that include changes to or new wireless facilities not specified by federal or state laws will be subject to additional City review procedures, guidelines, and fees. Further details on types of wireless applications and review procedures are outlined in the small cell attachment permit application form, the small cell wireless facilities and telecommunications towers design standards or the City Code located on the City website.
(c)
This section is not intended to, nor shall it be interpreted or applied to:
[1]
Prohibit or effectively prohibit any personal wireless service provider's ability to provide personal wireless services;
[2]
Prohibit or effectively prohibit any entity's ability to provide any interstate or intrastate telecommunications service, subject to any competitively neutral and nondiscriminatory rules or regulation for rights-of-way management;
[3]
Unreasonably discriminate among providers of functionally equivalent services;
[4]
Deny any request for authorization to place, construct or modify personal wireless service facilities on the basis of environmental effects of radio-frequency emissions to the extent that such facilities comply with the Federal Communication Commission's regulations concerning such emissions;
[5]
Prohibit any co-location or modification that the City may not deny under federal law; or
[6]
Otherwise authorize the City to preempt any applicable federal or Delaware state law.
(d)
The following are exempt from the provisions of this section:
(3)
Wireless facilities review.
(a)
Administrative review. The following types of wireless facilities shall be reviewed administratively:
[1]
Small cell facilities located on any existing wireless support structures in any zoning district that comply with defined design standards;
[2]
Small cell facilities located on a new wireless support structure in any designated state right-of-way or on City, BPW or state-owned structures;
[3]
Small cell facilities located on a new wireless support structure in any designated City right-of-way that comply with defined design standards;
[4]
Building/structure-mounted facilities in the following zoning districts: Limited Commercial (LC), General Commercial (GC), Community Facilities Zone (CF), Community Facilities (Educational) Zone (CF-E), Community Facilities (Health Care) Zone (CF-HC), and Industrial (I) that comply with defined design standards.
[5]
Modifications to a wireless facility support structure which involves: co-location of new transmission equipment; removal of transmission equipment; or replacement of transmission equipment, provided the modification does not result in substantial change in the physical dimensions of an eligible support structure.
(b)
Any decision to administratively approve or deny a permit application is subject to review by the Board of Building Code Appeal.
(c)
Conditional use permit review. The following types of applications require review through the conditional use permit procedures as identified in Article XIII, Conditional Uses, of this chapter of the City Code:
[1]
Building-mounted facility in any zoning district, not listed in Subsection B(3)(a)[4] under Administrative review above;
[2]
A new tower facility over 50 feet in height in any zoning district;
[3]
Co-locations and modifications resulting in a substantial change to an existing facility as defined in § 197-83B(10).
(d)
For conditional use applications for wireless facilities, the Mayor and City Council may grant long-term conditional use approval of up to five years, after which an applicant may reapply.
(e)
Additional review. Wireless facility proposals may also be subject to other applicable review procedures as defined in the Lewes BPW Pole Attachment Agreement or by City code if located in an historic district, floodplain or other areas regulated by the Code unless specifically exempted under § 197-83B(2) (Applicability section).
(4)
Application process. Applicants shall use one of the following application forms (from the City website) to initiate a review depending on the type of proposed wireless facility:
(5)
Time frame for approval. The City shall comply with all federal and state timing requirements in consideration of applications for new tower facilities and co-location and modification of existing wireless facilities. Wireless facilities that do not fall under those requirements will follow the plan review scheduling requirements outlined for site plans and conditional uses as defined in the City Code.
(6)
Removal of abandoned antennas and towers. Any antenna or tower that is not operated for a continuous period of 12 months shall be considered abandoned, and the owner of such antenna or tower shall remove the same and any supporting equipment or foundation improvements within 90 days of receipt of notice from the City notifying the owner of such abandonment. Failure to remove an abandoned antenna or tower within said 90 days shall be grounds to remove the tower or antenna at the owner's expense. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower.
(7)
Wireless facilities siting and design standards. Standards and specifics on review procedures for all wireless facility applications are included in the small cell wireless facilities and telecommunications towers design standards document that is available on the City website.
(8)
Bonding requirements. Whenever any tower facility is constructed, the operator of the tower facility shall obtain and keep in force:
(a)
A performance bond payable to the City to cover the cost of removal of the tower facility. The performance bond shall remain in force throughout the time that the tower is located on the site. The amount of the bond shall equal 150% of the costs to remove the pole and equipment.
(b)
When landscaping installation is required, a maintenance bond, assignment of funds or other financial guarantee acceptable to the City shall be provided in the amount of 10% of the value of the labor and materials. The guarantee shall be in effect for two years from the date of planting.
(9)
Nonconforming uses.
(a)
Preexisting towers. Preexisting towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such preexisting towers. New construction other than routine maintenance on a preexisting tower shall comply with the requirements of this chapter.
(b)
Rebuilding damaged or destroyed nonconforming towers or antennas. Notwithstanding Subsection B(2)(a), bona fide nonconforming towers or antennas that are damaged or destroyed may be rebuilt without first having to obtain administrative approval or a conditional use permit. The type, height, and location of the tower on-site shall be of the same type and intensity as the original facility approval. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within 180 days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specified in Subsection B(6).
(10)
Substantial change criteria. A proposed wireless facilities modification will substantially change the physical dimensions of an eligible support structure if it meets any of the following criteria:
(a)
For a facility other than wireless support facilities in the state rights-of-way or on a state structure, it increases the size (height or width) of the facility by more than 10%. Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the wireless support facility or base station;
(b)
For any support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed three cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no preexisting ground cabinets associated with the structure; or
(c)
It would defeat the concealment elements of the eligible support structure.
(11)
Attachment certificate and pole agreements. In the event that a request is made to the Lewes BPW to overlash or co-locate any wireless facilities including a small cell facility on a Lewes BPW pole or other non-utility municipal structure located in any right-of-way (whether owned by the City, the state or other party), a request shall be made, in writing, to the City and Lewes BPW using the online permit application. Such reviews will be conducted in accordance with the BPW Pole Attachment License Agreement and the City Building Code as well as comply with the provisions on the City Zoning Ordinance and other applicable code requirements. In the event this involves co-locating on a small cell facility on a structure other than those owned by Lewes BPW, the City will conduct the review upon submittal.
(12)
Reimbursement. In addition to permit fees as described in this section, every wireless facility in the right-of-way is subject to the City's right to recover its actual costs incurred as a result of construction in the right-of-way, including, but not limited to, the costs of the administration and performance of all reviewing, inspecting, permitting, supervising and other right-of-way management activities by the City. The owner of each wireless facility shall reimburse the City for the City's costs reasonably incurred in connection with the activities described above. All fees shall comply with applicable state and federal law and not exceed amounts presumed reasonable by the FCC.
(13) ANTENNA ANTENNA HEIGHT or HEIGHT APPLICANT APPROVAL AUTHORITY BACKHAUL NETWORK BASE STATION CELL SITE or SITE CO-LOCATION CONCEAL or CONCEALMENT DESIGN DISTRIBUTED ANTENNA SYSTEM ELIGIBLE SUPPORT SYSTEM FAA FCC LATTICE TOWER LEWES BPW LEWES BPW POLE MOUNT(a) (b) (c) OVERLASHING PANEL ANTENNA PREEXISTING TOWER and PREEXISTING ANTENNA PROPOSED WIRELESS FACILITIES MODIFICATION SMALL CELL FACILITY(a) (b) (c) SUBSTANTIAL CHANGE CRITERIA TOWER TRANSMISSION EQUIPMENT UTILITY POLE WIRELESS FACILITIES MODIFICATION WIRELESS FACILITY or FACILITY WIRELESS SERVICE WIRELESS SUPPORT STRUCTURE
Definitions. As used in this chapter, the following terms shall have the meanings set forth below:
Any exterior transmitting or receiving device mounted on a tower, building or structure and used in communications that radiate or capture electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals.
The vertical distance measured from the base of the wireless support facility at grade to the highest point of the structure, even if said highest point is an antenna. Measurement of height shall include antenna, base pad, and other appurtenances and shall be measured from the finished grade of the parcel.
Any provider or any person, partnership, or company who files an application for any permit necessary to install, maintain, modify, co-locate, replace or remove a personal wireless service facility within the City.
Is the City Manager and Lewes BPW General Manager, or designee, as provided by the City Code and BPW Pole Attachment License Agreement, as amended.
The lines that connect a provider's towers/cell sites to one or more cellular telephone switching office, and/or long distance provider, or the public switched telephone network.
The structure or equipment at a fixed location that enables wireless communications licensed or authorized by the FCC between user equipment and a communications network. The term does not encompass a tower as defined in this chapter or any equipment associated with a tower. A wireless support structure becomes a base station when wireless telecommunications equipment is attached.
A tract or parcel of land that contains wireless service facilities, including any antenna, support structure, accessory building, and parking, and may include other uses associated with an ancillary to personal wireless services.
The mounting or installation of transmission equipment on a wireless support structure for the purpose of transmitting and/or receiving radio-frequency signals for communications purposes. This definition includes the first placement of transmission equipment on a tower or base station.
Wireless support structures and transmission facilities designed to look like some feature other than a tower or base station.
The appearance of a personal wireless service facility, including such features as its material, color, and shape.
A network or facility to which all of the following apply:
Any tower or base Station that is existing at the time the proposed eligible wireless facilities modification application is filed with the City.
The Federal Aviation Administration.
The Federal Communications Commission.
A type of mount that is self-supporting with multiple legs and cross-bracing of structural metal.
The Lewes Board of Public Works.
Any utility pole that is owned by the Lewes Board of Public Works.
The structure or surface upon which personal wireless service facilities are mounted. There are three types of mounts:
BUILDING MOUNTA wireless service facility mount fixed to the roof or side of a building.
GROUND MOUNTA wireless service facility mount fixed to the ground, such as a tower.
STRUCTURE MOUNTA wireless service facility fixed to a structure other than a building, such as light standards, utility poles, water towers and bridges.
Adding wireless facility attachments to a Lewes BPW pole or structure.
A directional antenna as included in the definition of "antenna" above.
Any tower or antenna for which a building permit or conditional use permit has been properly issued prior to the effective date of the ordinance codified in this chapter, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired.
Shall mean and refer to a proposal submitted by an applicant to modify a support structure which the applicant asserts is subject to review under FCC and state regulations, and involving:
A wireless facility that meets the following qualifications:
Each antenna associated with the facility is located inside an enclosure of not more than six cubic feet in volume, or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an enclosure of not more than six cubic feet in volume;
All other wireless equipment associated with the facility is cumulatively not more than 28 cubic feet in volume. The calculation of equipment volume shall not include electric meters, concealment elements, telecommunications demarcation boxes, grounding equipment, power transfer switches, cutoff switches, and vertical cable runs for power and other services; and
If the facility were placed on a wireless support structure, the increased height would not be more than 10 feet or the overall resulting height would be not more than 50 feet.
The criteria set forth in § 197-83B(10).
Any structure built for the sole or primary purpose of supporting any antennas and their associated facilities, licensed or authorized by the FCC, including structures that are constructed for wireless communications services, including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site.
Equipment that facilitates transmission for any wireless communications service licensed or authorized by the FCC, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
A structure that is designed for, or used for the purpose of, carrying lines, cables, or wires for electric or telecommunications service, but not including structures owned by a municipal electric utility.
Any proposed facilities modification that has been determined pursuant to the provisions of this chapter to be subject to this chapter and which does not result in a substantial change in the physical dimensions of a wireless support structure.
All antenna, transmission equipment or other wireless device or equipment used to provide wireless service.
Shall be defined in the same manner as in Title 47, United States Code, § 332(c)(7)(C), as they may be amended now or in the future, and includes facilities for the transmission and reception of radio or microwave signals used for communication, cellular phone, personal communications, services, enhanced specialized mobile radio, and any other wireless services licensed by the FCC and unlicensed wireless service facilities.
Any pole, monopole (either guyed or self-supporting), light pole, traffic signal, sign pole, telescoping mast, tower, tripod, utility pole or other structure which supports or is capable of supporting a device used in the transmitting or receiving of radio-frequency signals. For purposes of requesting consent for a microcell facility, the term "wireless support structure" excludes a municipal electric utility pole, or other structure owned or operated by a municipal electric utility.