The provisions of this article shall be known as the wireless communication facilities regulations. It is the purpose of these provisions to delineate restrictions, development standards and siting criteria, and establish removal procedures in order to protect the city from the uncontrolled siting of wireless communication facilities in locations that have significant adverse effects and cause irreparable harm. It is further the purpose of these provisions:

(1)

To protect the community's visual quality and safety while facilitating the reasonable and balanced provision of wireless communication services. More specifically, it is the city's goal to minimize the visual impact of wireless communication facilities on the community, particularly in and near residential zones, the central business district, the Normal Hill heritage overlay zone, and historic districts;

(2)

To promote and protect the public health, safety and welfare, preserve the aesthetic character of the Lewiston community, and to reasonably regulate the development and operation of wireless communication facilities within the city to the extent permitted under state and federal law;

(3)

To minimize the impact of wireless communication facilities by establishing standards for siting design and screening;

(4)

To preserve the opportunity for continued and growing service from the wireless industry;

(5)

To accommodate the growing need and demand for wireless communication services;

(6)

To establish clear guidelines and standards and an orderly process for review intended to facilitate the deployment of wireless transmission equipment, to provide advanced communication services to the city, its residents, businesses and community at large;

(7)

To minimize the number of new towers and encourage the collocation of antennas of more than one (1) wireless communication service provider on a single tower or WCF support structure;

(8)

To ensure city zoning regulations are applied consistently with federal and state telecommunications laws, rules, regulations and controlling court decisions; and

(9)

To provide regulations that are specifically not intended to, and shall not be interpreted or applied to: (a) prohibit or effectively prohibit the provision of wireless services, (b) unreasonably discriminate among functionally equivalent service providers, or (c) regulate wireless communication facilities and wireless transmission equipment on the basis of the environmental effects of radio frequency emissions to the extent that such emissions comply with the standards established by the Federal Communications Commission.

(Ord. No. 4742, § 1, 8-19-19; Ord. No. 4790, § 1, 11-23-20)

As used in this article, the following terms shall have the meanings set forth below:

Antenna is a WCF and means any exterior transmitting or receiving device mounted on a tower, building or structure and used in communications that sends or receives digital signals, analog signals, radio frequencies or wireless communication signals.

Antenna array is a WCF and means a group of antenna elements, not including small cells, and associated mounting hardware, transmission lines, or other appurtenances that share a common attachment device for the sole purpose of transmitting or receiving wireless communication signals.

Applicant means any person engaged in the business of providing wireless communication services or the wireless communication infrastructure required for wireless communication services and who submits an application.

Application means the process by which an applicant submits a written request on a form provided by the city and indicates a desire to be granted a permit pursuant to this article. A complete application means all written documentation, in whatever form or forum, made by an applicant to the city concerning the construction of wireless communication facilities; the wireless services proposed to be provided; and any other matter pertaining to a proposed system or service, including, if applicable and without limitation, information related to a request for a conditional use permit or an exception to a standard.

Base station is a WCF and means a structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in this article or any equipment associated with a tower.

(1)

The term includes, but is not limited to, equipment associated with wireless communication services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services, such as microwave backhaul.

(2)

The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small cell networks).

(3)

The term includes any structure other than a tower that, at the time the relevant application is filed with the city under this article, supports or houses equipment described in this section that has been reviewed and approved under the applicable zoning or siting process, or under state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.

(4)

The term does not include any structure that, at the time the relevant application is filed with the state or the city under this article, does not support or house equipment described in this section.

Breakpoint design technology means the ability of a tower to break at a specified point so that the entire tower does not collapse.

Central business district means that area described as the central business district in section 37-145 of this Code.

City means City of Lewiston, Idaho.

Collocation means mounting or installing an antenna facility on a preexisting structure and/or modifying a structure for the purpose of mounting or installing an antenna facility on that structure. For purposes of an eligible facilities request, "collocation" means the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.

Commercial zone means the following zoning districts within the City of Lewiston: the local commercial (C-1) zone; the tourist commercial (C-2) zone; the community commercial (C-3) zone; the general commercial (C-4) zone; the central commercial (C-5) zone, except that portion of the C-5 zone located in the central business district; the regional commercial (C-6) zone; the light industrial (M-1) zone; the heavy industrial (M-2) zone; the planned unit development (PD) zone, where commercial uses are allowed; the port (P) zone; and the airport (A) zone.

Community development director means the director of the community development department of the City of Lewiston and his/her designee(s).

Distributed antenna system or DAS is a WCF and means a central network consisting of equipment that can both transmit and receive to support multiple antenna locations throughout the desired coverage area.

Eligible facilities request means any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving:

(1)

Collocation of new transmission equipment;

(2)

Removal of transmission equipment; or

(3)

Replacement of transmission equipment.

Eligible support structure is a WCF and means any tower or base station as defined in this section; provided, that it is existing at the time the relevant application is filed with the city under this article.

Existing means a tower or base station that has been reviewed and approved under an applicable zoning or siting process, or under another state or local regulatory review process; provided, that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.

FAA means the Federal Aviation Administration.

FCC means the Federal Communications Commission.

Historic district(s) means that historic district(s) described in chapter 19.5 of this Code.

Macro cell means a WCF and means a high-powered wireless communication facility that provides broad network coverage (typically one (1) mile or greater). Generally, macro cell antennas are mounted on ground-based towers, rooftops and other existing structures, at a height that provides a clear view over the surrounding buildings and terrain. Macro cells are typically capable of hosting multiple wireless service providers and accompanied by base stations.

Mixed use zone means the following zoning districts within the City of Lewiston: The Bryden Avenue special planning area A (BASPAA) zone; the North Lewiston mixed use development (MXD-NL) zone; the Normal Hill special planning area mixed use (NHMU) zone; and the planned unit development (PD) zone, where commercial and residential uses are allowed.

Normal Hill heritage overlay zone or NHHO means the NHHO zone described in chapter 37, article III of this Code.

Operator means any person who provides service over a wireless communication system and directly or through one (1) or more persons owns a controlling interest in such system, or who otherwise controls or is responsible for the operation of such a system.

Person means and includes any individual, corporation, limited liability company, partnership, association, joint stock company, trust, or any other legal entity, but not the city.

Protected areas means all real property located in residential zones, within two hundred (200) feet of a residential zone, the central business district, the Normal Hill heritage overlay zone, and all historic districts.

Provider means an operator, wireless infrastructure provider, or wireless services provider.

Residential zone means the following zoning districts within the City of Lewiston: The agricultural transitional (F-2) zone; the suburban residential (R-1) zone; the low density residential (R-2) zone; the low density residential (R-2A) zone; the medium density residential (R-3) zone; the higher density residential (R-4) zone; the Bryden Avenue special planning area B (BASPAB) zone; the Normal Hill north (NHN) zone; the Normal Hill south (NHS) zone; and the planned unit development (PUD) zone, where residential uses are allowed.

RF means radio frequency emissions at such levels as are determined by the FCC.

Rights-of-way means the same as defined or referenced in chapter 31 of this Code.

Site means, in relation to a tower that is not in the public right-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site. In relation to a support structure that is not in the public right-of-way other than a tower, site means an area in proximity to the structure and to other transmission equipment already deployed on the ground.

Small cells and small wireless facilities mean facilities that meet the following conditions:

(1)

The facilities:

a.

Are mounted on structures fifty (50) feet or less in height, including their antennas;

b.

Are mounted on structures no more than ten (10) percent taller than other adjacent structures; or

c.

Do not extend existing structures on which they are located to a height of more than fifty (50) feet or by more than ten (10) percent, whichever is greater;

(2)

Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three (3) cubic feet in volume;

(3)

All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure, is no more than twenty-eight (28) cubic feet in volume;

(4)

The facilities do not require antenna structure registration under federal law;

(5)

The facilities are not located on tribal land as defined under federal law; and

(6)

The facilities do not result in human exposure to radio frequency radiation in excess of the applicable safety standards specified under federal law.

Stealth design means a design that minimizes the visual impact of wireless communication facilities by camouflaging, disguising, screening or blending into the surrounding environment. Examples of stealth design include, but are not limited to, WCFs disguised as trees (monopines), flagpoles, utility and light poles, bell towers, clock towers, ball field lights, and architecturally screened roof-mounted antennas.

Substantial change means a modification that substantially changes the physical dimensions of a tower or base station, as provided in 47 CFR § 1.6100(b)(7), as amended from time to time.

Tower is a WCF and means any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and associated facilities, including structures that are constructed for wireless communication 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.

Tower height means the vertical distance measured from the base of the tower structure at grade to the highest point of the structure, including the antenna; or, where the tower is mounted on a rooftop, the vertical distance at grade from the base of the building to the highest point of the tower structure, including the antenna. A lightning rod, not to exceed ten (10) feet in height, shall not be included within tower height.

WCF support structure means any tower, building, pole, water tank, water tower, or other structure to which an antenna is or antennas are attached.

Wireless communication facilities or WCF means equipment for the transmission or reception of:

(1)

Radio frequency signals or other wireless communications; or

(2)

Other signals for communications purposes. Such equipment may consist of, for example, antennas, antenna arrays, base stations, distributed antenna systems, macro cells, small cells, towers, and transmission equipment.

Wireless infrastructure provider means a person, other than a wireless services provider, that builds or installs wireless communication transmission equipment, wireless facilities' utility poles, or wireless support structures.

Wireless services provider means a person that provides wireless services.

(Ord. No. 4742, § 1, 8-19-19; Ord. No. 4790, § 2, 11-23-20)

(a)

The regulations set forth in this article shall apply to all WCFs located or proposed to be located within the city, except in public rights-of-way. Wireless communication facilities regulations that apply to public rights-of-way within the City of Lewiston are addressed in chapter 31, article VI, of this Code.

(b)

Exempt facilities. The following are exempt from this article:

(1)

FCC-licensed amateur (ham) radio facilities;

(2)

Satellite earth stations, dishes and/or antennas used for private television reception not exceeding one (1) meter in diameter;

(3)

A government-owned WCF installed upon the declaration of a state of emergency by the federal, state, or local government, or a written determination of public necessity by the city; except that such facility must comply with all federal and state requirements. The WCF shall be exempt from the provisions of this article for up to one (1) month after the duration of the state of emergency;

(4)

A temporary WCF installed for providing coverage of a special event, such as news coverage or a sporting event. At least five (5) business days' written notice shall be given to the community development department prior to installation of such temporary WCF. Such temporary WCFs shall only be allowed two (2) weeks before and one (1) week after the special event; and

(5)

Other temporary WCFs installed for a period of up to ninety (90) days. At least five (5) business days' written notice shall be given to the community development department prior to the installation of such temporary WCF. Additionally, such temporary WCF shall comply with applicable setbacks and height requirements in residential zones, historic district(s), and the Normal Hill heritage overlay zone.

(Ord. No. 4742, § 1, 8-19-19)

(a)

All WCFs shall comply with the following regulations:

(1)

Color. All WCFs shall be placed and colored to blend into their surroundings. The use of grays, blues, greens, dark bronze, browns or other site specific colors may be appropriate; however, each case should be evaluated individually.

(2)

Lighting. Security lighting for the equipment shelters or cabinets and other on the ground ancillary equipment is permitted, as long as it is appropriately down shielded to keep light within the boundaries of the site.

(3)

State or federal requirements. Towers and antennas must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas.

(4)

Permits. All WCFs shall be required to obtain permits in accordance with chapter 10 of this Code.

(5)

Certificate of appropriateness. All WCFs located in historic district(s) or the Normal Hill heritage overlay zone shall be required to obtain a certificate of appropriateness from the historic preservation commission so that the WCF's stealth design blends into the historic district(s) or into the Normal Hill heritage overlay zone in accordance with code requirements for new construction. All WCFs that are proposed to be located in a historic district(s) or the Normal Hill heritage overlay zone shall be subject to the additional regulations governing those areas, including, but not limited to, securing a certificate of appropriateness when required. The processes for obtaining a certificate of appropriateness and conditional use permit shall proceed simultaneously.

(6)

Airport notice. When seeking an administrative permit or approval pursuant to this article, except when making an eligible facilities request, the applicant shall notify the Lewiston-Nez Perce County Regional Airport. A copy of such notice shall be submitted with the filing of an application to the city and shall include a site plan and either an elevation drawing or a photo simulation of the proposed WCF indicating the proposed height of the WCF.

(7)

Signs. A WCF shall not bear any signage or advertisement other than signage required by law or expressly required by the city.

(8)

Visual impact. All WCFs, except for those located in the commercial and mixed use zones, shall be sited and designed to minimize adverse visual impacts on surrounding properties and the traveling public to the greatest extent reasonably possible, but without adverse impact to the proper functioning of the WCF. Such WCFs and equipment enclosures shall be integrated through location, design, and/or screening to blend in with or be hidden within the existing characteristics of the site.

(9)

Use of stealth design. Stealth design is required as provided in table 1 of section 37-222 of this Code, and concealment techniques must be appropriate given the proposed location, design, visual environment, and nearby uses, structures, and natural features. Stealth design shall be designed and constructed to substantially conform to surrounding building designs or natural settings, so as to be visually unobtrusive.

(10)

Installation on city property. Installation of any WCF on city-owned property requires a duly executed written agreement with the city prior to installation.

(11)

Equipment mounting. All equipment shall be mounted as close as possible to the structure, pole, or building so as to reduce the overall visual profile to the maximum extent feasible.

(12)

Setbacks and fencing.

a.

If any setback prescribed within this chapter requires a greater distance than required in this article, the greater distance shall apply.

b.

A sight-obscuring fence no less than six (6) feet in height from the finished grade shall be constructed around any macro cell tower, including around related support or guy anchors, and around its base station. Access shall only be through a locked gate.

(13)

Collocation encouraged. A written statement shall be provided demonstrating the applicant's willingness to allow transmission equipment owned by others to collocate with the proposed wireless communication facility whenever technically and economically feasible.

(14)

Accessory uses.

a.

Accessory uses shall be limited to such structures and equipment that are necessary for transmission or reception functions, and shall not include broadcast studios, offices, vehicles or equipment storage, or other uses not essential to the transmission or reception functions.

b.

All accessory buildings shall be constructed of building materials equal to or better than those of the primary building on the site, built to blend into the surrounding architectural style, and subject to applicable permits.

c.

No equipment shall be stored or vehicle parked on the site of the tower, unless used in direct support of the antennas or the tower that is being repaired.

d.

In protected areas, all accessory equipment located at the base of a WCF shall be located or placed (at the applicant's choice) in an existing building, underground, or in an equipment shelter or cabinet that is:

1.

Designed to blend in with existing surroundings, using architecturally compatible construction and colors; and

2.

Located so as to be as unobtrusive as possible consistent with the proper functioning of the WCF.

(15)

Compliance report. A written report shall be prepared by a licensed professional engineer or another person with demonstrated expertise in the field of RF engineering. Such report shall attest that the proposed WCF (whether it be new or replacement equipment) complies with the RF emissions limits established by the FCC. Such report shall be submitted with every permit application.

(b)

Site design flexibility. Individual WCF sites vary in the location of adjacent buildings, existing trees, topography, and other local variables. By mandating certain design standards, there may result a project that could have been less intrusive if the location of the various elements of the project could have been placed in more appropriate locations within a given site. Therefore, the WCF and supporting equipment may be installed so as to best camouflage, disguise or conceal them, to make the WCF more closely compatible with and blend into the setting or host structure, upon approval from the community development director or the planning and zoning commission, as applicable.

(Ord. No. 4742, § 1, 8-19-19; Ord. No. 4790, § 3, 11-23-20)

With the exception of commercial and mixed use zones:

(1)

All transmission equipment shall be concealed within existing architectural features to the maximum extent feasible. Any new architectural features proposed to conceal the transmission equipment shall be designed to mimic the existing underlying structure, shall be proportional to the existing underlying structure or conform to the underlying use, and shall use materials in similar quality, finish, color, and texture as the existing underlying structure.

(2)

All roof-mounted transmission equipment shall be set back from all roof edges to the maximum extent feasible consistent with the need for "line-of-sight" transmission and reception of signals.

(3)

Antenna arrays and supporting transmission equipment shall be installed so as to camouflage, disguise, or conceal them to make them closely compatible with and blend into the setting or host structure.

Towers located on roofs shall be subject to the provisions of section 37-222 of this Code rather than this section.

(Ord. No. 4742, § 1, 8-19-19)

(a)

Unless a conditional use permit is obtained, antenna arrays shall not be permitted:

(1)

In residential zones;

(2)

On single-family houses and duplexes;

(3)

On signs;

(4)

In historic districts; or

(5)

In the Normal Hill heritage overlay zone.

The notice and procedural provisions of article IX of this chapter ("conditional uses") and the factors set forth in section 37-222(h) of this Code (substituting "antenna array" for "tower") shall apply to conditional use permits sought for the purpose of locating antenna arrays in one (1) of the preceding zones.

(b)

Subject to subsection (a) of this section, antenna arrays are permitted if located on an existing structure such that they do not extend more than fifteen (15) feet above said structure.

(Ord. No. 4742, § 1, 8-19-19)

(a)

Small cells are allowed in all zones, provided the applicant complies with all federal laws and state laws and requirements and structural industry standards.

(b)

Small cells are subject to approval via permits and administrative review unless their installation requires the construction of a pole that exceeds the maximum height limitation of the affected zoning district or building. If the height limitation is exceeded, an exception pursuant to section 37-223 of this article is required. An exception shall not be required for replacement utility support structures, so long as the height of a replacement structure, including antennas, is no greater than ten (10) feet taller than the existing utility support structure.

(c)

Distributed antenna systems are allowed in all zones, provided the applicant complies with all federal laws and state laws and requirements and structural industry standards.

(d)

Distributed antenna systems are subject to approval via permits and administrative review.

(Ord. No. 4742, § 1, 8-19-19; Ord. No. 4790, § 4, 11-23-20)

(a)

Preferred macro cell tower locations. The following siting priorities, for wireless infrastructure providers, ordered from most-preferred (1) to least-preferred (7), are as follows and require an alternative sites analysis, as set forth in subsection (e) of this section:

(1)

City-owned property and facilities, except those in protected areas, and not including rights-of-way;

(2)

Commercial zones, except the central business district;

(3)

Mixed-use zones;

(4)

Rights-of-way in nonresidential zones;

(5)

City-owned property and facilities in protected areas, but not including rights-of-way;

(6)

Other parcels of land in protected areas, but not including rights-of-way;

(7)

Rights-of-way in protected areas.

(b)

Towers in protected areas. Towers in protected areas are permitted only upon the issuance of a conditional use permit, pursuant to the requirements set forth in subsection (h) of this section.

(c)

Height restrictions and stealth design for towers. Towers shall be subject to the height restrictions and stealth design requirements set forth below in Table 1:

(d)

Setback requirements.

(1)

A tower shall be set back from property lines as required by the zone in which the tower is located or a minimum of one (1) foot for every foot of tower height, whichever produces the greater setback, unless the tower is constructed with breakpoint design technology. If the tower has been constructed using breakpoint design technology, the minimum setback distance shall be equal to one hundred ten (110) percent of the distance from the top of the tower to the breakpoint level of the tower, or the applicable zone's minimum side setback requirements, whichever is greater. For example, on a one hundred-foot tall tower with a breakpoint design at eighty (80) feet, the minimum setback requirement would either be:

a.

Twenty-two (22) feet (one hundred ten (110) percent of twenty (20) feet, the distance from the top of the tower to the breakpoint); or

b.

The minimum side setback requirements for that zone, whichever is greater.

If an applicant proposes to use breakpoint design technology to reduce the required setback, the issuance of the building permit for the tower shall be conditioned, in part, upon approval of the tower design, including the breakpoint design, by a structural engineer licensed in Idaho.

(2)

All equipment shelters, cabinets, or other on the ground ancillary equipment shall meet the setback requirement of the zone in which it is located.

(e)

Alternative sites.

(1)

Analysis.

a.

For proposed towers, the applicant must address the city's preferred tower locations with a detailed explanation justifying why a site of higher priority was not selected. The city's tower location preferences must be addressed in a clear and complete written alternative sites analysis that shows at least three (3) higher ranked, alternative sites considered that are in the geographic range of the service coverage objectives of the applicant, together with a factually detailed and meaningful comparative analysis between each alternative site and the proposed site that explains the substantive reasons why the applicant rejected each alternative site.

b.

A complete alternative sites analysis provided under this subsection may include less than three (3) alternative sites so long as the applicant provides a factually detailed written rationale for why it could not identify at least three (3) potentially available, higher ranked, alternative sites.

c.

For purposes of disqualifying potential collocations or alternative sites for the failure to meet the applicant's service coverage or capacity objectives, the applicant shall provide:

1.

A description of its objective, whether it be to address a deficiency in coverage, capacity, or frequency;

2.

Detailed maps or other exhibits with clear and concise RF data to illustrate that the objective is not met using the alternative (whether it be collocation or a more preferred location); and

3.

A description of why the alternative (collocation or a more preferred location) does not meet the objective.

d.

An applicant must apply for and be granted a conditional use permit in order to locate a tower at an alternative site. The notice and procedural provisions of article IX of this chapter ("Conditional Uses") and the factors set forth in subsection (h) of this section shall apply to conditional use permits sought for the purpose of locating a tower at an alternative site.

(2)

Documentation. The following materials shall be submitted with an alternative sites analysis:

a.

A copy of the applicant's FCC license or registration.

b.

A color visual analysis that includes to-scale visual simulations that show unobstructed before-and-after construction daytime and clear-weather views from at least four (4) angles, together with a map that shows the location of each view, including all equipment and ground wires.

c.

A written analysis that explains how the proposed design complies with the applicable design standards under this article to the maximum extent feasible. A complete design justification must identify all applicable design standards under this article and provide a factually detailed reason why the proposed design either complies or cannot feasibly comply.

d.

A noise study for the proposed tower and all associated equipment.

e.

A scaled site plan clearly indicating the location, type, height, and width of the proposed tower; on-site improvements; land uses and zoning; adjacent land uses and zoning (including when adjacent to the county); separation distances from a tower to property lines; adjacent roadways; buildings on adjoining properties; photo simulations; a depiction of all proposed transmission equipment; proposed means of access; setbacks from property lines; elevation drawings or renderings of the proposed tower; identification and dimensions of property lines and lease lines; and any other structures, topography, parking, utility runs, or other information deemed by the community development department to be necessary to assess compliance with this article.

f.

Legal description of the entire lot and/or leased site (if applicable) on which the tower is proposed to be located.

g.

The setback distance between the proposed tower and the nearest residential unit and the nearest residentially zoned property.

h.

The separation distance from other towers described in the inventory of existing sites submitted pursuant to this article shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing tower(s), if known.

i.

A landscape plan showing locations and types of trees and shrubs.

j.

Location, type, height, and color of fencing and, if applicable, the method of camouflage and illumination.

k.

A description of compliance with all applicable federal, state, and local laws.

l.

Identification of cellular sites owned or operated by the applicant in the municipality.

m.

A written statement of purpose, which shall minimally include:

1.

A description of the objective to be achieved;

2.

A to-scale map that identifies the proposed site location and the targeted service area to be benefited by the proposed project; and

3.

Full-color signal propagation maps with objective units of signal strength measurement that show the applicant's current service coverage levels from all adjacent sites without the proposed site, predicted service coverage levels from all adjacent sites with the proposed site, and predicted service coverage levels from the proposed site without all adjacent sites.

These materials shall be reviewed, signed, and sealed by an Idaho-licensed professional engineer.

(f)

Separation requirements. No macro cell tower may be constructed within one-half (½) mile of an existing macro cell tower unless an exception is obtained pursuant to section 37-223 of this Code or through a conditional use permit waiving or modifying this separation standard pursuant to article IX of this chapter ("conditional uses") and the applicant can demonstrate that:

(1)

The existing macro cell tower is not available or feasible for collocation of an additional wireless communication facility;

(2)

The location of the existing macro cell tower does not satisfy the operational requirements of the applicant; or

(3)

Another departure from this standard is needed.

Factors to be considered in determining whether an applicant has made this demonstration include those listed in subsection (h) of this section.

(g)

Inventory of existing sites. Each applicant, at the time of its application for a macro cell, shall provide to the community development department an inventory of its existing towers, antennas, or sites approved for towers or antennas, that are either within the jurisdiction of the city or within one (1) mile of the border thereof, including specific information about the location, height, and design of each tower or antenna. The community development department may share such information with other applicants applying for administrative approvals or conditional use permits under this article or other organizations seeking to locate macro cells within the jurisdiction of the city; provided, however, that the community development department is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.

(h)

Conditional use permit for towers. In applying for a conditional use permit for a tower, the notice and procedural provisions of article IX of this chapter ("conditional uses") shall apply. Additionally, an applicant shall notify the Lewiston-Nez Perce County Regional Airport if a tower is proposed to be located within a three-mile radius of the center of the Lewiston-Nez Perce County Regional Airport. Further, the applicant shall address and the planning and zoning commission shall consider the following factors in determining whether to issue a conditional use permit for a tower, in lieu of the factors set forth in article IX of this chapter. The planning and zoning commission may waive or reduce the burden on the applicant of one (1) or more of these factors if the commission concludes that the purposes of this article are, nevertheless, served thereby.

(1)

Whether the proposed tower meets the other applicable provisions of this article.

(2)

Surrounding topography, trees, buildings and antennas that would impair RF signals.

(3)

Proximity of the tower to residential structures and residential zone boundaries and whether the tower impairs the view shed.

(4)

Proximity of the tower to structures in historic district(s) or in the Normal Hill heritage overlay zone so as to impair visual aesthetics.

(5)

Nature of uses on adjacent and nearby properties and compatibility with those uses.

(6)

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

(7)

Whether existing structures or towers are available in accordance with this section and located within the geographic area that meets the applicant's service coverage and structural requirements.

(8)

Whether existing towers or structures have sufficient structural strength to support applicant's proposed antenna and related equipment.

(9)

Whether the applicant demonstrates that there are other limiting factors not enumerated herein that render existing towers and structures unsuitable.

(10)

Whether the WCF will be within the RF emission limits allowed by the FCC. The applicant shall provide documentation from an expert regarding this requirement. The FCC shall determine whether the applicant's proposed antenna would cause electromagnetic interference with antennas on existing towers or structures, or whether antennas on existing towers or structures would cause interference with the applicant's proposed antenna.

(11)

Whether the tower will comply with FAA requirements, rules, regulations, and orders.

(Ord. No. 4742, § 1, 8-19-19; Ord. No. 4790, § 5, 11-23-20)

(a)

Applicability. No WCF shall be developed or modified contrary to any applicable development standard set forth in this article unless an exception has been granted pursuant to this section or through a conditional use permit waiving or modifying a development standard pursuant to article IX of this chapter ("conditional uses").

(b)

Procedure type. An exception to an applicable WCF development standard shall require approval by the planning and zoning commission in lieu of article XI of this chapter ("variances"); provided, however, the notice and procedural requirements in article XI of this chapter ("variances") shall apply to exceptions sought pursuant to this section.

(c)

Submittal requirements. An application for an exception to an applicable WCF development standard shall include the following:

(1)

Payment of the required fee, as adopted by resolution of the city council.

(2)

A description of the requested exception.

(3)

A written statement demonstrating how the exception would not contradict or conflict with the purposes of this article.

(4)

A site plan that includes:

a.

Description of the proposed WCF's design and dimensions, as it would appear with and without the exception.

b.

Elevations showing all components of the WCF, as it would appear with and without the exception.

c.

Color simulations of the WCF after construction demonstrating compatibility with the vicinity, as it would appear with and without the exception.

(5)

An explanation that demonstrates the following:

a.

The WCF development standard materially limits or inhibits the ability of the provider to compete in a fair and balanced legal and regulatory environment;

b.

The problem can only be resolved by an exception to one (1) or more of the standards in this article;

c.

The exception is narrowly tailored such that the WCF conforms to this article's standards to the greatest extent possible; and

d.

The impact on development standards such as height, setbacks and landscape requirements.

(Ord. No. 4742, § 1, 8-19-19)

(a)

Although the city intends for city staff to review applications to the extent feasible, the city may retain the services of an independent RF expert and other consultants of its choice to provide technical and other evaluations of permit applications for WCFs. The third party expert shall have recognized training or qualifications in their fields of radio frequency engineering or wireless communication facilities regulations.

(b)

The expert's review may include, but is not limited to:

(1)

The accuracy and completeness of the items submitted with the application;

(2)

The applicability of analysis and techniques and methodologies proposed by the applicant;

(3)

The validity of conclusions reached by the applicant;

(4)

Whether the proposed WCF complies with the applicable approval criteria set forth in this article; and

(5)

An evaluation of the functionality of the equipment after addition or replacement.

(c)

The applicant shall pay the cost for any independent consultant fees through a deposit, estimated by the city, within ten (10) days of the city's request. When the city requests such payment, the application shall be deemed incomplete for purposes of application processing timelines until the deposit is received. In the event that such costs and fees do not exceed the deposit amount, the city shall refund any unused portion within thirty (30) days after the final permit is released or, if no final permit is released, within thirty (30) days after the city receives a written request from the applicant. If the costs and fees exceed the deposit amount, then the applicant shall pay the difference to the city before the permit is issued.

(Ord. No. 4742, § 1, 8-19-19)

A certificate of completion shall only be granted upon satisfactory evidence that the WCF was installed in substantial compliance with the approved plans and photo simulations. If it is found that the WCF installation does not substantially comply with the approved plans and photo simulations, the applicant shall make any and all such changes required to bring the WCF installation into compliance promptly and in any event prior to putting the WCF in operation. If the WCF is not brought into substantial compliance within thirty (30) days of notice of noncompliance by the city, the applicant shall remove the noncompliant components.

(Ord. No. 4742, § 1, 8-19-19)

(a)

All WCFs shall comply with all standards and regulations of the FCC and FAA and any state or other federal government agency with the authority to regulate wireless communication facilities.

(b)

The site and WCFs, including all landscaping, fencing and related transmission equipment, shall be maintained at all times in a neat and clean manner and in accordance with all approved plans.

(c)

All graffiti on WCFs shall be removed at the sole expense of the permittee after notification by the city to the owner/operator of the WCF.

(d)

If any FCC or FAA, state, or other governmental license or any other governmental approval to provide communication services is revoked as to any site permitted or authorized by the city, the permittee shall inform the city of the revocation within thirty (30) days of receiving notice of such revocation and cease using the site. The owner of the WCF shall also be subject to the removal provisions of section 37-227 of this Code.

(Ord. No. 4742, § 1, 8-19-19)

(a)

Any WCF that is not operated for a continuous period of twelve (12) months shall be considered abandoned, and the owner of such WCF shall so notify the city in writing and remove the same within ninety (90) days of giving notice to the city of such abandonment. Failure to remove an abandoned WCF within said ninety (90) days shall be grounds to remove the WCF at the owner's expense, including all costs and attorneys' fees.

(b)

Additionally, the city may contact the owner of the WCF to make a determination as to whether such WCF is abandoned. If the owner of such WCF does not respond within ninety (90) days, the city may remove the WCF (including its foundation) at the owner's expense, including all costs and attorneys' fees associated with such removal. Such notice by the city shall be by certified mail, return receipt requested; or posted on or near the WCF for fifteen (15) days; or both. Irrespective of any agreement between them to the contrary, the owner of such abandoned WCF and the owner of a building or land upon which the WCF is located shall be jointly and severally responsible for the removal of abandoned WCF.

(c)

If there are two (2) or more users of a WCF, then this section shall not become effective until all users cease using the WCF.

(Ord. No. 4742, § 1, 8-19-19)

Each permit issued for a WCF located on city property shall be deemed to have as a condition of the permit a requirement that the applicant defend, indemnify, and hold harmless the city and its officers, agents, employees, volunteers, and contractors from any and all liability, damages, or charges (including attorneys' fees and expenses) arising out of claims, suits, demands, or causes of action as a result of the permit process, a granted permit, construction, location, performance, operation, maintenance, repair, installation, replacement, removal, or restoration of the WCF.

(Ord. No. 4742, § 1, 8-19-19)

(a)

Purpose. This section implements Section 6409(a) of the Spectrum Act (47 U.S.C. Section 1455(a)), as it may be amended from time to time and as interpreted by the FCC in its Report and Order No. 14-153 and Declaratory Ruling and Third Report and Order released September 27, 2018 (FCC 18-133), and the Declaratory Ruling and Notice of Proposed Rulemaking released June 10, 2020 (FCC 20-75), which requires a state or local government to approve any eligible facilities request for a modification of an existing tower or base station that does not result in a substantial change to the physical dimensions of such tower or base station. Eligible facilities requests shall be governed solely by the provisions in this section and federal law.

(b)

Application review.

(1)

Application. The community development department shall prepare and make publicly available an application form, which form shall be used by the applicant. No information may be required from an applicant for any documentation intended to illustrate the need for any such wireless facilities or to justify the business decision to modify such wireless facilities.

(2)

Review. The community development department shall, within sixty (60) days of the date on which an applicant satisfies both of the following criteria, review and act upon the application, subject to the tolling provisions set forth below:

a.

The applicant takes the first procedural step that the city requires as part of its Section 6409(a) regulatory review process, and, to the extent that the applicant has not done so as part of the first required procedural step;

b.

The applicant submits written documentation that addresses the eligible facilities request criteria and indicates that the proposed modification will not cause a substantial change to an existing structure.

The community development department shall make its final decision to approve or deny the application, and advise the applicant in writing of its final decision.

(3)

Tolling of the time frame for review. The sixty-day review period may be tolled only by mutual agreement between the community development department and the applicant, or in cases where the community development department determines that the application is incomplete.

a.

To toll the time frame for incompleteness, the community development department must provide written notice to the applicant within thirty (30) days of application submission, specifically delineating all missing documents or information required in the application.

b.

The time frame for review begins running again when the applicant makes a supplemental submission in response to the community development department's notice of incompleteness.

c.

Following a supplemental submission, the community development department shall have ten (10) days to notify the applicant if the supplemental submission did not provide the information identified in the original notice delineating missing information. The time frame is tolled in the case of second or subsequent notices pursuant to the procedures identified in this section. Second or subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.

(4)

Failure to act. In the event the community development department fails to approve or deny a complete application under this section within the time frame for review (accounting for any tolling), the request shall be deemed granted provided the applicant notifies the community development department in writing after the review period has expired.

(c)

Change in federal law. If federal law changes regarding an eligible facilities request, then this section shall be deemed amended to comply with federal law without further action by the city.

(Ord. No. 4742, § 1, 8-19-19; Ord. No. 4790, § 6, 11-23-20)

(a)

Purpose. This section implements a shot clock that is contained in the FCC's Declaratory Ruling and Third Report and Order released September 27, 2018, regarding the collocation of small wireless facilities on existing structures.

(b)

Application review.

(1)

Application. The community development department shall prepare and make publicly available an application form, which form shall be used by the applicant.

(2)

Review. Upon submission of an application for collocation of small wireless facilities on an existing structure pursuant to this section, the community development department shall, within sixty (60) days (subject to resetting of the shot clock and the tolling provisions set forth below), review such application, make its final decision to approve or deny the application, and advise the applicant in writing of its final decision.

(3)

Tolling of the time frame for review. The sixty-day review period begins to run when the application is submitted. The community development department shall notify the applicant in writing within ten (10) days as to whether the application is incomplete. Upon resubmission by the applicant, a new sixty-day shot clock shall commence, and the community development department shall have ten (10) days to notify the applicant again of an incomplete application. The shot clock may be tolled only by mutual agreement between the community development department and the applicant, or in cases where the community development department determines upon a resubmission that the application is incomplete.

a.

The time frame is tolled in the case of subsequent notices pursuant to the procedures identified in this section. Subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.

(4)

Failure to act. In the event the community development department fails to approve or deny a complete application under this section within the time frame for review (accounting for resetting the shot clock once or any tolling), the applicant may pursue judicial relief.

(c)

Change in federal law. If federal law changes regarding the collocation of small wireless facilities on an existing structure, then this section shall be deemed amended to comply with federal law without further action by the city.

(Ord. No. 4742, § 1, 8-19-19; Ord. No. 4790, § 7, 11-23-20)

(a)

Purpose. This section implements a shot clock that is contained in the FCC's Declaratory Ruling and Third Report and Order released September 27, 2018, regarding the deployment of small wireless facilities on a new structure.

(b)

Application review.

(1)

Application. The community development department shall prepare and make publicly available an application form, which form shall be used by the applicant.

(2)

Review. Upon submission of an application for the deployment of small wireless facilities on a new structure pursuant to this section, the community development department shall, within ninety (90) days (subject to resetting of the shot clock and the tolling provisions set forth below), review such application, make its final decision to approve or deny the application, and advise the applicant in writing of its final decision.

(3)

Tolling of the time frame for review. The ninety-day review period begins to run when the application is submitted. The community development department shall notify the applicant in writing within ten (10) days as to whether the application is incomplete. Upon resubmission by the applicant, a new ninety-day shot clock shall commence, and the community development department shall have ten (10) days to notify the applicant again of an incomplete application. The shot clock may be tolled only by mutual agreement between the community development department and the applicant, or in cases where the community development department determines upon a resubmission that the application is incomplete.

a.

The time frame is tolled in the case of subsequent notices pursuant to the procedures identified in this section. Subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.

(4)

Failure to act. In the event the community development department fails to approve or deny a complete application under this section within the time frame for review (accounting for resetting the shot clock once or any tolling), the applicant may pursue judicial relief.

(c)

Change in federal law. If federal law changes regarding the deployment of small wireless facilities on a new structure, then this section shall be deemed amended to comply with federal law without further action by the city.

(Ord. No. 4742, § 1, 8-19-19; Ord. No. 4790, § 8, 11-23-20)

(a)

Purpose. This section implements, in part, 47 U.S.C. Section 332(c)(7) of the Federal Communications Act of 1934, as it may be amended from time to time and as interpreted by the FCC in its Report and Order No. 14-153 and Declaratory Ruling and Third Report and Order released September 27, 2018. The following time frames apply to applications for collocation for other than small wireless facilities using an existing structure.

(b)

Application review.

(1)

Application. The community development department shall prepare and make publicly available an application form, which shall be used by the applicant.

(2)

Review. Upon submission of an application for a collocation for other than small wireless facilities using an existing structure pursuant to this section, the community development department shall, within ninety (90) days (subject to the tolling provisions set forth below), review such application, make its final decision to approve or deny the application, and advise the applicant in writing of its final decision.

(3)

Tolling of the time frame for review. The ninety-day review period begins to run when the application is submitted, and may be tolled only by mutual agreement between the community development department and the applicant, or in cases where the community development department determines that the application is incomplete.

a.

To toll the time frame for incompleteness, the community development department must provide written notice to the applicant within thirty (30) days of application submission, specifically delineating all missing documents or information required in the application.

b.

The time frame for review begins running again when the applicant makes a supplemental submission in response to the community development department's notice of incompleteness.

c.

Following a supplemental submission, the community development department shall notify the applicant within ten (10) days if the supplemental submission did not provide the information identified in the original notice delineating missing information. The time frame is tolled in the case of second or subsequent notices pursuant to the procedures identified in this section. Second or subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.

(4)

Failure to act. In the event the community development department fails to approve or deny a complete application under this section within the time frame for review (accounting for any tolling), the applicant may pursue judicial relief.

(c)

Change in federal law. If federal law changes regarding collocations for other than small wireless facilities using an existing structure, this section shall be deemed amended to comply with federal law without further action by the city.

(Ord. No. 4742, § 1, 8-19-19; Ord. No. 4790, § 9, 11-23-20)

(a)

Purpose. This section also implements, in part, 47 U.S.C. Section 332(c)(7) of the Federal Communications Act of 1934, as it may be amended from time to time and as interpreted by the FCC in its Report and Order No. 14-153 and Declaratory Ruling and Third Report and Order released September 27, 2018. The following time frames apply to applications to deploy a facility other than small wireless facilities using a new structure.

(b)

Application review.

(1)

Application. The community development department shall prepare and make publicly available an application form, which shall be used by the applicant.

(2)

Review. The community development department shall approve or deny an application to deploy a facility other than a small wireless facility using a new structure, which does not require a conditional use permit or exception approval by the planning and zoning commission, and notify the applicant of such decision within one hundred fifty (150) days, subject to the tolling provisions set forth below. If an application requires a conditional use permit or exception approval by the planning and zoning commission in addition to the required permit from the community development department, then both the planning and zoning commission and the community development department shall approve or deny their respective applications within one hundred fifty (150) days, subject to the tolling provisions set forth below.

(3)

Tolling of the time frame for review. The one hundred fifty-day review period begins to run when the application is submitted, and may be tolled only by mutual agreement between the community development department and the applicant, or in cases where the community development department determines that the application is incomplete.

a.

To toll the time frame for incompleteness, the community development department must provide written notice to the applicant within thirty (30) days of submission of the application, specifically delineating all missing documents or information required in the application.

b.

The time frame for review begins running again when the applicant makes a supplemental submission in response to the community development department's notice of incompleteness.

c.

Following a supplemental submission, the community development department shall notify the applicant within ten (10) days if the supplemental submission did not provide the information identified in the original notice delineating missing information. The time frame is tolled in the case of second or subsequent notices pursuant to the procedures identified in this section. Second or subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.

(4)

Failure to act. In the event that an application to deploy a facility other than a small wireless facility using a new structure is not approved or denied within the required time frame for review (accounting for any tolling), the applicant may pursue judicial relief.

(c)

Change in federal law. If federal law changes regarding the deployment of a facility other than a small wireless facility using a new structure, this section shall be deemed amended to comply with federal law without further action by the city.

(Ord. No. 4742, § 1, 8-19-19; Ord. No. 4790, § 10, 11-23-20)

In connection with the filing of an application, the applicant shall pay all applicable application fees, as set by resolution of the city council.

(Ord. No. 4742, § 1, 8-19-19)

This article shall be subject to all applicable laws, rules, and regulations.

(Ord. No. 4742, § 1, 8-19-19)

The various parts, sentences, paragraphs, sections, and clauses of this article are hereby declared to be severable. If any part, sentence, paragraph, section or clause is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this article shall not be affected thereby.

(Ord. No. 4742, § 1, 8-19-19)