The regulation of the placement, construction and modification of towers and wireless telecommunications facilities in order to protect the health, safety and welfare of the public, while at the same time not unreasonably interfering with the development of the competitive wireless telecommunications environment in the Village, specifically:

   (A)   To direct the location of towers and wireless telecommunications facilities in the Village;

   (B)    To protect residential areas and land uses from potential adverse impacts of towers and wireless telecommunications facilities;

   (C)   To minimize adverse visual impacts of towers and wireless telecommunications facilities through careful design, siting, landscaping and innovative camouflaging techniques;

   (D)   To promote and encourage shared use/co-location of towers and antenna support structures as a primary option rather than construction of additional single-use towers;

   (E)   To avoid potential damage to adjacent properties caused by towers and wireless telecommunications facilities by ensuring such structures are soundly and carefully designed, constructed, modified, maintained and removed;

   (F)   To the greatest extent feasible, ensure that towers and wireless telecommunications facilities are compatible with surrounding land uses;

   (G)   To the greatest extent feasible, ensure that proposed towers and wireless telecommunications facilities are designed in harmony with natural settings and in a manner consistent with current development patterns.

(Ord. 0-1711-99, passed 9-20-99)

   (A)   All towers, antenna support structures and wireless telecommunications facilities, any portion of which are located within the Village, are subject to this subchapter;

   (B)   Except as provided herein, any use being made of an existing tower or antenna support structure on the effective date of this subchapter (herein "nonconforming structures") shall be allowed to continue, even if in conflict with the terms of this subchapter. Any tower site that has received Village approval in the form of either a special exception or building permit, but has not yet been constructed or located, shall be considered a non-conforming structure so long as such approval is current and not expired.

(Ord. 0-1711-99, passed 9-20-99)

   For purposes of this subchapter, the following terms, phrases and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning.

   ANTENNA. Any system of wires, poles, rods, reflecting discs, or similar devices used for the transmission or reception of electromagnetic waves when such system is either external to or attached to the exterior of a structure. ANTENNAS shall include devices having active elements extending in any direction, and directional beam-type arrays having elements carried by and disposed from a generally horizontal boom that may be mounted upon and rotated through a vertical mast or tower interconnecting the boom and antenna support, all of which elements are deemed to be a part of the antenna.

   ANTENNA SUPPORT STRUCTURE. Any building or other structure other than a tower which can be used for location of wireless telecommunications facilities.

   APPLICANT. Any person that applies for a conditional use permit pursuant to § 154.137.

   APPLICATION. The process by which an applicant submits a request and indicates a desire to be granted a conditional use permit under the provisions of this subchapter. An APPLICATION includes all written documentation, verbal statements and representations, in whatever form or forum, made by an applicant to the Village concerning such a request.

   CODE. Codified Ordinances and all regulations of Marble Cliff, Ohio.

   CO-LOCATION. The use of a wireless telecommunications facility by more than one wireless telecommunications provider.

   COUNCIL. The Village Council.

   EMERGENCY. A reasonably unforeseen occurrence with a potential to endanger personal safety or health, or cause substantial damage to property, that calls for immediate action.

   EQUIPMENT SHELTER. A structure in which the electronic receiving and relay equipment for a wireless telecommunications facility is housed.

   FCC. The Federal Communications Commission or any legally appointed, designated or elected agent or successor.

   MONOPOLE. Asupport structure constructed of a single, self-supporting hollow metal tube securely anchored to a foundation.

   OPEN SPACE. Land devoted to conservation of recreational purposes and/or land designated by the Village to remain undeveloped (may be specified on a zoning map).

   PERSON. Any natural persons, firm, partnership, association, corporation, company or other legal entity, private or public, whether for profit or not-for-profit.

   TOWER. A self-supporting lattice, guyed or monopole structure constructed from grade which supports wireless telecommunications facilities. The term TOWER shall not include amateur radio operators' equipment, as licensed by the FCC.

   VILLAGE. The Village of Marble Cliff, Ohio, acting by and through its Council.

   WIRELESS TELECOMMUNICATIONS FACILITIES. Any cables, wires, lines, wave guides, antennas, towers and any other equipment or facilities associated with the transmission or reception of communications as authorized by the FCC which a person seeks to locate or has installed upon a tower or antenna support structure. However, the term WIRELESS TELECOMMUNICATIONS FACILITIES shall not include:

      (1)   Any satellite earth station antenna one meter or less in diameter, regardless of zoning category;

      (2)   Antennas used by amateur radio operators are excluded from this definition.

(Ord. 0-1711-99, passed 9-20-99)

   (A)   Permitted or conditional use. Wireless telecommunications facilities are either permitted uses or conditional uses in a variety of zoning districts contingent upon a number of requirements being met. These criteria are in place in an attempt to minimize adverse health, safety, public welfare or visual impacts through buffering, siting, design and construction, and reduction of the need for new towers.

   (B)   Requirements of all wireless telecommunications facilities. The following requirements apply to all wireless telecommunications facilities regardless of the zoning district in which they are to be located. These general standards are to be supplemented with the specific regulations for nonresidential districts as set forth in § 154.139 and residential districts as set forth in § 154.140.

      (1)   Each applicant for an antenna and/or tower shall provide to the Village an inventory of its existing towers, antennas, or sites planned and/or approved for towers or antennas that are either within the jurisdiction of the Village or within two miles of the border thereof, including specific information about the location, height. and design of each tower. The Village may share such information with other applicants seeking to locate antennas within the jurisdiction of the Village, provided, however, that the Village is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.

      (2)   Towers and antennas shall meet the following requirements:

         (a)   Color and finish. Towers shall either maintain a non-contrasting gray or similar color or have a galvanized steel finish unless otherwise required by the Village or any applicable standards of the FAA, FCC or ODOT.

         (b)   Compatible design. At a tower site, the design of the buildings and related structures shall use materials, colors, textures and screening so as to be aesthetically and architecturally compatible with the surrounding environment, as approved by the Village.

         (c)   Antenna color. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be a neutral color, as approved by the Village, that is identical to, or closely compatible with the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible.

         (d)   Fencing. Any fencing shall comply with the Village's Code and shall be subject to approval of the Village.

         (e)   Lighting. Towers and antennas shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views.

         (f)   State or federal requirement. All towers must meet or exceed current standards and regulations for the FAA, FCC and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this subchapter shall bring such towers and antennas into compliance with such revised standards within six months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense.

         (g)   Building codes/safety standards. To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for towers that are published by the Electronics Industries Association, as amended from time to time. If, upon inspection, the Village concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have 30 days to bring such tower into compliance with such standards. Failure to bring such tower into compliance with said 30 days shall constitute grounds for the removal of the tower or antenna at the owner's expense.

         (h)   Non essential services. Towers and antennas shall be regulated and permitted pursuant to this subchapter and shall not be regulated or permitted as essential services, public utilities or private utilities.

         (i)   License to operate. Owners and operators of towers or antennas shall submit copies of all franchises, certifications, licenses and permits required by law for the design, construction, location and operation of wireless communications in the Village. Owners and/or operators shall be required to maintain same and to provide evidence of renewal or extension thereof when granted.

         (j)   Signs. No signs shall be allowed on an antenna or tower. A sign shall be posted on the surrounding fencing or equipment shelters indicating the emergency contact phone number for the tower owner/operator. Any identification signage shall be in accordance with the Village's sign code.

         (k)   Historic register/district. Any application to locate a wireless telecommunications facility on a building or structure that is listed on a historic register or is in a historic district shall be subject to an appropriate architectural review in addition to any other required review process.

         (l)   Underground equipment shelters. Underground equipment shelters will be required where appropriate screening of shelter cannot be accomplished.

         (m)   Accommodation. All towers shall be constructed or reconstructed to accommodate multiple users.

         (n)   Maximum height. No tower, including antenna, shall exceed 200 feet, as measured from the grade at the base of the tower.

   (C)   Permitted ancillary use. Any wireless telecommunications facilities which are not attached to a tower shall be a permitted ancillary use (permitted use) to any commercial, industrial, office, community facilities or institutional use, regardless of the zoning restrictions applicable to the zoning district where the structure is located and without having to obtain any prior authorization from the Village; provided that the person making such ancillary use files a written certification with the Village establishing the following:

      (1)   That the total height of the antenna support structure and wireless telecommunications facilities do not exceed the structural height limitations in the applicable zoning district by more than 15 feet;

      (2)   That the antenna support structure and wireless telecommunications facilities comply with the Ohio Basic Building Code;

      (3)   That any wireless telecommunications facilities and their appurtenances, located on the roof of a building, are set back one foot from the edge of the roof, not including for the penthouse, for each one foot in height of the wireless telecommunications facilities. However, this setback requirement shall not apply to antennas less than two inches in thickness, which are mounted to the sides of antenna support structures, but which do not protrude more than six inches from the side of such an antenna support structure.

      (4)   That the wireless telecommunications facilities will utilize camouflaging techniques or will be side-mounted to an antenna support structure in order that the wireless telecommunications facilities harmonize with the character and environment of the area in which they are located.

(Ord. 0-1711-99, passed 9-20-99)

   Wireless telecommunication facilities proposed for the zoning districts west of the railroad tracks are subject to the following conditions:

   (A)   Tower - sole use on a lot. A wireless telecommunications facility is permitted as a sole use on a lot subject to the following:

      (1)   Minimum yard requirements:

         Tower: the minimum distance to any single-family or two family residential use or district lot line shall be 200 feet.

      (2)   Maximum size of equipment shelter:

         400 square feet for a single shelter, or, if there is more than one, 800 total square feet.

   (B)   Tower - combined with another use. A wireless telecommunications facility is permitted on a property with an existing use subject to the following conditions:

      (1)   The existing or future use on the property may be any permitted use in the district or any lawful nonconforming use, and need not be affiliated with the wireless telecommunications provider.

      (2)   The wireless communications facility shall be fully automated and unattended on a daily basis, and shall be visited only for periodic and necessary maintenance (except during construction or an emergency).

      (3)   Minimum lot area. The minimum lot area shall be the area needed to accommodate the tower (and guy wires, if used), the equipment shelter, security fencing, buffer planting and any appropriate setback.

      (4)   Minimum yard requirements:

         Tower: the minimum distance to any single-family or two-family residential use or district lot line shall be 200 feet.

      (5)   Access. The service to the equipment shelter shall, whenever feasible, be provided along the circulation driveways of the existing use.

      (6)   Maximum size of equipment shelter. 400 square feet for a single shelter, or if there is more than one, 800 square feet.

   (C)   Antenna - combined with an existing structure. Where possible, an antenna for a wireless telecommunications facility shall be attached to an existing structure or building subject to the following conditions:

      (1)   Maximum height. 15 feet or 15% of the building height above the existing building or structure, whichever is greater.

      (2)   If the applicant proposes to locate the telecommunications equipment in a separate equipment shelter (not located on or attached to the building), the equipment shelter shall comply with the following:

         (a)   A minimum setback of 50 feet;

         (b)   A buffer yard shall be planted that has been prepared in accordance with § 154.141(A)(3) and approved by the Village Building Official;

         (c)   Vehicular access to the shelter shall not interfere with the parking or vehicular circulation on the site for the principal use;

         (d)   The maximum size of the equipment shelter shall not exceed 400 square feet, or, if there is more than one, 800 square feet.

(Ord. 0-1711-99, passed 9-20-99)

   Conditional use. Wireless telecommunications facilities including towers are not permitted in residential districts or districts east of the railroad tracks with the exception of placement on any property with a nonresidential use (e.g., church, park, library, municipal/government, hospital, school, utility) located in those districts. However, antennas attached to existing buildings or structures may be allowed as a conditional use. In applying for a permit in any district, the applicant must present sufficient evidence as to why it is not technically feasible to locate in a more appropriate nonresidential zone west of the railroad tracks. Once those efforts have been exhausted, a person may make application for a conditional use permit for a wireless telecommunications facility in a residential district subject to the following conditions:

   (A)   Automated. The wireless telecommunications facility shall be fully automated and unattended on a daily basis, and shall be visited only for periodic and necessary maintenance. This shall apply to (B), (C), (D), and (E) below.

   (B)   Antenna - combined with a nonresidential use. An antenna may be attached to a nonresidential building or a structure that is a permitted use in the district; including but not limited to, a church, a municipal or governmental building or facility, and a building or structure owned by a utility. The following conditions shall be met:

      (1)   Maximum height. 15 feet above the existing building or structure;

      (2)   If the applicant proposes to locate the telecommunications equipment in a separate equipment shelter, the equipment shelter shall comply with the following:

         (a)   The equipment shelter shall comply with the minimum setback of 30 feet;

         (b)   The maximum size of the equipment shelter shall not exceed 400 square feet, or, if there is more than one, 800 square feet;

         (c)   A buffer yard shall be planted that has been prepared in accordance with § 154.141(A)(3) and approved by the Village Building Official;

         (d)   Vehicular access to the equipment shelter shall not interfere with the parking or vehicular circulation on the site for the principal use.

   (C)   Tower - located on a nonresidential-use property. A tower to support an antenna may be constructed on a property with a nonresidential use that is a permitted use within the district, including but not limited to a church, hospital, school, municipal or government building facility or structure and a utility use, subject to the following conditions:

      (1)   The tower shall be set back from any property line abutting a single-family or two-family residential lot by 200 feet;

      (2)   The maximum size of the equipment shelter shall not exceed 400 square feet, or, if there is more than one, 800 square feet;

      (3)   Vehicular access to the tower and equipment shelter shall, whenever feasible, be provided along the circulation driveways of the existing use;

      (4)   In order to locate a telecommunications facility on a property that is vacant the tract shall be at least 1.5 acres, or as otherwise determined by the Village Council.

   (D)   Antenna - located on a residential building. An antenna for a wireless telecommunications facility may be attached to a mid-rise or high-rise apartment building subject to the following conditions:

      (1)   Maximum height - 15 feet above the existing building;

      (2)   If the applicant proposes to locate the telecommunications equipment in a separate equipment shelter (not located in, or attached to the building), the equipment shelter shall comply with the following:

      (3)   The shelter shall comply with the setback of 30 feet;

      (4)   The maximum size of the equipment shelter shall not exceed 400 square feet, or, if there is more than one, 800 square feet;

      (5)   A buffer yard shall be planted in accordance with § 154.141(A)(3) as approved by the Village Building Official;

      (6)   Vehicular access to the equipment shelter shall, if at all possible, use the existing circulation system.

   (E)   Tower - located in open space. A wireless telecommunications facility is permitted on land that has been established as a permanent open space, or park subject to the following conditions:

      (1)   The open space shall be owned by the Village, county or state government, a homeowners association, charitable organization, or a private non-profit conservation organization;

      (2)   The maximum size of the equipment shelter shall not exceed 400 square feet, or, if there is more than one, 800 square feet;

      (3)   The tower shall be set back from any single-family or two family property line 200 feet.

(Ord. 0-1711-99, passed 9-20-99)

   (A)   Wireless telecommunications facility - tower. A wireless telecommunications facility which includes a tower may be permitted as a conditional use in residential districts east of the railroad tracks on property that is a nonresidential use. In order to be considered for review, the applicant must prove that a newly-constructed tower is necessary because co-location on an existing tower is not feasible in accordance with § 154.142.

      (1)   The applicant shall demonstrate that the telecommunications tower must be located where is it proposed in order to service the applicant's service area. There shall be an explanation of why a tower and this proposed site is technically necessary.

      (2)   Where the wireless telecommunications facility is located on a property with another principal use, the applicant shall present documentation that the owner of the property supports the application and that appropriate vehicular access is provided to the facility.

      (3)   The applicant shall present a site-landscaping plan showing the specific placement of the wireless telecommunications facilities on the site; showing the location of existing structures, trees and other significant site features; and indicating type and locations of plant materials used to screen the facilities, and the proposed color of the facilities.

      (4)   Applicant shall present a signed statement indicating:

         (a)   The applicant agrees to allow for the potential co-location of additional wireless telecommunications facilities by other providers on the applicant's structure or within the same site location; and

         (b)   That the applicant agrees to remove the facility within 180 days after the site's use is discontinued.

   (B)   A conditional use permit must be approved by the Council with a subsequent building permit issued for construction of new towers. Co-location of antennas on a single tower, towers located in industrial districts, or replacement towers to be constructed at the site of a current tower are permitted uses and will not be subject to the conditional use permitting process.

   (C)   Any decision to deny a request to place, construct or modify a wireless telecommunications facility and/or tower shall be in writing and supported by evidence contained in a written record of the proceedings of the Council.

(Ord. 0-1711-99, passed 9-20-99)

   (A)   Public property first.

      (1)   In order to encourage the location of wireless telecommunications facilities on publicly-owned property, the Village shall undertake an identification of publicly-owned properties that the Village determines are suitable for such use. The Village shall regularly update such identification and make the results of such identification available to the public.

      (2)   Persons locating wireless telecommunications facilities upon such identified publicly-owned properties shall be exempted from the requirements herein regarding the presentation of proof that co-location of facilities on towers or structures owned by other persons or in other locations is not available. However, persons locating wireless telecommunications facilities on public-owned properties shall continue to be subject to the requirements contained in division (B) below.

      (3)   In addition, persons locating wireless telecommunications facilities on publicly-owned properties identified by the Village to be suitable for such purposes shall be exempt from the requirements of §§ 154.140(C)(4) and 154.141(A)(2).

   (B)   No new tower shall be constructed in the Village unless such tower is capable of accommodating at least one additional wireless telecommunications facility owned by other persons.

   (C)   A conditional use permit shall be issued only if there is not technically suitable space reasonably available on an existing tower or structure within the geographic area to be served. With the permit application, the applicant shall list the location of every tower, building, or structure within the search area that could support the proposed antenna. The applicant must demonstrate that a technically suitable location is not reasonably available on an existing tower, building or structure. If another communication tower is technically suitable, applicant must show that it has offered to allow the owner to co-locate an antenna on another tower within the Village owned by applicant on reciprocal terms, and the offer was not accepted, or the other tower is presumed to be reasonably available.

(Ord. 0-1711-99, passed 9-20-99)

   (A)   All providers utilizing towers shall present a report to the Building Official notifying him of any tower facility located in the Village whose use will be discontinued and the date this use will cease. If at any time the use of the facility is discontinued for 180 days, the Building Official may declare the facility abandoned. (This excludes any dormancy period between construction and the initial use of the facility). The facility's owner/operator will receive written notice from the Building Official and be instructed to either reactivate the facility's use within 180 days, or dismantle and remove the facility. If reactivation or dismantling does not occur, the Village will remove or will contract to have removed the facility and assess the owner/operator the costs.

   (B)   The Village must provide the tower owner three months notice and an opportunity to be heard before the Council before initiating such action. After such notice has been provided, the Village shall have the authority to initiate proceedings to either acquire the tower and any appurtenances attached thereto at the then fair market value, or in the alternative, order the demolition of the tower and all appurtenances.

   (C)   The Village shall provide the tower owner with the right to a public hearing before Council, which public hearing shall follow the three month notice. All interested parties shall be allowed an opportunity to be heard at the public hearing.

   (D)   After a public hearing is held pursuant to § 154.143(C), the Council may order the acquisition or demolition of the tower. The Village may require permittee and/or landowner to pay for all expenses necessary to acquire or demolish the tower.

(Ord. 0-1711-99, passed 9-20-99)

   Any request to deviate from any requirements of this subchapter shall require variance approval in conformance with the procedures set forth in the Zoning Code.

(Ord. 0-1711-99, passed 9-20-99)

   (A)   Non-waiver. Nothing in this subchapter shall preclude the Village from exercising any right or remedy it may have in law or equity to enforce the terms and conditions of this subchapter.

   (B)   Severability. If any provision of this subchapter or the application of any provision of this subchapter to any person is, to any extent, held invalid or unenforceable by a tribunal of competent jurisdiction, the remainder of this subchapter and the application of such provision to other persons or circumstances shall not be affected by such holding. In case of such an event, this subchapter and all of its remaining provisions shall, in all other respects, continue to be effective. In the event the law invalidating such a subchapter provision is subsequently repealed, rescinded, amended or is otherwise changed so that the provision which had previously been held invalid or unenforceable, no longer conflicts with the laws, rules or regulations then in effect, the previously invalid or unenforceable provision shall return to full force and effect.

   (C)   Performance bond.

      (1)   All tower owners shall purchase and maintain for the benefit of the Village a performance bond to assure that the terms and conditions of this subchapter are complied with, including repair and removal. The performance bond shall be in a form approved by the Village Attorney and shall be in an amount no less than 25% of the construction value of the towers as estimated by the Village at the time of issuance of a building permit.

      (2)   The Village may draw upon the performance bond for recovery of any costs or damages it incurs arising from a tower owner's violation of this subchapter, or the abandonment or discontinuance of use of a tower.

      (3)   The requirement to maintain a performance bond under this subsection shall cease only upon a written determination by the Village that the maintenance of the bond is no longer necessary.

(Ord. 0-1711-99, passed 9-20-99)