Marlborough City Zoning Code
ARTICLE II
Telecommunications Towers, Support Structures and Antennas - Permits
Section 405.140 Purposes.
[Ord. No. 05-424 §1, 11-14-2005]
A.
The general purpose of this Article is to regulate the placement, construction and modification of telecommunications towers, support structures and antennas 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 marketplace in Marlborough. Specifically, this Article is intended to:
1.
Provide for the appropriate location and development of telecommunications facilities and systems to serve the citizens and businesses of the Village of Marlborough;
2.
Minimize adverse visual impacts of communications antennas and support structure through the careful design, siting, landscape screening and innovative camouflaging techniques;
3.
Maximize the use of existing support structures that conform to the requirements of this Article so as to minimize the need to construct new or additional facilities;
4.
Maximize the co-location of facilities on any new support structures built in conformance to this Article.
5.
Ensure that any new telecommunications tower or structure is located in an area compatible with the neighborhood or surrounding community to the extent possible;
6.
Ensuring that regulation of telecommunications towers and structures does not have the effect of prohibiting the provision of personal wireless services and does not unreasonably discriminate among functionally equivalent providers of such service.
Section 405.150 The Legislative Findings.
[Ord. No. 05-424 §1, 11-14-2005]
A.
On February 8, 1996, Congress enacted the Federal Telecommunications Act of 1996 P.L. No. 104-104. The purpose of the Act included deregulation of the telecommunications industry and providing a more competitive environment for wired and wireless telecommunication services in the United States.
B.
The Telecommunications Act of 1996 preserves the authority of the Village to regulate the placement, construction and modification of towers and antenna support structures and to protect the health, safety and welfare of the public.
C.
The Village has been granted the authority to enact legislation to regulate the construction, placement and operation of telecommunications towers and antennas pursuant to its zoning powers established in Chapter 89, RSMo., and additionally pursuant to its general and specific Police powers established by Statute authorizing the regulations herein to protect the public health, safety and welfare.
D.
The Federal Communications Commission (FCC) has exclusive jurisdiction over (1) the regulation of the environmental effects of radio frequency emissions from telecommunication facilities, and (2) the regulation of radio signal interference among users of the radio frequency spectrum.
E.
Consistent with the Telecommunications Act of 1996, the regulations of this Article will not have the effect of prohibiting the provision of personal wireless services and do not unreasonably discriminate among functionally equivalent providers of such service. The regulations also impose reasonable restrictions to protect the public safety and welfare and ensure opportunities for placement of antennas with prompt approval by the Village. This Article does not attempt to regulate in areas within the exclusive jurisdiction of the FCC.
F.
The uncontrolled proliferation of towers in the Village of Marlborough is threatened without adoption of new regulations and would diminish property values, the aesthetic quality of the Village and would otherwise threaten the health, safety and welfare of the public.
Section 405.160 Definitions.
[Ord. No. 05-424 §1, 11-14-2005]
As used in this Article, the following terms shall have the meanings and usages indicated:
Above ground level. Ground level shall be determined by the average elevation of the natural ground level within a radius of fifty (50) feet from the center location of measurement.
Any device that transmits and/or receives radio waves for voice, data or video communications purposes including, but not limited to, television, AM/FM radio, microwave, cellular telephone and similar forms of communications. The term shall exclude satellite earth station antennas less than two (2) meters in diameter (mounted within twelve (12) feet of the ground or building-mounted) and any receive-only home television antennas.
The Building Commissioner of the Village or his/her designee.
A structure for the protection and security of communications equipment associated with one (1) or more antennas where direct access to equipment is provided from the exterior and that has horizontal dimensions that do not exceed four (4) feet by six (6) feet and vertical height that does not exceed six (6) feet.
All zoning districts of the Village that are not residential zoning districts; that is, the "C-1" and "C-2" Districts.
An area as designated by the map of the same title indicating general locations in which more than one (1) wireless service provider may potentially seek to locate an antenna facility and in which the construction of co-locatable towers will be required. The map may be periodically revised in response to new information received regarding tower sites sought by wireless providers. A multi-use interest area shall be designated as appropriate for towers within one (1) mile of each other, unless the applicant demonstrates to the contrary. The Multi-Use Interest Area Map shall include the area within the Village limits and within one and one-half (1½) miles of its corporate boundaries.
Any freestanding, manmade structure designed for the support of antennas, the presence of which is camouflaged or concealed as an appropriately placed architectural or natural feature. Depending on the location and type of disguise used, such concealment may require placement underground of the utilities leading to the structure and/or concealing the antennas in or on the support structure. Such structures may include, but are not limited to, clock towers, campaniles, observation towers, light standards, flagpoles and artificial trees.
The Federal Aviation Administration.
The Federal Communications Commission.
The vertical distance measured from the average grade of the base of the structure at ground level to its highest point and including the main structure and all attachments thereto.
Any use authorized herein that exists in addition to the principal use of the property.
Any addition, deletion or change, including the addition or replacement of antennas, or any change to a structure requiring a building permit or other governmental approval.
A building for the protection and security of communications equipment associated with one (1) or more antennas and where access to equipment is gained from the interior of the building. Human occupancy for office or other uses or the storage of other materials and equipment not in direct support of the connected antennas is prohibited.
A tower or disguised support structure.
A structure designed for the support of one (1) or more antennas and including guyed towers, self-supporting (lattice) towers or monopoles but not disguised support structures or buildings. The term shall also not include any support structure including attachments of sixty-five (65) feet or less in height owned and operated solely for use by an amateur radio operator licensed by the Federal Communications Commission.
A tower that is located in a commercial district and conforms to all requirements of this Article and the underlying zoning district in which it is located.
Section 405.170 General Requirements.
[Ord. No. 05-424 §1, 11-14-2005]
A.
The requirements set forth in this Article shall be applicable to all towers, antennas and other support structures installed, built or modified after the effective date of this Article to the full extent permitted by law.
1.
Principal or incidental use. Antennas and support structures may be either a principal use in all zoning districts or an incidental use to institutional or non-residential uses, subject to any applicable district requirement relating to yard or setback.
2.
Building codes, safety standards and zoning compliance. To ensure the structural integrity of antenna support structures, the owner shall see that it is constructed and maintained in compliance with all standards contained in applicable State and local building codes and the applicable standards published by the Electronics Industries Association, as amended from time to time. In addition to any other approvals required by this Article, no antenna, tower or support structure shall be erected prior to receipt of a certificate of zoning compliance and the issuance of a building permit.
3.
Regulatory compliance. All antennas and support structures shall meet or exceed current standards and regulations of the FAA, FCC and any other State or Federal agency with the authority to regulate communications antennas and support structures. Should such standards or regulations be amended, then the owner shall bring such devices and structure into compliance with the revised standards or regulations within the time period mandated by the controlling agency. No approval for any placement, construction or modification of any antenna or structure permitted by this Article shall be granted for any applicant having an uncured violation of this Article or any other governmental regulatory requirement related to such antenna or structures within the Village.
4.
Security. All antennas and support structures shall be protected from unauthorized access by appropriate security measures. A description of proposed security measures shall be provided as part of any application to install, build or modify antennas or support structures. Additional measures may be required as a condition of the issuance of a building permit or administrative permit as deemed necessary by the Building Commissioner or by the Village Board, in the case of a conditional use permit.
5.
Lighting. Antennas and support structures shall not be lighted unless required by the FAA or other State or Federal agency with authority to regulate, in which case a description of the required lighting scheme will be made a part of the application to install, build or modify the antennas or support structure. Equipment cabinets and shelters may have lighting only as approved by the Building Commissioner on the approved site development plan.
6.
Advertising. Except for a disguised antenna support structure in the form of an otherwise lawfully permitted pylon sign, the placement of advertising on structures regulated by this Article is prohibited.
7.
Design.
a.
Subject to the requirements of the FAA or any applicable State or Federal agency, towers shall be painted a neutral color consistent with the natural or built environment of the site.
b.
Equipment shelters or cabinets shall have an exterior finish compatible with the natural or built environment of the site and shall also comply with any design guidelines as may be applicable to the particular zoning district in which the facility is located.
c.
Towers attached to a disguised support structure or tower shall be contained within or mounted flush on the surface of the disguised support structure or tower to which they are mounted.
d.
Antennas attached to a building or disguised antenna support structure shall be of a color identical to or closely compatible with the surface to which they are mounted.
e.
All towers shall be surrounded by a minimum six (6) foot high decorative wall constructed of brick, stone or comparable masonry materials and a landscape strip of not less than ten (10) feet in width and planted with materials which will provide a visual barrier to a minimum height of six (6) feet. The landscape strip shall be exterior to any security wall. In lieu of the required wall and landscape strip, an alternative means of screening may be approved by the Building Commissioner in the case of use permitted by administrative permit or by the Village Board in the case of a conditional use permit upon demonstration by the applicant that an equivalent degree of visual screening will be achieved.
f.
All towers, disguised support structures and related structures, fences and walls shall be separated from the property line of any adjacent property zoned for a residential use at least a distance equal to the height of the tower and shall be separated from all other adjacent property lines at least a distance equal to one-half (½) of the height of the tower or structure.
g.
Vehicle or outdoor storage on any tower site is prohibited, unless otherwise expressly permitted by the zoning.
h.
On-site parking for periodic maintenance and service shall be provided at all antenna or tower locations consistent with the underlying zoning district.
8.
Shared use.
a.
Existing towers. Prior to the issuance of any permit to alter or modify any tower existing on the effective date of this Article, the owner shall provide to the Village a written and notarized agreement committing to make said tower available for use by others subject to reasonable technical limitations and reasonable financial terms. The willful and knowing failure of a tower owner to agree to shared use or to negotiate in good faith with potential users shall be unlawful and shall, among other remedies of the Village, be cause for the withholding of future permits to the same owner to install, build or modify antennas or towers within the Village.
b.
Tower inventories. Prior to the issuance of any permit to install, build or modify any tower, the tower owner shall furnish the Building Commissioner an inventory of all of that owner's towers in or within one and one-half (1½) miles of the Village limits of Marlborough. The inventory shall include the towers reference name or number, the street location, latitude and longitude, structure type, height, type and mounting height of existing antennas and an assessment of available ground space for the placement of additional equipment shelters. Upon being modified, any such tower shall be placed on the Multi-Use Interest Area Map for required collocation.
c.
Shared use required — new towers. Any new tower approved at a height of sixty (60) feet AGL (above ground level) or higher shall be designed and constructed to accommodate at least one (1) additional user unless a larger number is indicated by the response to the notification provisions herein. A written agreement committing to shared use as required by Subsection (8)(a) shall be submitted by the tower applicant. The willful and knowing failure of the owner of a tower built for shared use to negotiate in good faith with potential users shall be unlawful and shall be a violation of this Article and, among other remedies of the Village, shall be cause for the withholding of future permits to the same owner to install, build or modify antennas or towers within the Village.
d.
Communications tower multi-use area map. Any new tower approved within a communication tower multi-use interest area as designated by the map of the same title shall be designed and constructed to accommodate the number of users indicated by the plan to the extent feasible. The willful and knowing failure of the owner of a tower built for shared use to negotiate in good faith with potential users shall be a violation of this Article and, among other remedies of the Village, shall be cause for the withholding of future permits to the same owner to install, build or modify antennas or towers within the Village.
e.
Notice of tower applications. Prior to any application for the construction of a new tower or disguised support structure, a copy of the application or a summary containing the height, design, location and type and frequency of antennas shall be delivered by certified mail to all known potential tower users as identified by a schedule maintained by the Village, if applicable. Proof of such delivery shall be submitted with the application to the Village. The Building Commissioner may establish a form required to be used for such notifications. Upon request, the Building Commissioner shall place on a list the name and address of any user of towers or prospective user to receive notification of applications. The Building Commissioner shall, before deciding on the application or forwarding it to the Village Board for consideration, allow all persons receiving notice at least ten (10) business days to respond to the Village and the applicant that the party receiving notice be permitted to share the proposed tower or locate within one (1) mile of such area. Where two (2) or more parties seek to locate within one (1) mile of each other or such other distance as is demonstrated to the Building Commissioner to be reasonable pursuant to the objectives of this Article, the Building Commissioner shall designate such area as a multi-use interest area on the map. The failure of the receiving party to use this process or respond to any such notice shall be considered cause for denying requests by such party for new towers or structures.
f.
Appeal of shared use violations. Any party seeking shared use of a tower subject to this provision shall, after responding to notice of an application, negotiate with the applicant for such use. The applicant may on a legitimate and reasonable business basis choose between multiple requests for shared use on the same tower or structure and may reject any request where legitimate technical obstacles cannot be reasonably overcome or where the party requesting shared use will not agree to reasonable financial terms. Any party believing that the applicant has breached its duty to negotiate in good faith for shared use shall immediately notify the applicant and the Building Commissioner in writing. The Building Commissioner may reject the application upon a finding that shared use has been improperly denied. A notice of breach of duty shall explain the precise basis for the claim and shall be accompanied by payment of an administrative review fee of five hundred dollars ($500.00) to the Village to offset the cost of review. After the applicant's receipt of the notice, the applicant shall have ten (10) calendar days to provide a written submission to the Building Commissioner responding to the alleged violation of the shared use requirement. If deemed necessary by the Building Commissioner, he/she may engage, at the cost of the party alleging the violation, a neutral, qualified technical consultant to provide an opinion on feasibility or costs of the shared use request. If the Building Commissioner receives a notice alleging a violation of the shared use requirement, the time for a decision on an administrative permit is automatically extended for up to thirty (30) days until the Building Commissioner has determined that the applicant has complied. An application for conditional use permit shall not be deemed complete for acceptance until a decision on compliance is reached.
Section 405.180 Permitted Use.
[Ord. No. 05-424 §1, 11-14-2005]
A.
The placement of antenna and towers are permitted only as follows:
1.
The attachment or replacement of antennas, cabinets or shelters on or in connection with any tower existing in any zoning district on the effective date of this Article or subsequently approved in accordance with these regulations and/or requiring the enlargement of the existing tower compound area, provided that all other requirements of this Article and the underlying zoning district are met.
2.
The mounting of antennas on any existing building or structure in the commercial districts, such as a water tower, provided that the presence of the antennas is concealed by architectural elements or fully camouflaged by painting a color identical to the surface to which they are attached.
3.
The mounting of antennas on or within any existing high-voltage electric transmission tower in the commercial districts, but not exceeding the height of such tower by more than ten (10) feet, provided that the tower and/or support structure shall be separated from the property line of any adjacent property zoned for a residential use at least a distance equal to the height of the tower.
4.
The installation of antennas or the construction of a tower or support structure on buildings or land owned by the Village following the approval of a lease agreement by the Village Board.
Section 405.190 Authorization By Administrative Permit.
[Ord. No. 05-424 §1, 11-14-2005]
A.
The placement of antenna and towers are permitted in the commercial districts by administrative permit approved by the Zoning Administration only as follows:
1.
The attachment of replacement antennas or replacement cabinets to any non-conforming tower existing on the effective date of this Article or subsequently approved in accordance with these regulations and/or requiring the enlargement of the existing tower compound area, provided that all other requirements of this Article and the underlying zoning district are met.
2.
The attachment of additional antennas or additional cabinets to a conforming tower, whether existing on the effective date of this Article or subsequently approved in accordance with these regulations, provided that all other requirements of this Article and the underlying zoning district are met.
3.
The one-time replacement of any conforming tower existing on the effective date of this Article or subsequently approved in accordance with these regulations so long as the purpose of the replacement is to accommodate shared use of the site or to eliminate a safety hazard. The new tower shall be of the same type as the original except that a guyed or self-supporting (lattice) tower may be replaced by a monopole. If the guyed or lattice tower to be replaced is one hundred eighty (180) feet or less in height, it shall only be replaced with a monopole. The height of the new tower may exceed that of the original by not more than twenty (20) feet. Subsequent replacements shall require the approval of a conditional use permit.
4.
The construction of a disguised support structure provided that all related equipment shall be placed underground or concealed within the structure when the structure is located in any commercial district other than a district authorizing higher intensity commercial uses. Equipment may be placed in a cabinet if the disguised support structure is incidental to an industrial, commercial, institutional or other non-residential use.
5.
The placement of dual polar panel antennas on wooden or steel functioning utility poles not to exceed forty (40) feet in height (or functional replacement poles of no greater height) existing in any commercial district on the date of adoption of this Article. All related equipment for antennas permitted by this Subsection shall be wholly contained in a cabinet.
6.
Towers erected and maintained for a period not to exceed forty-five (45) days for the purpose of replacing an existing tower, testing an existing or proposed network or special events requiring mobile towers.
B.
Application Procedures. Applications for administrative permits shall be made on the appropriate forms to the Building Commissioner and accompanied by a deposit of two thousand dollars ($2,000.00) or such other deposit amount as may be established by the Village Board. The deposit shall be used to cover administrative costs and any telecommunications consulting fee that the Village may incur in review of the application. Any amount not used by the Village shall be refunded to the applicant.
1.
Applicant shall submit along with its completed application form:
a.
A detailed site plan, based on a closed boundary survey of the host parcel, shall be submitted indicating all existing and proposed improvements including buildings, drives, walkway, parking areas and other structures, public right-of-way, the zoning categories of the subject and adjoining properties, the location of and distance to off-site residential structures, required setbacks, required buffer and landscape areas, hydrologic features and the coordinates and height AGL of the existing or proposed tower;
b.
A current multi-use interest area map and tower inventory as described in the definition of "communication tower multi-use interest area" in Section 405.160 and Section 405.170(H)(4), respectively; and
c.
Any other information requested by the Village.
2.
Upon receipt of an application, the Village shall review the application to determine compliance with the above standards and, if deemed complete, transmit the application for review and comment by the appropriate Village Official(s) and any public agencies as may be affected by the proposed facility.
3.
The Village shall issue a decision on the permit within forty-five (45) days of the date of its receipt of a complete application or the application shall be deemed approved unless the time period for review and action was extended pursuant to this Article. The Village, through its designated official, may deny the application or approve the application as submitted or with such modifications as are, in that official's judgment, reasonably necessary to protect the safety or general welfare of the citizens consistent with the purposes of this Article. The Village may consider the purposes of this Article and the factors established herein for granting a conditional use permit as well as any other considerations consistent with the Article. A decision to deny an application shall be made in writing and state the specific reasons for the denial.
C.
Appeals. Appeals from the decision of the Village shall be made in the same manner as otherwise provided for the appeal of administrative decisions.
Section 405.200 Conditional Use Permit Required.
[Ord. No. 05-424 §1, 11-14-2005]
A.
All proposals to install, build or modify an antenna or support structure not permitted by Sections 405.180 and 405.190 above shall require the approval of a conditional use permit following a duly advertised public hearing by the Village Board, subject to the forthcoming limitations.
1.
Applications. Applications for conditional use permits shall be filed and processed subject to the requirements of and in the manner and time frame as established for conditional use permits. A decision by the Village Board shall be accompanied by substantial evidence supporting the decision, which shall be made a part of the written record of the meeting at which a final decision on the application is rendered. Evidence shall be under oath and may be submitted with the application or thereafter or presented during the public hearing by the applicant or others.
2.
Additional minimum requirements. No conditional use permit shall be issued unless the applicant has clearly demonstrated by substantial evidence that placement of an antenna or support structure pursuant to Section 405.180 (Permitted Use) or Section 405.190 (Administrative Permit) of this Article is not technologically or economically feasible. The Village Board may consider current or emerging industry standards and practices, among other information, in determining feasibility.
3.
Findings required. In addition to the determinations or limitations for the consideration of conditional use permits generally, the Village Board shall also base its decision upon, and shall make findings as to, the existence of the following conditions:
a.
That the proposed tower is not and cannot be located within a communications tower multi-use interest area as designated by such map or, if so located, meets the co-location requirements of this Article.
b.
No existing towers, structures or buildings within the necessary geographic area for the applicant's tower meet the applicant's necessary engineering requirements considering:
c.
That the design of the tower or structure, including the antennas, shelter and ground layout, maximally reduces visual degradation and otherwise complies with provisions and intent of this Article. New towers shall be of a monopole design, unless it is shown that an alternative design would equally or better satisfy this provision.
d.
That the proposal minimizes the number and/or size of towers or structures that will be required in the area.
e.
That the applicant has not previously failed to take advantage of reasonably available shared use opportunities or procedures provided by this Article or otherwise.
f.
That no land owned by any agency of the Federal or State Government, or by any political subdivision of the State, is available for locating the structure or tower.
If any one (1) but not more than one (1) of the first six (6) determinations is not satisfied, approval may be granted only on a finding of unique circumstances otherwise necessitating approval to satisfy the purposes of this Article. |
4.
Additional height limitations. No tower shall be approved at a height exceeding one hundred fifty (150) feet AGL unless the applicant clearly demonstrates that such height is required for the proper function of the applicant's system or that of a public safety communications system of a governmental entity sharing the tower. Such showing must also be supported by the opinion of a telecommunications consultant hired by the Village at the expense of the applicant. The opinion of the consultant shall include a statement that no available alternatives exist to exceeding the height limit or the reason why such alternatives are not viable.
Section 405.210 Obsolete Non-Complying Tower Structures.
[Ord. No. 05-424 §1, 11-14-2005]
Any upper portion of a tower which is not occupied by active antennas for a period of twelve (12) months, and any entire tower which is not so occupied for a period of six (6) months, shall be removed at the owner's expense. Removal of upper portions of a tower manufactured as a single unit shall not be required. Failure to comply with this provision shall constitute a nuisance that may be remedied by the Village at the tower or property owner's expense. Any applicant for a new tower or disguised structure not built as disguised part of another existing or permitted structure shall place a bond or other security with the Village prior to any final approval for the purpose of removing any tower or disguised structure as required herein and to compensate the Village for performing proper maintenance of such towers or disguised structures to ensure such structures do not become unsafe or otherwise fail to be maintained in compliance with this Article. The bond or security shall be in the form approved by the Building Commissioner and in the amount of fifteen thousand dollars ($15,000.00) or such other amount as is determined by the Building Commissioner to satisfy the requirements hereof with regard to the specific tower or structure to which it would apply.
Section 405.220 Commercial Operation of Unlawful Tower or Antennas.
[Ord. No. 05-424 §1, 11-14-2005]
Notwithstanding any right that may exist for a governmental entity to operate or construct a tower or structure, it shall be unlawful for any person to erect or operate for any private commercial purpose, any antenna, tower or disguised support structure in violation of any provision of this Article, regardless of whether such antenna or structure is located on land owned by a governmental entity.
Section 405.230 Penalty.
[Ord. No. 05-424 §1, 11-14-2005]
Any person violating this provision shall be subject to a fine of not more than five hundred dollars ($500.00) or ninety (90) days in jail, or both. Each day the violation continues shall constitute a separate offense.
Section 405.240 Severability.
[Ord. No. 05-424 §1, 11-14-2005]
If any Section, Subsection, sentence, clause, phrase or portion of this Article is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof.
Section 405.250 Repeal of Laws in Conflict.
[Ord. No. 05-424 §1, 11-14-2005]
This Article supersedes all ordinances or parts of ordinances adopted prior hereto, which are in conflict herewith, to the extent of such conflict.
Section 405.260 Effective Date.
[Ord. No. 05-424 §1, 11-14-2005]
This Article shall become effective November 14, 2005.