Mcallen City Zoning Code
ARTICLE I
IN GENERAL
§ 138-1 Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
means a subordinate building, located on the same lot as the main building, the use of which is clearly incidental to and customarily found in connection with the main building or principal use of the property.
means a use which is clearly incidental to and customarily found in connection with the principal use of the premises and which is located on the same lot as the principal use.
means a subordinate use or structure customarily incident to and located on the lot occupied by the main use or structure and conforming with setback and other regulations concerning location.
means a written administrative directive discussed at a public meeting and officially adopted by a majority vote of the board of commissioners.
has the meaning assigned by the Texas Alcoholic Beverage Code.
means a minor public right-of-way which is used primarily for vehicular and utility service access to the backs or sides of properties otherwise abutting on a public street.
means a room or suite of rooms located in a building with other such rooms or suites arranged, designed, or to be occupied as a residence by a family. (See Dwelling unit.)
See Dwelling, multiple.
means recreational uses which are an integral part of a common ownership or associated or high density residential development (example: homeowners' association with a private club or facility).
means an architect, builder, developer or other person empowered to act on behalf of such persons.
means an establishment where alcoholic beverages are sold for on-premises consumption, other than a restaurant as defined in this section.
As defined in section 138-1.A - Eligible facilities request (Section 6409) Definitions, below, except for new base stations that are not eligible for Section 6409, need not be existing at the time of the application, nor does subsection 138-1.A(a)1.c. apply to a new base station.
means a building other than a hotel where lodging and meals are provided for compensation.
means a structure exceeding 120 feet in height, with or without guide wires, used to transmit and/or receive commercial radio or HDTV television signal. This does not include any telecommunication facilities or personal wireless service facility used for wireless communications.
means any structure designed to be built for the support, enclosure, shelter or protection of persons, animals, chattel or property of any kind. The word "building" includes the word "structure."
is an establishment that allows patrons to bring alcoholic beverages onto the premises for possession and consumption, excluding a residence, an establishment operated by a governmental entity, a private club permitted pursuant to V.T.C.A. Alcoholic Beverage Code, Ch. 32, or a fraternal organization or veteran's organization as defined by the Texas Alcoholic Beverage Code.
means a permit issued pursuant to this chapter to operate a BYOB establishment.
A portable self-contained mobile facility moved to a location and set up to provide wireless services on a temporary or emergency basis.
As defined in section 138-1.A - Eligible facilities request (Section 6409) Definitions, below, except for new towers and base station that are not eligible for Section 6409, need not be existing at the time of the application.
A design elements of any tower, base station or transmission equipment that allows it to be integrated as an architectural feature of a tower or base station or so that it is not readily apparent to a casual observer. It may be screened, disguised, concealed or otherwise camouflaged as a natural structure, structure or part of a structure so that it is not easily recognizable from other natural structures.
means a use which may be suitable in certain locations in a zoning district if developed and operated under specific conditions and/or for a limited period of time.
means the mean horizontal distance between the front and rear lot lines. (See definitions of Front and Rear lot lines.)
means a section of the city for which the regulations governing the areas, heights or uses of buildings are uniform.
means any building or portion thereof which is designed for or used primarily for residential occupancy, but not including hotels, boardinghouses or mobile homes.
Single-family
means a building designed for and/or occupied exclusively by one family as a separate dwelling unit.
Duplex
means a building designed for and/or occupied exclusively by two families living independently of each other.
Triplex
means a building designed for and/or occupied exclusively by three families living independently of each other.
Fourplex
means a building designed for and/or occupied exclusively by four families living independently of each other.
Multiple
means a building designed for and/or occupied exclusively by five or more families living independently of each other.
The determination of whether one family is living independent of another is based on one or more of the following criteria: separate sanitary facilities; separate kitchen facilities; separate entrances; or separate utilities. |
As defined in section 138-1.A - Eligible facilities request (Section 6409) Definitions, below.
As defined in section 138-1.A - Eligible facilities request (Section 6409) Definitions, below.
has the same meaning as it does in section 130-1 of the McAllen Code of Ordinances.
As defined in section 138-1.A - Eligible facilities request (Section 6409) Definitions, below.
means one or more persons living together as a single housekeeping unit with common sanitary and kitchen facilities.
means a building or premises used for storage, repair, rental or servicing of motor vehicles.
means an accessory building, attached or detached, designed or used for the storage of motor-driven vehicles owned and used only by the occupants of the building to which it is accessory.
means an accessory building designed for the temporary occupancy of guests of the primary dwelling for which there is no remuneration. "Maids' quarters" means a portion of a dwelling unit, within the same enclosure and not a separate accessory building attached to the primary building, that may contain separate sanitary and/or kitchen facilities which is designed for or used for residential occupancy by an employee of the primary residence.
means, for a building or portion of a building, the vertical distance from grade to the highest point of the coping of a flat roof, the deckline of a mansard roof, and the mean height level between eaves and ridge for hip, gable or gambrel roofs. In measuring the height of a building, the following structures shall be excluded: chimneys, cooling towers, elevator bulkheads, mechanical rooms, tanks, water towers, radio towers, television antennas, ornamental cupolas, domes or spires, and parapet walls not exceeding four feet in height. Heights authorized in this chapter are subordinate to the airport zoning ordinance, appendix A.
means an activity carried on by a member of the immediate family, residing on the premises, that meets the provisions of subsection 138-118(a)(1).
means a building occupied as a temporary abiding place of individuals at which parking may be conveniently located at each unit and where there are more than six sleeping rooms provided for compensation.
means a nonprofit or for-profit organization or building of a public or charitable character, educational facilities, places of worship, cemeteries, or agencies of government.
means a space within the main building or on the same lot therewith, providing for the standing, loading or unloading of trucks and having a minimum dimension of 12 by 35 feet and a vertical clearance of at least 14 feet.
means an undivided tract or parcel of land having frontage on a public street, and which is, or in the future may be, offered for sale, conveyance, transfer or improvement, which is designated as a distinct and separate tract, and which is identified by a tract or lot number or symbol in a duly approved subdivision plat which has been properly filed of record. The word "lot" includes the word "plot."
Corner lot
means a lot abutting upon two or more public streets at their intersection.
Building coverage
means percentage of the lot that is occupied by the ground area of a building and its accessory buildings.
Lot, double frontage
means a lot abutting on two nonintersecting public streets as distinguished from a corner lot.
Lot lines(1) (2) (3)
means the lines bounding a lot as defined in this section.
Front lot line
means the property line between the front yard and the contiguous street right-of-way boundary.
Rear lot line
means the property line between the rear yard and the adjacent property or right-of-way, and contiguous with the legal boundary of such use.
Side lot line
means the property between two adjacent lots or between the side yard and the contiguous street right-of-way boundary on corner lots.
means a parcel of land which is part of a subdivision, the map or plat of which has been recorded in the office of the county clerk; or a tract of land not a part of an urban or town lot subdivision, the deed of which has been recorded in the office of the county clerk prior to October 15, 1973, which has not been divided since recording.
means the space entirely on private property required for maneuvering vehicles in such a manner as to preclude the backing of any vehicle into any street right-of-way.
means a movable or portable dwelling originally constructed to be towed, on its own chassis, by a motor vehicle over public roads.
means a unified development of five acres or more for mobile homes arranged on a tract of land owned by an individual or a single business entity for the purpose of renting or leasing lots, and meeting the requirements of chapter 122, article II of this Code.
means a unified development of five acres or more for mobile homes arranged on a tract of land in such a manner as to provide an individual lot (see definition of Lot) for each of the mobile homes.
means a dwelling unit in which more than 50 percent of the structure is constructed at other than the construction site, brought to the site in modules, and set on a permanent foundation.
means an establishment whose primary activity is the provision of facilities for dancing, including a dance floor and live entertainment or amplified music. Such establishment may or may not provide on-premises consumption of alcoholic beverages. Schools of dance are exempted from this definition.
means an addition to a structure designed to enhance the appearance of the structure, in compliance with all of the following criteria:
Any space occupied by or enclosed by the ornamental feature should not be included in or made a part of the air conditioned, heated, or enclosed portion of the structure;
The feature should serve no purpose or function for the structure other than ornamentation. The building should be equally functional without the feature as with the feature; and
The feature shall extend no further than 24 inches into a required yard.
means a space used exclusively for the parking of vehicles and where no other business is conducted.
means an area, not closer than six feet from the back edge of the curb, the width and length of which shall exceed by a minimum of two feet the dimensions of the type of vehicle normally to be parked in the space, and connected with a street or alley by a driveway affording satisfactory ingress and egress. The minimum dimension of a parking space shall be in accordance with the city off-street parking requirements in article VII of this chapter.
As defined in 47 U.S.C. § 332(c)(7).[1]
As defined in 47 U.S.C. § 332(c)(7).[2]
means and includes a combination of different dwelling types and/or a variety of land uses which creatively complement each other and harmonize with existing and proposed land uses in the vicinity, and which comply with the Planned Unit Development provisions of chapter 134, article IV of this Code.
means a temporary building that does not have a foundation and is transportable.
means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly in control of the same person.
means a vehicular, portable structure built on a chassis, designed to be used as a temporary dwelling for travel, recreational and vacation uses, permanently identified as a travel trailer by the manufacturer of the trailer and, when factory-equipped for the road, it shall have a body width not exceeding eight feet and a body length not exceeding state maximums.
means any building, either portable or constructed onsite, utilized for storage purposes and not requiring plumbing and electrical wiring, and not used for living quarters.
means a building or portion of a building where the primary business is the on-premises sale of prepared food, with adequate kitchen facilities for the preparation of the food to be sold, the adequacy of such kitchen facilities to be based upon the seating capacity of the restaurant and the type of menu offered, and where alcoholic beverages may be sold under the following conditions:
At least 51 percent of the gross income shall be derived from the sale of prepared food.
Any outside entrances, outside separate identification, outside signs or other separate advertising for lounge or bar areas shall be permitted only as an accessory or secondary feature of the restaurant.
Live entertainment may be permitted.
Whenever the director of planning on the basis of a sworn complaint from any person determines that a violation of this section exists, he may require any person serving alcoholic beverages as an incidental use to provide the city, within 30 days of notification, a verified audit for each quarter of the calendar year, showing the gross income derived from the sale of food.
means the sale of goods directly to a consumer; engaged in, pertaining to or relating to the sale of merchandise at retail; or selling by individual items, or by the piece, directly to a consumer.
means a dividing line between a lot, tract or parcel of land and the public right-of-way.
means a name, identification, image, description, display or illustration which is affixed to, painted or represented directly or indirectly upon a building, structure or piece of land, and which directs attention to an object, product, place, activity, facility, service, event, attraction, person, institution, organization or business and which is visible from any street, right-of-way, sidewalk, alley, park or other public property. Customary displays of merchandise or objects and material without lettering placed behind a store window are not signs or parts. Included in this definition are the following signs:
Animated sign, meaning a sign with action or motion, flashing color ranges requiring electrical energy, electronic or manufactured sources of supply, but not including wind-actuated elements such as flags, banners or special items.
Directional sign, meaning a sign containing directional information about public places owned or operated by federal, state or local governments or their agencies; publicly or privately owned natural phenomena; historic, cultural, scientific, educational and religious sites; and areas of natural scenic beauty or naturally suited for outdoor recreation deemed to be in the interest of the traveling public and having statewide or regional significance.
Freestanding sign, meaning a sign which is supported by one or more columns, uprights or braces in or upon the ground.
Illuminated sign, meaning a sign in which a source of light is used in order to make the message readable. This definition shall include internally and externally lighted signs and reflectorized, glowing or radiating signs.
Nameplate, meaning a sign attached to a building not more than one square foot in area identifying the owner or lessor, and his title or occupation.
Off-premises sign, meaning a sign, including the supporting sign structure, which directs the attention of the general public to a business, service or activity not usually conducted or a product not usually offered or sold upon the premises where such a sign is located. None of the following shall be deemed an off-premises outdoor advertising sign:
Official signs, meaning directional and other official signs authorized by law, including signs pertaining to natural wonders and scenic and historic attractions, and signs which have as their purpose the protection of life and property.
On-premises sign, meaning a sign which directs the attention of the general public to a lawful use of the premises on which it is located, including signs or sign devices indicating the business transacted at, services rendered, goods sold or produced on the premises, name of the business, and name of the person occupying the premises.
Political sign, meaning any sign whose sole purpose is the transmittal of information concerning an upcoming political issue or campaign, or a public issue of potential concern to the community as a whole.
Portable sign, meaning a freestanding and movable sign designed to be temporary and mobile. This definition includes signs attached to trailers, but does not include signs permanently placed on the sides of motor vehicles.
Private directional sign, meaning a sign not erected by or under authority of any governmental agency, which contains only information designed to direct pedestrian or vehicular traffic and which contains no advertising material or a business name. Examples of private directional signs include signs bearing only the word "entrance" or "exit" located on or near a parking lot. No sign which contains the name of a business or activity or any other advertising material shall be considered a private directional sign, even though such sign may also contain the word "entrance" or "exit." A sign containing the word "parking" at any parking lot where any person is charged any fee or other monetary consideration for parking shall be considered an advertising sign, not a private directional sign.
Real estate sign, meaning any sign smaller than three feet by four feet, temporarily advertising the sale or lease of the property upon which it is located, or any permanent sign affixed to a gate or entryway advertising only the name and address of a subdivision, apartment complex or residential district.
As defined in section 138-1.A - Eligible facilities request (Section 6409) Definitions, below.
means a public or private thoroughfare which affords the principal means of access to abutting property, excluding alleys.
means any change in the supporting members of a building, such as bearing walls, columns, beams or girders.
means anything constructed, erected or artificially built up; or composed of parts and joined together in a permanent manner.
As defined in section 138-1.A - Eligible facilities request (Section 6409) Definitions, below.
See Hotel or motel.
As defined in section 138-1.A - Eligible facilities request (Section 6409) Definitions, below, except for new towers that are not eligible for Section 6409, they need not be existing at the time of the application.
means a single-family dwelling unit constructed in a series or a group of units having common walls, each on a separate lot.
is any transport vehicle used as a common carrier with a rated passenger capacity minimum of eight, excluding the driver position, with provisions for safe seating of adult passengers.
means a facility for the provision of passenger services for transit vehicles such as ticketing, baggage check-in and claim areas, restrooms, lockers and waiting areas; and transit vehicles services such as bus bays for passenger loading and layover parking, interior bus cleaning and non-mechanical repair services.
As defined in section 138-1.A - Eligible facilities request (Section 6409) Definitions, below.
means a motor vehicle traversing the public streets of the city used in the operation of a common carrier.
means the sale of commodities for the purpose of resale, as to retailers or jobbers rather than to consumers directly; opposed to "retail." Of, pertaining to, or engaged in sale at wholesale.
means an open space between a building and the adjoining lot lines, unoccupied and unobstructed by any portion of a structure from the ground upward, except as otherwise provided in the definitions of "yard" set out in this section. In measuring a yard for the purpose of determining the width of a side yard, the depth of a front yard, or the depth of a rear yard, the minimum horizontal distance between the lot line and the main building shall be used.
Front yard
means a yard extending across the front of a lot between the side lot lines, and being the minimum horizontal distance between the right-of-way line and wall of the main building or any projections thereof other than projections of the usual uncovered steps, uncovered balconies or uncovered porches. On corner lots, the front yard shall be considered as parallel to the street upon which the lot has its least dimension, except where corner lots may be square in dimension and/or have double frontage, in which case the front yard shall correspond to the lot's side adjacent to the longest block face in which it occurs and to which the majority of the existing structures front.
Rear yard
means a yard extending across the rear of a lot and being the required minimum horizontal distance between the rear lot line and the rear of the main building or any projections thereof other than projections of uncovered steps, uncovered balconies or uncovered porches. On all lots, the rear yard shall be in the rear of the front yard.
Side yard
means a yard between the main building and the side line of the lot, and being the minimum horizontal distance between a side lot line and the sides of the main buildings or any projections thereof.
(1966 Code, § 32-2; Ordinance 1996-8, § I, adopted 1/22/1996; Ordinance 1996-70, § I, adopted 11/18/1996; Ordinance 1998-68, § 1, adopted 2/27/1998; Ordinance 1999-69, § 1, adopted 8/9/1999; Ordinance 2004-15, § 5, adopted 2/9/2004; Ordinance 2015-38, § II, adopted 5/11/2015; Ordinance 2022-130, § I, adopted 10/24/2022)
[1]
Editor’s note—47 U.S.C. § 332(c)(7)(C) Definitions. For purposes of this paragraph—(i) the term "personal wireless services" means commercial mobile services [cellular service], unlicensed wireless services, and common carrier wireless exchange access services..."; 47 U.S.C. § 332(d)...(1) the term "commercial mobile service" means any mobile service (as defined in section 153 of this title) that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public, as specified by regulation by the Commission;..."
[2]
Editor’s note—47 U.S.C. § 332(c)(7)(C) Definitions For purposes of this paragraph... (ii) the term "personal wireless service facilities" means facilities for the provision of personal wireless services..."
§ 138-1.A Eligible facilities request (Section 6409) Definitions and Procedures.
These definitions and related Section 6409 procedures only apply to the city to the extent the FCC's Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Report and Order, 29 FCC Rcd 12865 (2014), ("2014 Infrastructure Order") preempts existing city procedures and to the extent the 2014 Infrastructure Order is effective as federal law.[1]
The city expressly reserves its rights to revise or repeal any or all of these definitions and related Section 6409 procedures to the extent the 2014 Infrastructure Order is interpreted, modified, revised or enjoined on any appeal or reconsideration in a manner inconsistent with the definitions in or procedure in this section.
(a)
Eligible facilities request (Section 6409) Definitions.
For the purposes of a personal wireless facilities siting permit under Section 6409(a),[2] as interpreted by the Federal Communications Commission's ("FCC") in the 2014 Infrastructure Order, which is asserted to be a qualified application for a Section 6409 eligible facilities request,[3] the following defined terms shall be used:
(1)
Base station.
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 subsection (a)(1)a, below or any equipment associated with a tower. Base station includes, without limitation:
a.
Equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
b.
Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems ("DAS") and small-cell networks).
c.
Any structure other than a tower that, at the time the relevant application is filed with the city, supports or houses equipment described in subsections (a)(1)a and b, that has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing that support.
(2)
Collocation.
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.[4]
[4]
Editor’s note—The FCC has clarified that "collocation" includes the first placement of transmission equipment on a wireless tower or base station (as a base station, by definition, already has a wireless device on it). See 2014 Infrastructure Order ¶ 179.
(3)
Eligible facilities request.
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:
(4)
Eligible support structure.
Any tower or base station, as defined in these Section 6409 Definitions, provided that it is existing at the time the relevant application is filed with the city.
(5)
Existing.
A constructed tower or base station is existing for purposes of Section 6409 if it has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, provided that a tower that has not been reviewed and reviewed because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of Section 6409.
(6)
Site.
For towers other than towers in the public rights-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, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.
(7)
Substantial change.
A modification substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria:
a.
For towers other than towers in the public rights-of-way, it increases the height of the tower by more than ten percent or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than ten percent or more than ten feet, whichever is greater;[5]
[5]
Editor’s note—Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act, Feb. 22, 2012. 47 CFR § 1.40001(b)(7)(i)(A).
b.
For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20 feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;
c.
For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than ten percent larger in height or overall volume than any other ground cabinets associated with the structure;
d.
It entails any excavation or deployment outside the current site;
e.
It would defeat the concealment elements of the eligible support structure; or
f.
It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is noncompliant only in a manner that would not exceed the thresholds identified in subsections (a)(7)a—f, above.
(8)
Transmission equipment.
Equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
(9)
Tower.
Any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site.
[2]
Editor’s note—Middle Class Tax Relief and Job Creation Act of 2012, 112 Pub. L. 96, [Feb. 22, 2012] ("Spectrum Act"), Section 6409 codified at 47 U.S.C. § 1455. ("Section 6409").
[3]
Editor’s note—Section 6409 eligible facility request means the applicant has met all the Section 6409(a) criteria, as set forth in the 2014 Infrastructure Order.
(b)
Eligible facilities request (Section 6409) application review.
(1)
Application.
The city shall prepare and make publicly available an application form which shall be limited to the information necessary for the city to consider whether an application is a qualified eligible facilities request. The application may not require the applicant to demonstrate a need or business case for the proposed modification.
(2)
Type of review.
Upon receipt of self-described application for an eligible facilities request, the designated city department shall review such application to determine whether the application qualifies as a Section 6409 eligible facility request, in accordance with the 2014 Infrastructure Order.
(3)
Timeframe for review.
Within 60 days of the date on which an applicant submits an application seeking approval, the city shall approve the application unless it determines that the application is not a qualified Section 6409 eligible facilities request.
(4)
Tolling of the timeframe for review.
The 60-day review period begins to run when the application is filed, and may be tolled only by mutual agreement by the city and the applicant, or in cases where the city determines that the application is incomplete. The timeframe for review is not tolled by a moratorium on the review of applications.
a.
To toll the timeframe for incompleteness, the city must provide written notice to the applicant within 30 days of receipt of the application, specifically delineating all missing documents or information required in the application.
b.
The timeframe for review begins running again when the applicant makes a supplemental submission in response to the city's notice of incompleteness.
c.
Following a supplemental submission, the city will notify the applicant within ten days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The timeframe is tolled in the case of second or subsequent notices pursuant to the procedures identified in subsection (4)b of this section. Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.
(5)
Failure to act.
In the event the city fails to approve or deny a request seeking approval of an eligible facilities request within the timeframe for review (accounting for any tolling), the request shall be deemed granted. The deemed grant does not become effective until the applicant notifies the city in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.[7]
[7]
Editor’s note—If the city does not act on the application and the application is "deemed granted", that deemed grant shall not be construed to include any granted variance, or other previously or currently required zoning condition, except as to height, width, excavation and cabinets, but only to the extent allowed by the 2014 Infrastructure Order. The deemed grant shall not extend to any other required zoning requirement or constitute as city consent to waive any prior imposed conditions. The deemed grant shall not be deemed a waiver of any of the requirements for information required of owners of the property site in the application, as to either privately owned property or city owned public property or city controlled public property, as set forth in the application. The deemed grant shall not be deemed as consent or a grant or license by the city for the applicant to use or occupy any publicly owned or controlled public property, or as a waiver for the city to require consent or a grant or license by the city to use or occupy any publicly owned or controlled public property.
(6)
Remedies.
Applicants and the city may bring claims related to Section 6409(a) to any court of competent jurisdiction.
(7)
Interaction with Section 332(c)(7).
[8] If the city determines that the applicant's request is not a Section 6409 eligible facilities request, the presumptively reasonable timeframe under Section 332(c)(7), as prescribed by the FCC's Shot Clock order,[9] as interpreted by the 2014 Infrastructure Order,[10] will begin to run from the issuance of the city's decision that the application is not an eligible facilities request. To the extent such information is necessary, as determined by the city, the city may request additional information from the applicant to evaluate the application under Section 332(c)(7), pursuant to the limitations applicable to other Section 332(c)(7) reviews.
[8]
Editor’s note—47 U.S.C. § 332(c)(7).
[9]
Editor’s note—In re Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24 FCC Rcd 13994 (2009) ("Shot Clock Ruling").
[10]
Editor’s note—Set out in 2014 Infrastructure Order ¶¶ 258—260.
[6]
Editor’s note—The 2014 Infrastructure Order rules are effective April 8, 2015, except following portions of the Section 6409, (a) FCC rules requiring Office of Management and Budget (OMB) approval before they are effective: 47 C.F.R. §§ 1.40001(c)(3)(i) [30-day time line from date of application filing for city to provide notice of incompleteness and request for supplemental information to toll the 60 days "shot clock"]; 1.40001(c)(3)(iii) [City ten-day review of supplemental information, and subsequent request to submit information to further toll the "shot clock"]; and 1.40001(c)(4) [60-day failure to act "deemed granted"]. The link to the FCC's OMB approval request is: FR Notice. As of April 16, 2015 there has not been a federal register FCC notice of OMB approval. Until there has been OMB approval those identical requirements, deadlines to act, and procedural requirements or limitations, as they are set forth in this section 138-1.A., (b), are not effective.
(Ordinance 2015-38, § III, adopted 5/11/2015)
[1]
Editor’s note—The 2014 Infrastructure Order rules are effective April 8, 2015, except following portions of the Section 6409, (a) FCC rules requiring Office of Management and Budget (OMB) approval before they are effective: 47 C.F.R. §§ 1.40001(c)(3)(i) [30-day time line from date of application filing for city to provide notice of incompleteness and request for supplemental information to toll the 60 days "shot clock"]; 1.40001(c)(3)(iii) [City ten-day review of supplemental information, and subsequent request to submit information to further toll the "shot clock"]; and 1.40001(c)(4) [60-day failure to act "deemed granted"]. The link to the FCC's OMB approval request is: FR Notice. As of April 16, 2015 there has not been a federal register FCC notice of OMB approval. Until there has been OMB approval those identical requirements, deadlines to act, and procedural requirements or limitations, as they are set forth in this section 138-1.A., (b), are not effective.
§ 138-1.B Application for a personal wireless service facility.
The applicant for a personal wireless service facilities site shall complete the application, and any addendum to the application, provided by the planning and zoning department. The application must be completed for all personal wireless service facilities sites, both for those sites which require a conditional use permit and for those sites meet the then current zoning criteria.
The application may be revised from time to time, as reasonably determined by the planning and zoning department to be consistent with state and federal law.[1]
(Ordinance 2015-38, § III, adopted 5/11/2015)
[1]
Editor’s note—47 U.S.C. § 332(c)(7), imposes several restrictions on local authority concerning "the placement, construction and modification of personal wireless service facilities", while otherwise preserving municipal regulatory and zoning authority. Section 6409 also imposes certain restrictions on the city. The application assist the city in determining the applicability of 47 U.S.C. § 332(c) and Section 6409.
§ 138-2 Exemptions from chapter.
This chapter does not apply to a building, other structure or land under the control, administration or jurisdiction of state or federal agencies.