(a)   The Telecommunications Act of l996 affirmed the City of Middleburg Heights authority concerning the placement, construction and modification of wireless telecommunications facilities. The Council of the City of Middleburg Heights finds that wireless telecommunications facilities may pose a unique hazard to the health, safety, public welfare and environment of the City of Middleburg Heights and its inhabitants. The Council of the City of Middleburg Heights also recognizes that facilitating the development of wireless service technology can be an economic development asset to the City and of significant benefit to the City and its residents.

   (b)   The City recognizes a specific sub-category of telecommunication provider called microcell wireless internet service provider, hereinafter referred to as MWISP, providing hi-speed broadband internet connections using radio waves sent from a ground-based distribution point directly to fixed residential and business locations. All other wireless telecommunications facilities are hereinafter referred to as WTF. In order to insure that the placement, construction or modification of wireless telecommunications and MWISP facilities are consistent with the City’s land use policies, the City is adopting a single, comprehensive, wireless telecommunications facilities application and permit process.

   (c)   The intent of this chapter is to minimize the negative impact of wireless telecommunications facilities, establish a fair and efficient process for review and approval of applications, assure an integrated comprehensive review of environmental impacts of such facilities, and protect the health, safety and welfare of the City of Middleburg Heights.

(Ord. 2022-24. Passed 5-24-22.)

   This chapter may be known and cited as the Wireless Telecommunications Facilities Siting Ordinance for the City of Middleburg Heights.

(Ord. 2022-24. Passed 5-24-22.)

   (a)    If any word, phrase, sentence, part, section, division, or other portion of this chapter or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, division, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this chapter, and all applications thereof, not having been declared void, unconstitutional, or invalid, shall remain in full force and effect.

   (b)   Any special use permit issued under this chapter shall be comprehensive and not severable. If part of a permit is deemed or ruled to be invalid or unenforceable in any material respect, by a competent authority, or is overturned by a competent authority, the permit shall be void in total, upon determination by the City Planning Commission.

(Ord. 2022-24. Passed 5-24-22.)

   For purposes of this chapter, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number and words in the singular number include the plural number. The word “shall” is always mandatory, and not merely directory.

   (a)   “Accessory Facility or Structure” means an accessory facility or structure serving or being used in conjunction with wireless telecommunications or MWISP facilities, and located on the same property or lot as the wireless telecommunications or MWISP facilities, including but not limited to, utility or transmission equipment, storage sheds or cabinets.

   (b)   “Applicant” means any person submitting an application to the City of Middleburg Heights for a special use permit for wireless telecommunications facilities.

   (c)   “Application” means the form approved by the Planning Commission, together with all necessary and appropriate documentation that an applicant submits in order to receive a special use permit for wireless telecommunications or MWISP facilities.

   (d)   “Antenna” means a system of electrical conductors that transmit or receive electromagnetic waves or radio frequency signals. Such waves shall include, but not be limited to radio, television, cellular, paging, personal telecommunications services (PCS), internet, and microwave telecommunications.

   (e)   “City” means the City of Middleburg Heights, Ohio.

   (f)   “Co-location” means the use of the same telecommunications tower or structure to carry two or more antennae for the provision of wireless services by two or more persons or entities.

   (g)   “Commercial Impracticability” or “Commercially Impracticable” shall have the meaning in this chapter and any special use permit granted hereunder as is defined and applied under the United States Uniform Commercial Code (UCC).

   (h)   “Completed Application” means an application that contains all information and/or data necessary to enable the Planning Commission to evaluate the merits of the application, and to make an informed decision with respect to the effect and impact of wireless telecommunications and WISP facilities on the City in the context of the permitted land use for the particular location requested.

   (i)   “Direct to home satellite services” or “Direct Broadcast Service” or “DBS” means only programming transmitted or broadcast by satellite directly to subscribers’ premises without the use of ground receiving equipment, except at the subscribers’ premises or in the uplink process to the satellite.

   (j)   “EPA” means State and/or Federal Environmenta1 Protection Agency or its duly assigned successor agency.

   (k)   “FAA” means the Federal Aviation Administration, or its duly designated and authorized successor agency.

   (l)   “FCC” means the Federal Communications Commission, or its duly designated and authorized successor agency.

   (m)   “Free Standing Tower” means a tower that is not supported by guy wires and ground anchors or other means of attached or external support.

   (n)   “Height” means, when referring to a tower or structure, the distance measured from the pre-existing grade level to the highest point on the tower or structure, even if said highest point is an antenna.

   (o)   “Microcell Wireless Internet Service Provider” means a provider of Internet connectivity using radio waves directly to the physical end-user location and using transmitting and receiving equipment facilities as described in division (p) hereof.

   (p)   “Microcell Wireless Internet Service Provider Facilities” means a structure, facility, or location designed, or intended to be used as, or used to support, antennas, as well as any functional equivalent equipment used to transmit or receive signals using FCC unlicensed bands, such as 802.11b or 802.11a, for the purpose of using these signals to provide a direct Internet connection to fixed physical locations of residents and/or businesses. It includes without limit any structure or supporting element for the antenna where the maximum height of the supporting structure is eighty feet above grade and the maximum height of any antenna on the same structure is eighty feet above grade. Lightning protection elements are not included in the determination of the maximum height of the supporting structure. All facilities not specifically defined under this category become part of the category “Wireless Telecommunications Facilities, WTF.”

   (q)   “MWISP Site”. See definition for “Microcell Wireless Internet Service Provider Facilities”.

   (r)   “MWISP Structure” means a structure used in the provision of services described in the definition of “Microcell Wireless Internet Service Provider Facilities”.

   (s)   “NIER” means Non-Ionizing Electromagnetic Radiation.

   (t)   “Person” means any individual, corporation, estate, trust, partnership, joint stock company, association of two or more persons having a joint common interest, or any other entity.

   (u)   “Personal Wireless Facility”. See definition for “Wireless Telecommunications Facilities”.

   (v)   “Personal Wireless Services” or “PWS” or “Personal Telecommunications Service” or “PCS” shall have the same meaning as defined and used in the 1996 Telecommunications Act.

   (w)   “Planning Commission” means the City Planning Commission of the City of Middleburg Heights.

   (x)   “Special Use Permit” means the official document or permit by which an applicant is allowed to conduct and use Wireless Telecommunications Facilities or MWISP as granted or issued by the City.

   (y)   “State” means the State of Ohio.

   (z)   “Telecommunication Site”. See definition for Wireless Telecommunications Facilities.

   (aa)   “Telecommunications” means the transmission and reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.

   (bb)   “Telecommunications Structure” means a structure used in the provision of services described in the definition of “Wireless Telecommunications Facilities”.

   (cc)   “Temporary” means in relation to all aspects and components of this chapter, something intended to, or that does, exist for fewer than ninety days.

   (dd)   “Wireless Telecommunications Facilities” or “Telecommunications Tower” or “Telecommunications Site” or “Personal Wireless Facility” except as otherwise provided in division (p) hereof means a structure, facility or location designed, or intended to be used as, or used to support, antennas, as well as antennas or Any functional equivalent equipment used to transmit or receive signals. It includes without limit, free standing towers, guyed towers, monopoles, and similar structures that employ camouflage technology, including, but not limited to structures such as a multi-story building, church steeple, silo, water tower, sign or similar structures intended to mitigate the visual impact of an antenna or the functional equivalent of such. It is a structure intended for transmitting and/or receiving radio, television, cellular, paging, personal telecommunications services, or microwave telecommunications, but excluding those used exclusively for fire, police and other dispatch telecommunications, or exclusively for private radio and television reception and private citizen’s bands, amateur radio and other similar telecommunications.

(Ord. 2022-24. Passed 5-24-22.)

   In order to ensure that the placement, construction and modification of wireless telecommunications and MWISP facilities protects the City’s health, safety, public welfare, environmenta1 features and other aspects of quality of life specifically listed elsewhere in this chapter, the Planning Commission hereby adopts an overall policy with respect to a special use permit for wireless telecommunications and MWISP facilities for the express purpose of achieving the following goals:

   (a)   Implementing an application process for person(s) seeking a special use permit for wireless telecommunications and MWISP facilities;

   (b)   Establishing a policy for examining an application for and issuing a special use permit for wireless telecommunications and MWISP facilities that is both fair and consistent;

   (c)   Establishing reasonable time frames for granting or not granting a special use permit for wireless telecommunications and MWISP facilities, or recertifying or not recertifying, or revoking the special use permit granted under this chapter;

   (d)   Promoting and encouraging, wherever possible, the sharing and/or collocation of wireless telecommunications facilities among service providers; MWISP does not co-locate; and

   (e)   Providing and encouraging, wherever possible, the placement, height and quantity of wireless telecommunications and MWISP facilities in such a manner as to minimize adverse aesthetic impacts to the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications and MWISP facilities.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   All applicants for a special use permit for wireless telecommunications or MWISP facilities or any modification of such facility shall comply with the requirements set forth in this section. The Planning Commission is the officially designated agency or body of the community to whom applications for a special use permit for wireless telecommunications and MWISP facilities must be made, and that is authorized to review, analyze, evaluate and make decision with respect to granting or not granting, recertifying or not recertifying or revoking special use permits for wireless telecommunications and MWISP facilities. The Planning Commission may at its discretion delegate or designate other official agencies of the City to review, analyze, evaluate and make recommendations to the Planning Commission with respect to the granting or not granting, recertifying or not recertifying or revoking special use permits for wireless telecommunications and MWISP facilities.

   (b)   An application for a special use permit for wireless telecommunications and MWISP facilities shall be signed on behalf of the applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information. The landowner, if different than the applicant, shall also sign the application. At the discretion of the Planning Commission, any intentional and materially false or misleading statement in the application will delay processing the application until appropriate corrections have been made.

   (c)   Applications not meeting the requirements stated herein or which are otherwise incomplete may be rejected by the Planning Commission.

   (d)   The applicant shall include a statement in writing:

       (1)   That the applicant’s proposed wireless telecommunications or MWISP facilities shall be maintained in a safe manner, and in compliance in all material respects with all conditions of the special use permit, without exception, unless specifically granted relief by the Planning Commission in writing, as well as in compliance, in all material respects, with all applicable and permissible local codes, ordinances, and regulations, including any and all applicable City, State and Federal ordinances, rules, and regulations.

      (2)   That the construction of the wireless telecommunications or MWISP facilities is legally permissible, including, but not limited to the fact that the applicant is authorized to do business in the State of Ohio.

   (e)   No wireless telecommunications or MWISP facilities shall be installed or constructed until the site plan is reviewed and approved by the Planning Commission, and the special use permit has been issued. No WTF shall be approved by the Planning Commission until the site plan has been reviewed by the City Engineer

   (f)   All applications for the construction or installation of new wireless telecommunications and MWISP facilities shall be accompanied by a report containing the information hereinafter set forth. Where this section calls for engineering certification, such certification shall be by a qualified Ohio State licensed professional engineer, unless otherwise noted. The application shall include in addition to the other requirements for the special use permit, the following information:

      (1)   Documentation that demonstrates the need for the wireless telecommunications or MWISP facility to provide service primarily within the City;

      (2)   Name, address and phone number of the person preparing the report;

      (3)   Name, address, and phone number of the property owner, operator, and applicant, to include the legal form of the applicant;

      (4)   Postal address and tax map parcel number of the property;

      (5)   Zoning district or designation in which the property is situated;

      (6)   Size of the property, stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines; including legend and bearings;

      (7)   Location of nearest residential structure;

      (8)   Location of nearest habitable structure;

      (9)   Location, size and height of all structures on the property, which is the subject of the application;

      (10)   Location, size and height of all proposed and existing antennae and all appurtenant structures;

      (11)   Type, locations and dimensions of all proposed and existing landscaping, and fencing;

      (12)   For WTF the number, type and design of the telecommunications tower(s) antenna(s) proposed and the basis for the calculations of the telecommunications tower’s capacity to accommodate multiple users; MWISP does not co-locate;

      (13)   The make, model and manufacturer of the tower and antenna(s);

      (14)   A description of the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above pre-existing grade, materials, color and lighting;

      (15)   The frequency, modulation and class of service of radio or other transmitting equipment;

      (16)   Transmission and maximum effective radiated power of the antenna(s);

      (17)   Direction of maximum lobes and associated radiation of the antenna(s);

      (18)   For WTF, certification that NIER levels at the proposed site will be within the threshold levels adopted by the FCC; MWISP equipment is pre- certified;

      (19)   For WTF, certification that the proposed antenna(s) will not cause interference with existing telecommunications devices, which certification shall be reviewed by a licensed engineer designated by City;

      (20)   For WTF, a copy of the FCC license applicable for the use of wireless telecommunications facilities;

      (21)   For WTF certification that a topographic and geomorphologic study and analysis has been conducted, and that taking into account the subsurface and substrata, and the proposed drainage plan, that the site is adequate to assure the stability of the proposed wireless telecommunications facilities on the proposed site, which certification shall be reviewed by a licensed engineer designated by the City;

      (22)   For WTF propagation studies of the proposed site and all adjoining proposed in-service or existing sites; and

      (23)   WTF applicants shall disclose in writing any agreement in existence prior to submission of the application that would limit or preclude the ability of the applicant to share any new telecommunication tower that it constructs.

   (g)   In the case of a new Telecommunication Tower for WTF, the applicant shall be required to submit a written report demonstrating its efforts to secure shared use of existing Telecommunications Tower(s) or use of existing buildings or other structures within the City. Copies of written requests and responses for shared use shall be provided to the Planning Commission.

   (h)   For WTF the applicant shall furnish written certification that the telecommunication facility foundation and attachments are designed and will be constructed to meet all local, County, State and Federal structural requirements for loads, including wind and ice loads. For MWISP the applicant shall provide a copy of comprehensive specifications and installation requirements of each piece of equipment used in the supporting structure from each manufacturer thereof.

   (i)   For WTF, after construction and prior to receiving a certificate of compliance, the applicant shall furnish written certification that the wireless telecommunications facilities are grounded and bonded so as to protect persons and property and installed with appropriate surge protectors. For MWISP the supporting structure’s grounding requirements per the comprehensive manufacturer’s recommendations must be strictly adhered to. And for MWISP, frequency specific surge protection equipment must be utilized in conjunction with each antenna and the attached cabling and a copy of the manufacturer’s comprehensive specifications for each piece of surge protection equipment be furnished to the City.

   (j)   If requested by the Planning Commission, the WTF applicant shall furnish a visual impact assessment which shall include:

      (1)   A “Zone of Visibility Map” which shall be provided in order to determine locations where the tower may be seen.

      (2)   Pictorial representations of “before and after” views from key viewpoints both inside and outside of the City, including but not limited to State highways and other major roads, state and local parks; other public lands, historic districts, preserves and historic sites normally open to the public, and from any other location where the site is visible to a large number of visitors, travelers or residents. The City, acting in consultation with its consultants or experts, will provide guidance concerning the appropriate key sites at a pre-application meeting.

      (3)   An assessment of the visual impact of the tower base, guy wires and accessory buildings from abutting and adjacent properties and streets.

   (k)   Any and all representations made by the applicant to the Planning Commission, on the record, during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the Planning Commission.

   (l)   For WTF, the applicant shall, in a manner approved by the Planning Commission, demonstrate and provide in writing and/or by drawing how it shall effectively screen from view its proposed wireless telecommunications Facilities base and all related facilities and structures.

   (m)   All utilities from wireless telecommunications and MWISP facilities sites shall be installed underground and in compliance with all ordinances, rules and regulations of the City, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate. The Planning Commission may waive or vary the requirements of undergrounding installation of utilities whenever, in the opinion of the Planning Commission, such variance or waiver shall not be detrimental to the health, safety, general welfare and environment, including the visual and scenic characteristics of the area.

   (n)   All wireless telecommunications and MWISP facilities shall contain a demonstration that the facility will be sited so as to have the least adverse visual effect on the environment and its character, and the residences in the area of the WTF and MWISP facilities sites.

   (o)   Both the wireless telecommunications Facility and any and all accessory or associated facilities shal1 maximize use of building materials, colors and textures designed to blend with the structure to which it may be affixed and/or to harmonize with the natural surroundings, this shal1 include the utilization of stealth or concealment technology as required by the City. New MWISP support structures must be self-supporting or must use a horizontal support brace attached to a building. MWISP support structures may not use guy wires for support.

   (p)   At a WTF site, applicant shall furnish City with a site plan showing an access road and parking for adequate emergency and service access. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and vegetation cutting. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion.

   (q)   A person who holds a special use permit for WTF and MWISP facilities shall construct, operate, maintain, repair, provide for removal of, modify or restore the permitted wireless telecommunications facilities in strict compliance with all current technical, safety and safety-related codes adopted by the City, County, State, or United States, including but not limited to the most recent editions of the National Electrical Safety Code and the National Electrical Code, as well as accepted and responsibly workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but are not limited to, construction, building, electrical, fire, safety, health, and land use codes. In the event of a conflict between or among any of the preceding the more stringent shall apply.

   (r)   A holder of a special use permit granted under this chapter shall obtain, at its own expense, all permits and licenses required by applicable rule, regulation or ordinance, and must maintain the same, in full force and effect for as long as required by the City or other governmental entity or agency having jurisdiction over the applicant.

   (s)   The Planning Commission may conduct an environmental review of the proposed project in combination with its review of the application under this chapter. Applicant shall provide written documentation that it is in compliance with all Federal, State and local environmental regulations, such as NHPA and NEPA.

   (t)   An applicant shall submit to the City Planning Commission the number of completed applications determined to be needed at a pre-application meeting with the appropriate City official or consultant. A copy of the application shall be provided to the legislative body of all adjacent municipalities.

   (u)   WTF applicants shall examine the feasibility of designing a proposed telecommunications tower to accommodate future demand for at least two additional commercial applications, for example, future collocations. The scope of this examination shall be determined by the Planning Commission. The telecommunications tower shall be structurally designed to accommodate at least two additional antenna arrays equal to those of the applicant, and located as close to the applicant’s antenna as possible without causing interference. This requirement may be waived, provided that the applicant, in writing, demonstrates that the provisions of future shared usage of the telecommunications tower is not technologically feasible, or is commercially impracticable and creates an unnecessary and unreasonable burden, based upon:

      (1)   The foreseeable number of FCC licenses available for the area;

      (2)   The kind of wireless telecommunications facilities site and structure proposed;

      (3)   The number of existing and potential licenses without wireless telecommunications facilities spaces/sites; and

      (4)   Available space on existing and approved telecommunications towers.

   (v)   WTF applicants shall submit to the Planning Commission a letter of intent committing the owner of the proposed new tower, and his or her successors in interest, to negotiate in good faith for shared use of the proposed tower by other telecommunications providers in the future. This letter shall be filed with the Planning Commission. Failure to abide by the conditions outlined in the letter may be grounds for revocation of the special use permit. The letter shall commit the new tower owner and their successors in interest to:

      (1)   Respond within sixty days to a request for information from a potential shared-use applicant;

      (2)   Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers;

      (3)   Allow shared use of the new tower if another telecommunications provider agrees in writing to pay reasonable charges. The charges may include, but are not limited to, a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance, financing, return on equity, less depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference.

   (w)   For WTF, unless waived by the Planning Commission, there shall be a pre- application meeting. The purpose of the pre-application meeting will be to address issues which will help to expedite the review and permitting process. A pre-application meeting may also include a site visit. Costs of the City’s consultants to prepare for and attend the pre-application meeting will be borne by the applicant.

   (x)   The holder of a special use permit shall notify the City of Middleburg Heights before making any material modification of a wireless telecommunication facility and shall apply to the City to materially modify, relocate or rebuild a wireless telecommunications facility. MWISP special use permit holders may modify antenna arrangements without a modification permit. All other support structure modifications require application for a permit.

   (y)   A new WTF tower applicant, upon request of the Planning Commission shall hold a “balloon test” as follows: applicant shall arrange to fly, or raise upon a temporary mast, a brightly colored balloon, minimum diameter of three feet at the maximum height of the proposed new tower. The applicant shall inform the Planning Commission, in writing of the dates and times of the test, including a second date, in case of poor visibility on the initial date, at least fourteen days in advance. The balloon shall be flown for at least eight consecutive hours sometime between 7:00 a.m. and 4:00 p.m. of the dates chosen. The primary date shall be on a weekend, but the second date, in case of poor visibility on the initial date, may be on a week day.

   (z)   The applicant will provide a written copy of an analysis, completed by a qualified individual or organization to determine if the WTF Tower or existing structure intended to support wireless facilities requires lighting under Federal Aviation Regulation Part 77. This requirement shall be for any new tower, or for an existing structure or building where the application increases the height of the structure or building. If this analysis determines that the FAA must be contacted, then all filings with the FAA, all responses from the FAA and any related correspondence shall be provided in a timely manner by the applicant.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities in accordance with the following priorities, one being the highest priority and four being the lowest priority.

      (1)   On existing telecommunications towers or other tall structures;

      (2)   Co-location on a site with existing wireless telecommunications facilities or structures;

      (3)   On municipally-owned properties;

      (4)   On other property in the City.

    (b)   If the proposed property site is not the highest priority listed above, then a detailed explanation must be provided as to why a site of a higher priority was not selected. The person seeking such an exception must satisfactorily demonstrate the reason or reasons why such a permit should be granted for the proposed site, and the hardship that would be incurred by the applicant if the permit were not granted for the proposed site.

   (c)   An applicant may not by-pass sites of higher priority by stating the site presented is the only site leased or selected. An application shall address collocation as an option and if such option is not proposed, the applicant must explain why collocation is commercially or otherwise impracticable. Agreements between providers limiting or prohibiting collocation shall not be a valid basis for any claim of commercial impracticability or hardship.

   (d)   Notwithstanding the above, the Planning Commission may approve any site located within an area in the above list of priorities, provided that the Planning Commission finds that the proposed site is in the best interest of the health, safety and welfare of the City and its inhabitants.

   (e)   The applicant shall submit a written report demonstrating the applicant’s review of the above locations in order of priority, demonstrating the technological reason for the site selection. If the site selected is not the highest priority, then a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.

   (f)   The applicant shall, in writing, identify and disclose the number and locations of any additional sites that the applicant has been, or is, considering, reviewing or planning for wireless telecommunications Facilities in the City, and all municipalities adjoining the City.

   (g)   Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the Planning Commission may disapprove an application for any of the following reasons:

      (1)   Conflict with safety and safety-related codes and requirements;

      (2)   Conflict with traffic needs or traffic ordinances, or definitive plans for changes in the flow or traffic ordinances;

      (3)   Conflict with the historic nature of a neighborhood or historical district;

      (4)   The use or construction of wireless telecommunications facilities which is contrary to an already stated purpose of a specific zoning or land use designation;

      (5)   The placement and location of wireless telecommunications facilities which would create an unacceptable risk, or the probability of such, to residents, the public, employees and agents of the City, or employees of the service provider or other service providers; or

      (6)   Conflicts with the provisions of this chapter.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   Shared use of existing WTF facilities shall be preferred by the City, as opposed to the proposed construction of a new telecommunications tower. MWISP facilities cannot be shared. Where such shared use is unavailable, location of antennas on other pre-existing structures shall be considered and preferred. The applicant shall submit a comprehensive report inventorying existing towers and other appropriate structures within four miles of any proposed new tower site, unless the applicant can show that some other distance is more reasonable, and outlining opportunities for shared use of existing facilities and the use of other pre-existing structures as a preferred alternative to new construction.

   (b)   An applicant intending to share use of an existing telecommunications tower or other structure shall be required to document the intent of the existing owner to share use. In the event of an application to share the use of an existing telecommunications tower does not increase the height of the telecommunications tower, the Planning Commission shall waive such requirements of the application required by this chapter as may be for good cause shown.

    (c)   Such shared use shall consist only of the minimum antenna array technologically required to provide service within the City, to the extent practicable, unless good cause is shown.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   The applicant must submit documentation justifying to the Planning Commission the total height of any telecommunications tower, facility and/or antenna and the basis therefor. Such justification shall be to provide service within the City, to the extent practicable, unless good cause is shown.

   (b)   Telecommunications towers shall be no higher than the minimum height necessary. Unless waived by the Planning Commission upon good cause shown, the maximum height shall be 110 feet, based on three co-located antenna arrays and ambient tree height of eighty feet.

   (c)   The maximum height of any telecommunications tower and attached antennas constructed after the effective date of this chapter shall not exceed that which shall permit operation without artificial lighting of any kind, in accordance with municipal, county, State, and/or any federal statute, code, rule or regulation.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by this chapter or other regulatory authority.

   (b)   Telecommunications towers shall be of a galvanized finish, or painted with a rust- preventive paint of an appropriate color to harmonize with the surroundings as approved by the Planning Commission, and shall be maintained in accordance with the requirements of this chapter.

   (c)   If lighting is required, applicant shall provide a detailed plan for sufficient lighting of as unobtrusive and inoffensive an effect as is permissible under State and Federal regulations, and an artist’s rendering or other visual representation showing the effect of light emanating from the site on neighboring habitable structures within 1,500 feet of all property lines of the parcel on which the wireless telecommunications facilities are located.

      (1)   Buffer plantings shall be located around the perimeter of the security fence as deemed appropriate by the Building Commissioner for proposed wireless telecommunication facilities. Buffer plantings shall be an evergreen screen that should consist of a hedge planted a maximum of three feet on center, or a row of evergreen trees planted a maximum of six feet on center or other screening determined to be appropriate by the Planning Commission.

      (2)   Existing vegetation, such as trees and shrubs, shall be preserved to the maximum extent possible.

(Ord. 2022-24. Passed 5-24-22.)

   All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner which prevents unauthorized access. Specifically as follows:

   (a)   All antennas, towers and other supporting structures, including guy wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or run into; and

   (b)   Transmitters and telecommunications control points must be installed such that they are readily accessible only to persons authorized to operate or service them.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   Wireless telecommunications and MWISP facilities shall contain a sign no larger than four square feet to provide adequate notification to persons in the immediate area of the presence of an antenna that has ten transmission capabilities.

   (b)   The sign shall contain the name(s) of the owner(s) and operator(s) of the antenna(s) as well as emergency phone number(s). The sign shall be located so as to be visible from the access point of the site and must identify the equipment shelter of the applicant.

   (c)   The sign shall not be lighted unless the Planning Commission shall have allowed such lighting or unless such lighting is required by applicable provisions of this Zoning Code. The sign shall be approved by the Planning Commission before installation. No other signage, including advertising, shall be permitted on any facilities, antennas, antenna supporting structures or antenna towers, unless otherwise required by law.

(Ord. 2022-24. Passed 5-24-22.)

   All proposed wireless telecommunications and MWISP facilities shall be set back from abutting parcels, recorded rights-of-way and road and street lines a distance sufficient to substantially contain on-site ice fall or debris from a tower or tower failure, and to preserve the privacy and sanctity of any adjoining properties.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   The Planning Commission may hire any consultant and/or expert necessary to assist the Planning Commission in reviewing and evaluating the application, including the construction and modification of the site, once permitted, and any requests for recertification.

   (b)   An applicant shall deposit with the City funds sufficient to reimburse the City for all reasonable costs of consultant and expert evaluation and consultation to the Planning Commission in connection with the review of any application. The initial deposit shall be seven thousand five hundred dollars ($7,500.00). These funds shall accompany the filing of an application and the City will maintain a separate escrow account for all such funds. The City, its consultants and/or experts shall bill or invoice the City no less frequently than monthly for its services in reviewing the application and performing its duties. If at any time during the review process this escrow account has a balance less than two thousand five hundred dollars ($2,500.00), applicant shall immediately, upon notification by the City, replenish said escrow account so that it has a balance of at least two thousand five hundred dollars ($2,500.00). Such additional escrow funds must be deposited with the City before any further action or consideration is taken on the application. In the event that the amount held in escrow by the City is more than the amount of the actual billing or invoicing at the conclusion of the review process, the difference shall be promptly refunded to the applicant.

   (c)   The total amount of the funds set forth in division (b) above may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed by the Planning Commission or its consultant/expert to complete the necessary review and analysis. Additional escrow funds, as required and requested by the City, shall be paid by the applicant.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   No person shall be permitted to site, place, build, construct or modify, or prepare any site for the placement or use of, wireless telecommunications and MWISP facilities as of the effective date of this chapter without having first obtained a special use permit for wireless telecommunications or MWISP facilities. Notwithstanding anything to the contrary in this section, no special use permit shall be required for those exceptions noted in the definition of wireless telecommunications facilities, such as those used exclusively for fire, police and other dispatch telecommunications or exclusively for private radio and television reception and private citizens bands, amateur radio and other similar telecommunications.

   (b)   Routine maintenance on existing wireless telecommunications and MWISP facilities, shall comply with the requirements of this chapter.

   (c)   All wireless telecommunications facilities existing on or before the effective date of this chapter shall be allowed to continue as they presently exist, provided however, that any modification to existing wireless telecommunications facilities must comply with this chapter.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   The Planning Commission will undertake a renew of an application pursuant to this Zoning Code in a timely fashion, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public’s interest and need to be involved, and the applicant’s desire for a timely resolution.

   (b)   After formally considering the application, the Planning Commission may approve, approve with conditions, or deny a special use permit. Its decision shall be in writing and shall be supported by substantial evidence contained in a written record. The burden of proof for the grant of the permit shall always be upon the applicant.

   (c)   If the Planning Commission approves the special use permit for wireless telecommunications facilities, then the applicant shall be notified of such approval in writing within ten calendar days of the Planning Commission’s action, and the special use permit shall be issued within thirty days after such approval. Except for necessary building permits, and subsequent certificates of compliance, once a special use permit has been granted hereunder, no additional permits or approvals from the Planning Commission, such as site plan or zoning approvals, shall be required for the wireless telecommunications facilities covered by the special use permit.

   (d)   If the Planning Commission denies the special use permit for wireless telecommunications or MWISP facilities, then the applicant shall be notified of such denial in writing within ten Calendar days of the Planning Commission’s action.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   For MWISP facilities, the holder of the special use permit must apply for re- inspection at any time between three months prior to the two year anniversary after the effective date of the special use permit and all subsequent two year anniversaries of the effective date of the original special use permit. For WTF, at any time between twelve months and six months prior to the five year anniversary date after the effect date of the special use permit and all subsequent fifth anniversaries of the effective date of the original special use permit for wireless telecommunications facilities, the holder of a special use permit for such wireless telecommunication facilities shall submit a signed written request to the Planning Commission for recertification. In the written request for recertification, the holder of such special use permit shall note the following:

      (1)   The name of the holder of the special use permit for the wireless telecommunications facilities;

       (2)   If applicable, the number or title of the special use permit;

       (3)   The date of the original granting of the special use permit;

       (4)   Whether the wireless telecommunications facilities have been moved, re- located, rebuilt, or otherwise modified since the issuance of the special use permit and if so, in what manner;

      (5)   If the wireless telecommunications facilities have been moved, re-located, rebuilt, or otherwise modified, then whether the Planning Commission approved such action, and under what terms and conditions, and whether those terms and conditions were complied with;

       (6)   Any requests for waivers or relief of any kind whatsoever from the requirements of this chapter and any requirements for a special use permit;

       (7)   That the wireless telecommunications facilities are in compliance with the special use permit and compliance with all applicable codes, ordinances, rules and regulations; and

      (8)   Recertification that the telecommunication tower and attachments both are designed and constructed (“as built”) and continue to meet all local, County, State and Federal structural requirements for loads, including wind and ice loads. Such recertification shall be by a qualified Ohio State licensed professional engineer, the cost of which shall be borne by the applicant.

   (b)   If, after such review, the Planning Commission determines that the permitted wireless telecommunications or MWISP facilities are in compliance with the special use permit and all applicable statutes, local laws, codes, rules and regulations, then the Planning Commission shall issue a recertification special use permit for the wireless telecommunications facilities, which may include any new provisions or conditions that are mutually agreed upon, or required by applicable statutes, ordinances, local ordinances, ordinances, codes, rules and regulations. If, after such review, the Planning Commission determines that the permitted wireless telecommunications facilities are not in compliance with the special use permit and all applicable statutes, local laws, codes, rules and regulations, then the Planning Commission may refuse to issue a recertification special use permit for the wireless telecommunications Facilities, and in such event such wireless telecommunications facilities shall not be used after the date that the applicant receives written notice of such decision by the Planning Commission. Any such decision shall be in writing and supported by substantial evidence contained in a written record.

   (c)   If the applicant has submitted all of the information requested by the Planning Commission and required by this chapter, and if the Planning Commission does not complete its review, as noted in division (b) of this section, prior to the five year anniversary date of the special use permit, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications or MWISP facilities shall receive an extension of the special use permit for up to six months, in order for the Planning Commission to complete its review.

   (d)   If the holder of a special use permit for wireless telecommunications or MWISP facilities does not submit a request for recertification of such special use permit within the time frame noted in subsection(a) of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary (second for MWISP) of the original granting of the special use permit, or subsequent fifth anniversaries (second for MWISP), unless the holder of the special use permit adequately demonstrates to the Planning Commission that circumstances prevented a timely recertification request. If the Planning Commission agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.

(Ord. 2022-24. Passed 5-24-22.)

   The extent and parameters of a special use permit for wireless telecommunications and MWISP facilities shall be as follows:

   (a)   Such special use permit shall be nonexclusive;

   (b)   Such special use permit shall not be assigned, transferred or conveyed without the express prior written notification of the Planning Commission; and

   (c)   Such special use permit may, following a hearing upon due prior notice to the applicant, be revoked, canceled, or terminated for a violation of the conditions and provisions of the special use permit for wireless telecommunications and MWISP facilities, or for a material violation of this chapter after prior written notice to the applicant and the holder of the special use permit.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   At the time that a person submits an application for a special use permit for a new telecommunications tower or MWISP, such person shall pay a non-refundable application fee of one hundred fifty dollars ($150.00) to the City. If the application is for a special use permit for collocating on an existing telecommunications tower or high structure, where no increase in height of the tower or structure is required, the non-refundable fee shall be two thousand dollars ($2,000.00).

   (b)   No application fee is required in order recertify a special use permit for wireless telecommunications facilities, unless there has been a material modification of the wireless telecommunications facilities since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the fees provided in division (a) shall apply.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall at its cost and expense, be jointly required to execute and file with the City a bond, or other form of security acceptable to the City as to type of security and the form and manner of execution, in an amount of at least seventy five thousand dollars ($75,000.00) and with such sureties as are deemed sufficient by the Planning Commission to assure the faithful performance of the terms and conditions of this chapter and conditions of any special use permit issued pursuant to this chapter.

   (b)   The full amount of the bond or security shall remain in full force and effect throughout the term of the special use permit and/or until the removal of the wireless telecommunications facilities, and any necessary site restoration is completed.

   (c)   The failure to pay any annual premium for the renewal of any such security shall be a violation of the provisions of the special use permit and shall entitle the Planning Commission to revoke the special use permit after prior written notice to the applicant and holder of the permit and after a hearing upon due prior notice to the applicant and holder of the special use permit.

(Ord. 2022-24. Passed 5-24-22.)

   In order to verify that the holder of a special use permit for wireless telecommunications facilities and any and all lessees, renters, and/or licensees of wireless telecommunications facilities, place and construct such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building, and Zoning Code, ordinances, ordinances and regulations and other applicable requirements, the City may inspect all facets of said permit holder’s, renter’s, lessee’s or licensee’s placement, construction, modification and maintenance of such facilities, including, but not limited to, towers, antennas and buildings or other structures constructed or located on the permitted site.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   A holder of a special use permit for wireless telecommunications and MWISP facilities shall secure and at all times maintain public liability insurance for bodily injury, property damage and personal injury, and umbrella insurance coverage, for the duration of the special use permit in amounts as set forth below:

      (1)   Commercial general liability covering bodily injury, property damage and personal injury: ten million dollars ($10,000,000.00) per occurrence/ ten million dollars ($10,000,000.00) aggregate;

      (2)   Automobile coverage: ten million dollars ($10,000,000.00) combined single limit; and

      (3)   Workers compensation and disability: statutory amounts.

   (b)   The commercial general liability insurance policy shall specifically include the City and its officers, employees, committee members, attorneys, agents and consultants as additional named insureds.

   (c)   The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the State of Ohio and with a Best’s rating of at least A.

   (d)   The insurance policies shall contain an endorsement obligating the insurance company to furnish the City with at least thirty days prior written notice in advance of the cancellation of the insurance.

   (e)   Renewal or replacement policies or certificates shall be delivered to the City at least fifteen days before the expiration of the insurance which such policies are to renew or replace.

   (f)   Before construction of a permitted wireless telecommunications or MWISP facilities are initiated, but in no case later than fifteen days after the grant of the special use permit, the holder of the special use permit shal1 deliver to the City a copy of each of the policies or certificates representing the insurance in the required amounts.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   Any application for Wireless Telecommunication or MWISP facilities that is proposed for City property pursuant to this chapter, shall contain a provision with respect to indemnification. Such provision shall require the applicant, to the extent permitted by the chapter, to at all times defend, indemnify, protect, save, hold harmless, and exempt the City, and its officers, employees, committee members, attorneys, agents, and consultants from any and all penalties, damages, costs, or charges arising out of any and all claims, suits, demands, causes of action or award of damages, whether compensatory or punitive, or expenses arising therefrom. With respect to the penalties, damages or charges referenced herein, reasonable attorneys’ fees, consultants’ fees, and expert witness fees are included in those costs that are recoverable by the City.

   (b)   Notwithstanding the requirements noted in division (a) above, an indemnification provision will not be required in those instances where the City itself applies for and secures a special use permit for wireless telecommunications or MWISP facilities.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   If wireless telecommunications or MWISP facilities are repaired, rebuilt, placed, moved, re-located, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter or of the special use permit, then the City shall notify the holder of the special use permit in writing of such violation. Such notice shall specify the nature of the violation or noncompliance and that the violations must be corrected within seven days of the date of the postmark of the notice, or of the date of personal service of the notice, whichever is earlier. Notwithstanding anything to the contrary in this division or any other section of this Zoning Code, if the violation causes, creates or presents an imminent danger or threat to the health or safety of lives or property, the City may, at its sole discretion, order the violation remedied within twenty-four hours.

   (b)   If within the period set forth in division (a) above the wireless telecommunications facilities are not brought into compliance with the provisions of this chapter, or of the special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications or MWISP facilities into compliance, then the City may revoke such special use permit for wireless telecommunications facilities, and shall notify the holder of the special use permit within forty-eight hours of such action.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   Under the following circumstances, the City may determine that the health, safety, and welfare interests of the City warrant and require the removal of wireless telecommunications facilities:

      (1)   Wireless telecommunications facilities with a permit have been abandoned (i.e. not used as wireless telecommunications facilities) for a period exceeding ninety consecutive days or a total of 180 days in any 365-day period, except for periods caused by force majeure or Acts of God, in which case, repair or removal shall commence within 90 days;

      (2)   Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard;

      (3)   Wireless telecommunications facilities have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required special use permit, or any other necessary authorization.

   (b)   If the City makes such a determination as noted in division (a) of this section, the City shall notify the holder of the special use permit for the wireless telecommunications facilities within forty-eight hours that said wireless telecommunications facilities are to be removed. The City Building Department may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.

   (c)   The holder of the special use permit, or its successors or assigns, shall dismantle and remove such wireless telecommunications facilities, and all associated structures and facilities, from the site and restore the site to as close to its original condition as is possible, such restoration being limited only by physical or commercial impracticability, within ninety days of receipt of written notice from the City. However, if the owner of the property upon which the wireless telecommunications facilities are located wishes to retain any access roadway to the wireless telecommunications facilities, the owner may do so with the approval of the Planning Commission.

   (d)   If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications facilities within ninety days after the permit holder has received notice, then the City may order officials or representatives of the City to remove the wireless telecommunications facilities at the sole expense of the owner or special use permit holder.

   (e)   If the City removes or causes to be removed, wireless telecommunications facilities, and the owner of the wireless telecommunications facilities does not claim and remove it from the site to a lawful location within ten days, then the city may take steps to declare the wireless telecommunications facilities abandoned, and sell them and their components.

   (f)   Notwithstanding anything in this section to the contrary, the City may approve a temporary use permit/agreement for the wireless telecommunications facilities, for no more ninety days, during which time a suitable plan for removal, conversion, or relocation of the affected wireless telecommunications facilities shall be developed by the holder of the special use permit, subject to the approval of the City, and an agreement to such plan shall be executed by the holder of the special use permit and the City. If such a plan is not developed, approved and executed within the ninety-day time period, then the City may take possession of and dispose of the affected wireless telecommunications facilities in the manner provided in this section.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   Any applicant desiring relief or exemption from any aspect or requirement of this chapter may request such from the Planning Commission, provided that the relief or exemption is contained in the original application for either a special use permit, or in the case of an existing or previously granted special use permit a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete, at the sole discretion of the Planning Commission. However, the burden of proving the need for the requested relief or exemption is solely on the applicant to prove to the satisfaction of the Planning Commission.

   (b)   The applicant shall bear all costs of the Planning Commission or the City in considering the request and the relief shall not be transferable to a new or different holder of the permit or owner of the tower or facilities without the specific written permission of the Planning Commission. Such permission shall not be unreasonably withheld or delayed.

   (c)   No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted the relief or exemption will have no significant effect on the health, safety and welfare of the City, its residents and other service providers.

(Ord. 2022-24. Passed 5-24-22.)

   (a)   To the extent that the holder of a special use permit for wireless telecommunications or MWISP facilities has not received relief, or is otherwise exempt, from appropriate State and/or Federal agency rules or regulations, then the holder of such a special use permit shall adhere to, and comply with, all applicable rules, regulations, standards, and provisions of any State or Federal agency, including, but not limited to, the FAA and the FCC. Specifically included in this requirement are any rules and regulations regarding height, lighting, security, electrical and RF emission standards.

   (b)   To the extent that applicable rules, regulations, standards, and provisions of any State or Federal agency, including but not limited to, the FAA and the FCC, and specifically including any rules and regulations regarding height, lighting, and security are changed and/or are modified during the duration of a special use permit for wireless telecommunications or MWISP facilities, then the holder of such a special use permit shall conform the permitted wireless telecommunications or MWISP facilities to the applicable changed and/or modified rule, regulation, standard, or provision within a maximum of twenty-four months of the effective date of the applicable changed and/or modified rule, regulation, standard, or provision, or sooner as may be required by the issuing entity.

(Ord. 2022-24. Passed 5-24-22.)

   Where this chapter differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by the County, State or Federal Government, the more restrictive or protective of the City and the public shall apply.

(Ord. 2022-24. Passed 5-24-22.)