The overall purpose of this subchapter is to protect the public health, safety, and general welfare while accommodating the telecommunication needs of residents and business. Specifically, this subchapter seeks to:

   (A)   Facilitate the provisions of wireless telecommunication services to the residents and businesses of the municipality in full compliance with the Federal Telecommunications Act of 1996;

   (B)   Minimize adverse visual effects of communication towers by requiring them to have minimal visual impact and by setting minimum standards for their design (including innovative camouflaging techniques), siting, screening and landscaping;

   (C)   Designate the appropriate zoning districts for wireless telecommunication facilities;

   (D)   Avoid potential danger to adjacent properties from tower failure through structural standards and setback requirements;

   (E)   Mitigate tower proliferation through tower sharing requirements (co-locations) for all new tower applicants and those existing towers that are physically capable of sharing;

   (F)   Establish the standards and criteria for evaluation of application for wireless telecommunications facilities and fair and reasonable procedures to process applications; and

   (G)   Provide for the removal of abandoned and unsafe wireless telecommunications towers and antennas.

(Ord. passed 10-30-06)

   Four types of wireless telecommunications facilities shall be permitted in the town:

   (A)   Communication towers. Only monopole communications towers shall be permitted, and no tower shall be approved unless the applicant demonstrates that the need for wireless telecommunications services that will be satisfied by constructing the tower cannot, for technological, legal, or economical reason, other than the financial circumstances of the applicant, be reasonably satisfied by using an existing or approved tower, or by using or constructing one or more building-mounted facilities, pole-mounted antennas, or disguised facilities.

   (B)   Building-mounted facilities. Wireless telecommunications facilities shall be permitted on existing buildings subject to the requirements of this subchapter, except that no building-mounted facility shall be approved unless the applicant demonstrates that the need for wireless telecommunications services that will be satisfied by means of the building-mounted facility cannot, for technological, legal or economical reasons, be reasonably satisfied by using an existing or approved tower, or by using or constructing one or more disguised facilities.

   (C)   Pole-mounted antennas. Pole-mounted antennas shall be permitted on existing poles or standards subject to the requirements of this subchapter, except that no pole-mounted antenna shall be approved unless the applicant demonstrates that the need for wireless telecommunication services that will be satisfied by means of the pole-mounted antenna cannot, for technological, legal or economical reason, be reasonably satisfied by using an existing or approved tower, or by using or constructing one or more disguised facilities.

   (D)   Disguised facilities. Disguised facilities shall be permitted subject to all applicable provisions of this subchapter except § 2505.

(Ord. passed 10-30-06)

   In addition to the items listed on the applicable land development project submission checklist, an application to construct or substantially modify a wireless telecommunications facility shall provide the following information.

   (A)   All facilities.

      (1)   Documentation by a qualified licensed engineer or other person qualified by education or experience to show why the proposed facility cannot, for technological, legal or economical reasons, be located on an existing or approved facility. The documentation should discuss the following factors:

         (a)   The proposed facility would cause unacceptable interference with the operation of an existing or planned facility or with other types of electronic facilities or equipment, or would be subject to unacceptable interference from other facilities or equipment, and that such interference cannot be prevented or eliminated at a reasonable cost.

         (b)   The proposed facility cannot be accommodated on an existing or approved tower due to structural deficiencies, and that such deficiencies cannot be eliminated at a reasonable cost.

         (c)   The proposed facility cannot be accommodated on an existing or approved tower or other structure because no other reasonably available tower or structure can accommodate the facility's antenna at the height necessary for the communication services to be offered.

         (d)   Other reasons that make it infeasible to locate the proposed wireless telecommunications facility on an existing or approved tower or other existing structure.

      (2)   A service area map depicting the territorial extent of the applicant's planned coverage, including any areas within the City of Newport and the Town of Portsmouth if the facility will be capable of providing wireless telecommunication services to customers in those municipalities. Such map shall contain or be accompanied by a graph or chart showing, with respect to the type of service for which the wireless telecommunications facility is designed:

         (a)   The percentage of the Town of Middletown covered by the proposed facility;

         (b)   The extent of any coverage in communities other than Middletown, shown on a radius map of coverage; and

         (c)   An estimate of the number of other similar facilities that will be needed to fully cover the Town of Middletown if the proposed facility is constructed.

      (3)   A description of all proposed equipment building or boxes, including proposed shielding and details of materials.

      (4)   A report from a licensed engineer affirming that the proposed wireless telecommunications facility will comply with applicable emission standards of the Federal Communications Commission, and that the installation of the facility will not interfere with public safety communications.

      (5)   Documentation by a licensed professional engineer of what steps the applicant has taken, or will take, to avoid interference with public safety telecommunication facilities.

      (6)   Inventory and master plan report. Each application for a wireless telecommunications facility shall include an inventory report of the applicant's existing or approved towers and antennas in Middletown and within one mile of the border of Newport or Portsmouth. This report shall become part of the public record and may be use by Town Board and official in connection with future applications from other applicants. The inventory report shall specify:

         (a)   The type, design, and location of each tower and antenna, including the longitude and latitude of each tower;

         (b)   The ability of each tower to accommodate additional antennas;

         (c)   Where applicable, the height of the support structures on which the applicant's existing antennas are located; and

         (d)   The applicant's master plan for establishing additional towers on Aquidneck Island during the next five years.

   (B)   Communication towers. In addition to the development plan requirements for all wireless telecommunications facilities set out in division (A), an application to construct or substantially modify a communications tower shall include:

      (1)   Proof of ownership of the site or of a contractual right to its long-term use, and evidence that necessary easements have been or will be acquired.

      (2)   A report from a licensed professional engineer showing the design of the tower, including a cross-section view and elevations and the description of the tower's capacity, including the number and type of antennas it can accommodate as well as the proposed location of all mounting positions for co-located antennas and the minimum separation distances between antennas.

      (3)   A scaled site plan, prepared by a licensed engineer, clearly indicating:

         (a)   The location, type and height of the proposed tower;

         (b)   The fall zone and setbacks;

         (c)   Other structures and uses or activities on the site and on all properties within 200 feet of the site perimeter;

         (d)   Adjacent roadways;

         (e)   Proposed means of access;

         (f)   Elevation drawings of the proposed tower and all other structures;

         (g)   Topography;

         (h)   Proposed parking area;

         (i)   The zoning classification of the site and of adjacent property on all sides of the site; and

         (j)   Other information deemed necessary by the Planning Department to assess compliance with this subchapter.

      (4)   Certification by a licensed structural engineer that the design of a new communications tower or substantial modification of an existing tower will comply with the latest version of the American Institute of Steel Construction Code Standards (TIA/EIA-22-F) and American Concrete Institute (ACI 318) Standards.

      (6)   A landscape plan showing specific landscape materials details of proposed fencing, including color.

      (7)   A bond as surety for the cost of removing an abandoned communications tower, as provided in § 2505(G). The bond shall be in an amount fixed by the Town Engineer after consultation with the applicant and others knowledgeable about demolition of such structures.

   (C)   Building-mounted facilities. In addition to the development plan requirements for all wireless telecommunications facilities set out in division (A), the following information shall be provided on or with the development plan for building-mounted facilities that do not qualify as disguised facilities under this subchapter.

      (1)   A plan, drawn to scale, showing where and how the proposed antenna will be affixed to a particular building or structure;

   (A)   Co-location. Communications towers shall be designed for and shall permit the co-location of future wireless telecommunications facilities. Each application for a new tower shall include a statement, to be separately signed by the owner of an authorized agent, acknowledging that the tower will be designed and constructed to accommodate the equipment of at least five competitive carriers, and agreeing to provide for the shared use of the tower at reasonable and prevailing market lease rates.

   (B)   Fall zone. Communications towers shall be located on the site so as to provide for a fall zone in which no structures may be placed except associated structures for wireless telecommunications equipment, storage sheds, garages, and other unpopulated buildings. The purpose of the fall zone is to safeguard citizens and property during hurricanes and other storms from the dangers of a falling or collapsing tower structures and windborne objects or debris from the structure. The fall zone shall consist of the area surrounding the tower calculated as follows:

      (1)   From the base of the tower toward the nearest lot line of any lot containing a single-family, two-family, or multifamily dwelling, a distance equal to 125% of the height of the tower;

      (2)   From the base of the tower toward any other lot line, a distance equal to 50% of the height of the tower, except that if any populated building is closer to the tower than the distance equal to the height of the tower, the fall zone shall be equal to 75% of the distance from the tower to the nearest such building. For purposes of the division, a POPULATED BUILDING means any building in which human activity is regularly carried on.

      (3)   Setbacks. Wireless telecommunications facilities shall meet the setback requirements for the district in which they are located. For purposed of this subchapter, all buildings and other structures for communications equipment shall be considered part of the principal use for setback requirements.

   (C)   Lot size. Telecommunications towers shall not be located on any lot less than 20,000 square feet in area, or the minimum lot size for the zoning district, whichever is greater.

   (D)   Height. Wireless telecommunications facilities shall not exceed the following height limitations:

      (1)   Communications towers. The maximum height of a tower shall be 160 feet, measured from the average existing level of the ground surrounding the tower and within ten feet thereof to the highest point of the tower, including any antenna or other appurtenances.

      (2)   The maximum height of a building-mounted or pole-mounted antenna shall be 20 feet above the highest point of the roof (excluding chimneys and other appurtenances) or of the pole.

      (3)   The maximum height of a disguised facility not located in an existing building shall be 60 feet.

   (E)   Lighting. Telecommunications towers and antennas shall not be illuminated and shall not display any lights unless:

      (1)   One or more lights are specifically required by the FAA or other governmental authority; and

      (2)   The requirement for lights cannot be eliminated by reducing the height of the tower and/or antenna to the minimum height at which its intended use is feasible.

   (F)   Signs. 

      (1)   Each telecommunications tower site shall display a non-illuminated identification sign containing the corporate name of the owner and an emergency telephone number. At the owner's option, the sign may also contain a corporate logo and/or a mailing address, but no other information or graphics. The sign shall be:

         (a)   Made of durable, graffiti-resistant material;

         (b)   Not greater than three square feet in area or four feet high;

         (c)   Posted in a place visible to the general public.

      (2)   No other signs shall be displayed on the tower or at the site unless expressly required by a federal or state agency.

   (G)   Accessory equipment structures. Accessory equipment structures at tower sites shall not contain more than 2,400 square feet of gross floor area for all accessory equipment for all carriers, or be more than eight feet in height. Accessory equipment structures may be partially or completely located underground, and underground space shall not be counted in determining the maximum size of the structure. No externally visible accessory equipment structures shall be allowed in connection with building-mounted facilities, disguised facilities, or pole-mounted antennas except as otherwise permitted by this subchapter.

   (H)   Aesthetics. The applicant shall successfully demonstrate to the satisfaction of the Board that the proposed telecommunications facility will have minimal visual impact. The term MINIMAL VISUAL IMPACT means that there are no other reasonably available sites in the town that will provide the same level of wireless telecommunications service with less visual impact than the proposed facility, as measured by the standards set forth in this section. The fact that another site would require more towers or other facilities to achieve the same level of service may be taken into consideration, but shall not be determinative if the other site would have less overall visual impact. In determining whether the minimal visual impact requirement has been satisfied, the Board shall consider, among other factors:

      (1)   The height of the proposed tower as compared to the height of other nearby structures, the elevation of the site, and the distance from which the tower would be observable from various locations in the town;

      (2)   The exterior components of building-mounted facilities shall be of a color that is identical to, or closely compatible with, the color of the building and shall be located on the building at the point of least visibility to persons on adjacent property, unless such location is shown to be impractical for substantial reasons.

      (3)   Pole-mounted antennas shall be of a color that is identical to, or closely compatible with, the color of the structure on which they are mounted.

      (4)   Telecommunication tower sites shall be landscaped with a buffer of plant materials that effectively screens the view of the base of the tower and any accessory equipment structures from adjacent property. Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible. In some cases, such as when towers are sited on large, wooded lots, natural growth around the property perimeter may be a sufficient buffer. In locations where the visual impact of the tower, particularly on residential lots, would be minimal, the landscaping requirements may be reduced or waived.

   (I)   Security. All wireless telecommunications facilities shall be protected against access by children and other unauthorized persons to the maximum extent reasonably possible for the type and location of the facility. Security measures shall include vandal-resistant design of accessory equipment structures.

      (1)   Telecommunications towers, including any guy wires and accessory equipment structures, shall be surrounded at a minimum distance of ten feet with opaque climb-resistant fencing eight feet high. Gates allowing access to the tower shall be of the same material and height as the fence and shall be equipped with strong weather-proof locks. Any ladder or other means of climbing to the tower shall be separately protected against unauthorized climbing by a lock or other means.

      (2)   Telecommunications equipment inside building-mounted facilities shall be designed and located to insure limited access for authorized persons only, such as by locating it in a separate lockable room, cage or box, and access to antennas attached to the roof of the building shall be through a lockable door.

      (3)   Telecommunications equipment inside disguised facilities in existing structures shall be disguised and located to insure limited access for authorized persons only, such as by locating it in a separate lockable room, cage or box.

(Ord. passed 10-30-06)

   (A)   Visual impact preview. Because aesthetics are a major concern relating to wireless telecommunications facilities, all applicants for a special use permit to construct a new telecommunications tower shall comply with the following visual impact requirements.

      (1)   Comparative height illustration. The purpose of this requirement is to show the relative height of a proposed telecommunications tower as compared to landmarks familiar to Middletown residents.

         (a)   Applications to construct or substantially modify a communications tower shall include an architectural drawing or scaled photo simulations showing the proposed tower as it would look if it were constructed on the same site with the World War I Memorial Tower in Miantonomi Park and the chapel tower at St. Georges's School. Each structure shall be drawn to scale and situate at a level that corresponds to the actual level of that structure as measured from sea level, so that the drawing or photo simulation will take into account the different elevations of land at the site of the proposed tower and at the site of the existing structures.

         (b)   A copy of the drawing required by division (A)(1)(a) shall be published in the newspaper advertisement with the notice of all public hearings in connection with the application and shall be made available to the public on request. In addition, an enlarged copy of this drawing, not less than six square feet in area, shall be on display at all public hearings and shall be kept at the Town Hall available for inspection until the conclusion of all hearings on the application.

      (2)   Crane demonstration. After publication of the newspaper notice of an application for a new telecommunications tower, but before the first public hearing on the applicant, the applicant shall arrange for the following demonstration:

         (a)   A crane shall be positioned as near as possible at the exact location of the proposed tower and extended to the height of the proposed tower for two consecutive days, including one weekend day, from 8:00 a.m. to 5:00 p.m., after the advertisement of the Zoning Board hearing has been advertised and before the hearing is held.

         (b)   In addition to the advertised notice of the Zoning Board hearing, the applicant shall publish a display advertisement, not less than eight column inches in size, in the same newspaper as the notice advertisement, stating the dates and times of the crane demonstration.

   (B)   Anti-proliferation requirement. No new telecommunications tower shall be recommended by the Planning Board unless the applicant demonstrates to the reasonable satisfaction of the Board that the proposed wireless telecommunications facility cannot be co-located on an existing tower or established as a building-mounted facility, pole-mounted antenna, or disguised facility.

   (C)   Certification of continued operation. On or before February 1 of each year the owner of a wireless telecommunications facility shall file a certification with the Planning Department as to the continued operation of the facility, including all co-located facilities. Failure to file the certification shall create a rebuttable presumption that the facility has been abandoned. Such certification shall be on a form provide by the Planning Department and shall contain, to the extent possible:

      (1)   An affirmation that each telecommunications tower and antenna in the facility is currently in operation or, if not, the owner's plans with respect to renewed operation or removal of the tower or antenna;

      (2)   A statement whether any tower or antenna is expected to cease operation within the next year;

      (3)   A current list of all tower user names, and the name and mailing address of an agent of each user authorized to receive communications from the town;

      (4)   A description of the insurance coverage on all facilities, including the name and mailing address of a claims agent for each insures; and

      (5)   Any other information which the Planning Department believes is relevant to monitor compliance with the provisions of this subchapter.

   (D)   Certification of continued structural integrity. Every five years, or within 60 days after a catastrophic act of nature or other emergency that might effect the structural integrity of the tower, the owner shall file with the Town Engineer a certification of continued structural integrity prepared and signed by a licensed engineer. The certification shall affirm that a thorough and complete inspection of the tower was conducted and that the tower and all accessory structures are and will continue to perform as originally designed.

   (E)   Insurance. Liability insurance in an amount not less than $1,000,000 shall be maintained by the owner and operator of a wireless telecommunications tower until the tower is dismantled and removed from the site. Failure to maintain insurance coverage shall continue a violation of this chapter and grounds for revocation of a permit.

   (F)   Performance bond. The owner or operator of a wireless telecommunications tower shall obtain and keep in force as long as the tower is located on the site a performance bond payable to the town in the amount of not less than $50,000, or such other greater amount as found by the Town Engineer to cover the estimated reasonable costs of removal of the tower, including direct and administrative costs associated with demolition, dismantling, removal and disposal of the tower by the town or its contractor, if the owner of operator fails to comply with the requirements of division (G).

   (G)   Abandonment. A wireless telecommunications facility shall be removed by the owner within 365 days after it ceases to be operated, unless at the time the owner has a signed agreement for the facility to be re-activated within an additional 60-day period. Upon removal the site shall be restored to its previous appearance and, where appropriate, re-vegetated to blend with the surrounding area. A facility not removed in accordance with this division shall be considered abandoned and may be removed by the town at the owner's expense.

(Ord. passed 10-30-06)

   An applicant for a wireless telecommunication facility, that qualifies as a disguised facility as defined in the subchapter, shall be subject to all applicable provisions of this subchapter except § 2505 and to the following requirements:

   (A)   Special use permit. The applicant shall obtain the development plan requirements and standards of development in §§ 2504 and 2505 and shall not be subject to development plan review under this chapter, provided that the following requirements are met in a special use permit for the facility under special use permits. In granting such a permit, the Zoning Board may attach one or more conditions under § 904. For disguised facilities located on existing buildings, such conditions may include:

      (1)   Limitations on the size, height, or shape of any antenna, component or accessory equipment visible from outside the building, in addition to the limitations imposed by this subchapter; and

      (2)   Reasonable requirements for painting, hiding, or otherwise screening any part of the facility from public view.

   (B)   Dimensional requirements. Disguised facilities of new construction shall meet all dimensional requirements of the district in which they are located, except that height limitations may be modified by the Zoning Board pursuant to the standards of § 902.

   (C)   Verification of status. The purpose of the following requirements is to ensure that a wireless telecommunications facility, established pursuant to this section, is a disguised facility as defined in this subchapter.

      (1)   Existing structures. An applicant for a disguised facility to be located in or on an existing structure shall submit, as part of the permit application, at least four color photographs of the structure containing or constituting the disguised facility taken within the month preceding the filing of the application. Such photographs shall be approximately eight by ten inches in size and shall show clearly each side or facet of the existing structure as it appears to observers located on adjacent property.

      (2)   New structures. An applicant for a disguised facility that will be a new structure shall submit, as part of the permit application:

         (a)   A site map showing the location of the proposed facility and all existing structures on the lot; and

         (b)   One or more sketches or drawings of the proposed facility, drawn to scale and showing details as they will appear to observers located on adjacent property.

      (3)   Approval of an application for a disguised facility shall be conditioned on submission to the Planning Department, within one month after completion of the facility, of one or more photographs of the completed facility. If the facility is located in or on an existing structure, this submission shall consist of a set of photographs corresponding in all respects to the photographs submitted as part of the permit application, except that the photographs required by this division shall be taken after completion of the facility. If the facility is a new structure, the photographs or photographs shall correspond as closely as reasonably possible to the sketches or drawings submitted with the application.

(Ord. passed 10-30-06)

   An additional antenna may be installed as a matter or right on a telecommunications tower that has been approved for co-location, but does not have the full number of antennas for which it was approved. A copy of the lease or other agreement by which the owner of the tower permits co-location shall be filed with the Planning Department within 30 days after it has been signed or before installing the additional antenna, whichever first occurs. Before the lease or agreement is filed it may be edited to block disclosure of financial or other sensitive information.

(Ord. passed 10-30-06)

   All construction and placement of wireless telecommunications facilities are subject to the provisions of this subchapter in addition to all other provisions of this chapter. In the event of conflict between a provision of this subchapter and any other provision of the this chapter, the provisions of this subchapter shall prevail.

(Ord. passed 10-30-06)