Monett City Zoning Code
ARTICLE XI
Wireless Communications Facilities
Section 400.470 Purpose.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
A.
Statement Of Purpose. The general purpose of this Article XI ("Article") is to regulate the placement, construction, and modification of telecommunications wireless communications facilities to protect the health, safety, and welfare of the public, while at the same time not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in the City of Monett. Specifically, this Article is intended to:
1.
Provide for the appropriate location and development of telecommunications facilities and systems to serve the citizens and businesses of the City of Monett;
2.
Minimize adverse visual impacts of wireless communications facilities through careful design, siting, landscape screening, and innovative camouflaging techniques that provide predictability for nearby property owners and others that future uses will not materially alter such approved aesthetic protections without zoning hearing procedures and input from interested parties;
3.
Ensure that any new wireless communications facilities are located in an area compatible with the neighborhood or surrounding community to the extent possible; and
4.
Ensure that regulation of wireless communications facilities does not have the effect of prohibiting the provision of personal wireless services and does not unreasonably discriminate among functionally equivalent providers of such service and promotes the provision and availability of communication services within the City.
B.
Applicability; Preemption. Notwithstanding any ordinance to the contrary, the procedures set forth in this Article shall be applicable to all wireless communications facilities existing or installed, built or modified after the effective date of this Article to the fullest extent permitted by law. No provision of this Article shall apply to any circumstance in which such application shall be unlawful under superseding Federal or State law, and furthermore, if any Section, Subsection, sentence, clause, phrase, or portion of this Article is now or in the future superseded or preempted by State or Federal law or found by a court of competent jurisdiction to be unauthorized, such provision shall be automatically interpreted and applied as required by law.
Section 400.480 Definitions.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
As used in this Article, the following terms shall have the meanings and usages indicated:
Ground level shall be determined by the average elevation of the natural ground level within a radius of fifty (50) feet from the center location of measurement.
Any device that transmits and/or receives wireless radio waves for voice, data, or video communications purposes, including, but not limited to, television, AM/FM radio, texts, microwave, cellular telephone, broadband, internet, and similar forms of communications. The term shall exclude satellite earth station antenna less than two (2) meters in diameter [mounted within twelve (12) feet of the ground or building-mounted] and any receive-only home television antenna.
A utility pole that is owned and/or operated by the City but shall not include municipal electric utility distribution poles or facilities.
A structure for the protection and security of communications equipment associated with one (1) or more antennas where direct access to equipment is provided from the exterior and that has horizontal dimensions that do not exceed four (4) feet by six (6) feet, and vertical height that does not exceed six (6) feet.
To install, attach, construct, mount, maintain, modify, operate, or replace wireless communications facilities on or immediately adjacent to a wireless support structure or pole for the purpose of transmitting and/or receiving radio frequency signals whether or not there is an existing antenna or other attachment on the wireless support structure or pole, and/or to modify an existing wireless support structure for the purpose of installing, attaching, or mounting an antenna or other attachment on such structure all in compliance with applicable standards and laws.
The Zoning Inspector or his/her designee or official acting in such capacity.
Any free-standing, man-made structure designed for the support of antennas, the presence of which is camouflaged or concealed as an appropriately placed and designed architectural or natural feature. Depending on the location and type of disguise used, such concealment may require placement underground of the utilities leading to the structure. Such structures may include but are not limited to clock towers, campaniles, observation towers, light standards, flag poles, and artificial trees. For purposes of this definition, a structure "camouflaged or concealed as an appropriately placed and designed architectural or natural feature" shall mean:
It is consistent with and contributes to and does not detract from the character and property values and use of the area and neighborhood in which it is located;
It does not contain distorted proportions, size, or other features not typically found on the type of structure or feature to which it is designed to replicate;
It cannot be identified as a support structure by persons with reasonable sensibilities and knowledge;
Its equipment, accessory buildings, or other aspects or attachments relating to the disguised support structure are wholly concealed using a manner consistent with and typically associated with the architectural or natural structure or feature being replicated; and
It is of a height, design, and type that would ordinarily occur at the location and neighborhood selected.
Any structure capable of supporting wireless communications facilities (other than a support structure) in full conformance with the design and other requirements of this Article and is:
The Federal Aviation Administration.
A small wireless facility that meets the following requirements for an antenna and associated equipment:
No more than seven (7) cubic feet in volume [comprised of no more than twenty-seven (27) square feet of exterior surface area, excluding the surface width equal to the width of the existing structure or utility pole to which it is mounted, on an imaginary enclosure around the perimeter thereof, excluding cable or cable conduit of four (4) inches or less]. Volume shall be the measure of the exterior displacement of the antenna and associated equipment;
Located with the consent of the owner on an existing structure or utility pole, or concealed within or on a replacement utility pole if the appearance is not materially altered and the existing structure or utility pole is no more than five (5) feet taller;
Not exceeding six (6) feet above the top of an existing structure or utility pole for a total height not exceeding forty-five (45) feet [nor taller than more than six (6) feet above the average of similar poles within three hundred (300) feet].
The Federal Communications Commission.
The vertical distance measured from the average grade of the base of the structure at ground level to its highest point and including the main structure and all attachments thereto.
Any use authorized herein that exists in addition to the principal use of the property.
Any addition, deletion, or change, including the addition or replacement of antennas, or any change to a structure requiring a building permit or other governmental approval.
The area on, below, or above a public roadway, highway, street, public sidewalk, alley, or utility easement dedicated for compatible use. Right-of-way does not include any City-owned aerial lines.
A building for the protection and security of communications equipment associated with one (1) or more antennas and where access to equipment is gained from the interior of the building. Human occupancy for office or other uses or the storage of other materials and equipment not in direct support of the connected antenna is prohibited.
An antenna and associated equipment that meets the following:
An antenna of no more than three (3) cubic feet in volume; and
All other associated equipment, to the extent permitted by applicable law to be calculated, of cumulatively no more than twenty-eight (28) cubic feet in volume; provided, that no single piece of equipment on the utility pole shall exceed nine (9) cubic feet in volume, and no single piece of ground-mounted equipment shall exceed fifteen (15) cubic feet in volume.
A tower or disguised support structure.
A structure designed for the support of one (1) or more antennas and including guyed towers, self-supporting (lattice) towers, or monopoles, but not disguised support structures, utility poles, or buildings. The term shall also not include any support structure that includes attachments of sixty-five (65) feet or less in height owned and operated solely for use by an amateur radio operator licensed by the FCC.
A pole that is or may be used for wireline communications, lighting, traffic control, signage, or a similar function, which may also support a small wireless facility or fast-track.
The requisite agreement between a wireless communications services provider and the City which is submitted along with all applications for co-location or attachment of any device to City property or City utility pole.
Any antenna, small wireless facility, "fast-track," cabinet, shelter, support structure, and associated equipment, which in combination transmits and/or receives wireless radio waves for voice, data, or video communications purposes, including, but not limited to, television, AM/FM radio, texts, microwave, cellular telephone, broadband, internet, and similar forms of communications.
Any person or entity that provides wireless communications services, to also include any person or entity that builds or installs wireless communication or broadband transmission equipment, wireless facilities, wireless support structures, or utility poles and that is not a wireless services provider but is acting as an agent or a contractor for a wireless services provider or applicant for the application submitted to the City.
Section 400.490 Application Procedures; Timing.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
A.
Applications. Applications for permitted, administrative, or special uses pursuant to this Article shall be subject to the supplementary procedures in this Article. Applications shall be submitted to the City as a complete application on forms provided by the City. A complete application shall be an application submitted on the forms provided by the City, fully executed by the applicant, identifying the specific approval sought, and containing all attachments, fees as may be established to reimburse the City for its inspection and review costs, and information as required thereon or by the City, consistent with this Article. Applications shall be accompanied by an executed wireless communications agreement with the City, a building permit application and other applicable forms.
B.
Proof Of Owner Consent. Applications for permitted, administrative, or special uses pursuant to this Article shall be required to provide proof of landlord consent, which shall minimally include:
1.
Written consent to pursue the application by all fee simple owners of the underlying real estate (or where located in street right-of-way, the right-of-way owner thereof), including when the proposed location is also in a utility easement; and
2.
Written consent to pursue the application of the owner of the structure on which such facility is to be placed, if different than the applicant.
C.
Timing. Applications shall be decided upon within a reasonable time, subject further to State or Federal specific additional time requirements as may apply to the particular application.
Section 400.500 General Requirements.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
A.
Applicability. The requirements set forth in this Article shall be applicable to all wireless communications facilities within the City installed, built, or modified after the effective date of this Article to the full extent permitted by law. Such zoning review and approvals required in this Article shall be in addition to any other generally applicable permitting requirement, including applicable building, excavation, or other right-of-way permits.
1.
Principal Or Incidental Use. Towers may be either a principal or incidental use in all commercial and industrial zoning districts, subject to any applicable requirement relating to yard or setback. An incidental use subject to a leasehold interest of a person other than the lot owner may be approved for a tower only if the leasehold area separately meets all requirements for a separate subdivided lot, including dedicated access, parking, setbacks, and lot size, applicable to a primary use in the district in which the use is proposed as if it was a separate subdivided lot. No other district shall allow towers unless required by law. All other wireless facilities other than towers may be a principal or incidental use in all districts subject to the requirements herein.
2.
Building Codes, Safety Standards, And Zoning Compliance. Wireless communications facilities shall be constructed and maintained in compliance with all standards contained in applicable State and local building codes. A certified engineer's set of plans and a structural report shall be required for all applications to construct a new or modify, or any way alter, a support structure, a utility pole, or antenna, including small wireless facility and fast-track, unless waived upon application to the Director stating why such report and plans are unnecessary to the specific application and a determination in the discretion of the Director approving such statement. In addition to any other approvals required by this Article, no wireless communications facility or portion thereof shall be erected, replaced, or expanded prior to receipt of a certificate of zoning compliance, unless otherwise required by law, and the issuance of a building permit. For sites within the City right-of-way:
a.
The most restrictive adjacent underlying zoning district classification shall apply unless otherwise specifically zoned and designated on the Official Zoning Map;
b.
No application shall be submitted for permit approval without attaching the City's consent to use the right-of-way for the specific construction application, to the extent permitted by applicable law;
c.
Wireless communications facilities shall be installed and maintained as not to obstruct or hinder the usual travel or public safety on the right-of-way or obstruct the legal use of such right-of-way by authorities or authorized right-of-way users; and
3.
Regulatory Compliance. All wireless communications facilities shall meet or exceed current standards and regulations of the FAA, FCC, and any other local, State, or Federal agency with the authority to regulate wireless communications facilities, and including all required licenses, permits, and taxes applicable to such structure and/or modification. Should such standards or regulations be amended, then the owner shall bring such devices and structures into compliance with the revised standards or regulations within the time period mandated by the controlling agency. No approval for any placement, construction, or modification of any wireless communications facilities permitted by this Article shall be granted for any applicant having an uncured violation of this Article, any zoning regulation regarding the lot on which the structure is proposed, or any other governmental regulatory, licensing, or tax requirement applicable to such wireless communications facilities within the City unless preempted by applicable law.
4.
Security. All wireless communications facilities shall be protected from unauthorized access by appropriate security measures. A description of proposed security measures shall be provided as part of any application to install, build, alter, or modify wireless communications facilities. Additional measures may be required as a condition of the issuance of a building permit as deemed necessary by the Director or by the City Council in the case of a special use permit.
5.
Lighting. Antennas, small wireless facilities, fast-track, and support structures shall not be lighted unless required by the FAA or other State or Federal agency with authority to regulate, in which case a description of the required lighting scheme will be made a part of the application to install, build, alter, or modify the antenna, small wireless facilities, fast-track, or support structure. Lighting may also be approved as a consistent component of a disguised support structure. Equipment cabinets and shelters may have lighting only as approved by the Director or City Council on the approved site plan.
6.
Advertising. Except for a disguised support structure in the form of an otherwise lawfully permitted sign, the placement of advertising on wireless communications facilities is prohibited other than identification sign age or required safety signage of not greater than one (1) square foot on ground equipment.
7.
Design.
a.
Color. Subject to the requirements of the FAA or any applicable State or Federal agency, wireless communications facilities and attachments shall be painted a neutral color consistent with the natural or built environment of the site or an alternative painting scheme approved by the Director, or the City Council in the case of special use permits, consistent with the requirements of this Article. Unpainted galvanized steel support structures are not permitted.
b.
Ground Equipment. When authorized, equipment shelters or cabinets shall have an exterior finish compatible with the natural or built environment of the site and shall also comply with any design guidelines as may be applicable to the particular zoning district in which the facility is located. All equipment shall be either placed underground, contained in a single shelter or cabinet, or wholly concealed within a building or approved walled compound.
c.
Antenna Design. Unless the City consents otherwise, only one (1) wireless device may be attached to a streetlight bracket, no more than three (3) feet and no less than six (6) inches from the streetlight pole. The maximum weight of such device shall not exceed fifteen (15) pounds when installed on a streetlight arm. Antennas attached to a disguised support structure or tower shall be contained within the disguised support structure or within or mounted flush on the surface of the tower to which they are mounted. Antennas attached to an existing building, utility pole, or structure shall be of a color identical to the surface to which they are mounted. Antennas on the rooftop or attached to a building shall be screened or constructed and/or colored to match the structure to which they are attached. All antennas shall be designed to be disguised and maximally concealed on or within the support structure, or other structure. Exposed antennas on a crow's nest or other visible platforms or extensions are prohibited.
d.
Height. Support structures and antennas shall be no taller than necessary and shall not exceed the height limitation of any airport overlay zone as may be adopted by the City or other regulatory agency. Support structures may exceed underlying zoning district height restrictions for buildings and structures only where shown to be necessary, provided that no reasonable alternative exists. To the extent permitted by applicable law, district height restrictions shall be considered by the City in determining the appropriateness of the design and location of the application under the applicable standards for approval. No support structure shall be approved at a height exceeding one hundred twenty (120) feet AGL unless the applicant clearly demonstrates that such height is required for the proper function of the applicant's system.
e.
Monopole Design. All towers shall be of a monopole design. Lattice, guyed towers, or other non-monopole tower designs shall not be permitted.
f.
Compound Walls/Landscaping. All towers shall be surrounded by a minimum of a six (6) foot high, decorative wall constructed of brick, stone, or comparable masonry materials and a landscape strip of not less than ten (10) feet in width and planted with materials which will provide a visual barrier to a minimum height of six (6) feet. The landscape strip shall be exterior to any security wall. In lieu of the required wall and landscape strip, an alternative means of screening may be approved by the Director, or by the City Council in the case of a special use permit, upon demonstration by the applicant that an equivalent degree of visual screening will be achieved. Landscaping or other improvements may be required for disguised support structures if needed to implement an approved disguise.
g.
Setbacks. All support structures, including any portions of any wireless communications facilities thereon and associated structures, fences, and walls (except for parking associated with the wireless communications facility) shall be separated from any public right-of-way, sidewalk or street, alley, parking area, playground, or other building, and from the property line of any adjacent property at least a horizontal distance equal to the height of the support structure, including any portions of any wireless communications facilities thereon, whichever is greater.
h.
Storage. Vehicle or outdoor storage on any wireless communications facilities site is prohibited, unless otherwise permitted by the zoning district.
i.
Parking. On-site parking for periodic maintenance and service shall be provided at all support structure locations consistent with the underlying zoning district and the type of antenna or support structure approval granted.
j.
Decorative Poles. In districts where there are utility poles that were specifically designed for their aesthetic nature and compatibility with the built environment of that district, as determined by the City, such utility poles shall be deemed to be decorative utility poles. Such decorative utility poles, when authorized to be replaced by an applicant for wireless communications facilities pursuant to applicable law and in compliance with this Article and Code, shall only be replaced with a substantially similar decorative utility pole which matches the aesthetics and decorative elements of the original decorative utility pole being replaced. Such replacement expenses shall be borne wholly by the applicant seeking to place wireless communications facilities on such decorative utility pole.
8.
Public Property. Wireless communications facilities located on property owned, leased, or otherwise controlled by the City shall be subject to the requirements of this Article. A license or lease with the City authorizing the location of such wireless communications facilities shall be required for each site.
9.
As-Built Plans. Within sixty (60) days of completion of the initial construction and any additional construction, two (2) complete sets of plans drawn to scale and certified as accurately depicting the location of all wireless communications facilities constructed shall be furnished to the City.
10.
Historic Preservation; Thirty-Day Hearing Period. To the extent permitted by law, approval shall not be issued for any wireless communications facility that the Director or City Council determines would create a significant negative visual impact or otherwise have a significant negative impact on the historical character and quality of any property within a Historic Preservation District or such district as a whole. For co-location of any certified historic structure as defined in Section 253.545, RSMo., in addition to all other applicable time requirements, there shall be a thirty-day time period before approval of an application during which one (1) or more public hearings on co-location to a certified historic structure are held. The City may require reasonable, technically feasible and technological neutral design and concealment measures as a condition of approval of a wireless communications facility within a historic district or upon a historic structure.
11.
Radio Frequency Radiation. The facilities do not result in human exposure to radio frequency ("RF") radiation in excess of the applicable safety standards specified by the FCC or NESC, whichever is least.
12.
Lockout/Tagout Procedures. All wireless communications facilities and antennas which require electrical power shall be installed with disconnects/shutoffs allowing the City to disconnect power (including both ac and de battery power) to avoid RF exposure to its employees when working around such facilities. However, such shutoffs shall only be performed in coordination with the wireless provider's lock out and/or tag out procedures which are required with all wireless communications facilities.
13.
Work In Electrical Supply Space. For safety, no work shall be completed in the Supply Space on City poles without written approval of the City. Supply Space means that portion of City poles which is determined to be usable for electric power supply distributed or transmitted by the City and that is located between the topmost location of the communication worker safety zone and the top of the pole.
14.
All wireless communication service providers and wireless communications infrastructure providers shall provide and keep updated a contact number available 24/7 for use in the event of any emergency, and to assist the City in addressing violations, in a timely manner.
B.
Administration. The Director shall have the authority to establish forms and procedures consistent with this Article and applicable Federal, State, and local law to ensure compliance and to facilitate prompt review and administration of applications.
Section 400.505 Insurance, Bond, And Indemnification Requirements.
[Ord. No. 8977, 10-20-2023]
A.
Insurance Requirements. Each wireless communications provider shall provide, at its sole expense, and maintain during the term of the wireless communications agreement, permit, or anytime the wireless communications provider has facilities on City property or in the ROW, commercial general liability insurance with a reputable, qualified, and financially sound company licensed to do business in the State of Missouri, and unless otherwise approved by the City, with a rating by Best of not less than "A," that shall protect the wireless communications provider, the City, and the City's officials, officers, and employees, from claims which may arise from such use of the City's property and/or ROW, whether such operations are by the wireless communications provider, its officers, directors, employees, and agents, or any contractors or subcontractors, or any service providers or carriers of the wireless communications providers. This liability insurance, shall include, but shall not be limited to, protection from claims arising from bodily and personal injury and damage not to be limited to, protection against claims arising from bodily and personal injury and damage to property, resulting from all wireless communications provider's operations, products, services, or use of automobiles or construction equipment. The amount of insurance for single limit coverage applying to bodily and personal injury and property damage shall be in no event less than the individual and combined sovereign immunity limits established by Section 537.610, RSMo., for political subdivisions, provided that nothing herein shall be deemed to waive the City's municipal or sovereign immunity. Such insurance shall include an endorsement which states that the City is an additional insured with full and equivalent coverage as the insured under the insured's policy and stating that the policy shall not be cancelled or materially modified so as to be out of compliance with the requirements of this Section, or not renewed without thirty (30) days' advance written notice of such event being given to the City. If the wireless communications provider is self-insured, it shall provide the City proof of compliance regarding its ability to self-insure and proof of its ability to provide coverage in the above amounts. Prior to January l, 2025, the insurance requirements in this Section or otherwise shall not apply to a wireless communications provider to the extent and for such period as the wireless communications provider is exempted from such requirements pursuant to Section 67.1830(6)(a), RSMo., and has on file with the City Clerk an affidavit certifying that the wireless communications provider has twenty-five million dollars ($25,000,000.00) in net assets and does not have a history of permitting non-compliance with the City. Additionally, in accordance with Section 67.5121(3), RSMo., a self-insured wireless communications provider shall not be required to obtain insurance naming the City as an additional insured solely to the extent such wireless service provider is utilizing "small wireless facilities" as defined in the Uniform Small Wireless Facility Deployment Act on City property or within the ROW. These exceptions to the City's insurance requirements shall only apply as related to "small wireless facilities" and shall not otherwise alter the obligations of the wireless communications provider to provide appropriate insurance to the City for any other activities or operations. These exceptions to the City's insurance requirements shall only apply prior to July 1, 2025. Thereafter, all wireless communications providers shall be subject to the City's insurance requirements.
B.
Performance And Maintenance Bonds.
1.
Bond Required. Prior to any work, a wireless communications provider shall establish in the City's favor a performance and maintenance bond in an amount to be determined by the Director or the City to guarantee the restoration of the City property or ROW. The bond shall continue in full force and effect for a period of forty-eight (48) months following completion of any work on City property or in the ROW. The Director or City may waive this requirement when the work involves, as determined in the sole discretion of the Direction, no or only minor disruption or damage to the City property or ROW.
2.
Failure To Satisfactorily Complete Restoration. If a wireless communications provider fails to restore the City's property or ROW in a safe, timely, and competent manner or if the completed restorative work fails without remediation within the time period for the bond (as determined by the Director), then after notice and a reasonable opportunity to cure, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the wireless communications provider and the cost of completing work in or restoring the City's property or ROW, up to the full amount of the bond. The City may also recover against the bond any amount recoverable against a security fund or letter of credit where such amount exceeds that available under a security fund or letter of credit.
3.
Bond Terms. The bond shall be issued by a surety with an "A" or better rating of insurance in Best's Key Rating Guide, Property/Casualty Edition, shall be subject to the approval of the City's attorney and shall contain the following endorsement: "This bond may not be cancelled or allowed to lapse until sixty (60) days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew."
4.
Exception. The City may waive any and all requirements under this Subsection when deemed to be lawful and in the public interest. Further, in lieu of the bond required herein, the wireless communications provider may establish in the City's favor such other security as the Director or City may determine to be commensurate with the noted bonding requirements, including, but not limited to, an annual bond to be maintained in the minimum amount of twenty-five thousand dollars ($25,000.00). Until July l, 2025, the bond requirements in this Section or otherwise shall not apply to a wireless communications provider to the extent and for such period as the wireless communications provider is exempted from such requirements pursuant to Section 67.1830(6)(a), RSMo., and has on file with the City Clerk an affidavit certifying that the wireless communications provider has twenty-five million dollars ($25,000,000.00) in net assets and facts otherwise demonstrating the wireless communications provider is exempted, unless otherwise provided by a wireless communications agreement or permit or the City determines such exemption has not been adequately shown. Additionally, in accordance with Section 67.5121(4), RSMo., the bonds required for "small wireless facilities" as defined in the Uniform Small Wireless Facility Deployment Act shall not exceed one thousand five hundred dollars ($1,500.00) per "small wireless facility" or more than seventy-five thousand dollars ($75,000.00) for all "small wireless facilities" on City property or within the ROW. This exception to the City's bonding requirements shall only apply as related to such "small wireless facilities" and shall not otherwise alter the obligations of a wireless communications provider to provide appropriate bonds to the City for any other activities or operations. After July 1, 2025, such exceptions for "small wireless facilities" shall no longer apply.
C.
Indemnification. Any person performing excavation or any wireless communications provider as a condition of use of City property or the ROW shall at its sole cost and expense fully indemnify, protect, defend (with counsel acceptable to the City), and hold harmless the City, its municipal officials, officers, employees, and agents, from and against any and all claims, demands, suits, proceedings, and actions, liability, and judgment by other persons for damages, losses, costs, and expenses, including attorney fees, arising, directly or indirectly, in whole or in part, from the action or inaction of the wireless communication provider or the person performing such excavation, and the wireless communication provider's agents, representatives, employees, contractors, subcontractors, or any other person for whose acts the wireless communication provider or the person performing excavation may be liable, in constructing, operating, maintaining, repairing, restoring, or removing facilities or other structures, or use of City property or the ROW or the activities performed, or failed to be performed, by the wireless communications provider or the person performing excavation under this Article or applicable law, or otherwise, except to the extent arising from or caused by the sole gross negligence or willful misconduct of the City, its elected officials, officers, employees, agents, or contractors. Nothing herein shall be deemed to prevent the City, or any agent from participating in the defense of any litigation by their own counsel at their own expense. Such participation shall not under any circumstances relieve the person from the duty to defend against liability or its duty to pay any judgment entered against the City or its agents. This indemnification shall survive the expiration or termination of any wireless communications agreement, ROW use agreement, license, or permit. Provided, however, until July 1, 2025, and in accordance with Section 67.5121(2), RSMo., a wireless communications provider, for and in relation to the wireless communications provider's operation of a "small wireless facility" as defined in the Uniform Small Wireless Facility Deployment Act on City property or within the ROW, shall only indemnify and hold the City, its officers and employees, harmless against any damage or personal injury caused by the negligence of the wireless communications provider, its employees, agents, or contractors. After July l, 2025, this exception for "small wireless facilities" shall no longer apply and the City's indemnification requirements shall apply to all wireless communication providers operations utilizing City property or the ROW.
D.
Wireless Communications Providers Responsible For Costs. The wireless communications provider shall be responsible for all reasonable costs borne by the City that are directly associated with the wireless communication provider's installation, maintenance, repair, operation, use, and replacement of its facilities on City property or in the ROW that are not otherwise accounted for as part of the permitting and/or application fee established by the City with respect to a wireless communications property's request to place facilities on City property or in the ROW, to the extent permitted by law. All such costs shall be itemized, and the City's books and records related to these costs shall be made available for review upon request by the wireless communications property.
Section 400.510 Permitted Use.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
A.
Permitted Use. The placement of wireless communications facilities fully conforming with the general requirements in this Article are permitted in all zoning districts only as follows:
1.
Co-Locations On Existing Support Structures. The attachment of additional or replacement complying antennas or equipment to any existing fully conforming support structure or as otherwise authorized by State or Federal law where local zoning is preempted, provided that building permit requirements, national safety codes, and other applicable codes, including recognized accepted industry standards for structural, safety, capacity, reliability, and engineering are satisfied, including specifically the requirement to submit a certified structural engineering report as provided in Section 400.500.
2.
Antennas On High-Voltage Towers. Due to the increased voltages and risks, applications for antennas on high-voltage poles or towers will require additional review. The City encourages Wireless Communications Providers to avoid such placements. To that end, the City will assist the Wireless Communications Providers in finding a different location to avoid the high voltages or in some instances the City will place a separate pole for the Small Wireless Facility. However, in the event there is no other economically feasible alternative, the mounting of antennas on or within any existing high-voltage electric transmission pole or tower, shall not increase the height of such pole or tower by more than ten percent (10%), including the antenna, provided that all requirements of this Article and the underlying zoning ordinance are met, except minimum setbacks provided in this Article shall not apply. In addition, such Wireless Communications Provider shall assume all liabilities which may result due to the placement of the Small Wireless Facility on a high-voltage pole or tower and shall hold the City harmless.
3.
Antennas On Existing Buildings/Structures. In all districts, except not on single-family residential or two-family dwellings, the mounting of antennas on any existing and conforming building or structure (other than a support structure or utility pole), provided that the presence of the antenna and equipment is concealed by architectural elements or fully camouflaged or concealed by painting a color identical to the surface to which they are attached, and further, provided, that all requirements of this Article and the underlying zoning ordinance are met.
4.
Co-Location Of Small Wireless Facilities On Authority Poles.
a.
A wireless provider may co-locate small wireless facilities and install, maintain, modify, operate, and replace authority poles at heights below the height limitations outlined in this Subsection, which shall be a permitted use in all districts except single-family residential and historic districts, provided the proposed installation does not:
(1)
Materially interfere with the safe operation of traffic and control equipment or City-owned communications equipment;
(3)
Materially obstruct or hinder the usual travel or public safety on the rights-of-way;
(4)
Materially obstruct the legal use of the rights-of-way by the City, utility, or other third patty;
(6)
Fail to comply with applicable national safety codes, including recognized engineering standards for utility poles or support structures;
(7)
Fail to comply with the decorative pole replacement requirements herein;
(9)
Interfere or impair the operation of existing utility facilities, or City or third-party attachments.
b.
New, replacement, or modification of utility poles under the following circumstances shall not be considered a permitted use under this Section:
B.
Application Procedure. Application for a permitted use under this Section shall require submission of an application with proof of owner consent as required by Section 400.490 and an application fee of five hundred dollars ($500.00) as required to partly cover the City's actual costs, but not to exceed such amounts as may be limited by law. If the applicant is not a wireless services provider or wireless infrastructure provider, then the applicant must submit evidence of agreements or plans, or otherwise provide attestations to the same, which conclusively demonstrate to the City that the proposed site(s) will become operational and used by a wireless services provider within one (1) year of the permit's issuance date. For any application for a small wireless facility, the applicant shall provide an attestation that the proposed small wireless facility complies with the volumetric limitations as required to meet the definition of a small wireless facility in accordance with this Article and pursuant to the FCC regulations. The applicant shall also submit a certified structural analysis as required in the general requirements of this Article. Applications requesting any information that is prohibited by Federal or State law under the applicable circumstance shall be deemed inapplicable to the subject application. The Director shall issue a decision on the application for a permitted use within the time frame permitted by applicable law. A decision to deny an application shall be made in writing and state the specific reasons for the denial.
Section 400.520 Administrative Approval.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
A.
Administrative Approval. The placement of wireless communications facilities fully conforming with the general requirements in this Article are permitted in all zoning districts by administrative permit approved by the Director only as follows:
1.
Disguised Support Structures. The construction of a disguised support structure, provided that all related equipment shall be placed underground or concealed within the structure. Equipment may be placed in an appropriately concealed cabinet if the disguised support structure is incidental to an industrial, commercial, or other non-residential use and fits with the natural built environment or the disguised support structure. Any disguised support structure shall have as a condition of approval, unless expressly exempted in the approval, an obligation and corresponding covenant recorded on the property that runs with the land to the benefit of the City on behalf of the public, prohibiting modifications to the disguised support structure that eliminate or are materially detrimental to the disguise, unless such proposed modification is approved by a duly authorized zoning or special use approval approved. If the applicant does not wish to have such a covenant, the application shall not qualify for administrative permit approval, unless another mechanism is proposed and approved to ensure that the disguise is not subsequently eliminated or materially detrimentally altered. A disguised support structure proposed to be located within a public or private right-of-way, street, or other pedestrian or vehicular way may be exempted from the general requirements of this Article relating to parking/access and setbacks, unless determined by the Director as applicable to the specific location for safety reasons or other applicable reasons.
2.
Fast-Track Small Wireless Facilities.
a.
An application for a fast-track small wireless facility may be approved administratively by the Director, subject to meeting the following requirements:
(1)
General Requirements. The following requirements shall generally apply to all fast-track small wireless facilities located within the City:
(a)
The fast-track shall substantially match any current aesthetic or ornamental elements of the existing structure or utility pole, or otherwise be designed to maximally blend in to the built environment, with attention to the current uses within the district at the proposed site;
(b)
Any portion above the existing structure or utility pole shall be concealed and of the same dimensions and appearance so as to appear to be a natural extension of the existing structure or utility pole in lieu of an enclosure or concealment;
(c)
The fast-track equipment shall not emit noise audible from the building line of any residentially zoned or used property; and
(d)
Location, placement, and orientation of the fast-track shall, to the extent feasible, minimize the obstruction to, or visibility from, the closest adjacent properties unless otherwise required by the City for safety reasons.
(2)
Additional Requirements When Sited Near Pedestrian And Vehicle Ways. When a fast-track is proposed to be located on an existing structure or utility pole on or adjacent to public or private streets, sidewalks, or other pedestrian or vehicle ways:
(a)
Only one (1) fast-track shall be permitted per structure or utility pole in the rights-of-way, which may be waived by the Director upon good cause shown;
(b)
The height of all portions of the fast-track shall be located at least eight (8) feet above ground level;
(c)
No ground equipment shall be permitted; and
(d)
No portions of the fast-track shall extend horizontally from the surface of the utility pole or existing structure more than sixteen (16) inches.
(3)
Waiver For Good Cause Shown. Additionally, the Director may for good cause shown increase any one (1) or more of the maximum volumetric specifications from the definition of a fast-track by up to fifty percent (50%) if the applicant demonstrates that it:
b.
The City Council may further waive one (1) or more of the requirements found in the definition of "fast-track," or from Subsection (A)(2)(a)(1), General Requirements, or Subsection (A)(2)(a)(2), Additional Requirements When Sited Near Pedestrian And Vehicle Ways, of this Section, upon good cause shown by the applicant, and provided a showing that the waiver is the minimum necessary to accomplish the purposes of this Article. The burden of proof for any waiver shall be wholly on the applicant and must be shown by clear and convincing evidence.
B.
Application Procedures. Applications for administrative permits shall be made on the appropriate forms to the Director consistent with the requirements of this Article. Applications requesting any information that is prohibited by Federal or State law under the applicable circumstance shall be deemed inapplicable to the subject application.
1.
General Application Requirements. The applicant shall submit along with its completed application form:
a.
An application fee of five hundred dollars ($500.00) as required to partly cover the City's actual costs, but not to exceed such amounts as may be limited by law; any amount not used by the City shall be refunded to the applicant upon written request after a final decision;
b.
A detailed site plan, based on a closed boundary survey of the host parcel, shall be submitted indicating the exact location of the facility, all dimensions and orientations of the facility and associated equipment, in addition to all existing and proposed improvements, including buildings, drives, walkways, parking areas, and other structures, public rights-of-way, the zoning categories of the subject and adjoining properties, the location of and distance to off-site residential structures, required setbacks, required buffer and landscape areas, hydro logic features, and the coordinates and height AGL of the utility pole, or existing structure, if applicable;
c.
Specifications, dimensions, photos, or drawings of the completed installation;
e.
Certified structural analysis as required in the general requirements of this Article;
f.
All applicants, whether wireless services providers or wireless infrastructure providers, must submit evidence of agreements or plans, or otherwise provide attestations to the same, which conclusively demonstrate to the City that the proposed site(s) will become operational and used by a wireless services provider within one (1) year of the permit's issuance date; and
g.
All other information necessary to show compliance with the applicable requirements of this Article.
2.
Fast-Track — Specific Application Requirements. In addition to the above general application requirements, applications for a fast-track shall include the following:
a.
An attestation that the proposed fast-track meets the volumetric and other requirements to meet the definition of "fast-track" provided in this Article; and
b.
Information demonstrating that the applicant's proposed plans are in compliance with Section 67.5113.3(9), RSMo., to the satisfaction of the City.
3.
Review. The application shall be reviewed by the Director to determine compliance with the above standards, including specifically design, location, safety, and appearance requirements and transmit the application for review and comment by other departments and public agencies as may be affected by the proposed facility.
4.
Additional Information May Be Required. In reviewing an application, the Director may require the applicant to provide additional information, including technical studies, to the extent permitted by applicable law. An application shall not be deemed complete until satisfaction of all application requirements and submission of all requested information as provided herein.
5.
Decisions; Denials Required In Writing. The Director shall issue a decision on the permit within the time frame permitted by applicable law. The Director may deny the application or approve the application as submitted or with such modifications or conditions as are, in his/her judgment, reasonably necessary to protect the safety or general welfare of the citizens and property values consistent with and to effect the purposes of this Article. The Director may consider the purposes of this Article and the factors established herein for granting a special use permit as well as any other considerations consistent with this Article. A decision to deny an application shall be made in writing and state the specific reasons for the denial.
6.
Resubmission. In the event an application is denied by the City, the applicant may resubmit the application with such additional information as the City indicates is needed. Any such resubmission made within sixty (60) days of the initial denial shall be re-considered by the City and applicant shall not be assessed any additional application fee.
Section 400.530 Special Use Permit Required.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
A.
Special Use Permit Required. All proposals to construct or modify a wireless communications facility not permitted by Section 400.510 (Permitted Use) or Section 400.520 (Administrative Approval) or not fully complying with the general requirements of this Article shall be permitted only upon the approval of a special use perm it authorized consistent with Section 400.120 following a duly advertised public hearing by the Zoning and Planning Commission and City Council, subject to the following additional requirements, procedures, and limitations:
1.
Applications. Applications for special use permits shall be filed on such forms required by the Director and processed subject to the requirements of and in the manner established by applicable law, herein, and for special use permits in the Zoning Code and, in addition to such other requirements, shall be accompanied by a deposit of one thousand five hundred dollars ($1,500.00), to the extent permitted by applicable law to the specific wireless communications facility. Any amount not used by the City shall be refunded to the applicant upon written request after a final decision. Except as otherwise provided by law, no application for a special use permit under this Section shall be deemed complete until the applicant has paid all fees and deposits required under this Article, submitted certified engineering plans, and provided proof of owner consent as required by Section 400.490. Applications requesting any information that is prohibited by Federal or State law under the applicable circumstance shall be deemed inapplicable to the subject application.
2.
Decision And Findings Required. A decision shall be contemporaneously accompanied by substantial evidence supporting the decision, which shall be made a part of the written record of the meeting at which a final decision on the application is rendered. Evidence shall be under oath and may be submitted with the application or thereafter or presented during the public hearing by the applicant or others.
3.
Additional Minimum Requirements. No special use permit shall be issued unless the applicant has clearly demonstrated by substantial evidence that placement of wireless communications facilities pursuant to Section 400.510 (Permitted Use) or Section 400.520 (Administrative Approval) of this Article is not technologically or economically feasible. The City may consider current or emerging industry standards and practices, among other information, in determining feasibility.
4.
Findings Required. In addition to the determinations or limitations specified herein and by the applicable provisions of Section 400.120 of this Zoning Code for the consideration of special use permits, no special use permit shall be approved by the City Council unless findings in the affirmative are made that the following conditions exist:
a.
That the design of the wireless communications facilities, including ground layout, maximally reduces visual degradation and otherwise complies with provisions and intent of this Article;
b.
That the design is visually compatible with the area, will not distract from the view of the surrounding area, is maximally concealed or blended in with the environment, and will not adversely affect property values;
c.
That such special use shall not be inconsistent or adversely affect the regular permitted uses in the district in which the same is located; and
d.
That the proposal fully complies with applicable law, including the general requirements herein; provided, that an exception to the general requirements, other than building or safety code compliance, may be approved upon evidence that compliance is not feasible or is shown to be unreasonable under the specific circumstances shown.
Section 400.535 Annual Fee.
[Ord. No. 8977, 10-20-2023]
All wireless communication providers shall pay to City an annual fee for each small wireless facility in an amount established by the Director. Upon thirty (30) days notice to the City, wireless communication providers may remove their small wireless facilities. However no annual fee already paid to the City will be refunded, or prorated.
Section 400.540 Commercial Operation Of Unlawful Wireless Communications Facilities.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
Notwithstanding any right that may exist for a governmental entity to operate or construct wireless communications facilities, it shall be unlawful for any person to erect or operate for any private commercial purpose any wireless communications facilities in violation of any provision of this Article, regardless of whether such wireless communications facilities are located on land owned by a governmental entity.
Section 400.550 Removal Of Support Structure.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
Any wireless communications facility or portion thereof that is no longer in use for its original communications purpose shall be removed at the owner's expense. In the case of multiple operators sharing use of a single support structure, this provision shall not become effective until all users cease operations.
Section 400.560 Violations And Penalties.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
Except as may otherwise be provided by law, any person violating any provision in this Article shall be subject to Section 100.080.
Section 400.570 Appeals.
[Ord. No. 8650, 2-20-2019; Ord. No. 8977, 10-20-2023]
The procedures of Section 400.250 shall govern appeals by any aggrieved person of a final action of any City Officer, employee, board, commission, or the City Council that are claimed by an aggrieved person to be unlawful or an unconstitutional taking of property without compensation. To the fullest extent permitted by law, the review procedures of Section 400.250 shall be exhausted before any action may be filed in any court against the City or its officers, employees, boards, officials or commissions. Nothing herein shall be deemed to unlawfully limit any remedy that is required to be available as a matter of law.