(a)

In deciding whether a permit for a special event should be denied for any reason specified in article IV, the zoning administrator shall ensure that, if the special event is conducted at all:

(1)

The hours of operation allowed shall be compatible with the uses adjacent to the activity.

(2)

The amount of noise generated shall not disrupt the activities of adjacent land uses.

(3)

The applicants shall guarantee that all litter generated by the special event be removed at no expense to the city.

(4)

The zoning administrator shall not grant the permit unless it finds that the parking generated by the event can be accommodated without undue disruption to or interference with the normal flow of traffic or with the right of adjacent and surrounding property owners.

(b)

In cases where it is deemed necessary, the zoning administrator may require the applicant to post a bond to ensure compliance with the conditions of the zoning permit.

(c)

If the permit applicant requests the city to provide extraordinary service or equipment, or if the city manager otherwise determines that extraordinary services or equipment should be provided for the public health or safety, the applicant shall be required to pay a fee sufficient to reimburse the city for the costs of these services. This requirement shall not apply if the event has been anticipated in the budget process and sufficient funds have been included in the budget to cover the costs incurred.

(a)

Places of worship. Places of worship are permitted in any zoning district in the City of New Bern. However, places of worship located in zoning classifications other than the city's C-1 and C-2 commercial districts shall meet the following requirements:

(1)

Height limitations of the zone in which it is located shall be observed; provided, however, the spire, belfry, or other similar architectural features are exempt.

(2)

The parking requirements of articles XVIII and XXI of this ordinance shall be observed.

(3)

Open space and planting requirements shall be in accordance with section 15-389 governing nonresidential developments.

(4)

Required setbacks shall be: front yard, 35 feet; side yards (each), 25 feet; rear yard, 25 feet. No parking shall be located in front yards. In side and rear yards, parking shall not be in any area required for a setback unless densely planted buffer strips or other fencing is installed to protect abutting property from noise, dust, glare of lights and other nuisances; then parking may be permitted, but no closer than ten feet to the property line.

(5)

Places of worship located within a residential zoning district shall be permitted a maximum sign surface area of 32 square feet. In the case of freestanding signs in a residential zoning district, said signs shall not exceed a height of ten feet. Places of worship found in a commercial zoning district shall be the same as prescribed in that particular zoning district as outlined in article XVII (Signs).

(6)

Places of worship shall install a semi-opaque screen, as defined in article XIX, section 15-365, along all property lines that abut residential properties.

(b)

Public and private schools. Public and private schools are permitted in any residential zoning district in the City of New Bern. However, the following requirements must be fulfilled:

(1)

All height limitations on the zoning district in which it is located shall be observed, provided that flagpoles, electronic gear, and mechanical appurtenances are exempt from the height restrictions.

(2)

In addition to the off-street parking requirements outlined in article XVIII of this ordinance, there shall be one off-street parking space of appropriate size provided for each bus to be used for the transportation of students to and from school and/or extracurricular activities.

(3)

Off-street loading facilities shall be provided for the aforementioned buses.

(4)

Off-street loading facilities shall be provided for private vehicles and be so designed that its use is convenient with points of ingress and egress on a major street.

(5)

No school building may be closer than 75 feet to any property line unless a Type "A," non-vegetative opaque screen as defined in section 15-364 is provided, in addition to the vegetative screen requirements contained in subsection 15-364(1), in which case said school building may be constructed no closer than 25 feet from a property line that does not abut a public street. For each foot in height that a school building exceeds 35 feet from the highest point of any rooftop appurtenances of the building, the minimum setback of 25 feet shall be increased by one foot from all property lines that do not abut a public street. If a residence exists on any adjacent lot, the minimum setback of 25 feet from the lot line that separates the school building from such residence shall be increased by one foot for each foot that the school building exceeds the roof height of the adjacent residence, excluding chimneys and any rooftop appurtenances. The increased setback requirement resulting from school building height or adjacent dwellings shall not be cumulative. Should both conditions exist, the minimum setback shall be the greater of the two.

(6)

Public or private schools located within a residential zoning district shall be permitted a maximum sign surface area of 32 square feet. Said signs shall also not exceed a height of ten feet. Public or private school signs in a commercial zoning district shall be the same as prescribed in that particular zoning district as outlined in article XVII (Signs).

(7)

That the site plan must be approved by the North Carolina board of public instruction, division of school planning in the case of public schools or in the case of private or parochial schools meet the requirements of the division of school planning.

(c)

Parks, playgrounds, and other recreational facilities of a noncommercial nature. Such uses are permitted in any zoning district in the City of New Bern under the following restrictions:

(1)

Off-street parking adequate to meet the needs of the people who will be using the facilities shall be provided. (See section 15-342(g).)

(2)

Parks, playgrounds, and other recreational facilities of a noncommercial nature located within a residential zoning district shall be allowed signage, provided such signage [shall] not exceed 32 square feet and, in the case of freestanding signs, shall not exceed a height of ten feet.

(d)

Child care homes. Child care homes are permitted in any residential zoning district in the City of New Bern. However, the following requirements must be met when said child care homes are placed in a residential zoning district:

(1)

Off-street parking adequate to meet the needs of the people who will be using the facilities shall be provided. (See section 15-342 (g).)

(2)

Child care homes located within a residential zoning district shall be allowed signage, provided such signage does not exceed a total sign surface area of 12 square feet and, in the case of freestanding signs, shall not exceed a height of ten feet.

(3)

Child care homes located within a residential zoning district shall meet the requirements of the zoning district in which they are placed in terms of setback, lot coverage, density, etc.

(e)

Homeless shelters. Shelters for the homeless are permitted in the C-1 central business district, C-3 commercial district, C-5 office and institutional district, I-1 industrial district, and I-2 industrial district in the city with the issuance of a special use permit. The following information should be submitted to the permit-issuing authority along with a completed special use permit application form:

(1)

A detailed layout of the building showing the location of all sleeping, bathing, mechanical, and cooking areas in conjunction with the submission of a detailed site plan;

(2)

Elevation drawings of the building if new construction is involved;

(3)

A management plan for the on-site supervision and maintenance of the facility to include the minimum number of person(s) or group(s) responsible for the operation of the facility, rules and procedures for operation, and hours of operation;

(4)

Documentation that the operator is a chartered, nonprofit corporation or governmental agency; and

(5)

A fire and safety plan which shall have been reviewed and approved by the city's fire prevention officer.

Additionally, homeless shelters shall be subject to the following zoning standards:

a.

The maximum occupancy for the shelter shall not exceed 20 persons;

b.

Off-street parking shall be determined as follows:

1.

One space for every supervisor on a given shift;

2.

One space for every five beds; and

c.

The property shall maintain a Type "A" buffer screen when it abuts a property with a residential use or a property located in a residential zoning district. All other screening shall be provided in accordance with article XIX of the land use ordinance.

(f)

Family care homes. A family care home shall be deemed a residential use of property for zoning purposes and shall be a permissible use in all districts where residential uses are allowed; provided, however, that a family care home shall be prohibited from locating within 2,500 feet of an existing family care home. The separation distance requirement between family care homes shall be measured from the closest point of each lot property line in a straight line. Family care homes existing as of February 24, 2009 shall be considered non-conforming situations subject to the provisions of article VIII to the extent that such homes do not comply with the separation distance established in this section.

(g)

Mobile food vendor. The zoning administrator, city manager, parks and recreation, or designee per the director of development services, may, at his or her discretion, issue temporary permits for a property to host mobile food vendors and other such temporary uses whose primary purpose is retail sales and services for the general public and for a period of time not to exceed one year per permit. If provided the following requirements shall be met:

(1)

The temporary use on the subject property is allowable according to the table of permissible uses.

(2)

The temporary use shall be in compliance with all other state and local requirements.

(3)

The use shall not hinder the functionality of the site requirements associated with existing uses on site and shall not otherwise impact public health and safety.

(4)

Unless otherwise approved by the authorizing party, no vehicles, equipment or other items associated with a permitted temporary use shall remain in any location, other than an approved commissary or permanent business location associated with the temporary use, when not in use.

(5)

Catering and deliveries to private events not serving the general public shall not be required to acquire a temporary zoning permit.

(6)

The owner of the subject property shall be responsible for ensuring the mobile food vendor remains compliant with the scope of the permit and all other state and local requirements.

(h)

Short-term rentals. Short-term rental uses shall be permitted in all zoning districts in the city under the following restrictions:

(1)

Short-term rentals are permitted in the I1 and I2 zoning districts upon the issuance of a special use permit allowing a residential use.

(2)

Off-street parking shall be determined as follows:

(a)

Partial house: two spaces for the owner(s) plus one off-street space per room rented. Parking spaces shall not be stacked or otherwise located such that any vehicle is denied immediate street access by another. Satellite parking as authorized by section 15-349 if this appendix shall be permitted provided that the lease, license or easement is made available during the entire term of the registration period.

(b)

Whole house: three spaces. Parking spaces may be stacked. Satellite parking as authorized by section 15-349 of this appendix shall be permitted provided that the lease, license or easement is made available during the entire term of the registration period.

(3)

Other requirements:

(a)

Each short-term rental shall have one (1) designated responsible party.

(b)

The use provisions of this section are not subject to variance by the board of adjustment.

(c)

The definitions of "family" shall not apply to short-term rentals.

(Ord. No. 1995-15, § 1, 5-23-95; Ord. No. 1995-16, § 2, 4-11-95; Ord. No. 2009-6, § 6, 2-24-09; Ord. No. 2009-7, § 1, 2-24-09; Ord. No. 16-047, §§ 56, 57, 9-13-16; Ord. No. 20-032, § 4, 8-11-20; Ord. No. 25-027, § 1, 6-10-25; Ord. No. 25-028, § 1, 6-10-25)

(a)

Unless otherwise specifically provided, or unless clearly required by the context, the words and phrases defined in this section shall have the meaning indicated below when used in this section:

(i)

Manufactured home. A dwelling unit, designed for use as a permanent residence, that is composed of one or more components, each of which was substantially assembled in a manufacturing plant and designed for installation and/or assembly on the building site.

(ii)

Manufactured home, class A. A dwelling unit that:

(1)

Is not constructed in accordance with the requirements of the North Carolina Uniform Residential Building Code as amended;

(2)

Is composed of two or more components, each of which was substantially assembled in a manufacturing plant and designed to be transported to the home site;

(3)

Meets or exceeds the construction standards of the US Department of Housing and Urban Development; and

(4)

Conforms to the following appearance criteria:

(1)

The manufactured home has a minimum width, as assembled on the site, of 20 feet;

(2)

The pitch of the manufactured home's roof has a minimum nominal vertical rise of three inches for each 12 inches of horizontal run and the roof is finished with asphalt or fiberglass shingles;

(3)

A continuous, permanent masonry curtain wall, unpierced except for required ventilation and access, is installed under the manufactured home;

(4)

The primary entrance has a landing which is no smaller than three feet by three feet in size; and

(5)

The tongue, axles, transporting lights, and towing apparatus are removed after placement on the lot and before occupancy.

Class A manufactured homes are only permitted in manufactured home parks and the A-5, R-6 and R-20 zoning districts.

(iii)

Manufactured home, class B. A manufactured home constructed after July 1, 1996 that meets or exceeds the construction standards by the US Department of Housing and Urban Development. A class B may not satisfy all the criteria necessary to qualify as a class A manufactured home, but a Class B manufactured home must have a continuous, permanent masonry curtain wall, unpierced except for required ventilation and access. Class B manufactured homes are only permitted in manufactured home parks and the A-5 and R-20 zoning districts.

(iv)

Manufactured home, class C. Any manufactured home that does not meet the definitional criteria of a class A manufactured home, a class B manufactured home, a modular home, or a travel trailer. Class C manufactured homes are permitted only in manufactured home parks.

(v)

Manufactured home park. A residential use in which three or more class A, B or C manufactured homes are located on a single lot or tract. See section 15-165 for specific provisions related to manufactured home parks. Manufactured home parks are only permitted in A-5 zoning districts, and by special use permit in the R-20 and C-3/C-3H zoning districts.

(vi)

Modular home. A dwelling unit constructed in accordance with the standards set forth in the NC State Building Code and composed of components substantially assembled in a manufacturing plant and transported to the building site for final assembly on a permanent foundation. Modular homes are allowed in all zoning districts except I-2.

(vii)

Travel trailer. A mobile structure with self-contained utilities, except for electricity, designed to be used for camping purposes only rather than as a permanent abode.

(b)

Unless hereinabove authorized, or hereinbelow authorized, it shall be unlawful for any person to place or maintain any Class A or Class B manufactured home used for living, sleeping, business or utility purposes on any premises in the city's zoning jurisdiction, other than in a manufactured home park duly permitted by this ordinance and maintained pursuant to the provisions of this section, except:

(i)

That one travel trailer not to exceed 30 feet in length may be parked or stored in the rear yard of any lot provided that no living quarters shall be maintained, nor any business conducted therein while such trailer is so parked or stored;

(ii)

That manufactured homes may be parked in manufactured home sales lots for the purpose of inspection or sale within a district in which such use is permitted provided that no living quarters or offices shall be maintained in any of the manufactured homes so parked;

(iii)

That manufactured homes used in connection with and by owners and/or employees of circuses, fairs, carnivals, duly authorized by the city and complying with the requirements of this ordinance may be permitted by a special 14-day permit issued by the zoning administrator. Such manufactured homes, if they are located on the same lot as the circus, or carnival, or fair, may be used temporarily for living quarters of the owners and/or employees of the circuses, fairs, or carnivals. If such manufactured homes are not located on the same lot, then they must be located in a manufactured home park;

(iv)

Notwithstanding any other provision of this ordinance, a Class A or Class B manufactured home, as defined in this ordinance, and in G. S. 160A-360 et seq., the standards established therein, and otherwise, by state law and regulations, may be placed and maintained upon a lot in accordance with the Table of Permissible Uses, found in article X, for use as a single family dwelling, under the same terms and conditions as if it were a house being constructed thereon, subject to the following conditions:

(A)

The installation and set-up shall comply with NC State Building Code;

(B)

The primary entrance, defined as an entrance leading to a living room, foyer, vestibule, kitchen or other common area, shall face on a public improved street;

(C)

No manufactured home shall be used solely for storage purposes;

(D)

No owner or manufactured home dealer may deliver, or cause anyone, including his or its set-up contractor to deliver, a manufactured home to a site within the planning jurisdiction of the city until the manufactured home dealer, or the set-up contractor, shall have in hand all zoning/building permits required by the land use ordinance to enable the manufactured home to be legally located on the proposed site. No manufactured home shall be located in the city's planning jurisdiction as herein provided until a building permit shall have been issued by the planning and inspections department of the city. The building permit shall authorize:

(i)

The location of said manufactured home on the proposed site;

(ii)

The installation of the required masonry piers;

(iii)

The installation of appropriate skirting; and

(iv)

The construction of the specific stairs, porches, entrance platforms, ramps, or other means of entrance and exit required by this ordinance.

No such building permit shall be issued for the location of a manufactured home, as hereinabove permitted, until the planning and inspections department shall have received a written commitment from the owner of the premises and from the applicant for the building permit (if different), in a manner and form satisfactory to the city attorney, that he/they will cause said manufactured home to be set up as required herein within 30 days on the subject premises on penalty of being required to remove the said manufactured home from the premises within 48 hours if the required setup shall not be accomplished. Further, no building permit shall be issued for the location of a manufactured home, as hereinabove permitted, until the planning and inspections department shall have received a written commitment from the owner of the premises or the applicant (if different), in manner and form satisfactory to the city attorney, that he/they will remove the piers and curtain walls from the premises within 30 days of removal of the manufactured home from said lot, should said manufactured home not be replaced by another within said period.

(Ord. No. 1999-36, § 3, 6-8-99; Ord. No. 22-051, § 38, 12-13-22)

Editor's note— Ord. No. 1999-36, § 3, adopted June 8, 1999 replaced appendix A, section 15-164 in its entirety. Former section 15-164 pertained to mobile homes outside of mobile home parks and derived from Ord. No. 1994-61, § 1, adopted Oct. 11, 1994 and from Ord. No. 1998-35, § 1, adopted May 12, 1998.

In districts in which this ordinance provides for mobile home parks, they shall be permitted provided that:

(a)

Plans for the proposed mobile home park shall be submitted to and approved by:

(1)

Craven County health department (if required);

(2)

Zoning administrator;

(3)

City engineer;

(4)

Chief building inspector;

(5)

New Bern planning and zoning board;

before the zoning administrator issues a permit for the construction of the park. The zoning administrator shall certify the authenticity of each approval before the permit is issued and shall keep copies of the mobile home park plan and certified approvals as a record.

(b)

Mobile home parks shall be located on a well-drained site which shall be properly graded to ensure rapid drainage and freedom from stagnant pools of water.

(c)

Mobile home parks shall contain at least two acres of land and shall be buffered from adjacent residential districts through the installation of a semi-opaque buffer screen as detailed in article XIX of this ordinance.

(d)

The number of mobile homes in the mobile home park shall not exceed the density of six units per gross acre of land contained within the park.

(e)

The minimum land area of any mobile home space shall be 3,500 square feet.

(f)

Each mobile home space must be at least 40 feet wide.

(g)

No mobile home nor appurtenance thereto shall occupy land within ten feet of the boundary of the mobile home space to which it is assigned. No permanent addition shall be constructed to any mobile home.

(h)

No mobile home space shall be within 50 feet of any public street right-of-way nor 30 feet of any property line.

(i)

No mobile home shall have direct access to a public street but shall abut upon and have access to a private drive, built to North Carolina DOT standards, with a width of not less than 20 feet, which shall have unobstructed access to a public right-of-way.

(j)

Automobile parking shall not be permitted except in the areas specified. One and one-half off-street and off-drive parking spaces shall be provided for each mobile home the park is designed to accommodate. In locating the parking spaces, consideration shall be given to vehicular and pedestrian safety and convenience of park residents. In no instance shall there be more than one parking space permitted on any mobile home space.

(k)

Each mobile home park shall provide the following minimum facilities on the site for the common use of all mobile home occupants:

(1)

Refuse collection as provided by local government with jurisdiction.

(2)

Approved water and sewer connections must be available at each mobile home space. Mobile homes shall be connected to the water and sewer lines.

(3)

Electrical connections (110-220 volts) shall be provided for each mobile home space. Service connections to each mobile home space shall be made in accordance with the National Electrical Code.

(4)

All driveways and walkways within the park shall be lighted at night with electric lamps of not less than 200 watts each, spaced at intervals of not more than 100 feet, or equivalent lighting.

(5)

Adequate and suitable recreation facilities shall be developed within the park consisting of at least 400 square feet of recreation area for each mobile home space in the park. Safety, convenience of the park residents, presence of existing vegetation, and good drainage are among the features that shall be considered in locating the recreational areas.

(a)

Satellite receive-only earth station antennas are permitted in any zoning classification within the City of New Bern's zoning jurisdiction as accessory uses clearly incidental to permitted uses.

(b)

Location and setbacks:

(1)

In areas which are classified as A-5, R-20, R-15, R-10, R-10A, R-10S, R-8, R-6 residential and C-5 and C-5A office and institutional, the following location and setback standards shall apply to the erection of satellite earth stations:

(i)

Satellite earth stations shall be prohibited from any front yard or side yards.

(ii)

Satellite earth stations shall be permitted in a rear yard, no closer to an interior property line than five feet, and no closer than 25 feet of a lot line which is a right-of-way line of a street.

(iii)

In case of residential planned unit developments, satellite earth stations may be located only behind residential structures in common areas which most nearly resemble rear yards.

(2)

Except as hereinbelow set forth in paragraph (g), in areas which are classified commercial and industrial, satellite earth stations may be installed subject to the controlling zoning district provisions regarding setbacks, except that satellite earth stations shall not be located within 35 feet to a lot line which is a right-of-way line of a street.

(c)

Height standards:

(i)

In all residential and office and institutional zoning classifications, the overall height of a satellite earth station shall not exceed 15 feet above the natural grade of the lot upon which such antenna is located.

(ii)

Except as hereinbelow set forth in paragraph (g), this height provision shall not apply to satellite earth stations installed in C-1, C-2, C-3, C-4, and commercial districts and I-1 and I-2 industrial districts. The height limitations of the controlling zoning classification shall apply.

(d)

Each residential use shall be limited to one satellite earth station.

(e)

Satellite earth stations shall be prohibited from rooftops of structures located in areas zoned R-20 residential district, R-15 residential district, R-10 residential district, R-10A residential district, R-10S residential district, R-8 residential district, R-6 residential district, C-5 office and institutional district, and C-5A office and institutional district (historical). This restriction shall not apply to areas which bear one of the several commercial and industrial zoning classifications, but, in those, no satellite earth station may be erected on the rooftop of a residential structure. When permitted, such rooftop constructions shall comply with all applicable building codes and the height limitations of the controlling zoning district.

(f)

Satellite earth stations shall be installed in compliance with the manufacturer's recommendations, unless such recommendations are found to be in conflict with local building codes. All required permits, including a certificate of zoning compliance, shall be obtained prior to the installation of a satellite earth station.

(g)

Notwithstanding any other provision herein, a satellite earth station installed as an accessory use to a residential structure located in a commercial or industrial zoning district shall meet the standards herein set forth for the several residential districts and office and institutional districts; provided, however, this paragraph shall not apply to a residential use located in a commercial type building.

(a)

Condominiums established in accordance with the provisions of G.S. ch. 47C may be erected in the City of New Bern's planning jurisdiction within any zoning classification so long as the use to be made of each individual unit in a particular condominium is permitted within that zoning classification in which the site lies.

(b)

Although condominium ownership does not involve ownership in fee simple of any portion of the land on which the condominium is located, area and dimensional requirements, including front, rear and side yards, if any are required by the zoning classification in which the site lies, shall apply. The development shall be platted so that it might be determined by the zoning administrator whether the structure housing one or more condominium units complies with the area and other dimensional requirements of the particular zoning classification in which the site lies.

(a)

Notwithstanding any other provision of this ordinance, the individual dwelling units of two-family and multifamily units which are, or have been, constructed in compliance with the terms of this ordinance, which qualify as single-family attached units, as the same are defined in this ordinance, may be conveyed as separate units so that the same might be individually owned. Each such conveyance shall consist of the unit, including the portion of the lot on which it is constructed, and a portion of the lot which lies between the unit and the front and back line of the lot on which the single-family attached units are constructed. In the case of end units, the conveyance shall include the remainder of said lot to the side lot line. There shall be no further division of such single-family attached lots by conveyance of a portion of same, or otherwise, and no additional construction shall be permitted on any lot, which, had it (conveyance or construction) occurred prior to division into single-family attached units, would have caused the structure of which said single-family attached unit is a part to be a violation of the dimensional requirements of this ordinance. Provided, however, nothing herein contained shall obviate the requirements that the subdivision of land as defined in article IV of this ordinance, be submitted to the city for approval as set forth in this ordinance.

(b)

The dimensional requirements, if any, including area, front, side and rear yard, shall be determined by the zoning classification applicable to the particular site. Said dimensional requirements shall be applied to the overall structure, as opposed to the individual single-family attached units, as if the individual units were going to be owner-occupied or rented, as opposed to being sold as single-family attached units.

(Ord. No. 16-047, § 58, 9-13-16)

Editor's note— Ord. No. 16-047, § 58, adopted September 13, 2016 repealed and replaced § 15-168 in its entirety. Former § 15-168 pertained to "Sale of townhouses," and was derived from Original Code.

(a)

Studies have shown that lowered property values and increased crime rates tend to accompany and are brought about by the concentration of adult establishments as defined herein. Regulation of these uses is necessary to insure that these effects do not contribute to the blighting of surrounding neighborhoods and to protect the integrity of the city's schools, churches, child care centers, parks and playgrounds which are typically areas in which juveniles congregate. It is the intent of this provision to establish reasonable regulations to prevent a concentration of adult establishments within the City of New Bern and to separate adult establishments from those sensitive uses listed below.

(b)

Adult establishments shall include an adult bookstore, adult motion picture theater, adult mini motion picture theater, adult live entertainment business or massage business as they are defined in G.S. 14-202.10. This definition shall be construed consistent with G.S. 14-202.10 et seq., but shall not include art studios which use nude models for the purpose of drawing, painting or sculpting.

(c)

Adult establishments. No adult establishment shall be located in the following areas:

(1)

Within a minimum distance of 2,000 feet from any residentially-zoned district;

(2)

Within a minimum distance of 2,000 feet from any child day care center, park, playground, public or private school, and/or church;

(3)

Within a minimum distance of 2,000 feet from any other adult establishment.

All measurements shall be made by drawing a straight line from the nearest point of the lot line where the proposed adult establishment is to be located to the nearest point of the lot line or boundary of the closest residentially zoned district, adult establishment, child day care center, park, playground, public or private school and/or church.

(d)

This ordinance does not conflict with North Carolina state laws regulating pornographic materials and activities; but rather it regulates the locations of adult establishments whose materials or activities are legal.

(Ord. No. 1994-60, § 1, 10-11-94)

Editor's note— In this section, subsection (A) of the original ordinance was redesignated as subsection (c), and the remaining, previously unnumbered, subsections were designated as subsections (a), (b) and (d) for clarity and consistency.

(a)

Purpose. The purpose of this section is to:

(1)

Minimize the impacts of telecommunications facilities on surrounding areas by establishing standards for location, structural integrity and compatibility;

(2)

Encourage the location and co-location of wireless facilities on existing structures thereby minimizing new visual, aesthetic and public safety impacts, and to reduce the need for additional wireless support structures. The following list indicates the city's preferences for wireless facility locations, in descending order of preference: (1) wireless facility co-location on existing wireless support structure or other existing structure; (2) concealed wireless facility on existing building/structure; (3) building-mounted wireless facilities or wireless support structure; (4) new concealed wireless facility; (5) new freestanding non-concealed wireless support structures (monopoles); and (6) new freestanding non-concealed towers (lattice-type). These preferences are intended as guidance for development of an application for telecommunications facilities;

(3)

Encourage coordination between suppliers of telecommunications services in the city and its planning jurisdiction;

(4)

Accommodate the growing demand for telecommunications services and the resulting need for telecommunications facilities;

(5)

Regulate the placement, construction or modification of wireless telecommunications facilities in accordance with all applicable federal and state laws;

(6)

Establish review procedures to ensure that applications for telecommunications facilities are reviewed and acted upon within a reasonable period of time;

(7)

Protect the unique aesthetics of the city while meeting the needs of its citizens and businesses to enjoy the benefits of wireless communications services; and

(8)

Encourage the use of existing buildings and structures as locations for telecommunications facilities infrastructure as a method to minimize the aesthetic impact of related infrastructure.

(b)

Definitions. Unless otherwise specifically provided, or unless clearly required by the context, the words and phrases defined in this ordinance shall have the meaning indicated below:

(1)

Abandonment: Cessation of use of a wireless support structure for wireless telecommunications activity for at least the minimum period of time specified under this ordinance.

(2)

Accessory Equipment: Any equipment serving or being used in conjunction with a wireless facility or wireless support structure. The term includes utility or transmission equipment, power supplies, generators, batteries, cables, equipment buildings, cabinets and storage sheds, shelters or similar structures.

(3)

Administrative Approval: Approval that the zoning administrator or designee is authorized to grant after administrative review.

(4)

Administrative Review: Non-discretionary evaluation of an application by the zoning administrator or designee. This process is not subject to a public hearing. The procedures for administrative review are established in subsection (d).

(5)

Antenna: Communications equipment that transmits, receives or transmits and receives electromagnetic radio signals used in the provision of all types of wireless communications services.

(6)

Base Station: A station at a specific site authorized to communicate with mobile stations, generally consisting of radio transceivers, antennas, coaxial cables, power supplies and other associated electronics.

(7)

Carrier on Wheels or Cell on Wheels (COW): A portable self-contained wireless facility that can be moved to a location and set up to provide wireless services on a temporary or emergency basis. A COW is normally vehicle-mounted and contains a telescoping boom as the antenna support structure.

(8)

Collocation: The placement or installation of wireless facilities on existing structures, including electrical transmission towers, water towers, buildings and other structures capable of structurally supporting the attachment of wireless facilities in compliance with applicable codes.

(9)

Concealed Wireless Facility: Any wireless facility that is integrated as an architectural feature of an existing structure or any new wireless support structure designed to camouflage or conceal the presence of antennas or towers so that the purpose of the facility or wireless support structure is not readily apparent to a casual observer.

(10)

Electrical Transmission Tower: An electrical transmission structure used to support high voltage overhead power lines. The term shall not include any utility pole.

(11)

Eligible Facilities Request: A request for modification of an existing wireless tower or base station that involves collocation of new transmission equipment or replacement of transmission equipment but does not include a substantial modification.

(12)

Equipment Compound: An area surrounding or near the base of a wireless support structure within which are located wireless facilities.

(13)

Existing Structure: A wireless support structure, erected prior to the application for an eligible facilities request, collocation or substantial modification under this ordinance, that is capable of supporting the attachment of wireless facilities. The term includes but is not limited to, electrical transmission towers, buildings and water towers. The term shall not include any utility pole.

(14)

Fall Zone: The area in which a wireless support structure may be expected to fall in the event of a structural failure, as measured by engineering standards.

(15)

Monopole: A single, freestanding pole-type structure supporting one or more antennas. A monopole is not a tower or a utility pole.

(16)

Ordinary Maintenance: Ensuring that wireless facilities and wireless support structures are kept in good operating condition. Ordinary maintenance includes inspections, testing and modifications that maintain functional capacity and structural integrity; for example, the strengthening of a wireless support structure's foundation or of the wireless support structure itself. Ordinary maintenance includes replacing antennas of a similar size, weight, shape and color and accessory equipment within an existing equipment compound and relocating the antennas to different height levels on an existing monopole or tower upon which they are currently located. Ordinary maintenance does not include substantial modifications.

(17)

Replacement Pole: Pole of equal proportions and of equal height or such other height that would not constitute a substantial modification to an existing structure in order to support wireless facilities or to accommodate collocation. Requires removal of the wireless support structure it replaces.

(18)

Substantial Modification: The mounting of a proposed wireless facility or wireless facilities on a wireless support structure that substantially changes the physical dimensions of the support structure. A mounting is presumed to be a substantial modification if it meets any one or more of the following criteria:

(i)

Increases the existing vertical height of the wireless support structure by (a) more than ten percent, or (b) the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater;

(ii)

Adds an appurtenance to the body of a wireless support structure that protrudes horizontally from the edge of the wireless support structure more than 20 feet, or more than the width of the wireless support structure at the level of the appurtenance, whichever is greater (except where necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable); or

(iii)

Increases the square footage of the existing equipment compound by more than 2,500 square feet.

(19)

Tower: A lattice-type structure, guyed or freestanding, that supports one or more antennas.

(20)

Utility Pole: A structure owned and/or operated by a public utility, municipality, electric membership corporation or rural electric cooperative that is designed specifically for and used to carry lines, cables, or wires for telephone, cable television, or electricity, or to provide lighting, metering, or to improve, supplement, or provide these services.

(21)

Water Tower: A water storage tank, or a standpipe or an elevated tank situated on a support structure, originally constructed for use as a reservoir or facility to store or deliver water.

(22)

Wireless Facility or Wireless Facilities: The set of equipment and network components, exclusive of the underlying wireless support structure, including, but not limited to, antennas, accessory equipment, transmitters, receivers, base stations, power supplies, cabling and associated equipment necessary to provide wireless telecommunications services.

(23)

Wireless Support Structure: A freestanding structure, such as a monopole or tower, designed to support wireless facilities. This definition does not include utility poles.

(c)

Approvals required for wireless facilities and wireless support structures.

(1)

Administrative review and approval. The following types of applications are subject to the review process as provided in subsection (d). No other type of zoning or site plan review is necessary:

(i)

New wireless support structures that are less than 60 feet in height, in any zoning district;

(ii)

New wireless support structures that are less than 200 feet in height, in any Industrial District;

(iii)

Concealed wireless facilities that are 60 feet or less in height, in any residential district;

(iv)

Concealed wireless facilities that are 150 feet or less in height, in any zoning district except residential districts;

(v)

Monopoles or replacement poles located on public property or within utility easements or rights-of-way, in any zoning district;

(vi)

COWs, in any zoning district, if the use of the COW is either not in response to a declaration of an emergency or disaster by the Governor, or will last in excess of 120 days;

(vii)

Substantial modifications;

(viii)

Collocations.

(2)

Special use permit. Any application for wireless facilities and/or wireless support structures not subject to administrative review and approval pursuant to this section 15-170 shall be permitted in any district upon the granting of a special permit from the board of adjustment in accordance with the standards for granting special use permits set forth in section 15-54.

(3)

Exempt from all approval processes. The following are exempt from all city zoning approval processes and requirements:

(i)

Removal or replacement of transmission equipment on an existing wireless tower or base station that does not result in a substantial modification as defined in this ordinance;

(ii)

Ordinary maintenance of existing wireless facilities and wireless support structures, as defined in subsection (b);

(iii)

Wireless facilities placed on utility poles; and

(iv)

COWs placed for a period of not more than 120 days at any location within city or after a declaration of an emergency or a disaster by the Governor.

(d)

Administrative review and approval process.

(1)

Content of application for new sites. All administrative review application packages must contain the following:

(i)

Completed administrative review application form signed by applicant.

(ii)

Copy of lease or letter of authorization from property owner evidencing applicant's authority to pursue application. Such submissions need not disclose financial lease terms.

(iii)

The names, addresses, and telephone numbers of all owners of other wireless support structures within a one mile radius of the proposed new tower site, including city-owned property.

(iv)

A description of the design plan proposed by the applicant. The applicant must identify the utilization of the most recent technological design as part of the design plan. The applicant must demonstrate why design alternatives indicated as higher priority in (a)(2) of this section cannot be utilized to accomplish the provision of the applicant's telecommunications services.

(v)

An affidavit with supporting documentation attesting to the fact that the applicant has evaluated the reasonable feasibility of collocating new antennas and equipment on existing wireless support structure or structures within the applicant's search ring. Collocation on an existing wireless support structure is not reasonably feasible if collocation is technically or commercially impractical or the owner of the existing wireless support structure is unwilling to enter into a contract for such use at fair market value.

(vi)

Written technical evidence from an engineer(s) that the proposed wireless facilities cannot be installed or collocated on another wireless support structure located within a one mile radius of the proposed tower site.

(vii)

Written, technical evidence from an engineer(s) that the proposed structure meets the standards set forth in subsection (f).

(viii)

Written, technical evidence from a qualified engineer(s) acceptable to the fire chief and the zoning administrator that the proposed site of the wireless facilities or wireless support structure does not pose a risk of explosion, fire, or other danger to life or property due to its proximity to volatile, flammable, explosive, or hazardous materials such as LP gas, propane, gasoline, natural gas, or corrosive or other dangerous chemicals.

(ix)

If applicable, an affidavit attesting to the fact that residential, historic, and/or designated scenic areas cannot be served from outside the area.

(x)

An affidavit attesting to the fact that the proposed height of a new wireless support structure or initial wireless facility placement or a proposed height increase of a substantially modified wireless support structure, or replacement wireless support structure is necessary to provide the applicant's designed service.

(xi)

Site plans detailing proposed improvements which complies with section 15-72 and 15-73. (Drawings and color photo simulations must depict improvements related to the applicable requirements including property boundaries, setbacks, topography, elevation sketch, and dimensions of improvements).

(xii)

Documentation from a licensed professional engineer of calculation of the fall zone and certification that the wireless support structure has sufficient structural integrity to accommodate the required number of additional users as required by subsection (f).

(2)

Content of application for other sites or facilities. All administrative review application packages must contain the following:

(i)

Completed administrative review application form signed by applicant.

(ii)

For collocations and substantial modifications, written verification from a licensed professional engineer certifying that the host support structure is structurally and mechanically capable of supporting the proposed additional antenna or configuration of antennas.

(iii)

For substantial modifications, drawings depicting the improvements along with their dimensions.

(3)

Fees. The total fees for reviewing an administrative review application shall (a) in the case of an application for collocation, a monopole or replacement pole, a concealed wireless facility, a non-exempt COW or a substantial modification, the lesser of the city's actual, direct costs (including third-party costs such as consultants fees) incurred for the review, or $500.00; and (b) in the case of an application for a new wireless support structure subject to administrative review and approval, the lesser of the city's actual, direct costs incurred for the review (including third-party costs such as consultants fees), or $1,500.00. Applications for new wireless support structures with proposed wireless facilities shall be considered together as one application requiring only a single application fee.

(4)

Procedure and timing.

(a)

Applications for collocation, monopole or replacement pole, concealed wireless facility, non-exempt COW or substantial modification. Within 30 days of the receipt of an application for a collocation, a monopole or replacement pole, a concealed wireless facility, a non-exempt COW or a substantial modification, the zoning administrator will:

(i)

Review the application for completeness in accordance with (d)(1) of this section. An application under this subsection is deemed to be complete unless the zoning administrator notifies the applicant in writing within ten calendar days of submission of the application of the specific deficiencies in the application which, if cured, would make the application complete. Upon receipt of a timely written notice that an application is deficient, an applicant may take ten calendar days from receiving such notice to cure the specific deficiencies. If the applicant cures the deficiencies within ten calendar days, the application shall be reviewed and processed within 30 calendar days from the initial date the application was received. If the applicant requires a period of time beyond ten calendar days to cure the specific deficiencies, the 30 calendar days deadline for review shall be extended by the same period of time;

(ii)

Make a final decision to approve the collocation application or approve or disapprove other applications under this subsection; and

(iii)

Advise the applicant in writing of its final decision. If the zoning administrator denies an application, it must provide written justification of the denial, which must be based on substantial evidence of inconsistencies between the application and section 15-170.

(iv)

Failure to issue a written decision within 30 calendar days shall constitute an approval of the application.

(b)

Applications for new wireless support structures that are subject to administrative review and approval. Within 45 calendar days of the receipt of an application for a new wireless support structure that is subject to administrative review and approval under section 15-170, the zoning administrator will:

(i)

Review the application for completeness in accordance with (d)(1) of this section. An application under this subsection is deemed to be complete unless the zoning administrator notifies the applicant in writing, within 15 calendar days of submission of the application of the specific deficiencies in the application which, if cured, would make the application complete. Upon receipt of a timely written notice that an application is deficient, an applicant may take 15 calendar days from receiving such notice to cure the specific deficiencies. If the applicant cures the deficiencies within 15 calendar days, the application shall be reviewed and processed within 45 calendar days from the initial date the application was received. If the applicant requires a period of time beyond 15 calendar days to cure the specific deficiencies, the 45 calendar days deadline for review shall be extended by the same period of time;

(ii)

Make a final decision to approve or disapprove the application; and

(iii)

Advise the applicant in writing of its final decision. If the zoning administrator denies an application, it must provide written justification of the denial, which must be based on substantial evidence of inconsistencies between the application and section 15-170.

(iv)

Failure to issue a written decision within 45 calendar days shall constitute an approval of the application.

(c)

Building permit. If a building permit is required it shall be issued following approval of the application under administrative review in accordance with the process and standards in section 15-170.

(e)

Special use permit process.

(1)

Any wireless facility or wireless support structures not meeting the requirements of subsection (c)(1) or (c)(3) above may be permitted in all zoning districts upon the granting of a special use permit, subject to:

(i)

The submission requirements of subsection (e)(2) below; and

(ii)

The applicable standards of subsection (f) below; and

(ii)

Any additional requirements placed on the special use permit pursuant to section 15-58.

(2)

Content of special permit application. All special permit application packages must contain the following:

(i)

Completed special permit application form signed by applicant;

(ii)

All information and documentation required by subsection (d)(1);

(iii)

Number of proposed antennas and their height above ground level, including the proposed placement of antennas on the wireless support structure;

(iv)

Line-of-sight diagram or photo simulation, showing the proposed wireless support structure set against the skyline and viewed from at least four directions within the surrounding areas;

(v)

A statement that the proposed wireless support structure will be made available for collocation to other service providers at commercially reasonable rates, provided space is available and consistent with section (f)(1)(a); and

(vi)

Notification of surrounding property owners and posting as required by Article VI of the land use ordinance.

(3)

Fees. The total fees for reviewing a special permit application shall be the lesser of the city's actual, direct costs (including third-party costs such as consultants fees) incurred for the review, or $3,000.00. Applications for new wireless support structures with proposed wireless facilities shall be considered together as one application requiring only a single application fee.

(4)

Procedure and timing. Within 150 calendar days of the receipt of an application under subsection (e) of this Ordinance, the zoning administrator will:

(i)

Complete the process for reviewing the application for conformity with ordinances applicable to special permits, including conducting a hearing in accordance with Article VI of the land use ordinance. An application under this subsection (e) is deemed to be complete unless the zoning administrator notifies the applicant in writing, within 30 calendar days of submission of the application of the specific deficiencies in the application which, if cured, would make the application complete. Upon receipt of a timely written notice that an application is deficient, an applicant may take 30 calendar days from receiving such notice to cure the specific deficiencies. If the applicant cures the deficiencies within 30 calendar days, the application shall be reviewed and processed within 150 calendar days from the initial date the application was received. If the applicant requires a period of time beyond 30 calendar days to cure the specific deficiencies, the 150 calendar days deadline for review shall be extended by the same period of time;

(ii)

Make a final decision to approve or disapprove the application; and

(iii)

Advise the applicant in writing of its final decision. If the zoning administrator denies an application, it must provide written justification of the denial.

(iv)

Failure to issue a written decision within 150 calendar days shall constitute an approval of the application.

(f)

General standards and design requirements.

(1)

Design.

(i)

Wireless support structures shall be subject to the following:

1.

Shall be engineered and constructed to accommodate a minimum number of collocations based upon their height:

(a)

Support structures 60 to 100 feet shall support at least two telecommunications providers;

(b)

Support structures greater than 100 feet but less than 150 shall support at least three telecommunications providers;

(c)

Support structures greater than 150 feet in height shall support at least four telecommunications providers.

2.

The equipment compound area surrounding the wireless support structure must be of sufficient size to accommodate accessory equipment for the appropriate number of telecommunications providers in accordance with subsection (e)(1)(a).

(ii)

Concealed wireless facilities shall be designed to accommodate the collocation of other antennas whenever economically and technically feasible. Antennas must be enclosed, camouflaged, screened, obscured or otherwise not readily apparent to a casual observer.

(iii)

Upon request of the applicant, the board of adjustment or zoning administrator may waive the requirement that new wireless support structures accommodate the collocation of other service providers if it finds that collocation at the site is not essential to the public interest, or that the construction of a shorter support structure with fewer antennas will promote community compatibility.

(iv)

A monopole or replacement pole shall be permitted within utility easements or rights-of-way, in accordance with the following requirements:

1.

The utility easement or right-of-way shall be a minimum of 100 feet in width.

2.

The easement or right-of-way shall contain overhead utility transmission and/or distribution structures that are 80 feet or greater in height.

3.

The height of the monopole or replacement pole may not exceed by more than 30 feet the height of existing utility support structures.

4.

Monopoles and the accessory equipment shall be set back a minimum of 15 feet from all boundaries of the easement or right-of-way.

5.

Single carrier monopoles less than 60 feet may be used within utility easements and rights-of-way due to the height restriction imposed by subsection (f)(1)(i) above.

6.

Poles that use the structure of an existing utility tower for support are permitted. Such poles may extend up to 20 feet above the height of the utility tower.

(2)

Setbacks. Unless otherwise stated herein, each wireless support structure shall be set back from all property lines a distance equal to its engineered fall zone.

(3)

Height. In residential districts, wireless support structures shall not exceed a height equal to 199 feet from the base of the structure to the top of the highest point, including appurtenances. Notwithstanding the foregoing, the board of adjustment shall have the authority to vary the foregoing height restriction upon the request of the applicant. With its waiver request the applicant shall submit such technical information or other justifications as are necessary to document the need for the additional height to the satisfaction of the board of adjustment.

(4)

Aesthetics.

(i)

Lighting and marking. Wireless facilities or wireless support structures shall not be lighted or marked unless required by the Federal Communications Commission (FCC) or the Federal Aviation Administration (FAA).

(ii)

Signage. Signs located at the wireless facility shall be limited to ownership and contact information, FCC antenna registration number (if required) and any other information as required by government regulation. Commercial advertising is strictly prohibited. Notwithstanding the foregoing, nothing in this section shall prohibit signage that is approved for other uses on property on which wireless facilities are located (e.g., approved signage at locations on which concealed facilities are located).

(5)

Accessory equipment. Accessory equipment, including any buildings, cabinets or shelters, shall be used only to house equipment and other supplies in support of the operation of the wireless facility or wireless support structure. Any equipment not used in direct support of such operation shall not be stored on the site.

(6)

Fencing. Ground mounted accessory equipment and wireless support structures shall be secured and enclosed with a fence not less than six feet in height as deemed appropriate by the board of adjustment or zoning administrator. The board of adjustment or zoning administrator may waive the requirement of this subsection if it is deemed that a fence is not appropriate or needed at the proposed location.

(7)

Landscaping. All landscaping on a parcel of land containing towers, antenna support structures, or telecommunications facilities shall be in accordance with article XIX. The board of adjustment may require landscaping in excess of the requirements of article XIX in order to enhance compatibility with adjacent land uses. Landscaping shall be installed on the outside of any fencing.

(g)

Miscellaneous provisions.

(1)

Abandonment and removal. If a wireless support structure is abandoned, and it remains abandoned for a period in excess of 12 consecutive months, the city may require that such wireless support structure be removed only after first providing written notice to the owner of the wireless support structure and giving the owner the opportunity to take such action(s) as may be necessary to reclaim the wireless support structure within 60 days of receipt of said written notice. In the event the owner of the wireless support structure fails to reclaim the wireless support structure within the 60-day period, the owner of the wireless support structure shall be required to remove the same within six months thereafter. The city shall ensure and enforce removal by means of its existing regulatory authority, with costs of removal charged to the owner.

(2)

Multiple uses on a single parcel or lot. Wireless facilities and wireless support structures may be located on a parcel containing another principal use on the same site or may be the principal use itself.

(3)

Duration of permits. All permits issued hereunder shall be conditioned on a requirement to construct the wireless facility or wireless support structure as the case may be within 24 months of the date of issuance of the permit. If the wireless facility or wireless support structure is not substantially complete within such 24-month period, the permit shall automatically become null and void.

(h)

Wireless facilities and wireless support structures in existence on the date of adoption of this ordinance.

(1)

Wireless facilities and wireless support structures that were legally permitted on or before the date this Ordinance was enacted shall be considered a permitted and lawful use.

(2)

Activities at non-conforming wireless support structures. Notwithstanding any provision of this section 15-170:

(i)

Ordinary maintenance may be performed on a non-conforming wireless support structure or wireless facility.

(ii)

Collocation of wireless facilities on an existing non-conforming wireless support structure shall not be construed as an expansion, enlargement or increase in intensity of a non-conforming structure and/or use and shall be permitted through the administrative approval process defined in subsection (d); provided that the collocation does not substantially modify the size of the equipment compound at that location or otherwise substantially modify the existing non-conformity.

(iii)

Substantial modifications may be made to non-conforming wireless support structures utilizing the special permit process defined in subsection (e).

(Ord. No. 1999-70, § 1, 11-23-99; Ord. No. 16-054, § 3, 10-11-16)

Editor's note— Ord. No. 16-054, § 3, adopted October 11, 2016, amended § 15-170 to read as set out herein. Previously § 15-170 was titled "Telecommunications towers."