Princeton City Zoning Code
ARTICLE 1389
Wireless Telecommunications Towers and Facilities
1389.01 FINDINGS.
(a) The Communications Act of 1954, as amended, by the Telecommunications Act of 1996 (the "Act") grants the Federal Communications Commission (FCC) exclusive jurisdiction over:
(1) The regulation of the environmental effects of radio frequency (RF) emissions from Telecommunications Facilities; and
(2) The regulation of radio signal interference among uses of the RF spectrum.
(b) The City's regulation of Towers and Telecommunications Facilities of the City will not have the effect of prohibiting any person from providing wireless telecommunications services in violation of the Act.
(Passed 1-13-03.)
1389.02 PURPOSES.
The general purpose of this article is to regulate the placement, construction, and modification of Towers and Telecommunications Facilities in order 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.
Specifically, the purposes of this article are:
(a) To regulate the location of Towers and Telecommunications Facilities in the City;
(b) To protect residential areas and land uses from potential adverse impact of Towers and Telecommunications Facilities;
(c) To minimize adverse visual impact of Towers and Telecommunications Facilities through careful design, siting, landscaping and innovative camouflaging techniques;
(d) To promote and encourage shared use/co-location of Towers and Antenna Support Structures as a primary option rather than construction of additional single-use Towers;
(e) To promote and encourage utilization of technological designs that will either eliminate or reduce the need for erection of new Tower structures to support antennas and Telecommunications Facilities;
(f) To avoid potential damage to property caused by Towers and Telecommunications Facilities by ensuring such structures are soundly and carefully designed, constructed, modified, maintained, and removed when no longer used or are determined to be structurally unsound; and
(g) To ensure that Towers and Telecommunications Facilities are compatible with surrounding land uses.
(Passed 1-13-03.)
1389.03 DEFINITIONS.
The following words, terms, and phrases, when used in this section, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
(a) “Antenna Support Structure” means any building or structure other than a Tower which can be used for location of Telecommunications Facilities.
(b) “Applicant” means any person that applies for a Tower Development Permit.
(c) “Application” means that process by which a Person or Owner submits a request to develop, construct, build, modify, or erect a Tower or Telecommunications Facility upon a parcel of land within the City. Application includes all written documentation, verbal statements, and representations in whatever form or forum made by an Applicant to the City concerning such a request.
(d) “Engineer” means any professional engineer licensed by the State of West Virginia, and/or any broadcast/telecast, RF, or electronics engineer duly qualified or certified, but not registered by the State of West Virginia.
(e) “Monopole” refers to any Tower consisting of a single pole, constructed without guyed wires and anchors.
(f) “Owner” means any person with fee title or a long-term (exceeding ten (10) years) leasehold to any parcel of land within the City who desires to develop or construct, build, modify, or erect a Tower upon such parcel of land.
(g) “Person” is any natural person, firm, partnership, association, corporation, company, or other legal entity, private or public, whether for profit or not for profit.
(h) “Telecommunication Facility” means any system or facility including cables, wires, lines, wave guides, antennas, and any other equipment or facilities associated with the transmission or reception of communications which a Person seeks to locate or has installed upon or near a Tower or Antenna Support Structure. This shall include, but not be limited to, any device, system or facility that transmits and/or receives electromagnetic signals for the purpose of transmitting analog or digital voice or data communications, microwave dishes, directional antennas such as panels, omnidirectional antennas such as whip antennas, horns, and other types of equipment for the transmission or receipt of such signals, equipment buildings, shelters, or cabinets, or other accessory development associated with the transmission or reception of communications. This shall also include any device intended for receiving or transmitting television, radio, digital, microwave, cellular, personal communication service (PCS), paging, Specialized Mobile Radio, Enhanced Specialized Mobile Radio, or similar forms of wireless electronic communication. However, Telecommunications Facilities shall not include:
(1) Any satellite earth station antenna two (2) meters in diameter or less which is located in an area zoned industrial or commercial; or
(2) Any satellite earth station antenna one (1) meter or less in diameter, regardless of zoning category.
(i) “Tower” means any pole, spire, structure, self-supporting lattice, guyed, or monopole structure constructed from grade, including lines, cables, wires, braces, and mast, which supports Telecommunications Facilities. A tower may include, but not be limited to, radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers, and personal communication service (PCS) towers. The term Tower, as applied in this section, shall not include amateur radio operators' equipment as licensed by the FCC.
(Passed 1-13-03.)
1389.04 DEVELOPMENT OF TOWERS; PERMITTED USES, RESTRICTIONS, AND APPLICATION REQUIREMENTS.
(a) A Tower shall be permitted use of land in zoning district I-Industrial. No person shall build, erect, or construct a Tower upon any parcel of land within a zoning district designated I- Industrial unless a permit shall have been issued by the City. Applications shall be made to the Code Enforcement Officer in the manner provided in this article.
(1) Towers in the I-Industrial district are exempt from the maximum height restrictions of that district. Towers shall be permitted to a height of one hundred (100) feet. Towers in excess of one hundred (100) feet are classified as a conditional use and must be approved by Common Council a conditional use.
(2) Towers are not a permitted use in any other zoning district within the City.
(b) An Application to develop a Tower or Telecommunication Facility shall include:
(1) The name, address, and telephone number of the Owner and lessee of the parcel of land upon which the Tower is situated. If the Applicant is not the Owner of the parcel of land upon which the Tower is situated, the written consent of the Owner shall be evidenced in the Application.
(2) The legal description, map/parcel number, and address of the parcel of land upon which the Tower is situated;
(3) The names, addresses, and telephone numbers of all Owners of either Tower or usable Antenna Support Structures within a one-half (½) mile radius of the proposed new Tower site, including City-owned property;
(4) A description of the design plan proposed by the Applicant in the City. Applicant must identify its utilization of the most recent technological design including microcell design as part of the design plan. The Applicant must demonstrate the need for Towers and why design alternatives, such as the use of microcell design, cannot be utilized to accomplish the provision of the Applicant's telecommunications services;
(5) An affidavit attesting to the fact that the Applicant made diligent, but unsuccessful, efforts to obtain permission to install or co-locate the Applicant's Telecommunications Facilities on City-owned Towers or usable Antenna Support Structures located within a one-half (½) mile radius of the proposed Tower site;
(6) An affidavit attesting to the fact that the Applicant made diligent, but unsuccessful, efforts to install or co-locate the Applicant's Telecommunications Facilities on Towers or usable Antenna Support Structures owned by other Persons located within a one-half (½) mile radius of the proposed Tower site;
(7) Written technical evidence from a duly qualified broadcast/telecast, RF, or electronics Engineer that the proposed Tower or Telecommunications Facilities cannot be installed or co-located on another Person's Tower or Usable Antenna Support Structures owned by other persons located within one-half (½) mile radius of the proposed Tower site;
(8) A written statement from a duly qualified broadcast/telecast, RF, or electronics Engineer that the construction and placement of the Tower will not interfere with public safety communications and the usual and customary transmission or reception of radio, television, or other communications services enjoyed by adjacent residential and non-residential properties;
(9) Written, technical evidence from an Engineer that the proposed structure meets the standards set forth in this article;
(10) Written, technical evidence from a West Virginia Registered Professional Engineer certifying compliance with the State Fire Code and Building Code of the City of Princeton that the proposed site of the Tower or Telecommunications Facilities does not pose a risk of explosion, fire, or other dangers to life or property due to its proximity to volatile, flammable, explosive, or hazardous materials such as L.P. gas, propane, gasoline, natural gas, or corrosive or other dangerous chemicals;
(11) In order to assist City staff in evaluating visual impact, the Applicant shall submit color photo simulations showing the proposed site of the Tower with a photo realistic representation of the proposed Tower as it would appear viewed from the closest residential property and from adjacent roadways.
(12) Elevation drawings of the proposed facility, and any other proposed structures, showing height above ground level. A landscaping plan indicating the proposed placement of the facility on the site; location of existing structures, trees, and other significant site features; the type and location of plants proposed to screen the facility; the method of fencing, the color of the structure, and the proposed lighting method.
(13) A narrative discussing the extent to which the proposed Telecommunication Facility and Tower would be visible from, or within, a designated scenic resource; the tree line elevation of vegetation within one hundred feet (100') of the facility; and the distance to the proposed facility from the designated scenic resources noted viewpoints. A written description of how the proposed facility fits into the Applicant's telecommunications network. This submission requirement does not require disclosure of confidential business information.
(14) Identification of districts, sites, buildings, structures, or objects, significant in American history, architecture, archaeology, engineering, or culture that are listed, or eligible for listing, in the National Register of Historic Places (see 16 U.S.C. 470w(5); 36 CFR 60 and 800).
(15) A signed statement stating that the Owner of the wireless Telecommunications Tower and his or her successors and assigns agree to:
A. Respond in a timely, comprehensive manner to a request for information from a potential co-location Applicant, in exchange for a reasonable fee not in excess of the actual cost of preparing a response;
B. Negotiate, in good faith, for shared use of the wireless Telecommunications Tower by third parties;
C. Allowed shared use of the wireless Telecommunications Tower if an Applicant agrees, in writing, to pay reasonable charges for co- location; and
D. Require no more than a reasonable charge for shared use, based on community rates and generally accepted accounting principles. This charge may include, but is not limited to, a pro rata share of the cost of site selection, planning project administration, land costs, site design, construction, financing, return on equity, depreciation, and all of return on equity, depreciation, and all of the costs of adapting the Tower or equipment to accommodate a shared user without causing electromagnetic interference. The amortization of the above costs by the facility Owner shall be accomplished at a reasonable rate over the useful life span of the Tower.
(16) A form of surety approved by the City to pay for the costs of removing the Tower if it is abandoned.
(17) The Act gives the FCC sole jurisdiction of the field of regulation of First Request for Production emissions and does not allow the City to condition or deny on the basis of RF impacts the approval of any Telecommunications Facilities (whether mounted on Towers or Antenna Support Structures) which meet FCC standards. In order to provide information to its citizens, the City shall make available, upon request, copies of ongoing FCC information and First Request for Production emission standards for Telecommunications Facilities transmitting from Towers or Antenna Support Structures. Applicants shall be required to submit information on the proposed power density of the proposed Telecommunications Facilities and demonstrate how this meets FCC standards.
(18) A copy of the Applicant's FCC license, or, if the Applicant is not an FCC license holder, a copy of at least one letter of commitment from an FCC license holder to locate at least one (1) Telecommunication Facility on the Applicant's Tower.
(19) A letter from the Owner of the property attesting that the property used as a Telecommunication Facility will be maintained, and the site and structures will be in good condition and free from trash, outdoor storage, weeds, and other debris.
(20) The application shall be accompanied with an non-refundable application fee in the amount of one thousand five hundred dollars ($1,500).
(21) The application shall be accompanied by payment of eight thousand five hundred dollars ($8,500) to the City of Princeton to be deposited in an escrow account by the Recorder-Treasurer for consulting costs in evaluating the application. Such consultants as the City may contract with, or employ, to evaluate an application will submit itemized invoices for specified services rendered and time spent, which will be paid from the escrow amount upon approval of the Chief, Code Enforcement Department, and the Recorder- Treasurer. Upon issuance of a permit, all monies remaining in the escrow account shall be returned to the applicant. In the event approved costs leave the escrow account with a balance of $2,500 or less, the applicant shall be so notified and required to remit to that escrow account, upon written request of the Recorder-Treasurer within seven (7) days, not less than $3,000 or more than $6,000 to complete the review process.
(c) Upon receipt of an Application, application fee, and any evaluation fee to be set by the Code Enforcement Department, the Code Enforcement Department shall provide the Applicant with a dated receipt. Within thirty (30) working days of the receipt, the Code Enforcement Department shall review the Application and determine if the Application meets the submission requirements. If complete, the Department will notify the Applicant. The Department may deny an Application on the basis that the Applicant has not satisfactorily supplied the information required in this Subsection. Complete Applications shall be reviewed by the City in a prompt manner and all decisions shall be supported, in writing, setting forth the reasons for approval or denial.
(Passed 1-13-03.)
1389.05 SETBACKS.
(a) The setback requirements of the applicable zoning districts shall not apply to Towers or Telecommunications Facilities. Instead, all self-supporting Towers and Telecommunications Facilities shall be set back from all lot lines a distance equal to fifty (50) percent of the height of the Tower and Telecommunications Facilities. All guyed Towers and Telecommunications Facilities shall be set back from all lot lines a distance equal to eighty (80) percent of the height of the Tower and Telecommunications Facilities.
(b) Setback requirements for Towers shall be measured from the base of the Towers to the property line of the parcel of land on which it is located.
(c) No wires, cables, braces, or any part of any Tower or Telecommunications Facility may, in anyway, interfere with pedestrian or vehicular traffic or be placed on or be located above any right-of-way.
(Passed 1-13-03.)
1389.06 STRUCTURAL REQUIREMENTS.
All Towers must be designed and certified by a West Virginia Registered Professional Engineer to be structurally sound and, at minimum, in conformance with the Building Code and any other standards outlined in this Ordinance. All Towers in operation shall be fixed to land.
(Passed 1-13-03.)
1389.07 SEPARATION REQUIREMENTS.
For the purpose of this section, the separation distances between Towers shall be measured by drawing or following a straight line between the base of the existing or approved structure and the proposed base, pursuant to a site plan of the proposed Tower. The minimum Tower separation distances from other Towers shall be calculated and applied irrespective of City jurisdictional boundaries.
(a) Proposed Towers must meet the following minimum separation requirements from existing Towers or Towers which have a permit but are not yet constructed at the time a permit is granted pursuant to this Code.
(1) Monopole Tower structures shall be separated from all other Towers, whether Monopole, self-supporting lattice, or guyed by a minimum of seven hundred fifty (750) feet;
(2) Self-supporting lattice or guyed Tower structures shall be separated from all other self-supporting or guyed Towers by a minimum of fifteen hundred (1500) feet;
(3) Self-supporting lattice or guyed Tower structures shall be separated from all monopole Towers by a minimum of seven hundred fifty (750) feet.
(Passed 1-13-03.)
1389.08 METHOD OF DETERMINING TOWER HEIGHT.
Measurement of Tower height for the purpose of determining compliance with all requirements of this section shall include the Tower structure itself, the base pad, and any other Telecommunications Facilities attached thereto which extend more than twenty (2) feet over the top of the Tower structure itself. Tower height shall be measured from grade.
(Passed 1-13-03.)
1389.09 ILLUMINATION.
Towers shall not be artificially lighted except as required by the Federal Aviation Administration (FAA). Upon commencement of construction of a Tower, in cases where there are residential uses located within a distance which is three hundred (300) percent of the height of the Tower from the Tower and where required by federal law, dual mode lighting shall be requested from the FAA.
(Passed 1-13-03.)
1389.10 MODIFICATION OF TOWERS.
(a) A Tower existing prior to the effective date of this article, which was in compliance with the City's zoning regulations immediately prior to the effective date of this article, may continue in existence as a nonconforming structure.
(b) Except as provided in this section, a nonconforming structure or use may not be enlarged, increased in size, or discontinued in use for a period of more than one hundred eighty (180) days. This article shall not be interpreted to legalize any structure or use existing at the time this article is adopted which structure or use is in violation of the Code prior to enactment of this article. (Passed 1-13-03.)
1389.11 CERTIFICATIONS AND INSPECTIONS.
(a) All Towers shall be certified by an Engineer to be structurally sound and in conformance with the requirements of the Building Code and all other construction standards set forth by the City's Code and Federal and State law. For new Monopole Towers, such certification shall be submitted with an Application pursuant to this article and every five (5) years thereafter. For existing Monopole Towers, certification shall be submitted within sixty (60) days of the effective date of this article and then every five (5) years thereafter. For new lattice or guyed Towers, such certification shall be submitted with an Application pursuant to this article and every two (2) years thereafter. For existing lattice or guyed Towers, certification shall be submitted within sixty (60) days of the effective date of this article and the every two (2) years thereafter. The Tower Owner may be required by the City to submit more frequent certification should there be reason to believe that the structural and electrical integrity of the Tower is jeopardized.
(b) The City or its agents shall have authority to enter onto the property upon which a Tower is located, between the inspection and certifications required above, to inspect the Tower for the purpose of determining whether it complies with the Building Code and all other construction standards provided by the City Code and federal and State law.
(c) The City reserves the right to conduct such inspection at any time upon reasonable notice to the Tower Owner. All expenses related to such inspections by the City shall be borne by the Tower Owner.
(Passed 1-13-03.)
1389.12 MAINTENANCE.
(a) Tower Owners shall, at all times, employ ordinary and reasonable care and shall install and maintain in use nothing less than commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public.
(b) Tower Owners shall install and maintain Towers, Telecommunications Facilities, wires, cables, fixtures, and other equipment in substantial compliance with the requirements of the National Electric Safety Code, BOCA, and all FCC, State, and local regulations and in such manner that will not interfere with the use of other property.
(c) All Towers, Telecommunications Facilities, and Antenna Support Structures shall, at all times, be kept and maintained in good condition, order, and repair so that the same shall not menace or endanger the life or property of any person.
(d) All maintenance or construction of Towers, Telecommunications Facilities, or Antenna Support Structures shall be performed by licensed maintenance and construction personnel.
(e) All Towers shall maintain compliance with current RF emission standards of the FCC.
(f) In the event that the use of a Tower is discontinued, the Tower Owner shall provide written notice to the City of its intent to discontinue use and the date when the use shall be discontinued. (Passed 1-13-03.)
1389.13 ABANDONMENT.
(a) If any Tower shall cease to be used for a period of 365 consecutive days, the City Council shall notify the Owner, with a copy to the Applicant, that the site will be subject to a determination by the City Council that such site has been abandoned. The Owner shall have thirty (30) days from receipt of said notice to show, by a preponderance of the evidence, that the Tower has been in use or under repair during the period. If the Owner fails to show that the Tower has been in use or under repair during the period, the City Council shall issue a final determination of abandonment for the site. Upon issuance of the final determination of abandonment, the Owner shall, within seventy-five (75) days, dismantle and remove the Tower.
(b) To secure the obligation set forth in this Section, the Applicant (and/or Owner) shall post and bond in an amount equal to the anticipated cost of removal of the Tower at the time an Application is made. The anticipated cost of removal shall be based upon a certification from a professional Engineer. The bond shall be in such form as to be acceptable to the Recorder-Treasurer. (Passed 1-13-03.)
1389.14 SEVERABILITY.
If any clause, section, or other part of this article shall be held invalid or unconstitutional by any court of competent jurisdiction, the remainder of this article shall not be affected thereby but shall remain in full force and effect.
(Passed 1-13-03.)
1389.15 APPEAL FROM CODE ENFORCEMENT DEPARTMENT DECISION.
Any person aggrieved by a decision of the Code Enforcement Department may appeal the decision to the Board of Zoning Appeals, as provided by W. Va. Code § 8-24-56. Written notice of an appeal must be filed with the Board of Zoning Appeals within thirty (30) days of the decision. The notice of appeal shall clearly state the reasons for the appeal.
(Passed 1-13-03.)
1389.16 ADMINISTRATION.
If the Code Enforcement Department finds that any provision of this article has been violated, the Code Enforcement Department shall notify, in writing, the person responsible for such violation, indicating the nature of the violation, and ordering the action necessary to correct it. The Code Enforcement Department shall order correction of the violation and may take any other legal action to ensure compliance with this article.
(Passed 1-13-03.)
1389.17 CONFLICTS.
All ordinances, or parts of ordinances in conflict herewith, are hereby repealed.
(Passed 1-13-03.)
CODIFIED ORDINANCES OF PRINCETON