a.

Accessory uses must:

1.

Be customarily associated with and clearly incidental and subordinate to a legally established principal use in accordance with all requirements of this chapter;

2.

Except in conjunction with a publicly-owned or publicly-operated use, be operated and/or maintained under or on behalf of the same ownership as the principal use;

3.

Be operated on the same lot as the principal use, unless otherwise provided in this chapter;

4.

Not create a nuisance or hazard to surrounding properties or passing vehicles or pedestrians; and

5.

Not include any retail sales in a residential building except as provided for a home-based business under the provisions of section 25.09.07.

b.

If operated partially or entirely within the structure containing the principal use, the gross floor area within such structure utilized by accessory uses (except garages and off-street loading facilities) must not be greater than:

(a)

In a dwelling unit, twenty (20) percent of the gross floor area not to exceed three hundred (300) square feet, or

(b)

In a structure other than a dwelling unit, ten (10) percent of the gross floor area of a structure containing any principal use.

(Ord. No. 8-14, § 1, 4-21-14)

Editor's note— Ord. No. 8-14, § 1, adopted April 21, 2014, changed the title of section 25.09.01 from "General requirements" to "Accessory uses."

Requirements. Accessory structures must be customarily associated with and clearly incidental and subordinate to a legally established principal structure. Such structures cannot be attached to the main building by any part of a common wall or common roof except as set forth in subsection 25.09.03.a.2(g). Uses within accessory structures must comply with the applicable provisions of section 25.09.01 above.

(Ord. No. 8-14, § 1, 4-21-14; Ord. No. 13-22, 7-18-22)

Editor's note— Ord. No. 8-14, § 1, adopted April 21, 2014, changed the title of section 25.09.02 from "Accessory uses" to "Accessory structures."

a.

Residential accessory buildings and structures.

1.

Residential accessory buildings and structures are subject to the following development standards:

¹ The height of an accessory building or structure is measured from the lowest point of the finished grade at the front of the building to the highest point of the roof, as defined in subsection 25.03.03.c.3.a. Additional height may be allowed in conformance with subsection 25.09.03.a.2(a), below.

2.

Residential accessory buildings are subject to the following additional provisions:

(a)

Accessory buildings and structures greater than twelve (12) feet high. Accessory buildings and structures that exceed twelve (12) feet in height must be set back from all lot lines an additional three (3) feet for each additional foot (or any portion thereof) of building height up to fifteen (15) feet. Accessory buildings may exceed fifteen (15) feet in height, up to a maximum of twenty (20) feet, with no additional setback required. In no event can the height exceed the height to the peak of the main house.

(b)

Maximum building footprint. The maximum footprint of any one accessory building is seven hundred fifty (750) square feet and cannot exceed the footprint of the main building. The maximum footprint of all accessory buildings is one thousand (1,000) square feet.

(c)

Conforming structures. Accessory buildings and structures that were constructed in conformance with the standards in effect at the time they were erected are considered conforming and may be modified, repaired, or replaced so long as they conform to the standards under which they were built except that they must maintain a minimum setback of three (3) feet from any property line.

(d)

Historic accessory buildings.

i.

Contributing accessory buildings, located in a historic district zone are subject to the provisions of subsection 25.08.06.c.

ii.

For properties that include contributing accessory buildings, the maximum cumulative building footprint for accessory buildings may be increased by up to twenty (20) percent if granted a waiver by the Board of Appeals. The waiver may be granted if it is demonstrated that:

(1)

The contributing accessory building cannot be used for the desired purpose of the proposed accessory building;

(2)

The proposed accessory building is compatible with environmental features on the property, including significant trees; and

(3)

The proposed accessory building is compatible with the overall character of the neighborhood.

(e)

Accessory buildings on through lots. A through lot has no rear yard as defined in this chapter. However, accessory buildings may be placed in the apparent rear yard, but must be set back from the street line at least the minimum front yard setback required in the zone. Within the area between the main building and the setback line, all of the requirements for accessory buildings, including setbacks, heights, and maximum lot coverage will apply.

(f)

Accessory buildings on corner lots. Accessory buildings must be placed in the rear yard of a corner lot. The rear yard of a corner lot must meet the minimum rear yard setback from the lot line to the main building as set forth in the applicable zone.

(g)

Connection to main building. An open, unenclosed breezeway with a length not exceeding twenty (20) feet may connect a main building to one accessory building.

(h)

Accessory structures.

i.

Small open structures not exceeding a footprint of one hundred (100) square feet, such as gazebos, may be permitted with a ten-foot setback in a yard abutting a street.

ii.

An accessory swimming pool must be located in the rear yard. All portions of the pool must be set back at least three (3) feet from any lot line and comply with any provisions of chapter 5 of this Code.

(i)

Story and floor area. Accessory structures and buildings are permitted to have a floor in the unfinished attic storage area of the structure. The area covered by the floor can be equal to or less then the floor area below. For the purposes of this subsection, the installation of a floor shall not constitute a story.

b.

Detached accessory dwelling units. In addition to the development standards in subsection 25.09.03.a, a detached accessory dwelling unit is subject to the following requirements:

1.

No more than one attached or detached accessory dwelling unit is permitted on a lot.

2.

A detached accessory dwelling unit must be permanently attached to the ground by a foundation.

3.

The gross floor area of a detached accessory dwelling unit must be in accordance with the following:

(a)

Except as provided in subsection 25.09.03.b.4(b), below, the gross floor area of an accessory dwelling unit must not exceed fifty (50) percent of the gross floor area of the main dwelling unit or seven hundred fifty (750) square feet, whichever is less.

(b)

Notwithstanding the foregoing, an Approving Authority must not require an accessory dwelling unit to have a gross floor area of less than four hundred (400) square feet, unless at the request of the applicant.

4.

A detached accessory dwelling unit is prohibited on a lot that has an attached accessory dwelling unit.

5.

Both the accessory dwelling unit and the main dwelling unit on a lot must remain under common ownership. In accordance with chapter 18, rental facilities and landlord tenant relations, only one rental license is permitted on a property.

6.

Detached accessory dwelling units not in conformance with this section must be brought into compliance within twelve (12) months of September 16, 2024.

c.

Non-residential accessory buildings and structures. Nonresidential accessory buildings and structures are reviewed as part of the site plan review and subject to all requirements of the relevant zone and all conditions of the site plan approval.

(Ord. No. 29-09, § 9, 10-26-09; Ord. No. 8-14, § 1, 4-21-14; Ord. No. 26-15, 10-12-15; Ord. No. 13-22, 7-18-22; Ord. No. 13-24, § 2, 9-16-24)

a.

Permit required. A temporary use permit must be issued prior to the use of a building, other structure, or land allowed by temporary approval and demarked in the individual use charts of articles 10 through 14. Temporary uses do not include uses that are regulated by chapter 12, licenses, permits, and miscellaneous business regulations, of this Code, such as hawkers and peddlers.

b.

Issuance. A temporary use permit may be issued if the Chief of Inspection Services or designee finds that the use proposed in the application will not:

1.

Adversely affect the health or safety of persons residing or working in the neighborhood of the proposed use;

2.

Be detrimental to the public welfare or injurious to property or improvements in the neighborhood; and/or

3.

Constitute a violation of any provision of this Code or other applicable law.

c.

Appeals. The grant or denial of a temporary use permit may be appealed by an aggrieved party to the Planning Commission.

d.

Special requirements for temporary uses. The temporary uses described below are subject to the following requirements:

1.

Temporary buildings, trailers, portable storage units, or yard for construction materials and temporary offices for the sale or rental of real property. Temporary buildings, trailers, portable storage units, or yard for construction materials or equipment, both incidental and necessary to construction in the immediate area, and temporary offices incidental to and necessary for the sale or rental of real property in the immediate area may operate for as long as there is a valid building permit but must cease operation no later than the issuance of the last required occupancy permit. If such temporary uses are included in a valid building permit, no temporary use permit is required. Portable storage units may also be used on property improved with single unit detached, semi-detached, attached, or townhouse dwellings for the short-term storage of items, including but not limited to, clothing, equipment, goods, household or office fixtures or furnishings, materials, and merchandise, for a period not to exceed thirty (30) days, which period may, for good cause shown, be extended for not more than an additional sixty (60) days. A temporary use permit is not required for a portable storage unit used on residential property for moving or other short-term purposes for five (5) days or less. Portable storage units are not permitted to be placed in the public right-of-way.

2.

Christmas tree sales. Christmas tree sales are permitted only between the fourth Friday in November and December 25th.

3.

Garden produce, house plants, and cut flower sales. Sale of garden produce, house plants, and cut flowers may operate with a temporary use permit only during the months of May through October.

4.

Carnivals, festivals, flea markets. Carnivals, festivals, and flea markets must comply with the license provisions of chapter 12, licenses, permits, and miscellaneous business regulations, of the Code.

5.

Mobile uses. Mobile uses which travel to residential or non-residential zones to provide services are subject to the hawkers and peddlers provisions set forth in chapter 12, licenses, permits, and miscellaneous business regulations, of the Code.

e.

Validity period of approval. The validity period of approval for each temporary use permit is as set forth in subsection d. above.

The following setback encroachments apply within all zones, except as otherwise provided herein:

1.

Permanent encroachments. The following permanent structures and features are permitted to project into the required yard setbacks in the amount stated for each structure or feature:

(a)

Air conditioners, heat pumps and emergency generators in single unit detached residential zones.

i.

Air conditioners and heat pumps may project no more than five (5) feet into minimum side and rear setbacks.

ii.

Emergency generators shall comply with all noise regulations applicable in the City. The periodic test operation of the emergency generator must be conducted only on weekdays between the hours of 7:00 a.m. and 7:00 p.m. Placement of generators are allowed as follows:

A.

Emergency generators may only be located in a rear or side yard, but cannot encroach into a side yard setback and may only encroach five (5) feet into a rear yard setback.

B.

In the case of a corner lot, emergency generators must be located in the front yard facing a street and may encroach up to five (5) feet into the front yard setback. The generator cannot be located in the front yard of the property's street address.

iii.

In the case of properties located in an historic district zone, the location and screening of such equipment is subject to review and approval by the Chief of Planning unless visible from a public way. The Chief of Planning review will include any conditions set forth in the historic district designation by the Historic District Commission.

(b)

Renewable energy generation equipment. Solar heating panels, solar collectors, or other alternative energy generator equipment may project not more than five (5) feet into the minimum side and rear setbacks.

(c)

Architectural elements. Cornices, eaves, and gutters may project not more than:

(i)

Three (3) feet into front and side yard setback; and

(ii)

Five (5) feet into rear yard setback.

(d)

Bay windows, vestibules, or balconies. Bay windows, vestibules, and balconies, ten (10) feet or less in width, may project not more than three (3) feet into front and rear yard setback.

(e)

Belt courses, sills, and lintels. Belt courses, sills, and lintels may project not more than six (6) inches into front, rear, and side yard setback.

(f)

Canopies. Canopies may encroach into applicable setbacks in all zones except single unit detached dwelling unit zones, subject to the following limitations:

(i)

Nonpermanent canopies, not more than ten (10) feet wide, may encroach up to any front lot line; and

(ii)

Permanent canopy structures, not more than forty (40) feet wide, may encroach up to forty (40) feet into front setback areas except where the front setback requirement is less than fifty (50) feet, then such canopy may encroach up to ten (10) feet from any front lot line.

(g)

Chimneys. Chimneys not more than six (6) feet in width may project not more than eighteen (18) inches into a front, side, or rear yard setback.

(h)

Porches, steps, and stoops in single dwelling unit residential zones. Porches, steps, and stoops in single dwelling unit residential zones are subject to the following limitations:

(i)

Uncovered steps, stoops, and porches may extend into the front yard setback not more than twelve (12) feet and not more than nine (9) feet into the rear yard setback.

(ii)

Covered unenclosed steps, stoops, and porches may extend into the front yard setback not more than twelve (12) feet.

(iii)

Porches, steps, and stoops may extend not more than four (4) feet into the side yard setback if such steps, stoops, or porches are not more than eight (8) feet wide. Such entryways may be covered, but not enclosed.

(i)

Setback from unimproved rights-of-way. If an unimproved right-of-way has remained unimproved for at least twenty (20) years following the date of recordation of the plat or deed, and is not programmed for improvement in the current City Capital Improvements Program, the following regulations apply:

(i)

Setbacks for buildings. If the unimproved right-of-way abuts one (1) side of a lot, then the side yard setback requirement in the zone applies in lieu of the front yard setback requirement. If the unimproved right-of way is approximately parallel to the improved street providing the primary access to the main dwelling, then the setback from the unimproved right-of-way is equivalent to the rear yard setback in the applicable zone in lieu of the front yard setback requirement.

(ii)

Setbacks for accessory buildings and structures. The setback requirements for accessory buildings and structures for side and rear lot lines are as set forth in section 25.09.03.

2.

Fences.

(a)

Fences—Residential zones. Fences are subject to the following limitations in residential zones:

(i)

Dangerous fences prohibited. Fences on residential properties must comply with the provisions of chapter 5, buildings and building regulations of this Code regarding fences.

(ii)

Development standards.

A.

Side and rear yards. A fence not exceeding eight (8) feet in height is permitted in the side or rear yard of any lot.

B.

Front yard. A fence not exceeding four (4) feet in height is permitted in the front yard, except as provided below.

(iii)

Corner and through lots.

A.

On a corner lot or through lot, the yards lying between the principal building and the streets are deemed front yards, and no fence exceeding four (4) feet in height can be erected in this area.

B.

Notwithstanding subsection 25.09.05.2.(a)(ii)B., above, where the street abutting is classified as an arterial highway or greater, a fence not exceeding six (6) feet in height is permitted in the front yard.

C.

On a corner lot in a residential zone, a fence must not exceed four (4) feet above the curb level for a distance of twenty-five (25) feet from the intersection of the street lines. Retaining walls made necessary by changes in street grade, width, or alignment are not subject to the limitations set forth in the preceding sentence.

(iv)

Fences adjacent to unimproved right-of-way. Fences along an unimproved right-of-way must not exceed six (6) feet in height and must otherwise comply with the provisions for fences as set forth in article 9. If the right-of-way is subsequently improved, any fence exceeding four (4) feet in height is deemed nonconforming and may be maintained and repaired. If replaced, the fence must comply with the provisions of this section.

(v)

Fences in planned development zones. In a planned development zone approved prior to January 1, 1975, fences up to six (6) feet tall will be allowed:

i.

To replace an existing fence; or

ii.

If the location of the fence within such planned development is approved by the homeowner's association.

(b)

Fences—Nonresidential zones.

(i)

Dangerous fences prohibited. Fences on nonresidential properties must comply with the provisions of chapter 5, buildings and building regulations, of this Code regarding fences.

(ii)

Development standards.

A.

A fence not exceeding eight (8) feet in height is permitted in the side or rear yard of any lot.

B.

A fence not exceeding four (4) feet in height is permitted in the front yard of any lot.

C.

The Planning Commission may allow a fence up to eight (8) feet in height in the front yard in an industrial zone as part of a site plan review in accordance with the provisions of article 7.

(c)

Public school property. A fence not exceeding six (6) feet in height is permitted in the front yard of any public school property.

(d)

Retaining walls. Where a retaining wall intended to hold back a mass of earth or other material is located along a lot line, it may be of any necessary height measured from the lower ground level. If the retaining wall is also intended to act as a fence for the property at the upper grade level, the height requirements of this subsection 2 from the upper grade level apply.

3.

Temporary encroachments. Structures and structural features to assist persons with disabilities required to meet the provisions of the Americans with Disabilities Act (ADA) are permitted to project into the required yard setbacks for each structure or feature. This encroachment is permitted only so long as it is needed to accommodate a person with disabilities and the right to such encroachment does not run with the land.

4.

[Pedestrian or bicycle access or flow.] Encroachments into setbacks that otherwise meet the standards as set out in this section 25.09.05 must be designed so as not to interfere with pedestrian or bicycle access or flow, or be a danger to pedestrians or bicyclists.

(Ord. No. 16-10, § 2, 9-13-10; Ord. No. 8-14, § 1, 4-21-14; Ord. No. 26-15, 10-12-15)

a.

Height exemptions. The following non-habitable, architectural elements of a structure may exceed the height limitations prescribed for the zone in which the structure is located, subject to the restrictions of subsection b. below:

1.

Rooftop structures;

2.

Parapet walls;

3.

Belfries;

4.

Chimneys;

5.

Flagpoles;

6.

Flues;

7.

Monuments;

8.

Radio and television towers (subject to the wireless provisions contained in subsection 25.09.08.b.;

9.

Antennae or aerials (subject to the wireless provision contained in subsection 25.09.08.b.;

10.

Spires;

11.

Water towers and tanks;

12.

Heating, ventilation units, air conditioning units (HVAC), and similar mechanical equipment;

13.

Solar heating panels, solar collectors, or renewable alternative energy generation equipment; and

14.

Elevator equipment and other mechanical equipment.

b.

Restrictions. The height exemptions provided in subsection 25.09.06.a. above, are subject to the following restrictions:

1.

Architectural elements exempted from the height computation:

(a)

Must have a total area less than twenty-five (25) percent of the roof area;

(b)

Must only be used for a use incidental to the main use of the building;

(c)

Must be less than nineteen (19) feet in height as measured from the finished roof elevation; and

(d)

Must be setback from the edge of the roof by a minimum of a 1:1 setback to height ratio.

2.

Notwithstanding the foregoing, parapet walls must not exceed six (6) feet in height as measured from the finished roof elevation.

3.

Rooftop mechanical equipment must be screened from view by an enclosure no taller than nineteen (19) feet in height as measured from the finished roof elevation.

(a)

Rooftop mechanical equipment and their enclosures must be set back from the edge of the roof by a minimum of a 1:1 setback to height ratio.

(b)

Rooftop enclosures must be designed to be compatible, using, as closely as possible, the materials, color and style of the building. The Chief of Planning must determine the degree to which the proposed enclosure adheres to the overall design character of the entire building.

(c)

Where the rooftop equipment includes renewable energy generation equipment, rooftop screening must be designed to allow operation of such equipment, which may mean reducing height of screening.

c.

Waiver.

1.

The Planning Commission may permit a waiver from any or all of the restrictions set forth in subsections b.1. through b.3. of this section upon finding that the size, scale, and dimensions of any non-habitable architectural structure listed above are:

(a)

Architecturally compatible with both the building on which it is to be erected and the adjacent buildings; and

(b)

Not contrary to the intent and purpose of the plan or this chapter.

2.

In granting any such waiver, the Planning Commission may impose such conditions as may be reasonable and necessary so that the non-habitable architectural structures are consistent with the plan, including, but not limited to, the screening of rooftop structures and the shadow regulations set forth in section 25.17.06.

3.

The person requesting the waiver must provide notice of the request in accordance with section 25.05.03 of this chapter.

a.

General provisions. The following requirements apply to all types of home-based business enterprises:

1.

Area of use. Except as otherwise provided, a home-based business enterprise must be conducted entirely within the dwelling unit or accessory building and must not use any open yard area of the lot or parcel on which the dwelling unit is located or any building constructed on the lot or parcel specifically for the purpose of operating the home-based business enterprise. It may, however, involve off-site activities such as sales, client contact, and other matters related to the home-based business enterprise. The floor area of an accessory building used in connection with the home-based business enterprise is not included in the total floor area allowed for the business in the principal building.

2.

Prohibition of nuisance. A home-based business enterprise must not:

(a)

Use any equipment or process that creates a nuisance such as noise (in violation of Chapter 31B of the Montgomery County Code, as amended), vibration, glare, fumes, odors, or electrical or electronic interference detectable at or beyond the lot line of a detached dwelling unit or the floor, ceiling, or party wall of an attached dwelling unit; or

(b)

Involve the use, storage, or disposal of any hazardous material, except for disposal of medical waste regulated by Maryland State laws and regulations.

3.

Equipment or facilities. No equipment or facilities may be used in connection with the home-based business enterprise other than:

(a)

Domestic or household equipment;

(b)

Office equipment;

(c)

Other equipment facilities that are reasonably related to the production of handmade products or services provided by the home-based business enterprise; and

(d)

Equipment and supplies associated with personal or professional services.

4.

Exterior appearance.

a.

If an accessory building to a principal building is used for any part of a home-based business enterprise, there must be no external evidence of such use.

b.

A separate entrance into the dwelling from the outside is not permitted except for a health professional office or a cosmetologist.

5.

Prohibition of truck deliveries. No truck deliveries are permitted, except for parcels delivered by public or private parcel services that customarily make residential deliveries.

6.

Subordinate use. The use must be subordinate to the main dwelling and the use of that dwelling for residential purposes and cannot occupy more than thirty-five (35) percent of the gross floor area of the main dwelling. A home-based business enterprise is not deemed to be an accessory use.

7.

Signs. The display of a sign must comply with the requirements established in article 18 of this chapter.

8.

Variance prohibition. No variance may be granted to accommodate a home-based business enterprise.

9.

Residence requirement. A home-based business enterprise must be conducted by one (1) or more persons who reside in the dwelling at least two hundred twenty (220) days in each calendar year.

10.

Other licensing. A home-based business enterprise must meet all other applicable licensing requirements.

b.

No-impact home-based business enterprises. A no-impact home-based business enterprise cannot have any external evidence of the business operation and may not have non-resident employees.

c.

Major home-based business enterprises.

1.

Except as provided below, home-based business enterprises that do not satisfy the requirements of a no-impact home-based business enterprise are deemed to be major home-based business enterprises and are permitted as special exception uses if they satisfy all of the applicable requirements of subsections 25.15.01.a.2. and 25.15.02.h. of this chapter.

2.

No special exception approval will be required for a home-based business enterprise conducted in an accessory structure located within the historic district zone within a planned development, provided that:

(a)

There are not more than three (3) nonresident employees;

(b)

There are not more than twenty (20) visits per week in connection with the home-based business enterprise, excluding employee trips and deliveries; and

(c)

The home-based business enterprise complies with the provisions of subsection 25.09.07.a.

d.

Inspections.

1.

All major home-based business enterprises are subject to inspection by the Chief of Planning during business hours.

2.

A major home-based business enterprise requires an inspection of the site prior to the approval of the special exception.

3.

If the City receives a complaint of a possible violation of a home-based business enterprise or otherwise has reason to believe there is a violation, the City must inspect the property and determine, within thirty (30) days after receipt of the complaint, whether there is a violation of the provisions of this section, or of any condition of special exception approval.

4.

If it is determined that there is no violation, the operator of the home-based business enterprise and the complainant must be so notified in writing.

5.

If the City is denied access to the site to conduct the inspection such denial is a violation of this article and the City may seek judicial authorization to conduct the inspection.

e.

Existing home occupations. A home occupation in existence as of March 16, 2009, is considered a conforming home-based business enterprise if it complies with the provisions of the zoning ordinance for a home occupation in effect immediately prior to March 16, 2009.

1.

If there is any change in the character of the existing home occupation, all applicable provisions of this section 25.09.07 will apply.

2.

At such time as the home occupation ceases to operate for one year, or if the ownership of the property changes, all applicable provisions of this section 25.09.07 will apply.

(Ord. No. 29-09, § 9, 10-26-09)

a.

Purpose. The purpose of this section is to provide a uniform and comprehensive set of standards for the development and installation of wireless communication facilities, related structures, and equipment.

1.

The regulations and requirements contained herein are intended to:

(a)

Regulate the placement, construction, and modification of wireless communication facilities in order to protect the health, safety, and welfare of the public and the aesthetic quality of the City; and

(b)

Encourage managed development of wireless communication infrastructure, while at the same time not unreasonably interfering with the development of the competitive wireless communication marketplace in the City.

2.

This section is intended to promote the following objectives:

(a)

To minimize the total number of wireless communication facilities and antenna support structures throughout the community through siting standards;

(b)

To provide for the appropriate location and development of wireless communication facilities and related structures and equipment within the City, and, to the extent possible, minimize potential adverse impacts on the community;

(c)

To minimize adverse visual impacts of wireless communication facilities and related structures and equipment through careful design, siting, landscape screening, and innovative camouflaging techniques, such as stealth technology, and utilizing current and future technologies;

(d)

To promote and encourage shared use/collocation of antenna support structures;

(e)

To maintain and preserve the existing residential character of the City and its neighborhoods and promote the creation of a convenient, attractive, and harmonious community;

(f)

To promote the safety of citizens and avoid the risk of damage to adjacent properties by ensuring that wireless communication facilities and related structures and equipment are properly designed, constructed, located, modified, maintained, and removed;

(g)

To ensure that wireless communication facilities and related structures and equipment are compatible with surrounding land uses;

(h)

To encourage: the location of antennas on existing buildings or other structures; collocation of new antennas on existing antenna support structures; camouflaged antenna support structures; and construction of antenna support structures with the ability to locate three (3) or more providers or users; and

(i)

To maintain and ensure that a non-discriminatory, competitive, and broad range of high quality wireless communication services and high quality wireless communication infrastructure consistent with laws are available to the community.

b.

Wireless communication facilities attached to existing structures. Wireless communication facilities attached to the roof or side of a building, or attached to an existing structure must comply with the following:

1.

The building or other structure on which a wireless communication facility to be installed must be at least thirty-five (35) feet in height if used for nonresidential purposes and fifty (50) feet in height if used for multiple unit dwelling purposes. In a mixed-use development, the multiple unit dwelling standard applies. Except as provided in subsection 25.09.08.e, wireless communication facilities are not permitted on any single unit detached dwelling or appurtenant accessory building or structure.

2.

The antennas and antenna support structures must be located and designed to minimize visual impacts through various methods, including, but not limited to, the use of stealth technology. Antennas and antenna support structures must be installed according to the order of preference in subsections 25.09.08b.2.(a) through (d) below, with (a) being the preferred option. Use of a lower preference location is permitted only if an applicant provides detailed justification as to why higher preference locations are not suitable.

(a)

Antennas must be flush mounted on existing structures, or on either rooftop enclosures or the side of a building, and closely match the color and architectural treatment of the structure, enclosure, or building.

(b)

Antennas must be flush-mounted on expanded rooftop mechanical equipment enclosures, with the enclosures and antennas designed to be consistent with the architectural treatment and color of the building.

(c)

Antennas must be enclosed with screening that is consistent with the architectural treatment and color of the building or structure.

(d)

Antennas and support structures must be painted or otherwise treated to minimize their visibility.

3.

Antennas and supporting structures are permitted to exceed the height of the building or structure to which they are attached by a maximum of nineteen (19) feet. The height above a building must be measured from the finished roof elevation, and not from the roof of any equipment enclosure.

4.

Antennas must comply with the following size standards:

(a)

Whip antennas must be no more than seven (7) inches in diameter; and

(b)

Panel antennas must be no more than two (2) feet wide and six (6) feet long.

5.

An equipment building or cabinet may be located on the roof of a building provided it and all other roof structures do not occupy, in the aggregate, more than twenty-five (25) percent of the roof area.

6.

When an antenna is located on a stadium light or utility pole, the total height of the antenna plus the pole or light must not exceed one hundred twenty-five (125) percent of the average height of the lighting system at the stadium or run of poles within five hundred (500) feet of the pole on which the antenna is located.

c.

Wireless communication facilities located on ground-mounted antenna support structures.

1.

Scope. This subsection applies to wireless communication facilities mounted on free-standing antenna structures.

(a)

Special exception. Wireless communication facilities covered by this section require the approval of a special exception in accordance with the applicable provisions of article 15 of this chapter.

(b)

Additional findings required. The following additional findings must be made for the granting of a special exception:

(i)

The location selected is necessary for the public convenience and service and cannot be supplied with equivalent public convenience on a building or structure or collocated on an existing antenna support structure; and

(ii)

For new antenna support structures to be located in a residential zone or within five hundred (500) feet of a residential zone, it must be demonstrated that a good faith effort has been made to locate the proposed antenna support structure in a nonresidential zone more than five hundred (500) feet from the residential zone, with adequate coverage and on an isolated site with minimal visual impact.

(c)

Independent consultant. The City may hire an independent consultant to review evidence submitted by the applicant, and the applicant must reimburse the City for the reasonable cost of hiring and utilizing such a consultant.

2.

Development standards.

(a)

The maximum height of the facility, including antenna and other attachments, is fifty (50) feet in a residential zone, or within five hundred (500) feet of a residential zone, and one hundred ninety-nine (199) feet in all other locations. Height must be measured vertically from the pre-disturbance ground level at the center of the support structure.

(b)

Monopoles are the preferred type of freestanding antenna support structure.

(c)

No commercial or promotional signs, banners, or similar devices or materials are permitted on antenna support structures.

(d)

The ground-mounted antenna support structure must be located and designed in a manner that is harmonious with surrounding properties, to the extent practicable. Antenna support structures must be designed to blend into the surrounding environment through the use of color and camouflaging architectural treatment. When practicable, available stealth structure design techniques must be used.

(e)

Wireless communication facilities must be located on City-owned property, if feasible.

(f)

Antenna support structures must be set back one (1) foot for every foot of height of the structure, measured from the base of the structure to each adjoining property line or right-of-way.

(g)

Lights are not permitted on antenna support structures unless they are required for aircraft warnings or other safety reasons, or to comply with applicable laws and regulations. If required, minimum lighting requirements must be applied, and strobe lights must be avoided unless specified by the Federal Aviation Administration or the Federal Communications Commission.

(h)

Outdoor storage of equipment or items related to the wireless communication facility is prohibited on sites with antenna support structures.

(i)

All antenna support structures erected as part of a wireless communication facility must be designed to accommodate collocation of additional wireless communication carriers. New antenna support structures of a height of one hundred fifty (150) feet or more must be designed to accommodate collocation of a minimum of four (4) additional providers either upon initial construction or through future modification to the antenna support structure. Antenna support structures of less than one hundred fifty (150) feet must be designed to accommodate collocation of a minimum of two (2) additional providers.

(j)

Prior to construction, each applicant must provide certification from a registered structural engineer that the structure will meet pertinent design, construction, installation, and operation standards, including but not limited to the applicable standards of the Electronics Industries Association (EIA), the Telecommunications Industry Association (TIA), ANSI, and the BOCA Code in effect at the time of the building permit application.

(k)

Upon completion of any sale or sublease of an antenna support structure, the owner of an antenna support structure must provide written notice to the City's Inspection Services Division.

(l)

The owner of a ground-mounted antenna support structure, at the owner's expense, must remove antenna support structures when a wireless communication facility is not used for wireless purposes for a period one hundred eighty (180) days in a 12-month period. The owner of a ground-mounted antenna support structure must immediately notify the City, in writing, of nonuse or abandonment of the structure upon its cessation as a wireless communication facility. Failure to remove an abandoned or unused ground-mounted antenna support structure will result in removal of the structure by the City at the expense of the owner.

(m)

When a ground-mounted antenna support structure is removed by an owner, said owner must apply for a demolition permit to remove the tower. A condition of the demolition permit is to restore the site to the standards required by the building code in effect at the time, at no expense to the City.

d.

Equipment enclosures located at ground level standards. Equipment enclosures located at ground level must comply with the following standards:

1.

Each enclosure that contains the equipment of a single provider must not exceed five hundred sixty (560) square feet of gross floor area and twelve (12) feet in height; if more than one (1) provider is to be accommodated in an enclosure, a single enclosure must be constructed to accommodate the maximum number of providers that are required to collocate on the antenna support structure, up to a maximum of one thousand five hundred (1,500) square feet in area and twelve (12) feet in height.

2.

The enclosure must conform to the applicable setback standards for main structures in the zone in which the property is located; setback standards for accessory buildings and structures in section 25.09.03 are not applicable to equipment enclosures.

3.

The enclosure must be screened to provide year-round screening. This standard may be met by one (1) or a combination of the following: fencing, walls, landscaping, structures or topography which will block the view of the equipment shelter as much as practicable from any street and/or adjacent properties. In areas of high visibility, fencing may be wrought iron, masonry, or other decorative fencing material.

4.

Lighting associated with equipment structures must be directed so as to minimize any negative impact of such lighting on adjacent properties.

5.

When constructed as a freestanding building, the design of the enclosure must be coordinated with the design of the existing main building on the same lot or, if there is no building on the lot, with the buildings on an adjoining lot, to the extent practicable. In addition, the enclosure must be constructed of non-reflective materials.

6.

When attached to an existing building, the enclosure must be designed in a manner that is harmonious with the existing building and surrounding properties.

7.

The equipment enclosure must be removed at the cost of the owner when the wireless communication facility is no longer being used by a wireless communication provider. Failure to remove abandoned equipment will result in removal by the City at the expense of the owner.

e.

Waivers permitted.

1.

Regulated satellite earth station antennas.

(a)

Any person or entity seeking to install or erect a satellite earth station antenna subject to this section, other than an antenna specified in subsection 25.09.08.e.1(a)(ii) below, may apply for a waiver from one (1) or more of the provisions of this section 25.09.08, and the Board of Appeals may grant such a waiver pursuant to applicable procedures and standards if it is shown that:

(i)

The provision(s) of section 25.09.08 at issue materially limit or inhibit the transmission or reception of satellite signals at the waiver applicant's property or the provision(s) at issue impose more than a minimal cost on the waiver applicant;

(ii)

The waiver, if granted, would not result in any noncompliance with applicable laws, regulations, and codes (including, but not limited to, safety and building codes); and

(iii)

The waiver sought is the minimum waiver necessary to permit the reception or transmission of satellite signals at the waiver applicant's property.

(b)

The Board of Appeals is authorized to grant a complete or partial waiver to any provision of section 25.09.08. In addition, the Board of Appeals may impose a lesser requirement instead of granting a complete waiver of any provision in this section if a complete waiver is not necessary to permit reception or transmission of amateur service communications at the waiver applicant's property, and the lesser requirement will allow the reception or transmission of satellite signals. The Board of Approval shall not condition a waiver upon an applicant's expenditure of a sum of money, including costs required to screen, pole-mount, or otherwise specially install a satellite earth station antenna, over and above the aggregate purchase or total lease cost of the equipment as normally installed, if such sum would be greater that the aggregate purchase or total lease cost of the equipment as normally installed.

2.

Wireless communication facilities for amateur service communications.

(a)

Any person or entity seeking to install or erect a wireless communication facility in the City for the purpose of engaging in amateur radio communications may apply for a waiver from one (1) or more of the provisions of this section 25.09.08. and the Board of Appeals may grant such a waiver pursuant to applicable procedures and standards if it is shown that:

(i)

The provision(s) of section 25.09.08 at issue preclude amateur service communications, do not reasonably accommodate amateur service communications at the waiver applicant's property or do not constitute the minimum practicable regulation to accomplish the City's health, safety, and welfare objectives;

(ii)

The waiver, if granted, would not result in any noncompliance with applicable laws, regulations and codes (including, but not limited to, FCC regulations concerning amateur radio transmission and reception); and

(iii)

The waiver sought is the minimum waiver necessary to reasonably accommodate amateur service communications at the waiver applicant's property.

(b)

The Board of Appeals is authorized to grant a complete or partial waiver to any provision of section 25.09.08. In addition, the Board of Appeals may impose a lesser requirement instead of granting a complete waiver of any provision in this section if a complete waiver is not necessary to permit reception or transmission of amateur service communications at the waiver applicant's property, and the lesser requirement:

(i)

Will not preclude amateur service communications; and

(ii)

Is the minimum practicable regulation to accomplish the City's health, safety, and aesthetic objectives.

(c)

In determining whether to grant a complete or partial waiver of any provision in section 25.09.08 or to impose a lesser requirement, the Board must reasonably accommodate amateur radio communications.

3.

All other wireless communication facilities.

(a)

The Board of Appeals is authorized to grant a waiver from any and all of the standards of this section 25.09.08, except for the height restrictions for a freestanding antenna support structure in subsection c. of this section, upon showing that compliance with this section would impose an undue hardship or prohibit or have the effect of prohibiting the provision of wireless communication services or would result in unreasonable discrimination among providers of functionally equivalent wireless communication services.

(b)

Waiver requests from the height restrictions (subsection 25.09.08.c.2) for a freestanding antenna support structure may be granted by the Mayor and Council upon showing that compliance with this section would impose an undue hardship or prohibit or have the effect of prohibiting the provision of wireless communication services or would result in unreasonable discrimination among providers of functionally equivalent wireless communication services. When requesting a height waiver under this provision, the applicant must submit evidence to the Mayor and Council that the height requested for the freestanding antenna support structure is the minimum height necessary to provide adequate coverage for the area that is being served by the structure. The Mayor and Council, in reviewing any waiver request from this section, must also consider the impact that the increased height of the antenna support structure would have on properties in the area surrounding the proposed structure, including, but not limited to, the visibility of the structure from residences and proposed methods of mitigating the visibility of the structure.

(c)

This subsection 25.09.08.e.3. does not apply to antennas and wireless communication facilities specified in subsections 25.09.08.e.1. and 2.

4.

Procedures for all waivers.

(a)

Unless the Mayor and Council adopt by resolution different procedures for processing waivers from the height restrictions contained in subsection 25.09.08.e.3., all waivers of this section must be processed in accordance with the procedures applicable to variances contained in section 25.06.03 of this chapter.

(b)

A waiver applicant must provide supporting evidence and all information requested by the City. The City may hire an independent consultant to review such evidence, and the applicant must reimburse the City for the reasonable cost of hiring and utilizing such a consultant.

(Ord. No. 29-09, § 9, 10-26-09)