The purpose and intent of this article is to minimize the negative impact of wireless telecommunications facilities, establish a fair and efficient process for review and approval of applications, protect the health, safety, and welfare of the citizens of Roswell, encourage the use of and assure the improved appearance and functionality of existing facilities and insure that all new facilities are constructed using stealth technologies and designed to accommodate future growth.

The following shall be exempt:

A.

The fire, police, department of transportation or other public service facilities owned and operated by the local, county, state, or federal government.

B.

Any facilities expressly exempt for the city's citing, building, and permitting authority.

C.

Over-the-air reception devices including the reception antennas for direct broadcast satellites (DBS), multi-channel, multipoint distribution (wireless cable) providers (MMDS), television broadcast stations (TVBS), and other customer-end antennas that receive and transmit fixed wireless signals and are primarily used for reception.

D.

Facilities exclusively for private, non-commercial radio and television reception and private citizen's bands, and other similar non-commercial telecommunications.

E.

FCC licensed amateur radio facilities require an administrative approval and are exempt from all aspects except reasonable screening, setback, placement, construction, tower height, and health and safety standards in accordance with New Mexico state law.

F.

Facilities exclusively for providing unlicensed spread spectrum technologies (such as IEEE 802.11a, b, g {Wi-Fi and Bluetooth}) where the facility does not require a new tower.

A.

Applicants for a telecommunications permit shall comply with the requirements set forth in this article. The city council designates the planning and zoning department as the administrator to whom applications for a telecommunications permit must be made, and that is authorized to review, analyze, evaluate, and make decisions with respect to granting, not granting, or revoking permits. The city may at its discretion designate the planning and zoning commission to accept, review, analyze, evaluate, and make recommendations to the city council with respect to the granting, not granting, or revoking of permits that are appealed to the city council.

B.

The applicant shall complete the following steps, in order, to assist the administrator in expediting the completion of the process:

1.

Obtain and review this article and discuss any questions regarding the process or its requirements with the administrator.

2.

Determine the best potential location for the telecommunications facility, taking into consideration, the city's defined priorities that meet the applicant's requirements for service. The application process will require an explanation for a selected location not using the highest priority available to the applicant. The city's priorities (listed from highest to lowest) are:

a.

On existing towers or structures without increasing their height.

b.

On city-owned properties.

c.

On properties zoned for industrial use.

d.

On properties zoned for commercial use.

e.

On properties zoned for residential use.

3.

Attend the pre-application meeting to address issues to help expedite the review and permitting process. A pre-application meeting shall also include a site visit. The pre-application meeting will determine the types of applications being made, define information required to support the proposed location, and define the specific application requirements for what is needed for review and consideration by the city. Requirements will vary based on the specific location, type of facility selected, and its potential impact to the city and its citizens.

4.

Deposit funds sufficient to reimburse the city for all reasonable costs of expert consultation in connection with the review of the application and construction or modification of the site. Funds will be deposited into an escrow account controlled by the city. The city's consultant shall invoice the city as needed for reviewing the application or performing construction inspections. Funds remaining in the escrow account after issuance of the certificate of compliance shall be returned to the applicant. The initial amount of the escrow deposit and the minimum balance to be maintained throughout the project varies based on the type of project as defined below:

a.

New towers require an initial deposit of $8,500.00 (prior to a pre-application meeting) and maintaining a balance of $2,500.00 throughout the project.

b.

Co-locations or material modifications on existing structures without increasing the height requires an initial deposit of $5,000.00 (prior to a pre-application meeting) and maintaining a balance of $1,500.00 throughout the project.

c.

Applicants applying for a permit for multiple (three or more) projects concurrently may negotiate a lower initial escrow amount since many aspects of concurrent projects may be addressed at the same time.

d.

Should an escrow account fall below prescribed minimums and the city requests additional funding, all work will stop until the escrow account is replenished.

5.

Submit three copies of the application to the administrator. Incomplete applications will not be accepted.

6.

Submit a report inventorying existing suitable towers and structures within two miles of the proposed new tower, unless the applicant can show that some other distance is more reasonable and demonstrate why an existing structure cannot be used.

C.

The city and its consultant will review the application to verify if it is complete and that it meets the requirements of this article. Based on the review of the application the city may:

1.

Approve, approve with conditions, or deny a telecommunications permit. Its decision shall be in writing and shall be supported by evidence contained in a written record. The burden of proof for the granting of the permit shall always be upon the applicant.

2.

Based on the agreed upon location for a new tower, if it is located in a residential zone district, or if any variance is required, this application shall require a public hearing through the planning and zoning commission.

D.

The city's approval or denial of an application shall be provided to the applicant in writing within ten business days of the decision.

E.

Appeals of the administrator's decision shall comply with article 3, section 5 of this ordinance.

F.

Limitations shall comply with article 3, section 4 of this ordinance.

G.

An applicant that receives an approved permit may proceed to the construction phase of the project. Since the application fee includes the building permit for the tower only, any additional support buildings will require a separate building permit and fee. The city will conduct its normal building inspection process during construction.

H.

When the applicant completes construction of the project, the applicant shall notify the administrator of the need for a final inspection.

I.

When the city has verified that the site is constructed in accordance with the application, meets all the requirements of the article, and that the applicant has paid all monies due to the city, the city shall issue a certificate of occupancy to the applicant that allows operational use of the site.

A.

All applications shall contain a demonstration that the facility will be sited so as to be the least visually intrusive as reasonably possible.

B.

All applications for the construction or installation of new wireless telecommunications facilities shall contain the information hereinafter set forth.

C.

The application requirements may vary based on the type of facility and its location. Final determination of the specific information to be included with each application shall be defined in the pre-application meeting, but shall generally follow the established guidelines as set forth below:

1.

An application to co-locate on an existing structure or modify an existing structure without increasing its height shall include: The names, addresses, and phone numbers of the person preparing application; the applicant; including legal name; the telecommunications facility owner; the property owner; the building contractors; the postal address and legal description of the property and its zoning designation; written verification that the facility complies with state and federal rules and regulations; a copy of the state license and the City of Roswell Business License; and documentation that verifies the ownership of the site, and all lease or sublease agreements.

2.

The applicant shall furnish a visual impact assessment, which shall include a "ZONE of Visibility Map" to determine locations from which the tower may be seen and pictorial "before and after" representations of proposed facility.

3.

A certified site plan which shall include: The location, size, and height of all structures on the property to scale; landscaping, irrigation, and fencing; a description of the proposed tower and antenna(s) for aesthetics; grounding; parking and turn around facilities; signage; and, demonstrate how it shall effectively screen from view the base and all related structures.

4.

A copy of the geotechnical sub-surface soils investigation, evaluation report, drainage report, and foundation recommendation for a proposed or existing tower site.

5.

Certification that the telecommunications facility, foundation, and attachments are designed and will be constructed to meet all local structural requirements for loads, including wind and ice loads.

6.

Verification that proposed facility complies with current FCC RF emissions guidelines.

7.

Documentation that satisfies the liability insurance requirements.

8.

Documentation that satisfies the performance bond requirements.

9.

Applications to co-locate on or modify an existing structure where an increase in height is requested shall require the above information and: Documentation demonstrating the need for the proposed height of the facility; propagation studies of the proposed site and all adjoining proposed and existing sites; certified structural drawings verifying structure can handle the load of additional antennas and/or structure; supporting documents showing actual intended transmission and the maximum effective radiated power of the antenna(s); and equipment specification sheets for the proposed radio, combiner, isolator, and antennas planned for the proposed and adjoining sites.

10.

An application to install a new tower or facility shall include the above information and: The number, type, and design of the tower(s) and antenna(s) proposed and the basis for the calculations of the tower's capacity to accommodate multiple users; and the applicant shall be required to submit documentation demonstrating its meaningful efforts to secure shared use of existing tower(s) or other structures within the city. Copies of written requests and responses for shared use shall be provided to the city in the application.

A.

Telecommunications facilities shall not be lighted or marked, unless required by law. If lighting is required, applicant shall provide a detailed plan for sufficient lighting as inoffensive as permissible under state and federal regulations. Applicant shall also be in compliance with the New Mexico Night Skies Act.

B.

Towers shall be galvanized and/or painted with rust-preventive paint of an appropriate color to harmonize with the surroundings and shall be maintained for the life of the tower.

"Stand alone" wireless telecommunications facilities shall be no closer to any property line than the total height of the completed unit, plus ten %. Should the structure collapse for any reason, it shall not be capable of falling onto an adjacent property or structure. The height is measured from the pre-existing grade to the highest point of the structure.

All wireless telecommunications facilities and antennas shall be located, fenced, or otherwise secured in a manner that prevents unauthorized access.

A.

Telecommunications facilities shall contain a sign no larger than four square feet to provide adequate notification to persons in the immediate area of the presence of RF radiation or to control exposure to RF radiation within a given area. A sign of the same size shall also be installed to contain the site identification number and emergency phone number(s). The sign shall be on the equipment shelter or cabinet and be visible from the access point of the site. On tower sites, an FCC registration site shall also be present. The signs shall not be lighted, unless required by law, rule, or regulation. No other signage, including advertising, shall be permitted.

B.

The applicant or future owner of the site shall update the site identification number and emergency phone numbers of the wireless telecommunications facility as displayed on the required sign within one month of any sale, assignment, or transfer.

A.

Such permit shall not be assigned, transferred, or conveyed without written notification to and approval from the city within six months.

B.

Such permit may, following a hearing upon due prior notice to the applicant, be revoked, canceled, or terminated for violation of the conditions and provisions of the telecommunications permit or for a material violation of this ordinance after prior written notice to the holder of the telecommunications permit and the applicant is given an opportunity to cure the same.

At the time a person submits an application for a telecommunications permit for a new tower or requires an increase in height to an existing tower, such applicant shall pay a non-refundable application fee of $3,000.00 to the city. If the application is for a telecommunications permit for co-locating on an existing tower or other suitable structure, where no increase in height of the tower or structure is required, the non-refundable fee shall be $1,000.00.

A.

A holder of a permit for wireless telecommunications facilities shall secure and at all times maintain public liability insurance for personal injuries, death, and property damage and umbrella insurance coverage for the duration of the permit in amounts as set forth below:

1.

Commercial general liability covering personal injuries, death, and property damage: $1,000,000.00 per occurrence/$2,000,000.00 aggregate.

2.

Automobile coverage: $1,000,000.00 per occurrence/$2,000,000.00 aggregate.

3.

Workers compensation and disability: Statutory amounts.

B.

The commercial general liability insurance policy shall specifically include the city and its officers, employees, agents, and consultants as additional named insured's.

C.

The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the state and with a "best's" rating of at least A.

D.

The insurance policies shall contain an endorsement obligating the insurance company to furnish the city with at least 30 days prior written notice of the cancellation of the insurance.

E.

Renewal or replacement policies or certificates shall be delivered to the city at least 15 days before the expiration of the insurance that such policies are to renew or replace.

F.

The insured shall provide the city a copy of the policies/certificates before construction, but in no case later than 15 days after the granting of the telecommunications permit.

If telecommunications facilities are repaired, rebuilt, placed, moved, relocated, modified, or maintained in a way not in compliance with this ordinance or the telecommunications permit, then the city shall notify the permit holder in writing of such violation. After receiving written notification of the violation, a permit holder has 60 days to cure such violations. The city shall consider extensions to the cure period as necessary upon the permit holder demonstrating that despite its good faith efforts, such default cannot be reasonably cured within the provided time. A permit holder still in violation after the expiration of the cure period may be considered in default, subject to fines as set forth in this ordinance, and the permit is subject to revocation.

A.

In the event a COW becomes inoperable due to force majeure or Acts of God, it must be removed from the site within 30 days of becoming inoperable.

B.

In regards to a special event where a COW is used, it must be removed from the site within 48 hours of the conclusion of the event.

C.

In the event of an emergency or natural disaster which renders other forms of communication nonviable, thus necessitating a COW, the city and the telecommunications provider shall agree to special terms and conditions as needed by the city and the telecommunications provider.

Any applicant desiring relief, waiver, or exemption from any requirement of this ordinance may request such at the pre-application meeting. The burden of proving the need for the request lies solely with the applicant. The applicant shall bear all costs to the city in considering the request. No request shall be approved unless the applicant provides convincing evidence that the request will have no significant effect on the health, safety, and welfare of the city or its residents.

A.

The city may require the removal of telecommunications facilities when: such items with a permit have been abandoned for a period exceeding 90 consecutive days or a total of 180 calendar days. The item shall be removed within 90 days; the permitted items fall into such disrepair that it creates a health or safety hazard as determined pursuant to a review by a New Mexico licensed engineer; an item has been located, constructed or modified without a permit, or in a manner inconsistent with the approved permit requirements; a certificate holder has failed to comply with the liability insurance requirements; and, such item is not repaired within 60 days, or longer as necessary upon the permit holder demonstrating that despite good faith efforts, such disrepair could not be responsibly cured within the provided time; and, the facilities have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required permit, or any other necessary authorization.

B.

If the city makes such a determination as noted in subsection (A) above, then the city shall notify the permit holder within 48 hours that said items are to be removed, the city may approve an interim temporary use agreement/permit, such as to enable the sale of the item. After receiving notice of such decision, the permit holder shall have 90 calendar days to cure the violation. The city shall extend such cure period as necessary upon the permit holder demonstrating that despite good faith efforts, such default cannot be reasonably cured.

C.

If the permit holder cannot cure the violation within the cure period, the permit holder shall dismantle and remove such item, and any associated structures, from the site and restore the site to as close to its original condition as possible, reasonable wear and tear excepted, within 90 days of the expiration of the cure period.

D.

If the item is not removed or substantial progress has not been made to remove it within 90 days of the permit holder receiving notice, then the city may order officials or representatives of the city to remove the item at the sole expense of the owner or permit holder.

E.

If the city removes, or causes to be removed, the item, and the owner does not claim and remove it from the site to a lawful location within 120 days, then the city may take steps to declare the item abandoned, and sell it and its components.

F.

Notwithstanding anything in this section to the contrary, the city may approve a temporary use permit/agreement for the item for no more than 90 days, during which time a suitable plan for removal, conversion or re-location of the affected item shall be developed by the holder of the permit, subject to the approval of the city, and an agreement to such plan shall be executed the holder of the permit and the city. If such a plan is not developed, approved, and executed within the 90 day time period, then the city may take possession of and dispose of the affected item in the manner provided in this section.

G.

If the city determines the item is a hazardous, creates an emergency situation, or adversely affects public safety, the city may remove or cause to be removed the item after three days written notice to the permit holder or the holder of the certificate of compliance.

The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall, at its cost and expense, be jointly required to execute and file with the city a bond, or other form of security acceptable to the city as to type of security and the form and manner of execution, in an amount of at least $75,000 for a tower facility and $25,000 for a co-location on an existing tower or other structure and with such sureties as are deemed sufficient by the city to assure the faithful performance of the terms and conditions of this ordinance and conditions of any special use permit issued pursuant to this ordinance. The full amount of the bond or security shall remain in full force and effect throughout the term of the special use permit and/or until any necessary site restoration is completed to restore the site to a condition comparable to that, which existed prior to the issuance of the original special use permit.