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Silverton City Zoning Code

§ 153.23

WIRELESS TELECOMMUNICATION FACILITIES.

   (A)   Severability.
      (1)   If any word, phrase, sentence, part, section, subsection, or other portion of this section or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this section and all applications thereof, not having been declared void, unconstitutional, or invalid, shall remain in full force and effect.
      (2)   Any conditional use permit issued under this section shall be comprehensive and not severable. If part of a permit is deemed or ruled to be invalid or unenforceable in any material respect by a competent authority, or is overturned by a competent authority, the permit shall be void in total, upon determination by the city.
   (B)   Definitions. For purposes of this section, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number and words in the singular number include the plural number. The word shall is always mandatory, and not merely directory.
      ACCESSORY FACILITY OR STRUCTURE. An accessory facility or structure serving or being used in conjunction with wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including but not limited to, utility or transmission equipment storage sheds or cabinets.
      ANTENNA. A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless signals. Such signals shall include, but not be limited to radio, television, cellular, paging, personal telecommunications services (PCS), microwave telecommunications and services not licensed by the FCC, but not expressly exempt from the city's siting, building and permitting authority.
      APPLICANT. Any wireless service provider submitting an application for a conditional use permit for wireless telecommunications facilities.
      APPLICATION. All necessary and appropriate documentation that an applicant submits in order to receive a conditional use permit for wireless telecommunications facilities.
      CO-LOCATION. The use of a tower or structure to support antennae for the provision of wireless services without increasing the height of the tower or structure.
      COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE. The inability to perform an act on terms that are reasonable in commerce, the cause or occurrence of which could not have been reasonably anticipated or foreseen and that jeopardizes the financial efficacy of the project. The inability to achieve a satisfactory financial return on investment or profit, standing alone, shall not deem a situation to be "commercially impracticable" and shall not render an act or the terms of an agreement "commercially impracticable."
      COMPLETED APPLICATION. An application that contains all information and/or data necessary to enable an informed decision to be made with respect to an application.
      FAA. The Federal Aviation Administration, or its duly designated and authorized successor agency.
      FCC. The Federal Communications Commission, or its duly designated and authorized successor agency.
      HEIGHT. When referring to a tower or structure, the distance measured from the pre-existing grade level to the highest point on the tower or structure, even if said highest point is an antenna or lightening protection device.
      NIER. Non-ionizing electromagnetic radiation.
      PERSON. Any individual, corporation, estate, trust, partnership, joint stock company, association of two or more persons having a joint common interest, or any other entity.
      PERSONAL WIRELESS FACILITY. See definition for WIRELESS TELECOMMUNICATIONS FACILITIES.
      PERSONAL WIRELESS SERVICES (PWS) or PERSONAL TELECOMMUNICATIONS SERVICE (PCS). Shall have the same meaning as defined and used in the 1996 Telecommunications Act.
      STATE. The State of Ohio.
      STEALTH or STEALTH TECHNOLOGY. To minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.
      TELECOMMUNICATION SITE. See definition for WIRELESS TELECOMMUNICATIONS FACILITIES.
      TELECOMMUNICATIONS. The transmission and/or reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.
      TELECOMMUNICATIONS STRUCTURE. A structure used in the provision of services described in the definition of WIRELESS TELECOMMUNICATIONS FACILITIES.
      TEMPORARY. Temporary in relation to all aspects and components of this section; something intended to, or that does, exist for fewer than 90 days.
      WIRELESS TELECOMMUNICATIONS FACILITIES. A structure, facility or location designed, or intended to be used as, or used to support, antennas or other transmitting or receiving devices. This includes, without limit, towers of all types and kinds and structures that employ camouflage technology, including but not limited to structures such as a multi-story building, church steeple, silo, water tower, sign or other structures that can be used to mitigate the visual impact of an antenna or the functional equivalent of such, including all related facilities such as cabling, equipment shelters and other structures associated with the site. It is a structure and facility intended for transmitting and/or receiving radio, television, cellular, paging, 911, personal telecommunications services, commercial satellite services, microwave services and services not licensed by the FCC, but not expressly exempt from the city's siting, building and permitting authority, excluding those used exclusively for the city's fire or police or exclusively for private, noncommercial radio and television reception, private citizen's bands, amateur radio and other similar noncommercial telecommunications where the height of the facility is below the height limits set forth in this chapter. Includes a “telecommunications tower” and “tower” and “telecommunications site” and “personal wireless facility.”
   (C)   Overall policy and desired goals for conditional use permits. In order to ensure that the placement, construction, and modification of wireless telecommunications facilities protects the city's health, safety, public welfare, environmental features, the nature and character of the community and neighborhood and other aspects of the quality of life specifically listed elsewhere in this section, the city hereby adopts an overall policy with respect to a conditional use permit for wireless telecommunications facilities for the express purpose of achieving the following goals:
      (1)   Implementing an application process for person(s) seeking a conditional use permit for wireless telecommunications facilities;
      (2)   Establishing a policy for examining an application for and issuing a conditional use permit for wireless telecommunications facilities that is both fair and consistent;
      (3)   Promoting and encouraging, wherever possible, the sharing and/or co-location of wireless telecommunications facilities among service providers; and
      (4)   Promoting and encouraging, wherever possible, the placement, height and quantity of wireless telecommunications facilities in such a manner, including but not limited to the use of stealth technology, to minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.
   (D)   Conditional use permit application and other requirements.
      (1)   All applicants for a conditional use permit for wireless telecommunications facilities or any modification of such facility shall comply with the requirements set forth in this section. The Planning Commission is the officially designated agency or body of the city to whom applications for a conditional use permit for wireless telecommunications facilities must be made, and that is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting, recertifying or not recertifying, or revoking conditional use permits for wireless telecommunications facilities. The city may, at its discretion, delegate or designate other official agencies of the city to accept, review, analyze, evaluate and make recommendations to the Planning Commission with respect to the granting or not granting, recertifying or not recertifying or revoking conditional use permits for wireless telecommunications facilities.
      (2)   An application for a conditional use permit for wireless telecommunications facilities shall be signed on behalf of the applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information. The landowner, if different than the applicant, shall also sign the application. At the discretion of the city, any false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.
      (3)   Applications for any zoning permit or conditional use permit required by this section shall be submitted to the Zoning Enforcement Officer with all fees and application content required pursuant to § 153.02(D) and (E). Applications not meeting the requirements stated herein or which are otherwise incomplete may be rejected by the city.
      (4)   General requirements. In addition to providing all of the required information, the following shall apply as part of the application:
         (a)   Any and all representations made by the applicant to the city on the record during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the city.
         (b)   All utilities at a wireless telecommunications facilities site shall be installed underground and in compliance with all laws, ordinances, rules and regulations of the city, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate.
         (c)   All wireless telecommunications facilities shall contain a demonstration that the facility be sited so as to be the least visually intrusive reasonably possible and thereby have the least adverse visual effect on the environment and its character, on existing vegetation, and on the residences in the area of the wireless telecommunications facility.
         (d)   Both the wireless telecommunications facility and any and all accessory or associated facilities shall maximize the use of building materials, colors and textures designed to blend with the structure to which it may be affixed and/or to harmonize with the natural surroundings. This shall include the utilization of stealth or concealment technology as may be required by the city.
         (e)   At a telecommunications site, an access road, turn-around space and parking shall be provided to assure adequate emergency and service access. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and the cutting of vegetation. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion.
         (f)   A person who holds a conditional use permit for wireless telecommunications facilities shall construct, operate, maintain, repair, provide for removal of, modify or restore the permitted wireless telecommunications facilities in strict compliance with all current applicable technical, safety and safety-related codes adopted by the city, state, or United States, including but not limited to the most recent editions of the National Electrical Safety Code and the National Electrical Code, as well as accepted and responsible workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include but are not limited to construction, building, electrical, fire, safety, health, and land use codes. In the event of a conflict between or among any of the preceding the more stringent shall apply.
         (g)   A holder of a conditional use permit granted under this section shall obtain, at its own expense, all permits and licenses required by applicable law, rule, regulation or code, and must maintain the same, in full force and effect, for as long as required by the city or other governmental entity or agency having jurisdiction over the applicant.
         (h)   An applicant shall submit to the city the number of completed applications determined to be needed at the pre-application meeting. Written notification of the application shall be provided to the legislative body of all adjacent municipalities and to the Zoning Enforcement Officer.
         (i)   The applicant shall examine the feasibility of designing a proposed tower to accommodate future demand for at least five additional commercial applications, for example, future co-locations. The tower shall be structurally designed to accommodate at least five additional antenna arrays equal to those of the applicant, and located as close to the applicant's antenna as possible without causing interference. This requirement may be waived, provided that the applicant, in writing, demonstrates that the provisions of future shared usage of the tower is not technologically feasible, is commercially impracticable or creates an unnecessary and unreasonable burden, based upon:
            1.   The foreseeable number of FCC licenses available for the area;
            2.   The kind of wireless telecommunications facilities site and structure proposed;
            3.   The number of existing and potential licenses without wireless telecommunications facilities spaces/sites; or
            4.   Available space on existing and approved towers.
         (j)   The owner of the proposed new tower and his or her successors in interest shall negotiate in good faith for the shared use of the proposed tower by other wireless service providers in the future, and shall:
            1.   Respond within 60 days to a request for information from a potential shared-use applicant;
            2.   Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers; and
            3.   Allow shared use of the new tower if another telecommunications provider agrees in writing to pay reasonable charges. The charges may include, but are not limited to a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity less depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference.
         (k)   Failure to abide by the conditions outlined above may be grounds for revocation of the conditional use permit for the tower.
         (l)   There shall be a pre-application meeting. The purpose of the pre-application meeting will be to address issues which will help to expedite the review and permitting process. A pre-application meeting shall also include a site visit if there has not been a prior site visit for the requested site. Costs of the city's consultants to prepare for and attend the pre-application meeting will be borne by the applicant.
         (m)   The holder of a conditional use permit shall notify the city of any intended modification of a wireless telecommunication facility and shall apply to the city to modify, relocate or rebuild a wireless telecommunications facility.
         (n)   In order to better inform the public, in the case of a new telecommunication tower, the applicant shall, prior to the public hearing on the application, hold a balloon test. The applicant shall arrange to fly, or raise upon a temporary mast, a minimum of a three-foot in diameter brightly colored balloon at the maximum height of the proposed new tower. The dates, (including a second date, in case of poor visibility on the initial date) times and location of this balloon test shall be advertised by the applicant seven and 14 days in advance of the first test date in a newspaper with a general circulation in the city. The applicant shall inform the city, in writing, of the dates and times of the test, at least 14 days in advance. The balloon shall be flown for at least four consecutive hours sometime between 7:00 a.m. and 4:00 p.m. on the dates chosen. The primary date shall be on a weekend, but in case of poor weather on the initial date, the secondary date may be on a weekday.
         (o)   The applicant will provide a written copy of an analysis, completed by a qualified individual or organization, to determine if the tower or existing structure intended to support wireless facilities requires lighting under Federal Aviation Administration Regulation Part 77. This requirement shall be for any new tower or for an existing structure or building where the application increases the height of the structure or building. If this analysis determines that the FAA must be contacted, then all filings with the FAA, all responses from the FAA, and any related correspondence shall be provided in a timely manner.
   (E)   Exceptions from a conditional use permit.
      (1)   No person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of wireless telecommunications facilities as of the effective date of this section without having first obtained a conditional use permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this section, no conditional use permit shall be required for those non-commercial exceptions noted in the definition of wireless telecommunications facilities.
      (2)   All wireless telecommunications facilities existing on or before the effective date of this section shall be allowed to continue as they presently exist, provided however, that any visible modification of an existing wireless telecommunications facility must comply with this section. This includes the maintenance of existing facilities or the replacement of existing antenna that does not substantially change the visible appearance of the existing facility. The replacement of any existing antenna shall require an approved zoning permit to confirm compliance with this requirement.
      (3)   The Zoning Enforcement Officer shall have the authority to determine if any modification is substantial enough as to not comply with this division and require the application to be resubmitted as a conditional use permit, pursuant to this Zoning Code.
      (4)   The placement of a new antenna on a previously approved tower that can accommodate an additional antenna, or the replacement of an existing antenna, shall require approval of a zoning permit.
   (F)   Location.
      (1)   Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities in accordance with the following priorities, division (a) below being the highest priority and division (d) below being the lowest priority.
         (a)   On existing towers or other structures without increasing the height of the tower or structure;
         (b)   On city-owned properties located in any zoning district;
         (c)   On properties in areas zoned for C-2 Highway Commercial District; and
         (d)   On properties in areas zoned for R-E Recreation-Education District.
      (2)   If the proposed site is not proposed for the highest priority listed above, then a detailed explanation must be provided as to why a site of a higher priority was not selected. The person seeking such an exception must satisfactorily demonstrate the reason or reasons why such a permit should be granted for the proposed site, and the hardship that would be incurred by the applicant if the permit were not granted for the proposed site.
      (3)   An applicant may not by-pass sites of higher priority by stating the site proposed is the only site leased or selected. An application shall address co-location as an option. If such option is not proposed, the applicant must explain to the reasonable satisfaction of the city why co-location is commercially or otherwise impracticable. Agreements between providers limiting or prohibiting co-location shall not be a valid basis for any claim of commercial impracticability or hardship.
      (4)   Notwithstanding the above, the city may approve any site located within an area in the above list of priorities, provided that the city finds that the proposed site is in the best interest of the health, safety and welfare of the city and its inhabitants, and will not have a deleterious effect on the nature and character of the community and neighborhood.
      (5)   The applicant shall submit a written report demonstrating the applicant's review of the above locations in order of priority, demonstrating the technological reason for the site selection. If appropriate, based on selecting a site of lower priority, a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.
      (6)   Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the city may disapprove an application for any of the following reasons:
         (a)   Conflict with safety and safety-related codes and requirements;
         (b)   Conflict with the historic nature or character of a neighborhood;
         (c)   The use or construction of wireless telecommunications facilities which is contrary to an already stated purpose of a specific zoning or land use designation;
         (d)   The placement and location of wireless telecommunications facilities which would create an unacceptable risk, or the reasonable probability of such, to residents, the public, employees and agents of the city, or employees of the service provider or other service providers; or
         (e)   Conflicts with the provisions of this section.
   (G)   Shared use of wireless telecommunications facilities and other structures.
      (1)   Locating on existing towers or other structures without increasing the height shall be preferred by the city, as opposed to the construction of a new tower. The applicant shall submit a comprehensive report inventorying existing towers and other suitable structures within four miles of the location of any proposed new tower, unless the applicant can show that some other distance is more reasonable and demonstrate conclusively why an existing tower or other suitable structure cannot be used.
      (2)   An applicant intending to locate on an existing tower or other suitable structure shall be required to document the intent of the existing owner to permit its use by the applicant.
      (3)   Such shared use shall consist only of the minimum antenna array technologically required to provide service primarily and essentially within the city, to the extent practicable, unless good cause is shown.
      (4)   Shared use of existing facilities shall not require a conditional use permit, but shall be required to received a zoning permit approval.
   (H)   Height.
      (1)   The applicant shall submit documentation justifying the total height of any tower, facility and/or antenna and the basis therefore. Such documentation will be analyzed in the context of the justification of the height needed to provide service primarily and essentially within the city, to the extent practicable, unless good cause is shown.
      (2)   The maximum permitted height of a new tower shall be 140 feet, based on six co-located antenna arrays requiring ten feet of vertical space each, and an ambient tree height of 80 feet.
      (3)   No tower constructed after the effective date of this section, including allowing for all attachments, shall exceed that height which shall permit operation without required artificial lighting of any kind in accordance with municipal, city, state, and/or any federal statute, law, local law, city ordinance, code, rule or regulation.
   (I)   Appearance and visibility.
      (1)   Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.
      (2)   Towers shall be galvanized and painted with a rust-preventive paint of a non-contrasting gray or similar color to harmonize with the surroundings and shall be maintained in accordance with the requirements of this section.
      (3)   Lights, beacons, or strobes of any kinds shall not be permitted on any tower, antenna, and equipment unless required by the Federal Aviation Administration.
   (J)   Security. All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner that prevents unauthorized access. Specifically:
      (1)   All antennas, towers and other supporting structures, including guy wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or collided with; and
      (2)   Transmitters and telecommunications control points shall be installed in such a manner that they are readily accessible only to persons authorized to operate or service them.
   (K)   Signage. Wireless telecommunications facilities shall contain a sign no larger than four square feet located near the base of the tower in order to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities and shall contain the name(s) of the owner(s) and operator(s) of the antenna(s), as well as emergency phone number(s). The sign shall be on the equipment shelter or cabinet of the applicant and be visible from the access point of the site and must identify the equipment owner of the shelter or cabinet. The sign shall not be lighted, unless lighting is required by applicable law, rule or regulation. No other signage, including advertising, shall be permitted.
   (L)   Lot size, setbacks, and screening requirements.
      (1)   All proposed towers and any other proposed wireless telecommunications facility structures shall be set back from any nonresidential property line a minimum of a distance equal to the height of the proposed tower or wireless telecommunications facility structure plus 10% of the height of the tower or structure.
      (2)   Towers and any other proposed wireless telecommunications facility structures shall be located no less than 500 feet from any residential district and no less than 250 feet from any public right-of-way.
      (3)   The minimum lot size of any tower or any other wireless telecommunications facility structure shall be one acre. Towers and any other wireless telecommunications facility structure shall be located no less than 30 feet from any other non-related buildings situated on the same site. Any accessory structure shall be located so as to comply with the applicable minimum setback requirements set forth in the underlying zoning district for the property on which it is situated.
      (4)   Any and all equipment related to the operation of a tower and any other wireless telecommunications facility structure located on the ground shall be fully screened with a minimum six-foot high solid wood privacy fence with continuous evergreen hedge vegetation, with a minimum initial tree height of five feet. All screening shall be located behind the specified setback lines. The tower or wireless telecommunications facility structure owner/operator is responsible for installing and maintaining said screening. Existing vegetation (trees and shrubs) shall be preserved to the maximum extent possible.
   (M)   Retention of expert assistance and reimbursement by applicant.
      (1)   The city may hire any consultant and/or expert necessary to assist the city in reviewing and evaluating the application, including the construction and modification of the site, once permitted, and any requests for recertification.
      (2)   An applicant shall deposit with the city funds sufficient to reimburse the city for all reasonable costs of consultant and expert evaluation and consultation to the city in connection with the review of any application, including the construction and modification of the site, once permitted. The initial deposit shall be $8,500. The placement of the $8,500 with the city shall precede the pre-application meeting. The city will maintain a separate escrow account for all such funds. The city's consultants/experts shall invoice the city for its services in reviewing the application, including the construction and modification of the site, once permitted. If at any time during the process this escrow account has a balance less than $2,500, the applicant shall immediately, upon notification by the city, replenish the escrow account so that it has a balance of at least $5,000. Such additional escrow funds shall be deposited with the city before any further action or consideration is taken on the application. In the event that the amount held in escrow by the city is more than the amount of the actual invoicing at the conclusion of the project, the remaining balance shall be promptly refunded to the applicant.
      (3)   The total amount of the funds needed as set forth in division (M)(2) of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
   (N)   Public hearing and notification requirements.
      (1)   Prior to the approval of any application for a conditional use permit for wireless telecommunications facilities, a public hearing before the Planning Commission shall be held by the city, notice of which shall be published in the official newspaper of the city no less than 15 calendar days prior to the scheduled date of the public hearing. In order that the city may notify nearby landowners, the application shall contain the names and addresses of all landowners whose property is located within 1,500 feet of any property line of the lot or parcel on which the new wireless telecommunications facilities are proposed to be located.
      (2)   There shall be no public hearing required for an application to co-locate on an existing tower or other structure, as long as there is no proposed increase in the height of the tower or structure, including attachments thereto.
      (3)   The city shall schedule the public hearing referred to in division (N)(1) of this section once it finds the application is complete. The city, at any stage prior to issuing a conditional use permit, may require such additional information as it deems necessary.
   (O)   Action on an application for a conditional use permit.
      (1)   The city will undertake a review of an application pursuant to this section in a timely fashion, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public's interest and need to be involved, and the applicant's desire for a timely resolution.
      (2)   The city may refer any application or part thereof to any advisory or other committee for a non-binding recommendation.
      (3)   After the public hearing and after formally considering the application, the Planning Commission may approve, approve with conditions, or deny a conditional use permit. Its decision shall be in writing and shall be supported by substantial evidence contained in a written record. The burden of proof for the grant of the permit shall always be upon the applicant.
      (4)   If the city approves the conditional use permit for wireless telecommunications facilities, then the applicant shall be notified of such approval in writing within ten calendar days of the city's action, and the conditional use permit shall be issued within 30 days after such approval. Except for necessary building permits, and subsequent certificates of compliance, once a conditional use permit has been granted hereunder, no additional permits or approvals from the city, such as site plan or zoning approvals, shall be required by the city for the wireless telecommunications facilities covered by the conditional use permit.
      (5)   If the city denies the conditional use permit for wireless telecommunications facilities, then the applicant shall be notified of such denial in writing within ten calendar days of the city's action.
   (P)   Recertification of a conditional use permit.
      (1)   Between 12 months and six months prior to the five-year anniversary date after the effective date of the conditional use permit and all subsequent five-year anniversaries of the effective date of the original conditional use permit for wireless telecommunications facilities, the holder of a conditional use permit for such wireless telecommunication facilities shall submit a signed written request to the city for recertification. In the written request for recertification, the holder of such conditional use permit shall note the following:
         (a)   The name of the holder of the conditional use permit for the wireless telecommunications facilities;
         (b)   If applicable, the number or title of the conditional use permit;
         (c)   The date of the original granting of the conditional use permit;
         (d)   Whether the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise visibly modified since the issuance of the conditional use permit and if so, in what manner;
         (e)   If the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise visibly modified, then whether the city approved such action, and under what terms and conditions, and whether those terms and conditions were complied with;
         (f)   That the wireless telecommunications facilities are in compliance with the conditional use permit and in compliance with all applicable codes, laws, rules and regulations; and
         (g)   Recertification that the tower and attachments both are designed and constructed and continue to meet all local, city, state and federal structural requirements for loads, including wind and ice loads. Such recertification shall be by a professional engineer licensed in the state, the cost of which shall be borne by the applicant.
      (2)   If, after such review, the city determines that the permitted wireless telecommunications facilities are in compliance with the conditional use permit and all applicable statutes, laws, local laws, ordinances, codes, rules and regulations, then the city issues a recertification of the conditional use permit for the wireless telecommunications facilities, which may include any new provisions or conditions that are mutually agreed upon, or that are required by applicable statutes, laws, ordinances, codes, rules or regulations. If, after such review, it is determined that the permitted wireless telecommunications facilities are not in compliance with the conditional use permit and all applicable statutes, laws, ordinances, codes, rules and regulations, then the city may refuse to issue a recertification of the conditional use permit for the wireless telecommunications facilities, and in such event, such wireless telecommunications facilities shall not be used after the date that the applicant receives written notice of the decision by the city, until such time as the facility is brought into compliance. Any decision requiring the cessation of use of the facility or imposing a penalty shall be in writing and supported by substantial evidence contained in a written record, and shall be promptly provided to the owner of the facility.
      (3)   If the applicant has submitted all of the information requested and required by this section, and if the review is not completed, as noted in division (P)(2) of this section, prior to the five-year anniversary date of the conditional use permit, or subsequent five-year anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the conditional use permit for up to six months, in order for the completion of the review.
      (4)   If the holder of a conditional use permit for wireless telecommunications facilities does not submit a request for recertification of such conditional use permit within the time frame noted in division (P)(1) of this section, then such conditional use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the conditional use permit, or subsequent five-year anniversaries, unless the holder of the conditional use permit adequately demonstrates that extenuating circumstances prevented a timely recertification request. If the city agrees that there were legitimately extenuating circumstances, then the holder of the conditional use permit may submit a late recertification request or application for a new conditional use permit.
   (Q)   Extent and parameters of a conditional use permit. The extent and parameters of a conditional use permit for wireless telecommunications facilities shall be as follows:
      (1)   Such conditional use permit shall be non-exclusive;
      (2)   Such conditional use permit shall not be assigned, transferred or conveyed without the express prior written notification to the city. In the event the real property interest in the telecommunications facilities is wholly or partially assigned, transferred or otherwise conveyed to a different person or entity holding a conditional use permit granted under this section, the city may require the new ownership interest to apply for recertification as provided for in division (P) of this section; and
      (3)   Such conditional use permit may, following a hearing upon due prior notice to the applicant, be revoked, canceled, or terminated for a violation of the conditions and provisions of the conditional use permit, or for a material violation of this chapter, after prior written notice to the holder of the conditional use permit.
   (R)   Application fee.
      (1)   At the time that a person submits an application for a conditional use permit for a new tower, such person shall pay a non-refundable application fee of $5,000 to the city. If the application is for a conditional use 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 $2,000.
      (2)   No application fee is required in order to rectify a conditional use permit for wireless telecommunications facilities, unless there has been a visible modification of the wireless telecommunications facility since the date of the issuance of the existing conditional use permit for which the conditions of the conditional use permit have not previously been modified. In the case of any modification, the fees provided in division (R)(1) of this section shall apply.
   (S)   Performance security. 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, and with such sureties as are deemed sufficient by the city to assure the faithful performance of the terms and conditions of this section and conditions of any conditional use permit issued pursuant to this section. The full amount of the bond or security shall remain in full force and effect throughout the term of the conditional 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 conditional use permit.
   (T)   Reservation of authority to inspect. In order to verify that the holder of a conditional use permit for wireless telecommunications facilities and any and all lessees, renters, and/or licensees of wireless telecommunications facilities, place and construct such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building, and zoning codes, laws, ordinances and regulations and other applicable requirements, the city may inspect all facets of said permit holder's, renter's, lessee's or licensee's placement, construction, modification and maintenance of such facilities, including but not limited to towers, antennas and buildings or other structures constructed or located on the permitted site.
   (U)   Annual NIER Certification. The holder of the conditional use permit shall, annually, certify to the city that NIER levels at the site are within the threshold levels adopted by the FCC.
   (V)   Liability insurance.
      (1)   A holder of a conditional use 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 conditional use permit in amounts as set forth below:
         (a)   Commercial general liability covering personal injuries, death and property damage: $1,000,000 per occurrence; $2,000,000 aggregate;
         (b)   Automobile coverage: $1,000,000 per occurrence; $2,000,000 aggregate; and
         (c)   Worker's Compensation and Disability: Statutory amounts.
      (2)   The commercial general liability insurance policy shall specifically include the city and its officers, boards, employees, committee members, attorneys, agents and consultants as additional named insureds.
      (3)   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".
      (4)   The insurance policies shall contain an endorsement obligating the insurance company to furnish the city with at least 30 days prior written notice in advance of the cancellation of the insurance.
      (5)   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.
      (6)   Before construction of a permitted wireless telecommunications facilities is initiated, but in no case later than 15 days after the granting of the conditional use permit, the holder of the conditional use permit shall deliver to the city a copy of each of the policies or certificates representing the insurance in the required amounts.
   (W)   Indemnification.
      (1)   Any application for wireless telecommunication facilities that is proposed for city property pursuant to this section shall contain a provision with respect to indemnification. Such provision shall require the applicant, to the extent permitted by the law, to at all times defend, indemnify, protect, save, hold harmless, and exempt the city and its officers, boards, employees, committee members, attorneys, agents, and consultants from any and all penalties, damages, costs, or charges arising out of any and all claims, suits, demands, causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might arise out of, or are caused by the placement, construction, erection, modification, location, products performance, use, operation, maintenance, repair, installation, replacement, removal, or restoration of said facility, excepting, however, any portion of such claims, suits, demands, causes of action or award of damages as may be attributable to the negligent or intentional acts or omissions of the city, or its servants or agents. With respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees, and expert witness fees are included in those costs that are recoverable by the city.
      (2)   Notwithstanding the requirements noted in division (W)(1) of this section, an indemnification provision will not be required in those instances where the city itself applies for and secures a conditional use permit for wireless telecommunications facilities.
   (X)   Fines.
      (1)   In the event of a violation of this section or any conditional use permit issued pursuant to this section, the city may impose and collect, and the holder of the conditional use permit for wireless telecommunications facilities shall pay to the city, fines or penalties as set forth below.
      (2)   A violation of this section is hereby declared to be an offense, punishable by a fine not exceeding $350 per day per occurrence, or imprisonment for a period not to exceed six months, or both for conviction of a first offense; for conviction of a second offense both, of which were committed within a period of five years, punishable by a fine not less than $350 nor more than $700 or imprisonment for a period not to exceed six months, or both; and, upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine not less than $700 nor more than $1,000, or imprisonment for a period not to exceed six months, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of this section or of such ordinance or regulation shall be deemed misdemeanors and for such purpose only all provisions of law relating to misdemeanors shall apply to such violations. Each week's continued violation shall constitute a separate additional violation.
      (3)   Notwithstanding anything in this section, the holder of the conditional use permit for wireless telecommunications facilities may not use the payment of fines, liquidated damages or other penalties, to evade or avoid compliance with this section or any division of this section. An attempt to do so shall subject the holder of the conditional use permit to termination and revocation of the conditional use permit. The city may also seek injunctive relief to prevent the continued violation of this chapter, without limiting other remedies available to the city.
   (Y)   Default and revocation.
      (1)   If wireless telecommunications facilities are repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this section or of the conditional use permit, then the city shall notify the holder of the conditional use permit in writing of such violation. Such notice shall specify the nature of the violation or noncompliance, and that the violations must be corrected within seven days of the date of the postmark of the notice, or of the date of personal service of the notice, whichever is earlier. Notwithstanding anything to the contrary in this division or any other division of this section, if the violation causes, creates or presents an imminent danger or threat to the health or safety of lives or property, the city may, at its sole discretion, order the violation remedied within 24 hours.
      (2)   If, within the period set forth in division (Y)(1) above, the wireless telecommunications facilities are not brought into compliance with the provisions of this section or of the conditional use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the city may revoke such conditional use permit for wireless telecommunications facilities, and shall notify the holder of the conditional use permit within 48 hours of such action.
   (Z)   Removal.
      (1)   Under the following circumstances, the city may determine that the health, safety, and welfare interests of the city warrant and require the removal of wireless telecommunications facilities:
         (a)   Wireless telecommunications facilities with a permit have been abandoned (i.e. not used as wireless telecommunications facilities) for a period exceeding 90 consecutive days or a total of 180 days in any 365-day period, except for periods caused by force majeure or Acts of God, in which case, repair or removal shall commence within 90 days;
         (b)   Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard; or
         (c)   Wireless telecommunications facilities have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required conditional use permit, or any other necessary authorization.
      (2)   If the city makes such a determination as noted in division (Z)(1) of this section, then the city shall notify the holder of the conditional use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed, the city may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
      (3)   The holder of the conditional use permit, or its successors or assigns, shall dismantle and remove such wireless telecommunications facilities, and all associated structures and facilities, from the site and restore the site to as close to its original condition as is possible, such restoration being limited only by physical or commercial impracticability, within 90 days of receipt of written notice from the city. However, if the owner of the property upon which the wireless telecommunications facilities are located wishes to retain any access roadway to the wireless telecommunications facilities, the owner may do so with the approval of the city.
      (4)   If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications facilities within 90 days after the permit holder has received notice, then the city may order officials or representatives of the city to remove the wireless telecommunications facilities at the sole expense of the owner or conditional use permit holder.
      (5)   If the city removes, or causes to be removed, wireless telecommunications facilities, and the owner of the wireless telecommunications facilities does not claim and remove it from the site to a lawful location within ten days, then the city may take steps to declare the wireless telecommunications facilities abandoned, and sell them and their components.
      (6)   Notwithstanding anything in this section to the contrary, the city may approve a temporary use permit/agreement for the wireless telecommunications facilities, for no more than 90 days, during which time a suitable plan for removal, conversion, or relocation of the affected wireless telecommunications facilities shall be developed by the holder of the conditional use permit, subject to the approval of the city, and an agreement to such plan shall be executed by the holder of the conditional use 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 wireless telecommunications facilities in the manner provided in this section.
   (AA)   Relief. Any applicant desiring relief, waiver or exemption from any aspect or requirement of this section may request such at the pre-application meeting, provided that the relief or exemption is contained in the original application for either a conditional use permit, or in the case of an existing or previously granted conditional use permit, a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete. However, the burden of proving the need for the requested relief, waiver or exemption is solely on the applicant to prove. The applicant shall bear all costs of the city in considering the request and the relief, waiver or exemption. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted, the relief, waiver or exemption will have no significant affect on the health, safety and welfare of the city, its residents and other service providers.
   (BB)   Periodic regulatory review by the city. 
      (1)   The city may at any time conduct a review and examination of this entire section.
      (2)   If after such a periodic review and examination of this section, the city determines that one or more provisions of this section should be amended, repealed, revised, clarified, or deleted, then the city may take whatever measures are necessary in accordance with applicable law in order to accomplish the same. It is noted that where warranted, and in the best interests of the city, the city may repeal this entire section at any time.
      (3)   Notwithstanding the provisions of divisions (BB)(1) and (BB)(2) of this section, the city may at any time, and in any manner (to the extent permitted by federal, state, or local law), amend, add, repeal, and/or delete one or more provisions of this section.
   (CC)   Adherence to state and federal rules and regulations.
      (1)   To the extent that the holder of a conditional use permit for wireless telecommunications facilities has not received relief, or is otherwise exempt from appropriate state and/or federal agency rules or regulations, then the holder of such a conditional use permit shall adhere to, and comply with, all applicable rules, regulations, standards, and provisions of any state or federal agency, including, but not limited to, the FAA and the FCC. Specifically included in this requirement are any rules and regulations regarding height, lighting, security, electrical and RF emission standards.
      (2)   To the extent that applicable rules, regulations, standards, and provisions of any state or federal agency, including but not limited to the FAA and the FCC, and specifically including any rules and regulations regarding height, lighting, and security are changed and/or are modified during the duration of a conditional use permit for wireless telecommunications facilities, then the holder of such a conditional use permit shall conform the permitted wireless telecommunications facilities to the applicable changed and/or modified rule, regulation, standard, or provision within a maximum of 24 months of the effective date of the applicable changed and/or modified rule, regulation, standard, or provision, or sooner as may be required by the issuing entity.
   (DD)   Conflict with other laws. Where this section differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by the city, state or federal government, this section shall apply.
(Ord. 2025-10, passed 5-1-25)