Smithville City Zoning Code
ARTICLE IV
Amendments, Appeals And Variances
Section 400.550 General Provisions.
[R.O. 1991 § 400.550; Ord. No. 2865-13 § 1(Exh. A § 400.550), 4-2-2013; Ord. No. 3239-24, 10-15-2024]
A.
Authority. The Governing Body of Smithville may, by ordinance, amend, supplement, change, modify or repeal these regulations and the district boundaries. No such amendment or change shall be adopted by the Governing Body until the Planning and Zoning Commission has held a public hearing and submitted its recommendation.
B.
Proposal Of Amendments. Amendments may be initiated by the Governing Body, the Planning and Zoning Commission or upon application by the owners of the property affected.
C.
Applications. When the owner of the property affected initiates an amendment to the regulations or the district boundaries, an application for such amendment shall be obtained from the Secretary of the Planning and Zoning Commission. Said application shall be completed in its entirety and filed with the Secretary of the Planning and Zoning Commission so that a public hearing date can be established.
D.
Certified Ownership List. The application for an amendment shall be accompanied by an ownership list either certified by a registered abstractor or compiled by the applicant from County records, listing the legal description and name and address of the owners of all property located within one hundred eighty-five (185) feet of the boundaries of the property for which the zoning change is requested.
E.
Fees. An application fee in an amount determined by the Board of Aldermen and contained in its' Schedule of Fees shall be submitted with the application. In addition to the application fee, the applicant shall pay for all costs associated with any required technical studies and the City's review of such studies, as well as reimburse the City for all expenses associated with public notices, certified letters, map reprinting, as well as engineering and legal costs incurred in reviewing and approving the applicant's request.
F.
Disposition Of Amendment Proposals. Upon receipt of a proposed amendment for the Governing Body or an application for an amendment from the owner of the property affected, the Planning and Zoning Commission shall hold a public hearing on the proposed amendment and forward to the Governing Body its findings and recommendations with respect to the proposed amendment.
Section 400.555 Hearings.
[R.O. 1991 § 400.555; Ord. No. 2865-13 § 1(Exh. A § 400.555), 4-2-2013]
A.
Public Hearing. The Planning and Zoning Commission shall hold a public hearing on each proposed amendment that is referred to, filed with or initiated by it. The Planning and Zoning Commission shall select a reasonable hour and place for such public hearing and it shall hold such hearing on the next regular meeting for which a public hearing may be scheduled from the date on which the proposed amendment is referred to, filed with or initiated by it. The Chairman may schedule special meetings from time to time with approval of the City Administrator.
B.
Notice Of Hearing. Public notice of a hearing on a proposed amendment shall be published by the City once in the official City newspaper and at least fifteen (15) days shall elapse between the date of the publication and the date set for such hearing. Such notice shall state the date, time and place of the hearing and shall contain a statement regarding the proposed change in regulations or restrictions or the zoning classification or zoning district boundaries of any property or the boundaries of any zoning district, such notice shall contain the legal description and street address or general street location of such property, its present zoning classification and the proposed classification. When a proposed amendment will affect the zoning classification of specific property, the City shall mail a written notice of the public hearing thereon containing the same information as the published notice thereof to the owner or owners of the property affected and to the owners of all property within one hundred eighty-five (185) feet of the boundaries thereof at least fifteen (15) days prior to the date of such hearing. The Planning and Zoning Commission may give such additional notice to other persons as it may from time to time provide by its rules.
C.
Conduct Of Hearing. The hearing shall be conducted and a record of the proceedings shall be preserved in such manner and according to such procedures as the Planning and Zoning Commission may from time to time prescribe by rule. Any interested person or party may appear and be heard at the hearing in person, by agent or by attorney. The Planning and Zoning Commission may request a report on any person, firm or corporation. If such a report is made, a copy thereof shall be made available to the applicant and any other interested persons and shall be available for review in the offices of the Planning and Zoning Commission at least three (3) days before the date set for the public hearing.
Section 400.560 Action By The Planning And Zoning Commission.
[R.O. 1991 § 400.560; Ord. No. 2865-13 § 1(Exh. A § 400.560), 4-2-2013]
A.
Recommendations. Upon the conclusion of the public hearing, the Planning and Zoning Commission shall prepare and adopt its recommendations and shall submit the same, together with a record of the hearing thereon, to the Governing Body. Said recommendation may be for approval, disapproval or approval in part and reasons for the recommendation shall be included.
B.
Amendments To The Text. When a proposed amendment would result in a change in the text of these regulations but would not result in a change of zoning classification of any specific property, the recommendation of the Planning and Zoning Commission shall contain a statement as to the nature and effect of such proposed amendment and determinations as to the following items:
1.
Whether such change is consistent with the intent and purpose of these regulations;
2.
The areas which are most likely to be directly affected by such change and in what way they will be affected; and
3.
Whether the proposed amendment is made necessary because of changed or changing conditions in the areas and zoning districts affected or in the area of jurisdiction of such changed or changing conditions.
C.
Amendments Of Zoning District Classifications. When a proposed amendment would result in a change in zoning classification of any specific property, the Planning and Zoning Commission shall make findings of fact on the extent to which the application is found to be compatible with the following:
1.
Character of the neighborhood.
2.
Consistency with the City's Comprehensive Plan and ordinances.
3.
Adequacy of public utilities and other needed public services.
4.
Suitability of the uses to which the property has been restricted under its existing zoning.
5.
Length of time the property has remained vacant as zoned.
6.
Compatibility of the proposed district classification with nearby properties.
7.
The extent to which the zoning amendment may detrimentally affect nearby property.
8.
Whether the proposed amendment provides a disproportionately great loss to the individual landowners nearby relative to the public gain.
Section 400.565 Action By The Governing Body.
[R.O. 1991 § 400.565; Ord. No. 2865-13 § 1(Exh. A § 400.565), 4-2-2013]
A.
Adoption Of Amendments. The Governing Body shall consider the request at their next regular meeting. Upon receipt of the recommendation of the Planning and Zoning Commission and any protest petitions that have been submitted, the Governing Body shall consider the application and may approve the recommendations of the Planning and Zoning Commission or take whatever action it deems necessary.
B.
Protest. If a written protest against a proposed amendment shall be filed in the office of the City Clerk within seven (7) days after the date of the action by the Planning and Zoning Commission on a proposed amendment, which protest is duly signed and acknowledged by the owners of thirty percent (30%) or more, either of the areas of the land (exclusive of streets and alleys) included in such proposed change or within an area determined by lines drawn parallel to and one hundred eighty-five (185) feet distant from the boundaries of the district proposed to be changed, then such proposed amendment shall not be passed except by a two-thirds (2/3) vote of the Governing Body. The provisions of Section 89.050, RSMo., relative to public hearing and official notice shall apply equally to all changes or amendments.
C.
Approved Action. If the Governing Body approves an application, it shall adopt an ordinance to that effect. If the official Zoning Map has been adopted by reference, the amending ordinance shall define the change or boundary as amended, shall order the official Zoning Map to be changed to reflect such amendment and shall amend the Section of the ordinance incorporating the same and shall reincorporate such map as amended.
Section 400.570 Conditional Use Permits.
[R.O. 1991 § 400.570; Ord. No. 2865-13 § 1(Exh. A § 400.570), 4-2-2013; Ord. No. 3239-24, 10-15-2024; Ord. No. 3266-25, 7-1-2025; Ord. No. 2915-15 § 2, 2-3-2015; Ord. No. 3266-25, 7-1-2025]
A.
Definition. "Conditional uses" are those types of uses which, due to their nature, are dissimilar to the normal uses permitted within a given zoning district or where product, process, mode of operation or nature of business may prove detrimental to the health, safety, welfare or property values of the immediate neighborhood and its environs. Within the various zoning districts, specific uses may be permitted only after additional requirements are complied with as established within this Section.
B.
Procedure. The consideration of a conditional use permit application shall be handled in the same manner as a zoning amendment regarding the requirement for public hearing, notices, protests and action by the Planning Commission and Governing Body. The application shall include a fee in an amount determined by the Board of Aldermen and contained in its' Schedule of Fees.
C.
Minimum Requirements. A conditional use permit shall not be granted unless specific written findings of fact directly upon the particular evidence presented support the following conclusions:
1.
The proposed conditional use complies with all applicable provisions of these regulations, including intensity of use regulations, yard regulations and use limitations.
2.
The proposed conditional use at the specified location will contribute to and promote the welfare or convenience of the public.
3.
The proposed conditional use will not cause substantial injury to the value of other property in the neighborhood in which it is to be located.
4.
The location and size of the conditional use, the nature and intensity of the operation involved in or conducted in connection with it and the location of the site with respect to streets giving access to it are such that the conditional use will not dominate the immediate neighborhood so as to prevent development and use of neighboring property in accordance with the applicable zoning district regulations. In determining whether the conditional use will so dominate the immediate neighborhood, consideration shall be given to:
5.
Off-street parking and loading areas will be provided in accordance with the standards set forth in these regulations and such areas will be screened from adjoining residential uses and located so as to protect such residential uses from any injurious effect.
6.
Adequate utility, drainage and other such necessary facilities have been or will be provided.
7.
Adequate access roads or entrance and exit drives will be provided and shall be so designed to prevent traffic hazards and to minimize traffic congestion in public streets and alleys.
D.
Additional Requirements. In granting a conditional use, the City may impose such conditions, safeguards and restrictions upon the premises benefited by the conditional use as may be necessary to reduce or minimize any potentially injurious effect of such conditional uses upon property in the neighborhood and to carry out the general purpose and intent of these regulations. The following additional conditions shall be a requirement for the approval of the following conditional uses:
1.
Swimming Pools.
a.
Shall be located at least ten (10) feet from the nearest property line.
b.
Shall be walled or fenced as to prevent uncontrolled access by children from the street or any adjacent property.
c.
Shall be screened by a solid or semisolid wall or fence at least six (6) feet but no more than eight (8) feet high and no closer than four (4) feet from any edge of the pool; and having a density of not less than eighty percent (80%) per square foot, where the property on which the pool is located abuts a residential district.
2.
Feedlots.
a.
b.
Drainage.
(1)
All ground surfaces within pens shall be so graded and compacted to insure positive drainage.
(2)
Surface runoff shall be so controlled that no appreciable amount of soil or manure is carried into any roadway ditch or drainage area where it will deposit and form sludge bands where flies and mosquitoes can breed or create water pollution.
3.
Auto Wrecking Yards, Junk Yards, Salvage Yards And Scrap Processing Yards.
a.
Shall be located on a tract of land at least three hundred (300) feet from a residential district zone.
b.
The operation shall be conducted wholly within a non-combustible building or within an area completely surrounded on all sides by a fence or wall at least eight (8) feet high. The fence or wall shall be of uniform height, uniform texture and color and shall be so maintained by the proprietor as to insure maximum safety to the public and preserve the general welfare of the neighborhood. The fence or wall shall be installed in such a manner as to retain all scrap, junk or other material within the yard. No scrap, junk or other salvaged materials may be piled so to exceed the height of this enclosing fence or wall.
c.
No junk shall be loaded, unloaded or otherwise placed either temporarily or permanently outside the enclosed building, fence or wall or within the public right-of-way.
d.
Burning of paper, trash, junk or other waste materials shall be permitted only after approval of the Fire Department, except when prohibited by the State Board of Health.
4.
Short-Term Loan Establishment.
a.
At the time of original approval, no such establishment shall be located within one (1) mile of another short-term loan establishment or pawnshop. This separation distance shall be measured from the point on the outer wall of the building housing each establishment that is closest to the other establishment.
b.
At the time of original approval no such establishment shall be located within one (1) mile of a hotel or motel.
c.
At the time of original approval no such establishment shall be located within one thousand (1,000) feet of any establishment that sells any intoxicating beverages, school, religious institution, senior citizen or public housing development, museum or a property or district which has been designated as a landmark or historic district.
d.
Such establishment shall be operated only as a principal use of a property and shall not be accessory to any other use. A short-term loan establishment shall not operate any accessory uses.
e.
At the time of original approval, no such establishment shall be located on a lot contiguous with or directly across the street or an alley from any property zoned "R-1," "R-2," "R-3," "R-4" or "R-5."
f.
Signage shall be limited to only one (1) wall or fascia sign on any building wall with total square feet of area of advertising copy not to exceed five percent (5%) of the total square feet of area of such wall. In multiple story buildings, the total height of the wall shall not exceed twenty (20) feet for computation purposes. No incidental, temporary, changeable copy, digital equipment displays, revolving, flashing, blinking, animated, movement by mechanical means or roof signs advertising such establishment shall be allowed.
g.
Paving and screening of the parking area shall be as required by ordinance.
h.
The applicant shall demonstrate that there shall be no negative impact on properties within five hundred (500) feet of the proposed establishment.
i.
The permit shall be limited to a two (2) year period but may be renewed by the Board of Aldermen after a public hearing; provided however, at the time of renewal, the applicant shall demonstrate that the establishment has not had a negative impact of the properties within five hundred (500) feet and that the establishment has complied with the Property Maintenance Code.
5.
Outpatient Facilities. Outpatient facilities for the treatment of alcohol and other drug abuse if the facility meets all of the following conditions:
a.
If a residential facility has not more than six (6) persons residing in the building at one time;
b.
The exterior appearance of the treatment facility shall reasonably conform to the exterior appearances of other dwellings in the vicinity; and
c.
A treatment facility shall not be located closer than five thousand two hundred eighty (5,280) feet to any other substance abuse treatment facility.
6.
Telecommunications Facilities.
a.
In addition to the general conditional use permit requirements established by this Chapter, telecommunications facilities, as defined herein, shall be subject to the following requirements except for telecommunications facilities subject to administrative approval as defined and specified herein.
b.
The purpose of this Subsection is to establish general guidelines for the siting of towers and antennas for commercial wireless telecommunications. The following goals are identified for the purpose of considering conditional use permits for telecommunications facilities:
(1)
Encourage the location of towers in non-residential areas and minimize the total umber of towers throughout the community.
(2)
Encourage strongly the joint use of new and existing tower sites.
(3)
Encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal.
(4)
Encourage users of towers and antennas to configure them in a way that minimizes the adverse visual impact of the towers and antennas.
(5)
Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively and efficiently.
c.
For the purpose of interpreting and/or granting conditional use permits for telecommunications facilities, the following definitions shall be used:
(1)
Alternative Tower Structure. Man-made trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camouflage or conceal the presence of antennas or towers.
(2)
Act. The Communications Act of 1934, as it has been amended from time to time, including by the Telecommunications Act of 1996, and shall include future amendments to the Communications Act of 1934.
(3)
Affiliate. When used in relation to an operator, another person who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the operator or operators principal partners, shareholders or owners of some other ownership interest; and when used in relation to the City/County, any agency, board, authority or political subdivision affiliated with the City/County or other person in which the City/County has a legal or financial interest.
(4)
Antenna. Any structure or device used to collect or radiate electromagnetic waves, including both directional antennas, such as panels, microwave dishes and satellite dishes and omnidirectional antennas, such as whips but not including satellite earth stations.
(5)
Antenna Height. The vertical distance measured from the base of the antenna support structure at grade to the highest point of the structure. If the support structure is on a sloped grade, then the average between the highest and lowest grades shall be used in calculating the antenna height.
(6)
Antenna Support Structure. Any pole, telescoping mast, tower tripod or any other structure which supports a device used in the transmitting or receiving of radio frequency energy.
(7)
Band. A clearly defined range of radio frequencies dedicated to a particular purpose.
(8)
Broadcast. To transmit information over the airwaves to two (2) or more receiving devices simultaneously. Information can be transmitted over local television or radio stations, satellite systems or wireless data communications networks.
(9)
Cell Site. A tract or parcel of land that contains the cellular communication antenna, its support structure, accessory building(s) and parking and may include other uses associated with an ancillary to cellular communication transmission.
(10)
Cellular Service. A telecommunications service that permits customers to use wireless, mobile telephones to connect, via low-power radio transmitter sites called cell sites, either to the public switched network or to other mobile cellular phones.
(11)
Cellular Telecommunications. A commercial low power mobile radio service licensed by the Federal Communications Commission (FCC) in a specific geographical area in which the radio frequency spectrum is divided into discrete channels which are assigned in groups to geographic cells within a service area and which are capable of being reused in different cells within the service area.
(12)
Cellular Telecommunications Facility. A cellular telecommunications facility consists of the equipment and structures involved in receiving telecommunication or radio signals from mobile radio communications source and transmitting those signals to a central switching computer which connects the mobile unit with the land-based telephone lines.
(13)
Channel. A segment of a frequency band. Also referred to simply as frequency.
(14)
Co-Location. Locating wireless communications equipment from more than one (1) provider on a single site.
(15)
Common Carrier. A public radio service in which a single licensee provides one-way or two-way service to multiple users.
(16)
Communication Tower. A guyed, monopole or self-supporting tower constructed as a freestanding structure or in association with a building, other permanent structure or equipment, containing one (1) or more antennas intended for transmitting or receiving television, AM/FM radio, digital, microwave, cellular, telephone or similar forms of electronic communication.
(17)
Communications Facility. A land use facility supporting antennas and microwave dishes that sends and/or receives radio frequencies signals. Communications facilities include structures or towers and accessory buildings.
(18)
Communications Transmission System Or Communications System. A wired communications transmission system, open video system or wireless communications transmission system regulated by this Code.
(19)
Cross Bar. A structure at or near the top of the low power mobile radio service telecommunications facility which provides support and horizontal separation for the antenna(s).
(20)
Digital Technology. Digital technology converts voice and data messages into digits that represent sound intensities at specific points of time and data content.
(21)
Directional Antenna. An antenna or array of antennas designed to concentrate a radio signal in a particular area.
(22)
Dish Antenna. A dish-like antenna used to link communications sites together by wireless transmission of voice or data. Also called microwave antenna or microwave dish antenna.
(23)
Effective Radiated Power (ERP). The product of the antenna power input and the numerically equal antenna power gain.
(24)
Enhanced Specialized Mobile Radio (ESMR). A specialized mobile radio network, which utilizes integrated digital enhanced network.
(25)
FAA. The Federal Aviation Administration.
(26)
FCC. The Federal Communications Commission.
(27)
Freestanding Low Power Mobile Radio Service Facility. A low power mobile radio service telecommunications facility that consists of a stand-alone support structure, antennas and associated equipment. The support structure may be a wooden pole, steal monopole, lattice tower, light standard or other vertical support.
(28)
Frequency. The number of cycles completed each second by a sound wave measured in hertz (Hz).
(29)
Governing Authority. The governing authority of the City/County.
(30)
Guyed Tower. A communication tower that is supported, in whole or in part, by guy wires and ground anchors.
(31)
Interference. Disturbances in reception caused by intruding signals or electrical current.
(32)
Land Mobile Systems. Two-way radio service for mobile and stationary units in which each user is assigned a particular frequency.
(33)
Lattice Tower. A guyed or self-supporting three- or four-sided, open, steel frame structure used to support telecommunications equipment.
(34)
License. The rights and obligations extended by the City/County to an operator to own, construct, maintain and operate its system within the boundaries of the City/County for the sole purpose of providing services to persons or areas outside the City/County.
(35)
Low Power Commercial Mobile Radio Network. A system of low power commercial telecommunications facilities which allow wireless conversation to occur from site to site.
(36)
Low Power Commercial Mobile Radio Service. Including:
(37)
Low Power Telecommunications Facility. An unmanned facility consisting of equipment for the reception, switching and/or receiving of wireless telecommunications operating at one thousand (1,000) watts or less effective radiated power (ERP) including, but not limited to, the following:
(a)
Point-to-point microwave signals.
(b)
Signals through FM radio translators.
(c)
Signals through FM radio boosters under ten (10) watts effective radiated power (ERP).
(d)
Cellular, enhanced specialized mobile radio (ESMR) and personal communications networks (PCN).
(e)
Private low power mobile radio service.
(38)
Lower Power Mobile Radio Service Telecommunications Facility. A facility which consists of equipment for the reception, switching and transmission of lower power mobile radio service communications.
(39)
MHz. Megahertz or one million (1,000,000) Hz.
(40)
Microcell. A low power mobile radio service telecommunications facility used to provide increased capacity in high call-demand areas or to improve coverage in areas of weak coverage.
(41)
Microwave. Electromagnetic radiation with frequencies higher than one thousand (1,000) MHz; highly directional signal used to transmit radio frequencies from point to point at a relatively low power level.
(42)
Microwave Antenna. A dish-like antenna manufactured in many sizes and shapes used to link communication sites together by wireless transmission of voice or data.
(43)
Mobile And Land Based Telecommunication Facility. Whip antennas, panel antennas, microwave dishes and receive-only satellite dishes and related equipment for wireless transmission with low wattage transmitters not to exceed five hundred (500) watts from a sender to one (1) or more receivers such as for mobile cellular telephones and mobile radio system facilities.
(44)
Monopole Tower (aka Self-Support Tower). A communication tower consisting of a single pole constructed without guy wires and ground anchors.
(45)
MW/cm2. Microwatts per square centimeter; a measurement of the radio frequencies hitting a given area.
(46)
Omnidirectional Antenna (aka Whip Antenna). An antenna that is equally effective in all directions and whose size varies with the frequency and gain for which it is designed.
(47)
Panel Antenna (aka Sector Antenna). An antenna that transmits signals in specific directions and are typically square or rectangular in shape.
(48)
Personal Communications Services (PCS). Digital wireless telephone technology such as portable phones, pagers, faxes and computers. Such mobile technology promises to allow each consumer to use the same telephone number wherever he/she goes. Also known as "personal communications network (PCN)."
(49)
Private Low Power Mobile Radio Service. All other forms of wireless telecommunications which have similar physical facilities to a low power commercial radio service but do not meet the definition of commercial mobile radio service.
(50)
Public Property. Any real property, easement, right-of-way, air space or other interest in real estate, including a street, owned or controlled by the City/County or any other governmental unit.
(51)
Repeater. A low power mobile radio service telecommunications facility that extends coverage of a cell to areas not covered by the originating cell.
(52)
Roof And/or Building Mount Facility. A low power mobile radio service telecommunications facility in which antennas are mounted to an existing structure on the roof (including rooftop appurtenances) or building face.
(53)
Self-Support Tower. A communication tower that is constructed without guy wires and ground anchors. (Examples could include lattice and monopole tower types.)
(54)
Specialized Mobile Radio (SMR). A mobile radio which is utilized in conjunction with an enhanced special mobile radio network, which includes dispatch and interconnect services.
(55)
Telecommunications. The transmission, between or among points as specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.
(56)
Telecommunications Facility. Consists of the equipment and structures involved in the transmission, between or among points as specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.
(57)
Tower. Any structure that is designed and constructed primarily for the purpose of supporting one (1) or more antennas, including self-supporting lattice towers, guy towers or monopole towers. The term includes radio and television transmission towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structure and the like.
(58)
VHF. Very high frequency with bands from thirty (30) to three hundred (300) MHz; includes FM radio, VHF — TV (Channels 2 to 13) and some land mobile and common carriers.
(59)
Wavelength. The distance between point of corresponding phases of a periodic wave of two (2) constant cycles. Wavelength equals wave velocity/frequency.
d.
All telecommunications facilities shall comply with the following requirements:
(1)
Radio Frequency Radiation. The tower and facilities shall meet all Federal Communications Commission requirements for radio frequency emissions.
(2)
Federal Requirements.
(a)
All towers must meet or exceed current standards and regulations of the FAA, the FCC and any other agency of the Federal Government with the authority to regulate towers and antennas. If such standards and regulations are changed, then it is the responsibility of the carrier to promptly comply with said regulations.
(b)
Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense.
(3)
Building Codes/Safety Standards. To ensure the structural integrity of towers, the owner of a tower shall ensure that it is constructed and maintained in compliance with standards contained in applicable local building codes and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If, upon inspection, the governing authority concludes that a tower fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have thirty (30) days to bring such tower into compliance with such standards. If the owner fails to bring such tower into compliance within said thirty (30) days, the governing authority may order the removal or cause the removal of such tower at the owner's expense.
(4)
Removal Of Abandoned Towers. Any tower that is no longer in use for its original communications purpose shall be removed at the owner's expense. The owner shall provide the City with a copy of the notice to the FCC of intent to cease operations and shall be given ninety (90) days from the date of ceasing operations to remove the obsolete tower and accessory structures. In the case of multiple operators sharing use of a single tower, this provision shall not become effective until all users cease operations. The equipment on the ground is not to be removed, however, until the tower structure has first been dismantled and removed.
(5)
Amateur Radios And Receive-Only Antennas. This Subsection shall not govern any tower or the installation of any antenna that is under seventy (70) feet in height and is owned and operated by a Federally licensed amateur radio station operator or is used exclusively for receive-only antennas.
(6)
As-Built Plans. Within sixty (60) days of completion of the initial construction and any additional construction, each facility owner shall furnish two (2) complete sets of plans, drawn to scale and certified to the City as accurately depicting the location of all telecommunications facilities constructed pursuant to this Subsection.
(7)
Inspection. At least every twenty-four (24) months, the tower shall be inspected by an expert who is regularly involved in the maintenance, inspection and/or erection of communication towers. At a minimum, this inspection shall be conducted in accordance with the tower inspection checklist provided in the Electronics Industries Association (EIA) Standard 222, Structural Standards for Steel Antenna Towers and Antenna Support Structures. A copy of such inspection record shall be provided to the City.
(8)
Underground Placement Of Cables, Wires And Facilities. In all areas of the City where the cables, wires and other like facilities of public utilities exist underground or are required by the City to be placed underground, an operator shall also place its cables, wires or other facilities underground.
(9)
Disturbances. In the case of any disturbance to a street or other public property caused by an operator during the course of constructing or maintaining its system facilities, an operator shall, at its own expense, replace and restore all paving, sidewalk, driveway, landscaping or surface of any street or other public property disturbed in as good or better condition as before the disturbance in accordance with applicable Federal, State and local laws, rules, regulations or administrative decisions. The duty to restore the street or other public property shall include the repair of any area identified by the Development Director as being weakened or damaged as a result of a cut or to other invasion of the pavement of a street or other public property.
e.
Towers and antennas shall comply with the following standards:
(1)
Permitted By Right. Antennas may locate on any legally existing tower, provided however, that any associated equipment buildings shall be subject to final development plan approval. All ground-mounted equipment would be subject to final plan approval.
(2)
Administrative Approval. The Community Development Director may administratively approve installation of antennas on existing structures in zoning categories "B-2," "B-3," "I-1" and "I-2" provided said antennas and associated equipment meet the following requirements:
(a)
Antennas shall not exceed the height of the existing structure by more than ten (10) feet.
(b)
Antennas installed on an existing building shall be finished or painted a color similar if not identical to the exterior of said building.
(c)
The total number of antennas on a building may not exceed six (6).
(d)
The total number of antennas on a structure other than a building or tower may not exceed three (3).
(e)
All associated equipment shall be completely obstructed from view from the ground.
(f)
Administrative approval shall be in effect provided said installation meets the above requirements. In the event that an installation fails to meet any of the above requirements, administrative approval shall be immediately revoked.
(3)
Conditional Use Permits. A conditional use permit is required to construct a tower, antenna support structure, communication tower, guyed tower, lattice tower, monopole tower, repeater or self-support tower in Zoning Districts "A-1," "B-2," "B-3," "R-4," "I-1," "I-2" and "PUD" and on public lands, public and private parks, golf courses and as a secondary use on facilities otherwise exempt from the Zoning Code.
(4)
Not Permitted. No form of tower, antenna support structure, communication tower, guyed tower, lattice tower, monopole tower, repeater or self-support tower is permitted in Zoning Districts "R-S," "R-1," "R-2," "R-3," "B-1" and "B-4."
(5)
Height And Setback Limitations.
(a)
Towers permitted by conditional use permit shall not exceed a maximum height of one hundred (100) feet. Fifty (50) additional feet may be added, at the discretion of the Planning and Zoning Commission and Board of Aldermen, to accommodate co-location if the applicant submits information certifying the capacity of the tower for two (2) additional providers and a letter of intent from the applicant indicating their intent to share space. A lightning rod not to exceed ten (10) feet shall not be included within the height limitations.
(b)
Setbacks shall be equal to one and one-half (1 1/2) the antenna height unless an engineer certifies the fall zone will be within the setback area proposed. Guy wires and other support devices shall be no closer than twenty (20) feet from any lot line.
(c)
Setbacks for towers on a roof/structure may be as high as the distance to edge of the roof/structure; or the height of an equivalent ground-mounted tower may be used for a roof/structure-mounted tower if the setbacks for a ground tower are satisfied.
(6)
Separation. In zoning districts other than industrial districts, towers over ninety (90) feet in height shall not be located within one-quarter (1/4) of a mile from any existing tower that is over ninety (90) feet in height.
(7)
Co-Location. If a tower is constructed, it shall be three (3) times the capacity of intended use in order that secondary users could lease the balance of the tower capacity at a reasonable rate. Proof must be presented to the City that there are no other suitable sites within a one (1) mile radius of the proposed tower site.
(8)
Aesthetics. All towers and accessory facilities shall be sited to have the least practical adverse visual effect on the environment. Towers shall not be lighted except to assure human safety as required by the Federal Aviation Administration (FAA). Towers should be a galvanized finish or painted gray or light blue unless other standards are required by the FAA. In all cases, monopole towers shall be preferable to guyed towers or freestanding structures. Towers should be designed and sited so as to avoid, whenever possible, application of FAA lighting and painting requirements.
(9)
Antennas On Structures Other Than Towers. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible. Microwave antennas exceeding twelve (12) inches in diameter on a roof or building-mounted facility shall not exceed the height of the structure to which they are attached, unless fully enclosed.
(10)
Accessory Equipment Storage. Mobile or immobile equipment not used in direct support of a tower facility shall not be stored or parked on the site of the communication tower, unless repairs to the tower are being made.
(11)
Screening And Fencing. The base of the tower shall be screened from view with a solid screening fence a minimum of six (6) feet in height. The materials of the fence, including any proposed razor wire or other security wire, shall be subject to the review and approval of the Planning and Zoning Commission and/or Board of Aldermen. The Planning and Zoning Commission and/or Board of Aldermen shall have the ability to waive the required screening wall where the design of the accessory building is architecturally compatible to the primary use of the property.
(12)
Design. Facility colors and designs should be compatible with surrounding buildings and/or uses in the area or those likely to exist in the area and should prevent the facility from dominating the surrounding area.
(13)
Lighting. Towers shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the governing authority may review the available lighting alternatives and approve the design that would cause the lease disturbance to the surrounding views. Security lighting around the base of a tower may be provided if the lighting is shielded so that no light is directed towards adjacent properties or rights-of-way.
(14)
Landscaping.
(a)
Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound from adjacent residential property. The standard buffer shall consist of a landscaped strip at least four (4) feet wide outside the perimeter of the compound.
(b)
In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived altogether by the Planning and Zoning Commission and/or Board of Aldermen.
(15)
Parking Area And Drives. All parking areas and drives associated with the communications tower shall comply with applicable provisions for such facilities in each zoning district.
(16)
Accessory Use Provisions. Accessory uses shall include only such buildings and facilities necessary for transmission functions and satellite ground stations associated with them, but shall not include broadcast studios, offices, vehicle storage area or other similar uses not necessary for the transmission function.
f.
In addition to all other application requirements, conditional use permit applications for telecommunications facilities shall be required to provide the following:
(1)
Written authorization from the property owner of the proposed tower site.
(2)
A site plan:
(a)
Drawn to scale.
(b)
Showing the property boundaries.
(c)
Showing any tower guy wire anchors and other apparatus.
(d)
Existing and proposed structures.
(e)
Scaled elevation view.
(f)
Access road(s) location and surface material.
(g)
Parking area.
(h)
Fences.
(i)
Location and content of (any or warning) signs.
(j)
Exterior lighting specifications.
(k)
Landscaping plan.
(l)
Land elevation contours.
(m)
Existing land uses surrounding the site.
(3)
A written report, including:
(a)
Information describing the tower height and design.
(b)
A cross section of the structure.
(c)
Engineering specifications detailing construction of tower, base and guy wire anchorage.
(d)
Information describing the proposed painting and lighting schemes.
(e)
Information describing the tower's capacity, including the number and type of antennas that it can accommodate.
(4)
All tower structural information to be certified by a licensed PE.
(5)
Information indicating an acceptable area or radius in which a site could be located to provide services similar to the proposed facility. Based upon said information, applicant may be asked to explain why other sites deemed to be preferable by the Planning and Zoning Commission and/or Board of Aldermen were not selected. Explanations may include, but not be limited to:
(a)
Refusal by current tower owner.
(b)
Topographic limitations.
(c)
Adjacent impediments blocking transmission.
(d)
Site limitations to tower construction.
(e)
Technical limitations of the system.
(f)
Equipment exceeds structural capacity of facility or tower.
(g)
No space on existing facility or tower.
(h)
Other limiting factors rendering existing facilities or towers unusable.
Note: A pre-application meeting with staff and/or the Planning and Zoning Commission and/or Board of Aldermen to discuss possible alternatives is encouraged and may be mutually beneficial.
(6)
An inventory of capacity on existing towers in the area.
(7)
A photo simulation of the proposed facility from effected residential properties and public rights-of-way as coordinated with the planning staff.
(8)
A signed statement from the applicant indicating their intention to share space on the tower with other providers.
(9)
Additional information as requested by the Planning and Zoning Commission and/or Board of Aldermen.
(10)
In certain instances, there may be need for expert review by a third party of the technical data submitted by an applicant. Such a technical review shall be paid for by the applicant. Review is intended to report on technical aspects of proposed location but not to provide a subjective review of the site requested. Review will address accuracy, completeness, applicability and validity of data submitted. Applicant will be notified in advance of said review and allowed to provide written comments regarding the need for and cost of such a review.
7.
Accessory Dwelling Units (ADUs).
a.
A surveyor stamped plot plan shall be following conditions will be met upon completion of construction:
(1)
That a stand-alone ADU is not included less than twenty (20) nor more than one hundred (100) feet from the principal structure on the lot.
(2)
That the total lot coverage with both the principal structure, the ADU and any other accessory structure located on the lot do not exceed thirty percent (30%) of the total lot area.
(3)
That an ADU is not less than four hundred (400) square feet nor more than ninety percent (90%) of the area of the principal structure located on the lot or parcel and shall in no event exceed the height of the principal structure. The ten percent (10%) minimum size provision above shall apply except when a larger size is required to meet the minimum building code requirements in place at the time of application.
b.
Elevation plans of the proposed ADU shall be included with the application that shows the following:
(1)
Each side of the proposed structure, along with proposed colors and materials in order to make the findings required in Section 400.570(C)(4).
(2)
Adequate screening for any access point to an ADU located within an existing principal structure is shown and provided.
(3)
A site plan that includes the proposed vehicular ingress/egress and off-street parking in order to make the findings required in Section 400.570(C)(5) and (6).
Section 400.575 Non-Conformities.
[R.O. 1991 § 400.575; Ord. No. 2865-13 § 1(Exh. A § 400.575), 4-2-2013]
A.
Generally. Non-conformities are of three (3) types: non-conforming lots of record, non-conforming structures and non-conforming uses. A definition of each type is as follows:
1.
Non-Conforming Lot Of Record. A lot which is part of a recorded plat prior to the original adoption of subdivision regulations in the City and neither said lot nor parcel complies with the lot width or area requirements for a permitted use in the district in which it is located.
2.
Non-Conforming Structure. An existing structure which does not comply with the lot coverage, height or yard requirements which are applicable to new structures in the zoning district in which it is located.
3.
Non-Conforming Use. An existing use of a structure or of land which does not comply with the use regulations applicable to new uses in the zoning district in which it is located.
B.
Non-Conforming Lots Of Record. The Zoning Administrator shall issue a zoning certificate for any non-conforming lot of record provided that:
1.
Said lot is shown by a recorded plat or deed to have been owned separately and individually from adjoining tracts of land at a time when the creation of a lot of such size and width at such location would not have been prohibited by any zoning regulations; and
2.
Said lot has remained in separate and individual ownership from adjoining tracts of land continuously during the entire time that the creation of such lot has been prohibited by the applicable zoning regulations; and
3.
Said lot can meet all setback requirements for the district in which it is located; and
4.
Said lot can connect with a public sewer system or can meet the minimum sanitary sewer requirements of the City.
C.
Non-Conforming Structures.
1.
Authority To Continue. Any structure which is devoted to a use which is permitted in the zoning district in which it is located, but which is located on a lot which does not comply with the applicable intensity of use regulations and/or the applicable yard and height regulations, may be continued, so long as it remains otherwise lawful.
2.
Enlargement, Repair, Alterations. Any non-conforming structure may be enlarged, maintained, repaired or remodeled; provided however, that no such enlargement, maintenance, repair or remodeling shall either create any additional non-conformity or increase the degree of existing non-conformity of all or any part of such structure.
3.
Damage Or Destruction. In the event that any non-conforming structure is damaged or destroyed, by any means, to the extent of more than fifty percent (50%) of its square footage, such structure shall not be restored unless it shall thereafter conform to the regulations for the zoning district in which it is located. When a structure is damaged to the extent of fifty percent (50%) or less, no repairs or restoration shall be made unless a zoning certificate is obtained within six (6) months and restoration is actually begun within one (1) year after the date of such partial destruction and is diligently pursued to completion.
4.
Moving. No non-conforming structure shall be moved in whole or in part for any distance whatever to any other location on the same or any other lot unless the entire structure shall thereafter conform to the regulations of the zoning district in which it is located after being moved.
D.
Non-Conforming Uses.
1.
Authority To Continue. Any lawfully existing non-conforming use of part or all of a structure or any lawfully existing non-conforming use of land, not involving a structure or only involving a structure which is accessory to such use or land, may be continued, so long as otherwise lawful.
2.
Ordinary Repair And Maintenance.
a.
Normal maintenance and incidental repair or replacement, installation or relocation of non-bearing walls, non-bearing partitions, fixtures, wiring or plumbing may be performed on any structure that is devoted in whole or in part to a non-conforming use.
b.
Nothing in these regulations shall be deemed to prevent the strengthening or restoring to a safe condition of a structure in accordance with an order of a public official who is charged with protecting the public safety who declares such structure to be unsafe and orders its restoration to a safe condition.
3.
Extension. A non-conforming use shall not be extended, expanded, enlarged or increased in intensity. Such prohibited activities shall include, without being limited to:
a.
Extension of such use to any structure or land area other than that occupied by such non-conforming use on the effective date of these regulations (or on the effective date of subsequent amendments hereto that cause such use to become non-conforming).
b.
Extension of such use within a building or other structure to any portion of the floor area that was not occupied by such non-conforming use on the effective date of these regulations (or on the effective date of subsequent amendments hereto that cause such use to become non-conforming); provided however, that such use may be extended throughout any part of such building or other structure that was lawfully and manifestly designed or arranged for such use on such effective date.
4.
Enlargement. No structure that is devoted in whole or in part to a non-conforming use shall be enlarged or added to in any manner unless such structure and the use thereof shall thereafter conform to the regulations of the district in which it is located.
5.
Damage Or Destruction. In the event that any structure that is devoted in whole or in part to a non-conforming use is damaged or destroyed, by any means, to the extent of more than fifty percent (50%) of its square footage, such structure shall not be restored unless such structure and the use thereof shall thereafter conform to all regulations of the zoning district in which it is located. When such damage or destruction is fifty percent (50%) or less, no repair or restoration shall be made unless a zoning certificate is obtained within six (6) months and restoration is actually begun within one (1) year after the date of such partial destruction and is diligently pursued to completion.
6.
Moving. No structure that is devoted in whole or in part to a non-conforming use and no non-conforming use of land shall be moved in whole or in part for any distance whatever to any location on the same or any other lot, unless the entire structure and the use thereof or the use of land shall thereafter conform to all regulations of the zoning district in which it is located after being so moved.
7.
Change In Use. If no structural alterations are made, any non-conforming use of a structure or structure and premises may be changed to another non-conforming use provided that the Board of Adjustment, either by general rule or by making findings in the specific case, shall find that the proposed use is equally appropriate or more appropriate to the district than the existing non- conforming use. In permitting such change, the Board of Adjustment may require appropriate conditions and safeguards in accordance with Section 400.605(B).
8.
Abandonment Or Discontinuance. When a non-conforming use is discontinued or abandoned for a period of twelve (12) consecutive months, such use shall not thereafter be re-established or resumed and any subsequent use or occupancy of such land shall comply with the regulations of the zoning district in which such land is located.
9.
Non-Conforming Accessory Uses. No use which is accessory to a principal non-conforming use shall continue after such principal use shall cease or terminate.
10.
Non-Conforming Residential Uses. Notwithstanding the provisions of Subsections (C) and (D), any structure which is devoted to a residential use and which is located in a business or industrial district may be remodeled, extended, expanded and enlarged; provided that after any such remodeling, extension, expansion or enlargement, such structure shall not be used to accommodate a greater number of dwelling or lodging units than such structure accommodated prior to any such work.
Section 400.580 Status Of Conditional Uses.
[R.O. 1991 § 400.580; Ord. No. 2865-13 § 1(Exh. A § 400.580), 4-2-2013]
A.
Status Of Existing Conditional Uses. Where a use exists at the effective date of these regulations and is permitted by these regulations only as a conditional use in the zoning district in which it is located, such use shall not be deemed to be a non-conforming use, but shall, without further action, be deemed a lawful conforming use in such zoning district as provided by prior approval.
B.
Status Of Future Conditional Uses. Any use for which a conditional use permit has been issued, as provided in these regulations, shall not be deemed to be a non-conforming use, but shall, without further action, be deemed a lawful conforming use.
Section 400.585 Certificate Of Occupancy.
[R.O. 1991 § 400.585; Ord. No. 2865-13 § 1(Exh. A § 400.585), 4-2-2013]
A.
Affidavit Of Use. The owner of a non-conforming building or use shall certify by affidavit to the Zoning Administrator that said building or use was made non-conforming by the passage of these regulations. Upon acceptance of the affidavit, the Zoning Administrator shall issue a certificate of occupancy for said non-conforming use or building. Such certificate shall designate the location, nature and extent of such non-conformance.
B.
Violation Of Existing Codes. If, upon review of the affidavit, any violation of previous or existing ordinances or codes is found to exist, the Zoning Administrator shall not issue said certificate of occupancy and shall declare such use to be in violation of these regulations and shall act accordingly.
C.
Illegal Use. Any use not in conformance with these regulations and on which no certificate of occupancy has been issued shall be presumed to be an illegal use and shall be prosecuted accordingly.