This chapter may be cited as the "Wireless Telecommunications Facilities Ordinance of the city of Sunland Park". (Ord. 2005-07, 10-4-2005)

   A.   Authority: This chapter is adopted pursuant to the enabling provisions of Section 3-17-1 and Section 3-21-1 through 3-21-14, NMSA, 1978, as amended.

   B.   Purpose: The purpose of this chapter is to establish regulations and general guidelines for the siting of wireless telecommunications facilities ("WTFs").

   C.   The goals of this chapter are to:

      1.   Protect residential areas and land uses from potential adverse impact of WTFs;

      2.   Minimize the total number of towers in the community;

      3.   Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers;

      4.   Encourage users of WTFs to locate them, to the extent possible, in areas where the adverse impact on the community is minimal;

      5.   Encourage users of WTFs to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening and innovative camouflaging techniques;

      6.   Enhance the ability of providers of telecommunications services to provide such services to the community quickly, effectively and efficiently;

      7.   Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures.

   D.   In furtherance of these goals and in approving sites for the location of towers and antennas, the city shall give due consideration to city's master plan, its zoning map, existing land uses and environmentally and historically sensitive areas. (Ord. 2005-07, 10-4-2005)

ALTERNATIVE TOWER STRUCTURE:    Such structures as 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.

ANTENNA: Any structure that radiates or receives radio or other communication signals.

CO-LOCATION: The physical attachment and/or placement of one (1) communication structure upon another communication structure, and may include placing different or similar communication structures on the receiving structure.

COMMERCIAL TOWER: A freestanding vertical structure that may or may not have various attachments thereto, which is intended to radiate and/or receive radio frequency signals for the purpose of providing a commercial service to the public. Commercial tower uses include, but are not limited to, cellular communications, paging stations, TV stations, AM and FM radio stations, two-way radio base stations, communication mobile service, common carrier wireless services and communications used for intra-business and inter-business purposes.

COMMUNICATION STRUCTURES:   Any structure, including antennas and satellite service devices, or any other device which is normally used for radio, television, microwave or wireless communications. This shall include any device that is attached to a new or an existing tower, or attached to a building facade or roof or other non-communication structure, and such attachment is made to the facade or roof vertically, horizontally and/or diagonally.

FACIAL MOUNT: The physical attachment of a communication structure to a building or other non-communication structure, which does not substantially increase the height of the building or structure. This can include attaching the structure either vertically, horizontally, or diagonally along the structure's building facade, facades, walls, roofs or other surfaces.

HEIGHT: When referring to a tower or other structure, "height" means the distance measured from the lowest adjacent ground level of the parcel of land vertically to the highest point on the tower or other structure, including the base pad and any antenna and whether attached to the ground, the building, or other structure(s).

HISTORIC RESOURCES OR DISTRICTS:   For the purposes of this chapter, a resource or district is considered historic if it is listed individually or collectively or eligible to be listed in the National Historic Landmark Register, the National Register of Historic Places or the State Register of Cultural Properties or if the resource or district has been identified by a governmental agency, such as the New Mexico Historic Preservation Division, as having significant value as an historic, cultural or archaeological resource.

PERSONAL (PRIVATE) TOWER:   A freestanding vertical structure that may or may not have various attachments thereto, which is intended to radiate and/or receive radio frequency signals for the purpose of radio communications without the intent of commercial service. Personal tower uses include, but are not limited to television signal reception, amateur radio stations, AM and FM radio signal reception and citizen band (CB) base stations.

P&Z: The planning and zoning commission, the body that shall review applications for WTFs and recommend action to the city council, which is the governing body of the city.

SATELLITE SERVICE DEVICE (SSD):   Any structure used to receive satellite programming services specifically associated with television reception from the transmission of signals from a satellite to a receiver, usually a round "dish" that can vary in size from eighteen inches (18") to ten feet (10') in diameter.

TOWER: Any structure, vertical in inclination, that is designed and constructed and normally used for the purpose of supporting one (1) or more antennas for telephone, radio and similar communication purposes, including self-supporting lattice towers, guyed towers, or monopole towers. This may include television and radio transmission towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures, and other free-standing towers, either for private or commercial purposes. The term includes the structure and any support thereto.

VERTICAL STRUCTURE: Any built object that is either independent of or attached to any building or other structure that is perpendicular in its direction to the nearest adjacent ground, including but not limited to spires, flag poles, belfries, steeples, chimneys and parapet walls.

VIEW CORRIDORS: An area identified either in the city's master plan or by a federal or state agency as the location of a particular designated scenic or cultural resource or trail system and as an area from which a WTF can be seen.

WIRELESS TELECOMMUNICATIONS FACILITY (WTF):   A WTF includes all equipment, buildings and structures with which a wireless communications service carrier broadcasts and receives the radio frequency waves and all locations of said equipment or any part thereof, including, but not limited to, commercial towers, communication structures, and towers. (Ord. 2005-07, 10-4-2005)

   A.   WTFs: All new towers or antennas in the city shall be subject to these regulations, except as provided in subsections 4C. and 4D. below.

   B.   Amateur Radio Station Operators/Receive Only Antennas: The sections that follow shall not govern television antennas, satellite dishes and receive only antennas, provided that the primary use of the property is not a wireless telecommunications facility (WTF) and that the antenna use is accessory to the primary use of the property. Nor shall the sections that follow govern any freestanding vertical structure or the installation of any freestanding vertical structure located in any residential zone that is under forty feet (40') in height.

   C.   Preexisting WTFs: Preexisting WTFs for which a building permit has been properly issued prior to the effective date of this chapter shall not be required to meet the requirements of this chapter, other than the requirements of section 10-18-5 G. and H. of this chapter.

   D.   Public property owned or otherwise controlled by the city shall be exempt from the requirements of this chapter.

   E.   WTFs shall be regulated and permitted pursuant to this chapter and shall not be regulated or permitted as essential services, public utilities, or private utilities. (Ord. 2005-07, 10-4-2005)

   A.   Height: All structure heights shall be measured from the lowest adjacent ground level vertically to the highest point of all structures, whether attached to the ground, the building or other structure(s). The principal supporting structure for WTFs shall be permitted to exceed the height limit of the zoning district in which it is located, provided that the setback standards in section 10-18-7 of this chapter shall apply.

   B.   Lot Size: For the purposes of determining whether the installation of a WTF complies with zoning development regulations, including but not limited to setback requirements, lot-coverage requirements, and other such requirements, the dimensions of the entire lot shall control, even though the WTF may be located on leased parcels within such lot.

   C.   Measurement: For purposes of measurement, WTF setbacks and separation distances shall be calculated and applied to facilities located in the city irrespective of municipal and county jurisdictional boundaries.

   D.   Public Notice: For purposes of this chapter, a special use permit request, a variance request or an appeal of a special use permit or variance shall require public notice in a local newspaper of general circulation within the city. In order that the city may notify nearby landowners, the application shall contain the names and addresses of all property owners of properties that are located within fifteen hundred feet (1,500') of any property line of the lot or parcel on which the WTF is proposed to be located. This requirement is in addition to any and all notice requirements contained in the city's zoning regulations for the zoning district in which such structure may be permitted.

   E.   Minimum Wind Speed: All structures shall be constructed and installed to manufacture's specification and constructed to withstand a minimum ninety (90) mile per hour wind, or the minimum wind speed as required by the city's building code, as amended, whichever wind speed is greater.

   F.   Building Codes: Structures shall be permitted and constructed to meet current city building code requirements and required setback provisions as prescribed for the zoning districts in which such structures may be permitted. If any setback or buffer yard as prescribed in the city's zoning regulations for the zoning district in which such structure may be permitted requires a greater distance than required in this chapter, the greater setback shall apply.

   G.   Safety Standards: To ensure the structural integrity of WTFs, the owner of a WTF shall ensure that it is maintained in compliance with the standards contained in applicable federal, state and city building codes. If, upon inspection, the city concludes that a WTF fails to comply with such codes and constitutes a danger to persons or property, then upon notice being provided to the owner of the WTF, the owner shall have thirty (30) days to bring such WTF into compliance with such standards. Failure to do so shall constitute grounds for the removal of the WTF at the owner's expense.

   H.   State Or Federal Requirements: All WTFs shall meet or exceed current standards and regulations of the Federal Communication Commission (FCC), the Federal Aviation Administration (FAA) and any other agency of the state or federal government with the authority to regulate WTFs. If such standards and regulations are changed, then the owners of the WTFs governed by this chapter shall bring such WTFs into compliance with such revised standards and regulations within six (6) months of the effective date of the revisions, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring WTFs into compliance with such revised standards and regulations shall constitute grounds for the removal of the WTF at the owner's expense.

   I.   Business Registration Required: Business registrations are required for each WTF for commercial purposes located within the city limits, regardless of whether said structure is freestanding, collocated, facial or roof mounted, or part of an integrated structure or improvement. Business registrations are renewable annually.

   J.   Inventory Of Existing Sites: Each applicant for a WTF shall provide to the P&Z an inventory of WTFs or sites approved for WTFs that are located within the service area proposed to be served by the new WTF, including specific information about the location, height and design, and the owners/operators of each WTF or site and indicate the distance of such WTF or sites from the proposed WTF.

   K.   Aesthetics: WTFs shall meet the following aesthetic requirements:

      1.   Towers shall either maintain a galvanized steel finish or, subject to any applicable standards of the FAA, be painted a neutral color so as to reduce visual obtrusiveness.

      2.   The design of the buildings and related structures at a WTF site shall, to the extent possible, use materials, colors, textures, screening and landscaping that will blend them into the natural setting and any surrounding buildings.

      3.   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.

      4.   All electrical lines and other data cables shall be located inside the tower in order to reduce the impact of unsightly wiring.

      5.   Guy wires shall not be used under any circumstances.

   L.   Lighting: Only security lighting not to exceed twelve feet (12') in height or lighting required by a state and/or federal agency is allowed, provided the location of the lighting fixture together with its cut-off angle shall be such that it does not shine directly on any public right-of-way, any residential premises, or release any lighting in an upward direction.

   M.   Signs: No signs shall be allowed on a WTF other than signage required by the FCC or other regulatory agency and signs that warn of safety hazards or prohibit access, provided that such signs are no larger than one (1) square foot and are reviewed by city staff and approved by the P&Z.

   N.   Building And Support Equipment: Buildings and support equipment associated with WTFs shall comply fully with the city's building codes.

   O.   Health Issues: Every WTF shall meet health and safety standards for electromagnetic field emissions as established by the Federal Communications Commission or any successor thereof, and any other federal or state agency.

   P.   View Corridors: No WTF is allowed within two thousand six hundred forty feet (2,640' or 1/2 mile) of the outer edge of the right-of-way of any city designated view corridor.

   Q.   Preservation Districts: No WTF is allowed within two thousand six hundred forty feet (2,640' or 1/2 mile) of the outer edge of property zoned Preservation District (PD).

   R.   Historic Preservation Review: No WTF that may affect archaeological, historic or cultural properties that are listed or are eligible for listing on the National Register of Historic Places shall be constructed, installed or modified without first obtaining Historic Preservation Division 106 Review as per 36 CFR part 800 in accordance with the National Historic Preservation Act of 1966, as amended. A project comment review letter from the State of New Mexico Historic Preservation Division, Office of Cultural Affairs shall be filed with the city at the time of filing a business registration application and/or special use permit application.

   S.   Visual Models: Visual models shall be required of all applicants for a WTF as follows:

      1.   Photographic Simulation: The applicant shall be required to provide a photographic simulation with the image of a tower or other proposed communications structure and all structures associated with the site superimposed over the existing view to provide a sense of the visual impact expected from the proposed WTF.

      2.   Site-located Height Model Or Balloon Test: A height model, which shall be a pole or other object erected or floated at the site to the requested height of the proposed WTF, may be required as a condition of the special use permit. If required, the following conditions shall apply:

         a.   The applicant shall submit photographs of the height model or balloon test from neighboring residential areas and public roadways and other locations around the city as specified by the P&Z within three (3) miles from which the height model or balloon is visible. The height model or balloon shall be a minimum of three (3) feet in diameter.

         b.   Photographs of the height model or balloon test shall be submitted no less than ten (10) days prior to the scheduled public hearing date for the special use permit.

         c.   Height models or balloon tests shall be erected for a minimum of three (3) days no less than fifteen (15) days prior to the scheduled public hearing date for the special use permit. The legal notice for the special use permit shall state the dates and location during which the height model or balloon test will be erected.

         d.   The P&Z may require this test if it is determined that the photographic simulation is not adequate to address any and all visual impact issues.

         e.   City staff shall issue administratively any permit necessary for a temporary height model required for staff and public inspection purposes.

   T.   All utilities at a WTF site shall be installed underground and in compliance with all laws, ordinances, rules and regulations of the city and the city building codes.

   U.   All applicants for a WTF or any modification to an existing WTF should develop their plans to allow reasonable requests from the city to use space on its towers and space within the existing or planned compound for deploying and operating public service radio facilities at no cost to the city. Provisions for adequate advance notice regarding city access to the WTF for routine activities will be arranged with the applicant. (Ord. 2005-07, 10-4-2005)

To minimize adverse visual impacts associated with the proliferation and clustering of WTFs, co-location or shared use of WTFs by more than one (1) carrier on existing WTFs shall take precedence over the construction of new WTFs, provided such co-location is accomplished in a manner consistent with the following:

   A.   The WTF complies with all applicable FCC and FAA regulations.

   B.   A WTF which is modified or reconstructed to accommodate the co-location of an additional antenna shall be of the same tower type as the existing tower, unless the P&Z allows reconstruction as a monopole.

   C.   Height: An existing WTF may be modified or rebuilt to a taller height not to exceed thirty feet (30') over the WTF's existing height, to accommodate the co-location of an additional antenna. This height change may occur only one (1) time per WTF and the additional height cannot require an additional distance separation as set forth in section 10-18-8D. The WTF's pre-modification height shall be used to calculate such distance separations.

   D.   Onsite Location: A WTF which is being rebuilt to accommodate the co-location of an additional antenna may be moved onsite within fifty feet (50') of its existing location. If the WTF is moved to accommodate co-location, only one (1) WTF may remain on the site. A relocated onsite WTF shall continue to be measured from the original WTF location for purposes of calculating separation distances between WTFs pursuant to section 10-18-8D. (Ord. 2005-07, 10-4-2005)

   A.   Heights:

PD               Expressly prohibited

WTFs are also expressly prohibited within two thousand six hundred forty feet (2,640' or 1/2 mile) of the boundary of an historic resource or district, view corridor, or property zoned PD.

Residential          Up to 40 feet

Zones            For non-commercial use only.

Commercial          Up to 65 feet for a single user.

Zones            Up to 75 feet for three users.

               Up to 100 feet for four or more users.

Industrial             Up to 65 feet for a single user.

Zones            Up to 75 feet for three users.

               Up to 100 feet for four or more users.

The applicant shall submit documentation justifying the total height of any WTF and the basis therefore. Such documentation will be analyzed, to the extent practicable, in the context of the justification of the height needed to provide service primarily and essentially within the city boundaries and the immediately surrounding area, to the extent practicable.

   B.   The following placement and setback requirements shall apply to all WTFs under forty-five feet (45') in height for which a special use permit is not required:

      1.   WTFs and satellite service devices in the residential zones, shall be placed within the primary buildable area for the lot's zone and must be to the side and/or rear of any and all residential dwelling structures, including houses, apartments, duplexes, etc.

      2.   WTF shall be setback from any adjoining property line one foot (1') for each one foot (1') in height plus ten percent (10%) of the total height of the structure.

      3.   Additional set-backs may be required in both this Section and in the following Section to meet the distance equal to at least the potential fall radius of a support structure as certified by a licensed New Mexico Professional Engineer or to preserve the privacy and integrity of adjoining residential, public or historic properties.

      4.   Guy wires used to secure and steady a tower and accessory buildings shall conform to the minimum setback requirements for the lot's zone.

   C.   The following placement and setback requirements shall apply to all WTFs for which a special use permit is required:

      1.   WTFs for which a special use permit is required shall be placed within the primary buildable area for the lot's zone and must be to the side and/or rear of the primary building structure. If the WTF is the primary structure, then such structure shall be within the primary buildable area, including all equipment buildings.

      2.   WTFs located or proposed to be located in or adjacent to a district which permits residential use, or where a residential structure is located, shall be set back from the nearest residential use or residential structure as follows:

         a.   Up to seventy-five feet (75'), the setback is one-half feet (1.5') for each foot of height, plus twenty percent (20%) of the total height of the structure;

         b.   From seventy-six feet (76') to one hundred twenty-five feet (125'), the setback is two and one-half feet (2.5') for each foot of height;

         c.   From one hundred twenty-six feet (126') to one hundred fifty feet (150'), the setback is three and one-half feet (3.5') for each foot of height.

      3.   A special use permit shall be required for WTFs proposed to be constructed on lots adjacent to property zoned residential. (Ord. 2005-07, 10-4-2005)

   A.   General: The following provisions shall govern the issuance of special use permits for the siting of a WTF, including but not limited to the construction of a tower and the placement of an antenna, by the P&Z.

      1.   Applications for special use permits under this Section shall be subject to the procedures and requirements of sections 10-10-1 through 10-10-6 of this code.

      2.   The P&Z in granting a special use permit, may impose conditions and limitations to the extent the P&Z concludes such conditions and limitations are necessary to minimize any adverse effect of the proposed WTF on adjoining properties.

      3.   Any engineering information submitted by the applicant, whether civil, mechanical, or electrical, shall be certified by a professional engineer licensed in the state.

      4.   An applicant for a special use permit shall submit the information described below in this section and a non-refundable filing fee as established by city council resolution, as amended from time to time.

   B.   WTFs; Information Required: In addition to any information required for applications for special use permits pursuant to sections 10-10-1 through 10-10-6 of this code, applicants for a special use permit for a WTF shall submit the following information:

      1.   A scaled site plan clearly indicating the location, type and height of the proposed tower; on-site land uses and zoning, adjacent land uses and zoning, including, when adjacent to the county or another municipality; adjacent roadways; proposed means of access; setbacks from property lines; elevation drawings of the proposed WTF; topography; parking and other information deemed by city staff to be necessary to assess compliance with this chapter.

      2.   Legal description of the property upon which or upon part of which the applicant proposed to locate the WTF and a list of all mortgages on the property at the time of application.

      3.   The setback distance between the proposed WTF and the nearest residential unit or the nearest platted or unplatted residentially zoned properties.

      4.   The separation distance from other existing WTFs within one thousand feet (1,000') of the proposed tower. The applicant shall also identify the type of construction of such existing WTF(s) and their owner(s)/operator(s).

      5.   The landscape screening plan showing specific landscape materials.

      6.   Method of providing security, fencing or wall, and finished color and, if applicable, the method of camouflage and illumination.

      7.   A description of compliance with sections 10-18-5E. to H. and 10-18-5K. to R. of this chapter and all applicable federal, state and local laws.

      8.   A notarized statement by the applicant as to whether construction of the WTF will accommodate co-location of additional antennas for future users.

      9.   Identification of the entities providing the network connections for the proposed WTF and other WTF sites owned or operated by the applicant in the city.

      10.   A statement as to the projected number and locations of any WTFs proposed to be built in the city within two (2) years of the date of the current application and that are part of the same system as the WTF for which a special use permit is currently being sought.

      11.   The applicant shall submit documentation of the legal right to install the WTF, including ingress and egress easements, and shall include original signature(s) of such land owner(s) and a copy of the property deed, plus a full copy of any proposed lease agreement with subject property owner(s).

      12.   A copy of the tax map and parcel identification code number of the subject property as shown in the records of the Dona Ana County Assessor's office.

      13.   A site plan showing all property within fifteen hundred feet (1,500') of the perimeter of the proposed property that will house the proposed WTF. A list of the owners of each of the affected properties and their mailing addresses as shown by the Dona Ana County Assessor's Office. The data shall be submitted in digital formal as well as a hard copy.

      14.   A copy of the FCC license for the WTF and a notarized statement from the owner or operator of the WTF attesting that the WTF complies with current FCC regulations.

      15.   Photo simulations and, if required, the photographic results of the site-located height model or balloon test.

      16.   Propagation maps showing the cellular coverage that the site will provide.

      17.   A written report indicating the applicant's efforts to secure shared use or co-location with existing WTFs or alternative technology or buildings within the city and neighboring areas within the City of El Paso and Dona Ana County. Copies of written requests and responses for shared use shall be provided to the P&Z along with the application for a special use permit.

   C.   Demonstration Of Need: An applicant shall submit to the P&Z documentation that demonstrates the need for the WTF to provide service within the geographical area proposed to be serviced by such WTF. The documentation shall include propagation studies of the proposed site and all adjoining planned, proposed, in-service or existing sites.

   D.   Separation Distances: When a second WTF is proposed near an existing WTF, there shall be a minimum separation distance between them of not less than the combined height of the existing WTF and the proposed WTF, which distance shall be measured by drawing or following a straight line between the base of the existing WTF and the proposed base, pursuant to a site plan of the proposed WTF. The same separation distance shall apply when more than one (1) WTF is proposed at one (1) location.

   E.   Security Fencing: WTFs shall be enclosed by a security fence or wall not less than six feet (6') in height which is equipped with an appropriate anti-climbing device other than barbed or other cutting wire.

   F.   Screening: WTFs shall be landscaped with a buffer of plant material that effectively screens the view of the tower compound. The standard buffer shall consist of a landscaped strip at least four feet (4') wide outside the perimeter of the compound.

   G.   Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible. (Ord. 2005-07, 10-4-2005)

The following requirements shall apply to the buildings and all other equipment storage space associated with a WTF requiring a special use permit:

   A.   The related unmanned equipment structure or cabinet, being part of the WTF, used in association with an antenna(s) located on a WTF shall not contain more than one hundred twenty (120) square feet of gross floor area or be more than ten feet (10') in height and shall be located in accordance with the minimum yard requirements of the zone in which it is located.

   B.   Such equipment structures or cabinets shall comply with all applicable building codes.

   C.   Security lighting, if required, shall not exceed twelve feet (12') in height and the location of the lighting fixture together with its cut-off angle shall be such that it does not shine directly on any public right-of-way, any residential premises, or release any lighting in an upward direction.

   D.   Mobile or immobile equipment not used in direct support of the WTF shall not be stored or parked on the site, unless repairs or maintenance to the WTF or related equipment structure or cabinet are being made. (Ord. 2005-07, 10-4-2005)

An application review and engineering inspection fee as established by city council resolution, as amended from time to time, shall be paid by the applicant upon filing of an application for a special use permit with the city. The purpose of the fee shall be to cover the city's administrative costs for reviewing and processing the application and any related costs for engineering review, inspection, evaluation and consultation. (Ord. 2005-07, 10-4-2005)

The applicant and the owner of record of any proposed WTF property site shall, at their own cost and expense, be jointly required to execute, file and maintain 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 the amount of at least seventy-five thousand dollars ($75,000.00) to assure the faithful performance of the terms and conditions of this chapter and the conditions of any special use permit issued pursuant to the chapter.

The full amount of the bond or security shall remain in full force and effect through the term of the special use permit and/or until any necessary site restoration is completed to restore the site to a condition comparable to that which existed prior to the issuance of the original special use permit. (Ord. 2005-07, 10-4-2005)

   A.   A holder of a special use permit for a WTF 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 special use permit in the following amounts:

      1.   Commercial general liability covering personal injuries, death and property damage and automobile coverage each at one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000.00) aggregate and the commercial liability policy shall specifically include the city as an additional named insured.

      2.   Workers compensation at not less than minimum statutory limits.

   B.   The insurance policies shall be issued by an insurance agent of an insurance company licensed to do business in the State of New Mexico with a Best's rating of at least A and shall contain an endorsement obligating the insurance company to furnish the city with at least thirty (30) days prior written notice in advance of the cancellation of the insurance. Renewal or replacement policies or certificates shall be delivered to the city at least fifteen (15) days before the expiration of the insurance that the policies are to renew or replace.

   C.   The holder of a special use permit for a WTF shall deliver to the city a copy of each of the policies or certificates representing the insurance in the required amounts before construction of the permitted WTF is initiated. (Ord. 2005-07, 10-4-2005)

Any application for a WTF that is proposed for city property pursuant to this chapter shall contain an indemnification provision. Such indemnification provision shall require the applicant, to the extent permitted by the law, to at all times indemnify, hold harmless and defend the city from and against all claims, actions, demands, losses, costs expenses, liabilities, assessments, penalties, and damages, including attorney's fees, in connection with or which might arise out of, result from, or be caused by the performance of work in the location, construction, modification, use, maintenance, repair, replacement or removal of the WTF or any part thereof, which causes bodily injury, illness or death or any other injury or for property damage caused by the negligent act or omission of the owner/operator/applicant or any of its/their agents, employees, servants, representatives, officers, directors or shareholders of the WTF. (Ord. 2005-07, 10-4-2005)

   A.   Under the following circumstances, the city may determine that the health, welfare and safety of the city residents warrant and require the removal of a WTF:

      1.   A permitted WTF has not been operated as a WTF for a continuous period of six (6) months and is therefore considered to have been abandoned;

      2.   A permitted WTF falls into such a state of disrepair that it creates a health or safety hazard as determined by city staff;

      3.   A WTF has been located, constructed or modified without first obtaining, or in a manner not authorized by, the required special use permit.

   B.   If the city makes such a determination as appears in subsection A. of this Section, then the city shall provide the owner of such WTF with a notice of abandonment and an order to remove the same within ninety (90) days of receipt of the notice of abandonment from the city.

   C.   Failure by the owner or his/her successors or assigns to remove the abandoned WTF and all associated structures and facilities from the site and to restore the site to as close to its original condition as is possible or to take substantial steps toward removing the abandoned WTF within said ninety (90) days shall be grounds to remove the WTF at the owner's expense. (Ord. 2005-07, 10-4-2005)

In conjunction with the annual renewal of their business registration, the owner of each WTF shall submit a report to the city clerk, 1000 McNutt Rd., Suite "A", Sunland Park, New Mexico 88063, stating the current user status of the WTF and providing proof of renewal of the insurance policies or certificate required pursuant to sections 10-18-11 and 10-18-12 of this chapter. (Ord. 2005-07, 10-4-2005)

   A.   An administrative waiver of up to a ten percent (10%) difference, except for height, or a variance for over a ten percent (10%) difference, except for height, may be requested by the applicant at the time of filing for the special use permit. The conditions regulating the process for waiver and variance requests are set forth in sections 10-10-1 through 10-10-6 of this code and shall apply in this chapter.

   B.   In instances where strict compliance with this chapter would result in a violation of a clearly established, applicable provision of the Telecommunications Act of 1996 or other federal law or regulation, a minimal easing of the provision of this chapter may be approved by the approving authority to the extent required to comply with such law. (Ord. 2005-07, 10-4-2005)

Any person who violates any provision of this chapter or any special use permit issued pursuant to this chapter shall be charged with a petty misdemeanor and upon conviction may be punished by a fine of not more than five hundred dollars ($500.00) or imprisonment for not more than ninety (90) days or both such fine and imprisonment as provided for in title 1, chapter 4 of this code. (Ord. 2005-07, 10-4-2005)

   A.   If a WTF is repaired, rebuilt, placed, moved or modified in a way that is inconsistent or not in compliance with the provisions of this chapter or of the special use permit, then the city shall notify the holder of the special use permit in writing of such violation. Such notice shall specify the nature of the violation(s) or noncompliance and that action to begin correction of the violation(s) must be commenced within seven (7) days of the date of the postmark or personal service of the notice, whichever is earlier, and completed within forty-five (45) days of such date. Notwithstanding anything to the contrary in this subsection or any other section of this chapter, if the violation causes or presents an imminent danger to the health or safety of lives or property, the city may, at its sole discretion, order the violation remedied within twenty-four (24) hours.

   B.   If within the forty-five (45) day time period set forth above in subsection A. of this section, the WTF is not brought into compliance with the provisions of this chapter or of the special use permit, or substantial steps are not taken in order to bring the affected WTF into compliance, then the city may revoke such special use permit for the affected WTF and shall notify the holder of the special use permit within forty-eight (48) hours of such action. (Ord. 2005-07, 10-4-2005)