This chapter implements the goals, objectives and policies set forth in the Comprehensive Plan relating to land use in the city. Provisions set forth as to type of land use, density and intensity permitted are correlated with the districts shown on the future land use map.

(Ord. No. 360, §§ 7.00.00, 7.00.01, 2-1-91)

Land use categories and adopted densities and intensities are as described below. Density is the number of residential dwelling units permitted per acre; intensity is a measurement of how much of a building site can be utilized by structures in nonresidential developments. Density is determined by dividing the total number of dwelling units by the total site area less right-of-way. Intensity is determined by calculating floor area ratios (FAR). FAR is the relationship between the total floor area of a proposed structure building and the gross area of the building site. Maximum FARs are obtained by subtracting setback, parking and landscaping requirements from a building site (net area) and then dividing this number by the gross area of the building site. Example of calculation FAR is found in the future land use chapter of the Foundation Documents.

LDR: Low density residential development includes 0.0 dwelling units per gross acre through 6.0 dwelling units per gross acre;

MDR: Medium density residential development includes 6.10 dwelling units per gross acre through 15.0 dwelling units per gross acre;

MU: The mixed use category includes residential density ranges up to 15 dwelling units per gross acre. The intent of this category is to promote innovative arrangements of development types, to promote natural resource enhancement and to promote open spaces around buildings. This category of land use allows an intense mixture of residential and commercial activity. No zoning change to mixed use or to planned unit development shall be approved unless a finding is made that such zoning change and plan amendment will promote compact urban development and not encourage urban sprawl (Objective 7.A.6). For the purposes of this category, a hotel or motel room is equivalent to a dwelling unit and is, therefore, subject to the same limitations. Medical related facilities, general commercial uses, recreational and parking uses are allowed in this category. This category will be implemented by the inclusion of two or more zoning districts and zoning designations on the zoning map consistent with the future land use maps. The provisions will include the planned unit development regulations of the city. Mixed use shall be restricted only to the areas so designated on the future land use map.

(Ord. No. 360, §§ 7.01.00, 7.01.01, 2-1-91)

(a)

Purpose. As described under the mixed use district (MU) above, innovative arrangements of development are encouraged to achieve more efficient densities and intensities of land use provided the arrangement is compatible with the established character of a community. Planned unit developments (PUDs), for example, are usually land areas where development is planned as one integral whole with a mix of housing, commercial and institutional land uses designed in such a manner as to maximize open space through buffering techniques and combine living, shopping and working spaces. PUDs and other innovative land development techniques approaches to mixed-use development are, therefore, promoted and encouraged (Policy 7.A.8.1). Developers who wish to obtain density and intensity bonuses may so qualify if the application submitted for a development order establishes that the proposed development will exceed minimum zoning requirements and implement adopted policies of the Comprehensive Plan. As an incentive to implement goals, objectives and policies of the Comprehensive Plan, bonus points may be awarded under the following categories:

NOTE: For reference, applicable Comprehensive Plan goals, objectives or policies implemented by this section are indicated in parenthesis. Other implementation regulations are provided under articles specifically addressing the involved subject matter.

(b)

Environmentally sensitive lands (Policies 7.A.1.2, 11.B.3.3). Donation of environmentally sensitive land to the city which contains a conservation easement in perpetuity. One point per acre donated.

(c)

Public access to waterways (Policies 11.A.9.1, 11.A.9.4, 11.A.9.3; Objective 12.A.1).

(1)

Where land is donated to the city to provide access to waterways open to the public, two points per access lane.

(2)

Where land ownership and maintenance responsibility of public access lanes are retained by the owner/developer and where such lanes are ensured by irrevocable leases, one point per access lane shall be awarded.

(d)

Water conservation (Objective 11.B.2).

(1)

Appropriate use of low water demand plants in all required buffers or landscaped areas. Two points per site or one point per acre in development site.

(2)

The use of drip irrigation, or other low water use methods shall qualify for one point per site.

(3)

The use of treated wastewater or grey water for irrigation shall qualify for one point per site or one point per acre irrigated.

(e)

Proximity to services and facilities (Policies 7.A.6.3 and 7.A.6.4).

(f)

Special housing (Policy 9.A.1.4).

(1)

Ten percent of dwelling units for low to moderate income families—3 points.

(2)

Twenty percent of dwelling units for low to moderate income families—6 points.

NOTE: No more than 20 percent of units of a conventional housing development shall be credited for bonus points.

(g)

Access to transportation facilities (Policy 7.A.6.4).

(1)

Provision of separate pedestrian or bicycle accessways from a residential development to designated active centers containing commercial, office, service, and/or recreation activities and located within one-half mile of the development—2 points.

(2)

Where adjacent nonresidential developments share a common access driveway to reduce the number of accesses to arterial or collector roads—2 points per access.

(3)

Provision of parallel frontage and/or service roads on major arterials or collector roads—1 point per 100 linear feet up to 10 points.

(h)

Redevelopment (Policy 7.A). Projects to redevelop or renew blighted or underutilized areas—3 points.

(i)

Light and wind dynamics. Projects designed so as to provide a varied skyline to provide for light and wind dynamics on adjacent properties and natural systems—2 points.

(j)

Protection of historic resources (Policies 7.A.5.5 and 7.A.4.4). Donation of land of known archeological or historic value to the city which contains a conservation easement in perpetuity—1 point per acre or site donated.

(Ord. No. 360, §§ 7.02.00—7.02.10, 2-1-91)

(a)

Each five points earned for residential development shall qualify for a two percent increase in the maximum density allowed in residential development.

Example:

(b)

Each five points earned for nonresidential development shall qualify for an 0.10 additional FAR. The city has a maximum floor area ratio of 0.89 in commercial districts and .77 in industrial districts.

Example:

(Ord. No. 360, §§ 7.03.01, 7.03.02, 2-1-91)

The city shall continue to promote redevelopment of areas meeting the program requirements promulgated by the U.S. Department of Housing and Urban Development. Any such project to redevelop or renew any blighted or under utilized areas shall be considered for density and intensity bonuses in accordance with section 114-3(h).

(Ord. No. 360, § 7.04.01, 2-1-91)

(a)

The department of state, division of historic resources has identified five sites within the city of historic significance. These are described by Table 4-1 of the Foundation Documents. Such sites have been identified and documented as being significant in American history, architecture, archaeology, superintendenting or culture. They reflect the prehistoric occupation and historical development of the nation, state and local community. Their pro-tection and preservation, therefore, is essential. Anytime a proposed development may impact a historic or archeological site within the city, the following regulations in this section shall apply.

(b)

Historic structures shall be exempted from the provisions of the Standard Building Code, if any modification, repair or restoration activity would jeopardize their historical integrity.

(c)

Land alteration or development of land where such would contribute to the destruction of historic resources shall be prohibited.

(d)

A project classified as a development of regional impact (DRI), shall contain a description of historical or archeological sites within the proposed development and suggested mitigation measures for such resources if present. DRIs shall be submitted to the compliance and review section in the department of state's bureau of historic preservation.

(e)

An archeological and historic review summary shall be submitted to the city with applications seeking approvals or permits for the following activities: parking lots, grading, earth moving, excavation and fill, drainage, and utilities placement; permits for coastal zone dredge and fill activity and dock construction; permits for tree removal; park and recreation area construction; and subdivision and planned unit developments; site and development plan reviews and Comprehensive Plan amendments.

(Ord. No. 360, § 7.05.05, 2-1-91)

Implementation of the Comprehensive Plan requires the establishment of minimum regulatory criteria to achieve the following results:

(1)

Regulation of the subdivision of land;

(2)

Ensure the compatibility of adjacent land uses depicted on the future land use maps;

(3)

Provide for open space;

(4)

Protect potable water wellfields and sources;

(5)

Regulation of areas subject to seasonal or periodic flooding;

(6)

Provide for drainage and stormwater management;

(7)

Regulation of signage;

(8)

Implementation of concurrency management; and

(9)

Ensure adequate, safe and convenient onsite traffic flow and parking.

Criteria applicable under the above subject areas are addressed under articles of this LDC corresponding with the relevant and applicable chapters of the Comprehensive Plan. For example, minimum criteria for the protection of potable water wellfields and sources are found under chapter 106, article IV. Adequate, safe and convenient traffic flow and parking is found in chapter 130. Future land use is discussed in chapter 7 of the Comprehensive Plan. Therefore, this article implements minimum criteria applicable to the first three subject areas listed above: regulation of the subdivision of land; ensure compatibility of adjacent land uses; provide for open space.

(Ord. No. 360, §§ 7.07.00, 7.07.01, 2-1-91)

(a)

The provisions of this article are intended to ensure functional and attractive development by requiring that all future development is consistent with accepted planning practices and principles as well as natural area limitations (Policy 7.A.4.2). Compatibility is generally interpreted as meaning consistency of land use within specified districts and/or the orderly and harmonious transition of land use from one district to another. Nonconforming development is development that does not conform to the general character of a particular district or is contrary to the use regulations and/or development design standards provided by this LDC or by the codified ordinances. The following provisions are intended to eliminate expansion of nonconforming land uses which are inconsistent with:

(1)

The future land use map; or

(2)

This chapter; and

(3)

Standard Unsafe Building Abatement Code, appendix A (Policy 7.A.2.4).

(b)

Regulations prescribed shall not be construed to require the removal or change to any existing structure completed or begun prior to the adoption of the ordinance from which the LDC is derived. Nonconforming uses, however, are otherwise prohibited. This extends to and includes the following circumstances:

(1)

Nonconforming uses declared by this LDC to be incompatible with permitted uses in the districts involved shall not be extended or enlarged.

(2)

Nonconforming uses shall not be moved in whole or in part to any portion of a lot or parcel other than that occupied by such use.

(3)

No additional structure shall be erected in connection with nonconforming uses of land.

(4)

Reconstruction of nonconforming uses destroyed by fire or other calamity to a degree equalling or exceeding 50 percent of its replacement cost is prohibited.

(5)

If any nonconforming use of land ceases for any reason for a period of more than six months, any subsequent use of such land shall conform to the regulations specified by this LDC and the codified ordinances.

(6)

The extraction of natural resources from any district in the city shall be considered nonconforming until such time as applicable state and federal permits are obtained. No development incompatible with adjacent land uses shall be permitted by the city (Policy 7.A.4.2).

(Ord. No. 360, § 7.09.02, 2-1-91)

(a)

Open space is generally considered to be a naturally landscaped area with no more than ten percent of its area paved and surrounded by development on at least 75 percent of its perimeter. Parks and public recreational facilities generally fall under this categorization. Areas committed to the preservation of drainage uses including ponds also are considered open space. Open space, as it relates to parks and landscaping, is described in chapter 122 in detail.

(b)

In the city all major development projects, as defined by section 94-111 where there is an addition, alteration or intensification of land uses affecting 50 percent or more of the development area, are subject to the regulations specified in this section.

(1)

Open space landscape. All land uses not specifically exempted by this LDC shall devote a minimum of 18 percent of the total area to open space landscape.

(2)

Front perimeter landscape. A minimum ten-foot-wide strip of land abutting the right-of-way shall be landscaped. Width of sidewalks shall not be included within the ten-foot-wide front setback for landscaping.

(3)

Parking. For every 2,500 square feet of garage parking spaces, 171 square feet of exterior green area is required.

(4)

Buffer zone landscaping. A landscaped buffer zone six to eight feet in depth shall be provided between multifamily and single-family zones and between industrial or commercial and any residential zone. Such landscaped buffer shall be designed not less than six feet in height to form a continuous, opaque screen between the zoning districts.

(Ord. No. 360, §§ 7.10.00—7.10.02, 2-1-91)

Editor's note— Ord. No. 528, adopted Aug. 8, 2005, deleted § 114-10 in its entirety. Former § 114-10 pertained to restoration of Boggy Bayou and Tom's Bayou and derived from Ord. No. 360, §§ 5.11.00—7.11.02, adopted Feb. 1, 1991. For regulations regarding waterways see ch. 83 of this Code.

Specific districts. Zoning districts established for the city, with permitted principal uses and structures, permitted accessory uses and structures, special exception uses and structures, prohibited uses and structures and permitted signs, are provided under article IV.

(Ord. No. 360, § 7.12.01, 2-1-91)

(a)

Definitions. The term "planned unit developments" means an area of land developed as a single entity, or in approved stages in conformity with a site development plan by a developer or group of developers acting jointly, which is totally planned and rezoned to provide for a variety of residential and compatible commercial uses and common open space. A planned development is constructed according to comprehensive and detailed plans which include not only streets, utilities, lots or building sites and the like, but also site plans and floor plans for all building as intended to be located, constructed, used and related to each other, and detailed plans for other uses and improvements on the land as related to the buildings. A planned development includes a program for the provision, operation and maintenance of such areas, facilities and improvements as will be for common use by some or all of all of the occupants of the planned development district, but which will not be provided, operated or maintained at general public expense.

(b)

Intent. It is the intent of this planned unit development (PUD) section to provide flexible land use and design regulations through the use of performance criteria so that small to large scale areas, or portions thereof, may be developed with a variety of residential types and nonresidential uses and may contain both individual building sites and common property which are planned and developed as a unit. Such a planned unit is to be designed and organized so as to be capable of satisfactory use and operation as a separate entity without necessarily needing the participation of other building sites or other common property in order to function as a neighborhood. This section specifically encourages innovations so that the growing demands of residential and nonresidential uses may be met by a greater variety in type, design and siting of buildings and by the conservation and more efficient use of land.

(c)

Findings. This section recognizes that the standard zoning functions (use and bulk) and the subdivision function (platting and design) are appropriate for the regulations of land use in areas of neighborhoods that are already substantially developed. This section further recognizes that a rigid set of space requirements along with bulk and use specifications would frustrate the application of this concept. Therefore, where PUD techniques are deemed appropriate the land may be rezoned to a PUD district. In so doing, conventional use and dimensional specifications are ignored in this section and are even replaced by an approval process in which an approved plan becomes the basis for continuing land use controls. This provides the means by which the city commission may approve land development plans which meet or exceed the level of development quality required by regular city zoning standards. It is intended that this district offer development design flexibility to developers, in order to encourage imaginative, functional, high quality development planning. The use of this district shall be limited to those projects which will result in desirable community environmental qualities and development which is compatible with surrounding lands and activities.

(d)

Minimum area. Under normal circumstances, the minimum area required to qualify for a PUD district shall be at least two and one-half or more contiguous acres of land.

(e)

Ownership/unified control.

(1)

All land included for purpose of development within a PUD district shall be under the control of the applicant (an individual, partnership or corporation, or group of individuals, partnerships, or corporations). The applicant shall present satisfactory legal documents to constitute evidence of the unified control of the entire area within the proposed PUD, which shall be certified by the city. Applicant shall agree in the application for rezoning to the following:

a.

To proceed with the proposed development according to the provisions of these regulations and conditions attached to the rezoning of the land to PUD;

b.

To provide agreements, contracts, covenants, deed restrictions, and sureties acceptable to the city for completion of the development according to the plan approved at the time of rezoning to PUD and for continuing operation and maintenance of such areas, functions and facilities which are not proposed to be provided, operated or maintained at public expense; and

c.

To bind their successors in title to any commitments made under the above. All agreements and evidence of unified control shall be examined by the city, and no rezoning of land to PUD classification shall be adopted without a certification by the city that such agreements and evidence of unified control meet the requirements of this chapter.

(2)

If the developer elects to administer common open space through an association or nonprofit corporation, such organization shall conform to the following requirements:

a.

The developer shall establish by charter the association or nonprofit corporation prior to any sale;

b.

Membership in the association or nonprofit corporation shall be mandatory for all property owners within the planned unit development, and such association or corporation shall not discriminate in its members or shareholders;

c.

The association or nonprofit corporation shall manage all common open space and recreational and cultural facilities which are not dedicated to the public, shall provide for the maintenance, administration and operation of such land and any other land within the planned unit development not publicly or privately owned, and shall secure and show evidence of adequate liability insurance on the land, in the amounts of those the city maintains.

(f)

Permitted uses. All uses within an area designed as a PUD district are determined by the provision of this section and the approved plan of the project concerned.

(1)

Residential uses. Residences may be of any variety of types (single-family, multifamily, rental, condominium, townhouses, quadplexes, etc.). In developing a balanced community, the uses of a variety of housing types and designs shall be deemed most in keeping with this section.

(2)

Accessory, commercial, service and other nonresidential uses.

a.

Because of the primarily residential nature of PUD, only those commercial uses which are compatible with residential uses may be permitted.

b.

The permitted uses shall conform to the approved PUD plan. The city commission may refuse, from time to time, the accessory uses permitted by the PUD, and they may permit variances as these changes may benefit the general population.

(g)

Maximum density. In general, the density of the PUD shall be the same as the density on the future land use map of the PUD boundaries. However, exceptions in density may be requested by the developer and submitted to the city for approval upon a showing of no negative impact upon infrastructure and concurrency requirements.

(h)

Minimum area limitations and land dedication requirements. Planned unit developments shall contain areas at least equal to 50 percent of the gross area in open space.

(1)

Minimum lot area, distance between structures, frontage and setbacks.

a.

No minimum lot size shall be required within a planned unit development district.

b.

No minimum distance between structures shall be required within a planned unit development district.

c.

Each dwelling unit or other permitted use shall have access to a public street either directly or indirectly via a private approach road, pedestrian way, court or other area dedicated to public or private use or by common easement guaranteeing access. Permitted uses are not required to front a road. The city shall be allowed access on privately owned roads, easements and open space to ensure the police and fire protection of the area, to meet emergency needs, to conduct city services and to generally ensure the health and safety of the residents of the planned unit development.

d.

There are no required setbacks or yard except the following:

1.

Those yards and setbacks as required by the city commission as part of the overall approval process.

(2)

Compatibility zone. Within 150 feet of the exterior perimeter of the planned unit development district, use, setback, height and plot coverage requirements shall be at least as restrictive as the adjacent zoning development.

(3)

Off-street parking requirements. Parking shall be provided at a ratio of two spaces per dwelling unit. All parking areas shall be located and designed in such a manner as to be compatible and complementary to the dwelling units they are intended to serve. Within all off-street parking areas within the PUD, 50 square feet of landscaped area shall be provided per parking space, and such landscaped areas shall be distributed throughout the parking area.

(4)

Underground utilities. With the planned unit development, all utilities including telephone, television, cable and electrical systems shall be installed underground. Primary facilities providing service to the site may be exempted from this requirement. Large transformers shall be placed on the ground and contained within pad mounts, enclosures or vaults. The developer shall provide adequate landscaping with shrubs and plants to screen all utility facilities permitted above ground.

(i)

Procedure for PUD approval.

(1)

Application. An application for approval of a plan for planned development shall be filed by or on behalf of the land owner with the city clerk. The following information shall be submitted with the application and an initial fee set pursuant to section 94-2:

a.

An area map showing the adjacent property owners and existing uses within 200 feet of the parcel.

b.

A legal description of the proposed development area.

c.

A sketch plan approximately to scale, though it need not be to the precision of a finished engineering drawing; and it shall clearly show the following:

1.

The existing topographical features of the site. Area topographical map is available at city hall.

2.

The location of the various uses and their areas in acres.

3.

The general outlines of the interior roadway system and all existing rights-of-way and easements, whether public or private.

4.

Delineation of the various residential areas indicating for each such area its general extent, size and composition in terms of total number of dwelling units and approximate percentage of allocation by dwelling unit type.

5.

A calculation of the residential density in dwelling units per gross acre including interior roadways.

6.

The interior open space system.

7.

General description of the requirements for other community facilities, such as schools, fire protection services, and cultural facilities, if any, police and solid waste disposal and how these facilities are affected by this proposal.

8.

General statement as to how open space is to be owned and maintained.

9.

All pedestrian walkway systems shall be shown.

10.

Evidence as to traffic movement on both exterior and interior roadways.

11.

If the development is to be staged, a general indication of how the staging is to proceed. Whether or not the development is to be in stages, the sketch plan shall show the intended total project.

(2)

Public meeting. After the completed application and initial fee have been received by the city clerk, a public hearing will be scheduled. At this public hearing the concept plan and application will be presented for public comment and approval or disapproval, with conditions, by the review board. In considering the concept plan for approval, the review board will consider the following factors:

a.

Whether the proposal meets the intent and objectives of this section.

b.

Whether the proposal meets all the general requirements of this section.

c.

Whether the proposal is conceptually sound in that it conforms to accepted design principles in the proposed functional roadway system, land use configuration, open space system, drainage system and scale of the developed elements.

d.

Whether there are adequate services and utilities available or proposed to be made available in the construction of the development.

If in the discretion of the review board it is determined by the review board that the concept plan meets all of the above-mentioned requirements, approval within 15 days by the review board will be granted for the owner to proceed with the finalization of the plans. The owner is required to submit a fee set pursuant to section 94-2 to the city clerk within seven days of the approval of the concept plan. In addition, at this first meeting a date will be set within 45 days from the date of the first public hearing, for the final public hearing.

(3)

Final approval. Within the specified time a public hearing will be held for approval or disapproval of the final plan. At this hearing the owner will present his finalized plan in accordance with any comments the city has submitted. The city commission will then approve or disapprove the final plan. If the final plan is disapproved, the owner may request that he be allowed to resubmit his plan for approval. In the case of a resubmission of a final plan, the owner will submit to the city clerk a revised plan. From the date of the submission of a revised plan to the city clerk, a public hearing will be scheduled within two weeks. At this meeting the revised plan will be considered by the city commission and approved or disapproved. In any case, neither the initial application fee nor the concept plan fee is refundable.

(4)

Failure to begin or continue planned unit development.

a.

If no construction has begun or no use established in the planned unit development within one year from the time of submission or if construction and development activity shall not thereafter be of a reasonably continuous nature, the site development plan lapses under the provisions of this section.

b.

Upon a planned development lapsing, such land shall revert to R-1A zoning classification.

c.

An additional one-year extension upon the above time limitation may be granted by recommendation of the planning and zoning board to the city commission upon good cause being shown. Thereafter, there shall be no further extensions.

(5)

Compliance with requirements of subdivision regulations. The city reserves the right to require the landowner to comply with any and all requirements of the LDC as it now exists or as they may hereafter be amended.

(Ord. No. 360, § 7.15.00, 2-1-91; Ord. No. 539, § 1, 7-10-2006; Ord. No. 557, § 2, 3, 1-8-2007)

(a)

Scope. Where the LDC indicates that a use is allowed as a conditional use, the procedures, requirements, and standards set out in this section shall apply.

(b)

Permitted conditional uses.

(1)

Permitted uses in R-1 districts.

a.

Cemeteries or mausoleums.

b.

Churches and accessory buildings used for religious teaching.

c.

Schools, public or private.

d.

Foster care homes as licensed and supervised by the state department of health and rehabilitative services. Provide a family living environment including supervision and care necessary to meet physical, emotional, and social life needs of clients. Such a facility may serve either children or adults. The total number of residents in the home whether they are part of the family or HRS clients or a combination of both, should not exceed seven persons, including the foster parents.

(2)

Permitted uses in R-2 districts.

a.

All uses permitted in R-1 districts.

b.

Nursery schools, day nurseries, and child care centers, provided there is a minimum of 100 square feet of outdoor play area for each child to be cared for and that the play area is fenced and screened as per section 114-9(b)(4) from adjoining R district lots.

c.

Professional offices.

1.

Engineering.

2.

Consulting firms.

3.

Lawyers.

4.

Doctors.

5.

Dentists.

d.

Small food stores less than 1,000 square feet.

e.

Small recreational establishments privately owned, less than 3,000 square feet.

1.

Spa.

2.

Indoor handball courts.

f.

Small shops less than 1,000 square feet.

g.

Marina when constructed in connection with a residential development and established for the primary purpose of serving the residents of such residential development.

h.

Group home facility means a facility which is licensed by the state department of health and rehabilitative services. It provides a family living environment including supervision and care necessary to meet physical, emotional and social life needs of clients. It may or may not provide education and training. This facility should have a maximum capacity of no more than eight residents. However, level II and level III types of group homes may be permitted in this district, as defined by HRS regulations.

i.

Real estate offices.

(3)

Permitted uses in C-1 districts.

a.

All uses permitted in R-1 and R-2 districts.

b.

Bus terminal, railroad passenger station.

c.

Institutions for the care of the mentally disabled.

d.

Telephone exchange.

e.

Pet services for pets other than dogs.

(4)

Permitted uses in C-2 districts.

a.

All uses permitted in C-1 districts.

b.

Crematories.

c.

Radio and television antenna towers, commercial.

(5)

Permitted uses in I-2 districts.

a.

All uses permitted in R-1, R-2, C-1 and C-2.

b.

Airport, landing field and/or landing strip.

c.

Areas for the dumping or disposal of trash or garbage and trash.

d.

Extraction of gravel, sand or other raw material.

e.

Railroad right-of-way.

(6)

Permitted uses in HP districts.

a.

Personal service establishments, including clinics, employment agencies, tailor shops, dressmaking, and upholstery.

b.

Vocational and business schools, including trade, secretarial, art, professional, music, dancing and dramatic schools.

c.

Churches and/or church-affiliated organizations.

d.

Small shops and/or restaurants, less than 1,000 square feet.

e.

Community residential homes, defined as dwelling units licensed to serve clients of HRS, provide a living environment for one to six or seven to 14 residents who operate as the functional equivalent of a family, including such supervision and care by support staff as may be necessary to meet the physical, emotional and social needs of the residents.

(c)

Procedures. Any person, firm or corporation owning property within the city, desiring to obtain a conditional use, shall proceed in the following manner:

(1)

The owner shall submit an application to the city, on forms prescribed by the city. Designation of a person other than the owner to sign the application shall be in writing and attached to the application. Each application shall be accompanied by a fee set pursuant to section 94-2, payable to the City of Valparaiso. Such fee is nonrefundable and due upon submission of the application.

NOTE: For foster care uses in the case of a resident desiring to care for up to two relatives which require continuous care, no permit is required under the provisions of this chapter. In addition, in the case of group homes and foster care facilities, as defined under subsection (b)(1) of this section, the $100.00 application fee will be waived. However, all other regulations shall apply.

(2)

The city shall then refer the application to the planning board and two public hearings will be held in accordance with the following:

a.

The owners of all property located within 400 feet of the subject parcel shall be notified.

b.

The ownership of all the surrounding properties as submitted by the applicant shall be determined by the city clerk, who shall notify the owners by registered mail of the date and purpose of the public hearings. Mailing shall be at least 30 days in advance of the first public hearing so that owners may be represented in person or by proxy. For notification purposes, the owners of property shall be those recorded on the latest official county tax rolls.

c.

Notice of the public hearing shall also be advertised in a newspaper of largest circulation in this city at least ten days in advance of the hearing.

(3)

After holding public hearings and reviewing the application, the planning board, subject to the standards of subsection (d) of this section, will recommend approval or disapproval, with or without conditions and safeguards, specifying a time limit within which the conditional use must be developed. A written report of the board's findings and recommendations shall be forwarded to the city commission.

(4)

Upon receipt of the report and recommendations, the city commission, at a regular meeting, shall review the application, and subject to the standards of subsection (d) of this section, may approve, with or without conditions and safeguards, specifying a time limit within which the conditional use must be developed, or it may deny the conditional use. If the conditional use is approved, such owner must sign a terms of agreement form which specifies the terms and conditions under which the conditional use will be established.

(5)

After receiving approval from the city commission, the applicant may proceed to furnish the necessary information to the city for obtaining building permits. The city shall not issue a building permit unless such permit conforms in every respect to the conditional use, terms of agreement, as approved by the city commission.

(d)

Standards for evaluating conditional uses. The planning board and city commission shall consider only such conditional uses as are authorized under the terms of the LDC (see subsection (c) of this section) and, in connection therewith, may grant conditional uses absolutely or conditioned upon the faithful adherence to and fulfillment of applicable restrictions and conditions, as specified in the terms of agreement, i.e., landscaping, architectural design, type of construction, construction commencement and completion dates, duration of use, sureties, lighting, fencing, planting screens, operational control, hours of operation, improved traffic circulation, deed restrictions, highway access restrictions, increased yards, or parking requirements. Compliance with all other provisions of this chapter, such as lot width and area, yards, height, parking, loading, traffic, highway access, shall be required of all conditional uses. In evaluating an application for conditional use, the planning board shall consider the effect of the proposed use on the general health, safety and welfare of the community and make written findings certifying that satisfactory provisions have been made concerning the factors noted above.

(Code 1966, § 30-10.2A; Ord. No. 342, § 1, 6-11-90; Ord. No. 345, § 1, 9-10-90; Ord. No. 557, § 3, 1-8-2007; Ord. No. 590, § 1, 2-9-2009)

(a)

Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

Skateboard ramp means any outdoor structure designed and principally intended for the use of persons on skateboards.

(b)

Height limit. Skateboard ramps in excess of six feet in height are prohibited within all residential districts as established in section 114-106.

(c)

When permitted; location; number of users; buffer zone. Skateboard ramps six feet in height and under are permitted in side and back yards of a residentially zoned district, provided the ramp is in accordance with setback requirements as outlined in section 130-3, and that a permit is obtained in accordance with the application process, as outlined in subsection (d) of this section. Any skateboard ramp less than six feet in height may only be utilized during the hours of 8:00 a.m. through 8:00 p.m. During the days and times allowed, skateboard ramps are limited to two users during any one time. A buffer zone consisting of a six-foot wooden fence or six-foot hedge is required around any skateboard ramp. A skateboard ramp permit is only valid for the exact location as outlined on the permit and may not be moved to other locations.

(d)

Permit—Application. Any person desiring to construct or operate a skateboard ramp within a residentially zoned district shall submit an application to the city, together with a fee set pursuant to section 94-2. Skateboard ramps under 30 inches in height are exempt from all fees associated with the application and renewal process, but are required to make application to the city along with renewal on an annual basis. The application shall set forth, but shall not be limited to, the following:

(1)

The name, address and phone number of the applicant and property owner, if different than the applicant;

(2)

The location of the proposed skateboard ramp;

(3)

A site plan showing ramp:

a.

Dimensions;

b.

Height;

c.

Placement;

d.

Distance from property lines;

e.

Proximity to electric utility facilities;

f.

Location and dimension of all other structures existing on lot;

g.

Cross section of the proposed construction showing bracing, decking, etc., and including the type of construction materials to be utilized;

(4)

Any noise reduction measures to be utilized in construction;

(5)

The nature of any enclosures around the ramp;

(6)

The name, address and telephone number of the responsible party, if other than the applicant;

(7)

The signatures of the applicant and property owner, if different than applicant.

(e)

Same—Procedure for approval or denial. Upon receiving an application which meets the requirements of the above process, the city shall notify by certified U.S. mail all surrounding property owners within a 300-foot radius of the property of the proposed skateboard ramp. This will be measured from the centerpoint of the proposed location of the skateboard ramp. Such notice shall state that the permit application is on file at city hall and that any objections to the proposed ramp must be submitted to city hall within 30 days of notification. If no objections are received within 30 days, then the application shall be approved. If one objection is received by the city from an adjoining or adjacent property owner, or if two or more objections are received from property owners within the 300-foot radius, then a meeting shall be scheduled between the owner of the property proposing the skateboard ramp, all objecting parties, the city administrative assistant, and the city building inspector in order to seek a solution to the situation. The decision of the administrative assistant shall serve as official approval or denial by the city. Any of the above parties may request that the city commission reconsider the decision. In such case, the city commission will review the case and make a final decision in the matter.

(f)

Same—Renewal procedures; inspection fee. Annually, on or before the first day of the month in which the permit was issued, the responsible party shall submit to the city an application for a renewal permit, together with a fee of $50.00. An additional $25.00 will be charged as an inspection fee for annual inspection of the skateboard ramp to determine if there has been deterioration of the structure, due to its outside location. The same procedures will be used for citizen notification and approval, as outlined in the above subsection.

(g)

Penalty for violation. Violations of any provisions of this section or failure to comply with any of its requirements shall constitute a misdemeanor. Any person who intentionally violates this section or intentionally fails to comply with any of its requirements shall be, upon conviction thereof, fined not more than $500.00 or imprisoned not more than 60 days, or both. Nothing herein contained shall prevent the city or any other person aggrieved from taking such lawful civil action as is necessary to prevent or remedy any violation.

(h)

Intent; safety of users. This section shall not be construed to impose safety regulations or conditions upon the construction, operation or use of skateboard ramps. Those persons using skateboard ramps do so at their own risk and with the knowledge that the city does not impose or enforce any skateboard ramp safety requirements.

(Ord. No. 344, §§ 1—8, 7-23-90; Ord. No. 557, § 4, 1-8-2007)

(a)

A board of adjustment is hereby established. This board is not in any way connected in function or form to the review board described in this chapter. The purpose of this board is to hear all cases pertaining to variances that may arise as a result of geographical conditions such as low-lying areas, odd-shaped lots, etc., and to determine if the situation warrants the granting of a variance.

(b)

The board of adjustment will be composed of five individuals appointed by a majority vote of the city commission with three members to constitute a quorum.

(1)

The term of office of a member of the board of adjustment shall be four years beginning on the second Monday in October and ending on the second Monday in October.

(2)

Terms shall be staggered as follows:

(i)

The terms of the three longest serving members shall expire at the end of the first year, the next longest-serving member at the end of the second year and the next longest-serving member at the end of the third year.

For purposes of this section, the end of the first year shall mean April 9, 2007; the end of the second year shall mean September 30, 2008; and the end of the third year shall mean September 30, 2009.

(c)

Subsequent terms shall commence at the end of the first, second or third years respectively, and expire every four years thereafter or longer to coincide with a September 30 termination.

(d)

The city commission may, vote to extend the terms of board of adjustment members serving at the time of adoption of this section, to coincide with the schedule set forth in this section.

(e)

Appointments shall be made annually in September. Vacancies in the board of adjustment shall be filled by the commission for the remainder of the term created by a vacancy within 30 days.

(Code 1966, § 30-12; Ord. No. 559, § 1, 4-9-2007)

(a)

Purpose. The purpose of this section is to establish general guidelines for the siting of wireless communications towers and antennas. The goals of this section are to:

(1)

Protect residential areas and land uses from potential adverse impacts of towers and antennas;

(2)

Encourage the location of towers in non-residential areas;

(3)

Minimize the total number of towers throughout the community;

(4)

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

(5)

Encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the community is minimal;

(6)

Encourage users of towers and antennas 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;

(7)

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

(8)

Consider the public health and safety of communication towers; and

(9)

Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures. In furtherance of these goals, the city shall give due consideration to the adopted comprehensive plan, zoning map, existing land uses, and environmentally sensitive areas in approving sites for the location of towers and antennas.

(b)

Definitions. As used in this section, the following terms shall have the meanings set forth below:

Alternative tower structure means manmade trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camouflage or conceal the presence of antennas or towers.

Antenna means any exterior transmitting or receiving device mounted on a tower, building or structure and used in communications that radiate or capture electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals.

Backhaul network means the lines that connect a provider's towers/cell sites to one or more cellular telephone switching offices, and/or long distance providers, or the public switched telephone network.

FAA means the Federal Aviation Administration.

FCC means the Federal Communications Commission.

Height means, when referring to a tower or other structure, the distance measured from the finished grade of the parcel to the highest point on the tower or other structure, including the base pad and any antenna.

Preexisting towers and preexisting antennas means any tower or antenna for which a building permit or special use permit has been properly issued prior to the effective date of this section, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired.

Tower means any structure that is designed and constructed primarily for the purpose of supporting one or more antennas for telephone, radio, internet and similar communication purposes, including self-supporting lattice towers, guyed towers, or monopole towers. The term includes radio and television transmission towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures, and the like. The term includes the structure and any support thereto.

(c)

Applicability.

(1)

New towers and antennas. All new towers or antennas in the city shall be subject to these regulations, except as provided in subsections (c)(2) through (c)(4), inclusive.

(2)

Amateur radio station operators/receive only antennas. This section shall not govern any tower, or the installation of any antenna, that is under 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.

(3)

Preexisting towers or antennas. Preexisting towers and preexisting antennas shall not be required to meet the requirements of this section, other than the requirements of subsections (d)(6) and (d)(7).

(4)

AM array. For purposes of implementing this section, an AM array, consisting of one or more tower units and supporting ground system which functions as one AM broadcasting antenna, shall be considered one tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right.

(d)

General requirements.

(1)

Principal or accessory use. Antennas and towers may be considered either principal or accessory uses. A different existing use of an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot.

(2)

Lot size. For purposes of determining whether the installation of a tower or antenna complies with district 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 antennas or towers may be located on leased parcels within such lot.

(3)

Inventory of existing sites. Each applicant for an antenna and/or tower shall provide to the city administrator an inventory of its existing towers, antennas, or sites approved for towers two or antennas, that are either within the jurisdiction of the city or within one mile of the border thereof, including specific information about the location, height, and design of each tower. The city administrator may share such information with other applicants applying for administrative approvals or special use permits under this section or other organizations seeking to locate antennas within the jurisdiction of the city, provided, however that the city administrator is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.

(4)

Aesthetics. Towers and antennas shall meet the following requirements:

a.

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.

b.

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

c.

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.

(5)

Lighting. Towers shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views.

(6)

State or federal requirements. All towers must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this section shall bring such towers and antennas into compliance with such revised standards and regulations within six months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. 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.

(7)

Building codes; safety standards. To ensure the structural integrity of towers, the owner of a tower shall ensure that it is maintained in compliance with standards contained in applicable state or 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 city 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 30 days to bring such tower into compliance with such standards. Failure to bring such tower into compliance within said 30 days shall constitute grounds for the removal of the tower or antenna at the owner's expense.

(8)

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

(9)

Not essential services. Towers and antennas shall be regulated and permitted pursuant to this section and shall not be regulated or permitted as essential services, public utilities, or private utilities.

(10)

Franchises. Owners and/or operators of towers or antennas shall certify that all franchises required by law for the construction and/or operation of a wireless communication system in the city have been obtained and shall file a copy of all required franchises with the city administrator.

(11)

Public notice. For purposes of this section, any special or conditional use request, variance request, or appeal of an administratively approved use or special use shall require public notice to all abutting property owners and all property owners of properties that are located within the corresponding separation distance listed in subsection (g)(2)e.ii., Table 2, in addition to any notice otherwise required by this Code.

(12)

Signs. No signs shall be allowed on an antenna or tower except those required by the FCC or FAA.

(13)

Buildings and support equipment. Buildings and support equipment associated with antennas or towers shall comply with the requirements of subsection (h).

(14)

Multiple antenna/tower plan. The city encourages the users of towers and antennas to submit a single application for approval of multiple towers and/or antenna sites. Applications for approval of multiple sites shall be given priority in the review process.

(e)

Permitted uses.

(1)

General. The uses listed in this section are deemed to be conditional uses and shall be approved in accord with provisions in section 114-13 of this Code.

(2)

Permitted uses. The following uses are specifically permitted:

a.

Antennas or towers located on property owned, leased, or otherwise controlled by the city provided a license or lease authorizing such antenna or tower has been approved by the city commission.

(f)

Approved uses.

(1)

General. The following provisions shall govern the issuance of approvals for towers and antennas.

a.

The city commission may approve the uses listed in this section.

b.

Each applicant for approval shall apply to the city commission providing the information set forth in subsections (g)(2)a and (g)(2)c of this section and a nonrefundable fee as established by resolution of the city to reimburse the city for the costs of reviewing the application.

c.

The city administrator shall review the application for approval and determine if the proposed use complies with subsections (d), (g)(2)d and (g)(2)e of this section.

d.

The city administrator shall present the application and a recommendation to the city commission for their response, and shall provide that response to the applicant within 60 days after receiving it by either approving or denying the application. If the city fails to respond to the applicant within said 60 days, then the application shall be deemed to be approved.

e.

In connection with any such administrative approval, the city commission may, in order to encourage shared use, waive any zoning district setback requirements in subsection (g)(2)d or separation distances between towers in subsection (g)(2)e by up to 50 percent.

f.

In connection with any such approval, the city commission may, in order to encourage the use of monopoles, allow the reconstruction of an existing tower to monopole construction.

g.

If an approval is denied, the applicant shall file an application for a special use permit pursuant to subsection (g) prior to filing any appeal that may be available under the Code of Ordinances.

(2)

List of approved uses. The following uses may be approved by the city commission:

a.

Locating a tower or antenna, including the placement of additional buildings or other supporting equipment used in connection with said tower or antenna, in any industrial or heavy commercial zoning district.

b.

Locating antennas on existing structures or towers consistent with the terms of subsections 1. and 2. below.

1.

Antennas on existing structures. Any antenna which is not attached to a tower may be approved as an accessory use to any commercial, industrial, professional, institutional, or multifamily structure of eight or more dwelling units, provided:

i.

The antenna does not extend more than 30 feet above the highest point of the structure;

ii.

The antenna complies with all applicable FCC and FAA regulations; and

iii.

The antenna complies with all applicable building codes.

2.

Antennas on existing towers. An antenna which is attached to an existing tower may be approved and, to minimize adverse visual impacts associated with the proliferation and clustering of towers, collocation of antennas by more than one carrier on existing towers shall take precedence over the construction of new towers, provided such collocation is accomplished in a manner consistent with the following:

i.

A tower which is modified or reconstructed to accommodate the collocation of an additional antenna shall be of the same tower type as the existing tower, unless the city commission allows reconstruction as a monopole.

ii.

Height:

A.

An existing tower may be modified or rebuilt to a taller height, not to exceed 30 feet over the tower's existing height, to accommodate the collocation of an additional antenna.

B.

The height change referred to in subsection iii. A. may only occur one time per communication tower.

C.

The additional height referred to in subsection iii. A. shall not require an additional distance separation as set forth in subsection (g). The tower's premodification height shall be used to calculate such distance separations.

iii.

Onsite location:

A.

A tower which is being rebuilt to accommodate the collocation of an additional antenna may be moved onsite within 50 feet of its existing location.

B.

After the tower is rebuilt to accommodate collocation, only one tower may remain on the site.

C.

A relocated onsite tower shall continue to be measured from the original tower location for purposes of calculating separation distances between towers pursuant to subsection (g)(2)e. The relocation of a tower hereunder shall in no way be deemed to cause a violation of subsection (g)(2)e.

D.

The onsite relocation of a tower which comes within the separation distances to residential units or residentially zoned lands as established in subsection (g)(2)e. shall only be permitted when approved by the city commission.

c.

New towers in non-residential zoning districts. Locating any new tower in a non-residential zoning district other than industrial or heavy commercial, provided a licensed professional engineer certifies the tower can structurally accommodate the number of shared users proposed by the applicant; the city commission concludes the tower is in conformity with the goals set forth in subsection (a) and the requirements of subsection (d); the tower meets the setback requirements in subsection (g)(2)d and separation distances in subsection (g)(2)e; and the tower meets the following height and usage criteria:

i.

For a single user, up to 90 feet in height;

ii.

For two users, up to 120 feet in height; and

iii.

For three or more users, up to 150 feet in height.

d.

Locating any alternative tower structure in a zoning district other than industrial or heavy commercial that in the judgment of the city commission is in conformity with the goals set forth in subsection (a) of this chapter.

e.

Installing a cable microcell network through the use of multiple low-powered transmitters/receivers attached to existing wireline systems, such as conventional cable or telephone wires, or similar technology that does not require the use of towers.

(g)

Special use permits.

(1)

General. The following provisions shall govern the issuance of special use permits for towers or antennas by the city commission:

a.

If the tower or antenna is not a permitted use under subsection (e) of this chapter or permitted to be approved administratively pursuant to subsection (f) of this chapter, then a special use permit shall be required for the construction of a tower or the placement of an antenna in all zoning districts.

b.

Applications for special use permits under this subsection shall be subject to the procedures and requirements of chapter 114 of this Code, except as modified in this subsection.

c.

In granting a special use permit, the city commission may impose conditions to the extent the city commission concludes such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties.

d.

Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certified by a licensed professional engineer.

e.

An applicant for a special use permit shall submit the information described in this subsection and a non-refundable fee as established by resolution of the city commission to reimburse the city for the costs of reviewing the application.

(2)

Towers.

a.

Information required. In addition to any information required for applications for special use permits pursuant to chapter 114 of this Code, applicants for a special use permit for a tower 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 other municipalities), comprehensive plan (future land use map) classification of the site and all properties within the applicable separation distances set forth in subsection (g)(2)e, adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed tower and any other structures, topography, parking, and other information deemed by the city commission to be necessary to assess compliance with this section.

2.

Legal description of the parent tract and leased parcel (if applicable).

3.

The setback distance between the proposed tower and the nearest residential unit, platted residentially zoned properties, and unplatted residentially zoned properties.

4.

The separation distance from other towers described in the inventory of existing sites submitted pursuant to subsection (d)(3) shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing tower(s), if known.

5.

A landscape plan showing specific landscape materials.

6.

Method of fencing, and finished color and, if applicable, the method of camouflage and illumination.

7.

A description of compliance with subsections (d)(3) through (7), (d)(10), (12) and (13), (g)(2)d. and e., and all applicable federal, state or local laws.

8.

A notarized statement by the applicant as to whether construction of the tower will accommodate collocation of additional antennas for future users.

9.

Identification of the entities providing the backhaul network for the tower(s) described in the application and other cellular sites owned or operated by the applicant in the municipality.

10.

A description of the suitability of the use of existing towers, other structures or alternative technology not requiring the use of towers or structures to provide the services to be provided through the use of the proposed new tower.

11.

A description of the feasible location(s) of future towers or antennas within the city based upon existing physical, engineering, technological or geographical limitations in the event the proposed tower is erected.

b.

Factors considered in granting special use permits for towers. In addition to any standards for consideration of special use permit applications pursuant to chapter 114 of this Code, the city commission shall consider the following factors in determining whether to issue a special use permit, although the city commission may waive or reduce the burden on the applicant of one or more of these criteria if the city commission concludes that the goals of this section are better served thereby:

1.

Height of the proposed tower;

2.

Proximity of the tower to residential structures and residential district boundaries;

3.

Nature of uses on adjacent and nearby properties;

4.

Surrounding topography;

5.

Surrounding tree coverage and foliage;

6.

Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness;

7.

Proposed ingress and egress; and

8.

Availability of suitable existing towers, other structures, or alternative technologies not requiring the use of towers or structures, as discussed in subsection (g)(2)c of this chapter.

c.

Availability of suitable existing towers, other structures, or alternative technology. No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the city commission that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant's a proposed antenna. An applicant shall submit information requested by the city commission related to the availability of suitable existing towers, other structures or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant's proposed antenna may consist of any of the following:

1.

No existing towers or structures are located within the geographic area which meet applicant's engineering requirements.

2.

Existing towers or structures are not of sufficient height to meet applicant's engineering requirements.

3.

Existing towers or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment.

4.

The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna.

5.

The fees, costs, or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower development are presumed to be unreasonable.

6.

The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable.

7.

The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a cable microcell network using multiple low-powered transmitters/receivers attached to a wireline system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable.

d.

Setbacks. The following setback requirements shall apply to all towers for which a special use permit is required; provided, however, that the city commission may reduce the standard setback requirements if the goals of this section would be better served thereby:

1.

Towers must be set back a distance equal to at least 75 percent of the height of the tower from any adjoining lot line.

2.

Guys and accessory buildings must satisfy the minimum zoning district setback requirements.

e.

Separation. The following separation requirements shall apply to all towers and antennas for which a special use permit is required; provided, however, that the city commission may reduce the standard separation requirements if the goals of this section be better served thereby.

1.

Separation from off-site uses/designated areas.

i.

Tower separation shall be measured from the base of the tower to the lot line of the off-site uses and/or designated areas as specified in Table 1, except as otherwise provided in Table 1.

ii.

Separation requirements for towers shall comply with the minimum standards established in Table 1.

TABLE 1

¹ Includes modular homes and mobile homes used for living purposes.

² Separation measured from base of tower to closest building setback line.

³ Includes any unplatted residential use properties without a valid preliminary subdivision plan or valid development plan approval and any multi-family residentially zoned land greater than duplex.

2.

Separation distances between towers. Separation distances between towers shall be applicable for and measured between the proposed tower and preexisting towers. The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower. The separation distances (listed in linear feet) shall be as shown in Table 2.

TABLE 2: EXISTING TOWERS—TYPES

f.

Security fencing. Towers shall be enclosed by security fencing not less than six feet in height and shall also be equipped with an appropriate anticlimbing device; provided however, that the city commission may waive such requirements, as it deems appropriate.

g.

Landscaping. The following requirements shall govern the landscaping surrounding towers for which a special use permit is required; provided, however, that the city commission may waive such requirements if the goals of this chapter would be better served thereby.

1.

Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound from property used for residences. The standard buffer shall consist of a landscaped strip at least four feet wide outside the perimeter of the compound.

2.

In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived.

3.

Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible. In some cases, such as towers sited on large, wooded lots, natural growth around the property perimeter may be sufficient buffer.

(h)

Buildings or other equipment storage.

(1)

Antennas mounted on structures or rooftops. The equipment cabinet or structure used in association with antennas shall comply with the following: Equipment storage buildings or cabinets shall comply with all applicable building codes, and they must be approved by the city commission prior to issuance of a building permit.

(2)

Antennas mounted on utility poles or light poles. The equipment cabinet or structure used in association with antennas shall be located in accordance with the electrical code, comprehensive land use plan and must be approved on an individual basis by the city commission before issuance of a building permit.

(3)

Antennas located on towers. The related unmanned equipment structure shall not exceed the height authorized by chapter, and shall be located in accordance with the minimum yard requirements of the zoning district in which located.

(4)

Modification of building size requirements. The requirements of subsections (h)(1) through (3) may be modified by the city commission for either approved uses or special uses to encourage collocation.

(i)

Removal of abandoned antennas and towers. Any antenna or tower that is not operated for a continuous period of 12 months shall be considered abandoned, and the owner of such antenna or tower shall remove the same within 90 days of receipt of notice from the city notifying the owner of such abandonment. Failure to remove an abandoned antenna or tower within said 90 day shall be grounds to remove the tower or antenna at the owner's expense. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower.

(j)

Nonconforming uses.

(1)

Not expansion of nonconforming use. Towers that are constructed, and antennas that are installed, in accordance with the provisions of this section shall not be deemed to constitute the expansion of a nonconforming use or structure.

(2)

Preexisting towers. Preexisting towers shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such preexisting towers. New construction other than routine maintenance on a preexisting tower shall comply with the requirements of this chapter.

(3)

Rebuilding damaged or destroyed nonconforming towers or antennas. Notwithstanding subsection (i), bona fide nonconforming towers or antennas that are damaged or destroyed may be rebuilt without having to first obtain administrative approval or a special use permit and without having to meet the separation requirements specified in subsections (g)(2)d and (g)(2)e. The type, height, and location of the tower onsite shall be of the same type and intensity as the original facility approval. Building permits to rebuild the facility shall comply with the then applicable building codes and shall be obtained within 180 days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the tower or antenna shall be deemed abandoned as specified in subsection (i).

(Ord. No. 425, § 2, 2-19-98; Ord. No. 463, §§ 1, 2, 8-14-2000)