Williston City Zoning Code
SECTION 25
W Wireless communication facilities.
1.
Purpose.
a.
To protect the community's visual quality and safety while facilitating the reasonable and balanced provision of wireless communication services. More specifically, it is the City's goal to minimize the visual impact of wireless communication facilities on the community, particularly in and near residential zones;
b.
To promote and protect the public health, safety and welfare, preserve the aesthetic character of the Williston community, and to reasonably regulate the development and operation of wireless communication facilities within the City to the extent permitted under State and federal law;
c.
To minimize the impact of wireless communication facilities by establishing standards for siting design and screening;
d.
To preserve the opportunity for continued and growing service from the wireless industry;
e.
To accommodate the growing need and demand for wireless communication services;
f.
To establish clear guidelines and standards and an orderly process for review intended to facilitate the deployment of wireless transmission equipment, to provide advanced communication services to the City, its residents, businesses and community at large;
g.
To ensure City zoning regulations are applied consistently with federal and State telecommunications laws, rules, regulations and controlling court decisions;
h.
To provide regulations which are specifically not intended to, and shall not be interpreted or applied to, (1) prohibit or effectively prohibit the provision of personal wireless services, (2) unreasonably discriminate among functionally equivalent service providers, or (3) regulate wireless communication facilities and wireless transmission equipment on the basis of the environmental effects of radio frequency emissions to the extent that such emissions comply with the standards established by the Federal Communications Commission; and
i.
To create an administrative review committee to review all applicable applications.
2.
Definitions. As used in this ordinance, the following terms shall have the meanings set forth below:
a.
Administrative review committee. A committee consisting of the City Administrator, City Engineer, City Director of Planning and Zoning, City Public Works Director, City Auditor, City Attorney, two members of the Planning and Zoning Commission, two members of the City Commission and any other representatives of the City which the City Commission deems appropriate to review all administrative permits.
b.
Alternative tower structure. Man-made trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camouflage or conceal the presence of antennas or towers.
c.
Antenna. Any exterior transmitting or receiving device mounted on a tower, building or structure and used in communications that send or receive electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signal. "Antenna" also means one or more rods, panels, discs or similar devices used for wireless communication, which may include, but is not limited to, omni-directional antenna (whip), directional antenna (panel), and parabolic antenna (dish).
d.
Antenna array. A single or group of antenna elements and associated mounting hardware, transmission lines, or other appurtenances which share a common attachment device such as a mounting frame or mounting support structure for the sole purpose of transmitting or receiving electromagnetic waves.
e.
Applicant. Any person engaged in the business of providing wireless telecommunications services or the wireless telecommunications infrastructure required for wireless telecommunications services and who submits an application.
f.
Backhaul network. 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.
g.
Base station. A structure or equipment at a fixed location that enables Commission-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in this ordinance or any equipment associated with a tower.
(i)
The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
(ii)
The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including Distributed Antenna Systems and small cell networks).
(iii)
The term includes any structure other than a tower that, at the time the relevant application is filed with the City under this Section 25.W, supports or houses equipment described in this section that has been reviewed and approved under the applicable zoning or siting process, or under North Dakota or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.
(iv)
The term does not include any structure that, at the time the relevant application is filed with the state or the City under this section, does not support or house equipment described in this section.
h.
Collocation. The mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.
i.
Distributed antenna systems or DAS. A network consisting of transceiver equipment at a central hub site to support multiple antenna locations throughout the desired coverage area.
j.
Eligible facilities request. Any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving:
k.
Eligible support structure. Any tower or base station as defined in this section, provided that it is existing at the time the relevant application is filed with the City under this section.
l.
Existing. A tower or base station that has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, provided that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.
m.
FAA: The Federal Aviation Administration.
n.
FCC: The Federal Communications Commission.
o.
Macrocell. An antenna or antennas mounted on a tower, ground-based mast, rooftops and other existing structures, at a height that provides a clear view over the surrounding buildings and terrain.
p.
Preexisting towers and preexisting antennas. Any tower or antenna for which a building permit or special use permit has been properly issued prior to the effective date of this ordinance, including permitted towers or antennas that have not yet been constructed so long as such approval is current and not expired.
q.
Site. In relation to a tower that is not in the public right-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site. In relation to support structures other than towers, site means an area in proximity to the structure and to other transmission equipment already deployed on the ground.
r.
Small cells. Compact wireless antennas and equipment containing their own transceiver equipment and function like cells in a mobile network but provide a smaller coverage area than traditional macrocells.
s.
Stealth design. Technology that minimizes the visual impact of wireless communication facilities by camouflaging, disguising, screening or blending into the surrounding environment. Examples of stealth design include but are not limited to facilities disguised as trees, flagpoles, bell towers, everyday items such as light poles, and architecturally screened roof-mounted antennas. All stealth designs should be substantially similar to the design of the surrounding area.
t.
Substantial change. A modification that substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria:
(i)
For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than 10 feet, whichever is greater. Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act;
(ii)
For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20 feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;
(iii)
For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no preexisting ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure;
(iv)
It entails any excavation or deployment outside the current site;
(v)
It would defeat the concealment elements of the eligible support structure; or
(vi)
It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in paragraphs t(i) through (iv) above.
u.
Tower. Any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site.
v.
Tower height: The vertical distance measured from the base of the tower structure at grade to the highest point of the structure including the antenna.
w.
Transmission equipment. Equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
x.
Utility support structure. Utility poles or utility towers supporting electrical, telephone, cable or other similar facilities; street light standards; pedestrian light standards; traffic light structures; traffic sign structures; or water towers.
y.
Wireless communication facilities or WCF. A staffed or unstaffed facility or location for the transmission and/or reception of radio frequency (RF) signals or other wireless communications or other signals for commercial communications purposes, typically consisting of one or more antennas or group of antennas, a tower or attachment support structure, transmission cables and other transmission equipment, and an equipment enclosure or cabinets.
z.
Wireless support structure. A structure that exists at the time an application is submitted and is capable of supporting the attachment or installation of transmission equipment in compliance with applicable codes, including but not limited to water towers, buildings, and other structures, whether within or outside the public right-of-way. Wireless support structure does not include a tower or existing base station.
3.
Applicability.
a.
New Towers, Antennas, DAS, and Small Cells. All new towers, antennas, DAS, and small cells in the City shall be subject to these regulations, except as otherwise provided herein.
b.
Preexisting towers or antennas. Preexisting towers and preexisting antennas shall not be required to meet the requirements of this ordinance, except as otherwise provided herein.
c.
AM or FM Array. For purposes of implementing this ordinance, an AM or FM array, consisting of one or more tower units and supporting ground system which functions as one AM or FM 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 or FM array. Additional tower units may be added within the perimeter of the AM array or FM by right.
d.
Exempt facilities. The following are exempt from this Section 25.W:
(i)
FCC licensed amateur (ham) radio facilities;
(ii)
Satellite earth stations, dishes and/or antennas used for private television reception not exceeding one meter in diameter;
(iii)
A government-owned WCF installed upon the declaration of a state of emergency by the federal, state or local government, or a written determination of public necessity by the City; except that such facility must comply with all federal and state requirements. The WCF shall be exempt from the provisions of this section for up to one month after the duration of the state of emergency;
(iv)
A temporary, commercial WCF installed for providing coverage of a special event such as news coverage or sporting event, subject to administrative approval by the City. The WCF shall be exempt from the provisions of this section for up to one week before and after the duration of the special event.
4.
Distributed Antenna Systems and Small Cells.
a.
Distributed Antenna Systems (DAS) and small cells are allowed in all zones provided the applicant complies with all federal laws (such as the Americans with Disabilities Act) and state laws and requirements, and provided the applicant complies with this section.
b.
DAS and small cells in all zones are subject to approval via administrative review by the Administrative Review Committee if either of the following conditions are met:
(i)
Proposed DAS or small cell is to be placed on an existing or replacement structure in the right-of-way or on an existing structure or replacement on private property. A replacement structure shall not be considered to be a new structure, as long as the structure is in the same location and of the same design as the existing structure that is being replaced.
(ii)
Proposed DAS or small cell is in the right-of-way on a new tower or structure in a spot where there was no previous structure and which incorporates stealth design.
c.
DAS and small cells in all zones are subject to approval via the special use permit if the conditions above are not met, or the following conditions are met:
5.
General Requirements for DAS/Small Cell and Macrocell Towers, Including Those with Administrative Approval.
a.
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.
b.
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 the 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.
c.
Inventory of existing sites. Upon request, any new applicant for an antenna and/or tower shall provide to the City Planner an inventory of its existing towers, antennas, or sites approved for towers 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 Planner may share such information with other applicants applying for administrative approvals or special use permits under this ordinance or other organizations seeking to locate antennas within the jurisdiction of the City, provided, however that the City Planner is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.
d.
Aesthetics. Towers and antennas shall meet the following requirements:
(i)
Macrocell 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 to the extent possible to the reasonable satisfaction of the Administrative Review Committee.
(ii)
Small cells and DAS shall maintain a finish that is substantially similar to the pole or surrounding poles and which contributes to the stealth design of such poles.
(iii)
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.
(iv)
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.
(v)
Landscaping should be provided in a similar fashion to Subsection W.8.
e.
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.
f.
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 25.W 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.
g.
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 industry standards for towers. 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.
h.
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.
i.
Notice. For purposes of this Section 25.W, any special use request, variance request, or appeal of a special use shall require notice to all abutting property owners and all property owners of properties that are located within the corresponding separation distance listed in Subsection W.8., Table 2, in addition to any notice otherwise required by the zoning ordinance.
j.
Signs. No signs shall be allowed on an antenna or tower, unless required under generally applicable health, safety and welfare regulations.
k.
Buildings and support equipment. Buildings and support equipment associated with antennas or towers shall comply with the requirements of this Section.
l.
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.
m.
Visual impact. All WCF shall be sited and designed to minimize adverse visual impacts on surrounding properties and the traveling public to the greatest extent reasonably possible, consistent with the proper functioning of the WCF. Such WCFs and equipment enclosures shall be integrated through location and design to blend in with the existing characteristics of the site. Such WCFs shall also be designed to either resemble the surrounding landscape and other natural features where located in proximity to natural surroundings, or be compatible with the built environment, through matching and complimentary existing structures and specific design considerations such as architectural designs, height, scale, color and texture or be consistent with other uses and improvements permitted in the relevant zone.
n.
Use of stealth design/technology. The applicant shall make an affirmative showing as to why it is not employing stealth technology. More specifically: Stealth design is required in residential, commercial, and corridor zones, and concealment techniques must be appropriate given the proposed location, design, visual environment, and nearby uses, structures, and natural features. Stealth design shall be designed and constructed to substantially conform to surrounding building designs or natural settings, so as to be visually unobtrusive. Stealth design that relies on screening wireless communication facilities in order to reduce visual impact must screen all substantial portions of the facility from view as needed as determined by the administrative review committee. Stealth and concealment techniques do not include incorporating faux-tree designs of a kind that are not native to the State.
o.
Building-mounted WCFs.
(i)
In residential, commercial, and corridor zones, all transmission equipment shall be concealed within existing architectural features to the maximum extent feasible. Any new architectural features proposed to conceal the transmission equipment shall be designed to mimic the existing underlying structure, shall be proportional to the existing underlying structure or conform to the underlying use and shall use materials in similar quality, finish, color and texture as the existing underlying structure.
(ii)
In residential zones, all roof-mounted transmission equipment shall be set back from all roof edges to the maximum extent feasible consistent with the need for "line-of-sight" transmission and reception of signals.
(iii)
In all other zones, antenna arrays and supporting transmission equipment shall be installed so as to camouflage, disguise or conceal them to make them closely compatible with and blend into the setting and/or host structure.
p.
WCFs in the public rights-of-way.
(i)
Preferred locations. Facilities shall be located as far from residential uses as feasible, and on main corridors and arterials to the extent feasible. See Subsection W.6.b for preferred tower locations.
(ii)
Pole-mounted or tower-mounted equipment. All pole-mounted or tower-mounted transmission equipment shall be mounted as close as possible to the tower so as to reduce the overall visual profile to the maximum extent feasible. All tower-mounted transmission equipment shall be painted with flat, non-reflective colors that blend with the visual environment to the extent possible to the reasonable satisfaction of the committee.
(iii)
For all WCFs to be located within the right-of-way, prior to submitting for a permit, the applicant must have a valid franchise or right-of-way agreement.
q.
Accessory uses.
(i)
Accessory uses shall be limited to such structures and equipment that are necessary for transmission functions, and shall not include broadcast studios, offices, vehicles or equipment storage, or other uses not essential to the transmission function.
(ii)
All accessory buildings shall be constructed of building materials equal to or better than those of the primary building on the site and shall be subject to site plan approval.
(iii)
No equipment shall be stored or parked on the site of the tower, unless used in direct support of the antennas or the tower or antennas are being repaired.
(iv)
All equipment buildings shall be submitted as part of a WCF permit application and shall include a dimensioned site plan. Such buildings must follow all applicable codes, including obtainment of a building permit if required.
r.
Accessory equipment. In residential and commercial zones, all accessory equipment located at the base of a WCF shall be located or placed (at the applicant's choice) in an existing building, underground, or in an equipment shelter that is (a) designed to blend in with existing surroundings, using architecturally compatible construction and colors; and (b) located so as to be unobtrusive as possible consistent with the proper functioning of the WCF. All accessory equipment shall be submitted as part of a WCF permit application and shall include a dimensioned site plan.
s.
Site design flexibility. Individual WCF sites vary in the location of adjacent buildings, existing trees, topography and other local variables. By mandating certain design standards, there may result a project that could have been less intrusive if the location of the various elements of the project could have been placed in more appropriate locations within a given site. Therefore, the WCF and supporting equipment may be installed so as to best camouflage, disguise them, or conceal them, to make the WCF more closely compatible with and blend into the setting and/or host structure, upon approval by the City.
t.
Structural assessment. The owner of a proposed tower shall have a structural assessment of the tower conducted by a professional engineer, licensed in the State of North Dakota, which shall be submitted with the application for a permit.
6.
Tower sharing, collocation and preferred tower locations.
a.
Tower sharing and collocation. New WCF facilities must, to the maximum extent feasible, collocate on existing towers or other structures of a similar height to avoid construction of new towers, unless precluded by zoning constraints such as height, structural limitations, inability to obtain authorization by the owner of an alternative location, or where an alternative location will not meet the service coverage objectives of the applicant. Applications for a new tower must address all existing towers or structures of a similar height within 1/2 mile of the proposed site as follows: (a) by providing evidence that a request was made to locate on the existing tower or other structure, with no success; or (b) by showing that locating on the existing tower or other structure is infeasible.
b.
Preferred DAS/small cell tower locations. All proposed new small cell and DAS towers are permitted only after application of the following siting priorities, ordered from most-preferred (1) least-preferred (8):
(1)
On an existing structure in a commercial or industrial zone;
(2)
On City-owned or operated property and facilities not in the downtown or residential zones and not including right-of-way and right-of-way facilities;
(3)
In an alley;
(4)
On an existing structure in a public right-of-way in a commercial or industrial zone;
(5)
On the property or structure of an education facility, regardless of zoning;
(6)
On a new stealth designed structure in a public right-of-way in a commercial or industrial zone;
(7)
On an existing building in a residential zone;
(8)
On an new stealth designed structure in a public right-of-way in a residential zone;
For small cell and DAS, the applicant must address the City's preferred tower locations with a detailed explanation justifying why a site of higher priority was not selected. If reasonably requested, the applicant for a tower shall address these preferences in an alternative sites analysis.
c.
Gap in coverage or capacity. If reasonably requested by the City, the applicant shall demonstrate the following with a new tower application:
(i)
A significant gap in the coverage, capacity, or technologies of the service network exists such that users are regularly unable to connect to the service network, or are regularly unable to maintain a connection, or are unable to achieve reliable wireless coverage within a building;
(ii)
The gap can only be filled through an exception to one or more of the standards in this Section 25.W; and
(iii)
The exception is narrowly tailored to fill the service gap such that the wireless communication facility conforms to this chapter's standards to the greatest extent possible.
d.
Residential zones. For a new tower proposed to be located in a residential zone or within 200 feet of a residential zone, unless the proposal qualifies as a preferred location on City-owned or operated property or facilities, the applicant must also demonstrate that the manner in which it proposes to fill the significant gap in coverage, capacity, or technologies of the service network is the least intrusive on the values that this Section 25.W seeks to protect.
e.
DAS/small cell alternative sites analysis.
(i)
For small cell and DAS, the applicant must address the City's preferred tower locations with a detailed explanation justifying why a site of higher priority was not selected. If reasonably requested by the City, the City's tower location preferences must be addressed in a clear and complete written alternative site analysis that shows at least two higher ranked, alternative sites considered that are in the geographic range of the service coverage objectives of the applicant, together with a factually detailed and meaningful comparative analysis between each alternative candidate and the proposed site that explains the substantive reasons why the applicant rejected the alternative candidate.
(ii)
A complete alternative sites analysis provided under this subsection may include less than two alternative sites so long as the applicant provides a factually detailed written rationale for why it could not identify at least two potentially available higher ranked, alternative sites.
(iii)
Required description of coverage objectives. For purposes of disqualifying potential collocations and/or alternative sites for the failure to meet the applicant's service coverage objectives the applicant will provide (a) a description of its objective, whether it be to close a gap or address a deficiency in coverage, capacity, frequency and/or technology; (b) detailed technical maps or other exhibits with clear and concise RF data to illustrate that the objective is not met using the alternative (whether it be collocation or a more preferred location); and (c) a description of why the alternative (collocation or a more preferred location) does not meet the objective.
f.
DAS and small cells. The City encourages but it does not require the use of DAS and small cells.
g.
Radio frequency emissions compliance report. A written report will be prepared, signed and sealed by a North Dakota-licensed professional engineer or a competent employee of the applicant, which assesses whether the proposed WCF demonstrates compliance with the exposure limits established by the FCC.
h.
Collocation consent. A written statement will be signed by a person with the legal authority to bind the applicant and the project owner, which indicates whether the applicant is willing to allow other transmission equipment owned by others to collocate with the proposed wireless communication facility whenever technically and economically feasible and aesthetically desirable.
7.
Permitted uses.
a.
General. The uses listed in this Subsection W.7 are deemed to be permitted uses and shall require administrative approval by the Administrative Review Committee.
b.
Permitted uses. The following uses are specifically permitted:
(i)
Antennas or towers located on fee simple property owned, leased, or otherwise controlled by the City, not including rights-of-way, provided a license or lease authorizing such antenna or tower has been approved by the City, are subject to approval via administrative review by the Administrative Review Committee.
(a)
Said uses must comply with stealth, screening and landscaping requirements contained within this Section 25.W.
(ii)
DAS and small cells in all zones are subject to approval via administrative review by the Administrative Review Committee if either of the following conditions are met:
(a)
Proposed DAS of small cell is to be placed on an existing or replacement structure in the right-of-way or on an existing structure or replacement on private property. A replacement structure shall not be considered to be a new structure, as long as the replacement structure is in the same location and of the same design as the existing structure that is being replaced.
(b)
Proposed DAS or small cell is in the right-of-way on a new tower or structure in a spot where there was no previous structure and which incorporates stealth design.
8.
Special use permit requirements for small cell, DAS, and macrocell towers.
a.
General. The following provisions shall govern the issuance of special use permits for towers or antennas by the Planning and Zoning Commission:
(i)
If the tower or antenna is not a permitted use under Subsection W.7 of this Section, then a special use permit shall be required for the construction of a tower or the placement of an antenna in all areas that allow such construction or placement as a special permitted use.
(ii)
DAS and small cells in all zones are subject to approval via the special use permit if the conditions above are not met, or the following conditions are met:
(iii)
Applications for special use permits under this Subsection W. shall be subject to the procedures and requirements of Section 27 of the zoning ordinance, except as modified in this Subsection W.8.
(iv)
In granting a special use permit, the Planning and Zoning Commission may impose conditions to the extent the Planning and Zoning Commission concludes such conditions are necessary to minimize any adverse effect of the proposed tower or facilities on adjoining properties.
(v)
Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certified by a licensed professional engineer in North Dakota.
(vi)
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.
b.
Documentation. Applications submitted under this Subsection for towers and other WCF transmission equipment shall include the following materials:
(i)
Requirements for FCC documentation. The applicant shall provide a copy of the applicant's FCC license or registration.
(ii)
Visual analysis. A color visual analysis that includes to-scale visual simulations that show unobstructed before-and-after construction daytime and clear-weather views from at least four angles, together with a map that shows the location of each view.
(iii)
Design justification. A clear and complete written analysis that explains how the proposed design complies with the applicable design standards under this Subsection to the maximum extent feasible. A complete design justification must identify all applicable design standards under this Subsection and provide a factually detailed reason why the proposed design either complies or cannot feasibly comply.
(iv)
Noise study. A noise study, if requested by the City, for the proposed WCF and all associated equipment.
(v)
Other published materials. All other information or materials that the City may reasonably require, from time to time, make publicly available and designate as part of the application requirements.
(vi)
Information required. In addition to any information required for applications for special use permits pursuant to Section 27 of the zoning ordinance, applicants for a special use permit for a tower shall also submit the following information:
(a)
A scaled site plan clearly indicating the location, type, height and width of the proposed tower, on-site land uses and zoning, adjacent land uses and zoning (including when adjacent to other municipalities), Master Plan classification of the site and all properties within the applicable separation distances set forth in Subsection W.8, adjacent roadways, a depiction of all proposed transmission equipment, proposed means of access, setbacks from property lines, elevation drawings of the proposed tower and any other structures, topography, parking, utility runs and other information deemed by the City Planner to be necessary to assess compliance with this Section.
(b)
Legal description of the parent tract and leased parcel (if applicable).
(c)
The setback distance between the proposed tower and the nearest residential unit, platted residentially zoned properties, and unplatted residentially zoned properties.
(d)
Upon request, new applicants should provide the separation distance from other towers which shall be shown on an updated site plan or map. The applicant shall also identify the type of construction of the existing tower(s).
(e)
For macrocell towers, a landscape plan showing specific landscape materials.
(f)
For macrocell towers, method of fencing, and finished color and, if applicable, the method of camouflage and illumination.
(g)
A description of compliance with all applicable federal, state and local laws.
(h)
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.
(i)
A clear and complete written statement of purpose which shall minimally include: (1) a description of the technical objective to be achieved; (2) a to-scale map that identifies the proposed site location and the targeted service area to be benefited by the proposed project; and (3) full-color signal propagation maps with objective units of signal strength measurement that show the applicant's current service coverage levels from all adjacent sites with the proposed site, and predicted service coverage levels from the proposed site without all adjacent sites. These materials shall be reviewed and signed by a North Dakota- licensed professional engineer or a qualified employee of the applicant. The qualified employee of the applicant shall submit his or her qualifications with the application.
c.
Factors considered in granting special use permits for macrocell towers. In addition to any standards for consideration of special use permit applications pursuant to Section 27 of the zoning ordinance the Planning and Zoning Commission shall consider the following factors in determining whether to issue a special use permit, although the Planning and Zoning Commission may waive or reduce the burden on the applicant of one or more of these criteria if the Planning and Zoning Commission concludes that the goals of this Section are better served thereby:
(i)
Height of the proposed tower. Towers exceeding a height of 75 feet shall be able to accommodate collocation of one additional provider at roughly equal or better capacity and position as the applicant's antennas. Additional height to accommodate additional collocation may be approved if the applicant submits information certifying the tower has capacity for at least two additional providers, at least one of which shall provide roughly equal or better capacity and position as the applicant's antennas for a like user. The applicant shall provide a letter indicating their good faith intent to encourage collocation on the tower. A lightning rod, not to exceed 10 feet in height, shall not be included within the height limitations;
(ii)
Proximity of the tower to residential structures and residential district boundaries;
(iii)
Nature of uses on adjacent and nearby properties;
(iv)
Surrounding topography;
(v)
Surrounding tree coverage and foliage;
(vi)
Design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness;
(vii)
Proposed ingress and egress; and
(viii)
Availability of suitable existing towers, other structures, or alternative technologies not requiring the use of towers or structures, as discussed in this Section.
d.
Availability of suitable existing macrocell, other structures, or alternative technology. No new tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Planning and Zoning Commission that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant's proposed antenna. An applicant shall submit information requested by the Planning and Zoning 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:
(i)
No existing towers or structures are located within the geographic area which meet applicant's engineering requirements.
(ii)
Existing towers or structures are not of sufficient height to meet applicant's engineering requirements.
(iii)
Existing towers or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment.
(iv)
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.
(v)
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.
(vi)
The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable.
(vii)
The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a small cell network using multiple low-powered transmitters/receivers attached to a wireline system, is unsuitable. Cost of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable.
e.
Macrocell setbacks. The following setback requirement shall apply to all towers for which a special use permit is required; provided, however, that the Planning and Zoning Commission may reduce the standard setback requirement if the goals of this Section would be better served thereby:
(i)
Guys and accessory buildings must satisfy the minimum zoning district setback requirements.
f.
Macrocell separation. The following separation requirements shall apply to all towers and antennas for which a special use permit is required; provided, however, that the Planning and Zoning Commission may reduce the standard separation requirements if the goals of this Section 25.W would be better served thereby.
(i)
Separation from off-site uses/designated areas.
(a)
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.
(b)
Separation requirements for towers shall comply with the minimum standards established in Table 1.
Table 1: | |
|---|---|
Off-Site Use/Designated Area | Separation Distance |
Single-family or duplex residential units1 | 200 feet or 300% height of tower whichever is greater |
Vacant single-family or duplex residentially zoned land which is either platted or has preliminary subdivision plan approval which is not expired | 200 feet or 300% height of tower2 whichever is greater |
Vacant unplatted residentially zoned lands3 | 100 feet or 100% height of tower whichever is greater |
Existing multi-family residential units greater than duplex units | 100 feet or 100% height of tower whichever is greater |
Non-residentially zoned lands or non-residential uses | None; only setbacks apply |
1Includes modular homes and mobile homes used for living purposes. |
2Separation measured from base of tower to closest building setback line. |
3Includes 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. |
(ii)
Separation distances between towers.
(a)
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 | ||||
|---|---|---|---|---|
Lattice | Guyed | Monopole 75 Feet in Height or Greater | Monopole Less Than 75 Feet in Height | |
Lattice | 5,000 | 5,000 | 1,500 | 750 |
Guyed | 5,000 | 5,000 | 1,500 | 750 |
Monopole 75 Feet in Height or Greater | 1,500 | 1,500 | 1,500 | 750 |
Monopole Less than 75 Feet in height | 750 | 750 | 750 | 750 |
g.
Macrocell security fencing. Towers shall be enclosed by security fencing not less than six feet in height and shall also be equipped with an appropriate anti-climbing device; provided however, that the Planning Commission may waive such requirements, as it deems appropriate.
h.
Macrocell landscaping. The following requirements shall govern the landscaping surrounding towers for which a special use permit is required; provided, however, that the Planning Commission may waive such requirements if the goals of this ordinance would be better served thereby.
(i)
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.
(ii)
In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived.
(iii)
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.
9.
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 and reclaim 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 days shall be grounds to remove the tower or antenna at the owner's expense, including all costs and attorneys' fees. Irrespective of any agreement between them to the contrary, the owner of such unused facility and the owner of a building or land upon which the WCF is located, shall be jointly and severally responsible for the removal of abandoned WCFs. 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.
10.
Independent technical review. Although the City intends for City staff to review administrative matters to the extent feasible, the City may retain the services of independent experts of its choice to provide technical and legal evaluation of permit applications for WCFs, including administrative and special use permits. The experts' review may include, but is not limited to (a) the accuracy and completeness of the items submitted with the application; (b) the applicability of analysis and techniques and methodologies proposed by the applicant; (c) the validity of conclusions reached by the applicant; and (d) whether the proposed WCF complies with the applicable approval criteria set forth in this Section. The applicant shall pay the cost for any independent consultant fees so long as the fees are reasonable and were incurred completing work within the parameters set forth above, through a deposit, estimated by the City, paid within 10 days of the City's request. When the City requests such payment, the application shall be deemed incomplete for purposes of application processing timelines until the deposit is received. In the event that such costs and fees do not exceed the deposit amount, the City shall refund any unused portion within 30 days after the final permit is released or, if no final permit is released, within 30 days after the City receives a written request from the applicant.
11.
Nonconforming uses. Section 6 of the zoning ordinance shall apply to nonconformities.
12.
Final inspection.
a.
A written statement of completion will only be granted upon satisfactory evidence that the WCF was installed in substantial compliance with the approved plans and photo simulations.
b.
Failure to comply. If it is found that the WCF installation does not substantially comply with the approved plans and photo simulations, the applicant shall make any and all such changes required to bring the WCF installation into compliance promptly and in any event prior to putting the WCF in operation.
13.
Compliance.
a.
All wireless communication facilities must comply with all standards and regulations of the FCC and any other State or federal government agency with the authority to regulate wireless communication facilities.
b.
The site and wireless communication facilities, including all landscaping, fencing and related transmission equipment must be maintained at all times in a neat and clean manner and in accordance with all approved plans.
c.
All graffiti on wireless communications facilities must be removed at the sole expense of the permittee after notification by the City to the owner/operator of the WCF.
d.
If any FCC, State or other governmental license or any other governmental approval to provide communication services is ever revoked as to any site permitted or authorized by the City, the permittee must inform the City of the revocation within 30 days of receiving notice of such revocation.
14.
Indemnification. Each permit issued shall have as a condition of the permit a requirement that the applicant defend, indemnify and hold harmless the City and its officers, agents, employees, volunteers, and contractors from any and all liability, damages, or charges (including attorneys' fees and expenses) arising out of claims, suits, demands, or causes of action as a result of, granting permit, construction, erection, location, performance, operation, maintenance, repair, installation, replacement, removal, or restoration of the WCF.
15.
Eligible facilities request applications.
a.
Purpose. This Subsection W.15 implements Section 6409(a) of the Spectrum Act, as interpreted by the FCC in its Report and Order No. 14153, which requires a state or local government to approve any Eligible Facilities Request for a modification of an existing tower or base station that does not result in a substantial change to the physical dimensions of such tower or base station. Eligible Facilities Requests shall be governed solely by the provisions in this Subsection W.15 and federal law.
b.
Application review.
(i)
Application. The City shall prepare and make publicly available an application form which shall be limited to the information necessary for the City to consider whether an application is an Eligible Facilities Request. The City may not require an applicant to submit any other documentation intended to illustrate the need for any such wireless facilities or to justify the business decision to modify such wireless facilities.
(ii)
Review. Upon receipt of a complete application for an Eligible Facilities Request pursuant to this Subsection, the City shall review such application, make its final decision to approve or disapprove the application, and advise the applicant in writing of its final decision.
(iii)
Timeframe for review. Within 60 days of the date on which an applicant submits a complete application seeking approval of an Eligible Facilities Request under this Subsection W.15, the City shall review and act upon the application, subject to the tolling provisions below.
(iv)
Tolling of the timeframe for review. The sixty-day review period begins to run when the application is filed, and may be tolled only by mutual agreement between the City and the applicant, or in cases where the City determines that the application is incomplete. The timeframe for review is not tolled by a moratorium on the review of applications.
(a)
To toll the timeframe for incompleteness, the City must provide written notice to the applicant within 30 days of receipt of the application, specifically delineating all missing documents or information required in the application.
(b)
The timeframe for review begins running again when the applicant makes a supplemental submission in response to the City's notice of incompleteness.
(c)
Following a supplemental submission, the City shall notify the applicant within 10 days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The timeframe is tolled in the case of second or subsequent notices pursuant to the procedures identified in this Subsection. Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.
(v)
Failure to act. In the event the City fails to approve or deny a complete application under this Subsection within the timeframe for review (accounting for any tolling), the request shall be deemed granted provided the applicant notifies the City in writing after the review period has expired.
16.
Collocation applications.
a.
Purpose. This Subsection W.16 implements, in part, 47 U.S.C. 332(c)(7) of the Federal Communications Act of 1934, as amended, as interpreted by the FCC in its Report and Order No. 14153.
b.
Application review.
(i)
Application. The City shall prepare and make publicly available an application form which shall be limited to the information necessary for the City to consider whether an application is a collocation request.
(ii)
Review. Upon receipt of a complete application for a collocation request pursuant to this Subsection, the City shall review such application, make its final decision to approve or disapprove the application, and advise the applicant in writing of its final decision.
(iii)
Timeframe for review-excluding small cells. Within 90 days of the date on which an applicant submits a complete application seeking approval of a collocation request under this Subsection, the City shall review and act upon the application, subject to the tolling provisions below.
(iv)
Timeframe for review-small cells. Within 60 days of the date on which an applicant submits a complete application seeking approval of a collocation request under this Subsection, the City shall review and act upon the application, subject to the tolling provisions below.
(v)
Tolling of the timeframe for review. The ninety-day review period begins to run when the application is filed, and may be tolled only by mutual agreement between the City and the applicant, or in cases where the City determines that the application is incomplete.
(a)
To toll the timeframe for incompleteness, the City must provide written notice to the applicant within 30 days of receipt of the application, specifically delineating all missing documents or information required in the application.
(1)
For small cells, the review timeframe is reset, not just tolled, if the applicant is notified within 10 days after submission that the application is incomplete.
(b)
The timeframe for review begins running again, or in the case of small cells, the timeframe for review resets, when the applicant makes a supplemental submission in response to the City's notice of incompleteness.
(c)
Following a supplemental submission, the City shall notify the applicant within 10 days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The timeframe is tolled in the case of second or subsequent notices pursuant to the procedures identified in this Subsection. Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.
(vi)
Failure to act. In the event the City fails to approve or deny a complete application under this Subsection within the timeframe for review (accounting for any tolling), the applicant shall be entitled to pursue all remedies under applicable law.
17.
New site or tower applications.
a.
Purpose. This Subsection W.17 implements, in part, 47 U.S.C. 332(c)(7) of the Federal Communications Act of 1934, as amended, as interpreted by the FCC in its Report and Order No. 14153.
b.
Application review.
(i)
Application. The City shall prepare and make publicly available an application form which shall be limited to the information necessary for the City to consider whether an application is a request for a new site or tower.
(ii)
Review. Upon receipt of a complete application for a request for a new site or tower pursuant to this Subsection, the City shall review such application, make its final decision to approve or disapprove the application, and advise the applicant in writing of its final decision.
(iii)
Timeframe for review-excluding small cells. Within 150 days of the date on which an applicant submits a complete application seeking approval of a request for a new site or tower under this Subsection, the City shall review and act upon the application, subject to the tolling provisions below.
(iv)
Timeframe for review-small cells. Within 90 days of the date on which an applicant submits a complete application seeking approval of a request for a new structure under this Subsection, the City shall review and act upon the application subject to the tolling provisions below.
(v)
Tolling of the timeframe for review. The 150-day review period begins to run when the application is filed, and may be tolled only by mutual agreement between the City and the applicant, or in cases where the City determines that the application is incomplete.
(a)
To toll the timeframe for incompleteness, the City must provide written notice to the applicant within 30 days of receipt of the application, specifically delineating all missing documents or information required in the application.
(1)
For small cells, the review timeframe is reset, not just tolled, if the applicant is notified within 10 days after submission that the application is incomplete.
(b)
The timeframe for review begins running again or in the case of small cells the timeframe for review resets, when the applicant makes a supplemental submission in response to the City's notice of incompleteness.
(c)
Following a supplemental submission, the City shall notify the applicant within 10 days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The timeframe is tolled in the case of second or subsequent notices pursuant to the procedures identified in this Subsection. Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.
(vi)
Failure to act. In the event the City fails to approve or deny a complete application under this Subsection within the timeframe for review (accounting for any tolling), the applicant shall be entitled to pursue all remedies under applicable law.
18.
Application fees. In connection with the filing of an application, the applicant shall pay a fee as determined by the fee schedule set by Resolution 17-030.
19.
Administrative review committee.
An Administrative Review Committee is hereby authorized to carry out its responsibilities under this Section. The Administrative Review Committee shall review all applications described under Subsection W.4.b. As part of said review, notice shall be sent to all property owners within 300 feet if inside City Limits, and within 1,000 feet if inside the City's Extra Territorial Jurisdiction, of the proposed location. Said property owners will have 14 days from the time of the notice to reply with any comments. The applicant shall have an additional 14 days to respond to any comments from the public to the Administrative Review Committee. The Administrative Review Committee shall make a determination in keeping with the timelines noted in Subsections W.15 through W.17 and based on all applicable Subsections of this Section 25.W.
20.
Laws, rules and regulations. This Section 25.W shall be subject to all applicable laws, rules and regulations.
21.
Severability. The various parts, sentences, paragraphs, sections and clauses of this Section 25.W are hereby declared to be severable. If any part, sentence, paragraph, section or clause is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of the Section shall not be affected thereby.
22.
Conflicts. Any ordinances or parts thereof in conflict with the provisions of this Section are hereby repealed to the extent of such conflict.
23.
Effective date. This Section shall take effect June 13, 2017.