[Added 3-8-2017 by Ord.
No. 949; amended 6-14-2017 by Ord. No. 952]
A.
The purpose of this article is to establish uniform standards for
the location, siting, design, permitting, maintenance, and use of
wireless communications facilities within the Borough of Irwin. The
Borough of Irwin recognizes the importance of wireless communications
and their attendant facilities in providing high-quality communications
service to the Borough's residents, businesses, and emergency management
and response organizations. The Borough of Irwin also has a responsibility
to protect the public, to enhance public safety, and to minimize the
adverse visual and dangerous effects of such facilities through the
standards set forth in this article.
B.
It is the Borough of Irwin's intent to:
(1)
Accommodate the need for wireless communications facilities
while regulating their location and number so as to ensure the provision
for necessary services;
(2)
Provide for the managed development of wireless communications
facilities in a manner that enhances the benefits of wireless communications
and accommodates the needs of both Borough residents and wireless
carriers in accordance with federal and state laws and regulations;
(3)
Establish procedures for the design, location, siting, construction,
installation, maintenance and removal of both tower-based and non-tower-based
wireless communications facilities in the Borough, including facilities
both inside and outside the public rights-of-way;
(4)
Address new wireless technologies, including, but not limited
to, distributed antenna systems, data collection units, cable Wi-Fi
and other wireless communications facilities;
(5)
Minimize the adverse visual and dangerous effects and the number
of such facilities through proper design, location siting, screening,
material, color and finish and by requiring that competing providers
of wireless communications services co-locate their commercial communications
antennas and related facilities on existing towers;
(6)
Promote the health, safety and welfare of the Borough's residents.
A.
The following regulations shall apply to all non-tower WCFs:
(1)
Permitted only as a special exception in all zones subject to
the following regulations. Non-tower WCFs are permitted in all zones
subject to the restrictions and conditions prescribed below and subject
to applicable permitting by the Borough. No non-tower WCFs shall be
constructed without a special exception permit.
(2)
Prohibited on certain structures. Non-tower WCFs may not be
located on single-family detached residences, single-family attached
residences, or any residential accessory structure.
(3)
Noncommercial usage exemption. Borough residents utilizing satellite
dishes and antennas for the purpose of maintaining television, phone,
radio and/or Internet connections at their respective residences shall
be exempt from the design regulations enumerated in this article of
the Zoning Ordinance. This exemption shall include amateur radio operators.
(4)
Nonconforming wireless support structures. Non-tower WCFs shall
be permitted to co-locate upon nonconforming tower-based WCFs and
other nonconforming structures existing on the effective date of this
article. Co-location of WCFs upon existing tower-based WCFs is encouraged
even if the tower-based WCF is nonconforming as to use within a zoning
district.
(5)
Standard of care. Any non-tower WCF shall be designed, constructed,
operated, maintained, repaired, modified and removed in strict compliance
with all current applicable technical, safety and safety-related codes,
including but not limited to the most recent editions of the American
National Standards Institute (ANSI) Code, National Electrical Safety
Code, and National Electrical Code. Any WCF shall at all times be
kept and maintained in good condition, order and repair by qualified
maintenance and construction personnel, so that the same shall not
endanger the life of any person or any property in the Borough of
Irwin.
(6)
Wind. All non-tower WCF structures shall be designed to withstand
the effects of wind gusts of at least 100 miles per hour in addition
to the standard designed by the American National Standards Institute
as prepared by the engineering departments of the Electronics Industry
Association and Telecommunications Industry Association (ANSI/TIA-222,
as amended).
(7)
Aviation safety. All non-tower WCFs shall comply with all federal
and state laws and regulations concerning aviation safety.
(8)
Public safety communications. Non-tower WCFs shall not interfere
with public safety communications or the reception of broadband, television,
radio or other communication services enjoyed by occupants of nearby
properties.
(9)
Radio frequency emissions. A non-tower WCF shall not, by itself
or in conjunction with other WCFs, generate radio frequency emissions
in excess of the standards and regulations of the FCC, including,
but not limited to, the FCC Office of Engineering Technology Bulletin
65 entitled "Evaluating Compliance with FCC Guidelines for Human Exposure
to Radio Frequency Electromagnetic Fields," as amended.
(10)
Removal. In the event that use of a non-tower WCF is discontinued,
the owner shall provide written notice to the Borough of its intent
to discontinue use and the date when the use shall be discontinued.
Unused or abandoned WCFs or portions of WCFs shall be removed as follows:
(a)
All abandoned or unused WCFs and accessory facilities shall
be removed within two months of the cessation of operations at the
site unless a time extension is approved by the Borough.
(b)
If the WCF or accessory facility is not removed within two months
of the cessation of operations at a site, or within any longer period
approved by the Borough, the WCF and/or associated facilities and
equipment may be removed by the Borough and the cost of removal assessed
against the owner of the WCF.
(11)
Timing of approval for co-location applications. The following
time frames shall apply to applications for co-located non-tower WCFs:
(a)
Applications for co-located non-tower WCFs that do not substantially
change the dimensions of the underlying wireless support structure
or that otherwise do not fall under the Pennsylvania Wireless Broadband
Collocations Act. Within 30 calendar days of the date that an application
for a non-tower WCF is filed with the Borough, the Borough shall notify
the WCF applicant in writing of any information that may be required
to complete such application. Within 90 calendar days of receipt of
a complete application, the Borough shall make its final decision
on whether to approve the application and shall advise the WCF applicant
in writing of such decision.
(b)
Applications for co-locations that do substantially change the
dimensions of the underlying wireless support structure, or that otherwise
fall under the Pennsylvania Wireless Broadband Collocations Act. Within
30 calendar days of the date that an application for a non-tower WCF
is filed with the Borough, the Borough shall notify the WCF applicant
in writing of any information that may be required to complete such
application. Within 60 calendar days of receipt of a complete application,
the Borough shall make its final decision on whether to approve the
application and shall advise the WCF applicant in writing of such
decision.
(12)
Insurance. Each person that owns or operates a non-tower WCF
shall provide the Borough with a certificate of insurance evidencing
general liability coverage in the minimum amount of $1,000,000 per
occurrence and property damage coverage in the minimum amount of $1,000,000
per occurrence covering the non-tower WCF.
(13)
Indemnification. Each person that owns or operates a non-tower
WCF shall, at its sole cost and expense, indemnify, defend and hold
harmless the Borough of Irwin, its elected and appointed officials,
employees and agents, at all times against any and all claims for
personal injury, including death, and property damage arising in whole
or in part from, caused by or connected with any act or omission of
the person, its officers, agents, employees or contractors arising
out of, but not limited to, the construction, installation, operation,
maintenance or removal of the non-tower WCF. Each person that owns
or operates a non-tower WCF shall defend any actions or proceedings
against the Borough in which it is claimed that personal injury, including
death, or property damage was caused by the construction, installation,
operation, maintenance or removal of a non-tower WCF. The obligation
to indemnify, hold harmless and defend shall include, but not be limited
to, the obligation to pay judgments, injuries, liabilities, damages,
reasonable attorneys' fees, reasonable expert fees, court costs and
all other costs of indemnification.
(14)
Maintenance. To the extent permitted by law, the following maintenance
requirements shall apply:
(a)
The non-tower WCF shall be fully automated and unattended on
a daily basis and shall be visited only for maintenance or emergency
repair.
(b)
Such maintenance shall be performed to ensure the upkeep of
the facility in order to promote the safety and security of the Borough's
residents.
(c)
All maintenance activities shall utilize nothing less than the
best available technology for preventing failures and accidents.
B.
In addition to the general requirements for non-tower wireless communications
facilities, the following regulations shall apply to all co-located
non-tower WCFs that do not substantially change the physical dimensions
of the wireless support structure to which they are attached and/or
fall under the Pennsylvania Wireless Broadband Collocation Act:
(1)
Building permit required, excepted from the special exception
authorization requirement. WCF applicants proposing the modification
of an existing tower-based WCF shall obtain a building permit from
the Borough. In order to be considered for such permit, the WCF applicant
must submit a permit application to the Borough in accordance with
applicable permit policies and procedures. The Borough shall issue
a determination on the building permit within 90 days of the date
of the receipt of a completed application.
(2)
Related equipment. Ground-mounted related equipment greater
than three cubic feet shall not be located within 50 feet of a lot
in residential use or zoned residential.
(3)
Permit fees. The Borough may assess appropriate and reasonable
permit fees directly related to the Borough's actual costs in reviewing
and processing the application for approval of a non-tower WCF.
C.
The following regulations shall apply to all non-tower WCFs that
do substantially change the wireless support structure to which they
are attached and/or that otherwise do not fall under the Pennsylvania
Wireless Broadband Collocation Act:
(1)
Special exception authorization required. Any WCF applicant
proposing the construction of a new non-tower WCF, or the modification
of an existing non-tower WCF, shall first obtain a special exception
from the Borough. New constructions, modifications, and replacements
that do fall under the WBCA shall be not subject to the special exception
process. The special exception application shall demonstrate that
the proposed facility complies with all applicable provisions in the
Borough of Irwin Code.
(2)
Historic buildings. No non-tower WCF may be located upon any
property, or on a building or structure that is listed on either the
National or Pennsylvania Registers of Historic Places, or is listed
on the official historic structures and/or historic districts list
maintained by the Borough, or has been designated by the Borough to
be of historical significance.
(3)
Permit
fees. The Borough may assess appropriate and reasonable permit fees
directly related to the Borough's actual costs in reviewing and processing
the application for approval of a non-tower WCF, as well as related
inspection, monitoring and related costs.
(4)
Development regulations. Non-tower WCFs shall be co-located
on existing wireless support structures, such as existing buildings
or tower-based WCFs, subject to the following conditions;
(a)
The total height of any wireless support structure and mounted
WCF shall not exceed 20 feet above the maximum height permitted in
the underlying zoning district, unless the WCF applicant applies for,
and subsequently obtains, a variance.
(b)
In accordance with industry standards, all non-tower WCF applicants
must submit documentation to the Borough justifying the total height
of the non-tower WCF. Such documentation shall be analyzed in the
context of such justification on an individual basis.
(c)
If the WCF applicant proposes to locate the related equipment
in a separate building, the building shall comply with the minimum
requirements for the applicable zoning district, and landscaping shall
be required to screen as much of the equipment building as possible.
[1]
Landscaping. An evergreen screen shall surround the site. The
screen can be either a hedge (planted three feet on center maximum)
or a row of evergreen trees (planted 10 feet on center maximum). The
evergreen screen shall be a minimum height of six feet at planting
and shall grow to a minimum of 15 feet at maturity.
(5)
Design regulations.
(a)
Non-tower WCFs shall employ stealth technology and be treated
to match the wireless support structure in order to minimize aesthetic
impact. The application of the stealth technology chosen by the WCF
applicant shall be subject to the approval of the Borough.
(b)
Omnidirectional or whip communications antennas shall not exceed
20 feet in height or seven inches in diameter.
(c)
Directional or panel communications antennas shall not exceed
eight feet in height or three feet in width.
(d)
Cylinder-type antennas shall not exceed 10 feet in length and
not exceed 12 inches in diameter and shall be of a color that is identical
or similar to the color of the supporting structure to make the antenna
and any related accessory equipment visually unobtrusive.
(e)
Satellite and microwave dishes shall not exceed 10 feet in diameter.
Dish antennas greater than three feet in diameter shall be screened
with an appropriate architectural treatment that is compatible with
or integral to the architecture or building to which they are attached.
This screening requirement shall not apply to dishes located upon
towers.
(f)
A security fence with a minimum height of eight feet shall surround
any separate communications equipment building. Vehicular access to
the communications equipment building shall not interfere with the
parking or vehicular circulations on the site for the principal use.
(6)
Removal, replacement and modification.
(a)
The removal and replacement of non-tower WCF and/or accessory
equipment for the purpose of upgrading or repairing the WCF is permitted,
so long as such repair or upgrade does not substantially change the
overall size of the WCF or the numbers of antennas.
(b)
Any material modification to a WCF shall require notice to be
provided to the Borough and possible supplemental permit approval
to the original permit or authorization.
(7)
Inspection. The Borough reserves the right to inspect any WCF
to ensure compliance with the provisions of the Zoning Ordinance and
any other provisions found within the Borough Code or state or federal
law. The Borough and/or its agents shall have the authority to enter
the property upon which a WCF is located at any time, upon reasonable
notice to the operator, to ensure such compliance.
(8)
Retention of experts. The Borough may hire any consultant(s)
and/or expert(s) necessary to assist the Borough in reviewing and
evaluating the application for approval of the WCF and, once approved,
in reviewing and evaluating any potential violations of the terms
and conditions of these WCF provisions. The WCF applicant and/or owner
of the WCF shall reimburse the Borough for all costs of the Borough's
consultant(s) in providing expert evaluation and consultation in connection
with these activities.
A.
The following regulations shall apply to all tower-based wireless
communications facilities:
(1)
Standard of care. Any tower-based WCF shall be designed, constructed,
operated, maintained, repaired, modified and removed in strict compliance
with all current applicable technical, safety and safety-related codes,
including, but not limited to, the most recent editions of the American
National Standards Institute (ANSI) Code, National Electrical Safety
Code, National Electrical Code, as well as the accepted and responsible
workmanlike industry practices of the National Association of Tower
Erectors. Any tower-based WCF shall at all times be kept and maintained
in good condition, order and repair by qualified maintenance and construction
personnel, so that the same shall not endanger the life of any person
or any property in the Borough.
(2)
Notice. Upon submission of an application for a tower-based
WCF and the scheduling of the public hearing upon the application,
the WCF applicant shall mail notice to all owners of every property
within 500 feet of the proposed facility. The WCF applicant shall
provide proof of the notification to the Borough.
(3)
Special exception authorization required. Tower-based WCFs are
permitted in certain zoning districts and subject to said zone districts'
restrictions. No WCF applicant shall have the right under these regulations
to erect a tower to the maximum height specified in this or any other
section of the Zoning Code unless it proves the necessity for such
height. The WCF applicant shall demonstrate that the tower-based WCF
is the minimum height necessary for the service area.
(a)
Prior to the Borough Zoning Hearing Board's approval of a special
exception authorizing the construction and installation of tower-based
WCFs, it shall be incumbent upon the WCF applicant for such special
exception approval to prove to the reasonable satisfaction of the
Board that the WCF applicant cannot adequately extend or in fill its
communications system by the use of equipment such as redoes, repeaters,
antenna(s) and other similar equipment installed on existing structures,
such as utility poles or their appurtenances and other available tall
structures. The WCF applicant shall further demonstrate that the proposed
tower-based WCF must be located where it is proposed in order to serve
the WCF applicant's service area and that no other viable alternative
location exists.
(b)
The special exception application shall be accompanied by a
propagation study evidencing the need for the proposed tower or other
communications facilities and equipment, a description of the type
and manufacturer of the proposed transmission/radio equipment, the
frequency range (megahertz band) assigned to the WCF applicant, the
power in watts at which the WCF applicant transmits, and any relevant
related tests conducted by the WCF applicant in determining the need
for the proposed site and installation.
(c)
The special exception application shall also be accompanied
by documentation demonstrating that the proposed tower-based WCF complies
with all state and federal laws and regulations concerning aviation
safety.
(d)
Where the tower-based WCF is located on a property with another
principal use, the WCF applicant shall present documentation that
the owner of the property has granted an easement for the proposed
WCF and that vehicular access will be provided to the facility.
(e)
The special exception application shall be accompanied by documentation
demonstrating that the proposed tower-based WCF complies with all
applicable provisions in this section.
(4)
Engineer certification. Prior to the Borough's issuance of a
permit authorizing construction and erection of a tower-based WCF,
a structural engineer registered in Pennsylvania shall issue to the
Borough a written certification of the proposed WCF's ability to meet
the structural standards offered by either the Electronic Industries
Association or the Telecommunication Industry Association and certify
the proper construction of the foundation and the erection of the
structure. This certification shall be provided during the Zoning
Hearing Board hearing(s) or at a minimum be made as a condition attached
to any approval given such that the certification be provided prior
to issuance of any building permits.
(5)
Visual appearance and land use compatibility. Tower-based WCFs
shall employ stealth technology, which may include the tower portion
to be painted silver or another color approved by the Zoning Hearing
Board, or shall have a galvanized finish. All tower-based WCFs and
related equipment shall be aesthetically and architecturally compatible
with the surrounding environment and shall maximize the use of a like
facade to blend with the existing surroundings and neighboring buildings
to the greatest extent possible. The Zoning Hearing Board shall consider
whether its decision upon the subject application will promote the
harmonious and orderly development of the zoning district involved;
encourage compatibility with the character and type of development
existing in the area; benefit neighboring properties by preventing
a negative impact on the aesthetic character of the community; preserve
woodlands and trees existing at the site to the greatest possible
extent; and encourage sound engineering and land development design
and construction principles, practices and techniques.
(6)
Co-location and siting. An application for a new tower-based
WCF shall demonstrate that the proposed tower-based WCF cannot be
accommodated on an existing or approved structure or building. The
Zoning Hearing Board may deny an application to construct a new tower-based
WCF if the WCF applicant has not made a good faith effort to mount
the commercial communications antenna(s) on an existing structure.
The WCF applicant shall demonstrate that it contacted the owners of
tall structures, buildings, and towers within a 1/4 mile radius of
the site proposed, sought permission to install an antenna on those
structures, buildings, and towers and was denied for one of the following
reasons:
(a)
The proposed antenna and related equipment would exceed the
structural capacity of the existing building, structure or tower,
and its reinforcement cannot be accomplished at a reasonable cost.
(b)
The proposed antenna and related equipment would cause radio
frequency interference with other existing equipment for that existing
building, structure, or tower, and the interference cannot be prevented
at a reasonable cost.
(c)
Such existing buildings, structures, or towers do not have adequate
location, space, access, or height to accommodate the proposed equipment
or to allow it to perform its intended function.
(d)
A commercially reasonable agreement could not be reached with
the owner of such building, structure, or tower.
(7)
Permit required for modifications. To the extent permissible
under applicable state and federal law, any WCF applicant proposing
the modification of an existing tower-based WCF, which increases the
overall height of such WCF, shall first obtain a permit from the Borough.
Nonroutine modifications shall be prohibited without a permit.
(8)
Gap in coverage. A WCF applicant for a tower-based WCF must
demonstrate that a significant gap in wireless coverage or capacity
exists with respect to all wireless operators in the applicable area
and that the type of WCF being proposed is the least intrusive means
by which to fill that gap in wireless coverage. The existence or nonexistence
of a gap in wireless coverage shall be a factor in the Borough's decision
on an application for approval of tower-based WCF.
(9)
Additional antennas. As a condition of approval for all tower-based
WCFs, the WCF applicant shall provide the Borough with a written commitment
that it will allow other service providers to co-locate antennas on
tower-based WCF where technically and economically feasible. The owner
of a tower-based WCF shall not install any additional antennas without
obtaining the prior written approval of the Borough, subject to the
provisions of this article.
(10)
Wind. Any tower-based WCF structures shall be designed to withstand
the effects of wind gusts of at least 100 miles per hour in addition
to the standard designed by the American National Standards Institute
as prepared by the engineering departments of the Electronics Industry
Association, and Telecommunications Industry Association (ANSI/EIA/TIA-222,
as amended).
(11)
Height. Any tower-based WCF shall be designed at the minimum
functional height. All tower-based WCFs shall comply with the height
restrictions applicable to the zone district. The applicant may request
a variance to the height restrictions of the zone district, for a
maximum height of 150 feet.
(12)
Related equipment. Either 1) one single-story wireless communications
equipment building not exceeding 500 square feet in area or 2) up
to five metal boxes placed on a concrete pad not exceeding 10 feet
by 20 feet in area housing the receiving and transmitting equipment
may be located on the site for each unrelated company sharing commercial
communications antenna space on the tower-based wireless communications
facility.
(13)
Public safety communications. No tower-based WCF shall interfere
with public safety communications or the reception of broadband, television,
radio or other communications services enjoyed by occupants of nearby
properties.
(14)
Maintenance. The following maintenance requirements shall apply:
(a)
Any tower-based WCF shall be fully automated and unattended
on a daily basis and shall be visited only for maintenance or emergency
repair.
(b)
Such maintenance shall be performed to ensure the upkeep of
the WCF in order to promote the safety and security of the Borough's
residents and utilize the best available technology for preventing
failures and accidents.
(15)
Radio frequency emissions. A tower-based WCF shall not, by itself
or in conjunction with other WCFs, generate radio frequency emissions
in excess of the standards and regulations of the FCC, including,
but not limited to, the FCC Office of Engineering Technology Bulletin
65 entitled "Evaluating Compliance with FCC Guidelines for Human Exposure
to Radio Frequency Electromagnetic Fields," as amended.
(16)
Historic buildings or districts. A tower-based WCF shall not
be located upon a property and/or on a building or structure that
is listed on either the National or Pennsylvania Registers of Historic
Places, or eligible to be so listed, or is included in the official
historic structures and/or historic districts list maintained by the
Borough.
(17)
Signs. All tower-based WCFs shall post a sign in a readily visible
location identifying the name and phone number of a party to contact
in the event of an emergency. The only other signage permitted on
the WCF shall be those required by the FCC or any other federal or
state agency.
(18)
Lighting. No tower-based WCF shall be artificially lighted,
except as required by law. If lighting is required, the WCF applicant
shall provide a detailed plan for sufficient lighting, demonstrating
as unobtrusive and inoffensive an effect as is permissible under state
and federal regulations. The WCF applicant shall promptly report any
outage or malfunction of FAA-mandated lighting to the appropriate
governmental authorities and to the Borough Code Enforcement Officer.
(19)
Noise. Tower-based WCF shall be operated and maintained so as
not to produce noise in excess of applicable noise standards under
state law and the Borough Code, except in emergency situations requiring
the use of a backup generator, where such noise standards may be exceeded
on a temporary basis only.
(20)
Aviation safety. Tower-based WCF shall comply with all federal
and state laws and regulations concerning aviation safety.
(21)
Retention of experts. The Borough may hire any consultant and/or
expert necessary to assist the Borough in reviewing and evaluating
the application for approval of the tower-based WCF and, once approved,
in reviewing and evaluating any potential violations of the terms
and conditions of these provisions. The WCF applicant and/or owner
of the WCF shall reimburse the Borough for all costs of the Borough's
consultant(s) in providing expert evaluation and consultation in connection
with these activities.
(22)
Timing of approval. Within 30 calendar days of the date that
an application for a tower-based WCF is filed with the Borough, the
Borough shall notify the WCF applicant in writing of any information
that may be required to complete such application. All applications
for tower-based WCFs shall be acted upon within 150 days of the receipt
of a fully completed application for the approval of such tower-based
WCF, and the Borough shall advise the WCF applicant in writing of
its decision. If additional information was requested by the Borough
to complete an application, the time required by the WCF applicant
to provide the information shall not be counted toward the one-hundred-fifty-day
review period.
(23)
Nonconforming Uses. Nonconforming tower-based WCFs which are
hereafter damaged or destroyed due to any reason or cause may be repaired
and restored at their former location but must otherwise comply with
the terms and conditions of this section.
(24)
Removal. In the event that use of a tower-based WCF is planned
to be discontinued, the owner shall provide written notice to the
Borough of its intent to discontinue use and the date when the use
shall be discontinued. Unused or abandoned WCFs or portions of WCFs
shall be removed as follows:
(a)
All unused or abandoned tower-based WCFs and accessory facilities
shall be removed within 90 days of the cessation of operations at
the site unless a time extension is approved by the Borough.
(b)
If the WCF and/or accessory facility is not removed within 90
days of the cessation of operations at a site, or within any longer
period approved by the Borough, the WCF and accessory facilities and
equipment may be removed by the Borough and the cost of removal assessed
against the owner of the WCF.
(c)
Any unused portions of tower-based WCFs, including antennas,
shall be removed within 90 days of the time of cessation of operations.
Borough approval must be obtained for all replacements of portions
of a tower-based WCF previously removed.
(25)
Permit fees. The Borough may assess appropriate and reasonable
permit fees directly related to the Borough's actual costs in reviewing
and processing the application for approval of a tower-based WCF,
as well as related inspection, monitoring, and related costs.
(26)
FCC license. Each person that owns or operates a tower-based
WCF over 40 feet in height shall submit a copy of its current FCC
license, including the name, address, and emergency telephone number
for the operator of the facility.
(27)
Insurance. Each person that owns or operates a tower-based WCF
greater than 40 feet in height shall provide the Borough with a certificate
of insurance evidencing general liability coverage in the minimum
amount of $5,000,000 per occurrence and property damage coverage in
the minimum amount of $5,000,000 per occurrence covering the tower-based
WCF. Each person that owns or operates a tower-based WCF 40 feet or
less in height shall provide the Borough with a certificate of insurance
evidencing general liability coverage in the minimum amount of $1,000,000
per occurrence and property damage coverage in the minimum amount
of $1,000,000 per occurrence covering each tower-based WCF.
(28)
Indemnification. Each person that owns or operates a tower-based
WCF shall, at its sole cost and expense, indemnify, defend and hold
harmless the Borough, its elected and appointed officials, employees
and agents, at all times against any and all claims for personal injury,
including death, and property damage arising in whole or in part from,
caused by or connected with any act or omission of the person, its
officers, agents, employees or contractors arising out of, but not
limited to, the construction, installation, operation, maintenance
or removal of the tower-based WCF. Each person that owns or operates
a tower-based WCF shall defend any actions or proceedings against
the Borough in which it is claimed that personal injury, including
death, or property damage was caused by the construction, installation,
operation, maintenance or removal of tower-based WCF. The obligation
to indemnify, hold harmless and defend shall include, but not be limited
to, the obligation to pay judgments, injuries, liabilities, damages,
reasonable attorneys' fees, reasonable expert fees, court costs and
all other costs of indemnification.
(29)
Engineer signature. All plans and drawings for a tower-based
WCF shall contain a seal and signature of a professional structural
engineer, licensed in the Commonwealth of Pennsylvania.
(30)
Financial security. Prior to receipt of a zoning permit for
the construction or placement of a tower-based WCF, the WCF applicant
shall provide to the Borough financial security sufficient to guarantee
the removal of the tower-based WCF. Said financial security shall
remain in place until the tower-based WCF is removed.
(31)
Development regulations.
(a)
Tower-based WCFs shall not be located in, or within 100 feet
of, an area in which all utilities are primarily located underground.
(b)
Tower-based WCFs shall only be located within the I Industrial
and C-H Commercial-Highway Business Zoning Districts by special exception,
subject to the above prohibition.
(c)
Sole use on a lot. A tower-based WCF shall be permitted as a
sole use on a lot, provided that the underlying lot meets minimum
size requirements, as established in the Zoning Ordinance.
(d)
Combined with another use. A tower-based WCF may be permitted
on a property with an existing use, or on a vacant parcel in combination
with another use, subject to the following conditions:
[1]
The existing use on the property may be any permitted
use in the applicable district and need not be affiliated with the
WCF.
[2]
Minimum lot area. The minimum lot shall comply
with the requirements for the applicable district and shall be the
area needed to accommodate the tower-based WCF and guy wires, the
equipment building, security fence, and buffer planting if the proposed
WCF is greater than 40 feet in height.
[3]
Minimum setbacks. The minimum distance between
the base of a tower-based WCF and any adjoining property line or street
right-of-way line shall be equal to the total height of the tower-based
WCF or the minimum setback of the underlying zoning district, whichever
is greater. Where the site on which a tower-based WCF is proposed
to be located is contiguous to an educational use, child day-care
facility, or agriculture or residential use, the minimum distance
between the base of a tower-based WCF and any such adjoining uses
shall equal 250 feet, regardless of the height of the tower-based
WCF, unless it is demonstrated to the reasonable satisfaction of the
Zoning Hearing Board that in the event of failure the WCF is designed
to collapse upon itself within a setback area less than the required
minimum setback without endangering such adjoining uses and their
occupants.
(32)
Design regulations.
(a)
The WCF shall employ the most current stealth technology available
in an effort to appropriately blend into the surrounding environment
and minimize aesthetic impact. Application of the stealth technology
chosen by the WCF applicant shall be subject to the approval of the
Borough.
(b)
Any proposed tower-based WCF shall be designed structurally,
electrically, and in all respects to accommodate both the WCF applicant's
antennas and comparable antennas for future users.
(c)
Any tower-based WCF over 40 feet in height shall be equipped
with an anticlimbing device, as approved by the manufacturer.
(33)
Surrounding environs.
(a)
The WCF applicant shall ensure that the existing vegetation,
trees and shrubs located within proximity to the WCF structure shall
be preserved to the maximum extent possible.
(b)
The WCF applicant shall submit a soil report to the Borough
complying with the standards of Appendix I: Geotechnical Investigations,
ANSI/EIA-222, as amended, to document and verify the design specifications
of the foundation of the tower-based WCF, and anchors for guy wires,
if used.
(34)
Fence/screen.
(a)
A security fence with a minimum height of eight feet shall completely
surround any tower-based WCF greater than 40 feet in height, as well
as guy wires, or any building housing WCF equipment.
(b)
Landscaping shall be required to screen as much of a newly constructed
tower-based WCF as possible. The Zoning Hearing Board may permit any
combination of existing vegetation, topography, walls, decorative
fences or other features instead of landscaping, if, in the discretion
of the Board, they achieve the same degree of screening. Existing
vegetation shall be preserved to the maximum extent possible.
[1]
An evergreen screen shall be required to surround
the site. The screen can either be a hedge (planted three feet from
center maximum) or a row of evergreen trees (planted 10 feet on center
maximum). The evergreen screen shall be a minimum height of six feet
at planting and shall be grown to a minimum of 15 feet at maturity.
(35)
Accessory equipment.
(a)
Ground-mounted related equipment associated to, or connected
with, a tower-based WCF shall be placed underground or screened from
public view using stealth technologies, as described above.
(b)
All related equipment, utility buildings and accessory structures
shall be architecturally designed to blend into the environment in
which they are situated and shall meet the minimum setback requirements
of the underlying zoning district.
(36)
Access road. An access road, turnaround space and parking shall
be provided to ensure adequate emergency and service access to tower-based
WCF. The access road shall be a dust-free all-weather surface for
its entire length. Maximum use of existing roads, whether public or
private, shall be made to the extent practicable. Road grades shall
closely follow natural contours to assure minimal visual disturbance
and minimize soil erosion. Where applicable, the WCF owner shall present
documentation to the Borough that the property owner has granted an
easement for the proposed facility.
(37)
Parking. For each tower-based WCF greater than 40 feet in height,
there shall be two off-street parking spaces.
(38)
Inspection. The Borough reserves the right to inspect any tower-based
WCF to ensure compliance with the Zoning Ordinance and any other provisions
found within the Borough Code or state or federal law. The Borough
and/or its agents shall have the authority to enter the property upon
which a WCF is located at any time, upon reasonable notice to the
operator, to ensure such compliance.
[Added 6-14-2017 by Ord.
No. 952]
Article XXIII of the Zoning Code of the Borough of Irwin shall apply to all medical marijuana organizations, unless noted otherwise herein. Where state law, rules, and/or regulations provide more strict standards, the state law, rules, and/or regulations shall be controlling over this article. Should any provision of this article be preempted by state law, rules, and/or regulations, be invalidated, or deemed unconstitutional, that offending provision herein shall be stricken and the remainder of this article shall remain in full force and effect.
It is the intent of the Borough of Irwin to provide reasonable
and responsible controls for medical marijuana organizations located
within the Borough of Irwin. The Borough understands that medical
marijuana has the opportunity to provide countless individuals within
the commonwealth and this Borough with the treatment and medication
that they need. However, the Borough of Irwin must treat medical marijuana
organizations like all other land uses within the Borough and regulate
their operations as permitted by law, in order to maintain and enhance
the public health, safety, and welfare.
B.
Siting. Medical marijuana organizations shall not be located within
200 feet of any property with a Residential Low Density, Residential
Medium Density, or Residential High Density Zone District. Medical
marijuana organizations shall not be located in nor shall they abut
or be adjacent to any building that has any residential tenants at
the time of the medical marijuana organization's application for a
special exception permit under this article of the Irwin Code. Special
exception status shall not be rescinded solely because a residential
tenant moved into a building abutting, adjacent to, or housing a medical
marijuana organization following the filing of a completed application
for a special exception.
C.
Home business. Medical marijuana organizations shall not be operated
as a home business.
D.
Compliance. Medical marijuana organizations shall operate in compliance
with the Medical Marijuana Act,[1] Act No. 16 of 2016, as amended, and all regulations promulgated
pursuant thereto. Should a medical marijuana organization be in violation
of the Medical Marijuana Act, their special exception permit may be
revoked upon motion of the Borough Council upon the recommendation
by the Code Enforcement Officer.
[1]
Editor's Note: See 35 P.S. § 10231.101 et seq.
E.
Permit. Medical marijuana organizations may not operate unless and
until they have obtained a permit or other authorization issued by
the Department of Health of the commonwealth to conduct activities
under the Medical Marijuana Act, Act No. 16 of 2016, as amended. A
medical marijuana organization may not apply for a special exception
under this article unless it demonstrates that it is qualified to
apply for a permit to be issued by the Department of Health of the
commonwealth under the Medical Marijuana Act, Act No. 16 of 2016.
F.
Indoor operations. All activities related to medical marijuana shall
be conducted by medical marijuana organizations inside of a building
or fully enclosed structure. No activities related to the dispensing,
growing, or processing of medical marijuana shall take place outside
the envelope of a building or fully enclosed structure. The transportation
of medical marijuana from one location to another shall not be subject
to this prohibition.
H.
Security. All medical marijuana organizations shall secure their
locations.
(1)
All possible methods of egress and ingress shall be locked to
the public at all times, with the exception of one public entrance
to the location, which may be unlocked during the hours of operation
of the facility. The building shall otherwise comply with the Property
Maintenance Code, the Fire Code, and all other applicable codes to
structures located within the Borough of Irwin to ensure that the
structure is safe and provides adequate exits for safety and in the
event of an emergency.
(2)
The building must contain a video surveillance system that monitors
the area of the building open to the public, the location of all marijuana,
processed medical marijuana, and by-product, regardless of form, and
all exits and entrances to the building. All exits and entrances to
the building shall be illuminated at all times to allow for video
surveillance. The video surveillance system shall contain sufficient
storage to retain a minimum of seven days' worth of footage.
(3)
The building must be covered by a security system that alerts
the business owner and law enforcement should there be any unauthorized
access to the building housing the medical marijuana organization.
(4)
Medical marijuana organizations must comply with all electronic
security and surveillance requirements as implemented by the commonwealth
and the Department of Health of the commonwealth, as required by the
Medical Marijuana Act,[2] Act No. 16 of 2016, as amended.
[2]
Editor's Note: See 35 P.S. § 10231.101 et seq.
A.
Medical marijuana. All medical marijuana shall be stored in a locked
location not accessible or visible to the public. Excepted from this
requirement is medical marijuana on display for purchase. Medical
marijuana on display for purchase must be secured in a locked case.
Medical marijuana can be in a locked display case during the dispensary's
hours of operation, plus a reasonable period of time before and after
the store is open. An employee for the medical marijuana dispensary
shall be in the room housing the medical display case at all times
when the case is housing medical marijuana and the dispensary is open
to the public. Medical marijuana shall only be removed from the display
case when it is being dispensed to a patient holding a certification
issued pursuant to the Medical Marijuana Act, Act No. 16 of 2016,[1] as amended, or it is being transported to or from the
secure medical marijuana storage location in the building or another
medical marijuana organization.
[1]
Editor's Note: See 35 P.S. § 10231.101 et seq.
B.
Location. In addition to the requirements of § 260-182, medical marijuana dispensaries:
(1)
Shall
only be located in the Commercial-Business-Residential, Commercial-Highway,
and Industrial Zone Districts.
(2)
Shall not be located within 1,000 feet of any public, private, or parochial school (kindergarten through 12th grade) or day-care center. This prohibition does not apply to any post-secondary educational facilities. This prohibition only applies to land uses existing on the date of special exception application pursuant to Chapter 260.
(3)
May
be located on the same site as a medical marijuana grower/processor.
C.
Services
and supplies.
(1)
Medical
marijuana dispensaries may sell medical devices and instruments which
are needed to administer medical marijuana under the Medical Marijuana
Act.
(2)
Medical
marijuana dispensaries may sell services approved by the Department
of Health of the commonwealth related to the use of medical marijuana.
(3)
Medical
marijuana may be consumed on site, if the medical marijuana dispensary
provides a private space within the building for on-site consumption.
This private space must have water available to the patient free of
charge. The on-site physician, pharmacist, physician's assistant or
certified registered nurse practitioner must consent to the on-site
consumption prior to the same, which can be denied due to any medical
or safety concern. If on-site consumption is permitted, the medical
marijuana dispensary shall also have a restroom available for public
use.
A.
Marijuana.
(1)
All
marijuana, whether in seed form, a living plant, a plant that is being
processed, a plant that has been processed, medical marijuana (as
defined by 35 P.S. § 10231.103), the remains of the plant following
processing, or any other form, shall be kept at all times in a locked
location not open to the public. Medical marijuana being transported
to or from any other medical marijuana organization pursuant to the
Medical Marijuana Act, Act No. 16 of 2016,[1] shall be exempt from this requirement.
[1]
Editor's Note: See 35 P.S. § 10231.101 et seq.
(2)
All
refuse generated from the growing and production of medical marijuana
shall be stored in a locked location not open to the public. It shall
be disposed of in such a manner that the refuse not be accessible
to the public at large.
