[Added 2-11-2013]
The following is for informational purposes to enable a conceptual
understanding of the major procedural differences between applying
for a new tower or a wireless telecommunications facility that increases
or extends above the height of the structure attached to and a co-location
that does not.
A.
All applications. All applications shall be required to comply with all applicable provisions of this article, including, but not limited to, § 171-125, and prove the following:
(1)
The need for the facility to provide functionally reliable service
to the exclusion of all other alternatives, such as, but not limited
to, adjusting existing adjacent facilities;
(2)
The need for the facility at the location proposed;
(3)
The facility is designed to be safe and structurally sound for
the use and loads intended;
(4)
The facility will be the least visually intrusive as reasonably
possible in order to provide functionally reliable service primarily
and essentially within the Town; and
(5)
Establish with the Town an escrow deposit, as required, to assure
that the taxpayers do not incur the cost associated with processing
and reviewing the application.
B.
New tower or increasing the height of a structure. An application
for a new tower or for a co-location that increases or extends above
the height of the existing structure attached to shall be deemed a
new tower and require the following:
(1)
A nonrefundable application fee of $5,000;
(2)
Prove that there is no alternative to a new tower or to extending
above the top of the facility attached to in order to provide functionally
reliable service primarily and essentially within the Town;
(3)
Prove the need for the facility to be located at the height
proposed in order to provide functionally reliable service primarily
and essentially within the Town;
(4)
Provide evidence as required that the facility is designed to
be secure and structurally safe for the use and loads intended;
(5)
A public hearing.
C.
Co-location not increasing the height or extending above the top
of the existing structure. An application to co-locate on an existing
structure that does not extend above the existing top of the structure
or increase its height shall be required to:
(1)
Submit a nonrefundable application fee of $2,000;
(2)
Prove the need for the facility to provide functionally reliable
service primarily and essentially within the Town;
(3)
Camouflage the antennas and associated equipment so as to be
as visually innocuous and unobtrusive as possible. There shall be
no requirement for a public hearing for such a facility, and the permit
shall be granted administratively.
The Telecommunications Act of 1996 affirmed the Town of Hillsville's
authority concerning the placement, construction and modification
of wireless telecommunications facilities. The Town of Hillsville,
hereinafter referred to as "Town," finds that wireless telecommunications
facilities may pose significant concerns to the health, safety, public
welfare, character and environment of the Town and its inhabitants.
The Town also recognizes that facilitating the development of wireless
service technology can be an economic development asset to the Town
and of significant benefit to the Town and its residents. In order
to insure that the placement, construction or modification of wireless
telecommunications facilities is consistent with the Town's land
use policies, the Town is adopting a single, comprehensive wireless
telecommunications facilities application and permit process. The
intent of this article is to minimize the negative impact of wireless
telecommunications facilities, establish a fair and efficient process
for review and approval of applications, assure an integrated, comprehensive
review of environmental impacts of such facilities, and protect the
health, safety and welfare of the Town of Hillsville.
This article shall be known and cited as the "Wireless Telecommunications
Facilities Siting Ordinance for the Town of Hillsville."
A.
If any word, phrase, sentence, part, section, subsection, or other
portion of this article or any application thereof to any person or
circumstance is declared void, unconstitutional, or invalid for any
reason, then such word, phrase, sentence, part, section, subsection,
or other portion, or the proscribed application thereof, shall be
severable, and the remaining provisions of this article, and all applications
thereof, not having been declared void, unconstitutional, or invalid,
shall remain in full force and effect.
B.
Any special exception permit issued under this article shall be comprehensive
and not severable. If part of a permit is deemed or ruled to be invalid
or unenforceable in any material respect, by a competent authority,
or is overturned by a competent authority, the permit shall be void
in total, upon determination by the Town.
For purposes of this article, and where not inconsistent with
the context of a particular section, the defined terms, phrases, words,
abbreviations, and their derivations shall have the meanings given
in this section. When not inconsistent with the context, words in
the present tense include the future tense, words used in the plural
number include words in the singular number, and words in the singular
number include the plural number. The word "shall" is always mandatory,
and not merely directory.
Any wireless service provider submitting an application for
a special exception permit for wireless telecommunications facilities.
All necessary and appropriate documentation that an applicant
submits in order to receive a special exception permit for wireless
telecommunications facilities.
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequency or other wireless signals.
Such shall include, but not be limited to, radio, television, cellular,
paging, personal telecommunications services (PCS), microwave telecommunications
and services not licensed by the FCC, but not expressly exempt from
the Town's siting, building and permitting authority.
The use of a tower or structure to support an antenna for
the provision of wireless services without increasing the height of
the tower or structure.
The inability to perform an act on terms that are reasonable
in commerce, the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be commercial impracticable and shall not render an act or the
terms of an agreement commercially impracticable.
An application that contains all information presented herein
(subsequently requested) and/or data necessary to enable an informed
decision to be made with respect to an application.
The Town Council of the Town of Hillsville, Virginia.
The Federal Aviation Administration, or its duly designated
and authorized successor agency.
The Federal Communications Commission, or its duly designated
and authorized successor agency.
When referring to a tower or structure, the distance measured
from the preexisting grade level to the highest point on the tower
or structure, even if said highest point is an antenna or lightning
protection device.
The addition, removal or change of any of the physical and
visually discernable components or aspects of a wireless facility,
such as antennas, cabling, radios, equipment shelters, landscaping,
fencing, utility feeds, changing the color or materials of any visually
discernable components, vehicular access, parking and/or an upgrade
or changeout of equipment for better or more modern equipment. Adding
a new wireless carrier or service provider to a telecommunications
tower or telecommunications site is a modification. A modification
shall not include the replacement of any components of a wireless
facility where the replacement is identical to the component being
replaced or for any matters that involve the normal repair and maintenance
of a wireless facility without adding, removing or changing anything.
Non-ionizing Electromagnetic Radiation.
Any individual, corporation, estate, trust, partnership,
joint stock company, association of two or more persons having a joint
common interest, or any other entity.
See definition for "wireless telecommunications facilities."
Shall have the same meaning as defined and used in the 1996
Telecommunications Act.
The official document or permit by which an applicant is
allowed to construct and use wireless telecommunications facilities
as granted or issued by the Town.
Minimize adverse aesthetic and visual impacts on the land,
property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
The Commonwealth of Virginia.
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
An accessory facility or structure serving or being used
in conjunction with wireless telecommunications facilities, and located
on the same property or lot as the wireless telecommunications facilities,
including, but not limited to, utility or transmission equipment storage
sheds or cabinets.
See definition for "wireless telecommunications facilities."
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
In relation to all aspects and components of this article,
something intended to, or that does, exist for fewer than 90 days.
The Town of Hillsville.
A structure, facility or location designed or intended to
be used as, or used to support, antennas or other transmitting or
receiving devices. This includes, without limit, towers of all types
and kinds and structures that employ camouflage technology, including,
but not limited to, structures such as a multistory building, church
steeple, silo, water tower, sign or other structures that can be used
to mitigate the visual impact of an antenna or the functional equivalent
of such, including all related facilities such as cabling, equipment
shelters and other structures associated with the site. It is a structure
and facility intended for transmitting and/or receiving radio, television,
cellular, paging, 911, personal telecommunications services, commercial
satellite services, microwave services and services not licensed by
the FCC, but not expressly exempt from the Town's siting, building
and permitting authority, excluding those used exclusively for the
Town's fire, police or exclusively for private, noncommercial
radio and television reception and private citizens' bands, amateur
radio and other similar noncommercial telecommunications where the
height of the facility is below the height limits set forth in this
article.
In order to ensure that the placement, construction, and modification
of wireless telecommunications facilities protects the Town's
health, safety, public welfare, environmental features, the nature
and character of the community and neighborhood and other aspects
of the quality of life specifically listed elsewhere in this article,
the Town hereby adopts an overall policy with respect to a special
exception permit for wireless telecommunications facilities for the
express purpose of achieving the following goals:
B.
Establishing a policy for examining an application for and issuing
a special exception permit for wireless telecommunications facilities
that is both fair and consistent.
C.
Requiring, wherever feasible, the sharing and/or co-location of wireless
telecommunications facilities among service providers.
D.
Promoting and requiring the placement, height and quantity of wireless
telecommunications facilities in such a manner, including, but not
limited to, the use of stealth technology, to minimize adverse aesthetic
and visual impacts on the land, property, buildings, and other facilities
adjacent to, surrounding, and in generally the same area as the requested
location of such wireless telecommunications facilities, which shall
mean using the least visually and physically intrusive facility that
is not technologically or commercially impracticable under the facts
and circumstances.
A.
All applicants for a special exception permit for wireless telecommunications
facilities or any modification of such facility shall comply with
the requirements set forth in this section. The Planning Commission
and Town Council are the officially designated agencies or bodies
of the Town to whom applications for a special exception permit for
wireless telecommunications facilities must be made, and that are
authorized to review, analyze, evaluate and make decisions with respect
to granting or not granting, recertifying or not recertifying, or
revoking special exception permits for wireless telecommunications
facilities. The Town may, at its discretion, delegate or designate
other official agencies of the Town or others to accept, review, analyze,
evaluate and make recommendations to the Town Council with respect
to the granting or not granting, recertifying or not recertifying
or revoking special exception permits for wireless telecommunications
facilities.
B.
An application for a special exception permit for wireless telecommunications
facilities shall be signed on behalf of the applicant by the person
preparing the same and with knowledge of the contents and representations
made therein and attesting to the truth and completeness of the information.
The landowner, if different than the applicant, shall also sign the
application and shall agree to remove any existing violations and
make all existing telecommunications facilities compliant with this
article and all applicable local, state and telecommunications codes
prior to the issuance of any certificate of occupancy or compliance
or the functional equivalent for a new or modified wireless facility.
At the discretion of the Town, any false or misleading statement in
the application may subject the applicant to denial of the application
without further consideration or opportunity for correction. Applications
not meeting the requirements stated herein or which are otherwise
incomplete may be rejected by the Town.
C.
The applicant shall include a statement, in writing, that:
(1)
The applicant's proposed wireless telecommunications facilities
shall be maintained in a safe manner and in compliance with all conditions
of the special exception permit, without exception, unless specifically
granted relief by the Town, in writing, as well as all applicable
and permissible local codes, ordinances, and regulations, including
any and all applicable Town, state and federal laws, rules, and regulations.
(2)
The construction of the wireless telecommunications facilities
is legally permissible, including, but not limited to, the fact that
the applicant is authorized to do business in the state.
(3)
No wireless telecommunications facilities shall be installed
or constructed until the application is reviewed and approved by the
Town and the special exception permit has been issued.
(4)
All applications for the construction or installation of new
wireless telecommunications facilities shall contain the information
hereinafter set forth. The application shall be signed by an authorized
individual on behalf of the applicant. Where a certification is called
for, such certification shall bear the signature and seal of a professional
engineer licensed in the state. The application shall include the
following information:
(a)
Documentation that demonstrates the need for the wireless telecommunications
facility to provide service primarily and essentially within the Town.
Such documentation shall include propagation studies of the proposed
site and all adjoining planned, proposed, in-service or existing sites;
(b)
The name, address and phone number of the person preparing the
report;
(c)
The name, address, and phone number of the property owner, operator,
and applicant, and to include the legal form of the applicant;
(d)
The postal address of the property;
(e)
The zoning district or designation in which the property is
situated;
(f)
Size of the property, stated both in square feet and lot line
dimensions, and a diagram showing the location of all lot lines;
(g)
The location of the nearest residential structure;
(h)
The location, size and height of all structures on the property
which are the subject of the application;
(i)
The location, size and height of all proposed and existing antennas
and all appurtenant structures;
(j)
The type, locations and dimensions of all proposed and existing
landscaping, and fencing;
(k)
The number, type and design of the tower(s) and antenna(s) proposed
and the basis for the calculations of the tower's capacity to
accommodate multiple users;
(l)
The make, model and manufacturer of the tower and antenna(s);
(m)
A description of the proposed tower and antenna(s) and all related
fixtures, structures, appurtenances and apparatus, including height
above preexisting grade, materials, color and lighting;
(n)
The frequency, modulation and class of service of radio or other
transmitting equipment;
(o)
The actual intended transmission and the maximum effective radiated
power of the antenna(s);
(p)
Direction of maximum lobes and associated radiation of the antenna(s);
(q)
Certification that the NIER levels at the proposed site are
within the threshold levels adopted by the FCC;
(r)
Certification that the proposed antenna(s) will not cause interference
with other telecommunications devices;
(s)
A copy of the FCC license applicable for the intended use of
the wireless telecommunications facilities;
(t)
Certification that a topographic and geomorphologic study and
analysis has been conducted, and that, taking into account the subsurface
and substrata, and the proposed drainage plan, the site is adequate
to assure the stability of the proposed wireless telecommunications
facilities on the proposed site.
D.
In the case of a new tower, the applicant shall be required to submit
a written report demonstrating its meaningful efforts to secure shared
use of existing tower(s) or the use of alternative buildings or other
structures within the Town. Copies of written requests and responses
for shared use shall be provided to the Town in the application, along
with any letters of rejection stating the reason for rejection.
E.
The applicant shall certify that the telecommunications facility,
foundation and attachments are designed and will be constructed to
meet all local, Town, state and federal structural requirements for
loads, including wind and ice loads.
F.
The applicant shall certify that the wireless telecommunications
facilities will be effectively grounded and bonded so as to protect
persons and property and installed with appropriate surge protectors.
G.
An applicant may be required to submit an environmental assessment
analysis and a visual addendum. Based on the results of the analysis,
including the visual addendum, the Town may require submission of
a more detailed visual analysis. The scope of the required environmental
and visual assessment will be reviewed at the pre-application meeting.
H.
The applicant shall furnish a visual impact assessment, which shall
include:
(1)
A "Zone of Visibility Map," which shall be provided in order
to determine locations from which the tower may be seen.
(2)
Pictorial representations of "before and after" views from key
viewpoints both inside and outside of the Town as may be appropriate,
including, but not limited to, state highways and other major roads;
state and local parks; other public lands; historic districts; preserves
and historic sites normally open to the public; and from any other
location where the site is visible to a large number of visitors,
travelers or residents. Guidance will be provided concerning the appropriate
key sites at a pre-application meeting.
(3)
An assessment of the visual impact of the tower base, guy wires
and accessory buildings from abutting and adjacent properties and
streets as relates to the need or appropriateness of screening.
I.
The applicant shall demonstrate and provide, in writing and/or by
drawing, how it shall effectively screen from view the base and all
related facilities and structures of the proposed wireless telecommunications
facilities.
J.
Any and all representations made by the applicant to the Town on
the record during the application process, whether written or verbal,
shall be deemed a part of the application and may be relied upon in
good faith by the Town.
K.
All utilities at a wireless telecommunications facilities site shall
be installed underground and in compliance with all laws, ordinances,
rules and regulations of the Town, including, specifically, but not
limited to, the National Electrical Safety Code and the National Electrical
Code, where appropriate.
L.
All wireless telecommunications facilities shall contain a demonstration
that the facility is sited so as to be the least visually intrusive
reasonably possible and thereby has the least adverse visual effect
on the environment and its character, on existing vegetation, and
on the residences in the area of the wireless telecommunications facility.
M.
Both the wireless telecommunications facility and any and all accessory
or associated facilities shall maximize the use of building materials,
colors and textures designed to blend with the structure to which
it may be affixed and/or to harmonize with the natural surroundings.
This shall include the utilization of stealth or concealment technology
as may be required by the Town.
N.
At a telecommunications site, an access road, turnaround space and
parking shall be provided to assure adequate emergency and service
access. Maximum use of existing roads, whether public or private,
shall be made to the extent practicable. Road construction shall at
all times minimize ground disturbance and the cutting of vegetation.
Road grades shall closely follow natural contours to assure minimal
visual disturbance and reduce soil erosion.
O.
A person who holds a special exception permit for wireless telecommunications
facilities shall construct, operate, maintain, repair, provide for
removal of, modify or restore the permitted wireless telecommunications
facilities in strict compliance with all current applicable technical,
safety and safety-related codes adopted by the Town, state, or United
States, including but not limited to the most recent editions of the
National Electrical Safety Code and the National Electrical Code,
as well as accepted and responsible workmanlike industry practices
and recommended practices of the National Association of Tower Erectors.
The codes referred to are codes that include, but are not limited
to, construction, building, electrical, fire, safety, health, and
land use codes. In the event of a conflict between or among any of
the preceding, the more stringent shall apply.
P.
A holder of a special exception permit granted under this article
shall obtain, at its own expense, all permits and licenses required
by applicable law, rule, regulation or code, and must maintain the
same, in full force and effect, for as long as required by the Town
or other governmental entity or agency having jurisdiction over the
applicant.
Q.
An applicant shall submit to the Town the number of completed applications
determined to be needed at the pre-application meeting. Written notification
of the application shall be provided to the legislative body of all
adjacent municipalities and to the Town Planning Department.
R.
The applicant shall examine the feasibility of designing a proposed
tower to accommodate future demand for at least five additional commercial
applications, for example, future co-locations. The tower shall be
structurally designed to accommodate at least five additional antenna
arrays equal to those of the applicant, and located as close to the
applicant's antenna as possible without causing interference.
This requirement may be waived, provided that the applicant, in writing,
demonstrates that the provisions of future shared usage of the tower
is not technologically feasible, is commercially impracticable or
creates an unnecessary and unreasonable burden, based upon:
(1)
The foreseeable number of FCC licenses available for the area;
(2)
The kind of wireless telecommunications facilities site and
structure proposed;
(3)
The number of existing and potential licenses without wireless
telecommunications facilities spaces/sites;
(4)
Available space on existing and approved towers.
S.
The owner of the proposed new tower, and his/her successors in interest,
shall negotiate in good faith for the shared use of the proposed tower
by other wireless service providers in the future, and shall:
(1)
Respond within 60 days to a request for information from a potential
shared-use applicant.
(2)
Negotiate in good faith concerning future requests for shared
use of the new tower by other telecommunications providers.
(3)
Allow shared use of the new tower if another telecommunications
provider agrees, in writing, to pay reasonable charges. The charges
may include, but are not limited to, a pro rata share of the cost
of site selection, planning, project administration, land costs, site
design, construction and maintenance financing, return on equity,
less depreciation, and all of the costs of adapting the tower or equipment
to accommodate a shared user without causing electromagnetic interference.
(4)
Failure to abide by the conditions outlined above may be grounds
for revocation of the special exception permit for the tower.
T.
There shall be a pre-application meeting. The purpose of the pre-application
meeting will be to address issues which will help to expedite the
review and permitting process. A pre-application meeting shall also
include a site visit if there has not been a prior site visit for
the requested site. Costs of the Town's consultants to prepare
for and attend the pre-application meeting will be borne by the applicant
out of the required escrow deposit.
U.
The holder of a special exception permit shall notify the Town of
any intended modification of a wireless telecommunications facility
and shall apply to the Town to modify, relocate or rebuild a wireless
telecommunications facility.
V.
In order to better inform the public, in the case of a new telecommunications
tower, the applicant shall, prior to the public hearing on the application,
hold a "balloon test." The applicant shall arrange to fly, or raise
upon a temporary mast, a brightly colored balloon, a minimum of a
three feet in diameter, at the maximum height of the proposed new
tower. The dates (including a second date, in case of poor visibility
on the initial date), times and location of this balloon test shall
be advertised by the applicant seven and 14 days in advance of the
first test date in a newspaper with a general circulation in the Town.
The applicant shall inform the Town, in writing, of the dates and
times of the test at least 14 days in advance. The balloon shall be
flown for at least four consecutive hours sometime between 7:00 a.m.
and 4:00 p.m. on the dates chosen. The primary date shall be on a
weekend, but in case of poor weather on the initial date, the secondary
date may be on a weekday.
W.
The applicant will provide a written copy of an analysis, completed
by a qualified individual or organization, to determine if the tower
or existing structure intended to support wireless facilities requires
lighting under Federal Aviation Administration Regulation Part 77.
This requirement shall be for any new tower or for an existing structure
or building where the application increases the height of the structure
or building. If this analysis determines that the FAA must be contacted,
then all filings with the FAA, all responses from the FAA and any
related correspondence shall be provided in a timely manner.
A.
Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities in accordance with the following priorities, Subsection A(1) being the highest priority and Subsection A(6) being the lowest priority.
(1)
On existing towers or other structures without increasing the
height of the tower or structure.
(2)
On Town-owned properties.
(3)
On properties in areas zoned for industrial use (I-Industrial).
(4)
On properties in areas zoned for business use (GC General Commercial,
CC Core Commercial, NC Neighborhood Commercial).
(5)
On properties in areas zoned for agricultural use (A-1 Agricultural).
(6)
On properties in areas zoned for residential use (R-1 Medium
Density Residential, R-2 Multifamily Residential, MHP Mobile Home
Park).
B.
If the proposed site is not proposed for the highest priority listed
above, then a detailed explanation must be provided as to why a site
of a higher priority was not selected. The person seeking such an
exception must satisfactorily demonstrate the technological reason
or reasons why such a permit should be granted for the proposed site,
and the technological problems in the context of providing functionally
reliable service and the harm or hardship that would be incurred by
the applicant if the permit were not granted for the proposed site
at the proposed location.
C.
An applicant may not bypass sites of higher priority by stating the
site proposed is the only site leased or selected. An application
shall address co-location as an option. If such option is not proposed,
the applicant must explain to the reasonable satisfaction of the Town
why co-location at any alternative location(s) is commercially, technologically,
or otherwise impracticable. Agreements between providers limiting
or prohibiting co-location shall not be a valid basis for any claim
of commercial impracticability or hardship.
D.
Notwithstanding the above, the Town may approve any site located
within an area in the above list of priorities, provided that the
Town finds that the proposed site is in the best interest of the health,
safety and welfare of the Town and its inhabitants and will not have
a deleterious effect on the nature and character of the community
and neighborhood.
E.
The applicant shall submit a written report demonstrating the applicant's
review of the above locations in order of priority, demonstrating
the technological reason for the site selection. If appropriate, based
on selecting a site of lower priority, a detailed written explanation
as to why sites of a higher priority were not selected shall be included
with the application, including all supporting technological documentation
and studies needed to make such a determination.
F.
Notwithstanding that a potential site may be situated in an area
of highest priority or highest available priority, the Town may disapprove
an application for any of the following reasons.
(1)
Conflict with safety and safety-related codes and requirements;
(2)
Conflict with the historic nature or character of a neighborhood
or historical district;
(3)
The use or construction of wireless telecommunications facilities
which is contrary to an already stated purpose of a specific zoning
or land use designation;
(4)
The placement and location of wireless telecommunications facilities
which would create an unacceptable risk, or the reasonable probability
of such, to residents, the public, employees and agents of the Town,
or employees of the service provider or other service providers;
(5)
Conflicts with the provisions of this article.
A.
Locating on existing towers or other structures without increasing
the height, as opposed to the construction of a new tower, shall be
preferred by the Town. The applicant shall submit a comprehensive
report inventorying existing towers and other suitable structures
within four miles of the location of any proposed new tower, unless
the applicant can show that some other distance is more reasonable
and demonstrates conclusively why an existing tower or other suitable
structure cannot be used.
B.
An applicant intending to locate on an existing tower or other suitable
structure shall be required to document the intent of the existing
owner to permit its use by the applicant.
C.
Such shared use shall consist only of the minimum antenna array technologically
required to provide service primarily and essentially within the Town,
to the extent practicable, unless good cause is shown.
A.
The applicant shall submit documentation justifying the total height
of any tower, facility and/or antenna and the basis therefor. Such
documentation will be analyzed in the context of the justification
of the height needed to provide functionally reliable service primarily
and essentially within the Town, to the extent practicable, unless
good cause is shown.
B.
The maximum permitted height of a new tower shall be that needed
for functionally reliable service based on up to six co-located antenna
arrays requiring six feet of vertical space each, and the ambient
tree height in the immediate area around the proposed tower. The installation
must be proven to have minimal visual and environmental impact on
the community.
C.
Building-mounted antennas should be located and designed to be an
integral part of the building and shall be secured or camouflaged,
as necessary or as reasonably required by the Town Council, to minimize
the visual impact and minimize any change in or impact on the nature
and character of the community and shall not increase the height of
the building.
D.
No tower constructed after the effective date of this article, including
allowing for all attachments, shall exceed that height which shall
permit operation without required artificial lighting of any kind
in accordance with municipal, Town, state, and/or any federal statute,
law, local law, Town ordinance, code, rule or regulation.
A.
Wireless telecommunications facilities shall not be artificially
lighted or marked, except as required by law and in such an instance
shall shield or otherwise construct the facility to prevent any ground
scatter effect of lighting.
B.
Towers shall be galvanized or painted with a rust-preventive paint
of an appropriate color to harmonize with the surroundings and shall
be maintained in accordance with the requirements of this article.
C.
If lighting is required, the applicant shall provide a detailed plan
for sufficient lighting of as unobtrusive and inoffensive an effect
as is permissible under state and federal regulations and in such
an instance shall, to the extent not prohibited by applicable law
or regulation, shield or otherwise construct the facility to prevent
any ground scatter effect of lighting.
All wireless telecommunications facilities and antennas shall
be located, fenced or otherwise secured in a manner that prevents
unauthorized access. Specifically:
A.
All antennas, towers and other supporting structures, including guy
wires, shall be made inaccessible to individuals and constructed or
shielded in such a manner that they cannot be climbed or collided
with; and
B.
Transmitters and telecommunications control points shall be installed
in such a manner that they are readily accessible only to persons
authorized to operate or service them.
Wireless telecommunications facilities shall contain a sign
no larger than four square feet in order to provide adequate notification
to persons in the immediate area of the presence of an antenna that
has transmission capabilities and shall contain the name(s) of the
owner(s) and operator(s) of the antenna(s) as well as emergency phone
number(s). The sign shall be on the equipment shelter or cabinet of
the applicant and be visible from the access point of the site and
must identify the equipment owner of the shelter or cabinet. The sign
shall not be lighted, unless lighting is required by applicable law,
rule or regulation. No other signage, including advertising, shall
be permitted.
All proposed towers and any other proposed wireless telecommunications
facility structures shall be set back from abutting parcels, recorded
rights-of-way and road and street lines by the greater of the following
distances: a distance equal to the height of the proposed tower or
wireless telecommunications facility structure plus 10% of the height
of the tower or structure, or the existing setback requirement of
the underlying zoning district, whichever is greater. Any accessory
structure shall also be located so as to comply with the applicable
minimum setback requirements for the property on which it is situated.
A.
The Town may hire any consultant and/or expert necessary to assist
the Town in reviewing and evaluating the application, including the
construction and modification of the site, once permitted, and any
requests for recertification.
B.
An applicant shall deposit with the Town funds sufficient to reimburse
the Town for all reasonable costs of consultant and expert evaluation
and consultation to the Town in connection with the review of any
application, including the construction and modification of the site,
once permitted. The initial deposit shall be $8,500. The placement
of the $8,500 with the Town shall precede the pre-application meeting.
The Town will maintain a separate escrow account for all such funds.
The Town's consultants/experts shall invoice the Town for its
services in reviewing the application, including the construction
and modification of the site, once permitted. If at any time during
the process this escrow account has a balance less than $2,500, the
applicant shall immediately, upon notification by the Town, replenish
said escrow account so that it has a balance of at least $5,000. Such
additional escrow funds shall be deposited with the Town before any
further action or consideration is taken on the application. In the
event that the amount held in escrow by the Town is more than the
amount of the actual invoicing at the conclusion of the project, the
remaining balance shall be promptly refunded to the applicant.
C.
The total amount of the funds needed as set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.
A.
No person shall be permitted to site, place, build, construct, modify
or prepare any site for the placement or use of wireless telecommunications
facilities as of the effective date of this article without having
first obtained a special exception permit for wireless telecommunications
facilities. Notwithstanding anything to the contrary in this section,
no special exception permit shall be required for those noncommercial
exceptions noted in the definition of "wireless telecommunications
facilities."
B.
All wireless telecommunications facilities existing on or before
the effective date of this article shall be allowed to continue as
they presently exist; provided however, that any visible modification
or addition of providers on an existing wireless telecommunications
facility must comply with this article. Any modification of the facilities
on an existing tower shall require the tower to come into compliance
with this article.
A.
Prior to the approval of any application for a special exception
permit for a new tower or a co-located wireless facility that extends
above the top of the structure attached to, thereby increasing the
height of the structure, a public hearing shall be held by the Town,
notice of which shall be published in the official newspaper of the
Town no less than 10 calendar days prior to the scheduled date of
the public hearing. In order that the Town may notify nearby landowners,
the application shall contain the names and addresses of all landowners
whose property is located within 1,500 feet of any property line of
the lot or parcel on which the new wireless telecommunications facilities
are proposed to be located.
B.
There shall be no public hearing required for an application to co-locate on an existing tower or other similar structure that does not increase the height by extending above the top of the structure. Subject to the requirements contained in § 171-25, an application to co-locate on an existing tower or similar structure that does not increase the height by extending above the top of the structure shall be handled administratively.
A.
The Town will undertake a review of an application pursuant to this
article in a timely fashion and shall act within a reasonable period
of time, given the relative complexity of the application and the
circumstances, with due regard for the public's interest and
need to be involved and the applicant's desire for a timely resolution.
B.
The Town may refer any application or part thereof to any advisory
or other committee for a nonbinding recommendation.
C.
After the public hearing and after formally considering the application,
the Town may approve, approve with conditions, or deny a special exception
permit. Its decision shall be in writing and shall be supported by
substantial evidence contained in a written record. The burden of
proof for the grant of the permit shall always be upon the applicant.
D.
If the Town approves the special exception permit for wireless telecommunications
facilities, then the applicant shall be notified of such approval,
in writing, within 10 calendar days of the Town's action, and
the special exception permit shall be issued within 30 days after
such approval. Except for necessary building permits, and subsequent
certificates of compliance, once a special exception permit has been
granted hereunder, no additional permits or approvals from the Town,
such as site plan or zoning approvals, shall be required by the Town
for the wireless telecommunications facilities covered by the special
exception permit.
E.
If the Town denies the special exception permit for wireless telecommunications
facilities, then the applicant shall be notified of such denial, in
writing, within 10 calendar days of the Town's action.
A.
Between 12 months and six months prior to the five-year anniversary
date after the effective date of the special exception permit and
all subsequent five-year anniversaries of the effective date of the
original special exception permit for wireless telecommunications
facilities, the holder of a special exception permit for such wireless
telecommunications facilities shall submit a signed written request
to the Town for recertification. In the written request for recertification,
the holder of such special exception permit shall note the following:
(1)
The name of the holder of the special exception permit for the
wireless telecommunications facilities;
(2)
If applicable, the number or title of the special exception
permit;
(3)
The date of the original granting of the special exception permit;
(4)
Whether the wireless telecommunications facilities have been
moved, relocated, rebuilt, or otherwise visibly modified since the
issuance of the special exception permit and if so, in what manner;
(5)
If the wireless telecommunications facilities have been moved,
relocated, rebuilt, or otherwise visibly modified, then whether the
Town approved such action, and under what terms and conditions, and
whether those terms and conditions were complied with;
(6)
That the wireless telecommunications facilities are in compliance
with the special exception permit and compliance with all applicable
codes, laws, rules and regulations;
(7)
Recertification that the tower and attachments both are designed
and constructed and continue to meet all local, Town, state and federal
structural requirements for loads, including wind and ice loads. Such
recertification shall be by a professional engineer licensed in the
state, the cost of which shall be borne by the applicant.
B.
If, after such review, the Town determines that the permitted wireless
telecommunications facilities are in compliance with the special exception
permit and all applicable statutes, laws, local laws, ordinances,
codes, rules and regulations, then the Town may issue a recertification
of the special exception permit for the wireless telecommunications
facilities, which may include any new provisions or conditions that
are mutually agreed upon, or that are required by applicable statutes,
laws, ordinances, codes, rules or regulations. If, after such review,
it is determined that the permitted wireless telecommunications facilities
are not in compliance with the special exception permit and all applicable
statutes, laws, ordinances, codes, rules and regulations, then the
Town may refuse to issue a recertification special exception permit
for the wireless telecommunications facilities, and in such event,
such wireless telecommunications facilities shall not be used after
the date that the applicant receives written notice of the decision
by the Town until such time as the facility is brought into compliance.
Any decision requiring the cessation of use of the facility or imposing
a penalty shall be in writing and supported by substantial evidence
contained in a written record and shall be promptly provided to the
owner of the facility.
C.
If the applicant has submitted all of the information requested and required by this article, and if the review is not completed, as noted in Subsection B of this section, prior to the five-year anniversary date of the special exception permit, or subsequent five-year anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special exception permit for up to six months, in order for the completion of the review.
D.
If the holder of a special exception permit for wireless telecommunications facilities does not submit a request for recertification of such special exception permit within the timeframe noted in Subsection A of this section, then such special exception permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special exception permit, or subsequent five-year anniversaries, unless the holder of the special exception permit adequately demonstrates that extenuating circumstances prevented a timely recertification request. If the Town agrees that there were legitimately extenuating circumstances, then the holder of the special exception permit may submit a late recertification request or application for a new special exception permit.
The extent and parameters of a special exception permit for
wireless telecommunications facilities shall be as follows:
A.
Such special exception permit shall be nonexclusive.
B.
Such special exception permit shall not be assigned, transferred
or conveyed without the express prior written notification to the
Town.
C.
Such special exception permit may, following a hearing upon due prior
notice to the applicant, be revoked, canceled, or terminated for a
violation of the conditions and provisions of the special exception
permit, or for a material violation of this article after prior written
notice to the holder of the special exception permit.
D.
Any wireless telecommunications facility that is permitted shall
be constructed, completed and provide service no later than six months
from the date of the grant of the initial permit. If not constructed,
completed, and providing service within the required six months, the
permit may be revoked and a new application will be required.
A.
At the time that a person submits an application for a special exception
permit for a new tower, such person shall pay a nonrefundable application
fee of $5,000 to the Town. If the application is for a special exception
permit for co-locating on an existing tower or other suitable structure,
where no increase in height of the tower or structure is required,
the nonrefundable fee shall be $2,000.
B.
No application fee is required in order to recertify a special exception permit for wireless telecommunications facilities, unless there has been a visible modification of the wireless telecommunications facility since the date of the issuance of the existing special exception permit for which the conditions of the special exception permit have not previously been modified. In the case of any modification, the fees provided in Subsection A shall apply.
The applicant and the owner of record of any proposed wireless
telecommunications facilities property site shall, at its cost and
expense, be jointly required to execute and file with the Town a bond,
or other form of security acceptable to the Town as to type of security
and the form and manner of execution, in an amount of at least $75,000
and with such sureties as are deemed sufficient by the Town to assure
the faithful performance of the terms and conditions of this article
and conditions of any special exception permit issued pursuant to
this article. The full amount of the bond or security shall remain
in full force and effect throughout the term of the special exception
permit and/or until any necessary site restoration is completed to
restore the site to a condition comparable to that which existed prior
to the issuance of the original special exception permit.
In order to verify that the holder of a special exception permit
for wireless telecommunications facilities, and any and all lessees,
renters, and/or licensees of wireless telecommunications facilities,
place and construct such facilities, including towers and antennas,
in accordance with all applicable technical, safety, fire, building,
and zoning codes, laws, ordinances and regulations and other applicable
requirements, the Town may inspect all facets of said permit holder's,
renter's, lessee's or licensee's placement, construction,
modification and maintenance of such facilities, including, but not
limited to, towers, antennas and buildings or other structures constructed
or located on the permitted site.
The holder of the special exception permit shall, annually,
certify to the Town that NIER levels at the site are within the threshold
levels adopted by the FCC.
A.
A holder of a special exception permit for wireless telecommunications
facilities shall secure and at all times maintain public liability
insurance for personal injuries, death and property damage, and umbrella
insurance coverage, for the duration of the special exception permit
in amounts as set forth below:
B.
The commercial general liability insurance policy shall specifically
include the Town and its officers, boards, employees, committee members,
attorneys, agents and consultants as additional named insureds.
C.
The insurance policies shall be issued by an agent or representative
of an insurance company licensed to do business in the state and with
a Best's rating of at least A.
D.
The insurance policies shall contain an endorsement obligating the
insurance company to furnish the Town with at least 30 days'
prior written notice in advance of the cancellation of the insurance.
E.
Renewal or replacement policies or certificates shall be delivered
to the Town at least 15 days before the expiration of the insurance
that such policies are to renew or replace.
F.
Before construction of a permitted wireless telecommunications facilities
is initiated, but in no case later than 15 days after the grant of
the special exception permit, the holder of the special exception
permit shall deliver to the Town a copy of each of the policies or
certificates representing the insurance in the required amounts.
A.
Any application for wireless telecommunications facilities that is
proposed for Town property, pursuant to this article, shall contain
a provision with respect to indemnification. Such provision shall
require the applicant, to the extent permitted by the law, to at all
times defend, indemnify, protect, save, hold harmless, and exempt
the Town, and its officers, boards, employees, committee members,
attorneys, agents, and consultants, from any and all penalties, damages,
costs, or charges arising out of any and all claims, suits, demands,
causes of action, or award of damages, whether compensatory or punitive,
or expenses arising therefrom, either at law or in equity, which might
arise out of, or are caused by, the placement, construction, erection,
modification, location, products performance, use, operation, maintenance,
repair, installation, replacement, removal, or restoration of said
facility, excepting, however, any portion of such claims, suits, demands,
causes of action or award of damages as may be attributable to the
negligent or intentional acts or omissions of the Town, or its servants
or agents. With respect to the penalties, damages or charges referenced
herein, reasonable attorneys' fees, consultants' fees, and
expert witness fees are included in those costs that are recoverable
by the Town.
A.
In the event of a violation of this article or any special exception
permit issued pursuant to this article, the Town may impose and collect,
and the holder of the special exception permit for wireless telecommunications
facilities shall pay to the Town, fines or penalties as set forth
below.
B.
A violation of this article is hereby declared to be an offense,
punishable by a fine not exceeding $350 per day per occurrence or
imprisonment for a period not to exceed six months, or both, for conviction
of a first offense; for conviction of a second offense, both of which
were committed within a period of five years, punishable by a fine
of not less than $350 nor more than $700 or imprisonment for a period
not to exceed six months, or both; and upon conviction for a third
or subsequent offense, all of which were committed within a period
of five years, punishable by a fine of not less than $700 nor more
than $1,000 or imprisonment for a period not to exceed six months,
or both. However, for the purpose of conferring jurisdiction upon
courts and judicial officers generally, violations of this article
or of such ordinance or regulation shall be deemed misdemeanors and
for such purpose only all provisions of law relating to misdemeanors
shall apply to such violations. Each week's continued violation
shall constitute a separate, additional violation.
C.
Notwithstanding anything in this article, the holder of the special
exception permit for wireless telecommunications facilities may not
use the payment of fines, liquidated damages or other penalties to
evade or avoid compliance with this article or any section of this
article. An attempt to do so shall subject the holder of the special
exception permit to termination and revocation of the special exception
permit. The Town may also seek injunctive relief to prevent the continued
violation of this article, without limiting other remedies available
to the Town.
A.
If wireless telecommunications facilities are repaired, rebuilt,
placed, moved, relocated, modified or maintained in a way that is
inconsistent or not in compliance with the provisions of this article
or with the special exception permit, then the Town shall notify the
holder of the special exception permit, in writing, of such violation.
Such notice shall specify the nature of the violation or noncompliance
and that the violations must be corrected within seven days of the
date of the postmark of the notice or of the date of personal service
of the notice, whichever is earlier. Notwithstanding anything to the
contrary in this subsection or any other section of this article,
if the violation causes, creates or presents an imminent danger or
threat to the health or safety of lives or property, the Town may,
at its sole discretion, order the violation remedied within 24 hours.
B.
If within the period set forth in Subsection A above the wireless telecommunications facilities are not brought into compliance with the provisions of this article, or of the special exception permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Town may revoke such special exception permit for wireless telecommunications facilities, and shall notify the holder of the special exception permit within 48 hours of such action.
A.
Under the following circumstances, the Town may determine that the
health, safety, and welfare interests of the Town warrant and require
the removal of wireless telecommunications facilities.
(1)
Wireless telecommunications facilities with a permit have been
abandoned (i.e., not used as wireless telecommunications facilities)
for a period exceeding 90 consecutive days or a total of 180 days
in any three-hundred-sixty-five-day period, except for periods caused
by force majeure or acts of God, in which case repair or removal shall
commence within 90 days;
(2)
Permitted wireless telecommunications facilities fall into such
a state of disrepair that it creates a health or safety hazard;
(3)
Wireless telecommunications facilities have been located, constructed,
or modified without first obtaining, or in a manner not authorized
by, the required special exception permit, or any other necessary
authorization.
B.
If the Town makes such a determination as noted in Subsection A of this section, then the Town shall notify the holder of the special exception permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed; the Town may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
C.
The holder of the special exception permit, or its successors or
assigns, shall dismantle and remove such wireless telecommunications
facilities, and all associated structures and facilities, from the
site and restore the site to as close to its original condition as
is possible, such restoration being limited only by physical or commercial
impracticability, within 90 days of receipt of written notice from
the Town. However, if the owner of the property upon which the wireless
telecommunications facilities are located wishes to retain any access
roadway to the wireless telecommunications facilities, the owner may
do so with the approval of the Town.
D.
If wireless telecommunications facilities are not removed or substantial
progress has not been made to remove the wireless telecommunications
facilities within 90 days after the permit holder has received notice,
then the Town may order officials or representatives of the Town to
remove the wireless telecommunications facilities at the sole expense
of the owner or special exception permit holder.
E.
If, the Town removes, or causes to be removed, wireless telecommunications
facilities, and the owner of the wireless telecommunications facilities
does not claim and remove it from the site to a lawful location within
10 days, then the Town may take steps to declare the wireless telecommunications
facilities abandoned, and sell them and their components.
F.
Notwithstanding anything in this section to the contrary, the Town
may approve a temporary use permit/agreement for the wireless telecommunications
facilities, for no more than 90 days, during which time a suitable
plan for removal, conversion, or relocation of the affected wireless
telecommunications facilities shall be developed by the holder of
the special exception permit, subject to the approval of the Town,
and an agreement to such plan shall be executed by the holder of the
special exception permit and the Town. If such a plan is not developed,
approved and executed within the ninety-day time period, then the
Town may take possession of and dispose of the affected wireless telecommunications
facilities in the manner provided in this section.
Any applicant desiring relief, waiver or exemption from any
aspect or requirement of this article may request such at the pre-application
meeting, provided that the relief or exemption is contained in the
original application for either a special exception permit, or in
the case of an existing or previously granted special exception permit,
a request for modification of its tower and/or facilities. Such relief
may be temporary or permanent, partial or complete. However, the burden
of proving the need for the requested relief, waiver or exemption
is solely on the applicant to prove. The applicant shall bear all
costs of the Town in considering the request and the relief, waiver
or exemption. No such relief or exemption shall be approved unless
the applicant demonstrates by clear and convincing evidence that,
if granted the relief, waiver or exemption will have no significant
effect on the health, safety and welfare of the Town, its residents
and other service providers.
A.
The Town may at any time conduct a review and examination of this
entire ordinance.
B.
If after such a periodic review and examination of this article,
the Town determines that one or more provisions of this article should
be amended, repealed, revised, clarified, or deleted, then the Town
may take whatever measures are necessary in accordance with applicable
law in order to accomplish the same. It is noted that where warranted,
and in the best interests of the Town, the Town may repeal this entire
ordinance at any time.
A.
To the extent that the holder of a special exception permit for wireless
telecommunications facilities has not received relief, or is otherwise
exempt, from appropriate state and/or federal agency rules or regulations,
then the holder of such a special exception permit shall adhere to,
and comply with, all applicable rules, regulations, standards, and
provisions of any state or federal agency, including, but not limited
to, the FAA and the FCC. Specifically included in this requirement
are any rules and regulations regarding height, lighting, security,
electrical and RF emission standards.
B.
To the extent that applicable rules, regulations, standards, and
provisions of any state or federal agency, including, but not limited
to, the FAA and the FCC, and specifically including any rules and
regulations regarding height, lighting, and security are changed and/or
are modified during the duration of a special exception permit for
wireless telecommunications facilities, then the holder of such a
special exception permit shall conform the permitted wireless telecommunications
facilities to the applicable changed and/or modified rule, regulation,
standard, or provision within a maximum of 24 months of the effective
date of the applicable changed and/or modified rule, regulation, standard,
or provision, or sooner as may be required by the issuing entity.
Where this article differs or conflicts with other laws, rules
and regulations, unless the right to do so is preempted or prohibited
by the Town, state or federal government, this article shall apply.
This article shall be effective immediately upon passage, pursuant
to applicable legal and procedural requirements.
This article is enacted pursuant to applicable authority granted
by the state and federal governments.
