[R.O. 2011 § 400.720; Ord. No.
1161 § 1, 11-18-2013]
A.
The general purpose of this Article is to regulate the placement,
construction and modification of telecommunications towers, support
structures, and antennas in order to protect the health, safety and
welfare of the public, while at the same time not unreasonably interfering
with the development of the competitive wireless telecommunications
marketplace. Specifically, this Article is intended to:
1.
Provide for the appropriate location and development of telecommunications
facilities and systems to serve the citizens and businesses;
2.
Minimize adverse visual impacts of communications antennas and
support structures through the careful design, siding, landscape screening
and innovative camouflaging techniques;
3.
Maximize the use of existing and new support structures so as
to minimize the need to construct new or additional facilities;
4.
Maximize the co-location of facilities on any new support structures;
5.
Ensure that any new telecommunications tower or structure is
located in an area compatible with the neighborhood or surrounding
community to the extent possible;
6.
Ensuring that regulation of telecommunications towers and structures
does not have the effect of prohibiting the provision of personal
wireless services, and does not unreasonably discriminate among functionally
equivalent providers of such service.
B.
The Legislative Findings.
1.
On February 8, 1996, Congress enacted the Federal Telecommunications
Act of 1996, P.L. No. 104-104. The purpose of the Act included deregulation
of the telecommunications industry and providing a more competitive
environment for wired and wireless telecommunications services in
the United States.
2.
The Telecommunications Act of 1996 preserves the authority of
the City to regulate the placement, construction, and modification
of towers and antenna support structures and to protect the health,
safety and welfare of the public.
3.
The City has been granted the authority to enact legislation
to regulate the construction, placement, and operation of telecommunications
towers and antennas pursuant to its zoning powers established in Chapter
89, RSMo., and additionally pursuant to its general and specific police
powers established by statute authorizing the regulations herein to
protect the public health, safety, and welfare.
5.
Consistent with the Telecommunications Act of 1996, the regulations
of this Article will not have the effect of prohibiting the provision
of personal wireless services, and do not unreasonably discriminate
among functionally equivalent providers of such service. The regulations
also impose reasonable restrictions to protect the public safety and
welfare and ensure opportunities for placement of antennas with prompt
approval by the City. This Article does not attempt to regulate in
areas within the exclusive jurisdiction of the FCC.
6.
The uncontrolled proliferation of towers is threatened without
adoption of new regulations, and would diminish property values, the
aesthetic quality of the City, and would otherwise threaten the health,
safety and welfare of the public.
[R.O. 2011 § 400.730; Ord. No.
1161 § 1, 11-18-2013]
A.
The requirements set forth in this Section shall be applicable to
all towers, antennas and other support structures installed, built
or modified after the effective date of this Article to the full extent
permitted by law.
1.
Principal Or Incidental Use. Antennas and support structures
may be either a principal use in all zoning districts or an incidental
use to institutional or non-residential uses, subject to any applicable
district requirement relating to yard or setback.
2.
Building Codes, Safety Standards, And Zoning Compliance. To
ensure the structural integrity of antenna support structures, the
owner shall see that it is constructed and maintained in compliance
with all standards contained in applicable State and local building
codes and the applicable standards published by the Electronics Industries
Association, as amended from time to time. In addition to any other
approvals required by this Section, no antenna, tower, or support
structure shall be erected prior to receipt of a certificate of zoning
compliance and the issuance of a building permit.
3.
Regulatory Compliance. All antennas and support structures shall
meet or exceed current standards and regulations of the FAA, FCC and
any other State or Federal agency with the authority to regulate communications
antennas and support structures. Should such standards or regulations
be amended, then the owner shall bring such devices and structure
into compliance with the revised standards or regulations within the
time period mandated by the controlling agency. No approval for any
placement, construction or modification of any antenna or structure
permitted by this Section shall be granted for any applicant having
an uncured violation of this Section or any other governmental regulatory
requirement related to such antennas or structures within the City.
4.
Security. All antennas and support structures shall be protected
from unauthorized access by appropriate security measures. A description
of proposed security measures shall be provided as part of any application
to install, build or modify antennas or support structures. Additional
measures may be required as a condition of the issuance of a building
permit or administrative permit as deemed necessary by the Administrative
Official or by the Planning and Zoning Commission in the case of a
conditional use permit.
5.
Lighting. Antennas and support structures shall not be lighted
unless required by the FAA or other State or Federal agency with authority
to regulate, in which case a description of the required lighting
scheme will be made a part of the application to install, build or
modify the antenna or support structure. Equipment cabinets and shelters
may have lighting only as approved by the Administrative Official
on the approved site development plan.
6.
Advertising. Except for a disguised antenna support structure
in the form of an otherwise lawfully permitted pylon sign, the placement
of advertising on structures regulated by this Section is prohibited.
7.
Design.
a.
Subject to the requirements of the FAA or any applicable State
or Federal agency, towers shall be painted a neutral color consistent
with the natural or built environment of the site.
b.
Equipment shelters or cabinets shall have an exterior finish
compatible with the natural or built environment of the site and shall
also comply with any design guidelines as may be applicable to the
particular zoning district in which the facility is located.
c.
Antennas attached to a building or disguised antenna support
structure shall be of a color identical to or closely compatible with
the surface to which they are mounted.
d.
All towers shall be surrounded by a minimum six-foot-high decorative
wall constructed of brick, stone or comparable masonry materials and
a landscape strip of not less than ten (10) feet in width and planted
with materials which will provide a visual barrier to a minimum height
of six (6) feet. The landscape strip shall be exterior to any security
wall. In lieu of the required wall and landscape strip, an alternative
means of screening may be approved by the Administrative Official
in the case of use permitted by administrative permit, or by the Planning
and Zoning Commission in the case of a conditional use permit, upon
demonstration by the applicant that an equivalent degree of visual
screening will be achieved.
e.
All towers, disguised support structures, and related structures,
fences and walls shall be separated from the property line of any
adjacent property zoned for a residential use at least a distance
equal to the height of the tower, and shall be separated from all
other adjacent property lines at least a distance equal to one-half
(1/2) of the height of the tower or structure.
f.
Vehicle or outdoor storage on any tower site is prohibited,
unless otherwise permitted by the zoning.
g.
On-site parking for periodic maintenance and service shall be
provided at all antenna or tower locations consistent with the underlying
zoning district.
8.
Shared Use.
a.
Existing Towers. Prior to the issuance of any permit to alter
or modify any tower existing on the effective date of this Article,
the owner shall provide to the City a written and notarized agreement
committing to make said tower available for use by others subject
to reasonable technical limitations and reasonable financial terms.
The willful and knowing failure of a tower owner to agree to shared
use or to negotiate in good faith with potential users shall be unlawful
and shall, among other remedies of the City, be cause for the withholding
of future permits to the same owner to install, build, or modify antennas
or towers within the City.
b.
Tower Inventories. Prior to the issuance of any permit to install,
build or modify any tower, the tower owner shall furnish the Administrative
Official an inventory of all of that owner's towers in or within one
and one-half (1 1/2) miles of the City limits. The inventory
shall include the tower's reference name or number, the street location,
latitude and longitude, structure type, height, type and mounting
height of existing antennas and an assessment of available ground
space for the placement of additional equipment shelters. Upon being
modified, any such tower shall be placed on the multi-use interest
area map for required co-location.
c.
Shared Use Required, New Towers. Any new tower approved at a height of sixty (60) feet AGL (above ground level) or higher shall be designed and constructed to accommodate at least one (1) additional user unless a larger number is indicated by the response to the notification provisions herein. A written agreement committing to shared use as required by Subsection (A)(8)(a) shall be submitted by the tower applicant. The willful and knowing failure of the owner of a tower built for shared use to negotiate in good faith with potential users shall be unlawful and shall be a violation of this Article and, among other remedies of the City, shall be cause for the withholding of future permits to the same owner to install, build or modify antennas or towers within the City.
d.
Communications Tower Multi-Use Area Map. Any new tower approved
within a communications tower multi-use interest area as designated
by the map of the same title, shall be designed and constructed to
accommodate the number of users indicated by the plan to the extent
feasible. The willful and knowing failure of the owner of a tower
built for shared use to negotiate in good faith with potential users
shall be a violation of this Article and, among other remedies of
the City, shall be cause for the withholding of future permits to
the same owner to install, build or modify antennas or towers within
the City.
e.
Notice Of Tower Applications. Prior to any application for the
construction of a new tower or disguised support structure, a copy
of the application or a summary containing the height, design, location
and type and frequency of antenna shall be delivered by certified
mail to all known potential tower users as identified by a schedule
maintained by the City. Proof of such delivery shall be submitted
with the application to the City. Upon request, the Administrative
Official shall place on a list the name and address of any user of
towers or prospective user to receive notification of applications.
The Administrative Official shall, before deciding on the application
or forwarding it to the Planning and Zoning Commission for consideration,
allow all persons receiving notice at least ten (10) business days
to respond to the City and the applicant that the party receiving
notice be permitted to share the proposed tower or locate within one
(1) mile of such area. Where two (2) or more parties seek to locate
within one (1) mile of each other, or such other distance as is demonstrated
to the Administrative Official to be reasonable pursuant to the objectives
of this Article, the Administrative Official shall designate such
area as a multi-use interest area on the map. The failure of the receiving
party to use this process or respond to any such notice shall be considered
cause for denying requests by such party for new towers or structures.
f.
Appeal Of Shared Use Violations. Any party seeking shared use
of a tower subject to this provision shall, after responding to notice
of an application, negotiate with the applicant for such use. The
applicant may on a legitimate and reasonable business basis choose
between multiple requests for shared use on the same tower or structure,
and may reject any request where legitimate technical obstacles cannot
be reasonably overcome or where the party requesting shared use will
not agree to reasonable financial terms. Any party believing that
the applicant has breached its duty to negotiate in good faith for
shared use shall immediately notify the applicant and the Administrative
Official in writing. The Administrative Official may reject the application
upon a finding that shared use has been improperly denied. A notice
of breach of duty shall explain the precise basis for the claim and
shall be accompanied by payment of an administrative review fee of
five hundred dollars ($500.00) to the City to offset the cost of review.
After the applicant's receipt of the notice, the applicant shall have
ten (10) calendar days to provide a written submission to the Administrative
Official responding to the alleged violation of the shared use requirement.
If deemed necessary by the Administrative Official, he/she may engage,
at the cost of the party alleging the violation, a neutral, qualified
technical consultant to provide an opinion on feasibility or costs
of the shared use request. If the Administrative Official receives
a notice alleging a violation of the shared use requirement, the time
for a decision on an administrative permit is automatically extended
for up to thirty (30) days until the Administrative Official has determined
that the applicant has complied. An application for conditional use
permit shall not be deemed complete for acceptance until a decision
on compliance is reached.
[R.O. 2011 § 400.740; Ord. No.
1161 § 1, 11-18-2013]
A.
Permitted Towers. The placement of antennas and towers are permitted
in all zoning districts by administrative permit approved by the Administrative
Official only as follows:
1.
The installation of antennas or the construction of a tower
or support structure on buildings or land owned by the City of Owensville
following the approval of a lease agreement by the Board of Aldermen.
2.
The attachment of additional or replacement antennas or shelters
to any tower existing on the effective date of this Article or subsequently
approved in accordance with these regulations and requiring the enlargement
of the existing tower compound area as long as all other requirements
of this Section and the underlying zoning district are met.
3.
The mounting of antennas on any existing building or structure,
such as a water tower, provided that the presence of the antennas
is concealed by architectural elements or fully camouflaged by painting
a color identical to the surface to which they are attached.
4.
The mounting of antennas on or within any existing high-voltage
electric transmission tower, but not exceeding the height of such
tower by more than ten (10) feet.
5.
The one-time replacement of any tower existing on the effective
date of this Article or subsequently approved in accordance with these
regulations, so long as the purpose of the replacement is to accommodate
shared use of the site or to eliminate a safety hazard. The new tower
shall be of the same type as the original, except that a guyed or
self-supporting (lattice) tower may be replaced by a monopole. If
the guyed or lattice tower to be replaced is one hundred eighty (180)
feet or less in height, it shall only be replaced with a monopole.
The height of the new tower may exceed that of the original by not
more than twenty (20) feet. Subsequent replacements shall require
the approval of a conditional use permit.
6.
The construction of a disguised support structure, provided
that all related equipment shall be placed underground or concealed
within the structure when the structure is located in any district
other than a district authorizing industrial uses. Equipment may be
placed in a cabinet if the disguised support structure is incidental
to an industrial, commercial, institutional or other non-residential
use.
7.
The placement of dual polar panel antennas on wooden or steel
functioning utility poles not to exceed forty (40) feet in height
in any residentially zoned district and on any such poles (or functional
replacement poles of no greater height) existing in any other district
on the date of adoption of this Article. All related equipment for
antennas permitted by this Subsection shall be wholly contained in
a cabinet.
8.
Towers erected and maintained for a period not to exceed forty-five
(45) days for the purpose of replacing an existing tower, testing
an existing or proposed network, or special events requiring mobile
towers.
B.
Application Procedures. Applications for administrative permits shall
be made on the appropriate forms to the Administrative Official and
accompanied by payment of five hundred dollars ($500.00), or such
other fee as may be established by the Board of Aldermen.
1.
A detailed site plan, based on a closed boundary survey of the
host parcel, shall be submitted indicating all existing and proposed
improvements, including buildings, drives, walkways, parking areas
and other structures, public rights-of-way, the zoning categories
of the subject and adjoining properties, the location of and distance
to off-site residential structures, required setbacks, required buffer
and landscape areas, hydrologic features, and the coordinates and
height AGL of the existing or proposed tower.
2.
The application shall be reviewed by the Administrative Official
to determine compliance with the above standards and transmit the
application for review and comment by other departments and public
agencies as may be affected by the proposed facility.
3.
The Administrative Official shall issue a decision on the permit
within forty-five (45) days of the date of application, or the application
shall be deemed approved unless the time period for review and action
was extended. The Administrative Official may deny the application
or approve the application as submitted or with such modifications
as are, in his/her judgment, reasonably necessary to protect the safety
or general welfare of the citizens consistent with the purposes of
this Section. The Administrative Official may consider the purposes
of this Section and the factors established herein for granting a
conditional use permit as well as any other considerations consistent
with this Article. A decision to deny an application shall be made
in writing and state the specific reasons for the denial.
C.
Appeals. Appeals from the decision of the Administrative Official
shall be made in the same manner as otherwise provided for the appeal
of administrative decisions.
[R.O. 2011 § 400.750; Ord. No.
1161 § 1, 11-18-2013]
A.
All proposals to install, build or modify an antenna or support structure not permitted by Section 400.740, above, shall require the approval of a conditional use permit following a duly advertised public hearing by the Planning and Zoning Commission, subject to the forthcoming limitations:
1.
Applications. Applications for conditional use permits shall be filed and processed pursuant to Section 400.640.
2.
Additional Minimum Requirements. No conditional use permit shall be issued unless the applicant has clearly demonstrated by substantial evidence that placement of an antenna or support structure pursuant to the City's permitted uses requirements (Section 400.740) is not technologically or economically feasible.
3.
Findings Required. In addition to the determinations or limitations specified herein and by Section 400.640 for the consideration of conditional use permits, the Planning and Zoning Commission shall also base its decision upon, and shall make findings as to, the existence of the following conditions:
a.
That the proposed tower is not and cannot be located within
a communications tower multi-use interest area as designated by such
map or, if so located, meets the co-location requirements of this
Section.
b.
No existing towers, structures or buildings within the necessary
geographic area for the applicant's tower meet the applicant's necessary
engineering requirements considering:
(1)
Height;
(2)
Structural strength;
(3)
Resulting signal interference;
(4)
Feasibility of retrofitting;
(5)
Feasibility of redesigning the applicant's tower
network; or
(6)
Other limiting conditions that render towers, structures
or buildings within the applicant's required geographic area unsuitable.
c.
Applications for a new tower structure shall be considered only
after a letter, certified by a radio frequency engineer, clearly demonstrates
that the planned telecommunications equipment cannot be accommodated
on an existing or approved transmission tower and clearly demonstrates
one or more of the following conditions:
(1)
Planned telecommunications equipment would exceed
the structural capacity of an existing or approved transmission tower,
and the transmission tower cannot be reinforced to accommodate planned
telecommunications equipment at a reasonable cost;
(2)
Planned telecommunications equipment will cause
radio frequency interference with other existing or planned telecommunications
equipment for that transmission tower and the interference cannot
be prevented at a reasonable cost;
(3)
Existing or approved towers do not have space on
which the planned telecommunications equipment can be placed so it
can function effectively and at least in parity with other similar
telecommunications equipment in place or approved by the City and/or
the appropriate County;
(4)
Addition of planned equipment to an existing or approved transmission tower would result in NIER levels in excess of those permitted under Subsection (A)(5) of this Section; or
(5)
Other reasons that make it impractical to place
the telecommunications equipment planned by the applicant on an existing
and approved transmission tower.
d.
No application for a new tower structure shall be considered
unless the applicant is unable to lease or otherwise secure space
on an existing or planned telecommunications tower.
(1)
Shared use of an existing or approved tower shall
be conditioned upon the applicant's agreement to pay reasonable fees
and costs associated with adapting existing facilities to the proposed
use, including but not limited to reasonable costs for reinforcing
or modifying a tower or structure, for preventing radio frequency
interferences, and other changes reasonably required to accommodate
shared use.
(2)
The City may consider expert testimony to determine
whether the fees and costs are reasonable.
(3)
Once the City finds that the telecommunications
equipment proposed by the applicant cannot be accommodated on an existing
or approved tower, each tower so found is presumed unable to accommodate
similar equipment that may be proposed in the future, unless evidence
is introduced to demonstrate otherwise.
e.
That the design of the tower or structure, including the antenna,
shelter and ground layout maximally reduces visual degradation and
otherwise complies with provisions and intent of this Section. New
towers shall be of a monopole design, unless it is shown that an alternative
design would equally or better satisfy this provision.
f.
That the proposal minimizes the number and/or size of towers
or structures that will be required in the area.
g.
That the applicant has not previously failed to take advantage
of reasonably available shared use opportunities or procedures provided
by this Article or otherwise.
h.
That no land owned by any agency of the Federal or State Government,
or by any political subdivision of the State, is available for locating
the structure or tower.
i.
The City may require, at the expense of the petitioner, any
additional studies or the hiring of an external consultant to review
exhibits and/or other requirements in accordance with this Section.
4.
Additional Height Limitations. No tower shall be approved at
a height exceeding one hundred fifty (150) feet AGL unless the applicant
clearly demonstrates that such height is required for the proper function
of the applicant's system or that of a public safety communications
system of a governmental entity sharing the tower. Such showing must
also be supported by the opinion of a telecommunications consultant
hired by the City at the expense of the applicant. The opinion of
the consultant shall include a statement that no available alternatives
exist to exceeding the height limit or the reason why such alternatives
are not viable.
5.
Non-Ionizing Electromagnetic Radiation Standards. All transmission
facilities shall conform to the relevant sections of the "American
National Standard Safety Levels with Respect to Human Exposure to
Radio Frequency Electromagnetic Fields, 300 kHz to 100 GHz." This
standard is identified as ANSI C95.1-1982 and is published by the
American National Standards Institute.
[R.O. 2011 § 400.760; Ord. No.
1161 § 1, 11-18-2013]
Any upper portion of a tower which is not occupied by active
antennas for a period of twelve (12) months, and any entire tower
which is not so occupied for a period of six (6) months, shall be
removed at the owner's expense. Failure to comply with this provision
shall constitute a nuisance that may be remedied by the City at the
tower or property owner's expense. Any applicant for a new tower or
disguised structure not built as a disguised part of another existing
or permitted structure shall place a bond or other security with the
City prior to any final approval for the purpose of removing any tower
or disguised structure as required herein and to compensate the City
for performing proper maintenance of such towers or disguised structures
to ensure such structures do not become unsafe or otherwise fail to
be maintained in compliance with this Article. The bond or security
shall be in the form approved by the Administrative Official, and
in the amount of fifteen thousand dollars ($15,000.00), or such other
amount as is determined by the Administrative Official to satisfy
the requirements hereof with regard to the specific tower or structure
to which it would apply.
[R.O. 2011 § 400.770; Ord. No.
1161 § 1, 11-18-2013]
Notwithstanding any right that may exist for a governmental
entity to operate or construct a tower or structure, it shall be unlawful
for any person to erect or operate for any private commercial purpose
any antenna, tower or disguised support structure in violation of
any provision of this Article, regardless of whether such antenna
or structure is located on land owned by a governmental entity.
[R.O. 2011 § 400.780; Ord. No.
1161 § 1, 11-18-2013]
Any person violating this provision shall be subject to a fine
of not more than five hundred dollars ($500.00) or ninety (90) days
in jail, or both. Each day the violation continues shall constitute
a separate offense.
[R.O. 2011 § 400.790; Ord. No.
1161 § 1, 11-18-2013]
If any Section, Subsection, sentence, clause, phrase or portion
of this Chapter is for any reason held invalid or unconstitutional
by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision, and such holding shall
not affect the validity of the remaining portions hereof.
[R.O. 2011 § 400.800; Ord. No.
1161 § 1, 11-18-2013]
This Article supersedes all Articles or parts of Articles adopted
prior hereto, which are in conflict herewith, to the extent of such
conflict.
[R.O. 2011 § 400.810; Ord. No.
1161 § 1, 11-18-2013]
As used in this Article, the following terms shall have the
meanings and usages indicated:
Above ground level. Ground level shall be determined by the
average elevation of the natural ground level within a radius of fifty
(50) feet from the center location of measurement.
Any device that transmits and/or receives radio waves for
voice, data or video communications purposes, including, but not limited
to, television, AM/FM radio, microwave, cellular telephone and similar
forms of communications. The term shall exclude satellite earth station
antennas less than two (2) meters in diameter [mounted within twelve
(12) feet of the ground or building mounted] and any receive-only
home television antenna.
A structure for the protection and security of communications
equipment associated with one (1) or more antennas where direct access
to equipment is provided from the exterior and that has horizontal
dimensions that do not exceed four (4) feet by six (6) feet, and vertical
height that does not exceed six (6) feet.
An area as designated by the map of the same title indicating
general locations in which more than one (1) wireless service provider
may potentially seek to locate an antenna facility and in which the
construction of co-locatable towers will be required. The map may
be periodically revised in response to new information received regarding
tower sites sought by wireless providers. A multi-use interest area
shall be designated as appropriate for towers within one (1) mile
of each other, unless the applicant demonstrates to the contrary.
The multi-use interest area map shall include the area within the
City limits and within one and one-half (1 1/2) miles of its
corporate boundaries.
Any freestanding, man-made structure designed for the support
of antennas, the presence of which is camouflaged or concealed as
an appropriately placed architectural or natural feature. Depending
on the location and type of disguise used, such concealment may require
placement underground of the utilities leading to the structure. Such
structures may include but are not limited to clock towers, campaniles,
observation towers, light standards, flag poles and artificial trees.
The Federal Aviation Administration.
The Federal Communications Commission.
The vertical distance measured from the average grade of
the base of the structure at ground level to its highest point and
including the main structure and all attachments thereto.
Any use authorized herein that exists in addition to the
principal use of the property.
Any addition, deletion, or change, including the addition
or replacement of antennas, or any change to a structure requiring
a building permit or other governmental approval.
A building for the protection and security of communications
equipment associated with one (1) or more antennas and where access
to equipment is gained from the interior of the building. Human occupancy
for office or other uses or the storage of other materials and equipment
not in direct support of the connected antennas is prohibited.
A tower or disguised support structure.
A structure designed for the support of one (1) or more antennas
and including guyed towers, self-supporting (lattice) towers or monopoles,
but not disguised support structures or buildings. The term shall
also not include any support structure including attachments of sixty-five
(65) feet or less in height owned and operated solely for use by an
amateur radio operator licensed by the Federal Communication Commission.
