[Ord. No. 05-424 §1, 11-14-2005]
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
in Marlborough. 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 of the
Village of Marlborough;
2.
Minimize adverse visual impacts of communications antennas and support
structure through the careful design, siting, landscape screening
and innovative camouflaging techniques;
3.
Maximize the use of existing support structures that conform to the
requirements of this Article so as to minimize the need to construct
new or additional facilities;
4.
Maximize the co-location of facilities on any new support structures
built in conformance to this Article.
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.
[Ord. No. 05-424 §1, 11-14-2005]
A.
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 telecommunication services in the
United States.
B.
The
Telecommunications Act of 1996 preserves the authority of the Village
to regulate the placement, construction and modification of towers
and antenna support structures and to protect the health, safety and
welfare of the public.
C.
The
Village 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.
D.
The
Federal Communications Commission (FCC) has exclusive jurisdiction
over (1) the regulation of the environmental effects of radio frequency
emissions from telecommunication facilities, and (2) the regulation
of radio signal interference among users of the radio frequency spectrum.
E.
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 Village. This Article does not attempt to regulate in areas
within the exclusive jurisdiction of the FCC.
F.
The
uncontrolled proliferation of towers in the Village of Marlborough
is threatened without adoption of new regulations and would diminish
property values, the aesthetic quality of the Village and would otherwise
threaten the health, safety and welfare of the public.
[Ord. No. 05-424 §1, 11-14-2005]
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 antennas.
The Building Commissioner of the Village or his/her designee.
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.
All zoning districts of the Village that are not residential
zoning districts; that is, the "C-1" and "C-2" Districts.
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
Village limits and within one and one-half (1½) miles of its
corporate boundaries.
Any freestanding, manmade 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 and/or
concealing the antennas in or on the support structure. Such structures
may include, but are not limited to, clock towers, campaniles, observation
towers, light standards, flagpoles 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 Communications Commission.
A tower that is located in a commercial district and conforms
to all requirements of this Article and the underlying zoning district
in which it is located.
[Ord. No. 05-424 §1, 11-14-2005]
A.
The
requirements set forth in this Article 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 Article, 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 Article shall be granted
for any applicant having an uncured violation of this Article or any
other governmental regulatory requirement related to such antenna
or structures within the Village.
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 Building Commissioner or by the Village Board, 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 antennas or support structure. Equipment
cabinets and shelters may have lighting only as approved by the Building
Commissioner 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 Article
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.
Towers attached to a disguised support structure or tower shall be
contained within or mounted flush on the surface of the disguised
support structure or tower to which they are mounted.
d.
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.
e.
All towers shall be surrounded by a minimum six (6) 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 Building Commissioner in
the case of use permitted by administrative permit or by the Village
Board in the case of a conditional use permit upon demonstration by
the applicant that an equivalent degree of visual screening will be
achieved.
f.
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 (½)
of the height of the tower or structure.
g.
Vehicle or outdoor storage on any tower site is prohibited, unless
otherwise expressly permitted by the zoning.
h.
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 Village 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 Village, be cause
for the withholding of future permits to the same owner to install,
build or modify antennas or towers within the Village.
b.
Tower inventories. Prior to the issuance of any
permit to install, build or modify any tower, the tower owner shall
furnish the Building Commissioner an inventory of all of that owner's
towers in or within one and one-half (1½) miles of the Village
limits of Marlborough. The inventory shall include the towers 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 collocation.
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 (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 Village, shall be cause for the withholding of future permits to the same owner to install, build or modify antennas or towers within the Village.
d.
Communications tower multi-use area map. Any new
tower approved within a communication 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 Village, shall be cause for the withholding of future permits
to the same owner to install, build or modify antennas or towers within
the Village.
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 antennas shall be delivered by
certified mail to all known potential tower users as identified by
a schedule maintained by the Village, if applicable. Proof of such
delivery shall be submitted with the application to the Village. The
Building Commissioner may establish a form required to be used for
such notifications. Upon request, the Building Commissioner shall
place on a list the name and address of any user of towers or prospective
user to receive notification of applications. The Building Commissioner
shall, before deciding on the application or forwarding it to the
Village Board for consideration, allow all persons receiving notice
at least ten (10) business days to respond to the Village 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 Building Commissioner
to be reasonable pursuant to the objectives of this Article, the Building
Commissioner 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 Building Commissioner in writing. The Building Commissioner 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 Village 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 Building Commissioner responding to the alleged violation of
the shared use requirement. If deemed necessary by the Building Commissioner,
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 Building Commissioner
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 Building Commissioner
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.
[Ord. No. 05-424 §1, 11-14-2005]
A.
The
placement of antenna and towers are permitted only as follows:
1.
The attachment or replacement of antennas, cabinets or shelters on
or in connection with any tower existing in any zoning district on
the effective date of this Article or subsequently approved in accordance
with these regulations and/or requiring the enlargement of the existing
tower compound area, provided that all other requirements of this
Article and the underlying zoning district are met.
2.
The mounting of antennas on any existing building or structure in
the commercial districts, 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.
3.
The mounting of antennas on or within any existing high-voltage electric
transmission tower in the commercial districts, but not exceeding
the height of such tower by more than ten (10) feet, provided that
the tower and/or support structure 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.
4.
The installation of antennas or the construction of a tower or support
structure on buildings or land owned by the Village following the
approval of a lease agreement by the Village Board.
[Ord. No. 05-424 §1, 11-14-2005]
A.
The
placement of antenna and towers are permitted in the commercial districts
by administrative permit approved by the Zoning Administration only
as follows:
1.
The attachment of replacement antennas or replacement cabinets to
any non-conforming tower existing on the effective date of this Article
or subsequently approved in accordance with these regulations and/or
requiring the enlargement of the existing tower compound area, provided
that all other requirements of this Article and the underlying zoning
district are met.
2.
The attachment of additional antennas or additional cabinets to a
conforming tower, whether existing on the effective date of this Article
or subsequently approved in accordance with these regulations, provided
that all other requirements of this Article and the underlying zoning
district are met.
3.
The one-time replacement of any conforming 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.
4.
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 commercial district
other than a district authorizing higher intensity commercial 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.
5.
The placement of dual polar panel antennas on wooden or steel functioning
utility poles not to exceed forty (40) feet in height (or functional
replacement poles of no greater height) existing in any commercial
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.
6.
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 Building Commissioner
and accompanied by a deposit of two thousand dollars ($2,000.00) or
such other deposit amount as may be established by the Village Board.
The deposit shall be used to cover administrative costs and any telecommunications
consulting fee that the Village may incur in review of the application.
Any amount not used by the Village shall be refunded to the applicant.
1.
Applicant shall submit along with its completed application form:
a.
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, walkway, parking areas and other structures,
public right-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;
b.
A current multi-use interest area map and tower inventory as described in the definition of "communication tower multi-use interest area" in Section 405.160 and Section 405.170(H)(4), respectively; and
c.
Any other information requested by the Village.
2.
Upon receipt of an application, the Village shall review the application
to determine compliance with the above standards and, if deemed complete,
transmit the application for review and comment by the appropriate
Village Official(s) and any public agencies as may be affected by
the proposed facility.
3.
The Village shall issue a decision on the permit within forty-five
(45) days of the date of its receipt of a complete application or
the application shall be deemed approved unless the time period for
review and action was extended pursuant to this Article. The Village,
through its designated official, may deny the application or approve
the application as submitted or with such modifications as are, in
that official's judgment, reasonably necessary to protect the safety
or general welfare of the citizens consistent with the purposes of
this Article. The Village may consider the purposes of this Article
and the factors established herein for granting a conditional use
permit as well as any other considerations consistent with the 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 Village shall
be made in the same manner as otherwise provided for the appeal of
administrative decisions.
[Ord. No. 05-424 §1, 11-14-2005]
A.
All proposals to install, build or modify an antenna or support structure not permitted by Sections 405.180 and 405.190 above shall require the approval of a conditional use permit following a duly advertised public hearing by the Village Board, subject to the forthcoming limitations.
1.
Applications. Applications for conditional use permits
shall be filed and processed subject to the requirements of and in
the manner and time frame as established for conditional use permits.
A decision by the Village Board shall be accompanied by substantial
evidence supporting the decision, which shall be made a part of the
written record of the meeting at which a final decision on the application
is rendered. Evidence shall be under oath and may be submitted with
the application or thereafter or presented during the public hearing
by the applicant or others.
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 Section 405.180 (Permitted Use) or Section 405.190 (Administrative Permit) of this Article is not technologically or economically feasible. The Village Board may consider current or emerging industry standards and practices, among other information, in determining feasibility.
3.
Findings required. In addition to the determinations
or limitations for the consideration of conditional use permits generally,
the Village Board 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 Article.
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.
That the design of the tower or structure, including the antennas,
shelter and ground layout, maximally reduces visual degradation and
otherwise complies with provisions and intent of this Article. New
towers shall be of a monopole design, unless it is shown that an alternative
design would equally or better satisfy this provision.
d.
That the proposal minimizes the number and/or size of towers or structures
that will be required in the area.
e.
That the applicant has not previously failed to take advantage of
reasonably available shared use opportunities or procedures provided
by this Article or otherwise.
f.
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.
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If any one (1) but not more than one (1) of the first six (6)
determinations is not satisfied, approval may be granted only on a
finding of unique circumstances otherwise necessitating approval to
satisfy the purposes of this Article.
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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 Village 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.
[Ord. No. 05-424 §1, 11-14-2005]
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. Removal of upper portions of a tower
manufactured as a single unit shall not be required. Failure to comply
with this provision shall constitute a nuisance that may be remedied
by the Village at the tower or property owner's expense. Any applicant
for a new tower or disguised structure not built as disguised part
of another existing or permitted structure shall place a bond or other
security with the Village prior to any final approval for the purpose
of removing any tower or disguised structure as required herein and
to compensate the Village 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
Building Commissioner and in the amount of fifteen thousand dollars
($15,000.00) or such other amount as is determined by the Building
Commissioner to satisfy the requirements hereof with regard to the
specific tower or structure to which it would apply.
[Ord. No. 05-424 §1, 11-14-2005]
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.
[Ord. No. 05-424 §1, 11-14-2005]
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.
[Ord. No. 05-424 §1, 11-14-2005]
If any Section, Subsection, sentence, clause, phrase or portion
of this Article 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.
[Ord. No. 05-424 §1, 11-14-2005]
This Article supersedes all ordinances or parts of ordinances
adopted prior hereto, which are in conflict herewith, to the extent
of such conflict.
[Ord. No. 05-424 §1, 11-14-2005]
This Article shall become effective November 14, 2005.
