[HISTORY: Adopted by the Common Council of the City of Muskego
at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
Amendments noted where applicable.]
A.
Title. These regulations shall officially be known, cited, and referred
to as the "Wireless Communications Facilities Siting Ordinance of
the City of Muskego" (hereinafter "these regulations" or "this chapter").
B.
Authority.
(1)
This chapter is adopted under the authority of the Federal Telecommunications Act of 1996, §§ 62.23 and 66.0404, Wis. Stats., and Chapter 400, Zoning, of the City Code.
(2)
The Plan Commission is vested with the authority to review, approve,
conditionally approve, and disapprove applications for wireless communications
facilities, including sketch, preliminary, and final plans.
C.
Jurisdiction. These regulations apply to all mobile service support
structures, as defined in § 66.0404, Wis. Stats., located
within the corporate limits of the municipality or outside the corporate
limits as provided by law. No mobile service support structure may
be constructed without a building, site and operation plan approval
from the Plan Commission and a conditional use grant.
D.
Findings.
(1)
Wireless communications comprise a rapidly growing segment of the
utilities and communications sector and have merit and value for the
City of Muskego and the region as a whole.
(2)
The use of wireless services has grown substantially on a national
basis since 1991, and it is estimated that more than 90% of all households
in the United States currently utilize wireless service.
(3)
Wireless communications are supportive of the public health, safety,
and welfare in that they provide useful portable communications services
for personal convenience, commerce, and emergency purposes.
(4)
Police and emergency services are using portable wireless services
more and more to communicate in times of crisis and natural disaster.
(5)
The Federal Communications Commission requires license holders to
provide coverage to areas within certain time frames where wireless
communications licenses have been acquired; wireless communication
providers are required to furnish quality communications services
to meet the growing needs of both the public and businesses.
(6)
Delays and uncertainty in the permit process which result from a
lack of clear standards are an unreasonable limitation upon wireless
service providers.
(7)
The City of Muskego Plan Commission and Common Council undertook
a deliberate process to establish policies, standards, guidelines,
and ordinances regarding the siting of tower structures and antenna
arrays for wireless communications.
(8)
The Federal Telecommunications Act of 1996 preserves local zoning
authority to reasonably regulate wireless communications; provided,
however, that localities may not unreasonably discriminate among Federal
Communications Commission license holders, and that localities may
not prohibit or have the effect of prohibiting wireless communications
facilities.
(9)
The Federal Communications Commission has sole jurisdiction over
the radio frequency emissions of wireless communications facilities
so long as said facilities meet the standards thereof.
(10)
State law was amended on or about July 2, 2013, by creating
§ 66.0404, Wis. Stats., which limits municipal authority
with regard to telecommunications facilities in many respects, and
the federal government also limits municipal authority concerning
modifications to telecommunications facilities by 47 U.S.C. § 1455,
and the City intends by this chapter to regulate telecommunications
facilities only to the extent allowed by such state and federal laws.
E.
Purpose. In order to protect the public health, safety, and general
welfare of the community, while accommodating the communication needs
of residents and business, these regulations are necessary to:
(1)
Facilitate the provision of wireless telecommunications services
to the residents and businesses of the municipality;
(2)
Minimize adverse visual effects of towers through careful design
and siting standards;
(3)
Encourage the location of towers in nonresidential areas through
performance standards and incentives;
(4)
Avoid potential damage to adjacent properties from tower failure
through structural standards and setback requirements;
(5)
Provide mechanisms for the mitigation of tower proliferation when
possible;
(6)
Allow competition in wireless communications services;
(7)
Encourage the provision of advanced communications services to the
community; and
(8)
Enable the City of Muskego to discharge its public trust consistent
with the rapidly changing federal and state regulatory environment,
industry competition, and technological development.
F.
Interpretation; conflicts.
(1)
Interpretation. In their interpretation and application, the provisions
of these regulations shall be held to be the minimum requirements
for the protection of public health, safety, and general welfare.
These regulations shall be construed broadly to promote the purposes
for which they are adopted.
(2)
Conflicts. These regulations are not intended to interfere with,
abrogate, or annul any other ordinance, rule or regulation, statute,
or other provision of law except as authorized by applicable federal
or state law and as provided in these regulations. Except to the extent
that the City of Muskego is not authorized or is prohibited by applicable
federal or state law from imposing higher or more restrictive standards,
where any provision of these regulations imposes restrictions different
from any other ordinance, rule or regulation, statute, or other provision
of law, the provision which is more restrictive or imposes higher
standards shall govern.
All terms used herein shall have the meaning described in § 66.0404(1),
Wis. Stats. In addition, the following usage and defined terms apply
throughout this chapter:
A.
Usage.
(1)
For the purpose of these regulations, certain abbreviations, terms,
and words shall be used, interpreted, and defined as set forth in
this section.
(2)
Unless the context clearly indicates to the contrary, words used
in the present tense include the future tense, and words used in the
plural shall also indicate the singular.
B.
APPLICANT
COMPREHENSIVE PLAN
FAA
FCC
GUYED TOWER
LATTICE TOWER
LINE OF SIGHT
MONOPOLE TOWER
MSSF
NATURAL AREAS and NATURAL AREA CORRIDORS
(1)
(2)
OPERATOR
OWNER
PUBLIC PROPERTY
SELF-SUPPORTED TOWER
STEALTH FACILITY
SUPPORT STRUCTURE HEIGHT
Words and terms defined. As used in this chapter, the following terms
shall have the meanings indicated:
A person who applies for a wireless facility siting. An applicant
can be the owner of the property or someone who is representing the
owner of the property, such as a tenant, licensee, operator, builder,
developer, optional purchaser, consultant, or architect.
The current adopted Comprehensive Plan of the City of Muskego.
Federal Aviation Administration.
Federal Communications Commission.
A mobile service support structure that is supported, in
whole or in part, by guy wires and ground anchors.
A guyed or self-supporting, three- or four-sided, open, steel
frame mobile service support structure.
The direct view of an object from a designated location.
A mobile service support structure consisting of a single
pole, constructed without guy wires and ground anchors.
Mobile service support structures and mobile service facilities.
A specific location, area, or corridor as specifically established herein, in § 362-3D, that consists of:
A three-dimensional area extending out from a particular viewpoint,
focusing on a single object or group of objects, such as a ridgeline
or a grouping of trees, resulting in an aesthetically pleasing view.
Lateral terrain features such as valley sides or woodland as
observed to either side of the observer, constraining the view into
a narrow or particular field.
A person or entity that owns or operates a wireless communications
facility.
The owner of the title to real property or the contract purchaser
of real property of record, as shown on the latest assessment records
of the City of Muskego. "Owner" also includes a deed holder or contract
purchaser whose name does not appear in the latest assessment records
but who presents to the municipality a copy of a deed or contract
of sale showing date, book, and page of recording.
Any real property, easement, air space, or other interest
in real estate, including a street, owned by or controlled by this
municipality or any other governmental unit.
A mobile service support structure that is constructed without
guy wires and ground anchors.
Any MSSF which is designed to blend into the surrounding
environment. Examples of stealth facilities may include architecturally
screened roof-mounted antennas, building-mounted antennas painted
to match the existing structure, antennas integrated into architectural
elements, and antenna structures designed to look like light poles.
The vertical distance measured from the base of the antenna
support structure at grade to the highest point of the structure.
If the support structure is on a sloped grade, then the average between
the highest and lowest grades shall be used in calculating the antenna
height.
A.
Administration and enforcement officer.
(1)
Public Works and Development Director or designee designated. The
Public Works and Development Director or designee is hereby designated
as the administrative and enforcement officer for the provisions of
this chapter. For such duties he may be provided with the assistance
of such additional persons as the Common Council may direct.
(2)
Duties. In the enforcement of this chapter the Public Works and Development
Director or designee shall perform the following duties:
(a)
Issue the necessary zoning use permits and/or conditional use
grants required by the provisions of this chapter and provided its
provisions and those of the Building Code have been complied with.
(b)
Keep an accurate record of all permits, numbered in the order
of issuance.
(c)
In case of any finding of a violation of a provision of this
chapter, notify in writing the actual violator, where known, and the
owner of the property on which the violation has taken place, indicating
the nature of the violation and the action necessary to correct it.
(d)
Carry out such additional responsibilities as are hereinafter
set forth by the provisions of this chapter.
(3)
Authority. In the enforcement of this chapter, the Public Works and
Development Director or designee shall have the power and authority
for the following:
(a)
At any reasonable time and for any proper purpose, to enter
upon any public or private premises and make inspection thereof.
(b)
Upon reasonable cause or question as to proper compliance, to notify of violations and initiate penalty actions as described in Subsection G, requiring the cessation of any building, moving, alteration or use which is in violation of the provisions of this chapter, such revocation to be in effect until reinstated by the Public Works and Development Director or designee or the Zoning Board of Appeals, or take any other action as directed by the Common Council to ensure compliance with or to prevent violation of its provisions.
(c)
In the name of the City and with authorization of the Common
Council, to commence any legal proceedings necessary to enforce the
provisions of this chapter or the Building Code, including the collection
of forfeitures provided for herein.
B.
Permits.
(1)
Permit required. No MSSF shall be erected, structurally altered,
or relocated within the City of Muskego until a building, site and
operation plan has been approved and a conditional use permit has
been issued by the Public Works and Development Director or designee
and a building permit has been issued by the Building Inspector certifying
that such building or structure, as proposed, would be in compliance
with the provisions of this chapter and with the Building Code of
the City.
(2)
Permit procedure. An application for a building, site and operation
plan and conditional use grant shall be made in conformity with this
chapter.
(3)
Permit expiration. If within 18 months of the date of application
no occupancy permit has been issued, any building permit and zoning
permit related thereto shall lapse and the Public Works and Development
Director or designee shall make immediate investigation to ascertain
that no use or occupancy has in fact commenced without proper authority.
Upon showing of valid cause, the Public Works and Development Director
or designee may grant an extension of such permit for a period not
to exceed six months.
C.
Relation to Zoning Code; performance standards.
(1)
Relation to City Zoning Code. This chapter is adopted by zoning powers pursuant to §§ 62.23 and 66.0404, Wis. Stats., and except as noted herein is intended to be the sole City zoning regulation of MSSF facilities and operations within the City of Muskego. In the event of a conflict between these regulations and Chapter 400, Zoning, of the City Code, these regulations shall control.
D.
Natural areas and natural area corridors established. In order to
protect and preserve natural areas within the City, the following
natural areas and natural area corridors are established. All natural
areas and natural area corridors established by this chapter shall
be mapped, and all the notations, references and other information
shown thereon shall be as much a part of this chapter as if the matters
and information set forth by said map were all fully described herein.
(1)
The following areas are designated as natural areas as defined in § 362-2B: Big Muskego Lake Wildlife Area.
(2)
The following areas are designated as natural area corridors as defined in § 362-2B:
(a)
The following corridors measured parallel to the right-of-way
and measuring a distance 400 feet from the edge of the ultimate right-of-way,
as illustrated in the adopted street system plan for the City of Muskego:
(b)
The following corridors measured parallel to the right-of-way
and measuring a distance 600 feet from the edge of the ultimate right-of-way,
as illustrated in the adopted street system plan for the City of Muskego:
E.
Exemptions. The following are exempt from the provisions of this
chapter:
F.
Amendments. For the purpose of protecting the public health, safety,
and general welfare, the Plan Commission or Common Council may from
time to time propose amendments to these regulations which may be
acted on by the Common Council at a public meeting following any public
notice as required by Wisconsin Statutes for an amendment to a zoning
ordinance, in a manner similar to a zoning ordinance. Realizing that
communication technologies are evolving and changing quickly, future
innovations may reduce the impacts of individual facilities and render
portions of these regulations obsolete. Therefore, periodic review
and revision of these regulations will be necessary.
G.
Violations and penalties.
(1)
Penalties. Any person, firm, company, or corporation who or which violates, disobeys, omits, neglects or refuses to comply with, or who resists the enforcement of any of the provisions of this chapter shall be subject to a penalty as provided in § 1-4 of this Code, together with the costs of the action. Each day that a violation is permitted to exist shall constitute a separate violation and be punishable as such.
(2)
Enforcement by injunction. Compliance with the provisions of this
chapter may also be enforced by injunction order at the suit of the
City or one or more owners of real estate situated within an area
affected by the regulations of this chapter.
(3)
Declared nuisances. Any building erected, structurally altered, or
placed on a lot or any use carried on in violation of the provisions
of this chapter is hereby declared to be a nuisance per se, and the
City may apply to any court of competent jurisdiction to restrain
or abate such nuisance.
H.
Appeals. Petitioners requesting approval of an MSSF who are aggrieved by a decision of the Plan Commission or its administrative officers relating to a basic zoning regulation may appeal said decision to the Zoning Board of Appeals. The Zoning Board of Appeals shall hear said cases in accordance with Chapter 400, Zoning, of the City Code.
A.
Co-location requirements. A proposal for a new mobile service support
structure shall include an explanation as to why the applicant chose
the proposed location and why the applicant did not choose co-location.
This explanation shall include a sworn statement from the responsible
party attesting that co-location within the applicant's search
ring would not result in the same mobile service functionality, coverage
and capacity, or is technically infeasible, or is economically burdensome.
B.
Tower and antenna design requirements. Proposed or modified wireless
communications towers and antennas shall meet the following design
requirements:
(1)
All MSSF proposed to be located within the Big Muskego Lake Wildlife
Area shall be located on an existing tower structure or shall be stealth
facilities.
(2)
All MSSF proposed to be located within a designated scenic view shall
be located on an existing tower structure or shall be stealth facilities.
(3)
Mobile service support structures and antennas shall be designed
to blend into the surrounding environment through the use of color
and other camouflaging architectural treatments, except in instances
where the color is dictated by federal or state authorities such as
the Federal Aviation Administration.
(4)
Mobile service support structures shall be designed structurally,
electrically, and in all other respects to accommodate both the applicant's
antennas and comparable antennas for at least three additional users
if the tower is over 150 feet in height; at least two additional users
if the mobile service support structure is between 100 feet and 150
feet in height; or at least one additional user if the mobile service
support structure is between 60 feet and 99 feet in height. Mobile
service support structures must be designed to allow for future rearrangement
of antennas and to accept antennas mounted at varying heights.
(5)
Mobile service support structures shall be of an unguyed monopole
design. Lattice towers and guyed monopole towers shall be prohibited
unless the Plan Commission determines that any such alternative designs
would better blend in to the surrounding environment.
C.
Accessory uses and accessory structures. All accessory uses and structures
associated with MSSF shall comply with the following:
(1)
Ground-mounted equipment, including but not limited to equipment
cabinets and generators, shall be enclosed in a structure which is
architecturally designed to be of residential character and screened
from view by suitable vegetation, except where a design of nonvegetative
screening better reflects and complements the architectural character
of the surrounding neighborhood. Only one such structure shall be
permitted per site; all co-locators must be housed within a common
structure.
(2)
All utility buildings and structures accessory to a wireless communications
tower shall be architecturally designed to be of residential character
and shall meet the minimum setback requirements of the underlying
zoning district.
(3)
No outdoor storage shall be permitted at any wireless communications
tower site, unless specifically identified and approved in a building,
site and operation plan.
D.
Zoning and use. An MSSF shall be a conditional use, though it is not subject to the ordinary conditional regulations and procedures of Chapter 400, Zoning, of the City Code. Instead, the conditional use shall be reviewed pursuant to these regulations.
E.
Lighting.
(1)
Towers shall not be illuminated by artificial means and shall not
display strobe lights unless such lighting is specifically required
by the Federal Aviation Administration or other federal or state authority
for a particular tower.
(2)
Site lighting shall be permitted in accordance with the standards
identified in the City of Muskego Design Manual.
F.
Interference with public safety communications.
(1)
No new or existing telecommunications service shall interfere with
public safety telecommunications.
(2)
All new or existing telecommunications service providers shall route
cellular 911 calls originating within the City of Muskego directly
to the City of Muskego Public Safety Answering Point as demanded by
the City of Muskego Chief of Police, subject to the following: the
Chief of Police shall impose no demands that conflict with any express
requirement of any state or federal law or regulation, and all necessary
procedures to implement this change shall be made pursuant to applicable
state and federal laws.
G.
Use and occupancy of public rights-of-way. The overhead, underground, or surface use and occupancy of public streets, alleys, rights-of-way, parks or other public spaces by wireless communications service providers are prohibited without a valid right-of-way occupancy permit. Requests for such permits by wireless communications service providers shall be processed in accordance with the requirements of Chapter 313, Streets and Sidewalks, of the City Code and the Common Council's policies related thereto.
H.
Signs and advertising. The use of any portion of a tower for signs
other than warning or equipment information signs is prohibited.
A.
Abandoned or unused MSSF.
(1)
Annual review. On or before July 1 of each calendar year, the owner
of a mobile service support structure shall file annually a declaration
with the Muskego Planning Division as to the continuing operation
of every locator and co-locator installed subject to these regulations.
Failure to do so may result in a determination by the City that the
facility is no longer in use and considered abandoned.
(2)
Determination of abandonment. A mobile service support structure
that is not operated for a continuous period of six months shall be
considered abandoned unless a building, site and operation plan or
conditional use grant has been approved by the Plan Commission within
the past 18 months and said facility is yet to be constructed.
(3)
Abandoned MSSF shall be removed as follows:
(a)
The City shall notify the owner of an abandoned mobile service
support structure in writing and order the removal of the facility
within 90 days of the receipt of the written notice.
(b)
The owner of the facility shall have 30 days from the receipt
of the written notice to demonstrate to the City that the facility
has not been abandoned.
(c)
In the event that a mobile service support structure is not removed within 90 days of the receipt of written notice, the MSSF may be removed by the City and the costs of removal seized from the surety, if applicable. Costs for removal may include all reclamation costs deemed necessary by the City to return the site to its pre-construction condition, including but not limited to road removal and establishment of vegetation. Costs for removal which are in excess of sureties provided in accordance with Subsection B shall be assessed against the property.
B.
Security for removal.
(1)
Prior to commencement of installation of any MSSF, the applicant
shall establish a security mechanism (as hereinafter defined) to ensure
that all of applicant's MSSF, including all components, including
but not limited to antennas, equipment, shelter, tower, cables and
any and all other physical materials of any kind or nature, will be
removed and the property restored to its previous condition, reasonable
wear and tear excepted, at termination or expiration of the use. For
purposes hereof, "security mechanism" shall mean either (at the applicant's
election) a cash security deposit posted with the City, an irrevocable
letter of credit, or an escrow deposit established with a title company.
Any such security deposit, letter of credit or escrow deposit shall
be in the amount of $20,000.
(2)
In the event the applicant establishes a security mechanism by posting
a cash security deposit with the City, the City shall not be responsible
for paying interest on said deposit. In the event the applicant establishes
a security mechanism by establishing an escrow, interest accruing
on said deposit shall be payable to the applicant from time to time,
as and to the extent established within the escrow agreement with
the title company.
(3)
The applicant shall have the right to approve the title company and
the form of escrow agreement with respect to any such escrow or the
issuing bank and form of letter of credit with respect to any such
letter of credit, if applicable. Any such escrow agreement or letter
of credit shall, in part, include provisions that said agreement or
letter of credit, as the case may be, cannot be terminated without
the prior written consent of the City and a provision that the title
company or issuer, as the case may be, pay all moneys held in said
account to the City upon receipt of a written statement by the City
certifying that the MSSF has not been removed and the property restored
to its previous condition, reasonable wear and tear excepted, at the
termination or expiration of the use.
(4)
The applicant may, from time to time, substitute for the then-existing
security mechanism one of the other two types of security mechanism
described herein, and the City shall cooperate in connection with
each such substitution.
(5)
Upon final satisfaction of the applicant's removal obligations
described in this section, all funds in the escrow or the letter of
credit or the security deposit, as the case may be, less any funds
claimed by the City to enforce compliance, shall be promptly returned
to the applicant. In the event the City incurs expenses that exceed
the amount of the security mechanism and/or if the security mechanism
fails to reimburse the City for any of the City's expenses in
fully removing the MSSF and restoring the property, for any reason,
the City may impose a special charge against the property pursuant
to § 66.0627, Wis. Stats., in addition to such other rights
and remedies that may be available to the City, and all such rights
are reserved.
A.
New towers and facilities. The siting and construction of new mobile
service support structures and facilities shall be subject to the
following requirements:
(1)
Application process. The applicant shall submit a written application
which shall include all of the following information:
(a)
The name and business address of, and the contact individual
for, the applicant.
(b)
The location of the proposed tower.
(c)
The location of the mobile service facility.
(d)
A construction plan which describes the tower, equipment, network
components, antennas, transmitters, receivers, base stations, power
supplies, cabling, and related equipment to be placed on or around
the new tower.
(e)
An explanation as to why the applicant chose the proposed location
and why the applicant did not choose co-location, including a sworn
statement from the responsible party attesting that co-location within
the applicant's service area would not result in the same mobile
service functionality, coverage, and capacity; is technically infeasible;
or is economically burdensome.
(2)
Determination of completeness within 10 days of submittal. The Public
Works and Development Director or designee shall review the application
and determine whether the application is complete. If the application
includes all of the foregoing information, the application shall be
found to be complete. The Public Works and Development Director or
designee shall notify the applicant in writing within 10 days of receiving
the application if it is found not to be complete, and such notice
shall specify in detail the required information that was incomplete.
Applicants are allowed to resubmit their application as often as necessary
until it is complete.
(3)
Conditional use review procedure. The MSSF shall be a conditional
use and shall be reviewed pursuant to the following procedures:
(a)
Plan Commission review. After an application and all required
information have been filed, the Plan Commission shall review the
matter and shall make a recommendation to the Common Council.
(b)
Fee. Any petition shall be accompanied by a fee as set from
time to time by the Common Council to defray the cost of notification
and holding of public hearing. Such fee shall not exceed the limits
established by § 66.0404(4)(d), Wis. Stats.
(c)
Costs. Costs incurred by the City in obtaining legal, planning,
engineering and other technical and professional advice in connection
with the review of the conditional use and preparation of the conditions
to be imposed shall be charged to the applicant.
(d)
Determination. The Common Council shall hold a public hearing
upon Class 2 notice as described in Ch. 985, Wis. Stats. The Common
Council shall make a decision on the application within a reasonable
time after receipt of the Plan Commission recommendations, provided
further that final action shall be taken within 90 days of receipt
of a complete application unless the time is extended by the applicant.
Said decision shall be stated in writing and a copy made a permanent
part of the City records. If conditional use status is not granted,
the reasons therefor will be included in such record. A grant of conditional
use status, subsequent changes or additions thereto and terminations
thereof shall be recorded as follows:
[1]
An official record of such conditional grant shall be prepared
by the City Clerk on a form prescribed therefor which shall include
the description of the use for which the grant is given and all conditions
attached thereto. A copy of the completed form shall be recorded at
the Waukesha County Register of Deeds as a covenant on the title for
the premises for which the conditional use was granted.
[2]
The occupancy permit shall be appropriately noted as to the
conditional status granted.
[3]
Indication shall also be made on the Zoning Map by appropriate
code number or symbol.
B.
Modifications. The construction of modifications to an existing mobile
service support structure or mobile service facility shall be subject
to the following requirements:
(1)
Substantial modification. A substantial modification is regulated the same as a new structure or facility, as described in Subsection A above, except that the required plans should describe the proposed modifications rather than describe the new structure or facility.
(2)
Not substantial modification.
(a)
Application information. The applicant shall submit a written
application that describes the applicant's basis for concluding
that the modification is not substantial and all of the following
information:
(b)
Completeness determination within five days. The Public Works
and Development Director or designee will determine whether the application
is complete. If the application includes all of the foregoing information,
the application shall be found to be complete. The Public Works and
Development Director or designee must notify the applicant in writing
within five days of receiving the application if it is found not to
be complete, specifying in detail the required information that was
incomplete. The applicant may resubmit as often as necessary until
it is complete.
(c)
Fee. Any petition shall be accompanied by a fee as set from
time to time by the Common Council to defray the cost of review. Such
fee shall not exceed the limits established by § 66.0404(4)(d),
Wis. Stats.
(d)
Costs. Costs incurred by the City in obtaining legal, planning,
engineering and other technical and professional advice in connection
with the review of the conditional use and preparation of the conditions
to be imposed shall be charged to the applicant.
(e)
Determination. The Common Council shall make a decision on the
application within a reasonable time after receipt of the Plan Commission
recommendations, provided further that final action shall be taken
within 45 days of receipt of a complete application unless the time
is extended by the applicant. Said decision shall be stated in writing
and a copy made a permanent part of the City records. If approval
is not granted, the reasons therefor will be included in such record.
(f)
Limitations upon authority. The City review and action in the
matter shall be subject to the limitations imposed by § 66.0404(4),
Wis. Stats., and such other laws as may apply, which may include 47
U.S.C. § 1455. In the event the applicant believes the City
has exceeded its authority in this regard, the applicant shall notify
the Common Council in writing, and the Common Council reserves the
right to reconsider the matter, to ensure that applicable laws are
followed.
C.
General approval standards. The following standards apply to all
MSSF:
(1)
The location of a proposed tower shall be compatible with the Comprehensive
Plan and this chapter.
(2)
The submitted site plan must comply with the performance criteria
set in these regulations.
(3)
The proposed facility/tower shall not unreasonably interfere with
the view from any public park, natural scenic vista, historic building
or district, or major view corridor.
(4)
The MSSF will not interfere with a natural area or natural area corridor.
(5)
The lowest six feet of the facility/tower must be visually screened
by trees, large shrubs, solid walls, or fences and/or nearby buildings.
(6)
The height and mass of the facility/tower must not exceed that which
is essential for its intended use and public safety.
(7)
The owner of the wireless communications facility must agree to permit
other persons/cellular providers to attach cellular antenna or other
communications apparatus which do not interfere with the primary purpose
of the facility.
(8)
The color of the proposed mobile service support structure shall
be of a light tone or color (except where required otherwise by the
FAA) so as to minimize the visual impact and the tower will have a
security fence around the tower base or the lot where the tower is
located.
(9)
The mobile service support structure shall comply with any other
applicable local, state, or federal regulations.
(10)
All equipment for the applicant and all potential co-locators
shall be housed in one building, to be designed and built by the applicant.
(11)
No MSSF shall be located on a site containing a dwelling or
be closer than 500 feet to a property line of an existing dwelling.
No MSSF shall be closer than 500 feet to the property line of a vacant
lot or vacant parcel in a residentially zoned district. These requirements
are imposed primarily to preserve the residential character of such
areas, to preserve residential property values, and avoid blight,
and also for aesthetic reasons. The five-hundred-foot distances may
be reduced in individual situations if the Plan Commission finds these
purposes to be inapplicable to individual applications.
(12)
An MSSF shall be set back from all property lines a distance equal to the height of the MSSF and comply with all setback and offset requirements of Chapter 400, Zoning, of the City Code, subject to the following: if an applicant provides the City with engineering certification showing that the tower is designed to collapse within a smaller area than the radius equal to the height of the tower, the smaller area shall be used unless the City has and provides to the applicant substantial evidence that the engineering certification is flawed.
(13)
A side-mounted MSSF shall not project more than 42 inches from
the side of the building facade, shall not extend above the highest
point of the roof of the structure and shall be screened and camouflaged
as required herein. The MSSF shall not project into an easement, driveway
or setback unless otherwise specified in the conditional use permit.
(14)
An equipment cabinet shall be located within or adjacent to
the structure on which an MSSF is placed or located below natural
grade underground, if site conditions permit and if technically feasible.
(15)
The applicant(s) and the personal wireless service carrier shall
jointly and severally warrant and represent to the City and its residents
the safety of the MSSF. The personal wireless service carrier and
the applicant(s), upon granting of a conditional use permit or amendment
for an MSSF use, shall indemnify, protect and hold harmless the City,
its officers and agents, and residents from and against any and all
liabilities, losses, damages, demands, claims and costs, including
court costs and attorney fees (collectively "liabilities"), incurred
by the City arising directly or indirectly from the MSSF use as contemplated
herein and within the conditional use permit and the installation
and operation of the MSSF. The personal wireless service carrier's
compliance with this subsection is an express condition of the conditional
use permit and is binding on any and all of personal wireless service
carrier's or applicant's successors and assigns. The requirements
of this subsection shall survive the termination of any such permit
or amendment.
(16)
The applicant shall carry a commercial general liability insurance
policy with limits of liability not less than $1,000,000 general aggregate,
$1,000,000 personal injury and $1,000,000 each occurrence. The applicant
shall also carry umbrella liability insurance with limits of liability
not less than $10,000,000 each occurrence and $10,000,000 aggregate.
Coverage under either policy shall not contain a standard form pollution
exclusion, nor shall it exclude claims or suits that arise from the
effects of electromagnetic fields or radiation, if such coverage is
available. The maximum deductible shall be $5,000 per occurrence.
(17)
The applicant shall maintain the MSSF to standards that are
imposed by the City at the time of granting of a permit or amendment
thereto. Such maintenance shall include but shall not be limited to
maintenance of the paint, structural integrity and landscaping. If
the applicant fails to maintain the facility, the City may undertake
the maintenance at the expense of the applicant or terminate or revoke
the permit, at its sole option. If such maintenance expense is not
paid by the owner within 30 days of notice by the City, the applicant
agrees that the City's costs shall constitute a lien upon the
subject property upon its execution and filing with the County Recorder's
office.
(18)
A conditional use permit or amendment granted to an applicant
is specific to the owner and personal wireless service carrier and
may not be assigned; provided, however, that the personal wireless
service carrier may assign its interest in the permit to any subsidiary
or other affiliate of the personal wireless service carrier. In the
event of such assignment, the assignee shall re-execute the conditional
use permit or amendment thereto within 30 days of the effective date
of the assignment or the permit shall automatically expire. The applicant
shall notify the City of any change in ownership or operations of
the MSSF at least 90 days prior to such change taking place for approval
by the City, which approval shall not be unreasonably withheld.
(19)
Where the Common Council finds that strict compliance with the
requirements of this section may result in extraordinary hardship
or is not needed to ensure the City's compliance with federal
or state law, the Common Council may modify such requirements only
upon a written showing by the applicant(s) of noncompliance with applicable
law or extraordinary hardship so that substantial justice may be done
and the public interest secured. "Hardship" as used herein shall include,
but not be limited to, a finding that special circumstances applicable
to the property, including its size, shape, topography, location or
surroundings, will deprive such property of privileges enjoyed by
other property in the same classification in the same zoning district
through the strict application of this section. In granting such modifications,
the Common Council may require such conditions as will, in its judgment,
secure substantially the objective of the standards or requirements
so varied and modified.
(20)
Any violation of the terms of this section or the conditional
use permit may result in revocation by the City of the conditional
use permit. The City may revoke the conditional use permit upon 60
days' prior notice if, in its sole judgment, it determines the MSSF
poses a safety risk. If such safety risk is not cured by the applicant
within 60 days after notice from the City, the City may revoke or
modify the conditional use permit. Acceptance of any portion of the
conditional use permit is acceptance of the entire conditional use
permit and the terms of this section.
(21)
Within 90 days after issuance of the FCC operational permit,
the personal wireless service carrier shall provide a copy of such
permit to the City and register the MSSF, providing information and
data as may be requested by the City. Any change in the permit or
registration data shall be filed with the City within 30 days after
the change is made. The personal wireless service carrier shall submit
to the City a copy of its FCC Form 600 prior to the City's approval
of final inspection of a building permit for the MSSF or portion thereof.
(22)
The City and its agents are authorized to enter on the subject
property and MSSF site for the purpose of inspection and determining
compliance with this section and the provisions of the conditional
use permit.
