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Gibraltar |
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Code of Ordinances |
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Part II. CODE OF ORDINANCES |
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Chapter 44. ZONING |
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Article IV. GENERAL PROVISIONS |
§ 44-110. Wireless communications, towers and antennas.
(a)
Purpose and intent. The general purpose and intent of these regulations is to regulate the establishment of wireless communications equipment in recognition of the public need and demand for advanced telecommunication and information technologies and services balanced against the impacts such facilities may have on properties within the city. It is the further purpose and intent of these regulations to:
(1)
Provide for the appropriate location and development criteria for wireless communication support structures and wireless communication antennas within the city;
(2)
Ensure access to reliable wireless communications devices throughout all areas of the city;
(3)
Minimize the adverse effects of such facilities through careful design, siting and screening criteria;
(4)
Maximize the use of existing and future wireless communications support structures and encourage multiple uses on such facilities;
(5)
Protect the character of residential areas throughout the city from the effects of wireless communications equipment and;
(6)
Promote the public health, safety, welfare, and convenience.
(b)
Definitions.
Concealed wireless communications equipment means any wireless communications equipment that is integrated as an architectural feature of an existing building or structure designed so that its purpose is not readily apparent to a casual observer.
Quasi-public use means a use conducted by, or a facility or structure owned or operated by, a nonprofit, religious, or charitable institution that provides educational, cultural, recreational, religious, or other similar types of public services.
Wireless communications antenna (WCA) means any antenna used for the transmission or reception of wireless communications signals excluding those used exclusively for dispatch communications by public emergency agencies, ham radio antennas, satellite antennas, those which receive video programming services via multipoint distribution services which are one meter (39 inches) or less in diameter and those which receive television broadcast signals.
Wireless communications equipment means all structures and accessory facilities relating to the use of the radio frequency spectrum for the purpose of transmitting or receiving radio signals and may include, but is not limited to radio towers, television towers, telephone devices and exchanges, micro-wave relay towers, telephone transmission equipment buildings and commercial mobile radio service facilities. Citizen band radio facilities, short wave facilities, ham, amateur radio facilities, and satellite dishes, and governmental facilities which are subject to state or federal law or regulations which preempt municipal regulatory authority are not included in this definition.
Wireless communications support structure (WCSS) means a monopole, guyed, or lattice type tower designed for the attachment of or as support for wireless communications antennas or other antennas.
(c)
Administrative review and approval. Wireless communications equipment is a permitted use of property in any zoning district after administrative review and approval in accordance with subsection (g) herein and is not subject to special land use approval or any other approval required under chapter 44 [zoning] under the following circumstances.
(1)
The proposed wireless communications equipment will be co-located on an existing WCSS or in an existing compound, subject to the following conditions:
a.
The existing WCSS or existing equipment compound is in compliance with the city's zoning ordinance or was previously approved by the city.
b.
The proposed co-location will not do any of the following:
1.
Increase the overall height of the WCSS by more than 20 feet or ten percent of its original height, whichever is greater.
2.
Increase the width of the WCSS by more than the minimum necessary to permit co-location.
3.
Increase the area of the existing equipment compound to greater than 2,500 square feet.
c.
The proposed co-location complies with the terms and conditions of any previous final approval of the WCSS or equipment compound by the city.
(2)
An existing structure which will serve as an attached WCSS consisting of a utility pole located within a right-of-way, where the existing pole is not proposed to be modified in a manner which, in the discretion of the city administrator, would materially alter the structure and/or result in an impairment of sight lines or other safety interests.
(3)
An existing structure of an essential service which will serve as an attached WCSS, where the existing structure is not, in the discretion of the zoning administrator, proposed to be either materially altered or materially changed in appearance.
(4)
Concealed wireless communication equipment that are less than 60 feet in height.
(5)
An existing WCSS which was lawful at the time of its construction proposed to be replaced for purposes of accommodating co-location of additional WCAs, or otherwise, subject to the following:
a.
The applicant shall cause the existing WCSS to be removed within 90 days of completion of the replacement WCSS and the relocation or installation of the WCA. In any event, the existing WCSS shall be removed within 180 days of the city's final construction inspection of the replacement WCSS.
b.
If the location of the replacement WCSS is such that the existing WCSS must be moved before the replacement WCSS is constructed, temporary portable antennae support facilities may be used, but must be removed within 30 days of the completion of the replacement WCSS and the relocation or installation of the WCA. In any event, the temporary portable antennae facilities must be removed within 60 days of the city's final construction inspection of the replacement WCSS.
c.
The replacement WCSS shall meet all the general criteria found in subsection (f) herein for the installation of a new WCSS.
(d)
Planning commission review and approval. Wireless communications equipment not permitted by administrative approval shall be permitted in any zoning district upon the approval of a site plan by the planning commission found meeting the standards and requirements set for in this section.
(e)
Commitment to co-location. Co-location or the provision of more than one WCA on a single WCSS at a single location shall be required.
(1)
A new WCSS shall not be approved unless it can be demonstrated by the applicant that there is a need for the new WCSS which cannot be met by placing a WCA on an existing WCSS or on other structures or via the replacement of an existing WCSS. Information concerning the following factors shall be considered in determining that such need exists:
a.
Insufficient structural capacity of existing WCSSs or other suitable structures and infeasibility of reinforcing or replacing an existing WCSS.
b.
Unavailability of suitable locations to accommodate system design or engineering on existing WCSSs or other structures.
c.
Radio frequency interference or other signal interference problems at existing WCSS, or others structures;
d.
The cost of using an existing WCSS or other structure exceeds the costs of permitting and constructing a new WCSS.
e.
Other factors which demonstrate the reasonable need for the new WCSS.
f.
The denial of the application for a proposed WCSS will result in unreasonable discrimination among providers of functionally equivalent personal wireless communication servers and/or will have the effect of prohibiting the provision of personal wireless communications services.
g.
The refusal of owners or parties who control a WCSS or other structure to permit a WCA to be attached to such WCSS or other structure.
(2)
In furtherance of the city's objective of requiring co-location, where possible, should it be necessary to erect a new tower or similar structure, the applicant shall provide a letter of intent to lease excess space on a facility and commit itself to:
a.
Respond to any requests for information from another potential shared-use applicant;
b.
Negotiate in good faith and allow for leased shared-use, provided it can be demonstrated that it is possible; and
c.
Make no more than a reasonable charge, based upon fair market value, for a shared-use lease.
(f)
General criteria.
(1)
The applicant shall provide written evidence that all wireless communications equipment shall be constructed in compliance with current industry standards and those required by other agencies. These are: the FCC (regarding radio frequency transmission being compliant with 47 C.F.F. § 1.1310); the FAA (requiring the submittal of a "Determination of No Hazard to Air Navigation" resulting from an aeronautical study conducted under the provisions of 49 U.S.C., Section 44718 and if applicable Title 14, Part 77 of the Code of Federal Regulations); and, the TIA (requiring that communication towers be designed in accordance with the Telecommunications Industry Association ANSI/TIAA-222-G, "Structural Standards for Steel Antenna Towers and Antenna Supporting Structures").
(2)
The WCSS shall not be used for advertising purposes and shall not contain any signage except signage which shall show the identity of the service provider and emergency telephone numbers.
(3)
The WCSS may be located on a zoning lot containing other principal uses. The WCSS may be located within an area smaller than the minimum lot size of the applicable zoning district provided the zoning lot complies with the applicable minimum lot size for the existing principal use or is a legal nonconforming lot. The area within which the WCSS is located shall be the area subject to the requirements of this section, rather than the entire zoning lot, unless otherwise provided herein.
(4)
The WCSS shall meet all requirements of the zoning district in which it is located which are not inconsistent with this section. Minimum yard requirements shall be measured from the boundary of the zoning lot to the closest portion of the WCSS or the accessory equipment structure or storage area, whichever is closer.
(5)
The WCSS shall have a landscaped buffer so that the base of the WCSS and accessory equipment structure or storage area shall be screened from any right-of-way, residential use or residential zoning district. Such landscaped buffer shall be placed on the site in a manner which will maximize the aesthetic and environmental benefits while at the same time providing the visual buffer required hereby. Such landscaped buffer shall consist of hedges planted leaf to leaf which shall reach a height of not less than six feet at maturity and conifer trees planted on 15-foot centers along the approved buffer of a species approved by the planning commission unless safety requirements of the principal use requires otherwise (i.e., utility substations).
(6)
The construction of the WCSS shall be of monopole design unless it can be demonstrated that such design is not feasible to accommodate the user or co-location.
(7)
A WCSS shall have a non-reflective finish.
(8)
Adequate ingress and egress to the equipment compound shall be provided by means of a clearly limited and defined driveway not less than 12 feet wide and of asphalt or concrete construction.
(9)
A minimum of two parking spaces shall be provided on-site and interior to the perimeter barrier. The parking area shall be provided with a permanent durable and dustless surface and shall be so graded and drained as to dispose of all surface water accumulated within such parking area.
(10)
All WCSSs shall be equipped with an anti-climbing device to prevent unauthorized access.
(11)
No wireless communications equipment shall be located within a public right-of-way or within a private easement.
(12)
All towers, structures and related equipment shall be designed to be compatible and harmonious in terms of style and building materials to the surrounding area. When necessary to insure compatibility with the surrounding area, a visual simulation may be required of the applicant. A visual simulation consists of an artist's or architect's rendering, or a suitable photo rendering of how the tower will appear in the area proposed, taking into account existing buildings and natural features.
(13)
The maximum height of any new WCSS shall be as determined by the planning commission through the granting of site plan approval. The height permitted shall be the minimum height necessary to meet the applicant's engineering requirements for the site being considered, but in no instance shall it exceed a maximum height of 150 feet. Should co-location be proposed upon an existing structure, thereby qualifying for administrative approval, the height proposed may be approved by the city administrator.
(14)
Fences shall not exceed a height of eight feet and not contain barbed wire, razor wire, electric current, or charge of electricity.
(15)
Site selection shall be limited to the following hierarchy of sites. Sites shall be selected in descending order based upon their availability and ability to meet the transmission needs of the applicant. In the event a particular parcel is demonstrated to be unavailable and/or functionally inappropriate for transmission purposes, the applicant shall select the next available and appropriate site from the site options listed below.
a.
City owned site.
b.
Public or private school site.
c.
Other governmentally owned site.
d.
Religious or other quasi-public use site.
e.
Public park and other large permanent open-space areas.
f.
Other locations if none of the above is available.
(g)
Administrative review and approval process.
(1)
All administrative review applications must contain the following information:
a.
Administrative review application form signed by applicant.
b.
Copy of lease or letter of authorization from the property owner evidencing applicant's authority to pursue zoning application. Such submissions need not disclose financial lease terms.
c.
A site plan detailing proposed improvements which complies with the informational requirements of section 44-888 of the zoning ordinance, and the general criteria of subsection (f) herein.
d.
Administrative review application fee.
(2)
Approval procedures.
a.
Within 30 days of the receipt of an application for administrative review, the city administrator shall either: (1) inform the applicant in writing the specific reasons why the application is incomplete and does not meet the submittal requirements; or (2) deem the application complete. If the city administrator informs the applicant of an incomplete application within 30 days, the overall timeframe for review is suspended until such time that the applicant provides the requested information.
b.
An applicant that receives notice of an incomplete application may submit additional documentation to complete the application. An applicant's unreasonable failure to complete the application within 60 business days after receipt of written notice shall constitute a withdrawal of the application without prejudice. An application withdrawn without prejudice may be resubmitted upon the filing of a new application fee.
c.
The city administrator must issue a written decision granting or denying the request within 60 days of the submission of the initial application unless:
i.
The city administrator notified the applicant that its application was incomplete within 30 days of filing. If so, the remaining time from the 60 day total review time is suspended until the applicant provides the missing information; or
ii.
An extension of time is agreed to by the applicant.
Failure to issue a written decision within 60 days shall constitute an approval of the application.
d.
Should the city administrator deny the application, he/she shall provide written justification for the denial. The denial must be based on substantial evidence of inconsistencies between the application and local zoning requirements.
e.
An applicant may appeal any decision of the city administrator approving, approving with conditions, or denying an application or deeming an application incomplete, within 30 days to zoning board of appeals in accordance with article XVIII of the city zoning ordinance and subsection (j) herein.
(h)
Planning commission review and approval process.
(1)
All applications must contain the following information:
a.
A site plan review application form signed by the applicant.
b.
Copy of lease or letter of authorization from the property owner evidencing the applicant's authority to pursue zoning application. Such submissions need not disclose financial lease terms.
c.
A site plan prepared in accordance with section 44-888 of the zoning ordinance shall be submitted, showing the location, size, screening and design of all buildings and structures, including fences, and the location and size of outdoor equipment.
d.
The site plan shall also include a detailed landscaping plan where the support structure is being placed at a location which is not otherwise developed, or where a developed area will be disturbed. The purpose of landscaping is to provide screening and aesthetic enhancement for the structure base and equipment enclosure as required by subsection (f)(5) herein.
e.
The application shall include a signed certification by a state- licensed professional engineer with regard to the manner in which the proposed structure will fall, which certification will be utilized, along with other criteria such as applicable regulations for the district in question, in determining the appropriate setback to be required for the structure and other facilities.
f.
The application shall include a description of security to be posted at the time of receiving a building permit for the facility to ensure removal of the facility when it has been abandoned or is no longer needed, as provided in subsection (i) herein. In this regard, the security shall, at the election of the applicant, be in the form of: (1) cash; (2) surety bond; (3) letter of credit; or, (4) an agreement in a form approved by the city attorney and recordable at the county office of the register of deeds, to be held by the city and recorded if needed, establishing a promise of the applicant and owner of the property to remove the facility in a timely manner as required under this section, with the further provision that the applicant and owner shall be responsible for the payment of any costs and attorney's fees incurred by the city in securing removal.
g.
The application shall contain information showing the geographic search area within which the proposed WCSS must be located and shall also provide locations of all structures of similar height within and adjacent to the search area.
h.
The application shall include a map showing existing and known proposed wireless communications equipment facilities within the city, and further showing existing and known proposed wireless communications equipment facilities within areas surrounding the borders of the city in the location, and in the area, which are relevant in terms of potential co-location or in demonstrating the need for the proposed facility. If and to the extent the information in question is on file with the city, the applicant shall be required only to update it as needed. Any confidential commercial information which, if released would result in commercial disadvantage to the applicant, may be submitted with a request for confidentiality in connection with the development of governmental policy. (MCL 15.243(1)(g)).
i.
A statement that the applicant has considered the likely effects of the installation of the wireless communications equipment on nearby land use values and has concluded that there is no more suitable location reasonably available from which adequate service to the area can be provided, and that there is no reasonably available opportunity to locate its antennas and related facilities on an existing structure, including documentation of attempts to locate its antennas and related facilities on an existing structure.
j.
If co-location is not part of the application then the applicant must include a statement in the application as to why co-location is not possible.
k.
The name, address and phone number of the person to contact for engineering, maintenance and other notice purposes. This information shall be continuously updated during all times the wireless communications equipment is on the premises.
(2)
Approval procedures.
a.
Within 30 days of the receipt of an application for site plan review, the city administrator shall either: (1) inform the applicant in writing the specific reasons why the application is incomplete and does not meet the submittal requirements; or (2) deem the application complete. If the city administrator informs the applicant of an incomplete application within 30 days, the overall timeframe for review is suspended until such time that the applicant provides the requested information.
b.
If an application is deemed incomplete, an applicant may submit additional materials to complete the application. An applicant's unreasonable failure to complete the application within 60 business days after receipt of written notice shall constitute a withdrawal of the application without prejudice. An application withdrawn without prejudice may be resubmitted upon the filing of a new application fee.
c.
An application deemed complete shall be placed on the agenda of the planning commission at their next regularly scheduled meeting for their consideration.
d.
The planning commission shall review the application pursuant to section 44-886 of the zoning ordinance and within 60 days, either deny, approve, or conditionally approve the site plan.
e.
The applicant shall be notified of the planning commission's decision in writing by the city administrator within 150 days of the submission of the initial application unless:
i.
The city administrator notified the applicant that his/her application was incomplete within 30 days of filing. If so, the remaining time from the 150-day total review time is suspended until the applicant provides the missing information; or
ii.
An extension of time is agreed to by the applicant.
Failure to issue a written decision within 150 days shall constitute an approval of the application.
(i)
Removal of an abandoned WCSS. Any WCSS which is abandoned shall immediately be removed or demolished. For the purposes of this section, abandoned shall mean that no WCA or other commercial antenna has been operational and located on the WCSS for 180 days or more. Where the removal or demolition of an abandoned WCSS has not been lawfully completed within 60 days, and after at least 30 days written notice, the city may remove or secure the removal of the facility or required portions thereof, with its actual cost and reasonable administrative charge to be drawn or collected from the security posted at the time application was made for establishing the WCSS or the city may place a lien on the property to cover costs for the removal of the WCSS. A lien on the property shall be superior to all other liens except taxes.
(j)
Variances and appeals. Variances from this section may be requested from the zoning board of appeals in accordance with article XVII of the city zoning ordinance.
(Ord. No. 384, 10-10-2016)