§ 15-25. Telecommunications facilities.
(a)
Findings. The Communications Act of 1954, as amended, by the Telecommunications Act of 1996 (The "Act") grants the Federal Communications Commission (FCC) exclusive jurisdiction over:
(1)
The regulation of the environmental effects of radio frequency (RF) emission from telecommunications facilities; and
(2)
The regulation of radio signal interference among user of the RF spectrum.
The city's regulation of towers and telecommunications facilities of the city will not have the effect of prohibiting any person from providing wireless telecommunications services in violation of the Act.
(b)
Purposes. The general purpose of this chapter is to regulate the placement, construction, and modification of towers and telecommunications facilities 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 the city.
Specifically, the purposes of this chapter are:
(1)
To regulate the location of towers and telecommunications facilities in the city;
(2)
To protect residential areas and land uses from potential adverse impact of towers and telecommunications facilities;
(3)
To minimize adverse visual impact of towers and telecommunications facilities through careful design, siting, landscaping, and innovative camouflaging techniques;
(4)
To promote and encourage shared use/co-location of towers and antenna support structures as a primary option rather than construction of additional single-use towers;
(5)
To promote and encourage utilization of technological designs that will either eliminate or reduce the need for erection of new tower structures to support antennas and telecommunications facilities;
(6)
To avoid potential damage to property caused by towers and telecommunications facilities by ensuring such structures are soundly and carefully designed, constructed, modified, maintained, and removed when no longer used or are determined to be structurally unsound; and
(7)
To ensure that towers and telecommunications facilities are compatible with surrounding land uses.
(c)
Definitions. The following words, terms, and phrases, when used in this section, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Antenna support structure: Any building or structure other than a tower which can be used for location of telecommunications facilities.
Applicant: Any person that applies for a tower development permit.
Application: The process by which a person or owner submits a request to develop, construct, build, modify, or erect a tower or telecommunications facility upon a parcel of land within the city. Application includes all written documentation, verbal statements, and representations in whatever form or forum made by an applicant to the city concerning such a request.
Engineer: Any professional engineer licensed by the State of West Virginia, and/or any broadcast/telecast, RF, or electronics engineer duly qualified or certified, but not registered by the State of West Virginia.
Monopole: Any tower consisting of a single pole, constructed without guyed wires and anchors.
Owner: Any person with fee title or a long-term (exceeding ten (10) years) leasehold to any parcel of land within the city who desires to develop or construct, build, modify, or erect a tower upon such parcel of land.
Person: Any natural person, firm, partnership, association, corporation, company, or other legal entity, private or public, whether for profit or not for profit.
Stealth: Any tower or telecommunications facility which is designed to enhance compatibility with adjacent land uses, including, but not limited to, architecturally screened, roof-mounted antennas, antennas integrated into architectural elements, and towers designed to look other than like a tower such as light poles, power poles, and trees. The term "stealth" does not necessarily exclude the use of uncamouflaged lattice, guyed, or monopole tower designs.
Telecommunication facility: Any system or facility including cables, wires, lines, wave guides, antennas, and any other equipment or facilities associated with the transmission or reception of communications which a person seeks to located or has installed upon or near a tower or antenna support structure. This shall include, but not be limited to, any device, system or facility that transmits and/or received electromagnetic signals for the purpose of transmitting analog or digital voice or data communications, microwave dishes, direction antennas such as panels, omni-directional antennas such as whip antennas, horns, and other types of equipment for the transmission or receipt of such signals, equipment buildings, shelters, or cabinets, or other accessory development associated with the transmission or reception of communications. This shall also include any device intended for receiving or transmitting television, radio, digital, microwave, cellular, personal communication service (PCS), paging, specialized mobile radio, enhanced specialized mobile radio, or similar forms of wireless electronic communication. However, telecommunications facilities shall not include:
(1)
Any satellite earth station antenna two (2) meters in diameter or less which is located in an area zoned industrial or commercial; or
(2)
Any satellite earth station antenna one (1) meter or less in diameter, regardless of zoning category.
Tower: Any pole, spire, structure, self-supporting lattice, guyed, or monopole structure constructed from grade, including lines, cables, wires, braces, and mast, which supports telecommunications facilities. A tower may include, but not be limited to, radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers, and personal communication service (PCS) towers. The term "tower", as applied in this section, shall not include amateur radio operators' equipment as licensed by the FCC.
(d)
Development of towers; permitted uses, restrictions, and application requirements for towers and telecommunications facilities.
(1)
A tower shall be a permitted use of land in zoning district M manufacturing. No person shall build, erect, or construct a tower upon any parcel of land within a zoning district designated M manufacturing unless a permit shall have been issued by the city. Applications shall be made to the code enforcement officer in the manner provided in this chapter.
a.
Towers in the M manufacturing district are exempt from the maximum height restrictions of that district. Towers shall be permitted to a height of one hundred (100) feet. Towers in excess of one hundred (100) feet are classified as a conditional use and must be approved by the board of zoning appeals as a conditional use in accordance with section 15-25(r), criteria for conditional use approval.
b.
Towers are not a permitted use in any other zoning district within the city.
(2)
A tower may be a conditional use of land in the zoning district b-2 mall-general commercial business district if approved by common council as a conditional use in accordance with section 15-25(r), criteria for conditional use approval. No person shall build, erect, or construct a tower upon any parcel of land within a B-2 mall-general commercial business district unless a permit shall have been issued by the city. Applications shall be made to the code enforcement officer in the manner provided in this chapter.
a.
Towers classified as a conditional use or requiring approval as conditional use may not exceed a maximum height of two hundred seventy five (275) feet in a B-2 mall-general commercial business district.
(3)
No new tower shall be built, constructed, or erected in the city unless the tower is capable of supporting another person's operation telecommunications facilities comparable in weight, size, and surface area to the telecommunications facilities installed by the applicant on the tower within six (6) months of the completion of the tower construction.
(4)
An application to develop a tower or telecommunication facility shall include:
a.
The name, address, and telephone number of the owner and lessee of the parcel of land upon which the tower is situated. If the applicant is not the owner of the parcel of land upon which the tower is situated, the written consent of the owner shall be evidenced in the application.
b.
The legal description, map/parcel number, and address of the parcel of land upon which the tower is situated.
c.
The names, addresses, and telephone numbers of all owners of either towers or usable antenna support structures within a one-half (½) mile radius of the proposed new tower site, including city-owned property.
d.
A description of the design plan proposed by the applicant in the city. Applicant must identify its utilization of the most recent technological design including microcell design as part of the design plan. The applicant must demonstrate the need for towers and why design alternatives, such as the use of microcell design, cannot be utilized to accomplish the provision of the applicant's telecommunications services.
e.
An affidavit attesting to the fact that the applicant made diligent, but unsuccessful, efforts to obtain permission to install or co-locate the applicant's telecommunications facilities on city-owned towers or usable antenna support structures located within a one-half (½) mile radius of the proposed tower site.
f.
An affidavit attesting to the fact that the applicant made diligent, but unsuccessful, efforts to install or co-locate the applicant's telecommunications facilities on towers or usable antenna support structures owned by other persons located within a one-half (½) mile radius of the proposed tower site.
g.
Written technical evidence from a duly qualified broadcast/telecast, RF, or electronics engineer that the proposed tower or telecommunications facilities cannot be installed or co-located on another person's tower or usable antenna support structures owned by other persons located within a one-half (½) mile radius of the proposed tower site.
h.
A written statement from a duly qualified broadcast/telecast, RF, or electronics engineer that the construction and placement of the tower will not interfere with public safety communications and the usual and customary transmission or reception of radio, television, or other communications services enjoyed by adjacent residential and non-residential properties.
i.
Written, technical evidence from an engineer that the proposed structure meets the standards set forth in section 15-25(f), structural requirements of this chapter.
j.
Written, technical evidence from a West Virginia registered professional engineer certifying compliance with the state fire code and building code of the City of Beckley that the proposed site of the tower or telecommunications facilities does not pose a risk of explosion, fire, or other dangers to life or property due to its proximity to volatile, flammable, explosive, or hazardous materials such as LP gas, propane, gasoline, natural gas, or corrosive or other dangerous chemicals.
k.
In order to assist city staff in evaluating visual impact, the applicant shall submit color photo simulations showing the proposed site of the tower with a photo realistic representation of the proposed tower as it would appear viewed from the closest residential property and from adjacent roadways.
l.
Elevation drawings of the proposed facility, and any other proposed structures, showing height above ground level. A landscaping plan indicating the proposed placement of the facility on the site; location of existing structures, trees, and other significant site features; the type and location of plants proposed to screen the facility; the method of fencing, the color of the structure, and the proposed lighting method.
m.
A narrative discussing the extent to which the proposed telecommunication facility and tower would be visible from, or within, a designated scenic resource; the tree line elevation of vegetation within one hundred (100) feet of the facility; and the distance to the proposed facility from the designated scenic resources noted viewpoints. A written description of how the proposed facility fits into the applicant's telecommunications network. This submission requirement does not require disclosure of confidential business information.
n.
Identification of districts, sites, building, structures, or objects, significant in American history, architecture, archaeology, engineering, or culture that are listed, or eligible for listing, in the National Register of Historic Places (see 16 U.S.C. 470w(5); 36 CFR 60 and 800).
o.
A signed statement stating that the owner of the wireless telecommunications tower and his or her successors and assigns agree to:
1.
Respond in a timely, comprehensive manner to a request for information from a potential co-location applicant, in exchange for a reasonable fee not in excess of the actual cost of preparing a response;
2.
Negotiate, in good faith, for shared use of the wireless telecommunications tower by third parties;
3.
Allowed shared use of the wireless telecommunications tower if an applicant agrees, in writing, to pay reasonable charges for co-location; and
4.
Require no more than a reasonable charge for shared use, based on community rates and generally accepted accounting principles. This charge may include, but is not limited to, a pro rata share of the cost of site selection, planning project administration, land costs, site design, construction, financing, return on equity, depreciation, and all of return on equity, depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference. The amortization of the above costs by the facility owner shall be accomplished at a reasonable rate over the useful life span of the tower.
p.
A form or surety approved by the city to pay for the costs of removing the tower if it is abandoned in accordance with section 15-25(s).
q.
The Act gives the FCC sole jurisdiction of the field of regulation of RF emissions and does not allow the city to condition or deny on the basis of RF impacts the approval of any telecommunications facilities (whether mounted on towers or antenna support structures) which meet FCC standards. In order to provide information to its citizens, the city shall make available, upon request, copies of ongoing FCC information and RF emission standards for telecommunications facilities transmitting from towers or antenna support structures. Applicants shall be required to submit information on the proposed power density of the proposed telecommunications facilities and demonstrate how this meets FCC standards.
r.
A copy of the applicant's FCC license, or, if the applicant is not an FCC license holder, a copy of at least one (1) letter of commitment from an FCC license holder to locate at least one (1) telecommunication facility on the applicant's tower.
s.
A letter from the owner of the property attesting that the property used as a telecommunication facility will be maintained, and the site and structures will be in good condition and free from trash, outdoor storage, weds, and other debris.
t.
Payment of an application fee, non-refundable, in the amount of one thousand five hundred dollars ($1,500.00) payable to the City of Beckley.
u.
Payment of eight thousand five hundred dollars ($8,500.00) to the City of Beckley to be deposited in an escrow account by the recorder-treasurer for consulting costs in evaluating the application. Such consultants as the city may contract with, or employ, to evaluate an application will submit itemized invoices for specified services rendered and time spent, which will be paid from the escrow amount upon approval of the chief, code enforcement department, and the recorder-treasurer. Upon issuance of a permit, all monies remaining in the escrow account shall be returned to the applicant. In the event approved costs leave the escrow account with a balance of two thousand five hundred dollars ($2,500.00) or less, the applicant shall be so notified and required to remit to that escrow account, upon written request of the recorder-treasurer within seven (7) days, not less than three thousand dollars ($3,000.00) or more than six thousand dollars ($6,000.00) to complete the review process.
(5)
Upon receipt of an application, the code enforcement department shall provide the applicant with a dated receipt. Within ninety (90) working days of the receipt, the code enforcement department shall review the application and determine if the application meets the submission requirements. If complete, the department will notify the applicant. The department may deny an application on the basis that the applicant has not satisfactorily supplied the information required in this subsection. Complete applications shall be reviewed by the city in a prompt manner and all decisions shall be supported, in writing, setting forth the reasons for approval or denial.
(e)
Setbacks.
(1)
The setback requirements of the applicable zoning districts shall not apply to towers or telecommunications facilities. Instead, all self-supporting towers and telecommunications facilities shall be set back from all lot lines a distance equal to fifty (50) per cent of the height of the towers and telecommunications facilities. All guyed towers and telecommunications facilities shall be set back from all lot lines a distance equal to eighty (80) per cent of the height of the tower and telecommunications facilities.
(2)
Setback requirements for towers shall be measured from the base of the towers to the property line of the parcel of land on which it is located.
(3)
Setback requirements may be modified as provided in section 15-25(r), criteria for conditional use approval, when placement of a tower in a location which will reduce the visual impact can be accomplished and will be classified as a conditional use. For example, adjacent to trees may visually hide the tower.
(4)
No wires, cables, braces, or any part of any tower or telecommunications facility may, in anyway, interfere with pedestrian or vehicular traffic or be placed on or be located above any public right-of-way.
(f)
Structural requirements. All towers must be designed and certified by a West Virginia registered professional engineer to be structurally sound and, at minimum, in conformance with the building code and any other standards outlined in this chapter. All towers in operation shall be fixed to land.
(g)
Separation requirements. For the purpose of this section, the separation distances between towers shall be measured by drawing or following a straight line between the base of the existing or approved structure and the proposed base, pursuant to a site plan of the proposed tower. The minimum tower separation distances from other towers shall be calculated and applied irrespective of city jurisdictional boundaries.
(1)
Proposed towers must meet the following minimum separation requirements from existing towers or towers which have a permit but are not yet constructed at the time a permit is granted pursuant to this Code:
a.
Monopole tower structures shall be separated from all other towers, whether monopole, self-supporting lattice, or guyed by a minimum of seven hundred fifty (750) feet;
b.
Self-supporting lattice or guyed tower structures shall be separated from all other self-supporting or guyed towers by a minimum of fifteen hundred (1,500) feet;
c.
Self-supporting lattice or guyed tower structures shall be separated from all monopole towers by a minimum of seven hundred fifty (750) feet.
(h)
Method of determining tower height. Measurement of tower height for the purpose of determining compliance with all requirements of this section shall include the tower structure itself, the base pad, and any other telecommunications facilities attached thereto which extend more than twenty (20) feet over the top of the tower structure itself. Tower height shall be measured from grade.
(i)
Illumination. Towers shall not be artificially lighted except as required by the Federal Aviation Administration (FAA). Upon commencement of construction of a tower, in cases where there are residential uses located within a distance which is three hundred (300) per cent of the height of the tower from the tower and where required by federal law, dual mode lighting shall be requested from the FAA.
(j)
Exterior finish. Towers and/or telecommunications facilities allowed as a conditional use shall have an exterior finished which is of natural or subdued color to maximize compatibility with adjacent land uses as approved by common council, subject however to required FAA paintings or markings.
(k)
Landscaping, screening, fencing, and buffer requirements.
(1)
All landscaping on a parcel of land containing towers, antenna support structures, or telecommunications facilities shall be in accordance with the applicable landscaping requirements in the zoning district where the tower, antenna support structure, or telecommunications facilities are located. Landscaping shall be installed on the outside of any fencing.
(2)
All telecommunications facilities, towers, and antenna support structures shall be screened and landscaped. Such screening and landscaping shall include one row of evergreen shrubs or trees capable of forming a continuous hedge of at least six (6) feet in height within two (2) years of planting. A maintenance plan for the landscape materials shall also be submitted at the time of the application. Screening and landscaping requirements may be modified as provided in section 15-25(r), criteria for conditional use approval, when the substitution of other architectural screening plans such as a decorative fence or masonry wall in lieu of planted materials would reduce visual impact and will be classified as a conditional use.
(3)
All sites shall be reasonable protected against unauthorized climbing. The bottom of the tower, measured from ground level to twelve (12) feet above ground level, shall be designed in a manner to discourage unauthorized climbing. Sites shall have at least an eight-foot fence topped by a one-foot high, three-strand, barbed wire projection angled out surrounding the tower and telecommunications facilities. Landscaping must be installed on the outside of any fencing.
(4)
Advertising or identification of any kind on towers, antenna support structures, and telecommunications facilities shall be prohibited, except for applicable warning and equipment information signage required by the manufacturer or by federal, state, or local regulations.
(5)
There shall be a buffer between towers and all residentially-zoned lands. Towers shall be separated from all residentially-zoned lands by a minimum of two hundred (200) feet or two hundred (200) per cent of the height of the proposed tower, whichever is greater. Tower separation distances from residentially-zoned lands shall be measured from the base of a tower to the closest point of residentially-zoned property. The minimum tower separation distances from residentially-zoned land and from other towers shall be calculated and applied irrespective of city jurisdictional boundaries.
(l)
Access. A parcel of land upon which a tower is located must provide access to at least one (1) paved vehicular parking space on site.
(m)
Stealth design. All towers which must be approved as a conditional use shall be of stealth design.
(n)
Telecommunications facilities on antenna support structures. Any telecommunications facilities which are not attached to a tower may be approved as a permitted use, by administrative review of the code enforcement department, provided the application is in accordance with the provisions stated in section 15-25(1)b.1., 2., 3., and 4., criteria for conditional use approval, and the telecommunications facilities will be located on any antenna support structure that does not increase the height or base of the antenna support structure and any additional external equipment must be completely screened from view and shall be permitted in any zoning district. Any other telecommunications facilities not attached to a tower shall require the owner of such structure, or the applicant, in addition to documenting compliance with requirements of section 15-25(r), criteria for conditional use approval, to establish the following at the time plans are submitted for a permit:
(1)
That the height from grade of the telecommunications facilities shall not exceed the height from grade of the antenna support structure by more than twenty (20) feet, and shall not be permitted in any residential zone.
(2)
That any telecommunications facilities and their appurtenances located above the primary roof of an antenna support structure, shall not be permitted in any residential zone and shall be set back one (1) foot from the edge of the primary roof for each one (1) foot in height above the primary roof of the telecommunications facilities. This setback shall not apply to telecommunications facilities and their appurtenances located above the primary roof of an antenna support structure, if such facilities are appropriately screened from view through the use of panels, walls, fences, or other screening techniques approved as provided in section 15-25(r)(1)b, criteria for conditional use approval, and will be classified as a conditional use. Setback requirements shall not apply to stealth antennas which are mounted to the exterior of antenna support structures below the primary roof, but which do not protrude more than eighteen (18) inches from the side of such an antenna support structure.
(o)
Modification of towers.
(1)
A tower existing prior to the effective date of this chapter, which was in compliance with the city's zoning regulations immediately prior to the effective date of this chapter, may continue in existence as a nonconforming structure. Such nonconforming structures may be modified or demolished and rebuilt without complying with any of the additional requirements of this section, except for sections 15-25(g), separation requirements, 15-25(k), landscaping, screening, fencing, and buffer requirements, 15-25(p), certification and inspections, and 15-25(q), maintenance, provided:
a.
The tower is being modified or demolished and rebuilt for the sole purpose of accommodating, within six (6) months of the completion of the modification or rebuild, additional telecommunications facilities equal in weight, size, and surface area to the discrete operating telecommunications facilities of any person currently installed on the tower; and,
b.
An application for a permit is made to the code enforcement department which shall have the authority to issue a permit without further approval. The grant of a permit pursuant to this section allowing the modification or demolition and rebuild of an existing nonconforming tower shall not be considered a determination that the modified or demolished and rebuilt tower is conforming; and,
c.
The height of the modified or rebuilt tower and telecommunications facilities attached thereto do not exceed the maximum height allowed under the city zoning regulations or the height of the nonconforming structure, tower, or telecommunications facilities before the modification or rebuild, which is greater.
(2)
Except as provided in this section, a nonconforming structure or use may not be enlarged, increased in size, or discontinued in use for a period of more than one hundred eighty (180) days. This chapter shall not be interpreted to legalize any structure or use existing at the time this chapter is adopted which structure or use is in violation of the Code prior to enactment of this chapter.
(p)
Certifications and inspections.
(1)
All towers shall be certified by an engineer to be structurally sound and in conformance with the requirements of the building code and all other construction standards set forth by the city's code and federal and state law. For new monopole towers, such certification shall be submitted with an application pursuant to section 15-25(d) of this chapter and every five (5) years thereafter. For existing monopole towers, certification shall be submitted within sixty (60) days of the effective date of this chapter and then every five (5) years thereafter. For new lattice of guyed towers, such certification shall be submitted with an application pursuant to section 15-25(d) of this chapter and every two (2) years thereafter. For existing lattice or guyed towers, certification shall be submitted within sixty (60) days of the effective date of this chapter and then every two (2) years thereafter. The tower owner may be required by the city to submit more frequent certification should there be reason to believe that the structural and electrical integrity of the tower is jeopardized.
(2)
The city or its agents shall have authority to enter onto the property upon which a tower is located, between the inspection and certifications required above, to inspect the tower for the purpose of determining whether it complies with the building code and all other construction standards provided by the city code and federal and state law.
(3)
The city reserves the right to conduct such inspection at any time upon reasonable notice to the tower owner. All expenses related to such inspections by the city shall be borne by the tower owner.
(q)
Maintenance.
(1)
Tower owners shall, at all times, employ ordinary and reasonable care and shall install and maintain in use nothing less than commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public.
(2)
Tower owners shall install and maintain towers, telecommunications facilities, wires, cables, fixtures, and other equipment in substantial compliance with the requirements of the city/state building code and all FCC, state, and local regulations and in such manner that will not interfere with the use of other property.
(3)
All towers, telecommunications facilities, and antenna support structures shall, at all times, be kept and maintained in good condition, order, and repair so that the same shall not menace or endanger the life or property of any person.
(4)
All maintenance or construction of towers, telecommunications facilities, or antenna support structures shall be performed by licensed maintenance and construction personnel.
(5)
All towers shall maintain compliance with current RF emission standards of the FCC.
(6)
In the event that the use of a tower is discontinued, the tower owner shall provide written notice to the city of its intent to discontinue use and the date when the use shall be discontinued.
(r)
Criteria for conditional use approval.
(1)
Towers or telecommunications facilities classified as a conditional use or requiring approval as a conditional use according to this chapter must be approved as a conditional use in accordance with the following:
a.
In addition to the requirements for a tower application, the application shall include the following:
1.
A description of how the plan addresses any adverse impact that might occur.
2.
A description of offsite or onsite factors which mitigate any adverse impact which might occur.
3.
A technical study that documents and supports the criteria submitted by the applicant upon which the request for conditional use is based. The technical study shall be certified by an engineer and shall document the existence of the facts related to the proposed modifications and its relationship to surrounding rights-of-way and properties.
4.
For a modification of the setback requirement, the application shall identify all parcels of land where the proposed tower could be located, attempts by the applicant for co-location, and the result of such attempts.
5.
The applicant seeking a conditional use permit shall pay the cost of review by the city's engineer or engineer under contract to the city to determine whether the application and technical studies support the basis for the conditional use requested.
b.
The proposed conditional uses will be reviewed based on the following criteria:
1.
That the tower of telecommunications facility, as proposed, will be compatible with, and not adversely impact, the character and integrity of surrounding properties.
2.
Offsite or onsite conditions exist which mitigate the adverse impact, if any, created by the conditional use proposal.
3.
That proposed towers, antenna support structures, and telecommunications facilities utilize building materials, colors, and textures that effectively blend the tower facilities into the surrounding setting and environment to the greatest extent possible. Metal towers shall be constructed of, or treated with, corrosive resistant materials. Outside of the manufacturing districts, unpainted, galvanized metal, or similar towers shall be prohibited, unless a self-weathering tower is determined to be more compatible with the surrounding area.
4.
In addition, conditions may be imposed on the site where the tower or telecommunications facility is to be located if such conditions are reasonably necessary to preserve the character and integrity of the neighborhoods affected by the proposed tower and mitigate any adverse impacts which arise in connection with the approval of the conditional use.
(2)
In addition to the requirements of this section, in the following cases, the applicant must be demonstrate, with written evidence, the following:
a.
In the case of a requested modification to the setback requirements of section 15-25(e), that the setback requirements cannot be met on the parcel of land upon which the tower is proposed to be located and the alternative for the person is to located the tower at another site which is closer in proximity of a residentially-zoned land.
b.
In the case of a request for modification to the separation requirements from other towers of section 15-25(g), separation requirements, that the proposed site is zoned manufacturing and the proposed site is at least double the minimum standard for separation from residentially-zoned lands as provided for in section 15-25(g).
c.
In the case of a request for modification of the buffer requirements from residentially-zoned land of section 15-25(k), that the person provides written technical evidence from an engineer that the proposed tower and telecommunications facilities must be located at the proposed site in order to meet the coverage requirements of the applicant's wireless communications system, and that the person is willing to create approved landscaping and other buffers to screen the tower from being visible to residentially-zoned property.
d.
In the case of a request for modification of the height limits for towers and telecommunications facilities, the modification is necessary to:
1.
Facilitate co-location of telecommunications facilities in order to avoid construction of a new tower, or
2.
To meet the coverage requirements of the applicant's wireless communications system, which requirements must be documented with written, technical evidence from an engineer that demonstrates that the height of the proposed tower is the minimum height required to function satisfactorily, and no tower that is taller than such maintained height shall be approved. There must be evidence sufficient to support findings that the additional height is needed or that the surrounding topography, structures, or other facts make the height limitation impractical in order to justify a conditional use for the modification of the height limits for towers and telecommunications facilities. Further, there must be evidence sufficient to support findings that the increase in the height limitation does not adversely impact surrounding uses. An applicant or owner may not request a conditional use to modify the height limits for towers or telecommunications facilities located in an B-2 mall-general commercial business district if the proposed tower or telecommunications facility would exceed a maximum height of two hundred seventy five (275) feet.
(3)
Towers shall be of a monopole design. The substitution of alternative tower types in cases where structural, radio frequency, and design considerations, locations, or the number of co-locators suggests a tower other than a monopole may be considered.
(4)
In prominent locations, highly visible from adjacent residential areas or public spaces, and as a condition of approval, antenna support structures may be required to be located underground.
(5)
The board of zoning appeals shall make findings and recommendations addressing the criteria set forth in this section and approve, disapprove or amend the application. Its decision may be appealed to Raleigh County circuit court within thirty (30) days.
(s)
Abandonment.
(1)
If any tower shall cease to be used for a period of three hundred sixty-five (365) consecutive days, the city shall notify the owner, with a copy to the applicant, that the site will be subject to a determination by the city that such site has been abandoned. The owner shall have thirty (30) days from receipt of said notice to show, by a preponderance of the evidence, that the tower has been in use or under repair during the period. If the owner fails to show that the tower has been in use or under repair during the period, the city shall issue a final determination of abandonment for the site. Upon issuance of the final determination of abandonment, the owner shall, within seventy-five (75) days, dismantle and remove the tower.
(2)
To secure the obligation set forth in this section, the applicant (and/or owner) shall post a bond or other instrument in an amount equal to the anticipated cost of removal of the tower at the time an application is made. The anticipated cost of removal shall be based upon a certification from a professional engineer. The bond shall be in such form as to be acceptable to the recorder-treasurer.
(t)
Severability. That if any clause, section, or other part of this section shall be held invalid or unconstitutional by any court of competent jurisdiction, the remainder of this section shall not be affected thereby but shall remain in full force and effect.
(u)
Towers of private reception of TV and radio signals; emergency telecommunications facilities.
(1)
Notwithstanding any other provisions to the contrary, towers and antennas designed for private reception of television and radio signals, used for amateur or non-commercial purposes, shall be permitted in all district, provided such freestanding antennas and towers do not exceed thirty-five (35) feet in height. Rooftop mounted antennas shall not exceed fifteen (15) feet in height. This includes, but is not limited to, amateur (ham) radio stations licensed by the FCC, and parabolic antennas less than seven (7) feet in diameter that are an accessory use of the property for private or recreational reception of television or radio signals. Only one (1) freestanding tower or antenna shall be allowed per residential lot. No more than one (1) roof-mounted antenna or satellite receiver or dish will be allowed per residential lot.
(2)
Emergency telecommunications facilities and temporary wireless communication facilities for emergency communications by public officials are exempt from the provision of this chapter.
(v)
Appeal From code enforcement department decision. Any person aggrieved by a decision of the code enforcement department may appeal the decision to the board of zoning appeals, as provided by West Virginia Code, section 8-24-56. Written notice of an appeal must be filed with the board of zoning appeals within thirty (30) days of the decision. The notice of appeal shall clearly state the reasons for the appeal.
(w)
Administration. If the code enforcement department finds that any provision of this chapter has been violated, the code enforcement department shall notify, in writing, the person responsible for such violation, indicating the nature of the violation, and ordering the action necessary to correct it. The code enforcement department shall order correction of the violation and may take any other legal action to ensure compliance with this chapter.
(x)
Conflicts (repeal of ordinances). That all ordinances, or parts of ordinances in conflict herewith, are hereby repealed.
(Ord. of 8-13-02)