(A) Illegally established facilities. Any wireless communications facility constructed or erected in violation of this chapter or any prior law, ordinance or regulation shall be subject to immediate abatement.
(B) Nonconforming wireless communications facilities.
(1) All wireless communications facilities, in any zone, lawfully constructed and erected prior to the effective date of this subchapter, which do not conform to the requirements of the provisions of this subchapter for the particular zoning district in which they are located, shall be accepted as nonconforming uses for a period of five years from the effective date of this subchapter. Thereafter, the wireless communications facilities shall be subject to abatement as set forth below via modification to comply with the standards of this subchapter. Any modifications shall be subject to review by the Director, who shall assess the modification and its compliance with this subchapter or any other applicable section of this code. All decisions concerning any modification review conducted by the Director shall be final, unless appealed to the Commission in accordance with the provisions of § 153.210.150.
(2) When modification is insufficient to meet the requirements of this subchapter, wirleless communications facilities shall be subject to abatement via relocation or removal.
(C) Notice of nonconforming wireless communications facilities.
(1) Upon the determination of the Director that the provisions of this subchapter apply to a given parcel of land on which a wireless communications facility is located, the Director shall send a notice thereof by United States certified mail, return receipt requested, or other method providing verification of delivery, to the owner thereof as shown on the last equalized assessment roll, and shall cause such property to be posted with a similar notice.
(2) The notice provided for in this section shall state that the property and wireless communications facility in question is a nonconformity, shall state the date of abatement established in subsection B of this section, and shall state that an administrative hearing before the Commission may be requested within 15 days.
(D) Hearing.
(1) If a hearing before the Commission is requested, the hearing procedures established in § 153.200.080 shall apply.
(2) At the close of the hearing, the Commission shall find and determine whether the nonconformity should be abated and all facts in support thereof, whether the owner of the property can amortize his/her investment in the term for abatement provided in subsection B of this section, and if not, what term for abatement should be provided.
(3) The decision of the Commission and the findings in support thereof shall be in the form of a written order and shall be served upon the property owner personally or by United States certified mail, return receipt requested, or other method providing verification of delivery, within ten days after the decision is rendered.
(4) The decision of the Commission may be appealed to the Council pursuant to § 153.200.090.
(E) Extension of time.
(1) The Commission, or Council on appeal, shall grant an extension of the time for abatement of nonconformity where it finds that an unreasonable hardship would otherwise be imposed on the property owner.
(2) The Commission, or Council on appeal, shall consider the following factors, among others, in determining whether to grant an extension of time and the length of the term:
(a) The nature of the use;
(b) The amount of the owner’s investment in improvements;
(c) The convertibility of improvements to permitted uses;
(d) The character of the neighborhood;
(e) The detriment, if any, caused to the neighborhood by continuance of the nonconforming use; and
(f) The amount of time needed to amortize the investment.
(E) Proof of amortization. The Commission, or Council on appeal, shall base its decision as to the length of the permitted amortization period on any competent evidence presented, including, but not limited to, the depreciation schedule attached to the owner’s latest federal income tax return.
(F) Relocation. Where the Commission finds that a nonconforming wireless communications facility, either in its present condition or as modified, can be used in compliance with the standards set forth in this subchapter for the zoning district in which it is located, the nonconforming facility may be granted an extension sufficient to permit it to relocate on the site wherein such use is permitted and which has substantially equivalent utility for the use.
(Ord. 1346, passed 5-2-12)