(A) Intent. The intent of this Zoning Code is to regulate the placement, construction, and modification of facilities and their support structures in order to promote and protect the public health, safety, and welfare, while at the same time not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in the Miami Valley Region. Specifically, the purposes of this section are:
(1) To direct the location of various types of towers and facilities into appropriate areas of the village;
(2) To protect residential areas and land uses from potential adverse impacts of towers and facilities;
(3) To minimize adverse visual impacts of towers and 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 avoid potential damage to adjacent properties caused by towers and facilities by ensuring such structures are soundly-designed, constructed and modified; are appropriately maintained; and are fully removed; and
(6) To the greatest extent feasible, ensure that towers and facilities are compatible with surrounding land uses and natural settings.
(B) Applicability. All towers, antenna support structures and facilities, any portion of which are located within the village, are subject to this Zoning Code. Except as provided herein, any use being made of an existing tower or antenna support structure on the effective date of this Zoning Code shall be deemed a non-conforming structure and allowed to continue, even if in conflict with the terms of this Zoning Code. Any tower site that has received approval in the form of a building/zoning permit issued by the village, but has not yet been constructed or located, shall be considered a non-conforming structure so long as such approval is current and not expired.
(C) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ANTENNA. Any panel, whip, dish or other apparatus designed for communications through the sending and/or receiving of electromagnetic waves, excluding any support structure other than brackets.
ANTENNA SUPPORT STRUCTURE. Any building or other structure other than a tower which can be used for location of facilities.
CELLULAR COMMUNICATION SERVICES. Personal communications accessed by means of cellular equipment and services.
CELLULAR OR WIRELESS COMMUNICATIONS ANTENNA. Any structure or device used to receive or transmit electromagnetic waves between cellular phones, pagers, commercial mobile services, wireless services, and ground-wired communications systems including both directional antennas, such as panels, microwave dishes and satellite dishes, and omni-directional antennas, such as whips and equipment utilized to serve personal communication services.
CELLULAR OR WIRELESS COMMUNICATIONS SITE. Any tract of land, lot, or parcel that contains the cellular or wireless communications tower, antenna, support structure(s), parking, and any other uses associated with and ancillary to cellular or wireless communications transmission.
CELLULAR OR WIRELESS COMMUNICATIONS SUPPORT STRUCTURE. Any building or structure accessory to, but necessary for the proper functioning of the cellular or wireless communications antenna or tower.
CELLULAR OR WIRELESS COMMUNICATIONS TOWER. Any freestanding structure used to support a cellular or wireless communications antenna.
CELLULAR OR WIRELESS COMMUNICATIONS TOWER; HEIGHT OF. The height of the structure, measured from the base to its top and including any antenna located thereon.
WIRELESS TELECOMMUNICATION FACILITY (FACILITY). Any cables, towers, wires, lines, wave guides, antennas and any other equipment or facilities associated with the transmission or reception of communications as authorized by the FCC which a person or entity seeks to locate or have installed upon a tower antenna support structure. However, the term WIRELESS TELECOMMUNICATIONS FACILITIES shall not include:
(a) Any satellite earth station antenna two meters in diameter or less which is located in an area zoned industrial or commercial;
(b) Any satellite earth station antenna one meter or less in diameter, regardless of zoning category; or
(c) Antennas used by amateur radio operators.
(D) Standards applicable to all wireless telecommunication facilities.
(1) Construction standards. All facilities and support structures shall be certified by an engineer licensed in the state to be structurally-sound and, at a minimum, in conformance with the Ohio Basic Building Code.
(2) Natural resource protection standards. The location of the facility shall comply with all natural resource protection standards established either in this Zoning Code or in other applicable regulations, including those for floodplains, wetlands, groundwater protection and steep slopes.
(3) Historic or architectural standards compliance. Any application to locate a facility on or in a close proximity of a building or structure that is listed on a federal, state, or local historic register, or is in an historic district established by the village, shall be subject to review by the Planning Commission to ensure architectural and design standards are maintained.
(4) Color and appearance. All facilities shall be painted a non-contrasting gray or similar color minimizing their visibility, unless otherwise required by the Federal Communications Commission, Federal Aviation Administration, and/or by historical or architectural standards imposed by village ordinance. All appurtenances shall be aesthetically and architecturally compatible with the surrounding environment by the means of camouflage deemed acceptable by the village.
(5) Advertising prohibited. No advertising is permitted anywhere upon or attached to the facility.
(6) Artificial lighting restricted. No facility shall be artificially lit except as required by the Federal Communication Commission and/or Federal Aviation Administration. The minimum amount of illumination shall be used to reduce glare to the surrounding neighborhood.
(7) Abandonment. All cellular or wireless communication towers shall be subject to the abandonment requirements set forth in division (G) of this section.
(8) Security enclosure required. All towers and equipment shelters shall be enclosed either completely or individually as determined by the village. All co-locators on the site, as well as village representatives and authorized employees, shall have reasonable access to the facility site. No fencing shall be required on top of a building or other structure if access to the roof or top of the structure or building is secure.
(9) Existing vegetation and buffer plants. Existing vegetation (trees, shrubs and the like) shall be preserved to the maximum extent possible. Buffer plants shall be located around the perimeter of the security enclosure as deemed appropriate by the village. An evergreen screen may be required around the perimeter of the property in lieu of such buffer plants.
(10) Access control and emergency contact. No trespassing signs shall be posted around the facility, along with a telephone number of who to contact in the event of an emergency.
(11) Maintenance. Any owner/operator of property used as a facility shall maintain such property and all structures in good condition, free from trash, litter, outdoor storage, weeds and other debris.
(12) Co-location. All facilities shall be subject to the co-location requirements set forth in division (E) of this section.
(E) Co-location requirement.
(1) Potential public sites. In order to encourage the location of a facility on publicly-owned property, the village shall undertake an identification of publicly-owned properties that the village determines are suitable for such use. The village shall regularly update such identification and make the results of such available to the public.
(2) Exemption of proof of co-location availability. Persons locating a facility upon a publicly-owned property identified as eligible for siting shall be exempted from the requirements herein regarding presentation of proof that co-location is not available. However, persons locating on such public sites shall continue to be subject to the requirements concerning co-location design (see below).
(3) Co-location design required. No new tower shall be constructed in the village unless such tower is capable of accommodating at least one additional facility owned by another party.
(4) Technically suitable space. Authorization for a tower shall be issued only if there is not a technically-suitable space reasonably available on an existing tower or structure within the geographic area to be served.
(5) Application requirements. With the permit application, the applicant shall list the location of every tower, building or structure within a reasonable proximity that could support the proposed antenna. The applicant must demonstrate that a technically-suitable location is not reasonably available on an existing tower, building or structure within such area. If another communication tower owned by another party within such area is technically suitable, applicant must show that a commercially-reasonable offer was made to the owner of such tower to co-locate an antenna on a tower owned by the applicant on reciprocal terms within the village, and the offer was not accepted. If such co-location offer has not been attempted by the applicant, then such other tower is presumed to be reasonably available.
(F) Location of wireless telecommunication facilities. Facilities shall be permitted only in areas of the village designated as an Industrial District. Such use shall be conditional, subject to the approval of the Planning Commission in accordance with procedures established by the zoning ordinance and this Zoning Code. Facilities are permitted as a conditional use subject to the requirements below.
(1) Tower.
(a) Maximum height. The maximum height of such tower shall be less than the distance of such tower from the nearest property line of any incorporated lands.
(b) Equipment shelter. The minimum setback and yard requirements set forth in the Zoning Code shall apply for equipment shelters, antenna support structures, and cellular or wireless support structures, and such shelter or structures shall not be located above ground in any required front or side yard.
(2) Antenna. A cellular or wireless telecommunications antenna that is mounted to an existing communications tower (whether said tower is for cellular purposes or not), smoke stack, water tower, or other tall structure, shall be permitted as a right in an Industrial District. Cellular or wireless telecommunications antenna may also be located on the top of Industrial District buildings which are at least 50 feet in height.
(3) Proximity to residential districts. Cellular or wireless telecommunications sites or facilities shall not be located in any residential zoning district including the R-1, R-2 and R-3 Districts, nor shall they be located any closer to these residential zoning districts according to the following:
(a) Cellular or wireless communication towers less than 100 feet in height shall be located no closer than 500 feet to any residential zoning district or use;
(b) Cellular or wireless communication towers less than 150 feet in height shall be located no closer than 750 feet to any residential zoning district or use; and
(c) Cellular or wireless communication towers 150 feet in height or greater shall be located no closer than 1,000 feet to any residential zoning district or use.
(4) Conditional use standards concerning placement. In addition to the applicable standards enumerated in division (D) of this section, the following requirements shall apply to all conditionally-permitted cellular or wireless communication antennas and towers.
(a) The cellular or wireless telecommunications company shall be required to demonstrate, using the latest technological evidence, that the antenna or tower must be placed where it is proposed in order to satisfy its necessary function in the company’s grid system.
(b) If the cellular or wireless communications company proposes to build a cellular or wireless communications tower (as opposed to mounting the antenna on an existing structure), the company is required to demonstrate that it has contacted the owners of all nearby tall structures within a one-mile radius of the proposed site, asked for permission to install the cellular or wireless communications antennas on those structures, and was denied for reasons other than economic ones. Tall structures shall include, but are not limited to, smoke stacks, water towers, buildings over 50 feet in height, antenna support structures of other cellular, or wireless telecommunication companies, other communication towers and roadway lighting poles.
(c) The village may deny the application to construct a new cellular or wireless communications tower if it determines that the applicant has not made a good faith effort to mount the antenna on existing structures.
(d) The applicant shall demonstrate that the antenna/tower is the minimum height required to function satisfactorily. No antenna/tower that is taller than the minimum height shall be approved.
(G) Abandonment of wireless communication facilities.
(1) Required notification. All providers utilizing towers shall present a report to the village notifying it of any tower facility located in the village whose use will be discontinued and the date this use will cease. Such a report shall be filed with the village 30 days prior to the cessation date. If at any time the use of the facility is discontinued for 180 days, the Zoning Administrator may declare the facility abandoned. The 180-day period excludes any dormancy period between construction and the initial use of the facility. The owner/operator of the facility will receive written notice from the Zoning Administrator and be instructed to either reactivate use of the facility or commence to dismantle and remove the facility within 60 days from the mailing of the notice. If use is not reactivated or dismantling is not commenced (or is commenced in a manner less than diligent), the Zoning Administrator reserves the right to have the facility removed and assess the owner/operator the costs.
(2) Required notice to owner. The village must provide the tower owner/operator a 30-day notice and an opportunity to be heard before the Board of Zoning Appeals before initiating such action. After such notice has been provided, the village shall have the authority to initiate proceedings to order the dismantling and/or demolition of the tower and all appurtenances.
(3) Right to public hearing by owner/operator. The village shall provide the tower owner/operator with the right to a public hearing before the Board of Zoning Appeals, which public hearing shall follow the 30-day notice noted above. All interested parties shall be allowed an opportunity to be heard at the public hearing.
(4) Order of demolition. After a public hearing is held, the village may order the abatement or demolition of the tower. The village may require licensee to pay for all expenses necessary to acquire or demolish the tower.
(H) Application and review requirements. All applications for facilities, including towers, shall include the following.
(1) Site plan.
(a) A full site plan shall be required for all proposed cellular or wireless telecommunications sites at a scale of 1" = 100', indicating, as a minimum, the following:
1. The total area of the site;
2. The existing zoning of the property in question and all adjacent;
3. All public and private rights-of-way and easement lines located on or adjacent to the property which is proposed to be continued, created, relocated or abandoned;
4. Existing topography with a maximum of five-foot contour intervals;
5. The proposed finished grade of development shown by contours not exceeding five-foot intervals;
6. The location of all existing buildings and structures and the proposed location of the cellular or wireless communications tower and all cellular or wireless communications support structures including dimensions, heights, and where applicable, the gross floor area of the buildings;
7. The location and dimensions of all curb cuts, driving lanes, off-street parking, and loading areas including the number of spaces, grades, surfacing materials, drainage plans and illumination of the facility;
8. All existing and proposed sidewalks and open areas on the site;
9. The location of all proposed fences, screening and walls;
10. The location of all existing and proposed streets;
11. All existing and proposed utilities including types and grades;
12. The schedule of any phasing of the project;
13. A written statement by the cellular or wireless telecommunications company as to the visual and aesthetic impacts of the proposed cellular or wireless communications tower on all adjacent residential zoning districts;
14. The cellular or wireless telecommunication company must demonstrate to the village that it is licensed by the Federal Communications Commission; and
15. Any other information as may be required by the Planning Commission to determine conformance with the zoning ordinance.
(b) Upon submission of a complete application for site plan review to the Zoning Administrator, the application shall be transmitted to the Planning Commission where they shall review the site plan to determine if it meets the purpose and requirements as established in this section, the requirements of the zoning district where the proposed cellular or wireless telecommunications site is located, and any other applicable sections of the Zoning Code.
(c) The Planning Commission shall act upon all site plans within 35 days after the receipt of the complete application from the Zoning Administrator. The Planning Commission may approve, disapprove or approve with modification the site plan as submitted. Within the said 35-day period, a majority of the members of the Planning Commission present at a meeting thereof may vote to extend the said period of time, not to exceed an additional 60 days.
(2) Denial of application. Any decision to deny a request to place, construct, or modify a Facility and/or tower shall be in writing and supported by evidence contained in a written record.
(Ord. 03-04, passed - -2002) Penalty, see § 153.999