(A) The passage of the Federal Telecommunications Act of 1996 (the “Act”) has permitted and fostered the rapid growth of wireless telecommunications services and has given rise to the concomitant need for adequate telecommunications facilities, including towers and other structures.
(B) Section 704(a) of the Act generally preserves the authority of local governments over decisions regarding the placement, construction, and modification of such facilities, subject to the limitations specified in the Act and incorporated in this legislation. The City of Bowling Green, by adoption of its charter on October 31, 1972 exercises its home rule authority.
(C) The City of Bowling Green, in order to properly address the requirements of the Act, enacted a moratorium on permits for placement, construction, and modification of such facilities until July 15, 1998.
(D) This local government has examined the escalating facility needs of wireless telecommunications providers in the context of addressing, in comprehensive fashion, concerns regarding the placement, construction, and modification of telecommunications facilities generally. In an effort to balance the needs of the telecommunications industry and the health, safety and general welfare of the public, the City of Bowling Green has closely examined the competing considerations relating to the placement, construction, and modification of telecommunications facilities.
(E) The intent of this legislation is to preserve the ability of telecommunications providers to operate facilities as necessary within the jurisdiction of this local government, while at the same time:
(1) Minimizing the adverse visual impacts of telecommunications towers, attachments, poles, nodes, and related facilities;
(2) Protecting persons and property from injury and damage; and
(3) Preserving and protecting natural resources and formations.
(F) It is not the intent of this legislation, and consistent with the provisions of the Act, nothing in this legislation shall be construed:
(1) To permit unreasonable discrimination among providers of functionally equivalent personal wireless services, as defined in the Act;
(2) To prohibit or have the effect of prohibiting the provision of personal wireless services;
(3) To permit action on any request for the authorization to place, construct, or modify personal wireless services facilities other than within a reasonable period of time after the request is duly filed, taking into account the nature and scope of the request;
(4) To permit denial of an application to place, construct, or modify personal wireless services facilities other than in writing and supported with substantial evidence contained in a written record; and
(5) To permit basing regulatory decisions of this nature on the environmental effects of radio frequency emissions to the extent that personal wireless services facilities comply with the regulations of the FCC concerning such emissions. The provisions of this legislation are subject to all applicable federal and state laws, rules, regulations, and orders.
(G) Telecommunications facilities must meet the following standards, regardless of location.
(1) Telecommunications facilities must be as aesthetically compatible with their environs as technically feasible and practicable under the circumstances. Each tower is required to be camouflaged, for example, by putting it inside an artificial tree, a clock tower, a church steeple, silos or a flagpole.
(2) Existing vegetation must be preserved as much as practicable. Any security fencing or barrier related to telecommunications facilities must be surrounded by a continuous row of hardy, evergreen hedges or trees not less than ten feet high, sufficient in height to screen adequately such fencing or barrier, and located within ten feet of the fencing or barrier. Such landscaping shall be continuously maintained and promptly restored, if necessary.
(3) Lights, beacons, or strobes attached to or illuminating telecommunications facilities shall be permitted only to the extent necessary to ensure safety or to comply with applicable law or regulation, and shall be designed to minimize direct light or glare onto surrounding properties.
(4) Signage on the site of telecommunications facilities shall be permitted only as may be required by applicable law or regulation or as specifically required or approved by the city. “No Trespassing” signs with a telephone number of whom to contact in the event of an emergency shall be required.
(5) The telecommunications provider is responsible for the weed and trash removal related to, and general upkeep of, its telecommunications facilities and their grounds, and for ensuring that the surfaces of such facilities are maintained in good condition, free from flaking or peeling paint and rust. Outdoor storage of equipment, supplies and vehicles related to telecommunications facilities is prohibited, except to supply emergency power to such facilities during a power outage.
(6) Subject to the requirements for setbacks set forth herein, telecommunications towers are to be the sole use on a lot and the minimum lot size shall be the minimum lot size allowable for the applicable zone or district. Where other types of telecommunications facilities, except telecommunications towers, are to be placed on a lot with an existing use, the minimum lot area shall be that which is necessary to accommodate the telecommunications facilities, any guy wires, any security fencing, any buffer plantings, and the like, in conjunction with such existing use.
(7) Where telecommunications facilities are to be placed on a lot with an existing use, such facilities must be fully automated and operationally unattended, with visits only for construction, emergencies, and periodic and necessary maintenance.
(8) All equipment and devices (including but not limited to cables, wires, pipes, and conduits) that service telecommunications facilities shall be located underground or within such telecommunications facilities, if technically feasible and unless otherwise required by the Ohio Basic Building Code, the National Electric Code, and/or other applicable law.
(9) Telecommunications towers and telecommunications attachments shall be designed to be buildable up to the maximum height permitted by this legislation, and shall be constructed in such a way as to permit at least two other telecommunications providers to co-locate their telecommunications facilities thereon when and if built to the maximum height permitted by this legislation.
(10) Unless otherwise specified in this legislation, the setback requirements for all telecommunications towers shall be one foot for every foot of allowable height of such telecommunications attachment when attached. Any related fencing, screening, or other barriers shall be located behind the applicable setback lines. Notwithstanding the first sentence of this division and unless otherwise specified in this legislation or permitted by the city, telecommunications towers and telecommunications attachments shall be located not less than:
(a) Fifty feet from the nearest public right-of-way; and
(b) Five hundred feet from the lot line of any school.
(H) Telecommunications towers must meet the following standards, regardless of location.
(1) The height of telecommunications towers (including antenna and approved lightning rods, if any) may not exceed 200 feet above the average grade plane of the telecommunications tower’s base.
(2) The color of telecommunications towers shall be non-contrasting gray or that color which best camouflages them against their surroundings, unless another color is required by applicable law or regulation.
(I) Telecommunications attachments must meet the following standards, regardless of location.
(1) The height of telecommunications attachments may not exceed the greater of 20 feet above the top of the building or 20% higher than the height of the building or structure to which it is attached. In either case, the telecommunications attachments may not exceed 200 feet in height.
(2) The color of telecommunications attachments shall be that which best camouflages them against their surroundings, unless another color is required by applicable law or regulation.
(J) Telecommunications equipment shelters must meet the following standards, regardless of location.
(1) The maximum size of a telecommunications equipment shelter shall be 350 square feet for one shelter on a given plot, and 750 total square feet if there is more than one shelter on a given plot.
(2) The maximum height of a telecommunications equipment shelter shall be the maximum building height for the applicable land use district.
(3) The setback requirements for all telecommunications equipment shelters shall be the setback requirements for the applicable land use district. Any related fencing, screening, or other barriers shall be located behind the applicable setback lines.
(4) Where telecommunications facilities are to be placed on a lot with an existing use, the service access to any telecommunications equipment shelter shall be provided by way of the circulation driveways associated with the existing use to the extent possible.
(5) Telecommunications equipment shelters shall not be used for offices or long-term vehicle storage.
(6) If telecommunications equipment shelters are initially constructed to accommodate only one user, space shall be reserved on-site to accommodate at least two other telecommunications equipment shelters in the event of co-location.
(K) Additional appearance-related standards applicable to non-residential districts. In addition to all standards that apply independent of location, the following standards also apply to telecommunications facilities located in non-residential districts.
(1) Notwithstanding any provision of this legislation to the contrary, the minimum distance from the center of the base of any telecommunications tower (or the base of any building or structure directly beneath the vertical center line of a telecommunications attachment) to any residential district shall be 190 feet.
(2) Notwithstanding any provision of this legislation to the contrary, if telecommunications towers are to be located in an agricultural area or a vacant lot, the minimum lot size shall be the minimum lot size required to meet all applicable setback requirements.
(L) Additional appearance-related standards applicable to residential districts. In addition to all standards that apply independent of location, the following standards also apply to telecommunications facilities located in residential districts.
(1) Where telecommunications facilities are to be placed in a residential district, they must be fully automated and unattended on a daily basis, with visits only for construction, emergencies, and periodic and necessary maintenance.
(2) Where telecommunications towers or telecommunications attachments are to be placed or constructed on property with a non-residential use within a residential land use district (including, but not limited to, government buildings, agricultural buildings, churches, utility buildings, and hospitals), such telecommunications towers or telecommunications attachments shall be set back from all lots occupied by dwellings by at least 100 feet.
(3) Telecommunications equipment shelters located in a residential district must be placed underground.
(M) Safety-related standards. Telecommunications facilities must meet the following standards, regardless of location.
(1) All telecommunications facilities must comply with all applicable laws and regulations, including but not limited to the Ohio Basic Building Code and the applicable regulations promulgated by the Federal Aviation Administration and the FCC (including radio frequency electromagnetic emissions standards) and by the Ohio Department of Transportation, and their respective successors.
(2) All telecommunications towers and telecommunications attachments must be soundly constructed and, including any guy wires, must be securely anchored to a foundation appropriate for the applicable soil conditions, and must be able to withstand sustained winds of at least 80 miles per hour and ice loads in accordance with the American National Standards Institute/Electronic Industry Association, Section 222-F (Annex H: Commentary on Ice Design Criteria for Communications Structures), as the same may be amended from time to time.
(3) Security fencing eight feet in height shall surround the telecommunications facilities (including any guy wires), or each of them, as required by applicable law or as may be determined by the appropriate unit of this local government. All outside storage of related vehicles or equipment shall be contained within the fenced area.
(4) Telecommunications towers and telecommunications attachments shall be fitted with anti-climbing devices.
(5) All telecommunications facilities must be regularly maintained as appropriate to ensure that safety is not compromised.
(6) No telecommunications facilities may interfere with any public safety, police, fire, ambulance, or other governmental telecommunications.
(N) The placement, construction, or modification of telecommunications facilities shall comply with all natural resources protection laws and regulations, including those for floodplain, wetlands, and steep slopes.
(O) Within areas that are technically feasible for telecommunications facilities, telecommunications facilities shall be situated in accordance with the following prioritization of location (with (1) and (a) being the most favored locations), and subject to the applicable land use regulations. In addition to all other applicable application requirements of this legislation, applications to place, construct, or modify telecommunications towers in a particular location must be accompanied by evidence demonstrating that locating such telecommunications towers in more preferable locations (as depicted in the above priority list) is not technically feasible or practicable under the circumstances.
(1) Permitted use.
(a) Co-location or attachment to non-residential structures.
(b) Collocated on a lot with a government services use.
(2) Conditional use.
(a) Agricultural Zone;
(b) Interstate Commerce District;
(c) Innovation and Employment Zone;
(d) Institutional Zone;
(e) Commercial Zone;
(f) Low Density Residential Zone;
(g) Medium Density Residential Zone;
(h) Mixed-Use Neighborhood Zone;
(i) Multi-Unit Residential Zone;
(j) University-Oriented Residential District;
(k) Pedestrian-Residential District;
(l) Central Business District;
(m) Gateway District.
(P) Applications.
(1) Any person or entity desiring to place, construct or modify telecommunications facilities in the jurisdiction of this local government shall be required to obtain a permit from the city. Applications seeking to place, construct, or modify telecommunications facilities on land owned by a public entity other than this local government shall, to the fullest extent permitted by law, be considered under and be subject to this legislation. In addition to any application requirement detailed elsewhere in this legislation, applications to place, construct, or modify telecommunications facilities, regardless of the proposed location thereof, must include the following.
(a) Technical demonstration that the telecommunications facilities are necessary and must be located where proposed in order to adequately cover the applicant’s service area. This report shall also include:
1. The location of all of the applicant’s existing and other planned telecommunications facilities in the jurisdiction;
2. The location of all other potential sites for the proposed telecommunications facilities that are technically feasible;
3. The location of all other telecommunications facilities where co-location is technically feasible;
4. The suitability of the proposed site for co-location; and
5. Any interference restrictions or considerations applicable to the proposed telecommunications facilities.
(2) The width, depth, height, color, type, specifications, capacity, functionality, and co-location potential of all proposed telecommunications facilities, certified by a state licensed professional engineer.
(3) Reasonably satisfactory evidence of compliance with all applicable structural, appearance, safety, and nature preservation standards set forth in this legislation and in applicable law (as certified by a state licensed professional engineer), including, but not limited to the following.
(a) The certification of a state licensed professional engineer as to compliance with applicable nationally accepted structural standards as published by the American National Standards Institute/Electronic Industry Association, Section 222-F (ANSI/EIA-222-F), as the same may be amended from time to time; and
(b) A soil report which comports with the standards of ANSI/EIA-222-F (Annex I: Geotechnical Investigations for Towers), as the same may be amended from time to time, which report shall support the foundation and anchor specifications for the telecommunications facilities (including any guy wires).
(c) In the event that a telecommunications tower or telecommunications attachment is proposed to be constructed, evidence that the applicant has attempted in good faith to co-locate such telecommunications tower or telecommunications attachment at all technically feasible locations on reasonable terms. Those telecommunications providers contacted by applicant for such purposes must be given at least 30 days to respond to such contact. The applicant shall agree to permit co-location on a proposed telecommunications tower or telecommunications attachment (together with associated access and parking), to the extent technically feasible (but in no event fewer than two additional antennae), on reasonable terms. The applicant shall agree that all disputes with future telecommunications providers concerning co-location and the terms and conditions of co-location shall be submitted to commercial arbitration under a system chosen by the parties in question, but if the parties are unable to agree upon such a system, then under the auspices of the Commercial Arbitration Provisions of the American Arbitration Association.
(d) In the event that a telecommunications tower is proposed to be constructed, evidence that a technically feasible location is not reasonably available to construct an alternative telecommunications attachment on an existing structure.
(e) A site plan detailing, within 300 feet of all proposed telecommunications facilities:
1. Existing and proposed telecommunications facilities;
2. Existing and proposed buildings and other man-made structures;
3. Existing and proposed natural features, including trees and shrubs;
4. Existing and proposed access easements and parking areas; and
5. Existing and proposed utilities to and within the site.
(f) A listing of lots (with property owners’ names and addresses, and uses of properties) within one-fourth mile of the proposed site, and a graphical depiction of the area within which the facilities would be visible from ground level.
(g) A maintenance schedule (including, at a minimum, frequency of service, equipment needs, and traffic, safety and noise impacts) acceptable to the city in light of any manufacturer’s recommended maintenance schedule or otherwise.
(h) Evidence of continual legal access to the telecommunications facilities (regardless of other developments that may take place at the site) for the expected duration of the use of such telecommunications facilities, and evidence of a contractual right to place, construct, or modify such telecommunications facilities on the proposed site (through a siting agreement or grant of easement or otherwise).
(i) The agreement of the applicant to remove the telecommunications facilities (and any associated site improvements such as access drives) within 180 days of discontinued use of or failure to use them, and to thereafter return the entire site thereof to its prior state, at the applicant’s cost. Upon such discontinued use or failure to use, and if such telecommunications facilities are not removed as aforesaid, they shall be considered abandoned and the permit to use them shall be terminated. At any time thereafter, this governmental body, or its authorized designee, may give written notice to the applicant that it intends to remove such telecommunications facilities (and related site improvements), at the applicant’s cost, no sooner than 180 days after receipt by the applicant of the notice. Within that 180-day period, applicant must be given an opportunity to either reactivate or activate such telecommunications facilities, remove them (and related site improvements) and return the site thereof to its prior state, or show good cause why such telecommunications facilities (and related site improvements) should not be removed. In the absence of such circumstances occurring within the 180-day period, this governmental body may order that such telecommunications facilities (and related site improvements) be removed and the site be returned to its prior state, at the applicant’s cost. To cover the costs of such removal upon the occurrence of such events, the applicant shall post a bond or submit to escrow a cash deposit (or otherwise as approved by the city) in a reasonably sufficient amount to be determined by the city prior to issuance of a permit. The city may require periodic evidence of the continuing force and effect, or the deposit shall remain in escrow, as the case may be, until such telecommunications facilities are removed in accordance with this legislation.
(j) The agreement of the applicant to indemnify and hold harmless this local government, its officers, and employees from any claims, liabilities, costs and expenses incurred on account of or resulting from the construction, operation, maintenance, or removal of the proposed telecommunications facilities.
(k) Proof of insurance of the following types and in the following amounts, insuring both this local government (and its elected and appointed officers, officials, agents, and employees) and the applicant pursuant to this legislation:
1. Comprehensive general liability insurance with limits not less than:
a. $1,000,000 for bodily injury or death to each person;
b. $1,000,000 for property damage resulting from any one accident; and
c. $5,000,000 for all other types of liability;
2. Automobile liability for owned, non-owned, and hired vehicles with a limit of $100,000 for each person and $300,000 for each accident;
3. Worker’s compensation insurance within statutory limits;
4. Employer’s liability insurance with limits of not less than $1,000,000; and
5. Comprehensive form premises-operations, explosions, and collapse hazard, underground hazard, and products completed hazard with limits of not less than $5,000,000. Such insurance shall be maintained until the proposed telecommunications facilities are removed in accordance with this legislation. The city may require the annual filing of a certificate of insurance evidencing the insurance amounts required herein, and evidencing that the city shall be notified by the insurer at least 30 days before any expiration or cancellation of required coverage.
(l) To reimburse the city for reasonable costs related to the processing of applications under this legislation, the applicant shall submit with its application a non-refundable permit fee and a deposit in amounts comporting with the schedule posted and periodically updated by the city. Reasonable fees and costs of engineers and/or other consultants used by the city to verify initial compliance with this legislation shall be deducted from the deposit, and the balance returned to the applicant upon completion of the permitting process. Application requirements may be waived or modified by the city only if:
1. Required by applicable law;
2. Deemed to be in the best interests of the community on the basis of unique circumstances; or
3. Deemed to be inapplicable on the basis of unique circumstances. Decisions of this local government on the application shall not be based on the environmental effects of radio frequency emissions to the extent that any proposed personal wireless services facilities (as defined in the Act) comply with FCC regulations. Applications submitted to this local government shall be acted upon within a reasonable period of time after the application is duly filed, taking into account the nature and scope of the application. Denials of applications shall be in writing and supported by evidence contained in a written record.
(4) A successful applicant shall commence placement, construction, or modification, as the case may be, of telecommunications facilities within 180 days of permit issuance.
(5) To ensure continuing compliance with this legislation, any permits issued to place, construct, or modify telecommunications facilities pursuant to this legislation are subject to annual review, and such telecommunications facilities are subject to annual inspection, by the city, at the successful applicant’s cost.
(6) Applicants shall covenant that they will not assign, transfer, convey, sublet, sell, mortgage, pledge, or encumber the telecommunications facilities by any other person or entity, without in each instance having first notified and obtained the approval of the city. Any person or entity to which such telecommunications facilities are assigned, transferred, conveyed, sublet, sold, mortgaged, pledged, or encumbered, or to which use of such telecommunications facilities has been allowed, shall fully be subject to the conditions of any related permit and to the provisions of this legislation.
(7) Upon adoption, the provisions of this legislation shall supersede any provisions of prior legislation directly in conflict therewith; otherwise, prior zoning and/or building code provisions shall remain in full force and effect.
(Ord. 9098, passed 6-12-2023)