It is the general purpose and intent of the city to carry out the will of the United States Congress by authorizing communication facilities needed to operate wireless communication systems. However, it is the further purpose and intent of the city to provide for such authorization in a manner which will retain the integrity of neighborhoods and the character, property values and aesthetic quality of the community at large. In fashioning and administering the provisions of this section, attempts have been made to balance these potentially competing interests and promote the public health, safety and welfare.
(1) Definitions.
(a) Wireless communication facilities shall mean and include all structures and accessory facilities relating to the use of the radio frequency spectrum for the purpose of transmitting or receiving radio signals. This may include, but shall not be limited to, radio towers, television towers, telephone devices and exchanges, microwave relay towers, telephone transmission equipment, building, and commercial mobile radio service facilities. Not included within this definition are: citizen band radio facilities; short wave facilities; ham, amateur radio facilities; satellite dishes; and, governmental facilities which are subject to state or federal law or regulations which preempt municipal regulatory authority.
(b) Attached wireless communications facilities shall mean wireless communication facilities that are affixed to existing structures, such as existing buildings, towers, water tanks, utility poles, and the like. A wireless communication support structure proposed to be newly established shall not be included within this definition.
(c) Wireless communication support structures shall mean structures erected or modified to support wireless communication antennas. Support structures within this definition include, but shall not be limited to, monopoles, lattice towers, light poles, wood poles or guyed wires.
(d) Co-location shall mean the location by 2 or more wireless communication providers of wireless communication facilities on a common structure, tower, or building, with the view toward reducing the overall number of structures required to support wireless communication antennas within the community.
(2) Authorization. Subject to the standards and conditions set forth in this section, wireless communication facilities shall be permitted uses in the following circumstances, and in the following zoning districts by right:
(a) Subject to the standards and conditions set forth below, wireless communication facilities shall be authorized as a permitted use within the following zoning districts: I-1 and I-2.
1. An existing structure will serve as an attached wireless communication facility within a nonresidential zoning district, where the existing structure is not, in the discretion of the Planning Official, proposed to be either materially altered or materially changed appearance.
2. A proposed co-location upon an attached wireless communication facility which had been preapproved for such co-location as part of an earlier approval by the city.
3. An existing structure which will serve as an attached wireless communication facility 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 Planning Official, would materially alter the structure and/or result in an impairment of sight lines or other safety interests.
4. A proposed tower in the I-1 and I-2 zoning districts subject to the provisions of (3), "general regulations," and the site plan review process outlined in § 82-471.
(b) Subject to the standards and conditions set forth in this section, wireless communication facilities shall be authorized as special land uses within the following zoning districts: OS-1, B-1, B-2, B-3 and IRO.
(c) If it is demonstrated by an applicant that a wireless communication facility may not be reasonably established as a permitted use under (a) above, and, is required to be established outside of a district identified in (b), above, in order to operate a wireless communication service, then, wireless communication facilities may be permitted elsewhere in the community as a special land use, subject to the criteria and standards of subsections (3), (4), (5), (6), and (7) below.
(3) General regulations.
(a) All applications for wireless communication facilities shall be reviewed in accordance with the following standards and conditions, and, if approved, shall be constructed and maintained in accordance with such standards and conditions. In addition, if the facility is approved, it shall be constructed and maintained with any additional conditions imposed by the Planning Commission in its discretion.
1. Facilities shall not be demonstrably injurious to neighborhoods or otherwise detrimental to the public safety and welfare.
2. Facilities shall be located and designed to be harmonious with the surrounding areas.
3. Wireless communication facilities shall comply with applicable federal and state standards relative to the environmental effects of radio frequency emissions.
4. Applicants shall demonstrate a justification for the proposed height of the structures and an evaluation of alternative designs which might result in lower heights.
5. The maximum height of a new or modified support structure and antenna shall be the minimum height demonstrated to be necessary for reasonable communication by the applicant (and by other entities to co-locate on the structure). Towers over 300 feet in height will require a special use permit. The accessory building contemplated to enclose such things as switching equipment shall be limited to the maximum height for accessory structures within the respective district.
6. No support structure shall be located closer than 30 feet to the property line of any residential district or use, or no closer than equal to the height of any adjacent residential building, whichever is greater. The setback of the support structure from any existing or proposed rights-of-way or other publicly traveled roads shall be no less than the height of the wireless communication structure.
7. Where the proposed new or modified support structure abuts a parcel of land zoned for a use other than residential, the minimum setback of the structure, and accessory structures, shall be in accordance with the required setbacks for main or principal buildings as provided in the zoning district in which the support structure is located.
8. There shall be unobstructed access to the support structure, for operation, maintenance, repair and inspection purposes, which may be provided through or over an easement. This access shall have a width and location determined by such factors as: the location of adjacent thoroughfares and traffic and circulation within the site; utilities needed to service the tower and any attendant facilities; the location of buildings and parking facilities; proximity to residential districts and minimizing disturbance to the natural landscape; and the type of equipment which will need to access the site.
9. The division of property for the purpose of locating a wireless communication facility is prohibited unless all zoning requirements and conditions are met.
10. Where an attached wireless communication facility is proposed on the roof of a building, it shall be designed, constructed and maintained to be architecturally compatible with the principal building. The equipment enclosure may be located within the principal building or may be an accessory building. If proposed as an accessory building, it shall conform with all district requirements for principal buildings, including yard setbacks.
11. The Planning Commission shall, with respect to the color of the support structure and all accessory buildings, review and approve so as to minimize distraction, reduce visibility, maximize aesthetic appearance, and ensure compatibility with surroundings. It shall be the responsibility of the applicant to maintain the wireless communication facility in a neat and orderly condition.
12. The support system shall be constructed in accordance with all applicable building codes and shall include the submission of a soils report from a geotechnical engineer, licensed in the state. This soils report shall include soil borings and statements confirming the suitability of soil conditions for the proposed use. The requirements of the Federal Aviation Administration, Federal Communication Commission, and Michigan Aeronautics Commission shall be noted.
13. A maintenance plan, and any applicable maintenance agreement, shall be presented and approved as part of the site plan for the proposed facility. Such plan shall be designed to ensure the long term, continuous maintenance to a reasonably prudent standard.
(b) Standards and conditions applicable to special land use facilities. Applications for wireless communication facilities which may be approved as special land uses shall be reviewed, and if approved, constructed and maintained, in accordance with the standards and conditions in subsection (3)(a). In addition, the applicant shall demonstrate the need for the proposed facility to be located as proposed based upon the presence of 1 or more of the following factors:
1. Proximity to an interstate or major thoroughfare;
2. Areas of population concentration;
3. Concentration of commercial, industrial, and/or other business centers;
4. Areas where signal interference has occurred due to tall buildings, masses of trees, or other obstructions;
5. Topography of the proposed facility location in relation to other facilities with which the proposed facility is to operate;
6. Other specifically identified reason(s) creating facility need.
(c) All proposals shall be reviewed in conformity with the co-location requirements of this section.
(4) Application requirements.
(a) A site plan prepared in accordance with § 82-471 shall be submitted, including the location, size, screening and design of all buildings and structures, including fences and outdoor equipment.
(b) The site plan shall also include a detailed landscaping plan where the support structure is being placed. The purpose of landscaping is to provide screening and aesthetic enhancement for the structure base, accessory buildings and enclosure. In all cases, there shall be shown on the plan fencing, which is required for protection of the support structure and security from children and other persons who may otherwise access facilities.
(c) 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.
(d) The application shall also include a description of security to be posted at the time the facility is to be removed when it has been abandoned or is no longer needed. 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 attorney for the community and recordable at the office of the Register of Deeds, establishing a promise of the applicant and owner of the property to remove the facility in a timely manner as required under this section of the ordinance, 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 community in securing removal.
(e) The application shall include a map showing existing and known proposed wireless communication facilities within the city, and further showing existing and known proposed wireless communication facilities within 1 mile from all borders of the city, 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 community, the applicant shall be required only to update as needed. Any such information which is trade secret and/or other 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. M.C.L.A. § 15.243(1)(f). This ordinance shall serve as the promise to maintain confidentiality to the extent permitted by law. The request for confidentiality must be prominently stated in order to bring it to the attention of the community.
(5) Special requirements for facilities proposed to be situated outside a zoning district in which the facility is permitted by right or special use permit.
(a) For facilities which are not permitted uses under subsection (2) and proposed to be located outside of a zone identified in subsection (2), an application shall be reviewed and, if approved, facilities shall be constructed and maintained in accordance with the following additional standards and requirements.
1. At the time of the submittal, the applicant shall demonstrate that a location within the district/overlay zone cannot reasonably meet the coverage and/or capacity needs of the applicant.
2. Wireless communication facilities shall be of a design such as (without limitation) a steeple, bell tower, or other form which is compatible with the existing character of the proposed site, neighborhood and general area, as approved by the city.
3. In single-family residential neighborhoods, site locations shall be permitted on the following sites (not stated in any order of priority), subject to application of all other standards contained in this section:
a. Municipally owned site;
b. Other governmentally owned site;
c. Religious or other institutional site;
d. Public park and other large permanent open space areas when compatible;
e. Public or private school site.
(6) Co-location.
(a) Statement of policy. It is the policy of the city to minimize the overall number of newly established locations for wireless communication facilities and wireless communication support structures within the community and encourage the use of existing structures for attached wireless communication facility purposes. Each licensed provider of a wireless communication facility must, by law, be permitted to locate sufficient facilities in order to achieve the objectives promulgated by the United States Congress. However, particularly in light of the dramatic increase in the number of wireless communication facilities reasonably anticipated to occur as a result of the change of federal law and policy in and relating to the Federal Telecommunications Act of 1996, it is the policy of the city that all users should co-locate on attached wireless communication facilities and wireless communication support structures in the interest of achieving the purposes and intent of this section. If a provider fails or refuses to permit co-location on a facility owned or otherwise controlled by it, where co- location is feasible, the result will be that a new and unnecessary additional structure will be compelled, in direct violation of and in direct contradiction to the basic policy, intent and purpose of the city. The provisions of this subsection are designed to carry out and encourage conformity with this policy.
(b) Feasibility of co-location. Co- location shall be deemed to be "feasible" for purposes of this section where all of the following are met:
1. The wireless communication provider entity under consideration for co-location will undertake to pay market rent or other market compensation for co-location;
2. The site on which co-location is being considered, taking into consideration reasonable modification or replacement of a facility, is able to provide structural support;
3. The co-location being considered is technologically reasonable; for example, the co-location will not result in unreasonable interference, given appropriate physical and other adjustment in relation to the structure, antennas, and the like;
4. The height of the structure necessary for co-location will not be increased beyond a point deemed to be permissible by the city, taking into consideration the several standards contained in this ordinance.
(c) Requirements for co-location.
1. A special land use permit for the construction and use of a new wireless communication facility shall not be granted unless and until the applicant demonstrates that a feasible co- location is not available for the coverage area and capacity needs.
2. All new and modified wireless communication facilities shall be designed and constructed so as to accommodate co-location.
3. The policy of the community is for co-location. Thus, if a party who owns or otherwise controls a wireless communication facility shall fail or refuse to alter a structure so as to accommodate a proposed and otherwise feasible co- location, such facility shall thereupon and thereafter be deemed to be a nonconforming structure and use, and shall not be altered, expanded or extended in any respect.
4. If a party who owns or otherwise controls a wireless communication facility fails or refuses to permit a feasible co-location, and this requires the construction and/or use of a new facility, the party failing or refusing to permit a feasible co-location shall be deemed to be in direct violation and contradiction of the policy, intent and purpose of the city, and, consequently such party shall take responsibility for the violation, and shall be prohibited from receiving approval for a new wireless communication support structure within the city for a period of 5 years from the date of the failure or refusal to permit the co-location. Such a party may seek and obtain a variance from the Zoning Board of Appeals if and to the limited extent the applicant demonstrates entitlement to variance relief which, in this context, shall mean a demonstration that enforcement of the 5 year prohibition would unreasonably discriminate among providers of functionally equivalent wireless communication services, or that such enforcement would have the effect of prohibiting the provision of personal wireless communication services.
(d) Offer of co-location required. An application for a new wireless communication support structure shall include a letter from the applicant to all potential users offering an opportunity for co-location.
(e) Final approval for a wireless communication support structure shall be effective for a period of 6 months.
(f) Incentive. Review of an application for co-location, and review of an application for a permit for use of an existing facility shall be expedited by the city.
(7) Removal.
(a) A condition of every approval of a wireless communication facility shall be adequate provision for removal of all or part of the facility by users and owners upon the occurrence of 1 or more of the following events:
1. When the facility has not been used for 180 days or more. For purposes of this section, the removal of antennas or other equipment from the facility, or the cessation of operations (transmission and/or reception of radio signals) shall be considered as the beginning of a period of non-use;
2. Six months after new technology is available at reasonable cost, as determined by the legislative body of the community, which permits the operation of the communication system without the requirement of the support structure.
(b) The situations in which removal of a facility is required, as set forth in paragraph (a)(1) above, may be applied and limited to portions of a facility.
(c) Upon the occurrence of 1 or more of the events requiring removal, specified in paragraph (a)(1) above, the property owner or persons who had used the facility shall immediately apply or secure the application for any required demolition or removal permits, and immediately proceed with and complete the demolition/removal, restoring the premises to an acceptable condition as reasonably determined by the Planning Official.
(d) If the required removal of a facility or a portion thereof has not been lawfully completed within 60 days of the applicable deadline, 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 and/or enforced from or under the security posted at the time application was made for establishing the facility.
(1993 Code, § 82-474) (Ord. passed 10-11-1999(3); Ord. passed 3-12-2007)