Sections:
17.42.010 Jurisdiction.
17.42.020 Definitions.
17.42.030 Wireless telecommunication facilities established as land uses in Custer City.
17.42.040 Exceptions from a land use permit for wireless telecommunications facilities.
17.42.050 Exclusions.
17.42.060 Land use permit application and other requirements.
17.42.070 Location of wireless telecommunications facilities.
17.42.080 Shared use of wireless telecommunications facilities and other structures.
17.42.090 Height of telecommunications tower(s).
17.42.100 Visibility of wireless telecommunications facilities.
17.42.110 Security of wireless telecommunications facilities.
17.42.120 Signage.
17.42.130 Lot size and setbacks.
17.42.140 Public hearing and notification requirements.
17.42.150 Action on application for land use permit for wireless telecommunications facilities.
17.42.160 Extent and parameters of land use permit for wireless telecommunications facilities.
17.42.170 Application fee.
17.42.180 Performance security.
17.42.190 Reservation of authority to inspect wireless telecommunications facilities.
17.42.200 Liability insurance.
17.42.210 Indemnification.
17.42.220 Fines.
17.42.230 Default and/or revocation.
17.42.240 Removal of wireless telecommunications facilities.
17.42.250 Relief.
17.42.260 Adherence to state and/or federal rules and regulations.
17.42.270 Adherence to FAA, FCC and state and/or federal rules and regulations.
For the purposes of this chapter, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number and words in the singular number include the plural number. The word “shall” is always mandatory, and not merely directory.
“Accessory facility or structure” means an accessory facility or structure serving or being used in conjunction with wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including but not limited to, utility or transmission equipment storage sheds or cabinets.
“Applicant” means any wireless service provider submitting an application for a land use permit for wireless telecommunications facilities.
“Application” means all necessary and appropriate documentation that an applicant submits in order to receive a land use permit for wireless telecommunications facilities.
“Antenna” means a system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless signals.
“Board” means the Custer city council shall serve as the board.
“Co-location” means the use by more than one (1) wireless telecommunication provider, of an existing tower or structure to support antennae for the provision of wireless services. A replacement tower that is constructed on the same site as an existing tower will be considered a co-location as long as the new tower is no taller than the old tower and that the old tower is removed in a reasonable short timeframe after the new tower is constructed.
“Commercial impracticability” or “commercially impracticable” means the inability to perform an act on terms that are reasonable in commerce; the cause or occurrence of which could not have been reasonably anticipated or foreseen and that jeopardizes the financial efficacy of the project. The inability to achieve a satisfactory financial return on investment or profit, standing alone, shall not deem a situation to be “commercial impracticable” and shall not render an act or the terms of an agreement “commercially impracticable”.
“Completed application” means an application that contains all information and/or data necessary to enable an informed decision to be made with respect to an application.
“FAA” means the Federal Aviation Administration, or its duly designated and authorized successor agency. “FCC” means the Federal Communications Council, or its duly designated and authorized successor agency. “Height” means, when referring to a tower or structure, the distance measured from the preexisting grade level to the highest point on the tower or structure, even if said highest point is an antenna or lightning protection device.
“Land use permit” means the official document or permit by which an applicant is allowed to file for a building permit to construct and use wireless telecommunications facilities as granted or issued by the city.
“Modification” or “modify” means, the addition, removal or change of any of the physical and visually discernable components or aspects of a wireless facility, such as antennas, cabling, equipment shelters, landscaping, fencing, utility feeds, changing the color or materials of any visually discernable components, vehicular access, parking and/or an upgrade or change out of equipment for better or more modern equipment. Adding a new wireless carrier or service provider to a telecommunications tower or telecommunications site as a co-location is a modification. A modification shall not include the replacement of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without adding, removing or changing anything.
“NIER” means non-ionizing electromagnetic radiation.
“Person” means any individual, corporation, estate, trust, partnership, joint stock company, association of two (2) or more persons having a joint common interest, or any other entity.
“Personal wireless facility.” See definition for “wireless telecommunications facilities”.
“Personal wireless services” or “PWS” or “personal telecommunications service” or “PCS” shall have the same meaning as defined and used in the 1996 Telecommunications Act.
“Planning commission” means the planning commission of Custer City.
“Repairs and maintenance” means the replacement of any components of a wireless facility where the replacement is identical to the component being replaced or for any matters that involve the normal repair and maintenance of a wireless facility without the addition, removal or change of any of the physical or visually discernable components or aspects of a wireless facility that will add to the visible appearance of the facility as originally permitted.
“Stealth” or “stealth technology” means to minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in general the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.
“State” means the State of South Dakota.
“Telecommunications” means the transmission and/or reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.
“Telecommunication site.” See definition for “wireless telecommunications facilities”.
“Telecommunications structure” means a structure used in the provision of services described in the definition of “wireless telecommunications facilities”.
“Temporary” means, temporary in relation to all aspects and components of this section, something intended to, or that does not exist for more than ninety (90) days.
“Tower” means any structure designed primarily to support an antenna for receiving and/or transmitting a wireless signal.
“Wireless telecommunications facilities” means and includes a “telecommunications site” and “personal wireless facility”. It means a structure, facility or location designed, or intended to be used as, or used to support antennas or other transmitting or receiving devices. This includes without limit, towers of all types and kinds and structures, including, but not limited to buildings, church steeples, silos, water towers, signs or other structures that can be used as a support structure for antennas or the functional equivalent of such. It further includes all related facilities and equipment such as cabling, equipment shelters and other structures associated with the site. It is a structure and facility intended for transmitting and/or receiving radio, television, cellular, SMR, paging, 911, personal communications services (PCS), commercial satellite services, microwave services and any commercial wireless telecommunication service not licensed by the FCC.
(Ord. 665 (part), 2009)
In order to ensure that the placement, construction, and modification of wireless telecommunications facilities protects the city's health, safety, public welfare, environmental features, the nature and character of the community and neighborhood and other aspects of the quality of life specifically listed elsewhere in this section, the city hereby adopts an overall policy with respect to a land use permit for wireless telecommunications facilities for the express purpose of achieving the following goals:
A. Requiring a land use permit for any new, co-location or modification of a wireless telecommunications facility.
B. Implementing an application process for person(s) seeking a land use permit for wireless tele- communications facilities.
C. Establishing a policy for examining an application for and issuing a land use permit for wireless tele- communications facilities that is both fair and consistent.
D. Promoting and encouraging, wherever possible, the sharing and/or co-location of wireless tele- communications facilities among service providers.
E. Promoting and encouraging, wherever possible, the placement, height and quantity of wireless telecommunications facilities in such a manner, including but not limited to the use of stealth technology, to minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically or commercially impracticable under the facts and circumstances.
F. That in granting a land use permit, the city has found that the facility shall be the most appropriate site in regards to being the least visually intrusive among those available in the city.
(Ord. 665 (part), 2009)
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