1109.01  TELECOMMUNICATIONS OVERLAY DISTRICT.
   (a)   Intent:  Increasing competition in the telecommunications industry, especially in the market for wireless telecommunications services, is increasing the demand for antenna sites on Towers and other Antenna Support Structures necessary for providing wireless service.  The Telecommunications Act of 1996 preserves the authority of the City to regulate the placement, construction, and modification of Towers, Support Structures and/or Wireless Telecommunications Facilities to protect the health, safety and welfare of the public consistent with the Telecommunications Act of 1996.  This Section creates a Telecommunication Overlay District, and places certain prohibitions upon the placement of Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities in the City of Eaton in order to protect the health, safety and welfare of the citizens, without prohibiting any person from providing wireless telecommunications services in violation of the Act.  The regulations for the Telecommunication Overlay District, as outlined in this section, are intended to maintain a high character of community development, to protect and preserve property, to promote the stability of property values, and to protect real estate from impairment or destruction of value for the general community welfare by regulating the location of Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities within the City.
   (b)   Purpose: The purpose of this Overlay District is to regulate the placement, construction and modification of Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities in order to protect the health, safety and welfare of the public, while at the same time not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in the City.
   (c)   Objectives:  The following are the objectives of the Telecommunications Overlay District:
      (1)   To comply with the Telecommunications Act of 1996 to include any of the follow-on rule making and/or rule interpretations by the appropriate state and federal agencies and/or courts.
      (2)   To work pro-actively with the various wireless telecommunications service providers to ensure rapid and reliable deployment of their services/technologies, while minimizing negative impacts on the City.
      (3)   To direct the location of Towers, Antenna Support Structures  and/or Wireless Telecommunications Facilities in the City.
      (4)   To make available appropriate City owned property and structures for wireless telecommunications facilities.
      (5)   To minimize adverse visual impacts of Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities through careful design, siting, landscaping, and innovative camouflaging techniques.
      (6)   To promote and encourage shared use/co-location of Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities as a primary option rather than construction of additional single-use Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities.
      (7)   To avoid potential damage to adjacent properties caused by Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities by ensuring such structures are soundly and carefully designed, constructed, modified, maintained and removed.
      (8)   To the greatest extent feasible, ensure that Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities are compatible with surrounding land uses.
      (9)   To the greatest extent feasible, ensure that proposed Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities are designed in harmony with natural settings and in a manner consistent with current development patterns.
      (10)   To protect the community from inappropriately placed Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities and the general proliferation of such structures.
   (d)   Applicability: All Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities, any portion of which are located within the City, are subject to this section.  (The boundaries of the Telecommunications Overlay District are outlined on Map attached at the end of this Chapter.)  Except as provided in this section, any use being made of a pre-existing Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities on the effective date of this Section (herein "Nonconforming Structures") shall be allowed to continue, even if in conflict with the terms of this section; however, all re-construction or modifications to a Nonconforming Structure shall comply with paragraph (q) hereof.
Requirements:
   (e)   General Requirements:  Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities shall be treated as permitted uses subject to administrative approval, special permit uses, or conditional uses in a variety of zoning districts, contingent upon a number of requirements being met.  These criteria are in place in an attempt to minimize adverse health, safety, public welfare or visual impacts through co-location, siting, design and construction.
      (1)   The City's intent is to provide incentives for Wireless Telecommunications Service Providers that seek to further the City's following priorities:
         A.   Co-locate on/with other existing towers, structures and/or facilities or locate on existing structures, whether public or private.
         B.    Design new towers for multiple users, wherever possible.
         C.   Locate towers in the least obtrusive manner given present and evolving technology.
      (2)   Table 1 summarizes the City's zones and prioritizes the required process:
TABLE 1:  Zoning Districts
 



District
Co-location on Existing Antenna Support Structures on Towers (Public or Private)


New Multi- User Tower (Public or Private Property)



New Tower Single User


Alternative Tower Structure* * (Public or Private)
All Residential Districts
Prohibited
Commercial Districts
Administrat ive
Special Permit
Industrial Districts
Administrative
Special Permit
Planned Non- Residential Districts
Administrative
Special Permit
Office and Institutional
Administrative
Special Permit
Exceptional Use Non-Conforming and Special Districts
Administrative
Special Permit
Historic Overlay District
Special Permit and HDRB Approval
 
**  The goal of  Alternative Tower Structures is to camouflage the tower/antenna installation.  If it is the determination of the Planning Board that this essential criterion has not been met, a Special Permit shall be denied.
   (f)   Specific Requirements: The following requirements apply to all Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities regardless of the zoning district in which they are to be located. These general standards are to be supplemented with the specific regulations for nonresidential and residential districts as set forth herein.
      (1)   Inventory of Existing Sites: Each applicant for a Tower, Antenna Support Structure and/or Wireless Telecommunications Facility shall provide to the City an inventory of its existing Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities or sites planned and/or approved for Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities, that are either within the jurisdiction of Eaton or within two miles of the border thereof, including specific information about the location, height, and design of each Tower.  The City may share such information with other applicants applying for administrative approvals or special use permits under this UDO or other organizations seeking to locate Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities within the jurisdiction of Eaton, provided, however, that the City is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.
      (2)   Multiple Antenna/Tower Plan: Eaton encourages the owners of Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities to submit a single application for approval of multiple Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities sites.
      (3)   Multiple Users/Accommodation: The City encourages all towers to be constructed or re-constructed to accommodate multiple users.
      (4)   Historic Register/Overlay District:  Any application to locate a Tower, Antenna Support Structure and/or Wireless Telecommunications Facility on or in a building or structure that is listed on a historic register, or is in a historic district, shall be subject to review by the Historic District Review Board in addition to any other required review processes.
      (5)   Public Notice: Public notices shall be given in accordance with this UDO, as outlined in Section 1115.09.
      (6)   Tower Color and Finish: Towers shall either maintain a non- contrasting gray or similar color or have a galvanized steel finish unless otherwise required by the City or any applicable standards of the FAA and ODOT.
      (7)   Antenna Color: If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible, as determined by the City.
      (8)   Compatible Design:  At a tower site, the design of the buildings and related structures shall use materials, colors, textures, and screening so as to be aesthetically and architecturally compatible with the surrounding environment, as approved by the City.
      (9)   Lot Size and Setback: For purposes of determining whether the installation of a Tower, Antenna Support Structure and/or Wireless Telecommunications Facility complies with district development regulations, the setback from all property lines shall be determined by the height of the tower, at a one-to-one ratio.  The dimensions of the entire lot shall control, even though the antennas or towers may be located on lease parcels within such lot.
      (10)   Maximum Height: No Tower, including antenna, shall exceed three- hundred-twenty-five (325) feet, as measured from grade at the base of the tower.
      (11)   Fencing:  Any fencing shall comply with the City's accessory use regulations, as outlined in Section 1113.05.
      (12)   Landscaping: Buffer plantings shall be located on the site as deemed appropriate by the City and in accordance with the City's landscape regulations, as outlined in Section 1111.06.
      (13)   Underground Equipment Shelters: Underground equipment shelters will be required where appropriate screening of shelter cannot be accomplished.
      (14)   Lighting: Towers and antennas shall not be artificially lighted, unless required by the FAA or other applicable authority.  If lighting is required, the lighting alternatives and design chosen must cause the least disturbance to the surrounding views.
      (15)   Signs:  No signs shall be allowed on a Tower, Antenna Support Structure and/or Wireless Telecommunications Facility, except that a sign shall be posted indicating an emergency contact phone number.  Identification signage may be permitted in accordance with the City’s sign regulations, as outlined in Section 1111.08
      (16)   Building Code: Safety Standards: To ensure the structural integrity of Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities, the owner thereof shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities that are published by the Electronics Industries Association, as amended from time to time.  If, upon inspection, the City concludes that a Tower, Antenna Support Structure and/or Wireless Telecommunications Facility fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the Tower, Antenna Support Structure and/or Wireless Telecommunications Facility, the owner shall have thirty (30) days to bring such Tower, Antenna Support Structure and/or Wireless Telecommunications Facility into compliance with such standards. Failure to bring such tower into compliance within said thirty (30) days shall constitute grounds for the removal of the Tower, Antenna Support Structure and/or Wireless Telecommunications Facility at the owner’s expense.
      (17)   Building Permits: The installation of any Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities shall require the compliance with all local building regulations. No installation shall be allowed, without securing all applicable building permits.
      (18)   State or Federal Requirements:  All Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities. If such standards and regulations are changed, then the owners of the Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities governed by this UDO shall bring such Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities into compliance with such revised standards and regulations within six (6) months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring such Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner's expense.
      (19)   License to Operate: Owners and or operators of Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities shall submit copies of all franchises, certifications, licenses, and permits required by law for the design, construction, location and operation of Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities in Eaton.  Owners and/or operators shall be required to maintain same and to provide evidence of renewal or extension thereof when granted.
      (20)   Non-Essential Services: Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities shall be regulated and permitted pursuant to this Section and shall not be regulated or permitted as essential services, public utilities, or private utilities.
   Administrative:
   (g)   Administrative Review: The following provisions shall govern the issuance of administrative approvals for towers and antennas:
      (1)   All Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities will require a Certificate of Zoning Compliance and applicable building permits prior to installation.
      (2)   Each applicant for administrative approval shall apply for a Certificate of Zoning Compliance and provide the information to address this Section of the UDO. The applicant shall pay a non-refundable fee, as outlined in Section 1105.09, to reimburse the City for the costs of reviewing the application.
      (3)   The application shall be reviewed by the Zoning and Building Official for administrative approval to determine if the proposed use complies with this Section as well as all applicable requirements of the underlying zoning district. It is understood that any underlying height restrictions shall not apply.
      (4)   In connection with any application for Certificate of Zoning Compliance, in order to encourage co-location, the Zoning and Building Official may allow the reconstruction of an existing Tower, Antenna Support Structure and/or Wireless Telecommunications Facility, not to exceed the maximum allowable height.
      (5)   If a Certificate of Zoning Compliance in connection with an administrative review is denied, the applicant shall be entitled to file an appeal within twenty (20) days after the Zoning and Building Official’s decision. The appeal shall be filed with the Appeals Board, shall specify the grounds for such appeal, and shall follow the procedures outlined in Section 1115.10.
   (h)   Administrative Approval:  The following uses may be approved by the Zoning and Building Official after an administrative review has been conducted.  Approval following the administrative review shall be evidenced by the issuance of a Certificate of Zoning Compliance.
      (1)    Locating antenna on existing building or other antenna support structure, public or private.  Any antenna intended to be attached to a structure other than a tower may be approved as an accessory use to any commercial, industrial, professional, office, institutional, or similar structure, provided:
         A.   The antenna is designed to be as unobtrusive as possible.
         B.   The antenna does not extend more than twenty (20) feet above the highest point of the supporting structure;
         C.   The antenna complies with all applicable FCC and FAA regulations;
         D.   The antenna complies with all applicable building ordinances; and
         E.   Any additional equipment is fully screened and located in compliance with the underlying zoning district requirements.
      (2)   Co-locating antennas on an existing or reconstructed towers, public or private: The City may approve an antenna which is to be located on an existing or reconstructed tower.  This furthers the goal of minimizing the adverse visual impacts associated with the proliferation of towers.  Co- location of antennas by more than one carrier on existing towers shall take precedence over the construction of new towers, provided such co-location is accomplished in a manner consistent with the following:
         A.   A tower that is modified or reconstructed to accommodate the co- location of an additional antenna shall be designed to be consistent with the existing tower and to be as unobtrusive as possible.
         B.   An existing tower may be modified or rebuilt to a taller height, not to exceed two hundred (200) feet, to accommodate the co-location of additional antennae or in accordance as follows:
            1.   Co-location of several carriers may be required.
            2.   New towers and antennae shall not exceed three hundred twenty-five (325) feet in height.  For towers with less than four (4) users, Planning Board may limit the height of the tower as it deems appropriate.
            3.   Towers must be set back a minimum distance of one-to-one, based upon the height of the tower, from any adjoining lot line. Guys and accessory buildings must satisfy the minimum zoning district setback requirements; the antenna complies with all applicable FCC and FAA regulations; the antenna complies with all applicable building ordinances; and any additional equipment is fully screened and located in compliance with the underlying zoning district requirements.
         C.   The additional height shall not require an additional setback from the property lines, provided the tower meets the minimum setback requirements of one-to-one, based upon the height of the tower.  A tower that is being rebuilt to accommodate the co-location of additional antennae may be relocated on site as long as it meets the minimum setback requirement. After the tower is built to accommodate co-location, only one tower may remain on site if:
            1.   The antenna complies with all applicable FCC and FAA regulations;
            2.   The antenna complies with all applicable building ordinances; and
            3.   Any additional equipment is fully screened and located in compliance with the underlying zoning district requirements.
      (3)   Installing a cable microcell network through the use of multiple low- powered transmitters/receivers attached to existing wireline systems, such as conventional cable or telephone wires, outdoor early warning sirens, or similar technologies/mechanisms that do not require the use of towers.
   Special Permits:
   (i)   Special Permit Applications: The following provisions shall govern the issuance of special permits for Towers, Antenna Support Structures and/or Wireless Telecommunications Facilities by the Planning Board:
      (1)   In granting a special permit, the Planning Board may impose conditions to the extent the body concludes that such conditions are necessary to minimize any adverse effect of the proposed tower on adjoining properties.
      (2)   Any information of an engineering nature that the applicant submits, whether civil, mechanical, or electrical, shall be certified by a licensed professional engineer.
      (3)   An applicant shall submit the information described in the following paragraph and shall pay a non-refundable fee, as outlined in Section 1105.09, to reimburse the City for the costs of reviewing the application.
   (j)   Information Required:  In addition to any information required under paragraph (e) and (f), above, applicants for a special permit for a Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility shall submit the following information:
      (1)   A scaled and dimensioned site plan (not less than one inch equals 50 feet) clearly indicating the location, type and height of the proposed Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility, on-site land uses and zoning, adjacent land uses and zoning (including when adjacent to other municipalities), adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed tower and any other structures, topography, parking and other information necessary to assess compliance with this UDO.
      (2)   Legal description of the parent tract and/or leased parcel.
      (3)   The setback distance between the proposed Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility and the nearest residential property.
      (4)   The separation distance from other Towers, Antenna Support Structures, and/or Wireless Telecommunications Facilities, described in the inventory of existing sites (paragraph (f) above) shall be shown on a map.  The applicant shall also identify the type of construction of the existing Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility and the owner/operator of the existing Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility, if known.
      (5)   A landscape plan showing specific landscape materials, location and installation sizes.
      (6)   Method of fencing, if any, including height, material, style, and color and, if applicable, the method of camouflage and illumination.
      (7)   A description of compliance with all applicable federal, state or local laws.
      (8)   A notarized statement by the applicant as to whether construction of the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility will accommodate co-location of additional antennas for future users.
      (9)   Identification of the entities providing the backhaul network for the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility described in the application, and other Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility sites owned or operated by the applicant in the municipality.
      (10)   A description of the suitability of the use of existing Towers, Antenna Support Structures, and/or Wireless Telecommunications Facilities, other structures or alternative technology not requiring the use of Towers or structures to provide the services to be provided through the use of the proposed new Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility.
   (k)   Standards Considered in Granting Special Permits:  In addition to any standards for consideration of special permit applications pursuant to this UDO, the Planning Board shall consider the following factors in determining whether the application should be approved:
      (1)   Height of the proposed Tower or Antenna Support Structure;
      (2)   Proximity of the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility to residential structures and residential district boundaries;
      (3)   Nature of uses on adjacent and nearby properties;
      (4)   Surrounding topography;
      (5)   Surrounding tree coverage and foliage;
      (6)   Design of the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness;
      (7)   Proposed ingress and egress; and
      (8)   Availability of existing Towers, Antenna Support Structures, and/or Wireless Telecommunications Facilities, other structures or alternative technology not requiring the use of Towers or structures to provide the services to be provided through the use of the proposed new Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility.
   The Planning Board may waive or reduce the burden on the applicant of one or more of these criteria, if it determines that the goals of this Section are better served thereby.
   (l)   Special Permit Approval: The following uses may be approved by the Planning Board after a review has been conducted.  Approval shall constitute issuance of a Special Permit.
      (1)   Locating a new multi-user or single user tower or antenna, including the placement of additional buildings or other supporting equipment used in connection with said tower or antenna:  The Planning Board may approve a new tower or antenna where other less obtrusive measures are not feasible. With a goal toward minimizing the adverse visual impacts associated with the proliferation of towers, the following shall apply:
         A.   Co-location of several carriers may be required.
         B.   New towers and antennae shall not exceed three hundred twenty- five (325) feet in height.  For towers with less than four (4) users, Planning Board may limit the height of the tower as it deems appropriate.
         C.   Towers must be set back a minimum distance of one-to-one, based upon the height of the tower, from any adjoining lot line. Guys and accessory buildings must satisfy the minimum zoning district setback requirements; the antenna complies with all applicable FCC and FAA regulations; the antenna complies with all applicable building ordinances; and any additional equipment is fully screened and located in compliance with the underlying zoning district requirements.
      (2)   New towers shall be approved only when other preferable alternatives are not available: No new Tower shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Planning Board that no existing Tower, structure or alternative technology is available to fill the communication requirements.  An applicant shall submit information requested by the Planning Board related to the availability of suitable existing Towers, other structures or alternative technology.  Evidence submitted to demonstrate that no existing Tower, structure or alternative technology can accommodate the applicant's proposed antenna may consist of any of the following:
         A.   No existing Towers or structures are located within the specific geographic limits that met applicant's engineering requirements.
         B.   Existing Towers or structures do not have sufficient height to meet applicant's engineering requirements, and have insufficient structural strength to support applicant's proposed antenna and related equipment.
         C.   The applicant's proposed antenna would cause frequency interference with the antenna on the existing towers or structures, or the antenna on the existing towers or structures would cause interference with the applicant's proposed antenna.
         D.   The fees, costs, or contractual provisions required by the owner in order to share an existing Tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new Tower development are presumed to be unreasonable.
         E.   The applicant demonstrates that there are other limiting factors that render existing Towers and structures unsuitable.
         F.   The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a cable microcell network using multiple low-powered transmitters/receivers attached to a wireline system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable.
         G.   The applicant provides documentation that other tower owners were contacted in writing in pursuit of the above.
      (3)   Locating any alternative tower structure:  The Planning Board may approve the location of an alternative tower structure on private property, provided the site is in conformity with the objectives set forth in Section 1109.01(c) of this UDO.  Approval by the City Council shall also be required for such structures to be located on City property.  The objective here is to encourage ingenuity and the use of innovative methods to camouflage such facilities.  If it is the determination of the Planning Board that the proposed facilities have not been reasonably disguised or camouflaged, a Special Permit shall be denied.  If a Special Permit is denied, the applicant shall be entitled to file an appeal within twenty (20) days after the decision. The appeal shall be filed with the Appeals Board and shall specify the grounds for such appeal.
      (4)   Co-location on existing Antenna Support Structures or Towers (public or private) within the Historical Overlay District:  In addition to review by the Historic District Review Board, such a use shall require a Special Use Permit.  Any antenna intended to be attached to a structure other than a tower may be approved as an accessory use to any commercial, industrial, professional, office, institutional, or similar structure, provided:
         A.   The antenna is designed to be as unobtrusive as possible.
         B.   The antenna does not extend more than twenty (20) feet above the highest point of the supporting structure;
         C.   The antenna complies with all applicable FCC and FAA regulations;
         D.   The antenna complies with all applicable building ordinances; and
         E.   Any additional equipment is fully screened and located in compliance with the underlying zoning district requirements.
   (m)   Setback Requirements for Special Permits:  The following setback requirements shall apply to all towers for which a special use permit is required:
      (1)   Towers must be set back at a ratio of one-to-one, based upon the height of the tower, from any adjoining lot line.
      (2)   Guys and accessory buildings must satisfy the minimum zoning district setback requirements.
      (3)   Board may reduce the standard setback requirements if the objectives of this section, as outlined in Section 1109.01(c), would be better served thereby.
   (n)   Fencing Requirements for Special Permits. Fencing shall be required and shall comply with the City's UDO. However, that the Planning Board or Appeals Board may waive such requirements, as it deems appropriate.  The following requirements shall govern the landscaping surrounding towers from which a special use permit is required:
      (1)   Tower facilities shall be landscaped with a buffer of plant materials that effectively screens the view of the tower compound as determined by the Planning Board.
      (2)   In locations where the visual impact of the tower would be minimal, the landscaping requirement may be reduced or waived.
      (3)   Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible. In some cases, such as towers sited on large, wooded lots, natural growth around the property perimeter may be sufficient buffer.
      (4)   Planning Board may waive such requirements if requirements if the objectives of this section, as outlined in Section 1109.01(c), would be better served thereby.
   (o)   Buildings or Other Equipment Storage.
      (1)   Antennas Mounted on Structures or Rooftops:  The equipment cabinet or structure used in association with antennas shall comply with all applicable building ordinances. Additionally, such equipment shall be sited and designed to minimize its visual impact and be screened to its full height.
      (2)   Antennas Mounted on Utility Poles or Light Poles:  In commercial or industrial districts the equipment cabinet or structure shall be located at least fifteen (15) feet from all lot lines. The structure or cabinet shall be screened by an evergreen material with an ultimate height of eight (8) feet and a planted height of at least three feet.
      (3)   Antennas Located on Towers:  The related unmanned equipment structure shall not exceed the maximum height allowed in the district, and shall be located and screened in accordance with the zoning district requirements in which located.
   (p)   Abandonment of Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility:
      (1)   All providers utilizing Towers, Antenna Support Structures, and/or Wireless Telecommunications Facilities shall notify the City in writing of any Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility located in the City whose use will be discontinued and of the date this use will cease.  If the use of the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility is discontinued for one hundred eighty (180) days, the Zoning and Building Official may declare the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility to be abandoned. (This excludes any dormancy period between construction and the initial use of the facility.)
      (2)   The Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility 's owner/operator will receive written notice from the City and be instructed to either reactivate the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility 's use within one hundred eighty (180) days, or dismantle and remove the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility.  If reactivation or dismantling does not occur within that period, the City may remove that Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility or cause it to be removed and assess the costs to the owner/operator.  In the case of a multi-use tower, this provision does not become effective until all users cease use of the tower; however, the City may cause the abandoned portions of systems on the multi-use tower to be removed in accordance with this provision.
      (3)   The City must provide the owner three (3) months notice and an opportunity to be heard before the Planning Board before initiating action to remove the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility. The public hearing shall follow the required three (3) month notice, and all interested parties shall be allowed an opportunity to be heard at the public hearing. 
      (4)   After such notice and hearing has been provided, the Planning Board may order either the acquisition or demolition of the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility.  The City shall then have the authority to initiate proceedings either to acquire the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility, and any appurtenances attached thereto at the then fair market value, or in the alternative, to order the demolition of the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility and all appurtenances. The City may require Licensee to pay for all expenses necessary to acquire or demolish the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility.
   (q)   Nonconforming Uses:
      (1)   Conforming Uses: Towers, Antenna Support Structures, and/or Wireless Telecommunications Facilities that are constructed or installed in accordance with the provisions of this Section shall be deemed to constitute conforming uses or structures. This shall be the case even when such new facilities are being added to a non-conforming installation.
      (2)   Lawful Pre-existing Uses: Lawful, pre-existing Towers, Antenna Support Structures, and/or Wireless Telecommunications Facilities shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new Tower or Antenna Support Structure of like construction and height serving the same purpose) shall be permitted on such pre-existing Towers, Antenna Support Structures, and/or Wireless Telecommunications Facilities. A replacement Tower or Antenna Support Structure must be constructed within one hundred eighty (180) days of removal of the initial Tower or Structure. New construction other than routine maintenance on a pre-existing Towers, Antenna Support Structures, and/or Wireless Telecommunications Facilities shall comply with the requirements of this Section.
      (3)   Rebuilding Damaged or Destroyed Nonconforming Towers, Antenna Support Structures, and/or Wireless Telecommunications Facilities: Lawful, pre-existing, nonconforming Towers, Antenna Support Structures, and/or Wireless Telecommunications Facilities that are damaged or destroyed may be rebuilt with administrative approval by the Zoning and Building Official. The type, height, and location of the on-site Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility shall be of the same type and intensity as the original. Building permits to rebuild the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility shall comply with all applicable building codes and shall be obtained within one hundred eighty (180) days from the date the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility is damaged or destroyed.  If no permit is obtained or if said permit expires before reconstruction is complete, the Tower, Antenna Support Structure, and/or Wireless Telecommunications Facility shall be deemed abandoned and/or shall lose its lawful non-conforming status.
   (r)   Non-Waiver:  Nothing in this Section shall preclude the City from exercising any right or remedy it may have in law or equity to enforce the terms and conditions of this Section.
   (s)   Severability: If any provision of this Section or the application of any provision of this Section to any person is, to any extent, held invalid or unenforceable by a tribunal of competent jurisdiction, the remainder of this Section and the application of such provision to other persons or circumstances shall not be affected by such holding. In case of such an event, this Section and all if its remaining provisions shall, in all other respects, continue to be effective. In the event the law invalidating such section or provision is subsequently repealed, rescinded, amended or is otherwise changed so that the section or provision which had previously been held invalid or unenforceable, no longer conflicts with the laws, rules or regulations then in effect, the previously invalid or unenforceable section or provision shall return to full force and effect.
(Ord. 05-15.  Passed 11-7-05.)