Applications for wireless telecommunications facilities shall follow the requirements of this section and written findings shall be made by the Town of Fayetteville as to whether the proposed facility complies with the regulations outlined in this Section.
(a) Voluntary Pre-application Conference. All persons seeking approval under this Article may meet with the Town of Fayetteville prior to filing an application. It is recommended that the meeting occur no less than thirty (30) days prior to the anticipated filing of the application to ensure adequate consideration and adequate time to address concerns. At this meeting, the Town of Fayetteville shall explain to the applicant the regulations as well as application forms and submissions that will be required under this Article.
(b) Submission Materials. Where telecommunications facilities are a permitted use, applications shall be submitted to the Zoning Officer, who may confer with the Planning Commission in the application process as needed. Where telecommunications facilities are a conditional use, applications shall be submitted to the Board of Zoning Appeals. No application shall be deemed complete unless it is in writing, is accompanied by the applicable fees, includes the required submittals, and is attested to by the applicant, certifying the truth and accuracy of the information provided in the application.
(1) All applications shall include the following, in addition to the applicable subsections below:
A. The following contact information for the applicant:
1. Name,
2. Title,
3. Mailing address,
4. Phone number,
5. West Virginia tax number, and
6. Electronic mail address (optional).
B. If a corporation, the name and address of the registered agent of applicant in West Virginia and the state of incorporation of applicant.
C. If applicant is an entity other than a corporation, such as a partnership or limited liability company, the names and business addresses of the principals.
D. If the applicant is not the owner or person in control of the structure or site, the following shall be required:
1. Attestation that the owner or person in control of the structure or site has consented to the new facility, collocation, or for any modification that require a substantial change or are otherwise not considered an eligible facilities modification.
2. If the structure is in a public right-of-way, the applicant must also attest to having authorization to install, maintain, and operate a wireless telecommunication facility in, under, and above the public right-of-way.
E. If the applicant proposes a modification involving collocation of transmission equipment or the replacement of transmission equipment, the following shall be required: Complete copies of the underlying land use approvals for siting of the tower or base station proposed to be modified, establishing that, at the time of submittal of the application, such tower or base station constituted an eligible support structure.
(2) Applications for eligible facilities requests, as defined herein and subject to a determination under Section 1324.07 Substantial Change Criteria:
A. Attestation that the proposed request is subject to review under Section 6409 of the Spectrum Act as an “eligible facilities modification.”
B. If the applicant proposes a modification that will result in an increase in height of the eligible support structure, the following shall be required: Record drawings, as-built plans, or the equivalent, showing the height of the eligible support structure, (a) as originally constructed and granted approval by the Town of Fayetteville or other applicable local zoning or similar regulatory authority, or (b) as of the most recent modification that received approval, prior to the passage of Section 6409(a) of the Spectrum Act of 2012, whichever height is greater.
C. If the applicant proposes an eligible facilities request for modification to an eligible support structure, which structure, or proposed modification of the same, is subject to pre-existing restrictions or requirements imposed by the Town of Fayetteville ordinances, the following shall be required: A copy of the document setting forth such pre-existing restrictions or requirements, together with a certification that the proposed facilities modification conforms to such restrictions or requirements.
D. If the applicant proposes a modification to an eligible support structure, which structure, or proposed modification of the same, is subject to preexisting concealment restrictions or requirements, or was constructed with concealment elements, the following shall be required: Applicant shall set forth the facts and circumstances demonstrating that the proposed modification would not defeat the existing concealment elements of the eligible support structure. If
the proposed modification will alter the exterior dimensions or appearance of the eligible support structure, applicant shall include a detailed visual simulation depicting how the eligible support structure will appear after the proposed modification is complete. The visual simulation shall depict, to scale, the eligible support structure in relation to the trees, landscaping and other structures adjacent to, or in the immediate vicinity of, the eligible support structure.
E. If the applicant proposes a modification that will result in a protrusion from the edge of a tower that exceeds an existing protrusion of any transmission equipment attached to a tower or will protrude from the edge of a non-tower eligible support structure, the following shall be required: Record drawings and as-built plans, or the equivalent, showing, at a minimum, the edge of the eligible support structure at the location of the proposed modification.
F. If the applicant proposes a modification to an eligible support structure that (a) will include any excavation, (b) would result in a protrusion from the edge of a tower that exceeds an existing protrusion of any transmission equipment attached to a tower, or (c) would protrude from the edge of a non-tower eligible support structure, the following shall be required: A description of the boundaries of the site and a scaled drawing based on an accurate traverse, with angular and lineal dimensions, depicting the boundaries of the site in relation to the tower or base station proposed to be modified and depicting the proposed location, elevation, and dimensions of the new or replacement transmission equipment. The Town of Fayetteville may require a survey by a land surveyor licensed in the state of West Virginia when, in the judgment of the approval authority, a survey is reasonably necessary to verify the boundaries of the site to determine if the proposed facilities modification would result in a substantial change in the physical dimensions of the eligible support structure.
G. If the applicant proposes a modification to a tower, the following shall be required: A stamped report by a state of West Virginia registered or licensed professional engineer demonstrating that the tower with the proposed modifications will comply with applicable structural, electrical, and safety codes, including by way of example, but not limited to, the most recent revision of EIA/TIA-222, published by the American National Standards Institute (as amended), allowable wind speed for the applicable zone in which the tower is located, and describing the general structural capacity of the tower with the proposed modifications, including:
1. The number and type of antennas that can be accommodated;
2. The basis for the calculation of capacity; and
3. A written statement that the proposal complies with all federal guidelines regarding interference and ANSI standards as adopted by the FCC.
The Town of Fayetteville may retain the services of an independent technical expert to review, evaluate, and provide an opinion regarding the applicant’s demonstration of compliance.
H. If the applicant proposes a modification to a base station, the following shall also be required: A stamped report by a state of West Virginia registered or licensed professional engineer demonstrating that the base station, with the proposed modifications, will comply with applicable structural, electrical, and safety codes.
I. If the applicant proposes a modification requiring an alteration to the eligible support structure, excavation, installation of new equipment cabinets, or any other activities impacting or altering the land, existing structures, fencing, or landscaping on the site, the following shall be required: A detailed site plan and drawings, showing the true north point, drawn to an appropriate decimal scale, indicating and depicting:
1. The location, elevation, and dimensions of the existing eligible support structure;
2. The location, elevation, and dimensions of the existing transmission equipment;
3. The location, elevation, and dimensions of the transmission equipment, if any, proposed to be collocated or that will replace existing transmission equipment;
4. The location, elevation, and dimensions of any proposed new equipment cabinets and the intended use of each;
5. Any proposed modification to the eligible support structure;
6. The location of existing structures on the site, including fencing, screening, trees, and other significant site features; and
7. The location of any areas where excavation is proposed, showing the elevations, depths, and width of the proposed excavation and materials and dimensions of the equipment to be placed in the area excavated.
J. Copies of any environmental documents required by any state or federal agency. These shall include the environmental assessment required by 47 C.F.R. Part 1 (Part 1—Practice and Procedure), Section 1.1307, as amended, or, in the event that an environmental assessment is not required, a statement that describes the specific factors that obviate the requirement for an environmental assessment.
(3) Applications for new facilities, collocations, or for any modifications that require a substantial change or are otherwise not considered an eligible facilities modification, as defined by this Article, shall include the following in the application submittal:
A. Copies of any easements necessary to access the property and proof that the same has been recorded, or will be recorded, in the applicable county clerk’s office.
B. Certification of the wireless telecommunication facility's collocation capabilities or whether the proposal is a collocation on an existing facility and whether the applicant anticipates other lessees will be able to utilize the facility.
C. A copy of the FCC license for the facility, or a signed statement from the owner or operator of the facility attesting that the facility will comply with current FCC regulations.
D. Evidence of compliance with applicable local, state, and federal historic preservation laws and regulations, including a copy of a written request for a statement of compliance sent to the necessary local, state, and federal historic preservation authorities and said authorities’ written responses.
E. A map showing the location of all wireless telecommunications facilities above ground level, except antennas located on roof tops, within a three (3) air-mile radius of the proposed facility, unless this information has been previously made available to the Town of Fayetteville.
F. A site plan is required and shall include:
1. Certification by a professional engineer indicating the location, including latitude and longitude, type, and height of the proposed facility; antenna capacity; on-site and abutting off-site land uses; topography; setbacks; parking; fencing; landscaping; the collapse zone; easements or other means of access; and all applicable American National Standards Institute (ANSI) technical and structural codes.
2. A topographic map identifying the location of the site for the proposed wireless telecommunications facility.
3. A stormwater and erosion control plan for the access road to the site, or a written statement that there will be no changes implemented with regards to any existing roads.
4. Proximity of the proposed site to flood hazard areas.
5. Certification by the applicant that the proposed facility complies with all FCC standards for radio emissions.
6. A boundary survey completed by a land surveyor licensed by the State of West Virginia, and which includes the access road and vicinity map.
7. Photo simulations of the proposed facility taken from at least two perspectives, with emphasis placed on residential areas, public rights-of-way, public parks, designated scenic resources, and any historic site or district. Each photo must be labeled with the line of sight, elevation, and date taken.
G. The applicant shall identify and demonstrate consideration of each and every designated scenic resource or viewshed, as recognized by federal, state, or local government in which the proposed wireless telecommunications facility is located or visible and shall provide a scenic assessment for the project area consisting of the following:
1. Elevation drawings of the proposed facility, showing height above ground level.
2. A landscaping plan indicating the proposed placement of the facility on the site.
3. Location of existing structures, trees, and other significant site features.
4. A description and visual simulation of possible stealth tower design.
5. A description of the lighting and type of lighting the facility will implement, including, but not limited to, the color of the lighting and whether it will be constant, flashing, or strobe.
6. A narrative discussing the extent to which the proposed facility would be visible from any residential areas, height of vegetation within one hundred (100) feet of the facility at the time of application, and the distance to the proposed facility from a designated scenic resource’s noted viewpoints.
H. A propagation map, before and after, of how the proposed facility fits in the existing telecommunications network. The applicant must provide written evidence of a tenant for the proposed wireless telecommunications facility and the anticipated date that the facility will be occupied and used by such tenant. Such evidence may include a lease or letter of intent from the tenant. This submission requirement does not require disclosure of confidential business information. The Zoning Officer, Planning Commission, and Board of Zoning Appeals are hereby authorized to and may enter into a non-disclosure agreement with the applicant provided the non-disclosure agreement relates only to the applicant's propagation maps.
I. Evidence demonstrating that an existing building, site, or structure cannot accommodate the applicant's proposed facility, the evidence for which may consist of any one or more of the following:
1. Evidence that no existing facilities, located within the targeted market coverage area, meet the applicant's engineering requirements.
2. Evidence that existing facilities do not have sufficient height and cannot be increased in height at a cost not exceeding fifty percent (50%) of the cost required to construct the existing tower in present-day dollars, to meet the applicant's engineering requirements.
3. Evidence that existing facilities do not have sufficient structural strength to support the applicant's proposed antenna and related equipment. Specifically:
i. Planned, necessary equipment would exceed the structural capacity of the existing facility, considering the existing and planned use of the existing facilities, and the existing facilities cannot be reinforced to accommodate the new equipment.
ii. The applicant's proposed antenna or equipment would cause electromagnetic interference with the antenna on the existing towers or structures, or the antenna or equipment with the existing facility would cause interference with the applicant's proposed antenna.
iii. Existing or approved facilities do not have space on which planned equipment can be placed so it can function effectively.
4. Evidence that the fees, costs, or contractual provisions required by the owner of the existing facility or structure in order to share or adapt an existing facility are unreasonable, provided the existing facility was constructed prior to the effective date of the Article. Costs exceeding the pro rata share of a new facility development are presumed to be unreasonable.
5. Evidence that the applicant has made diligent good faith efforts to negotiate collocation on an existing facility, building, or structure, and has been denied access.
J. A form of surety approved by the Town of Fayetteville to pay for the costs of removing the facility to a depth of three (3) feet below ground level if it is abandoned.
K. Proof of compliance with all applicable federal, state, and local regulations, including the NEPA (National Environmental Policy Act) Environmental Compliance Checklist and Section 106 of NHPA (National Historic Preservation Act).
L. A statement from the applicable county’s assessor indicating the modification in real property taxation, if any, including the applicable tax rate to be charged, the real property subject to the tax rate, and the person or persons responsible for the payment of the real property taxes.
(c) Application Fee and Costs. An application shall include a non-refundable payment in accordance with the fee schedule adopted by the Town of Fayetteville. The application shall not be considered complete until this fee is paid.
(d) Notice of Complete Application.
(1) Upon receipt of an application, the applicant shall be provided with a dated receipt of submission.
(2) Within thirty (30) calendar days of receipt of an application, the application shall be reviewed to determine if the application meets the submission requirements. Any requests for a waiver from the submission requirements shall be reviewed prior to determining the completeness of the application.
(3) If the application is not complete, the applicant shall be notified in writing, specifying the additional materials or information required to complete the application.
(4) If the application is complete, the applicant shall be notified in writing of this determination and, if the application is to be reviewed by the Planning Commission or Board of Zoning Appeals, require the applicant to provide a sufficient number of copies of the application for the Planning Commission or Board of Zoning Appeals.
(e) Modification of Application Prior to Approval. In the event that after submittal of the application, or as a result of any subsequent submittals, the applicant materially modifies the proposed facilities described in the initial application, the application as modified will be considered a new application subject to commencement of a new application review period and application fee; provided that, applicant and the approval authority may, in the alternative, enter into a mutually agreeable tolling agreement allowing the Town of Fayetteville to request additional submittals and additional time that may be reasonably necessary for review of the modified application.
(f) Approval of Application. The shot clock period begins to run when the application is filed and may be tolled only by mutual agreement or in cases where the application is incomplete and notice is provided to the applicant that the application is insufficient.
(1) Approval of Eligible Facilities Modifications. Within sixty (60) calendar days of the date of receipt of an eligible facilities modification application, a determination shall be made as to whether the proposed modification is an eligible facilities modification, and contemporaneously a permit issued or the application denied.
(2) Approval of Applications involving (1) collocation or (2) modifications that are not eligible facilities modifications. Within ninety (90) calendar days of the date on which the Town of Fayetteville receives an application for collocation, as defined by this Article, or a modification that is not an eligible facilities requests, as defined by this Article, a determination shall be made on the application, and contemporaneously a permit issued or the application denied.
(3) Approval of All New Towers. Within one hundred and fifty (150) calendar days of the date on which the Town of Fayetteville receives an application for the construction of a new wireless telecommunication facility, or any modification that is not solely for a collocation, and that does not meet the requirements for eligible facilities modification under this Article, a determination shall be made on the application, and contemporaneously a permit issued or the application denied.
(g) Denial of All Applications. A denial of an application shall set forth in writing the reasons for the denial and shall be provided to the applicant contemporaneously with the denial of the application.
(h) Tolling Timeline for Approval Due to Incompleteness.
(1) To toll the timeline due to application incompleteness, written notice shall be provided to the applicant within thirty (30) calendar days of receipt of the application, clearly and specifically delineating all missing documents or information.
(2) The timeline for review (when tolling ends) begins running again when the applicant makes a supplemental submission in response to the notice of incompleteness.
(3) Following a supplemental submission, the Town of Fayetteville shall have ten (10) business days to notify the applicant that the supplemental submission did not provide the information identified in the original notice delineating missing information. The timeline is tolled in the case of second or subsequent notices, and tolling ends when the applicant makes supplemental submissions. Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.
(Passed 7-7-22.)