(a) The purpose of this Section is to regulate the placement, construction, and modification of wireless telecommunications facilities and their support structures in order to protect the public health, safety, and welfare, while at the same time not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in the Miami Valley Region. Specifically, the purposes of the Section are:
(1) To direct the location of various types of towers and wireless telecommunications facilities into appropriate areas of the Municipality.
(2) To protect residential areas and land uses from potential adverse impacts of towers and wireless telecommunications facilities.
(3) To minimize adverse visual impacts of towers and wireless telecommunications facilities through careful design, siting, landscaping, and innovative camouflaging techniques.
(4) To promote and encourage shared use/co-location of towers and antenna support structures as a primary option rather than construction of additional single-use towers.
(5) To avoid potential damage to adjacent properties caused by towers and wireless telecommunications facilities by ensuring such structures are soundly designed, constructed, and modified; are appropriately maintained; and are fully removed.
(6) To the greatest extent feasible, ensure that towers and wireless telecommunications facilities are compatible with surrounding land uses.
(7) To the greatest extent feasible, ensure that towers and wireless telecommunications facilities are designed in harmony with natural settings and in a manner consistent with current development patterns.
(b) Applicability. All towers, antenna support structures, and wireless telecommunications facilities any portion of which are located within the Municipality are subject to this Zoning Code except as provided in this Zoning Code, any use being made of an existing tower or antenna support structure on the effective date of this Zoning Code shall be deemed a nonconforming structure and allowed to continue, even if in conflict with the terms of this Zoning Code. Any tower site that has received approval in the form of a permit by the Municipality, but has not yet been constructed or located shall be considered a nonconforming structure so long as such approval is current and not expired.
(c) Definitions. Specific words and terms as used in this Section are defined as follows:
(1) “Antenna” means any panel, whip, dish, or other apparatus designed for communications through the sending and/or receiving of electromagnetic waves, excluding any support structure other than brackets.
(2) “Antenna support structure” means any building or other structure other than a tower which can be used for location of wireless telecommunications facilities.
(3) “Co-location” means the use of a wireless telecommunications facility by more than one wireless telecommunications provider.
(4) “Emergency” means a reasonably unforeseen occurrence with a potential to endanger personal safety or health, or cause substantial damage to property, that calls for immediate action.
(5) “Equipment shelter” means the structure in which the electronic receiving and relay equipment for a wireless telecommunications facility is housed.
(6) “FAA” means the Federal Aviation Administration and any legally- appointed, designated, or elected agent or successor.
(7) “FCC” means the Federal Communications Commission and any legally- appointed, designated, or elected agent or successor.
(8) “Monopole” means a support structure constructed to a single, self- supporting hollow metal tube securely anchored to a foundation.
(9) “Person” means any natural person, firm, partnership, association, corporation, or other legal entity, private or public, whether for profit or non-profit.
(10) “Tower” means a self-supporting lattice, guyed, or monopole structure constructed from grade which supports wireless telecommunications facilities. The term “tower” shall not include amateur radio operator's equipment as licensed by the FCC.
(11) “Wireless telecommunications facility” means any cables, wires, lines, wave guides, antennas, and any other equipment or facilities associated with the transmission or reception of communications as authorized by the FCC which a person seeks to locate or have installed upon a tower antenna support structure. However, the term “wireless telecommunications facilities” shall not include:
A. Any satellite earth station antenna 2 meters in diameter or less which is located in an area zoned Business or Industrial.
B. Any satellite earth station antenna 1 meter or less in diameter, regardless of zoning category.
C. Antennas used by amateur radio operators.
(d) Standards Applicable to All Wireless Telecommunications Facilities.
(1) Construction standards. All wireless telecommunications facilities and support structures shall be certified by an Engineer licensed in the State of Ohio to be structurally sound and, at a minimum, in conformance with Ohio Basic Building Code.
(2) Natural resource protection standards. The location of the wireless telecommunications facility shall comply with all natural resource protection standards established either in this Zoning Ordinance or in other applicable regulations, including those for floodplains, wetlands around water protection, and steep slopes.
(3) Historic or architectural standards compliance. Any application to locate a wireless telecommunications facility on a building or structure that is listed on a federal, state, or local historic register, or is in a historic district established by the Municipality, shall be subject to review by the County Building Commissioner to ensure architectural and design standards are maintained.
(4) Color and appearance standards. All wireless telecommunications facilities shall be painted a non-contrasting gray or similar color minimizing its visibility unless otherwise required by the FCC, FAA, and/or by historical or architectural standards imposed. All appurtenances shall be aesthetically and architecturally compatible with the surrounding environment by the means of camouflage deemed acceptable by the Municipality.
(5) Advertising prohibited. No advertising is permitted anywhere upon or attached to the wireless telecommunications facility.
(6) Artificial lighting restricted. No wireless telecommunications facility shall be artificially lit except as required by the FAA.
(7) Co-Location. All wireless telecommunications facilities shall be subject to the co-location requirements set forth in this Section.
(8) Abandonment . All wireless telecommunications facilities shall be subject to the abandonment requirements set forth in this Section.
(9) Setback from edge of roof. Any wireless telecommunications facility and its appurtenances permitted on the roof of a building shall be set back 1 foot from the edge of the roof for each 1 foot in height of the wireless telecommunications facility. However this setback requirement shall not apply to antennas that are less than 2 inches in thickness mounted to the sides of antenna support structures and that do not protrude more than 6 inches from the side of such an antenna support structure. This requirement is subject to change by the Municipality upon review of the photo simulation provided in compliance with this Section.
(10) Security enclosure required. All towers and equipment shelters shall be enclosed either completely or individually as determined by the Municipality. No fencing shall be permitted in a residential zone. The Municipality and co-locators shall have reasonable access. No fence shall be required on top of a building or other structure if access to the roof or top of the structure or building is secure.
(11) Existing vegetation and buffer plantings. Existing vegetation (trees, shrubs, etc.) shall be preserved to the maximum extent possible. Buffer plantings shall be located around the perimeter of the security enclosure as deemed appropriate by the Municipality. An evergreen screen may be required around the perimeter of the property in lieu of such buffer plantings.
(12) Access control and emergency contact. "No Trespassing" signs shall be posted around the wireless telecommunications facility, along with a telephone number of who to contact in the event of an emergency.
(e) Co-Location Requirements.
(1) Exemption from proof of co-location availability. Persons locating a wireless telecommunications facility on a publicly-owned property shall be exempted from the requirements herein regarding presentation of proof that co-location is not available. However, persons locating a wireless telecommunications facility on publicly-owned property shall continue to be subject to the requirements contained in this Section.
(2) Exemption from certain requirements. Persons locating a wireless telecommunications facility on a publicly-owned property identified by the Municipality to be suitable for such purposes shall be exempt from the requirements of this Section.
(3) Co-location design required. No new tower shall be constructed in the Municipality unless such tower is capable of accommodating at least one additional wireless telecommunications facility owned by another person.
(4) Technically suitable space. Authorization for a tower shall be issued only if there is no technically-suitable space reasonably available on an existing tower or structure within the geographic area to be served.
(5) Application requirements. With the permit application, the applicant shall list the location of every tower, building, or structure within 3 miles that could support the proposed antenna. The applicant must demonstrate that a technically-suitable location is not reasonably available on an existing tower, building, or structure within such area. If another communication tower owned by another party within such area is technically-suitable, applicant must show that an offer was made to the owner of such tower to co-locate an antenna on a tower owned by the applicant on reciprocal terms within the geographic area, and the offer was not accepted. If such co-location offer has not been attempted by the applicant, then such other tower is presumed to be reasonably available.
(f) Wireless Telecommunications Facilities in Agricultural Districts.
(1) Permitted principal use. The following wireless telecommunications facilities are permitted as a principal use on a lot, subject to the following requirements:
A. Tower
1. Maximum Height. The maximum height shall be less than 200 feet. Towers 200 feet or more in height shall require approval as a conditional use under the guidelines of this Section.
2. Minimum Setback from Property Lines. No tower shall be located a distance of less than its height from the nearest property line.
3. Minimum Setback from Residential Structure. No tower shall be located less than 200 feet from a structure used as a residence.
4. Equipment Shelter. The minimum setbacks and yard requirements for principal structures shall apply and such shelter shall not be located above ground in any required front or side yard.
(2) Accessory structure. The following wireless telecommunications facilities are permitted as an accessory structure on a lot, subject to the following requirements:
A. Tower.
1. Maximum Height. The maximum height shall be less than 200 feet. Towers 200 feet or more in height shall require approval as a conditional use under the guidelines of this Section.
2. Minimum Setback from Property Lines. No tower shall be located a distance of less than its height from the nearest property line.
3. Minimum Setback from Residential Structure. No tower shall be located less than 200 feet from a structure used as a residence on any adjoining property.
4. Equipment Shelter. The minimum setbacks and yard requirements for principal structures shall apply and such shelter shall not be located above ground in any required front or side yard.
B. Antenna. The antenna shall not be attached to a structure used as a residence.
(3) Conditional use. The following wireless telecommunications facilities are permitted as a conditional use on a lot, subject to the following requirements:
A. Tower.
1. Maximum Height. Any height of such tower in excess of the distance of such tower from the nearest property line shall require approval of the BZA.
2. Minimum Setback from Property Lines. The minimum setbacks and yard requirements shall be established by the BZA.
3. Minimum Setback from Residential Structure. No tower shall be located a distance less than its height from a structure used as a residence.
4. Equipment Shelter. The minimum setbacks and yards requirements shall be established by the BZA and such shelter shall not be located aboveground in any required front or side yard.
(g) Wireless Telecommunications Facilities in Residential Districts.
(1) Permitted principal use. No wireless telecommunications facility is permitted as a principal use on a lot.
(2) Accessory structure. The following wireless telecommunications facilities are permitted as an accessory structure on a lot, subject to the following requirements:
A. Tower. No wireless telecommunications tower is permitted as an accessory structure within a residential district without conditional use approval under the guidelines of this Section.
B. Antenna. An antenna for a wireless telecommunications facility may be attached to an existing residential building four or more stories in height or to an existing nonresidential structure subject to the following conditions:
1. Maximum Height. The antenna shall not extend more than 20 feet above the roof of the existing building or top of the existing structure.
2. Separate Equipment Shelter. If the applicant proposes to locate the telecommunications equipment in a separate equipment shelter, not located in or attached to the building, the equipment shelter shall comply with the accessory building regulations of the district and not be located aboveground within any required front or side yard.
3. Vehicular Access. Vehicular access to the equipment shelter shall be via the existing circulation system and be paved with asphalt or concrete.
(3) Conditional use. The following wireless telecommunications facilities are permitted as a conditional use on a lot, subject to the following requirements:
A. Tower. A wireless telecommunications tower may be an accessory structure to a public or institutional use within a residential zoning district, provided the BZA finds the following standards have been met:
1. Minimum Lot Size for Principal Use. The minimum lot size for principal use for which the tower is accessory shall be 5 acres.
2. Minimum Setback from Property Lines and Residential Structures. The minimum setbacks and yard requirements shall be established by the BZA.
3. Maximum Height. The height of such tower shall be subject to approval by the BZA and be the minimum height necessary.
4. Equipment Shelter. The minimum setbacks, height limits, bulk requirements, and screening standards shall be established by the BZA during the conditional use process. Such shelter shall not be located aboveground in any required front or side yard.
B. Antenna. The BZA may approve the location of an antenna extending more than 20 feet above the roof of an existing building or structure.
1. Attachment to Existing Building. An antenna for a wireless telecommunications facility may be attached to an existing residential building four or more stories in height or to an existing nonresidential structure subject to the following conditions:
i. Roof Setback. The pole structure supporting such antenna shall be set back 1 foot from the edge of such roof for each 1 foot of height above such roof. This requirement shall not apply to antennas 2 inches or less in thickness without a supporting pole structure.
ii. Separate Equipment Shelter. If the applicant proposes to locate the telecommunications equipment in a separate equipment shelter, not located in or attached to the building, the equipment shelter shall comply with the accessory building regulations of the district and not be located aboveground within any required front or side yard.
iii. Required Buffer. A buffer shall be planted in accordance with this Section.
iv. Vehicular Access. Vehicular access to the equipment shelter shall be via the existing circulation system and be paved with asphalt or concrete.
(h) Wireless Telecommunications Facilities in Business and Professional Districts.
(1) Permitted principal use. The following wireless telecommunications facilities are permitted as a principal use on a lot, subject to the following requirements:
A. Tower.
1. Maximum Height. The maximum height shall be less than 200 feet. Towers 200 feet or more in height shall require approval as a conditional use under the guidelines of this Section.
2. Minimum Setback from Property Lines. The minimum setbacks and yard requirements for principal structures shall apply.
3. Minimum Setback from Residential Structure. No tower shall be located less than 200 feet from a structure used as a residence.
4. Equipment Shelter. The minimum setbacks and yard requirements for principal structures shall apply and such shelter shall not be located aboveground in any required front or side yard.
(2) Accessory structure. The following wireless telecommunications facilities are permitted as an accessory structure on a lot, subject to the following requirements:
A. Tower.
1. Maximum Height. The maximum height shall be less than 200 feet. Towers 200 feet or more in height shall require approval as a conditional use under the guidelines of this Section.
2. Minimum Setback from Property Lines. The minimum setbacks and yard requirements for principal structures shall apply.
3. Minimum Setback from Residential Structure. No tower shall be located less than 200 feet from a structure used as a residence.
4. Equipment Shelter. The minimum setbacks and yard requirements for principal structures shall apply and such shelter shall not be located aboveground in any required front or side yard.
B. Antenna. The antenna shall not be attached to a residential structure.
(3) Conditional use. The following wireless telecommunications facilities are permitted as a conditional use on lots subject to the following requirements:
A. Tower 200 Feet or More in Height.
1. Minimum Setback from Property Lines. The minimum setbacks and yard requirements for principal structures shall apply.
2. Minimum Setback from Residential Structure. No tower shall be located a distance less than its height from a structure used as a residence.
3. Equipment Shelter. The minimum setbacks and yard requirements for principal structures shall apply and such shelter shall not be located above ground in any required front or side yard.
B. Antenna. The antenna shall not be attached to a residential structure unless such structure is four or more stories in height.
(i) Wireless Telecommunications Facilities in Industrial Districts.
(1) Permitted principal use. The following wireless telecommunications facilities are permitted as a principal use on a lot, subject to the following requirements:
A. Tower.
1. Maximum Height. The maximum height of such tower shall be less than the distance of such tower from the nearest property line.
2. Minimum Setback from Property Lines. The minimum setbacks and yard requirements for principal structures shall apply.
3. Minimum Setback from Residential Structure. No tower shall be located a distance less than its height from a structure used as a residence.
4. Equipment Shelter. The minimum setbacks and yard requirements for principal structures shall apply and such shelter shall not be located aboveground in any required front or side yard.
(2) Accessory structure. The following wireless telecommunications facilities are permitted as a conditional use on a lot, subject to the following requirements:
A. Tower.
1. Maximum Height. The maximum height of such tower shall be less than the distance of such tower from the nearest property line.
2. Minimum Setback from Property Lines. The minimum setbacks and yard requirements for principal structures shall apply.
3. Minimum Setback from Residential Structure. No tower shall be located a distance less than its height from a structure used as a residence.
4. Equipment Shelter. The minimum setbacks and yard requirements for principal structures shall apply and such shelter shall not be located above ground in any required front or side yard.
B. Antenna. The antenna shall not be attached to a residential structure unless such structure is four or more stories in height.
(3) Conditional use. The following wireless telecommunications facilities are permitted as a conditional use on a lot, subject to the following requirements:
A. Tower.
1. Maximum Height. Any height of such tower in excess of the distance of such tower from the nearest property line shall require approval of the BZA.
2. Minimum Setback from Property Lines. The minimum setbacks and yard requirements for principal structures shall apply.
3. Minimum Setback from Residential Structure. No tower shall be located a distance less than its height from a structure used as a residence.
4. Equipment Shelter. The minimum setbacks and yard requirements for principal structures shall apply and such shelter shall not be located above ground in any required front or side yard.
B. Antenna. The antenna shall not be attached to a residential structure unless such structure is four or more stories in height.
(j) Abandonment of Tower.
(1) Required notification. All providers utilizing towers shall present a report to the Municipality notifying it of any tower facility located in the Municipality whose use will be discontinued and the date this use will cease. Such report shall be filed with the Municipality 30 days prior to the cessation date. If at any time the use of the facility is discontinued for 180 days, the Municipal Manager may declare the facility abandoned. The 180-day period excludes any dormancy period between construction and the initial use of the facility. The owner/operator of the facility will receive written notice from the Municipal Manager and be instructed to either reactivate use of the facility within 180 days, or dismantle and remove the facility. If reactivation or dismantling does not occur, the Municipality will either remove the facility or will contract to have the facility removed and assess the owner/operator the costs.
(2) Required notice to owner. The Municipality must provide the tower owner a 30-days notice and an opportunity to be heard before the BZA before initiating such action. After such notice has been provided, the Municipality shall have the authority to initiate proceedings to either acquire the tower and its appurtenances attached thereto at the current fair market value at that time or in the alternative, order the demolition of the tower and all appurtenances.
(3) Right to public hearing by owner. The Municipality shall provide the tower owner with the right to a public hearing before the BZA which public hearing shall follow the 30-day notice required in this Section. All interested parties shall be allowed an opportunity to be heard at the public hearing.
(4) Order of abatement or demolition. After a public hearing is held pursuant to this Section, the Municipality may order the abatement or demolition of the tower. The Municipality may require licensee to pay for all expenses necessary to acquire or demolish the tower.
(k) Application and Review Requirements.
(1) Required information for applications. All applications for wireless telecommunications facilities including towers shall include the information required under this Section.
(2) Plot plan required. When a proposed wireless telecommunications facility or antenna support structure is to include a new tower, a plot plan at a scale of not less than 1 inch equals 100 feet shall be submitted. This plot plan shall indicate all building and land uses within 200 feet of the proposed facility. Aerial photos and/or renderings may augment the plot plans.
(3) Photo simulations required. Photo simulations of the proposed wireless telecommunications facility from affected residential properties and public rights-of-way taken at designated locations shall be provided.
(4) Proof why nonresidential tower location not feasible. In applying for authorization to erect a tower within any residential district, the applicant must present sufficient evidence as to why it is not technically feasible to locate such tower in a more appropriate nonresidential zone. This evidence shall be reviewed by the Municipality. If the Municipality refutes the evidence, then the tower is not permitted.
(5) Technical necessity. The applicant shall demonstrate that the telecommunication tower must be located where it is proposed in order to provide adequate coverage to the applicant's service area. There shall be an explanation of why a tower and the proposed site are technically necessary.
(6) Land owner support and access. Where the wireless telecommunications facility is located on a property with another principal use, the applicant shall present documentation that the owner of the property supports the application and vehicular access is provided to the facility.
(7) Required site and landscaping plan. The applicant shall present a site and landscaping plan showing the following:
A. Specific placement of the wireless telecommunications facility on the site.
B. The location of existing structures, trees, and other significant site features.
C. Type and locations of plant materials used to screen the facilities.
D. The proposed color of the facilities.
(8) Co-location and removal agreement. The applicant shall present signed statements indicating that:
A. The applicant agrees to allow for the potential co-location of additional wireless telecommunications facilities by other providers on the applicant's structure or within the same site location; and
B. The applicant agrees to remove the facility within 180 days after its use is discontinued.
(9) Review procedure. Once an application for the placement or expansion of a wireless telecommunications facility has been submitted and accompanied by a one hundred dollar ($100.00) nonrefundable application fee, the application shall be reviewed by the Planning Commission within 30 days after submission of all necessary information required in this Section.
(10) Denial by Municipality. Any decision to deny a request to place, construct, or modify a wireless telecommunications facility and/or tower shall be in writing and supported by evidence contained in a written record.
(l) Variances. Any request to deviate from any of the requirements of this Zoning Code shall require approval of a variance in conformance with the procedure set forth in the Zoning Ordinance.
(m) Separability. Should any section, clause, paragraph, sentence, item, phrase, or provision of this Zoning Code be declared by a Court of competent jurisdiction to be unconstitutional or invalid such decision shall not affect the validity of this Zoning Code as a whole, or any part thereof, other than the part so declared to be unconstitutional or invalid.
(Ord. 00-30. Passed 6-5-2000.)