(A) General.
(1) Intent. In compliance with the Federal Communications Act of 1996, being 47 USC 201 et seq. and all other relevant state and federal law, rules and regulations, it is the intent of the town to allow telecommunication providers the opportunity to locate wireless telecommunications antenna (WTA) and related facilities within its jurisdiction in order to provide an adequate level of service to its customers while protecting the health, safety and welfare of its citizens, and the aesthetics of the community.
(2) Applicant’s responsibilities. It shall be the responsibility of all applicants and operators of the telecommunications equipment described herein to make all possible efforts to maintain consistency with the characteristics of this family beach community with its long and narrow island, its low building and vegetation profile, and the community whose primary income is based upon the attraction of tourists by the town’s qualities and characteristics as a family beach.
(3) Conformance. No WTA or wireless telecommunication support structure (WTSS) shall be constructed or modified from and after the date of adoption of this ordinance, except in conformance to the provisions stated in this section.
(4) Enforcement. This section may be enforced by any and every remedy provided by the state statutes as specified in Article 10, Enforcement.
(B) General requirements.
(1) Certification of need. Any applicant(s) requesting a new WTA or WTSS or any modification to an existing WTA or WTSS shall be required to provide substantial evidence of need for such structures both in terms of coverage and capacity.
(2) Co-location. WTA placement on an existing structure - either alternative antenna support structure (AASS) or WTSS - is required unless the applicant(s) can clearly demonstrate with substantial, clear and convincing evidence that all co-location opportunities have been exhausted. The town will attempt to maintain by its own efforts or through its agents an up-to-date inventory of buildings and structures suitable for WTA installations. Maps are available showing these locations, as well as relative flood zones and flight approach vectors to neighboring airfields.
(3) New construction provision for co-location. All new WTSS shall be constructed to permit a minimum of two new WTA. The owner(s) of the new WTSS shall submit a notarized letter to the town declaring that these additional sites shall be available to new tenants and shall be negotiated in good faith at reasonable terms to other providers, and that if good faith negotiations fail, both parties may be subject to commercial arbitration. They shall further state that as a condition of sale or transfer of the proposed structure to any new owner(s), operator(s) or agent(s) that a statement of intent to provide for shared use of tower shall be required of any new owner(s), operator(s) or agent(s) and shall be delivered to the town prior to closing.
(4) Federal certification. Any new WTA or WTSS, or any modification to an existing structure that would affect an increase in height shall require certification in writing by the Federal Aviation Administration that such addition or modification constitutes “No Hazard” to air navigation both by its physical structure and by its potential for radio frequency interference with aviation communication signals. The proposed structure shall also satisfy all TOW AIR requirements. If operator(s) of the proposed structure can reasonably show that the Federal Aviation Administration cannot produce such certification, then certification of “No Hazard” to air navigation from a certified private agency shall suffice.
(5) Certification of compliance with FCC’s Implementation of National Environmental Policy Act of 1969 (NEPA). The applicant(s) for any new WTA or WTSS or modification to any existing WTA or WTSS are required to file with the FCC if the structure location is within any definition provided in § 1.1307 of the NEPA. If the structure is located in any area defined by this Act, full compliance with the Act’s requirements for environmental assessments (EA) shall be required.
(6) Radio frequency. Radio frequency exposure levels shall not exceed the lesser of FCC and ANSI exposure standards at any potential point of exposure to the general public. The owner(s) and operator(s) of all WTA shall make all reasonable attempts by design, fencing, signage and the like to limit the public’s exposure. An engineer prepared and sealed document attesting to the fact that the calculated and proposed radio frequency levels shall remain at the lesser of the FCC and ANSI standards is required. This letter shall be required following completion of the structure’s construction, and before a certificate of occupancy is issued.
(7) Structural integrity. An engineer’s prepared and sealed complete site plan document that denotes compliance with all technical specifications provided in federal, state and town code, and a certification that the proposed structure and all proposed and potential occupant structures are stable and capable of withstanding a 50-year hurricane is required.
(8) Insurance requirements. A minimum of $1,000,000 general liability insurance with a letter from the insurer attesting to this fact shall be required prior to receipt of a certificate of occupancy. This same letter shall acknowledge that the insurer shall notify the town 30 days prior to cancellation of this insurance.
(C) New construction or modification of wireless telecommunication support structures (WTSS).
(1) Statement of financial responsibility. The owner(s), and their representative(s) shall be required to provide proof of financial responsibility for all wireless telecommunication structures constructed or maintained within the town. This statement shall be completed upon initial application, and renewed each year. If full financial responsibility cannot clearly be demonstrated to the full satisfaction of the town, a surety bond for 110% of the total cost of all structure(s) removal and associated cleanup may be required by the town. The owner(s) and their representative(s) shall be fully responsible for all maintenance, and continued assurance that the structure(s) continually remain in compliance with town code.
(2) Special use permit required. Construction of any new, or modification of any existing WTSS shall require a special use permit. Exemptions to this requirement shall include, but shall not be limited to, co-location of new WTA on an existing WTSS, reductions in height or size of a WTSS, or any issues of routine maintenance to either the WTA or WTSS.
(3) Demonstration of need. Applicants shall provide substantial evidence as to the current need for the proposed WTSS both in terms of coverage area and capacity, and must demonstrate why all currently available WTSS and AASS co-location opportunities cannot provide adequate coverage and capacity.
(4) Demonstration of lack of suitable co-location opportunities. New WTSS shall be permitted only after clear demonstration that all potential opportunities for co-location have been exhausted, and that no suitable existing support structures exist within the coverage area that may be used, including all WTSS and AASS. The applicant(s) shall identify and assess all potential opportunities for co-location within a 5,000-foot radius around the proposed point of construction for the new WTSS. An engineer’s prepared and sealed letter shall be required, attesting to the fact that it is technically impossible to co-locate on any existing WTSS and all other AASS within the search area, with a map showing all potential sites, and stating why each is technically unfeasible. A notarized letter from the applicant(s) shall be required listing all technically feasible sites, noting for each site that the applicant(s) attempted, in good faith, to negotiate terms of co-location with the owner(s) of the potential site, and negotiation has failed.
(5) Requirement of notification. Applicants shall be required to notify, by certified mail with return receipt requested, all property owners within 500 feet and all adjacent property owners of their application for construction of a new, or modification of an existing WTSS. Exceptions to this requirement shall include, but shall not be limited to, co-location of new WTA on an existing WTSS, reductions in height or size of the WTSS, or any issues of routine maintenance to either the WTA or WTSS.
(6) Minimum lot area. Parcels used for placement of new or modified WTSS shall be the greater of a minimum of 10,000 square feet, or shall be capable of meeting the minimum lot size necessary to accommodate the minimum setback requirements defined below.
(7) Minimum setback requirements. When the proposed structure is located adjacent to any church, school, public facility or residential zone, the center of the support structure shall be located a distance from the nearest property line a minimum of one and one-quarter times the greatest height of the structure including any WTA or devices that would add to the total height of the structure. The engineer’s site plan for the tower shall indicate that the fall radius for the tower lies within the tower site, and that the fall radius zone does not include any of the aforementioned structures or zones. Otherwise, the center of structure shall be located as close as possible to then the geometric center of the property, with minimum setbacks from all sides of 50 feet.
(8) Support structure type. Only camouflaged or “stealth” WTSS or monopole support structures shall be used. Structures involving the use of guy wires for either internal or external bracing and support, or lattice type structures, or any other type of support structure shall be prohibited.
(9) Permitted height. The WTSS may not exceed the minimum height necessary to accomplish the technical objectives of the primary WTA and the required number of additional WTAs, and shall be the lesser of the demonstrated minimum required for the technology employed, plus the minimum required for all proposed additional occupants. No WTSS shall be constructed that has any component of its structure more than 75 feet above the average adjacent tree or building lines. No combination of WTA and WTSS may exceed 100 feet. An engineer’s sealed letter describing the proposed WTSSs adherence to this provision shall be required.
(10) Illumination. No WTSS or WTA shall be illuminated unless specifically directed by the Federal Aviation Administration or other federal agency. If required, lighting must be to the minimum specified by a federal agency. Strobe lights shall be prohibited unless specifically required. When strobe lights are required by the specifying agency, they shall be dual strobes, with white strobes for daytime use, and red strobes for nighttime use. All lighting shall be directed toward the structure, and upward and outward from any public areas. A copy of the Federal Aviation Administration lighting requirements letter shall be submitted with the application.
(11) Color. Unless otherwise specified by a federal agency, all WTSS shall be painted a flat gray color.
(12) Limited to applicant. Every special use permit for freestanding WTSS shall be limited to the applicant(s). Any assignment or transfer of the special use permit or any of the rights under the permit may be made only upon the approval of the town.
(13) Complete application. A complete application, consisting of the following, shall be submitted for all proposed wireless telecommunication support structures (WTSS):
(a) WTSS application;
(b) Application fee;
(c) Copy of FCC license;
(d) Copy of all applications filed with federal and state agencies;
(e) FAA letter ascertaining “No Hazard” to air navigation;
(f) Statement of financial responsibility or surety bond;
(g) Engineer’s letter describing lack of technically feasible co-location opportunities within a 3,000-foot radius of the proposed site location;
(h) Owner(s) letter describing inability to negotiate in good faith co-location on all possible site which are technically feasible;
(i) Owner(s) letter describing and the availability and opportunity for co-location sites on the proposed structure;
(j) Engineer’s site plan for the proposed WTSS depicting the location parcel, its size, zoning, adjacent zoning and fall radius;
(k) FAA or other federal agency letter describing minimal lighting and color requirements for the proposed WTSS;
(l) Engineer’s letter denoting structural integrity of the proposed WTSS and all potential tenants, and certification of its integrity in a 50-year storm;
(m) Engineer’s letter attesting to the fact that exposures to the public of any radio frequency levels will at or below the lesser of the FCC and ANSI standards;
(n) Letter from insurer that the owner(s) will have a minimum $1,000,000 general liability policy, and that the insurer will notify the town 30 days prior to cancellation of this insurance;
(o) Engineer’s scaled site plan including elevations, visual analysis, rendering or photo simulation of the proposed WTSS from varying distances as viewed by the public; and
(p) Engineer’s site plan including elevations, and showing total heights of the proposed WTA and its support structure, and the WTA proposed color(s) and illumination scheme.
(D) Co-location on existing structures.
(1) Permitted use. Co-location of WTA on an existing WTSS or AASS shall be a permitted use.
(2) Zoning. Co-located WTA shall be allowed as a permitted use only in the Business Zoning Districts (B-1, B-2) and within the right-of-way for Highway 210 as defined by the state, and on water towers.
(3) Height limitations. WTA located on an existing WTSS or AASS shall not exceed the lesser of 15 feet or 10% of the existing support structure height as measured from the structure’s apex to the average ground level immediately adjacent to the structure.
(4) Color. The color of all WTAs shall match the color of the supporting WTSS or AASS.
(5) Illumination. Illumination requirements for new WTA co-located on existing structures shall be subject to the same requirements for freestanding WTSS.
(6) Lease agreement. A copy of the lease agreement between the owner(s) of the WTA and the owner(s) of the support structure shall be submitted with the application. The financial terms of the agreement need not be disclosed.
(7) Complete application. The requirements for a complete application for a WTA are:
(a) WTA application;
(b) Application fee;
(c) Copy of FCC license;
(d) Copy of all applications filed with federal and state agencies;
(e) FAA letter ascertaining “No Hazard” to air navigation;
(f) FAA or other federal agency letter describing minimal lighting and color requirements for the proposed WTA;
(g) Engineer’s letter denoting structural integrity of the proposed WTA and all potential tenants, and certification of its integrity in a 50-year storm;
(h) Engineer’s letter attesting to the fact that exposures to the public of any radio frequency levels will at or below the lesser of the FCC and ANSI standards;
(i) A copy of the lease agreement between the owner(s) of the WTA and the owner(s) of the structure on placement is proposed;
(j) Engineer’s depiction of the minimal size and other requirement for equipment housing structures; and
(k) Engineer’s site plan including elevations, and showing total heights of the proposed WTA and its support structure, and the WTA proposed color(s) and illumination scheme.
(8) Equipment housing structures.
(a) Visibility. The base of the support structure to a minimum height of six feet shall not be visible from any public right-of-way or area of public congregation, and must be hidden from view either by natural vegetation or by vegetative screening. All equipment necessary for the functional operation of the technology employed shall be located in either a lawfully pre-existing structure, or in an equipment housing structure. The colors and external characteristics of the equipment housing structures shall be harmonious with, and blend with, the natural features, buildings and structures surrounding it.
(b) Access drives. Roads and drives used to gain access from public right-of-way to the equipment housing structures shall be designed to minimize, as much as possible, viewing of the equipment housing structures by the public.
(c) Size. Equipment housing structures shall be the minimum size necessary to accommodate the closed storage of all ground-based equipment, and necessary materials for the primary occupant’s technical needs, and for the technical needs of all potential tenants. Depiction of the minimum size necessary to accomplish these technical objectives shall be included in the engineer’s site plan details.
(d) Fencing and screening. The accessory building and its fencing shall be fully surrounded (excepting a single point of access) by a planted vegetative screening, as described below, or by a minimum of 15 feet existing natural vegetation. Whether natural or planted, the vegetative buffer shall have the effect of fully obscuring the structure and its fencing from public view. All planted buffers shall be at least five feet tall at planting, and shall be designed to reach at least eight feet within two years, and shall be an evergreen, salt-resistant planting material. Continued maintenance and replacement of the vegetative buffer, as needed, shall be required for the permitted life of the structure. A security fence shall be installed along the full perimeter of the support structure and shall be no less than five feet and no more than eight feet high. The fencing shall incorporate designs for structure security and for making all possible efforts to minimize public exposure to radio frequency radiation. Any and all accessories and all materials relating to the use of the WTA or WTSS shall be installed within the building, unless technically impractical. All road or drive, gate, fence and vegetative screening details shall be noted within the engineer’s site plan.
(e) Signage. No advertising signs are permitted on the support structure, the fence, building or at any location on the site, with the exception of one sign that is attached to the gate, and one sign that is attached to the gate-face of the building for the purposes of safety and information. These two signs shall clearly identify the dangers, and shall provide the names of emergency contact persons and their phone numbers. Any signs shall comply with the town code.
(f) Two-way and microwave antennas. Two-way and microwave antennae shall be located within accessory buildings whenever technically feasible.
(g) Outdoor storage prohibited. Storage of any equipment or materials on the accessory building site or support structure site is prohibited.
(h) Noise producing equipment. Noise producing equipment shall be sited and/or insulated to minimize to the maximum practicable extent any increase in noise above ambient levels as measured at the property line.
(i) Electrical connections and land lines. Electrical connections and land phone lines to and from the accessory building shall be installed underground.
(E) Applicant’s remedy. Minor variances from the stated design and purpose of all structures may be addressed to the Board of Adjustment.
(F) Informal dispute resolution process. All parties shall attempt to adhere to the agreement adopting an informal dispute resolution process as described in the 1998 meeting between the LSGAC, the CTIA, the PCIA and the AMTA. This process is designed to arrive at a mutual agreement while avoiding lengthy and costly court proceedings. All parties retain their full legal rights should this remediation process fail.
(G) Appeal for remediation. Upon disapproval, or dissatisfaction with the conditions of approval by the Board of Aldermen, the applicant(s) shall have a 30-day period in which to request an appeal for remediation. The appeal for remediation shall involve the applicant(s), selected members of the Planning Board, and the Board of Aldermen, and shall be moderated by a third-party arbitration team. At the end of the process, the arbitration team will make a recommendation of its findings to all parties, and will provide a written record of the proceedings.
(H) Annual renewal.
(1) Annual renewal required. All WTA and WTSS shall be reviewed by the town on an annual basis. An application for annual renewal must be submitted to the town no later than 90 days prior to the date of last renewal or the date of the original certificate of occupancy. Structures will be re-permitted for the next 365 days following review by the inspections office, the Planning Board, and the Board of Aldermen.
(2) Application for renewal. The complete list of requirements for annual renewal for a WTSS and a WTA is:
(a) Renewal application fee;
(b) Complete renewal application form;
(c) Letter of continued insurance coverage for minimal general liability;
(d) Letter from the inspections department that the WTSS or WTA has remained in compliance with town code since the later of the last renewal or the certificate of occupancy;
(e) Engineer’s letter stating that the WTSS or WTA had remained in compliance with all federal, state and town code requirements for structural integrity, and for radio frequency exposure requirements; and
(f) Letter from the owner(s) that the WTSS or WTA has remained in compliance with all FCC, FAA and NEPA requirements since the later of either the last renewal or the certificate of occupancy. Letter from the owner(s) that they intend to maintain full financial responsibility for the WTSS or WTA for the entire renewal period.
(3) Abandonment. Any WTA or WTSS that is not operated for a continuous period of 180 consecutive days, or that is not maintained according to town code for 180 cumulative during the calendar year, or any structure for whom the owner(s) or representative(s) fail to make annual renewal shall be considered abandoned. Removal of the abandoned structure to the satisfaction of the inspections department shall be required within 90 days. The owner(s) shall be responsible for all costs of removal. Petition for a onetime extension of 90 days may be made to the Board of Adjustment. Density, intensity and dimensional standards.
(Ord. passed 11-2-2011)