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(A) Compelling public interest. The Town Council finds and declares that, because of the national public policy of ensuring that the wireless industry and its evolving new technologies are accommodated notwithstanding the undesirable effects that communication towers may have on the aesthetics of communities and neighborhoods, there is a compelling public interest in ensuring that communication towers are promptly disassembled, dismantled and removed once they are no longer being used. Further, the Town Council finds that there is substantial risk that towers may cease being used in large numbers if there is a concentration or consolidation of competitors within the industry or if even newer technologies arise, obviating the need for towers.
(1) In the event the use of any communication tower has been discontinued for a period of 180 consecutive days, the tower shall be deemed abandoned. Determination of the date of abandonment shall be made by the town planner, who shall have the right to request documentation and/or affidavits from the communication tower owner/operator regarding the issue of tower usage. Failure or refusal for any reason by the owner/operator to respond within 20 days to a request shall constitute prima facie evidence that the communication tower has been abandoned. Upon a determination of abandonment and notice thereof to the owner/operator, the owner/operator of the tower shall have an additional 180 days within which to:
(a) Reactivate the use of the tower or transfer the tower to another owner/operator who makes actual use of the tower within the 180 day period; or
(b) Dismantle and remove the tower.
(2) At the earliest of the 181 days from the date of abandonment without reactivation or upon completion of dismantling and removal, any approval for the tower will automatically expire.
(C) Duty to remove abandoned towers.
(1) Notwithstanding the provisions of division (B) above, upon abandonment of a communication tower as determined under division (B) above by the town planner and the failure or refusal by the owner/operator of the tower to either reactivate the tower or dismantle and remove it within 180 days as required by division (B) above, the following persons or entities (the “responsible parties”) shall have the duty jointly and severally to remove the abandoned tower:
(a) The owner of the abandoned tower (and, if different, the operator of the abandoned tower);
(b) The owner of the land upon which the abandoned tower is located;
(c) The lessee, if any, of the land upon which the abandoned tower is located;
(d) The sublessee or sublessee(s), if any, of the land upon which the abandoned tower is located;
(e) Any communication service provider who or which by ceasing to utilize the tower, or otherwise failing to operate any of its transmitters or antennas on the tower for which it leased space or purchased the right to space on the tower for its transmitters or antennas and the ceasing or failure to utilize the tower in fact caused the tower to become abandoned;
(f) Any persons to whom or entity to which there has been transferred or assigned any license issued by the Federal Communication Commission and under which the tower owner/operator operated the tower;
(g) Any person or entity which has purchased all or a substantial portion of the assets of the tower owner/operator;
(h) Any entity which has merged with, or which has arisen or resulted from a merger with, the tower owner/operator;
(i) Any person or entity which has acquired the owner or the operator of the abandoned tower;
(j) Any parent or subsidiary of any of the foregoing which happens to be a corporation;
(k) Any managing partner of any of the foregoing which happens to be a limited partnership; and
(l) Any partner of any of the foregoing which happens to be a general partnership.
(2) The abandoned tower shall be removed on or before the 90 day after receipt by the responsible party or parties of a notice from the town planner ordering its removal. The duty imposed by this division shall supersede and otherwise override any conflicting provision of any contract, agreement, lease, sublease, license, franchise or other instrument entered into or issued on or after January 1, 1999.
(2000 Code, § 66-1037) (Ord. 99-01, passed 3-23-1999) Penalty, see § 157.999