(A) Purpose and intent. The purpose and intent of this section are to protect the health, safety, and welfare of the citizens of Valencia County by minimizing the negative impact of Wireless Telecommunications Facilities, by establishing a fair and efficient process for review and approval of applications per federal, state, and local regulations, by encouraging the use of existing facilities, by promoting the improved appearance and functionality of any new facilities and ensuring that all new facilities are constructed using current technologies that are designed to conceal the site and to accommodate future growth.
(B) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
(1) ABANDONMENT. Cessation of use of a wireless support structure for wireless telecommunications activity for at least the minimum period specified by this section.
(2) ADMINISTRATIVE APPROVAL. Approval that the Administrator or designee is authorized to give.
(3) ANTENNA. Communications equipment that transmits, receives or transmits and receives electromagnetic radio signals used in the provisions of wireless telecommunications services.
(4) CARRIER ON WHEELS (COW). A portable, self-contained wireless telecommunications facility that can be moved to a location and set up to provide wireless services on a temporary or emergency base.
(5) COLOCATION. Placement or installation of wireless facilities on existing structures, including electrical transmission towers, water towers, buildings, and other structures capable of supporting wireless facilities' attachment in compliance with all applicable codes and standards.
(6) CONCEALED WIRELESS FACILITY. Any wireless facility that is blended as an architectural feature of any existing structure or any new wireless support structure designed to camouflage or hide the presence of antennas or towers so that the purpose of the facility or wireless support structure is not readily apparent to casual observation.
(7) ELIGIBLE FACILITY REQUEST. A request for modification or colocation of an existing wireless tower that involves new transmission equipment or replacement of transmission equipment but does not include a substantial change of the existing structure.
(8) EXISTING STRUCTURE. A wireless support structure erected before the application for an eligible facility request, colocation, or modification under this section capable of supporting wireless facilities' attachment. The term includes but is not limited to electrical transmission towers, buildings, and water towers. The term shall not include any utility pole.
(9) SET-BACK. The area in which a wireless support structure may be expected to fall in the event of a structural failure as defined by this section.
(10) SMALL WIRELESS FACILITIES/SYSTEMS. One of several specialized systems comprises mini-macro cells, Distributed Antenna Systems (DAS), or Wi-Fi Hot Spots specifically for outdoor coverage. Individual small cell sites typically cover a small radius (<2000'). However, they are used in conjunction with the “typical” cell sites or a group of other small cell sites, a system, to cover a broad area of dense usage requirements. These facilities' nature and character, their minimal impact, and typically permitted in quantity justify permitting considerations.
(11) TOWER. A structure, guided or freestanding, that supports one or more antenna.
(12) WIRELESS FACILITY OR WIRELESS FACILITIES. The set of equipment and network components exclusive of the underlying wireless support structure, including but not limited to antennas, accessory equipment, transmitters, receivers, base stations, power supplies, cabling, and associated equipment necessary to provide wireless telecommunications services.
(C) Applicability.
(1) This section applies to all construction and expansion of wireless telecommunications facilities, except as provided in division (2) below, Exemptions.
(2) Exemptions.
(a) Fire, police, department of transportation, or other public service facilities owned and operated by Valencia County, local, state, or federal government.
(b) Any facilities expressly exempt for the jurisdiction's citing, building, and permitting authority.
(c) Over-the-air reception devices, including the reception antennas for direct broadcast satellites (DBS), multi-channel, multipoint distribution (wireless cable) providers (MMDS), television broadcast stations (TVBS), and other customer-end antennas that receive and transmit fixed wireless signals and are primarily used for reception.
(d) Facilities exclusively for private, non-commercial radio and television reception and private citizen's bands, and other similar non-commercial telecommunications.
(e) FCC-licensed amateur radio facilities require administrative approval and are exempt from all ordinance requirements except reasonable screening, set-back, placement, construction, tower height, and health and safety standards per New Mexico state law.
(f) Facilities that exclusively provide unlicensed spread spectrum technologies (such as IEEE 802.11a, b, g {Wi-Fi and Bluetooth}) where the facility does not require a new tower.
(D) Permit application process and other requirements.
(1) All applicants for special use permits and conditional special use permits shall comply with the requirements outlined in this section.
(2) The Valencia County Board of County Commissioners designates the Valencia County Community Development Department (or other designee made by the County Manager) as the Administrator to whom applications for a special use permits and conditional special use permits must be made. The Administrator is authorized to review, analyze, evaluate, and make decisions with respect to granting, not granting, or revoking permits.
(3) The applicant shall complete the following steps to assist the Administrator in expediting the completion of the process:
(a) Optional pre-application conference. At the Administrator's discretion, applicants seeking a telecommunications permit will obtain and review this section and meet with the Administrator, either electronically or in person, before submitting an application. Typically called for more complex applications (new towers, 5G, etc), the meeting intends to review the ordinance requirements, processes, and method of submissions with the applicant. The pre-application session may include the following:
1. A discussion of potential best locations for the telecommunications facility, taking into consideration Valencia County's defined priorities that meet the applicant's requirements for service. The application process may require an explanation for a selected location not using the highest priority available to the applicant. Valencia County's priorities (listed from highest to lowest) are:
a. On existing towers or structures without increasing their height.
b. On Valencia County-owned properties.
c. On properties zoned, or if not zoned, predominantly by industrial use.
d. On properties zoned, or if not zoned, predominantly by commercial use.
e. On properties zoned, or if not zoned, predominantly by residential use.
2. A discussion of issues will help expedite the review and permitting process.
3. A site visit to potential best locations sites, if deemed necessary by the Administrator;
4. A determination of the type of applications to be made;
5. A discussion of the defined information required to support the proposed location;
6. A discussion of the specific application requirements that are needed for review and consideration by the Administrator. Requirements for the application may vary based on the specific location, type of facility selected, and the potential impact to Valencia County and its citizens, and;
7. Any applicant desiring relief, waiver, or exemption from any ordinance requirement may request such at the pre-application meeting. The burden of proving the need for the request lies solely with the applicant. No request shall be approved unless the applicant provides convincing evidence that the request will have no significant effect on the health, safety, and welfare of Valencia County or its residents.
(b) Application process. The applicant shall complete the on-line application processes as defined by the Administrator at the outset of the process.
1. All applications shall contain a demonstration that the telecommunications facility will be sited to be the least visually intrusive, as reasonably possible.
2. In addition to demonstrating that the proposed modification, colocation, eligible facility, or new tower or telecommunications facility blends into the character and environment of the proposed location, all applications shall contain the following information and shall be submitted through the on-line system designated by Valencia County:
a. Registration of an agent, including the name, address, and telephone numbers of the designated agent and his/her company;
b. Authorization of the agent as an official and representative of the applicant; then pending approval;
c. Complete a project description which shall include a general description of the applicant's project and its proposed location;
d. Contact information including the name, address, and telephone number of the person or entity who will be responsible for the applicant's construction and management of the project;
e. Contact information for the support structure project manager for the proposed location and contact information for any manager of the real property for the proposed site (e.g., building manager, tower owner);
f. Define the type of project, colocation, modification, new tower, etc., and the specific site address and description of the project.
g. Completing a tower/wireless facility registration or, if a tower/wireless facility registration already exists for the proposed location, completing a tower/wireless facility registration update, if needed. The tower/wireless facility registration shall include;
i. Name, address, and telephone contact number for the tower owner;
ii. Name, address, and telephone contact number for the real property owner, if different than tower owner;
iii. Current number and identification of co-locators on the tower/facility;
iv. Site name, number, and physical address;
v. Documentation and specifics regarding the agreement terms (other than financial) demonstrating applicant's right, title, or interest in the real property where the facility is to be sited, including the name, address, and phone number of the property owner;
vi. Description of the tower/facility, including but not limited to height, set back, type of structure, and the number of existing co-locators.
vii. Verifiable copy of the current tower inspection report using ANSI/TIA-222-G (or newer), including the expiration date, the company performing inspection, and ANSI standard used;
viii. Contact information including name, address, and telephone number for the person or entity performing the most recent or current tower inspection;
ix. A copy of the soils study report including but not limited to the date completed, person or entity name performing the soils study, project number, identification of the professional engineer providing certification of the study with New Mexico registration or license number of the professional engineer, and;
x. Any other information deemed necessary or required by Valencia County.
3. Applications for a modification, colocation, or eligible facility to an existing structure, without an increase of height or size, shall include:
a. All items listed in division (D)(3)(b)2. above which do not exist or are no longer current or have not recently been updated;
b. Project name for the existing colocation site or project;
c. Names, addresses, and phone numbers of person or entity preparing the application;
d. A copy of the FCC license for the carrier and a signed statement from the owner or operator of the facility attesting that the facility complies with current FCC regulations;
e. Certified site plans using ANSI/TIA-222-G (or newer), including the professional engineer's name and New Mexico registration/license number, physical description of the current configuration of the site, physical description of the proposed design of the site, contacts, set-backs, grounding plans, security, parking, turnarounds, description of the components including the sizes of the components to determine that the proposal is the least visibly intrusive design;
f. Certified structural analysis using ANSI/TIA-222-G (or newer), including identification of the professional engineer's name and registration/license number providing the analysis, a copy of all calculations, reference documents and results, percent loading, that include all components, structures, and foundations per rigorous standards. Loading may not exceed 100%.
g. Performance bond including amounts as set by Valencia County, to remain in place as long as the site remains active and in place and until the tower or facilities are removed as required by this section;
h. Copy of the certificate of insurance demonstrating that the requirements of theis section are met;
i. Identification of the general contractor(s) with proof of current Valencia County licensure as required by the State of New Mexico, and;
j. Projected start and completion dates of construction.
4. Applications to install a new tower or telecommunications facility will include the following:
a. All information listed in divisions (D)(3)(b)2. and 3. above;
b. The number, type, and design of the tower(s) and antenna(s) proposed;
c. All reports, data, calculation, and design criteria which demonstrate the tower's capability to accommodate multiple users;
d. Demonstration of the applicant's meaningful efforts to secure shared use of existing tower(s) or other structures within the defined parameter of one mile including but not limited to copies of written requests and responses for shared use;
e. The new wireless facility justification includes capacity information, the gap in coverage information, or other information demonstrating rationale for the application.
f. The applicant will provide a list of property owners, to include their addresses, within 150 feet of the proposed site's property lines. This list of owners and addresses must be submitted early in the application process so specific notice of any needed or required hearing can be given to them at least 15 days prior to any needed or required hearing.
g. Public hearing and notification requirements.
i. In order that the county may notify nearby landowners, prior to the approval of any application for a telecommunications permit for a new tower, a public hearing shall be held by the county, notice of which shall be published in accordance with the New Mexico Open Meetings Act; and the current Valencia County Open Meetings Act Resolution; and, the annual Valencia County Open Meeting Resolution which sets the notice and type of publication for meetings, prior to the scheduled date of the public hearing.
ii The county shall schedule the public hearing referred to in division i. above of this section once it finds the application is complete, the county, at any stage prior to issuing a telecommunications permit, may require such additional information as it deems necessary.
iii. All public hearings pursuant to this section are to be held before the Valencia County Board of County Commissioners unless specifically excepted by this section; and, for any appeal purposes, the decision of the Board of Commissioners is the final decision of the county.
5. Applications to install small wireless facilities/systems will include the following: (Note: A special meeting with the agents/engineers/representatives of the applicant may be needed to ensure that systems documentation requirements are fully understood.) Valencia County's defined small wireless facilities design requirements are made available to applicants by the Administrator pursuant to a resolution to be adopted to give effect to this section.
a. All information listed in divisions (D)(3)(b)2., 3. and 4. above;
b. The entire system and any associated groups of small wireless facilities, within limits defined by the on-line application, may be included in a single application process.
c. Each component of the system must be represented in the on-line application process.
d. Each system's unique components must be shown and include all the relevant data to complete the process. However, all like (virtually identical) nodes may be demonstrated once but must consist of all the physical locations for each node.
(c) Review of application. The Administrator and the consultant(s) shall review the application within 30 days of submission to determine if the application is complete and meets the ordinance requirements. Valencia County and the applicant can, by a mutual written agreement, extend the period in which the review for completeness is conducted.
1. Incomplete applications will not be accepted for further review and processing;
2. Applications submitted without the payment of costs and fees as required by Valencia County are incomplete and shall not be accepted for further review and processing;
3. If the application is not complete: Valencia County shall notify the applicant in writing or via email of the provisions of the code, ordinance, application process, or publicly stated procedures that were not completed and inform the applicant that the application may be resubmitted.
4. If a resubmitted application is not complete: Within ten days of the resubmission of the application, Valencia County shall notify the applicant in writing or via email of whether the resubmission is complete and that the application may be resubmitted, and inform the applicant of the code, ordinance, application process or publicly stated procedures which remain incomplete.
5. If the application is complete and based on the review of the application, the Administrator shall, within the periods allowed under federal, state, and local law:
a. Approve, approve with conditions or deny a special use or conditional special use permit;
b. Issue a written decision within ten days of deciding on the application, which is supported by evidence contained in the online information and record submitted by the applicant;
c. Place the burden of proof for the granting of the permit upon the applicant;
d. Refer the application to the Valencia County Board of County Commissioners review and consideration. Once a variance or waiver is obtained or granted, the Administrator may request the applicant update the application if the Administrator deems it necessary to complete the application process.
(d) Public hearing and appeal of administrator's decision. The decision of the Administrator can be appealed by the applicant or by Valencia County by submitting written notification to the Administrator. The notice of appeal's content shall contain the applicant's name and a description of the Wireless Telecommunications Facilities. The applicant must submit the notice of appeal within 30 calendar days after the decision.
1. The hearing or appeal will be heard and considered at the next available meeting of the Valencia County Board of County Commissioners;
2. For any application or appeal which is to be presented to the Board of Commissioners, the County Administrator must have all documentation well prior to the time of the meeting such that all proper notices can be made timely.
(e) Construction of the proposed facility. If an application is approved or approved with conditions, a special use or conditional special use permit will be issued to the applicant.
1. The applicant must comply with all requirements of the special use or conditional special use permit;
2. The applicant will be required to meet and satisfy all building inspection processes generally needed for a construction project.
3. The special use or conditional special use permit shall not be assigned, transferred, or conveyed without written notification to and approval from Valencia County within six months.
4. The special use or conditional special use permit may be revoked, canceled, or terminated for violation of the permit's conditions and provisions or for a material breach of this section as permitted by local ordinance, state, and federal law.
5. Valencia County will provide the permit holder written notice of an intent to revoke, cancel or terminate the permit with identification of the violation(s) and give the holder of the special use or conditional special use permit with an opportunity for a hearing before the Valencia County Board of County Commissioners before revocation, cancellation or termination.
(f) Completion of construction. When the applicant completes the project's construction, the applicant shall notify the Administrator of the need for a final inspection. Valencia County or the consultant for Valencia County will verify that the site is constructed in accordance with the application, meets all the requirements of this section, and that the applicant has paid all monies due to Valencia County. If all requirements of this section and the special use or conditional special use permit have been met, Valencia County will issue a certificate of compliance to the applicant that allows operational use of the site.
(E) General requirements of wireless telecommunications facilities.
(1) Lighting. Telecommunications facilities shall not be lighted or marked unless required by law. If lighting is needed, Applicant shall provide a detailed plan for sufficient lighting as inoffensive as permissible under state and federal regulations. The applicant shall also comply with any local or state “night skies” requirements.
(2) Materials. Towers shall be galvanized or painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings and shall be maintained for the tower's life.
(3) Set-back requirements. Stand-alone wireless telecommunications facilities shall be no closer to any property line than the total height of the completed unit, plus 10%. The structure should not be capable of falling onto an adjacent property or building should the facility collapse for any reason. The height is measured from the pre-existing grade to the highest point of the structure.
(4) Security of wireless telecommunications facilities. All wireless telecommunications facilities and antennas shall be located, fenced, or otherwise secured in a manner that prevents unauthorized access.
(5) Signage. Telecommunications facilities shall contain a sign to provide adequate notification to persons in the immediate area of the presence of RF radiation or to control exposure to RF radiation within a given area. A sign of the same size shall also be installed to contain the site identification number and emergency phone number(s). The sign shall be on the fence, equipment shelter, or cabinet and be visible from an access point outside the secured site area. On tower sites, an FCC registration sign shall also be present. The signs shall not be lighted unless required by law, rule, or regulation. No other signage, including advertising, shall be permitted.
(6) Update of signage. The applicant or future owner of the site shall update the site identification number and emergency phone numbers of the wireless telecommunications facility as displayed on the required sign within one month of any sale, assignment, or transfer.
(7) Temporary communications on wheels (COW). In the event of an emergency or natural disaster which renders other forms of communication nonviable, thus necessitating a COW, Valencia County and the telecommunications provider shall agree to special terms and conditions as needed by Valencia County and the telecommunications provider:
(a) If a COW becomes inoperable due to force majeure or Acts of God, it must be removed from the site within 30 days of becoming unusable.
(b) Regarding a special event where a COW is used, it must be removed from the site within 48 hours of the conclusion of the event.
(F) Application fees and other requirements.
(1) At the time a person submitted an application for a special use or conditional special use permit for a new tower or requires an increase in height to an existing tower or for colocating on an existing tower or other suitable structure, where no increase will occur in the height of the tower or other appropriate structure, such applicant shall pay a non-refundable application fee to Valencia County.
(2) In addition to the application fee, Valencia County may retain the services of an expert consultant in connection with the processing and/or review of the application and the permitting and final inspection of site. The applicant shall be responsible for reimbursing Valencia County for all costs and amounts incurred by Valencia County for such expert consultation.
(3) The applicant shall pay for the projected consultation costs to Valencia County at the time of the application.
(4) An application is incomplete until the application fee is paid, and the applicant has paid the costs for the expert consultant.
(5) The consultant shall provide Valencia County with the costs for the consultation. The cost amount by the consultant will be assessed to the applicant as the application processing and review fee.
(6) The application fees and costs are defined by the resolution associated with this section, adopted, amended or replaced from time to time as the County Commission determines.
(7) The applicant, Valencia County, and the consultant will comply with all state and local requirements concerning payment of the consultant's fees.
(8) (a) The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall, at their cost and expense, be jointly required to execute and file with Valencia County a bond, or other form of security acceptable to Valencia County in at least the following amounts:
1. Colocation or modification of an existing tower: $25,000.
2. Small wireless facility: $15,000.
3. New tower or other structure: $75,000.
(b) Such sureties as are deemed sufficient by Valencia County to assure the faithful performance of the terms and conditions of this section and conditions of any telecommunications permit or conditional use permit issued according to this section. The full amount of the bond or security shall remain in full force and effect throughout the term of the telecommunications permit, and any conditional use permit has been fulfilled, and until any necessary site restoration is completed to restore the site to a condition comparable to that, which existed before the issuance of the original special use or conditional special use permit.
(9) A holder of a special use or conditional special use permit shall secure and at all times maintain public liability insurance for personal injuries, death, and property damage and umbrella insurance coverage for the duration of the permit in amounts as set forth below:
(a) Commercial general liability covering personal injuries, death, and property damage: $1,000,000.00 per occurrence/$2,000,000.00 aggregate;
(b) Automobile coverage: $1,000,000.00 per occurrence/$2,000,000.00 aggregate;
(c) Workers Compensation and disability: Amount required by New Mexico state law;
(d) Commercial general liability insurance policy shall specifically include Valencia County and its officers, employees, agents, and consultants as additional named insureds;
(e) Insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the state and with a “Best's” rating of at least A;
(f) Insurance policies shall contain an endorsement obligating the insurance company to furnish Valencia County with at least 30 days prior written notice of the cancellation of the insurance;
(g) Renewal or replacement policies or certificates shall be delivered to Valencia County at least 15 days before the expiration of the insurance that such policies are to renew or replace;
(h) The permit holder shall provide Valencia County a copy of the policies/certificates before construction and upon written request by Valencia County.
(G) Removal of tower/antenna/ revocation/default.
(1) Cessation of operations/abandonment/ disrepair. Valencia County may require the removal of a telecommunications facility(ies) when: such item(s) with a permit have been abandoned or operations of telecommunications facility has ceased for a period exceeding 90 consecutive days or a total of 180 calendar days. All items and equipment subject to the telecommunications permit shall be removed within 90 days of abandonment or the cessation of operations. If equipment or items subject to the telecommunications permit, fall into such disrepair that a health or safety hazard is created as determined according to a review by a state licensed engineer and such item are not repaired within 60 days, or longer as necessary upon the permit holder demonstrating that despite good faith efforts, such disrepair could not be responsibly cured within the provided time, Valencia County may require the removal of the item of the telecommunications facility.
(2) Modification, location, or construction without permit. If any equipment or item has been located, constructed, or modified without a permit, or in a manner inconsistent with the approved permit requirements, and the facilities have been located, constructed, or modified without first obtaining, or in a way not authorized by, the required permit, or any other necessary authorization, Valencia County may require the removal of the item, equipment or the telecommunications facility.
(3) Lack of insurance. If a permit holder has failed to comply with the liability insurance requirements required by Valencia County, Valencia County may require the removal of the item, equipment or the telecommunications facility.
(4) Notification of violation. If telecommunications facilities are repaired, rebuilt, placed, moved, relocated, modified, or maintained in a way not in compliance with this section or the telecommunication permit or the telecommunications permit, Valencia County shall notify the permit holder in writing of such violation. If they make such a determination that removal of an item, equipment or telecommunications facility is required, then Valencia County shall notify the permit holder within 48 hours that said items are to be removed. Valencia County may approve an interim temporary use agreement/permit, such as to enable the removal and/or sale of the item.
(5) Failure to cure. After receiving notice of a violation, the permit holder shall have 90 calendar days to cure or remove the violation. Valencia County shall extend such cure period as necessary upon the permit holder demonstrating that despite good faith efforts, such default cannot be reasonably cured.
(6) Failure to cure (removal of an item, equipment, or telecommunications facility is not required). For all violations other than a violation which requires removal of an item, equipment, or telecommunications facility, a permit holder has 30 days to cure such violation(s) after notice has been mailed or delivered to the permit holder's address of record. Valencia County may extend the cure period upon demonstration that the permit holder has made good faith efforts to cure and that despite its good faith efforts; such default cannot be reasonably cured within the provided time.
(7) Failure to cure (removal of the item, equipment, or (telecommunications facility is required). If the permit holder cannot cure the violation that involves removal of an item, equipment, or telecommunications facility within the cure period, the permit holder shall dismantle and remove such item, and any associated structures, from the site and restore the site to as close to its original condition as possible, reasonable wear and tear excepted, within 90 days of the expiration of the cure period.
(8) Removal by Valencia County. If the item, equipment or telecommunications facility is not removed or substantial progress has not been made to remove it within 90 days of the permit holder receiving notice, then Valencia County may order officials or representatives of Valencia County to remove the item at the sole expense of the owner or permit holder.
(9) Sale upon abandonment. If Valencia County removes or causes to be removed, the item, and the owner does not claim and remove it from the site to a lawful location within 120 days, then Valencia County may take steps to declare the item abandoned, and sell it and its components.
(10) Temporary use permit/agreement. Notwithstanding anything in this section to the contrary, Valencia County may approve an interim use permit/agreement for the item for no more than 90 days, during which time a suitable plan for removal, conversion or re-location of the affected item shall be developed by the holder of the permit, subject to the approval of Valencia County, and an agreement to such plan shall be executed the holder of the permit and Valencia County. Suppose such a plan is not developed, approved, and completed within the 90 day time period. In that case, Valencia County may take possession of and dispose of the affected item in the manner provided in this section.
(11) Emergency removal. If Valencia County determines the item is hazardous, creates an emergency situation, or adversely affects public safety, Valencia County may remove or cause to be removed the item after three days written notice to the permit holder or the holder of the certificate of compliance.
(12) Failure to cure. A permit holder still in violation after the expiration of the cure period may be considered in default, subject to fines as outlined in this section, and the permit is subject to revocation.
(13) Fines. A permit holder who violates this section may be fined up to $500 for each violation, and each day that a violation exists shall be deemed to be a separate violation.
(Ord. 2023-02, passed 7-19-2023)