(A) Legislative purposes. The purpose of this section is to regulate the placement, construction, and modification of wireless telecommunication 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 these provisions are:
(1) To direct the location of various types of towers and wireless telecommunications facilities into appropriate areas of the village;
(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; and
(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 telecommunication facilities, any portion of which are located within the village, are subject to this section. Except as provided in this section, any use being made of an existing tower or antenna support structure on the effective date of this section shall be deemed a nonconforming structure and allowed to continue, even if in conflict with the terms of this section. Any tower site that has received approval in the form of a zoning permit by the village, 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. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ANTENNA. 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.
ANTENNA SUPPORT STRUCTURE. Any building or other structure other than a tower which can be used for location of wireless telecommunications facilities.
APPLICANT. Any person that applies for a permit pursuant to this Zoning Code.
APPLICATION. The process by which an applicant submits a request and indicates a desire to be granted a conditional use permit under the provisions of this Zoning Code. An APPLICATION includes all written documentation, verbal statements, and representations, in whatever form or forum, made by an applicant to the village concerning such a request.
CO-LOCATION. The use of a wireless telecommunication facility by more than one wireless telecommunications provider.
DIRECTOR. The Director of Inspection and Engineering, as set forth in the Village Charter, or his or her designee.
EMERGENCY. A reasonably unforeseen occurrence with a potential to endanger personal safety or health, or cause substantial damage to property, that calls for immediate action.
ENGINEER. Any engineer licensed by the state.
EQUIPMENT SHELTER. The structure in which the electronic receiving and relay equipment for a wireless telecommunications facility is housed.
FAA. The Federal Aviation Administration and any legally appointed, designated, or elected agent or successor.
FCC. The Federal Communications Commission and any legally appointed, designated, or elected agent or successor.
MONOPOLE. A support structure constructed to a single, self-supporting hollow metal tube securely anchored to a foundation.
TOWER. A self-supporting lattice, guyed, or monopole structure constructed from grade which supports wireless telecommunications facilities. The term shall not include amateur radio operator’s equipment, as licensed by the FCC.
WIRELESS TELECOMMUNICATION FACILITY. 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 shall not include:
(a) Any satellite earth station antenna two meters in diameter or less which is located in an area zoned industrial or commercial;
(b) Any satellite earth station antenna one meter or less in diameter, regardless of zoning category; or
(c) Antennas used by amateur radio operators.
ZONING ORDINANCE. The Zoning Ordinance of the village.
(D) Standards applicable to all wireless telecommunication facilities.
(1) Construction standards. All wireless telecommunication facilities and support structures shall be designed in accordance with Telecommunication Industry Association (TIA) standards and shall be certified by an engineer licensed in the state 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 telecommunication facility shall comply with all natural resource protection standards established either in this Zoning Code or in other applicable regulations, including those for floodplains, wetlands, groundwater protection, and steep slopes.
(3) Historic or architectural standards compliance. Wireless telecommunications facilities shall not be permitted in any historic district or on any property listed on the historic inventory.
(4) Color and appearance standards. All wireless telecommunication facilities shall be painted a non-contrasting gray or similar color minimizing its visibility, unless otherwise required by the Federal Communications Commission, Federal Aviation Administration, and/or by historical or architectural standards imposed under this Zoning Code. All appurtenances shall be aesthetically and architecturally compatible with the surrounding environment by the means of camouflage deemed acceptable by the Planning Commission of the village.
(5) Advertising prohibited. No advertising is permitted anywhere upon or attached to the wireless telecommunication facility.
(6) Artificial lighting restricted. No wireless telecommunication facility shall be artificially lit except as required by the Federal Aviation Administration.
(7) Co-location. All wireless telecommunication facilities shall be subject to the co-location requirements set forth in division (E) of this section.
(8) Abandonment. All wireless telecommunication facilities shall be subject to the abandonment requirements set forth in division (I) of this section.
(9) Setback from edge of roof. Any wireless telecommunication facility and its appurtenances permitted on the roof of a building shall be set back one foot from the edge of the roof for each one foot in height of the wireless telecommunication facility. However, this setback requirement shall not apply to antennas that are less than two inches in thickness mounted to the sides of antenna support structures and do not protrude more than six inches from the side of such an antenna support structure. This requirement is subject to change by the Planning Commission of the village upon the review of the photo simulation provided in compliance with division (J)(3) of this section.
(10) Security enclosure required. All towers and equipment shelters shall be enclosed either completely or individually as determined by the Planning Commission. No fencing shall be permitted in a residential zone. The village 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, and the like) 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 Planning Commission. 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) Jurisdiction study of potential public sites. In order to encourage the location of a wireless telecommunication facility on publicly-owned property, the Planning Commission shall undertake an identification of publicly-owned properties that the Planning Commission determines are suitable for such use. The Planning Commission shall regularly update such identification and make the results of such available to the public.
(2) Exemption from proof of co-location availability. Persons locating a wireless telecommunication facility upon a publicly-owned property identified in the study mentioned in division (E)(1) of this section shall be exempted from the requirements herein regarding presentation of proof that co-location is not available. However, persons locating a wireless telecommunication facility on publicly- owned property shall continue to be subject to the requirements contained in division (E)(4) of this section.
(3) Exemption from certain requirements. Persons locating a wireless telecommunication facility on a publicly-owned property identified by the Planning Commission to be suitable for such purposes shall be exempt from the requirements of divisions (F), (G), (H), and (I) of this section.
(4) Co-location design required. No new tower shall be constructed in the village unless such tower is capable of accommodating at least one additional wireless telecommunication facility owned by another person.
(5) Technically suitable space. Authorization for a tower shall be issued only if there is not technically suitable space reasonably available on an existing tower or structure within the geographic area to be served.
(6) Application requirements. With the permit application, the applicant shall list the location of every tower, building, or structure within a reasonably proximity 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, the 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 village, 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 telecommunication facilities in residential districts and Planned Residential Districts (PRD).
(1) Permitted principal use. No wireless telecommunication facility is permitted as a principal use upon a lot.
(2) Accessory use. A wireless telecommunication facility may be permitted as an accessory use upon a lot, subject to division (F)(3) of this section.
(3) Conditional use. The following wireless telecommunication facilities are permitted as a conditional use upon a lot, subject to the following requirements:
(a) Tower. A wireless telecommunications tower may be an accessory use to a public or institutional use within a residential zoning district, provided the Planning Commission 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 five acres.
2. Minimum setback from property lines and residential structures. The minimum setbacks and yard requirements shall be established by the Planning Commission.
3. Maximum height. The height of such tower shall be subject to approval by the Planning Commission and be the minimum height necessary.
4. Equipment shelter. The minimum setbacks, height limits, bulk requirements, and screening standards shall be established by the Planning Commission during the conditional use process. Such shelter shall not be located above ground in any required front or side yard.
(b) Antenna. The Planning Commission may approve the location of an antenna extending more than 20 feet above the roof of an existing building or structure. An antenna for a wireless telecommunication 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. Roof setback. The pole structure supporting such antenna shall be setback one foot distance from the edge of such roof for each one foot of height above such roof. This requirement shall not apply to antennas two inches or less in thickness without a supporting pole 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. Such shelter shall not be located above ground in any required front or side yard.
3. Required buffer. A buffer shall be planted in accordance with division (D)(11) of this section.
4. Vehicular access. Vehicular access to the equipment shelter shall be via the existing circulation system and be paved with asphalt or concrete.
(c) Conditional use application and approval procedure. The procedure for conditional use application and procedure is set forth in § 153.042.
(G) Wireless telecommunication facilities in Suburban Office (SO), Neighborhood Commercial (NC), General Commercial (GC), Planned Commercial Development (PCD) and Planned Unit Development (PUD) Districts.
(1) Permitted principal use. Wireless telecommunication facilities are not permitted as a principal use upon a lot.
(2) Accessory use. A wireless telecommunication facility may be permitted as an accessory use upon a lot, subject to division (G)(3) of this section.
(3) Conditional use. The following wireless telecommunication facilities are permitted as a conditional use upon a lot, subject to the following requirements.
(a) Tower.
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. Maximum height. The height of such tower shall be subject to approval by the Planning Commission and be the minimum height necessary.
4. Equipment shelter. The minimum setbacks, height limits, bulk requirements, and screening standards shall be established by the Planning Commission during conditional use process. 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.
(c) Conditional use application and approval procedures. The procedure for conditional use application and procedure is set forth in § 153.042.
(H) Wireless telecommunication facilities in Limited Manufacturing (LM) and Planned Industrial (PID) Districts.
(1) Permitted principal use. No wireless telecommunication facilities are permitted as a principal use upon a lot.
(2) Accessory use. The following wireless telecommunication facilities may be permitted as an accessory use upon a lot, subject to division (H)(3) of this section.
(3) Conditional use. The following wireless telecommunication facilities are permitted as a conditional use upon a lot, subject to the following requirements.
(a) Tower.
1. Maximum height. The height of such tower shall be subject to approval by the Planning Commission and be the minimum height necessary.
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, height limits, bulk requirements, and screening standards shall be established by the Planning Commission during the conditional use process. 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) Abandonment of tower.
(1) Required notification. All providers utilizing towers shall present a report to the Director notifying him or her of any tower facility located in the village whose use will be discontinued and the date this use will cease. Such report shall be filed with the Director 30 days prior to the cessation date. If at any time the use of the facility is discontinued for 180 days, the Zoning Inspector 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 Zoning Inspector 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 village 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 Director must provide the tower owner 30-day notice and an opportunity to be heard before the Board of Zoning Appeals before initiating such action. After such notice has been provided, the Director shall have the authority to initiate proceedings to either acquire the tower and any 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 Director shall provide the tower owner with the right to a public hearing before the Board of Zoning Appeals, which public hearing shall follow the 30-day notice required in division (I)(2) of 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 division (I)(3) of this section, the Director may order the abatement or demolition of the tower. The Director may require licensee to pay for all expenses necessary to acquire or demolish the tower.
(J) Application and review requirements.
(1) Required information for applications. All applications for wireless telecommunication 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 one 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 plan.
(3) Photo simulations required. Photo simulations of the proposed wireless telecommunication 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 Planning Commission. If the Planning Commission 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 is technically necessary.
(6) Review by radio frequency engineer. The evidence submitted by the applicant shall be reviewed by a radio frequency engineer, who will support or refute the evidence.
(7) Land owner support and access. Where the wireless telecommunication 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.
(8) Required site and landscaping plan. The applicant shall present a site and landscaping plan showing the following:
(a) Specific placement of the wireless telecommunication 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; and
(d) The proposed color of the facilities.
(9) 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 telecommunication 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.
(10) Denial by jurisdiction. Any decision to deny a request to place, construct, or modify a wireless telecommunication facility and/or tower shall be in writing and supported by evidence contained in a written record.
(K) Variances. Any request to deviate from any of the requirements of this section shall require approval of a variance in conformance with the procedures set forth in § 153.043.
(Ord. 98-122, passed 5-4-1998)