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Codified Ordinances of Westover, WV
City Code of Westover, West Virginia
CERTIFICATION
ROSTER OF OFFICIALS
ADOPTING ORDINANCE
EDITOR'S NOTE
COMPARATIVE SECTION TABLE
CHARTER
PART ONE - ADMINISTRATIVE CODE
PART THREE - TRAFFIC CODE
PART FIVE - GENERAL OFFENSES CODE
PART SEVEN - BUSINESS AND TAXATION CODE
PART NINE - STREETS, UTILITIES AND PUBLIC SERVICES CODE
PART ELEVEN - HEALTH AND SANITATION CODE
PART THIRTEEN - PLANNING AND ZONING CODE
PART FIFTEEN - FIRE PREVENTION CODE
PART SEVENTEEN - BUILDING AND HOUSING
ARTICLE 1325
Telecommunications Towers and Facilities
1325.01    Findings.
1325.02   Purposes.
1325.03   Definitions.
1325.04   Development of towers.
1325.05   Interference with public works and public safety radio services.
1325.06   Setbacks.
1325.07   Structural requirements.
1325.08   Separation or buffer requirements.
1325.09   Method of determining tower height.
1325.10   Illumination.
1325.11   Exterior finish.
1325.12   Landscaping.
1325.13   Security.
1325.14   Access.
1325.15   Certifications and inspections.
1325.16   Maintenance.
1325.17   Stealth.
1325.18   Telecommunications facilities on antenna support structures.
1325.19   Existing towers.
1325.20   Variances.
1325.21   Abandonment.
1325.22   Reservation of rights.
1325.23   Severability.
1325.01 FINDINGS.
   (a)   The City has the authority to regulate the placement, construction, and modification of towers, antennas support structures, and telecommunications facilities.
   (b)   The Federal Communications Act of 1934 as amended by the Telecommunications Act of 1996 (“The Act”) grants the Federal Communications Commission (FCC) exclusive jurisdiction over:
      (1)   The regulation of the environmental effects of radio frequency emissions from telecommunications facilities.
      (2)   The regulation or radio signal interference among users of the radio frequency spectrum.
   (c)   The City’s regulation of towers and telecommunications facilities cannot have the effect of prohibiting any person from providing wireless telecommunications services in violation of the Act. (Ord. 318. Passed 2-4-08.)
1325.02 PURPOSES.
   The general purpose of this article is to regulate the placement, construction, and modification of towers and telecommunications facilities in order to protect the health, safety, and welfare of the public, while at the same time not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in Westover. Specifically, the purposes of this article are:
   (a)   To facilitate the provisions of wireless telecommunications services to the residents and businesses of the City in an orderly fashion;
   (b)   To regulate the location of towers and telecommunications facilities in the City;
   (c)   To protect residential areas and land uses from potential adverse impact of towers and telecommunications facilities;
   (d)   To minimize adverse impact of towers and telecommunications facilities through careful design, siting, landscaping, and innovative camouflaging techniques;
   (e)   To promote and encourage shared use/collection of towers and antenna support structures as a primary option rather than construction of additional single-use towers;
   (f)   To avoid potential damage to property caused by towers and telecommunications facilities by ensuring that such structure are soundly and carefully designed, constructed, modified, maintained, and removed when no longer used or determined to be structurally unsound;
   (g)   To ensure that towers and telecommunications facilities are compatible with surrounding land uses;
   (h)   To promote the location of towers in industrial and business, rather than residential areas. (Ord. 318. Passed 2-4-08.)
1325.03 DEFINITIONS.
   The following words, terms, and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
   (a)   “Antenna Support Structure” means any building or other structure fifty feet in height or taller other than a tower which can be used for location of telecommunications facilities.
   (b)   “Applicant” means any person that applies for a tower development permit.
   (c)   “Application” means the process by which the owner, or the owner’s legal representative, of a plot of land within the City submits a request to develop, construct, build, modify, or erect a tower upon such land. Application includes all written documentation, verbal statements, and representations, in whatever form or forum, made by an applicant to the City concerning such a request.
   (d)   “City” means the City of Westover.
   (e)   “Electrical Engineer” means an electrical engineer registered as a Professional Engineer by the State of West Virginia.
   (f)   “Existing Tower” means a tower that is in existence/is being constructed on the effective date of this article.
   (g)   “Normal Business Hours” means those hours during which most businesses in the community are open to serve customers.
   (h)   “Owner” means any person with fee simple title to any plot of land within the City who desires to develop, construct, build, modify, or erect a tower upon such land.
   (i)   “Person” is any natural person, firm, partnership, association, corporation, company, or other legal entity, private or public, whether for profit or not for profit.
   (j)   “State” means the State of West Virginia.
   (k)   “Stealth” means any tower or telecommunications facility that is designed to blend into the surrounding environment through the use of camouflage or other appropriate landscaping or construction techniques.
   (l)   “Structural Engineer” means a structural engineer registered as a Professional Engineer by the State of West Virginia.
   (m)   “Telecommunications Facilities” means any cable, wires, lines, wave guides, antennas, and any other equipment or facilities associated with the transmission or reception of communications (other than radio and television broadcast communications) which a person seeks to locate or has installed or near a tower or antenna support structure. However, the term “telecommunications facilities” shall not include:
      (1)   Any satellite earth station antenna two meters in diameter or less which is located in an area zoned industrial or commercial; or
      (2)   Any satellite earth station antenna one meter or less in diameter, regardless of the zoning category.
   (n)   “Tower” means a self-supporting lattice, guyed, or monopole structure constructed from grade which supports telecommunications facilities. The term tower shall not include amateur radio operator’s equipment, as licensed by the FCC.
   (o)   “Tower Owner” means the person that owns or control a tower.
      (Ord. 318. Passed 2-4-08.)
1325.04 DEVELOPMENT OF TOWERS.
   (a)   A tower shall be a conditional use of land in such districts as specified in the City Zoning Ordinance. No person shall build, erect, or construct a tower upon any plot of land in any other district unless a Conditional Use Permit has been issued by the Board of Zoning Appeals. Application shall be made to the Planning Commission in the manner provided in Section 1311.02(d) of the City Zoning Ordinance.
   (b)   Towers are exempt from the maximum height restrictions of the districts where located. Towers shall be permitted to a height of 150 feet. Towers may be permitted in excess of 150 feet in accordance with the normal Zoning Ordinance variance process, as adopted by the City.
   (c)   The City may authorize the use of the City property in appropriately zoned districts in accordance with the procedures of the City Charter and Code. The City shall have no obligation whatsoever to use City property for such purposes.
   (d)   No tower shall be built, constructed, or erected in the City unless such tower is capable of supporting another person’s operating telecommunications facilities comparable in weight, size, and surface area to the applicant’s telecommunications facilities. For purposes of this Section, the “applicant’s facilities” shall mean those installed within six months of completion of tower construction.
   (e)   An application to develop a tower shall include:
      (1)   The name, address, and telephone number of the applicant. If the applicant is not the owner of the parcel of land upon which the tower is situated, the written consent of the owner, and the name, address, and telephone number of the owner, shall be evidenced in the application. The application shall also contain an affirmative statement indicating that both the owner and applicant are aware of and agree to comply with the provisions of this article regarding abandonment.
      (2)   The legal description, assessor’s map and parcel number, and address of the parcel of land upon which the tower is situated.
      (3)   The names, addresses, and telephone numbers of all tower owners with towers or usable antenna support structures within a one-mile radius of the proposed new tower site, including City-owned property.
      (4)   Written documentation that the applicant made diligent, but unsuccessful, efforts for permission to install or collocate the applicant’s telecommunications facilities on City-owned towers or usable antenna support structures located within a one-mile radius of the proposed tower site.
      (5)   Written documentation that the applicant made diligent, but unsuccessful, efforts to install or collocate the applicant’s telecommunications facilities on towers or usable antenna support structures owned by other persons located within a one-mile radius of the proposed tower site.
      (6)   Written, technical evidence from an electrical engineer that the proposed tower or telecommunications facilities cannot be installed or collocated on another person’s tower or usable antenna support structure located within a one mile radius of the proposed tower site and must be located at the proposed site in order to meet the coverage requirements of the applicant’s wireless communication system.
      (7)   Written, technical evidence from a structural engineer that the proposed structure meets the standards set forth in this article, including but not limited to the requirements set forth in Section 1325.05.
      (8)   Written, technical evidence from an electrical engineer that the proposed facilities meet the standards set forth in this article, including but not limited to the requirement set forth in Section 1325.05.
      (9)   Written, technical evidence from an electrical engineer that the proposed site of the tower or telecommunications facilities does not pose a risk of explosion, fire, or other danger due to its proximity to volatile, flammable, explosive, or other hazardous materials such as LP gas, propane, gasoline, natural gas, or corrosive or other dangerous chemicals.
      (10)   A map of the City and the first half-mile of all bordering communities showing the design of the applicant’s entire existing or proposed wireless telecommunications network. Such map shall, at minimum, indicate the general location of all proposed or existing tower and antenna sites, their dimensions, specifications, and signal area coverage.
      (11)   Color photo simulations showing the proposed site of the tower with a photo-realistic representation of the proposed tower as it would appear viewed from the closest residential property or properties and from adjacent roadways.
      (12)   An application fee that represents the site development plan review fee and the conditional use fee otherwise required. The City reserves the right to employ an outside consultant to review any application. The applicant shall reimburse the City for the reasonable expenses related to such review as an additional application fee.
      (13)   A site plan, including a description of the lot lines, setbacks, location of adjacent structures, proposed location of the tower, separation distances, proposed tower height, landscaping, screening, access, parking, and security.
      (14)   An acknowledgment that the applicant currently complies and will continue to comply with all FCC standards, including reporting requirements regarding radio frequency emissions.
   (f)   All information submitted with an application that is trade secret information or is for other reasons proprietary shall be clearly marked as such when submitted with an application. The City shall not disclose publicly, or to any third party, proprietary information unless compelled to do so by federal, state, or local law.
(Ord. 318. Passed 2-4-08.)
1325.05 INTERFERENCE WITH PUBLIC WORKS AND PUBLIC SAFETY RADIO SERVICES.
   In order to ensure that the City’s public safety radio services will be free from harmful or destructive interference, all applicants requesting a permit to site a tower or telecommunications facilities must:
   (a)   Demonstrate compliance with good engineering practices;
   (b)   Provide the City a copy of all intermodulation studies submitted to the FCC;
   (c)   Not induce harmful or destructive interference to the City’s public works and public safety radio services;
   (d)   Comply with FCC regulations regarding susceptibility to radio frequency interference, frequency coordination requirements, general technical standards for power, antenna, bandwidth limitations, frequency stability, transmitter measurements, operating requirements, and any and all other federal statutory and regulatory requirements relating to radio frequency interference (RFI); and
   (e)   In the case of co-location of telecommunications facilities either in the same location or on the same tower as the City’s, comply with FCC emissions requirements and eradicate any RFI or any electromagnetic interference (EMI) that may interfere with the City’s public safety radio services.
      (Ord. 318. Passed 2-4-08.)
1325.06 SETBACKS.
   (a)   All towers in business and industrial zoning districts shall be set back on all sides a distance equal to the underlying setback requirements in the applicable zoning district. All towers in residential zoning districts shall be set back on all sides a distance equal to the tower height.
   (b)   Setback requirements for towers shall be measured from the base of the tower to the property line of the parcel on which it is located.
   (c)   Every tower shall be designed to fall within the boundaries of the parcel on which the tower is located. (Ord. 318. Passed 2-4-08.)
1325.07 STRUCTURAL REQUIREMENTS.
   All towers must be designed and certified by a structural engineer to be structurally sound and, at minimum, in conformance with the statewide uniform Building Code, and any other standards outlined in this article. (Ord. 318. Passed 2-4-08.)
1325.08 SEPARATION OR BUFFER REQUIREMENTS.
   (a)   Towers shall be separated from all residentially zoned lands and all residences (regardless of zoning classification) by a minimum distance equal to one hundred percent (100%) of the height of the proposed tower.
   (b)   Tower separation distances for the purpose of compliance with this article shall be measured from the base of a tower to the closest point of a designated area. The minimum tower separation distance shall be calculated and applied regardless of City and county jurisdictional boundaries.
(Ord. 318. Passed 2-4-08.)
1325.09 METHOD OF DETERMINING TOWER HEIGHTS.
   Measurement of tower height for the purpose of determining compliance with all requirements of this article shall include the tower structure itself, the base laid, and any other telecommunications facilities attached thereto which extend over the top of the tower structure itself. Tower height shall be measured from grade.
(Ord. 318. Passed 2-4-08.)
1325.10 ILLUMINATION.
   Towers shall not be artificially lighted except as required by the Federal Aviation Administration (“FAA”). Upon commencement of construction of a tower, in cases where there are residential uses located within a distance equal to the height of the tower from the tower, and when required by Federal Law, dual mode lighting shall be requested from the FAA.
(Ord. 318. Passed 2-4-08.)
1325.11 EXTERIOR FINISH.
   Towers not requiring FAA painting or marking shall be painted a neutral color (galvanized finish is considered a neutral color).
(Ord. 318. Passed 2-4-08.)
1325.12 LANDSCAPING.
   All landscaping on parcels containing towers, antenna support structures, or telecommunications facilities shall be designed to screen the tower, antenna support structure, and telecommunications facilities to a height of at least six feet from garde. This requirement may be waived at the discretion of the Inspections Division if the base of the tower and facilities to be screened are not located in and not visible from any business or residential districts or visible from public streets. All landscaping must be continually maintained in a healthy and attractive manner.
(Ord. 318. Passed 2-4-08.)
1325.13 SECURITY.
   All towers must be reasonably posted and secured to protect against trespass.
(Ord. 318. Passed 2-4-08.)
1325.14 ACCESS.
   All parcels upon which towers are located must provide access during normal business hours to at least one paved vehicular parking space(s) on site.
(Ord. 318. Passed 2-4-08.)
1325.15 CERTIFICATIONS AND INSPECTIONS.
   (a)   All towers shall be certified by an engineer to be structurally sound and in conformance with the requirements of the City Building Code and all other construction standards set forth by the City Code and Federal and State Law. For new monopole towers, such certifications shall be submitted with an application pursuant to Section 1325.04(e) and every five years thereafter; for existing monopole towers, such certification shall be submitted within sixty days of the effective date of this article and then every five years thereafter; for new lattice or guyed towers, such certification shall be submitted with an application pursuant to Section 1325.04(e) and every two years thereafter; and for existing lattice or guyed towers, such certification shall be submitted within sixty days of the effective date of this article and then every two years thereafter. The tower owner may be required by the City to submit more frequent certifications should there be reason to believe that the structural and electrical integrity of the tower is jeopardized.
   (b)   The City and its agents shall have authority to enter onto the property upon which the tower is located, between the inspections and certifications required above, to insect the tower for the purpose of determining whether it complies with the statewide Building Code and all other construction standards provided by the City Code and Federal and State Law.
   (c)   The City reserves the right to conduct such reasonable and necessary inspections, upon reasonable notice to the tower owner. All expenses by the City related to such inspections shall be borne by the tower owner if any unresolved defects exist.
   (d)   The tower or telecommunications facilities owner shall certify to the City on an annual basis that it is in compliance with all of the requirements of this article, including the requirements set forth in Section 1325.16.
(Ord. 318. Passed 2-4-08.)
1325.16 MAINTENANCE.
   (a)   Tower owners shall at all time employ ordinary and reasonable care and shall install and maintain in use nothing less than commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public.
   (b)   Tower owners shall install and maintain towers, telecommunications facilities, wires, cables, fixtures and other equipment in substantial compliance with the requirements of the National Electrical Safety Code and all FCC, State, and local regulations, and in such manner that will not interfere with the use of other property.
   (c)   All towers, telecommunications facilities, and antenna support structures shall at all times be kept and maintained in good condition, order, and repair so that the same shall not menace or endanger the life or property of any person.
   (d)   All telecommunications facilities shall maintain compliance with current radio frequency emission standards of the FCC.
   (e)   In the event the use of a tower is discontinued by the tower owner, or in the event a tower owner files notice of the FCC of its interest to cease operating, the tower owner shall provide written notice to the City of its intent to discontinue use and the date when the use shall be discontinued.
(Ord. 318. Passed 2-4-08.)
1325.17 STEALTH.
   All towers and telecommunications facilities in business and residential districts shall be of stealth design. (Ord. 318. Passed 2-4-08.)
1325.18 TELECOMMUNICATIONS FACILITIES ON ANTENNA SUPPORT STRUCTURES.
   (a)   Any telecommunications facilities which are not attached to a tower may be permitted as an accessory use to any antenna support structure at least thirty feet tall, regardless of the zoning restrictions applicable to the zoning district where the structure is located. Telecommunications facilities are prohibited on all other structures.
   (b)   The owner of such structure or telecommunications facilities shall, by written certification, graphic representation, and detailed plans for the City staff review to verify that:
      (1)   The antenna support structure and telecommunications facilities comply with the statewide building code;
      (2)   Any telecommunications facilities and their appurtenances, located upon the roof of an antenna support structure are set back a distance of at least equal to the height of the telecommunications facilities. However, this setback requirement shall not apply to telecommunications facilities and their appurtenances, located above the roof of an antenna support structure, if such facilities are appropriately screened from view through the use of screening techniques that are compatible with the surrounding build environment and approved by the City. Setback requirements shall not apply to stealth antennas which are mounted to the exterior of antenna support structures below the roof, but which do not protrude more than twenty-four inches from the side of such an antenna support structure; and
      (3)   All applicable standards of this article are being met.
         (Ord. 318. Passed 2-4-08.)
1325.19 EXISTING TOWERS.
   An existing tower may be modified or demolished and rebuilt to accommodate collocation of additional telecommunications facilities as follows:
   (a)   Application for a permit shall be made to the Office of Code Enforcement which shall have the authority to issue a permit without further approval by the Building Inspector.
   (b)   The total height of the modified tower and telecommunications facilities attached thereto shall not exceed the lesser of the height of the existing tower or the maximum height for tower allowed under this article.
   (c)   A tower which is being rebuilt to accommodate the collocation of additional telecommunications facilities may be relocated on the same parcel subject to the setback requirements of this article. However, if it is impossible for the tower to be built in compliance with the setback requirements of this article, such setback requirements may be waived to allow the tower to be rebuilt in its exact previous location.
      (Ord. 318. Passed 2-4-08.)
1325.20 VARIANCES.
   Additional site plan development review. The City may waive or modify the requirements of this article following the variance process set forth in Section 1317.06 of the Westover Zoning Ordinance where modification is necessary to:
   (a)   Facilitate collocation of telecommunication facilities in order to avoid construction of a new tower; or
   (b)   Meet the coverage requirements of the applicant’s wireless communication system, which requirements must be documented with written, technical evidence from an electrical engineer(s).
      (Ord. 318. Passed 2-4-08.)
1325.21 ABANDONMENT.
   (a)   If the City receives notice or if any tower shall cease to be used for a period of 365 consecutive days, the Code Enforcement Office shall notify the owner, with a copy to the applicant, that the site will be subject to a determination by the Code Enforcement Office that such site has been abandoned. The owner shall have thirty days from receipt of said notice to shown, by a preponderance of the evidence, that the tower has been in use or under repair during the period. If the owner fails to show that the tower has been in use or under repair during the period, the Code Enforcement Office shall issue a final determination of abandonment of the site. Upon issuance of the final determination of abandonment, the owner shall, within seventy-five days, dismantle and remove the owner. If an owner fails to remove an abandoned tower within seventy- five days of the final determination of abandonment, the City may dismantle and remove the tower and recover the costs of the same from the owner or by accessing the bond set forth below. For the purposes of this section, removal includes all physical improvements associated with towers, including foundation and tower grounding.
   (b)   To secure the obligation set forth above, the owner shall post a bond or provide a letter of credit in an amount to be determined by the Mayor based on the anticipated cost of removal of the owner.
(Ord. 318. Passed 2-4-08.)
1325.22 RESERVATION OF RIGHTS.
   The City reserves the right to impose any other reasonable conditions it determines are necessary for the proper placement, construction, or modification of towers or facilities, and/or to impose any other reasonable conditions on the issuance of a Conditional Use Permit for place, construction, or modification of a tower or facilities.
(Ord. 318. Passed 2-4-08.)
1325.23 SEVERABILITY.
   The provisions of this article are severable. If any provision of this article or its application to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this article which can be given effect without the invalid provisions or application. (Ord. 318. Passed 2-4-08.)
 
 
 
 
      CHAPTER TWO - Subdivision Regulations
         Art. 1371.   General Provisions.
         Art. 1373.    Definitions.
         Art. 1375.    Subdivision Application, Review and Approval.
         Art. 1377.   Street Design Standards.
         Art. 1379.   Utilities and Drainage.
         Art. 1381.   General Requirements and Standards.