§ 16-736. Conditional use permit application and other requirements for a new tower or for increasing the height of the structure to be attached to.

(a)

All applicants for a conditional use permit for wireless telecommunications facilities or any modification of such facility shall comply with the requirements set forth in this article. The board of commissioners is the officially designated agency or body of the town to whom applications for a conditional use permit for wireless telecommunications facilities must be made, and that is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting or revoking conditional use permits for wireless telecommunications facilities. The town may at its discretion delegate or designate the town's planning commission or other official agencies or officials of the town or expert consultants to accept, review, analyze, evaluate and make recommendations to the board of commissioners with respect to the granting or not granting or revoking conditional use permits for wireless telecommunications facilities.

(b)

The nonrefundable application fee for attaching to an existing tower or other structure without increasing the height shall be as set forth in the town's schedule of fees.

(c)

All applicants shall closely follow the instructions for preparing an application that shall be provided prior to the submittal of an application or at any time upon request. Consult current town schedule of fees.

(d)

Subject to the provisions of section 16-745, to prevent the taxpayers from having to pay for the expert technical assistance needed by the town that is necessitated by the application, an applicant shall be required to place a consulting fee with the town as set forth in the town's schedule of fees. After all invoices have been paid and the certificate of completion or occupancy has been granted, any unexpended balance of the escrow deposit shall be returned to the applicant upon request.

(e)

When placing wireless facilities on government-owned property or facilities, only noncommercial wireless carriers and users are exempt from the permitting requirements of this article, except as otherwise provided in section 16-735(1).

(f)

The town may reject applications not meeting the requirements stated herein or which are otherwise not complete.

(g)

No wireless telecommunications facilities shall be installed, constructed or modified until the application is reviewed and approved by the town, and the conditional use permit has been issued.

(h)

Any and all representations made by the applicant to the town on the record during the application process, whether written or verbal, shall be deemed a part of the application and will be deemed to have been relied upon in good faith by the town. Any verbal misrepresentation shall be treated as if it were made in writing.

(i)

An application for a conditional use permit for wireless telecommunications facilities shall be signed on behalf of the applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information.

(j)

The applicant must provide documentation to verify it has the right to proceed as proposed on the site. This requires an executed copy of the lease with the landowner or landlord or a signed letter of agency acknowledging authorization. If the applicant owns the site, a copy of the ownership record is required.

(k)

The applicant shall include a statement in writing:

(1)

That the applicant's proposed wireless telecommunications facilities shall be maintained in a safe manner, and in compliance with all conditions of the conditional use permit, without exception, unless specifically granted relief by the town in writing, as well as all applicable and permissible local codes, ordinances, and regulations, including any and all applicable town, state and federal laws, rules, and regulations; and

(2)

That the construction of the wireless telecommunications facilities is legally permissible, including, but not limited to the fact that the applicant is authorized to do business in the state.

(l)

Where a certification is called for in this article, such certification shall bear the signature and seal of a professional engineer licensed in the state.

(m)

In addition to all other required information as stated in this article, all applications for the construction or installation of new wireless telecommunications facilities or modification of an existing facility shall contain the following information. Note that an applicant will be granted permission for anything that it can conclusively prove the technical need for, but that there is often a significant difference between "need" and "want" or "desire." For example, an assertion that the "need" is based on an applicant's own design criteria shall not suffice to prove the technological need for what is requested. For purposes of permitting under this article, the term "need" shall mean what is technologically needed for the equipment to function as designed by the manufacturer and that anything less will result in prohibiting or acting in a manner that prohibits the provision of service as intended and described in the narrative of the application.

(1)

Proof of need for the facility:

a.

A detailed narrative description and explanation of the specific objectives for the new facility, or the modification of an existing wireless facility, expressly including and explaining the purpose and need for the facility, such as coverage and/or capacity needs or requirements, and the specific geographic area of intended coverage;

b.

Technical documentation that proves the need for the wireless telecommunications facility to provide service primarily and essentially within the town. Such documentation shall include a propagation study of the proposed site and all adjoining planned, proposed or existing sites, that demonstrates a significant gap in coverage and/or, if a capacity issue is involved, to include an analysis of the current and projected usage (traffic studies) using generally accepted industry methods and standards so as to conclusively prove the need for what is proposed. A desire to change, upgrade, or improve the technology or the service shall not be deemed a need in the context of this article;

c.

All of the modeling information (i.e., data) inputted into the software used to produce propagation studies, including, but not limited to any assumptions made, such as ambient tree height;

d.

A copy of the FCC license applicable for the intended use of the wireless telecommunications facility, as well as a copy of the five- and ten-year build-out plan required by and filed with the FCC;

e.

The frequency, modulation and class of service of radio or other transmitting equipment;

f.

The maximum transmission power capability of all radios, as designed, if the applicant is a cellular or functional equivalent carrier, or the maximum transmission power capability, as designed, of all transmission facilities if the applicant is not a cellular or functional equivalent carrier;

g.

The actual intended transmission power stated as the maximum effective radiated power (ERP) both in dBms and watts;

Note— In effect what is needed is the information that the company used to make its determination as regards the need for the facility in the first place, the need and reason for the requested location and the need for the height requested.

(2)

Ownership and management:

a.

The name, address and phone number of the person preparing the application, including the e-mail address of the party responsible for submitting the application and obtaining the permit on behalf of the applicant;

b.

The name, address, and phone number of the property owner and the applicant, including the legal name of the applicant. If the owner of the structure is different than the applicant, the name and all necessary contact information shall be provided;

c.

The postal address and tax map parcel number of the property;

d.

A copy of the FCC license applicable for the intended use of the wireless telecommunications facilities;

(3)

Zoning and planning:

a.

The zoning district or designation in which the property is situated;

b.

The size of the property on which the structure to be attached to is located, stated both in square feet and lot line dimensions, and a survey showing the location of all lot lines;

c.

The location, size and height of all existing and proposed structures on the property on which the structure is located and that is the subject of the application;

d.

If attaching to an existing tower, a site plan showing the vertical rendition of the tower identifying all users and attachments to the tower and all related fixtures, structures, appurtenances and apparatus, including height above pre-existing grade, materials, color and lighting;

e.

If attaching to a building or other structure, a site plan showing the proposed attachments and all related fixtures, structures, appurtenances and apparatus, including height above the roof or balustrade, whichever is appropriate;

f.

The azimuth, size and center line height location of all proposed and existing antennas on the supporting structure;

g.

The number, type and model of the antennas proposed, along with a copy of the specification sheets for the antennas;

h.

The type, locations and dimensions of all proposed and existing landscaping, and fencing;

i.

The number, type and design of the telecommunications towers and antennas proposed and the basis for the calculations of the telecommunications tower's capacity to accommodate multiple users;

j.

The applicant shall disclose in writing any agreement in existence prior to submission of the application that would limit or preclude the ability of the applicant to share any new telecommunication tower that it constructs;

(4)

Safety:

a.

If attaching to an existing tower, the age of the tower in years, including the date of the grant of the original permit or authorization for the tower;

b.

If attaching to an existing tower, a description of the type of tower (e.g., guyed, self-supporting lattice or monopole);

c.

If attaching to an existing tower, the make, model, type and manufacturer of the tower and the structural design calculations, certified by a professional engineer licensed in the state, proving the tower's capability to safely accommodate the facilities of the applicant without change or modification, taking into account the geotechnical situation and the foundation design;

d.

If any change or modification of the tower or other structure to be attached to is needed, a detailed narrative explaining what changes are needed, why they are needed and who will be responsible to ensure that the changes are made;

e.

If the structure proposed to be attached to is a tower that has not previously been permitted under this article, or unless the applicant can provide proof that this was provided at the time of the initial application for the tower or other structure, the applicant shall provide a copy of the installed foundation design, as well as a geotechnical sub-surface soils investigation, evaluation report and foundation recommendation for the tower site or other structure;

f.

If increasing the height of an existing structure or tower that is five years old or older, or for a guyed tower that is three years old or older, a copy of the latest ANSI report done pursuant to the latest edition of ANSI-EIA/TIA 222F Annex E for any self-supporting tower. If an ANSI report has not been done pursuant to the preceding schedule, an ANSI report shall be done and submitted as part of the application. No building permit shall be issued for any wireless facility where the structure being attached to is in need of remediation, unless and until all remediation work needed has been completed or a schedule for the remediation work has been approved by the planning department;

g.

If not attaching to an existing tower, a structural report, including calculations, signed by a professional engineer licensed to do business in the state and bearing that engineer's currently valid stamp, showing the structural adequacy of the structure to accommodate the proposed wireless facility, including any equipment shelter, unless the equipment shelter is located on the lowest floor of a building;

h.

If attaching to a structure and thereby increasing the height of the structure, other than a tower, to which the public has or could reasonably have or gain access to, documentation shall be provided, including all calculations, proving that the potential exposure to RF radiation (i.e., NIER or non-ion-emitting radiation), will be in compliance with the most recent Federal Communications Commission regulations governing RF radiation and exposure thereto, and further denoting the minimum distance from any antennas an individual may safely stand without being exposed to RF radiation in excess of the FCC's permitted standards and any portion of the structure that would be exposed to RF radiation in excess of the FCC's permitted standards. In compliance with the FCC's regulations, in such an instance the RF radiation from all wireless facilities at that location shall be included in the calculations to show the cumulative effect on any area of the building or structure deemed accessible by the public or workers. Such report or analysis shall be signed and sealed by a professional engineer licensed in the state;

i.

In an instance involving a tower where the new wireless facilities will be ten meters or more above ground level, signed documentation such as the FCC's "Checklist to Determine Whether a Facility is Categorically Excluded" shall be provided to verify that the wireless telecommunication facility with the proposed installation will be in full compliance with the current FCC's RF emissions regulations. If not categorically excluded, a complete RF emissions study is required to enable verification of compliance, pursuant to this section, including providing all calculations so that such may be verified;

j.

In certain instances, the town may deem it appropriate to have an RF survey of the facility done after the construction or modification and activation of the facility, such to be done under the direction of the town or its designee, and an unredacted copy of the survey results provided, along with all calculations;

k.

If any section or portion of the structure to be attached to is not in compliance with the FCC's regulations regarding RF radiation, that section or portion must be barricaded with a suitable barrier to discourage approaching into the area in excess of the FCC's regulations, and be marked off with yellow and black plastic chain and striped warning tape, as well as placing RF radiation signs as needed and appropriate to warn individuals of the potential danger;

l.

A signed statement that the applicant will expeditiously remedy any physical or RF interference with other telecommunications or wireless devices or services.

(n)

The applicant will provide a written copy of an analysis, completed by a qualified individual or organization, to determine if the proposed new tower or existing structure intended to support wireless facilities is in compliance with Federal Aviation Administration Regulation Part 77 and if it requires lighting. This requirement shall also be for any existing structure or building where the application increases the height of the structure or building. If this analysis determines that an FAA determination is required, then all filings with the FAA, all responses from the FAA and any related correspondence shall be provided with the application.

(o)

Application for new tower versus co-location.

(1)

In the case of a new tower, the applicant shall be required to submit a written report demonstrating its meaningful efforts to secure shared use of existing towers or the use of alternative buildings or other structures within the town that are at or above the surrounding tree height or the tallest obstruction and are within one mile of the proposed tower. Copies of written requests and responses for shared use shall be provided to the town in the application, along with any letters of rejection stating the reason for rejection.

(2)

In order to better inform the public, in the case of a new telecommunications tower, the applicant shall hold a "balloon test" prior to the initial public hearing on the application. The applicant shall arrange to fly, or raise upon a temporary mast, a minimum of ten feet in length brightly colored balloon at the maximum height of the proposed new tower.

(3)

At least 14 days prior to the conduct of the balloon test, a sign shall be erected so as to be clearly visible from the road nearest the proposed site and shall be removed no later than 14 days after the conduct of the balloon test. The sign shall be at least four feet by eight feet in size and shall be readable from the road by a person with 20/20 vision.

(4)

Such sign shall be placed off, but as near to, the public right-of-way as is possible.

(5)

Such sign shall contain the times and dates of the balloon test and the date, time and location of the required planning council hearing, as well as a copy of the proposed site plan.

(6)

The dates, (including a second date, in case of poor visibility or wind in excess of 15 miles per hour on the initial date) times and location of this balloon test shall be advertised by the applicant seven and 14 days in advance of the first test date in a newspaper with a general circulation in the town and as agreed to by the town. The applicant shall inform the town in writing, of the dates and times of the test, at least 14 days in advance. The balloon shall be flown for at least four consecutive hours between 10:00 am and 2:00 p.m. on the dates chosen. The primary date shall be on a weekend, but the second date, in case of poor visibility on the initial date, may be on a weekday. A report with pictures from various locations of the balloon shall be provided with the application.

(7)

The applicant shall notify all property owners and residents located within 1,500 feet of the nearest property line of the subject property of the proposed construction of the tower and wireless facility and of the dates and times of the balloon test. Such notice shall be provided at least 14 days prior to the conduct of the balloon test and shall be delivered by U.S. certified mail.

(8)

The tower shall be structurally designed to accommodate at least five additional antenna arrays equivalent to those of the applicant as regards the load and stress created on the tower, and located as close to the applicant's antenna as possible without causing interference. A claim of interference because of a need to have greater than six feet of vertical clearance between facilities, measured from the vertical centerline of one array to the vertical centerline of another, must be proven by technical data and not merely verbal or written assertions. This requirement may be waived, provided that the applicant, in writing, demonstrates that the provisions of future shared usage of the tower is not technologically feasible, is commercially impracticable or creates an unnecessary and unreasonable burden, based upon:

a.

The kind of wireless telecommunications facilities site and structure proposed;

b.

Available space on existing and approved towers;

c.

The need for more than six feet of vertical clearance between antenna arrays, measured from the vertical centerline of one array to the vertical centerline of another, such that there would not be adequate vertical space to accommodate a total of four carriers.

(9)

The owner of a proposed new tower, and his successors in interest, shall negotiate in good faith for the shared use of the proposed tower by other wireless service providers in the future, and shall:

a.

Respond within 60 days to a request for information from a potential shared-use applicant;

b.

Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers;

c.

Allow shared use of the new tower if another telecommunications provider agrees in writing to pay reasonable charges. The charges may include, but are not limited to, a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity, less depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference;

d.

Failure to abide by the conditions outlined above may be grounds for revocation of the conditional use permit.

(p)

The applicant shall provide certification with documentation (i.e., structural analysis) including calculations that the wireless telecommunications facility tower and foundation and attachments, rooftop support structure, water tank structure, or any other supporting structure as proposed to be utilized are designed and will be constructed to meet all local, state and federal structural requirements for loads, including wind and ice loads and including, but not limited to all applicable ANSI (American National Standards Institute) guidelines.

(q)

All proposed wireless telecommunications facilities shall contain a demonstration that the facility is sited so as to create the least visual intrusiveness reasonably possible given the facts and circumstances involved, and thereby have the least adverse visual effect on the environment and its character, on existing vegetation, and on the residences in the area of the wireless telecommunications facility. The town expressly reserves the right to require the use of stealth or camouflage techniques such as DAS (distributive antenna system) or its functional equivalent to achieve this goal and such shall be subject to approval by the board of commissioners.

(r)

If the application is for a new tower, or a new antenna attachment to an existing structure other than a tower, or for a modification that noticeably changes the appearance of the structure, the applicant shall furnish a visual impact assessment, which shall include:

(1)

If a new tower or increasing the height of an existing structure is proposed, a computer-generated zone of visibility map at a minimum of one-mile radius from the proposed structure shall be provided to illustrate locations from which the proposed installation may be seen, with and without foliage;

(2)

Pictorial representations (photo simulations) of before and after views from key viewpoints inside of the town as may be appropriate and required, including but not limited to state highways and other major roads; state and local parks; other public lands; historic districts; preserves and historic sites normally open to the public; and from any other location where the site is visible to a large number of visitors, travelers or residents. Guidance will be provided concerning the appropriate key sites at the pre-application meeting. The applicant shall provide a map showing the locations of where the pictures were taken and the distances of each location from the proposed structure. Said photo simulations shall be contained in the application;

(3)

A written description of the visual impact of the proposed facility, including, as applicable, the tower base, guy wires, fencing and accessory buildings as seen from abutting and adjacent properties and streets as relates to the need or appropriateness of screening.

(s)

The applicant shall demonstrate and provide in writing and/or by drawing how it shall effectively screen from view the base and all related equipment and structures of the proposed wireless telecommunications facility.

(t)

The wireless telecommunications facility and any and all accessory or associated facilities shall maximize the use of building materials, colors and textures designed to blend with the structure to which it may be affixed and/or to harmonize with the natural surroundings. This shall include the utilization of stealth or camouflage or concealment techniques as may be required by the town.

(u)

All utilities at a wireless telecommunications facilities site shall be installed underground and in compliance with all laws, ordinances, rules and regulations of the town, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code, where appropriate.

(v)

At a wireless telecommunications facilities site an access road, turnaround space and parking shall be provided to ensure adequate emergency and service access. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and the cutting of vegetation. Road grades shall closely follow natural contours to ensure minimal visual disturbance and reduce soil erosion.

(w)

All wireless telecommunications facilities shall be constructed, operated, maintained, repaired, provided for removal of, modified or restored in strict compliance with all current applicable technical, safety and safety-related codes adopted by the town, state, or United States, including but not limited to the most recent editions of the ANSI Code, National Electrical Safety Code and the National Electrical Code, as well as accepted and responsible workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but are not limited to, construction, building, electrical, fire, safety, health, and land use codes. In the event of a conflict between or among any of the preceding, the more stringent shall apply.

(x)

A holder of a conditional use permit granted under this article shall obtain, at its own expense, all permits and licenses required by applicable law, ordinance, rule, regulation or code, and must maintain the same, in full force and effect, for as long as required by the or other governmental entity or agency having jurisdiction over the applicant.

(y)

There shall be a pre-application meeting for all intended applications. The purpose of the pre-application meeting is to address issues that will help to expedite the review and permitting process and certain issues or concerns the town may have. A pre-application meeting shall also include a site visit, if there has not been a site visit for the requested facility in the preceding twelve months or since the latest modification of the facility. Costs of town consultants to prepare for and attend the pre-application meeting will be borne by the applicant and paid for out of the required deposit.

(z)

An applicant shall submit to the town the number of complete applications determined to be needed at the pre-application meeting. However, applications will not be provided to the town, other than for staff, until the application is deemed complete.

(aa)

If the proposed site is within two miles of another governmental jurisdiction, written notification of the application shall be provided to the legislative body of all such adjacent municipalities as applicable and/or requested.

(bb)

The holder of a conditional use permit shall notify the town of any intended modification of a wireless telecommunication facility and shall apply to the town to modify, upgrade, relocate or rebuild a wireless telecommunications facility.

(cc)

An application to increase the height of a tower or other structure shall be deemed a new tower and shall not qualify for treatment as an attachment to an existing tower or other structure under this section.

(Ord. of 2-10-2011, § 8; Ord. of 1-9-2013(1), § 4)