Chapter 18.25
WIRELESS COMMUNICATIONS FACILITIES

Sections:

18.25.000    Purpose.

18.25.005    Exemptions.

18.25.010    Definitions.

18.25.020    Permitted locations.

18.25.025    Repealed.

18.25.030    Repealed.

18.25.040    Site development standards.

18.25.050    Noise.

18.25.060    Co-location.

18.25.070    Submittal requirements.

18.25.075    FCC and FAA requirements.

18.25.080    Radio frequency standards.

18.25.085    SEPA review.

18.25.090    Technological change and periodic review.

18.25.100    Permit limitations.

18.25.110    Applicability.

18.25.120    Effect on other code provisions.

18.25.000 Purpose.

The purpose of this chapter is to provide for appropriate locations, site development standards, and permit requirements for wireless communications facilities. (Ord. 2013-481 § 1 (Exh. A); Ord. 97-124 § 1).

18.25.005 Exemptions.

The following are exempt from the provisions of this chapter and shall be permitted in all zones unless otherwise regulated by NMC Title 18:

A. Industrial processing equipment and scientific or medical equipment using frequencies regulated by the Federal Communications Commission (FCC);

B. Machines and equipment that are designed and marketed as consumer products, such as microwave ovens and remote control toys;

C. Hand-held, mobile, marine and portable radio transmitters and/or receivers;

D. Repealed by Ord. 2016-541;

E. Licensed amateur (ham) radio stations and citizen band stations;

F. Receive-only television and satellite dish antennas as an accessory use;

G. Ancillary antennas allowed by franchise agreement with the city;

H. Any maintenance, reconstruction, repair or replacement of a conforming wireless communications facility (WCF); provided, that the WCF use has been established through a prior land use approval and the WCF does not result in noncompliance with this chapter;

I. In the event a building permit is required for any emergency maintenance, reconstruction, repair or replacement, filing of the building permit application shall not be required until 30 days after the completion of such emergency activities. In the event a building permit is required for nonemergency maintenance, reconstruction, repair or replacement, filing of the building permit application shall be required prior to the commencement of such nonemergency activities. (Ord. 2016-541 § 2 (Exh. 1); Ord. 2013-481 § 1 (Exh. A); Ord. 2001-242 § 15).

18.25.010 Definitions.

See Chapter 18.06 NMC. (Ord. 2013-481 § 1 (Exh. A); Ord. 2001-242 § 16; Ord. 97-124 § 1).

18.25.020 Permitted locations.

A. WCFs may be mounted on all currently existing nonresidential structures except as follows:

1. Any structure which is an accessory structure to a residence;

2. Structures that would be visually dominated by the facility;

3. In R and MU-R zones, WCFs are only allowed within existing regional electric utility corridors and within developed street rights-of-way. WCFs are not allowed within undeveloped street rights-of-way in R and MU-R zones. WCFs are not allowed on private property in R or MU-R zones unless located within an existing regional electric utility corridor;

4. WCFs are not allowed on residential structures in any zone.

B. WCFs mounted on existing nonresidential structures must meet the following conditions and criteria:

1. In nonresidential zones (all zones except R and MU-R zones), and in existing regional electric utility corridors in any zone, a WCF may consist of one of the following:

a. Up to four nonreflective panel antennas or up to nine nonreflective panel antennas if the applicant demonstrates necessity to the satisfaction of the city. The maximum size of the antenna(s) shall be determined by the director of community development services, based on the specific project location, surrounding environment, and potential visual impacts; or

b. Cylindrical antenna(s) in which the maximum square inches of cross-sectional area (diameter x height) shall be determined by the director of community development services, based on the specific project location, surrounding environment, and potential visual impacts; or

c. Up to three whip antennas; or

d. One nonreflective parabolic dish two feet or less in diameter;

e. In the event of co-location, more than one of the facilities described above may be included.

2. In an R or MU-R zone, except where located in an existing regional electric utility corridor, a WCF may only consist of a cylindrical or panel antenna with a maximum cross-sectional area of 580 square inches.

3. In nonresidential zones (all zones except R and MU-R zones), and in existing regional electric utility corridors in any zone, WCFs must conform to the following height restrictions relating to the existing structure:

a. Five feet measured to the top of a panel antenna above the existing structure at the point of attachment;

b. Ten feet measured to the top of the cylindrical antenna above the existing structure at the point of attachment;

c. Ten feet measured to the tip of the whip antenna above the existing structure at the point of attachment;

d. Five feet measured to the top of a parabolic dish above the existing structure at the point of attachment.

4. In the R and MU-R zones except where located in an existing regional utility corridor, a proposed WCF may add a maximum additional height of six feet, including the antenna and any attachment hardware, to an existing or replacement pole. When a WCF is attached to an existing structure that exceeds the zone height limit, the overall height of the existing structure shall not be increased, except for the following:

a. A WCF antenna when located on an existing or replacement electrical distribution pole with electrical conductors energized between 2,400 volts and up to 121,000 volts, the structure may be increased to provide a maximum of eight feet vertical separation between the conductors and the bottom of the antenna(s).

5. Whip and cylindrical antennas shall be camouflaged and located to minimize views from residential structures and public rights-of-way.

6. Panel and parabolic antennas shall be completely screened from residential views and public rights-of-way in a manner that is architecturally compatible with the structure on which it is located.

C. New monopoles and lattice towers shall not be permitted.

D. WCFs are not allowed on structures containing residential uses.

E. When attached to utility poles and towers, WCFs shall be integrated into the design of the pole or tower.

F. In nonresidential zones (all zones except R and MU-R zones), and in existing regional electric utility corridors in any zone, when a WCF is attached to an existing structure that exceeds the zone height limit, the overall height of the existing structure shall not be increased, except for the following:

1. A WCF antenna when located on an existing or replacement electrical distribution pole with electrical conductors energized between 2,400 volts and up to 121,000 volts, the structure may be increased to provide a maximum of eight feet vertical separation between the conductors and the bottom of the antenna(s);

2. A WCF antenna when located on an existing or replacement regional electrical transmission tower or pole with electrical conductors energized between 121,000 volts to 241,000 volts, the structure may be increased to provide a maximum of 15 feet vertical separation between the conductors and the bottom of the antenna(s).

G. In nonresidential zones (all zones except R and MU-R zones), and in existing regional electric utility corridors in any zone, a WCF antenna may exceed the zone height up to 10 feet, when the antenna is located on an existing building.

H. A WCF may be placed in R or MU-R zones only if mounted on a nonresidential structure and only if located in an existing regional electric utility corridor or in a developed street right-of-way. Placement of a WCF equipment enclosure on private property in the R or MU-R zones may be considered, if it is technically infeasible to place it in the developed street right-of-way. A WCF may not be located on an undeveloped street right-of-way in an R or MU-R zone.

I. New WCFs shall be at least one-quarter mile from existing or proposed WCFs used by the same provider. (Ord. 2016-541 § 2 (Exh. 1); Ord. 2013-481 § 1 (Exh. A); Ord. 2002-254 § 6; Ord. 2001-242 § 17; Ord. 97-124 § 1).

18.25.025 Exemptions.

Repealed by Ord. 2001-242. (Ord. 97-124 § 1).

18.25.030 Permitted height.

Repealed by Ord. 2001-242. (Ord. 97-124 § 1).

18.25.040 Site development standards.

A. WCFs shall conform to the following site development standards:

1. WCFs shall be designed and placed on the site in a manner that takes maximum advantage of existing trees, mature vegetation, and structures so as to:

a. Use existing site features to screen as much of the total WCF as possible from prevalent views; and/or

b. Use existing site features as a background so that the total WCF blends into the background with increased sight distances.

2. Relocation of a proposed facility on the site and in-fill landscaping of mature plant materials consistent with landscaping of the city may be required by the director or the hearing examiner, to make the best use of or to supplement existing trees and vegetation to more effectively screen the facility. Proposed landscaping shall meet Type II landscaping requirements (NMC 18.16.040(B)), unless the director or hearing examiner determines that, based on neighboring uses and conditions, more or less intensive landscaping is appropriate.

3. All WCFs shall employ concealment technology in their design, construction, and maintenance in order to reduce the WCFs’ aesthetic impacts to the maximum extent possible. Such concealment technology shall include, at a minimum, the following:

a. All antenna support structures, antennas, and associated hardware shall be painted a nonreflective color or a color scheme appropriate to the background against which the WCF would be viewed from a majority of points within its view shed. The final colors and color scheme must meet the approval of the director or the hearing examiner. The intent is to blend into the nearby surroundings of the WCF to minimize the visual impact of the support structure and antennas.

b. Concealment technology may include the use of existing or new vegetation or screening, if on a roof, to screen the WCFs, including the antennas, equipment enclosures, wires, and other components from observation from rights-of-way, residential properties, and other properties. All WCFs shall be designed in a manner that does not require the removal or topping of existing trees.

c. Concealment technology may also include designing the WCF so that it is attached to and blends in with an object other than a WCF that is already present in the local environment, such as a light pole, electric pole, or traffic signal.

d. Concealment technology shall include encasing all wires, equipment, and other components to not create an attractive nuisance or a visual eyesore.

4. Equipment enclosures shall conform to the following:

a. Equipment enclosures shall be located within the structure on which the facility is placed or placed underground if site conditions permit and if technically feasible.

b. Equipment enclosures shall be screened from view by a wall or fence and landscaping consistent with city landscaping standards, Chapter 18.16 NMC, that are visually compatible with existing site conditions except as provided in subsection (A)(4)(c) of this section.

c. Walk-in equipment enclosures:

i. May not be constructed with exposed metal surfaces.

ii. May not be required to be totally screened from view provided the director or the hearing examiner (by referral from the director) finds that:

(A) The walk-in equipment enclosure has been designed using materials, colors and detailing that produces a structure which emulates the residential character of the city.

d. When located in developed street rights-of-way in R and MU-R zones, underground equipment facilities shall not extend more than 12 inches above original grade, and shall be screened with vegetation.

5. Security fencing or wall shall conform to the following:

a. No fence shall exceed six feet in height and shall be sufficient to deter intrusions.

b. Security fencing shall be effectively screened from view through the use of appropriate landscaping materials consistent with city landscaping standards, Chapter 18.16 NMC.

c. Chain-link fences shall be painted or coated with a nonreflective color.

B. The director (or hearing examiner by referral) shall consider the cumulative visual effects of WCFs mounted on existing structures and/or located on a given permitted site in determining whether additional permits can be granted so as to not adversely affect the character of the city.

C. Any fuel or hazardous material stored or used on site shall be used in accordance with best management practices and other applicable codes and ordinances. (Ord. 2013-481 § 1 (Exh. A); Ord. 2002-254 § 7; Ord. 2001-242 § 20; Ord. 97-153 § 4; Ord. 97-124 § 1).

18.25.050 Noise.

No equipment shall be operated so as to produce noise levels above 45 dB as measured from the nearest property line on which the WCF is located. (Ord. 2013-481 § 1 (Exh. A); Ord. 97-124 § 1).

18.25.060 Co-location.

A. A permittee shall cooperate with other WCF providers in co-locating additional antennas on support structures and/or on existing buildings provided the proposed co-locators have received a conditional use permit for such use at the site from the city. A permittee shall exercise good faith in co-locating with other providers and sharing the permitted site, provided such shared use does not give rise to a substantial technical level impairment of the ability to provide the permitted use (i.e., a significant interference in broadcast or reception capabilities as opposed to a competitive conflict or financial burden). Such good faith shall include sharing technical information to evaluate the feasibility of co-location. In the event a dispute arises as to whether a permittee has exercised good faith in accommodating other users, the city may require a third party technical study at the expense of either or both the applicant and permittee.

B. All applicants shall demonstrate reasonable efforts in developing a co-location alternative for their proposal.

C. Failure to comply with the co-location requirements of this section may result in the denial of a permit request or revocation of an existing permit. (Ord. 2013-481 § 1 (Exh. A); Ord. 2001-242 § 21; Ord. 97-124 § 1).

18.25.070 Submittal requirements.

A. In addition to the information requested in the wireless communications facility (“WCF”) permit or the conditional use permit application, the following items shall be required for a WCF application:

1. A diagram or map showing the viewshed of the proposed facility;

2. Photo simulations of the proposed facility from affected residential properties and public rights-of-way at varying distances;

3. A map to scale showing the city boundary, the service area of the proposed WCF and an explanation of the need for that facility;

4. A map drawn to an identifiable scale, showing the city boundary, the locations and service areas of other WCF sites operated by the applicant and those that are proposed by the applicant which are close enough to impact service within the city, and noting the distances between the proposed WCF site and others operated or proposed by the applicant;

5. A site/landscaping plan and elevations showing the specific placement of the WCF on the site; showing the location of existing structures, trees, and other significant site features; and indicating type and locations of plant materials used to screen WCF components and the proposed color(s) for the WCF;

6. A signed statement indicating:

a. The applicant agrees to allow for the potential co-location of additional WCF equipment by other providers on the applicant’s structure or within the same site location; and

b. That the applicant agrees to remove the WCF within 90 days after that site’s use is discontinued;

7. Proof of a lease agreement with the landholder that:

a. Allows the landholder to enter into leases with other providers; and

b. Specifies that if the provider fails to remove the facility upon 90 days of its discontinued use, the responsibility for removal falls upon the landholder;

8. If a new proposed WCF location is within a right-of-way, and/or a replacement pole with WCF equipment within the right-of-way is taller than 60 feet, a new lease/franchise agreement must be submitted to and accepted by the city prior to installation.

B. Approval of a WCF in an R or MU-R zone will occur through the conditional use permit process as specified in NMC 18.44.050. Approval of a WCF in any other zone will occur through the wireless communications facility (“WCF”) permit process as specified in NMC 18.44.055.

C. The review procedures shall be governed by the administrative procedures set forth in NMC Title 19.

D. The permit fee for each new permit for each site shall be according to the city’s land use permit fee schedule in effect at the time of application. (Ord. 2013-481 § 1 (Exh. A); Ord. 2002-254 § 8; Ord. 2001-242 § 22; Ord. 97-153 § 5; Ord. 97-124 § 1).

18.25.075 FCC and FAA requirements.

WCFs shall comply with all federal and state standards, including but not limited to radio frequency emissions, height limits, and aircraft warning lighting. Failure to comply with federal or state standards may result in immediate revocation or modification of the conditional use permit. (Ord. 2013-481 § 1 (Exh. A); Ord. 2001-242 § 23).

18.25.080 Radio frequency standards.

A. The applicant shall comply with federal standards for radio frequency emissions.

B. The applicant shall ensure that the WCF will not cause localized interference with the reception of area television or radio broadcasts. If on review the city finds that the WCF interferes with such reception, and if such interference is not cured within 60 days, the city may revoke or modify the approval in which the WCF permit or decision was issued. (Ord. 2013-481 § 1 (Exh. A); Ord. 2001-242 § 24; Ord. 97-124 § 1).

18.25.085 SEPA review.

WCFs shall be reviewed in accordance with the State Environmental Policy Act (SEPA) except when explicitly exempted in accordance with Chapter 14.05 NMC. (Ord. 2013-481 § 1 (Exh. A); Ord. 2001-242 § 25).

18.25.090 Technological change and periodic review.

A. The city recognizes that WCFs and communication technologies in general are currently subject to rapid change. Therefore, the city shall review this chapter at least every three years or upon request of the city council, city manager, or planning commission.

B. At the time of review the director and/or a qualified communications consultant will prepare a written report to be submitted to the planning commission and city council that assesses this chapter relative to current trends in the communications industry, innovations in communications technology, permit activity during the previous five years, and effectiveness in producing WCFs that are compatible with the city’s residential character.

C. The director and/or a qualified communications consultant shall, if necessary, recommend updates to this chapter that may include, but not be limited to, the deletion, modification, or addition of allowed locations; allowed heights; site development requirements; administrative review possibilities; or permitting procedures. (Ord. 2013-481 § 1 (Exh. A); Ord. 2001-242 § 26; Ord. 97-153 § 6; Ord. 97-124 § 1).

18.25.100 Permit limitations.

A. A conditional use permit shall become null and void if the permitted facility is not constructed and placed into use within one year of the date of the city’s approval; provided, that the conditional use permit may be extended one time for six months if construction has commenced before expiration of the initial year upon payment of an extension fee of one-half of the conditional use permit.

B. The permittee, its operator, agent, affiliate, assigns or successors of a WCF shall and does, upon approval of this conditional use permit, agree to indemnify, protect, defend and hold harmless the city, its council members, planning commission members, officers, employees, agents and representatives, from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attorney fees (collectively “liabilities”) incurred by the city arising, directly or indirectly, from:

1. City’s approval and issuance of this conditional use permit;

2. City’s approval or issuance of any permit or action, whether discretionary or nondiscretionary, in connection with the use contemplated herein; and

3. The installation and operation of the facility permitted hereby, including, without limitation, any and all liabilities arising from the emission by the facility of electromagnetic fields or other energy waves or emissions. The permittee, its operator, agent, affiliate, assigns or successors’ compliance with this section is an express condition of this conditional use permit, and this provision shall be binding on any and all of the permittee’s operators, agents, affiliates, assigns and successors.

C. The permit shall expire and the applicant must remove the facility if the facility is not put into use within 90 days after construction or if use is discontinued for a period in excess of 90 days. If the facility is not so removed, the city may cause the facility to be removed and all expenses of removal shall be paid by the owner of the land where the facility is located, or the permittee, its operator, agent, affiliate, assign or successor.

D. The applicant shall maintain the WCF to standards that may be imposed by the city at the time of the granting of a permit. Such maintenance shall include, but shall not be limited to, maintenance of the paint, structural integrity and landscaping. If the applicant fails to maintain the facility, the city may undertake the maintenance at the expense of the applicant or terminate the permit, at its sole option.

E. The applicant shall notify the city of all changes in ownership or operation of the facility prior to the effective date of the change. (Ord. 2013-481 § 1 (Exh. A); Ord. 2001-242 § 27; Ord. 97-124 § 1).

18.25.110 Applicability.

The requirements of this chapter apply to all new WCFs and the expansion and/or alteration of any existing WCFs; provided, that an in-kind or smaller replacement of transmission equipment will only require a written notification to the city at least 20 working days prior to replacement. Anything other than an in-kind or smaller replacement constitutes an expansion and/or alteration of any existing WCFs under this section. (Ord. 2013-481 § 1 (Exh. A); Ord. 97-124 § 1).

18.25.120 Effect on other code provisions.

To the extent any provisions of this chapter conflict with any provisions in other chapters or ordinances or any provisions of the code, the provisions of this chapter shall control. (Ord. 2013-481 § 1 (Exh. A); Ord. 97-124 § 1).