Mound City Code

Subsection 350.1300 – TELECOMMUNICATIONS TOWERS AND FACILITIES

350.1301 Findings. The city council finds:

Subd. 1. The Federal Communications Act of 1934 as amended by the Telecommunications Act of 1996 ("the Act") grants the Federal Communications Commission exclusive jurisdiction over the regulation of the environmental effects of radio frequency emissions from telecommunications facilities and the regulation of radio signal interference among users of the radio frequency spectrum.

Subd. 2. Consistent with the Act, the regulation of towers and telecommunications facilities in the city will not have the effect of prohibiting any person from providing wireless telecommunications services. The general purpose of this section is to regulate the placement, construction, and modification of telecommunication towers and facilities in order to protect the health, safety and welfare of the public, while not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in the city. In addition, this section recognizes the contractual control for the purpose of preserving public health, safety, and welfare that can be exercised over telecommunications facilities when those facilities are located on property owned or controlled by governmental entities. Specifically, the purposes of this section are:

1. to regulate the location of telecommunication towers and facilities;

2. to protect residential areas and land uses from potential adverse impacts of telecommunication towers and facilities;

3. to minimize adverse visual impacts of telecommunication towers and facilities through design, site, landscaping, and innovative camouflaging techniques;

4. to promote and encourage shared use and collocation of telecommunication towers and antenna support structures;

5. to avoid damage to adjacent properties caused by telecommunication towers and facilities by ensuring that those structures are soundly and carefully designed, constructed, modified, maintained and promptly removed when no longer used or when determined to be structurally unsound;

6. to ensure that telecommunication towers and facilities are compatible with surrounding land uses; and

7. to facilitate the provision of wireless telecommunications services to the residents and businesses of the city in an orderly fashion.

350.1305 Definitions. For purposes of this section the following terms have the meanings given them, except where the context clearly indicates a different meaning:

Subd. 1. "Antenna support structure" means a building, athletic fieldlighting, water tower, or other structure, other than a tower, which can be used for location of telecommunications facilities.

Subd. 2. "Applicant" means a person who applies for a permit to develop, construct, build modify or erect a tower under this section.

Subd. 3. "Application" means the process by which the owner of a plot of land within the city submits a request to develop, construct, build, modify or erect a tower upon that land.

Subd. 4. "Engineer" means an engineer licensed by the state of Minnesota.

Subd. 5. "Person" means any natural person, firm, partnership, association, corporation, company, or other legal entity, private or public, whether for profit or not for profit.

Subd. 6. "Stealth" means designed to blend into the surrounding environment; examples of stealth facilities include, without limitation, architecturally screened roof-mounted antennas, antennas integrated into architectural elements, and telecommunications towers designed to appear other than as a tower, such as light poles, power poles, and trees.

Subd. 7. "Telecommunications facilities" means cables, wires, lines, wave guides, antennas or any other equipment or facilities associated with the transmission or reception of telecommunications located or installed on or near a tower or antenna support structure. The term does not include:

1. a satellite earth station antenna two meters in diameter or less located in an industrial or commercial district;

2. a satellite earth station antenna one meter or less in diameter, wherever located; or

3. a tower.

Subd. 8. "Telecommunications tower" or "tower" means a self-supporting lattice, guyed, or monopole structure constructed from grade that supports telecommunications facilities; the term does not include amateur radio operations equipment licensed by the Federal Communications Commission.

350.1310 Development of Towers; Approvals Required.

Subd. 1. General Construction Prohibition. A tower may not be constructed in any zoning district unless such tower is a conditional or permitted use in the zoning district in which construction will take place.

Subd. 2. Conditional Use Permits Required. A tower may not be constructed in any zoning district unless a conditional use permit has been issued by the city council if the tower is a conditional use in the zoning district in which construction will take place.

Subd. 3. Building Permit Required. A tower may not be constructed in any zoning district unless a building permit has been issued by the building official.

Subd. 4. City Property. The city may authorize the use of city property for towers in accordance with the procedures of this code. The city has no obligation to allow the use of city property for this purpose.

Subd. 5. Zoning Districts. A tower is not a permitted use in any zoning district. Towers shall be allowed as a conditional use in the following zoned areas:

1. Light Industrial (I-1) and Planned Industrial Area (PIA) districts.

2. Publicly owned or operated land in Residential and Commercial districts.

(ORD. 102-1999 - 2-21-99)

350.1315 Application Process.

Subd. 1. A person desiring to construct a tower must submit an application for a building permit and, if applicable, for a conditional use permit, to the Zoning Administrator.

Subd. 2. An application to develop a tower must include:

1. name, address, and telephone number of the applicant

2. name, address, and telephone numbers of the owners of the property on which the tower is proposed to be located;

3. written consent of the property owner(s) to the application;

4. written evidence from an engineer that the proposed structure meets the structural requirements of this code;

5. written information demonstrating the need for the tower at the proposed site in light of the existing and proposed wireless telecommunications network(s) to be operated by persons intending to place telecommunications facilities on the tower;

6. a copy of relevant portions of a lease signed by the applicant and property owner(s), requiring the applicant to remove the tower and associated telecommunications facilities upon cessation of operations on the leased site, or, if a lease does not yet exist, a written agreement to include such a provision in the lease to be signed; and

7. an application fee established from time to time by resolution of the city council.

350.1320 Performance Standards.

Subd. 1. Collocation capability. Unless the applicant presents clear and convincing evidence to the city council that collocation is not feasible, a new tower may not be built, constructed or erected in the city unless the tower is capable of supporting at least two telecommunications facilities comparable in weight, size, and surface area to each other.

Subd. 2. #9; Setback requirements. A tower must comply with the following setback requirements:

1. Towers shall meet the principle structure setbacks of the underlying zoning district provided the tower does not encroach upon any easement.

2. Towers shall not be located between a principle structure and a public street.

3. A tower’s setback may be reduced or its location in relation to a public street varied, if the City Council reasonably deems it necessary to allow better site integration. (ORD #`102-1999, 2-25-99)

350.1325 Engineer Certification. Towers must be designed and certified by an engineer to be structurally sound and in conformance with the Uniform Building Code, and any other standards set forth in this code.

350.1330 Height Restriction. A tower may not exceed 125 feet in height. Measurement of tower height must include the tower structure itself, the base pad, and any telecommunications facilities attached thereto. Tower height is measured from grade. Measurement of antenna support structure height must include the structure itself and any telecommunications facilities attached thereto. This provision, however, is not a separate grant of authority to construct an antenna support structure or a grant that such a structure may be any particular height. (ORD. #102-1999 - 2-21-99)

350.1335 Lighting. Towers may not be artificially lighted except as required by the Federal Aviation Administration. At time of construction of a tower, in cases where there are residential uses located within a distance that is three times the height of the tower from the tower, dual mode lighting must be requested from the Federal Aviation Administration. Notwithstanding this provision, the city may approve the placement of an antennae on an existing or proposed lighting standard, provided that the antennae is integrated with the lighting standard.

350.1340 Exterior Finish. Towers not requiring Federal Aviation Administration painting or marking must have an exterior finish as approved in the site plan.

350.1345 Fencing. Fences constructed around or upon parcels containing towers, antenna support structures, or telecommunications facilities must be constructed in accordance with the applicable fencing requirements in the zoning district where the tower or antenna support structure is located, unless more stringent fencing requirements are required by Federal Communications Commission regulations.

350.1350 Landscaping. Landscaping on parcels containing towers, antenna support structures or telecommunications facilities must be in accordance with landscaping requirements as approved in the site plan. Utility buildings and structures accessory to a tower must be architecturally designed to blend in with the surrounding environment and to meet such setback requirements as are compatible with the actual placement of the tower. Ground mounted equipment must be screened from view by suitable vegetation, except where a design of non-vegetative screening better reflects and complements the character of the surrounding neighborhood.

350.1355 Accessory buildings and Equipment. No more than one accessory building is permitted per tower. Accessory buildings may be no more than 200 square feet in size. Telecommunications facilities not located on a tower or in an accessory building must be of stealth design.

350.1360 Security. Towers must be reasonably posted and secured to protect against trespass. All signs must comply with applicable sign regulations.

350.1365 Design. Towers must be of stealth design.

350.1370 Non-tower facilities. Telecommunications facilities are permitted only as follows:

Subd. 1. Telecommunications facilities are a conditional accessory use in the Central Business District (B-1), General Business (B-2), and Neighborhood Business (B-3) districts, provided that the owner of such a telecommunications facility, by written certification to the building official, establishes the following facts at the time plans are submitted for a building permit:

1. that the height from grade of the telecommunications facilities and antennae support structure does not exceed the maximum height from grade of the antenna support structure by more than 20 feet;

2. that the antenna support structure and telecommunications facilities comply with the Uniform Building Code; and

3. that telecommunications facilities located above the primary roof of an antenna support structure are set back one foot from the edge of the primary roof for each one foot in height above the primary roof of the telecommunications facilities. This setback requirement does not apply to antennas that are mounted to the exterior of antenna support structures below the primary roof, but that do not protrude more than six inches from the side of the antenna support structure.

Subd. 2. Notwithstanding anything to the contrary contained in this ordinance, telecommunications facilities are a permitted accessory use on antenna support structures owned or otherwise under the physical control of the city, a school district, or the state or federal government provided a building permit has been issued by the city council and provided further that the owner of such a telecommunications facility, by written certification to the building official, establishes the following facts at the time plans are submitted for a building permit:

1. that the height from grade of the telecommunications facilities and antennae support structure does not exceed the maximum height from grade of the antenna support structure by more than 20 feet;

2. that the antenna support structure and telecommunications facilities comply with the Uniform Building Code; and

(ORD. #102-1999 - 2-21-99)

350.1375 Removal of Towers. Abandoned or unused towers and associated above-ground facilities must be removed within twelve months of the cessation of operations of the telecommunications facility at the site unless an extension is approved by the city council. Any tower and associated telecommunications facilities that are not removed within twelve months of the cessation of operations at a site are declared to be public nuisances and may be removed by the city and the costs of removal assessed against the property pursuant to state law and the code.

350.1380 Shoreland Management Ordinance. To the extent that any conflict exists between any provision of this Subsection 350.1300 of the code and any provision of the Shoreland Management Ordinance contained at Subsection 350.1200 of the city's zoning ordinance, the more restrictive provision shall apply.

350.1385 Additional requirements.

Subd. 1. Inspections. The city may conduct inspections at any time, upon reasonable notice to the property owner and the tower owner to inspect the tower for the purpose of determining if it complies with the Uniform Building Code and other construction standards provided by the city code, federal and state law. The expense related to such inspections will be borne by the property owner. Based upon the results of an inspection, the building official may require repair or removal of a tower.

Subd.2. Evaluation and Monitoring. As a condition of approval for telecommunication facilities the applicant shall reimburse the City for its costs to retain outside expert technical assistance to evaluate any aspect of the proposed site of telecommunications facilities, including but not limited to other possible sites within the City. The owner of a telecommunications facility shall provide the City with current, technical evidence of compliance with FCC radiation emission requirements, annually or more frequently at the City’s reasonable request. If the owner does not promptly provide the City with satisfactory technical evidence of FCC compliance, the City may carry out tests to ensure FCC radiation compliance using a qualified expert. The owner shall reimburse the City for its reasonable costs in carrying out such compliance testing. (ORD. #102-1999 - 2-21-99)

Subd. 3. Maintenance. Towers must be maintained in accordance with the following provisions:

1. Tower owners must employ ordinary and reasonable care in construction and use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injuries, or nuisances to the public.

2. Tower owners must install and maintain towers, telecommunications facilities, wires, cables, fixtures and other equipment in compliance with the requirements of the National Electric Safety Code and all Federal Communications Commission, state, and local regulations, and in such a manner that they will not interfere with the use of other property.

3. Towers, telecommunications facilities, and antenna support structures must be kept and maintained in good condition, order, and repair.

4. Maintenance or construction on a tower, telecommunications facilities or antenna support structure must be performed by qualified maintenance and construction personnel.

5. Towers must comply with radio frequency emissions standards of the Federal Communications Commission.

6. If the use of a tower is discontinued by the tower owner, the tower owner must provide written notice to the city of its intent to discontinue use and the date when the use will be discontinued.

(ORD. 96-1998 - 4-18-98)

350.1390 Variances.

Subd. 1. Initial Criteria. The city council may grant a variance to the setback separation or buffer requirements, and maximum height provision of this subdivision based on the criteria set forth in Subsection 350.530 of this Code.

Subd. 2. Additional Criteria. In addition to consideration of a variance based on the criteria set forth in Subsection 350.530 of this Code into consideration, the city council may also grant a variance by considering the requirements imposed by the Act and showing by the applicant with written or other satisfactory evidence that:

1. The location, shape, appearance or nature of use of the proposed tower will not substantially detract from the aesthetics of the area nor change the character of the neighborhood in which the tower is proposed to be located;

2. The variance will not create a threat to the public health, safety or welfare;

3. In the case of a requested modification to the setback requirement, the size of plat upon which the tower is proposed to be located makes compliance impossible, and the only alternative for the applicant is to locate the tower at another site that poses a greater threat to the public health, safety or welfare or is closer in proximity to a residentially zoned land;

4. In the case of a request for modification of separation requirements, if the person provides written technical evidence from an engineer that the proposed tower and telecommunications facilities must be located at the proposed site in order to meet the coverage needs of the applicant’s wireless communications system and if the person agrees to create approved landscaping and other buffers to screen the tower from being visible to the residential area;

5. In the case of a request for modification of the maximum height limit, that the modification is necessary to (1) facilitate collocation of telecommunications facilities in order to avoid construction of a new tower; or (2) to meet the coverage requirements of the applicant’s wireless communications system, which requirements must be documented with written, technical evidence from an engineer.

350.1395 Failure to Comply

Subd. 1. City’s Right to Revoke. If the permittee fails to comply with any of the terms imposed by the conditional use permit, the City may impose penalties or discipline for noncompliance, which may include revocation of the permit, in accordance with the following provisions:

Subd. 2. Procedure. Except as provided in subsection (23)(c) below, the imposition of any penalty shall be preceded by (i) written notice of the permittee of the alleged violation, (ii) the opportunity to cure the violation during a period not to exceed thirty days following receipt of the written notice, and (iii) a hearing before the City Council at least fifteen days after sending written notice of the hearing. The notices contained in (i) and (iii) may be contained in the same notification. The hearing shall provide the permittee with an opportunity to show cause why the permit should not be subject to discipline.

Subd. 3. Exigent Circumstances. If the City finds that exigent circumstances exist requiring immediate permit revocation, the City may revoke the permit and shall provide a post-revocation hearing before the City Council not more than fifteen days after permittee’s receipt of written notice of the hearing. Following such hearing, the City Council may sustain or rescind the revocation, or may impose such other and further disciplines as it deems appropriate.

Subd. 4. Record. Any decision to impose a penalty or other discipline shall be in writing and supported by substantial evidence contained in a written record.