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2001-048-ORD AMENDING ORDINANCE NO 1710 TO ADD NEW SECTION 28 THERETO ENTITLED "REGULATION OF WIRELESS TELECOMMUNICATIONS TOWERS AND FACILITIES" ORDINANCE NO. 2001-048 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS, AMENDING ORDINANCE NUMBER 1710, THE ZONING ORDINANCE OF THE CITY OF PARIS, TO ADD A NEW SECTION 28 THERETO ENTITLED "REGULATION OF WIRELESS TELECOMMUNICATIONS TOWERS AND FACILITIES"; PROVIDING DEFINITIONS; PROVIDING FOR PERMITTED LOCATIONS; PROVIDING FOR SEVERABILITY; PROVIDING FOR A REPEALER; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Federal Government through the Federal Communications Commission (FCC) has issued wireless communications licenses for cellular, personal communication services (PSC), paging and other providers of wireless antenna services; and, WHEREAS, the demand by citizens for new wireless communication services has produced an increased need for installation of wireless antennas and wireless communications facilities to serve the public, including the citizens in Paris, Texas; and, WHEREAS, wireless communications facilities are supportive of public health, safety, and welfare in that they provide useful portable communication services for personal convenience, business, and emergency purposes; and, WHEREAS, the FCC has required license holders to provide coverage to areas where wireless communication licenses have been acquired and this may require such facilities to be constructed in specific locations and manners, determined by engineering standards to achieve such coverage, and thus there may be limited ability to choose alternative locations; and, WHEREAS, the Federal Telecommunications Act of 1966 preserves local zoning authority to regulate wireless communications facilities; provided, however, said Act mandates that localities may not unreasonably discriminate between FCC license holders and that localities cannot prohibit or effectively prohibit the provision of wireless services, and the Act gives the FCC sole jurisdiction over radio frequency emissions, provided the wireless communications facility meets FCC standards; and, WHEREAS, additional wireless communications facilities are required to provide quality communication services to meet the growing needs of the public and businesses for wireless communication and should be accommodated in the City; and, WHEREAS, the City Council desires to adopt appropriate regulations necessary to protect the public interest and to serve the purposes set out in this ordinance; NOW, THEREFORE, -1- BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS: Section 1. That the findings set out in the preamble to this ordinance are hereby in all things approved. Section 2, That Ordinance No. 1710, the Zoning Ordinance of the City of Paris, Paris, Texas, shall be and is hereby amended to add a new Section 28 thereto entitled "Regulation of Wireless Telecommunications Towers and Facilities", said Section to read as follows: "Sec. 28. Regulation of Wireless Telecommunications Towers and Facilities Sec. 28-100. Findings. The Communications Act of 1934 as amended by the Telecommunications Act of 1996 ("The Act") grants the Federal Communications Commission (FCC) exclusive jurisdiction over: (a) The regulation of environmental effects of radio frequency (RF) emissions from telecommunications facilities; and, (b) The regulation of radio signal interference among users of the RF spectrum. The City's regulation of towers and telecommunications facilities in the city will not have the effect of prohibiting any person from providing wireless telecommunication services in violation of the Act. Sec. 28-101. Purposes. The general purpose of this ordinance 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 market place in the city. More specifically, the purposes of this ordinance are as follows: (a) To regulate the locations of towers and telecommunications facilities in the city; (b) To protect residential areas, historic areas, and land uses from potential adverse impact of towers and telecommunications facilities; -2- (c) With any zoning district wherein wireless communication facilities are permitted, to provide clear performance standards addressing the siting of wireless communications facilities; (d) To encourage the location of wireless communications facilities on existing structures, including utility poles, signs, water towers, buildings, and other similar facilities where feasible; (e) To promote and encourage shared use/collocation of towers and telecommunications facilities as a primary option rather than construction of additional such facilities; (f) To promote and encourage utilization of technological designs that will either eliminate or reduce the need for erection of new Support Structures and telecommunications facilities; (g) To streamline and expedite permitting procedures to effect compliance with the Federal Telecommunications Act of 1996; (h) To enhance the ability of providers of telecommunication services to provide such service to the community quickly, effectively, and efficiently; (i) To avoid potential damage to property caused by towers, support structures, and telecommunications facilities by insuring such structures are soundly and carefully designed, constructed, modified, maintained, and removed when no longer used or are determined to be structurally unsound; (j) To ensure that towers, support structures and telecommunication facilities are compatible with surrounding land uses. See, 28-102, Definitions. The following words, terms, and phrases, when used in this ordinance, shall have the meanings ascribed to them herein, except where the context clearly indicates a different meaning: (a) Antenna Array means one or more rods, panels, discs, or similar devices attached to a Support Structure and used for the transmission or reception of radio frequency signals, which may include an omni directed antenna (rod), a directional antenna (panel) and a parabolic antenna (dish). The Antenna Array does not include the Support Structure defined herein. -3- (b) Applicant means any person that applies for a Tower Use Permit as required under this ordinance. (c) Application means the process by which the owner or agent for the owner of a parcel of land within the city submits a request to develop, construct, build, modify, or erect a Wireless Communication Facility (WCF) upon such parcel of 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) Attached Wireless Communications Facility (Attached WCF) means an Antenna Array attached to an existing building or structure which shall include, but not be limited to, utility poles, signs, water towers, or other alternative Support Structures, together with any accompanying pole or device that attached the Antenna Array to the existing building or structure, associated connection cables, and any Equipment Facility which may be located either inside or outside the attaclunent structure. (e) Collocation or Site Sharing means use of a common WCF or common site by two or more wireless license holders or by one wireless license holder for more than one type of communications technology or placement of a WCF on a structure owned or operated by a utility or other public entity. (t) Department means the city department charged with the responsibility for administering this ordinance, as designated by the City Manager. (g) Director means the person designated by the City Manager as the Director of the department responsible for the administration of this ordinance. (h) Equipment Facility means any structure used to contain ancillary equipment for a WCF that includes cabinets, shelters, a build-out of an existing structure, pedestals, and other similar structures. (i) FAA means the Federal Aviation Administration. (j) FCC means the Federal Communication Commission. (k) FTA means the Federal Telecommunication Act of 1996. (I) Governmental Entity means any department, branch, or bureau of the United States Govermnent, the State of Texas, a County, an Independent School District, a City, or a publically supported College or University chartered by the State of Texas and authorized to collect ad valorem taxes. -4- (m) Height, when referring to a WCF, shall mean the distance measured from ground level to the highest point on the WCF, including the Antenna Array. (n) Person means any natural person, firm, partnership, association, corporation, company, or other legal entity, private or public, whether for profit or not for profit. (0) Preexisting WCF and Suppon Structure means any WCF and Support Structure existing a the time of adoption of this ordinance, provided such WCF and Support Structure was constructed in compliance with any outstanding federal law , state law, city ordinance, and in conformance with any building permit or zoning approval, if any, required incident to said construction. (p) Setback means the required distance from the foundation ofWCF land based elements to the property lines of the parcel on which the WCF is located. (q) Suppon Structure means a structure designed and constructed specifically to support an Antenna Array, and may include a monopole, a self- supporting (lattice), or GUI wire supported tower or other similar structures. Any device used to fasten an attached WCF to an existing building or structure shall be excluded from the definition of regulations applicable to Support Structures. (r) Tower Vse Permit (TVP) means a permit issued by the City specifically for the location, construction, and use of a WCF subject to an approved site plan and any special conditions determined by the Director to be appropriate under the provisions of this ordinance. (s) Wireless Communications means any personal wireless service as defined in the Telecommunications Act of 1996, which includes FCC licensed commercial wireless telecommunication services including cellular, personal communications services (PCS), specialized mobile radio (SMR) , enhanced specialized mobile radio (ESMR), paging, and similar services that currently exist or that may in the future be developed. (t) Wireless Communication Facility (WCF) means any un-staffed facility for the transmission or reception of wireless communications services, usually consisting of an Antenna Array, connection cables, an Equipment facility, and a Support Structure to achieve the necessary elevation. (u) Zoning Ordinance means Ordinance No. 1710 of the City of Paris, as the same shall be hereafter amended, revised, replaced, or codified. -5- Sec. 28-103. Applicability. (a) New WCF and Support Structures. All new WCF or Support Structures in the City of Paris shall be subject to these regulations, except as provided herein. (b) Amateur Radio Station Operators/Receive Only Antennas. This ordinance shall not govern any WCF or support structure or the installation thereof, that is under seventy (70) feet in height and is owned and operated by a federally licensed amateur radio station operator or is used exclusively for receive- only antennas. Such installation shall comply with any other applicable provisions of the City Zoning Code or other ordinances. (c) Preexisting WCF and Support Structures. Preexisting WCF or Support Structures shall not be required to meet the requirements of this ordinance other than the requirements of Section 28-110 and 28- I 11. (d) Exemptions for Governmental Entities. This ordinance shall not govern any WCF or Support Structure, or the installation or construction thereof, which is installed or constructed by a Goverrunental Entity as that term is defined in this ordinance, provided the primary purpose or use of said WCF or Support Structure is in furtherance of the functions of the Goverrunental Entity, and not for commercial use or financial gain. Sec. 28-104. Wireless Communication Facilities Prohibited. (a) Areas designated historically significant. From and after the effective date of this ordinance, no WCF's shall be permitted in any area that shall be hereafter designated by the City as a historically significant area or district. (b) Permitted areas. From and after the effective date of this ordinance new WCF's shall be permitted only in areas bearing a zoning designation of Agricultural (A), Commercial (C), Light Industrial (LI), or Heavy Industrial (HI); the siting of new WCF' s; in areas zoned other than as designated herein, including Residential Districts (SF-l),(SF-2), (SF-3), (2F), (MF-I), (MF-2), Planned Development Districts (P.D.), and other non-Agricultural, non-Commercial, and non-Industrial Districts, including Parking Districts (P), Office District (0), Neighborhood Service District (NS), General Retail District (GR), and Public Lands and Institutes (PL&I), shall be and is hereafter prohibited. -6- Sec. 28-105, Permit Required. From and after the effective date of this ordinance, no person shall install or construct any WCF unless and until a Tower Use Permit (TUP) has been issued pursuant to the requirements of this ordinance. Sec. 28-106. General Requirements. (a) Platted Lots. Each WCF, including the support structure and any related equipment facility, shall be located on a platted lot. (b) Height Standards. (1) Attached WCF. The total height of an existing building or structure to which a WCF has been attached shall not exceed two hundred sixty (260) feet, subject to the other terms and provisions of this ordinance. (2) WCF with Support Structures. WCF with Support Structures shall have a maximum height of two hundred sixty (260) feet, subject to the other terms and provisions of this ordinance. (c) Setback Standards. All WCF shall be set back from any adjoining lot line or adjacent street curb line a distance equal to the height of the WCF itself, including any support structure and antenna array. In determining the setback requirement, the distance shall be measured from the base of the support structure. (d) Separation from off-site uses/designated areas. (1) WCF including Support Structures and antenna array shall be separated from all lands zoned SF-I, SF-2, SF-3, 2F, MF-I, or MF- 2 by a minimum of two hundred sixty (260) feet. (2) Separation of a WCF from such off-site uses shall be measured from the base of the WCF to the lot line of the off-site use following a straight line from the base of the WCF to the closest point of the designated zoned property. (e) Compliance with existing City ordinances regarding preservation of trees and other vegetation. All WCF facility installations shall comply in full with the City's requirements regarding the preservation of trees and other vegetation incident to any construction activity. -7- (f) Lighting. WCF shall not be artificially illuminated, directly or indirectly, except for: (1) Security and safety lighting of equipment buildings if such lighting is appropriately down-shielded to keep light within the boundaries of the site; and, (2) Such illumination of the WCF as may be required by the FAA or other applicable authority installed in a manner to minimize impacts on adjacent property. (g) Signage. No WCF shall display any signage, logos, decals, symbols, or any messages of a commercial or non-commercial nature, except for a small message containing provider identification and emergency telephone numbers and such other information as may be required by local, state, or federal regulations governing WCF. (h) Security Fencing. Each WCF with Support Structure shall be enclosed by an opaque security fence not less than six feet in height. Nothing herein shall prevent security fencing which is necessary to meet requirements of state and federal agencies. (i) State or Federal Requirements. All WCF must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate WCF. If such standards and regulations are changed, then the owners of the WCF governed by this ordinance shall bring such WCF into compliance with such revised standards and regulations within six (6) months of the effective date of such standards and regulations, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring WCF into compliance with such revised standards and regulations shall constitute grounds for the removal of the WCF at the owner's expense. (j) Structural Integrity. All WCF with Support Structure shall be constructed to the Electronic Industries Association/Telecommunication Industry Association (EIA/TIA) 222 Revision F Standard entitled "Structural Standards for Steel Antenna Towers and Antenna Supporting Structures" (or equivalent), as the same may be updated or amended. Each support structure shall be capable of supporting at least three antenna arrays. In addition, such structure shall comply with any and all applicable state or local building codes. If, upon inspection, the City concludes that a WCF with Support Structure fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of said WCF, the owner shall have thirty (30) days to -8- bring such WCF into compliance with such standards. Failure to bring such WCF into compliance within said thirty (30) days shall constitute grounds for the removal of the WCF at the owner's expense. Provided further, however, that in the event of an emergency circumstance representing an immediate threat to the health, safety, and welfare of the citizens of the City of Paris, the City may require the owner of any WCF to immediately remedy any such dangerous or threatening circumstance, and upon the owner's failing to respond to such emergency, the City may itself respond to said emergency at the owner's expense. (k) Radiofrequency emissions. The following radio frequency emissions standards shall apply to all WCF installations. (I) RF Impact. The FTA gives the FCC sole jurisdiction of the regulation of radio frequency (RF) emissions, and approval of a WCF under this ordinance which meets the FCC standard shall not be conditioned or denied on the basis of RF Impact. (2) FCC Compliance. In order to provide information to its citizens, copies of ongoing FCC information concerning each WCF and RF emission standards may be requested. Applicants for each WCF shall be required to provide information with the application on the measurement of the effective radiated power of the facility and how said facility will comply with FCC standards. (I) Sound Prohibited. No sound emissions such as alarms, bells, buzzers, or the like are permitted on any WCF. (m) Collocation Agreement. All applicants for a WCF are required to submit a statement with their application agreeing to allow collocation of other WCF providers. The statement shall include the applicant's policy regarding collocation of other providers and the methodology to be used by the applicant in determining reasonable rates to be charged to other providers. The collocation agreement shall be considered a condition for issuance of a TUP. (n) Technical Assistance. In the course of consideration of any application, the Director or the City Council may deem it necessary, in complex situations, to employ an engineer or engineers or other consultants qualified in the design and installation of WCF to assist the City in the technical aspects of the application. In such cases, any reasonable cost incurred by the City not to exceed five thousand dollars ($5,000) for the technical review and recommendation shall be reimbursed by the applicant. -9- Sec. 28-107. Availability of suitable existing Support Structures, alternative buildings or structures, or alternative technology. (a) No new WCF shall be permitted unless the applicant demonstrates to the reasonable satisfaction of the Director that no existing Support Structure, or alternative Support Structure, or alternative technology that does not require the use of Support Structures can accommodate the applicant's proposed WCF. An Applicant shall submit any and all information as the City may deem appropriate related to the availability of suitable existing towers and other WCF, other structures, or alternative technology. Information submitted to demonstrate that no existing Support Structure, WCF, or other structure or alternative technology can accommodate the applicant's proposed WCF may evidence any of the following: (I) No existing Support Structures or WCF are located within the geographic area which meet applicant's engineering requirements; (2) Existing Support Structures or other WCF are not of sufficient height to meet Applicant's engineering requirements; (3) Existing Support Structures or WCF do not have sufficient structural strength to support Applicant's proposed WCF and related equipment; (4) The Applicant's proposed Support Structure and WCF would cause electromagnetic interference with existing WCF, or the broadcast signal or antenna array on existing WCF or Support Structures would cause interference with the Applicant's proposed WCF; (5) The fees, costs, or contractual provisions required by the owner of the other structure in order to share an existing Support Structure or WCF or to adapt an existing Support Structure or WCF for sharing are umeasonable. Costs exceeding new Support Structure development are presumed to be umeasonable; (6) There are other limiting factors that render existing Support Structures, WCF, or an alternate technology unsuitable; -10- (7) An alternative technology that does not require the use of Support Structures, such as a cable micro-cell network using multiple low power/receivers attached to a wire line system, is unsuitable. Costs of alternative technology that exceed new Support Structure or WCF development shall not be presumed to render the technology unsuitable. (b) As part of the process of consideration as to whether or not existing Support Structures or WCF would be suitable for an Applicant's needs, any owner of any existing Support Structure or WCF may participate in any application or permitting process by submitting evidence contrary to that produced by the Applicant indicating that the owner of said existing structure has the capability of providing the necessary Support Structure and WCF access for the applicant. See, 28-108, Administrative approval. (a) General. The following provisions shall govern the approval of applications for Support Structures and WCF under this ordinance: (1) The Director may administratively approve the Support Structures and WCF listed herein. (2) Each Applicant for approval shall apply to the Director providing the information set forth in Section 28-109 of this ordinance and a non-refundable fee in the amount of dollars ($_) to reimburse the City for the cost of reviewing the application. (3) The Director shall review the application and determine if the proposed use and application for WCF and Support Structure complies with this ordinance. (4) The Director shall respond to each such application within sixty (60) after receipt of same by either approving or denying the application. (5) If approval of an application is denied by the Director, the Applicant may at his choice file an appeal of said decision to the City Council, provided such application for appeal is filed in writing within ten (10) days following the denial of the application by the Director. (b) List of acceptable Applications. The following applications for WCF and Support Structures may be approved by the Director after conducting an administrative review: -11- (1) Locating a new WCF or Support Structure, including the placement of additional buildings or equipment, in any areas zoned Agricultural, Commercial, Heavy Industrial, or Light Industrial. (2) Locating any Antenna Array or other WCF on existing Support Structures or portions of any other WCF consistent with the terms of paragraphs a and b below. a. Antenna Array on existing structures. Any antenna which is not attached to a formal Support Structure but is attached to an alternative structure, such as a utility pole, sign, water tower, existing building, or other similar structure provided that such existing structure is located in an area zoned Agricultural, Commercial, Heavy Industrial, or Light Industrial. b. Antenna Arrays located on preexisting WCF and Support Structures. An Antenna Array which is attached to a preexisting WCF and Support Structure may be approved by the director, provided such preexisting Support Structure is not required to be extended or expanded if located in an area zoned other than Agricultural, Commercial, Heavy Industrial, or Light Industrial. See, 28-109. Information Required for Each Application, Applicants for a Tower Use Permit for a Support Structure or WCF shall submit the following information: (a) A scaled site plan clearly indicating the location, type, and height of the proposed Support Structure and WCF, onsite land uses and zoning, adjacent land uses and zoning, Master Plan classification of the site and all properties within the applicable separation distances set forth herein, adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed tower and any other structures, topography, parking, and other information deemed appropriate by the Director to be necessary to assess compliance with this ordinance; (b) Legal description of the parent tract and leased parcel (if applicable); (c) The setback distance between the proposed Support Structure and WCF and the nearest residential unit and/or nearest residentially zoned area; -12- (d) Information indicating the method of fencing; (e) A description of compliance with Sections 28-106 and 28-107 and all applicable federal, state, or local laws. (f) A notarized statement by the Applicant as to whether construction of the Support Structure or WCF will accommodate collocation of additional WCF for future users. (g) Identification of the Applicant providing the name, address, location of main office (i.e., whether corporation, partnership, sole proprietorship, etc.) and other information necessary to property identify the Applicant. (h) A description of the suitability of the use of existing Support Structures, WCF, or other structures or alternative technology not requiring the use of Support Structures or WCF to provide the services to be provided through the use of the proposed new support structure and WCF. Sec. 28-110. Removal of abandoned WCF. Any WCF that is not operated for a continuous period of twelve (12) months shall be considered abandoned, and the owner of the WCF shall remove the WCF within ninety (90) days after notice from the City to remove same. If the abandoned WCF is not removed within ninety (90) days, the City may remove it and recover its cost from the WCF owner. If there are two or more users of a single WCF, this provision shall not become effective until all users of said facilities cease to use the WCF. If the owner of an abandoned WCF cannot be located or is no longer in business, the requirements of this section shall be the responsibility of the landowner on whose property the WCF is located. Sec.28-111. Nonconforming WCF. WCF existing on the date of the adoption of this ordinance which do not comply with the requirements of this ordinance (nonconforming WCF) are subject to the following provisions: (a) Expansion. Nonconforming WCF may continue in use for the purpose now used, but may not be expanded without complying with the requirements of this ordinance except as further provided herein. (b) Additions. Nonconforming WCF may add additional Antenna or Antenna Array (belonging to the same provider or other providers) subject to the remaining provisions of this ordinance. -13- (c) Rebuilding damaged or destroyed nonconforming WCF. Nonconforming WCF which become damaged or destroyed due to any reason or cause, may be repaired and restored to its former use, location, and physical dimensions subject to the remaining applicable provisions of this ordinance. Sec. 28-112. Revocation of Tower User Permits. Any Tower Use Permit (TUP) issued pursuant to this ordinance may be revoked by the City Council after a hearing as provided herein. If the Council finds that any permit holder has violated any provisions of this ordinance, or has violated any federal, state, or local law or ordinance, or has failed to make a good faith reasonable effort to provide or seek collocation, the Council may revoke the aforesaid permits upon such terms and conditions, if any, that the Council may determine. Prior to initiation ofrevocation proceedings, the Director shall notify the permit holder, in writing, of the specific areas of noncompliance and specify the date by which such deficiencies must be corrected. The time for correction of deficiencies shall not exceed sixty (60) days. The permit holder shall provide the Director with evidence that the required corrective action has been taken. Should the permit holder fail to correct any deficiencies in the time required, the City Council shall convene a public hearing to consider revocation of said permit. The hearing shall be conducted pursuant to notice by publication in a newspaper with general circulation in the City no less than ten (10) days prior to the hearing and by written notice to the permit holder. At any such hearing, the permit holder may be represented by an attorney and may cross-examine opposing witnesses. Other interested persons may comment. The City Council may impose reasonable restrictions with respect to time and procedure. Following such public hearing, the City Council shall determine, based on the findings and recommendations of the Director and other evidence as shall be heard in said public hearing, as to whether or not the aforesaid permit or permits should be revoked, suspended, or other conditions should be imposed upon the permittee as the Council shall deem appropriate. " Section 3. The various parts, sections, and clauses of this ordinance are hereby declared to be severable; if any part, sentence, paragraph, section, or clause is judged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this ordinance shall not be affected thereby. Section 4, Any existing ordinances or parts thereof in conflict with the provisions of this ordinance are hereby repealed to the extent of such conflict only. Section 5. That upon the effective date ofthis ordinance, Ordinance No. 2001-034 which imposed a moratorium on the location of wireless telecommunications facilities in the City of Paris, shall be and is hereby in all things repealed. -14- Section 6. That this ordinance shaH be effective on September 1, 200 1. PASSED AND ADOPTED this 13th day of August, 2001. ATTEST: .~ ~~ \LJ~"rvvv-.. ''V' ~ Mattie Cunningham, City Clerk -15-