Dover, ID Wireless Ordinance: 07/10/23 CC draft

CITY OF DOVER, IDAHO

ZONING REGULATIONS (TITLE 12)

CHAPTERS 5, 7, AND APPENDIX D

REGARDING WIRELESS COMMUNICATION FACILITIES/CELL TOWERS

ORDINANCE NO. ______________

(about 2800 words)

TITLE: AN ORDINANCE OF THE CITY OF DOVER, A MUNICIPAL CORPORATION OF THE STATE OF IDAHO, AMENDING DOVER CITY CODE, TITLE 12 (DOVER ZONING REGULATIONS), CHAPTER 5, ZONING DISTRICTS, 7, STANDARDS FOR SPECIFIC USES, AND APPENDIX D, DEFINITIONS, TO PROVIDE AN APPLICATION PROCESS, STANDARDS, PROCEDURES FOR REVIEW, PERMITTED LOCATIONS, AND DEFINITIONS FOR WIRELESS TELECOMMUNICATION FACILITIES; AND PROVIDING A SAVING CLAUSE, AND SEVERABILITY.

Whereas, the Constitution of the State of Idaho, Article XII, Section 2, the Idaho Local Land Use Planning Act, Title 67, Chapter 65, and the Idaho Municipal Corporations Title 50, Chapters 3 and 9 provide authority for the City of Dover to adopt ordinances establishing land use standards, procedures, and uses; and

Whereas, Section 67-6518 of the Local Land Use Planning Act authorizes each governing board to adopt standards, including building design, setbacks, and other public and private development; and

Whereas, the City desires to protect the public’s health, safety, and welfare by establishing standards for wireless communication facilities, such as setbacks, fencing, lighting, buffering, and permitting standards; and

Whereas, the Dover Planning and Zoning Commission conducted a duly noticed public hearing on June 6, 2023, and recommended to Dover City Council approval of this ordinance as revised, and Dover City Council conducted a duly noticed public hearing on July 10, 2023, and voted to approve/deny the proposed ordinance.

Now therefore, Be it ordained by the Mayor and City Council of the City of Dover, Bonner County, Idaho as follows:

Section 1. Adoption.

Part A: Definitions

The following definitions are hereby added to Appendix D, “Definitions” of Title 12, Dover City Code, to read as follows:

ANTENNA: An apparatus, including wires, poles, rods, dishes, or other similar devices, designed to transmit or receive radio frequency (RF) signals for wireless communication, to be operated or operating from a fixed location pursuant to Federal Communications Commission (FCC) authorization, for the provision of personal wireless service and any commingled information services.

ANTENNA ARRAY: Two or more devices used for the transmission or reception of radio frequency signals, microwave or other signals for commercial communications purposes.

COMMUNICATION FACILITY, WIRELESS TELECOMMUNICATION FACILITY (WCF): The collective components of an unstaffed facility and its support structures for the transmission and/or reception of radio frequency, microwave or other signals for commercial communication purposes, including towers, antennas, antenna arrays, equipment shelters, equipment cabinets, transmission cables, a support structure required to generate, transmit, or receive communication signals.

CELL TOWER: A free-standing structure that is attached to the ground, a rooftop, or other structure that is used for the installation and operation of wireless communication facilities, including monopoles, lattice towers, guy-wire supported towers, or other similar structures.

CO-LOCATION OR CO-LOCATE: The addition or installation of new equipment to an eligible, preexisting wireless communication structure or facility to allow service by a different provider than the original developer of the site so that a new support system is not required.

MINIMUM FUNCTIONAL HEIGHT: Minimum height necessary for a WCF to function satisfactorily.

PROVIDER: An entity or person that builds, installs, or operates the communication or wireless service.

TOWER, CELLULAR, WIRELESS: Any structure built or placed for the sole or primary purpose of supporting a wireless facility, such as a self-supporting tower/monopole; a lattice tower, or guyed-wire tower.

Part B: Amendment to Public Use Table

Section 12-5-6, Public Use Table, of Title 12, Dover City Code, is hereby amended to add a new row “Wireless Telecommunication Facilities” to read as follows:

12-5-6: PUBLIC USE TABLE:

P = Authorized; S = Specially permitted; [vacant] = Prohibited use

Public Use Table Notes/Standards:

Subject to the specific standards of Section 12-7-5 of this title.
Subject to administrative site plan review requirements of Section 12-3-19 of this title.

Part C: Applicability, Standards and Procedures

There is hereby added to Title 12, Dover City Code, Zoning Regulations, Chapter 7, Standards For Specific Uses, a new Section 12-7-6, “Wireless Communication Facilities, (WCF),” which shall read as follows:

12-7-6: WIRELESS COMMUNICATION, TELECOMMUNICATION FACILITIES:

A. Purpose: The purpose of this section is to provide standards and a process for the consideration of applications for wireless telecommunication facilities to:

Protect property rights and property values;
Protect public health, safety, and welfare by regulating the siting of wireless telecommunication facilities;
Establish adequate safety standards for the placement and use of telecommunication facilities.
Address visual impacts upon the City, located along the designated Panhandle Historic Rivers Passage Scenic Byway and within a unique natural setting;
Minimize impacts of wireless telecommunication facilities of surrounding properties by setting standards for placement, structure safety, and compatibility with nearby lands;
Encourage location of facilities on existing structures to reduce visual impact, public safety, and the environment.

B. Applicability: The standards of this section shall apply to the development, installation, construction, or modification of Wireless Communication, Telecommunication Facilities (WCF) and including new, replacement, or modified facilities; amateur radio towers; colocation of existing towers or new support cabinets or equipment shelters.

C. Exemptions: The following are exempt from this section, unless otherwise specifically addressed:

Non-commercial amateur radio towers or antennas that are less than fifty feet (50’) tall.
A government-owned tower or emergency beacon placed or required by local, state, or federal agencies.
Regular maintenance of existing WCF that does not include any additional antenna, equipment or shelter expansion, or other additional equipment.
A residential or commercial wireless internet or television antenna or dish for sending and receiving signals that is located at its point of use.

D. Permitted: Wireless telecommunication towers shall be permitted in all zoning districts, subject to the standards and procedures of this title.

E. Permits Required: The following permits shall be required for the development, installation, construction, or modification of WCF, including new, replacement, modifications, or colocation of facilities and new or expanded support cabinets or equipment shelters:

Where permitted by the zoning district, special use permits are required for all new, expanded, or modified facilities, except as provided in subsection 12-7-6 E 2. Any proposed co-location facility that does not meet the criteria for an administrative permit shall require a special use permit.
Administrative zoning permits are required for all proposed co-location facilities. To be eligible for the administrative permit, the proposed co-location facility shall:

a. Be proposed for an existing, lawfully permitted structure or a legal, nonconforming facility;
b. Not extend beyond the height of the existing support structure;
c. Not expand the existing lease or property boundaries for the facility;
d. Not expand the equipment shelter or equipment cabinets.

Administrative encroachment permits shall be required for all facilities, where permitted, that are proposed within the public right-of-way.

F. Applications: An application for a facility governed by this section shall be completed on a form provided by the City for the type of application listed in Section 12-7-6 E. The application and fee established by the official fee schedule shall be submitted to the city clerk. The application shall contain the minimum requirements for the applicable special use permit or administrative applications, in addition to the following:

Detailed construction drawings showing the proposed facility and support structures, including structure footprint and height, antenna and antenna array placement, and dimensions.
A structural report performed by an Idaho-licensed engineer certifying the pole, tower, or other structure can support the proposed facility in accord with applicable codes and standard engineering practices.
Visual depictions, photographs, or representations of the proposed facility from multiple vantage points showing pre- and post-construction views, detailing any buffering, camouflage, paint colors, vegetation, or other measures to screen the facility. Include proof that the facility will be configured and located in a manner that shall minimize adverse effects including visual impacts on adjacent properties.
Evidence, prepared by a radio frequency engineer and reviewed by an independent radio frequency engineer at the applicant’s expense, demonstrating the need for the proposed facility and proof that no other existing WCF can meet the need. The applicant shall demonstrate through a narrative and graphic depiction that a significant service gap in service exists and that alternative locations, configurations, and facility types have been examined and the results of those findings. The application shall include a map of wireless service coverage or lack thereof for the vicinity and the effect of the proposed facility on that coverage.
A report prepared by an Idaho-licensed engineer confirming compliance with FCC standards for emissions as set forth in the current Code of Federal Regulations. The report shall demonstrate the proposed facility will not exceed the maximum permissible exposure level to the general public and will remain in compliance with FCC standards.
Any additional information deemed necessary by the zoning administrator for a thorough review of the proposed development.
A report confirming compliance with the National Environmental Policy Act for the proposed facility.

G. Design Standards: Wireless Communication, Telecommunication Facilities are subject to the following minimum standards:

Security fencing: An opaque fence or masonry wall no taller than seven feet (7’) tall from finished grade shall be provided around the perimeter of all development areas for ground-mounted wireless communication facilities and support facilities. If a fence will enclose the site, the fence shall be constructed of wire mesh, metal picket, or an alternative material approved by the zoning administrator. Access to the development area shall be through a locked gate.
Tower height: Towers shall be designed and constructed to a Minimum Functional Height. Applicants shall submit documentation justifying the total height. The applicant shall demonstrate that the facility is the minimum height necessary in order for the facility to meet its intended function in the applicant’s system and to provide reliable service. This shall be done through the testimony of a radio frequency design engineer, provided at the expense of the applicant.
Setbacks: The base of a tower shall not be any closer to any property line than the distance equal to the tower height but not less than one hundred feet (100’), as measured from the base to the topmost component of the tower.
Landscaping/buffering: Landscaping and buffering shall be required around the perimeter of development areas, unless waived by the City as part of the permitting process due to existing buffering features, such as berms, walls, or other buffers. Existing vegetation may be used to meet landscaping requirements, subject to approval by the decision makers for the respective permit. Landscaping shall be designed in accord with the buffering and landscaping requirements of this title and placed in a manner so as to minimize the views of the WCF from residential areas.
Visibility: Antennas and related service equipment mounted on a service tower shall be mounted as close to the tower as possible. All antennas, antenna arrays, transmission lines, equipment enclosures or other ancillary equipment for WCF that are located on existing structures in order to conceal them, such as flagpoles, light standards, church steeples, bell towers, clock towers, or similar facilities, shall not be positioned in such a way that they are readily identifiable from the public domain as wireless communication, telecommunication equipment. Design for the proposed concealment shall be included in the permit application.
Camouflage: In order to protect the scenic qualities of the community, the provider is required to provide a design and install features to conceal the facility that are compatible with the existing structure or surrounding natural terrain. To meet this design standard, there shall be as little contrast as possible between the communications equipment and the structure or natural terrain. A determination of appropriate concealment design shall be based on the proposed location and environment, as determined by the governing body or zoning administrator who is charged with permit approval. If the provider proposes the use of artificial trees or vegetation, they shall approximate the features of trees native to Bonner County. The artificial vegetation shall provide sufficient branching, foliage and height to conceal antenna, panels, and any other tower equipment and shall be colored to simulate the native vegetation. Artificial branches shall be applied to the tower in a multi-dimensional pyramid shape pattern to the top of the tower, with branches and foliage material in variable length, width and depth sufficient to obscure physical view of the tower, antenna elements and brackets. As an alternative to the constructed camouflage features, the provider may propose to use existing tree cover to conceal the tower, and shall demonstrate to the satisfaction of the decision makers that the vegetative coverage is sufficient to conceal the tower. Provisions to retain the vegetation or replace it in the event of loss shall be included in the design plans.
Lighting: Towers shall be illuminated only when required and in accordance with Federal Aviation Administration requirements to provide aircraft obstruction lighting. All other on-site lighting required for security or emergency purposes shall be in accordance with local fire district and City standards.
Rights-of-way: Towers, ground-mounted equipment and equipment shelters shall not be located within the public right-of-way unless granted by the City through an approved encroachment permit.

H. Procedures: The process for consideration of the WCF permit, as provided in this subsection, shall be in accord with the following:

Special Use Permits. Those facilities requiring special use permits are subject to the procedures of Chapter 10 of this title. In addition to the conditions and standards of Chapter 10, the governing body shall also determine whether the proposal is in compliance with standards of this subsection.
Administrative Zoning Permits. Those facilities requiring an administrative zoning permit are subject to the procedures of section 12-3-19 of city code. The noticing requirements of section 12-3-19 D shall not apply.
Encroachment permits. Those facilities proposed for location within the public rights-of-way are subject to the procedures of title 7, chapter 1 of city code.

I. Conditions of Approval: In addition to the conditions that may be imposed by the respective type of permit, the governing body may impose conditions, including, but not limited to the following:

Proof of the FAA compliance form, where applicable.
Modifications to size or setbacks to fit particular sites or situations.
Secure access to the site.
Adjustments to limit obstructions of view or compatibility to surroundings.

J. Abandonment: Any WCF that has been damaged, destroyed, or ceases to be used for communication purposes for a period exceeding one year shall be considered abandoned and deemed a nuisance. Upon abandonment of a WCF, the landowner shall remove the facility with all supporting equipment, apparatus, and foundation. If the landowner fails to remove the abandoned structure, the City is authorized to seek civil or criminal remedies as provided by this code to obtain abatement.

K. Prohibited Uses: WCF shall not be used for signage, symbols, flags, banners or other devices or objects attached to or painted or inscribed upon any communication facility for the purposes of displaying a message of any kind, except as required by a governmental agency.

Section 2. Saving Clause.

All ordinances repealed by this ordinance shall remain in force to authorize the enforcement, arrest, prosecution, conviction, or punishment of a person who violated said ordinances prior to the effective date of this Ordinance.

Section 3. Severability.

The sections of this ordinance are severable. The invalidity of a section shall not affect the validity of the remaining sections.

Section 4. Repeal.

City of Dover Ordinance #183, “Emergency Ordinance, Zoning Regulations (Title 12) Regarding Wireless Communication Facilities/Cell Towers,” is hereby repealed in its entirety.

Section 5. Effective date.

This ordinance shall be in full force and effect upon the passage and publication of the ordinance or ordinance summary in one (1) issue of the official newspaper for the City of Dover.

This ordinance passed under suspension of rules and duly enacted as an ordinance of the City of Dover, Idaho on this ____________________, 2023 upon the following roll call vote:

ROLL CALL:

Council Member Parkin
Council Member Hoffman
Council Member Glass
Council Member Bledsoe

Approved by the Dover City Mayor this ________ day of _____________, 2023.

City of Dover Mayor George E. Eskridge

Attest: Michele Hutchings, City Clerk

APPROVAL OF ORDINANCE SUMMARY:

Publication of this ordinance by summary in the official newspaper is hereby approved by the Dover City Council on this _____ day of _____________, 2023, upon the following vote:

ROLL CALL:

Council Member Parkin
Council Member Hoffman
Council Member Glass
Council Member Bledsoe

Approved by the Dover City Mayor this ________ day of _____________, 2023.

City of Dover Mayor George E. Eskridge

Attest: Michele Hutchings, City Clerk