News Releases

7/29/2014 - Ordinance 14-10744 Placement of Wireless Telecommunication Facilities within Public Right-of-Way

ORDINANCE NUMBER 14-10744

AN ORDINANCE ADDING SALINA CODE SECTION 42-70 ESTABLISHING ZONING REGULATIONS GOVERNING THE SITING AND PLACEMENT OF WIRELESS TELECOMMUNICATION FACILITIES WITHIN PUBLIC RIGHT-OF-WAY IN THE CITY OF SALINA.

WHEREAS, advances in wireless communication facilities include a network of small wireless antennas and related facilities, which may be located on utility poles and other support structures within the public right-of-way; and

WHEREAS, the Governing Body finds that the installation, expansion, maintenance, and aesthetics of wireless communication support structures and facilities in the public right-of-way can have significant impacts upon adjacent properties and the public health, safety, and welfare of citizens in nearby properties and the community at large; and

WHEREAS, applicable state and federal law authorizes the City of Salina, Kansas to establish reasonable and competitively neutral public health, safety and welfare requirements and regulations, including zoning procedures, to govern the siting and placement of wireless communication support structures and facilities in the public right-of-way, so long as wireless service coverage is not prohibited; and

WHEREAS, the Governing Body finds that the public health, safety, and welfare can be best served by establishing reasonable requirements for the location, expansion, height, aesthetics, and maintenance of wireless communication support structures and facilities within the public right-of-way, in a manner consistent with applicable state and federal law.

 BE IT ORDAINED by the Governing Body of Salina, Kansas:

Section 1.  Amendment.  The Salina Code is amended by adding to the Zoning Regulations the following Section 42-70:

Sec. 42-70.  Telecommunications Right-of-Way Users.
 
(a) Purpose and objectives.  The purpose of this section is to establish requirements for the siting and placement of wireless communication facilities within the public right-of-way in a manner consistent with state and federal law, while ensuring the public health, safety, and welfare, including minimizing the visual effects of wireless communication facilities on public streetscapes, protecting public views, and otherwise avoiding and mitigating the potential impacts of wireless communication facilities on nearby properties and the community at-large.  The provisions of this section are not intended and shall not be interpreted to prohibit or to have the effect of prohibiting telecommunication services, nor shall they be applied in such a manner as to unreasonably discriminate among providers of functionally equivalent telecommunication services.

(b) Definitions.  For purposes of this section, the following words and terms as used herein are defined to mean the following:

1. Antenna means a device used to transmit and/or receive radio or electromagnetic waves between earth and/or satellite-based systems, including but not limited to reflecting discs, panels, microwave dishes, whip antennas, antennas, arrays, or other similar devices.

2. Public right-of-way means the area of real property in which the city has a dedicated or acquired right-of-way interest in the real property.  It shall include the area on, below or above the present and future streets, alleys, avenues, roads, highways, parkways or boulevards dedicated or acquired as right-of-way. The term does not include utility easements.

3. Support equipment means the physical, electrical and/or electronic equipment included within or used in conjunction with wireless communication facilities, including but not limited to facilities used to house, power, or contribute to the processing of signals from or to an antenna or antennas, a base station, cabling, air conditioning units, equipment cabinets, pedestals, and electric service meters. Support equipment does not include antennas or support structures to which the antennas or other equipment are attached, or antenna hubs.

4. Support structure means a ground-mounted self-supporting vertical structure used to elevate or carry lines, cables, wires, or antennas for telecommunications, cable television, electricity or other utility services, or to provide lighting.

5. Wireless communication facility means an installation that sends and/or receives wireless radio frequency signals or electromagnetic waves, including an antenna, support equipment, and support structures. The term does not include mobile transmitting devices, such as vehicle or hand-held radios and telephones.

(c) Permit required.

1. No person shall install, structurally modify, or change in height, dimension, or number of antenna a wireless communication facility in the public right-of-way except upon approval of an administrative permit or a special permit, as provided in this section. 

2. Maintenance or repair of existing permitted wireless communication facilities shall be excluded from the permitting requirement of this section.

(d) Administrative Permit.

1. The zoning administrator may issue an administrative permit for the installation, structural modification, or change in height, dimension, or number of antenna of a wireless communication facility in the public right-of-way if:

i. The proposed wireless communication facility satisfies the performance standards and other requirements of this section; and

ii. If the antenna component of the wireless communication facility will be installed or exists in a residential district or the C-4 district, it will be attached to:

1. An existing support structure; or 

2. A replacement or extension of an existing support structure, if the height of the replaced or extended support structure does not exceed the height of the original support structure by more than five (5) feet. In addition, the diameter of the replaced or extended support structure shall not exceed the lesser of: (i) the diameter of the original support structure by more than fifty (50) percent; or (ii) eighteen (18) inches.

2. Within ten (10) days after receiving a complete application, the zoning administrator shall approve, approve with conditions, or deny the request for an administrative permit, or shall refer the application to the planning commission for a public hearing.  Any decision to deny an administrative permit under this section shall be made in writing and shall state the specific reasons for the denial.  If a request for an administrative permit is denied or not acted upon within ten (10) days, or if the conditions imposed thereon are unacceptable to the applicant, then the applicant may, by written notice to the zoning administrator, convert the request for an administrative permit to a request for a special permit.  An applicant may, in lieu of and without first seeking an administrative permit hereunder, initially request a special permit for a proposed wireless communication facility. 

(e) Special permit.

1. Hearing.  For any application to install, structurally modify, or change in height, dimension, or number of antenna a wireless communication facility in the public right-of-way that does not meet the criteria for an administrative permit, or for any application to install a new support structure in the public right-of-way in a residential district or C-4 district, the planning commission may issue a special permit after holding a public hearing in accordance with the procedures established in section 42-24 of this chapter.

2. Standards for evaluation of special permit applications. The planning commission may approve, or approve with conditions an application for a special permit in any zoning district after review and consideration of all of the following:

i. Conformity with the city’s comprehensive plan;

ii. Compatibility with abutting property and surrounding land uses;

iii. Adverse impacts such as visual, environmental, or safety impacts;

iv. Color and finish of the proposed facilities;

v. Screening potential of existing vegetation, structures and topographic features;

vi. Potential for adequate screening of proposed facilities;

vii. Scale of facilities in relation to surrounding land uses;

viii. Impact on entry corridors into the city; and

ix. Impact on landmark structures, historically or architecturally significant structures or districts, or environmentally sensitive areas.

3. Denial of special permit.  Any decision to deny a special permit under this section shall be made in writing and shall state the specific reasons for the denial.  Any denial by the planning commission may be appealed to the board of commissioners.  Any denial by the board of commissioners shall be deemed a final administrative decision, subject to appeal and judicial review.  In the event that a special permit application is denied by the planning commission or board of commissioners, no new request for the same or substantially similar administrative or special permit shall be accepted or processed within six (6) months after denial of that application.

4. Protests.  The notification and protest area for special permit applications shall be two hundred (200) feet from the proposed site(s) of the wireless communication facilities.  If a special permit is approved by the planning commission, affected property owners shall have the same right to present a protest petition to the board of commissioners and appeal that decision as property owners in rezoning cases. 

(f) Application Requirements.  Applications for either an administrative permit or a special permit shall be filed with the zoning administrator and shall include the following information:

1. The name and address of the owner of the proposed wireless communication facilities and the name and address of a person who shall be designated as managing agent in control of and responsible for the proposed facilities.

2. Plans and specifications for the proposed wireless communication facilities drawn to an accurate scale and showing all pertinent information.  The application material shall provide sufficient information, as determined by the zoning administrator, to allow a complete review of the proposal and to indicate compliance with all applicable requirements and performance standards provided in this section. 

3. A statement explaining the need for the wireless communication facilities to provide or enhance wireless communication services in the area, including a map of the service area for the proposed facilities. For any proposed antennas in the right-of-way abutting any residential district or C-4 district, the applicant shall demonstrate, by providing a coverage or capacity analysis prepared by a professional engineer, that location of the antennas as proposed is necessary to meet the frequency and spacing needs of the wireless system and to provide adequate coverage and capacity to areas which cannot be adequately served by locating the antennas in the public right-of-way abutting a less restrictive zoning district.

4. If the proposed facilities do not qualify for an administrative permit under subsection (d)(1)(ii), and if requested by the zoning administrator, a statement or study comparing potential sites within the applicable technical limits of the proposed site area.  The study shall include a discussion of alternative locations, including existing towers, buildings, or structures located outside of the public right-of-way, and a discussion of the ability or inability of each site to host the proposed facilities.

5. If requested by the zoning administrator, photographic simulations of the proposed facilities as viewed from adjacent properties.

6. A preliminary construction schedule, including estimated completion dates.

7. A completed application for any other permit or approval required by the city code or applicable law.

8. Any other relevant information requested by the zoning administrator, together with all required fees and deposits.

(g) Wireless network applications.  Where a wireless communication facility is part of a network of wireless communication facilities that will be installed contemporaneously, the planning director may require a single application to be submitted for all facilities that would individually qualify for an administrative or special permit hereunder.  The denial of any permit for some of the facilities for which the application is submitted does not require denial of all facilities for which the application is submitted.  Permits may be conditioned so that the wireless communication facilities within the city that are part of the network, considered together, are the least intrusive necessary to fill a significant gap in service.

(h) Performance criteria.  Unless otherwise specified, all wireless communication facilities in the public right-of-way shall comply with the following performance standards.  The planning commission may grant a waiver from these standards when the applicant has demonstrated that there is a need to close a significant gap in coverage or capacity that can only be met by placement of the proposed facilities in the proposed location, or if the applicant can demonstrate any technical limitations conflicting with the performance standards, and if the purpose and objectives of this section would be better served thereby.

1. Antennas shall be screened by means of canisters, shrouds or other screening measures and treated with exterior coatings of a color and texture to match the support structure upon which they are attached. 

2. Any replacement support structure shall be of new material, and the replacement or extension of a support structure shall match the original and/or surrounding utility or light poles in material, style, design, color, and finish. 

3. Antennas shall not extend more than thirty-six (36) inches from the top of the support structure.

4. Support equipment attached to a support structure (excluding ancillary attached electrical equipment, such as an electric meter or breaker panel) shall not exceed six (6) feet in height and two (2) feet in width, or project more than twenty-four (24) inches horizontally from the support structure.

5. All portions of the wireless communication facilities (other than the support structure and ground-mounted or underground support equipment) shall be located so as to provide adequate roadway clearance, to prevent interference or hazard to pedestrians, vehicular traffic, or other property in the public right-of-way.

6. Cable connecting an antenna to any support equipment shall be contained inside or shall be flush mounted to the support structure and covered with a metal, plastic, or similar material cap that matches the color of the support structure and is properly secured.

7. A new, modified, or replaced support structure shall not exceed eighteen (18) inches in diameter.

8. No signs or advertising shall be allowed on wireless communication facilities, except for small identification, address, warning, and similar information plates approved by the zoning administrator.

9. Wireless communication facilities shall not be artificially illuminated unless required by applicable law to protect the public’s health and safety.

(i) Abandonment. 

1. Any wireless communication facilities not operated for the provision of personal wireless services for a continuous period of six (6) months or more may be deemed by the city to be abandoned.  Upon receipt of a notice of determination of abandonment from the city, the owner shall remove the abandoned wireless communication facilities within ninety (90) days.

2. When an owner has filed with the FCC a notice of intent to cease operations, the owner shall provide the city with a copy of such notice within thirty (30) days.  The owner shall remove its wireless communication facilities within ninety (90) days of filing such notice with the FCC.

3. If an owner fails to remove abandoned wireless communication facilities within the time prescribed by this section, the city may remove such facilities at the owner’s sole cost and expense.

(j) Support Equipment.

1. All support equipment shall be placed or mounted in the least visually obtrusive location practicable, and shall be screened from view to the maximum extent possible.  Support equipment shall be painted or otherwise coated to be visually compatible with the support structure or applicable surroundings.

2. All support equipment that is located in the public right-of-way but not attached to a support structure shall be located and installed in accordance with the requirements of other provisions of the city code, including but not limited to the city’s right-of-way management ordinance.
(k) Other Regulations.  Nothing herein shall be construed to exempt an applicant from any other applicable ordinances, rules, regulations, or other requirements of the city, including but not limited to a franchise requirement, building codes, electrical codes, and the city’s right-of-way management ordinance. 

(l) Administration and enforcement.  A permit may be revoked or suspended for violation of this section or a breach of any permit condition if a permittee fails to abate any violation within ten (10) days after written notice has been sent to the business address shown on the application for a permit, or such other address as may be subsequently provided to the city clerk in writing. 

(m) Penalties.  A violation of this section is punishable by a fine not exceeding $1,000 per day per occurrence, or imprisonment for a period not to exceed fifteen (15) days.  Each day’s continued violation shall constitute a separate offense.

Section 2.  Effective.  This ordinance shall be in full force and effect from and after its adoption and publication once in the official city newspaper by the following summary:

Ordinance No. 14-10744 Summary
On July 28, 2014, the City Commission passed Ordinance No. 14-10744.  The Ordinance amends the Salina Code by adding Section 42-70 to the Zoning Regulations which shall govern the placement of wireless telecommunication facilities within public rights-of-way in the city of Salina.  A complete copy of the Ordinance can be found at
www.salina-ks.gov or in the office of the City Clerk, 300 W. Ash, free of charge.  This summary is certified by the City’s legal counsel.
       

Introduced: July 21, 2014
       Passed:  July 28, 2014

       ___________________________________
Aaron K. Householter, Mayor
[SEAL]

 

ATTEST:

______________________________
Shandi Wicks, CMC, City Clerk

Certification of Publication Summary:

______________________________
Greg A. Bengtson, Legal Counsel