§ 70-132. Colocation of communication antennas.

(a)

To minimize adverse visual impacts associated with the proliferation and clustering of communication towers, colocation of communication antennas by more than one carrier on existing or new communication towers shall take precedence over the construction of new single-use communication towers as provided in this section.

(b)

Proposed communication antennas may and are encouraged to colocate onto existing communication towers. Provided such colocation is accomplished in a manner consistent with this article, such colocations are permitted by right, and new or additional special exception or variance approval shall not be required.

(c)

A communication tower which is modified or reconstructed to accommodate the colocation of an additional communication antenna shall be either of the same type as the existing communication tower or a monopole tower that is replacing an existing lattice or guyed tower.

(d)

Height shall be subject to the following:

(1)

Additional height which does not comply with distance separation requirements:

a.

A communication tower existing on the effective date of the ordinance from which this article derives which meets or, as of the effective date of the ordinance from which this article derives, is in nonconformity of the separation requirements set forth in subsections 70-57(c) and 70-58(b) may be modified or rebuilt to a taller height, not to exceed 40 feet over the tower's existing height, to accommodate the colocation of additional communication antennas when the resulting taller height will not comply with the separation requirements set forth in subsections 70-57(c) and 70-58(b).

b.

The height change referred to in subsection (d)(1)a of this section may only occur one time per communication tower.

c.

The additional height referred to in this subsection shall not require an additional distance separation as set forth in either subsection 70-57(c) or 70-58(b). The communication tower's premodification height shall be used to calculate such distance separations.

(2)

Additional height which does comply with the distance separation requirements:

a.

A communication tower existing on the effective date of the ordinance from which this article derives may be modified or rebuilt to a taller height, not to exceed 300 feet, to accommodate the colocation of additional communication antennas.

b.

Subject to subsection (f) of this section, the height change referred to in subsection (d)(2)a of this section may occur, provided the resulting height of the modified or rebuilt tower complies with the distance separation requirements set forth in subsections 70-57(c) and 70-58(b).

(e)

On-site location.

(1)

A communication tower which is being rebuilt to accommodate the colocation of an additional communication antenna consistent with the height requirements of this section may be moved on site within 250 feet of its existing location, provided that the separation distances to residential units or residentially zoned lands as established in subsection 70-57(c) are maintained.

(2)

After the communication tower is rebuilt to accommodate colocation, only one tower may remain on the site.

(3)

A relocated on-site communication tower shall continue to be measured from the original tower location for purposes of calculating separation distances between communication towers pursuant to subsection 70-58(b). The relocation of a tower under this subsection shall in no way to be deemed to cause a violation of subsection 70-58(b).

(f)

A communication tower which colocates two or more communication antennas and which is located in a commercial or industrial zoning district as a permitted use pursuant to chapter 118 shall be exempt from the separation distances between communication towers as set forth in subsection 70-58(b) from only those other towers that are located in either a commercial or industrial zoning district. A new communication tower permitted under this subsection is still required to comply with the separation distances set forth in subsection 70-57(c), but the new tower may utilize the one-time provision for existing towers set forth in subsection (d)(1) of this section to obtain up to 40 additional feet of height, which will cause the tower to comply with the distance separation requirements as if the new colocated tower was an existing tower. In no event shall a communication tower permitted in a commercial district exceed the maximum building height of the zoning district by more than 40 feet without a special exception and variance.

(g)

Colocation conditions for towers 80 feet in height and taller shall be as follows:

(1)

Every special exception for a communication tower which is 80 feet in height or taller and which is issued after the effective date of the ordinance from which this article derives shall include the following conditions:

a.

All new communication towers shall be designed and constructed to accommodate at least one other service provider;

b.

The applicant for a new communication tower shall provide a notarized letter acknowledging that the communication tower is designed and will be constructed to accommodate at least one other service provider; and

c.

All service providers shall cooperate in good faith with other service providers to accomplish colocation of additional antennas on communication towers which are existing, permitted, or otherwise authorized by the city, where feasible.

(2)

Technical requirements, site constraints, and reasonable terms and conditions are relevant factors in determining if colocation is feasible.

(3)

Any request for colocation by one service provider to the applicant for or holder of a special exception for a communication tower shall be in written form and a copy forwarded by the requesting service provider to the city manager. A request for colocation shall also include the following:

a.

A request for colocation by a third-party service provider under a memorandum of lease for a tower which is not yet physically colocated; and

b.

An inquiry by the city manager as to whether a tower actually provides for colocation by physically supporting two or more antennas after the prescribed three-year period set forth in a memorandum of lease applicable to the particular tower, which three-year period is set forth in subsection (g)(4)d of this section; provided, however, that the inquiry authority of the city manager under this subsection and section 70-28 shall not be exercised with respect to a particular communication tower more frequently than once every three years.

(4)

The applicant for or holder of a special exception for a communication tower shall respond to the request for colocation in written form within 45 days of receipt of the request by:

a.

Granting the terms of colocation as mutually agreed upon by the parties;

b.

Denying such request and clearly setting forth the reasons for denial, so long as such does not disclose any trade secrets or confidential information; or

c.

Extending the time limits delineated in this subsection of this section by mutual agreement of the parties, not to exceed a total of 120 days for the request to be either granted or denied from the date of the receipt of the original request.

If responding to an inquiry from the city manager as to the status of provision of colocation under a memorandum of lease, by either establishing that two or more antennas are physically located on the tower or by providing a report to the city manager detailing the good-faith efforts made to accommodate colocation. Failure to have physical colocation accomplished within a three-year period from the date of the memorandum of lease shall require the tower approval to be subject to review under subsection (g)(6) of this section. If, after notification of the failure to comply, the city commission decides to review the matter, the city manager shall first prepare a report and send it to the city commission and the holder of the special exception.

(5)

The service provider shall submit a second notice to the applicant for or holder of a special exception for a communication tower seven days prior to the expiration of the response period set forth in subsection (g)(4) of this section.

(6)

If the procedures set forth in subsections (g)(1) through (g)(5) of this section are adhered to by the requesting service provider and the applicant for or holder of a special exception for a communication tower fails to comply with subsection (g)(4) of this section either within the timeframe set forth therein or by not providing adequate evidence to substantiate its denial of the colocation request, the city manager shall initiate actions to revoke the tower's special exception. The reason deemed not adequate for denial is that the colocator is not willing to pay above market rents. The city manager shall forward the matter to the city commission and a date shall be scheduled for a hearing in accordance with the following procedures:

a.

The request to initiate action before the city commission shall be made within 30 days from the date of response by the holder of the special exception or the date such response would be due under subsection (g)(4) of this section.

b.

The general procedural provisions of article VII of chapter 2, addressing ex parte communications, and division 5 of article II of chapter 118, setting forth the appeal procedures, shall generally be applicable. Where this article differs or conflicts with these sections, this article shall control.

c.

At the hearing, the city commission shall allow the planning director, the service provider seeking colocation, and the special exception holder an opportunity to present evidence and to examine and cross examine witnesses. After considering the evidence and testimony, the city commission shall make factual determinations as to whether the special exception holder acted in violation of this section and issue an appropriate order. If the city commission determines that the special exception holder has not acted in good faith and is in violation of this section, the commission shall issue an order which shall state the basis therefor and provide a decision as to final action.

d.

Any appeal from the city commission's decision shall generally follow the procedures outlined in section 98-31 and may proceed to circuit court, pursuant to section 98-32. Any conflict between this article and sections 98-31 and 98-32 shall be controlled by this article. Any appeal or petition for writ of certiorari from the city commission's decision shall stay all actions directed by such decision until the appeal or petition is fully resolved.

e.

If, at any time during this process, the special exception holder submits to the planning director a recorded memorandum of lease with any other service provider, the further proceedings under this subsection shall be canceled, since the tower will in fact be a colocated facility. The planning director shall notify the parties and the city commission of the cancellation of these proceedings.

(7)

Failure to comply with subsections (g)(1) and (g)(4) of this section is grounds for revocation of the tower's special exception.

(Ord. No. 97-31, § 1 (29-31), 9-11-97)