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HomeMy WebLinkAboutCity of Tamarac Ordinance O-2013-009Temp. Ordinance # 2278 June 20, 2013 Page 1 of 13 CITY OF TAMARAC, FLORIDA ORDINANCE NO. . 13 -0 0'? AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA; AMENDING ARTICLE IX, CHAPTER 24 ENTITLED "TELECOMMUNICATIONS TOWERS AND ANTENNAS" OF THE CODE OF ORDINANCES OF THE CITY OF TAMARAC, FLORIDA, AS AMENDED, AND TO REGULATE PERSONAL WIRELESS SERVICE FACILITIES IN THE PUBLIC RIGHTS -OF -WAY; CONTAINING A REPEALER PROVISION, A SEVERABILITY CLAUSE, AND PROVIDING FOR CODIFICATION AND AN EFFECTIVE DATE. WHEREAS, to promote the public health, safety, aesthetics, and general welfare, the City of Tamarac has a substantial and significant public interest in maintaining and protecting its public -rights of way in a non-discriminatory manner, and requiring that individuals and entities seeking permits to conduct any type of excavation, construction or other activity therein do so in a safe, expeditious, and professional manner; and WHEREAS, the Emergency Communications Number. E911 Act, Chapter 365, Florida Statutes, (the "Act") addresses, inter alia, local governments' regulation of the placement, construction or modification of wireless communications facilities; and WHEREAS, Section 337.401 et seq, Florida Statutes, addresses, inter alia, the authority of municipalities to regulate the placement and maintenance of communications facilities in the public rights -of -way; and WHEREAS, said statutes authorize regulations of telecommunications facilities in the public rights -of -way that are related to the placement or maintenance of facilities in the public rights -of -way, are reasonable and non-discriminatory, and are necessary to the management of the public rights -of -way; and WHEREAS, courts applying Florida and federal law have held that a municipality may impose reasonable design limitations on telecommunications . facilities that deal directly with a concern for aesthetics and may regulate the placement of wireless facilities where such regulation does not prohibit or effectively prohibit the provision of wireless services; and WHEREAS, the City Code provisions regulating telecommunications towers and antennas need to be updated to expressly address current practices utilizing personal wireless service facilities in the public rights -of -way and to protect the public interest by Temp. Ordinance # 2278 June 20, 2013 Page 2 of 13 protecting, preserving and maintaining the health, safety and welfare of the users of the public rights -of -way, while also protecting, preserving and maintaining the aesthetic character of areas where such rights -of -way exist, and this ordinance achieves such purpose; and WHEREAS, the City Clerk has provided at least ten days advance notice prior to first reading of this Ordinance to the Secretary of State. NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF TAMARAC, FLORIDA, THAT: SECTION 1. The recitals and findings contained in the Preamble to this Ordinance are adopted by reference and incorporated as if fully set forth in this Section. SECTION 2. Sec. 24-700. — Intent and purpose, is hereby amended as follows: The regulations and requirements of this article are intended to: (1) Promote the health, safety and general welfare of the citizens by regulating the siting of telecommunications towers and other personal wireless service facilities; (2) Provide for the appropriate location and development of telecommunications towers, antennas and other personal wireless service facilities within the city; (3) Minimize adverse visual effects of telecommunications towers, antennas and other personal wireless service facilities through careful design, siting, landscape screening and innovative camouflaging techniques; (4) Avoid potential damage to adjacent properties from tower or facility failure through engineering and careful siting of tower structures and other structures used for the provision of personal wireless services; (5) Protect residential areas and land uses from potential adverse impacts of telecommunications towers, antennas and other personal wireless service facilities by maximizing use of any new or existing telecommunications towers through shared use, i.e., co -location, to reduce the number of towers or other structures used in connection with personal wireless service facilities that are needed. Temp. Ordinance # 2278 June 20, 2013 Page 3 of 12 SECTION 3. Sec. 24-701, Definitions, is hereby amended as follows': Personal wireless services means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, and shall include "wireless service" as defined in Section 365.172, Florida Statutes, as well as "personal wireless services" defined in 47 USC 4.332(c)(7)(C)(i), as they amended. Personal wireless service facilities means facilities for the provision of personal wireless services, and, for the purposes of section 24-707, shall include all of those "wireless communications facilities" as defined in Section 365.172, Florida Statutes, as it may be amended, that are not also telecommunications towers as defined in this section. For the purposes of section 24-7072 a power, light or other utility pole used exclusively as such prior to attachment of a personal wireless service facility shall not be considered a personal wireless service facility because of such attachment. Public rights -of -way has the same meaning as provided in Section 5.6-3 of the City Code. Stealth facility means any telecommunications facility which is designed to blend into the surrounding environment. Examples of stealth facilities include architecturally screened roof -mounted antennas, antennas integrated into architectural elements, poles in the rights -of -way that are designed to look like light poles, and telecommunications towers designed to look like light poles, power poles or trees. SECTION 4. There is hereby created a new Section 24-707 to provide as follows: Section 24-707. Personal wireless service facilities in the public rights-of- w a) Minimum standards. Personal wireless service facilities in the public rights - of -way must meet the following minimum standards: (1) Required approvals. No application for placement of personal wireless service facilities in the public rights -of -way shall be permitted without approval of the building department, the public services department and the department of community development. (2) Site plan review in lieu of underground placement. Because an antenna must be placed above -ground in order to transmit and receive signals, except in the case of co -location, an applicant proposing placement of an antenna in the public rights -of -way within districts where 'Language underlined in sections 2 and 3 is to be added. Language in said sections with a strikethrough is to be deleted. Temp. Ordinance # 2278 June 20, 2013 Page 4 of 12 communications facilities are otherwise required to be placed underground shall submit a site plan for a minor development as required by section 107 47 of the Land Development Code. The director of community development may waive all or some of the requirements of section 10-47 of the Land Development Code if the applicant proposes the use of a stealth facility. No building permit shall be issued by the building department and no engineerinq permit shall be issued by the public services department prior to the approval of a site plan where required pursuant to this paragraph. (3) Completeness review; time limitation. The city shall grant or deny a properly completed application for, personal wireless service facilities in the public rights -of -way within 90 business days or, as required by federal and state law, after the date the application is determined to be properly completed. An application is deemed submitted or resubmitted on the date the application is received by the planning division. The planning division shall notify the applicant within twenty (20) business days after the date the application is initially submitted or additional information resubmitted, whether the application is properly completed in compliance with the city's requirements. If the application is not completed in compliance with the city's requirements, the planning division shall so notify the applicant in writing indicating with specificity any deficiencies which, if cured, make the application properly completed. Upon resubmission of information to cure the stated deficiencies, the planning division shall notify the applicant, in writing, no later than 20 business days after the additional information is submitted, of any remaining deficiencies that must be cured. If a specified deficiency is not properly cured when the applicant resubmits its application to comply with the notice of deficiencies, the planning division may continue to request, the information until such time as the specified deficiency is cured, or may establish a reasonable time frame within which the required information to cure the application deficiency is to be provided. If the curative information is not provided within such time frame, the application will be considered withdrawn or closed. (4) Co -location or use of stealth facilities. An antenna in the public rights - of -way, shall to the extent possible, be collocated on an existing power, light or other utility_pole. When co -location of an antenna is not possible, a free standing stealth facility shall be utilized; however, a non -stealth type facilily may be utilized if approved as a special exception. (5) Statement. A statement or statements shall be submitted certifying that the construction of personal wireless service facilities proposed to be located in the public riqhts-of-wav will comply with applicable standards as Temp. Ordinance # 2278 June 20, 2013 Page 5 of 12 set forth in the Florida Building .Code, latest edition, the State of Florida Department of Transportation, Manual of Uniform Minimum Standards for Design, Construction and Maintenance for Streets and Highways, and electrical codes; and describing the proposed personal wireless service facilities' capacity to permit multiple users, including an example of the number and type of antennas or other attachments that can be accommodated on support structures. No personal wireless service facility which exceeds its support structure's loading capacity, which causes any pole or structure to exceed its loading capacity or which does not conform to applicable electrical codes shall be permitted in the public rights -of -way. (6) Dimensional limits for cabinets, boxes and vaults. No permit or order shall be granted authorizing the placement, construction or modification in the public rights -of -way of a personal wireless service facility cabinet, box or vault having a total volume exceedinq twenty-four cubic feet (24 ft3)1 unless the applicant provides a statement explaining the need for the greater proposed dimensions and certifying that current technology provides no alternative consistent with the dimensional requirements of this subsection. (b) Height, setbacks and related location requirements. (1) The height of a new pole in the public rights -of -way to which an antenna is attached shall not exceed the height of existing poles or structures in the public rights -of -way within one -hundred feet of such proposed new pole, or if no such existing poles are present in the ipublic rights -of -way within one -hundred feet of such proposed new pole, the new pole shall not exceed a height of fifty=) feet. Height shall be measured from the crown of the road of the nearest public street. (2) Except as otherwise provided herein, personal wireless service facilities in the public riqhts-of-way shall conform to the standards and requirements set forth in the State of Florida Department of Transportation Manual of Uniform Minimum Standards for Design, Construction and Maintenance for Streets and Highway (3) No antenna attached to a free-standing pole in the public rights -of -way, other than as a co -location with an existing power, light or other utility pole, or unless installed as a stealth facility, shall be permitted within fifty_ (50) feet of any principal residential structure. (4) A box or cabinet housing the equipment connected to an antenna attached to a free-standing pole in the public rights -of -way shall be placed on the ground instead of attached to the pole supporting the antenna, and shall be screened from view. Temp. Ordinance # 2278 June 20, 2013 Page 6 of 12 (c) Antennas (1) Each application, other than for co -location, shall contain a rendering or photograph of the proposed antenna which depicts its aesthetic features including, but not limited to, the use of colors and screening devices. The application shall be subject to administrative approval determining consistency with the definition of a stealth facility as defined in Sec. 24-701 of the Zonina Code. The director of community development may require, to the extent possible, that aesthetic features including but not limited to, the use of colors and screening devices, be used so that antennas blend into the surroundina environment. (2) No signals, lights, or illumination shall be permitted on an antenna or, except in the case of a light pole or a stealth facility designed to emulate a light pole, on a pole to which such antenna is attached, unless required by applicable state or federal laws or rules. (3) Antennas shall be mounted at a height and location . that will not interfere with use of the public rig hts-of-waY. (4) No exterior antenna in the public rights -of -way shall exceed the height of the pole to which it is attached unless it is attached as a co -location to an existing power, light or other utility pole or on a pole designed to emulate a light p— (5) No antenna shall be mounted more than four inches (4") from the pole to which it is attached unless it is attached as a co -location to an existin power, light or other utility pole. (6) Exterior looping of excess cable length installed on any personal wireless service facility located in the public right-of-way is prohibited. (7) Antenna dimensions. Antenna dimensions shall be approved by the director of community development as required by existing technology. The director of communitv development may reauire a statement certifvina the need for the required dimensions. (8) Distance between antenna locations/number of antenna locations within a specified area. To minimize the adverse visual impacts associated with the proliferation and clusterina of antennas and associated above - round personal wireless service facilities, no antenna site in the public rights -of -way shall be located within four hundred feet (400') of any other such antenna site or telecommunications tower. Further, no more than thirteen (13) antenna sites may be located within an area of one square mile (1 mi2). This paragraph (c)(8) shall not apply to any antenna collocated on an existina power, light or other utilitv pole within the public rights -of -way. Temp. Ordinance # 2278 June 20, 2013 Page 7 of 12 (dj Co -locations. For the purposes of this section, "co -location" means_ the mounting or installation of an antenna on an existing power, light or other utility pole for the purpose of transmitting and/or receiving radio frequencv sia- nals for communications purposes. In any co -location, the existing power, light or other utility pole may be modified or replaced to accommodate the new attachment, provided however that the modified or replacement pole complies with the height, setback and related location requirements of sections 24-707(b)(1), (2), and (4), unless such _requirements are waived pursuant to section 24-707(I). For the purposes of section 24-707, an existing power, light or other utility pole modified or replaced to accommodate a new attachment shall continue to be considered an existing pole after replacement or modification. (e) Approval required from other governmental agencies and owners. Each application for the location of a personal wireless service facility in the public rights -of -way ma be required to include written approval, or a statement of n objection, from state agencies that regulate siting, design, and construction of such facilities, or have jurisdiction over the public rights -of -way, if any such agencies require the applicant to seek their review or approval. An existing facility in the public rights -of -way shall only be utilized in a manner consistent with the City Code and with the written permission of the facility owner. (f) FCC emissions standards. All personal wireless service facilities in the public rights -of -way shall comply with current radio frequency emissions standards of the Federal Communications Commission. Lg) Buffering. (1) Except in the case of an application for a co -location, as a condition of approval the director of community development may require the use of a fence as a buffer that is consistent in design and function with existing fencing used in the public rights -of -way. 2 Except in the case of an application for a co -location, as a condition of approval the director of community development may reguire the use of landscaping as a buffer, which landscaping is consistent with the landscaping otherwise located in the public rights -of -way. Additional landscaping may be required if deemed necessary to buffer adjacent properties. The director of community development may reguire landscaping in excess of the requirements of the City Code to enhance compatibility with adjacent residential and nonresidential land uses. Temp. Ordinance # 2278 3) All buffering June 20, 2013 Page 8 of 12 required in connection with the use of personal wireless service facilities in the public rights -of -way shall be maintained by the owner of such facilities at its own cost. (h) Equipment. The location in the public rights -of -way of any equipment or eauipment cabinets associated with personal wireless service facilities shall be subiect to the approval of the city engineer. Any such cabinets or equipment must be approved by the cily engineer as to safety, and shall not interfere with the use of the public rights -of -way. The city engineer may require a statement certifying the need for the proposed equipment and location. No generators utilized in connection with personal wireless services facilities may be in the public rights -of -way, except temporarily in the case of emergency and if approved in advance by the city engineer. ()i Removal of personal wireless service facilities in the public rights -of -way and restoration of the public rights-of-wa■� (1) Upon abandonment of an antenna or other personal wireless facility within the public rights -of -way of the city, the owner of the antenna or personal wireless facility shall notifv the citv within ninety (90) days. Following receipt of such notice, the city may direct the facility owner to remove all or any portion of the antenna or the personal wireless facility if the city determines that such removal will be in the best interest of the public health, safety and welfare. In the event that the city does not direct the removal of the abandoned antenna or personal wireless facility by the owner of the antenna or personal wireless facilitv and the owner chooses not to remove its antenna or personal wireless facilities, then such owner, by its notice of abandonment to the city, shall be deemed to consent to the alteration or removal of all or any portion of the antenna or personal wireless facility by another entity or person. .. ■ . . . / A A \ . . ■ . . oiiiiijq • • o • • r r • • • • • • - -A l� LwA ■ l! 1 • ■ ■ ■,_1 \� �l�s�1�7 I \���� l! '\WJ M M l7 l ■ t 7 ■ ►�� �L� 1 l ►;■ F ■ 1 ii��t 1 • ■ • vr m . ■ . I A w w % .. ■ A ■ . ■ ■ ♦ ■ a . ■ . . I�l�l�Il\�i■\ !■li10�WA�AAL '��1�MIML� �1711/1�J��\�1��11■►���1!���li�J��l��■►�Ll���l�■\��WA- IL ��t1 i Fr. a III, ON • &T^3r- i (2) Upon the removal of any personal wireless service facilities from the public riahts-of-way. such public riahts-of-wav shall be completely restored to the satisfaction of the city engineer at the cost of the owner or operator Temp. Ordinance # 2278 June 20, 2013 Page 9 of 12 of the personal wireless service facilities in the public rights -of -way. The city engineer may require a bond or other fund sufficient to secure the restoration of the public rights -of -way. 9 Si_gns and advertising. The use of an Dortion of a personal wireless service facility in the public rights -of -way for the posting of signs or for advertising purposes, including but not limited to the display of company name, banners and streamers is strictly prohibited, unless required by state or federal law. Lk) Inspections. (1) Owners or operators of personal wireless service facilities in the public rights -of -way shall ensure that the city's building department has current contact information for such owner or its authorized representative. (2) The owner or operator of a personal wireless service facility in the public rights -of -way shall submit a report to the city's building department, certifying the integrily of structures and the safety of electrical components at least once every two (2) years. (3) Inspections evaluating the structural integrity and electrical safety of the facilities shall be conducted by an engineer licensed to practice in the state. The results of such inspections shall be provided to the building department along with certification that the engineer or engineers conducting such inspections are competent in the engineering discipline or disciplines necessary to evaluate the structural and electrical integrity of the facilities, or that the evaluation has been made by a competent engineer or engineers under his or her direction or supervision. Any personal wireless service facilities in the public rights -of -way found in such inspection or otherwise determined to be lacking structural integrity or electrical safety shall be repaired or removed as required by the building department. 4) The building department may con riodic inspection rsonal wireless service facilities in the public rights -of -way to ensure structural integrity and electrical safety. The owner or operator of personal wireless service facilities in the public rights -of -way may be required to have more frequent inspections of a particular facility should there be reason to believe that the structural integrity and electrical safety of said facility been jeopardized. Ll Actual or effective prohibition; cooperative determination. In the event an applicant demonstrates to the ion of th r mmun development that operation of this section results in an actual or effective Temp. Ordinance # 2278 June 20, 2013 Page 10 of 12 prohibition of personal wireless services or the provision of communications services, the applicant and the director of community development shall cooperate to determine an appropriate location and aesthetic design__ for the proposed facility. In any such cooperative determination there shall be a preference for co -location with existing personal wireless service facilities or other utility facilities, or for use of unused capacity on existing personal wireless service facilities. Where facilities cannot be co -located and no such unused capacity exists, there shall be a preference for the use of free standing stealth- tvpe structures which are consistent, to the extent possible, with the purposes of the Land Development Code as that code is defined in Sec. 10.327. The director of community development may require a statement certifying that the proposed location is needed by a personal wireless services provider to close a significant qap in its service to the affected area. The applicant shall reimburse the reasonable costs incurred by the city for this cooperative determination. (m) Modifications or replacements. Modification or replacement of any personal wireless service facilities or equipment in the public rights -of -way, except co - location of new transmission equipment, removal of transmission equipment or replacement of transmission equipment, shall be subject to approval of the city's building department. If such modification or replacement of facilities or equipment other than transmission equipment would, as reasonably determined b the ci result in the facili orequipment bein readily discernibly different in v� v v size, type, and appearance when viewed from ground level from surrounding properties, such modification shall require approval as a special exception. Any co -location of new transmission equipment, removal of transmission equipment orplacement of transmission equipment that substantially changes the physical dimensions of an antenna node site shall be subject to approval of the city's building department. Notwithstanding anything to the contrary in this section 24- 707(m), for an eligible facilities request under Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, the application shall be subject only to the building department's review and approval process. Ln) Statements and certifications. Any statement or certification submitted by or on behalf of an applicant pursuant to the provisions of this section shall be prepared applying rational analysis by one or more engineers registered and licensed in the state, or by such other person or persons designated bye applicant who are qualified to perform the required analysis. Any person or persons providing such a statement or statements shall also certify as to his or her competence in the discipline or disciplines necessary_to perform the analysis and to provide the statement. Temp. Ordinance # 2278 June 20, 2013 Page 11 of 12 (o) Reservation of Rights. (1) The city does not waive anv rights under applicable law with respect to management of its public rights -of -way. The city shall require that owners and users of personal wireless service facilities in the public rights-of-wav_ pay the maximum compensation to the city that is allowed by law. The city reserves the right to enforce all applicable city code provisions with respect to personal wireless service facilities in the public rights -of -way_ (2) The citv does not warrant or make anv representations that the public rights-of-wav are available, suitable or appropriate for the construction, placement, maintenance or use of personal wireless service facilities. (3) The citv's approval of an application for the construction, placement, or modification of a personal wireless service facilities in the public rights -of - way shall not create any rights in such facilities' ability to be maintained or utilized in the public riqhts-of-way for any particular period of time or anv_ rights that are inconsistent with the ci code. (4) The city reserves the right to abandon anv public riqhts-of-way, notwithstanding the presence of any personal wireless service facilities in the public rights-of-wav that have been approved by the city and the city_ shall have no liability or responsibility to the owner, operator, or users of such personal wireless service facilities in the public rights-of-wav_. (5) The city reserves the riqht to require the relocation or removal of anv personal wireless service facilities in the public rights -of -way consistent with its authority under applicable law. The city shall have no liability or responsibilitv to the owner, operator or users of the personal wireless service facilities in the public rights -of -wad (6) The city shall have no responsibility or liability for damage to or interference with the use or maintenance of personal wireless service facilities in the public rights-of-wav by any third party. i i • • ! . T r-T . 24-708 24-799. - Reserved SECTION 5. Conflicts. All ordinances or parts of ordinances in conflict herewith are repealed to the extent of such conflict. SECTION 6. Savings. All fees and other dollar amounts owed to the City under any contract, Agreement, or other provisions of the City Code as of the effective date of this Ordinance, whether known or unknown, shall not be affected by the adoption of this Ordinance and the City expressly reserves its rights with respect to such amounts. Temp. Ordinance # 2278 June 20, 2013 Page 12 of 12 SECTION 7. Severability. It is declared to be the intent of the City Commission of the City of Tamarac, Florida, that if any section, subsection, sentence, clause, or provision of this Ordinance shall be declared invalid, the remainder of the this Ordinance shall be construed as not having contained said section, subsection, sentence, clause, or provisions and shall not be affected by such holding. SECTION 8. Inclusion in Code. It is the intent of the City Commission of the City of Tamarac that the provisions of this Ordinance shall become and be made a part of the City Code of Ordinances, and that the sections of this Ordinance may be renumbered or re -lettered and the word "ordinance" may be changed to "section," "article," "regulation," or such other appropriate word or phrase in order to accomplish such intentions. SECTION 9. Effective Date. This Ordinance shall become effective immediately upon the date of its adoption by the City Commission. PASSED, FIRST READING this ` � day of , 2013. PASSED, SECOND READING this � day of ATTEST: PAT TUEFEL, 9MC, INTERIM CITYCLERK I HEREBY CERTIFY that have approved this ORDINANCE as to form: Fi,/VAMUJ�L /G-OREN CITY A )2013. RECORD OF COMMISSION VOTE: 1 ST Reading MAYOR TALABISCO DIST 1: COMM BUSHNELL DIST 2: COMM ATKINS-GRAD DIST 3: COMM GLASSER DIST 4: V/M DRESSLER RECORD OF COMMISSION VOTE: 2ND Reading MAYOR TALABISCO DIST 1: COMM BUSHNELL DIST 2: COMM. ATKINS-GRAD DIST 3: COMM GLASSER DIST 4: V/M DRESSLER