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1.1 Purpose
The purpose of this ordinance is to provide a process and
a set of standards for the construction of wireless telecommunications
facilities in order to: implement a
municipal policy concerning the provision of wireless telecommunications
services, and the siting of their facilities;
establish clear guidelines, standards, and time frames for the exercise of
municipal authority to regulate wireless telecommunications facilities; ensure
that all telecommunications carriers providing facilities or services within
the Town of Wales comply with the ordinances of the Town of Wales; ensure that
the Town of Wales can continue to fairly and responsibly protect the public
trust consistent with rapidly evolving federal and state regulatory policies,
industry competition, and technological development.
This Ordinance shall be known and cited as the
"Wireless Telecommunications Facilities Siting
Ordinance" of the Town of
This ordinance is adopted
pursuant to the enabling provisions of Article VIII, Part 2, Section 1 of the
Maine Constitution; the provisions of Title 30-A M.R.S.A. Section 3001 (Home
Rule), and the provisions of the Planning and Land Use Regulation Act, Title
30-A M.R.S.A. Section 4312 et seq.
This local land use ordinance
applies to all construction and expansion of wireless telecommunications
facilities, except as provided in Article 1.3, A.
A) Exemptions:
The following are exempt from the provisions of this ordinance:
1) Emergency Wireless Telecommunications Facility.
Temporary wireless communication facilities for emergency
communications by public officials.
2) Amateur (ham) radio stations. Amateur (ham)
radio stations licensed by the Federal Communications Commission (FCC).
3) Parabolic antenna. Parabolic Antennas less
than seven (7) feet in diameter, that are an accessory use of the property.
4) Maintenance or repair. Maintenance, repair or
reconstruction of a wireless telecommunications facility and related equipment,
provided that there is no change in the height or any other dimension of the
facility.
5) Temporary wireless telecommunications
facility. Temporary wireless telecommunications facility, in
operation for a maximum period of one hundred eighty (180) days.
6) Antennas as Accessory Uses. An antenna that is an
accessory use to a residential dwelling unit.
1.4 Effective Date
The
effective date of this Ordinance shall be the date of the 2005 Town Meeting of
the Town of
1.5 Repeal of Prior Ordinances
This
Ordinance shall repeal the ordinance entitled “Wireless Telecommunications
Facilities Siting Ordinance of the Town of
Article 2. Review and Approval Authority
No person
shall construct or expand a wireless telecommunication facility without
approval of the the Planning Board (PB) as follows:
A) Expansion
of an Existing Facility and Colocation. Approval by
the PB is required for any expansion of an existing wireless telecommunications
facility that increases the height of the facility by no more than 20 feet;
accessory use of an existing wireless telecommunications facility; or colocation on an existing wireless telecommunications
facility.
B) New
Construction. Approval of the Planning Board is required for construction of a
new wireless telecommunications facility; and any expansion of an existing
wireless telecommunications facility that increases the height of the facility
by more than 20 feet.
In accordance with Section
2.1 above, the Planning Board shall review applications for wireless
telecommunications facilities, and make written findings on whether the
proposed facility complies with this Ordinance.
All persons seeking
approval of the Planning Board under this ordinance shall meet with the Code
Enforcement Officer (CEO) no less than thirty (30) days before filing an
application. At this meeting, the CEO shall explain to the applicant the
ordinance provisions, as well as application forms and submissions that will be
required under this ordinance.
3.2 Application for Planning Board Approval.
All persons seeking
approval of the PB under this ordinance shall submit an application as provided
below. The CEO shall be responsible for ensuring that notice of the application
has been published in a newspaper of general circulation in the community.
An
application for approval by the Planning Board must be submitted to the Code
Enforcement Officer. The application
must include the following information:
A) Documentation of
the applicant's right, title, or interest in the property on which the facility
is to be sited, including name and address of the property owner and the
applicant.
B) A copy of the FCC
license for the facility, or a signed statement from the owner or operator of
the facility attesting that the facility complies with current FCC regulations.
C) A USGS 7.5 minute
topographic map showing the location of all structures and wireless
telecommunications facilities above 150 feet in height above ground level,
except antennas located on roof tops, within a five (5) mile radius of the
proposed facility, unless this information has been previously made available
to the municipality. This requirement may be met by submitting current
information (within thirty days of the date the application is filed) from the
FCC Tower Registration Database.
D) A site plan:
1) prepared and certified by a professional
engineer registered in Maine indicating the location, type, and height of the
proposed facility, antenna capacity, on-site and abutting off-site land uses,
means of access, setbacks from property lines, and all applicable American
National Standards Institute (ANSI) technical and structural codes;
2) certification by the
applicant that the proposed facility complies with all FCC standards for radio emissions
is required; and
3) a boundary survey for
the project performed by a land surveyor licensed by the State of
E) A scenic
assessment, consisting of the following:
1) Elevation drawings of the proposed facility,
and any other proposed structures, showing height above ground level;
2) A landscaping plan indicating the proposed
placement of the facility on the site; location of existing structures, trees,
and other significant site features; the type and location of plants proposed
to screen the facility; the method of fencing, the color of the structure, and
the proposed lighting method.
3) Photo simulations of the proposed facility
taken from perspectives determined by the Planning Board, or their designee,
during the pre-application conference. Each photo must be labeled with the line
of sight, elevation, and with the date taken imprinted on the photograph. The
photos must show the color of the facility and method of screening.
4) A narrative discussing:
a) the extent to which
the proposed facility would be visible from or within a designated scenic
resource,
b) the tree line
elevation of vegetation within 100 feet of the facility, and
c) the distance to the
proposed facility from the designated scenic resource's noted viewpoints.
F) A written
description of how the proposed facility fits into the applicant's
telecommunications network. This submission requirement does not require
disclosure of confidential business information.
G) Evidence
demonstrating that no existing building, site, or structure can accommodate the
applicant's proposed facility, the evidence for which may consist of any one or
more of the following:
1) Evidence that no existing facilities are
located within the targeted market coverage area as required to meet the
applicant's engineering requirements,
2) Evidence that existing facilities do not have
sufficient height or cannot be increased in height at a reasonable cost to meet
the applicant's engineering requirements,
3) Evidence that existing facilities do not have
sufficient structural strength to support applicant's proposed antenna and
related equipment. Specifically:
a) Planned, necessary equipment would exceed the
structural capacity of the existing facility, considering the existing and
planned use of those facilities, and these existing facilities cannot be
reinforced to accommodate the new equipment.
b) The applicant's proposed antenna or equipment
would cause electromagnetic interference with the antenna on the existing
towers or structures, or the antenna or equipment on the existing facility
would cause interference with the applicant's proposed antenna.
c) Existing or approved facilities do not have space
on which planned equipment can be placed so it can function effectively.
4) For facilities existing prior to the effective
date of this ordinance, the fees, costs, or contractual provisions required by
the owner in order to share or adapt an existing facility are unreasonable.
Costs exceeding the pro rata share of a new facility development are presumed
to be unreasonable. This evidence shall also be satisfactory for a tower built
after the passage of this ordinance;
5) Evidence that the applicant has made diligent
good faith efforts to negotiate colocation on an
existing facility, building, or structure, and has been denied access;
H) Identification
of districts, sites, buildings, structures or objects, significant in American
history, architecture, archaeology, engineering or culture, that are listed, or
eligible for listing, in the National Register of Historic Places (see 16
U.S.C. 470w(5); 36 CFR 60 and 800).
I) A signed
statement stating that the owner of the wireless telecommunications facility
and his or her successors and assigns agree to:
1) respond in a timely,
comprehensive manner to a request for information from a potential colocation applicant, in exchange for a reasonable fee not
in excess of the actual cost of preparing a response;
2) negotiate in good faith for shared use of the
wireless telecommunications facility by third parties;
3) allow shared use of
the wireless telecommunications facility if an applicant agrees in writing to
pay reasonable charges for colocation;
4) require no more than
a reasonable charge for shared use, based on community rates and generally
accepted accounting principles. This charge may include but is not limited to a
pro rata share of the cost of site selection, planning project administration,
land costs, site design, construction, financing, return on equity,
depreciation, and all of the costs of adapting the tower or equipment to
accommodate a shared user without causing electromagnetic interference. The
amortization of the above costs by the facility owner shall be accomplished at
a reasonable rate, over the useful life span of the facility.
J) A form of
surety approved by the Planning Board to pay for the costs of removing the facility
if it is abandoned.
K) Evidence
that a notice of the application has been published in a local newspaper of
general circulation in the community.
The
Planning Board may waive any of the submission requirements based upon a
written request of the applicant submitted at the time of application. A waiver
of any submission requirement may be granted only if the Planning Board finds
in writing that due to special circumstances of the application, the
information is not required to determine compliance with the standards of this
Ordinance.
A) Planning
Board Application Fee. An
application for Planning Board approval shall include payment of an application
fee. The Selectmen, after holding a
public hearing, shall establish reasonable fees for the administration of this
Ordinance, including Board of Appeals application fees. The application shall not be considered
complete until the fee is paid. An
applicant is entitled to a refund of the application portion of the fee if the
application is withdrawn within fifteen (15) days of the date of filing, less
all expenses incurred by the Town of
B) Planning Board Review Fee. An applicant for approval by the Planning Board shall pay all
reasonable and customary fees incurred by the Town of
3.5. Notice
of Complete Application
Upon receipt of an
application, the CEO shall provide the applicant with a dated receipt. Within fifteen (15) working days of receipt of
an application the CEO shall review the application and determine if the
application meets the submission requirements. The Planning Board shall review any requests
for a waiver from the submission requirements and shall act on these requests
prior to determining the completeness of the application.
If the application is
complete, the CEO shall notify the applicant in writing of this determination
and require the applicant to provide a sufficient number of copies of the
application to the Planning Board and the abutters.
If the application is
incomplete, the CEO shall notify the applicant in writing, specifying the
additional materials or information required to complete the application.
If the application is
deemed to be complete, the CEO shall notify all abutters to the site as shown
on the Assessor's records, by first-class mail, that an application has been
accepted. This notice shall contain a brief description of the proposed
activity and the name of the applicant, give the location of a copy of the
application available for inspection, and provide the date, time, and place of
the Planning Board meeting at which the application will be considered. Failure
on the part of any abutter to receive such notice shall not be grounds for
delay of any consideration of the application nor denial of the project.
For applications for
Planning Board approval under Section 2.1, a public hearing shall be held
within 30 days of the notice of the complete application.
Planning
Board Approval.
Within ninety (90) days of receiving a complete application for approval under
section 2.1, the Planning Board shall approve, approve with conditions, or deny
the application in writing, together with the findings on which that decision
is based. However, if the Planning Board has a waiting list of applications
that would prevent the Planning Board from making a decision within the
required ninety (90) day time period, then a decision on the application shall
be issued within sixty (60) days of the public hearing, if necessary, or within
sixty (60) days of the completed Planning Board review. This time period may be
extended upon agreement between the applicant and the Planning Board.
To obtain approval from
the CEO or the Planning Board, an application must comply with the standards in
this section.
An application for
approval by the Planning Board under Section 3.2 must meet the following
standards.
A) Priority of Locations. New wireless telecommunications facilities
must be located according to the priorities below. The applicant shall
demonstrate that a facility of a higher priority cannot reasonably accommodate
the applicant's proposed facility.
1) Colocation on an
existing wireless telecommunications facility or other existing structure on
Oak Hill, so-called, located easterly of Route 126 and westerly of
2) A new facility on Oak Hill, so-called.
3.) A new
facility on public or private property in the Town of
B) Design for Colocation:
A new wireless telecommunications
facility and related equipment must be designed and constructed to accommodate
expansion for future colocation of at least three (3)
additional wireless telecommunications facilities or providers. However, the
Planning Board may waive or modify this standard where the district height
limitation effectively prevents future colocation.
C) Height: A new wireless telecommunications facility
must be no higher than the existing towers on Oak Hill in the Town of
D) Setbacks: A new or expanded wireless telecommunications
facility must comply with the set back requirements for the zoning district in
which it is located, or be set back one hundred five percent (105%) of its
height from all property lines, whichever is greater. The setback may be
satisfied by including the areas outside the property boundaries if secured by
an easement. The following exemptions apply:
1) The setback may be reduced by the Planning
Board upon a showing by the applicant that the facility is designed to collapse
in a manner that will not harm other property.
2) An antenna is exempt from the setback
requirement if it extends no more than five (5) feet horizontally from the edge
of the structure to which it is attached, and it does not encroach upon an
abutting property.
E) Landscaping: A new wireless telecommunications facility and
related equipment must be screened with plants from view by abutting
properties, to the maximum extent practicable. Existing plants and natural land
forms on the site shall also be preserved to the maximum extent practicable.
F) Fencing: A new wireless telecommunications facility
must be fenced to discourage trespass on the facility and to discourage
climbing on any structure by trespassers.
G) Lighting: A new wireless telecommunications facility
must be illuminated only as necessary to comply with FAA or other applicable
state and federal requirements. However, security lighting may be used as long
as it is shielded to be down-directional to retain light within the boundaries
of the site, to the maximum extent practicable.
H) Color and Materials: A new wireless telecommunications facility
must be constructed with materials and colors that match or blend with the
surrounding natural or built environment, to the maximum extent practicable.
Unless otherwise required, muted colors, earth tones, and subdued hues shall be
used.
I) Structural Standards: A new wireless telecommunications facility
must comply with the current Electronic Industries Association/
Telecommunications Industries Association (EIA/TIA) 222 Revision Standard
entitled "Structural Standards for Steel Antenna Towers and Antenna
Supporting Structures."
J) Visual Impact: The proposed wireless telecommunications
facility will have no unreasonable adverse impact upon designated scenic
resources within the Town, as identified either in the municipally adopted
comprehensive plan, or by a State or federal agency.
In determining
the potential unreasonable adverse impact of the proposed facility upon the
designated scenic resources, the Planning Board shall consider the following
factors:
1) The extent to which the proposed wireless
telecommunications facility is visible above tree line, from the viewpoint(s)
of the impacted designated scenic resource;
2) the type, number,
height, and proximity of existing structures and features, and background
features within the same line of sight as the proposed facility;
3) the extent to which
the proposed wireless telecommunications facility would be visible from the
viewpoint(s);
4) the amount of
vegetative screening;
5) the distance of the proposed facility
from the viewpoint and the facility's location within the designated scenic
resource; and
6) the presence of reasonable alternatives that allow the
facility to function consistently with its purpose.
K) Noise: During construction, repair, or replacement,
operation of a back-up power generator at any time during a power failure, and
testing of a back-up generator between
L) Historic & Archaeological Properties: The proposed facility, to the greatest degree
practicable, will have no unreasonable adverse impact upon a historic district,
site or structure which is currently listed on or eligible for listing on the
National Register of Historic Places.
The following standard
conditions of approval shall be a part of any approval or conditional approval
issued by the Planning Board. Where necessary to ensure that an approved
project meets the criteria of this ordinance, the Planning Board can impose
additional conditions of approval. Reference to the conditions of approval
shall be clearly noted on the final approved site plan, and shall include:
A) The owner of the wireless
telecommunications facility and his or her successors and assigns agree to:
1) respond in a timely, comprehensive manner to a request for
information from a potential colocation applicant, in
exchange for a reasonable fee not in excess of the actual cost of preparing a
response;
2) negotiate in good faith for shared use of the
wireless telecommunications facility by third parties;
3) allow shared use of
the wireless telecommunications facility if an applicant agrees in writing to
pay reasonable charges for colocation.
4) require no more than
a reasonable charge for shared use of the wireless telecommunications facility,
based on community rates and generally accepted accounting principles. This
charge may include, but is not limited to, a pro rata share of the cost of site
selection, planning project administration, land costs, site design,
construction and maintenance, financing, return on equity, depreciation, and all
of the costs of adapting the tower or equipment to accommodate a shared user
without causing electromagnetic interference. The amortization of the above
costs by the facility owner shall be accomplished at a reasonable rate, over
the life span of the useful life of the wireless telecommunications facility.
B) Upon request by
the municipality, the applicant shall certify compliance with all applicable
FCC radio frequency emissions regulations.
Any changes to an
approved application must be approved by the Planning Board, in accordance with
Article 2.
A wireless
telecommunications facility that is not operated for a continuous period of
twelve (12) months shall be considered abandoned. The CEO shall notify the
owner of an abandoned facility in writing .and order the .removal of the
facility within ninety (90) days of receipt of the written notice. The owner of
the facility shall have thirty (30) days from the receipt of the notice to demonstrate
to the CEO that the facility has not been abandoned.
If the Owner fails to
show that the facility is in active operation, the owner shall have sixty (60)
days to remove the facility. If the facility is not removed within this time
period, the .municipality may remove the facility at the owner's expense. The
owner of the facility shall pay all site reclamation costs deemed necessary and
reasonable to return the site to its pre-construction condition, including the
removal of roads, and reestablishment of vegetation.
If a surety has been
given to the Town of
Article 7. Appeals
Any person aggrieved by a decision
of the CEO or the Planning Board under this ordinance may appeal the decision
to the Board of Appeals, as provided by Article 6 of the Land Use Ordinance of
the Town of Wales.
The CEO, as appointed by
the Board of Selectmen, shall enforce this ordinance. If the CEO finds that any
provision of this ordinance has been violated, the CEO shall notify in writing
the person responsible for such violation, indicating the nature of the
violation, and ordering the action necessary to correct it. The CEO shall order
correction of the violation and may take any other legal action to ensure
compliance with this ordinance.
The Board of Selectmen,
or their authorized agent, are authorized to enter into administrative consent
agreements for the purpose of eliminating violations of this ordinance and
recovering fines without court action. Such agreements shall not allow a
violation of this ordinance to continue unless: there is clear and convincing
evidence that the violation occurred as a direct result of erroneous advice
given by an authorized municipal official upon which the applicant reasonably
relied to its detriment and there is no evidence that the owner acted in bad
faith; the removal of the violation will result in a threat to public health
and safety or substantial environmental damage.
Any person who owns or
controls any building or property that violates this ordinance shall be fined
in accordance with Title 30-A M.R.S.A. § 4452. Each day such violation
continues after notification by the CEO shall constitute a separate offense.
Whenever a provision of
this ordinance conflicts with or is inconsistent with another provision of this
ordinance or of any other ordinance, regulation, or statute, the more
restrictive provision shall apply.
The invalidity of any
part of this ordinance shall not invalidate any other part of this ordinance.
Unless specifically defined in the Town of