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O-602-98 ORDINANCE NO. 602-98 AN ORDINANCE OF THE VILLAGE COUNCIL OF MIAMI SNORES, FLORIDA PERTAINING TO THE SUBJECT OF WIRELESS TELECOMMUNICATIONS FACILITIES; ESTABLISHING REGULATIONS GOVERNING THE ERECTION, . LOCATION (INCLUDING RE-LOCATION) AND OPERATION OF ANTENNAS AND ANTENNA TOWERS WITHIN THE VILLAGE; PROVIDING CERTAIN TERMS AND CONDITIONS; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR THE REPEAL OF ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the provisions of Village Ordinance Nos. 596-97, 599-97 and 601-97 provided a moratorium on the issuance of permits for wireless transmission and tower facilities within the Village; and, WHEREAS, the Village Council now wishes to lift said moratorium subject to the terms of this Ordinance; and, WHEREAS, the Village wishes to enact and establish the permitting process for wireless transmission and tower facilities within the Village; NOW, THEREFORE, BE IT ORDAINED by the Village Council of the Village of Miami Shores Florida, that Village Ordinance Nos. 596-97, 599-97 and 601-97 are hereby superseded by this Ordinance, and that the following regulations shall apply to the installation of wireless personal telecommunications services antennas and wireless personal telecommunications services antenna towers as defined herein: SECTION 1: DEFINITIONS: A. "Antenna" - a device capable of transmitting or receiving electromagnetic signals. B. "Wireless Personal Telecommunications Services Antenna Tower" - A monopole or lattice structure, of free standing or guyed design, to support or contain one or more "wireless personal telecommunications service antenna" and their appurtenances. The removal of an existing Florida Power & Light pole, Southern Bell telephone pole or other utility pole, and the substitution therefor of a longer or taller pole for the purpose of installing a wireless personal telecommunications services antenna and reinstalling the pre-existing utility facilities thereon is an installation of a "wireless personal telecommunications services antenna tower". C. "Wireless personal telecommunications service" - for purposes of this Ordinance, the transmission for hire of information in analog or digital format including but not limited to voice, paging, facsimile, etc. - Page 1 of 7 Pages- D. "Wireless personal telecommunications services antenna" - an antenna used in the provision of over the air wireless personal telecommunications services. This is the only type of antenna regulated by this Ordinance. SECTION 2: THE APPLICATION FOR APPROVAL OF A WIRELESS PERSONAL TELECOMMUNICATIONS SERVICES ANTENNA TOWER: A. The applicant must file an application for a "wireless personal telecommunications services antenna tower permit" with the Building and Zoning Department. B. Each site, and a plan showing proposed landscaping and the elevation drawings of the wireless personal telecommunications services antenna tower, the wireless personal telecommunications services antennas proposed thereon, and any appurtenant facilities, shall be clearly identified by the applicant and filed with the Building & Zoning Department for review. C. The applicant shall provide evidence of the status of title to the proposed wireless personal telecommunications services antenna tower site, in form required by the Legal Department, to assure the Village that all necessary owners, easement holders, tenants, and other interested parties have consented to the application. This evidence must be approved prior to the requisite permit being issued. D. The applicant shall certify that the wireless personal telecommunications services antennas proposed for the wireless personal telecommunications services antenna tower will be made continually compliant with all present and future promulgated safety laws, rules, and regulations concerning electromagnetic frequency emissions standards, or similar safety standards for other communications media transmissions, and shall acknowledge the Village's ability to require immediate removal of any wireless personal telecommunications services antenna which does not meet such safety rules and regulations. This enforceable certification shall be in form approved by the Legal Department and shall be binding on the applicant's successors in interest. This certification shall enable the Village to recover its costs and attorney's fees if litigation is necessary to enforce this certification. E. The applicant shall also certify that any wireless personal telecommunications services antennas proposed for the wireless personal telecommunications services antenna tower will not interfere with public safety communications, and further, will not unreasonably interfere with the reception or transmission of television, radio, microwave, telephone, digital, or similar communications signals or receipt of signals of nearby residential or business residents. This enforceable certification shall be in form approved by the Legal Department and shall be binding on the applicant's successors in interest. This certification shall enable the Village to recover its costs and attorney's fees if litigation is necessary to enforce this certification. The Village may, as a condition for approval of the permit, require frequency relocation agreements. F. The applicant shall state in the wireless personal telecommunications services antenna tower permit application that it will, as a condition of issuance of the permit, design and build to accommodate at least two (2) wireless personal telecommunications services antenna facilities of other providers, on a non-discriminatory basis, to avoid - Page 2 of 7 Pages - duplication of the erection of such wireless personal telecommunications services antenna towers throughout the Village, or if not, the reasons, based upon verifiable objective data, why it cannot do so. Therefore, each tower will accommodate a total of three (3) wireless personal telecommunications services providers. Unless the Village's governing body makes an express waiver, the applicant shall make an enforceable certification that it shall permit co-use of its wireless personal telecommunications services antenna tower. This enforceable certification shall be in form approved by the Legal Department and shall be binding on the applicant's successors in interest. This certification shall enable the Village to recover its costs and attorney's fees if litigation is necessary to enforce this certification. Unreasonable refusal to permit co-use shall constitute a violation of this Ordinance and may result in the Village revoking the wireless personal telecommunications services antenna tower approval and seeking a mandatory injunction to compel the wireless personal telecommunications services antenna tower's removal in addition to all other remedies available to the Village for violations of its Code of Ordinances, which remedies are hereby incorporated by reference. SECTION 3: CONSTRUCTION REQUIRENMNTS FOR WIRELESS PERSONAL TELECOIVMUNICATIONS SERVICES ANTENNA TOWERS: A. A wireless personal telecommunications services antenna tower shall not be erected to a height exceeding one hundred and thirty feet (130). B. All utilities servicing the wireless personal telecommunications services antenna tower D shall be placed underground. SECTION 4: REVIEW PROCEDURE FOR WIRELESS PERSONAL TELECOMMUNICATIONS SERVICES ANTENNA TOWERS: A. An application for a wireless personal telecommunications services antenna tower permit shall be submitted to the Building and Zoning Department. B. If the applicant fails to meet all of the required permitting criteria, it shall be scheduled for consideration at the next available Planning and Zoning Board meeting. C. After consideration by the Planning and Zoning Board, the application shall be submitted to the governing body of the Village for review. The governing body of the Village shall review these applications in accordance with its quasi-judicial procedures. D. When the governing body of the Village considers an application for a wireless personal telecommunications services antenna tower permit, the Village Clerk shall post the agenda for the meeting at which the wireless personal telecommunications services antenna tower permit is to be considered for at least three (3) business days prior to the meeting. - Page 3 of 7 Pages - SECTION 5: SUBSTANTIVE REVIEW CRITERIA: A. Siting Preferences: 1. The Village will encourage the location of wireless personal telecommunications services antenna tower sites on public property consistent with the intent of the congressional legislation on this subject. Accordingly, the Village shall consider when evaluating whether to approve an application for a wireless personal telecommunications services antenna tower permit whether there is suitable public property near the proposed site which would physically accommodate the wireless personal telecommunications services antenna tower without unreasonably compromising the wireless personal telecommunications services antenna tower's signal reception or transmitting capability or unreasonably compromising the communication provider system's capability, and without significantly increasing any negative wireless personal telecommunications services antenna tower secondary effects of aesthetics or likelihood of property damage in the event of wireless personal telecommunications services antenna tower failure. For purposes of this Ordinance, public property capable of accommodating a tower site shall consist of the following: parks in excess of seven (7) acres and community facilities owned by the Village. The Village shall consider the character of the property surrounding the public property in deciding whether to approve the application. 2. If a wireless personal telecommunications services antenna tower cannot be located on candidate sites within site preference class 1 above without unreasonably compromising the communication provider system's capability, the Village will next consider sites in S-2 (dog track)property. 3. If a wireless personal telecommunications services antenna tower cannot be located on candidate sites within site preference class 1 or 2 above without unreasonably compromising the communication provider system's capability, the Village will next consider community facilities owned by parties other than the Village for wireless personal telecommunications services antenna tower sites. r The governing body of the Village may require opinions from suitable engineers or other learned professionals or experts when evaluating siting preferences and may defer considering applications for up to ninety (90) days to permit good faith negotiations to occur between an applicant and a property owner of a preferred site class. B. "Unreasonably compromising the wireless personal telecommunications services antenna tower's signal reception or transmission capability" means that the provider will not be able to provide significantly needed but not required (for required, see C below) communications coverage to areas within the Village. It will be presumed that if a proposed site is within one-half mile of an existing wireless personal telecommunications services antenna tower that can reasonably accommodate the applicant's wireless personal telecommunications services antenna, a denial of the application would not result in an unreasonable compromise to the wireless personal telecommunications services antenna tower's reception or transmission capability. This presumption is rebuttable. - Page 4 of 7 Pages - C. "Unreasonably compromising the communication provider system's capability" means that without the wireless personal telecommunications services antenna tower being approved, the communication provider is in violation of the built-out or coverage requirements it must satisfy (if any) in order to retain its Federal Communications Commission license; or, that without the wireless personal telecommunications services antenna tower being approved, the communication provider cannot provide any form of service to the area within the Village which would have been served by a wireless personal telecommunications services antenna tower being approved-such that an effective barrier to entry or any service results; or, that the denial of the application for the wireless personal telecommunications services antenna tower permit would, pursuant to the congressional legislation or agency rule then in effect or the case or agency decisions interpreting same, likely not be permissible (the governing body of the Village may defer action on the application for a time reasonable to obtain a legal opinion). D. The applicant must to the fullest extent practicable, demonstrate to the Village that the wireless personal telecommunications services antenna tower will be screened from view by landscaping, existing natural vegetation or buildings, or otherwise aesthetically designed to blend into and harmonize with the area or location surrounding the wireless personal telecommunications services antenna tower site. The Village shall be able to deny wireless personal telecommunications services antenna tower designs that are more visually obtrusive than other designs capable of delivering comparable service, it being critically important that the design be as visually unobtrusive as possible. E. The applicant must further establish that the wireless personal telecommunications services antenna tower is safely installed, mounted, anchored and braced to withstand hurricane-force winds and otherwise conform with all South Florida Building Code and all applicable life safety requirements. F. The wireless personal telecommunications services antenna tower shall be located to minimize the likelihood of injury to property or to people in the event of tower failure. G. No signals, lights, or illumination shall be permitted on a wireless personal telecommunications services antenna tower unless required by the Federal Communications Commission or Federal Aviation Administration. Finally, no commercial advertising shall be allowed on a wireless personal telecommunications services antenna tower. SECTION 6: WIRELESS PERSONAL TELECONEWNICATIONS SERVICES ANTENNA INSTALLATION: a A. The installation of wireless personal telecommunications services antennas on wireless personal telecommunications services antenna towers need not be reviewed by the governing body of the Village and may be approved by the Building and Zoning Department without a wireless personal telecommunication antenna permit if the wireless personal telecommunications services antenna was previously planned for and approved when the wireless personal telecommunications services antenna tower was approved (i.e., if a wireless personal telecommunications services antenna tower was - Page 5 of 7 Pages - constructed with the thought that it would have three wireless personal telecommunications services antennas of a certain kind and the wireless personal telecommunications services antenna is of that kind and within that number). In addition, a wireless personal telecommunications services antenna permit is not required in the event an existing, approved antenna is damaged and replaced (or replaced as part of a maintenance schedule) with the same type of antenna or an antenna of a smaller, less visible design; however, after such replacement, the Building and Zoning Director shall be notified as soon as possible so that he may determine whether South Florida Building Code permits or inspections are necessary. Except as provided above, the installation of wireless personal telecommunications services antennas must receive a wireless personal telecommunications permit. B. Applications to install a wireless personal telecommunications antenna on a wireless personal telecommunications services antenna tower, or on any other structure shall be submitted to the Building and Zoning Department. C. An application for a "wireless personal telecommunications services antenna permit" shall be received in form equivalent to wireless personal telecommunications services antenna towers, and shall comply with the requirements of Section 2 of this Ordinance. D. If the applicant fails to meet all of the required permitting criteria, it shall be scheduled for consideration at the next available Planning and Zoning Board meeting. E. After consideration by the Planning and Zoning Board, the application shall be submitted to the governing body of the Village for review. The governing body of the Village shall review these applications in accordance with its quasi-judicial procedures. The Village Clerk shall comply with any and all applicable notice provisions. F. No signals, lights, or illumination shall be permitted on a wireless personal telecommunications services antenna unless required by the Federal Communications Commission or Federal Aviation Administration, and no commercial advertising shall be allowed on any wireless personal telecommunications services antenna. G. The wireless personal telecommunications services antenna must be designed to be as visually unobtrusive as possible and stealth designs shall be required whenever possible. The wireless personal telecommunications services antenna must be anchored on the wireless personal telecommunications services antenna tower or to the structure, and the installation must satisfy all requirements of the South Florida Building Code; and, H. The Building and Zoning Department must be advised by the Legal Department that all necessary owners, easement holders, tenants, and other interested parties of the site have consented to the application for a wireless personal telecommunications services antenna permit before the permit is issued. SECTION 7: VARIANCES: The governing body of the Village shall be able to issue variances to the requirements of this Ordinance in accordance with the standards and criteria of the Zoning Code of the Village of Miami Shores. - Page 6 of 7 Pages - SECTION 8: SAVINGS CLAUSE: Should any section, paragraph, sentence, clause, phrase or other part of this Ordinance be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of this Ordinance as a whole or any portion or part thereof, other than the part so declared to be invalid. SECTION 9: CONFLICTING ORDINANCES OR PARTS OF ORDINANCES: All Ordinances or parts of Ordinances in conflict herewith are hereby repealed. SECTION 10: EFFECTIVE DATE: This Ordinance shall take effect immediately upon passage on second reading by the Village Council and signature by the Mayor. PASSED ON FIRST READING by the Village Council this 3 day of January , 1998. PASSED AND ADOPTED ON SECOND READING by the Village Council this?�L day of January , 199 8 SIGNED by the Mayor this 20 day of January , 1998. MAY ATTEST: CITY CLERK APPROVED AS TO FORM: BY: V f ` VII.LAGE ATTORNEY - Page 7 of 7 Pages -