HomeMy WebLinkAbout2018-08 Amending Title 12 by adding Chapter 27, Concerning Wireless Service FacilitiesORDINANCE NO. 8
SERIES 2018
AN ORDINANCE AMENDING TITLE 12 OF THE VAIL TOWN CODE BY
THE ADDITION OF A NEW CHAPTER 27 OF TITLE 12, CONCERNING
WIRELESS SERVICE FACILITIES
WHEREAS, pursuant to the Telecommunications Act of 1996 (the "Act"), local
governments are authorized to regulate the placement, construction and modification of
personal wireless service facilities, provided that any such regulation does not
unreasonably discriminate among providers of functionally equivalent services, or
prohibit, or have the effect of prohibiting the provisions of personal wireless services;
WHEREAS, Section 6409 of the Middle Class Tax Relief and Job Creation Act of
2012 ("Section 6409") requires a local government to approve any eligible request for a
modification of an existing wireless tower or base station that does not "substantially
change" the physical dimensions of such tower or base station;
WHEREAS, the Colorado General Assembly passed House Bill 17-1193, which
also provides certain mandatory procedural requirements and regulations for installation
of small cell facilities within public rights-of-way; and
WHEREAS, the Town Council wishes to establish a procedure for review of
applications for the installation of wireless service facilities within the Town in
compliance with the Act, Section 6409 and House Bill 17-1193.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL, COLORADO, THAT:
Section 1. Title 12 of the Vail Town Code is hereby amended by the addition
of a new Chapter 27, entitled "Wireless Service Facilities," to read as follows:
CHAPTER 27
WIRELESS SERVICE FACILITIES
12-27-1: PURPOSE AND APPLICABILITY:
A Purpose. The purposes of this Chapter are: to allow the
location of wireless service facilities in the Town while protecting the public
health, safety, and general welfare of the community; to act on
applications for the location of wireless service facilities within a
reasonable time; to encourage co -location of wireless service facilities,
and to prevent unreasonable discrimination among providers of
functionally equivalent services.
B. Applicability. This Chapter applies to all WSFs, in addition to
all other applicable provisions of this Code.
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12-27-2: DEFINITIONS:
For purposes of this Chapter, the following terms shall have the following
meanings:
ACCESSORY EQUIPMENT: Equipment, including buildings and
structures, used to protect and enable radio switching equipment, back up
power and other devices incidental to a WSF, but excluding antennae.
ANTENNA: Communications equipment that transmits or receives
electromagnetic radio frequency signals used to provide wireless service.
BASE STATION: A structure or equipment, other than a tower, at a fixed
location that enables FCC -licensed or authorized wireless
communications between user equipment and a communications network,
including equipment associated with wireless communications services,
including radio transceivers, antennae, coaxial or fiber-optic cable, regular
and backup power supplies, and comparable equipment, regardless of
technological configuration (including distributed antenna systems and
small-cell networks), and any structure, other than a tower, to which any of
the equipment described herein is attached.
BUILDING MOUNTED WSF: A WSF that is mounted and supported
entirely on the roof of a legally existing building or structure or on the wall
of a legally existing building or structure.
ELIGIBLE FACILITY REQUEST: A request for approval of the
modification of an existing tower or base station that involves the co -
location of new transmission equipment, the removal of transmission
equipment or the replacement of transmission equipment.
EQUIPMENT STORAGE SHELTER: Buildings, storage shelters, and
cabinets used to house WSF equipment.
FAA: Federal Aviation Administration.
FCC: Federal Communications Commission.
FREESTANDING WSF: A WSF that consists of a stand-alone support
structure such as a tower or monopole, and antennae and accessory
equipment.
MICRO WSF: A WSF that is no larger than twenty-four (24) inches in
length, fifteen (15) inches in width, and twelve (12) inches in height, with
exterior antenna, if any, of no more than eleven (11) inches in length.
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PUBLIC RIGHT-OF-WAY: Any road, street, alley, trail, sidewalk,
easement or right-of-way dedicated to public use, including without
limitation access and utility easements.
SMALL CELL FACILITY: Either a personal wireless service facility as
defined by the federal Telecommunications Act of 1996, or a WSF where:
each antenna is located inside an enclosure of no more than three (3)
cubic feet in volume or, in the case of an antenna that has exposed
elements, the antenna and all of its exposed elements could fit within an
imaginary enclosure of no more than three (3) cubic feet; and primary
equipment enclosures are no larger than seventeen (17) cubic feet in
volume; provided that the following associated equipment may be located
outside of the primary equipment enclosure and, if so located, is not
included in the calculation of equipment volume: electric meter,
concealment, telecommunications demarcation box, ground-based
enclosures, back-up power systems, grounding equipment, power transfer
switch, and cut-off switch. A small cell facility includes a micro WSF.
SMALL CELL NETWORK: A collection of interrelated small cell facilities
designed to deliver wireless service.
SUBSTANTIAL CHANGE: A modification to an existing tower or base
station under the following circumstances:
1. A substantial change in the height of an existing tower or
base station occurs as follows:
a. For a tower outside of a public right-of-way, when the
height of the tower is increased by more than ten percent (10%), or
by the height of one (1) additional antenna array with separation
from the nearest existing antenna not to exceed twenty (20) feet,
whichever is greater.
b. For a tower located in a public right-of-way or a base
station, when the height of the structure increases by more than ten
percent (10%) or by more than ten (10) feet, whichever is greater.
2. Changes in height are measured as follows:
a. When deployments are separated horizontally,
changes in height shall be measured from the original support
structure, not from the height of any existing telecommunications
equipment.
b. When deployments are separated vertically, changes
in height shall be measured from the height of the tower or base
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station, including any appurtenances, as the tower or base station
existed on February 22, 2012.
3. A substantial change in the width of an existing tower or
base station occurs as follows:
a. For a tower outside of public rights-of-way, when the
addition of an appurtenance to the body of the tower protrudes from
the edge of the tower more than twenty (20) feet, or more than the
width of the tower structure at the level of the appurtenance,
whichever is greater.
b. For a tower in a public right-of-way or a base station,
when the addition of an appurtenance to the body of the structure
would protrude from the edge of the structure by more than six (6)
feet.
4. A substantial change also occurs for an existing tower in a
public right-of-way or an existing base station as follows:
a. When the change involves the installation of any new
equipment cabinets on the ground, if no ground cabinets presently
exist; or
b. When the change involves the installation of ground
cabinets that are more than ten percent (10%) larger in height or
overall volume than any existing ground cabinets.
5. A substantial change also occurs for any existing tower or
base station when any of the following are found:
a. When the change involves installation of more than
the standard number of new equipment cabinets for the technology
involved, or more than four (4) new cabinets, whichever is less.
b. When the change entails any excavation or
deployment outside the current site.
c. When the change would defeat the concealment
elements of the eligible support structure.
d. When the change does not comply with conditions
associated with the original approval of the construction or
modification of the tower, base station or base station equipment.
This limitation does not apply if the noncompliance is due to an
increase in height, increase in width, addition of cabinets, or new
excavation that would not exceed the thresholds identified in
subsections (1)-(5)(b) hereof.
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TOWER: A structure built for the sole or primary purpose of supporting
any FCC -licensed or authorized antennae and their associated facilities,
including structures that are constructed for wireless communications
services, including without limitation private, broadcast, public safety
services, unlicensed wireless services and fixed wireless services such as
microwave backhaul.
WIRELESS SERVICE: Data and telecommunications services, including
commercial mobile services, commercial mobile data services, unlicensed
wireless services, and common carrier wireless exchange access
services, as defined by federal law.
WIRELESS SERVICE FACILITY (WSF): A facility for the provision of
wireless services, including a small cell facility, excluding coaxial or fiber-
optic cable that is not immediately adjacent to or directly associated with a
particular antenna.
12-27-3: STANDARDS FOR ALL WSFS:
A. Compliance with law: All WSFs shall meet the current
standards of the FCC and any other applicable law. By adopting this
Section, the Town is not attempting to regulate radio frequency power
densities or electromagnetic fields, which are controlled by the FCC.
B. Verification: Upon a request by the Town at any time, a
WSF owner or operator shall verify that:
1. The WSF complies with current FCC regulations prohibiting
localized interference with reception of television and radio
broadcasts; and
2. The WSF complies with the current FCC standards for
cumulative field measurements of radio frequency power densities
and electromagnetic fields.
C. Applications:
1. An application to locate a new WSF not deemed to be an
eligible facility request shall be approved or denied by the Town
within ninety (90) days of the Town's receipt of a completed
application. This time period may be tolled by mutual agreement.
The time it takes for an applicant to respond to a first request for
additional information will not count toward the ninety (90) day
period set forth herein if the Town notifies the applicant of an
incomplete application.
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2. An application for approval of a WSF shall include all
information regularly required for other development applications, in
addition to the following: a written, narrative statement describing
in detail how the WSF will comply with the standards in this
Chapter; and if requested by the Town for any WSF other than a
small cell facility, photographic simulations showing the proposed
WSF and, if applicable, the structure on which it will be attached.
3. When an application for approval of any WSF is incomplete,
the Town shall provide written notice to the applicant within thirty
(30) days, specifically identifying all missing documents or
information. If an application remains incomplete after a
supplemental submission, the Town shall notify the applicant within
ten (10) days. Second or subsequent notices of incompleteness
may not require the production of documents or information that
were not requested in the original notice of incompleteness.
D. Denial: A final decision by the Town to deny any application
under this Chapter shall be in writing and supported by substantial
evidence contained in a written record.
12-27-4: FREESTANDING WSFS:
A. Design review required: Prior to the location of a
freestanding WSF in any zone district, design approval shall be required
pursuant to Chapter 11 of this Title.
B. Setbacks: A freestanding WSF located within two hundred
fifty (250) feet of property zoned for residential use shall be set back from
each property line one (1) foot of distance for every one (1) foot of height,
plus an additional ten (10) feet. A freestanding WSF located more than
two hundred fifty (250) feet from property zoned for residential use shall
meet the minimum setbacks for buildings and structures in the underlying
zone district.
C. Maximum height: A freestanding WSF, including antennae,
shall not exceed the maximum structure height limit in the underlying zone
district. In no case shall a freestanding WSF, including its appurtenances,
exceed one hundred (100) feet in height.
12-27-5: BUILDING MOUNTED WSFS:
A. Design review required: Prior to the location of a building
mounted WSF in any zone district, design approval shall be required
pursuant to Chapter 11 of this Title.
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B. Equipment: All accessory equipment shall be placed inside
a building if feasible. Equipment storage shelters shall be grouped as
closely as technically possible, and the total area of all accessory
equipment, including storage shelters, shall not exceed four hundred (400)
square feet per WSF.
12-27-6: SMALL CELL FACILITIES:
A. Small cell facilities shall be considered a permitted use in all
zone districts. A permit shall be required for all small cell facilities, and
each small cell facility is subject to review for compliance with this
Chapter; provided that a consolidated application for a single permit may
be filed for a small cell network involving multiple individual small cell
facilities.
B. If a small cell facility (or each small cell facility in a small cell
network) complies with the following criteria, the Town shall issue a
permit:
1. All equipment related to the small cell facility is as
architecturally compatible with the surrounding area as feasible;
2. All electrical, communication, and other wiring including
radios, antennae and backhaul connections, shall be fully
concealed, internal to the structure, where possible and shrouded
in all other instances;
3. The facility shall be sited in a manner that takes into
consideration its proximity to residential structures and residential
district boundaries, uses on adjacent and nearby properties, and
the compatibility of the facility to these uses, including without
limitation the proximity of the facility to first and second story
windows;
4. The facility and any associated equipment shall be designed
and located outside of intersection sight distances and in
accordance with the Town's applicable roadway design criteria; and
5. The facility and any associated equipment shall be designed
to be compatible with the site, with particular reference to design
characteristics that have the effect of reducing or eliminating visual
obtrusiveness.
C. A telecommunications provider or broadband provider may
locate or collocate small cell facilities or small cell networks on light poles,
light standards, traffic signals, or utility poles owned by the Town in public
rights-of-way, subject to the following:
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1. A small cell facility or a small cell network shall not be
located or mounted on an apparatus, pole, or signal with tolling
collection or enforcement equipment attached.
2. A license agreement with the Town shall be required to
address the attachment of small cell facilities to any Town -owned
poles or structures in the right-of-way. The Town shall not request
or receive from a telecommunications provider, in exchange for or
as a condition upon a grant of permission to attach a small cell
facility, any in-kind payment or payment in excess of the amount
that would be authorized if the Town were regulated pursuant to 47
U.S.C. § 224. The license agreement may include design
standards for the small cell facilities.
3. If upon inspection, the Town concludes that a WSF fails to
comply with applicable law and constitutes a danger to persons or
property, upon thirty (30) days' prior written notice to the owner or
operator, the owner or operator shall bring the WSF into
compliance. Upon good cause shown, the Town may extend such
compliance period for not more than ninety (90) days from the date
of said notice. If the owner or operator fails to bring the WSF into
compliance, the Town may remove the WSF at the expense of the
owner or operator.
12-27-7: MICRO WSFS:
A. No permit shall be required for the installation, placement,
operation, maintenance, or replacement of a micro WSF that is suspended
on cable operator -owned cables or lines that are strung between existing
utility poles in compliance with applicable law.
B. Notwithstanding the foregoing, the Town may require a
permit for installation, placement, operation, maintenance, or replacement
of a micro WSF where the installation, placement, operation,
maintenance, or replacement:
1. Involves working within a highway travel lane or requires the
closure of a highway travel lane;
2. Disturbs the pavement or a shoulder, roadway, or ditch line;
3. Includes placement on limited access rights-of-way; or
4. Requires any specific precautions to ensure the safety of the
traveling public; the protection of public infrastructure; or the
operation of public infrastructure; and such activities either were not
authorized in, or will be conducted in a time, place, or manner that
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is inconsistent with, the approval terms of the existing permit for the
facility or structure upon which the micro WSF is attached.
12-27-8: ELIGIBLE FACILITY REQUESTS:
A. Time: An eligible facility request shall be approved or denied
by the Town within sixty (60) days of the Town's receipt of the initial
application. This time period may be tolled only by mutual agreement or
when an application is incomplete. If the Town fails to approve or deny an
eligible facility request within sixty (60) days of the Town's receipt of the
completed application (accounting for any tolling), the request shall be
deemed granted; provided that this automatic approval shall become
effective only upon the Town's receipt of written notice from the applicant
after the review period has expired (accounting for any tolling) indicating
that the application has been deemed granted.
B. Approval: The following standards shall apply to an eligible
facility request, in lieu of any other provisions of this Chapter:
1. The Town shall approve an eligible facility request that does
not substantially change the physical dimensions of a tower or base
station.
2. The Town may approve an eligible facility request that
substantially changes the physical dimensions of a tower or base
station if it complies with the remainder of this Code.
3. The Town may condition the approval of any eligible facility
request on compliance with generally applicable building, structural,
electrical, and safety codes or with other laws codifying objective
standards reasonably related to health and safety.
Section 2. Severabilitv. If any part, section, subsection, sentence, clause or
phrase of this ordinance is for any reason held to be invalid, such decision shall not
affect the validity of the remaining portions of this ordinance; and the Council hereby
declares it would have passed this ordinance, and each part, section, subsection,
sentence, clause or phrase thereof, regardless of the fact that any one or more parts,
sections, subsections, sentences, clauses or phrases be declared invalid.
Section 3. Retroactivity. The amendment of any provision of the Town Code
as provided in this ordinance shall not affect any right which has accrued, any duty
imposed, any violation that occurred prior to the effective date hereof, any prosecution
commenced, nor any other action or proceeding as commenced under or by virtue of
the provision amended. The amendment of any provision hereby shall not revive any
provision or any ordinance previously repealed or superseded unless expressly stated
herein.
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Section 4. Repeal. All bylaws, orders, resolutions and ordinances, or parts
thereof, inconsistent herewith are repealed to the extent only of such inconsistency.
This repealer shall not be construed to revise any bylaw, order, resolution or ordinance,
or part thereof, theretofore repealed.
INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED
PUBLISHED ONCE IN FULL ON FIRST READING this 3rd day of April, 2018 and a
public hearing for second reading of this Ordinance is set for the 3`d day July, 2018, in
the Council Chambers of the Vail Municipal Buildi i • ail, • lor_ do.
ve Chapi ' , May
EAD"!' '' PROVED ON SECOND READING AND ORDERED UBLISHED
this 3r° day of July, 2018.
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