ORDINANCE NO. 014-19
AN ORDINANCE AMENDING CHAPTER 5.5 OF THE CODE OF ORDINANCES OF THE CITY OF OPELIKA, ALABAMA BY REPEALING ARTICLE III ENTITLED “WIRELESS TELECOMMUNICATIONS FACILITIES SITING” AND SUBSTITUTING IN LIEU THEREOF A NEW ARTICLE III THEREOF ENTITLED “WIRELESS
TELECOMMUNICATIONS FACILITIES LAND USE AND SITING” TO REGULATE PERMITTING, SITING AND PLACEMENT OF WIRELESS TELECOMMUNICATIONS FACILITIES AND ACCESSORY EQUIPMENT AND THE
PLACEMENT AND USE OF ASSOCIATED SUPPORT STRUCTURES WITHIN THE CITY OF OPELIKA OUTSIDE THE PUBLIC RIGHTS-OF-WAY; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEALER; PROVIDING PENALTIES AND PROVIDING AN EFFECTIVE DATE
BE IT ORDAINED by the City Council (the “City Council”) of the City of Opelika, Alabama (the “City”) as follows:
WHEREAS, the City Council finds and determines that wireless telecommunications
facilities may pose significant concerns to the health, safety, welfare, character and environment of the City of Opelika (the “City’) and its inhabitants, and that the Telecommunications Act of 1996 and related authorities confirm the City’s authority concerning the placement, construction (including height) and modification of such facilities; and
WHEREAS, the City Council enacted Article III of Chapter 5.5 of the Opelika Municipal Code in 2000, which regulates wireless telecommunications facilities; and
WHEREAS, the City wishes to update Article III of Chapter 5.5 of the Opelika Municipal Code based on current telecommunications trends and recent changes in applicable laws and regulations, in order to protect and promote public health, safety and welfare; and
WHEREAS, the City desires to establish a comprehensive set of siting and permitting
requirements addressing the placement of wireless telecommunications facilities and accessory equipment within the City outside of the public rights-of-way; and
WHEREAS, the City desires to establish a fair and efficient process for review and approval of applications; assure an integrated, comprehensive review of environmental impacts and protect the rights of the City and its residents, to the extent allowed under law.
Section 1. Replacement of Article III of Chapter 5.5 of the Code of Ordinances, adopting Sections 5.5-301 through 5.5-337. That current Article III of Chapter 5.5 of the Code of Ordinances of the City of Opelika entitled “Wireless Telecommunications Facilities Siting” is hereby repealed in its entirety and replaced with new Article III entitled “Wireless Telecommunications Facilities Land Use and Siting”, consisting of Sections 5.5-301 through 5.5-337, which Article shall read as follows:
Article III — Wireless Telecommunications Facilities Land Use and Siting.
Sec. 5.5-301. – Purpose and legislative intent.
(a) The purpose of this Article is to establish a comprehensive set of siting and permitting requirements addressing the placement of wireless telecommunications facilities and accessory equipment and the placement structures within the City outside of the public rights-of-way. The placement of wireless facilities within the public rights-of-way shall be governed by Article IV of this Chapter 5.5.
(b) These regulations are intended to provide for the managed development of
wireless telecommunications facilities, in a manner that recognizes the community benefits of wireless telecommunications technology and that reasonably accommodates the needs of citizens and wireless providers in accordance with federal and state rules and regulations. At the same time, these regulations are intended to protect the community from potential adverse impacts
of such facilities, including but not limited to noise, traffic, aesthetic, safety, and other impacts over which the City has purview, and to preserve the visual character of the established community through appropriate design, siting, screening, maintenance, and location standards.
(c) This Article does not address civil relationships between private landowners and owners or operators of wireless telecommunications facilities and does not affect the need to obtain all necessary property rights from private landowners for the placement of wireless telecommunications facilities.
(d) This Article does not regulate the siting of wireless telecommunications
facilities within state rights-of-way except to the extent that the City has the authority to regulate the placement and location of wireless telecommunications facilities within a state right-of-way.
Sec. 5.5-302. – Title.
This Article may be known and cited as the “Wireless
Telecommunications Facilities Land Use and Siting Ordinance for the City of
Opelika.”
Sec. 5.5-303. – Definitions.
For purposes of this Article, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number and words in the singular number include the plural number. The word “shall” is always mandatory, and not merely discretionary.
“Accessory equipment” means any equipment, other than an antenna, used in conjunction with a wireless telecommunications facility. It includes but is not limited to cabinets, optical converters, power amplifiers, radios, multiplexers, radio units, fiber optic and coaxial cables located on a support structure, wires, meters, pedestals, power switches, junction boxes, batteries, power supplies and related equipment located upon or in the immediate vicinity of the support structure.
“Accessory facility” or “accessory structure” means any facility or structure serving or being used in conjunction with wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including but not limited to utility or transmission equipment, storage sheds or cabinets.
“Antenna” means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.
“Applicant” means any person submitting an application to the City for a special
use permit for wireless telecommunications facilities.
“Application” means all necessary and required documentation that an applicant
submits in order to receive a special use permit for placement of wireless telecommunications facilities under this Article.
“Base Station” means a structure or equipment at a fixed location that supports or houses wireless telecommunications facilities used to provide wireless service
between user equipment and a communications network.
“City” means the City of Opelika, Alabama, and its police jurisdiction.
“Collocate” means to install, mount, maintain, modify, operate or replace wireless facilities on or adjacent to an existing or replacement support structure.
“Completed application” means an application that contains all information
and/or data requested in the application form and this Article, which is necessary
to enable the Council to evaluate the merits of the application and to make an
informed decision with respect to the effect and impact of wireless telecommunications facilities on the City in the context of the permitted land use for the particular location requested.
“Concealment” means a physical design or treatment that minimizes adverse visual impacts upon the view from land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of a wireless telecommunications facility.
“Council” means the City Council of the City of Opelika, Alabama.
“EPA” means the state and/or Federal Environmental Protection Agency.
“Equipment Cabinet” means an enclosure that increases the cumulative volume of the existing wireless equipment, exclusive of antennas, that contains the proposed improvements, personal property, or facilities for permitted uses
including: radio receivers, transmitters, related facilities, related cables and utility
lines, location-based power source (including a battery), the electrical meter and
any other equipment necessary for the operation of the base station.
“FAA” means the Federal Aviation Administration.
“FCC” means the Federal Communications Commission.
“Free standing tower” means a tower that is not supported by guy wires and ground anchors or other means of attached or external support.
“Height” means, when referring to a tower or wireless support structure, the distance measured from the pre-existing grade level to the highest point on the tower or structure, including any antenna or lightning protection device.
“Historic district” means the historic downtown commercial area as designated in
Ordinance No. 151-01.
“Lattice tower” means a self-supporting communications tower with three (3) or
more sides of open-framed supports.
“Modification” or “Modify” means the addition, removal or change of any of the physical and/or visually discernable components or aspects of a wireless telecommunications facility, including but not limited to antennas, cabling, equipment shelters, landscaping, fencing, utility feeds, the color or materials of any visually discernable components, vehicular access, parking, and/or an upgrade or change-out of equipment for better or more modern equipment.
“Monopole tower” means a cylindrical self-supporting tower constructed as a single spire.
“NIER” means non-ionizing electromagnetic radiation.
“Person” means any individual, corporation, estate, trust, partnership, joint stock
company, association of two (2) or more persons having a joint common interest, or any other entity.
“Repair and Maintenance” means repair, maintenance or upgrade of a wireless
telecommunications facility that does not i) increase the height of the structure, ii)
alter the physical profile, iii) change the loading, iv) change the RF emissions
levels, v) increase the footprint of the facility, or vi) otherwise exceed the
conditions of the permit.
“Special use permit” means the official document or permit issued by the City by
which an applicant is authorized to construct and use wireless telecommunications
facilities consistent with this Article.
“State” means the State of Alabama.
“Substantial Modification” or “Substantial Change” means:
(1) For towers:
a) The proposed collocation or modification increases the overall height more than ten percent (10%) or the height of one additional antenna array not to exceed twenty (20) feet (whichever is greater); or
b) The proposed collocation or modification increases the width more than twenty (20) feet from the edge of the wireless tower or the width of the wireless tower at the level of the appurtenance (whichever is greater); or
c) The proposed collocation or modification involves the
installation of more than the standard number of equipment cabinets for the technology involved, not to exceed four (4) new cabinets; or
d) The proposed collocation or modification involves excavation outside the current boundaries of the leased or owned property surrounding the wireless tower, including any access or utility easements currently related to the site.
(2) For base stations:
a) The proposed collocation or modification increases that overall height more than ten percent (10%) or ten (10) feet (whichever is greater); or
b) The proposed collocation or modification increases the width more than six (6) feet from the edge of the base station; or
c) The proposed collocation or modification involves the
installation of any new equipment cabinets when there are no existing equipment cabinets; or
d) The proposed collocation or modification involves the
installation of any new equipment cabinets that are ten percent (10%) larger in height or volume than any existing cabinets; or
e) The proposed collocation or modification involves excavation outside the area in proximity to the structure and other transmission equipment already deployed on the ground.
(3) In addition, for all towers and base stations:
a) The proposed collocation or modification would defeat the existing concealment elements of the support structure ad determined by the City; or
b) The proposed collocation or modification violates a prior condition of approval as regards to height, width, number and size of equipment cabinets or any excavation that is inconsistent
with the thresholds for a substantial change described in this section.
(4) As to all measurements set forth herein, the following principles shall govern:
a) Any threshold or limits of height increase is cumulative or collective.
b) For sites with horizontally separated deployments, the
cumulative limit is measured from the originally permitted
support structure without regard to any increases in size due to wireless equipment not included in the original design.
c) For sites with vertically separated deployments, the cumulative limit is measured from the permitted site dimensions as they existed on February 22, 2012, the date of passage of the Middle-
Class Tax Relief and Job Creation Act of 2012 Section 6409(a).
“Support Structure” means a tower, base station, or other structure or building of
any type whatsoever, including a utility pole, that is used, or is to be used, to support a wireless telecommunications facility.
“Survey” means a survey containing the seal and certification of a properly licensed professional engineer or professional land surveyor.
“Temporary” means in relation to all aspects and components of this Article, something intended to, or that does, exist for fewer than ninety (90) days.
“Tower” means any structure designed primarily to support an antenna for the provision of wireless service, or that is designed primarily to support equipment for transmission of broadcast television service but that also will support an antenna for the provision of wireless service.
“Wireless Infrastructure Provider” means any person that builds or installs wireless telecommunications facilities or support structures primarily intended to support wireless telecommunications facilities, but that is not a provider of wireless service at that site.
“Wireless Service” means any voice, video or data communications services, whether at a fixed location or mobile, provided through the use of wireless telecommunications facilities located within the City.
“Wireless Provider” means a wireless infrastructure provider or wireless service provider that has received and maintains a permit under this Article.
“Wireless Telecommunications Facility” means without limit, and as the context
may require, equipment at a fixed location that enables wireless services between
user equipment and a communications network, including but not limited to
antennas; accessory equipment; free standing towers, guyed towers, monopoles,
and similar structures; accessory structures; support structures for which antenna
support is a secondary use, such as a building, church steeple, silo, water tower,
sign or other similar structure; and other such facilities. The term wireless
telecommunications facility does not include a wireless facility located, or to be
located, within the City’s public rights-of-way that is subject to Article IV of this
Chapter.
Sec. 5.5-304 – Special use permit required.
No person may undertake any of the following activities without first submitting an application for, and receiving, a special use permit under this Article:
(a) The construction of any new wireless telecommunications facility within the City, including a new tower;
(b) A substantial modification of a wireless telecommunication facility or support structure; or
(c) Any modification of a wireless facility or support structure that is deemed by the City not to be repair and maintenance, as defined in
Section 5.5-303. A modification that is not a d modification shall require a special use permit, an application for which shall be
granted by the City.
Sec. 5.5-305. – Exclusions.
The following shall be exempt from the requirements of this Article:
(a) Any facilities or locations expressly exempt from the City’s siting, building, zoning or permitting authority.
(b) Wireless telecommunications facilities to be located within the public rights-of-way.
(c) Facilities, except towers, used exclusively for non-commercial radio and private citizen’s bands, licensed amateur radio and other
similar non-commercial telecommunications.
Sec. 5.5-306. – Special use permit application and other requirements.
(a) All applicants for a special use permit for wireless telecommunications
facilities or any modification of such facility shall comply with the requirements set forth in this section. The Council is the officially designated agency or body of the community to whom applications for a special use permit for wireless telecommunications facilities shall be made, and that is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting, recertifying or not recertifying, or revoking special use permits for wireless telecommunications facilities. The Council may at its discretion delegate or designate other official departments or agents of the City to accept, review,
analyze, evaluate and make recommendations to the Council with respect to the granting or not granting, recertifying or not recertifying or revoking special use permits for wireless telecommunications facilities.
(b) An applicant shall initiate a pre-application meeting, which may be held either on site or telephonically as the City deems appropriate. The purpose of the pre-application meeting will be to preliminarily address issues relating to the application, and to expedite the review and permitting process. A pre-application meeting may include a site visit if required by the City. Expected requests for waiver, if any, should be raised at the pre-application meeting. Any reasonable
costs of a City consultant to prepare for and attend the pre-application meeting
will be borne by the applicant.
(c) An application for a special use permit for wireless telecommunications
facilities shall be signed on behalf of the applicant by the person preparing the application and with knowledge of the contents and representations made therein, attesting to the truth and completeness of the information. The landowner, if different than the applicant, shall also sign the application. At the discretion of the Council, any false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.
(d) Applications not meeting the requirements stated herein or which are otherwise incomplete may be rejected by the Council.
(e) The applicant shall include a statement in writing that:
(1) The applicant’s proposed wireless telecommunications facilities will be maintained in a safe manner and in compliance with all conditions of the special use permit, without exception, unless specifically granted relief by the Council in writing, as well as all applicable and permissible local codes, ordinances, and regulations, including any and all applicable county, state and federal ordinances, rules, and regulations; and
(2) The construction of the wireless telecommunications facilities is legally permissible, including, but not limited to the fact that the
applicant is authorized to do business in the state of Alabama.
(f) All applications for the placement of new wireless telecommunications facilities or substantial modification of existing wireless telecommunications facilities shall be accompanied by a report containing the information set forth below. The report shall be signed by a licensed professional engineer registered in the state. Where this section calls for certification, such certification shall be by a qualified Alabama state licensed professional engineer. The application shall include, in addition to any other information required under this Article or reasonably required by the City, the following information:
(1) Name, address and phone number of the person preparing the report;
(2) Name, address, and phone number of the property owner, operator,
and applicant, to include the legal form of the applicant;
(3) Postal address and tax map parcel number of the property;
(4) Zoning district or designation in which the property is situated;
(5) Size of the property stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines reflected on a survey;
(6) Location of nearest residential structure or residential zoning district;
(7) Location of nearest habitable structure;
(8) Location, size and height of all structures on the property which is the subject of the application;
(9) Location, size and height of all proposed and existing antennae and all appurtenant structures;
(10) Type, locations and dimensions of all proposed and existing landscaping, and fencing;
(11) The number, type and design of the antenna(s) proposed and the basis for the calculations of a tower’s capacity to accommodate multiple users;
(12) The make, model and manufacturer of any proposed tower and antenna(s);
(13) A description of the proposed tower or rooftop and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above pre-existing grade, materials, color and lighting;
(14) The frequency, modulation and class of service of radio or other transmitting equipment;
(15) Transmission and maximum effective radiated power of the antenna(s);
(16) Direction of maximum lobes and associated radiation of the antenna(s);
(17) Applicant’s proposed maintenance and inspection procedures and related system of records;
(18) Certification that NIER levels at the proposed site are within the threshold levels adopted by the FCC; If antennas will be located on a rooftop, please attach an RF routine environmental report with a description of any steps that have been or will be taken to prevent the aggregate RF from exceeding exposure limits. Include information regarding signage, training for workers accessing antenna areas, and precautions against hazards;
(19) Certification that the proposed antenna(s) will not cause interference with existing devices, which certification shall be reviewed by a licensed engineer;
(20) A copy of the FCC license applicable to the use of the proposed wireless telecommunications facilities;
(21) Certification that a topographic and geomorphologic study and analysis has been conducted, and that, taking into account the subsurface and substrata, and the proposed drainage plan, the site is adequate to assure the stability of the proposed wireless telecommunications facilities on the proposed site;
(22) Propagation studies of the proposed site and all adjoining proposed, in-service or existing sites;
(23) A written disclosure of any agreement in existence prior to
submission of the application that would limit or preclude the ability
of the applicant to share any new tower that it constructs;
(24) A certification and statement that appropriate space has been reserved on the tower for public safety usage at no cost to the public safety entity. The City will provide the specific requirements for such public safety usage, if any, during or promptly after the pre-application meeting;
(25) In the case of a proposed new tower, a written report demonstrating applicant’s efforts to collocate upon existing support structures. Copies of any written requests and responses shall be provided;
(26) Written certification that the facility, foundation and attachments are designed and will be constructed to meet all local, county, state and federal structural requirements for loads, including wind and ice loads, as required by the currently adopted building code;
(27) If the justification of a proposed new site relates to lack of capacity, submit evidence of capacity exhaustion of the current serving site(s).
Such evidence shall demonstrate that the capacity at the serving site will be so diminished within 18 months of the application that it will
have a substantial negative impact on service provided to users within the area if new capacity is not added. Examples of this may be time of day download speeds, utilization over time, or cumulative KPI reports from the serving site.
(28) If requested by the City, the applicant shall furnish a visual impact assessment which shall include:
a) A “zone of visibility map” which shall be provided in order to determine locations where the tower may be seen.
b) Pictorial representations of “before and after” views from key viewpoints both inside and outside of the City, including but not limited to state highways and other major roads; state and local parks; other public lands; historic districts; preserves and historic sites normally open to the public; and from any other location where the site is visible to a large number of visitors, travelers or residents. The City, acting in consultation with its
consultants or experts, will provide guidance concerning the appropriate key sites at a pre-application meeting.
c) An assessment of the visual impact of the tower base, guy wires and accessory buildings from abutting and adjacent properties and streets.
(g) Any and all representations made on the record by the applicant to the Council during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the Council.
(h) The applicant shall submit to the Council a letter of intent committing the owner of the proposed new tower, and his/her successors in interest, to negotiate in good faith for shared use of the proposed tower by other telecommunications providers in the future. This letter shall be filed with the Council. Failure to abide
by the conditions outlined in the letter may be grounds for revocation of the special use permit. The letter shall commit the new tower owner and their successors in interest to:
(1) Respond within sixty (60) days to a request for information from a potential shared-use applicant;
(2) Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers;
(3) Allow shared use of the new tower if another telecommunications provider agrees in writing to pay reasonable charges. The charges may include, but are 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, less
depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic
interference.
(i) If required by the City, in order to better inform the public in the case of a
new telecommunications tower, the applicant shall prior to a public hearing on the application, hold a “balloon test” as follows: Applicant shall arrange to fly, or raise upon a temporary mast, a minimum of a three (3) foot diameter brightly
colored balloon at the maximum height of the proposed new tower. The dates, (including a second date, in case of poor visibility on the initial date) times and
location of this balloon test shall be advertised, by the applicant, at seven (7) and
fourteen (14) days in advance of the first test date in a newspaper with a general
circulation in City and agreed to by the Council. The applicant shall inform the Council, in writing, of the dates and times of the test, at least fourteen (14) days in advance. The balloon shall be flown for at least eight (8) consecutive hours sometime between 7:00 am and 4:00 p.m. of the dates chosen. The primary date shall be on a weekend, but the second date, in case of poor visibility on the initial date, may be on a week day.
Sec. 5.5-307. – Application fee.
(a) An application for special use permit for a new tower, or substantial modification of a tower or support structure, shall be accompanied by payment of a nonrefundable application fee of five thousand dollars ($5,000.00) to the City.
(b) An application for special use permit for collocation on an existing tower or support structure, where no increase in height of the tower or structure, nor substantial modification, is proposed, shall be accompanied by payment of a nonrefundable application fee of two thousand dollars ($2,500.00).
(c) No application fee is required to recertify a special use permit, unless there
has been a modification of the wireless telecommunications facilities since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of a substantial modification, the fees provided in subsection (a) shall apply, and in the case of a non-substantial modification, the fees in provided in subsection (b) shall
apply.
(d) Application fees set forth in this section shall include the cost of any required building permit.
Sec. 5.5-308. – Retention of expert assistance and reimbursement by applicant.
(a) The Council may hire a consultant to assist the Council in reviewing and
evaluating the application and any requests for recertification.
(b) If required by the City, an applicant shall deposit with the City funds sufficient to reimburse the City for all reasonable costs of consultant evaluation in
connection with the review of any application. The initial deposit shall be seven
thousand five hundred dollars ($7,500.00). These funds shall accompany the
filing of an application, and the City will maintain a separate escrow account for all such funds. A City consultant under this section shall bill or invoice the City no less frequently than monthly for its services in reviewing the application and performing its duties. If at any time during the review process this escrow account has a balance of less than two thousand five hundred dollars ($2,500.00) the applicant shall immediately, upon notification by the City, replenish said escrow account so that it has a balance of at least two thousand five hundred dollars ($2,500.00). Such additional escrow funds must be deposited with the City before any further action or consideration is taken on the application. In the event that the amount held in escrow by the City is more than the amount of the actual billing or invoicing at the conclusion of the review process, the difference shall be promptly refunded to the applicant.
Sec. 5.5-309. – Public hearing required.
(a) Prior to the approval of any application for a special use permit under this Article, a public hearing shall be held by the Council, notice of which shall be published in a newspaper of general circulation within the City no less than ten (10) calendar days prior to the scheduled date of the public hearing. The applicant, at least three (3) weeks prior to the date of said public hearing, shall provide to the City names and address of all landowners whose property is located within fifteen hundred (1,500) feet of any property line of the lot on which the new wireless telecommunications facilities are proposed to be located, and shall certify that the applicant has provided notice to said landowners of the public hearing.
(b) The Council shall schedule the public hearing referred to in subsection (a)
of this section once it finds the application is complete. The Council, at any stage
prior to issuing a special use permit, may require such additional information as it
deems necessary.
(c) The above provisions notwithstanding, if the application is for a special use
permit to collocate on an existing tower, involving no substantial modification, no
public hearing will be required prior to disposition of the application.
Sec. 5.5-310. – Action on an application for a special use permit for wireless telecommunications facilities.
(a) The Council will undertake a review of an application pursuant to this Article in a timely fashion, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public’s interest and need to be involved, and the applicant’s desire for a
timely resolution.
(b) Under normal circumstances, the Council will make its final decision to
approve or deny an application made under this Article within the following timeframes, subject to such deadlines being reset or tolled in the event of an
incomplete or deficient application:
(i) Review of an application to collocate a wireless
telecommunications facility using an existing support structure: 90 days.
(ii) Review of an application to deploy a wireless telecommunications facility using a new support structure, or placement of a new tower: 150 days.
(c) The Council may refer any application or part thereof to any advisory or other committee for a nonbinding recommendation.
(d) Except for necessary building permits, and subsequent certificates of compliance, once a special use permit has been granted hereunder, no additional permits or approvals from the City, such as site plan or zoning approvals, shall be
required by the City for the wireless telecommunications facilities covered by the
special use permit.
(e) After the public hearing and after formally considering the application, the
Council may approve and issue, or deny, a special use permit. Its decision shall be
in writing and shall be supported by substantial evidence contained in a written
record. The burden of proof for the grant of the permit shall always be upon the
applicant.
(f) The City reserves the right to deny an application if any of the following
conditions exist:
(i) The applicant has not demonstrated that the application conforms to the provisions of this Article and the Opelika Municipal Code, including design guidelines established pursuant to this Article.
(ii) The design or location does not comply with applicable state and federal laws and regulations.
(iii) The applicant is in default of its obligation to pay to the City fees imposed by this Chapter.
(iv) The design does not meet standards related to technical, structural, safety or construction best practices.
(v) The applicant is not authorized to conduct business in the State of Alabama.
(vi) The applicant has failed within the prior three (3) years to comply or is presently not in compliance with requirements of this Chapter with regard to another wireless communications facility that is not the subject of the applicant in question.
(g) If the Council approves the special use permit for wireless telecommunications facilities, the applicant shall be notified of such approval in writing within ten (10) calendar days of the Council’s action, and the special use permit shall be issued within thirty (30) days after such approval.
(h) If the Council denies the special use permit for wireless telecommunications facilities, then the applicant shall be notified of such denial in writing within ten (10) calendar days of the Council’s action.
Sec. 5.5-311. Aesthetic requirements
(a) All wireless telecommunications facility applications shall demonstrate
that the facility will be placed in a manner that minimizes any adverse visual effect on the environment and its character, and from the residences in the area of the wireless telecommunications facilities sites. This shall include but is not
limited to a landscaping plan. The applicant shall demonstrate and provide in writing and/or by drawing how it shall effectively screen from view its proposed wireless telecommunications facilities base and all related facilities and accessory structures. The Council may require the support structure to be less visually obtrusive by use of screening, coloring, stealth design, or other visual mitigation options, after considering the height of the structure, topography, existing vegetation and environmental features, and nearby residential properties.
(b) Both the wireless telecommunications facility and any and all accessory
facilities shall use building materials, colors and textures designed to blend with
the structure to which it may be affixed and/or to harmonize with the natural surroundings.
(c) Towers shall be of a galvanized finish or painted with a rust-preventive
paint of an appropriate color to harmonize with the surroundings as approved by
the Council and shall be maintained in accordance with the requirements of this
Article and prudent industry standards.
(d) Associated equipment must be located in an unmanned building, equipment cabinet, or equipment room in an existing building.
(e) An equipment building must satisfy the following standards:
(i) It is a maximum of 560 square feet in area; however, a single equipment building in excess of 560 square feet, located at ground level, may be used if (a) the overall maximum square footage is 1,500 square feet and the maximum height is 12 feet, and (b) the building is used for more than one telecommunications provider operating from the same monopole or tower.
(ii) It is a maximum of 14 feet in height, including the support structure for the equipment building.
(iii) If the equipment building is greater than 4 feet in height and is in a residential zone, or the nearest abutting property is in a residential zone, the building must be faced with brick or other material compatible with the surrounding neighborhood on all sides.
(f) If an equipment cabinet and any supporting platform are greater than 4 feet in height, and service an antenna on existing structure that is not a utility pole, streetlight pole, or approved parking lot light pole, and if the existing structure is in a residential zone, or the nearest abutting property to the existing structure is in a residential zone, then the equipment must be surrounded by landscaping of at least 3 feet in height.
Sec. 5.5-312– Undergrounding of utilities
All utilities serving wireless telecommunications facilities sites shall be installed underground and in compliance with all ordinances, rules and regulations of the City, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate. The Council may waive or vary the requirements of underground installation of
utilities whenever, in the opinion of the Council, such variance or waiver shall not
be detrimental to the health, safety, general welfare and environment, including
the visual and scenic characteristics of the area.
Sec. 5.5-313 — Access to site.
At a tower site, an access road and parking may be required to assure adequate emergency and service access. Maximum use of existing roads, whether
public or private, shall be made to the extent practicable. Any road construction shall at all times minimize ground disturbance and vegetation-cutting. Road grades shall closely follow natural contours to assure minimal visual disturbance
and reduce soil erosion.
Sec. 5.5-314 — Compliance with applicable standards; other necessary authorizations.
(a) A holder of a special use permit granted under this Article shall construct,
operate, maintain, repair, provide for removal of, modify or restore the permitted wireless telecommunications facilities in strict compliance with all current technical, safety and safety-related codes adopted by the City, county, state, or United States, including but not limited to the most recent editions of the National
Electrical Safety Code and the National Electrical Code, recommended practices
of the National Association of Tower Erectors, applicable construction, building,
electrical, fire, safety, health, and land use codes, and workmanlike industry practices. In the event of a conflict between or among any of the preceding the more stringent shall apply.
(b) A holder of a special use permit granted under this Article shall obtain, at
its own expense, all permits, licenses, or other authorizations required by applicable rule, regulation or ordinance, and must maintain the same, in full force and effect, for as long as required by the City or other governmental entity or agency having jurisdiction over the applicant.
Sec. 5.5-315. – Location of wireless telecommunications facilities.
(a) Applicants for wireless telecommunications facilities shall place said
wireless telecommunications facilities in accordance with the following priorities,
one (1) being the highest priority and six (6) being the lowest priority:
(1) Collocation upon existing macro-cell towers or other tall support structures;
(2) Collocation upon other existing towers or support structures;
(3) On a site with existing wireless telecommunication facilities or structures;
(4) On City-owned properties;
(5) On other property within the jurisdiction of the City;
(6) On properties in designated historic districts, restricted overlay districts, or areas zoned for residential use.
(b) If the proposed property site is not the highest priority listed above, a detailed explanation must be provided as to why a site of a higher priority was not selected, demonstrating the reason or reasons why such a permit should be granted for the proposed site, and the hardship that would be incurred by the applicant if the permit were not granted for the proposed site.
(c) Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the Council may disapprove a proposed location or application if the proposed location conflicts with the historic nature of a neighborhood or historical district or conflicts with a specific zoning or land use designation.
(d) No Construction on Private Property in Residential District. No new
tower may be built upon private property in a single family residentially zoned
district or neighborhood, or within one-thousand feet (1,000’) of the border of a
single family residentially zoned district or neighborhood, or within a historic
district, unless the applicant provides evidence to the satisfaction of the City
demonstrating i) that a new tower as proposed is necessary because no reasonable
alternative or combination of alternatives exists; ii) that the intended area cannot
be served from outside of the district or sensitive area without a new tower; iii)
that no existing or previously approved facility can reasonably be used for
antenna placement; and iv) that not to permit a new tower or other support
structure would effectively prohibit service. This subsection shall not prohibit the
installation of wireless antennas and accessory equipment upon and within
existing buildings, such as church steeples, provided such installation is concealed
or camouflaged to the satisfaction of the Council. This subsection shall not
prohibit placement of wireless facilities within the public rights-of-way in such
areas, subject to the requirements of Article IV of this Chapter.
(e) Notwithstanding the above, the Council may approve any proposed site,
provided that the Council finds that the proposed site is consistent with the
purposes of this Article and the City’s obligation to protect the health, safety and
welfare of the City and its inhabitants.
(f) The applicant shall in writing identify and disclose the number and locations
of any additional sites that the applicant has been, is, or will be considering, reviewing or planning for placement of wireless telecommunications facilities within the City, and all municipalities adjoining the City, for a two-year period following the date of the application.
Sec. 5.5-316 Attachments to buildings
To preserve and protect the nature and character of the area, for any attachment to
a building or other structure with an architectural face, antennas shall be mounted
on the face without increasing the height of the building or other structure, unless
it can be demonstrated that such placement will prohibit or have the effect of
prohibiting the provision of service. If antennas are required to be mounted above
the roof-line of any building, the applicant must include a plan to camouflage the
antennas. Notwithstanding the foregoing, and subject to all other requirements of
this Article:
An antenna and a related unmanned equipment building or cabinet may be installed on a rooftop, if a building is a minimum height of:
(i) 50 feet in any residential zone, and must be mounted in an antenna enclosure the same color or design as the building; or
(ii) 20 feet in any commercial or industrial zone and must be mounted in an antenna enclosure the same color or design as the building.
Sec. 5.5-317. – Shared use of wireless telecommunications facilities and structures.
Any proposed new tower shall be structurally designed to accommodate at least two (2) additional antenna arrays equal to those of the applicant and located as close to the applicant’s antenna as possible without causing interference. This requirement may be waived, provided that the applicant, in writing, demonstrates
that the provision of future shared usage of the tower is not technologically feasible, or is commercially impracticable and creates an unnecessary and unreasonable burden.
Sec. 5.5-318. – Height of telecommunications tower(s).
(a) Unless waived by the Council upon good cause shown, the maximum
height of any tower shall be one hundred (100) feet.
(b) The maximum height of any tower and attached antennas constructed after the effective date of this Article shall not exceed that which shall enable operation
without artificial lighting of any kind, in accordance with municipal, county, state,
and/or any federal statute, code, rule or regulation.
Sec. 5.5-319. – Lighting of wireless telecommunications facilities.
(a) Wireless telecommunications facilities shall not be artificially lighted or
marked, except as required by this Article or other regulatory authority.
(b) If lighting is required, applicant shall provide a detailed plan for lighting as
unobtrusive and as is permissible under state and federal regulations. The City
may require applicant to provide an artist’s rendering or other visual
representation showing the effect of light emanating from the site on neighboring
habitable structures within fifteen hundred (1,500) feet of all property lines of the
parcel on which the wireless telecommunications facility is located.
Sec. 5.5-320. – Reserved.
Sec. 5.5-321. – Security of wireless telecommunications facilities.
Unless waived by Council, all wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner which prevents unauthorized access. Specific requirements are as follows:
(1) All antennas, towers and other supporting structures, including guy wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or run into; and
(2) Transmitters and telecommunications control points must be installed such that they are readily accessible only to persons authorized to operate or service them.
Sec. 5.5-322. – Signage.
Unless waived by Council, wireless telecommunications facilities shall contain a sign no larger than four (4) square feet to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities. The sign shall contain the name(s) of the owner(s) and operator(s) of the antenna(s) as well as emergency phone number(s). The sign shall be located so as to be visible from the access point of the site. The sign shall not be lighted unless the Council shall have allowed such lighting or unless such
lighting is required by applicable provisions of ordinance. The sign shall be
approved by the Council before installation. No other signage, including advertising, shall be permitted on any facilities, antennas, antenna supporting structures or antenna towers, unless otherwise required by law.
Sec. 5.5-323. – Lot size and setbacks.
Wireless telecommunications facilities shall be located with a minimum
setback from any property line a distance equal to the height of the wireless
telecommunications facility or the existing setback requirement of the underlying
zoning district, whichever is greater. Any accessory structure shall be located so
as to comply with the applicable minimum setback requirements for the property
on which it is situated. The provisions of this section notwithstanding, the leasing
of property for the location of a wireless telecommunications facility does not
require subdivision approval by the City Planning Commission.
Sec. 5.5-324. – Recertification of a special use permit for wireless telecommunications facilities.
(a) At any time between twelve (12) months and six (6) months prior to the five-year anniversary date after the effective date of the special use permit and all subsequent fifth anniversaries of the effective date of the original special use permit, the permit holder shall submit a signed written request to the Council for recertification. In the written request for recertification, the permit holder shall note the following:
(1) The name of the permit holder.
(2) If applicable, the number or title of the special use permit.
(3) The date of the original granting of the special use permit.
(4) Whether the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise modified since the issuance of the special use permit and if so, in what manner.
(5) If the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise modified, then whether the Council approved such action, and under what terms and conditions, and whether those terms and conditions were complied with.
(6) Any requests for waivers or relief of any kind whatsoever from the
requirements of this Article.
(7) That the wireless telecommunications facilities are in compliance
with the special use permit and compliance with all applicable codes, ordinances, rules and regulations.
(8) Recertification that the support structure and attachments both are designed and constructed and continue to meet all local, county, state and federal structural requirements for loads, including wind and ice loads. Such recertification shall be by a qualified Alabama state licensed professional engineer acceptable to the City, the cost of which shall be borne by the applicant.
(9) A list of collocating entities.
(b) If, after such review, the Council finds that the permitted wireless telecommunications facilities are in compliance with the special use permit and all applicable statutes, local laws, codes, rules and regulations, then the Council shall recertify the special use permit for the wireless telecommunications facilities, which may include any new provisions or conditions that are mutually agreed upon, or required by applicable statutes, laws, local ordinances, codes, rules and regulations. If, after such review, the Council determines that the permitted wireless telecommunications facilities are not in compliance with the special use permit and all applicable statutes, local laws, codes, rules and regulations, the Council may refuse to recertify the special use permit, and in such event, the wireless telecommunications facilities that are the subject of the permit shall not be used after the date that the applicant receives written notice of such decision by the Council. Any such decision shall be in writing and supported by substantial evidence contained in a written record.
(c) If the applicant has submitted all of the information requested by the Council and required by this Article, and if the Council does not complete its review, as noted in subsection (b) of this section, prior to the five-year anniversary date of the special use permit, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six (6) months in order for the Council to complete its review.
(d) If the holder of a special use permit for wireless telecommunications facilities does not submit a request for recertification of such special use permit within the timeframe noted in subsection (a) of this section, then such special use
permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or
subsequent fifth anniversaries, unless the holder of the special use permit adequately demonstrates to the Council that extenuating circumstances prevented a timely recertification request. If the Council agrees that there were legitimately
extenuating circumstances, then the holder of the special use permit may submit a
late recertification request or application for a new special use permit.
Sec. 5.5-325 — Assignment and transfer.
(a) A special use permit granted under this Article shall not be assigned, transferred or conveyed without the express prior written notification to the City, such notice to be not fewer than thirty (30) business days prior to the intended assignment, transfer or conveyance.
(b) Any purported transfer, assignment or other conveyance of a special use permit shall be invalid unless and until the new permit holder provides to the City a written commitment of the new permit holder that it will abide by all applicable laws, rules and regulations, including but not limited to this Article.
Sec. 5.5-326. – Performance security.
The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall, at its cost and expense, be jointly required to execute and file with the City a bond, or other form of security
acceptable to the City, in an amount of at least seventy-five thousand dollars
($75,000.00) and with such sureties as are deemed sufficient by the Council to
assure the faithful performance of the terms and conditions of this Article and
conditions of any special use permit issued pursuant to this Article. The full amount of the bond or security shall remain in full force and effect throughout the term of the special use permit and/or until the removal of the wireless telecommunications facilities, and any necessary site restoration is completed.
The failure to pay any annual premium for the renewal of any such security shall be an event of noncompliance with this Article.
Sec. 5.5-327. – Authority to inspect.
(a) To verify that the permit holder, and any and all lessees, renters, and/or
licensees of wireless telecommunications facilities, places and constructs such
facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building, and zoning codes, ordinances, laws and regulations, and other applicable requirements, the City may inspect all facets of said permit holder’s, renter’s, lessee’s or licensee’s placement, construction, modification and maintenance of such facilities, including, but not limited to,
towers, antennas and buildings or other structures constructed or located on a permitted site.
(b) The City shall pay for costs associated with such an inspection, except for those circumstances occasioned by said holder’s, lessee’s or licensee’s refusal to provide necessary information, or necessary access to such facilities, including towers, antennas, and appurtenant or associated facilities, or refusal to otherwise cooperate with the City with respect to an inspection, or if violations of this Article are found to exist, in which case the holder, lessee or licensee shall reimburse the City for the cost of the inspection.
(c) Payment of such costs shall be made to the City within thirty (30) days from
the date of the invoice or other demand for reimbursement. If the finding(s) of
violation is/are appealed in accordance with the procedures set forth in this Article, said reimbursement payment must still be paid to the City and the reimbursement shall be placed in an escrow account established by the City specifically for this purpose, pending the final decision on appeal.
Sec. 5.5-328. – Annual NIER certification.
The holder of the special use permit shall annually certify in writing to the City that NIER levels at the site are within the threshold levels adopted by the FCC.
The certifying engineer need not be approved by the City.
Sec. 5.5-329. – Liability insurance.
(a) A permit holder under this Article shall secure and at all times maintain public liability insurance for personal injuries, death and property damage, and umbrella insurance coverage, for the duration of the special use permit in amounts as set forth below:
(1) Commercial general liability covering personal injuries, death and property damage: $1,000,000.00 per occurrence/$2,000,000.00
aggregate.
(2) Automobile coverage: $1,000,000.00 per occurrence/$2,000,000.00 aggregate.
(3) Workers compensation and disability: Statutory amounts.
(b) The commercial general liability insurance policy shall specifically include the City and its officers, employees, committee members, attorneys, agents and consultants as additional named insureds.
(c) The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the state and with a Best’s rating of at least A.
(d) The insurance policies shall contain an endorsement obligating the insurance company to furnish the City with at least thirty (30) days’ prior written notice in advance of the cancellation of the insurance.
(e) Renewal or replacement policies or certificates shall be delivered to the City
at least fifteen (15) days before the expiration of the insurance which such policies are to renew or replace.
(f) Before construction of a permitted wireless telecommunications facilities is
initiated, but in no case later than fifteen (15) days after the grant of the special
use permit, the holder of the special use permit shall deliver to the City a copy of
each of the policies or certificates representing the insurance in the required
amounts.
Sec. 5.5-330. – Indemnification.
(a) An application for a special use permit under this Article shall include a
provision with respect to indemnification. Such provision shall require the applicant, to the extent permitted by law, to at all times defend, indemnify, protect, save, hold harmless, and exempt the City, and its officers, employees, committee members, attorneys, agents, and consultants from any and all penalties, damages, costs, or charges arising out of any and all claims, suits, demands,
causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might arise out of, or are caused by, the placement, construction, erection, modification, location, products performance, use, operation, maintenance, repair, installation, replacement, removal, or restoration of said wireless telecommunications facilities. With respect to the penalties, damages or charges referenced herein, reasonable attorneys’ fees, consultants’ fees, and expert witness fees are included in those costs that are recoverable by the City.
(b) Notwithstanding the requirements noted in subsection (a) of this section, an
indemnification provision will not be required in those instances where the City
itself applies for and secures a special use permit for wireless telecommunications
facilities.
Sec. 5.5-331 — Noncompliance, cure and revocation.
(a) Event of Noncompliance. If a wireless provider fails to comply with any material term or condition of this Article or any special permit issued under it, including nonconformity with application materials as approved by the City, the wireless provider shall be in noncompliance with this Article.
(b) Process. If a wireless provider is found to be in noncompliance, the City shall give the wireless provider forty-five (45) days written notice to cure the violation(s), or diligently commence the cure for matters that cannot reasonably be cured within forty-five (45) days. If the provider does not cure the violation(s), the City Council shall set a time for hearing the matter for revoking the special use permit and notice of such hearing shall be given to the provider at least ten (10) days before the day set for said hearing. At the hearing, the city Council shall hear all evidence offered by any party and all evidence that may be presented bearing upon the question of revocation as the case may be. The City Council shall render a decision within ten (10) days from the date of such hearing.
(c) In the event of an uncured material failure to comply with this Article, the City, at its option, shall be entitled to pursue any and all remedies that it may have in law or at equity, including terminating noncompliant permits, and drawing
down the noncompliant wireless provider’s performance and payment bond to
cover any fees, costs, damages, expenses, or penalties that a wireless provider has
not paid.
(d) Removal of Facilities. Upon termination for non-compliance, the City
may require a wireless provider shall remove its wireless telecommunications
facilities within six (6) months of receiving notice. If not so removed within that time period, the City shall have the right, but not the obligation, to treat the wireless provider’s facilities as abandoned. A wireless provider shall be required to pay the City’s actual and documented costs of taking title, storing, selling, or
otherwise disposing of a wireless telecommunications facility within ninety (90)
calendar days after it has received an invoice from the City.
Sec. 5.5-332. – Remedies.
(a) Any person who shall erect, construct, reconstruct, alter, repair, convert,
attach or maintain any wireless communication facility in violation of the provisions of this Article, or who, being the owner or agent of the owner of any lot, tract or parcel of land, shall suffer another to erect, construct, reconstruct, alter, repair, convert, attach or maintain any such facility, commits an offense. A person commits a separate offense for each day during which a violation is committed. An offense under this Article is punished as provided in subsection (b) below.
(b) A violation of this Article is hereby declared to be an offense punishable
by a fine not exceeding Three Hundred Fifty Dollars ($350.00) or imprisonment
fo not to exceed six (6) months, or both for conviction of a first offense; for
conviction of a second offense, both of which were committed within a period of five (5) years, punishable by a fine not less than Three Hundred Fifty ($350.00)
dollars nor more than Five Hundred Dollars ($500.00) or imprisonment for a
period not to exceed six (6) months, or both; and upon conviction of a third or
subsequent offense, all of which were committed within a period of five (5) years, punishable by a fine not less than five hundred dollars ($500.00) or imprisonment
for a period not to exceed six (6) months, or both.For the purpose of conferring
jurisdiction upon courts and judicial officers generally, violations of this Article
or of such ordinance or regulation shall be deemed misdemeanors and for such
purpose only all of law relating to misdemeanors shall apply to such violations.
Each week’s continued violation shall constitute a separate additional offense.
(c) If any wireless communications facility is erected, constructed, reconstructed, altered, repaired, converted, attached or maintained in violation of this Article or any regulation made pursuant hereto, the Mayor, in addition to other remedies, may institute in the name of the City any appropriate action or proceeding, including suit for injunctive relief, to prevent or abate any violations of this Article, to prevent any such unlawful erection, construction, reconstruction, alteration, repair, conversion, attachment, maintenance or use of
such facility, to prevent the use of such facility, and/or to prevent any illegal act, conduct, business or use in or about such facility.
(d) Notwithstanding anything in this Article, the holder of the special use permit for wireless telecommunications facilities may not use the payment of fines, liquidated damages or other penalties to evade or avoid compliance with this Article or any section of this Article. An attempt to do so shall subject the holder of the special use permit to termination and revocation of the special use permit. The City may also seek injunctive relief to prevent the continued violation of this Article, without limiting other remedies available to the City.
Sec. 5.5-333. – Removal of wireless telecommunications facilities.
(a) Under the following circumstances, the Council may determine that the health, safety, and welfare of the City warrant and require the removal of wireless
telecommunications facilities:
(1) Wireless telecommunications facilities have been abandoned (i.e. not used as wireless telecommunications facilities) for a period exceeding ninety (90) consecutive days or a total of one hundred eighty (180) days in any three hundred sixty-five (365) day period, except for periods caused by force majeure or acts of god, in which case, repair or removal shall commence within ninety (90) days.
(2) Wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard.
(3) Wireless telecommunications facilities have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required special use permit, or any other necessary authorization.
(b) If the Council makes such a determination described in subsection (a) of this section, then the Council shall notify the permit holder or owner of the wireless telecommunications facilities (if reasonably identifiable) within forty-eight (48) hours that said wireless telecommunications facilities are to be removed.
(c) The holder of the special use permit, or its successors or assigns, or the owner of the facilities, shall dismantle and remove such wireless telecommunications facilities, and all associated structures and facilities, from the site and restore the site to as close to its original condition as is possible, such restoration being limited only by physical or commercial impracticability, within
ninety (90) days of receipt of written notice from the Council. However, if the
owner of the property upon which the wireless telecommunications facilities are
located wishes to retain any access roadway to the wireless telecommunications
facilities, the owner may do so with the approval of the Council.
(d) If wireless telecommunications facilities are not removed or substantial
progress has not been made to remove the wireless telecommunications facilities
within ninety (90) days after the permit holder or owner has received notice, then
the Council may order officials or representatives of the City to remove the wireless telecommunications facilities at the sole expense of the owner or special use permit holder.
(e) If the City removes or causes to be removed wireless telecommunications
facilities, and the owner of the wireless telecommunications facilities does not
claim and remove it from the site to a lawful location within ten (10) days, then
the City may take steps to declare the wireless telecommunications facilities
abandoned, and sell them and their components.
(f) Notwithstanding anything in this section to the contrary, the Council may
approve a temporary use permit/agreement for the wireless telecommunications
facilities, for no more than ninety (90) days, during which time a suitable plan for removal, conversion, or relocation of the affected wireless telecommunications
facilities shall be developed by the holder of the special use permit, subject to the
approval of the Council, and an agreement to such plan shall be executed by the
holder of the special use permit and the City. If such a plan is not developed,
approved and executed within the ninety-day time period, then the City may take possession of and dispose of the affected wireless telecommunications facilities in the manner provided in this section.
Sec. 5.5-334. – Waiver and relief.
Any applicant desiring relief or exemption from any aspect or requirement of this Article may request such at the pre-application meeting, provided that the relief or exemption is contained in the original application for either a special use permit, or in the case of an existing or previously granted special use permit a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete, at the sole discretion of the Council.
The burden of proving the need for the requested relief or exemption is solely on
the applicant. The applicant shall bear all costs of the City in considering the request and the relief shall not be transferable to a new or different holder of the permit or owner of the tower or facilities without the specific written permission
of the Council. Such permission shall not be unreasonably withheld or delayed.
No such relief or exemption shall be approved unless the applicant demonstrates
that, if granted, the relief or exemption will have no significant detrimental effect
on the health, safety and welfare of the City, its residents, and other service providers.
Sec. 5.5-335– Effect of future changes in governing law
Nothing in this Article shall be construed as surrender by the City of its right and power to adopt future ordinances, rules, and regulations in the exercise of its police power applying to wireless telecommunications facilities to the maximum extent allowed by applicable law. Issuance of any special use permit pursuant to this Article shall not grant the permittee any vested rights in the event
of a change in governing law, including any vested right for permittee to remain
regulated under the laws, ordinances, rules, and regulations in effect at the time of issuance of a permit. In the event of any future change in governing law (including, but not limited to, invalidation or modification of the final rules of the Federal Communications Commission in effect at the time of initial adoption of this Article), the City at all times reserves the right to regulate wireless telecommunications facilities under new governing law as changed and to apply new City regulations allowed by the changed law to all pre-existing wireless telecommunications facilities.
Sec. 5.5-336. – Conflict with other laws or ordinances.
Where this Article differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by the City, State or Federal government, this Article shall apply.
Sec. 5.5-337. – Severability.
(a) If any word, phrase, sentence, part, section, subsection, or other portion of this Article or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this Article, and all applications thereof, not having been declared void, unconstitutional, or invalid, shall remain in full force and effect.
(b) Any special use permit issued pursuant to this Article shall be comprehensive and not severable. If part of a special use permit is deemed or ruled to be invalid or unenforceable in any material respect, by a competent authority, or is overturned by a competent authority, the permit shall be void in total, upon determination by the City.
Section 2. Repeal of conflicting ordinances. Any ordinance or parts thereof in conflict with this Ordinance are repealed to the extent of the conflict only.
Section 3. Effective date. This Ordinance (and Article III hereby adopted) shall take effect and be enforced immediately upon its adoption and publication as required by law.
Section 4. Publication. The City Clerk of the City of Opelika is hereby authorized and directed to cause a copy of this Ordinance to be published one (1) time in a newspaper of general circulation in the City of Opelika, Alabama.
Section 5. Codification. Codification of Article III adopted herein in the Code of Ordinances of the City of Opelika is hereby authorized and directed.
ADOPTED AND
APPROVED this the 2nd day of July, 2019.
/s/ Eddie Smith
PRESIDENT OF THE CITY COUNCIL OF THE
CITY OF OPELIKA, ALABAMA
ATTEST:
/s/ R. G. Shuman
CITY CLERK
TRANSMITTED TO MAYOR this the 3rd day of July, 2019.
/s/ R. G. Shuman
CITY CLERK
ACTION BY MAYOR
APPROVED this the 3rd day of July, 2019.
/s/ Gary Fuller
MAYOR
ATTEST:
/s/ R. G. Shuman
CITY CLERKLegal Run 07/03/2019
ORDINANCE NO. 014-19
