§ 38-1427. Communication towers.
(a)
Legislative findings, intent and purpose. The board of county commissioners has on numerous occasions and with increasing frequency been confronted with requests to site communications towers. Prior to the adoption of this section, no specific procedures existed to address recurrent issues related to siting communication towers. Accordingly, the board of county commissioners finds that the promulgation of this section is warranted and necessary:
(1)
To direct the location of communication towers in unincorporated Orange County;
(2)
To protect residential areas and land uses from potential adverse impacts of communication towers;
(3)
To minimize adverse visual impacts of communication towers through careful design, siting, landscape screening, and innovative camouflaging techniques;
(4)
To accommodate the growing need for communication towers;
(5)
To promote and encourage shared use/co-location of existing and new communication towers as a primary option rather than construction of additional single-use towers;
(6)
To consider the public health and safety of communication towers;
(7)
To avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures.
(b)
Applicability.
(1)
All new communication towers in unincorporated Orange County shall be subject to these regulations and all other applicable regulations. For purposes of measurement, communication tower setbacks as listed in subsection (d)(1) and separation distances as listed in subsection (d)(2) shall be calculated and applied to facilities located in the county irrespective of municipal and county jurisdictional boundaries.
(2)
Those facilities which would be considered communications towers but for the fact that they are in excess of three hundred (300) feet shall be required to obtain a special exception and comply with the setback, separation distances from other uses, separation distances from other communication towers and notice requirements as set forth in subsections (d)(1), (d)(2), (d)(3), and (d)(8), respectively. For purposes of implementing subsection (d)(2)d. to towers in excess of three hundred (300) feet in height the separation distance required is limited to a maximum of one thousand five hundred (1,500) feet.
(Ord. No. 97-11, § 4, 6-23-97)
(3)
All new communication antennas which are not attached to communication towers shall comply with subsection (g).
(4)
All communication towers existing on September 8, 1995 (the effective date of this section) shall be allowed to continue their usage as they presently exist. Routine maintenance (including replacement with a new tower of like construction and height) shall be permitted on such existing towers. New construction other than routine maintenance on an existing communication tower shall comply with the requirements of this section.
(5)
Communications towers and communication antennas shall be regulated and permitted pursuant to this section and shall not be regulated by or subject to section 38-79, conditions for permitted uses and special exceptions, subsection (61), pertaining to public and private utilities.
(6)
For purposes of implementing this section, a communication tower that has received county approval in the form of either a special exception or building permit, but has not yet been constructed, shall be considered an existing tower so long as such approval is current and not expired.
(7)
For purposes of implementing this section, an AM array, consisting of one (1) or more tower units and supporting ground system which functions as one AM broadcasting antenna, shall be considered one (1) communication tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right.
(8)
For purposes of implementing this section, the term "memorandum of lease" shall mean a document in recordable form which shall indicate that one (1) or more other service providers have entered into an agreement and/or lease with the communication tower owner and that more than one (1) service provider is entitled to locate communication antennas on the tower and shall be located on the tower within three (3) years from the date the certificate of completion is issued for the communication tower. While the memorandum of lease must specifically name one (1) or more other service providers at the time it is recorded, it may or may not remain service provider specific throughout the three-year co-location period. Should the other service provider(s) on the initial recorded memorandum of lease fail to co-locate on the tower, for whatever reason, it is the responsibility of the tower owner to make a good-faith effort to accomplish co-location within the prescribed three-year period. Failure to have co-location accomplished within the three-year period may require the tower approval being subject to review under subsection 38-1427(m) and the county may seek to revoke the permit and proceed with removal of the tower at the owner's expense. If the zoning manager determines to pursue this option, he shall first prepare a report and forward it to the board of county commissioners and the towner owner. For the purpose of applying subsection 38-1427(m) to a memorandum of lease, the term "special exception" shall be read as "tower use permit."
(Ord. No. 97-11, § 4, 6-23-97)
(9)
For purposes of implementing this section, the term "co-location" shall mean the ability and right of two (2) or more different service providers (carriers) to place communication antennas on one (1) communication tower.
(Ord. No. 97-11, § 4, 6-23-97)
(10)
For purposes of implementing this section, the term "service provider" shall mean any individual or entity which locates a communication antenna on a communication tower.
(Ord. No. 97-11, § 4, 6-23-97)
(c)
Variances. Except as provided otherwise for communication towers in planned developments (see section 38-1236), a deviation from any of the requirements of this section shall require variance review and approval by the board of zoning adjustment and the board of county commissioners.
(d)
Performance standards.
(1)
Setbacks.
a.
Communication tower setbacks shall be measured from the base of the tower to the property line of the parcel on which it is located. Communication towers shall comply with the minimum setback requirements of the district in which they are located and the major street setbacks outlined in article XV of this chapter, zoning, of the County Code. In cases where there is a conflict between the minimum setback requirements and the major street setbacks, the greater setback shall apply.
b.
For towers located in planning developments (P-D's), the setback requirements for the parcel upon which the tower is located as required by the P-D shall apply.
c.
In cases where there are nonconforming residential uses on nonresidentially zoned property, a fifty (50) percent reduction of the side or rear yard setback opposite the nonconforming residential use may be permitted by the zoning manager, except if the side or rear yard proposed for reduction is adjacent to a residential land use.
(2)
Separation from off-site uses/designated areas.
a.
Communication tower separation shall be measured from the base of the tower to the closest point of off-site uses and/or designated areas as specified in the table set forth in subsection (d)(2)d.
b.
Separation requirements for communication towers shall comply with the minimum standards established in the table set forth in subsection (d)(2)d.
c.
Separation distances may be reduced by the zoning manager when notarized written consent is obtained from those affected property owners within the applicable separation distance.
d.
Communication tower separation from off-site uses/designated areas. (See "Exhibit B," below.)
(Ord. No. 97-11, § 5, 6-23-97)
EXHIBIT B
COMMUNICATION TOWER SEPARATION FROM
OFF-SITE USE OR DESIGNATED AREA
Proposed Tower
TypesSingle-Family or Duplex Residential Units 1,4 Vacant Single-Family or Duplex Residentially-Zoned Platted Lands Vacant Unplatted Residentially-Zoned Lands 2,3 Existing Multiple-Family Residential Units Non-Residentially Zoned Lands or Non-Residential Uses Lattice tower 1,250 feet or 700% of height of tower, whichever is greater, but limited to a maximum of 1,500 feet 1,250 feet or 700% of height of tower, whichever is greater, but limited to a maximum of 1,500 feet 825 feet or 200% of height of tower, whichever is greater, but limited to a maximum of 1,500 feet 825 feet or 700% of height of tower, whichever is greater, but limited to a maximum of 1,500 feet None; only district setbacks apply Guyed tower 1,000 feet or 700% of height of tower, whichever is greater, but limited to a maximum of 1,500 feet 1,000 feet or 700% of height of tower, whichever is greater, but limited to a maximum of 1,500 feet 625 feet or 200% of height of tower, whichever is greater, but limited to a maximum of 1,500 feet 625 feet or 700% of height of tower, whichever is greater, but limited to a maximum of 1,500 feet None; only district setbacks apply Monopole higher than 140 feet 980 feet or 700% of height of tower, whichever is greater 980 feet or 700% of height of tower, whichever is greater 280 feet or 200% of height of tower, whichever is greater 980 feet or 700% of height of tower, whichever is greater None; only district setbacks apply Monopole between 80 feet and 140 feet 400 feet or 500% of height of tower, whichever is greater 400 feet or 500% of height of tower, whichever is greater 160 feet or 200% of height of tower, whichever is greater 400 feet or 500% of height of tower, whichever is greater None; only district setbacks apply Monopole lower than 80 feet 175 feet or 500% of height of tower, whichever is greater 175 feet or 500% of height of tower, whichever is greater 70 feet or 200% of height of tower, whichever is greater 175 feet or 500% of height of tower, whichever is greater None; only district setbacks apply Includes modular homes and mobile homes used for living purposes, except when the applicable residential uses are classified as three (3) or fewer nonconforming residential uses.
Separation measured from base of tower to closest building setback line.
Includes any unplatted residential use properties without a valid preliminary subdivision plan or valid development plan approval and any multi-family residentially-zoned land greater than duplex.
For purposes of implementation of this subsection only, single-family or duplex residential units shall be considered to include hotel, motel, and timeshare units located in the Tourism District. However, if each of the following criteria are met—(1) the affected hotel, motel, or timeshare unit facility is approached by the service provider to place a communication antenna on top of the hotel/motel/timeshare facility in a manner consistent with subsection 38-1427(g); (2) the placement of such antenna is technically feasible; and (3) the service provider and hotel/motel/timeshare facility deal with each other in good faith to provide lease rental compensation consistent with reasonable market rates comparable for such usage—and the hotel, motel, or timeshare unit facility refuses to allow the service provider to locate the communication antenna on such facility, then the zoning manager shall determine that the hotel, motel, or timeshare facility is to be treated as non-residentially zoned lands for the purpose of implementation of this subsection. The zoning manager's determination under this subsection shall be appealable to a hearing officer, generally following the procedures set forth in subsection 38-1427(m) with the term "co-location" interpreted to mean "request for placement of a communication antenna on top of a hotel, motel, or timeshare unit facility.
(Ord. No. 97-11, Ex. B, 6-23-97)
(3)
Separation distances between communication towers.
a.
Separation distances between communication towers shall be applicable for and measured between the proposed tower and those towers that are existing and/or have received county land use or building permit approval after September 8, 1995 (the effective date of this section). The separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan, of the proposed tower. The separation distances (listed in linear feet) shall be as follows:
EXISTING TOWERS—TYPES
Proposed Monopole greater Monopole 80 ft. Monopole less towers— than 170 ft. to 170 ft. than 80 ft. Types Lattice Guyed in height in height in height Lattice 5,000 5,000 3,500 2,500 500 Guyed 5,000 5,000 3,500 2,500 500 Monopole greater than 170 ft. in height 3,500 3,500 3,500 2,500 500 Monopole 80 ft. to 170 ft. in height 2,500 2,500 2,500 1,500 500 Monopole less than 80 ft. in height 500 500 500 500 500 (Ord. No. 97-11, § 6, 6-23-97)
NOTE: Tower separation requirements shall not be applicable where the existing tower(s) and the proposed tower are both located within any industrial (I-1 through I-4) and heavy commercial (C-3) zoning districts.
(Ord. No. 97-11, § 6, 6-23-97)
b.
The separation distances listed in subsection 38-1427(d)(3)a. above for proposed monopole towers shall be decreased by 500 feet for proposed towers eighty (80) feet and higher in height and decreased by one hundred (100) feet for proposed towers less than eighty (80) feet in height provided such proposed monopole towers provide a permit for an up-front, co-located facility (two (2) communication antennas detailed on the permit application and erected prior to certificate of completion).
(Ord. No. 97-11, § 6, 6-23-97)
c.
The separation distances between communication towers as set forth in subsection (d)(3)a. shall not be applicable to those communication towers located within the following designated "Broadcast Areas" in which tall (i.e., in excess of three hundred (300) feet) television towers presently exist and within which it is deemed appropriate and desirable for future communications towers to locate:
1.
Northwest ¼ of section 13, Township 22 South, Range 32 East Orange County, Florida (less the West 33 feet for right-of-way). Containing 164.807 ± Acres.
2.
From a point on the west line of the SW ¼ of section 2, T225, R32E, 120.55′ S 1° 17′ 27″ E from the W¼ corner of section 2-22-32, run S 89° 53′ 00″ E 1886.68′ to the point of beginning; thence S 89° 53′ 00″ E 1020.00′, thence N 39° 40′ 00″ E 624.75′ to the center of "Chuluota-Christmas Road," thence along the center of said road S 64° 59′ 00″ E 287.46′ to the P.C. of a curve concave to the southwest and having a radius of 1101.80′, thence easterly along the area of said curve 199.46′ through a central angle of 10° 22′ 20″, thence along the center of said road S 54° 37′ 10″ E 318.37′, thence S 44° 50′ 00″ W 1093.72′, thence S 40° 12′ 00″ E 1088.73′, thence N 89° 53′ 00° W 694.60′, thence N 1° 03′ 00″ W 650.55′, thence N 89° 53′ 00″ W 1320.00′, thence N 1° 03′ 00″ W 880.00′ to the point of beginning.
Containing 46.04 acres subject to right-of-way over the northeasterly 30.00' for "Chuluota-Christmas Road" and subject to easements and restrictions of record if any.
3.
Begin at a point where the west line of section 11, township 22 south, range 32 east, intersects the north right-of-way line of Road no. 420, proceed north along the west section line to the NW corner of section 11, continue north along the west line of section 2 for a distance of three thousand five hundred twenty-nine (3,529) feet from the point of beginning, thence east for a distance of one thousand eight hundred eighty-one (1,881) feet; thence south for a distance of two thousand two hundred (2,200) feet; thence west for a distance of one thousand seven hundred sixteen (1,716) feet; thence south for a distance of one thousand three hundred twenty (1,320) feet to north right-of-way line of road W one hundred sixty-five (165) feet to the point of beginning.
The proximity of other existing communications towers shall be a factor considered and addressed during the special exception hearing for any proposed communication tower located within the boundaries of a designated broadcast area. Those communications towers located within a broadcast area shall be considered existing towers for purposes of distance separation measurement by proposed towers located outside the above-designated broadcast areas.
(Ord. No. 97-11, § 6, 6-23-97)
(4)
Method of determining communication tower height. Measurement of communication tower height shall include antenna, base pad, and other appurtenances and shall be measured from the finished grade of the parcel.
(5)
Illumination. Communication towers shall not be artificially lighted except to assure human safety or as required by the Federal Aviation Administration. At time of construction of the communication tower in cases where there are residential uses located within a distance which is three hundred (300) percent of the height of the tower from the tower, dual mode lighting shall be requested from the FAA.
(6)
Finished color. Communication towers not requiring FAA painting/marking shall have either a galvanized finish or painted a noncontrasting blue, gray, or black finish.
(7)
Structural design. Communication towers shall be constructed to the EIA/TIA 222-E Standards, as published by the Electronic Industries Association, which may be amended from time to time, and all county construction/building codes. Further, any improvements and/or additions (i.e., antenna, satellite dishes, etc.) to existing communication towers shall require submission of site plans sealed and verified by a professional engineer which demonstrate compliance with the EIT/TIA 222-E Standards in effect at the time of such improvement or addition. Such plans shall be submitted to and reviewed and approved by the county building department at the time building permits are requested.
(8)
Public notice. For purposes of this section, any special exception request, land use plan approval in a P-D, substantial change in a P-D land use plan, or appeal of the zoning manager's decision regarding this section, shall require public notice to all abutting property owners and all property owners of properties that are located within five hundred (500) feet of the perimeter of the parent parcel upon which the proposed communication tower is located. Further, authorized representatives of homeowners' and property owners' associations registered with or known to the county planning department within one thousand five hundred (1,500) feet of the perimeter of the parent parcel upon which the proposed communication tower is located will be provided public notice on a courtesy basis; however, inadvertent failure to supply such courtesy notice shall not invalidate the hearing procedure. For purposes of this section, any variance request shall require public notice to all abutting property owners and all property owners of properties that are located within the corresponding separation distance listed in subsection (d)(2).
(Ord. No. 97-11, § 7, 6-23-97)
(9)
Public information signage.
a.
Within twenty (20) days after final approval of a special exception, variance, land use plan approval in a P-D, substantial change to a P-D land use plan, or appeal of the zoning manager's decision by the applicant regarding this section, the communication tower owner/operator shall cause to be placed on the parcel signage designating the site as a future communication tower site.
b.
One four-foot by four-foot sign shall be placed along each right-of-way frontage bordering the parcel within a distance such that the copy is visible and legible from the right-of-way.
c.
Each sign shall be weather durable and include in addition to the designation, the company name of the communication tower owner/operator, and a phone number and contact person from whom additional information may be obtained.
d.
Appropriate county building permits shall be obtained prior to installation of the signage.
e.
Such signage may not be removed prior to the start of construction of the communication tower but shall be removed prior to the issuance of a certificate of completion for the communication tower. If the approval listed in subsection (d)(9)a. expires or otherwise becomes void, the signage shall be removed immediately.
f.
Other than the above requirements, such signage shall be exempt from all other provisions of the County Code regarding outdoor signs.
(10)
Fencing. A chain link fence or wall not less than eight (8) feet in height from finished grade shall be provided around each communication tower. Barbed wire shall be used along the top of the fence or wall. Access to the tower shall be through a locked gate.
(11)
Landscaping. The visual impacts of a communication tower shall be mitigated for nearby viewers through landscaping or other screening materials at the base of the tower and ancillary structures. The following landscaping and buffering of communication tower shall be required around the perimeter of the tower and accessory structures, except that the standards may be waived by the zoning manager for those sides of the proposed tower that are located adjacent to undeveloped lands and lands not in public view. Landscaping shall be installed on the outside of fences. Further, the use of existing vegetation shall be preserved to the maximum extent practicable and may be used as a substitute of or in supplement toward meeting landscaping requirements.
a.
A row of shade trees a minimum of eight (8) feet tall and a maximum of ten (10) feet apart shall be planted around the perimeter of the fence;
b.
A continuous hedge at least thirty (30) inches high at planting capable of growing to at least thirty-six (36) inches in height within eighteen (18) months shall be planted in front of the tree line referenced above;
c.
All landscaping shall be of the evergreen variety;
d.
All landscaping shall xeriscape tolerant or irrigated and properly maintained to ensure good health and viability.
(12)
Documentation, performance bond or deposit for removal. Prior to receiving a building permit for construction of the communication tower if the applicant does not provide a recorded memorandum of lease of co-location then the applicant shall provide either:
a.
Documentation supplied to the zoning manager sufficient to demonstrate that an adequate methodology and/or sufficient funds are dedicated to and available for removal of the tower structure upon abandonment (by way of example and not limitation, sufficient documentation would include evidence that the tower owner has the obligation under the governing lease to dismantle and remove the tower upon abandonment); or
b.
A twenty-year performance bond which shall be posted with the county in an amount sufficient to remove the tower structure upon abandonment. Upon construction of multiple towers under the control of one (1) service provider, the service provider may provide the county with one (1) twenty-year performance bond in an amount not to exceed sixty thousand dollars ($60,000.00) applicable to all of the service provider's towers for removal upon each tower's abandonment; or
c.
For placement into a communication tower removal account established with the county comptroller's office, the adequate amount of an irrevocable cash deposit to cover the cost of removal of the tower. The county shall be entitled to use the funds deposited into such account for the necessary removal of any communication tower within unincorporated Orange County. The adequate amount shall be thirty dollars ($30.00) per foot of height for monopole towers and one hundred dollars ($100.00) per foot of height for lattice or guyed towers. In no event shall any one (1) service provider be required to place more than thirty thousand dollars ($30,000.00) into the account for the cumulative number of towers under its control and located within unincorporated Orange County.
(Ord. No. 97-11, § 8, 6-23-97)
(e)
Variances. Any request to deviate from any of the requirements of this section shall require variance approval from the board of zoning adjustment.
(f)
Abandonment of communication towers.
(1)
Compelling public interest. The board of county commissioners finds and declares that, because of the national public policy of ensuring that the wireless communications industry and its evolving new technologies are accommodated notwithstanding the undesirable effects that communication towers may have on the aesthetics of communities and neighborhoods, there is a compelling public interest in ensuring that communication towers are promptly disassembled, dismantled, and removed once they are no longer being used. Further, the board finds that there is substantial risk that towers may cease being used in large numbers if there is a concentration or consolidation of competitors within the industry or if even newer technologies arise, obviating the need for towers.
(2)
Abandonment. In the event the use of any communication tower has been discontinued for a period of one hundred eighty (180) consecutive days, the tower shall be deemed to be abandoned. Determination of the date of abandonment shall be made by the zoning manager who shall have the right to request documentation and/or affidavits from the communication tower owner/operator regarding the issue of tower usage. Failure or refusal for any reason by the owner/operator to respond within twenty (20) days to such a request shall constitute prima facie evidence that the communication tower has been abandoned. Upon a determination of abandonment and notice thereof to the owner/operator, the owner/operator of the tower shall have an additional one hundred eighty (180) days within which to: (i) reactivate the use of the tower or transfer the tower to another owner/operator who makes actual use of the tower within the one-hundred-eighty-day period, or (ii) dismantle and remove the tower. At the earlier of one hundred eighty-one (181) days from the date of abandonment without reactivation or upon completion of dismantling and removal, any special exception and/or variance approval for the tower shall automatically expire.
(3)
Duty to remove abandoned towers. Notwithstanding the provisions of subsection (2), upon abandonment of a communication tower as determined under subsection (2) by the zoning manager and the failure or refusal by the owner/operator of the tower to either reactivate the tower or dismantle and remove it within one hundred eighty (180) days as required by subsection (2), the following persons or entities (the "responsible parties") shall have the duty jointly and severally to remove the abandoned tower:
a.
The owner of the abandoned tower (and, if different, the operator of the abandoned tower);
b.
The owner of the land upon which the abandoned tower is located;
c.
The lessee, if any, of the land upon which the tower is located;
d.
The sublessee or sublessees, if any, of the land upon which the tower is located;
e.
Any communication service provider who or which by ceasing to utilize the tower or otherwise failing to operate any of its transmitters or antennas on the tower for which it leased space or purchased the right to space on the tower for its transmitters or antennas and such ceasing or failure to utilize the tower in fact caused the tower to become abandoned;
f.
Any person to whom or entity to which there has been transferred or assigned any license issued by the Federal Communications Commission and under which the tower owner/operator operated the tower;
g.
Any person or entity which has purchased all or a substantial portion of the assets of the tower owner or operator;
h.
Any entity which has merged with, or which has arisen or resulted from a merger with, the tower owner or operator;
i.
Any person or entity which has acquired the owner or the operator of the abandoned tower;
j.
Any parent or subsidiary of any of the foregoing which happens to be a corporation;
k.
Any managing partner of any of the foregoing which happens to be a limited partnership; and
l.
Any partner of any of the foregoing which happens to be a general partnership.
The abandoned tower shall be removed on or before the ninetieth day after receipt by the responsible party or parties of a notice from the zoning manager ordering its removal. The duty imposed by this subsection shall supersede and otherwise override any conflicting provision of any contract, agreement, lease, sublease, license, franchise or other instrument entered into or issued on and after June 10, 1997.
(4)
Enforcement. The county chairman shall take such actions from time to time as are necessary or useful to enforce the duty and requirements imposed by this subsection, and in the course of enforcement the county chairman may avail himself/herself of any one (1) or more of the following:
a.
Proceedings to enforce this subsection may be brought before the code enforcement board in the manner allowed by general law and this county code.
b.
Proceedings to enforce this subsection may be brought before the circuit court in the Ninth Judicial Circuit of Florida, and in such proceedings the county shall be entitled to all remedies at law and in equity, including (but not limited to) injunctive relief. Further, upon a determination that a defendant has violated a duty or requirement of this subsection, the court shall award reasonable attorneys' fees and costs to the county, including fees and costs incurred by the county on appeal.
c.
Upon directive by the county chairman, the county may withhold from any person or entity in violation of this subsection all future development permits (as that term is defined by F.S. § 163.3164(8)) and otherwise may refrain from processing any applications by the violator for approval of any zoning changes, special exceptions, variances, site plans, subdivision plans, plats, developments of regional impact, substantial deviations from DRI development orders, substantial changes to planned developments, right-of-way utilization permits, building permits, cable television franchises (or renewals thereof or amendments thereto), or any other county regulatory permits or approvals.
d.
The county may remove the tower using the funds or surety bonds, if any, deposited under subsection (d)(12) by the responsible parties and thereafter initiate judicial proceedings against the responsible parties for any portion of the cost not covered by the deposited funds or surety bonds. If the responsible parties include the owner of the land on which the abandoned tower is or was located, such portion of the cost shall be assessed against the land, and the county may file a lien thereon. The lien of the assessment shall bear interest and shall have priority and be collectable at the same rate and in like manner as provided under state law and this Code for special assessments.
(Ord. No. 97-11, § 9, 6-23-97)
(g)
Communication antennas. Any communication antenna which is not attached to a communication tower, shall be a permitted ancillary use to any commercial, industrial, professional, institutional, or multifamily structure of at least three (3) stories in height provided:
(1)
The communication antenna and its ancillary supporting apparatus does not extend above the highest point of the structure the greater of thirty (30) feet or fifty (50) percent of height of building, not to exceed maximum combined height of sixty (60) feet for the antenna and its ancillary supporting apparatus, and further provided that the antenna and its ancillary supporting apparatus are not attached to the ground; and
(2)
The communication antenna complies with all applicable FCC and FAA regulations; and
(3)
The communication antenna complies with all applicable building codes.
(Ord. No. 97-11, § 10, 6-23-97)
(h)
Co-location of communication antennas. To minimize adverse visual impacts associated with the proliferation and clustering of communication towers, co-location of communication antennas by more than one (1) carrier on existing or new communication towers shall take precedent over the construction of new single-use communication towers as follows:
(1)
Proposed communication antennas may, and are encouraged to, co-locate onto existing communication towers. Provided such co-location is accomplished in a manner consistent with subsections (h)(2) through (h)(4), then such co-locations are permitted by right and new or additional special exception approval shall not be required.
(2)
Type of construction. A communication tower which is modified or reconstructed to accommodate the co-location of an additional communication antenna shall be either of the same tower type as the existing communication tower or a monopole tower that is replacing an existing lattice or guyed tower.
(Ord. No. 97-11, § 11, 6-23-97)
(3)
Height.
a.
Additional height which does not comply with distance separation requirements.
1.
An existing communication tower which meets or as of September 8, 1995, is in nonconformity with the separation requirements set forth in subsection (d)(2)d. or (d)(3) may be modified or rebuilt to a taller height, not to exceed forty (40) feet over the tower's existing height, to accommodate the co-location of additional communication antennas when the resulting taller height will not comply with the separation requirements set forth in subsection (d)(2)d. or (d)(3).
2.
The height change referred to in subsection (h)(3)a.1. may only occur one (1) time per communication tower.
3.
The additional height referred to in subsection (h)(3)a.1. shall not require an additional distance separation as set forth in either subsection (d)(2)d. or (d)(3). The communication tower's premodification height shall be used to calculate such distance separations.
b.
Additional height which does comply with the distance separation requirements.
1.
An existing communication tower may be modified or rebuilt to a taller height, not to exceed three hundred (300) feet to accommodate the co-location of additional communication antennas.
2.
Subject to subsection (h)(5), the height change referred to in subsection (h)(3)b.1. may occur provided the resulting height of the modified or rebuilt tower complies with the distance separation requirements set forth in subsections (d)(2)d. and (d)(3).
(Ord. No. 97-11, § 11, 6-23-97)
(4)
On-site location.
a.
A communication tower which is being rebuilt to accommodate the co-location of an additional communication antenna consistent with the height requirements of subsection (h)(3) above may be moved on-site within seventy-five (75) feet of its existing location. A communication tower which is being rebuilt to accommodate the co-location of an additional communication antenna consistent with the height requirements of subsection (h)(3) above may be moved on site within two hundred fifty (250) feet of its existing location provided the separation distances to residential units or residentially-zoned lands as established in subsection (d)(2) are maintained. Notwithstanding the foregoing, nothing shall prevent a new tower which replaces an existing tower provided: (1) the new tower is co-located; (2) the new tower meets the subsection (d)(2) tower-to-residential separation requirements; and (3)(i) if the new tower is on residentially-zoned property it meets the subsection (d)(3) tower-to-tower separation requirements, or (3)(ii) if the new tower is on commercial- or industrial-zoned property it meets the tower-to-tower separation requirements as set forth in subsection (h)(5).
b.
After the communication tower is rebuilt to accommodate co-location, only one (1) tower may remain on the site.
c.
A relocated on-site communication tower shall continue to be measured from the original tower location for purposes of calculating separation distances between communication towers pursuant to subsection (d)(3). The relocation of a tower hereunder shall in no way be deemed to cause a violation of subsection (d)(3).
(Ord. No. 97-11, § 11, 6-23-97)
(5)
Commercial or industrial zoning, limited exemption from separation requirements. A communication tower which co-locates two (2) or more communication antennas and which is located in a commercial or industrial zoning district as a permitted use pursuant to section 38-77 shall be exempted from the separation distances between communication towers as set forth in subsection (d)(3) from only those other towers that are located in either a commercial or industrial zoning district. A communication tower permitted under this subsection is still required to comply with the separation distances set forth in subsection (d)(2)d.
(Ord. No. 97-11, § 11, 6-23-97)
(i)
Certification of compliance with Federal Communication Commission (FCC) NIER Standards. Prior to receiving final inspection by the county building department, documented certification shall be submitted to the FCC, with copy to the county zoning department, certifying that the communications facility complies with all current FCC regulations for non-ionizing electromagnetic radiation (NIER).
(j)
Nonconforming uses.
(1)
Existing nonconforming uses. Notwithstanding subsection (f) above, bona fide nonconforming communications towers or antennas that are damaged or destroyed may be rebuilt without having to meet the separation requirements specified in subsections (d)(2)d. and (d)(3). The type, height, and location of the tower on-site shall be of the same type and intensity as the original facility approval. The rebuilt facility shall comply with the then applicable building codes, and the required building permits shall be obtained within one hundred eighty (180) days from the date the facility is damaged or destroyed. If no permit is obtained or if said permit expires, the communications facility shall be deemed abandoned as specified in subsection (f).
(2)
Future nonconforming uses. If at any time after January 1, 2013, the board of county commissioners finds (i) that the technologies pertaining to communication towers have changed such that wireless communications can be readily provided with no towers or with towers or other structures that are substantially less intrusive to residential and commercial areas and substantially more aesthetic for neighborhoods and commercial areas and (ii) that the service providers in the county are making frequent use of the new technologies in the installation of new communication systems or the expansion of existing systems (whether such installations or expansions are occurring in Orange County or elsewhere), the board may declare to be nonconforming uses all communication towers then existing in residential, professional office, and commercial zones (and in such corresponding areas within planned developments) in the county and which have been erected pursuant to building permits issued on or after July 1, 1997. The board shall declare such towers to be nonconforming uses in an ordinance which amends this Code to make such towers nonpermitted uses altogether in residential, professional office, and commercial zones (and such corresponding areas within planned developments) and, simultaneously, to make the new technologies permitted uses or special exceptions in those zones. The board may then set such time limits as are reasonable and legally permissible for the service providers and tower owners/operators to remove the nonconforming towers and replace them with the newer technologies. This subsection shall be effective only if and to the extent not prohibited or preempted by state or federal law.
(Ord. No. 97-11, § 13, 6-23-97)
(k)
Reserved.
(Ord. No. 97-11, § 14, 6-23-97)
(l)
Application submission requirements for special exception, variance, appeal of zoning manager decision, and building permit requests. The following information shall be submitted concurrent with special exception, variance, appeal of zoning manager decision, or building permit applications. The application may utilize any combination of site plans, surveys, maps, technical reports or written narratives necessary to convey the following information.
(1)
A scaled site plan clearly indicating the location, type and height of the proposed tower, on-site land uses and zoning, adjacent land uses and zoning (including when adjacent to other municipalities), adjacent roadways, proposed means of access, setbacks from property lines, elevation drawings of the proposed tower, and any other proposed structures.
(2)
A current tax map and aerial as provided by the county property appraisers office showing the location of the proposed tower.
(3)
Legal description of the parent tract and leased parcel (if applicable).
(4)
If not within the subsection (d)(2)d. separation distance from residential areas, approximate distance between the proposed tower and the nearest residential unit, platted residentially zoned properties, and unplatted residentially zoned properties. If within the subsection (d)(2)d. separation distance requirements, then exact distances, locations and identifications of said properties shall be shown on an updated tax map.
(5)
If within the subsection (d)(3) separation distance from another tower, then the exact distance, location, and identification of other towers shall be shown on an updated tax map. The applicant shall also identify the type of construction of the existing tower(s) and the owner/operator of the existing tower(s), if known.
(6)
A landscape plan showing specific landscape materials.
(7)
Method of fencing, and finished color and, if applicable, the method of camouflage and illumination.
(8)
A notarized letter signed by the applicant stating the tower will comply with all EIT/TIA 222-E Standards and all applicable county codes.
(9)
A statement by the applicant as to whether construction of the tower will accommodate co-location of additional antennas for future users.
(10)
An inventory of all communication towers located in Orange County which are under the applicant's control and/or are being used by the applicant. Information on each tower listed shall include:
a.
The type of tower or structure;
b.
The height of the tower including antennas;
c.
Latitude and longitude location;
d.
Street address; and
e.
Indication whether the site is co-located and, if so, with whom.
(Ord. No. 97-11, § 12, 6-23-97)
(11)
a.
A copy of the recorded memorandum of lease evidencing co-location, if such memorandum exists.b.
When there is no memorandum of lease filed with the permit application, the application shall be held by the zoning manager for forty-five (45) days, and:
1.
Within fifteen (15) days of permit application being submitted to the county the applicant shall send by registered mail notice to each FCC-licensed service provider in the applicant's search ring and each FCC-licensed service provider who has registered for notice under this provision with Orange County. The notice shall include the location of the proposed tower (by street address and longitude and latitude), the height of the proposed tower, and a statement identifying the fair market value of leasing space on the tower for a second antenna by another service provider;
2.
After notice, if another service provider desires to locate on the proposed tower, but cannot reach agreement with the tower applicant then, prior to expiration of the forty-five-day period, the service provider may request a hearing under subsection 38-1427(m);
3.
The zoning manager shall take action on the permit application either after the forty-five-day period has run or upon final resolution of a matter forwarded to the hearing officer pursuant to subsection 38-1427(m), whichever is later;
4.
The applicant may provide registered mail notice to those service providers as required in subsection 1. above any time thirty (30) days before application is made to the county. Upon documentation of registered mail being sent, the forty-five-day period shall be reduced by the amount of days notice was sent prior to the application being filed.
(Ord. No. 97-11, § 12, 6-23-97)
(12)
If deemed necessary by the county, the zoning manager may require the applicant to hold a community meeting prior to the board of zoning adjustment hearing meeting in addition to the other requisite notice requirements.
(Ord. No. 97-11, § 12, 6-23-97)
(13)
For all special exception and/or variance requests the applicant shall provide the RF search ring used to determine the location of the applicant's request. In addition, the applicant shall supply a report that other parcels within the applicant's search ring have been reviewed and, where appropriate, contacted. The applicant shall provide adequate documentation to substantiate the applicant's determination of feasibility of the selected site.
(Ord. No. 97-11, § 12, 6-23-97)
(14)
In addition to the above, all communication towers/ antennas shall comply with the commercial site plan review requirements set forth in chapter 30, article VIII, of the County Code.
(Ord. No. 97-11, § 12, 6-23-97)
(m)
Co-location condition for towers eighty (80) feet in height and taller.
(1)
Every special exception for a communication tower which is eighty (80) feet in height or taller and which is issued after June 23, 1997, shall include the following conditions:
a.
All new communication towers shall be designed and constructed to accommodate at least one (1) other service provider.
b.
The applicant for a new communication tower shall provide a notarized letter acknowledging that the communication tower is designed and will be constructed to accommodate at least one (1) other service provider.
c.
All service providers shall cooperate in good faith with other service providers to accomplish co-location of additional antennas on communication towers which are existing, permitted, or otherwise authorized by Orange County, where feasible.
(2)
Technical requirements, site constraints and reasonable terms and conditions are relevant factors in determining if co-location is feasible.
(3)
Any request for co-location by one (1) service provider to the applicant for or holder of a special exception for a communication tower shall be in written form and a copy forwarded by the requesting service provider to the zoning manager. A request for co-location shall also include: (i) a request for co-location by a third-party service provider under a memorandum of lease for a tower which is not yet physically co-located and (ii) an inquiry by the zoning manager as to whether a tower actually provides for co-location by physically supporting two (2) or more antennas after the prescribed three-year period set forth in a memorandum of lease applicable to the particular tower; provided, however, that the foregoing inquiry authority of the zoning manager under this clause (ii) and subsection (b)(8) shall not be exercised with respect to a particular communication tower more frequently than after three (3) years initially and thereafter annually.
(4)
Applicant for or holder of a special exception for a communication tower shall respond to the request for co-location in written form within forty-five (45) days of receipt of the request by:
a.
Granting the terms of co-location as mutually agreed upon by the parties;
b.
Denying such request if such denial clearly sets forth valid reasons for denial which shall include, but not be limited to: (i) refusal to accept or offer rent within market rates; (ii) availability of space on tower; (iii) technical reasons such as, but not limited to, interference; and
c.
Extending the time limits delineated in this subsection (4) by mutual agreement of the parties, not to exceed a total of one hundred twenty (120) days for the request to be either granted or denied from the date of the receipt of the original request.
d.
If responding to an inquiry from the zoning manager as to the status of provision of co-location under a memorandum of lease, by either establishing that two (2) or more antennas are physically located on the tower or by providing a report to the zoning manager detailing the good-faith efforts made to accommodate co-location. Failure to have physical co-location accomplished within a three-year period from the date of the memorandum of lease may require the tower approval to be subject to review under subsection (m)(6). If the zoning manager determines to forward the matter to a hearing officer, he shall first prepare a report and send it to the board of county commissioners and the holder of the special exception.
(5)
The service provider shall submit a second notice to the applicant for or holder of a special exception for a communication tower seven (7) days prior to the expiration of the response period set forth in subsection (4).
(6)
If the procedures set forth above are adhered to by the requesting service provider and the applicant for or holder of a special exception for a communication tower fails to comply with subsection (4) either within the time frame set forth therein or by not providing adequate evidence to substantiate its reason to deny the co-location request, either the county or the service provider seeking to co-locate may initiate actions at the county to revoke the tower's special exception. The matter shall be forwarded to a hearing officer and a date scheduled for a hearing in accordance with the following procedures.
a.
The request to initiate action before a hearing officer shall be made within thirty (30) days from the date of response by the holder of the special exception or the date such response would be due under subsection (4).
b.
In the utilization of the hearing officer(s) under this section, section 30-387(b), (c), (d), (e) and (g), pertaining, respectively, to term and compensation, ex parte communication, hearing officer prohibition from acting as an agent or attorney for subject matter, hearing procedures, and filing of a decision, shall generally be applicable.
c.
At the hearing, the hearing officer shall allow the zoning manager or his designee(s), the service provider seeking co-location, and the special exception holder an opportunity to present evidence and to examine and cross-examine witnesses. After considering the evidence and testimony, the hearing officer shall make a factual determination as to whether the special exception holder acted in violation of this section and issue an order. If the hearing officer makes a factual determination that the special exception holder has not acted in good faith and is in violation of this section, the order shall state what those violations are and provide a recommendation for final action to the board of county commissioners. The hearing officer's recommendation shall be forwarded to the board of county commissioners and upon confirmation shall become final unless appealed to the board or called for review by the board.
d.
Any appeal from a hearing officer's decision shall first go to the board of county commissioners and then may proceed to circuit court. Such an appeal shall generally follow the procedures set forth in section 30-388 of this Code, with references to "an application for a vested rights certificate" in this instance interpreted to mean "a hearing officer's decision on a co-location request issued pursuant to subsection (m). Further, the last sentence of subsection 30-388(a)(3) of this Code is specifically not applicable to proceedings under this section. An appeal from a hearing officer's decision shall stay all actions directed by such decision until the appeal is fully resolved.
e.
If at any time during this process the special exception holder submits to the zoning manager a recorded memorandum of lease with any other service provider the further proceedings hereunder shall be canceled since the tower will in fact be a co-located facility. Prior to canceling the hearing, the zoning manager will verify the memorandum of lease. The zoning manager shall notify the parties and the hearing officer of the cancellation of these proceedings. Upon termination of the co-location lease, subsections (m)(4), (5), and (6) shall again apply.
(7)
Failure to comply with subsection (1) and (4) herein is grounds for revocation of the tower's special exception.
(Ord. No. 97-11, § 15, 6-23-97)
(n)
Standards and criteria for review of special exception requests on communication tower facilities.
(1)
Intent and purpose. The intent and purpose of this subsection is to address and balance the concern that communication towers may not be appropriate uses in residential areas because of the aesthetic and compatibility conflicts that arise when these facilities are located in close proximity to residential uses and the recognized need of the services the communication towers provide to the public. These issues shall be reviewed on a case-by-case basis for each special exception request in accordance with the standards set forth in subsection 30-42(2) of this Code and section 38-78 of this chapter and the provisions of this subsection. The board of zoning adjustment (BZA) shall consider and weigh the aesthetic impact and compatibility issues with the public benefit derived from having an efficient and reliable wireless communications systems when determining whether or not to grant special exception approval. To assist the BZA in reaching such determination, the application shall provide the following information set forth in subsection (2) and may optionally supply that information set forth in subsections (3) through (6) below and comply with the procedures and requirements set forth in this subsection, including production of documentation to verify the completion of these requirements.
(2)
Balloon test. The purpose of this test is to assist the BZA in determining aesthetic impact with respect to height and closeness of a communication tower in proximity to nearby residential uses and zoning. The following criteria shall be met:
a.
Balloon specifications:
1.
Balloon diameter no less than four (4) feet;
2.
Balloon color restricted to red, orange, or yellow;
3.
Balloon is anchored to the ground;
4.
The height at which the balloon is flown shall be the same as the combined height of the tower and its antennas up to one hundred ninety-nine (199) feet; balloons for towers taller than one hundred ninety-nine (199) feet shall be flown at one hundred ninety-nine (199) feet;
b.
The balloon shall be flown after the public hearing poster is required to be erected on-site. Balloons shall be flown at a minimum, continuously between the hours of 7:00 a.m. and 10:00 a.m. each day it is required to be flown. The balloon shall be flown for a minimum of two (2) days. Failure to maintain the balloon as specified above may result in a delay of the public hearing in order to achieve compliance with same.
c.
Each notice required pursuant to section 30-44 of this Code shall include a statement that the balloon will be flown at least two (2) days during the morning hours prior to the public hearing date.
(3)
Visual aides. In addition to the balloon test, the applicant may take and submit for BZA review photographs and/or a video taping of the subject site showing the balloon and of the subject site depicting the balloon in its relationship and proximity to neighboring residential lands and uses. The photographs/video may be accompanied by a corresponding written visual impact analysis prepared by the applicant.
(4)
Additional information. The applicant may submit any other bona fide documentation or evidence that he or she feels may assist the BZA in determining visual impact. Any person or party opposing the applicant's special exception request should submit bona fide evidence or documentation that a proposed tower will have a substantial adverse aesthetic impact on his/her property.
(5)
Camouflaged facilities. The purpose of this subsection is to assist the BZA in determining whether or not a tower as a camouflaged facility is appropriate in a given area. The applicant may use a camouflage agent in order to achieve compatibility with the nature and character of the surrounding area. Camouflaging shall be determined on a case-by-case basis. Any proposed camouflaging shall be submitted in conjunction with the special exception application. It shall include the following documentation:
a.
Colorized pictorial representation, artist's rendering, or the like;
b.
Design specifications as follows: total height, diameter, and colorations;
c.
A corresponding statement accompanying the graphic representation explaining the following:
1.
What is the nature and character of the area within which the camouflaged tower is proposed, with respect to: land use, surrounding environment, building heights and designs, and building/environment density;
2.
How will the proposed camouflaged agent blend in and harmonize with the nature and character of the area.
(6)
Separation distance reduction for camouflaged facilities. In the event the BZA, or the BCC if the property is zoned PD, using the standards set forth in subsection (n)(5) above, determines the camouflaging agent is compatible with the surrounding area, then the distance separation requirements set forth in subsections 38-1427(d)(2)d and (d)(3) for the proposed communication tower as a camouflaged facility shall be reduced by one-half ( 1/2; ) of the applicable monopole height requirement. The reduction should only be applicable to the placement of the camouflaged tower and the measurement of distance separation from other towers to the camouflaged tower shall not be reduced.
(7)
BZA special exception criteria. In determining a special exception request for a communication tower in addition to those criteria set forth in subsection 30-43(2) of this Code and section 38-78 of this chapter, the BZA shall take into consideration whether or not the proposed tower will have substantial adverse aesthetic impact on neighboring residential lands and compatibility of a camouflaged tower in a given area. The BZA's determination shall be based on relevant and competent evidence, documentation, and testimony received at the public hearing from the staff, the applicant and any party in support or opposition, or their respective representatives. The BZA shall utilize the following criteria in determining if a special exception is deemed approvable:
a.
Aesthetic impact. This means view of a tower that is not camouflaged. Aesthetic impact shall take into consideration, but not be limited to, the amount of the tower that can be viewed from surrounding residential zones in conjunction with its proximity (distance) to the residential zone, mitigation landscaping, existing character of surrounding area, or other visual options proposed by the applicant.
b.
Compatibility. This means the degree to which a tower is designed and located to be compatible with the nature and character of other land uses and/or with the environment within which the tower proposes to locate. The tower may be placed, designed or camouflaged to assist with mitigating the overall aesthetic impact of a tower. A camouflage agent shall be designed to be compatible with the surrounding land uses and the environment.
(8)
Minimum standards. In addition to the above, the minimum performance standards with respect to separation between towers, separation between residences and towers, etc., as referenced herein, shall be met. These standards, however, are minimum standards; the BZA is empowered to impose more restrictive conditions to a special exception in order to recommend approval so as to achieve the desired protection with respect to aesthetic impact and harmony and compatibility with the surrounding community. The determination by the BZA to impose more restrictive conditions shall be based on substantial competent evidence that supports the modification and the consistency of the modification with the purpose and intent of this section.
(Ord. No. 97-11, § 16, 6-23-97)
(o)
Utilization of existing pole-type structures. A communication antenna which is attached to an existing pole-type structure or the existing pole-type structure is replaced with a monopole tower to accommodate both its prior function and a communication antenna shall be a permitted ancillary use provided each of the following criteria are met:
(1)
The communication antenna attached to the existing pole-type structure or replacement monopole shall not extend above the highest point of the pole-type structure or replacement monopole more than twenty (20) feet, as measured from the height of the pre-existing pole-type structure.
(2)
a.
If the resulting structure/tower adds additional height over the pre-existing pole-type structure, the closest residential structure shall be away from the base of the pole-type structure or replacement tower a distance of at least one hundred ten (110) percent the height of the entire structure/tower.
b.
If no additional height over the height of the pre-existing pole-type structure is added by either (i) the attachment of the communication antenna to the existing pole-type structure, or (ii) the replacement tower including the communication antenna, then the structure/tower is permitted with no additional distance separation to residential structures over that which was provided by the pre-existing pole-type structure.
(3)
The communication antenna and support structure comply with all applicable FCC and FAA regulations.
(4)
The communication antenna, pole-type structure, and/or replacement monopole tower comply with all applicable building codes.
(5)
Pole-type structure (i) within side yard or rear yard residential subdivision easements, or (ii) if used for power distribution of fourteen (14) kilovolt service or less, shall not be eligible for use under this subsection (o). However, other pole-type structures within public road rights-of-way and within limited access road system rights-of-way are eligible for use under this subsection (o), provided the antenna shall be canister-type.
(6)
The utilization of an existing pole-type structure for placement of a communication antenna in compliance with the requirements of this subsection (o) shall supersede the separation requirements contained in subsections (d)(2)d. and (d)(3)a.
(7)
In the event that the utility pole or structure is abandoned for its initial/primary use as a utility pole, the secondary use as a communication tower shall also cease to operate and the structure and communication antenna removed.
(Ord. No. 95-25, § 4, 8-29-95; Ord. No. 96-10, §§ 3, 4, 4-30-96; Ord. No. 97-11, § 17, 6-23-97; Ord. No. 2016-19 , § 40, 9-13-16)