A.    PURPOSE. This purpose of this article is to ensure that residents and businesses have reliable access to wireless telecommunications networks while also protecting the health, safety, welfare, and aesthetic character of the community. The City of Haysville recognizes that facilitating the development of wireless service technology can be an economic development asset to the city and a benefit to residents. This section is intended to ensure that the placement, construction, and modification of wireless telecommunications facilities complies with all applicable federal and state laws and is consistent with the City’s land use policies, zoning, planning, and design standards.

B.    APPLICABILITY. The provisions of this section apply to wireless infrastructure in the City which is not located in the public right-of-way. Wireless infrastructure in the City which is located within the public right-of-way, including Small Wireless (small cell) and Distributed Antenna System (DAS) facilities, is regulated by Chapter 13, Article 4 of the City Code.

C.    ZONING REQUIREMENTS FOR WIRELESS INFRASTRUCTURE.

1.    Any applicant wishing to construct, replace, or repair wireless infrastructure in Haysville must first apply for and obtain a zoning permit.

2.    Zoning permits are not required for:

a.     Routine maintenance of elements of existing wireless infrastructure.

b.    Antennas or other equipment erected temporarily on an existing wireless facility, for test purposes or for emergency communication, which are removed within 72 hours following installation.

3.    Zoning small wireless or DAS facilities.

a.     Zoning permits are not required for installation or operation of a small wireless or DAS facility which is located entirely inside a structure, or entirely on the site of a campus, stadium or athletic facility.

b.    In residential zoning districts, small wireless or DAS facilities which are not located in a public right-of-way, or entirely inside a structure, or entirely on the site of a campus, stadium or athletic facility, are allowed as a conditional use.

c.     In commercial or industrial zoning districts, small wireless or DAS facilities which comply with the district’s maximum height restriction are a permitted use.

(1)   A small wireless or DAS facility which does not comply with the district’s maximum height restriction may be allowed as a special use.

4.    Wireless facility antennas on existing structures. In all commercial or industrial zoning districts, wireless facility antennas which are installed on an existing tower or base station, meet applicable performance standards, and comply with the district’s maximum height restriction are a permitted use.

5.    An antenna which does not comply with the district’s maximum height restriction may be allowed as a special use.

6.    Other wireless facilities. In the g zoning district, wireless facility structures, other than small wireless or DAS facilities or antennas mounted on an existing tower or base station, are a permitted use.

a.     Wireless facility structures which do not comply with the district’s maximum height restriction may be allowed as a special use.

D.    APPLICATION PROCEDURES.

1.    Shot clocks are time limits established by the FCC, within which a state or local government is required to process an application to deploy a wireless infrastructure facility.

a.     Shot clock start. A shot clock begins running (tolling) on the day the application is submitted.

(1)   Exception: if an application is submitted on a holiday, the shot clock starts running on the next business day.

b.    Applicability.

(1)   Shot clocks apply to all authorizations necessary for the deployment of personal wireless service, including:

       i.     License or franchise agreements to access public rights-of-way.

       ii.    Required pre-application procedures, public notices, and meetings.

       iii.   Site plan review and approval procedures.

       iv.   Building permits, electric permits, and road closure permits.

(2)   Shot clocks apply to applications submitted in batches.

       i.     Section 332 of the communications act prohibits localities from refusing to accept batched applications. (see 47 u.s.c. § 332).

c.     Shot clocks as determined by the 2018 FCC declaratory ruling and third report and order FCC 18-133.

(1)   For small wireless facilities:

       i.     To review a small wireless facility application for completeness, and notify the applicant of missing information in order to reset the shot clock - 10 calendar days [47 c.f.r. §1.6003(d)(l)].

       ii.    To act on an application to collocate a small wireless facility on an existing structure (does not have to be a telecommunications structure) 60 calendar days [47 c.f.r. §1.6003(c)(l)(i)].

       iii.   To act on an application for a small wireless facility using a new structure - 90 calendar days (47 c.f.r. § 1.6003( c)( l)(iii)].

(2)   For other wireless facilities:

       i.     To review any wireless facility application for completeness, and toll the shot clock if the applicant is notified in writing the application is not acceptable - 30 calendar days (47 c.f.r. §1.6003(d)(2){iii)].

       ii.    To review a resubmission and notify the applicant of any missing information - 10 calendar days (47 c.f.r. § 1.6003( d){3 )(iii)].

       iii.   To act on a request for a non-substantial modification, including modifications to macro towers - 60 calendar days (47 u.s.c. §1455].

       iv.   To act on an application to collocate a facility other than a small wireless facility using an existing structure - 90 calendar days (47 c.f.r. §1.6003(c)(1){ii)].

       v.    To act on an application for a facility other than a small wireless facility using a new structure - 150 calendar days (47 c.f.r. §1.6003(c)(1)(iv)].

2.    Approval deadlines. If the zoning administrator does not issue a final decision on a wireless facility application within the shot clock time limits specified above in section_05_, then the applicant may provide notice to the zoning administrator that the time period has lapsed, and the application is then deemed to be approved. (see K.S.A. 66-2019.)

3.    Incomplete applications. If the application is materially incomplete, the zoning administrator must notify the applicant that more documents or information are required within 30 days after the application was submitted.

a.     The notification must identify the missing documents or information, and also specify the rule or regulation that requires their submission.

b.    The shot clock will restart at zero on the day the applicant provides a supplemental application containing the required information.

(1)   If the supplemental application does not provide the missing documents or information identified in the original notice, the zoning administrator must notify the applicant within 10 days after the supplemental application was submitted.

(2)   The shot clock will be paused on the day the notice of an incomplete supplemental application is provided to the applicant, and will resume on the day the applicant provides a completed supplemental application containing the required information.

4.    Denial of application. If an application is denied, the zoning administrator will notify the applicant in writing of the reasons for the denial.

a.     Within 30 days of the notice, a party aggrieved by the city’s denial of an application may bring an action for review in any court of competent jurisdiction.

5.    Planning Commission special use review. The Planning Commission must review a special use for any application which is not permitted by right in the underlying zoning district.

a.     Exceeding wireless facility height limitations. In all zoning districts, applicants may apply to the Planning Commission for a special use to exceed maximum height limitations established in the review criteria for all types of wireless facilities.

6.    Zoning administrator approval. The zoning administrator may approve wireless facility zoning permit applications for:

a.     Modification or replacement of an existing tower or base station.

(1)   The zoning administrator must issue a final decision on the application within 60 calendar days after a complete application is filed.

b.    New small wireless or DAS facilities on an existing tower or base station.

(1)   The zoning administrator must issue a final decision on the application within 60 calendar days after a complete application is filed.

c.     Installation of a new antenna on an existing tower or base station, if the antenna is permitted by right in the underlying zoning district, and meets applicable performance standards.

(1)   The zoning administrator must issue a final decision on the application within 60 calendar days after a complete application is filed.

d.    A new antenna on an existing tower or base station, which substantially changes the physical dimensions of the tower or base station, and which:

(1)   Has been authorized as a special use by the board of zoning appeal.

(2)   Is permitted by right in the underlying zoning district.

(3)   Meets applicable performance standards.

(4)   The zoning administrator must issue a final decision on the application within 90 calendar days after a complete application is filed.

e.     A new tower.

(1)   Has been authorized as a special use by the board of zoning appeals.

(2)   Is permitted by right in the underlying zoning district.

(3)   Meets applicable performance standards.

(4)   The zoning administrator must issue a final decision on the application within 150 calendar days after a complete application is filed.

7.    Notification requirements.

a.     For wireless facility applications as a special use, the applicant must provide written notice of the Planning Commission’s public hearing to all adjacent and abutting property owners of record within 500 feet of the property parcel for which the exception is being requested.

(1)   Notice must be provided at least 30 days in advance of the hearing.

(2)   Notice must be provided by certified mail, return receipt requested.

b.    For applications for zoning administrator approval, the applicant must provide written notice to all adjacent and abutting property owners of record within 500 feet of the property parcel that constitutes the proposed location of the wireless facility.

(1)   The notice must include:

       i.     Description of the proposed wireless facility.

       ii.    Plan drawing showing the proposed location and the facility improvements.

       iii.   Applicant’s contact information.

       iv.   A statement that the property owner has 20 days from the date of the notice to provide the city with any input regarding the application.

(2)   Notice must be provided by certified mail, return receipt requested.

F.    APPLICATION REQUIREMENTS.

1.    Pre-application conference. A pre-application conference between the applicant and designated city staff is required before filing an application for modification or replacement of an existing wireless facility, or construction of a new wireless facility.

a.     The pre-application conference may be waived by the zoning administrator.

b.    The purpose of the pre-application conference is to ensure the applicant understands all requirements, to address issues that will expedite the review and approval process, and to establish a tentative timeline.

c.     The pre-application conference does not toll applicable shot-clocks under federal or state law.

2.    Application contents. Unless waived by the zoning administrator, the applicant must include the following information in an application for a zoning permit for a wireless facility.

a.     Site plan.

b.    Landscape plan that demonstrates effective screening as required by section 501(0) of this code, with all materials and plant sizes specified.

c.     Elevation drawings of the proposed wireless facility. Show all towers, base stations, antennas, transmission equipment, accessory equipment, cabinets, fencing, screening, landscaping, lighting, and other improvements related to the facility, including information on specific colors and materials.

d.    Lighting plan, showing that the proposed wireless facility complies with federal aviation administration regulations.

e.     Digital before and after photo simulations of the site, demonstrating the visual impact of the proposed wireless facility on the surrounding environment.

(1)   The zoning administrator may require photo simulations from any specific vantage point.

f.     Notices. A statement from the applicant affirming that required notices were sent in a timely manner.

(1)   Include a list of the addresses to which notices were sent.

(2)   Include copies of certified mail return receipts.

g.     Leased property. If any part of the wireless facility site is leased, the applicant must provide a signed copy of the lease, and a signed statement from the property owner indicating the property owner’s approval for the proposed wireless facility.

(1)   The documentation must contain a provision stating that, if the lessee abandons the facilities or terminates the lease and fails to remove the wireless facility, the property owner will be responsible for removing the wireless facility.

h.    Engineer’s report. A report from a licensed engineer registered in Kansas which:

(1)   Describes the wireless facility’s height and design, including a cross section and elevation.

(2)   Describes the wireless facility’s structural capacity, and its ability to safely accommodate antennas and other equipment.

(3)   Includes the engineer’s seal and license number.

i.     An application for zoning administrator approval of antenna placement on roofs, walls, and existing wireless infrastructure must include a final site and building plan.

j.     Application fee. Fees shall be as established in Chapter 17 of the Municipal Code of Haysville, Kansas and shall be paid at the time of permit application. The fee must not exceed statutory maximums as required by K.S.A. 66-2019(c). The fee must reflect the actual costs of processing the application.

3.    Consolidated application for small wireless and DAS facilities. An applicant may file a single consolidated application for a small wireless network of up to 25 individual small wireless facilities of a substantially similar design in both appearance and function. (see K.S.A. 66-2019(g).)

G.    APPLICATION APPROVAL CRITERIA.

1.    Wireless facility zoning criteria.

a.     Screening. Ground mounted accessory buildings, structures and equipment, which are visible from public ways or any other nearby property, must be screened with a solid wall at least 6 feet in height.

b.    Signs. No signs may be applied on or attached to any part of a wireless facility, except for associated warning or emergency information signs.

2.    Wireless facility location criteria.

a.     Only one wireless facility tower or base station is permitted at any one time on anyone zoning lot.

b.    Setbacks. Wireless infrastructure must meet all setback requirements of the underlying zoning district.

(1)   No minimum setback is required for wireless facility antennas attached to utility transmission support structures, light standards, traffic signals, etc.

c.     Easements. Wireless infrastructure must not unlawfully encroach on any easements.

d.    Wireless infrastructure must not be located between a principal structure and a public street.

(1)   Exception: in industrial zoning districts only, wireless infrastructure may be located between a principal structure and a public street which is not an arterial street.

3.    Wireless facility design criteria.

a.     All wireless infrastructure and antennas constructed in the city, including all associated electrical components and wiring, must comply with the following requirements:

(1)   All applicable provisions and requirements, including the latest structural standards and wind loading requirements, of the Haysville Municipal Code.

       i.     Compliance must be certified by a licensed engineer registered in Kansas.

(2)   Federal communications Planning Commission guidelines for wireless infrastructure.

b.    Tower design. Towers must be a self-supporting design, or otherwise architecturally compatible with surrounding development.

(1)   Exception: a special use for a guyed tower may be approved by the governing body.

c.     Tower height limitations.

(1)   Tower height is defined as the vertical distance from the wireless facility’s point of contact with the ground or building to the highest point of the wireless facility, including all antennas or other attachments, but not including any lightning rod 10 feet or less in height.

(2)   Maximum tower height by zone.

d.    Antennas and accessory facilities.

(1)   Antennas and visible accessory facilities on rooftops must meet the requirements of section 501(0) of this code.

       i.     Antennas attached to a roof must be located as close to the center of the roof as possible.

(2)   Antennas may be installed on any existing building or structure, excluding single-family residences and their accessory structures, provided that the antennas add no more than 20 feet to the height of the existing structure.

(3)   Color. Antennas and visible accessory facilities must be colored and finished to be as visually unobtrusive as possible.

e.     With the exception of public electric and communications service and connection lines, no part of any wireless facility or its associated equipment must at any time extend over a property line.

f.     Facility wiring. All low energy conductors extending horizontally above the ground between a wireless facility or antenna and an accessory facility, or between wireless infrastructures, must either be buried underground, or be at least 8 feet above the ground at all points.

(1)   Facility wiring should not cross over, under, or through private property.

g.     Utilities. With the exception of emergency power systems, all utilities at a wireless facility site must be installed underground and in compliance with applicable codes.

h.    Equipment cabinets. No more than 4 equipment cabinets are permitted per wireless facility, unless otherwise approved by the Planning Commission.

i.     Equipment storage. Equipment which is not used in direct support of a wireless facility must not be stored on the wireless facility site, unless the wireless facility is being repaired or an emergency exists.

j.     Parking areas and drives. Parking areas and drives associated with the wireless facility must be designed to provide adequate emergency and service access.

(1)   Vehicles must not be parked on the wireless facility site, unless the wireless facility is being serviced or inspected, or an emergency exists.

k.    Landscaping. Wireless infrastructure must meet the requirements of section 501 of this code.

(1)   Maintenance of wireless facility landscaping. The owner or provider is responsible for maintenance of all landscaping.

l.     Security fence and screening. Wireless infrastructure which is not in the right-of-way, and which incorporates ground mounted equipment or accessory structures must be surrounded by a security fence and screening at least 6 feet in height, that prevents unauthorized access.

m.   Lighting. Except for lighting specifically required by the federal aviation administration or other federal or state authority, wireless infrastructure must not be artificially illuminated and must not display strobe lights.

(1)   Security lighting around the base of a tower may be provided if the lighting is shielded so that no light is directed towards adjacent properties or rights-of-way, and the lighting avoids illuminating the tower.

(2)   When incorporated into the design of the wireless telecommunication facilities, streetlights, traffic signal, or light fixtures used to illuminate ball fields, parking lots, or similar areas may be attached to the wireless facility.

(3)   Temporary lighting for nighttime repairs is permitted.

H.    WIRELESS FACILITY INSPECTIONS.

1.    Wireless facilities must meet operational standards established by the FCC, FAA, EPA and other applicable federal regulatory agencies.

a.     If standards are revised, the wireless facility must be brought into compliance within 6 months of the effective date of the revised standards.

b.    Failure to comply with federal standards constitutes grounds for removal of the facility at the owner or provider’s expense.

2.    All wireless facilities may be inspected by the zoning administrator or their designee, to determine compliance with original construction standards.

a.     Deviation from original construction standards constitutes a zoning violation.

b.    If the city inspection determines that the wireless facility does not comply with city building codes, and constitutes a danger to persons or property, the zoning administrator will notify the wireless facility owner or property owner in writing.

(1)   The wireless facility owner or property owner must bring the wireless facility into compliance within 30 days following written notice, or the city may order the removal of the wireless facility, or have the wireless facility removed at the owner or property owner’s expense.

I.     REMOVAL OF ABANDONED FACILITIES FOR WIRELESS COMMUNICATION. ANY WIRELESS FACILITY THAT IS NOT OPERATED FOR 12 CONTINUOUS MONTHS WILL BE CONSIDERED ABANDONED AND A NUISANCE.

1.    The zoning administrator will provide written notice to the wireless facility owner or the landowner, that the wireless facility must be removed within 90 days of receipt of the notice.

2.    The wireless facility owner may be allowed to demonstrate whether the wireless facility has been in operation during the time period in question. The burden of proof is on the owner.

3.    If the wireless facility is not removed within 90 days, the city may have the wireless facility removed at the wireless facility owner or landowner’s expense.