ORDINANCE NO. 2130

AN ORDINANCE ADOPTING REGULATIONS OF THE EUREKA SPRINGS, ARKANSAS, PLANNING COMMISSION ESTABLISHING STANDARDS
FOR THE LOCATION, DEVELOPMENT, CONSTRUCTION AND
MAINTENANCE OF WIRELESS COMMUNICATIONS FACILITIES,
ESTABLISHING A PROCESS OF APPLICATION, REVIEW AND APPROVAL
AND FOR OTHER PURPOSES

WHEREAS, the Federal Government through the Federal Communications Commission (FCC), has issued wireless communications licenses for cellular, personal communication services (PCS), paging and other providers of wireless antenna services;
WHEREAS, the City of Eureka Springs, Arkansas, has been recognized for its Historic District since 1970 which is considered an asset to the city; and
WHEREAS, the City Council of the City of Eureka Springs, Arkansas, has an obligation to protect the assets of the city; and
WHEREAS, the demand by citizens for new wireless communications services has produced an increased need for installation of wireless antennas and Wireless Communications Facilities (WCF) to serve the public, including the citizens in Eureka Springs, Arkansas; and
WHEREAS, the Federal Telecommunications Act of 1996 (FTA) preserves local zoning authority to regulate Wireless Communication Facilities (WCF); provided, however, that localities may not unreasonably discriminate between FCC license holders and that localities cannot prohibit or effectively prohibit the provision of wireless services, and the FTA gives the FCC sole jurisdiction over radio frequency emissions, provided the WCF meet FCC standards thereof;
WHEREAS, additional WCF are necessary to provide quality communication services to meet the growing needs of the public and businesses for wireless communications and should be accommodated in the City of Eureka Springs, Arkansas; and
WHEREAS, WCF should be reasonably regulated to minimize potential adverse aesthetic impacts on the surrounding area; and
WHEREAS, the Planning Commission has reviewed and has recommended the adoption of the regulations for wireless communications facilities,

NOW, THEREFORE, BE IT ORDAINED BY THE EUREKA SPRINGS, ARKANSAS, CITY COUNCIL THAT:
The Eureka Springs, Arkansas, Municipal Code Title 14 Zoning Chapter 14 is hereby amended by adding a new Section 14.12.05 entitled “Wireless Communications Facilities.”

Section 1: Statement of Purpose
The purposes of these regulations are described as follows:
A. To establish general guidelines for the siting of Wireless Communications Facilities (WCF) and granting of Tower Use Permits.
B. To minimize the number of new towers needed by encouraging the use of existing towers and existing public and private structures, including utility poles, signs, water towers, buildings and other WCF where feasible;


C. To preserve the stability of land values of properties near and adjacent to proposed commercial tower locations.
D. To protect residential and historic areas from the uncontrolled development of WCF by requiring reasonable siting conditions.
E. To streamline and expedite permitting procedures to effect compliance with the Federal Communications Act of 1996;
F. To facilitate the use of public property and structures for WCF.

Section 2: Definitions
Antenna Array means one or more rods, panels, discs or similar devices used for the transmission or reception of radio frequency signals, which may include an omni directional antenna (rod), a directional antenna (panel) and a parabolic antenna (disc). The Antenna Array does not include the Support Structure defined below.

Attached Wireless Communications Facility (Attached WCF) means Antenna Array attached to an existing building or structure which shall include, but not be limited to, utility poles, signs or water towers, with any accompanying pole or device that attaches the Antenna Array to the existing building or structure and associated connection cables, and any equipment facility which may be located either inside or outside the Attachment Structure.

Collocation or Site Sharing means use of a common WCF or common site by two or more wireless license holders or by one wireless license holder for more than one type of communications technology or placement of a WCF on a structure owned or operated by a utility or other public entity.

Department means the Code Enforcement Department.

Department Standards, as used in this Chapter shall mean those standards set forth in Section 4 hereof.

Equipment Facility means any structure used to contain ancillary equipment for a WCF that includes cabinets, shelters, an extension or addition onto an existing structure, pedestals, and other similar structures.

FAA means the Federal Aviation Administration.

FCC means the Federal Communication Commission.

FTA means the Federal Telecommunications Act of 1996.

Height, when referring to a WCF, shall mean the distance measured from ground level to the highest point on the WCF, including the Antenna Array.

Monopole Tower is a supporting structure composed of a solid pole without any guy-wired support.

Review Process. As used in this Chapter, Review Process shall mean those processes set forth in Section 5 hereof.

Setback means the required distance from the foundation of WCF land based elements, including guy-wires, to the property lines of the parcel on which the WCF is located.

Stealth Technology means systems, components and materials used in the construction of WCF which are designed to mask or conceal the WCF to make it less visually intrusive to the surrounding property.

Substantially Invisible means a WCF will blend into its surroundings and not be readily apparent from all significant potential public viewing points. Methods to reduce visibility include avoiding mountaintops and ridgelines; using terrain and trees as foreground and backdrops to screen towers; minimizing tower height and bulk; using color to blend with surroundings; using existing buildings to locate facilities whenever possible; using architecturally compatible buildings to house ground equipment; and otherwise using best available technology that avoids or minimizes visual impacts. When none of the above-preferred methods achieves substantial invisibility, camouflage in scale with the surroundings may be proposed in order to blend the facility with the visual setting.

Support Structure means a structure designed and constructed specifically to support an Antenna Array, and may include a monopole tower, a self supported lattice tower, a guy-wire supported tower or other similar structures. Any device used to fasten an Attached WCF to an existing building or structure shall be excluded from the definition of and regulations applicable to Support Structures.

Temporary Wireless Communications Facility (Temporary WCF) means a WCF to be placed in service for ninety (90) or fewer consecutive days at the same location.

Tower Use Permit (TUP) means a permit issued by the City specifically for the location, construction and use of a WCF subject to an approved site plan and any special conditions determined by the Code Enforcement Officer or Planning Commission to be appropriate under the provisions of this Chapter.

Wireless Communications means any personal wireless service as defined in the Telecommunications Act of 1996, which includes FCC licensed commercial wireless telecommunications services including cellular, personal communication services (PCS), specialized mobile radio (SMR), enhanced specialized mobile radio (ESMR), paging, and similar services that currently exist or that may in the future be developed.

Wireless Communication Facility (WCF) means any unstaffed facility for the transmission or reception of wireless telecommunications services, usually consisting of an Antenna Array, connection cables, an Equipment Facility, and a Support Structure to achieve the necessary elevation. This definition may also include an attachment to an existing structure.


Section 3: Applicability
(A) Permit Required. No person, firm or corporation shall install or construct any WCF unless and until a Tower Use Permit (TUP) has been issued pursuant to the requirements of this chapter.
(B) Exclusions.     
1. Existing Facilities.  Any communication tower currently located in the City of Eureka Springs, Arkansas, shall be excluded from this regulation except that any additions to existing towers would subject to the provisions herein.
2. Communication Tower Exclusions.  These regulations apply only to communication towers and not to business radio towers or broadcast towers.
3. Amateur Radio Facilities.  This chapter shall not govern the installation of any amateur radio facility that is owned and operated by a federally-licensed amateur radio station operator or is used exclusively for receive only antennas.
(C) Relationship to Other Ordinances. This chapter shall supersede all conflicting requirements of other code provisions and ordinances regarding the locating and permitting of WCF.
(D) Building Codes. Construction of all WCF’s shall comply with the requirements of the City of Eureka Springs Building Codes and permitting process in addition to the requirements of this chapter.

Section 4: Development Standards.
(A) Height standards. The following height standards shall comply to all WCF installations.
(1). Attached WCF. Any attached WCF shall not add more than ten percent (10%) of the total height of the existing structure, not to exceed the maximum height allowed in the zoning district where the WCF is to be located
(2). WCF with support structures. WCF with support structures shall be limited to the maximum heights as described in the following table.

WCF Can Be Approved by Administration with these height limits

Zone    Maximum Height

I -Industrial
A ‚Äö√Ñ√¨ Agricultural                                          250 feet
250 Feet

WCF in any zone other than noted in the table above must be approved by
the Planning Commission.
Towers and antenna may be approved on or near the Historic District and designated scenic corridors by special exception from the Planning Commission and only if so concealed as to be substantially invisible.  The views of, and vistas from, such structures, districts, and corridors shall not be impaired or diminished by the placement of telecommunications towers and antenna.
No new WCF shall exceed one hundred feet (100) in height. However, in the event of dense vegetation or other substantial obstacles to signal propagation, facilities may apply to receive approval to exceed to a height of no more than 20 percent (20%) above the average canopy height within one thousand (1,000) feet of the proposed facility.
WCF that simulate objects that typically occur in landscapes similar to the proposed facility (except billboards, electrical transmission towers or telecommunication towers) may exceed One hundred (100) feet in height if, based on the judgment of the Planning Commission, it would appear in context on the landscape, is aesthetically acceptable, and would be a preferable alternative to an undisguised facility.
(B) Administrative Approval. Attached WCF with or without new building construction and WCF in Zones I- Industrial and A-Agricultural may be permitted by administrative review as long as they meet all development standards.
(C) Planning Commission Review. Any application for WCF permit shall require submission to the Planning Commission, as described in Section 6 below.
(D) Support structures for WCF shall be the monopole type in all zones except I and A.
(E) Support structures located in any zone other than I and A shall use stealth technology with a design to be approved by the Planning Commission.
(F) Setback Standards. The following setback standards shall apply to all WCF installations:
(1) Attached WCF. Antenna Arrays for attached WCF are exempt from the setback provisions of any property zoned commercial. An attached WCF antenna array may extend up to thirty (30) inches horizontally beyond the edge of the attachment structure so long as the antenna array does not encroach upon an adjoining parcel.
(2) WCF with Support Structures. WCF with support structures in zones I and A shall meet the setback requirements for principle structures of the applicable zone in which they are located.
(3) WCF with Support Structures abutting or located in any zone other than I or A. WCF with support structures which abut property zoned other than I or A on any side or which is located within any residential zone, shall be set back a distance at least 2.5 times the height of the tower measured from the base of the tower to the property line of the residential lot and 1.5 times the height of the tower measured from the base of the tower to the nearest public road.
(G) Landscaping and Screening. The following landscaping and screening requirements shall apply to all WCF facility installations:
(1) New Construction. New WCF with support structures and attached WCF with new building construction shall be landscaped in accordance with the applicable provisions of the landscape ordinance which may now or hereafter be adopted.
(2) Land Form Preservation. Existing mature tree growth and natural land form on the site shall be preserved to the extent feasible; provided, however, that vegetation causing interference with the antenna’s performance or inhibiting access to the equipment facility may be trimmed.
(3) Existing Vegetation. Existing vegetation on a WCF site may be used in lieu of required landscaping where approved by the Planning Commission.
(H) Aesthetics, Placement, Materials and Colors. WCF shall be designed so as to be compatible with the existing structures and surroundings to the extent feasible, including placement in a location which is consistent with proper functioning of the WCF, the use of compatible or neutral colors, or stealth technology.
(I) Lighting and Signage. The following lighting and signage requirements shall apply to all WCF facility installations.
(1) Artificial Illumination. WCF shall not be artificially illuminated, directly or indirectly, except for: a. security and safety lighting of equipment buildings if such lighting is appropriately down shielded to keep light within the boundaries of the site; and b. such illumination of the WCF as may be required by the FAA or other applicable authority installed in a manner to minimize visual impacts on adjacent residences.
(2) Signage. WCF shall not display any signage, logos, decals, symbols or any messages of a commercial or noncommercial nature, except for a small message containing provider identification and emergency telephone numbers. Such sign shall not exceed two (2) square feet in area.
(J) Security Fencing. WCF with support structures shall be enclosed by a security fence not less than six (6) feet in height. Security features may be incorporated into the buffer, landscaping and screening requirements for the site. Nothing herein shall prevent security fencing which is necessary to meet requirements of state or federal agencies.
(K) Radio Frequency Emissions The following radio frequency emissions standards shall apply to all WCF facility installations:
(1) RF Impact. The FTA gives the FCC sole jurisdiction of the regulation of Radio Frequency (RF) emissions, and WCF which meet the FCC standards shall not be conditioned or denied on the basis of RF impact.
(2) FCC Compliance. In order to provide information to its citizens, copies of ongoing FCC information concerning WCF and RF emission standards may be requested. Applicants for WCF shall be required to provide information with the application on the measurement of the effective radiated power of the facility and how this meets the FCC standards.
(3) Sound Prohibited. No sound emissions such as alarms, bells, buzzers or the like are permitted.
(L) Structural Integrity. WCF with support structures shall be constructed to the Electronic Industries Association/Telecommunications Industries Association (EIA/TIA) 222 Revision F Standard entitled “Structural Standards for Steel Antennas Towers and Antenna Supporting Structures” (or equivalent), as it may be updated or amended. Each support structure shall be capable of structurally and functionally supporting at least three (3) antenna arrays.
(M) Collocation agreement. All applicants for WCF are required to submit a statement with their application agreeing to allow collocation of other WCF providers. The statement shall include the applicant’s policy regarding collocation of other providers and the methodology to be used by the applicant in determining reasonable rates to be charged other providers. The Collocation Agreement shall be considered a condition for issuance of a TUP.

Section 5: Review process.
(A) General. The applicable development standards referred to herein are those set forth in Section 4 of this ordinance.
(B)  Permitting Procedures. Attached WCF with or without new building construction and WCF with monopole support structures that meet the development standards may be permitted by Administrative Review except as herein specified. All other WCF with support structures, regardless of type, to be sited in or abutting any residential zone shall be subject to the Planning Commission review process and may not be approved solely by the administrative review process. All WCF applications that do not conform with the development standards or are otherwise not eligible for administrative review shall be subject to the Planning Commission review process.

(C) WCF as part of Coordinated Development Approval. WCF as part of a proposed residential or nonresidential subdivision Planned Unit Development (PUD), site plan, conditional rezoning, or other coordinated development approval shall be reviewed and approved through these processes.
(D) WCF for Temporary Term WCF for a term not to exceed ninety (90) days are permitted by administrative review and, in case of emergency, such as loss of existing equipment due to environmental causes, shall be given expedited review.

Section 6: Approval Procedure
(A) Application Submission. All requests for a Tower Use Permit, regardless of WCF type shall submit an application in accordance with the requirements of this section.
(1) Application Contents. Each applicant requesting a TUP under this chapter
shall submit a scaled site plan containing a scaled elevation view and other supporting drawings, calculations and other documentation showing the location and dimensions of the WCF and all improvements associated therewith, including information concerning specifications, antenna locations, equipment facility and shelters, landscaping, parking, access, fencing and, if relevant as determined by staff, topography, adjacent uses and existing vegetation. Applicants proposing to collocate on an existing WCF shall include a Radio Frequency Intermodulation Study with their application.
(2) Submission Requirements. Application for a TUP shall be submitted to the code
enforcement officer on forms prescribed by the Department. The application shall be
accompanied by a site plan containing the information described above. If Planning
Commission review is required, the application and site plan shall be placed on the next
available Commission agenda in accordance with the agenda deadlines established by the
Commission.
(3) Application Fees. Each application shall be accompanied by a plan review fee of five thousand dollars ($5,000) and a Radio Frequency Intermodulation Study review fee of five thousand dollars ($5,000) (collocation applications only). These fees shall be used to engage an engineer or other qualified consultant(s) to review the technical aspects of the application and Radio Frequency Intermodulation Study (if required). Application fees may be adjusted annually by a majority vote of a quorum of the Planning Commission.
(4) Technical Assistance. In the course of its consideration of an application, the code
enforcement officer, the Planning Commission or the City Council may deem it necessary to employ an engineer(s) or other consultant(s) qualified in the design and installation of WCF to assist the code enforcement officer, Commission or Council in the technical aspects of the application. In such cases, any reasonable costs incurred by the City, not to exceed five thousand dollars ($5,000) for the technical review and recommendation, shall be reimbursed by the applicant prior to the final city hearing on the TUP. The three thousand dollars ($3,000) cost ceiling may be adjusted annually by a majority vote of the Planning Commission.
(5) Abandonment Remediation Bond:  Prior to receiving a building permit, the City may require the applicant to provide  the City with a bond, in a reasonable amount as determined by the Public Works Department, to protect the City from costs incurred by removing the WCF should it be deemed abandoned as defined in Section 9 of this ordinance.

(B) Administrative Review. The following administrative review process shall apply to    all WCF applications eligible for administrative review.
(1) Review Authority. Review of WCF under this section shall be conducted by a panel
composed of the Code Enforcement Officer, Mayor and City Clerk.
(2) Review Criteria.  The review panel shall review the application for compliance
with the development standards.
(3) Timing of decision. The review panel shall render a decision on the WCF
application by written response to the application within ten (10) business days after the receipt of the completed application, except that an extension may be agreed upon by the review panel.
(4) Deferral. The review panel may defer administrative approval of WCF for any
reason. Deferral of administrative approval shall require submission to the Planning
Commission for review.  The Planning Commission shall review any deferred application
no more than twenty-one (21) calendar days from its deferral, not to exceed ninety (90)
days from the date of the application.
(5) Application Denial If administrative approval is not obtained due to noncompliance with the development standards, the applicant may appeal the denial by applying for Planning Commission review.
(6) Application Approval. If the TUP application is in compliance with the development standards and otherwise meets the requirements of this section, the code enforcement officer shall issue a Tower Use Permit (TUP) upon approval of the application.
(C) Planning Commission Review. The following shall apply to all Tower User Permit applications requiring submission to the Planning Commission:
(1) Review Authority. The Planning and Zoning Commission shall be the review authority for TUP applications not eligible for Administrative Review or otherwise referred to the Commission.
(2) Notice. Notice of the application and the public hearing by Planning Commission shall be accomplished in the same manner as a Conditional Use Permit (CUP) under Title 14 Chapter 14.08. Section 14.08.08 D of the Municipal Code of Eureka Springs, Arkansas.
(3) Hearing. The Planning Commission shall review and consider the TUP application at a public hearing. At the hearing, interested persons may appear and offer information in support of or opposition to the proposed application. The Planning Commission shall consider the following in reaching a decision:
a. Development Standards Variance. The TUP application shall be reviewed for compliance with the Development Standards set forth in Section 4; provided that the applicable Development Standards may be reduced or waived so long as the approval of the WCF meets the goals and purposes of Section 1. The Planning Commission may authorize a variance from the development standards by specific inclusion in a motion for approval. No such variance authorized by the Planning Commission shall be the basis for subsequent variance requests to the Board of Zoning Adjustment.
b. Tower Siting Conditions. The Planning Commission may impose conditions and restrictions on the application or on the premises benefitted by the TUP as it deems necessary to reduce or minimize any adverse effects and to enhance the compatibility of the WCF with the surrounding property, in accordance with the purposes and intent of this Chapter. The violation of any condition shall be grounds for revocation of the TUP. The Planning Commission may impose such conditions in addition to the development standards upon the following findings:
1. The WCF would result in significant adverse visual impact on nearby
residences.
2. The conditions are based upon the purpose and goals of this Chapter as set
forth in Section 1.
3. The conditions are reasonable and capable of being accomplished.
(4). Action. Following the public hearing and presentation of all evidence, the
Planning Commission shall take one (1) of the following actions:
a. approve the application as submitted;
b. approve the application with conditions or modifications;
c. defer the application for no more than ninety (90) days from the date of  
public hearing the application for additional information or neighborhood input; or
d. deny the application.
(5) Findings. All decisions rendered by the Planning Commission concerning a Tower Use Permit (TUP) shall be supported by written findings of fact and conclusions of law based upon substantial evidence in the record.
(6) Timing of Decision. The Planning Commission shall render its decision within
sixty (60) days or less of the final submission of all required application documents
and technical evaluations.
(7) Appeals. The decision of the Planning Commission may be appealed to the City
Council under the following circumstances:
a.     Only the applicant and those who registered an objection to the TUP in
the record of the Planning Commission shall have standing to appeal.
b.Only such evidence or testimony in support of or opposition to the
issuance of the TUP which was provided to the Planning Commission may
be presented to the City Council unless the Council, by majority vote,
decides to hear new information.
c.    Notice of appeal shall be accomplished by the appellant in the same
Manner as a Conditional Use Permit (CUP) under Title 14 Chapter 14.08.
Section 14.08.08 F of the Municipal Code of Eureka Springs, Arkansas.
d.    Appeal of decisions of the City Council shall be filed in the court of
appropriate jurisdiction within thirty (30) days of the final decision on the
TUP.


Section 7: Shared facilities and collocation policy; Facilitating location on public property.
(A) Collocation. All WCF shall be constructed to be capable of sharing the facility with other providers, to collocate with other existing WCF and to accommodate the future collocation of other WCF. Applicants proposing a new WCF shall demonstrate that it has made a reasonably good faith attempt to find a collocation site. Competitive conflict and financial burden are not deemed to be adequate reasons against collocation.
(B) Location On Public Property. The City will work with telecommunication providers to facilitate the siting of WCF on suitable City owned or controlled property, by identifying existing facilities, the appropriate contact persons, and the appropriate procedures in accordance with this Section.

Section 8: Removal of abandoned WCF.
Any WCF that is not operated for a continuous period of twelve (12) months, or such lesser time if the City is so advised by the provider or landowner, shall be considered abandoned, and the owner of such WCF may be required to remove same within ninety (90) days of notice to the City that the WCF is abandoned. If the WCF is not removed within ninety (90) days, the City may remove it and recover its costs from the owner of the WCF or from the landowner. If there are two or more users of a single WCF, this provision shall not become effective until all providers cease to use the WCF.

Section 9. Nonconforming WCF.
WCF in existence on the date of the adoption of this Chapter, which do not comply with the requirements of this Chapter (nonconforming WCF) are subject to the following provisions:
(A) Expansion. Nonconforming WCF may continue in use for the purpose now used, but may not be expanded without complying with this Chapter, except as further provided in this Section.
(B) Additions. Nonconforming WCF may add additional antennas (belonging to the same provider or other providers) subject to administrative review under Section 6.
(C) Repairs. Nonconforming WCF which become damaged or destroyed due to any reason or cause, may be repaired and restored to its former use, location, and physical dimensions subject to the provisions of this Chapter. Such repairs must be commenced within one (1) year after said damage or destruction, or said WCF shall be deemed abandoned.

Section 10: Revocation of Tower Use Permits.
Any Tower Use Permit (TUP) issued pursuant to this Chapter may be revoked by the Planning Commission after a hearing as provided hereinafter. If the Commission finds that any permit holder has violated any provision of this Chapter, or has violated any federal, state, or local law or ordinance, or has failed to make good faith reasonable efforts to provide or seek collocation, the Commission may revoke the Tower Use Permit (TUP) upon such terms or conditions, if any, that the Commission may determine.
Prior to initiation of revocation proceedings, the Code Enforcement Officer shall notify the permit holder, in writing, of the specific areas of non-compliance and specify the date by which such deficiencies must be corrected. The time for correction of deficiencies shall not exceed sixty (60) days. The permit holder shall provide the Code Enforcement Officer with evidence that the required corrective action has been taken. Should the permit holder fail to correct any deficiencies in the time required, the Planning and Zoning Commission shall convene a public hearing to consider revocation of the Tower Use Permit (TUP). The hearing shall be conducted pursuant to notice by publication in a newspaper with general circulation in the city not less than ten (10) days prior to the hearing and by written notice to the permit holder.
At any such hearing, the permit holder may be represented by an attorney and may cross examine opposing witnesses. Other interested persons may comment. The Planning Commission may impose reasonable restrictions with respect to time and procedure and may, but is not required to, provide for stenographic or other recording of the hearing or portions thereof.

Section 11: Penalty.
The fine or penalty for violating any provisions of this Chapter shall, upon conviction in the District Court, not exceed five hundred dollars ($500.00) for any one (1) specified offense or violation, or double that sum for each repetition of such offense or violation; provided, further, that if a thing prohibited or rendered unlawful is, in its nature, continuous in respect to time, the fine or penalty for allowing the continuance thereof in the violation of this Chapter shall not exceed two hundred fifty dollars ($250.00) for each day that it may be unlawfully continued.

Section 12.  The various parts, sections and clauses of this ordinance and the attached regulations are hereby declared to be severable. If any part, sentence, paragraph, section or clause is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this ordinance and regulation shall not be affected thereby.

PASSED AND APPROVED BY THE EUREKA SPRINGS, AR, CITY COUNCIL THIS  8th  DAY OF NOVEMBER, 2010.                        
APPROVED:

_____________________________
Mayor Dani D. Joy
ATTEST:

_________________________________
City Clerk/Treasurer Mary Jean Sell CMC