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HomeMy WebLinkAboutDraft Ordinance XXXX - Wireless Telecommunications Wireless Facilities Ord. - Page 1 of 33 - ORDINANCE XXXX AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA XXX WHEREAS, the City adopted the present code structure on telecommunication regulations in 1998 to respond to changes in federal law; and WHEREAS, wireless and telecommunications law is primarily governed by federal statutes such as the Telecommunications Act of 1996 and rulings from the Federal Communications Commission; and WHEREAS, due to federal preemption, the City is obligated to ensure that its telecommunication and wireless laws comply with federal law; and WHEREAS, the proposed Ordinances brings the Bozeman Municipal Code Sec. 38.330 – Wireless Facilities current with federal mandates; and WHEREAS, because this Ordinance is considered a zone text amendment, the City is required to publish a public notice pertaining to the amendments and to go before the Planning Commission; and WHEREAS, the City published three notices in the Bozeman Daily Chronicle on May 2, 9, and 30th 2026; and WHEREAS, the Planning Commission held a public hearing on June 1, 2026 to review the proposed amendments; and WHEREAS, the staff report reflects the Planning Commission’s vote and recommendations. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Wireless Facilities Ord. - Page 2 of 33 - Section 1 Bozeman Municipal Code. Section 38.330.010 shall be amended as follows: Sec. 38.330.010. - Purpose and applicability. A. It is the duty of the city to protect the public health, safety and welfare and the city has the authority to regulate the placement, construction and modification of wireless facilities in the advancement of that duty. B. The city commission finds that: 1. The aesthetic character of the city is a matter of substantial economic importance and general concern to the citizens of the city, as described in the city's adopted land use plan, and is an important part of the public welfare; 2. Wireless facilities are often visually obtrusive due to their necessary height, support equipment and interruption of the viewscape, and can have substantial negative impacts on the character of the city and its surrounding viewsheds; 3. The impacts of wireless facilities can be reduced by establishing standards for location, structural integrity, compatibility and collocation; 4. To reduce visual and other impacts on the community the city desires to promote collocation, use of stealth concealed installations of wireless facilities and the use of smaller less intrusive facilities to minimize the need to construct new large scale wireless facilities; 5. The city desires to provide clear and consistent regulations for review of proposed wireless facilities; 6. The city desires to support the ability of telecommunication service providers to deliver such services to the community consistent with other community objectives; 7. The construction of new large scale wireless facilities is the action of last resort to provide for wireless communication services and should only be undertaken when alternatives are not available; 8. It is necessary to determine the locations and circumstances most appropriate for placement of wireless facilities to serve the community; 9. Consistent with applicable law, the city desires to minimize the adverse visual impacts of wireless towers and antennas and antenna arrays through careful siting, design, landscape screening and innovative camouflaging screening; Wireless Facilities Ord. - Page 3 of 33 - 10. The city seeks to protect against potential health and safety hazards to citizens and prevent damage to adjacent properties; 11. The city intends to exercise its authority with respect to the regulation of the placement, construction and modification of wireless facilities, to the fullest extent permitted by applicable law; 12. The city recognizes the need to respond to the policies in the Telecommunications Act of 1996 and subsequent federal judicial and legislative interpretation, and has constructed its regulations in a manner that does not unreasonably discriminate between providers of functionally equivalent personal wireless service, and that does not prohibit or has the effect of prohibiting personal wireless service in the city; 13. The city recognizes that the Federal Communication Commission exercises certain sole authority in the licensing and other regulation of wireless services; 14. The adequate review of a telecommunications application may require expertise not typically possessed by city staff which would require the city to obtain qualified outside expertise to properly evaluate an application; and 15. Outside review would generate additional costs to the public to preserve the public interest these costs must be mitigated and should properly be mitigated by those causing such additional costs. C. General application. All uses listed in this division are subject to the specific standards described for each use, in addition to all other applicable standards which may apply, and are limited to those districts specified. The provisions of this division apply to development and modification of large scale wireless facilities, micro-scale wireless facilities, non-broadcast telecommunication facilities and small scalewireless facilities. These and other terms are defined in article 8. 1. The provisions of this division only apply to facilities which meet the definition of a wireless facility or that are otherwise specifically brought under the authority of this division. Section 2 Bozeman Municipal Code. Section 38.330.020 shall be amended as follows: Sec. 38.330.020. - Special submittal requirements. In addition to the materials required by 38.710 for concept plans, sketch plans, site plans, Wireless Facilities Ord. - Page 4 of 33 - or special use permits the materials required by 38.710.160 must be submitted. Section 3 Bozeman Municipal Code. Section 38.330.030 shall be amended as follows: Sec. 38.330.030. - Uses within districts and required review procedures. A. Purpose. This section authorizes telecommunication uses in specific districts. Unless specifically exempted by this division, all other standards and procedures of this chapter apply. B. Permitted wireless facility uses. No wireless facility may be permitted except in accordance with the development review processes indicated in Table 38.330.030-1, based on the applicable zoning district and scope of the proposed facility. All applications are subject to the review processes, submittal requirements and other requirements of article 7 as may be applicable. Previously approved applications may be modified per 38.740.120. Wireless Facilities Ord. - Page 5 of 33 - Table 38.330.030-1. Zoning District Large Scale (Macro) Small Wireless Micro-Scale Non-Broadcast Eligible Facility Request PLI P P A P A M-2 P P A P A M-1 P P A P A B-P S P/S A P A B-3C S P/S A P A B-3 S P/S A P A B-2 S P/S A P A B-2M S P/S A P A B-1 P P/S A P A REMU S P/S A P A NEHMU P P A P A R-D S S A P A R-C S S A P A R-B S S P P A R-A S S P P A C. Special review requirements by type. 1. For small scalefacilities listed as "P/S" in the table above, special use review is required when the proposed facility exceeds the height limitation of the district. 2. Collocation upon a previously approved wireless facility, when such additional facilities were contemplated as part of the original review, must be reviewed as a sketch plan an eligible facilities request in all zones. 3. A wireless facility may be permitted as an accessory use in any non-residential district when: It is for the exclusive use of a single on-site business when the business has otherwise been approved under 38.740 or 38.250, rather than offered to additional parties; Wireless Facilities Ord. - Page 6 of 33 - It is in compliance with the maximum building height limitations of the zoning district; It complies with all setback and other zoning requirements; and Has eight or less square feet of total antenna surface area. 4. Installations, other than an eligible facilities request, located within the neighborhood conservation overlay district (NCOD) are subject to must be reviewed against the criteria of 38.240.020 as applicable, and a certificate of appropriateness is required before issuance of a building permit. 5. Prior to submitting an application for a large scale or small scale wireless facility, the applicant must complete a concept review per 38.740 with the community development department. The purpose of the concept review is to acquaint the participants with the applicable requirements of this division, as well as with any preliminary concerns the department may have. 6. The applicant's concept review submittal must include the following information with regard to the proposed facility: Location; Overall height; Number of antennas proposed, including those of other providers to be collocated; Type of wireless communication services to be provided; and Coordination of ground equipment shelters. 75. Adequate review of applications may require the city to retain consultants or other third party assistance to review an application. In such event the applicant must reimburse the city for the actual costs incurred prior to issuance of a building permit. 86. The provisions of 38.790 must apply for all nonconforming facilities subject to this division. 97. A large scale wireless facility may be allowed in the R-A, R-B, R-C, R-D and REMU districts by special use permit only when demonstrated to be necessary to meet federal requirements for continuity of service in an area. Wireless Facilities Ord. - Page 7 of 33 - Section 4 Bozeman Municipal Code. Section 38.330.040 shall be amended as follows: Sec. 38.330.040. - Standards. A. Safety. All wireless facilities subject to this division must meet the following standards: 1. The structural design for all wireless facilities greater than 10 feet in height or which have more than four square feet of total antenna area must be certified by a professional structural engineer licensed to practice in the state. A building permit must be obtained prior to the installation of any facility subject to this division. 2. All wireless facilities must meet or exceed current standards and regulations of the FCC, FAA, and any other agency with the authority to regulate wireless facilities. If such standards are changed, the owner must modify the installation to comply with the new standards within six months of the effective date of the new standards or regulations unless a different implementation schedule is required by the issuing agency. 3. Wireless facilities with a base located at grade must be enclosed within a secure fence not less than six feet in height, or the tower itself must be equipped with an appropriate anti-climbing device. B. Aesthetics. 1. All wireless facilities. a. The provisions of this section may be waived by the review authority as determined by 38.760 38.700 where it has been demonstrated that the waiver will result in superior compliance with the purposes of this chapter. b. All installations must be as visually unobtrusive as is feasible. Facilities and equipment mounted on existing structures must be visually incorporated into the structure or background by the use of architectural elements, color, screening or other concealment methods. c. No exterior lighting or lighted signage is permitted. d. All structures must be constructed in conformance with the standards of the city's technical codes adopted International Building Code in Chapter 10 Article 2. e. In addition to landscaping required by 38.540, vVisual screening of Wireless Facilities Ord. - Page 8 of 33 - ground mounted equipment must be provided in all residential areas and where a facility is located within a non-residential area which is visible, from a viewpoint five feet above grade, from a residential area. Screening must provide an opaque screen within 18 months of establishment and be a minimum of four feet in height. The screening may be of landscape materials or a an opaque fence which otherwise complies with this chapter. Chain link fence with slats does not meet the opacity requirement. The site must comply with the landscaping provisions of article 5. f. Exterior façade materials and the character of equipment shelters compounds used in residential areas must be of materials commonly used in the immediate area. The architectural design of the exterior of the shelter must be compatible with surrounding residential structures. The purpose of the requirements of this subsection may be met by providing opaque fencing or other visual screening compatible with the neighborhood, in compliance with all other sections of this chapter, which will obscure the entire equipment shelter compound. The screening must be in place prior to the commencement of operations of the facility. 2. Preferences. In order to justify the construction of a wireless structure, the applicant must demonstrate that higher ranking alternatives in the following hierarchy, beginning with subsection a.(1) below, do not constitute feasible alternatives. The order of preference, from most preferred to least preferred and based on technical feasibility, for new wireless facilities is: a. Facility size. (1) Micro-scale wireless facilities or collocation on existing large scale wireless facilities; (2) Small scalewireless facilities; (3) Large scale wireless facilities 50 feet or less in height; and (4) Large scale (Macro) wireless facilities in excess of 50 feet in height. b. A facility meeting the definition of stealth concealed, as defined in 38.800.200, is always preferred over a facility of the same scope which does not meet the definition of stealth concealed. Stealth Concealed facilities may be required in historic districts and under other circumstances. c. As appropriate, the following evidence may also be submitted to demonstrate compliance with this section: Wireless Facilities Ord. - Page 9 of 33 - (1) That no existing wireless communications facility within the search area meets the applicant's radio frequency engineering or height requirements; (2) That no structure within the search area has sufficient structural strength to support the applicant's proposed antennas or antenna arrays; or (3) That there are other verifiable limiting factors that render collocated or other more preferred options unsuitable or unreasonable. d. Self-supporting lattice or guyed structures are generally preferred over monopoles. 3. Special standards. The following special standards apply as shown in Table 38.330.040-1: Wireless Facilities Ord. - Page 10 of 33 - Table 38.330.040-1. Zoning District Large Scale Small Wireless Micro-Scale Non-Broadcast Eligible Facility Request PLI b b b - b M-2 b b b - b M-1 b b b - b B-P c a, c b - b B-3C c a, c b - b B-3 c a, c b - b B-2 c a, c b - b B-2M c a, c b - b B-1 c a, c b - b REMU d a, c b - b NEHMU b b b - b R-D d a, c a, b - b R-C d a, c a, b - b R-B d a, c a, b - b R-A d a, c a, b - b Key: a = Stealth Concealed installation is required b = Wireless facilities may exceed the maximum height of a district but are subject to the limitations of this section c = The height limitation of the district may be exceeded by the least amount necessary to provide services, but only when service may not otherwise be provided by a less intensivemore preferred facility as set forth above or an alternative site d = Only allowed when service may not be provided from an alternative site or a less intensivemore preferred facility installation or set of installations 4. Stealth Concealed. a. Installations located within the conservation overlay district must be stealthconcealed facilities. b. A stealthconcealed wireless facility may exceed the height limitations of the district by 10 feet. 5. Small scalewireless facilities. All small scalewireless facilities established in the neighborhood conservation district must be installed in such a way as to maintain the historic or architectural character of the host site. All sites must maintain the least possible visual obtrusiveness. Wireless Facilities Ord. - Page 11 of 33 - Figure 38.330.040-1. Small-scale wireless facilities. 6. Large scale wireless facilities. No large scale wireless facility will be permitted unless the applicant demonstrates that the proposed facility cannot be accommodated on an existing structure or by placement of a smaller facility. In order to justify the construction of a large wireless facility, the applicant must demonstrate that higher ranking alternatives in the hierarchy, beginning with 2.a.(1) above, do not constitute feasible alternatives. Such demonstration must be made by submission of a statement of position, qualifications and experience by a licensed radio frequency engineer; and must address the required findings of this section. a. If collocation is feasible, the owner of the large scale wireless facility must certify in writing, prior to final permit approval, that the owner will accept for collocation any FCC-licensed or licensing exempt wireless communication provider using compatible technology at reasonable and customary rates and terms up to the structural capacity to accommodate additional antennas and/or antenna arrays. Collocation may be denied based on verifiable and substantial expectations of interference from additional users. Later failure to comply with the requirements supporting collocation may result in the revocation of city approvals or other penalties stipulated by the municipal code as the requirements of the titlechapter will have been violated. b. The city must find the proposed guarantee, assurances or provisions for the perpetual maintenance and for removal of an abandoned large scale wireless facility to be adequate. c. A large scale wireless facility must not either: (1) Exceed 190150 feet in height; or (2) When located east of the alignment of Church Wireless Facilities Ord. - Page 12 of 33 - Avenue/Sourdough Road and west of the extended alignment of Bozeman Trail Road/Arnica Drive; Exceed 100 feet in height when its base elevation is greater than 4,800 feet; Exceed 40 feet in height when its base elevation is above 4,850 feet; Notwithstanding the provisions of (a) and (b), these restrictions must not apply for those areas lying east of the extended alignment of Bozeman Trail Road/Arnica Drive and south of Interstate 90. d. Where multiple service providers will be utilizing the same ground area and/or support structure, a single structure enclosed compound must be provided to house all ground based equipment. e. Special setbacks for large scale wireless facilities must be provided and/or a design for internal structural collapse to avoid damage or injury to adjoining property or users must be provided. (1) Residential district and mixed-use district setbacks for a large scale wireless facility must be 100 % of facility height, which may be reduced to no less than 50 % upon the provision and approval of an engineered design, stamped by a professional structural engineer licensed to practice in the state, establishing a smaller collapse area. utilizing breakpoint technology. (2) A large scale wireless facility in non-residential zones must provide a minimum setback from the property lines of 75 % of facility height, which may be reduced to no less than 30 % of facility height upon the provision and approval of an engineered design, stamped by a professional structural engineer licensed to practice in the state, establishing a smaller collapse area .utilizing breakpoint technology. Large scale wireless facilities located within non-residential zones, but adjacent to a residential zone or residentially developed areas, must maintain a minimum setback from residential zoning or property boundaries of at least 50 % of facility height. All installations must maintain the minimum zoning district setbacks per article 2. f. New large scalemacro wireless facilities greater than 50 feet in height must be designed in all respects to accommodate both the applicant's antennas and antennas for at least two additional users. A new large scalemacro wireless facility may meet this requirement by correctly sizing the foundation and other structural elements to allow the future Wireless Facilities Ord. - Page 13 of 33 - addition of height to the structure to accommodate additional users rather than immediately constructing the entire large scalemacro wireless facility. This requirement may be waived by the governing bodyreview authority upon a showing of fact to overcome the presumption that multiple transmitters are desirable on the proposed facility. g. All large scalemacro wireless facilities 50 feet or greater in height, regardless of the zoning district in which the structure is located, must be located at least one mile, measured in a straight line, from any other large scalemacro wireless facility that is 50 feet or greater in height. An exception to this requirement may be granted by the approval bodyreview authority when it is found and factually supported in the written record that the criteria of 6.i below are met and a critical need exists for the proposed location to avoid service gaps, or that a closer placement is desirable to advance the purpose of this chapter. h. A new large scalemacro wireless facility greater than 50 feet in height mustmay only be approved when the applicant can demonstrate in writing that no existing or approved micro-scale, small scalewireless facility or large scale wireless facility within the required separation distance of the proposed site can accommodate the applicant's proposed antenna. i. In addition to the other review criteria of this chapter, affirmative findings for at least one of the following criteria items must be made in order for the conditions necessary for approval to exist: (1) No existing or proposed structures located within the geographic area search ring are adequate to support the proposed antennas are required to meet the applicant's engineering and service requirements; (2) Existing or approved structures are not of sufficient height to meet the applicant's engineering and service requirements and a combination of smaller scale facilities will not provide for adequate service delivery; (3) Existing or approved structures do not have sufficient structural strength to support the applicant's proposed antenna and related equipment and cannot be reinforced to provide sufficient structural strength; (4) The applicant's proposed antennas would cause electromagnetic interference with the antenna on the existing or approved Wireless Facilities Ord. - Page 14 of 33 - antenna support structures, or the antenna on the existing or approved antenna support structures would cause interference with the applicant's proposed antenna; (5) Property owners' or owners of existing or approved wireless facilities or locations for smaller scale installations are unwilling to accommodate the applicant's needs; or (6) The applicant demonstrates that there are other factual and verifiable limiting factors that render existing or approved wireless facilities unsuitable. j. Height and number of users. A large scale wireless facility may be reviewed as a multiple phase project and be constructed over time. Prior to the approval of a final site plan, or a building permit if it is a latter phase of a phased project, an applicant must provide: (1) For the first 70 feet of tower height, for an applicant who is not a wireless service provider, a copy of an executed lease from a wireless service provider of not less than 12 months duration; (2) For a height of greater than 70 feet and not more than 110 feet of structure height, one additional executed lease; (3) For a height greater than 110 feet, a second additional executed lease; (4) Leases may be redacted to remove proprietary information but must identify the parties. Figure 38.330.040-2. Large-scale wireless facilities. 7. Eligible Facility Requests. An eligible facility request for collocation on or modification of an existing tower or base station must demonstrate that the proposed installation or modification will not constitute a “substantial Wireless Facilities Ord. - Page 15 of 33 - change” as that term is defined in 38.800. Projects which are a “substantial change” are reviewed as a new facility. 7. 8. Non-broadcast. A non-broadcast telecommunication facility located within a B-1, B-2, B-2M, B-3 or B-3C district, a mixed-use district, the neighborhood conservation overlay district or a residential zoning district must be enclosed within a structure. The structure must be of materials and architectural character compatible with the substantially similar to adjacent properties. and comply with 38.520.060. The facility must comply with all applicable side, front and rear setback setbacks. C. Administrative. 1. An inventory of existing sites utilized by the applicant must be provided. The inventory must note the feasibility of accommodating other users. The city may share this information with other applicants or interested parties to encourage collocation. 2. The public land and agencies exemption from full compliance with zoning in MCA 76-2-402 does not apply to private entities utilizing publicly owned lands. 3.2. Any antennas or antenna support structures not utilized for the provision of wireless services for a continuous period of six months will be considered abandoned. All facilities must be removed within six months of the cessation of operations. If a facility is not removed within six months the city may remove the facility at the facility or landowner's expense. Where multiple users share a facility, the non-operational antennas and associated ground-mounted equipment may be removed, but any common equipment may be retained until all users have terminated the utilization of the site. 4.3. Any emergency power supply or other equipment installed at the facility must comply with 38.510.060. 5.4. No facilities which require employees to be present on a routine basis may be established in residential areas, with the exception of periodic maintenance activities, unless the zone allows offices and appropriate review has been completed. 6.5. Failure to comply with the terms of this chapter is grounds for facilities to be removed by action of the city at the facility or landowner's expense. 7.6. Any modifications to existing wireless sites that do not meet the definition of an eligible facility request” must only occur in Wireless Facilities Ord. - Page 16 of 33 - compliance with the review procedures required in 38.330.030. 8. Denial of an application must be made only after the review body has determined that specific criteria of this chapter cannot be met. Said determination must be made in writing and must include the reasons for the denial and the evidence which supports those reasons. Public opposition alone is not sufficient to deny the application. Section 5 That a new section of the Bozeman Municipal Code is adopted as follows: Sec. 38.330.050. – Application Review Processes. A. If this division is more restrictive than 38.740, this division controls. The application processes of this section are governed by federal law. B. Eligible Facility Request Applications. 1. Timeframe for review. Within sixty (60) calendar days of the date on which an applicant submits an application for approval, the city shall approve the application unless it denies the application. 2. Tolling of the timeline for review. The sixty (60) calendar day period begins to run when the application is filed and may be tolled only by mutual agreement or in the case where the city determines that the application is incomplete. 3. The city must notify the applicant within thirty (30) calendar days of submission, or within some other mutually agreed upon timeframe, if the submission is incomplete. 4. Notices of application incompleteness shall identify specifically the deficiencies in the application which, if cured, would make the application complete. The clock stops on the date the notice is sent to the applicant. 5. The applicant may cure the deficiencies identified by the city and resubmit the application for review. Any subsequent review shall be limited to the deficiencies list in the prior denial. 6. The clock re-starts on the date of resubmission by the applicant. The city shall, within ten (10) calendar days of resubmission, notify the applicant of continuing deficiencies or the application will be deemed complete. The timeline for a decision shall be likewise tolled during the additional re-submission deficiency period until the 2nd resubmission. Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the Wireless Facilities Ord. - Page 17 of 33 - original notice of incompleteness. 7. Approval or denial of a complete application shall be in writing and shall be delivered to the applicant by sixty (60) calendar days after the initial submission, excluding tolling. 8. Failure to Act. In the event the city fails to approve or deny an eligible facility request application within the timeframe for review (accounting for any tolling), the request shall be deemed granted. The deemed granted does not become effective until the applicant notifies the city in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted. C. Applications for Small Wireless Facilities outside a public right-of-way and new collocation on any existing structure without wireless equipment or collocation exceeding the definition of eligible facility request. 1. Timeframe for review. Within ninety (90) calendar days of the date on which an applicant submits an application for approval, the city shall approve or deny the application. 2. Tolling of the timeline for review. The ninety (90) calendar day period begins to run when the application is filed and may be tolled only by mutual agreement or in the case where the city determines that the application is incomplete. 3. The city must notify the applicant within thirty (30) calendar days of submission (or within some other mutually agreed upon timeframe) if the submission is incomplete. 4. Notices of application incompleteness shall identify specifically the deficiencies in the application which, if cured, would make the application complete. The clock stops on the date the notice is sent to the applicant. 5. The applicant may cure the deficiencies identified by the city and resubmit the application for review. Any subsequent review shall be limited to the deficiencies list in the prior denial. 6. The clock re-starts on the date of resubmission by the applicant. The city shall, within ten (10) calendar days of re-submission, notify the applicant of continuing deficiencies or the application will be deemed complete. The timeline for a decision shall be likewise tolled during the additional re-submission deficiency period until the 2nd resubmission. Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness. Wireless Facilities Ord. - Page 18 of 33 - 7. Approval or denial of a complete application shall be in writing and shall be delivered to the applicant by ninety (90) calendar days after the initial submission, excluding tolling. 8. Failure to Act. In the event the city fails to approve or deny an application under this subsection within the timeframe for review, and accounting for any tolling, the applicant shall have all remedies available at law. D. Large scale wireless facility. 1. The time frame for review. Within one hundred fifty (150) calendar days of the date on which an applicant submits an application for approval, the city shall approve or deny the application. 2. Tolling of the timeline for review. The one hundred fifty (150) calendar day period begins to run when the application is filed and may be tolled only by mutual agreement or in the cases where the city determines that the application is incomplete. 3. The city must notify the applicant within thirty (30) calendar days of submission, or within some other mutually agreed upon timeframe, if the submission is incomplete. 4. Notices of application incompleteness shall identify specifically the deficiencies in the application which, if cured, would make the application complete. 5. The timeline clock stops on the day after the date the city sends notice of incompleteness to the applicant. 6. The applicant may cure the deficiencies identified by the city and resubmit the application for review. Any subsequent review shall be limited to the deficiencies list in the prior denial. 7. The clock re-starts on the date of resubmission by the applicant. The city shall, within ten (10) calendar days of re-submission, notify the applicant of continuing deficiencies or the application will be deemed complete. The timeline for a decision shall be likewise tolled during the additional re-submission deficiency period until the 2nd resubmission. Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness. 8. Approval or denial of a complete application shall be in writing and shall be delivered to the applicant by one hundred fifty (150) calendar days after the initial submission, excluding any tolling period. Wireless Facilities Ord. - Page 19 of 33 - 9. Failure to Act. In the event the city fails to approve or deny an application under this subsection within the timeframe for review (accounting for any tolling), the applicant shall have all remedies available at law. Section 6 That a new section of the Bozeman Municipal Code is adopted as follows: Sec. 38.330.060. – Exempt Wireless Facilities. The following wireless facilities are exempt from the development standards of the chapter and only subject to the issuance of a building permit and building code requirements, notwithstanding any other provisions: A. A government-owned wireless facility, upon the declaration of a state of emergency by federal, state, or local government, and a written determination of public necessity by the city, except that such facility must comply with all federal and state requirements. No wireless facility shall be exempt from the provisions of this division beyond the duration of the state of emergency. B. A government-owned wireless facility erected for the purposes of installing antenna(s) and ancillary equipment necessary to provide communications for public health and safety. C. A temporary wireless facility, upon the declaration of a state of emergency by federal, state, or local government, or determination of public necessity by the city and approved by the city, except that such facility must comply with all federal and state requirements. The wireless facility may be exempt from the provisions of this division up to sixty (60) calendar days after the duration of the state of emergency. D. Over the air reception devices (“OTARD”) are exempt provided that same do not require the construction of a tower or other structure, which height exceeds 12 feet above the residential structure of the consumer who desires to receive fixed wireless services, satellite transmissions, or over the air reception of television signals. E. Noncommercial, amateur radio towers or antennas which are less than 100 feet in height and attached to the rear or side of residential or commercial structures or freestanding in an area directly behind the rear structural wall of a residential or commercial structure. Noncommercial, amateur, ham radio or citizen’s band towers, antennas or antenna arrays with heights greater than 100 feet or not located directly behind the rear structural wall of a residential or commercial structure, or attached to the rear or side of residential or commercial structures shall be regulated in accordance with this Section. Wireless Facilities Ord. - Page 20 of 33 - Section 7 That a new section of the Bozeman Municipal Code is adopted as follows: Sec. 38.330.070. – Fees; Supplemental Review A. Applicants shall pay an application review fee to the city as set forth in Section 38.700.140. B. The city reserves the right to require a supplemental review for any application submitted pursuant to this Section subject to the following: 1. Where due to the complexity of the methodology or analysis required to review an application for a wireless facility, the city may require the applicant to pay for a technical review by a third-party expert, the costs of which shall be borne by the applicant and be in addition to other applicable fees. Schedules of current supplemental review fees consistent with applicable law are listed in the city Fee Schedule. 2. Based on the results of the supplemental technical review, the approving authority may require changes to the applicant’s application or submittals. 3. The supplemental technical review may address any or all of the following: a. The accuracy and completeness of the application and any accompanying documentation. b. The applicability of analysis techniques and methodologies. c. The validity of conclusions reached. d. Whether the proposed wireless facility complies with the applicable approval criteria set forth in these codes. e. Other items deemed by the city to be relevant to determining whether a proposed wireless facility complies with the provisions of these codes. Section 8 Bozeman Municipal Code. Section 38.710.160 shall be repealed in its entirety and replaced as follows: Sec. 38.710.160. Submittal material for telecommunications A. The following information must be submitted for review of wireless facilities as applicable. Failure to provide required materials will result in a determination that the application is incomplete, and the application will not be processed. The table below identifies required submittal materials by facility scale. Items marked ● Required, ○ Conditional / As Applicable, or — Not Required. This table is intended for application completeness determinations. Wireless Facilities Ord. - Page 21 of 33 - Required Material Large Scale (Macro) Facilities Small Wireless Facilities Micro-Scale Facilities Eligible Facilities Request (EFR) Completed Application Form ● ● ● ● Application & Review Fees ● ● ● ● Narrative of Standards Compliance (per 38.370.040) ● ● — — Technical Justification for Design, Location, Height, and Placement/Location ● — — — Technical Reason Collocation is Not an Option ● — — — Photo Simulations ● ● — — Landowner Authorization Letter ● ● ● ● Proof of Ownership/Lease/ Consent ● ● ● ● If Applicable, Statement of FCC Exemption from Environmental Review (with citation and details) ● ● ● ● Boundary & Topographic Survey (Sealed) ● ● — — Existing Conditions Photos ● — — ● Site Plan/Construction Drawings (including ground equipment layout and dimensions, facility elevation, facility height, concealment, landscape, screening, fall-zone, set back, fencing, signage) ● ● ● ● Landscape & Screening Plan ● ● — — Structural (Design) Analysis (PE Sealed) (as set forth by the building department and latest codes) ● ● ● ● Foundation Design ● — — — Antenna Mount Analysis ● — — ● Wireless Facilities Ord. - Page 22 of 33 - Collocation Capacity Certification and Statement of Willingness to Allow Collocation at Reasonable Rates to all Providers ● — — — Engineering Statement Collocation Requirements are Met (per 38.330.040.B) ● — — — Redacted tenant lease(s) for initial tenant and all collocations ● ● — — RF Statement of Need ● ● — — RF Propagation Maps ● ● — — Geographic Search Ring Map ● — — — Inventory of Applicant’s Sites ● ● — — Inventory of Surrounding Buildings or Structures (greater than 50’ within one- mile radius) ● — — — FCC RF Emissions Compliance Statement/Report ● ● ● ● FCC RF Interference Compliance Statement ● ● ● ● FAA Determination No Hazard (Form 7460-1) ● — — — NEPA / SHPO Documentation ● ○ — — Floodplain / Wetlands Documentation ○ ○ — — Visual Impact Analysis ● ○ — — Right-of-Way Permit (if applicable) ○ ● ○ — Utility Coordination Letters ○ ○ — — Traffic / Mont. Dept. Transportation Plan ○ ○ — — Address List & Mailing Envelopes per 38.730.020 ● ○ — — Abandonment & Removal Plan ● ○ — — Maintenance & Access Plan ● ● ● ● Wireless Facilities Ord. - Page 23 of 33 - Emergency Contact Information ● ● ● ● Notes: ● Required = must be submitted for application completeness ○ Conditional = required when applicable based on location, zoning, or facility design — Not Required = not applicable for this facility scale B. Prior to submitting an application for a large scale, or small wireless facility, the applicant must complete a concept review per 38.740 with the community development department. The purpose of the concept review is to acquaint the participants with the applicable requirements of this division 38.330, as well as with any preliminary concerns the department may have. C. The applicant's concept review submittal must include the following information in addition to the materials required by 38.710.190 with regard to the proposed facility: 1. Overall height; 2. Number of antennas and antenna arrays proposed, including those of other providers to be collocated; 3. Type of wireless communication services to be provided; and 4. Design and coordination of ground equipment compounds. Section 9 Bozeman Municipal Code Section 38.800 shall be amended as specified in Exhibit A to this Ordinance. Exhibit A shall not be codified and is attached to this Ordinance solely for legislative purposes. Section 10 Repealer. All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Wireless Facilities Ord. - Page 24 of 33 - Section 11 Savings Provision. This Ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full force and effect. Section 12 Severability. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 13 Codification. Sections 1 through 4 shall be amended and codified as indicated in this Ordinance. Sections 5 through 7 of this Ordinance shall be codified and included as new sections in the Bozeman Municipal Code. Section 14 Effective Date. This Ordinance shall be in full force and effect thirty (30) days after final adoption. PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the _____ day of ________________, 20__. ____________________________________ JOEY MORRISON Mayor ATTEST: Wireless Facilities Ord. - Page 25 of 33 - ____________________________________ MIKE MAAS City Clerk FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the ___ of ____________________, 20__. The effective date of this ordinance is ____________, 20__. ________________________________ JOEY MORRISON Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney Wireless Facilities Ord. - Page 26 of 33 - Ord. XXXX Exhibit A: Bozeman Municipal Code Section 38.800 - Definitions *NOT FOR CODIFICATION – FOR LEGISTLATIVE PURPOSES ONLY* A DEFINITIONS Amateur Radio Tower. A tower used exclusively for non-commercial amateur radio transmissions consistent with the "Complete FCC U.S. Amateur Part 97 Rules and Regulations" for amateur radio towers not to exceed 100 feet in height. Antenna. One or more rods, panels, discs or similar devices used for the transmission or reception of radio frequency signals, which may include omni- directional antenna (rod), directional antenna (panel) and parabolic antenna (disc).Any apparatus designed for the transmitting and/or receiving of electromagnetic waves, including telephonic, radio or television communications. Types of elements include omnidirectional (whip) antennas, sectionalized (panel) antennas, wireline antennas, multi or single bay (FM and TV), yagi, or parabolic (dish) antennas. Antenna array. A single antenna or group of antenna elements and associated mounting hardware, transmission lines, or other appurtenances which share a common attachment device such as a mounting frame or mounting support structure for the sole purpose of transmitting or receiving electromagnetic waves. B DEFINITIONS Base station. Equipment and non-tower supporting structure at a fixed location that enable wireless telecommunications between user equipment and a communications network. Examples include transmission equipment mounted on a rooftop, water tank, silo or other aboveground structure other than a tower. The term does not encompass a "tower" as defined herein or any equipment associated with a tower. "Base station" includes, but is not limited to: Equipment associated with wireless telecommunications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul; Radio transceivers, antennas, coaxial or fiber optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems (das) and small cell networks); and Any structure other than a tower that, at the time the application is filed, supports or houses equipment described in this definition that has been reviewed and approved under the applicable zoning or siting process, or under Wireless Facilities Ord. - Page 27 of 33 - another City regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support. "Base station" does not include any structure that, at the time the application is filed under this section, does not support or house wireless communication equipment. Breakpoint technology. The engineering design of a monopole, or any applicable support structure, wherein a specified point on the monopole is designed to have stresses concentrated so that the point is at least five percent more susceptible to failure than any other point along the monopole so that in the event of a structural failure of the monopole, the failure will occur at the breakpoint rather than at the base plate, anchor bolts, or any other point on the monopole. C DEFINITIONS Collocation. The mounting or installation of transmission equipment on an eligible support structure for the purposes of transmitting and/or receiving radio frequency signals for communications purposes so that installation of a new support structure will not be required. The placement of an antenna by two or more wireless service providers on a common antenna-supporting structure, or the addition or replacement of antennas on an existing structure. The term "collocation" does not include roof-mounted or surface-mounted wireless facilities or the placement of other antenna on an amateur radio tower antenna. Concealed. A tower, ancillary structure, or equipment compound that is not readily identifiable as a wireless facility and that is designed to be aesthetically compatible with existing and proposed building(s) and uses on a site or in the neighborhood or area, in a manner acceptable to the City. There are two types of concealed facilities: a) antenna attachments, including faux windows, dormers or other architectural features that blend with an existing or proposed building or structure and b) a freestanding concealed tower which looks like something else that is common in the geographic region such as a church steeple, windmill, bell tower, clock tower, light standard, flagpole with a flag that is proportional in size to the height and girth of the tower, or tree that grows naturally or is commonly found in the area. E DEFINITIONS Eligible facilities request. Any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving: (i) collocation of new transmission equipment; (ii) removal of transmission equipment; or (iii) replacement of transmission equipment. Wireless Facilities Ord. - Page 28 of 33 - Eligible facility. Existing wireless tower or base station that has been approved through a local government land use review process prescribed for the tower or base station. Equipment compound. The fenced-in area surrounding, inside or under a ground based wireless communication facility containing ancillary structures and equipment, such as cabinets, shelters, pedestals and generators, necessary to operate a wireless facility that is above the base flood elevation. Existing wireless facility. A constructed tower or base station is "existing" for purposes of this chapter if it has been reviewed and approved under an applicable City land use review process. "Existing" also includes a tower that was lawfully constructed but not reviewed because it was not in a zoned area when it was built. G DEFINITIONS Geographic search ring. An area designated by a wireless provider or operator for a new wireless facility, produced in accordance with generally accepted principles of wireless engineering. H DEFINITIONSS Height of wireless facility. For placement of a wireless facility on an existing structure, the height is measured from the base of the wireless facility to the highest point of the wireless facility, including any antenna, lighting rod, or other equipment affixed thereto. Wireless Facilities Ord. - Page 29 of 33 - L DEFINITIONS Large scale wireless facility. A wireless facility 25 feet or greater in height from the base to the highest point including attachments. Examples of supporting structures are monopoles, self-supporting (lattice) towers, guy-wire supported towers and other similar structures. When calculating the height of a facility, other structures designed for other uses such as buildings or water towers may not be included in the calculation. M DEFINITIONS Macro wireless facility. A large scale wireless facility in excess of 50 feet in height. Micro-scale wireless facility. A small wireless facility that is (i) not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height and that has an exterior antenna, if any, not longer than 11 inches and (ii) is mounted on a structure less than 10 feet in height from the base to the highest point, including attachments. When calculating the height of a facility, other structures designed for other uses, such as buildings or water towers, may not be included in the calculation. Modification to existing wireless facility. The addition, removal or change of any components to an existing wireless facility, including equipment compound. Wireless Facilities Ord. - Page 30 of 33 - O DEFINITIONS OTARD. Over the air wireless receive-only devices which are limited to either a "dish" antenna one meter (1 m) (39.37 in) or less in diameter designed to receive direct broadcast satellite service, including direct to home satellite service, or to receive or transmit fixed wireless signals via satellite, or an antenna that is one meter (1 m) or less in diameter and is designed to receive video programming services via broadband radio service (wireless cable), or to receive or transmit fixed wireless signals other than via satellite or an antenna that is designed to receive local television broadcast signals. R DEFINITIONS Radio frequency. Electromagnetic waves in the spectrum from about 3 kHz to 300 GHz used for wireless communications. Replacement of wireless facility. A modification of an existing tower to increase the height, or to improve its integrity, by replacing or removing one or several tower(s) located in proximity to a proposed new tower in order to encourage compliance with the Zoning Ordinance, or improve aesthetics or functionality of the overall wireless network. S DEFINITIONS Small-scale wireless facility. Small wireless facilities are wireless facilities that meet each of the following conditions: (1) The facilities are mounted on structures 50 feet or less in height including their antennas; or are mounted on structures no more than 10 percent taller than other adjacent structures; or do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; (2) Each antenna associated with the deployment, excluding associated antenna equipment is no more than three cubic feet in volume; (3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; (4) The facilities do not require antenna structure registration under FCC Rules; (5) The facilities are not located on Tribal lands; and (6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 CFR 1.1307(b). Wireless Facilities Ord. - Page 31 of 33 - Figure 38.800.200-1. Small wireless facilities. A wireless facility less than 25 feet in height from the base to the highest point including attachments. Examples of supporting structures are monopoles, self-supporting (lattice) towers, guy-wire supported towers and other similar structures. When calculating the height of a facility, other structures designed for other uses such as buildings or water towers may not be included in the calculation. This definition excludes those facilities meeting the definition of a micro-scale wireless facility. Stealth or camouflaged. Placement of a wireless facility in such a way that it may not be discerned as being separate from the principal use of a site. This may be accomplished through visual screening, use of color or encasement of the facility within an existing structure such as a steeple. A stealth installation may also include the placement of a new structure to contain the facility so long as the new structure complies with the height, setback and other requirements of the zoning code or is otherwise exempt from those requirements. Substantial change to wireless facility. A wireless facility modification that changes the dimensions of an existing wireless facility is a substantial change if: 1. For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible facilities, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater; Changes in height Wireless Facilities Ord. - Page 32 of 33 - should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were previously approved; 2. For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible facilities, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet; 3. For any eligible facility, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure; 4. It entails any excavation or deployment outside of the current site, except that, for towers other than towers in the public rights-of-way, it entails any excavation or deployment of transmission equipment outside of the current site by more than 30 feet in any direction. The site boundary from which the 30 feet is measured excludes any access or utility easements currently related to the site; 5. It would defeat the existing concealment elements of the eligible facility; or 6. It does not comply with conditions associated with the prior siting approval of the construction or modification of the tower or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in subsection (1) through (5) above. U DEFINITIONS Utility Pole. Any pole or structure designed to maintain or used for the purpose of lines, cables, or wires for communications or electrical service purposes or street lighting/signals. Wireless Facilities Ord. - Page 33 of 33 - W DEFINITIONS Wireless facility. An unstaffed tower or base station facility used for the transmission or reception of radio frequency (RF), microwave or other signals for commercial communications purposes, as further defined in 47 USC Section 332(c)(7)(C)(ii), as amended and as interpreted under federal law, typically consisting of an equipment enclosure, an antenna support structure and one or more antennae. This definition excludes amateur radios towers, Essential Services (Type I), OTARD satellite earth stations and private receive- only antennae, such as for the reception of television signals. Wireless tower. Any support structure built for the primary purpose of supporting any antennas and associated facilities for commercial, private, broadcast, microwave, public, public safety, licensed or unlicensed, or fixed or wireless services. A tower may be concealed or non-concealed. Non-concealed towers include: 1. Guyed: A style of tower consisting of a single truss assembly composed of sections with bracing incorporated. The sections are attached to each other, and the assembly is attached to a foundation and supported by a series of wires that are connected to anchors placed in the ground or on a building. 2. Lattice: A self-supporting tapered style of tower that consists of vertical and horizontal supports with multiple legs and cross bracing, and metal crossed strips or bars to support antennas. 3. Monopole: A style of freestanding tower consisting of a single shaft usually composed of two or more hollow sections that are in turn attached to a foundation. This type of tower is designed to support itself without the use of guywires or other stabilization devices. These facilities are mounted to a foundation that rests on or in the ground or on a building's roof. All feed lines shall be installed within the shaft of the structure.