HomeMy WebLinkAboutordinance.council.003-2020 ORDINANCE NO. 3
SERIES OF 2020
AN ORDINANCE OF THE ASPEN CITY COUNCIL ADOPTING WIRELESS
COMMUNICATIONS FACILITIES DESIGN GUIDELINES AND CODE
AMENDMENTS RELATED TO LAND USE CODE CHAPTER 26.505, WIRELESS
COMMUNICATIONS FACILITIES AND EQUIPMENT
WHEREAS, in accordance with Sections 26.210 and 26.310 of the City of Aspen Land
Use Code, and following the adoption of Ordinance No. 5, Series of 2019, the City Council of
the City of Aspen directed the Community Development Department to draft necessary code
amendments and create comprehensive design guidelines related to small cell wireless facilities;
and,
WHEREAS,the Community Development Department, in cooperation with multiple city
departments and HRGreen, an engineering consultant firm, conducted research related to existing
conditions, best practices in the wireless and engineering fields, and federal and state rules and
statute; and,
WHEREAS, pursuant to Section 26.310.020(B)(1), the Community Development
Department conducted extensive public outreach with community members, the Planning &
Zoning Commission, the Historic Preservation Commission, and City Council regarding the
drafting of the Wireless Communications Facilities Design Guidelines; and,
WHEREAS,in November and December 2019,City staff conducted eight(8)small group,
public workshops, two (2) feedback forums at the Limelight lodge on December 4", and initiated
a social media campaign and print and radio stories,held two(2)public meetings with the Planning
and Zoning Commission,two (2)public meetings with the Historic Preservation Commission,and
two (2) work sessions with the City Council; and,
WHEREAS,the Aspen City Council met in work sessions on August 5, 2019 and January
21, 2020, and provided general direction on the code amendment and the design guidelines; and,
WHEREAS, pursuant to Section 26.505.020(A), future amendments to Chapter 26.505
are exempt from the requirements of 26.310.020(B)(2), and may proceed directly to First and
Second Reading pursuant to 26.310.020(B)(3); and,
WHEREAS,the Community Development Director,with the cooperation of multiple City
departments, has recommended approval of the proposed amendment to the City of Aspen Land
Use Code and adoption of the Wireless Communications Facilities Design Guidelines; and
WHEREAS,at a regularly scheduled meeting on March 10,2020,City Council considered
Ordinance No. 3, Series of 2020 and by a vote of five to zero (5 — 0) approved the ordinance on
First Reading; and,
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Wireless Communications Facilities
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WHEREAS, at a regularly scheduled meeting on March 24, 2020, City Council voted in
support of a continuation of the public hearing for the Second Reading Ordinance No. 3, Series of
2020 to a date certain, April 28, 2020; and,
WHEREAS,at a regularly scheduled meeting on April 28, 2020, City Council considered
Ordinance No. 3, Series of 2020 in a properly noticed public hearing, and by a vote of X to X
(X—X) approved the ordinance on Second Reading; and,
WHEREAS, the Aspen City Council finds that the amendments meet or exceed all
'applicable standards pursuant to Chapter 26.310; and,
WHEREAS, the Aspen City Council finds that this Ordinance furthers and is necessary
for the promotion of public health, safety, and welfare; and
NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN COLORADO THAT:
Section 1: Chapter 26.505 shall be rescinded and readopted as follows:
Chapter 26.505
Wireless Communication Facilities and Equipment
Sec. 26.505.010 Purpose
Sec. 26.505.020 Adoption of Wireless Communications Facilities Design Guidelines
Sec. 26.505.030 Applicability
Sec. 26.505.040 Wireless Definitions
Sec. 26.505.050 Operational Standards
Sec. 26.505.060 Procedures for Review
Sec. 26.505.070 Application Contents
Sec. 26.505.080 Conditions and limitations
26.505.010 Purpose
The purpose of this Chapter is to regulate the placement, construction, and modification of towers
and wireless communications facilities (WCFs) to protect the health, safety and welfare of the
public, provide for managed development, installation, maintenance, modification, and removal
of wireless communications infrastructure that is consistent with Aspen's small mountain town
character, while at the same time not unreasonably interfering with the development of a
competitive wireless communications marketplace in the city.
26.505.020 Adoption of Wireless Communications Facilities Design Guidelines
The City Council hereby adopts design guidelines, hereinafter referred to as the Wireless
Communications Facilities Design Guidelines ("Design Guidelines'), which are incorporated into
the City of Aspen Land Use Code. The Design Guidelines set forth the design parameters to ensure
safe and secure installation and minimize negative aesthetic impacts of wireless communications
facilities installed on private property or in the public right-of-way. The Design Guidelines may
be amended,updated, and expanded from time to time by City Council Resolution. At least (1)
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copy shall be available for public inspection at the Community Development and Engineering
Departments and on the City of Aspen's webpage.
26.505.030 Applicability
All applications for the installation or development of WCFs and/or equipment must receive land
use approval, building permits, and/or right-of-way permits, as applicable, prior to installation.
Concurrent with the issuance of appropriate building and right-of-way permits, WCFs and/or
equipment shall be reviewed for approval by the Community Development Director (and when
applicable, the City Engineer) in conformance with the provisions and criteria of this Chapter.
WCFs and equipment subject to the provisions and criteria of this Chapter include without
limitation, WCFs within the Public Rights of Way, cellular telephone, paging, enhanced
specialized mobile radio (ESMR), personal communication services (PCS), commercial mobile
radio service (CMRS) and other wireless commercial telecommunication devices and all
associated structures and equipment including transmitters, antennas, monopoles, towers, masts
and microwave dishes, cabinets and equipment rooms. These provisions and criteria do not apply
to noncommercial satellite dish antennae,radio and television transmitters and antennae incidental
to residential use. All references made throughout this Chapter,to any of the devices to which this
Chapter is applicable, shall be construed to include all other devices to which this Chapter is
applicable
A. Future Amendments to Chapter 26.505.
All future amendments to this Chapter shall be exempt from the requirement of Policy
Resolution for code amendments (Section 26.310.020.B.1-2). Future amendments may
proceed directly to a First and Second Reading, pursuant to Section 26.310.020.B.3.
26.505.040 Wireless Definitions.
All words used in this Chapter or in the Wireless Communications Facilities Design Guidelines,
except where specifically defined herein, shall carry their customary meanings when not
inconsistent with the context. Definitions contained elsewhere in this Code shall apply to this
Section unless modified herein.
Accessory Wireless Equipment. Any equipment serving or being used in conjunction
with a Wireless Communications Facility (WCF), including, but not limited to, utility or
transmission equipment, power supplies, generators, batteries, cables, equipment
buildings, cabinets and storage sheds, shelters or other structures.
Alternative Tower Structure. Man-made trees, clock towers, bell steeples, light poles,
traffic signals, buildings, and similar alternative design mounting structures that are
intended to be compatible with the natural setting and surrounding structures, and
camouflage or concealment design techniques so as to make the presence of antennas or
towers compatible with the surrounding area pursuant to this Chapter. This term also
includes any antenna or antenna array attached to an Alternative Tower Structure and a
Replacement Pole. A stand-alone Monopole in the Public Right-of-Way that
accommodates Small Cell Wireless Facilities is considered an Alternative Tower Structure
to the extent it meets the camouflage and concealment standards of this Chapter.
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Antenna. Any device used to transmit and/or receive radio or electromagnetic waves such
as, but not limited to panel antennas, reflecting discs, microwave dishes, whip antennas,
directional and non-directional antennas consisting of one or more elements, multiple
antenna configurations, or other similar devices and configurations. Any exterior
apparatus designed for telephone,radio,or television communications through the sending
and/or receiving of wireless communications signals.
Base Station. A structure or equipment at a fixed location that enables Federal
Communications Commission ("FCC") licensed or authorized wireless communications
between user equipment and a communications network. The definition of base station
does not include or encompass a tower as defined herein or any equipment associated with
a tower. Base station includes, without limitation:
(1) Equipment associated with wireless communications services such as private
broadcast, and public safety services, as well as unlicensed wireless services and fixed
wireless services such as microwave backhaul that, at the time the relevant application
is filed with the city pursuant to this chapter has been reviewed and approved under
the applicable zoning or siting process, or under another state or local regulatory
review process, even if the structure was not built for the sole or primary purpose of
providing such support; and
(2) Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup
power supplied, and comparable equipment, regardless of technological configuration
(including distributed antenna systems and small-cell networks) that, at the time the
relevant application is filed with the city pursuant to title 26 of the Code has been
reviewed and approved under the applicable zoning or siting process, or under another
state or local regulatory review process, even if the structure was not built for the sole
or primary purpose of providing such support.
The definition of base station does not include any structure that, at the time the
application is filed with the city under this chapter, does not support or house
equipment described herein in sub-paragraphs 1 and 2 of this definition.
Camouflage, Concealment, Or Camouflage Design Techniques. A Wireless
Communication Facility ("WCF") is camouflaged or utilizes Camouflage Design
Techniques when any measures are used in the design and siting of Wireless
Communication Facilities with the intent to minimize or eliminate the visual impact of
such facilities to surrounding uses. A WCF site utilizes Camouflage Design Techniques
when it(i)is integrated in an outdoor fixture such as a flagpole,or(ii)uses a design which
mimics and is consistent with the nearby natural, or architectural features (such as an
artificial tree) or is incorporated into (including, without limitation, being attached to the
exterior of such facilities and painted to match it) or is integral within, incorporated on or
replaces existing permitted facilities or vertical infrastructure located in the right-of-way
(including without limitation, stop signs or other traffic signs or freestanding light
standards) so that the presence of the WCF is not readily apparent.
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Collocation. (1) mounting or installing a WCF on a pre-existing structure, and/or (2)
modifying a structure for the purpose of mounting or installing a WCF on that structure.
Provided that, for purposes of Eligible Facilities Requests, "Collocation" means the
mounting or installation of transmission equipment on an Eligible Support Structure for
the purpose of transmitting and/or receiving radio frequency signals for communications
purposes.
Eligible Facilities Request. Any request for modification of an Eligible Support Structure
that does not Substantially Change the physical dimensions of such Eligible Support
Structure involving: (i) collocation of new Transmission Equipment, (ii) removal of
Transmission Equipment,or(iii)replacement and/or addition of Transmission Equipment.
Eligible Support Structure. Any Tower or Base Station as defined in this Section,
provided that it is existing at the time the relevant application is filed with the city under
this Section.
Existing Tower or Base Station. A constructed Tower or Base Station is existing for
purposes of this section if it has been reviewed and approved under the applicable zoning
or siting process, or under another State or local regulatory review process, provided that
a tower that has not been reviewed and approved because it was not in a zoned area when
it was built, but was lawfully constructed, is existing for purposes of this definition.
Micro Cell Facility.A small wireless facility that is no larger than 24 inches in length, 15
inches in width, 12 inches in height, and that has an exterior antenna, if any, that is no
more than eleven inches in length.
Monopole. A single, freestanding pole-type structure supporting one or more Antennas.
Public right-of way. Any public way or public thoroughfare dedicated or devoted to public
use, including street, highway, road, alley, lane, court, boulevard, sidewalk, public square, mall
or like designation.
Replacement Pole. An Alternative Tower structure that is a newly constructed and
permitted traffic signal, utility pole, street light, flagpole, electric distribution, or street
light poles or other similar structure of proportions and of equal height to a pre-existing
pole or structure in order to support a WCF or Small Cell Facility or to accommodate
collocation and remove the pre-existing pole or structure.
Small Cell Facility.A WCF where each Antenna is located inside an enclosure of no more
than three cubic feet in volume or, in the case of an Antenna that has exposed elements,
the antenna and all of its exposed elements could fit within an imaginary enclosure of no
more than three cubic feet; and primary equipment enclosures are no larger than seventeen
cubic feet in volume. The following associated equipment may be located outside of the
primary equipment enclosure and, if so located, is not included in the calculation of
equipment volume: electric meter, concealment, telecommunications demarcation box,
ground-based enclosure, back-up power systems, grounding equipment, power transfer
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switch and cut-off switch. Small cells may be attached to Alternate Tower Structures,
Replacement Pole, and Base Stations.
Substantial Change to a WCF. A modification substantially changes the physical
dimensions of an Eligible Support Structure if after the modification, the structure meets
any of the following criteria:
(1) For Towers, other than Alternative Tower Structures or Towers in the Right-of-
Way, it increases the height of the Tower by more than ten percent (10%) or by the
height of one (1) additional antenna array, with separation from the nearest existing
antenna not to exceed twenty feet, whichever is greater; for other Eligible Support
Structures, it increases the height of the structure by more than ten percent (10%) or
more than ten(10) feet, whichever is greater;
(2) For Towers, other than Towers in the Right-of-Way, it involves adding an
appurtenance to the body of the Tower that would protrude from the Tower more than
twenty (20) feet, or more than the width of the Tower Structure at the level of the
appurtenance, whichever is greater; for Eligible Support Structures, it involves adding
an appurtenance to the body of the structure that would protrude from the side of the
structure by more than six (6) feet;
(3) For any Eligible Support Structure,it involves installation of more than the standard
number of new equipment cabinets for the technology involved, but not to exceed four
cabinets; or
(4) For Towers in the Right-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 ten percent(10%) larger in height or overall volume than any other existing,
individual ground cabinets associated with the structure;
(5) For any Eligible Support Structure, it entails any excavation or deployment outside
the current Site;
(6) For any Eligible Support Structure,it would defeat the concealment elements of the
Eligible Support Structure. For purposes of this definition,any change that undermines
concealment elements of an eligible support structure shall be interpreted as defeating
the concealment elements of that structure; or
(7) For any Eligible Support Structure, it does not comply with conditions associated
with the siting approval of the construction or modification of the Eligible Support
Structure equipment,unless the non-compliance is due to an increase in height,increase
in width, addition of cabinets, or new excavation that would not exceed the thresholds
identified in paragraphs (i), (ii), (iii) and (iv) of this Definition. For purposes of
determining whether a Substantial Change exists, changes in height are measured from
the original support structure in cases where deployments are or will be separated
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horizontally, such as on buildings' rooftops; in other circumstances, changes in height
are measured from the dimensions of the tower or base station, inclusive of originally
approved appurtenances and any modifications that were approved prior to February
22, 2012.
Tower. Any structure that is designed and constructed for the sole or primary purpose of
supporting one or more any FCC-licensed or authorized Antennas and their associated
facilities, including structures that are constructed for wireless communications services
including, but not limited to, private, broadcast, and public safety services, as well as
unlicensed wireless services and fixed wireless services such as microwave backhaul, and
the associated site. The term includes self-supporting lattice towers, guyed towers,
monopole towers, radio and television transmission towers, microwave towers, common
carrier towers, cellular telephone towers, Alternative Tower Structures and the like.
Transmission Equipment. Equipment that facilitates transmission for any FCC licensed
or authorized wireless communication service, including, but not limited to, radio
transceivers,antennas,coaxial or fiber-optic cable, and regular and backup power supply.
The term includes equipment associated with wireless communications services
including, but not limited to, private, broadcast, and public safety services, as well as
unlicensed wireless services and fixed wireless services such as microwave backhaul.
Wireless Communications Facility Or WCF. A facility used to provide personal
wireless services as defined at 47 U.S.C. Section 332 (c)(7)(C); or wireless information
services provided to the public or to such classes of users as to be effectively available
directly to the public via licensed or unlicensed frequencies; or Smart City, Internet of
Things, wireless utility monitoring and control services. A WCF does not include a
facility entirely enclosed within a permitted building where the installation does not
require a modification of the exterior of the building;nor does it include a device attached
to a building, used for serving that building only and that is otherwise permitted under
other provisions of the Code. A WCF includes an Antenna or Antennas, including
without limitation, direction, omni-directional and parabolic antennas, support
equipment, Alternative Tower Structures, and Towers. It does not include the support
structure to which the WCF or its components are attached if the use of such structures
for WCFs is not the primary use. The term does not include mobile transmitting devices
used by wireless service subscribers, such as vehicle or hand-held radios/telephones and
their associated transmitting Antennas, nor does it include other facilities specifically
excluded from the coverage of this Chapter.
26.505.050 Operational Standards.
A. Federal Requirements. All WCFs shall meet the current standards and
regulations of the FAA,the FCC and any other agency of the federal government with the
authority to regulate WCFs,including,without limitation,the requirement that WCFs shall
not present a hazard to air navigation under Part 77, Federal Aviation, Federal Aviation
Regulations. If such standards and regulations are changed, then the owners of the WCF
shall bring such facility into compliance with such revised standards and regulations
within the time period mandated by the controlling federal agency. Failure to meet such
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revised standards and regulations shall constitute grounds for the removal of the WCF at
the WCF owner's expense.
B. Radio Frequency Standards. All WCFs shall comply with federal standards for
radio frequency emissions. Applicants for WCFs shall submit a letter certifying that all
WCFs that are the subject of the application shall comply with federal standards for radio
frequency emissions. The owner or operator of an approved WCF shall also provide the
City with the FCC license for the WCF at the time the license is issued for the facility.
C. Signal Interference. All WCFs shall be designed and sited, consistent with
applicable federal regulations, so as not to cause interference with the normal operation of
radio, television, telephone and other communication services utilized by adjacent
residential and non-residential properties; nor shall any such facilities interfere with any
public safety communications. The Applicant shall provide a written statement from a
qualified radio frequency engineer, certifying that a technical evaluation of existing and
proposed facilities indicates no potential interference problems and shall allow the City to
monitor interference levels with public safety communications during this process.
Additionally, the Applicant shall notify the City at least ten calendar days prior to the
introduction of new service or changes in existing service and shall allow the City to
monitor interference levels with public safety communications during the testing process.
D. License to Use. The Applicant may execute a license agreement with the City,
granting a non-exclusive license to use the Public Right-of-Way. Attachment of WCFs
on an existing traffic signal, streetlight pole, or similar structure shall require written
evidence of a license, or other legal right or approval, to use such structure by its owner.
E. Operation and Maintenance. To ensure the structural integrity of WCFs, the
owner of a WCF shall ensure that it is maintained in compliance with the standards
contained in applicable local building, safety, and engineering codes. If upon inspection,
the City concludes that a WCF fails to comply with such codes and constitutes a danger to
persons or property, then, upon written notice being provided to the owner of the WCF,
the owner shall have 30 days from the date of notice to bring such WCF into compliance.
Upon good cause shown by the owner,the City's Chief Building Official may extend such
compliance period not to exceed 90 days from the date of said notice. If the owner fails
to bring such WCF into compliance within said time period, the City may remove such
WCF at the owner's expense.
F. Abandonment and Removal. If a WCF has not been in use for a period of three
months, the owner of the WCF shall notify the City of the non-use and shall indicate
whether re-use is expected within the ensuing three months. Any WCF that is not operated
for a continuous period of six months shall be considered abandoned. The City, in its sole
discretion,may require an abandoned WCF to be removed. The owner of such WCF shall
commence removal of the same within 30 days of receipt of written notice from the City.
If such WCF is not removed within said 30 days, the City may remove it at the owner's
expense and any approved permits for the WCF shall be deemed to have expired.
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Additionally, the City, in its sole discretion, shall not approve any new WCF application
until the Applicant who is also the owner or operator of any such abandoned WCF has
removed such WCF or payment for such removal has been made to the City.
G. Hazardous Materials. No hazardous materials shall be permitted in association
with WCFs, except those necessary for the operations of the WCF and only in accordance
with all applicable laws governing such materials.
H. Collocation. No WCF owner. or operator shall unreasonably exclude a
telecommunications competitor from using the same facility or location. Upon request by
the Community Development Department, the owner or operator shall provide evidence
explaining why Collocation is not possible at a particular facility or site.
I. Compliance with Applicable Law.
Notwithstanding the approval of an application for new WCFs or Eligible Facilities
Request as described herein, all work done pursuant to WCF applications must be
completed in accordance with all applicable building, structural, engineering, electrical,
and safety requirements as set forth in the Aspen Municipal Code and any other applicable
laws or regulations. In addition, all WCF applications shall comply with the following:
1. Comply with any permit or license issued by a local,state,or federal agency
with jurisdiction of the WCF;
2. Comply with easements, covenants, conditions and/or restrictions on or
applicable to the underlying real property;
3. Be maintained in good working condition and to the standards established
at the time of application approval; and
4. Remain free from trash,debris, litter,graffiti,and other forms of vandalism.
Any damage shall be repaired as soon as practicable, and in no instance more than
ten calendar days from the time of notification by the City or after discovery by the
owner or operator of the Site.Notwithstanding the foregoing, any graffiti on WCFs
located in the Public Rights-of-Way or on Public Property may be removed by the
City at its discretion, and the owner and/or operator of the WCF shall pay all costs
of such removal within 30 days after receipt of an invoice from the City.
26.505.060 Procedures for Review.
No new WCF shall be constructed and no Collocation or modification to any WCF may occur
except after a written request from an applicant,reviewed and approved by the City in accordance
with this Chapter.
A. Review Procedures for certain WCFs, including Base Stations, Alternative Tower
Structures, and Alternative Tower Structures within Public Rights-of-Way, but excepting
Eligible Facilities Requests, and Small Cell Facilities in the Right-of-Way.
In all zone districts, applications for these WCF facilities shall be reviewed by the Community
Development Department for conformance to this Section and using the Wireless
Communications Facilities Design Guidelines. For WCFs in the rights-of-way, except for Small
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Cell Facilities in the Right-of-Way, that are found to have a significant visual impact (e.g.
proximity to historical sites,obstructing views),be incompatible with the structure or surrounding
area, or not meet the intent of these provisions, the Community Development Department may
refer the application to Planning and Zoning Commission or Historic Preservation Commission,
as applicable, for a Special Review determination.
B. Review Procedures for Towers.
In all zone districts, Towers, other than those defined or excepted in (A) above, must apply for
Special Review approval. These WCFs shall be reviewed for conformance using the procedures
set forth in Section 26.505.050.L. All applications for Towers shall demonstrate that other
alternative design options, such as using Base Stations or Alternative Tower Structures, are not
viable options as determined by the City.
C. Review Procedures for Eligible Facilities Requests.
1. In all zone districts, Eligible Facilities Requests shall be considered a permitted use,
subject to administrative review. The City shall prepare, and from time to time revise,
and make publicly available, an application form which shall require submittal of
information necessary for the City to consider whether an application is an Eligible
Facilities Request. Such required information may include,without limitation,whether
the project:
a. Constitutes a Substantial Change; or
b. Violates a generally applicable law,regulation,or other rule codifying objective
standards reasonably related to public health and safety.
The application shall not require the applicant to demonstrate a need or business case
for the proposed modification or Collocation.
2. Upon receipt of an application for an Eligible Facilities Request pursuant to this
Section, the Community Development Department shall review such application to
determine whether the application so qualifies.
3. Timeframe for Review. Subject to the tolling provisions of subparagraph 4 below,
within 60 calendar days of the date on which an applicant submits a complete
application seeking approval under this Section, the City shall approve the application
unless it determines that the application is not covered by this Subsection, or otherwise
in non-conformance with applicable codes.
4. Tolling of the Timeframe for Review. The 60-day review period begins to run when
the application is filed,and may be tolled only by mutual agreement of the City and the
applicant, or in cases where the Community Development Department determines that
the application is incomplete:
a. To toll the timeframe for incompleteness, the City must provide written notice
to the applicant within thirty(30) days of receipt of the application, specifically
delineating all missing documents or information required in the application;
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b. The timeframe for review begins running again the following business day after
the applicant makes a supplemental written submission in response to the City's
notice of incompleteness; and
c. Following a supplemental submission, the City will notify the applicant within
ten (10) days that if the supplemental submission did not provide the
information identified in the original notice delineating missing information.
The timeframe is tolled in the case of second or subsequent notices pursuant to
the procedures identified in paragraph (a) of this subsection. In the case of a
second or subsequent notice of incompleteness, the City may not specify
missing information or documents that were not delineated in the original notice
of incompleteness.
5. Failure to Act. In the event the City fails to act on a request seeking approval for an
Eligible Facilities Request under this Section within the timeframe for review
(accounting for any tolling),the request shall be deemed granted. The request becomes
effective when the applicant notifies the City in writing after the review period has
expired (accounting for any tolling)that the application has been deemed granted.
6. Interaction with Telecommunications Act Section 332(c)(7). If the City determines
that the applicant's request is not an Eligible Facilities Request as delineated in this
Chapter, the presumptively reasonable timeframe under Section 332(c)(7) of the
Telecommunication Act, as prescribed by the FCC's Shot Clock order, will begin to
run from the issuance of the City's decision that the application is not a covered request.
To the extent such information is necessary, the City may request additional
information from the applicant to evaluate the application under Section 332(c)(7)
reviews.
D. Review Procedures for Small Cell Facilities in the Public Right-of-Way.
1. Small Cell Facilities in the Public Right-of-Way may be approved pursuant to a
Master License Agreement or similar form of authorization or individually in
accordance with the provisions of this subsection.
2. Within ten (10) days of receipt of the application, the Director shall provide written
comments to the applicant determining completeness of the application and setting
forth any modifications required to complete the application to bring the proposal
into full compliance with the requirements of this Chapter.
3. The Director shall review the completed application for conformance with the
provisions in this Chapter and may approve or deny an application within 90 days of
the date the application is submitted for new stand-alone facilities or 60 days for
facilities collocated on city infrastructure.
a. To toll the timeframe for incompleteness, the City must provide written
notice to the Applicant within ten (10) days of receipt of the application,
specifically delineating all missing documents or information required in the
application;
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b. The timeframe for review resets to zero (0) when the Applicant makes a
supplemental written submission in response to the City's notice of
incompleteness; and
c. Following a supplemental submission, the City will notify the Applicant
within ten (10) days that the supplemental submission did not provide the
information identified in the original notice delineating missing information.
The timeframe is tolled in the case of second or subsequent notices pursuant
to the procedures identified in paragraph (a) of this subsection. In the case
of a second or subsequent notice of incompleteness,the City may not specify
missing information or documents that were not delineated in the original
notice of incompleteness.
4. Consolidated applications. The City shall allow a wireless provider to file a
consolidated application for up to six (6) small cell facilities and receive a single
approval for the consolidated application. The City's denial of any individual small
cell facility is not a basis to deny the application as a whole or any other small cell
facility incorporated within the consolidated application.
E. General.
Except for applications under subsections C and D above, pursuant to Section 26.304.020, the
applicant shall conduct a pre-application conference with staff of the Community Development
Department. The planner shall then prepare a pre-application summary describing the submission
requirements and any other pertinent land use material, the fees associated with the reviews and
the review process in general. A pre-application conference is not required, but is recommended,
for Eligible Facility Requests or Small Cells in the Right-of-Way.
F. Administrative review.
Except for applications under subsections C and D above, after the pre-application summary is
received by the applicant, said applicant shall prepare an application for review and approval by
staff and the Community Development Director,respectively. In order to proceed with additional
land use reviews or obtain a development order,the Community Development Director shall find
the submitted development application consistent with the provisions,requirements and standards
of this Chapter and the Wireless Communications Facilities Design Guidelines.
G. Decision.
Any decision to approve, approve with conditions, or deny an application for a WCF, shall be in
writing and supported by substantial evidence in a written record. The applicant shall receive a
copy of the decision.
H. Appeal of Director's determination.
The Community Development Director may apply reasonable conditions to the approval as
deemed necessary to ensure conformance with applicable review criteria in the Wireless
Communications Facilities Design Guidelines If the Community Development Director
determines that the proposed WCFs and equipment do not comply with the review criteria and
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denies the application or the applicant does not agree to the conditions of approval determined by
the Community Development Director, the applicant may apply for special review (Chapter
26.430) by the Planning and Zoning Commission or, if applicable, by the Historic Preservation
Commission, and such application must be made within fifteen (15) calendar days of the day on
which the Community Development Director's decision is rendered. All appeals shall require
public hearings and shall be noticed by the applicant in accordance with Paragraphs
26.304.060.E.3.a, b and c of this Code.
I. Historic Preservation Commission review.
With the exception of Eligible Facilities Requests and Small Cell Facilities in the ROW,proposals
for the location of WCFs or equipment on any historic site or structure, shall be reviewed by the
Historic Preservation Commission (HPC). Review of applications for WCFs and/or equipment
by the HPC shall replace the need for review by the Community Development Director. Likewise,
if the Historic Preservation Commission determines that the proposed WCFs and equipment do
not comply with the review criteria and denies the application or the applicant does not agree to
the conditions of approval determined by the Historic Preservation Commission, the applicant
may appeal the decision to the City Council, and such appeal must be filed within fifteen (15)
calendar days of the day on which the Historic Preservation Commission's decision is rendered.
All appeals shall require public hearings and shall be noticed by the applicant in accordance with
Paragraphs 26.304.060.E.3.a, b and c of this Code.
J. Building Permit.
A Building Permit, shall be submitted concurrently with the Land Use Application. Depending
on the nature of project, a full Building.Permit may be necessary, or, as would be the case for
most Eligible Facilities Requests, an Electrical Permit. A contractor for the proposed work must
be identified with the submitted application. A Building or Electrical Permit without an identified
contractor will be deemed incomplete — and the application will be tolled until the contractor is
identified.
K. Right of Way Permit.
For all facilities located in the public right-of-way, a Right of Way Permit shall be submitted
concurrently with the Land Use Application. For WCFs in the right-of-way, Applicants should
review the checklist included in the Appendix of the Design Guidelines—that describes in detail
the submittal requirements. A contractor for the proposed work must be identified with the
submitted application. A Right-of-Way permit without an identified contractor will be deemed
incomplete— and the application will be tolled until the contractor is identified. Additionally, an
Electrical Permit shall be required for any installation that involves line voltage.
L. Special review.
An application requesting a variance from the review standards as set forth in this chapter and
the Wireless Communications Facilities Design Guidelines (except for Eligible Facilities
Requests) or an appeal of a determination made by the Community Development Director, shall
be processed as a special review in accordance with the common development review procedures
set forth in Chapter 26.304, and the Special Review Chapter, 26.430. The special review shall be
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considered at a public hearing for which notice has been posted and mailed, pursuant to
Paragraphs 26.304.060.E.3.b and c.
1. Review is by the Planning and Zoning Commission. If the property is listed on the Aspen
inventory of historic landmark sites and structures or within a Historic Overlay District and
the application has been authorized for consolidation pursuant to Chapter 26.304, the
Historic Preservation Commission shall consider the special review. Such special review
may be approved, approved with conditions or denied based on conformance with the
following criteria:
a. Conformance with the applicable review standards of Wireless Communications
Facilities Design Guidelines.
b. If the facility or equipment is located on property listed on the Aspen inventory of
historic landmark sites and structures or within any historic district, then the
applicable standards of Chapter 26.415 (Development involving the Aspen
inventory of historic landmark sites and structures or development in an "H,"
Historic Overlay District) shall apply.
c. If the facility or equipment is located on property that is subject to the Commercial
Design Standards of Chapter 26.412, those applicable standards shall apply.
d. The applicant, in making the case for the variance, shall provide evidence that strict
adherence to the standard(s) or guideline(s), shall render the proposed facility
technically or practically infeasible.
e. The applicant in making the case for the variance shall provide evidence that there
are no feasible alternatives to the location and/or design of the proposed facility.
26.505.070 Application Contents
An application for approval of new WCFs and modified or additional WCFs, Eligible Facilities
Requests, and Small Cell Facilities Requests shall comply with the submittal requirements
applicable to all Land Use Reviews pursuant to Chapter 26.304, Common development review.
WCFs and equipment applications shall also,depending on their nature contain required materials
as described in the checklist contained within the City of Aspen Wireless Development
Application Packet and the Wireless Communications Facilities Design Guidelines. Additionally,
depending on their nature, required Building, Electrical, and/or Right-of-Way permits shall be
submitted concurrent to the Land Use Application.
26.505.080 Conditions and limitations. The City shall reserve the right to add, modify or
delete conditions after the approval of a request in order to advance a legitimate City interest
related to health, safety or welfare. Prior to exercising this right, the City shall notify the owner
and operator in advance and shall not impose a substantial expense or deprive the affected party
of a substantial revenue source in the exercising of such right.
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Approval by the Community Development Director for a WCF and/or equipment application shall
not be construed to waive any applicable zoning or other regulations; and wherein not otherwise
specified,all other requirements of this Code shall apply, including Title 21(Street, Sidewalks,and
other public places, and Title 29 (Engineering Design Standards). All requests for modifications
of existing facilities or approvals shall be submitted to the Community Development Director for
review under all provisions and requirements of this Section. If other than minor changes are
proposed, a new, complete application containing all proposed revisions shall be required.
Section 2: Wireless Communications Facilities Design Guidelines shall be adopted as follows:
Included as Exhibit A to the Ordinance
Section 3: Any scrivener's errors contained in the code amendments herein, including but not
limited to mislabeled subsections or titles, may be corrected administratively following adoption
of the Ordinance.
Section 4: Effect Upon Existing Litigation.
This ordinance shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein
provided, and the same shall be conducted and concluded under such prior ordinances.
Section 5: Severability.
If any section, subsection, sentence,clause,phrase,or portion of this ordinance is for any reason held
invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate,distinct and independent provision and shall not affect the validity of the remaining portions
thereof.
Section 6: Effective Date.
In accordance with Section 4.9 of the City of Aspen Home Rule Charter,this ordinance shall become
effective thirty (30)days following final passage.
Section 7•
A public hearing on this ordinance shall be held on the day of , 2020, at a meeting of the
Aspen City Council commencing at 5:00 p.m. in the City Council Chambers,Aspen City Hall,Aspen,
Colorado, a minimum of fifteen days prior to which hearing a public notice of the same shall be
published in a newspaper of general circulation within the City of Aspen.
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INTRODUCED, READ, AND ORDERED PUBLISHED as provided by law, by the City
Council of the City of Aspen on the � '6 'liay of 020.
Attest:
Nicole Henning, City Oerk Torre, Mayor
FINALLY, adopted, passed and approved this A0 th day of W, 2020.
Attest:
Taw.for.,r
Nicole Henning, City rk Torre, Mayor
Approved as to form:
J es R. True, City Attorney
EXHIBIT A—Adopted Wireless Communications Facilities Design Guidelines
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