§ 27-593. Allowable special uses.

(a)

The following uses may be permitted under special use permit in any zoning district except as specifically limited herein:

(1)

Amusement parks, privately owned and operated athletic fields, and race tracks.

(2)

Assembly halls, community centers, exhibition halls, and convention centers.

(3)

Bingo parlors.

(4)

Children's day care and nursery facilities.

(5)

Concert halls, discotheques, and dance halls.

(6)

Crematories, when not an accessory use to a funeral home.

(7)

Electronic message centers in districts C-2 through M-3.

(8)

Extraction of raw material, such as rock, gravel, and sand.

(9)

Farm wineries.

(10)

Fowl, keeping of permitted fowl in lots not zoned agricultural:

a.

Closer than 25 feet to the nearest portion of any building occupied by or in any way used by human beings, other than the dwelling occupied by the owner or keeper of the animals or fowl, or closer than ten feet to the property line of the lot.

b.

Exceeding a total of six fowl regardless of lot size.

(11)

Golf driving ranges, miniature golf courses.

(12)

Home occupations.

(13)

Hospitals, special purpose hospitals and other facilities for treatment of humans.

(14)

Institutions of an educational, religious, philanthropic or eleemosynary nature.

(15)

Keeping of livestock on acreage between one and five acres.

(16)

Microbreweries.

(17)

Motels, hotels, motor hotels.

(18)

Nursery sales office, building, greenhouse or area.

(19)

Nursing and convalescent homes.

(20)

Off-site directional signs for residential land developments.

(21)

Off-street parking lots for passenger vehicles.

(22)

Outdoor advertising signs whenever the zoning lot has a minimum of 2,500 square feet in area and is located abutting a freeway or expressway in the C-2 through M-2 districts.

(23)

Outdoor motion picture theatres.

(24)

Private or commercial facilities for tennis, handball, racquet ball or similar recreation.

(25)

Production or assembly of measuring and controlling instruments, optical, medical, and photographic equipment, and semiconductors and electric components which are small, precision made and of relatively low production bulk in the C-D and C-3 districts.

(26)

Public utility services or public service corporations, which buildings or uses are deemed reasonable and necessary for the public convenience and welfare.

(27)

Riding stables and tracks.

(28)

Temporary use of land for commercial or industrial uses; provided, however, that any building or structure constructed thereon which is not otherwise permitted in the district in which such land is situated shall be temporary and any stored equipment or material shall be removed upon the date of expiration of the special use permit, which permit shall not be approved for more than two years.

(29)

Veterinary clinics, dog kennels.

(30)

The unified government board of commissioners may, upon application by the proponent, issue a special use permit for the use of a specified parcel of land for such temporary short term uses as trade shows, street fairs, expositions, promotional ventures and entertainment, without publication or posted notice and without referral to the planning commission, provided the following conditions are met:

a.

The applicant shall submit in written form a complete description of the proposed use, including estimated accumulation of automobiles and persons, hours of operation, and other characteristics and effects on the neighborhood.

b.

The short term special use shall not be operated longer than ten consecutive days.

c.

Upon the cessation of the short term special use, all materials and equipment shall be promptly removed and the property restored to its normal condition.

If, after giving full consideration to the effect of the requested special use on the neighborhood and the community, the unified government board of commissioners deems the special use reasonable, the special use permit for the short term use may be approved. Conditions of operation, provision for surety bond, and other reasonable safeguards may be written into the special use permit. Such permit may be approved in any zoning district, and the required fee shall be paid.

(31)

Wireless communication facilities.

a.

Findings. The Telecommunications Act of 1996 grants authority to local jurisdictions over decisions regarding the placement, construction, and modification of wireless communication facilities. Kansas law, Senate Sub. for HB 2131, added certain regulations pertaining to the siting of wireless telecommunications infrastructure and pertaining to the permit application process between wireless service providers and municipalities, but maintained municipalities' home rule power in their administration and regulation related to the management of the public right-of-way. Notably, the right of a wireless service provider or wireless infrastructure provider to use and occupy the public right-of-way shall always be subject and subordinate to the reasonable public health, safety and welfare requirements and regulations of the unified government. The unified government has diverse and unique landscape features, natural resources, and residential, commercial and historic neighborhoods that must be protected with quality land use development regulations, including regulations governing the location and design of wireless communication facilities.

b.

Purpose. The purpose of these regulations is to ensure that wireless communication facilities are appropriately designed and sited to ensure compatibility with current and future land uses, while ensuring that wireless service providers are able to provide customers with adequate wireless service. Compatibility touches upon several key factors, including:

1.

Aesthetics, including scale (both in terms of mass and height) in association with onsite and offsite land uses.

2.

Preservation of open space.

3.

Safety.

4.

Compliance with existing development guidelines.

5.

Siting of wireless communication facilities to ensure minimal disruption to future development patterns, both onsite and offsite.

c.

Definitions. The following definitions control this chapter. Other terms used throughout this chapter shall have the same meaning as elsewhere defined in the zoning ordinance, if defined therein.

Administrative determination. A final decision by the director of planning or his/her designee.

Applicant. The person or entity making application for a wireless communication facility pursuant to this chapter.

Base station equipment. Base transceiver station equipment, whether stand-alone "outdoor equipment", wall-pack equipment, or equipment located within an equipment shelter.

City. The City of Kansas City, Kansas.

Collocation. The act of placing a wireless communication facility on an existing (i) building, (ii) water tank, (iii) billboard, (iv) communication tower, or other previously approved structure within the city's boundaries.

Collocation installation. A wireless communication facility located on an existing (i) building, (ii) water tank, (iii) billboard, (iv) communication tower, or other previously approved structure within the city's boundaries.

Communication tower. An uninhabitable man-made support structure constructed for the primary purpose of placement of antennas for the transmission and distribution of radio frequency signals. For purposes of this chapter, the term "communication tower" shall include all structures that fall within the definition of "wireless support structure" found in Kansas statutes, Senate Sub. for HB 2131.

Distributed antenna system. A network that distributes radio frequency signals and consisting of remote communications or antenna nodes deployed throughout a desired coverage area, each including a least one antenna for transmission and reception.

Eligible facilities request. Any request for modification of an existing wireless tower or base station that involves: (a) collocation of new transmission equipment; (b) removal of transmission equipment; or (c) replacement of transmission equipment.

Governing body. The elected political body of the city.

Guyed communication tower. A communication tower structurally supported by guy wires.

Lattice communication tower. A communication tower structurally supported through the cross-bracing of steel members, and sometimes also referred to as a "self-support tower".

Monopole communication tower. A concrete spun or prefabricated tubular steel or carbon communication tower.

Planning department. The city's urban planning and land use department.

Property owner. The owner or owners of real property in fee simple.

Small cell facility. A wireless facility that meets both of the following qualifications: (A) Each antenna is located inside an enclosure of no more than six cubic feet in volume, or in the case of an antenna that has exposed elements, the antenna and all of the antenna's exposed elements could fit within an imaginary enclosure of no more than six cubic feet; and (B) primary equipment enclosures that are no larger than 17 cubic feet in volume, or facilities comprised of such higher limits as the Federal Communication Commission has excluded from review pursuant to 54 U.S.C. § 306108. Associated equipment may be located outside the primary equipment, and if so located, is not to be located in the calculation of equipment volume. Associated equipment includes, but is not limited to, any electric meter, concealment, telecommunications demarcation box, ground-based enclosures, back-up power systems, grounding equipment, power transfer switch, cut-off switch and vertical cable runs for the connection of power and other series.

Small cell network. A collection of interrelated small cell facilities designed to deliver wireless services.

Stealth communication tower. A monopole communication tower designed, in order of preference (i) with antenna mounting hardware and antenna mounts that are concealed within a canister so that the antennas are not visible; (ii) with antennas that are flush mounted to the pole to minimize the horizontal profile of the structure; or (iii) to be integrated into stadium lights at public parks or schools, or as light standards in parking lots.

Tower owner. An owner of a communication tower.

Wireless communication facility. An antenna installation, associated coaxial cable and associated base station equipment used by a wireless service provider to provide wireless service to customers. If a wireless communication facility is located on a communication tower, the communication tower and wireless communication facility are collectively the wireless communication facility. For purposes of this Code, "wireless communications facilities" shall include all facilities and structures that fall within the definition of "wireless facility" and "wireless support structure" found in Kansas statutes, Senate Sub. for HB 2131.

Wireless service provider. An entity holding a license issued by the Federal Communications Commission to send and receive radio frequency signals in the cellular and PCS band spectrums within the jurisdictional boundaries of the city.

Wireless services. Means "personal wireless service" and "personal wireless services facilities" as defined in 47 U.S.C. § 332(c)(7)(C), including commercial mobile services as defined in 47 U.S.C. § 332(d), provided to personal mobile communications devices through wireless facilities or any fixed or mobile wireless services provided using wireless facilities.

Zoning ordinance. The zoning ordinance of the city of Kansas City, Kansas, codified in chapter 27 of this Code.

d.

Burden of proof. As to the contents of the application for any wireless communication facility required hereby, the burden of proof of establishing compliance with this chapter, rests squarely on the applicant for the wireless communication facility to establish compliance by clear and convincing evidence.

e.

Applicability of chapter—Conflict. This chapter applies to the construction and maintenance, repair, upgrade and operation of wireless communication facilities and communication towers. Wireless communication facilities may be permitted subject to administrative determination, permitted by special use permit, or prohibited based upon the present zoning designation of the property on which an application for a wireless communication facility is made. The differences in designations recognize that, in certain circumstances, wireless communication facilities and communication towers may not be compatible with adjacent land uses or the health, safety and welfare of the community as a whole.

This chapter is supplementary to other dimensional and density standards set forth in the zoning ordinance. In the event of conflict between this chapter and any other chapter of the zoning ordinance, the provisions of this chapter shall control.

f.

Reserved.

g.

Reserved.

h.

Designation of uses as administrative determination, specially permitted, and prohibited. Wireless communication facilities are authorized subject to the following:

	AG Zone	Residential Zones	Commercial Zones	Industrial Zones	Public Right-of-Way
Guyed Tower	Prohibited	Prohibited	Prohibited	Prohibited	Prohibited
Self Support Tower	Prohibited	Prohibited	Prohibited	Prohibited	Prohibited
Monopole Tower under 199 feet	Prohibited	Prohibited	Prohibited	Specially Permitted*	Specially Permitted* (50 ft max)
Stealth Tower between 80 and 199 feet	Specially Permitted*	Prohibited	Specially Permitted*	Administrative Determination*	Prohibited
Stealth Tower Under 80 feet	Specially Permitted	Specially Permitted	Administrative Determination*	Administrative Determination*	Specially Permitted* (50 ft max)
Collocation Installation	Administrative Determination**	Administrative Determination**	Administrative Determination**	Administrative Determination**	Administrative Determination**
Small Cell Network	Administrative Determination**	Administrative Determination**	Administrative Determination**	Administrative Determination**	Administrative Determination**
Distributed Antenna System	Administrative Determination**	Administrative Determination**	Administrative Determination**	Administrative Determination**	Administrative Determination**

 

* Subject to separation, setback, application submission requirements and the height limitations for communication towers in the public right-of-way specified in this chapter.

** Subject to application submission requirements specified in this chapter, and provided that collocation in single family, two-family residential and agricultural zones is limited to nonresidential structures. Provided further that no collocation installation may be placed on any residential structure shorter than 30 feet in height, and any collocation on a structure shorter than 60 feet in height shall be integrated into the structure on which the wireless communication facility is placed.

The administrative determination, decision rests solely in the discretion of the director of planning, who may consider the future land use designation of the property or the area surrounding the property, based upon the city's comprehensive plan or any applicable area plan, neighborhood conditions, the existing or potential for the proliferation of wireless communication facilities in the surrounding area, or any other matter that, in the director of planning's discretion, warrants additional consideration or relates to the application. The applicant may appeal the administrative decision by filing for a special use permit within one month of the administrative determination.

i.

Who may apply for communication tower. No application for a communication tower will be accepted by the planning department unless accompanied by an affidavit by a wireless service provider that it is constructing and will own and operate the tower, or, if it will not own and/or operate the tower, that it will collocate on the communication tower within six months of issuance of a certificate of occupancy for the tower. Failure to comply with this statement will render the communication tower subject to the provisions for removal set out in [subsection n.2.] below. The purpose of this provision is to discourage the construction of speculative communication towers within the city's jurisdictional boundaries and to make clear that, if approved, these towers are constructed "at risk" and in the absence of use of the tower by a wireless service provider, the city retains the right to require its removal.

j.

Development standards applicable to construction of all wireless communication facilities.

1.

The following standards shall apply to all wireless communication facilities:

i.

No commercial advertising shall be allowed on a wireless communication facility, unless that wireless communication facility is actually located on an existing, approved sign. Wireless communication facilities may have safety or warning signs in appropriate places;

ii.

No signals, lights or illumination shall be permitted on a wireless communication facility, unless required by the Federal Aviation Administration. Should lighting be required by state or federal law, the lighting shall be placed on the communication tower and designed in a way as to minimize, to the fullest extent possible, glare onto adjacent residential properties;

iii.

Light fixtures may be attached if required by the FAA, as described in subsection vi. below or if part of a stealth communication tower design of or incorporated into and used for the illumination of athletic fields, parking lots, streets or other similar areas. Lighting of the accessory buildings for basic security purposes is permissible but may not result in glare on adjacent properties;

iv.

The height of a communication tower or wireless communication facility shall conform to the height limitations of an applicable overlay district, if an overlay is used;

v.

All wireless communication facilities shall be sited to have the least intrusive visual effect, as is practical, on the environment and adjacent properties.

vi.

For existing communication towers, lighting and painting requirements shall be in accordance with FAA guidelines. For new communication towers, if an option exists to light a tower in lieu of painting the tower, applicant must agree to light the tower.

k.

Application submission requirements for wireless communication facilities.

Prior to submission of an application for a communication tower or a wireless communication facility, the applicant shall arrange a pre-application conference with the director of planning. The director of planning will advise the applicant of the process that will be employed by his or her designee and discuss alternative designs, if appropriate. Additionally, prior to the submission of any application for a communication tower or wireless communication facility in the public right-of-way, the applicant shall meet with the unified government's right-of-way manager to make sure that the applicant understands all code requirements and understands the process to obtain all necessary approvals for work in the right-of-way.

The materials listed below must be submitted by the applicant to the planning department before the application shall be deemed complete and before an administrative determination is made or the submittal is forwarded to the planning commission for consideration. On receipt of an application, within 30 days thereof, the director of planning or his/her designee will notify the applicant if the application is complete. A finding that an application is complete has no bearing on the appropriateness of the use applied for and does not mitigate the director of planning's authority to (i) continue the matter for further investigation for review of the application materials provided; (ii) request additional technical information relating to compliance with the standards adopted herein.

At the time of application for a wireless communication facility or a communication tower, the applicant shall submit:

1.

Written authorization from the owner of the property on which the wireless communication facility will be located. With respect to applications for telecommunications towers or wireless communications facilities in the public right-of-way, this requirement shall include any applicable right-of-way user agreements, franchise agreements or pole attachment agreements.

2.

A final development plan in accordance with subsection 27-277(g) of the zoning ordinance, showing existing and proposed structures, the location of the proposed wireless communication facility and/or other uses, a photo-simulation of the proposed communication tower or wireless communication facility, access road(s) location, access road surface material, parking area, screening walls and materials, location and content of warning signs, exterior lighting specifications, a landscaping plan, land elevation contours, existing land uses and zoning designations surrounding the site. If any accessory structure is proposed, details of the structure, including elevations and proposed use of the structure, shall be included.

3.

A title report and vesting deed, or certification of current ownership from the county register of deeds, documenting ownership of the property. With respect to applications for telecommunications towers or wireless communications facilities in the public right-of-way, this requirement shall include any applicable right-of-way user agreements, franchise agreements or pole attachment agreements.

4.

A report from a licensed professional engineer which describes the structural capacity of the communication tower or wireless communications facility, and which includes a statement certifying that the communication tower or wireless communications facility can safely accommodate all of the necessary equipment and accessories that are proposed to be installed on said communications tower or wireless communications facility.

5.

With respect to any application for communication towers or wireless communication facilities proposed to be located in the public right-of-way which does not require a special use permit and is subject only to administrative determination, the applicant shall provide notice to all property owners located within 200 feet of the proposed location. The notice shall provide (1) the application number; (2) the location of and a description of the proposed communication tower or wireless communications facility; (3) the applicant's contact information and the contact information for the unified government planning department, with a statement notifying the property owner that they shall have 20 days from the date that they receive the notice to contact the unified government planning department and provide input concerning the proposed application.

The following additional information is required for communication towers and [collocation] installations except for collocations on existing telecommunication tower facilities, as applicable:

(a)

Application submission requirements for communication towers and wireless communication facilities (regardless of whether subject to approval by administrative determination or special use permit) .

1.

Criteria for review. The unified government shall consider the following factors in determining whether or not to issue a special use permit or an administrative determination allowing the wireless communication facility:

i.

The height of the proposed communication tower;

ii.

Proximity of the communication tower or wireless communications facility to residential structures and to residential district boundaries and property master planned for residential use;

iii.

Technical or engineering requirements regarding the structural capacity of the communication tower or wireless communications facility;

iv.

Nature of uses on adjacent and nearby properties;

v.

Surrounding topography, tree coverage and foliage (natural screening);

vi.

Design of the communication tower or wireless communications facility, based upon consideration of the preferences set out in the definition of stealth communication tower, to mitigate the visual obtrusiveness of the communication tower or wireless communications facility.

vii.

Input from neighboring property owners;

viii.

The effect of the proposed communication tower or wireless communications facility on the public health, safety and welfare requirements and regulations of the unified government.

2.

Setbacks and design standards. The following standards shall apply to communication towers:

i.

No communication tower may exceed 199 feet in height.

ii.

Communication towers and wireless communications facilities in the public right-of-way are subject to the following maximum height limits: (1) 50 feet along a thoroughfare; (2) 40 feet along a collector; (3) 20 feet along a residential street. This section does not apply to collocations on existing structures in the public right-of-way that exceed these heights.

iii.

The communication tower shall be set back from the property line in all directions a distance equal to at least the height of the communication tower, if the site is in the AG zone. The communication tower shall be set back from the property line in all directions a distance that is equal to at least one-half its height, if the site is zoned for commercial or industrial purposes. These setbacks may be waived upon receipt of a notarized letter from the fee owner(s) of the parcel from which the waiver is sought acknowledging consent to the waiver and the precise distance of the waiver required from this section.

iv.

Communication towers other than stealth communication towers shall be set back from residential structures by a distance of 300 feet.

v.

Communication towers other than stealth communication towers shall be set back from all property zoned for residential use or planned for residential use, according to an adopted future land use plan or map, by a distance of 300 feet.

vi.

Distance to other communication towers. Communication towers shall not be located closer than one-half mile from another communication tower, unless an applicant proposes a stealth communication tower less than 80 feet in height. In certain circumstances where existing towers are at capacity, the planning commission may recommend a variance to this requirement to the board of zoning appeals.

vii.

No wireless support structure, nor any lines, cable, equipment, wires or braces in connection with the facility, shall at any time extend across or over any part of the public right-of-way, public street, highway, sidewalk or property lines if it is reasonably determined to be contrary to the public health, safety or welfare requirements and regulations of the unified government.

viii.

Coaxial cable and conduit from base station equipment to the wireless service provider's antennas shall be routed through entry and exit ports and shall be concealed from view (by traversing the distance between the base station equipment to the antennas through the internal portion of the tower) to the greatest extent possible.

ix.

Screening.

A.

Wireless communication facility compounds shall be screened with minimum ten-foot walls, from grade. These walls must be composed of either (a) solid masonry or (b) wooden fencing set on steel rails with a maximum one-quarter-inch gap between wood slats and masonry columns with a minimum width of two feet and a maximum separation of 16 feet per column. The director of planning or his/her designee must approve all designs or variations to this standard.

B.

Landscaping. The applicant must submit a landscaping plan in accordance with section [27-699] of this chapter. Further, an applicant must provide the planning department with a watering plan/schedule for the first 12 months subsequent to the issuance of a certificate of occupancy for the wireless communication facility to ensure the landscaping will survive. The director of planning or his/her designee must approve all designs or variations to this standard.

C.

All compound entry gates must be constructed of wooden slats set on steel rails.

x.

All compound facilities enclosing wireless communication facilities must be kept free of invasive weed and noxious plant species.

xi.

Driveways. All driveways to compound facilities enclosing wireless communication facilities must be improved with a minimum three-inch thick asphaltic or cement surface.

xii.

Compound size. No special use permit or administrative determination will be issued unless the applicant demonstrates that adequate base station equipment space is available for the number of collocators the communication tower is intended to accommodate.

xiii.

Power and telephone line burial. Overhead power and telephone lines are prohibited. All power and telephone lines must be buried to a depth of 36 inches below grade, from the source of the utility to the base station equipment or other equipment requiring power associated with the communication tower or wireless communication facility.

xiv.

Every communication tower shall be protected from trespass by unauthorized persons and shall contain an anti-climbing device to discourage climbing the communication tower.

xv.

Communication towers and wireless communication facilities shall be constructed using best available engineering practices to ensure life and property safety.

xvi.

Mobile or immobile equipment not used in direct support of a wireless communication facility shall not be stored or parked on or adjacent the compound, unless repairs to the wireless communication facility are currently and actively being made.

xvii.

Lighting of building entries that are part of wireless communication facilities for security is permissible, provided the lights are downward facing 180 degree fixtures with no greater than one foot candle power and are otherwise compliant with section [27-699(b)(9)] of this chapter.

xviii.

All accessory buildings or structures accessory to communication towers shall meet all building design standards as listed in chapter 8, and require a building permit issued by the codes enforcement officer.

xix.

All visible buildings, structures and equipment accessory to a communication tower shall be designed to blend in with the surrounding environment through the use of color, camouflage and architecture.

xx.

No communication tower site may be situated in a designated historic overlay district unless the city's historic preservation commission approves the location and design.

xxi.

Notwithstanding any other provision of this chapter to the contrary, if an existing operable or abandoned water tower is torn down, a new monopole tower no more than 160 feet tall may be built within 200 feet of the former water tower within five years from the date that the water tower is torn down, subject and subordinate to the reasonable public health, safety and welfare requirements and regulations of the unified government.

(b)

Application submission requirements for collocation facilities.

1.

Applications for collocation facilities, wherever located, shall be submitted as final development plans subject to administrative determination by the director of planning pursuant to section [27-212(g)] of this chapter.

2.

The following standards apply to any proposal to attach a wireless communication facility to an existing structure:

i.

Except for public utility poles, the structure upon which collocation is proposed shall be at least 30 feet in height before a collocation facility may be erected upon, or attached to, it;

ii.

The structure to which the collocation facility is proposed to be attached may not be a structure designated by the historic preservation commission as a historic structure or be in a designated historic overlay district unless the historic preservation commission approves that collocation;

iii.

The addition of wireless communication facilities to an existing structure shall not cause the height of that structure to increase by more than the greater of (i) ten feet in height, or (ii)(a) 20 percent of the structure's then-existing height or (b) the maximum height allowed in that zoning district, whichever is greater but not to exceed 20 feet. Any proposed increase in height beyond these height restrictions shall require approval through the special use permit process;

iv.

Collocation facilities erected upon, or attached to, existing structures shall not be subject to standard setback requirements;

v.

Subject to applicable codes, collocation facilities, including accessory buildings and structures to be located on the same property, shall be located on the roof of the structure when the collocation structure is a building. If the accessory equipment, buildings and other structures can be safely located on the roof of the structure, the equipment (not including antennas) shall be set back from the edge of the roof at least five feet, and shall be painted to match the building or concealed with a screening wall;

vi.

Ground-mounted base station equipment shall be screened with a screening wall and landscaping as specified in [subsection (a)(31)k(a)2.ix of this section], unless an existing screening wall has already been constructed (e.g., around an existing communication tower);

3.

Expansion of communication tower compounds. A communication tower compound may be expanded administratively if the base station equipment complies with the requirements set out in [subsection (a)(31)k(a)2.], and if the communication tower would be allowed subject to administrative determination pursuant to this chapter if newly proposed. The compound may additionally be expanded by administrative determination if the communication tower would not be subject to administrative determination under this chapter, but was a permitted use under the city's previously adopted zoning regulations. The compound may additionally be expanded by administrative determination if the expansion is within a previously approved special use permit boundary. The compound may additionally be expanded by administrative determination if the expansion qualifies as an "eligible facilities request" that does not substantially change the physical dimensions of that compound, as provided for in 47 U.S.C. § 1455(a). All other communication tower compound expansions must adhere to the special use permit process.

4.

Modifications to existing communication towers and wireless communication facilities. Any communications tower or wireless communications facility may be increased in height through the administrative determination process if it qualifies as an "eligible facilities request" that does not substantially change the physical dimensions of that communications tower or wireless communications facility, as provided for in 47 U.S.C. § 1455(a). Any communication tower or wireless communication facility may be increased in height by not more than 20 percent of its originally approved height through the administrative determination process, provided that if the height increase would have rendered the communication tower prohibited in the first instance under this chapter, that increase is not authorized; provided further, if the increase would have rendered an otherwise administratively approved site subject to a special use permit under this chapter, the request shall be subject to the special use permit notice and hearing requirements.

l.

Governing body action.

1.

A request for the placement or construction of a wireless communication facility or communication tower shall be acted upon within 150 calendar days from the receipt of a complete submittal of an application, site plan and supporting documentation, as required in this chapter.

2.

A request for a substantial modification to a wireless communication facility or communication tower shall be acted upon within 90 calendar days from the receipt of a complete submittal of an application, site plan and supporting documentation, as required in this chapter.

3.

A request for the placement or construction of a small cell facility and any eligible facilities request shall be acted upon within 60 calendar days from the receipt of a complete submittal of an application, site plan and supporting documentation, as required in this chapter.

4.

Denial of an application to place, construct or modify a wireless communication facility or communication tower shall be supported by findings based on substantial evidence and shall be provided in written form to the applicant.

m.

Maintenance and certification standards applicable to all communications facilities. The following maintenance and operating standards shall apply to any communication tower or wireless communication facility;

1.

Any wireless communication facility that is not in use for a period of two or more years shall be removed by the owner at the owner's expense. Failure to remove the wireless communication facility, pursuant to non-use or for any other reason set out in this chapter, may result in removal and assessment of cost to the property pursuant to K.S.A. 12-6a17.

2.

Any owner of a communication tower shall submit a letter to the director of planning by July 1 of each year listing the current users and types of collocation facilities located on the facility.

3.

A sign shall be posted on every wireless communication facility, or on the exterior fence around the wireless communication facility, noting the name and telephone number of the wireless communication facility owner and operator.

4.

The owner/operator shall at all times employ at least ordinary care and shall install, maintain and use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injuries or nuisances to the public.

5.

All communication towers and wireless communication facilities antennas shall conform to the requirements of the Occupational Safety and Health Administration (OSHA).

n.

Bonding required.

1.

Safety. Before a communication tower is erected on publicly owned property, the owner of the communication tower must file with the county clerk a written indemnification of the city and proof of liability insurance sufficient to respond to claims up to $1,000,000.00, in the aggregate, that may arise from operation of wireless communication facilities within the city.

2.

Removal. Before a building permit is issued for any communication tower, the applicant shall present a removal bond to the chief counsel in the amount of $50,000.00, which bond shall be available for use by the city for the removal of the communication tower should the communication tower ever be abandoned. The bond shall contain the following endorsement:

"It is hereby understood and agreed that this instrument may not be canceled nor any intention not to renew be exercised until 60 days after receipt by the city, by registered mail, of written notice of such intent."

o.

Inspections. All communication towers, whether existing or new, shall be inspected every five years by a Kansas licensed professional engineer at the tower owner's expense and an inspection report shall be filed with the director of planning. All communication towers and wireless communication facilities may be inspected at any time by the director of planning, the building official or their designee to determine compliance with original construction standards. Deviation from the original approved construction standards constitutes a violation of this Code and the zoning ordinance.

Notice of violations will be sent by registered mail to the tower owner, who will have 30 days from the date the notification is issued to make adjustments or repairs. The tower owner shall notify the director of planning, the building official or their designee in writing that the adjustments or repairs have been made, and, as soon as reasonably possible thereafter, another inspection will be made by the director of planning, the building official or their designee to assess compliance. The tower owner shall then be notified of the results of the second inspection. An appeal of the decision of the codes enforcement officer can be made to the board of zoning appeals in accordance with section 27-53 of this chapter.

p.

Amateur radio, receive-only and broadcast antennas. This chapter shall not govern any communication facility that is:

1.

Less than 50 feet in height;

2.

Located in the rear yard of a residentially zoned parcel;

3.

Owned and operated by a federally licensed amateur radio operator; provided, however, that communications towers covered under this paragraph shall not be available for collocation by wireless service providers; or

4.

Used solely to transmit and receive commercial AM, FM or television broadcast signals.

q.

Failure to enforce does not constitute waiver. No failure by the city or any of its departments to enforce any provision of this section shall constitute a waiver of the provisions thereof. Any failure of an owner or a service provider to comply with the terms of this section may subject the owner and/or provider to revocation of administrative or special permits, and penalties and municipal violations as set out below.

r.

Violations. Failure to comply with this chapter or any condition specified in an administratively or specially approved permit constitutes a code violation for which penalties and fines may be imposed.

s.

Severability. If any provision of this chapter shall be found to be invalid, that provision shall be severed from this and the remainder of the chapter shall remain in full force and effect.

(b)

The following uses are permitted only on approval of a special use permit regardless of the zoning district of the proposed location:

(1)

Airport or landing field.

(2)

Salvage yards only on M-3 or MP-3.

(3)

Campgrounds.

(4)

Cemeteries.

(5)

Firing ranges, gun clubs, skeet shoots.

(6)

Halfway houses, group dwellings.

(7)

Hazardous waste transfer stations, storage, processing or disposal sites only in M-3 or MP-3.

(8)

Massage parlors, adult live theaters, body painting salons, nude modeling studios, adult night clubs or cabarets only in C-3, M-2 or M-3 except that such uses shall not be approved if within 500 feet of any church, school (those permitted in residential districts), or residentially zoned area. The 500 feet shall be measured from the exterior of the building in which the specified business is to operate along the shortest line to the property line of the property to be separated.

(9)

Penal or correctional institutions.

(10)

Drinking establishments in which sales of alcoholic beverages are greater than restaurant food sales, class A or class B private clubs, taverns.

(11)

Radio, telephone, and television towers and appurtenance structures.

(12)

Solid waste transfer stations, solid waste storage, processing or disposal sites.

(13)

Special on-site signage as allowed under section 27-739.

(14)

Underground commercial and industrial development limited to uses permitted in the zoning district of the main entrance.

(15)

Any site, location, described or identified parcel of real estate, where earth material is to be brought in, removed, relocated or otherwise taken from one place to another, whether titled under the same, common, or different ownership, except no special use permit shall be required:

a.

Where the amount of earth material is less than 50 cubic yards;

b.

Where grading is a part of an approved subdivision development for which street and utility plans have been approved;

c.

Where grading, excavation or filling is required for a building project for which a building permit has been issued;

d.

Where the quantity of material is less than 5,000 cubic yards and is to be brought in or removed over a period shorter than 60 days to a site in commercial or industrial zoning districts accessible via commercial or industrial streets or major streets as designated on the major street plan; or

e.

Where the administrator determines that the proposed earth material moving is:

1.

Necessary to abate an emergency situation which otherwise threatens health, safety, or the natural environment; or

2.

Necessary to carry out a public capital improvements project.

Grading and hauling permits shall be required as determined by the chief building inspector and unified government engineer respectively, regardless of these exceptions.

(16)

Flea markets, only in the C-1 limited business, C-2 general business, C-3 commercial, C-D central business, M-1 light industrial and industrial park, M-2 general industrial, and M-3 heavy industrial districts.

(17)

Lottery gaming facilities, racetrack gaming facilities, lottery gaming enterprises, and pari-mutuel license locations and their related facilities or campuses only in the CP-2 planned general business district subject to the following criteria:

a.

Any approval shall be for one year unless the facility is granted a lottery gaming license or a pari-mutuel gaming license from the state. In the case that a facility is granted a lottery gaming license or a pari-mutuel gaming license from the state, the term of the special use permit shall be for the initial term of the state license.

b.

The special use permit must be renewed prior to the expiration of any lottery gaming license or a pari-mutuel gaming license. The renewal will only be valid if a lottery gaming license is granted by the state.

c.

In addition to the standards of the CP-2 planned general business district, any lottery gaming facility, racetrack gaming facility, lottery gaming enterprise, or pari-mutuel license location and their related facilities or campuses shall be subject to the development standards of the overlay district for commercial design guidelines (Ordinance No. O-50-06) regardless of the location within the city.

d.

A racetrack gaming facility may be located at any existing pari-mutuel racetrack location without securing a special use permit under this subsection (b)(17). Any new building or any substantial modification to site improvements would be a significant revision of the preliminary plan approved for the special use permit for a pari-mutuel thoroughbred, quarter horse and greyhound racing facility and would require approval following the procedures applicable to revisions to preliminary plans under section 27-211. Any improvement to the exterior of any building or to site improvements at an existing pari-mutuel location shall be subject to the development standards of the overlay district for commercial design guidelines and the standards of the CP-2 planned general business district.

(18)

Liquor stores with a minimum separation distance of 1,300 feet between any new liquor store location and any existing or proposed liquor store location, church, school, or public park. These distances are to be measured from the nearest property lines of each location.

(19)

Used car/truck lots and light automotive service and maintenance only in C-2 general business district, C-3 commercial district, M-1 light industrial and industrial park district, M-2 general industrial district, and M-3 heavy industrial district subject to the following criteria:

a.

Repurposing of structure(s) for used car/truck lots or light automotive service and maintenance.

1.

Upgrade parking, including striping and/or resurfacing of parking lots, if deemed necessary by staff.

2.

Landscaping, screening, and façade improvements to meet commercial design guidelines.

b.

Signage.

1.

Following all permanent sign requirements under section 27-727.

2.

Following all special event display requirements under section 27-734.

3.

No display on sidewalks.

c.

Façade, landscaping, and screening.

1.

For new buildings:

i.

All commercial design guidelines and district regulations shall be upheld in C-3 commercial districts including, but not limited to, the creation of quality development with respect to site planning, architectural design and landscaping.

ii.

Commercial uses in industrial districts shall be subject to commercial design guidelines.

2.

For existing structures:

i.

Such modifications as:

A.

Restoring original brick.

B.

Any necessary repair of the facade.

C.

New doors or windows if existing fixtures are in disrepair.

D.

Substantial effort beyond simply painting the building is necessary. Brick structures must be cleaned, paint removed and tuck pointed.

E.

For non-brick buildings in addition to paint, additional architectural embellishments such as a brick wainscot may be required.

d.

Condition of automobiles/trucks.

1.

Automobiles/trucks available for sale, rent or lease must not be inoperable, ruined, dismantled or wrecked.

e.

Parking.

1.

The display area shall not be placed within a required parking/paving setback area and shall not reduce the capacity of a parking lot below that required by sections 27-466 through 27-470.

2.

Parking shall be upgraded to current standards and regulations including medians, landscaping, and screening.

3.

Each automobile shall be in a striped, designated parking space.

f.

Install/repair sidewalks per Code.

(20)

Heavy automotive/truck service, repair, and mechanics only in C-3 commercial district, M-1 light industrial and industrial park district, M-2 general industrial district, and M-3 heavy industrial district subject to the following criteria:

a.

Repurposing of structure(s) for heavy automotive/truck service, repair, and mechanics.

1.

Upgrade parking, including striping and/or resurfacing of parking lots, if deemed necessary by staff.

2.

Landscaping, screening, and façade improvements to meet commercial design guidelines.

b.

Signage.

1.

Following all permanent sign requirements under section 27-727.

2.

Following all special event display requirements under section 27-734.

3.

No displays on sidewalks.

c.

Façade, landscaping, and screening.

1.

For new buildings:

i.

All commercial design guidelines and district regulations shall be upheld in C-3 commercial districts including, but not limited to, the creation of quality development with respect to site planning, architectural design and landscaping.

ii.

Commercial uses in industrial districts shall be subject to commercial design guidelines.

2.

For existing structures:

i.

Such modifications as:

A.

Restoring original brick.

B.

Any necessary repair of the facade.

C.

New doors or windows if existing fixtures are in disrepair.

D.

Substantial effort beyond simply painting the building is necessary. Brick structures must be cleaned, paint removed and tuck pointed.

E.

For non-brick buildings in addition to paint, additional architectural embellishments such as a brick wainscot may be required.

d.

Parking.

1.

Parking of the automobiles under heavy service, repair, or mechanics shall not be placed within a required parking/paving setback area and shall not reduce the capacity of a parking lot below that required by sections 27-466 through 27-470.

2.

Parking shall be upgraded to current standards and regulations including medians, landscaping, and screening.

3.

Each automobile shall be in a striped, designated parking space.

e.

Install/repair sidewalks per Code.

(Code 1988, § 27-1252; Ord. No. 64690, § 1(27-59.2), 8-30-1984; Ord. No. 64884, § 1, 10-3-1985; Ord. No. 65079, § 7, 11-6-1986; Ord. No. 65417, § 21, 4-6-1989; Ord. No. 65552, § 3, 8-9-1990; Ord. No. 65567, § 2, 9-20-1990; Ord. No. 65602, § 1, 2-7-1991; Ord. No. 65629, § 1, 6-6-1991; Ord. No. 65658, § 2, 9-5-1991; Ord. No. 65688, § 1, 12-19-1991; Ord. No. 65716, § 1, 5-7-1992; Ord. No. 65814, § 11, 7-8-1993; Ord. No. 66089, §§ 1, 2, 3-7-1996; Ord. No. 66177, § 4, 12-5-1996; Ord. No. 66255, § 2, 8-7-1997; Ord. No. O-65-98, § 1, 7-30-1998; Ord. No. O-31-99, § 2, 4-29-1999; Ord. No. O-85-00, § 1, 8-31-2000; Ord. No. O-48-02, § 2, 6-27-2002; Ord. No. O-91-02, § 1, 10-31-2002; Ord. No. O-41-05, § 3, 5-26-2005; Ord. No. O-55-07, § 1, 6-28-2007; Ord. No. O-16-08, § 1, 2-28-2008; Ord. No. O-1-10, § 1, 1-7-2010; Ord. No. O-66-10, § 1, 11-18-2010; Ord. No. O-42-15 , § 1, 7-30-2015; Ord. No. O-66-15 , § 1, 12-10-2015; Ord. No. O-13-16 , § 1, 3-31-2016; Ord. No. O-62-16 , § 1, 10-27-2016; Ord. No. O-63-16 , § 2, 10-27-2016)