§ 7.7. Telecommunications towers.

(a)

Purposes:

(1)

The general purpose of this section is to regulate the placement, construction and modification of telecommunications towers, support structures, and antennae in order to protect the health, safety and welfare of the public, while at the same time not unreasonably interfering with the development of the competitive wireless telecommunications marketplace in Boonville. Specifically, this Section is intended:

a.

To provide for the appropriate location and development of telecommunications facilities and systems to serve the citizens and businesses of the City of Boonville.

b.

To minimize adverse visual impacts of communications antennae and support structure through the careful design, siting, landscape screening and innovative camouflaging techniques;

c.

To maximize the use of existing and new support structures so as to minimize the need to construct new or additional facilities;

d.

To promote and encourage shared use of towers and antennae support structures as a primary option rather than construction of additional single-use towers;

e.

To ensure that any new telecommunications tower or structure is located in an area compatible with the neighborhood or surrounding community to the extent possible; and that hazards to the safety of the public and to adjacent property are eliminated or minimized.

f.

To ensure that regulation of telecommunications towers and structures does not have the effect of prohibiting the provision of personal wireless services, and does not unreasonably discriminate among functionally equivalent providers of such service.

g.

To eliminate the uncontrolled proliferation of towers in the City of Boonville which could diminish property values and spoil the aesthetic value of the city.

(b)

Legislative findings.

(1)

On February 9, 1996, Congress enacted the federal Telecommunications Act of 1996 P.L. No. 104-458. The purpose of the Act included deregulation of the telecommunications industry and providing a more competitive environment for wired and wireless telecommunication services in the United States.

(2)

The Telecommunications Act of 1996 preserves the authority of the City to regulate the placement, construction, and modification of towers and antennae support structures and to protect the health, safety and welfare of the public.

(3)

The City has been granted the authority to enact legislation to regulate the construction, placements, and operation of Telecommunications towers and antennae pursuant to its zoning powers established in Chapter 89 RSMo. And additionally pursuant to its general and specific police powers established by statute authorizing the regulations herein to protect the public health, safety and welfare.

(4)

The Federal Communications Commission (FCC) has exclusive jurisdiction over (1) regulation of the environmental effects of radio frequency emissions from telecommunications facilities, and (2) the regulation of radio signal interference among users of the radio frequency spectrum.

(5)

Consistent with the Telecommunications Act of 1996, the regulations of this section will not have the effect of prohibiting the provision of personal wireless services, and do not unreasonably discriminate among functionally equivalent providers of such service. The regulations also impose reasonable restrictions to protect the public safety and welfare and ensure opportunities for placement of antennae with prompt approval by the city. The section does not attempt to regulate in areas within the exclusive jurisdiction of the FCC.

(c)

Applicability.

(1)

All towers, antennae support structures and telecommunications facilities, any portion of which are located within the City of Boonville, are subject to this section. All towers within the City of Boonville, Missouri, at the time of passage of this section shall be registered with the City Administrator within 60 days from the effective date hereof together, with the height, width and location thereof. Failure to register an existing tower shall raise a presumption that said tower, was not a legal nonconforming use on the date of passage of this section.

(2)

Any current legal use being made of an existing tower or antennae support structure on the effective date of this section (herein "Non-conforming structures") shall be allowed to continue, even if in conflict with the terms of this section. Any tower site that has received City approval in the form of either a conditional use permit or building permit, but has not yet been constructed or located, shall be considered a Non-conforming structure so long as such approval is current and not expired.

(d)

Definitions.

(1)

As used in this section, the following terms shall have the meanings and usages indicated: The word "shall" is always mandatory and not merely directory. The word "may" is directory and discretionary and not mandatory.

Act means the Federal Communications Act of 1934 as amended by the Telecommunications Act of 1996 and as may, from time to time, be amended.

Alternative tower structure. This shall mean manmade trees, clock towers, bell steeples, grain silos, light poles and similar alternative design structures which camouflage or conceal the presence of antennae or communication towers, also commonly referred to as "stealth towers."

Antenna means any device that transmits and/or receives radio waves for voice, data or video communications purposes including, but not limit to, television, AM/FM radio, microwave, cellular telephone and similar forms of communications. The term shall exclude satellite earth station antennae less than two meters in diameter (mounted within 12 feet of the ground or building-mounted) and any receive-only home television antennae.

AGL means average ground level. Average ground level shall be determined by the average elevation of the natural ground level within a radius of 50 feet from the center location of measurement.

Applicant means any person that applies for a permit for a tower pursuant to this section.

Application means the process by which an applicant submits a request and indicates a desire to be granted a permit to construct, own or operate a tower within the City of Boonville. An application includes all written documentation, verbal statements and representations, in whatever form or forum, made by an applicant to the City concerning such a request.

Cabinet means a structure for the protection and security of communications equipment associated with one or more antennae where direct access to equipment is provided from the exterior and that has a horizontal dimensions that do not exceed four feet by six feet and vertical height that does not exceed six feet.

Camouflaged structure means a monopole in which the pole is hidden from view.

City means the City of Boonville, a municipal corporation, in the State of Missouri, acting by and through its City Administrator or his/her designee.

Code means the City of Boonville, Missouri, Code of General Ordinances.

Communications or telecommunications means the transmission, between or among points as specified by the user, or information of the user's choosing, without change in the form or content of the information as sent or received, by wire, radio, optical cable, electronic impulses, or other similar means. As used in this definition, "information" means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols.

Council means the Boonville, Missouri City Council.

Engineer means any engineer licensed by the State of Missouri.

FAA means the Federal Aviation Administration.

FCC means the Federal Communications Commission and any legally appointed, designated or elected agent or successor.

Guyed tower means a tower that is supported, in whole or in part, by guy wires and ground anchors.

Height means the vertical distance measured from AGL of the base of the structure to the highest point of the tower including attached antennae or other attachments.

Modification means any addition, alteration, deletion, or change, including the addition or replacement of antennae, or any change to a structure requiring a building permit or other governmental approval.

Monopole means a self supporting tower consisting of a single pole.

Owner/Operator means any person, as defined herein, who is permitted under this section to build, operate or maintain a tower in the City of Boonville.

Person means any natural person, firm, partnership, association, corporation, company, or other legal entity, private or public, whether for profit or not-for-profit.

Planning and Zoning Commission means the City of Boonville Planning and Zoning Commission.

Shelter means a building for the protection and security of communications equipment associated with one or more antennae and where access to equipment is gained from the interior of the building. Human occupancy for office or other uses or the storage of other materials and equipment not in direct support of the connected antennae is prohibited.

Telecommunications facilities mean any cables, wires, lines, wave guides, antennae and any other equipment or facilities associated with the transmission or reception of telecommunications as authorized by the FCC which a person seeks to locate or has installed upon a tower or antennae support structure. However, the term telecommunications facilities shall not include:

1.

Any satellite earth station antenna two meters in diameter or less which is located in an area zoned industrial or commercial;

2.

Any satellite earth station one meter or less in diameter, regardless of zoning category;

3.

Any satellite earth station in excess of two meter in diameter which is utilized for the reception of broadcast television, video or radio signals and which is an ancillary use to a structure on the holder of the broadcast license's premises.

Tower. A self-supporting lattice, guyed or monopole structure constructed from grade which supports telecommunications facilities. The term "tower" shall not include amateur radio operators' equipment, as licensed by the FCC. The term "tower" does not include utility poles which are utilized for the support of electrical, telephone, cable television, or other similar cables and wires, are located on public rights-of-way or easements for that purpose and are a part of a system of such poles throughout the City of Boonville, Missouri.

(e)

General requirements. The requirements sets forth in this section shall be applicable to all towers, antennae and other support structures installed, built or modified after the effective date of this section to the full extent permitted by law.

(1)

Zoning compliance: The construction of towers is prohibited in the following zoning districts: R-1, R-2, R-3 and those portions of C-1 and C-2 which lie in an area one block east of Main Street to one block west of Main Street and from Water Street south to Ashley Road. This prohibition may be waived for City, County, State, Federal or other political subdivision buildings lying within the above area.

(2)

Compliance with building codes and safety standards: Designed to ensure the structural integrity of antenna support structures, the applicant shall see that it is constructed and maintained in compliance with all standards contained in applicable state and local building codes and the applicable standards published by Electronics Industries Association. In addition to any other approvals required by this section, no antenna, tower, or support structure shall be erected prior to issuance of a building permit.

(3)

Regulatory compliance. All antennae and support structures shall meet or exceed current standards and regulations of the FAA, FCC and any other state or federal agency with the authority to regulate communications antennae and support structures. Should such standards or regulations be amended, then the owner/operator shall bring such devices and structure into compliance with the revised standards or regulation within the time period mandated by the controlling agency. No approval for any placement, construction or modification of any antenna or structure permitted by this section shall be granted for any applicant having an uncured violation of this section or any other governmental regulatory requirement related to such antenna or structures within the City.

(4)

Security: All antennae and support structures shall be protected from unauthorized access by appropriate security measures. A description of proposed security measures shall be provided as part of any application to install, build or modify antennae or support structures. Additional measures may be required as a condition of the issuance of a building permit or administrative permit as deemed necessary by the City Administrator or Planning and Zoning Commission in the case of a conditional use permit.

(5)

Lighting. Antennae and support structures shall not be lighted unless required by the FAA or other state or federal agency with authority to regulate, in which case a description of the required lighting scheme will be made a part of the application to install, build or modify the antenna or support structure. Equipment cabinets and shelters may have lighting only as approved by the City Administrator on the approved site development plan.

(6)

Advertising. Unless a disguised antenna support structure in the form of an otherwise lawfully permitted pylon sign, the placement of advertising on structures regulated by this section is prohibited.

(f)

Design criteria and siting requirements.

(1)

Towers shall maintain a galvanized steel finish or, subject to the requirement of the FAA or any applicable state or federal agency, be painted a neutral color consistent with the natural or built environment of the site.

(2)

Equipment shelters or cabinets shall have an exterior finish compatible with the natural or built environment of the site and shall also comply with any design guidelines as may be applicable to the particular zoning district in which the facility is located.

(3)

Towers shall not exceed the height limitation of 150 feet or the height limitation of any airport overlay zone as may be adopted by the city.

(4)

Antennae attached to a building or disguised antenna support structure shall be of a color identical to or closely compatible with the surface to which they are mounted.

(5)

All towers shall be set back from all yard lines at least one foot for each foot of height unless an easement is given by the adjoining property owner. Set back requirements for towers shall be measured from the base of the tower to the property line of the parcel on which it is located.

(6)

Ground anchors of all guyed towers, if permitted, shall be located on the same parcel as the tower and meet the setbacks of the applicable zoning district unless an easement is given by the adjoining property owner.

(7)

All towers shall be separated from all residential units by a minimum distance of 300 feet as measured from the center of the tower to the closest point of the residential unit. (Residential units include modular and mobile homes used for living purposes).

(8)

Fences with lockable gates must be constructed around or upon parcels containing towers or telecommunication facilities. Fencing shall be of such a size and style as to protect these facilities from trespass or unauthorized use of the property.

(9)

Any new tower in excess of 60 feet above AGL shall be constructed to twice the capacity of its primary use in order that secondary users might lease the balance of the tower capacity. The design of the tower compound shall maximize use of building materials, colors, textures, screening and landscaping that effectively blend the tower facilities within the surrounding natural setting and built environment.

(10)

Vehicle storage on any tower site is prohibited. Outdoor storage is prohibited except to the extent that the stored materials are used in the normal course of business and the stock is regularly rotated. Any outdoor storage shall be within the fenced confine of the tower and the stock must not encompass more than five per cent of the fenced area. On site parking for periodic service and maintenance is approved and should be provided.

(11)

All towers including their foundations and supports must be designed and certified by an engineer to be structurally sound and, at minimum, in conformance with the city's building code, any applicable state and federal laws, and other standards outlined in the Code. A building permit must be obtained before construction may begin.

(g)

Shared use.

(1)

Prior to the issuance of any permit to alter or modify any tower existing on the effective date of this section, the applicant shall provide to the city a written and notarized agreement committing to make said tower available for use by others subject to reasonable technical limitations and reasonable financial terms. The willful and knowing failure of a tower applicant to agree to shared use or to negotiate in good faith with potential users shall be cause for the withholding of future permits to the same applicant to install, build or modify antennae or towers within the city.

(2)

Prior to the issuance of any permit to install, build or modify any tower, the tower applicant shall furnish the City Administrator an inventory of all of that applicant's towers in or within one-half mile of the city limits of Boonville. The inventory shall include the tower's reference name or number, the street location, latitude and longitude, structure type, height, type and mounting height of existing antennae and an assessment of available ground space for the placement of additional equipment shelters.

(3)

Any new tower approved at a height of 60 feet or higher (above AGL) shall be designed and constructed to accommodate additional users. (Ref. 7.7(f)(9)). A written agreement committing to shared use as required by Section 7.7(g)(1) shall be submitted by the tower applicant. The willful and knowing failure of the applicant for a tower built for shared use to negotiate in good faith with potential users shall be cause for the withholding of future permits to the same applicant to install, build or modify antennae or towers within the City.

(4)

Any permittee whose tower heights in excess of 60 feet (above AGL) which is constructed after the effective date of this section and which has been built in accordance with setbacks and special conditions granted to towers with shared use capabilities under this article, and which contains additional capacity for installation or shared use of telecommunications facilities as demonstrated at the time the application for construction was granted, shall agree to allow another person to install or share telecommunications facilities on such a tower subject to reasonable terms and conditions negotiated between the parties including the suitability of the proposed tenant, the credit record and technical abilities of the proposed tenant. For the purpose of shared use of antennae, a legal non-conforming tower may be used. However, in no event shall a permittee be required to allow shared use of facilities if to do so would result in technical interference with the delivery of permittee's service. Failure to permit shared use on a tower which has been built in accordance with setbacks and special conditions permitted for towers designed for shared use may result in any enforcement action, as permitted in Section 7.7(i) or 7.7(p) following a hearing as permitted in Section 7.7(i) hereof.

(5)

Any person seeking shared use of a tower subject to this provision shall, after filing an application, negotiate with the owner/operator for such use. The owner/operator may on a legitimate and reasonable business basis choose between multiple requests for shared use on the same tower or structure, and may reject any request where legitimate technical obstacles cannot be reasonable overcome or where the person requesting shared use will not agree to reasonable financial terms. Any person believing that the owner/operator has breached its duty to negotiate in good faith for shared use shall immediately notify the owner/operator and the City Administrator in writing. The City Administrator may reject the application upon a finding that shared use has been improperly denied. A notice of breach of duty shall explain the precise basis for the claim and shall be accompanied by payment of an administrative review fee of $500.00 to the city to offset the cost of review. After the owner/operator's receipt of the notice, the owner/operator shall have ten calendar days to provide a written submission to the City Administrator responding to the alleged violation of the shared use requirement. If deemed necessary by the City Administrator, he/she may engage, at the cost of the person alleging the violation, a neutral, qualified technical consultant to provide an opinion on feasibility or costs of the shared use request.

(h)

Uses allowed without a permit.

(1)

The attachment of additional or replacement of antennae or shelters to any tower existing on the effective date of this section or subsequently approved in accordance with these regulations, provided that additional equipment shelters or cabinets are located within the existing tower compound area.

(2)

The mounting of antennae on any existing building or structure such as a water tower, provided that the presence of the antennae is concealed by architectural elements or satisfactorily camouflaged by painting them a color identical to the surface to which they are attached.

(3)

The installation of antennae or the construction of a tower or support structure on buildings or land owned by the City, following the approval of a lease agreement by the Council.

(i)

Authorization by administrative permit.

(1)

The placement as follows of antennae and towers are permitted in designated zoning districts only by administrative permit approved by the Planning and Zoning Commission and issued by the City Building Inspector.

a.

The attachment of additional or replacement antennae or shelters to any tower existing on the effective date of this section or subsequently approved in accordance with these regulations, but only when such addition or replacement requires the enlargement of the existing tower compound area as long as all other requirements of this section and the underlying zoning district are met.

b.

The one-time replacement of any tower existing on the effective date of this section or subsequently approved in accordance with these regulations so long as the purpose of the replacement is to accommodate shared use of the site or to eliminate a safety hazard. The new tower shall be of the same type as the original except that a guyed or self-supporting (lattice) tower may be replaced by a monopole. If the guyed or lattice tower to be replaced is 180 feet or less in height, it shall only be replaced with a monopole. The height of the new tower may exceed that of the original by not more than 20 feet. Subsequent replacements shall require the approval of a conditional use permit.

c.

Towers erected and maintained for a period not to exceed 30 days for the purpose of replacing an existing tower, testing an existing or proposed network, or special events requiring mobile towers.

(2)

Application procedures and requirements.

a.

Applications for administrative permit shall be made on the appropriate forms, to the City Administrator, accompanied by a fee of $200.00 with the following submittals:

b.

A detailed site plan, based on a closed boundary survey of the host parcel, shall be submitted indicating all existing and proposed improvements including buildings, drives, walkway, parking areas and other structures, public rights-of-way, the zoning categories of the subject and adjoining properties, the location of and distance to off-site residential structures, required setbacks, required buffer and landscape areas, hydrologic features, and the coordinates and heights above AGL of the existing or proposed tower.

c.

For antennae mounted on existing structures, a report by an engineer certified in the State of Missouri qualifying the integrity of the structure and its ability to support the antennae and any associated equipment.

d.

Diagrams showing the line of sight from the nearest public right-of-way and the antennae.

e.

A list of equipment and contents of equipment cabinets and/or storage buildings.

f.

A report describing the structure's ability to support shared uses.

g.

Any applicant for a new communication tower shall place a bond or other security with the City prior to any final approval for the purpose of removing any tower as required herein, and to compensate the City for performing proper maintenance of such tower to insure such towers do not become unsafe or otherwise fail to comply with the requirements of this Chapter. The bond or security shall be in the form approved by the City Administrator, and in the amount of $50,000.00, or such other amount as determined by the City Administrator to satisfy the requirements hereof with regard to the specific tower to which it would apply.

(3)

a.

The application shall be review by the City Building Inspector and Planning and Zoning Commission to determine compliance with the above standards and transmit the application for review and comment by other departments and public agencies as may be affected by the proposed facility.

b.

The City Administrator shall issue a decision on the permit within 45 days of the date of application or the application shall be deemed approved. The City Administrator may deny the application or approve the application as submitted or with such modifications as are, in his/her judgement, reasonably necessary to protect the safety or general welfare of the city citizens consistent with the purposes of this section. The City Administrator may consider the purposes of this section and the factors established herein for granting a conditional use permit as well as any other considerations consistent with this section. A decision to deny an application shall be made in writing, and state the specific reasons for the denial.

c.

Appeals. Any applicant who is denied a tower application, or who is determined by the City Administrator to be in violation of this section shall have the right to appeal the decision before the Planning and Zoning Commission. At the request of the applicant, an informal hearing shall be set on the agenda at the next regular Planning and Zoning Commission meeting following the denial of an application, or the determination of a violation and shall consider, in addition to a determination of whether or not a violation exists or the application was improperly denied, the question of the technical or economic feasibility of compliance with this section. In the event the Planning and Zoning Commission finds that an existing tower was constructed in accordance with setback and other provisions relating to towers designed for shared use, and said tower is not made available for shared use as indicated at the time of application, the Planning and Zoning Commission may suspend or revoke the permit. Final decisions of the Planning and Zoning Commission shall be subject to judicial review pursuant to Chapter 536, RSMo.

(j)

Conditional use permit required.

(1)

All proposals to install, build or modify an antenna or support structure not permitted by sections 7.7(h) or 7.7(i) above, shall require the approval of a conditional use permit following a duly advertised public hearing by the Planning and Zoning Commission.

a.

Applications for conditional use permits shall be filed and processed subject to and in the manner as established in Appendix "C" of the General Code of Ordinances. A decision by the Planning and Zoning Commission shall be accompanied by substantial evidence supporting the decision which shall be made a part of the written record of the meeting at which a final decision on the application is rendered. Evidence may be submitted with the application or thereafter or presented during the public hearing by the applicant or others.

(2)

Additional minimum requirements. No conditional use permit shall be issued unless the applicant has clearly demonstrated by substantive evidence that placement of an antenna or structure pursuant to Subsection 7.7(h) (Permitted Uses) or Subsection 7.7(i) (Administrative Permits) of this section is not technologically or economically feasible. The Planning and Zoning Commission may consider current or emerging industry standards and practices, among other information, in determining feasibility.

(3)

Findings required. In addition to the determinations or limitations specified herein for the consideration of conditional use permits, the Planning and Zoning Commission shall also base its decision upon, and shall make findings as to, the existence of the following conditions:

a.

No existing towers, structures or buildings within the necessary geographic area for the applicant's tower meet the applicant's necessary engineering requirements considering: (1) height; (2) structural strength; (3) resulting signal interference; (4) feasibility of retrofitting; (5) feasibility of redesigning the applicant's tower network; or (6) other limiting conditions that render existing towers, structures or buildings within the applicant's required geographic area unsuitable.

b.

That the design of the tower or structure, including the antenna, shelter and ground layout maximally reduces visual degradation and otherwise complies with provisions and intent of this section. New towers shall be of a monopole design, unless it is shown that an alternative design would equally or better satisfy this provision.

c.

That the proposal minimizes the number and/or size of towers or structures that will be required in the area.

d.

That the applicant has not previously failed to take advantage of reasonably available shared use opportunities or procedures provided by this section or otherwise.

(4)

If any one, but not more than one, of the first four determinations is not satisfied, approval may be granted only on finding of unique circumstances otherwise necessitating approval to satisfy the purposes of this section.

(5)

Additional Limitations. No tower shall be approved at a height exceeding 150 feet AGL unless the applicant clearly demonstrates that such height is required for the proper function of the applicant's system or that of a public safety communications system of a governmental entity sharing the tower. Such showing must also be supported by the opinion of a telecommunications consultant hired by the city at the expense of the applicant. The opinion of the consultant shall include a statement that no available alternatives exist to exceeding the height limit or the reason why such alternatives are not viable.

(k)

Permit compliance.

(1)

Inspections. By applying for a permit to install, build or modify an antenna or support structure, an applicant grants the city authority to enter onto its property to inspect the tower for the purpose of determining whether it complies with the applicable state law and all other construction standards provided by the code, federal and state law. The city reserves the right to conduct such inspection at any time.

(2)

Annual filing requirement. An applicant or owner/operator shall certify in writing that its tower is structurally sound and conforms to the requirements of the applicable state law and all other construction standards set forth by the City Code, federal and state law every year by filing by January 1st of every year following the date of the grant of its permit a sworn statement by the owner/operator or his representative to that effect. All applicants with permits or owner/operators of towers in existence on the effective date of this Ordinance shall submit a statement not later than 60 days from the effective date and by January 1st of every year thereafter that said tower is free from hazards and that the tower does not pose an imminent threat to the surrounding area or pubic health and safety. Together with this statement, every applicant or owner shall provide a certificate of liability insurance for no less than $300,000.00 coverage for injury to persons or property as a result of any tower failure or malfunction or defect. All applicants or owner/operators shall list the city as a party who must be notified should this insurance be cancelled or discontinued for any reason 30 days before the expiration of coverage.

(3)

Discontinuance of use. In the event the permitted use of a tower is discontinued by the applicant or owner/operator, written notice shall be provided to the City Administrator of applicant's or owner/operator's intent to discontinue use and the date when the use shall be discontinued.

(4)

Permit renewal fee. On or by January 1st of every year following the granting of an initial tower permit for a new or existing tower, each applicant or owner/operator shall submit an annual permit fee of $50.00, unless the applicant or owner/operator maintains a valid business license in the City of Boonville for the current year and year prior. In no event shall a permit be revoked or considered expired for failure to pay the annual renewal fee unless the applicant or owner/operator has received at least 30 days notice of the proposed action.

(l)

Revocation of permit.

(1)

The City may at any time revoke a tower permit for failure to comply with the provisions of this section. To properly revoke a tower permit, the City must comply with procedures set forth below:

a.

The City Administrator shall provide the applicant or owner/operator with a written notice of a cause for revocation and the intent to revoke and shall allow applicant 60 days subsequent to receipt of the notice in which to correct the violation or to provide adequate assurance of performance in compliance with this section. Together with the notice required herein, the city administrator shall provide the applicant or owner/operator with written findings of fact which are the basis of the revocation.

b.

The City shall provide the applicant or owner/operator with the right to a public hearing before the Council, which public hearing shall follow the 60-day notice required in Subsection 7.7(l)(1)a. All interested parties shall be allowed an opportunity to be heard at the public hearing and present evidence.

c.

After the public hearing, the Council shall, within 30 days after the public hearing date, issue a written order setting forth its findings of fact and conclusion of law forming the basis for its decision.

d.

Upon written determination by the Council to revoke a permit, the applicant or owner/operator may appeal the decision to a court of competent jurisdiction pursuant to Chapter 536 R.S.Mo.

e.

Upon satisfactory correction by applicant or owner/operator of the violation upon which said notice was given as determined in the Director's sole discretion, the initial notice shall become void.

f.

Upon applicant's or owner/operator's failure to correct a violation as found by the Council, the City Administrator or his/her designee may issue an order to disconnect utilities to said tower to any utility company providing same. Said order shall not be issued prior to 30 days from the date of the council's written determination. Said order shall be served upon the chief executive officer thereof, together with the applicant or owner/operator at the last know address, and have attached to it the findings of the Council.

(m)

Transfer of permit.

(1)

A tower permit may not be sold, transferred, leased or assigned to any other person.

(2)

Should a tower be sold, transferred, leased or assigned, the new owner, lessee or assignee shall apply for a new tower permit.

(3)

Notwithstanding the previous provisions of Subsection 7.7(m), a tower existing on the date of passage of this section shall not lose it grandfathered status.

(n)

Abandonment of tower.

(1)

In the event the use of any tower has been discontinued for a period of 1 year, or in the event that an applicant or owner/operator has taken no action within 180 days after the revocation of a tower permit pursuant to Subsection 7.7(l) such tower shall be deemed abandoned.

(2)

The City shall provide the tower owner three months notice and an opportunity to be heard before the Council before initiating such action. After such notice has been provided, the City shall have the authority to initiate proceedings to either acquire the tower and any appurtenances attached thereto at the then fair market value, to approve the sale of the tower to a third party or in the alternative, order the demolition of the tower and all appurtenances.

(3)

The City shall provide the tower owner with the right to a public hearing before the Council, which public hearing shall follow the three-month notice required in Subsection 7.7(n)(2). All interested parties shall be allowed an opportunity to be heard at the public hearing.

(4)

After a public hearing is held pursuant to Subsection 7.7(n)(3), the Planning and Zoning Commission may order the forfeiture to the City or demolition of the tower at the tower or property owner's expense. The Commission's final decision shall be subject to judicial review pursuant to Chapter 536, R.S.Mo.

(5)

Shall the tower owner, for any reason, fail to respond to an order of abatement or demolition, then the City may exercise it's rights under the terms and conditions of the owner's bond which was provided as per Subsection 7.7(i)(2).g or Chapter 13 of the Code.

(o)

Commercial operation of unlawful tower or antenna.

(1)

Notwithstanding any right that may exist for a governmental entity to operate or construct a tower or structure, it shall be unlawful for any person to erect or operate for any private commercial purpose any new antenna, tower or disguised support structure in violation of any provision of this section regardless of whether such antenna or structure is located on land owned by a governmental entity.

(p)

Penalty.

(1)

Any person violating this section shall be subject to a fine of not more than $500.00 or 90 days in jail or both, as provided under Section 1-9 of the Code. Each day the violation continues shall constitute a separate offense.

(q)

Miscellaneous.

(1)

Severability. In any section, subsection, sentence, clause, phrase or portion of this section is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof.

(2)

Repeal of laws in conflict. This section supersedes all ordinances or parts of ordinances adopted prior hereto which are in conflict herewith, to the extent of such conflict.

(3)

Dangerous structures. Should the city have to take action under the Code provisions to remove a dangerous structure or abate a nuisance or health hazard, then a lien may be assessed in the same manner as for a building that is demolished or for the abatement of a nuisance, as set forth in Chapter 13 of the Code.

(Ord. No. 3734, § 1, 1-2-01)