§ 28-532 — Waiver

Sec. 28-532. - Waiver.

(a) An application for a tower permit shall not be approved for a tower that is not in conformance with the regulations prescribed in this article unless a written application for a waiver has been submitted to and approved by the commission. (b) An applicant for a tower permit who receives written disapproval from the director may elect to submit a written application for a waiver to the commission or may appeal the denial of the permit as provided in section 28-533 of this Code. An application for a waiver from the requirements of this article may be filed simultaneously with the filing of the application for a tower permit. An application for a waiver made after the disapproval of the tower permit by the director shall be submitted not later than 2:00 p.m. on the seventh calendar day following issuance of the notice of disapproval. The director shall waive this deadline upon a finding of good cause. (c) An application for a waiver shall be submitted in the manner prescribed by the director citing the specific provision(s) of this article from which a waiver is desired, the extent of the waiver sought, and the specific facts or reasons why the waiver is necessary along with all supporting information or documentation. (d) The commission is authorized to consider and grant a waiver from the provisions of this article, following a public hearing, when the commission finds that each of these conditions exist: (1) That a literal application of this article will result in undue and unnecessary hardship to the applicant, taking into account any federal or state licenses the applicant may have received to conduct its business; (2) The waiver, if granted, will not be contrary to the public interest as implemented in this article; (3) Consistent with the city's police power authority over towers, the waiver, if granted, will not be detrimental to the public health, safety, or welfare; (4) The waiver, if granted, will not result in a violation of any other applicable ordinance, regulation or statute enforceable by the city; and (5) The waiver, if granted, will not result in the violation of any applicable deed restriction or zoning regulation or the location of a tower in a park. (e) A waiver from the requirements of section 28-524(h) of this Code for an antenna tower shall not be granted unless, in addition to finding that each of the conditions expressed in subsection (d) above is satisfied, the commission, after public hearing, finds that no approved tower or tower structure can accommodate the applicant's proposed antenna because the applicant has demonstrated any of the following: (1) The approved tower or tower structure located within 1,000 feet of the proposed tower will not meet the applicant's engineering requirements; (2) The approved tower or tower structure located within 1,000 feet of the proposed tower is not of sufficient height to meet the applicant's specific engineering requirements; (3) The approved tower or tower structure located within 1,000 feet of the proposed tower does not have sufficient structural strength and cannot reasonably be reinforced to provide sufficient structural strength; (4) The antenna array of the approved tower or tower structure located within 1,000 feet of the proposed tower would cause electromagnetic interference with the antenna array of the proposed tower, or the antenna on the proposed tower or tower structure to be located within 1,000 feet of the approved tower would cause interference with the antenna array of the approved tower; (5) The approved tower or tower structure located within 1,000 feet of the proposed tower is not adaptable to accommodate additional antenna arrays or the costs required to share or adapt the approved tower or tower structure are unreasonable; (6) The approved tower or tower structure located within 1,000 feet of the proposed tower is not available for co-location because the owner of the approved tower or tower structure or the owner of the tract on which the approved tower or tower structure is located refuses to agree to reasonable terms necessary to accommodate the requirements for the proposed antenna; or (7) The approved tower or tower structure located within 1,000 feet of the proposed tower is not suitable for the specific requirements for the proposed antenna due to other factors as demonstrated by the applicant, taking into account any federal or state licenses the applicant may have received to conduct its business. (f) The procedures prescribed in subsections (c) and (d) of section 28-533 of this Code shall govern the hearing required on an application for a waiver.

(Ord. No. 91-1734, § 2, 12-11-91; Ord. No. 95-104, § 1, 1-25-95; Ord. No. 98-253, § 2, 4-8-98; Ord. No. 2014-364, §§ 6(Exh. A), 7, 4-30-2014)