Chapter 18.54
WIRELESS TELECOMMUNICATIONS FACILITIES
Sections:
18.54.010 Authority and purpose.
18.54.030 Applicability and exemptions.
18.54.040 General standards and construction provisions.
18.54.060 Heights, placement provisions and setbacks.
18.54.070 Special use permits.
18.54.080 Buildings or other equipment storage.
18.54.090 Application review and inspection fee.
18.54.100 Performance security bond.
18.54.110 Liability insurance.
18.54.130 Removal of a wireless telecommunications facility.
18.54.140 Required annual report.
18.54.150 Provision for waiver or variance.
18.54.170 Default and/or revocation.
18.54.010 Authority and purpose.
A. Authority. The comprehensive land use ordinance is amended pursuant to the enabling provisions of Section 3-21-1 through 3-21-14, NMSA 1978, as amended.
B. Purpose. The purpose of this chapter is to establish regulations and general guidelines for the siting of wireless telecommunications facilities (WTFs).
C. The goals of this chapter are to:
1. Protect residential areas and land uses from potential adverse impact of WTFs;
2. Minimize the total number of towers in the community;
3. Strongly encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers;
4. Encourage users of WTFs to locate them, to the extent possible, in areas where the adverse impact on the community is minimal;
5. Encourage users of WTFs to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening and innovative camouflaging techniques;
6. Enhance the ability of providers of telecommunications services to provide such services to the community quickly, effectively and efficiently;
7. Avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures.
In furtherance of these goals and in approving sites for the location of towers and antennas, the town of Mesilla shall give due consideration to Mesilla’s master plan, its zoning map, existing land uses and environmentally and historically sensitive areas. [Ord. 2003-10 § 1]
18.54.020 Definitions.
A. “Alternative tower structure” means such structures as manmade trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camouflage or conceal the presence of antennas or towers.
B. “Antenna” means any structure that radiates or receives radio or other communication signals.
C. “Co-location” means the physical attachment and/or placement of one communication structure upon another communication structure, and may include placing different or similar communication structures on the receiving structure.
D. “Commercial tower” means a freestanding vertical structure that may or may not have various attachments thereto, which is intended to radiate and/or receive radio frequency signals for the purpose of providing a commercial service to the public. Commercial tower uses include, but are not limited to, cellular communications, paging stations, TV stations, AM and FM radio stations, two-way radio base stations, communication mobile service, common carrier wireless services and communications used for intra-business and inter-business purposes.
E. “Communication structure” means any structure, including antennas and satellite service devices, or any other device which is normally used for radio, television, microwave or wireless communications. This shall include any device that is attached to a new or an existing tower, or attached to a building facade or roof or other noncommunication structure, and such attachment is made to the facade or roof vertically, horizontally and/or diagonally.
F. “Facial mount” means the physical attachment of a communication structure to a building or other noncommunication structure, which does not substantially increase the height of the building or structure. This can include attaching the structure either vertically, horizontally, or diagonally along the structure’s building facade, facades, walls, roofs or other structures.
G. “Height,” when referring to a tower or other structure, means the distance measured from the lowest adjacent ground level of the parcel of land vertically to the highest point on the tower or other structure, including the base pad and any antenna and whether attached to the ground, the building, or other structure(s).
H. Historic Resources or Districts. For the purposes of this chapter, a resource or district is considered historic if it is listed individually or collectively or eligible to be listed in the National Historic Landmark Register, the National Register of Historic Places or the State Register of Cultural Properties or if the resource or district has been identified by a governmental agency, such as the New Mexico Historic Preservation Division, as having significant value as an historic, cultural or archaeological resource.
I. “Personal (private) tower” means a freestanding vertical structure that may or may not have various attachments thereto, which is intended to radiate and/or receive radio frequency signals for the purpose of radio communications without the intent of commercial service. Personal tower uses include, but are not limited to, television signal reception, amateur radio stations, AM and FM radio signal reception and citizen band (CB) base stations. Personal (private) towers are excluded from the C, H-C and H-R zones.
J. “PZHAC” means the planning, zoning and historical appropriateness commission, the body that shall review applications for WTFs and recommend action to the board of trustees, which is the governing body of the town of Mesilla.
K. “Satellite service device (SSD)” means any structure used to receive satellite programming services specifically associated with television reception from the transmission of signals from a satellite to a receiver, usually a round “dish” that can vary in size from 18 inches to 10 feet in diameter.
L. “Tower” means any structure, vertical in inclination, that is designed and constructed and normally used for the purpose of supporting one or more antennas for telephone, radio and similar communication purposes, including self-supporting lattice towers, guyed towers, or monopole towers. This may include television and radio transmission towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures, and other freestanding towers, either for private or commercial purposes. The term includes the structure and any support thereto.
M. “Vertical structure” means any built object that is either independent of or attached to any building or other structure that is perpendicular in its direction to the nearest adjacent ground, including but not limited to flag poles, belfries, chimneys and parapet walls.
N. “View corridors” are defined as an area identified either in the Mesilla comprehensive plan or by a federal or state agency as the location of a particular designated scenic or cultural resource or trail system and as an area from which a WTF can be seen.
O. “Wireless telecommunications facility (WTF)” includes all equipment, buildings and structures with which a wireless communications service carrier broadcasts and receives the radio frequency waves and all locations of said equipment or any part thereof. [Ord. 2003-10 § 2]
18.54.030 Applicability and exemptions.
A. 1. New Towers and Antennas. All new towers or antennas in the town of Mesilla shall be subject to these regulations, except as provided in subsections (B) and (C) of this section.
2. Amateur Radio Station Operators/Receive Only Antennas. The sections that follow shall not govern television antennas, satellite dishes and receive only antennas; provided, that the primary use of the property is not a wireless telecommunications facility (WTF) and that the antenna use is accessory to the primary use of the property. Nor shall the sections that follow govern any freestanding vertical structure or the installation of any freestanding vertical structure located in the R-1 zone that is under 30 feet in height or located in the RA zone that is under 40 feet in height or located in the RF zone that is under 50 feet in height and is owned and operated by a federally licensed amateur radio station operator or is used exclusively for receive only antennas.
B. Preexisting Towers or Antennas. Preexisting towers and preexisting antennas for which a building permit has been properly issued prior to the effective date of the ordinance codified in this chapter shall not be required to meet the requirements of this chapter, other than the requirements of MTC 18.54.040(G) and (H).
C. Public property owned or otherwise controlled by the town of Mesilla may be exempt from the requirements of this chapter.
D. Towers and antennas shall be regulated and permitted pursuant to this chapter and shall not be regulated or permitted as essential services, public utilities, or private utilities. [Ord. 2003-10 § 3]
18.54.040 General standards and construction provisions.
A. Height. All structure heights shall be measured from the lowest adjacent ground level vertically to the highest point of all structures, whether attached to the ground, the building or other structure(s). The principal supporting structure for WTFs shall be permitted to exceed the height limit of the zoning district in which it is located; provided, that the setback standards in MTC 18.54.060 shall apply.
B. Lot Size. For the purposes of determining whether the installation of a tower or antenna complies with zoning development regulations, including but not limited to setback requirements, lot-coverage requirements, and other such requirements, the dimensions of the entire lot shall control, even though the WTF may be located on leased parcels within such lot.
C. Measurement. For purposes of measurement, tower setbacks and separation distances shall be calculated and applied to facilities located in Mesilla irrespective of municipal and county jurisdictional boundaries.
D. Public Notice. For purposes of this chapter, a special use permit request, a variance request or an appeal of a special use permit or variance shall require public notice in a local newspaper of general circulation within the town of Mesilla. In order that the town may notify nearby landowners, the application shall contain the names and address of all property owners of properties that are located within 1,500 feet of any property line of the lot or parcel on which the WTF is proposed to be located. This requirement is in addition to any and all notice requirements contained in the town’s zoning ordinance.
E. Minimum Wind Speed. All structures shall be constructed and installed to manufacture’s specification and constructed to withstand a minimum 90-mile-per-hour wind, or the minimum wind speed as required by the town’s adopted Uniform Building Code, as amended, whichever wind speed is greater.
F. Building Codes. Structures shall be permitted and constructed to meet current town of Mesilla building code requirements, including the Uniform Building Code, and required setback provisions as prescribed for the zoning districts in which such structures are permitted. If any setback or buffer yard as prescribed in the town’s zoning code requires a greater distance than required in this chapter, the greater setback shall apply.
G. Safety Standards. To ensure the structural integrity of towers, the owner of a tower shall ensure that the tower is maintained in compliance with the standards contained in applicable federal, state and town building codes. If, upon inspection, the town of Mesilla concludes that a tower fails to comply with such codes and constitutes a danger to persons or property, then upon notice being provided to the owner of the tower, the owner shall have 30 days to bring such tower into compliance with such standards. Failure to do so shall constitute grounds for the removal of the tower or antenna at the owner’s expense.
H. State or Federal Requirements. All towers shall meet or exceed current standards and regulations of the Federal Communication Commission (FCC), the Federal Aviation Administration (FAA) and any other agency of the state or federal government with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas governed by this chapter shall bring such towers and antennas into compliance with such revised standards and regulations within six months of the effective date of the revisions, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to bring towers and antennas into compliance with such revised standards and regulations shall constitute grounds for the removal of the tower or antenna at the owner’s expense.
I. Business Registration Required. Business registrations are required for each WTF for commercial purposes located within the town limits of Mesilla, regardless of whether said structure is freestanding, co-located, facial or roof mounted, or part of an integrated structure or improvement. Business registrations are renewable annually.
J. Inventory of Existing Sites. Each applicant for a WTF shall provide to the PZHAC an inventory of existing towers, antennas or sites approved for towers or antennas that are located within the service area proposed to be served by the new tower, including specific information about the location, height and design, and the owners/operators of each tower or site and indicate the distance of such towers, antennas or sites from the proposed WTF.
K. Aesthetics. Towers and antennas shall meet the following aesthetic requirements:
1. Towers shall either maintain a galvanized steel finish or, subject to any applicable standards of the FAA, be painted a neutral color so as to reduce visual obtrusiveness.
2. The design of the buildings and related structures at a WTF site shall, to the extent possible, use materials, colors, textures, screening and landscaping that will blend them into the natural setting and any surrounding buildings.
3. If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible.
L. Lighting. Only security lighting not to exceed 12 feet in height or lighting required by a state and/or federal agency is allowed, providing the location of the lighting fixture together with its cut-off angle shall be such that it does not shine directly on any public right-of-way or any residential premises.
M. Signs. No signs shall be allowed on an antenna or tower other than signage required by the FCC or other regulatory agency and signs that warn of safety hazards or prohibit access; provided, that such signs are no larger than one square foot and are reviewed by town staff and approved by the board of trustees.
N. Building and Support Equipment. Buildings and support equipment associated with antennas or towers shall comply fully with the town’s building codes.
O. Health Issues. Every wireless telecommunications facility shall meet health and safety standards for electromagnetic field emissions as established by the Federal Communications Commission or any successor thereof, and any other federal or state agency.
P. View Corridors. No wireless communication tower or facility is allowed within 660 feet (or one-eighth mile) of the outer edge of the right-of-way of any designated view corridor.
Q. Historic Preservation Review. No WTF that may affect archaeological, historic or cultural properties that are listed or are eligible for listing on the National Register of Historic Places shall be constructed, installed or modified without first obtaining Historic Preservation Division 106 Review as per 36 CFR part 800 in accordance with the National Historic Preservation Act of l966, as amended. A project comment review letter from the State of New Mexico Historic Preservation Division, Office of Cultural Affairs shall be filed with the town at the time of filing a business registration application and/or special use permit application.
R. Visual Models. Visual models shall be required of all applicants for a WTF as follows:
1. Photographic Simulation. The applicant shall be required to provide a photographic simulation with the image of a tower or other proposed communications structure and all structures associated with the site superimposed over the existing view to provide a sense of the visual impact expected from the proposed WTF.
2. Site-Located Height Model or Balloon Test. A height model, which shall be a pole or other object erected or floated at the site to the requested height of the proposed WTF, may be required as a condition of the special use permit. If required, the following conditions shall apply:
a. The applicant shall submit photographs of the height model or balloon test from neighboring residential areas and public roadways and other locations around the town as specified by the PZHAC within three miles from which the height model or balloon is visible. The height model or balloon shall be a minimum of three feet in diameter.
b. Photographs of the height model or balloon test shall be submitted no less than 10 days prior to the scheduled public hearing date for the special use permit.
c. Height models or balloon tests shall be erected for a minimum of three days no less than 15 days prior to the scheduled public hearing date for the special use permits. The legal notice for the special use permit shall state the dates and location during which the height model or balloon test will be erected.
d. The PZHAC may waive this requirement if it is determined that the photographic simulation is adequate to address any and all visual impact issues.
e. Town staff shall issue administratively any permit necessary for a temporary height model required for staff and public inspection purposes.
S. All utilities at a WTF site shall be installed underground and in compliance with all laws, ordinances, rules and regulations of the town of Mesilla, the National Electrical Safety Code and the National Electrical Code where appropriate.
T. All applicants for a WTF or any modification to an existing WTF should develop their plans to allow reasonable requests from the town to use space on its towers and space within the existing or planned compound for deploying and operating public service radio facilities at no cost to the town. Provisions for adequate advance notice regarding town access to the WTF for routine activities will be arranged with the applicant. [Ord. 2003-10 § 4]
18.54.050 Co-location.
To minimize adverse visual impacts associated with the proliferation and clustering of towers, co-location or shared use of antennas by more than one carrier on existing towers shall take precedence over the construction of new towers, provided such co-location is accomplished in a manner consistent with the following:
A. The antenna complies with all applicable FCC and FAA regulations.
B. A tower which is modified or reconstructed to accommodate the co-location of an additional antenna shall be of the same tower type as the existing tower, unless the PZHAC allows reconstruction as a monopole.
C. Height. An existing tower may be modified or rebuilt to a taller height not to exceed 30 feet over the tower’s existing height, to accommodate the co-location of an additional antenna. This height change may occur only one time per communication tower and the additional height cannot require an additional distance separation as set forth in MTC 18.54.070(D). The tower’s premodification height shall be used to calculate such distance separations.
D. On-Site Location. A tower which is being rebuilt to accommodate the co-location of an additional antenna may be moved on-site within 50 feet of its existing location. If the tower is moved to accommodate co-location, only one tower may remain on the site. A relocated on-site tower shall continue to be measured from the original tower location for purposes of calculating separation distances between towers pursuant to MTC 18.54.070(D). [Ord. 2003-10 § 5]
18.54.060 Heights, placement provisions and setbacks.
A. Heights.
|
Zone |
Towers |
Other Communication Structures |
|---|---|---|
|
HR, HC |
Expressly prohibited |
Prohibited |
|
Towers and other communication structures are also expressly prohibited within 660 feet (or 1/8 mile) of the boundary of an historic resource or district or view corridor. |
||
|
C |
Expressly prohibited |
Must be concealed as per subsection (D) of this section |
|
R-1 |
Up to 65 feet For noncommercial use only |
Up to 65 feet For noncommercial use only |
|
RA |
Up to 65 feet For noncommercial use only |
Up to 65 feet For noncommercial use only |
|
RF |
Up to 65 feet for a single user Up to 75 feet for three users Up to 100 feet for four or more users |
See MTC 18.54.030(B) |
The applicant shall submit documentation justifying the total height of any tower or other communication structure, facility, and/or antenna and the basis therefore. Such documentation will be analyzed, to the extent practicable, in the context of the justification of the height needed to provide service primarily and essentially within the town boundaries and the immediately surrounding area, to the extent practicable.
No tower, including allowing for all attachments, shall exceed that height which shall permit operations without required artificial lighting of any kind in accordance with municipal, county, state and/or federal law, ordinance, code, rule or regulation.
B. The following placement and setback requirements shall apply to all freestanding vertical structures under 50 feet for which a special use permit is not required:
1. Towers and other freestanding vertical structures and satellite service devices in the R-1, RA and RF zones shall be placed within the primary buildable area for the lot’s zone and must be to the side and/or rear of any and all residential dwelling structures, including houses, apartments, duplexes, etc.
2. Structures shall be set back from any adjoining property line one foot for each one foot in height plus 10 percent of the total height of the structure.
3. Additional setbacks may be required in both this section and in the following section to meet the distance equal to at least the potential fall radius of a support structure as certified by a licensed New Mexico professional engineer or to preserve the privacy and integrity of adjoining residential, public or historic properties.
4. Guy wires used to secure and steady a tower and accessory buildings shall conform to the minimum setback requirements for the lot’s zone.
C. The following placement and setback requirements shall apply to all towers for which a special use permit is required:
1. Towers and other communication structures for which a special use permit is required shall be placed within the primary buildable area for the lot’s zone and must be to the side and/or rear of the primary building structure. If the antenna, communication structure or satellite service device is the primary structure, then such structure shall be within the primary buildable area, including all equipment buildings.
2. Required tower or other antenna support setbacks from all property lines:
a. Up to 75 feet, the setback is one foot for each foot of height, plus 10 percent of the total height of the structure;
b. From 75 to 125 feet, the setback is two feet for each foot of height;
c. From 126 to 150 feet, the setback is three feet for each foot of height.
3. When a proposed tower will be located in or adjacent to a district which permits residential use, or where a residential structure is located, the tower shall also be set back from the nearest residential use on the same or any adjacent parcel, a distance 20 percent greater than its total height.
4. A special use permit shall be required for WTFs proposed to be constructed on lots adjacent to property zoned R-1 or RA.
D. Concealed wireless communications facilities are permitted within the C zone providing the following conditions are met:
1. The structure is architecturally integrated with existing buildings, structures and landscaping, including height, color, style, massing, placement, design and shape and is not readily visible as a wireless telecommunications facility. No setback shall be required for an architecturally integrated WTF less than 24 feet high.
2. The structure is located in areas where the existing topography, vegetation, buildings or other structures provide the greatest amount of screening.
3. The structure is located on existing vertical infrastructure, such as utility poles and public utility structures, if possible.
4. The structure complies with all other aesthetic requirements as set forth in this chapter.
5. The structure is approved through the special use permit process. [Ord. 2003-10 § 6]
18.54.070 Special use permits.
A. General. The following provisions shall govern the issuance of special use permits for the siting of a WTF, including but not limited to the construction of a tower and the placement of an antenna, by the board of trustees, the governing body of the town of Mesilla.
1. Applications for special use permits under this section shall be subject to the procedures and requirements of the zoning regulations and standards, MTC 18.55.010, 18.85.080, 18.85.100; and Chapter 18.85 MTC, Article III; except as modified in this chapter, with the planning, zoning and historical appropriateness commission (PZHAC) acting as a recommending body and the board of trustees acting as the granting body.
2. The PZHAC, in recommending a special use permit to the board of trustees, and the board of trustees, in granting a special use permit, may impose conditions and limitations to the extent the commission and board conclude such conditions and limitations are necessary to minimize any adverse effect of the proposed WTF on adjoining properties.
3. Any engineering information submitted by the applicant, whether civil, mechanical, or electrical, shall be certified by a professional engineer licensed in the state of New Mexico.
4. An applicant for a special use permit shall submit the information described below in this section and a nonrefundable filing fee as described in the zoning regulations and standards, MTC 18.85.140(A).
B. Wireless Telecommunications Facilities (WTFs) – Information Required. In addition to any information required for applications for special use permits pursuant to MTC 18.55.010 and Chapter 18.85 MTC, Article II, of the zoning regulations and standards, applicants for a special use permit for a WTF shall submit the following information:
1. A scaled site plan clearly indicating the location, type and height of the proposed tower; on-site land uses and zoning, adjacent land uses and zoning, including, when adjacent to the county or another municipality; adjacent roadways; proposed means of access; setbacks from property lines; elevation drawings of the proposed tower and any other structures; topography; parking and other information deemed by town staff to be necessary to assess compliance with this chapter.
2. Legal description of the property upon which or upon part of which the applicant proposed to located the WTF and a list of all mortgages on the property at the time of application.
3. The setback distance between the proposed tower and the nearest residential unit or the nearest platted or unplatted residentially zoned properties.
4. The separation distance from other existing towers within 1,000 feet of the proposed tower. The applicant shall also identify the type of construction of such existing tower(s) and their owner(s)/operator(s).
5. The landscape screening plan showing specific landscape materials.
6. Method of providing security, fencing or wall, and finished color and, if applicable, the method of camouflage and illumination.
7. A description of compliance with MTC 18.54.040(E) to (H) and (K) to (R) and all applicable federal, state and local laws.
8. A notarized statement by the applicant as to whether construction of the tower will accommodate co-location of additional antennas for future users.
9. Identification of the entities providing the network connections for the proposed tower and other cellular sites owned or operated by the applicant in the town of Mesilla.
10. A statement as to the projected number and locations of any WTFs proposed to be built in the town of Mesilla within two years of the date of the current application and that are part of the same system as the WTF for which a special use permit is currently being sought.
11. The applicant shall submit documentation of the legal right to install the WTF, including ingress and egress easements, and shall include original signature(s) of such land owner(s) and a copy of the property deed, plus a full copy of any proposed lease agreement with subject property owner(s).
12. A copy of the tax map and parcel identification code number of the subject property as shown in the records of the Dona Ana County assessor’s office.
13. A site plan showing all property within 1,500 feet of the perimeter of the proposed property that will house the proposed WTF. A list of the owners of each of the affected properties and their mailing addresses as shown by the Dona Ana County assessor’s office.
14. A copy of the FCC license for the WTF and a notarized statement from the owner or operator of the WTF attesting that the WTF complies with current FCC regulations.
15. Project comment review letter from the State of New Mexico Historic Preservation Division and any other letters of clearance required pursuant to the National Historic Preservation Act 1996, as amended.
16. Photo simulations and, if required, the photographic results of the site-located height model or balloon test.
17. Propagation maps showing the cellular coverage that the site will provide.
18. A written report indicating the applicant’s efforts to secure shared use or co-location with existing towers, other structures or alternative technology or buildings within the town of Mesilla and neighboring areas within the city of Las Cruces and Dona Ana County. Copies of written requests and responses for shared use shall be provided to the PZHAC along with the application for a special use permit.
C. Demonstration of Need. An applicant shall submit to the PZHAC documentation that demonstrates the need for the WTF to provide service within the geographical area proposed to be serviced by such WTF. The documentation shall include propagation studies of the proposed site and all adjoining planned, proposed, in-service or existing sites.
D. Separation Distances. When a second tower is proposed near an existing tower, there shall be a minimum separation distance between them of not less than the combined height of the existing tower and the proposed tower, which distance shall be measured by drawing or following a straight line between the base of the existing tower and the proposed base, pursuant to a site plan of the proposed tower. The same separation distance shall apply when more than one tower is proposed at one location.
E. Security Fencing. Towers shall be enclosed by a security fence or wall not less than six feet in height which is equipped with an appropriate anti-climbing device other than barbed or other cutting wire.
F. Screening. WTFs shall be landscaped with a buffer of plant material that effectively screens the view of the tower compound. The standard buffer shall consist of a landscaped strip at least four feet wide outside the perimeter of the compound.
G. Existing mature tree growth and natural land forms on the site shall be preserved to the maximum extent possible. In some cases, such as towers sited on large, wooded lots, natural growth around the property perimeter may be sufficient buffer. [Ord. 2003-10 § 7]
18.54.080 Buildings or other equipment storage.
The following requirements shall apply to the buildings and all other equipment storage space associated with a WTF requiring a special use permit:
A. The related unmanned equipment structure or cabinet, being part of the WTF, used in association with an antenna(s) located on a tower shall not contain more than 120 square feet of gross floor areas or be more than 10 feet in height and shall be located in accordance with the minimum yard requirements of the zone in which it is located.
B. Such equipment structures or cabinets shall comply with all applicable building codes.
C. Security lighting, if required, shall not exceed 12 feet in height and the location of the lighting fixture together with its cut-off angle shall be such that it does not shine directly on any public right-of-way or any residential premises. [Ord. 2003-10 § 8]
18.54.090 Application review and inspection fee.
An application review and engineering inspection fee of 15 percent of the total estimated cost of the installation of the tower and antenna(s) shall be paid by the applicant upon filing of an application for a special use permit with the town. This fee shall be deposited in an escrow account and it shall be used to reimburse the town for all reasonable costs of expert services for evaluation and consultation to the town in connection with the review of the application and the construction of the site once the WTF is permitted. In the event the amount held in escrow by the town is more than the amount of the actual invoicing for consultant and expert services for work performed through the date of issuance of a certificate of compliance for the project, the remaining balance shall be promptly refunded to the applicant. In the event the amount is less than the amount of actual invoicing, the town shall rely on MTC 18.85.140(B) of the zoning regulations and standards, which permits charging additional review fees. [Ord. 2003-10 § 9]
18.54.100 Performance security bond.
The applicant and the owner of record of any proposed WTF property site shall, at its cost and expense, be jointly required to execute and file with the town a bond or other form of security acceptable to the town as to type of security and the form and manner of execution, in the amount of at least $75,000 to assure the faithful performance of the terms and conditions of this chapter and the conditions of any special use permit issued pursuant to this chapter. The full amount of the bond or security shall remain in full force and effect through the term of the special use permit and/or until any necessary site restoration is completed to restore the site to a condition comparable to that which existed prior to the issuance of the original special use permit. [Ord. 2003-10 § 10]
18.54.110 Liability insurance.
A. A holder of a special use permit for a WTF shall secure and at all times maintain public liability insurance for personal injuries, death and property damage and umbrella insurance coverage for the duration of the special use permit in the following amounts:
1. Commercial general liability covering personal injuries, death and property damage and automobile coverage each at $1,000,000 per occurrence and $2,000,000 aggregate and the commercial liability policy shall specifically include the town as an additional named insured.
2. Workers’ compensation at not less than minimum statutory limits.
B. The insurance policies shall be issued by an insurance agent of an insurance company licensed to do business in the state of New Mexico with a Best’s rating of at least A and shall contain an endorsement obligating the insurance company to furnish the town with at least 30 days prior written notice in advance of the cancellation of the insurance. Renewal or replacement policies or certificates shall be delivered to the town at least 15 days before the expiration of the insurance that the policies are to renew or replace.
C. The holder of a special use permit for a WTF shall deliver to the town a copy of each of the policies or certificates representing the insurance in the required amounts before construction of the permitted WTF is initiated. [Ord. 2003-10 § 11]
18.54.120 Indemnification.
Any application for a WTF that is proposed for town property pursuant to this chapter shall contain an indemnification provision. Such indemnification provision shall require the applicant, to the extent permitted by the law, to at all times indemnify and hold harmless the town of Mesilla from and against all claims, liabilities, damages, losses and expenses, including attorneys’ fees, which might arise out of or be caused by the performance of work in the location, construction, modification, use, maintenance, repair, replacement or removal of the WTF, which causes contract bodily injury, illness or death or any other injury or for property damage caused by the negligent act or omission of the owner/operator/applicant of the WTF. [Ord. 2003-10 § 12]
18.54.130 Removal of a wireless telecommunications facility.
A. Under the following circumstances, the town may determine that the health, welfare and safety of the town residents warrant and require the removal of a WTF:
1. A permitted WTF has not been operated as a WTF for a continuous period of six months and is therefore considered to have been abandoned;
2. A permitted WTF falls into such a state of disrepair that it creates a health or safety hazard as determined by town staff;
3. A WTF has been located, constructed or modified without first obtaining, or in a manner not authorized by, the required special use permit.
B. If the town makes such a determination as appears in subsection (A) of this section, then the town shall provide the owner of such WTF with a notice of abandonment and an order to remove the same within 90 days of receipt of the notice of abandonment from the town.
C. Failure by the owner or his successors or assigns to remove the abandoned WTF and all associated structures and facilities from the site and to restore the site to as close to its original conditions as is possible or to take substantial steps toward removing the abandoned WTF within said 90 days shall be grounds to remove the WTF at the owner’s expense. [Ord. 2003-10 § 13]
18.54.140 Required annual report.
In conjunction with the annual renewal of their business registration, the owner of each WTF shall submit a report to the Town of Mesilla, Town Clerk, PO Box 10, Mesilla, NM 88046, stating the current user status of the tower and providing proof of renewal of the insurance policies or certificates required pursuant to MTC 18.54.110. [Ord. 2003-10 § 14]
18.54.150 Provision for waiver or variance.
A. An administrative waiver of up to a 10 percent difference, except for height, or a variance for over a 10 percent difference, except for height, may be requested by the applicant at the time of filing for the special use permit. The conditions regulating the process for waiver and variance requests are set forth in Chapter 18.85 MTC, Article I, and shall apply in this chapter.
B. In instances where strict compliance with this chapter would result in a violation of a clearly established, applicable provision of the Telecommunications Act of 1996 or other federal law or regulation, a minimal easing of the provision of this chapter may be granted by the board of adjustment to the extent required to comply with such law. [Ord. 2003-10 § 15]
18.54.160 Penalty.
Any person who violates any provision of this chapter or any special use permit issued pursuant to this chapter shall be charged with a petty misdemeanor and upon conviction may be punished by a fine of not more than $500.00 or imprisonment for not more than 90 days or both such fine and imprisonment as provided for in MTC Title 1. [Ord. 2003-10 § 16]
18.54.170 Default and/or revocation.
A. If a WTF is repaired, rebuilt, placed, moved or modified in a way that is inconsistent or not in compliance with the provisions of this chapter or of the special use permit, then the town shall notify the holder of the special use permit in writing of such violation. Such notice shall specify the nature of the violation(s) or noncompliance and that action to begin correction of the violation(s) must be commenced within seven days of the date of the postmark or personal service of the notice, whichever is earlier, and completed within 45 days of such date. Notwithstanding anything to the contrary in this subsection or any other section of this chapter, if the violation causes or presents an imminent danger to the health or safety of lives or property, the town may, at its sole discretion, order the violation remedied within 24 hours.
B. If within the 45-day time period set forth in subsection (A) of this section, the WTF is not brought into compliance with the provisions of this chapter or of the special use permit, or substantial steps are not taken in order to bring the affected WTF into compliance, then the town may revoke such special use permit for the affected WTF and shall notify the holder of the special use permit within 48 hours of such action. [Ord. 2003-10 § 17]