APPENDIX C – ZONING REGULATIONSAPPENDIX C – ZONING REGULATIONS\ARTICLE 3. GENERAL PROVISIONS

A.    New Structures. All structures built hereafter shall comply with all of the provisions of these regulations. Any structure hereafter moved from one site to another site shall be considered to be a structure built hereafter. Any structure rebuilt or restored after damage, by any means, shall be considered to be a structure built hereafter, unless Article 8 of these regulations permits such structures to be rebuilt or restored.

B.    New Uses of Old Structures. If a use of any structure is hereafter changed to another, then the new use must comply with the use regulations of these regulations, unless permitted by provisions in Article 8. The mere establishment of the new use does not require an existing structure to conform to the lot size requirements or the bulk regulations.

C.    Structural Alterations. If any structure is hereafter structurally altered as defined in Section 2-102:

1.    The entire structure as altered shall comply with the use regulations of these regulations.

2.    Any alterations, enlargements or additions to the structure shall comply with the bulk regulations of these regulations, except as permitted by Section 8-102B for nonconforming structures.

3.    The off-street parking facilities shall not be reduced below or if already less than, shall not be further reduced below the requirements applicable to a similar new structure or use.

D.    Uses of Open Land. If any use of open land is hereafter established or if any use of open land is hereafter changed to another use, such new use shall comply with all the provisions of these regulations, unless permitted by Sections 8-103 and 106.

E.    Exemptions. The following structures and uses shall be exempt from the provisions of these regulations:

1.    Poles, wires, cables, conduits, vaults, laterals, pipes, mains, valves or other similar equipment for the distribution to consumers of telephones or other communications, electricity, gas or water, or the collection of sewage or surface water, but not including utility substations located on or above the surface of the ground.

2.    Railroad tracks, signals, bridges and similar facilities and equipment located on railroad rights-of-way, and maintenance and repair work on such facilities and equipment.

3.    Buildings, structures or land used, but not just leased, by the federal government.

4.    Use of land for agricultural purposes as defined in Section 2-102, including accessory buildings and structures thereon not in a designated flood plain. When any land or accessory buildings or structures cease to be used only for agriculture, then it shall be subject to the applicable provisions of these regulations.

A.    Establishment of Districts.

The zoning jurisdiction is hereby divided into the districts as described in Article 4. References to “residential districts” shall mean those districts in which residential uses are the main permitted use. References to “business districts” shall mean those districts in which commercial uses are the main permitted uses. References to “industrial districts” shall mean those districts in which industrial uses are the main permitted use. The flood plain,  planned unit development and protective overlay: districts are considered as overlay zones to be used in conjunction with the other districts.

B.    Zoning Maps.

1.    The boundaries of the districts described in Article 4 are as indicated on the Official Zoning Map(s) which is on file with the Zoning Administrator and identified on its face as part of these regulations. The zoning map(s) with all notations, references and other matters shown thereon is as much a part of these regulations as if specifically set forth herein. (See Section 9-100A9 for zoning map(s) certificate and revisions.)

2.    It is the intent of these regulations that the entire area of the zoning jurisdiction, including all the land and water areas, rivers, streets, alleys and railroads and other rights-of-way, be included in the districts established in these regulations. Any area not shown on the zoning map(s) as being included in any district shall be deemed to be in the most restrictive district.

C.    Boundaries.

In the event that uncertainties exist with respect to the intended boundaries of the various districts as shown on the Official Zoning Map(s), the following rules shall apply:

1.    Where boundary lines are indicated as approximately following streets, alleys, easements, railroads, rivers, streams or bodies of water, such boundaries shall be construed as following the centerlines thereof or otherwise are construed to coincide with lot or tract lines, unless otherwise indicated.

2.    Where the district boundaries do not coincide with the location of boundaries as stated in Section 3-101C1 above, the district boundaries shall be determined by the use of the scale shown on the zoning map, unless an exact distance is shown.

3.    Where a district boundary line divides a lot or unsubdivided property in single ownership, the entire lot shall be construed to be within the less restrictive district unless the application of this rule would increase the area of the less restrictive portion of the lot by more than 25%.

D.    Zoning of Rights-of-Way. All streets, alleys, public ways, waterways and railroad rights-of-way, if not otherwise specifically designated, shall be deemed to be in the same zone as the property immediately abutting them. Where the centerline of a street, alley, public way, waterway or railroad right-of-way serves as a district boundary, the zoning of such areas, unless otherwise specifically designated, shall be deemed to be the same as that of the abutting property up to such centerline.

A.    Permitted Uses. No structure shall hereafter be built, moved or structurally altered and no structure or land shall hereafter be used, occupied or designed for use or occupancy except for a use that is permitted within the zoning district in which the structure or land is located or provided for otherwise in these regulations.

B.    Special Uses. No use of a structure or land that is designated as a special use in any zoning district shall hereafter be established, and no existing special use shall hereafter be changed to another special use in such district, unless a special use is approved in the same manner as for an amendment to a zoning district. The latter procedure is set forth in Section 11-101 with the additional requirement that all conditions further imposed upon the special use be made a part of the effectuating ordinance.

C.    Conditional Uses. No use of a structure or land that is designated as a conditional use in any zoning district shall hereafter be established, and no existing conditional use shall hereafter be changed to another conditional use in such district, unless a conditional use is approved by the Board of Zoning Appeals as provided for in Section 10-108.

D.    Lot Sizes.

1.    No structure, or part thereof, shall hereafter be built, moved or structurally altered and no structure or land shall hereafter be used, occupied, arranged or designed for use of occupancy on a zoning lot, unless otherwise provided for in these regulations, which in its district is:

a.     Smaller area than the minimum area or minimum lot area per dwelling unit required;

b.    Narrower that the minimum lot width required; or

c.     Shallower than the minimum lot depth required.

2.    Where independent dwelling units are to be sold as condominiums, minimum lot size requirements shall not apply to each individual ownership, but shall be applied collectively to the common open space surrounding the structure(s) such that the total open space is an aggregate of the minimum lot area required for each dwelling unit; however, the minimum lot width and depth for the district shall be applied to the entire zoning lot.

E.    Bulk Regulations. In these regulations, bulk requirements are expressed in terms of maximum structure height, maximum lot coverage, minimum setbacks and minimum front, side and rear yards.

1.    No structure, or part thereof, shall hereafter be built, moved or structurally altered and no structure or land shall hereafter be used, occupied or designed for use or occupancy:

a.     That would exceed the maximum lot coverage percentage or the maximum structure height specified for the zoning district in which the structure is located, unless exempted by the definition of maximum height, or

b.    That would provide any minimum setback of a front, side or rear yard that is less than that specified for the zoning district in which such structure or use of land is located or maintained, except as front yard setbacks may be applied in Sections 3-103B and C and front and side yard setbacks for nonconforming structures and uses in Article 8.

2.    Where independent dwelling units are to be sold as condominiums, bulk regulations shall not apply to each individual ownership, but shall be applied to the entire zoning lot.

F.    Use Limitations. No permitted, special or conditional use hereafter established, altered, extended, enlarged or moved shall be operated or designed so as to conflict with the use limitations for the zoning district in which such use is or will be located. No permitted, special or conditional use already established on the effective date of these regulations shall be altered, extended or enlarged so as to conflict, or further conflict with, the use limitations for the zoning district in which such use is located.  (See Sections 8-102, 103 and 106.)

G.    Off-Street Parking and Loading. No structure shall hereafter be built or moved and no structure or land shall hereafter be used, occupied or designed for use or occupancy, unless the minimum off-street parking and off-street loading space required by Article 5 are provided. No structure or use already established on the effective date of these regulations shall be enlarged, unless the minimum off-street parking and loading space which would be required by Article 5 are provided.

H.    Accessory Structures or Uses. No accessory structures or use, as defined in Article 6, shall hereafter be built, altered, extended, enlarged or moved, unless such accessory structure or use is permitted by Article 6.

I.     Temporary Structures or Uses. No temporary structure or use shall hereafter be built, altered, extended, enlarged or moved, unless such temporary structure or use is permitted by Article 6 of these regulations.

J.     Home Occupations. No home occupation, as defined by Article 6, shall hereafter be established, altered, extended, enlarged or moved in any residential district, unless such home occupation complies with the permitted uses, conditions and use limitations as provided for in Article 6.

K.    Signs. No signs shall hereafter be built, and no existing signs shall be altered, enlarged or moved, unless such sign complies, or will thereafter comply, with the restrictions imposed by Article 7.

A.    Number of Structures and Uses on a Zoning Lot.

1.    Whenever a zoning lot is used for a single-family detached or attached dwelling, two-family dwelling or any type of manufactured or mobile home, only one principal structure and use may be located on the lot, but only when the structure and use conform to all requirements of the district in which the lot is located.

2.    Whenever a zoning lot is used for other than a residential unit as described in Section 3-103A1 above, more than one principal structure and use may be located on the lot in common ownership, but only when the structures and uses conform to all requirements of the district in which the lot is located.

3.    Whenever any structures are developed as condominiums, more than one principal structure may be located on the lot; provided, the definition of a condominium in Section 2-102 is met as well as the requirements of Sections 3-102D2 and E2.

B.    Platted Building Setback Lines. If a recorded subdivision plat imposes a building setback line or a front yard for a lot which is different from the minimum setback or yard required by the applicable section of these regulations, then, notwithstanding any other provision of these regulations, the minimum building setback or front yard shall be the same as that shown on such subdivision plat; provided, that it has been recorded and not otherwise been officially vacated.

C.    Average Setback in Existing Residential Districts.

1.    On streets where a front yard more than that required by these regulations has been maintained for existing structures on lots having a frontage of 50% or more of the total frontage on one side of that portion of the street line between two intersecting streets, there shall be maintained a front yard setback of not less than the average setback of the existing structures; provided, that these regulations shall not be interpreted to require a front yard setback of more than 50 feet.

2.    On streets where a front yard less than that required by these regulations has been maintained for existing structures on lots having a frontage of 50% or more of the total frontage on one side of that portion of the street line between two intersecting streets, the front yard setback need not be greater than the average setback of the existing structures; provided, that these regulations shall not be interpreted to permit a front yard setback of less than 20 feet.

D.    Yard Requirements for Open Land. If a zoning lot is, or will be, occupied by a permitted use without structures, then the minimum front, side and rear yards that would otherwise be required for the zoning lot shall be provided and maintained, unless some other provision of these regulations requires or permits a different minimum front, side or rear yard. Such yards shall not be required on zoning lots used for open public recreation areas.

E.    Restrictions on Allocation and Disposition of Required Yards or Open Space.

1.    No part of the lot area, or of a yard, or other open space, or off-street parking or loading space provided in connection with any structure or use in order to comply with these regulations shall, by reason of change of ownership or otherwise, be included as part of the minimum lot area, or of a yard, or open space, or off-street parking or loading space required for any other structure or use, except as specifically provided herein.

2.    All of the lot area and all yards and other open spaces provided in connection with any structure or use in order to comply with these regulations shall be located on the same zoning lot as such structure or use.

3.    No part of the lot area, or of the yard, other open space, or off-street parking or loading space provided in connection with any structure or use, including but not limited to any structure or use existing on the effective date of these regulations or of any amendment thereof, shall be subsequently reduced below, or further reduced if already less than, the minimum requirements of these regulations for the equivalent new construction.

F.    Permitted Obstructions in Required Yards. The following shall not be considered to be obstructions when located in a required yard:

1.    In all yards: Open terraces or patios not over four feet above the average level of the adjoining ground, but not including a permanent roof over a terrace or patio or an open or closed porch or deck; awnings or canopies but not carports; steps four feet or less above grade which are necessary for access to a permanent structure or for access to a lot or to a lot from a street or alley; one story bay windows and overhanging eaves and gutters projecting 36 inches or less into the yard; chimneys, window wells and daylight windows projecting 36 inches or less into the yard; arbors and trellises; flagpoles and basketball goals; ornamental light or gas fixtures; parking, when permitted by Article 5; accessory and temporary uses, when permitted by Article 6; signs, when permitted by Article 7; fences when permitted by Section 3-104; and when otherwise specifically permitted by the district regulations. Garages, carports, porches, decks and wing walls are not permitted obstructions.

2.    In any yard except a front yard and a side yard adjoining a street which is deemed to be a front yard: Accessory uses permitted by Article 6; children’s recreational and laundry drying equipment; and fences when permitted by Section 3-104.

G.    Lot Size Requirements and Bulk Regulations for Public Utility Facilities. Notwithstanding any other provision of these regulations, none of the following public utility or public service uses shall be required to comply fully with the lot size requirements and bulk regulations of the zoning district in which they are located, except as may be determined by the Board of Zoning Appeals where a conditional use is required in certain districts and by subsection three of the definition for height, maximum in Section 2-102:

1.    Electric and telephone substations.

2.    Gas regulator stations.

3.    Pumping stations.

4.    Radio, television and microwave transmitting or relay stations and towers.

5.    Water towers or standpipes.

H.    Access to Business and Industrial Districts. No land which is located in a residential district shall be used for a driveway, walkway or access purpose to any land which is located in any business or industrial district.

I.     Annexed Land. All land which may hereafter be annexed shall be automatically classified in the A-1 Agricultural Transition District until such time as the property owner, Planning Commission or Governing Body may file an application to consider a change in zoning districts; however, residential lots which are platted and recorded with an average lot size of 20,000 square feet or more shall be automatically classified in the R-1 Single-Family Residential District upon annexation and similarly an average lot of less than 20,000 square feet shall be automatically classified as in the R-2 Single-Family Residential District. Zoning changes may be considered during the process of annexation. While the Planning Commission may hold their required public hearing on a rezoning amendment or a special use prior to annexation, the zoning ordinance approving the amendment or special use cannot be effectuated until the land is first officially annexed by a separate annexation ordinance. While both ordinances may be published on the same day, the annexation ordinance must be published first if they are published on separate days.

J.     Sewer and Water Facilities. All principal structures built hereafter shall be served by and connected to the City’s sewer and water system, if such facilities can be feasibly provided as may be determined by the Governing Body.

K.    Dedication of Rights-of-Way and Easements. As a condition related to a rezoning amendment or a special use, the dedication of additional street rights-of-way; easements for utilities, drainage, access control, fire lanes, building setback lines and other purposes; and the construction, removal or replacement of public improvements necessary to the proper development of the property, may be required either by platting or replatting the land according to the City Subdivision Regulations or, in lieu of platting, by a legal document effectuating such dedications and improvements. Such condition may be required whether the property is being divided or held in single ownership. A stated time limit not exceeding one year may be established to ensure compliance with the above conditions during which time the effectuation of the zoning amendment or special use having been approved with such conditions by the Governing Body shall be withheld from publication by the Clerk. Failure to comply with the conditions during the stated period shall result in making the zoning amendment or special use null and void. No extension of the time period may be granted without reapplication.

L.    Flood Plain Requirements. Within any flood plain area as delineated by the Federal Emergency Management Agency, no use of land shall commence or no structure shall hereafter be constructed, structurally altered, extended, enlarged or moved under these regulations, unless it also complies with the flood plain regulations. (See Section 4-117 FP Flood Plain District)

M.   Moving Structures. No structure shall be moved into the City, nor from one location to another location within the City, unless such structure shall, when relocated, be made to conform fully with these regulations and other codes of the City including any building codes. No zoning permit shall be issued, unless in the opinion of the Zoning Administrator the height, age, architectural style and texture of the materials pertaining to the outward appearance of such structure reasonably conform to other buildings in the block to which it is to be moved and in the block opposite, to such an extent that its relocation shall not be detrimental to the appearance or have no substantial adverse effect on property values to the adjacent properties.

N.    Status of Moving Manufactured/Mobile Homes. Notwithstanding other provisions of these regulations, the Zoning Administrator is authorized to issue a zoning permit for a manufactured/mobile home under the following provisions; except, that all such homes must meet the flood plain district requirements and none may be replaced in a floodway overlay boundary:

1.    Wherever a manufactured/mobile home is moved from a zoning lot within a district in which it is a permitted use, another manufactured/mobile home meeting the requirements of the district may be moved onto the lot at any time.

2.    In the case of a lawful, nonconforming manufactured/mobile home use, such a move must take place within six months from the date that the previous manufactured/mobile home was moved off the lot, otherwise such use shall not thereafter be reestablished and, when so moved in, shall be skirted or placed on a permanent-type, enclosed perimeter foundation within 60 days. In reestablishing such a home use, any existing nonconforming lot size requirements or bulk regulations shall not be increased in nonconformity and no newly acquired land can be used for placement of such a home.

3.    No manufactured/mobile home, or portion thereof, shall be moved onto any lot or parcel for storage purposes in any district and no such home shall be temporarily located in any district not otherwise permitting such homes. These provisions do not preclude the use of prefabricated mobile structures for offices in business or industrial districts, but not manufactured/mobile homes unless specifically permitted.

4.    In the event of disasters whereby expediency is an important factor, the Zoning Administrator is empowered to permit the temporary location of manufactured homes at his discretion for a stated period of time with appropriate conditions attached in any zoning district.

O.    Vision Triangle. On all corner lots in all districts, no use of land shall commence or no structure shall hereafter be constructed, structurally altered, extended, enlarged or moved after the effective date of these regulations unless it also conforms to the requirements of the vision triangle as defined by Section 2-102.

P.    Wind Energy Conversion Systems. Wind energy conversion systems may be approved upon application as a special use in any zoning district based upon the guidelines listed below. Such guidelines, when applied as conditions attached to the applicant and/or the premises, may be modified to be made more or less stringent depending upon the location and the relative need to avoid injurious effect. Wind energy conversion systems (WECS) means any device or combination of devices, including but not limited to wind charges, windmills, and wind turbines, which converts wind energy into another usable form of energy; the term shall include all associated support structures and transmission lines.

1.    Set back distance from all lot lines shall at least be equal to the total height of the tower and WECS.

2.    The WECS shall not cause interference to microwave communications or radio and television reception in the area.  Noise levels measured at the lot line shall not exceed 60 decibels in a residential zone.  Decibels shall be measured as per Ordinance 506, designated as Article 9, Chapter IV of the Code of the City of Andover, Kansas—1978.

3.    To limit climbing access to a WECS tower if tower steps are utilized, the tower climbing apparatus shall be fenced with not less than a six-foot fence with locking portal.

4.    All blades of a WECS shall be constructed of nonmetallic substances.  If the applicant can prove, in written form, that no electromagnetic interference will result, a metal content of up to 25% will be acceptable.

5.    The WECS tower must be designed to meet the requirements of the City Building Code for wind and seismic, and such requirements must be certified by a professional engineer registered in Kansas.

6.    The WECS tower must be installed under the requirements of the City Building Code and must meet standards that insure the structural integrity of tower installation, and such requirements must be certified by a professional engineer registered in Kansas.

7.    All electrical components of the WECS and electrical support components must comply with the National Electrical Code (NEC).  The electrical box or any hazardous components within ground reach must be securely locked.  A registered engineer must certify compliance with the NEC regulation which states “where the electrical components of an installation vary from the standard design or specifications, the proposed modifications shall be reviewed and certified by a professional engineer registered in Kansas or compliance with the requirements of the National Electrical Code and good engineering practices”. 

8.    A plot plan shall be submitted with the application for a zoning permit showing the proposed location and dimensions of the WECS, guy wires or other support, fencing and all existing buildings within 50 feet of the property line.

9.    No WECS shall be located nearer to an existing WECS than a distance equal to five times the diameter of the larger rotor; provided that this distance may be reduced upon a showing that such reduction will not adversely affect the operation of either WECS.

10.  The applicant shall provide a $300,000 certificate of liability insurance.  This amount of insurance does not relieve the applicant of any liabilities incurred over the required insurance amount.  Annually the owner/operator shall present evidence to the City Clerk that said liability insurance is still in effect.

11.  The WECS must be equipped with both manual and automatic controls to limit the rotational speed of the blade below the design  limits of the rotor.  This requirement must be certified by a professional engineer registered in Kansas, that the rotor and overspeed controls have been designed and fabricated for the proposed use in accordance with good engineering practices.

12.  All cost for required engineer certification will be the responsibility of the WECS owner.

13.  Any application for a WECS shall also conform to all other provisions of these regulations including those of Section 11-102, except for the maximum height, yard and lot size requirements.

14.  Any WECS, which thereafter become inoperable or fails to conform to the requirements hereof shall be shut down, repaired, or removed within 60 days.  If such inoperability or failure to conform to the requirements is caused by a condition which could effect the public safety, then the WECS shall be removed from operation as soon as such condition is apparent or made known to the owner and secured in such a manner as to protect public safety.

Q.    Review Criteria for Wireless Communication Facilities.  In order to accommodate the communication needs of residents and business while protecting the public health, safety, and general welfare of the community, this criteria is necessary in order to:

       Comply with the 1996 federal Telecommunications Act and facilitate the provision of wireless communication services to the residents and businesses of the City;

       Minimize adverse visual effects of wireless communication facilities through careful design and siting standards;

       Avoid potential damage to adjacent properties from wireless communication facility failure through structural standards and setback requirements; 

       Maximize the use of existing and approved wireless communication facilities and buildings to accommodate new wireless communication facilities in order to reduce the number of wireless communication facilities needed to serve the community.

1.    Definitions.  The following definitions shall be used in the interpretation and construction of these regulations:

AMATEUR RADIO:      Radio equipment and associated antennas or support structures operated for the purpose of receiving or transmitting communications by a radio station as described in Section 153(g) of Title 47 of the U.S. Code and which is operated under license by the FCC.

ANTENNA:  A whip (omni-directional antenna), panel (direction antenna), disc (parabolic antenna) or similar devise used for transmission and/or reception of radio frequency signals. 

ANTENNA ARRAY:  More than one whip, panel, disc or similar device used for the same carrier at the same frequency.

APPLICANT:  A person or entity with an application before the City of Andover for a permit for a wireless communication facility.

AGL (above ground level):  The actual height of the wireless communication facility from the ground at the base of the structure to the highest part of the mount or the antenna, whichever is higher.

BROADCAST SYSTEMS:  Wireless communication systems that are licensed for the broadcast of AM/FM radio or television.

CAMOUFLAGE:  To paint or mount a wireless communication facility in a manner that requires minimal changes to the host structure and hides the facility in the context of its surroundings on the host structure.

CARRIER:  A company licensed by the Federal Communications Commission (FCC) that provides wireless communication.  A wireless communication facility builder is not a carrier.

CELLULAR:  A personal wireless service capable of transmitting and receiving voice that operates in the 800 MHz spectrum.

CO-LOCATION:  The use of a common wireless communication facility or common site by two or more carriers or by one carrier for more than one type of wireless communication technology and/or placement or two or more wireless communication facilities on adjacent properties.

COMMERCIAL MOBILE RADIO SERVICES (CMRS):  Per Section 704 of the Telecommunications Act of 1996, any of several wireless communication technologies using radio signals at various frequencies to send and receive voice, data and video.  According to the FCC, these services are “functionally equivalent services.”  Section 704 of the Telecommunications Act of 1996 prohibits unreasonable discrimination among functionally equivalent services.

COMMON CARRIER WIRELESS EXCHANGE ACCESS SERVICES:  Services by which wireless communication is interconnected with wired communication infrastructure.

CONCEAL:  To enclose a wireless communication facility within a natural or man-made feature resulting in the facility being either hidden from view or made part of the feature enclosing it.

DESIGN:  The appearance of wireless communication facilities as determined by selection of materials, colors, size, and shape.

DISGUISE:  To design and construct a wireless communication facility to be an architectural feature of an existing or proposed structure in such a manner that the wireless communication facility is not discernible from the remainder of the structure.

ELEVATION:  The measurement of height above sea level.  Also AMSL, or above mean sea level.

ENHANCED SPECIALIZED MOBILE RADIO (ESMR):  Private land mobile radio with telephone services.

EQUIPMENT SHELTER:  An enclosed structure, cabinet, shed, or box at the base of or in the general proximity of a support structure within which are housed the equipment for the wireless communication facility such as radios, batteries, and electrical equipment.

FEDERAL COMMUNICATIONS COMMISSION (FCC):  An independent federal agency charged with licensing and regulating wireless communication at the national level.

FUNCTIONALLY EQUIVALENT SERVICES:  These services include Cellular, PCS, Enhanced Specialized Mobile Radio, Specialized Mobile Radio and Paging.  Section 704 of the Telecommunications Act of 1996 prohibits unreasonable discrimination among functionally equivalent services.

GUYED WIRELESS COMMUNICATION FACILITY:  Any type of support structure that is supported in whole or in part by cables anchored to the ground or other surface.

HEIGHT, MAXIMUM:  The maximum height of wireless communication facilities shall be determined by measuring the vertical distance from the wireless communication facility’s point of contact with the ground or rooftop to the highest point of the wireless communication facility, including all antennas or other attachments.

LATTICE WIRELESS COMMUNICATION FACILITY: A type of support structure that consists of an open network of braces forming a wireless communication facility that is usually triangular or square in cross section.

LOCATION:  The area where a wireless communication facility is located or proposed to be located.

MODIFICATION:  The changing of any portion of a wireless communication facility from its description in a previously approved permit.  The FCC definitions for “modification” are different than local government rules.

MONOPOLE:  A type of support structure that consists of a vertical pole fixed into the ground and/or attached to a foundation.

PCS (PERSONAL COMMUNICATION SERVICES):  A personal wireless service capable of transmitting and receiving voice, data, text, and video messaging that operates in the 1850-1990 MHz range.

PERSONAL WIRELESS SERVICES:  Any personal wireless service defined in the Telecommunications Act of 1996 which includes Federal Communications Commission (FCC) licensed commercial wireless telecommunications services including cellular, personal communications services (PCS), specialized mobile radio (SMR), enhanced specialized mobile radio (ESMR), paging and unlicensed wireless services, and common carrier wireless exchanges access services.

PRIVATE DISPATCH SYSTEM:  Wireless communication systems that are licensed to one user for exclusive use and not to be shared with, or leased to, other users.

PUBLIC SERVICE AND EMERGENCY SYSTEM:  Wireless communication systems operated by or for a governmental agency for the delivery of emergency or other public services.

RADIO FREQUENCY (RF) ENGINEER:  Someone with a background in  electrical engineering or microwave engineering who specialized in the study of radio frequencies.

RADIO FREQUENCY RADIATION (RFR):  The propagation of electromagnetic waves through space.

RADIO FREQUENCY (RF) SIGNAL:  The actual beam or radio waves sent and received by a wireless communication facility.  A signal is the deliberate product of a wireless communication facility.  The RF emission is the byproduct.

SCREENING:  Decorative fencing or other materials, evergreen vegetation, or landscaped earth berms constructed and maintained for the purpose of concealing a wireless communication facility or a portion thereof from view.

SEPARATION:  The distance between one carrier’s antenna array and another carrier’s antenna array.

SITE:  That portion of a subject property where a wireless communication facility is to be placed.  Any acceptable location may have several potential sites within it.

SITING:  The method and form of placement of wireless communication facilities on a specific area of a subject property.

SPECIALIZED MOBILE RADIO (SMR):  A form of dispatch or two-way communication used by companies that rent space or time from an SMR carrier.  Used primarily for delivery vans, truckers or taxis within a small, definable geographic area.

SUPPORT STRUCTURE:  The structure or surface upon which antennas are mounted as follows:

Roof-mounted.  Mounted on the roof of a building.

Side-mounted.  Mounted on the side of a building.

Ground-mounted.  Mounted on the ground.

Structure-mounted.  Mounted on a structure other than a building.

TOWER: Generally used to describe all wireless communication facilities or sometimes used to refer only to those wireless communication facilities at high elevations above grade. Also used as a modifier (e.g., tower builder) or when modified (e.g., lattice tower).

TOWER BUILDER: A company or individual that builds, leases,  or manages support structures for wireless communication facilities.

UNLICENSED WIRELESS SERVICES:  Wireless communication services operating on public domain frequencies using duly authorized devices, which do not require an FCC license for their sites.

WIRELESS CABLE SYSTEM:  Wireless communication services that provide point-to-multi-point communication for the provision of voice, data, text, and video that operate in the 2.1 to 2.8 GHz range.

WIRELESS COMMUNICATION:  Comprehensive term describing the wireless services covered by the location/design guidelines of this criteria.  Includes the following terms as defined herein:  broadcast systems, cellular, commercial mobile radio services, common carrier wireless access exchange services, enhanced specialized mobile radio, functionally equivalent services, personal communication services, paging, personal wireless services, public service and emergency system, specialized mobile radio, wireless communication facility builder, unlicensed wireless services, and wireless cable system. Does not include amateur radio or private dispatch system.

WIRELESS COMMUNICATION FACILITY (WCF):  Comprehensive term describing the facilities covered by the location/design guidelines of this criteria.  Generally used to describe all wireless communication facilities or sometimes is used to refer only to those wireless communication facilities at high elevations above grade.  Also used as a modifier (e.g., wireless communication facility builder) or when modified (e.g., lattice wireless communication facility).  Includes the following terms as defined herein:  antenna, antenna array, equipment shelter, guyed wireless communication facility, lattice wireless communication facility, location, monopole, site, support structure, and wireless communication facility.

2.    Co-Location Requirements.   All commercial wireless telecommunication facilities erected, constructed, or located within the City shall comply with the following requirements:

a.     A proposal for a new wireless communication facility shall not be approved unless the telecommunications equipment planned for the proposed wireless communication facility cannot be accommodated on an existing or approved wireless communication facility or building within a one mile for proposed wireless communication facilities greater than 120 feet in height, one-half mile for wireless communication facilities between 60 and 120 feet in height, and one-quarter mile for wireless communication facilities under 60 feet in height of the proposed wireless communication facility due to one or more of the following reasons:

(1)   The planned equipment would exceed the structural capacity of the existing or approved wireless communication facility (WCF), as documented by a qualified and licensed professional engineer, and the existing or approved wireless communication facility cannot be reinforced, modified, or replaced to accommodate planned or equivalent equipment at a reasonable cost. 

(2)   The planned equipment would cause interference materially impacting the usability of other existing or planned equipment at the wireless communication facility as documented by a qualified and licensed professional engineer and the interference cannot be prevented at a reasonable cost.

(3)   Existing or approved wireless communication facilities within the search radius cannot accommodate the planned equipment at a height necessary to function reasonably as documented by a qualified professional radio frequency engineer.

(4)   Other unforeseen reasons that make it infeasible to locate the planned equipment upon an existing or approved wireless communication facility.    

b.    Any proposed wireless telecommunication facility shall be designed structurally, electrically, and in all respects, to accommodate both the applicant’s antennas and comparable antennas for at least two additional users if the wireless communication facility is over 100 feet in height or for at least one additional user if the wireless communication facility is over 60 feet in height.  The wireless telecommunication facility must be designed to allow for future rearrangement of antennas upon the wireless telecommunication facility and to accept antennas mounted at varying heights.

3.    Construction Requirements. All antennas and wireless communication facilities erected, constructed, or within the City, and all wiring therefore, shall comply with the following requirements:

       The requirements set forth in Chapter 4, Building and Construction, of the Code of the City of Andover and FCC Guidelines.

       All applicable provisions of the Code of the City of Andover,

       Wireless communication facilities shall be certified by a qualified and licensed professional engineer to conform to the latest structural standards and wind loading requirements of the Uniform Building Code and the Electronics Industry Association,

       With the exception of necessary public electric and telephone service and connection lines, no part of any antenna or wireless communication facility nor any lines, cable, equipment or wires or braces in connection with either shall at any time extend across or over any part of a public right-of-way for a street, highway, sidewalk, or property line,

       Wireless communication facilities and associate antennas shall be designed to conform with accepted electrical engineering methods and practices and to comply with the provisions of the National Electrical Code,

       All signal and remote control conductors of low energy extending substantially horizontally above the ground between a wireless communication facility or antenna and a structure, or between wireless communication facilities, shall be at least eight feet above the ground at all points, unless buried underground.

       Every wireless communication facility affixed to the ground shall be protected to discourage climbing of the wireless communication facility by unauthorized persons.

       All wireless communication facilities shall be constructed to conform with the requirements of the federal Occupational Safety and Health Administration.

       Metal wireless communication facilities shall be constructed of, or treated with, corrosive resistant material.  Wood poles shall be impregnated with rot resistant substances.

4.    Design Requirements.  Proposed or modified wireless communication facilities shall meet the following design requirements.

a.     Wireless communication facility shall be designed to blend into the surrounding environment through the use of color and camouflaging architectural treatment, except in instances where the color is dictated by state or federal authorities such as the Federal Aviation Administration.

b.    Wireless communication facilities which incorporate ground mounted equipment or accessory structures must be surrounded by a security fence and screening at least six feet in height.

c.     Wireless communication facilities shall be of a monopole design.

d.    Wireless communication facilities shall be constructed in accordance with a site plan approved by the Site Plan Review Committee.

5.    Setbacks. Wireless communication facilities shall conform with each of the following minimum setback requirements:

a.     Wireless communication facilities shall meet the setbacks of the underlying zoning district and shall not encroach upon any easements.

b.    Wireless communication facilities between 60 feet and 100 feet in height shall be separated from any property zoned for residential uses a distance equal to the height of the wireless communication facilities.

c.     Wireless communication facilities 100 feet or greater in height shall be separated from any property zoned for residential uses a distance equal to twice the height of the wireless communication facility.

d.    Wireless communication facilities shall not be located between a principal structure and a public street except in an industrial zoning district, where wireless communication facilities may be placed in front of a principal structure abutting any street but an arterial street, in compliance with the minimum setback required by the zoning district.

e.     No minimum setback shall be required for wireless communication facilities utilizing whip (omni-directional) or surface mounted panel type antennas attached to utility transmission support structures, light standards, traffic signals, etc.

6.    Height Limitations. The purpose of this Section is to regulate the height of structures above ground level in order to maintain the character and scale of the predominant single-family residential development. Wireless communication facilities shall conform to the following height limitations:

a.     35 feet if self-supported units and 45 feet if attached to a permitted structure in the R-1 Single-Family Residential District, R-2 Single-Family Residential District, R-3 Multiple-Family Residential District, R-4 Multiple-Family Residential District, R-5 Single-Family Zero Lot Line Residential District, R-6 Condominium Residential District, MH-1 Manufactured Home Park District, MH-2 Manufactured Home Subdivision District, and all property zoned A-1 Agricultural Transition District but designated as Potential Future Residential on the Future Land Use Map of the Comprehensive Development Plan for the Andover Area, Kansas as amended.

b.    35 feet if self-supported units and 45 feet if attached to a permitted structure in the B-1 Office Business District and B-2 Neighborhood Business District.

c.     60 feet if self-supported units and if attached to a permitted structure in the B-3 Central Shopping District and B-4 Central Business District.

d.    75 feet if self-supported units and if attached to a permitted structure in the B-5 Highway Business District and B-6 Business District.

e.     100 feet in the A-1 Agricultural Transition District, except for those areas designated as Future Residential on the Future Land Use Map in the Comprehensive Development Plan for the Andover Area, Kansas.

f.     150 feet in the I-I Industrial District, and on land owned by the public and used for recreation purposes.

g.     Wireless communication facilities utilizing whip (omni- directional) or surface mounted panel type antennas attached to utility transmission support structures, light standards, traffic signals, etc. may exceed the maximum height restriction for the zoning district by 20 percent of the maximum height or 25 feet above the top of the mounting pole, whichever height is the lesser.

7.    Lighting. Wireless communication facilities shall not be illuminated by artificial means and shall not display strobe lights unless such lighting is specifically required by the Federal Aviation Administration or other federal or state authority.  When incorporated into the design of the wireless telecommunication facilities, light fixtures used to illuminate ball fields, parking lots, or similar areas may be attached to the area.

8.    Signs and Advertising.    The use of any portion of a wireless telecommunication facility for signs other than warning or emergency information signs are prohibited.

9.    Accessory Utility Buildings.        All utility buildings and structures accessory to a wireless communication facility shall be architecturally designed to blend in with the surrounding environment and shall meet the minimum setback requirements of the zoning district.  Ground mounted equipment shall be screened from view by materials which complement the architectural character of the surrounding neighborhood.

10.  Abandoned or Unused Wireless Communication Facilities.  Abandoned or unused wireless communication facilities or portions of wireless communication facilities shall be removed as follows:

a.     All abandoned or unused wireless communication facilities and associated facilities shall be removed within 12 months of the cessation of operations at the site unless a time extension is approved by the Zoning Administrator.  A copy of the relevant portions of a signed lease which requires the applicant to remove the wireless communication facility and associated facilities upon cessation of operations at the site shall be submitted at the time of application.  In the event that a wireless communication facility is not removed within 12 months of the cessation of operations at a site, the wireless communication facility and associated facilities may be removed by the City and the costs of removal assessed against the property or drawn on the applicant’s cash assurance.

b.    Unused portions of wireless communication facilities above a manufactured connection shall be removed within six months of the time of antenna relocation.  The replacement of portions of a wireless communication facility previously removed requires the issuance of a new zoning permit.

11.  Antennas Mounted on Roofs, Walls, and Existing Wireless Communication Facilities.       The placement of wireless communication antennas on roofs, walls, and existing wireless communication facilities may be approved by the Zoning Administrator, provided the antennas meet the requirements of this criteria, after submittal of (1) a final site and building plan and (2) a report prepared by a qualified and licensed professional engineer indicating the existing structure or wireless communication facility’s suitability to accept the antenna, and the proposed method of affixing the antenna to the structure.  Complete details of all fixtures and couplings, and the precise point of attachment shall be indicated.

12.  Interference with Public Safety Communications. No new or existing communications service shall interfere with public safety communications.  All applications for new service shall be accompanied by a preliminary intermodulation study which provides a technical evaluation of existing and proposed transmissions and indicates all potential interference problems.  Before the introduction of new service or changes in existing service, communication providers shall notify the City at least 10 calendar days in advance of such changes and allow the City to monitor interference levels during the testing process.

13.  Additional Submittal Requirements.         In addition to the information required elsewhere in this criteria, development applications for wireless communication facilities shall include the following supplemental information:

a.     A report from a qualified professional engineer licensed to practice in the State of Kansas which

(1)   describes the wireless communication facility’s height and design including a cross section and elevation,

(2)   documents the height above grade for all potential mounting positions for co-located antennas and the minimum separation distances between antennas,

(3)   describes the wireless communication facilities co-location capacity, including the number and type of antennas that it can accommodate,

(4)   includes the engineer’s stamp and license number, and

(5)   includes other information necessary to evaluate the request.

b.    For all wireless communication facilities, a letter of intent committing the wireless communication facility owner and his or her successors to allow the shared use of the wireless communication facility if an additional user agrees in writing to meet reasonable terms and conditions for shared use.

c.     Before the issuance of a zoning permit, the following supplemental information shall be submitted:

(1)   Proof that the proposed wireless communication facility complies with regulations administered by Federal Aviation Administration; and,

(2)   a report from a qualified professional engineer licensed to practice in the State of Kansas which demonstrates the wireless communication facility’s compliance with the aforementioned structural and electrical standards.

14.  Zoning Permits.  It shall be unlawful for any person, firm, or corporation to erect, construct in place, place or re-erect, replace, or repair any wireless communication facility without first making application for and securing a zoning permit therefore as hereinafter provided.

       The applicant shall provide at the time of application sufficient information to indicate that construction, installation, and maintenance of the antenna and wireless communication facility will not create a safety hazard or damage to the property of other persons.

       Such permits are not required for:

a.     Adjustment or replacement of the elements of an antenna array affixed to a wireless communication facility or antenna, provided that replacement does not reduce the safety factor.

b.    Antennas and/or wireless communication facilities erected temporarily for test purposes, for emergency communication, or for broadcast remote pick-up operation; provided that all requirements of this criteria are met, with the exception of screening and landscaping, which are waived.  Temporary antennas shall be removed within 72 hours following installation.

15.  Cash Assurance. The applicant shall deposit, at the time of application for zoning permit, a cash assurance with the City Clerk which shall remain in effect for the duration of the use of the wireless communication facility in an amount sufficient to effect the removal of the equipment on the site in the event of a failure to comply with the provision of these regulations.

16.  Fee. The fee is to be paid that is prescribed by a resolution establishing fee schedule for charges for proceedings governed by the Zoning Regulations and Subdivision Regulations of the City of Andover, Kansas.

17.  Existing Antennas and Wireless communication facilities.  Antennas and wireless communication facilities in existence as of September 7, 2000, which do not conform to or comply with this Section are subject to the following provisions:

a.     Wireless communication facilities may continue in use for the purpose now used and as now existing but may not be replaced or structurally altered without complying in all respects with this Section.

b.    If such wireless communication facilities are hereafter damaged or destroyed due to any reason or cause whatsoever, the wireless communication facility may be repaired and restored to its former use, location, and physical dimensions upon obtaining a zoning permit therefore, but without otherwise complying with this Section provided, however, that if the cost of repairing the wireless communication facility to the former use, physical dimension, and location would be 10 percent or more of the cost of a new wireless communication facility of like kind and quality, then the wireless communication facility may not be repaired or restored except in full compliance with this Section.

18.  Number of Wireless Communication Facilities and antennas.  Only one wireless communication facility shall exist at any one time on any one zoning lot.

19.  Registration.       All wireless communication facilities effected by these regulations shall be registered annually on January 1 of each year to insure continuing compliance with these regulations.  Application for annual registration shall be made by December 15 of each year on the form provided by the City, and shall include the following information:

a.     The identity and legal status of the registrant, including any affiliates.

b.    The name, address, and telephone number of the officer, agent or employee responsible for the accuracy of the registration form.

c.     A narrative and map description of the registrants facility, including street address.

d.    A description of the communication services provided.

e.     A list of the carriers being served by the facility including names, addresses, telephone numbers for emergency contacts, and the type and location of all equipment on the wireless communication facility.

f.     Copies of operating licenses or other approvals required by the Federal Communications Commission (FCC) to provide communication services.

g.     Payment of the registration fee as set forth by Resolution of the City Council.

20.  Inspections.  All wireless communication facilities may be inspected at least once each year by the Zoning Administrator or his designee to determine compliance with original construction standards.  Deviation from original construction for which a zoning permit is obtained constitutes a violation of this Section.

21.  Modifications in Criteria.  If during the process of application for zoning permit for a wireless communication facility, the applicant desires to seek modification of the review criteria in any zoning district, an application for a conditional use may be submitted to the Board of Zoning Appeals for consideration of such modification, except maximum height.

22.  Special Use Applications to Exceed Maximum Height Limitations.  In all zoning districts, applicants may apply to the Planning Commission for a special use to exceed height limitations established in the review criteria for all types of wireless communication facilities.

The following provisions shall govern the construction and location of fences on any zoning lot, unless otherwise determined as part of the site plan approval process:  (See Section 2-102 for definition of Fence.  See also Section 6-100B requiring a zoning permit for fences in any front yard.)

A.    A-1 Agricultural Transition District:

1.    “Open”, “open non-security” and “closed” fences not exceeding six feet in height and permitted in any yard.

B.    R-1, R-2, R-3, R-4, R-5 and R-6 Residential Districts and MH-1 and MH-2 Manufactured Home Districts:

1.    “Open”, “open non-security” and “closed” fences not exceeding six feet in height and permitted in any yard except front yards, including both front yards of a corner lot which adjoins two streets.

2.    Only “open non-security” fences not exceeding four feet in height are permitted in front yards including both front yards of a corner lot within 35 feet of the front corner lot which adjoins two streets.

C.    B-1, B-2, B-3, B-4 and B-6 Business Districts:

1.    “Open” and “closed” fences not exceeding eight feet in height are permitted in any yard except a front yard.

2.    Only “open non-security” fences not exceeding four feet in height are permitted in a front yard.

D.    B-5 Highway Business District and I-1 and I-2 Industrial Districts:

1.    “Open” and “closed” fences not exceeding ten feet in height are permitted in any yard except a front yard.

2.    “Open” and  “open non-security” fences not exceeding six feet in height are permitted in a front yard except: only “open” and “open non-security” fences not exceeding four feet in height are permitted in either front yard of a corner lot within 15 feet of the front corner which adjoins two streets.

E.    Screening fences in all zoning districts:

1.    Notwithstanding the provisions placed on such fences in Sections 3-104A through D above and as may be required by site plan approval in Section 3-105, perimeter screening fences or walls not exceeding six feet in height which are open or closed as defined herein may extend into front yard setbacks of developments at their entrances from streets.

The purpose and intent of requiring site plan approval is to (1) encourage the compatible arrangement of buildings, off-street parking, lighting, signage, landscaping, screening, ingress and egress and drainage on and from the site,  (2) maintain a pleasant and visually appealing community appearance; (3)  promote public health and safety; (4) enhance or preserve property values; (5) protect and support the economic well-being of the City; and (6) control the aesthetics of redevelopment or new development as provided for in K.S.A 12-755(a)(4).

A.    Applicability.  The following construction activities shall be required to obtain site plan approval:

1.    The following construction activities with an estimated cost of greater than $10,000 shall be required to obtain site plan approval by the Site Plan review Committee:

a.     All nonresidential projects, including remodeling of existing nonresidential properties;

b.    All multiple-family dwellings, except three and four family dwellings, not arranged in a courtyard or grouped setting;

c.     All Planned Unit Development (P.U.D.) Districts shall be required to submit a preliminary landscape plan for review by the Site Plan Review Committee at the time of preliminary P.U.D. plan approval.  Final landscape plans shall be submitted for Site Plan Review Committee approval as final P.U.D. plan approval for each phase is attained.  

2.    The following construction activities with an estimated cost under $10,000 shall be required to apply for Site Plan approval by the Zoning Administrator under the following conditions:

a.     If the project meets one of the criteria under Section 3-105 A1 above, and has an estimated cost under $10,000;

b.    The review and approval will be limited to the specific change in the building or site.  For example, if the building is being resided, only the appearance of the siding can be reviewed;

c.     Routine maintenance such as new roofing and paint shall not be reviewed unless the base primary color(s) of the building is changing;

d.    A full application with site plans and other required drawings will not be required for projects with an estimated total project value under $10,000.  At the minimum, a drawing or a photograph with color samples of the proposed changes and material boards, if applicable, shall be submitted;

e.     If a property receives an approval for changes for a project with an estimated total project value under $10,000 and then subsequently seeks another, the Zoning Administrator shall be authorized to require a full site plan review. 

f.     Plans for landscaping projects will be submitted for review and approval as long as the project complies with the Streetscape Guidelines and Preferred Tree Species for South Central Kansas. Incomplete plans may be rejected by Zoning Administrator.

g.     Any approval or disapproval of a Site Plan rendered by the Zoning Administrator may be appealed to the Site Plan Review Committee for reconsideration.

3.    All permanent signage and monuments except those that are replacing an existing approved sign and are not changing the size, location, or lighting of the existing sign, shall require site plan approval by the Zoning Administrator. Landscaping around sign structures shall be designed in such a manner as to meet or exceed Guidelines established by the Site plan Review Committee.

B.    Appointment of Site Plan Review Committee.  A seven-member Site Plan Review Committee shall be nominated by the mayor and approved by the City Council.  All the members shall reside in the city limits except that not more than three may be appointed who reside outside the City in the Andover Planning Area.   Members selected shall have experience and/or education in such fields as architectural design, landscaping, construction, traffic control, urban planning, historical preservation, public safety, civil engineering, local business ownership and similar backgrounds.   The members shall be appointed to serve staggered three-year terms so that initially two members shall serve for one year, two for two years and three for three years.  In the event a vacancy occurs, appointments shall be made for the unexpired term of membership.  The Committee may elect its own officers and adopt rules as bylaws for transaction of business; however, all approval of site plans must have the affirmative vote of at least four members.  All meetings shall be open to the public according to K.S.A. 75-4317 et seq.  Before each Committee meeting, an agenda must be published in the official City newspaper identifying the site plans to be reviewed.

C.    Review Standards.  The Site Plan Review Committee shall prepare criteria and procedures for the submittal of site plans and standards for their approval including appearance standards.  Such criteria, procedure and standards shall be reviewed by the Planning Commission for a recommendation to the Governing Body and subsequent approval by the Governing Body before implementation.  Any amendments to such criteria, procedure and standards shall also be approved in the same manner. 

D.    Appeals.  Applicants aggrieved by any decision of the Site Plan Review Committee may appeal to the City Board of Zoning Appeals within 30 days after their meeting for a determination based on the reasonableness of conditions attached to the issuance of their zoning permit. 

E.    Enforcement.  No zoning permit shall be issued by the Zoning Administrator until a site plan is approved by the Site Plan Review Committee.

F.    Fees.  Fees for site plan review shall be determined by Section 9-104.

A.    It shall be the responsibility of the property owner to maintain in good condition all of the required screening and landscaping improvements on his property.  When it is determined by the Zoning Administrator that improvements required by Section 3-105 are not being maintained, the Administrator shall give notice in writing to the property owner.  Such notice shall specify in what manner the improvements are in need of maintenance and a date for compliance.  The owner shall have not less than 30 days to comply with the notice; provided, however, that any person aggrieved by any such order and disagreeing with any of the requirements of the notice, may file an appeal under Section 10-106 within the 30-day filing period with the Board of Zoning Appeals.

B.    If the owner of the land has failed, refused or neglected to make the necessary maintenance repairs within the time of the notice or time designated by the Board, then the Zoning Administrator shall cause such maintenance to be done to the property.  The cost of maintenance shall be certified by the Administrator to the Clerk, who shall cause the costs to be assessed against the property on which the maintenance repairs were made.