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HomeMy WebLinkAboutORDINANCE NO 16 04 271STATE OF GEORGIA ORDINANCE NO. 16-04-271 COUNTY OF FULTON AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE CITY OF MILTON, GEORGIA ISSUING A CONDITIONAL USE PERMIT FOR THE PURPOSES OF INTALLING, OPERATING, AND MAINTAINING A PERSONAL WIRELESS SERVICES FACILITY (CELL TOWER AND COMPOUND) AT 14495 HOPEWELL ROAD, MILTON, GEORGIA; TO AMEND THE CITY'S COMPREHENSIVE PLAN AND OFFICIAL ZONING MAP; TO PROVIDE AN EFFECTIVE DATE; TO PROVIDE FOR SEVERABILITY OF THE PROVISIONS HERETO; TO REPEAL ALL ORDINANCES, RESOLUTIONS, AND PARTS OF ORDINANCES AND RESOLUTIONS IN CONFLICT HEREWITH; AND FOR OTHER PURPOSES. WHEREAS, in November 2009 T -Mobile South, LLC ("T -Mobile") applied to the City on behalf of the owners of property located at 14495 Hopewell Road, Milton, Georgia for a conditional use permit for the purposes of installing, operating, and maintaining a personal wireless services facility (cell tower and compound) at 14495 Hopewell Road, Milton, Georgia; WHEREAS, in April 2010 the City denied the request for the conditional use permit sought by T -Mobile; WHEREAS, T -Mobile filed a lawsuit against the City alleging that the denial of the requested conditional use permit was unlawful, specifically, that the denial violated, inter alia, Section 332(c)(2)(7)(B)(i)(II) of the federal Telecommunications Act of 1996, as amended; WHEREAS, the United States District Court for the Northern District of Georgia ("District Court") entered an Order on November 2, 2015 granting a judgment to T - Mobile on its claim that the denial of the requested permit violated Section 332(c)(2)(7)(B)(i)(II) of the federal Telecommunications Act of 1996, as amended; WHEREAS, the City appealed the District Court's decision to the Eleventh Circuit Court of Appeals whereupon the parties were ordered to participate in court -sponsored mediation; WHEREAS, T -Mobile and the City reached an agreement to resolve the litigation concerning the personal wireless facility sought for the 14495 Hopewell Road site that would permit, per and subject to the parties' settlement agreement, construction of a personal wireless facility at 14495 Hopewell Road; WHEREAS, that settlement agreement requires the City to issue to T -Mobile a conditional use permit for the construction of a wireless tower and equipment compound at 14495 Hopewell Road in the same location as requested by T -Mobile in its original application filed in November 2009, the tower and compound to be as specified in project drawing plans accompanying the settlement agreement, all of which is attached as Exhibit A to this Ordinance and incorporated as the scope of what is to be permitted by the conditional use permit; WHEREAS, per the aforementioned project drawing plans, permitted would be a 150400t tall tower camouflaged as an artificial tree (known as a "monopine") accompanied by a 4400t lightning rod and a 5o' by 50' fenced equipment compound; WHEREAS, this settlement agreement was duly and lawfully noticed for a public hearing to be held on March 7, 2016, and at which time a due and lawful public hearing was held and whereupon the City approved the settlement reflected in the settlement agreement attached as Exhibit A; WHEREAS, pursuant to the settlement reached by the parties the lawsuit was returned to the District Court for a final disposition; WHEREAS, on March 15, 2016 the District Court received the settlement agreement approved by the parties and incorporated it into a judgment and order that was thereupon issued requiring the City to grant the conditional use permit in accordance with the parties' settlement agreement; WHEREAS, upon issuance of the District Court's Order a due and lawful notice was published concerning issuance of the conditional use permit and said matter was placed lawfully upon the agenda for the meeting of the City's Mayor and Council scheduled for April 11, 2016; and WHEREAS, the matter of issuance of the conditional use permit required by the parties' settlement agreement and the District Court's Order was lawfully presented and considered at the April 11, 2016 regular session of the Mayor and Council at which time, in accordance with the parties' settlement agreement and District Court's Order THE MAYOR AND COUNCIL OF THE CITY OF MILTON ORDAINS AS FOLLOWS: Sec. 1. That a conditional use permit is hereby issued to T -Mobile for the purpose of installing, maintaining, and operating a personal wireless services facility (a 150400t tall monopine tower with a 4400t lightning rod within a 50' by 50' fenced compound) at 14495 Hopewell Road, Milton, Georgia at the location designated in T -Mobile's original application for the permit in November 2oo9, all in accordance with and subject to the settlement agreement attached hereto as Exhibit A, the terms of which are fully and completely incorporated by reference. Sec. 2. That beyond the requirements of the parties' settlement agreement and the District Court's Order, development and use pursuant to the conditional use permit issued is, going forward, subject to all applicable restrictions, limitations, and requirements of the City's Code of Ordinances and any and all other applicable laws. Sec. 3. That to the extent necessary and required, the City's Comprehensive Plan shall be deemed to have been updated to reflect the issuance of this conditional use permit and same shall be deemed to have been incorporated fully by reference. The official zoning map for the City maintained by the City Clerk is hereby incorporated and amended to reflect this conditional use permit and is as much a part of this Ordinance as if fully described herein, and the same shall be available for public inspection. Sec. 4. In the event a court of competent jurisdiction declares any word, phrase, clause, sentence, or paragraph of this Ordinance invalid, unenforceable, or unconstitutional, such ruling shall not affect the remaining words, phrases, clauses, sentences, and paragraphs of this Ordinance, but the invalidated provisions shall be severed from the Ordinance and the remaining contents shall stand with their validity in no way affected. Sec. 5. All ordinances or resolutions, or parts thereof, in conflict with this Ordinance are hereby repealed. Sec. 6. This Ordinance shall become effective immediately upon its adoption by the Mayor and Council. ORDAINED this 11th day of April, 2016. I/" / Joe Lockwood, Wyor Attest: Sudie AM Gordon, ty Clerk 1