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100.987 Local government may plan for and regulate siting of cellular antenna towers -- Duties of utility or company proposing to construct antenna tower -- Confidentiality of information contained in

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Page 1 of 3 100.987 Local government may plan for and regulate siting of cellular antenna towers -- Duties of utility or company proposing to construct antenna tower -- <br>Confidentiality of information contained in application -- Duties and powers of <br>planning commission -- Co-location. (1) A planning unit as defined in KRS 100.111 and legislative body or fiscal court that has adopted planning and zoning regulations may plan for and regulate the siting of <br>cellular antenna towers in accordance with locally adopted planning or zoning <br>regulations in this chapter. (2) Every utility or a company that is engaged in the business of providing the required infrastructure to a utility that proposes to construct an antenna tower for cellular <br>telecommunications services or personal communications services within the <br>jurisdiction of a planning unit that has adopted planning and zoning regulations in <br>accordance with this chapter shall: <br>(a) Submit a copy of the applicant's completed uniform application to the planning commission of the affected planning unit to construct an antenna <br>tower for cellular or personal telecommunications services. The uniform <br>application shall include a grid map that shows the location of all existing <br>cellular antenna towers and that indicates the general position of proposed <br>construction sites for new cellular antenna towers within an area that includes: <br>1. All of the planning unit's jurisdiction; and 2. A one-half (1/2) mile area outside of the boundaries of the planning <br>unit's jurisdiction, if that area contains either existing or proposed <br>construction sites for cellular antenna towers; (b) Include in any contract with an owner of property upon which a cellular antenna tower is to be constructed, a provision that specifies, in the case of <br>abandonment, a method that the utility will follow in dismantling and <br>removing a cellular antenna tower, including a timetable for removal; and (c) Comply with any local ordinances concerning land use, subject to the limitations imposed by 47 U.S.C. sec. 332(c), KRS 278.030, 278.040, and <br>278.280. (3) All information contained in the application and any updates, except for any map or other information that specifically identifies the proposed location of the cellular <br>antenna tower then being reviewed, shall be deemed confidential and proprietary <br>within the meaning of KRS 61.878. The local planning commission shall deny any <br>public request for the inspection of this information, whether submitted under <br>Kentucky's Open Records Act or otherwise, except when ordered to release the <br>information by a court of competent jurisdiction. Any person violating this <br>subsection shall be guilty of official misconduct in the second degree as provided <br>under KRS 522.030. (4) After an applicant's submission of the uniform application to construct a cellular antenna tower, the planning commission shall: <br>(a) Review the uniform application in light of its agreement with the comprehensive plan and locally adopted zoning regulations; Page 2 of 3 (b) Make its final decision to approve or disapprove the uniform application; and <br>(c) Advise the applicant in writing of its final decision within sixty (60) days commencing from the date that the uniform application is submitted to the <br>planning commission or within a date certain specified in a written agreement <br>between the local planning commission and the applicant. If the planning <br>commission fails to issue a final decision within sixty (60) days and if there is <br>no written agreement between the local planning commission and the <br>applicant to a specific date for the planning commission to issue a decision, <br>the uniform application shall be deemed approved. (5) If the planning commission disapproves of the proposed construction, it shall state the reasons for disapproval in its written decision and may make suggestions which, <br>in its opinion, better accomplish the objectives of the comprehensive plan and the <br>locally adopted zoning regulations. No permit for construction of a cellular or <br>personal communications services antenna tower shall be issued until the planning <br>commission approves the uniform application or the sixty (60) day time period has <br>expired, whichever occurs first. (6) The planning commission may require the applicant to make a reasonable attempt to co-locate additional transmitting or related equipment. A planning commission may <br>provide the location of existing cellular antenna towers on which the commission <br>deems the applicant can successfully co-locate its transmitting and related <br>equipment. If the local planning commission requires the applicant to attempt co-<br>location, the applicant shall provide the local planning unit with a statement <br>indicating that the applicant has: <br>(a) Successfully attempted to co-locate on towers designed to host multiple wireless service providers' facilities or existing structures such as a <br>telecommunications tower or another suitable structure capable of supporting <br>the applicant's facilities, and that identifies the location of the tower or <br>suitable structure on which the applicant will co-locate its transmission and <br>related facilities; or (b) Unsuccessfully attempted to co-locate on towers designed to host multiple wireless service provider's facilities or existing structures such as a <br>telecommunications tower or another suitable structure capable of supporting <br>the applicant's facilities and that: <br>1. Identifies the location of the towers or other structures on which the <br>applicant attempted to co-locate; and 2. Lists the reasons why the co-location was unsuccessful in each instance. (7) The local planning commission may deny a uniform application to construct a cellular antenna tower based on an applicant's unwillingness to attempt to co-locate <br>additional transmitting or related equipment on any new or existing towers or other <br>structures. (8) In the event of co-location, a utility shall be considered the primary user of the tower, if the utility is the owner of the antenna tower and if no other agreement <br>exists that prescribes an alternate arrangement between the parties for use of the Page 3 of 3 tower. Any other entity that co-locates transmission or related facilities on a cellular <br>antenna tower shall do so in a manner that does not impose additional costs or <br>operating restrictions on the primary user. (9) Upon the approval of an application for the construction of a cellular antenna tower by a planning commission, the applicant shall notify the Public Service Commission <br>within ten (10) working days of the approval. The notice to the Public Service <br>Commission shall include a map showing the location of the construction site. If an <br>applicant fails to file notice of an approved uniform application with the Public <br>Service Commission, the applicant shall be prohibited from beginning construction <br>on the cellular antenna tower until such notice has been made. (10) A party aggrieved by a final action of a planning commission under the provisions of KRS 100.985 to 100.987 may bring an action for review in any court of <br>competent jurisdiction. Effective: April 23, 2002 <br>History: Amended 2002 Ky. Acts ch. 343, sec. 3, effective April 23, 2002; and ch. 346, sec. 158, effective July 15, 2002. -- Created 1998 Ky. Acts ch. 231, sec. 2, effective <br>July 15, 1998. Legislative Research Commission Note (4/23/2002). This section was amended by 2002 Ky. Acts ch. 343, sec. 3, and ch. 346, sec. 158, which appear to be in conflict. <br>The changes made by ch. 346 are revisory in nature, while the changes made by <br>ch. 343 are substantive. The changes of ch. 343 have been allowed to prevail. Cf. <br>KRS 7.123.