[1]
Editor's Note: Ordinance No. 1351, adopted 11-6-2002, repealed Art. II, §§ 7-40 through 7-43, and enacted new provisions designated as Art. III, §§ 7-40 through 7-62. In order to maintain the continuity of numbering, said provisions have been redesignated as Art. II, at the discretion of the editor. Former Art. II pertained to fiber optics pole attachment and right-of-way installation policy, and derived from Ord. No. 1230, adopted 12-12-1998.
[Ord. No. 1351, 11-6-2002[1]]
The purposes of this article are to regulate access to and ongoing
use of public rights-of-way by telecommunications providers for their
telecommunications facilities while protecting the public health,
safety, and welfare and exercising reasonable control of the public
rights-of-way in compliance with the Metropolitan Extension Telecommunications
Rights-of-Way Oversight Act (Act No. 48 of the Public Acts of 2002)
("Act") and other applicable law, and to ensure that the City qualifies
for distributions under the Act by modifying the fees charged to providers
and complying with the Act.
[1]
Editor's Note: This ordinance also repealed former Art. II, pertaining to fiber optics pole attachment and right-of-way installation policy, adopted 12-16-1998 by Ord. No. 1230, and enacted new provisions as Art. III. Said Art. III was redesignated as Art. II to maintain the organizational structure of the Code.
[Ord. No. 1351, 11-6-2002]
Nothing in this article shall be construed in such a manner
as to conflict with the Act or other applicable law.
[Ord. No. 1351, 11-6-2002; 1-17-2018 by Ord. No. 1708]
(a)
ACT
CITY
CITY COUNCIL
CITY MANAGER
PERMIT
The terms used in this article shall have the following meanings:
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Act (Act No. 48 of the Public Acts of 2002),[1] as amended from time to time.
The City of Holland.
The City Council of the City of Holland or its designee.
This section does not authorize delegation of any decision or function
that is required by law to be made by the City Council.
The City Manager or his or her designee.
A nonexclusive permit issued pursuant to the Act and this
article to a telecommunications provider to use the public rights-of-way
in the City for its telecommunications facilities.
[1]
Editor's Note: See MCLA § 484.3101 et seq.
(b)
AUTHORITY
MPSC
PERSON
PUBLIC RIGHT-OF-WAY
TELECOMMUNICATION FACILITIES or FACILITIES
TELECOMMUNICATIONS PROVIDER, PROVIDER and TELECOMMUNICATIONS
SERVICES
All other terms used in this article shall have the same meanings
as defined or as provided in the Act, including without limitation
the following:
The Local Community Stabilization Authority referenced in
§ 3 of the Act.
The Michigan Public Service Commission in the Michigan Department
of Licensing and Regulatory Affairs, and shall have the same meaning
as the term "Commission" in the Act.
An individual, corporation, partnership, association, governmental
entity, or any other legal entity.
The area on, below, or above a public roadway, highway, street,
alley, easement or waterway. "Public right-of-way" does not include
a federal, state, or private right-of-way.
The equipment or personal property, such as copper and fiber
cables, lines, wires, switches, conduits, pipes, and sheaths, which
are used to or can generate, receive, transmit, carry, amplify, or
provide telecommunication services or signals. Telecommunication facilities
or facilities do not include antennas, supporting structures for antennas,
equipment shelters or houses, and any ancillary equipment and miscellaneous
hardware used to provide federally licensed commercial mobile service
as defined in § 332(d) of Part I of Title III of the Communications
Act of 1934, Chapter 652, 48 Stat. 1064, 47 U.S.C. § 332
and further defined as commercial mobile radio service in 47 CFR 20.3,
and service provided by any wireless, two-way communication device.
Those terms as defined in § 102 of the Michigan
Telecommunications Act, 1991 PA 179, MCLA § 484.2102. "Telecommunications
provider" does not include a person or an affiliate of that person
when providing a federally licensed commercial mobile radio service
as defined in § 332(d) of part I of the Communications Act
of 1934, Chapter 652, 48 Stat. 1064, 47 U.S.C. § 332 and
further defined as commercial mobile radio service in 47 CFR 20.3,
or service provided by any wireless, two-way communication device.
For the purpose of the Act and this article only, a provider also
includes all of the following:
[Ord. No. 1351, 11-6-2002]
(a)
Permit required. Except as otherwise provided in the Act, a telecommunications
provider using or seeking to use public rights-of-way in the City
for its telecommunications facilities shall apply for and obtain a
permit pursuant to this article.
(b)
Application. Telecommunications providers shall apply for a permit
on an application form approved by the MPSC in accordance with Section
6(1) of the Act. A telecommunications provider shall file one copy
of the application with the City Clerk, one copy with the City Manager,
and one copy with the City Attorney. Upon receipt, the City Clerk
shall make additional copies of the application and distribute a copy
to the Holland Board of Public Works, the Transportation Department,
and such other departments as the City Manager may deem appropriate.
Applications shall be complete and include all information required
by the Act, including without limitation a route map showing the location
of the provider's existing and proposed facilities in accordance with
Section 6(5) of the Act.
(c)
Confidential information. If a telecommunications provider claims
that any portion of the route maps submitted by it as part of its
application contain trade secret, proprietary, or confidential information,
which is exempt from the Freedom of Information Act, 1976 PA 442,
MCLA §§ 15.231 to 15.246, pursuant to Section 6(5)
of the Act, the telecommunications provider shall prominently so indicate
on the face of each map.
(d)
Application fee. Except as otherwise provided by the Act, the application
shall be accompanied by a one-time nonrefundable application fee in
the amount of $500.
(e)
Additional information. The City Manager may request an applicant
to submit such additional information which the City Manager deems
reasonably necessary or relevant. The applicant shall comply with
all such requests in compliance with reasonable deadlines for such
additional information established by the City Manager. If the City
and the applicant cannot agree on the requirement of additional information
requested by the City, the City or the applicant shall notify the
MPSC as provided in Section 6(2) of the Act.
(f)
Previously issued permits. Pursuant to Section 5(1) of the Act, authorizations
or permits previously issued by the City under Section 251 of the
Michigan Telecommunications Act, 1991 PA 179, MCLA § 484.2251,
and authorizations or permits issued by the City to telecommunications
providers prior to the 1995 enactment of Section 251 of the Michigan
Telecommunications Act but after 1985 shall satisfy the permit requirements
of this article.
(g)
Existing providers. Pursuant to Section 5(3) of the Act, within 180 days from November 1, 2002, the effective date of the Act, a telecommunications provider with facilities located in a public right-of-way in the City as of such date, that has not previously obtained authorization or a permit under Section 251 of the Michigan telecommunications act, 1991 PA 179, MCLA § 484.2251, shall submit to the City an application for a permit in accordance with the requirements of this article. Pursuant to Section 5(3) of the Act, a telecommunications provider submitting an application under this subsection is not required to pay the $500 application fee required under Subsection (d) above. A provider under this subsection shall be given up to an additional 180 days to submit the permit application if allowed by the authority, as provided in Section 5(4) of the Act.
[Ord. No. 1351, 11-6-2002]
(a)
Approval or denial. The authority to approve or deny an application for a permit is hereby delegated to the City Manager. Pursuant to Section 15(3) of the Act, the City Manager shall approve or deny an application for a permit within 45 days from the date a telecommunications provider files an application for a permit under Section 7-43(b) of this article for access to a public right-of-way within the City. The report of the City Manager approving or denying the permit shall be filed with the City Council and the Holland Board of Public Works. Pursuant to Section 6(6) of the Act, the City Manager shall notify the MPSC when the City Manager has granted or denied a permit, including information regarding the date on which the application was filed and the date on which permit was granted or denied. The City Manager shall not unreasonably deny an application for a permit.
(b)
Form of permit. If an application for permit is approved, the City
Manager shall issue the permit in the form approved by the MPSC, with
or without additional or different permit terms, in accordance with
Sections 6(1), 6(2) and 15 of the Act.
(c)
Conditions. Pursuant to Section 15(4) of the Act, the City Manager
may impose conditions on the issuance of a permit, which conditions
shall be limited to the telecommunications provider's access and usage
of the public right-of-way.
(d)
Bond requirement. Pursuant to Section 15(3) of the Act, and without limitation on Subsection (c) above, the City Manager may require that a bond be posted by the telecommunications provider as a condition of the permit. If a bond is required, it shall not exceed the reasonable cost to ensure that the public right-of-way is returned to its original condition during and after the telecommunications provider's access and use.
[Ord. No. 1351, 11-6-2002]
A telecommunications provider shall not commence construction
upon, over, across, or under the public rights-of-way in the City
without first obtaining a construction or engineering permit as required
under the ordinance code of the City, as amended, for construction
within the public rights-of-way. No fee shall be charged for such
a construction or engineering permit.
[Ord. No. 1351, 11-6-2002]
Pursuant to Section 4(3) of the Act, obtaining a permit or paying
the fees required under the Act or under this article does not give
a telecommunications provider a right to use conduit or utility poles
of the City or the Holland Board of Public Works.
[Ord. No. 1351, 11-6-2002]
Pursuant to Section 6(7) of the Act, a telecommunications provider
shall, within 90 days after the substantial completion of construction
of new telecommunications facilities in the City, submit route maps
showing the location of the telecommunications facilities to both
the MPSC and to the City. The route maps should be in [paper or electronic]
format unless and until the MPSC determines otherwise, in accordance
with Section 6(8) of the Act.
[Ord. No. 1351, 11-6-2002]
Pursuant to Section 15(5) of the Act, a telecommunications provider
undertaking an excavation or construction or installing telecommunications
facilities within a public right-of-way or temporarily obstructing
a public right-of-way in the City, as authorized by a permit, shall
promptly repair all damage done to the street surface and all installations
under, over, below, or within the public right-of-way and shall promptly
restore the public right-of-way to its preexisting condition.
[Ord. No. 1351, 11-6-2002]
In addition to the nonrefundable application fee paid to the City set forth in Subsection 7-43(d) above, a telecommunications provider with telecommunications facilities in the City's public rights-of-way shall pay an annual maintenance fee to the authority pursuant to Section 8 of the Act.
[Ord. No. 1351, 11-6-2002]
In compliance with the requirements of Section 13(1) of the
Act, the City hereby modifies, to the extent necessary, any fees charged
to telecommunications providers after November 1, 2002, the effective
date of the Act, relating to access and usage of the public rights-of-way,
to an amount not exceeding the amounts of fees and charges required
under the Act, which shall be paid to the authority. In compliance
with the requirements of Section 13(4) of the Act, the City also hereby
approves modification of the fees of providers with telecommunication
facilities in public rights-of-way within the City's boundaries, so
that those providers pay only those fees required under Section 8
of the Act. The City shall provide each telecommunications provider
affected by the fee with a copy of this article, in compliance with
the requirement of Section 13(4) of the Act. To the extent any fees
are charged telecommunications providers in excess of the amounts
permitted under the Act, or which are otherwise inconsistent with
the Act, such imposition is hereby declared to be contrary to the
City's policy and intent, and upon application by a provider or discovery
by the City, shall be promptly refunded as having been charged in
error.
[Ord. No. 1351, 11-6-2002]
Pursuant to Section 13(5) of the Act, if Section 8 of the Act is found to be invalid or unconstitutional, the modification of fees under Section 7-50 above shall be void from the date the modification was made.
[Ord. No. 1351, 11-6-2002]
Pursuant Section 10(4) of the Act, all amounts received by the
City from the authority shall be used by the City solely for rights-of-way
related purposes, in conformance with that requirement, all funds
received by the City from the authority shall be deposited into the
major street fund and/or the local street fund maintained by the City
under Act No. 51 of the Public Acts of 1951.[1]
[1]
Editor's Note: See MCLA § 247.651 et seq.
[Ord. No. 1351, 11-6-2002]
Pursuant to Section 10(5) of the Act, the City Manager shall
file an annual report with the authority on the use and disposition
of funds annually distributed by the authority.
[Ord. No. 1351, 11-6-2002]
Pursuant to Section 13(6) of the Act, the City shall not hold
a cable television operator in default or seek any remedy for its
failure to satisfy an obligation, if any, to pay after November 1,
2002, the effective date of this Act, a franchise fee or similar fee
on that portion of gross revenues from charges the cable operator
received for cable modem services provided through broadband internet
transport access services.
[Ord. No. 1351, 11-6-2002]
Pursuant to Section 4(2) of the Act, except as expressly provided
herein with respect to fees, this article shall not affect any existing
rights that a telecommunications provider or the City may have under
a permit issued by the City or under a contract between the City and
a telecommunications provider related to the use of the public rights-of-way.
[Ord. No. 1351, 11-6-2002]
The City hereby declares that its policy and intent in adopting
this article is to fully comply with the requirements of the Act,
and the provisions hereof should be construed in such a manner as
to achieve that purpose. The City shall comply in all respects with
the requirements of the Act, including but not limited to the following:
(a)
Exempting certain route maps from the Freedom of Information Act, 1976 PA 442, MCLA §§ 15.231 to 15.246, as provided in Section 7-43(c) of this article;
(b)
Allowing certain previously issued permits to satisfy the permit requirements hereof, in accordance with Section 7-43(f) of this article;
(c)
Allowing existing providers additional time in which to submit an application for a permit, and excusing such providers from the $500 application fee, in accordance with Section 7-43(g) of this article;
(d)
Approving or denying an application for a permit within 45 days from the date a telecommunications provider files an application for a permit for access to and usage of a public right-of-way within the City, in accordance with Section 7-44(a) of this article;
(e)
Notifying the MPSC when the City has granted or denied a permit, in accordance with Section 7-44(a) of this article;
(f)
Not unreasonably denying an application for a permit, in accordance with Section 7-44(a) of this article;
(g)
Issuing a permit in the form approved by the MPSC, with or without additional or different permit terms, as provided in Section 7-44(b) of this article;
(h)
Limiting the conditions imposed on the issuance of a permit to the telecommunications provider's access and usage of the public right-of-way, in accordance with Section 7-44(c) of this article;
(i)
Not requiring a bond of a telecommunications provider which exceeds the reasonable cost to ensure that the public right-of-way is returned to its original condition during and after the telecommunication provider's access and use, in accordance with Section 7-44(d) of this article;
(j)
Not charging any telecommunications providers any additional fees for construction or engineering permits, in accordance with Section 7-45 of this article;
(k)
Providing each telecommunications provider affected by the City's right-of-way fees with a copy of this article, in accordance with Section 7-50 of this article;
[Ord. No. 1351, 11-6-2002]
Pursuant to Section 15(2) of the Act, this article shall not
limit the City's right to review and approve a telecommunication provider's
access to and ongoing use of a public right-of-way or limit the City's
authority to ensure and protect the health, safety, and welfare of
the public.
[Ord. No. 1351, 11-6-2002]
The various parts, sentences, paragraphs, sections, and clauses
of this ordinance are hereby declared to be severable. If any part,
sentence, paragraph, section, or clause of this ordinance is adjudged
unconstitutional or invalid by a court or administrative agency of
competent jurisdiction, the unconstitutionality or invalidity shall
not affect the constitutionality or validity of any remaining provisions
of this ordinance.
[Ord. No. 1351, 11-6-2002]
The City Manager or his or her designee is hereby designated
as the authorized City official to issue municipal civil infraction
citations (directing alleged violators to appear in court) or municipal
civil infraction violation notices (directing alleged violators to
appear at the Municipal Ordinance Violations Bureau) for violations
under this article as provided by the City Code.
[Ord. No. 1351, 11-6-2002]
A violation of this article shall be a violation of the City
Code. Nothing in this section shall be construed to limit the remedies
available to the City in the event of a violation by a person of this
article or a permit.
[Ord. No. 1351, 11-6-2002]
[Ord. No. 1351, 11-6-2002]
This ordinance shall take effect on or before November 1, 2002.
[Added 6-5-2019 by Ord.
No. 1769; amended 7-21-2021 by Ord. No. 1798]
(a)
Definitions.
(1)
ACT
CITY MANAGER
CO-LOCATE
PUBLIC RIGHT-OF-WAY or ROW
SMALL CELL WIRELESS FACILITY
a.
b.
UTILITY POLE
WIRELESS FACILITY
a.
b.
c.
WIRELESS INFRASTRUCTURE PROVIDER
WIRELESS PROVIDER
WIRELESS SERVICES
WIRELESS SERVICES PROVIDER
WIRELESS SUPPORT STRUCTURE
For purposes of this section, the following words, terms, and
phrases shall be defined as follows:
Public Act 365 of 2018, as amended, the Small Wireless Communications
Facilities Deployment Act.[1]
The City Manager or the City Manager's designee.
To install, mount, maintain, modify, operate, or replace
wireless facilities on or adjacent to a wireless support structure
or utility pole. "Co-location" has a corresponding meaning. Co-locate
does not include make-ready work or the installation of a new utility
pole or new wireless support structure.
The area on, below, or above a public roadway, highway, street,
alley, bridge, sidewalk, or utility easement dedicated for compatible
uses. Public right-of-way does not include any of the following:
A wireless facility that meets both of the following requirements:
Each antenna is located inside an enclosure of not more than
six cubic feet in volume or, in the case of an antenna that has exposed
elements, the antenna and all of its exposed elements would fit within
an imaginary enclosure of not more than six cubic feet.
All other wireless equipment associated with the facility is
cumulatively not more than 25 cubic feet in volume. The following
types of associated ancillary equipment are not included in the calculation
of equipment volume: electric meters, concealment elements, telecommunications
demarcation boxes, grounding equipment, power transfer switches, cut-off
switches, and vertical cable runs for the connection of power and
other services.
A pole or similar structure that is or may be used in whole
or in part for cable or wireline communications service, electric
distribution, lighting, traffic control, signage, or a similar function,
or a pole or similar structure that meets the height requirements
in Section 13(5) of the Act and is designed to support small cell
wireless facilities. Utility pole does not include a sign pole less
than 15 feet in height aboveground.
Equipment at a fixed location that enables the provision
of wireless services between user equipment and a communications network,
including, but not limited to, radio transceivers, antennas, coaxial
or fiber-optic cable, regular and backup power supplies, and comparable
equipment, regardless of technological configuration. Wireless facility
includes a small cell wireless facility. Wireless facility does not
include any of the following:
The structure or improvements on, under, or within which the
equipment is co-located.
A wireline backhaul facility.
Coaxial or fiber-optic cable between utility poles or wireless
support structures or that otherwise is not immediately adjacent to
or directly associated with a particular antenna.
Any person, including a person authorized to provide telecommunications
services in this state but not including a wireless services provider,
that builds or installs wireless communication transmission equipment,
wireless facilities, or wireless support structures and who, when
filing an application with the City Manager under this section, provides
written authorization to perform the work on behalf of a wireless
services provider.
A wireless infrastructure provider or a wireless services
provider. Wireless provider does not include an investor-owned utility
whose rates are regulated by the MPSC.
Any services provided using permitted or unpermitted spectrum,
including the use of Wi-Fi, whether at a fixed location or mobile.
A person that provides wireless services.
A freestanding structure designed to support or capable of
supporting small cell wireless facilities. Wireless support structure
does not include a utility pole.
[1]
Editor's Note: See MCLA § 460.1301 et seq.
(2)
All other terms and phrases used herein shall be defined consistent
with the Act.
(b)
Permit required. Except for those activities exempt under MCLA § 460.1315(5),
a wireless provider may not co-locate a small cell wireless facility
or install, modify, or replace a utility pole or wireless support
structure on which a small cell wireless facility will be co-located
within the public right-of-way without first applying for and receiving
a small cell wireless permit from the City Manager in a form and subject
to such terms and conditions as are acceptable to the City Manager
and a pole attachment agreement with the pole owner.
(c)
Permitting process. The processing of an application for a permit
under this section is subject to all of the following:
(1)
An application in such form as prepared by the City Manager
shall be completed and submitted as set forth in this section.
(2)
The City Manager may require an applicant to provide information
and documentation to enable the City Manager to make a compliance
determination with regard to the criteria in this section involving,
without limitation, Subsection (d)(3). The City Manager may also require
a certificate of compliance with FCC rules related to radio frequency
emissions from a small cell wireless facility.
(3)
The City Manager may require an applicant to attest that the
small cell wireless facilities will be operational for use by a wireless
services provider within one year after the permit issuance date,
unless the City Manager and the applicant agree to extend this period
or delay is caused by lack of commercial power or communications transport
facilities to the site.
(4)
An applicant may, at the applicant's discretion, file a consolidated
application and receive a single permit for the co-location of up
to 20 small cell wireless facilities with the City Manager. The small
cell wireless facilities within a consolidated application must consist
of substantially similar equipment and be placed on similar types
of utility poles or wireless support structures. The City Manager
may approve a permit for one or more small cell wireless facilities
included in a consolidated application and deny a permit for the remaining
small cell facilities.
(5)
The application for a permit under this section shall be accompanied
by an application fee as set by resolution of the City Council from
time to time.
(6)
The permit application shall be accompanied by a map(s) for
any proposed small cell wireless facilities which shall be legible,
to scale, labeled with streets, and contain sufficient detail to precisely
identify the proposed small cell wireless facilities' locations and
surroundings. Where applicable, the required map(s) shall include
and identify any requested pole height(s), all attachments and detailed
drawings of any attachment.
(7)
The permittee shall field-stake all proposed locations for small
cell wireless facilities which shall be subject to the advance approval
by the City or the Michigan Department of Transportation, as applicable.
All approved small cell wireless facilities' locations shall be on
a per pole/equipment/other basis.
(8)
Once precise locations have been approved, the permittee shall
provide latitude and longitude coordinates for the small cell wireless
facilities' locations to the City Manager's Engineering Department
as well as detailed as-built drawings within 90 days of the completion
of installation.
(9)
The permittee shall be responsible to obtain such other pole
attachment agreements, permits and approvals as otherwise required
by law.
(d)
Determination of application.
(1)
Within 25 days after receiving an application, the City Manager
shall notify the applicant in writing whether the application is complete.
If the application is incomplete, the notice shall clearly and specifically
identify all missing documents or information.
(2)
Upon receipt of a complete application, the City Manager shall
approve or deny the application and notify the applicant in writing
within the following period of time after the completed application
is received:
a.
For an application for the co-location of small cell wireless
facilities on a utility pole, 60 days, subject to the following adjustments:
1.
Add 15 days if an application from another wireless provider
was received within one week of the application in question.
2.
Add 15 days if, before the otherwise applicable sixty-day or
seventy-five-day time period elapses, the City Manager notifies the
applicant in writing that an extension is needed and the reasons for
the extension.
b.
For an application for a new or replacement utility pole that
meets the height requirements of Section 13(5)(a) of the Act and associated
small cell facility, 90 days, subject to the following adjustments:
1.
Add 15 days if an application from another wireless provider
was received within one week of the application in question.
2.
Add 15 days if, before the otherwise applicable ninety-day or
105-day time period elapses, the City Manager notifies the applicant
in writing that an extension is needed and the reasons for the extension.
c.
If the City Manager fails to comply with this subsection, an
application otherwise complete is considered to be approved subject
to the condition that the applicant provide the City Manager not less
than seven days' advance written notice that the applicant will be
proceeding with the work pursuant to this automatic approval, and
the applicant shall be responsible to comply with all provisions of
this section and the Act.
d.
The City Manager and an applicant may extend a time period under
this subsection by mutual agreement.
(3)
The City Manager may deny a completed application for a proposed
co-location of a small cell wireless facility or installation, modification,
or replacement of a utility pole that meets the height requirements
in Section 13(5)(a) of the Act if the proposed activity would do any
of the following:
a.
Materially interfere with the safe operation of traffic control
equipment.
b.
Materially interfere with sight lines or clear zones for transportation
or pedestrians.
c.
Materially interfere with compliance with the Americans with
Disabilities Act of 1990, Public Law 101-336, or similar federal,
state, or local standards regarding pedestrian access or movement.
d.
Materially interfere with maintenance or full unobstructed use
of public utility infrastructure under the jurisdiction of the City
Manager.
e.
With respect to drainage infrastructure under the jurisdiction
of the City Manager, either of the following:
1.
Materially interfere with maintenance or full unobstructed use of
the drainage infrastructure as it was originally designed.
2.
Not be located a reasonable distance from the drainage infrastructure
to ensure maintenance under the Drain Code of 1956, 1956 PA 40, MCLA
§§ 280.1 to 280.630, and access to the drainage infrastructure
f.
Fail to comply with reasonable, nondiscriminatory, written spacing
requirements of general applicability adopted by the Holland Board
of Public Works that apply to the location of ground-mounted equipment
and new utility poles and that do not prevent a wireless provider
from serving any location.
g.
Fail to comply with applicable codes.
h.
Fail to comply with any provision of this section.
i.
Fail to meet reasonable, objective, written disguise, or concealment
criteria for small cell wireless facilities applicable in an historic
district or other designated area, as specified in an ordinance or
otherwise and nondiscriminatorily applied to all other occupants of
the ROW, including electric utilities, incumbent or competitive local
exchange carriers, fiber providers, cable television operators, and
the City.
(4)
Within one year after a permit is granted, a wireless provider
shall complete co-location of a small cell wireless facility that
is to be operational for use by a wireless services provider, unless
the City Manager and the applicant agree to extend this period or
the delay is caused by the lack of commercial power or communications
facilities at the site. If the wireless provider fails to complete
the co-location within the applicable time, the permit is void, and
the wireless provider may reapply for a permit.
(5)
Approval of an application authorizes the wireless provider
to do both of the following:
a.
Undertake the installation or co-location.
b.
Subject to relocation requirements that apply to similarly situated
users of the ROW and the applicant's right to terminate at any time,
maintain the small cell wireless facilities and any associated utility
poles or wireless support structures covered by the permit for so
long as the site is in use and in compliance with the initial permit
under this section.
(6)
The City Manager may propose an alternate location within the
ROW or on property or structures owned or controlled by the City within
75 feet of the proposed location to either place the new utility pole
or co-locate on an existing structure. The applicant shall use the
alternate location if, as determined by the applicant, the applicant
has the right to do so on reasonable terms and conditions and the
alternate location does not impose unreasonable technical limits or
significant additional costs. The City Manager may request written
confirmation of any decision rendered by the applicant under this
subsection and the specific basis for the same.
(7)
Nothing herein shall prohibit the City Manager from requiring
a separate ROW access permit for work that will unreasonably affect
traffic patterns or obstruct vehicular or pedestrian traffic in the
ROW.
(8)
As a condition of the issuance of a permit, the applicant shall
obtain and maintain a bond, in the amount of $1,000 per small cell
wireless facility, in a form reasonably satisfactory to the City Manager,
for the small cell wireless facilities as applicable to similarly
situated users of the ROW for one or more of the following purposes:
a.
To provide for the removal of abandoned or improperly maintained
small cell wireless facilities, including those that an authority
determines should be removed to protect public health, safety, or
welfare.
b.
To repair the ROW as provided under the Act.
c.
To recoup rates or fees that have not been paid by a wireless
provider in more than 12 months, if the wireless provider has received
sixty-day advance notice from the authority of the noncompliance.
(9)
It is a condition of any permit issued under this section that:
a.
A wireless provider, with respect to a small cell wireless facility,
a wireless support structure, or a utility pole, shall defend, indemnify,
and hold harmless the City and its officers, agents, and employees
against any claims, demands, damages, lawsuits, judgments, costs,
liens, losses, expenses, and attorney fees resulting from the installation,
construction, repair, replacement, operation, or maintenance of any
wireless facilities, wireless support structures, or utility poles
to the extent caused by the applicant, its contractors, its subcontractors,
and the officers, employees, or agents of any of these. A wireless
provider has no obligation to defend, indemnify, or hold harmless
the City, or the officers, agents, or employees of the City against
any liabilities or losses due to or caused by the sole negligence
of the City or its officers, agents, or employees.
b.
A wireless provider, with respect to a small cell wireless facility,
a wireless support structure, or a utility pole, shall obtain insurance,
in an amount and of a type reasonably satisfactory to the City Manager,
naming the City and its officers, agents, and employees as additional
insureds against any claims, demands, damages, lawsuits, judgments,
costs, liens, losses, expenses, and attorney fees. A wireless provider
may meet all or a portion of the City's insurance coverage and limit
requirements by self-insurance. To the extent it self-insures, a wireless
provider is not required to name additional insureds under this subsection.
To the extent a wireless provider elects to self-insure, the wireless
provider shall provide to the City Manager evidence demonstrating,
to the City Manager's satisfaction, the wireless provider's financial
ability to meet the City's insurance coverage and limit requirements.
c.
It is the policy of the City to encourage the co-location of
small cell wireless facilities first outside of public rights-of-way
and, secondarily, within the public rights-of-way. The co-location
of uses shall be a condition of approval of any permit granted for
a new wireless support structure or utility pole in the public right-of-way;
provided, however, that the co-location requirement may be waived
if the pole or support structure is disguised or concealed so as to
blend with the immediate environment (e.g., streetlights, power poles,
etc.).
d.
The wireless provider shall install signs on equipment, at least
12 feet to 15 feet aboveground, with warnings of radio frequency safety
hazards consistent with the FCC rules and industry standards.
e.
Installations shall be compliant with the National Electrical
Safety Code electrical and telecommunications standards.
f.
The wireless provider provides the City with an RF study for
each location and provides safety training sessions for City and utility
employees who will work on or within vicinity of equipment.
g.
The wireless provider provides the name and emergency contact
information for the wireless operator's contact person.
h.
The wireless provider allows the Holland Board of Public Works
or City to turn off any AC or DC electric supply in emergencies.
(e)
METRO Act permit. No person shall install or operate "telecommunications
facilities," as defined in the Metropolitan Extension Telecommunications
Rights-Of-Way Oversight Act, Act No. 48 of the Public Acts of 2002,[2] as amended, (the "Act") without first obtaining a permit
in accordance with that Act from the City, including any part of a
small cell wireless facility, utility pole, or wireless support structure
constituting telecommunication facilities.
[2]
Editor's Note: See MCLA § 484.3101 et seq.
(f)
Design parameters. The following minimal design parameters shall
apply to small cell wireless facilities, utility poles, and wireless
support structures in the City's public rights-of-way:
(1)
A wireless provider may, as a permitted use not subject to zoning
review or approval, but still subject to approval by the City Manager
under this section, co-locate small cell wireless facilities and construct,
maintain, modify, operate, or replace utility poles in, along, across,
upon, and under the ROW consistent with the following:
a.
A utility pole in the ROW installed or modified on or after
the effective date of the Act shall not exceed 40 feet above ground
level, unless a taller height is agreed to by the City Manager consistent
with all applicable laws.
b.
A small cell wireless facility in the ROW installed or modified
after the effective date of the Act shall not extend more than five
feet above a utility pole or wireless support structure on which the
small cell wireless facility is co-located.
c.
Such structures and facilities shall be constructed and maintained
so as not to obstruct or hinder the usual travel or public safety
on the ROW or obstruct the legal use of the City's ROW or uses of
the ROW by other utilities and communications service providers.
(2)
Any pole installed by a wireless provider shall not be closer
than 15 feet to another pole. A pole installed by a wireless provider
shall not be taller than existing poles within 300 feet parallel and
20 feet perpendicular to the nearest right-of-way.
(3)
An antenna shall not extend more than five feet above a pole.
(4)
There shall be no ground-mounted equipment. Equipment mounted
on a pole shall not be more than six cubic feet in size.
(5)
A wireless provider may co-locate a small cell wireless facility or install, construct, maintain, modify, operate, or replace a utility pole that exceeds the height limits under Subsection(f)(1), or a wireless support structure, in, along, across, upon, and under the ROW only upon issuance of a permit in accordance with this section and upon receiving any zoning approvals required by Chapter 39.
(6)
Unless otherwise required by the Federal Communications Commission
(FCC), the Federal Aviation Administration (FAA), or applicable codes,
the provider's poles shall either maintain a galvanized silver, gray,
or concrete finish or, subject to any applicable standards of the
FAA, FCC or such codes, be painted a neutral color so as to reduce
visual obtrusiveness.
(7)
At all pole sites related equipment shall use materials, colors,
textures, screening, and landscaping that will blend the facilities
to the natural setting and environment to the extent reasonably practical.
(8)
All poles shall be similar in style and made of a similar material
and color to other poles on the same and adjoining blocks, unless
the City Manager approves an alternate design. Disguising or concealing
poles is encouraged.
(9)
Any such requirements shall not have the effect of prohibiting
any wireless provider's technology.
(10)
A wireless provider shall comply with any of the City Manager's
requirements that prohibit communications service providers from installing
structures on or above ground in the ROW in an area designated solely
for underground or buried cable and utility facilities if each of
the following apply:
a.
The Holland Board of Public Works has required all cable and
utility facilities, other than poles used for streetlights, traffic
signals, or other attachments necessary for public safety, to be placed
underground by a date that is not less than 90 days before the submission
of the wireless provider's application.
b.
The City does not prohibit the replacement of City poles by
a wireless provider in the designated area.
(g)
Additional design parameters for locations in an historic, residential,
or F-CDT, F-NDT, F-EDT, F-WDT, F-CENT Central Business District. The
following additional design and concealment measures shall apply to
the co-location of any small cell wireless facility or utility pole
in an historic, residential, or F-CDT, F-NDT, F-EDT, F-WDT, F-CENT
Central Business District:
(1)
Equipment on a supporting structure may not exceed an aggregate
width of four feet (centered on pole) and shall be secured a minimum
of 10 feet from the ground surface or 18 feet where equipment may
overhang the traveled portion of the right-of-way. Ground-level equipment
or shelters are not permitted.
(2)
Small cell wireless facilities shall be located no closer than
18 inches from an existing sidewalk/face of curb or 18 inches from
a proposed future sidewalk/face of curb location.
(3)
Unless located on an existing utility pole in the right-of-way,
small cell wireless facilities shall be located no closer than 10
feet from any driveway.
(4)
Unless located on an existing utility pole in the right-of-way,
small cell wireless facilities shall be located in line with a side
lot line and not in front of a residence.
(5)
Small cell towers shall be disguised or concealed by use of
coloring, camouflaging, banner brackets, or other features determined
by the City Manager.
(h)
Modification of design parameters. Upon the written request of an
applicant for a permit, the City Manager may modify or waive the design
parameters of Subsection (f)(7) and (8) in its discretion based on
its review of factors affecting the public health, safety, and welfare,
including, but not limited to, the following: the presence of existing
poles or other structures or equipment in the immediate vicinity;
the ability to reasonably comply with the design parameters set forth
in Subsection (f)(7) and (8); the visual and aesthetic impact of the
proposed pole, antenna or facilities on the adjacent area; the existing
and planned character of the adjacent area; public comment; the scale
and scope of the poles, antennas or facilities relative to the existing
character of the area; whether granting the modification will adversely
impact public safety; and the recommendations of City Manager and
department heads (if any). Following its review, the City Council
may grant, deny or grant with conditions a request to modify or waive
the design parameters and shall provide its decision and the basis
for the same to the applicant in writing. All applications for a waiver
or modification of the design parameters as set forth herein shall
be addressed in a uniform and nondiscriminatory manner. The applicant
shall be responsible to pay all costs of the City associated with
the request to modify or waive the design parameters.
(i)
Repair of ROW. As a condition to the issuance of a permit under this
section, a wireless provider is required to repair all damage to the
ROW directly caused by the activities of the wireless provider while
occupying, constructing, installing, mounting, maintaining, modifying,
operating, or replacing small cell wireless facilities, utility poles,
or wireless support structures in the ROW and to return the ROW to
its functional equivalent before the damage. If the wireless provider
fails to make the repairs required by the City Manager within 60 days
after written notice, the City Manager may make those repairs and
charge the wireless provider the reasonable, documented cost of the
repairs.
(j)
Discontinuance of use. Before discontinuing its use of a small cell
wireless facility, utility pole, or wireless support structure, a
wireless provider shall notify the City Manager in writing. The notice
shall specify when and how the wireless provider intends to remove
the small cell wireless facility, utility pole, or wireless support
structure. The City Manager may impose reasonable and nondiscriminatory
requirements and specifications for the wireless provider to return
the property to its preinstallation condition. If the wireless provider
does not complete the removal within 45 days after the discontinuance
of use, the City may complete the removal and assess the costs of
removal against the wireless provider. A permit under this section
for a small cell wireless facility expires upon removal of the small
cell wireless facility.
(k)
Revocation of permit. The City Manager may revoke a permit, upon
30 days' notice and an opportunity to cure, if the permitted small
cell wireless facilities and any associated utility pole fail to meet
the requirements of Subsection (d)(3).
(l)
Compliance with applicable law. The permittee shall be responsible
to comply with all applicable legal requirements and to obtain any
permits or approvals otherwise required by law relative to the installation
or operation of small cell wireless facilities in the City's public
rights-of-way (e.g., electrical permits). The City Manager, in reviewing
and authorizing a permit under the Act and/or a permit referred to
in this section, and the permittee, in the establishment and operation
of any small cell wireless facilities, shall comply with all applicable
federal and state laws.
(m)
Fees. Fees for the permits as authorized under the Act shall be as
provided for in the Act or those documents and as periodically authorized
by resolution of the City Council; provided, however, that for installations
of utility poles designed to support small cell wireless facilities
or co-locations of small cell wireless facilities installed and operational
in the ROW before the effective date of the Act, the fees, rates,
and terms of an agreement or ordinance for use of the ROW remain in
effect subject to the termination provisions contained in the agreement
or ordinance.
