[Ord. No. 2021-3014, 1-26-2021]
A. Title And Statement Of Purpose. Chapter
535 shall be known and may be cited as the "Small Wireless Facility Deployment Code," which is intended to encourage and streamline the deployment of small wireless facilities and to help ensure that robust and dependable wireless radio-based communication services and networks are available in the City, consistent with State and Federal law including Sections 67.5110 to 67.5121, RSMo., (while in effect) and Sections 67.1830 to 67.1846, RSMo. City Ordinances shall apply to small wireless facility development, unless the City Ordinance is inconsistent with this Chapter. This Chapter shall apply to all persons desiring to construct, operate, or maintain small wireless facilities within the City.
B. Preemption.
No provision of this Chapter shall apply to any circumstance in which
such application shall be unlawful under superseding Federal or State
law, and, furthermore, if any Section, Subsection, sentence, clause,
phrase, or portion of this Chapter is now or in the future superseded
or preempted by State or Federal law or found by a court of competent
jurisdiction to be unauthorized, such provision shall be automatically
interpreted and applied as required by law.
[Ord. No. 2021-3014, 1-26-2021]
As used in Chapter
535, the following terms shall mean:
ANTENNA
Communications equipment that transmits or receives electromagnetic
radio frequency signals used in the provision of wireless services.
APPLICABLE CODES
Uniform building, fire, electrical, plumbing, or mechanical
codes adopted by a recognized national code organization or local
amendments to such codes enacted to prevent physical property damage
or reasonably foreseeable injury to persons to the extent not inconsistent
with Sections 67.5110 to 67.5121, RSMo., (while in effect).
APPLICANT
Any person who submits an application and is a wireless provider.
APPLICATION
A request submitted by an applicant to an authority for a
permit to collocate small wireless facilities on a utility pole or
wireless support structure, or to approve the installation, modification,
or replacement of a utility pole.
AUTHORITY
The State or any agency, County, municipality, district,
or subdivision thereof or any instrumentality of the same. The term
shall not include municipal electric utilities or State courts having
jurisdiction over an authority.
AUTHORITY POLE
A utility pole owned, managed, or operated by or on behalf
of an authority, but such term shall not include municipal electric
utility distribution poles or facilities.
COLLOCATE or COLLOCATION
To install, mount, maintain, modify, operate, or replace
small wireless facilities on or immediately adjacent to a wireless
support structure or utility pole, provided that the small wireless
facility antenna is located on the wireless support structure or utility
pole.
COMMUNICATIONS FACILITY
The set of equipment and network components, including wires,
cables, and associated facilities used by a cable operator, as defined
in 47 U.S.C. Section 522(5); a telecommunications carrier, as defined
in 47 U.S.C. Section 153(51); a provider of information service, as
defined in 47 U.S.C. Section 153(24); or a wireless services provider;
to provide communications services, including cable service, as defined
in 47 U.S.C. Section 522(6); telecommunications service, as defined
in 47 U.S.C. Section 153(53); an information service, as defined in
47 U.S.C. Section 153(24); wireless communications service; or other
one-way or two-way communications service.
COMMUNICATIONS SERVICE PROVIDER
A cable operator, as defined in 47 U.S.C. Section 522(5);
a provider of information service, as defined in 47 U.S.C. Section
153(24); a telecommunications carrier, as defined in 47 U.S.C. Section
153(51); or a wireless provider.
DECORATIVE POLE
An authority pole that is specially designed and placed for
aesthetic purposes.
FEE
A one-time, non-recurring charge.
HISTORIC DISTRICT
A group of buildings, properties, or sites that are either
listed in the National Register of Historic Places or formally determined
eligible for listing by the Keeper of the National Register, the individual
who has been delegated the authority by the Federal agency to list
properties and determine their eligibility for the National Register,
in accordance with Section VI.D.l.a.i-v of the Nationwide Programmatic
Agreement codified at 47 C.F.R. Part 1, Appendix C, or are otherwise
located in a district made subject to special design standards adopted
by a local ordinance or under State law as of January 1, 2018, or
subsequently enacted for new developments.
MICRO WIRELESS FACILITY
A small wireless facility that meets the following qualifications:
1.
Is not larger in dimension than twenty-four (24) inches in length,
fifteen (15) inches in width, and twelve (12) inches in height; and
2.
Any exterior antenna no longer than eleven (11) inches.
PERMIT
A written authorization required by an authority to perform
an action or initiate, continue, or complete a project.
PERSON
An individual, corporation, limited liability company, partnership,
association, trust, or other entity or organization, including an
authority.
RIGHT-OF-WAY
The area on, below, or above a public roadway, highway, street,
sidewalk, alley, or similar property used for public travel, but not
including a Federal interstate highway, railroad right-of-way, or
private easement.
SMALL WIRELESS FACILITY
A wireless facility that meets both of the following qualifications:
1.
Each wireless provider's antenna could fit within an enclosure
of no more than six (6) cubic feet in volume; and
2.
All other equipment associated with the wireless facility, whether
ground or pole mounted, is cumulatively no more than twenty-eight
(28) cubic feet in volume, provided that no single piece of equipment
on the utility pole shall exceed nine (9) cubic feet in volume; and
no single piece of ground-mounted equipment shall exceed fifteen (15)
cubic feet in volume, exclusive of equipment required by an electric
utility or municipal electric utility to power the small wireless
facility.
3.
The following types of associated ancillary equipment shall
not be included in the calculation of equipment volume: electric meter,
concealment elements, telecommunications demarcation box, grounding
equipment, power transfer switch, cut-off switch, and vertical cable
runs and related conduit for the connection of power and other services.
TECHNICALLY FEASIBLE
By virtue of engineering or spectrum usage, the proposed
placement for a small wireless facility or its design or site location
can be implemented without a reduction in the functionality of the
small wireless facility.
UTILITY POLE
A pole or similar structure that is or may be used in whole
or in part by or for wireline communications, electric distribution,
lighting, traffic control, signage, or a similar function, or for
the collocation of small wireless facilities; provided, however, such
term shall not include wireless support structures, electric transmission
structures, or breakaway poles owned by the State Highways and Transportation
Commission.
WIRELESS FACILITY
Equipment at a fixed location that enables wireless communications
between user equipment and a communications network, including equipment
associated with wireless communications and radio transceivers, antennas,
coaxial or fiber-optic cable, regular and backup power supplies, and
comparable equipment, regardless of technological configuration. The
term includes small wireless facilities. The term does not include:
1.
The structure or improvements on, under, or within which the
equipment is collocated;
2.
Coaxial or fiber-optic cable between wireless support structures
or utility poles;
3.
Coaxial or fiber-optic cable not directly associated with a
particular small wireless facility; or
4.
A wireline backhaul facility.
WIRELESS INFRASTRUCTURE PROVIDER
Any person, including a person authorized to provide telecommunications
service in the State, that builds or installs wireless communication
transmission equipment or wireless facilities but that is not a wireless
services provider.
WIRELESS PROVIDER
A wireless infrastructure provider or a wireless services
provider.
WIRELESS SERVICES
Any services using licensed or unlicensed spectrum, including
the use of wifi, whether at a fixed location or mobile, provided to
the public using wireless facilities.
WIRELESS SUPPORT STRUCTURE
An existing structure, such as a monopole or tower, whether
guyed or self-supporting, designed to support or capable of supporting
wireless facilities; an existing or proposed billboard; an existing
or proposed building; or other existing or proposed structure capable
of supporting wireless facilities, other than a structure designed
solely for the collocation of small wireless facilities. Such term
shall not include a utility pole.
WIRELINE BACKHAUL FACILITY
A physical transmission path, all or part of which is within
the right-of-way, used for the transport of communication data by
wire from a wireless facility to a network.
[Ord. No. 2021-3014, 1-26-2021]
A. The
provisions of this Section shall only apply to activities of a wireless
provider within the right-of-way to deploy small wireless facilities
and associated utility poles.
B. Subject
to the provisions of this Section and Sections 67.5110 to 67.5121,
RSMo., (while in effect), a wireless provider may, as a permitted
use not subject to zoning review or approval, collocate small wireless
facilities and install, maintain, modify, operate, and replace utility
poles along, across, upon, and under the right-of-way, except that
the placement in the right-of-way of new or modified utility poles
in single-family residential zoning districts or areas zoned as historic
as of August 28, 2018, shall remain subject to any applicable zoning
requirements that are consistent with Sections 67.5090 to 67.5103,
RSMo. Small wireless facilities collocated outside the right-of-way
in property not zoned primarily for single-family residential use
shall be classified as permitted uses and not subject to zoning review
or approval. Such small wireless facilities and utility poles shall
be installed and maintained as not to obstruct or hinder the usual
travel or public safety on such right-of-way or obstruct the legal
use of such right-of-way by the City, other governmental authorities
or other authorized right-of-way users.
C. A wireless
provider must obtain a permit from the City and with such reasonable
conditions as may be imposed by the City, for work in a right-of-way
that will involve excavation, affect traffic patterns, obstruct traffic
in the right-of-way, or materially impede the use of a sidewalk.
D. Each
new, replacement, or modified utility pole installed in the right-of-way
shall not exceed the greater of ten (10) feet in height above the
tallest existing utility pole in place as of January 1, 2019, located
within five hundred (500) feet of the new pole in the same right-of-way,
or fifty (50) feet above ground level. New small wireless facilities
in the right-of-way shall not extend more than ten (10) feet above
an existing utility pole in place as of August 28, 2018, or for small
wireless facilities on a new utility pole, above the height permitted
for a new utility pole. A new, modified, or replacement utility pole
that exceeds these height limits shall be subject to all applicable
zoning requirements that apply to other utility poles, to the extent
consistent with Sections 67.5090 to 67.5103, RSMo.
E. A wireless
provider shall be permitted to replace decorative poles when necessary
to collocate a small wireless facility, but any replacement pole shall
reasonably conform to the design aesthetics of the decorative pole
or poles being replaced, as determined by the Public Works Director.
F. Subject to Subsection
535.040(C), and except for facilities excluded from evaluation for effects on historic properties under 47 C.F.R. Section 1.1307(a)(4) of the Federal Communications Commission rules, a wireless provider must use appropriate and reasonable, technically feasible, non-discriminatory, and technologically neutral design or concealment measures in a Historic District. Any such design or concealment measures shall not have the effect of prohibiting any provider's technology, nor shall any such measures be considered a part of the small wireless facility for purposes of the size restrictions in the definition of small wireless facility.
G. Small
wireless facility collocations shall not interfere with or impair
the operation of existing utility facilities, or City, or third-party
attachments. A wireless provider shall repair, at the wireless provider's
expense, all damage to the right-of-way directly caused by the activities
of the wireless provider in the right-of-way and shall return the
right-of-way to its functional equivalence before the damage under
the competitively neutral, reasonable requirements and specifications
of the City. If the wireless provider fails to make the repairs required
by the City within a reasonable time after written notice, the City
may make those repairs and charge the wireless provider the reasonable,
documented cost of such repairs.
[Ord. No. 2021-3014, 1-26-2021]
A. The
provisions of this Section shall apply to the permitting of small
wireless facilities to be installed by or for a wireless provider
in or outside the right-of-way and to the permitting of the installation,
modification, and replacement of utility poles by a wireless provider
inside the right-of-way.
B. Wireless providers or their agents shall apply for and obtain a permit pursuant to applicable Code and this Chapter to collocate a small wireless facility or install a new, modified, or replacement utility pole associated with a small wireless facility as provided in Section
535.030 above. The City shall receive applications for, process, and issue such permits subject to the following requirements:
1. An applicant shall not be required to perform services or provide
goods unrelated to the permit, such as in-kind contributions to the
City, including reserving fiber, conduit, or pole space for the City;
2. An applicant shall not be required to provide more information to
obtain a permit than communications service providers that are not
wireless providers, provided that an applicant shall include construction
and stamped engineering drawings and information demonstrating compliance
with the criteria in Subdivision (9) of this Subsection and an attestation
that the small wireless facility complies with the volumetric limitations
in the definition of small wireless facility in 535.020 above;
3. An applicant shall not be required to place small wireless facilities
on any specific utility pole or category of poles or require multiple
antenna systems on a single utility pole;
4. There is no limit as to the placement of small wireless facilities
by minimum horizontal separation distances;
5. An applicant shall comply with reasonable, objective, and cost-effective
concealment or safety requirements as provided herein;
6. An applicant that is not a wireless services provider shall provide
evidence of agreements or plans demonstrating that the small wireless
facilities will be operational for use by a wireless services provider
within one (1) year after the permit issuance date, unless the City
and the applicant agree to extend this period or if delay is caused
by lack of commercial power or communications transport facilities
to the site and the applicant notifies the City thereof. An applicant
that is a wireless services provider shall provide the information
required by this Subdivision by attestation;
7. Within fifteen (15) days of receiving an application, the City shall
determine and notify the applicant, in writing, whether the application
is complete. If an application is incomplete, the City shall specifically
identify the missing information in writing. The processing deadline
in Subdivision (8) of this Subsection shall be tolled from the time
the City sends the notice of incompleteness to the time the applicant
provides the missing information. That processing deadline may also
be tolled by agreement of the applicant and the City;
8. An application for collocation shall be processed on a non-discriminatory
basis and deemed approved if the City fails to approve or deny the
application within forty-five (45) days of receipt of the application.
An application for installation of a new, modified, or replacement
utility pole associated with a small wireless facility shall be processed
on a non-discriminatory basis and deemed approved if the City fails
to approve or deny the application within sixty (60) days of receipt
of the application;
9. The City may deny a proposed collocation of a small wireless facility
or installation, modification, or replacement of a utility pole that
meets the requirements in Subsection 3 of Section 67.5112, RSMo.,
only if the action proposed in the application could reasonably be
expected to:
a. Materially interfere with the safe operation of traffic control equipment
or City-owned communications equipment;
b. Materially interfere with sight lines or clear zones for transportation,
pedestrians, or non-motorized vehicles;
c. Materially interfere with compliance with the Americans with Disabilities
Act, 42 U.S.C. Sections 12101 to 12213, or similar Federal or State
standards regarding pedestrian access or movement;
d. Materially obstruct or hinder the usual travel or public safety on
the right-of-way;
e. Materially obstruct the legal use of the right-of-way by the City,
a utility, or other third party;
f. Fail to comply with reasonable and non-discriminatory spacing requirements
of general application adopted by ordinance or regulations promulgated
by the State Highways and Transportation Commission that concern the
location of ground mounted equipment and new utility poles. Such spacing
requirements shall not prevent a wireless provider from serving any
location and shall include a waiver, zoning, or other process that
addresses wireless provider requests for exception or variance and
does not prohibit granting of such exceptions or variances;
g. Fail to comply with applicable codes, including nationally recognized
engineering standards for utility poles or wireless support structures;
h. Fail to comply with the reasonably objective and documented aesthetics
of a decorative pole and the applicant does not agree to pay to match
the applicable decorative elements;
i. Fail to comply with reasonable and non-discriminatory undergrounding
requirements contained in City ordinances as of January 1, 2018, or
subsequently enacted for new developments, that require all new utility
facilities in the area to be placed underground and prohibit the installation
of new or the modification of existing utility poles in a right-of-way
without prior approval, provided that such requirements include a
waiver or other process of addressing requests to install such utility
poles and do not prohibit the replacement or modification of existing
utility poles consistent with this Section or the provision of wireless
services.
10. The City shall document the complete basis for a denial in writing,
and send the documentation to the applicant with the communication
denying an application. The applicant may cure the deficiencies identified
by the City and resubmit the application within thirty (30) days of
the denial without paying an additional application fee. The City
shall approve or deny the revised application within thirty (30) days.
Any subsequent review shall be limited to the deficiencies cited in
the denial;
11. Consolidated Applications.
a. An applicant may file a consolidated application and receive a single
permit for the collocation of multiple small wireless facilities;
provided, however, the denial of one (1) or more small wireless facilities
in a consolidated application shall not delay processing of any other
small wireless facilities in the same batch; and
b. An application may include up to twenty (20) separate small wireless
facilities, provided that they are for the same or materially same
design of small wireless facility being collocated on the same or
materially the same type of utility pole or wireless support structure,
and geographically proximate. If the City receives individual applications
for approval of more than fifty (50) small wireless facilities or
consolidated applications for approval of more than seventy-five (75)
small wireless facilities within a fourteen (14) day period, whether
from a single applicant or multiple applicants, the City may, upon
its own request, obtain an automatic thirty (30) day extension for
any additional collocation or replacement or installation application
submitted during that fourteen(14) day period or in the fourteen (14)
day period immediately following the prior fourteen (14) day period.
The City shall promptly communicate its request to each affected applicant.
In rendering a decision on an application for multiple small wireless
facilities, the City may approve the application as to certain individual
small wireless facilities while denying it as to others based on applicable
requirements and standards, including those identified in this Subsection.
The City's denial of any individual small wireless facility or subset
of small wireless facilities within an application shall not be a
basis to deny the application as a whole;
12. Installation or collocation for which a permit is granted under this
Chapter shall be completed within one (1) year after the permit issuance
date unless the City and the applicant agree to extend this period,
or the applicant notifies the City that the delay is caused by a lack
of commercial power or communications transport facilities to the
site;
13. Approval of an application authorizes the applicant to:
a. Undertake the installation or collocation; and
b. Operate and maintain the small wireless facilities and any associated utility pole covered by the permit for a period of ten (10) years, which shall be renewed for equivalent durations so long as the facilities and poles remain in compliance with the criteria set forth in Subsection
(B)(9) of this Section, unless the applicant and the City agree to an extension term of less than ten (10) years. The provisions of this Subsection shall be subject to the right of the City to require, upon adequate notice and at the facility owner's own expense, relocation of facilities as may be needed in the interest of public safety and convenience, and the applicant's right to terminate at any time;
14. Abandoned small wireless facilities shall be removed as provided in Section
535.130 or an agreement, as applicable;
15. In determining whether sufficient capacity exists to accommodate
the attachment of a new small wireless facility, the City shall take
into account that any grant of access hereunder shall be subject to
a reservation to reclaim such space, when and if needed, to meet a
core utility purpose or documented plan projected at the time of the
application pursuant to a bona fide development plan; and
16. In emergency circumstances that result from a natural disaster or
accident, the City may require the owner or operator of a wireless
facility to immediately remove such facility if the wireless facility
is obstructing traffic or causing a hazard on the City's roadway,
at the expense of the owner or operator of the wireless facility.
In the event that the owner or operator of the wireless facility is
unable to immediately remove the wireless facility, the City may remove
the wireless facility from the roadway or other position that renders
the wireless facility hazardous. Under these emergency circumstances,
the City shall not be liable for any damage caused by removing the
wireless facility and may charge the owner or operator of the wireless
facility the City's reasonable expenses incurred in removing the wireless
facility.
C. A permit
is not required for:
1. Routine maintenance on previously permitted small wireless facilities;
2. The replacement of small wireless facilities with small wireless
facilities that are the same or smaller in size, weight, and height;
or
3. The installation, placement, maintenance, operation, or replacement
of micro wireless facilities that are strung on cables between utility
poles, in compliance with applicable codes.
For work described in Subdivisions (1) and (2) of this Subsection
that involves different equipment than that being replaced, the wireless
services provider shall submit a description of such new equipment
so that the City may maintain an accurate inventory of the small wireless
facilities at that location.
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For work described in Subdivisions (1), (2) and (3) of this
Subsection, the wireless provider shall provide at least five (5)
business days' notice by e-mail to the Public Works Director for any
work that may affect traffic patterns, obstruct traffic in the right-of-way,
or materially impede the use of a sidewalk. All work that may affect
traffic patterns or, obstruct traffic in the right-of-way shall require
an approved traffic management plan and must adhere to the Manual
on Uniform Traffic Control Devices (MUTCD) for traffic control in
a work zone. In cases of emergency, the wireless provider may proceed
with required work without providing at least five (5) business days'
notice; however, all emergency work shall be reported as soon as reasonably
practicable by e-mail to the Public Works Director. All emergency
work occurring outside of business hours shall be immediately reported
to an on-call public works employee. All emergency work which will
or may affect traffic upon a road or vehicular access to a road must
be coordinated with the City's Police Department.
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4. No approval for the installation, placement, maintenance, or operation
of a small wireless facility under this Chapter shall be construed
to confer authorization for the provision of cable television service,
or installation, placement, maintenance, or operation of a wireline
backhaul facility or communications facility, other than a small wireless
facility, in the right-of-way.
5. If applicable, the municipal electric utility shall not require an
application for the installation, placement, maintenance, operation,
or replacement of micro wireless facilities that are strung on cables
between utility poles, in compliance with applicable codes.
[Ord. No. 2021-3014, 1-26-2021]
A. This
Section only applies to collocations on City poles and wireless support
structures that are located outside the right-of-way.
B. Subject to Subsection
(C) of this Section, the City shall authorize the collocation of small wireless facilities on City wireless support structures and poles to the same extent, if any, that it permits access to such structures for other commercial projects or uses. Such collocations shall be subject to reasonable and non-discriminatory rates, fees, and terms as provided in an agreement between the City, or its agent, and the wireless provider.
C. The
City shall not enter into an exclusive agreement with a wireless provider
concerning City poles or wireless support structures, including stadiums
and enclosed arenas, unless the agreement meets the following requirements:
1. The wireless provider provides service using a shared network of
wireless facilities that it makes available for access by other wireless
providers, on reasonable and non-discriminatory rates and terms that
shall include use of the entire shared network, as to itself, an affiliate,
or any other entity; or
2. The wireless provider allows other wireless providers to collocate
small wireless facilities, on reasonable and non-discriminatory rates
and terms, as to itself, an affiliate, or any other entity.
D. When
determining whether a rate, fee, or term is reasonable and non-discriminatory
for the purposes of this Section, consideration may be given to any
relevant facts, including alternative financial or service remuneration,
characteristics of the proposed equipment or installation, structural
limitations, or other commercial or unique features or components.
[Ord. No. 2021-3014, 1-26-2021]
A. The
provisions of this Section apply to collocations on City poles within
the right-of-way by a wireless provider.
B. Neither
the City nor any person owning, managing, or controlling City poles
in the right-of-way shall enter into an exclusive arrangement with
any person for the right to attach to such poles. A person who purchases
or otherwise acquires a City pole is subject to the requirements of
this Section.
C. The City shall allow the collocation of small wireless facilities on its poles using the process set forth in Section
535.040.
D. An
application shall include sealed engineering and construction drawings,
as well as plans and detailed cost estimates for any make-ready work
as needed, for which the applicant shall be solely responsible.
E. Make-ready
work shall be addressed as follows, unless the City (or its successor)
and applicant agree to different terms in a pole attachment agreement:
1. The rates, fees, and terms and conditions for the make-ready work
to collocate on a City pole shall be non-discriminatory, competitively
neutral, and commercially reasonable, and shall comply with Sections
67.5110 to 67.5121, RSMo.;
2. Unless the City allows the applicant to perform any make-ready work,
the City shall provide a good faith estimate for any make-ready work
necessary to enable the pole to support the requested collocation
by a wireless provider, including pole replacement if necessary, within
sixty (60) days after receipt of a complete application. If applicable,
make-ready work, including any pole replacement, shall be completed
by the City within sixty (60) days of written acceptance of the good
faith estimate and advance payment by the applicant. The City may
require replacement of its pole on a non-discriminatory basis for
reasons of safety and reliability, including a demonstration that
the collocation would make the pole structurally unsound, including,
but not limited to, if the collocation would cause a utility pole
to fail a crash test; and
3. The person owning, managing, or controlling the City pole shall not
require more make-ready work than required to meet applicable codes
or industry standards. Fees for make-ready work shall not include
costs related to preexisting or prior damage or non-compliance unless
the City had determined, prior to the filing of the application, to
permanently abandon and not repair or replace the structure. Fees
for make-ready work, including any pole replacement, shall not exceed
actual costs or the amount charged to other communications service
providers for similar work, and shall not include third-party fees,
charges, or expenses, except for amounts charged by licensed contractors
actually performing the make-ready work.
F. When
a small wireless facility is located in the right-of-way of the State
Highway System, equipment and facilities directly associated with
a particular small wireless facility, including coaxial and fiber
optic cable, conduit, and ground mounted equipment, shall remain in
the utility corridor except as needed to reach a City or utility pole
in the right-of-way but outside the utility corridor in which the
small wireless facility is collocated.
[Ord. No. 2021-3014, 1-26-2021]
A. This
Section governs the rates and fees to collocate small wireless facilities
and the rates and fees for the placement of utility poles, but does
not limit the City's ability to recover specific removal costs from
the attaching wireless provider for abandoned structures or other
rates or fees allowed under Sections 67.5110 to 67.5121, RSMo. The
rates to collocate on City poles shall be non-discriminatory regardless
of the services provided by the collocating applicant.
B. The
City shall not require a wireless provider to pay any rates, fees,
or compensation to the authority or other person other than what is
expressly authorized by Sections 67.5110 to 67.5121, RSMo., (while
in effect) for the use and occupancy of a right-of-way, for collocation
of small wireless facilities on utility poles in the right-of-way,
or for the installation, maintenance, modification, operation, and
replacement of utility poles in the right-of-way.
C. Application
fees shall be as follows:
1. The total fee for any application under Subsection
(B) of Section
535.040 for collocation of small wireless facilities on existing City poles shall be one hundred dollars ($100.00) per small wireless facility. An applicant filing a consolidated application under Subdivision (11) of Subsection
(B) of Section
535.040 shall pay one hundred dollars ($100.00) per small wireless facility included in the consolidated application; and
2. The total application fees for the installation, modification, or
replacement of a pole and the collocation of an associated small wireless
facility shall be five hundred dollars ($500.00) per pole.
D. Rates
And Fees.
1. The rate for collocation of a small wireless facility to a City pole
shall be one hundred fifty dollars ($150.00) per pole per year.
2. The City shall not charge a wireless provider any fee, tax other
than a tax authorized by Subdivision (3) below, or other charge, or
require any other form of payment or compensation, to locate a wireless
facility or wireless support structure on privately-owned property,
or on a wireless support structure not owned by the City.
3. The City shall not demand any fees, rentals, licenses, charges, payments,
or assessments from any applicant or wireless provider for, or in
any way relating to or arising from, the construction, deployment,
installation, mounting, modification, operation, use, replacement,
maintenance, or repair of small wireless facilities or utility poles,
if not allowed by Section 67.5116, RSMo., (while in effect).
[Ord. No. 2021-3014, 1-26-2021]
A. Subject
to the provisions of Sections 67.5110 to 67.5121, RSMo., (while in
effect) and applicable Federal law, the City shall continue to exercise
zoning, land use, planning, and permitting authority within its territorial
boundaries, including with respect to wireless support structures
and utility poles, except that the City shall not have or exercise
any jurisdiction or authority over the design, engineering, construction,
installation, or operation of any small wireless facility located
in an interior structure or upon the site of any campus, stadium,
or athletic facility not owned or controlled by the City, other than
to comply with applicable codes.
B. Nothing
in this Chapter limits the ability of the City to require an applicant
to obtain one (1) or more permits of general applicability that do
not apply exclusively to wireless facilities in addition to the permit
required by this Chapter.
C. Each
applicant shall comply with all applicable City ordinances, resolutions,
rules and regulations heretofore and hereafter adopted or established,
to the extent that they are consistent with State and Federal law.
D. Nothing
herein shall be deemed to relieve an applicant of the provisions of
an existing franchise, license or other agreement or permit.
E. The
exercise of one (1) remedy under this Chapter shall not foreclose
use of another, nor shall the exercise of a remedy or the payment
of damages or penalties relieve an applicant of its obligations to
comply with its permits. Remedies may be used alone or in combination;
in addition, the City may exercise any rights it has at law or equity.
F. The
City hereby reserves to itself the right to intervene in any suit,
action or proceeding involving any provisions of this Chapter.
G. No
applicant shall be relieved of its obligation to comply with any of
the provisions of this Chapter by reason of any failure of the City
to enforce prompt compliance.
H. The
provisions hereof shall specifically apply to any lands or property
annexed as of the date of such annexation.
I. Nothing
contained herein shall in any manner be deemed or construed to alter,
modify, supersede, supplement or otherwise nullify any other ordinances
of the City or requirements thereof, whether or not relating to or
in any manner connected with the subject written hereof, unless expressly
provided otherwise herein or hereafter.
J. The
use of the right-of-way under this Chapter is subject to the police
powers of the City to adopt and enforce ordinances necessary to the
health, safety and welfare of the public. A person using the right-of-way
pursuant to this Chapter shall comply with all applicable general
laws and ordinances enacted by the City pursuant to its police powers.
K. In
addition to the requirements set forth in this Chapter, the City may
adopt such orders, rules and regulations which are reasonably necessary
to accomplish the purposes of this Chapter and are consistent herewith.
L. In
no event shall any language or requirement in this Chapter be construed
as or constitute a waiver or limitation of City's defenses with regard
to sovereign immunity, governmental immunity, or official immunity
under Federal or State constitutions, States, and/or laws.
[Ord. No. 2021-3014, 1-26-2021]
A. This Chapter
535 shall not nullify, modify, amend, or prohibit a mutual agreement between the City and a wireless provider made prior to August 28, 2018, but an agreement that does not fully comply with Sections 67.5110 to 67.5121, RSMo., (while in effect) shall apply only to small wireless facilities and utility poles that were installed or approved for installation before August 28, 2018, subject to any termination provisions in the agreement.
B. Such
an agreement shall not be renewed, extended, or made to apply to any
small wireless facility or utility pole installed or approved for
installation after August 28, 2018, unless it is modified to fully
comply with Sections 67.5110 to 67.5121, RSMo., (while in effect).
In the absence of an agreement, and until such a compliant agreement
or ordinance is entered or adopted, small wireless facilities and
utility poles that become operational or were constructed before August
28, 2018, may remain installed and be operated under the requirements
of Sections 67.5110 to 67.5121, RSMo., (while in effect).
[Ord. No. 2021-3014, 1-26-2021]
A. A wireless
provider shall indemnify and hold the City and its elected and appointed
officers and employees harmless against any damage or personal injury
caused by the negligence of the wireless provider or its employees,
agents, or contractors.
B. A wireless
provider shall have in effect insurance coverage consistent with Section
67.5121.2, RSMo., sufficient to protect the City and its officers
and employees from any damage or personal injury caused by the negligence
of the wireless provider or its employees, agents, or contractors.
A self-insured wireless provider does not need to name the City or
its officers and employees as additional insured. A wireless provider
shall furnish proof of insurance, if applicable, prior to the effective
date of any permit issued for a small wireless facility.
C. The
bonding requirements for small wireless facilities shall be one thousand
five hundred dollars ($1,500.00) per small wireless facility. For
wireless providers with multiple small wireless facilities within
the City, the total bond amount across all facilities shall be seventy-five
thousand dollars ($75,000.00), which amount may be combined into one
(1) bond instrument. The purpose of such bonds shall be to:
1. Provide for the removal of abandoned or improperly maintained small
wireless facilities, including those that an authority determines
need to be removed to protect public health, safety, or welfare;
2. Restore the right-of-way in connection with removals under Section
67.5113, RSMo.;
3. Recoup rates or fees that have not been paid by a wireless provider
in over twelve (12) months, so long as the wireless provider has received
reasonable notice from the City of any non-compliance listed above
and been given an opportunity to cure.
D. Applicants
that have at least twenty-five million dollars ($25,000,000.00) in
assets in the State and do not have a history of permitting non-compliance
within the City shall, under Section 67.1830, RSMo., be exempt from
the insurance and bonding requirements otherwise authorized by this
Chapter.
E. Any
contractor, subcontractor, or wireless infrastructure provider shall
be under contract with a wireless services provider to perform work
in the right-of-way related to small wireless facilities or utility
poles, and such entities shall be properly licensed under the laws
of the State and all applicable City ordinances. Each contracted entity
shall have the same obligations with respect to his or her work as
a wireless services provider would have under this Chapter, under Sections
67.5110 to 67.5121, RSMo., and other applicable laws if the work were
performed by a wireless services provider. The wireless services provider
shall be responsible for ensuring that the work of such contracted
entities is performed consistently with the wireless services provider's
permits and applicable laws relating to the deployment of small wireless
facilities and utility poles, and responsible for promptly correcting
acts or omissions by such contracted entity.
[Ord. No. 2021-3014, 1-26-2021]
A. Whenever,
by reason of changes in the grade or widening of a street or in the
location or manner of constructing a water pipe, drainage channel,
sewer, or other City-owned underground or above ground structure,
it is deemed necessary by the City, in the interest of public safety
and convenience, to move, alter, or change the location of underground
or above ground facilities of a wireless provider, the wireless provider
shall relocate such facilities, on alternative right-of-way provided
by the City, if available, upon adequate notice, in writing, by the
City, without claim for reimbursement or damages against the City.
B. The
construction, operation, maintenance, and repair of small wireless
facilities shall be in accordance with applicable codes and relevant
City ordinances pertaining to construction, operation, maintenance,
and repair inside or outside the right-of-way.
C. Small
wireless facilities will not materially interfere with the following:
1. The safe operation of traffic control equipment or authority owned
communications equipment; or
2. Sight lines or clear zones for transportation, pedestrians, or non-motorized
vehicles; or
3. Compliance with compliance with the Americans with Disabilities Act,
42 U.S.C. Sections 12101 to 12213, or similar Federal or State standards
regarding pedestrian access or movement.
D. Small
wireless facility collocations in the right-of-way completed on or
after August 28, 2018, shall not interfere with or impair the operation
of existing utility facilities, or authority or third-party attachments.
E. Any
and all rights-of-way disturbed or damaged during the construction
of small wireless facilities shall be promptly repaired or replaced
by the applicant, at the applicant's expense, to its functional equivalence
as existed before the disturbance or damage.
F. All
small cell wireless facilities and associated poles owned, leased,
or controlled by the wireless provider shall be maintained by and
at the expense of the wireless provider in good and clean condition
that includes but is not limited to being free of rust, peeling paint,
and graffiti.
G. For
metal poles used for a small cell wireless facility, all cabling shall
be run inside the pole to the maximum extent technically feasible.
H. No
generators shall be allowed at any small cell wireless facility or
associated pole.
I. Unless
otherwise preempted by Federal law or regulation, small cell wireless
facilities and associated poles:
1. Shall not be lighted nor contain any markings, except for ownership
and contact information to be no larger than two (2) inches in height
unless required by applicable Federal or State agency; and
2. Commercial advertising shall not be allowed.
J. Any
wireless infrastructure provider, contractor or subcontractor must
be properly licensed under laws of the State and all applicable local
ordinances.
K. Each
wireless infrastructure provider, contractor or subcontractor shall
have the same obligations with respect to its work as wireless services
provider would have hereunder and applicable law if the work were
performed by the wireless services provider. The wireless services
provider shall be responsible for ensuring that the work of contracted
entities is performed consistent with their permits and applicable
law, and shall be responsible for promptly correcting any acts or
omissions by such contracted entity.
[Ord. No. 2021-3014, 1-26-2021]
A. All
applications for a permit shall be filed with the City's Public Works
Department. The Public Works Director is authorized to develop an
application for use by wireless service providers. An application
for a permit shall include, at minimum, the following:
1. Construction and stamped engineering drawings by a Missouri licensed engineer which demonstrate compliance with the criteria in Section
535.040(B)(9);
2. An attestation that the small wireless facilities comply with the volumetric limitations in the definition of small wireless facility in Section
535.020;
3. Information on the height of any new, replacement, or modified utility
pole;
4. Applicable indemnity, insurance, and performance bond information
required under City Ordinances;
5. An applicant that is not a wireless services provider must provide
evidence of agreements or plans demonstrating that the small wireless
facilities will be operational for use by a wireless services provider
within one (1) year after the permit issuance date, unless the City
and the applicant agree to extend this period or if the applicant
notifies the City the delay is caused by lack of commercial power
or communications transport facilities. An applicant that is a wireless
services provider must provide this information by attestation;
6. Plans and detailed cost estimates for any make-ready work as needed.
The applicant shall be solely responsible for the cost of any make-ready
work; and
7. Projected commencement and termination dates for the permit, or if
such dates are unknown at the time the permit is issued, a provision
requiring the permit holder to provide the Director of Public Works
with reasonable advance notice of such dates once they are determined.
[Ord. No. 2021-3014, 1-26-2021]
A. The
City, through its Public Works Director, may request, in writing,
that an owner of a small wireless facility confirm with the City the
continued use or abandonment of a small wireless facility or associated
utility pole. If the owner fails to respond to the written request
within sixty (60) days of receipt with confirmation that such facilities
either remain in use or have been abandoned, the wireless provider
shall be deemed to have abandoned such small wireless facility and/or
associated pole and the City will notify the owner of any such decision,
in writing.
B. The
City, upon such terms as it may impose, may give a wireless provider
written permission to abandon, without removing, any small wireless
facility, or portion thereof, directly constructed, operated or maintained.
Unless such permission is granted or unless otherwise provided in
this Chapter, a wireless provider shall remove within a reasonable
time the abandoned small wireless facility and associated pole and
shall restore, using prudent construction standards, any affected
right-of-way to their functional equivalence at the time such system
was installed and in accordance with the then adopted engineering
standards, so as not to impair their usefulness. In removing its facilities
and equipment, a wireless provider shall refill, at its own expense,
any excavation necessarily made by it and shall leave to return the
right-of-way to its functional equivalence prior to such removal without
materially interfering with any authority pole or other utility wires,
poles or attachments. The City shall have the right to inspect and
approve the condition of the right-of-way, attachments and poles prior
to and after removal. The liability, indemnity and insurance provisions
of this Chapter and any bonding provided shall continue in full force
and effect during the period of removal and until full compliance
by a wireless provider with the terms and conditions of this Chapter.
C. Upon abandonment of any small wireless facility, wireless support structure, or associated pole in place as approved by the City pursuant to Subsection
(D), below, a wireless provider, if required by the City, shall submit to the City a written instrument, satisfactory in form to the City, transferring to the City the ownership of such poles or equipment allowed to remain within the right-of-way.
D. Upon
written approval by City, a wireless provider may abandon underground
portions of a small wireless facility in place so long as it does
not materially interfere with the use of the right-of-way or with
the use thereof by any public utility, cable operator or other person.
E. If
a wireless provider defaults under any material provision of this
Chapter and such default is not cured within sixty (60) days following
delivery of written notice by the City to the wireless provider of
its default, the City shall maintain all it rights and remedies, at
law and in equity, that are consistent with applicable law, including
Sections 67.5110 to 67.5122, RSMo.
[Ord. No. 2021-3014, 1-26-2021]
This Chapter
535 shall expire at such time that Sections 67.5110 to 67.5122, RSMo., expire, except that for small wireless facilities already permitted or collocated on City poles prior to such date, the rate set forth in Section
535.060 for collocation of small wireless facilities on City poles shall remain effective for the duration of the permit authorizing the collocation.
[Ord. No. 2021-3014, 1-26-2021]
If any provision of this Chapter or the application thereof
to anyone or to any circumstance is held invalid, the remainder of
those Sections and the application of such provisions to others or
other circumstances shall not be affected thereby.