[Ord. No. 1748, 1-16-2019]
A.
Purpose. The purpose of this Chapter is to regulate the collocation
of small wireless facilities and the installation, modification or
replacement of utility poles in order to protect the health, safety
and welfare of the public, while at the same time not unreasonably
interfering with the development of the competitive wireless telecommunications
marketplace in the City of Cottleville.
B.
Applicability; Preemption. Notwithstanding any ordinance to the contrary,
the procedures and regulations set forth in this Chapter shall be
applicable to all small wireless facilities and utility poles existing
or installed, modified, replaced, or collocated after the effective
date of this Chapter, January 16, 2019, to the fullest extent permitted
by law. 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 portion of this Chapter is now
or in the future superseded or preempted by Federal or State law or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. 1748, 1-16-2019]
As used in this Chapter, the following terms shall have the
meanings and usages indicated herein:
Any antenna apparatus and associated communications equipment
that transmits or receives electromagnetic radio frequency signals
used in the provision of wireless services.
An apparatus designed for the purpose of emitting radio-frequency
(RF) radiation, to be operated or operating from a fixed location
pursuant to Federal Communications Commission authorization, for the
provision of personal wireless service and any commingled information
services.
Uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to such codes, including Chapters 500 and 505 of the Municipal Code, as amended, 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.
Any person who submits an application and is a wireless provider.
A request submitted by an applicant to a City 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.
A utility pole owned, managed or operated by or on behalf
of the City, but such term shall not include municipal electric utility
distribution poles or facilities.
A wireless support structure owned, managed or operated by
or on behalf of the City.
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.
Equipment, switches, wiring, cabling, power sources, shelters
or cabinets associated with an antenna apparatus, located at the same
fixed location as the antenna apparatus, and, when collocated on a
utility pole or wireless support structure, is mounted or installed
at the same time as such antenna apparatus.
A City pole that is specially designed and placed for aesthetic
purposes.
A one-time, non-recurring charge.
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 in the City by the Federal agency to list properties
and determine their eligibility for the National Register, in accordance
with Section VI.D.1.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.
A small wireless facility that meets the following qualifications:
A written authorization required by the City to perform an
action or initiate, continue, or complete a project, and which is
issued or approved by a City employee, officer, or body that is authorized
to issue or approve such written authorizations.
A recurring charge.
This term includes:
The placement of a new or different small wireless facility at the location previously occupied by a preexisting small wireless facility, where such new or different small wireless facility is of equal or lesser proportions and of equal or lesser height than the preexisting small wireless facility such new or different small wireless facility is replacing, or such other height that would not constitute a substantial modification, as defined in Section 405.020, to an existing wireless support structure or base station, as those terms are defined in Section 405.020. This term includes the associated removal of the preexisting small wireless facility or utility pole associated with a small wireless facility.
The placement of a new or different utility pole associated
with a small wireless facility at the location previously occupied
by a preexisting utility pole, where such new or different utility
pole is owned and operated by the same person(s) that owned and operated
the preexisting utility pole, and where such new or different utility
pole is of equal or lesser proportions and of equal or lesser height
than the preexisting utility pole such new or different utility pole
is replacing. This term includes the associated removal of the preexisting
utility pole.
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.
A wireless facility that meets each of the following qualifications:
Each wireless provider's antenna could fit within an enclosure
of no more than six (6) cubic feet in volume and each antenna apparatus,
exclusive of communications equipment, is no more than three (3) cubic
feet in volume;
All other equipment, excluding the antenna apparatus, 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;
The facility does not require antenna structure registration under 47 CFR Chapter I; and
The facility does not result in human exposure to radio-frequency
radiation in excess of the applicable safety standards specified in
Rule 1.1307(b).
|
The following types of associated ancillary equipment shall
not be included in the calculation of equipment volume: electric meter,
concealment elements, telecommunications demarcation box, and grounding
equipment.
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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.
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.
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:
The structure or improvements on, under, or within which the
equipment is collocated;
Coaxial or fiber-optic cable between wireless support structures
or utility poles;
Coaxial or fiber-optic cable not directly associated with a
particular small wireless facility; or
A wireline backhaul facility.
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.
A wireless infrastructure provider or a wireless services
provider.
Any services using licensed or unlicensed spectrum, including
the use of Wi-Fi, whether at a fixed location or mobile, provided
to the public using wireless facilities.
A person who provides wireless services.
An existing structure, such as a monopole, tower, billboard
or building capable of supporting wireless facilities, other than
a structure designed solely for the collocation of small wireless
facilities. This term includes any disguised support structure. This
term does not encompass utility poles.
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. 1748, 1-16-2019]
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.
1.
The City will not enter into an exclusive arrangement with a
wireless provider or any other person for use or management of the
right-of-way for the collocation of small wireless facilities or the
installation, operation, marketing, modification, maintenance, management,
or replacement of utility poles.
2.
No wireless provider shall have the power of eminent domain
with respect to small wireless facilities.
3.
Nothing in this Chapter will limit the ability of the City to
require an applicant to obtain one (1) or more permits of general
applicability in addition to the permit required by this Chapter in
order to collocate a small wireless facility or install a new, modified,
or replacement utility pole associated with a small wireless facility.
4.
The City may require a permit under this Chapter, with reasonable
conditions, for work in the 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, 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.
[Ord. No. 1748, 1-16-2019]
A.
Inside The Right-Of-Way. Any person desiring to construct or install
small wireless facilities or utility poles within the right-of-way
must first apply for and obtain a small wireless facilities permit
from the City.
1.
The collocation of small wireless facilities and the installation,
maintenance, modification, operation, and replacement of utility poles
along, across, upon, and under the right-of-way is a permitted use
not subject to zoning review or approval.
2.
The placement of new or modified utility poles in single-family
residential areas or in areas zoned as historic as of August 28, 2018,
remains subject to any applicable zoning requirements.
B.
Outside The Right-Of-Way.
1.
The collocation of small wireless facilities in property not
zoned for single-family residential use is a permitted use and not
subject to zoning review or approval.
2.
The collocation of small wireless facilities upon or immediately adjacent to an existing wireless support structure or utility pole shall be a conditional use in property zoned for single-family residential use subject to the procedures set forth in Section 400.140 of this Code.
3.
The City will allow collocation of small wireless facilities
on City wireless support structures and City poles to the same extent,
if any, that it allows access to such structures for other commercial
projects or uses. Any such collocations shall be subject to reasonable
and non-discriminatory rates, fees, and terms as provided in an agreement
between the City and the wireless provider, and not otherwise governed
by this Chapter.
C.
Small Wireless Facilities And Utility Poles.
1.
Small wireless facilities and utility poles shall be installed
and maintained so as not to obstruct or hinder the usual travel or
public safety on the right-of-way or obstruct the legal use of the
right-of-way by the City or other authorized right-of-way users.
2.
Each new, replacement, or modified utility pole installed in
the right-of-way shall not exceed the greater of: (i) ten (10) feet
in height above the tallest existing utility pole in place as of January
1, 2109, located within five hundred (500) feet of the new utility
pole in the same right-of-way, or (ii) fifty (50) feet above ground
level.
3.
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.
4.
Small wireless facilities on a new utility pole shall not extend above the height permitted for a new utility pole in Subsection (2) above.
5.
A new, modified, or replacement utility pole that exceeds these
height limits shall be subject to any applicable zoning requirements
that apply to other utility poles.
6.
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.
7.
The City may require replacement of a City pole, prior to allowing
collocation thereon, on a non-discriminatory basis, based on reasons
of safety and reliability, including a demonstration that the collocation
would make the City pole structurally unsound.
[Ord. No. 1748, 1-16-2019]
A.
Application Content. Applications for small wireless facilities permits shall be filed in the office of the Director of Public Works. The application shall be accompanied by the fee set forth in Subsection (B) of this Section, payable to the City to cover the costs of administrative expenses associated with the review of the application. No part of such fee shall be returnable to the applicant. Applications shall be submitted on forms prepared by the Director of Public Works and shall contain the following information:
1.
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 service
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 service provider shall provide this
information by attestation;
2.
Construction and engineering drawings;
3.
An attestation that the small wireless facility complies with
the volumetric limitations in the definition of small wireless facility;
4.
Applicable indemnity, insurance or performance bond information
required by law or City ordinance;
5.
The projected commencement and termination dates 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;
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;
7.
A description of the small wireless facility for which a permit
is being sought and a description of the modification or collocation
proposed;
8.
Proof of liability insurance coverage against any damage or
personal injury caused by the negligence of the applicant or its employees,
agents or contractors. Such insurance coverage must be with companies
licensed to do business in the State of Missouri and rated no less
than AA by Best or equivalent and must be maintained in force for
the duration of the period during which the applicant holds the permit
and for the all applicable statute of limitations periods. Certificates
evidencing such insurance shall be furnished to the City prior to
the issuance of the permit and must state, "The City of Cottleville
is an additional insured," on a primary and non-contributory basis.
The Certificate Holder shall be listed as "City of Cottleville, Attention
City Clerk, 5490 Fifth Street, Cottleville, MO 63304" and the certificate
shall bear an endorsement precluding cancellation of or change in
coverage without at least thirty (30) days' written notice to
the City. In the alterative of such insurance coverage, an applicant
must demonstrate that it has in effect a comparable self-insurance
program; and
9.
Any other information necessary to show compliance with the
requirements of this Chapter.
B.
Application Fee.
1.
The total fee for an application for the collocation of a small
wireless facility on an existing City pole is one hundred dollars
($100.00) per small wireless facility.
2.
An applicant filing a consolidated application shall pay one
hundred dollars ($100.00) per small wireless facility included in
the consolidated application.
3.
The total fee for an application for the installation, modification,
or replacement of a utility pole and the collocation of an associated
small wireless facility is five hundred dollars ($500.00) per utility
pole.
4.
The rate for collocation of a small wireless facility to a City
pole is one hundred fifty dollars ($150.00) per City pole per year.
C.
Consolidated Applications.
1.
Any applicant seeking to collocate small wireless facilities
within the City may file a consolidated application and receive a
single permit for the collocation of multiple small wireless facilities.
2.
A consolidated 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.
3.
The City may approve the application as to certain individual
small wireless facilities while denying it as to others.
D.
Application Procedures — Collocation Of A Small Wireless Facility.
1.
Within forty-five (45) calendar days of receiving an application
for a small wireless facilities permit, or within such additional
time as may be agreed to by the applicant and the City, the Director
of Public Works shall:
a.
Review the application for completion and for its conformity
with all the applicable standards set forth in this Chapter.
(i)
For purposes of this Section, an application is
deemed to be complete unless the Director of Public Works notifies
the applicant, in writing, within fifteen (15) calendar days of submission
of the application, of the specific deficiencies in the application
which, if cured, would make the application complete. This notice
must specify the Municipal Code provision, ordinance, application
instruction, or other publicly-stated procedure that requires the
information to be submitted. All deadlines for action in this Section
shall be tolled from the time the Director of Public Works sends such
notice to the applicant to the time the applicant provides the missing
information.
(ii)
Upon receipt of a timely written notice that an
application is deficient, an applicant may take fifteen (15) calendar
days from receiving such notice to cure the deficiencies.
(iii)
After the applicant makes a supplemental submission
in response to this notice, the Director of Public Works must notify
the applicant within ten (10) calendar days if the supplemental submission
did not provide the information identified in the original notice
of incompleteness. Missing documents or information that is not delineated
in the original notice of incompleteness may not be delineated in
this subsequent notice. All deadlines for action in this Section shall
be tolled from the time the Director of Public Works sends such notice
to the applicant to the time the applicant provides the missing information.
(iv)
If the applicant cures the deficiencies within
said period of fifteen (15) calendar days from receipt of the initial
notice of incompleteness, the application shall be reviewed and finally
acted upon within forty-five (45) calendar days from the initial date
the application was received.
(v)
If the applicant requires a period of time beyond
fifteen (15) calendar days to cure the specific deficiencies, the
forty-five (45) calendar day deadline for the City to review the application,
make the final decision, and advise the applicant, in writing, of
its final decision, shall be extended by the same period of time.
(vi)
An application for a small wireless facility permit
shall be deemed approved if the Director of Public Works does not
review and finally act upon the application within forty-five (45)
calendar days of receiving the application, or within such additional
time as may be mutually agreed to by the applicant and the City.
(vii)
Applications for building permits, electrical
permits, road closure permits and/or architectural or engineering
permits shall be considered, and final decisions rendered, in accordance
with the time frames set forth in this Section.
(viii)
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 to each and any affected applicant, 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.
b.
Make its final decision to approve or disapprove the application;
and
c.
Advise the applicant, in writing, of its final decision.
2.
The City shall document the complete basis for a denial, in
writing, and send the documentation to the applicant on or before
the day the City denies 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 and any subsequent review shall be limited to the
deficiencies cited in the denial.
3.
A party aggrieved by the final action of the Director of Public
Works, either by the Director of Public Works affirmatively denying
an application under the provisions of this Section or by the Director
of Public Works' inaction, may bring an action for review in
any court of competent jurisdiction within the State of Missouri.
E.
Application Procedures — Installation Of A New, Modified, Or
Replacement Utility Pole.
1.
Within sixty (60) calendar days of receiving an application
for a permit for a new, modified, or replacement utility pole, or
within such additional time as may be agreed to by the applicant and
the City, the Director of Public Works shall:
a.
Review the application for completion and for its conformity
with all the applicable standards set forth in this Chapter.
(i)
For purposes of this Section, an application is
deemed to be complete unless the Director of Public Works notifies
the applicant, in writing, within fifteen (15) calendar days of submission
of the application, of the specific deficiencies in the application
which, if cured, would make the application complete. This notice
must specify the Municipal Code provision, ordinance, application
instruction, or other publicly-stated procedure that requires the
information to be submitted. All deadlines for action in this Section
shall be tolled from the time the Director of Public Works sends such
notice to the applicant to the time the applicant provides the missing
information.
(ii)
Upon receipt of a timely written notice that an
application is deficient, an applicant may take fifteen (15) calendar
days from receiving such notice to cure the deficiencies.
(iii)
After the applicant makes a supplemental submission
in response to this notice, the Director of Public Works must notify
the applicant within ten (10) calendar days if the supplemental submission
did not provide the information identified in the original notice
of incompleteness. Missing documents or information that is not delineated
in the original notice of incompleteness may not be delineated in
this subsequent notice. All deadlines for action in this Section shall
be tolled from the time the Director of Public Works sends such notice
to the applicant to the time the applicant provides the missing information.
(iv)
If the applicant cures the deficiencies within
said period of fifteen (15) calendar days from receipt of the initial
notice of incompleteness, the application shall be reviewed and finally
acted upon within sixty (60) calendar days from the initial date the
application was received.
(v)
If the applicant requires a period of time beyond
fifteen (15) calendar days to cure the specific deficiencies, the
sixty (60) calendar day deadline for the City to review the application,
make the final decision, and advise the applicant, in writing, of
its final decision, shall be extended by the same period of time.
(vi)
An application shall be deemed approved if the
Director of Public Works does not review and finally act upon the
application within sixty (60) calendar days of receiving the application,
or within such additional time as may be mutually agreed to by the
applicant and the City.
(vii)
Applications for building permits, electrical
permits, road closure permits and/or architectural or engineering
permits shall be considered, and final decisions rendered, in accordance
with the time frames set forth in this Section.
b.
Make its final decision to approve or disapprove the application;
and
c.
Advise the applicant, in writing, of its final decision.
2.
The City shall document the complete basis for a denial, in
writing, and send the documentation to the applicant on or before
the day the City denies 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 and any subsequent review shall be limited to the
deficiencies cited in the denial.
3.
A party aggrieved by the final action of the Director of Public
Works, either by the Director of Public Works affirmatively denying
an application under the provisions of this Section or by the Director
of Public Works' inaction, may bring an action for review in
any court of competent jurisdiction within the State of Missouri.
F.
The City may deny: (i) a proposed collocation of a small wireless
facility, or (ii) the installation, modification, or replacement of
a utility pole, only if the action proposed in the application could
reasonably be expected to:
1.
Materially interfere with the safe operation of traffic control
equipment or City-owned communications equipment;
2.
Materially interfere with sight lines or clear zones for transportation,
pedestrians, or non-motorized vehicles;
3.
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;
4.
Materially obstruct or hinder the usual travel or public safety
on the right-of-way;
5.
Materially obstruct the legal use of the right-of-way by a City,
utility, or other third party;
6.
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;
7.
Fail to comply with applicable codes, including nationally recognized
engineering standards for utility poles or wireless support structures;
or
8.
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.
G.
Indemnification. A wireless provider issued any permit under this
Chapter shall indemnify and hold the City, its officers and employees,
harmless against any damage or personal injury caused by the negligence
of the wireless provider or its employees, agents or contractors.
H.
Performance Bond.
1.
A wireless provider issued any permit for collocation under
this Chapter must first post a performance bond of one thousand five
hundred dollars ($1,500.00) per small wireless facility, except that
for wireless providers with multiple small wireless facilities within
the jurisdiction of the City, the total bond amount across all facilities
shall not exceed 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:
a.
Provide for the removal of abandoned or improperly maintained
small wireless facilities, including those that the City determines
need to be removed to protect public health, safety or welfare;
b.
Restore the right-of-way in connection with any such removal;
and
c.
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.
2.
Recovery by the City of any amounts under the performance bond
or otherwise does not limit the wireless provider's duty to indemnify
the City in any way, nor shall such recovery relieve the wireless
provider of its obligations under a permit issued under this Chapter
or reduce the amounts owed to the City other than by the amount recovered
by the City under the performance bond, or in any respect prevent
the City from exercising any other right or remedy it may have.
[Ord. No. 1748, 1-16-2019]
A.
No application shall be required for the following:
1.
Routine maintenance on a previously permitted small wireless
facility;
2.
The replacement of a small wireless facility with a small wireless
facility that is the same or smaller in size, weight and height; or
3.
The installation, placement, maintenance, operation or replacement
of a micro wireless facility that is strung on cables between utility
poles, in compliance with applicable codes.
[Ord. No. 1748, 1-16-2019]
A.
The construction, operation, maintenance, and repair of small wireless
facilities shall be in accordance with applicable codes.
B.
All small wireless facilities shall be installed and located with
due regard for minimizing interference with the public and with other
users of a right-of-way, including the City.
C.
An applicant shall not place small wireless facilities where they
will damage or interfere with the use or operation of previously installed
facilities, or obstruct or hinder the various utilities serving the
residents and businesses in the City of their use of any rights-of-way.
D.
Any
and all rights-of-way disturbed or damaged during the small wireless
facilities work shall be promptly repaired or replaced by the applicant
to its previous condition.
E.
Any
wireless infrastructure provider, contractor or subcontractor must
be properly licensed under laws of the State and all applicable local
ordinances.
F.
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 laws if the work were
performed by the wireless services provider. The wireless services
provider shall be responsible for ensuring that the work of wireless
infrastructure providers, contractors or subcontractors is performed
consistent with their permits and applicable law, shall be fully responsible
for all acts or omissions of any wireless infrastructure provider,
contractor or subcontractor, and shall be responsible for promptly
correcting any acts or omissions by a wireless infrastructure provider,
contractor or subcontractor.
G.
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 to move, alter, change, adapt,
or conform the underground or above ground facilities of a wireless
provider, the wireless provider shall make the alterations or changes,
on alternative right-of-way provided by the City, if available, as
soon as practicable after being so ordered, in writing, by the City
without claim for reimbursement or damages against the City.
[Ord. No. 1748, 1-16-2019]
A.
Request For A Variance.
1.
When an applicant requests some variation from the requirements of this Chapter, and where strict application of this Chapter would involve undue hardship, the applicant may request a variance pursuant to this Section. Except as otherwise provided in this Section 545.090, the variance procedures set forth in Article II of Chapter 400 shall apply to variances under this Section 545.090.
2.
In reviewing a requested variance under this Section 545.090, the Board of Adjustment shall consider the standards set forth in Section 400.090 of the Municipal Code and whether denial of the variance will prohibit or have the effect of prohibiting the provision of personal wireless services under 47 U.S.C. § 332(C)(7)(B)(i)(II).
B.
Application For A Variance.
1.
An application for a variance under this Section 545.090 shall be made on an application form provided by the Director of Public Works. Each application shall be filed with the Director of Public Works and shall be accompanied by the data prescribed on the form and any additional information deemed necessary by the Board of Adjustment. The application shall be accompanied by the fee set forth in Section 400.090 of the Municipal Code, payable to the City to cover the costs of advertising, notification, and other administrative expenses associated with the review of the application. No part of such fee shall be returnable to the applicant.
2.
An application for a variance under this Section 545.090 shall be signed by all fee owners of the real property for which the variance is sought or by their agent or agents having authority to sign the application on their behalf, accompanied by proper evidence of such agency relationship, and by the applicant, if other than the fee owners. The application shall be submitted to the Director of Public Works and shall contain or be submitted concurrently with the information set forth in Sections 400.090(A) and 400.095(C)(2).
C.
Procedure.
1.
Except as otherwise provided in this Section 545.090, the provisions of Section 400.495 shall apply to variances under this Section.
2.
Within forty-five (45) calendar days of receiving an application for a variance under this Section 545.090, or within such additional time as may be mutually agreed to by an applicant and the Board of Adjustment, the Board of Adjustment shall conduct a hearing and review the application in light of its conformity with this Section.
a.
An application is deemed to be complete unless the Director
of Public Works notifies the applicant, in writing, within fifteen
(15) calendar days of submission of the application, of the specific
deficiencies in the application which, if cured, would make the application
complete. This notice must specify the Municipal Code provision, ordinance,
application instruction, or other publicly stated procedure that requires
the information to be submitted. All deadlines for action in this
Section shall be tolled from the time the Director of Public Works
sends such notice to the applicant to the time the applicant provides
the missing information.
b.
Upon receipt of a timely written notice that an application
is deficient, an applicant may take fifteen (15) calendar days from
receiving such notice to cure the deficiencies.
c.
After the applicant makes a supplemental submission in response
to this notice, the Director of Public Works must notify the applicant
within ten (10) calendar days if the supplemental submission did not
provide the information identified in the original notice of incompleteness.
Missing documents or information that is not delineated in the original
notice of incompleteness may not be delineated in this subsequent
notice. All deadlines for action in this Section shall be tolled from
the time the Director of Public Works sends such notice to the applicant
to the time the applicant provides the missing information.
d.
If the applicant cures the deficiencies within said period of
fifteen (15) calendar days from receipt of the initial notice of incompleteness,
the application shall be reviewed and finally acted upon by the Board
of Adjustment within forty-five (45) calendar days from the initial
date the application was received.
e.
If the applicant requires a period of time beyond fifteen (15)
calendar days to cure the specific deficiencies, the forty-five calendar
day deadline for the Board of Adjustment to review the application,
make the final decision, and advise the applicant, in writing, of
its final decision, shall be extended by the same period of time.
f.
Within the forty-five-calendar day deadline, the Board of Adjustment shall make findings of fact as to whether or not the standards described in this Section 545.090 have been met by the applicant. The burden of proof shall be on the applicant to prove that such standards have been met by the applicant. Thereafter, the Board of Adjustment shall either:
g.
An application for a variance with respect to the collocation
of a small wireless facility shall be deemed approved if the Board
of Adjustment does not act upon the application within forty-five
(45) calendar days of receiving the application, or within such additional
time as may be mutually agreed to by the applicant and the City.
h.
An application for a variance with respect to the installation
of a new, modified or replacement utility pole associated with a small
wireless facility shall be deemed approved if the Board of Adjustment
does not act upon the application within sixty (60) calendar days
of receiving the application, or within such additional time as may
be mutually agreed to by the applicant and the City.
i.
Upon any final action being taken by the Board of Adjustment,
the Board of Adjustment shall deliver, by registered mail, to the
applicant a written decision which shall include or be accompanied
by findings of fact and conclusions of law. The findings of fact shall
be stated separately from the conclusions of law, but shall be delivered
at the same time, and shall include a concise statement of the findings
on which the Board of Adjustment based its decision. The decision
shall be supported by substantial evidence in a written record and,
if the application is denied, it must describe the specific reasons
for denial.
