Definitions. The terms below have the following meanings:
- ABANDONMENT or ABANDON(S)
- Following the placement of DAS and/or small cell technologies facilities (and associated accessory equipment) or support structures in the Town pursuant to a permit issued to a provider or an applicant, any of the following has occurred: for any reason the facilities cease to be used to transmit signals, data or messages or otherwise be used for their intended purposes for a period of 90 days; the Town revokes the permit for placement and use of those facilities due to nonpayment of applicable fees, the failure of the provider or applicant to comply with conditions in the permit or in this article concerning them, or other valid reason; or the provider or applicant fails to perform any of its responsibilities, obligations and requirements in this article or in a permit that relate to the installation, construction, maintenance, use or operation of the facilities, accessory equipment or support structures, and that breach remains uncured for a period of 60 days after the Town provides written notice of the breach to the provider or applicant.
- ACCESSORY EQUIPMENT
- Any equipment other than an antenna that is used in conjunction with DAS and/or small cell technology facility arrangements. This equipment may be attached to or detached from a DAS and/or small cell technology wireless support structure, and includes, but, is not limited to, cabinets, optical converters, power amplifiers, radios, DWDM and CWDM multiplexers, microcells, radio units, fiber optic and coaxial cables, wires, meters, pedestals, power switches, and related equipment on a support structure. The term does not include the structure of improvements on, under, or within which the equipment is collocated, wireline backhaul facilities, coaxial or fiber optic cable this is between wireless support structure or utility poles or coaxial or fiber optic cable that is otherwise not immediately adjacent to, or directly associated, with an antenna.
- Communications equipment that transmits and receives electromagnetic radio signals, is attached to a DAS and/or small cell technology wireless support structure and is used to communicate wireless service.
- Whether singula or plural, a personal wireless service provider, wireless infrastructure provider, or an entity (including one that is not provider) that is authorized by a personal wireless service provider to apply for or receive a permit to install, construct, manage, modify or maintain a DAS and/or small cell technology facility and related accessory equipment or support structure in the Town, or an entity certificated by the Delaware Public Service Commission to provide telecommunication service.
- A formal request submitted to the Town for a permit to install, construct, modify or maintain a DAS and/or small cell technology facility and related accessory equipment or support structure.
- The placement or installation of a new DAS and/or small cell wireless technology facility or related accessory equipment on an existing pole or other support structure that is owned, controlled or leased by a utility, the Town, or other person or utility.
- DAS and/or SMALL CELL TECHNOLOGY WIRELESS SUPPORT STRUCTURE or SUPPORT STRUCTURE,
- Whether singular or plural, a freestanding structure designed or used to support, or capable of supporting, DAS and/or small cell technology facilities, including, but not limited to, utility poles, street light poles, traffic signal structures, rooftops, attics, or other enclosed or open areas of a building or accessory structure, a sign, or a flag pole.
- DAS or DISTRIBUTED ANTENNA SYSTEM
- A network of spatially separated antenna sites connected to a common source that provides wireless service within a geographic are or structure.
- DISTRIBUTED ANTENNA SYSTEM FACILITIES and/or SMALL CELL TECHNOLOGY FACILITY or FACILITIES
- Whether singular or plural, includes the following types of structures: antenna; and associated accessory equipment.
- PERSONAL WIRELESS SERVICE PROVIDER or PROVIDER
- An entity that provides personal wireless communication services to the public or citizens of the Town on a commercial basis and is authorized by the FCC to provide those services.
- PRIVATE PROPERTY
- Real property located in the Town that does not lie within the right-of-way.
- Whether singular or plural, the surface and space in, upon, above, along, across, over and below any public street, highways, roads, alleys, sidewalks, and bicycle lanes, including all public easements, as the same now or may hereafter exist that are within the Town's corporate boundaries and under the jurisdiction of the Town. This term shall not include state or federal rights-of-way or any property owned by any person or entity other than the Town.
- STEALTH TECHNOLOGY
- A method(s) of concealing or minimizing the visual impact of a DAS or small cell technology facility (and associated accessory equipment) and support structure by incorporation features or design elements which either totally or partially conceal such facilities or equipment. The use of these design elements is intended to produce the result of having said facilities and associated structures blend into the surrounding environment and/or disguise, shield, hide or create the appearance that the facilities are an architectural component of the support structure.
- The Town of Fenwick Island, Delaware.
- TOWN COUNCIL
- The Town Council of the Town of Fenwick Island, Delaware.
- TOWN MANAGER
- The person appointed by the Mayor and Town Council as the manager to perform the responsibilities in this article.
- WIRELESS INFRASTRUCTURE PROVIDER
- Any person, including a person authorized to provide telecommunications service in the state, that builds or installs wireless communication transmission equipment, facilities or support structures, but that is not a provider.
Editor's Note: The former definition of "Building Committee," which immediately followed, was repealed 3-22-2019.
Commercial cell phone communication facilities, including but not limited to, DAS support structures and other structures, are prohibited on private properties in the Commercial and Residential Zones unless approved by the Town Council upon a showing that such prohibition will violate the provision of personal wireless service under federal law.
Nothing herein shall be construed to prohibit the Town from leasing space on Town-owned infrastructure to other third-party providers with approval of Town Council.
Permit required to place DAS and/or small cell technology facilities in right-of-way or on Town-owned property under the following conditions:
A provider or applicant must obtain an infrastructure permit from the Town before placing, installing, constructing, or operating any DAS and/or small cell technology facility (and associated accessory equipment) on any support structure that is located on the right-of-way, or substantially modifying the position or characteristics of any such existing facility thereon.
The Town Manager (or his/her designee) will review and administratively process any request for a permit to determine, in the exercise of the Town Manager's (or his/her designee's) reasonable discretion, if a permit should be issued for the location and in the manner requested by the applicant. In this process, the burden is on the provider or applicant to demonstrate that the placement of the proposed DAS and/or small cell technology facility and associated accessory equipment or support structure on the right-of-way is the minimal physical installation which will achieve the goal of enhancing the provision of personal wireless services when considering all pertinent factors discussed in the provision immediately below. Except as set forth in this section, this permitting process will be administrative and not require the approval of any Town Council member or Town official other than the Town Manager (or his/her designee). In the event the Town Manager is unavailable to perform his/her duties or identify a designee in accordance with this paragraph, the Mayor shall be the Town Manager's designee for purposes of this paragraph.
The factors, requirements and guidelines that the Town Manager (or his/her designee) may consider and will apply when determining whether to issue a permit for placement of DAS and/or small cell technology facilities and associated structures on the right-of-way include, but are not limited to, the following:
The visual impact of placing the support services or facilities in the subject area;
The character of the area in which the structures are requested, including surrounding buildings, properties and uses;
Whether the appearance and placement of the requested structures is aesthetically consistent with the immediate area;
Whether the structures are consistent with the historic nature and characteristics of the requested location;
The need for personal wireless communications services in the subject area;
The availability of alternative sites for providing personal wireless communications services in the subject area;
Collocation. To the extent practical, all facilities and associated accessory equipment that are placed in the Town shall be attached to a preexisting support structure or an in-place replacement support structure that increases the height above grade of the preexisting support structure no more than 10 feet, unless a greater height is approved by the Town Council, and that is owned, controlled or leased by a utility, franchisee, the Town or other entity. If the applicant demonstrates that no collocation opportunities exist in the area where a technologically documented need for a facility exists, the applicant may request that a new pole of other support structure be installed in that area for the purposes of constructing the facilities. Before any new support structure is permitted, each of the following must occur:
The applicant must have provided the Town written evidence that no practical collocation opportunity exists. This evidence shall include, but not be limited to, affidavits, correspondence, or other written information that demonstrates that the applicant has taken all commercially reasonable actions to achieve collocation in the required location or area, that the applicant has pursued but been denied access to all potential collocation sites in the subject area [and the reasons for any such denial(s)], and otherwise show that the applicant is unable to co-locate on an existing support structure;
The Town Manager must recommend the placement of the new support structure in the right-of-way; and
Town Council must approve the placement of the new support structure in the right-of-way.
If a facility is attached to a utility pole or other support structure in the right-of-way, no antenna or other part of the facility shall extend more than 10 feet above the height of such support structure;
The accessory equipment shall, if reasonably possible, be placed at least 10 feet above the ground;
The color of antenna and accessory equipment shall be compatible with that of the support structure;
The facility (including accessory equipment) shall not be illuminated;
Whether the proposed installation could cause harm to the public or pose any undue risk to public safety validated through a means of industry certified reports for EME exposure limits or disruption of visual site triangles related to traffic;
Whether the proposed installation may interfere with vehicular traffic, passage of pedestrians, or other use of the right-of-way by the public; and
If the proposed installation will disturb conditions on the right-of-way, whether the applicant can demonstrate its ability and financial resources to restore the subject area to its preexisting condition following installation.
At a minimum, each application for a permit shall contain all of the following:
Engineering drawings, engineering or similarly detailed drawings depicting the type of facilities, support structure, and means and points at which such facilities and associated accessory equipment will be attached to a support structure;
Map(s) designating with specificity the location(s) of the requested facilities;
The geographic coordinates of all antenna and other proposed facilities;
If the facilities will be located on a support structure on the right-of-way that is owned by any entity other than the Town or the applicant, a copy of any license, lease, agreement or other documentation, redacted to remove protected information of a commercially sensitive or proprietary nature, evidencing that the owner of that support structure authorizes the facilities to be attached thereto or agrees in principle to authorize the attachment; provided that, if a representation is made to the Town that the attachment has been authorized in principle by the owner of the support structure but the applicant subsequently fails to furnish the Town documentation that finalizes any such agreement, the Town may refuse to issue the requested permit until that documentation is provided, or, if the Town issues the required permit before receiving such final documentation, the subject permit may be revoked and any license to use that part of the right-of-way be rescinded.
If the applicant requests permission to place facilities on a new support structure, the substantiation therefore required by § 61-20D(1)(d) in this article shall apply.
An application shall not be deemed complete until the applicant has submitted all documents, information and forms specifically enumerated in this article that pertain to the location, construction or configuration of the facilities or support structures at the requested location(s). Within 30 days after an application for permit is submitted, the Town shall notify the applicant in writing if any additional information is needed to complete that application or supplemental information is required to process the request. If the Town does not notify the applicant in writing that the application is incomplete within 30 days following its receipt, the application is deemed complete.
Additional requirements. Any provider or applicant to whom a permit is issued and that places facilities and associated support structures on the right-of-way also shall comply with the following requirements as long as those facilities and support structures are on or under the right-of-way:
Prior to installing the facilities or support structures, the applicant shall provide the Town a certificate(s) of insurance evidencing that it has obtained and will maintain the following types of insurance in connection with its operations on or use of the right-of-way: general liability coverage insuring the risk of claims for damages to persons or property arising from or related to the installation, construction, maintenance, operation or any use of facility of support structure placed on or along the right-of-way by the applicant (or any of their contractors) with minimum limits of $1,000,000 per occurrence; and workmen's compensation insurance as required by statute. The general liability coverage shall list the Town as an additional insured, and may be provided through a combination of a primary and umbrella policies. All insurance policies shall be furnished by insurers who are reasonably acceptable to the Town and authorized to transact business in the State of Delaware. On an annual basis following initial installation, the applicant also shall furnish the Town a certificate indicating that the above-noted coverage remains and will remain in effect. In lieu of the insurance requirements above, an applicant may provide a certificate of self-insurance sufficient to satisfy the above amounts.
All facilities and associated support structures shall be installed, erected, maintained and operated in compliance with applicable federal and state laws and regulations, including, but not limited to, regulations of the FCC.
Following the installation of any facilities and associated support structures, the provider or applicant, upon reasonable request and for good cause, shall furnish the Town Manager (or his/her designee) a written certification from a licensed professional engineer in the State of Delaware stating that those structures have been inspected and are being maintained, operated and used in compliance with all applicable laws and regulations, including those of the FCC that pertain to the transmission of wireless communication signals. For purposes of this provision, "good cause" shall mean circumstances have arisen that indicate the facilities and associated support structures have been damaged, are not functioning in compliance with applicable laws and regulations, or otherwise pose a hazard to the public. If those support structures should fail at any time to comply with applicable laws and regulations, the provider or applicant, at either of their expense, shall cause those structures to be brought into compliance with said laws and regulations within 15 days of the date of any written notice to them from the Town Manager (or his/her designee) of noncompliance, or cease all personal wireless service operations related to those structures until the applicant or provider comes into full compliance with said laws and regulations.
The facilities and associated support structures must at all times be maintained in good and safe condition. On no more frequent than a triennial basis, the Town Manager (or his/her designee) may request that the provider or applicant, at either of their expense, furnish certification from a professional engineer who is licensed in the State of Delaware that the facilities and support structures are in sound condition. Should that engineer deem those structures unsound, the provider or applicant shall furnish to the Town Manager (or his/her designee) a plan to remedy any unsafe conditions or structural defect(s) and take that remedial action at the provider or applicant's expense.
Each applicant or provider that applies for a permit to place facilities (including the accessory equipment) and support structures on the right-of-way and installs and utilizes those structures shall defend, indemnify and hold the Town and its employees or officials harmless from all demands, losses, expenses (including attorney's fees and court costs), claims for personal injury or property damage, judgments or liabilities or any type that may be asserted or claimed against the Town (or its employees or officials) by any third person, firm or entity that arise out of or relate in any manner to the following: the installation, construction, maintenance, use or operation of the permitted facilities, accessory equipment of any support structure on or about the right-of-way; and the failure of the provider or applicant to perform any of their respective responsibilities, obligations and permit requirements in this article. Notwithstanding the foregoing, the provider or applicant shall not be obligated to indemnify the Town for a claim resulting from the sole negligence or willful acts of the Town (or its representatives).
A wireless infrastructure provider seeking to install support structures must demonstrate it has a contract with a wireless service provider to install, construct, modify, maintain or operate wireless communications facilities in the right-of-way in which such installation, construction, modification, maintenance or operation is to begin within one year of approval by the Town of such installations.
Franchise agreements for other uses of right-of-way. This chapter regulates the placement of DAS and/or small cell technology facilities (and associated accessory equipment) on or in the immediate vicinity of support structures that are located or proposed to be locating in the right-of-way. No provision in this chapter or elsewhere in this article is intended to permit, regulate or authorize the placement by a provider or applicant of fiber optic lines, coaxial cable, switches, pedestals or networking equipment of any type that is used to transport telecommunication signals, data or messages between support structures or between any other points in the right-of-way. In the event any such provider or applicant desires to place telecommunications equipment or facilities along the right-of-way at points not regulated by this article, the Town may enter into franchise or similar agreement that authorize, govern and apply to such use of other locations on or along the right-of-way.
Permit and administrative fees. The applicant for a permit to place facilities and associated support structures on the right-of-way shall pay the following types of fees:
A permit issuance fee for each support structure on the right-of-way, contemplated for attachment, in the amount of $100 or such other amount as may be established by the Town Council; and
An annual administrative fee for each support structure on the right-of-way pertaining to the ongoing use of public property as enumerated below.
Annual administrative fee amount. To reimburse the Town for its cost to inspect each support structure and/or otherwise administer this article, the provider or applicant shall pay an annual administrative fee to the Town in the amount of $150 per small cell technology facility or such other amount as may be established by the Town Council. The annual administrative fee shall be paid each year a permit is in effect.
The first annual administrative fee to be paid by a provider or applicant shall be due and payable within 45 days of issuance of a permit and shall be prorated for the calendar year during which the permit is initially issued. Annual administrative fees for each permit year thereafter shall be due and payable, in advance, on or before the first of each calendar year. Annual administrative fees not paid in a timely manner and as required by this paragraph shall be assessed interest at the rate of 1% per month, commencing on the first day after the due date.
Abandonment of facilities on right-of-way. If a provider or applicant abandons any facility (including the accessory equipment) or an associated support structure (collectively "facilities" for purposes of this chapter) that is located on the right-of-way, the following rights and obligations shall exist. The Town may require the provider or applicant, at their expense, to remove and reclaim the abandoned facilities within 60 days from the date of written notice of abandonment given by the Town to them and to reasonably restore the condition of the property at which the facilities are located to that existing before they were installed. If the provider or applicant fails to remove and reclaim its abandoned facilities within such sixty-day period and the facilities are located on the right-of-way, the Town shall have the rights to remove them and charge its expense of any such removal operation to the account of the provider or applicant, purchase all abandoned facilities at the subject location from the provider or applicant in consideration of $1, at the Town's discretion, either resell the abandoned facilities to a third party or dispose and salvage them; provided that the proceeds of any resale of abandoned facilities by the Town to a third party shall be credited to the account of the applicant or provider that used those facilities before abandonment, and charge any expense incurred by the Town to restore the right-of-way to the account of the provider or applicant.
Collocation. To promote the public interest that is served by co-locating facilities and associated accessory equipment on existing support structures and thereby mitigating the installation of additional support structures throughout the Town, no person or entity (including any provider, applicant, utility, or franchisee) that utilizes an existing support structure that is located on the right-of-way or on private property in the Town and has space available thereon may deny a provider or applicant the right to use or access an existing support structure for purposes of attached facilities permitted by this article without sound operational, technological or other good reason.
Nonapplicability. The placement of an antenna(s), facilities or equipment related to the following types of wireless communication services are exempt from regulation under this article: amateur radio service that is licensed by the FCC if the facilities related thereto are not used or licensed for any commercial purpose; and facilities used by any federal, state or local government or agency to provide safety or emergency services. Further, the provisions in this chapter are supplemental to, and not intended to alter, affect or modify other provisions in the Town of Fenwick Island Code that may be applicable to the placement or use of macro telecommunications towers.
Repealer. All ordinances or parts of ordinances heretofore adopted by the Town Council of the Town of Fenwick Island, Delaware, that are inconsistent with the provisions of this article are hereby expressly repealed.
Severability. If any part, section or subdivision of this article shall be held unconstitutional or invalid for any reason, such holding shall not be construed to invalidate or impair the remainder of this article, which shall continue in full force and effect notwithstanding such holding.
Effective date. This article shall become effective immediately upon adoption and publications as provided by law.