[Adopted 2-23-2018]
A.
ABANDONMENT or ABANDON(S)
ACCESSORY EQUIPMENT
ANTENNA
APPLICANT
APPLICATION
COLLOCATION
DAS and/or SMALL CELL TECHNOLOGY WIRELESS SUPPORT STRUCTURE
or SUPPORT STRUCTURE,
DAS or DISTRIBUTED ANTENNA SYSTEM
DISTRIBUTED ANTENNA SYSTEM FACILITIES and/or SMALL CELL TECHNOLOGY
FACILITY or FACILITIES
PERSONAL WIRELESS SERVICE PROVIDER or PROVIDER
PRIVATE PROPERTY
RIGHT-OF-WAY
STEALTH TECHNOLOGY
TOWN
TOWN COUNCIL
TOWN MANAGER
WIRELESS INFRASTRUCTURE PROVIDER
Definitions. The terms below have the following meanings:
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.
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.
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.
A network of spatially separated antenna sites connected
to a common source that provides wireless service within a geographic
are or structure.
Whether singular or plural, includes the following types
of structures: antenna; and associated accessory equipment.
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.
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.
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.
The Town Council of the Town of Fenwick Island, Delaware.
The person appointed by the Mayor and Town Council as the
manager to perform the responsibilities in this article.[1]
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.
[1]
Editor's Note: The former definition of "Building Committee,"
which immediately followed, was repealed 3-22-2019.
B.
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.
(1)
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.
C.
Permit required to place DAS and/or small cell technology facilities
in right-of-way or on Town-owned property under the following conditions:
(1)
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.
(2)
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.
[Amended 3-22-2019]
(a)
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:
[1]
The visual impact of placing the support services or facilities
in the subject area;
[2]
The character of the area in which the structures are requested,
including surrounding buildings, properties and uses;
[3]
Whether the appearance and placement of the requested structures
is aesthetically consistent with the immediate area;
[4]
Whether the structures are consistent with the historic nature
and characteristics of the requested location;
[5]
The need for personal wireless communications services in the
subject area;
[6]
The availability of alternative sites for providing personal
wireless communications services in the subject area;
[7]
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:
[a]
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;
[b]
The Town Manager must recommend the placement of
the new support structure in the right-of-way; and
[c]
Town Council must approve the placement of the
new support structure in the right-of-way.
[8]
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;
[9]
The accessory equipment shall, if reasonably possible, be placed
at least 10 feet above the ground;
[10]
The color of antenna and accessory equipment shall be compatible
with that of the support structure;
[11]
The facility (including accessory equipment) shall not be illuminated;
[12]
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;
[13]
Whether the proposed installation may interfere with vehicular
traffic, passage of pedestrians, or other use of the right-of-way
by the public; and
[14]
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.
D.
Application process.
(1)
At a minimum, each application for a permit shall contain all of
the following:
(a)
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;
(b)
Map(s) designating with specificity the location(s) of the requested
facilities;
(c)
The geographic coordinates of all antenna and other proposed
facilities;
(d)
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.
(e)
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.
[1]
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.
(f)
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:
[1]
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.
[2]
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.
[3]
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.
[4]
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.
[5]
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).
[6]
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.
(g)
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.
E.
Fees.
(1)
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)
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
(b)
An annual administrative fee for each support structure on the
right-of-way pertaining to the ongoing use of public property as enumerated
below.
[1]
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.
[2]
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.
F.
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.
G.
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.
H.
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.
I.
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.
J.
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.
K.
Effective date. This article shall become effective immediately upon
adoption and publications as provided by law.
