As used in this chapter, the following
terms shall have the following meanings:
The amount paid to a telecommunications retailer for the
act or privilege of originating or receiving telecommunications within
the City, and for all services rendered in connection therewith, valued
in money whether paid in money or otherwise, including cash, credits,
services, and property of every kind or nature, and shall be determined
without any deduction on account of the cost of such telecommunications,
the cost of the materials used, labor or service costs, or any other
expense whatsoever. In case credit is extended, the amount thereof
shall be included only as and when paid. "Gross charges" for private
line service shall include charges imposed at each channel point within
the City, charges for the channel mileage between each channel point
within the City, and charges for that portion of the interstate inter-office
channel provided within the City. However, "gross charges" shall not
include:
Any amounts added to a purchaser's
bill because of a charge made under:
The fee imposed by this section;
Additional charges added to a purchaser's
bill under Section 9-221 or 9-222 of the Public Utilities Act (220
ILCS 5/9-221 or 220 ILCS 5/9-222);
Amounts collected under Section 8-11-17
of the Illinois Municipal Code (65 ILCS 5/8-11-2);
The tax imposed by the Telecommunications
Excise Tax Act (35 ILCS 630/1 et seq.);
911 surcharges; or
The tax imposed by Section 4251 of
the Internal Revenue Code (26 U.S.C. § 4251);
Charges for a sent collect telecommunication
received outside the City;
Charges for leased time on equipment
or charges for the storage of data or information or subsequent retrieval
or the processing of data or information intended to change its form
or content. Such equipment includes, but is not limited to, the use
of calculators, computers, data processing equipment, tabulating equipment,
or accounting equipment and also includes the usage of computers under
a time-sharing agreement;
Charges for customer equipment, including
such equipment that is leased or rented by the customer from any source,
wherein such charges are disaggregated and separately identified from
other charges;
Charges to business enterprises certified
under Section 9-222.1 of the Public Utilities Act (220 ILCS 5/9-222.1)
to the extent of such exemption and during the period of time specified
by the City;
Charges for telecommunications and
all services and equipment provided in connection therewith between
a parent corporation and its wholly owned subsidiaries or between
wholly owned subsidiaries, and only to the extent that the charges
between the parent corporation and wholly owned subsidiaries or between
wholly owned subsidiaries represent expense allocation between the
corporations and not the generation of profit other than a regulatory
required profit for the corporation rendering such services;
Bad debts ("bad debt" means any portion
of a debt that is related to a sale at retail for which gross charges
are not otherwise deductible or excludable that has become worthless
or uncollectible, as determined under applicable federal income tax
standards; if the portion of the debt deemed to be bad is subsequently
paid, the retailer shall report and pay the tax on that portion during
the reporting period in which the payment is made);
Charges paid by inserting coins in
coin-operated telecommunications devices; or
Charges for telecommunications and
all services and equipment provided to the City.
[Ord. No. 1997-96]
Any municipal street, alley, water or public right-of-way
dedicated or commonly used for utility purposes, including utility
easements wherein the City has acquired the right and authority to
locate or permit the location of utilities consistent with telecommunications
facilities. "Public Right-of-Way" shall not include any real or personal
City property that is not specifically described in the previous sentence
and shall not include City buildings and other structures or improvements,
regardless of whether they are situated in the public right-of-way.
[Ord. No. 1997-96]
Includes any retailer having or maintaining within the State
of Illinois, directly or by a subsidiary, an office, distribution
facilities, transmission facilities, sales office, warehouse, or other
place of business, or any agent or other representative operating
within this State under the authority of the retailer or its subsidiary,
irrespective of whether such place of business or agent or other representative
is located here permanently or temporarily, or whether such retailer
or subsidiary is licensed to do business in this State.
[Ord. No. 1997-96]
The transmitting, supplying, or furnishing of telecommunications
and all services rendered in connection therewith for a consideration,
other than between a parent corporation and its wholly owned subsidiaries
or between wholly owned subsidiaries, when the gross charge made by
one such corporation to another such corporation is not greater than
the gross charge paid to the retailer for their use or consumption
and not for sale.
[Ord. No. 1997-96]
The location of telecommunications equipment from which telecommunications
services are originated or at which telecommunications services are
received. If this is not a defined location, as in the case of wireless
telecommunications, paging systems, maritime systems, air-to-ground
systems, and the like, "service address" shall mean the location of
the customer's primary use of the telecommunications equipment as
defined by the location in Illinois where bills are sent.
[Ord. No. 1997-96]
Includes, but is not limited to, messages or information
transmitted through use of local, toll, and wide area telephone service,
channel services, telegraph services, teletypewriter service, computer
exchange services, private line services, specialized mobile radio
services, or any other transmission of messages or information by
electronic or similar means, between or among points by wire, cable,
fiber optics, laser, microwave, radio, satellite, or similar facilities.
Unless the context clearly requires otherwise, "telecommunications"
shall also include wireless telecommunications as hereinafter defined.
"Telecommunications" shall not include value added services in which
computer processing applications are used to act on the form, content,
code, and protocol of the information for purposes other than transmission.
"Telecommunications" shall not include purchase of telecommunications
by a telecommunications service provider for use as a component part
of the service provided by him or her to the ultimate retail consumer
who originates or terminates the end-to-end communications. Retailer
access charges, right of access charges, charges for use of intercompany
facilities, and all telecommunications resold in the subsequent provision
and used as a component of, or integrated into, end-to-end telecommunications
service shall not be included in gross charges as sales for resale.
"Telecommunications" shall not include the provision of cable services
through a cable system as defined in the Cable Communications Act
of 1984 (47 U.S.C. § 521 and following) as now or hereafter
amended or cable or other programming services subject to an open
video system fee payable to the City through an open video system
as defined in the Rules of the Federal Communications Commission (47
C.D.F. 76.1550 and following) as now or hereafter amended.
[Ord. No. 1997-96]
Includes every person engaged in the business of making sales
of telecommunications at retail as defined in this section. The City
may, in its discretion, upon application, authorize the collection
of the fee hereby imposed by any retailer not maintaining a place
of business within this State, who, to the satisfaction of the City,
furnishes adequate security to ensure collection and payment of the
fee. When so authorized, it shall be the duty of such retailer to
pay the fee upon all of the gross charges for telecommunications in
the same manner and subject to the same requirements as a retailer
maintaining a place of business within the City.
[Ord. No. 1997-96]
Includes cellular mobile telephone services, personal wireless
services as defined in Section 704(C) of the Telecommunications Act
of 1996 (Public Law No. 104-104), 42 U.S.C. § 332(c)(7),
as now or hereafter amended, including all commercial mobile radio
services, and paging services.
[Ord. No. 1997-96]
A.Â
Every telecommunications provider as defined by this chapter shall register with the City within 30 days after the effective date of this chapter or becoming a telecommunications provider, whichever is later, on a form to be provided by the City, provided, however, that any telecommunications retailer that has filed a return pursuant to § 14-104C this chapter shall be deemed to have registered in accordance with this section.
[Ord. No. 1997-96]
B.Â
Every telecommunications provider who has registered with the City pursuant to § 14-102A has an affirmative duty to submit an amended registration form or current return as required by § 14-104C, as the case may be, to the City within 30 days from the date of the occurrence of any changes in the information provided by the telecommunications provider in the registration form or most recent return on file with the City.
[Ord. No. 1997-96]
A.Â
A City telecommunications infrastructure
maintenance fee is hereby imposed upon all telecommunications retailers
in the amount of 1.0% of all gross charges charged by the telecommunications
retailer to service addresses within the City for telecommunications
originating or received in the City.
[Ord. No. 1997-96]
B.Â
Upon the effective date of the infrastructure
maintenance fee authorized in this chapter, the City infrastructure
maintenance fee authorized hereunder shall be the only fee or compensation
for the use of all public rights-of-way within the City by telecommunications
retailers. Imposition of the infrastructure maintenance fee provided
under this chapter does not, however, serve as a limitation on the
levying of any taxes or imposition of any fees otherwise authorized
by law.
[Ord. No. 1997-96]
A.Â
A telecommunications retailer shall charge
to and collect from each customer an additional charge in an amount
equal to the City infrastructure maintenance fee attributable to that
customer's service address.
[Ord. No. 1997-96]
B.Â
Unless otherwise approved by the City Manager
the infrastructure maintenance fee shall be remitted by the telecommunications
retailer to the City not later than the last day of the month subsequent
to the month in which a bill is issued to the customer; provided,
however, that the telecommunications retailer may retain an amount
not to exceed 2% of the City infrastructure maintenance fee collected
by it to reimburse itself for expenses incurred in accounting for
and remitting the fee.
[Ord. No. 1997-96]
C.Â
Remittance of the municipal infrastructure
fee to the City shall be accompanied by a return, in a form to be
prescribed by the City Manager which shall contain such information
as the City Manager may reasonably require.
[Ord. No. 1997-96]
D.Â
Any infrastructure maintenance fee required to be collected pursuant to this chapter and any such infrastructure maintenance fee collected by such telecommunications retailer shall constitute a debt owed by the telecommunications retailer to the City. The charge imposed under § 14-104A by the telecommunications retailer pursuant to this chapter shall constitute a debt of the purchaser to the telecommunications retailer who provides such services until paid and, if unpaid, is recoverable at law in the same manner as the original charge for such services.
[Ord. No. 1997-96]
E.Â
If it shall appear that an amount of infrastructure
maintenance fee has been paid that was not due under the provisions
of this chapter, whether as a result of a mistake of fact or an error
of law, then such amount shall be credited against any infrastructure
maintenance fee due, or to become due, under this chapter, from the
telecommunications retailer who made the erroneous payment; provided,
however, the City Manager may request, and telecommunications retailer
shall provide, written substantiation for such credit. However, no
claim for such credit may be made more than three years after the
date of the erroneous payment unless, (1) the credit is used only
to offset a claim of underpayment made by the City within the applicable
statutory period of limitations, and (2) the credit derives from an
overpayment made by the same telecommunications retailer during the
applicable statutory period of limitations.
[Ord. No. 1997-96]
F.Â
Amounts paid under this chapter by telecommunications
retailers shall not be included in the tax base under any of the following
acts as described immediately below:
(1)Â
"Gross charges" for purposes of the Telecommunications
Excise Tax Act (35 ILCS 630/1 et seq.);
(2)Â
"Gross receipts" for purposes of the municipal
utility tax as prescribed in Section 8-11-2 of the Illinois Municipal
Code (65 ILCS 5/8-11-2);
(3)Â
"Gross charges" for purposes of the municipal
telecommunications tax as prescribed in Section 8-11-17 of the Illinois
Municipal Code (65 ILCS 5/8-11-17);
G.Â
The City shall have the right, in its discretion,
to audit the books and records of all telecommunications retailers
subject to this chapter to determine whether the telecommunications
retailer has properly accounted to the City for the City infrastructure
maintenance fee. Any underpayment of the amount of the City infrastructure
maintenance fee due to the City by the telecommunications retailer
shall be paid to the City plus 5% of the total amount of the underpayment
determined in an audit, plus any costs incurred by the City in conducting
the audit, in an amount not to exceed 5% of the total amount of the
underpayment determined in an audit. Said sum shall be paid to the
City within 21 days after the date of issuance of an invoice for same.
[Ord. No. 1997-96]
H.Â
The City Manager, or his or her designee, may promulgate such further or additional regulations concerning the administration and enforcement of this chapter, consistent with its provisions, as may be required from time to time and shall notify all telecommunications retailers that are registered pursuant to § 14-102 of this chapter of such regulations.
[Ord. No. 1997-96]
Nothing in this chapter shall excuse
any person or entity from obligations imposed under any law, including
but not limited to:
A.Â
Generally applicable taxes; and
B.Â
Standards for construction on, over, under,
or within, use of or repair of the public rights-of-way, including
standards relating to free standing towers and other structures upon
the public rights-of-way, as provided; and
C.Â
Any liability imposed for the failure to
comply with such generally applicable taxes or standards governing
construction on, over, under, or within, use of or repair of the public
rights-of-way; and
D.Â
Compliance with any ordinance or provision
of this Code concerning uses or structures not located on, over, or
within the right-of-way.
[Ord. No. 1997-96]
Any franchise, license, or similar
agreements between telecommunications retailers and the City entered
into before the effective date of this chapter regarding the use of
public rights-of-way shall remain valid according to and for their
stated terms except for any fees, charges or other compensation to
the extent waived.
[Ord. No. 1997-96]
Any telecommunications provider who
violates, disobeys, omits, neglects or refuses to comply with any
of the provisions of this chapter shall be subject to fine in an amount
not to exceed $500 per day.
[Ord. No. 1997-96]
Nothing in this chapter shall be
construed as limiting any additional or further remedies that the
City may have for enforcement of this chapter.
[Ord. No. 1997-96]
If any section, subsection, sentence,
clause, phrase or portion of this chapter is for any reason held invalid
or unconstitutional by any court of competent jurisdiction, such portion
shall be deemed a separate, distinct, and independent provision and
such holding shall not affect the validity of the remaining portions
hereof.
[Ord. No. 1997-96]
This chapter supersedes all Chapters
or parts of Chapters of the City Code adopted prior hereto which are
in conflict herewith, to the extent of such conflict.
A.Â
Purpose. The purpose of this Ordinance
is to establish regulations, standards and procedures for the siting
and collocation of small wireless facilities in a manner that is consistent
with the Small Wireless Facilities Deployment Act (the Act), Public
Act 100-0585.[1]
[1]
Editor's Note: See 50 ILCS 840/1.
B.Â
Conflicts with other ordinances. This Ordinance
supersedes all Ordinances or parts of Ordinances adopted prior hereto
that are in conflict herewith, to the extent of such conflict.
C.Â
Conflicts with State and Federal Laws.
In the event that applicable federal or State laws or regulations
conflict with the requirements of this Ordinance, the wireless provider
shall comply with the requirements of this Ordinance to the maximum
extent possible without violating federal or State laws or regulations.
[Ord. No. 2018-61]
For the purposes of this article,
the following terms shall have the following meanings:
Communications equipment that transmits or receives electromagnetic
radio frequency signals used in the provision of wireless services.
Uniform building, fire, electrical, plumbing, or mechanical
codes adopted by a recognized national code organization or local
amendments to those codes, including the National Electrical Safety
Code.
Any person who submits an application and is a wireless provider.
A request submitted by an applicant to the City for a permit
to collocate small wireless facilities, and a request that includes
the installation of a new utility pole for such collocation, as well
as any applicable fee for the review of such application.
To install, mount, maintain, modify, operate, or replace
wireless facilities on or adjacent to a wireless support structure
or utility pole.
Cable service, as defined in 47 U.S.C. 522(6), as amended;
information service, as defined in 47 U.S.C. 153(24), as amended;
telecommunications service, as defined in 47 U.S.C. 153(53), as amended;
mobile service, as defined in 47 U.S.C. 153(53), as amended; or wireless
service other than mobile service.
A cable operator, as defined in 47 U.S.C. 522(5), as amended;
a provider of information service, as defined in 47 U.S.C. 153(24),
as amended; a telecommunications carrier, as defined in 47 U.S.C.
153(51), as amended; or a wireless provider.
The Federal Communications Commission of the United States.
A one-time charge.
A building, property, or site, or 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.1.a.i through Section VI.D.1.a.v of the Nationwide Programmatic
Agreement codified at 47 CFR Part 1, Appendix C; or
Designated as a locally landmarked
building, property, site, or historic district by an ordinance adopted
by the City pursuant to a preservation program that meets the requirements
of the Certified Local Government Program of the Illinois State Historic
Preservation Office or where such certification of the preservation
program by the Illinois State Historic Preservation Office is pending.
A federal or State statute, common law, code, rule, regulation,
order, local ordinance or resolution.
A small wireless facility that is not larger in dimension
than 24 inches in length, 15 inches in width, and 12 inches in height
and that has an exterior antenna, if any, no longer than 11 inches.
A utility pole owned or operated by the City in public rights-of-way.
A written authorization required by the City to perform an
action or initiate, continue, or complete a project.
An individual, corporation, limited liability company, partnership,
association, trust, or other entity or organization.
The functional division of the federal government, the State,
a unit of local government, or a special purpose district located
in whole or in part within this State, that provides or has authority
to provide firefighting, police, ambulance, medical, or other emergency
services to respond to and manage emergency incidents.
A recurring charge.
The area on, below, or above a public roadway, highway, street,
public sidewalk, alley, or utility easement dedicated for compatible
use. Right-of-way does not include City-owned aerial lines.
A wireless facility that meets both of the following qualifications:
Each antenna is located inside an
enclosure of no more than six cubic feet in volume or, in the case
of an antenna that has exposed elements, the antenna and all of its
exposed elements could fit within an imaginary enclosure of no more
than six cubic feet; and
All other wireless equipment attached
directly to a utility pole associated with the facility is cumulatively
no more than 25 cubic feet in volume. The following types of associated
ancillary equipment are not included in the calculation of equipment
volume: electric meter, concealment elements, telecommunications demarcation
box, ground-based enclosures, grounding equipment, power transfer
switch, cut-off switch, and vertical cable runs for the connection
of power and other services.
A pole or similar structure that is used in whole or in part
by a communications service provider or for electric distribution,
lighting, traffic control, or a similar function.
Equipment at a fixed location that
enables wireless communications between user equipment and a communications
network, including:
Wireless facility includes small
wireless facilities. Wireless facility does not include:
The structure or improvements on,
under, or within which the equipment is collocated; or
Wireline backhaul facilities, coaxial
or fiber optic cable that is between wireless support structures or
utility poles or coaxial, or fiber optic cable that is otherwise not
immediately adjacent to or directly associated with an antenna.
Any person authorized to provide telecommunications service
in the State that builds or installs wireless communication transmission
equipment, wireless facilities, wireless support structures, or utility
poles and that is not a wireless services provider but is acting as
an agent or a contractor for a wireless services provider for the
application submitted to the City.
A wireless infrastructure provider or a wireless services
provider.
Any services provided to the general public, including a
particular class of customers, and made available on a nondiscriminatory
basis using licensed or unlicensed spectrum, whether at a fixed location
or mobile, provided using wireless facilities.
A person who provides wireless services.
A freestanding structure, such as a monopole; tower, either
guyed or self-supporting; billboard; or other existing or proposed
structure designed to support or capable of supporting wireless facilities.
Wireless support structure does not include a utility pole.
[Ord. No. 2018-61]
A.Â
Permitted use. Small wireless facilities
shall be classified as permitted uses and subject to administrative
review, except as provided in paragraph (C9) regarding height exceptions
or variances, but not subject to zoning review or approval if they
are collocated (i) in rights-of-way in any zoning district, or (ii)
outside rights-of-way in property zoned exclusively for commercial
or industrial use.
B.Â
Permit required. An applicant shall obtain
one or more permits from the City to collocate a small wireless facility.
An application shall be received and processed, and permits issued
shall be subject to the following conditions and requirements:
(1)Â
Application requirements. A wireless provider
shall provide the following information to the City, together with
the City's Small Cell Facilities Permit Application, as a condition
of any permit application to collocate small wireless facilities on
a utility pole or wireless support structure:
(b)Â
The location where each proposed
small wireless facility or utility pole would be installed and photographs
of the location and its immediate surroundings depicting the utility
poles or structures on which each proposed small wireless facility
would be mounted or location where utility poles or structures would
be installed. This should include a depiction of the completed facility;
(c)Â
Specifications and drawings prepared
by a structural engineer, as that term is defined in Section 4 of
the Structural Engineering Practice Act of 1989, for each proposed
small wireless facility covered by the application as it is proposed
to be installed;
(d)Â
The equipment type and model numbers
for the antennas and all other wireless equipment associated with
the small wireless facility;
(e)Â
A proposed schedule for the installation
and completion of each small wireless facility covered by the application,
if approved; and
(f)Â
Certification that the collocation
complies with the Collocation Requirements and Conditions contained
herein, to the best of the applicant's knowledge.
(g)Â
In the event that the proposed small
wireless facility is to be attached to an existing pole owned by an
entity other than the City, the wireless provider shall provide legally
competent evidence of the consent of the owner of such pole to the
proposed collocation.
(2)Â
Application process. The City shall process
applications as follows:
(a)Â
The first completed application shall
have priority over applications received by different applicants for
collocation on the same utility pole or wireless support structure.
(b)Â
An application to collocate a small
wireless facility on an existing utility pole or wireless support
structure, or replacement of an existing utility pole or wireless
support structure shall be processed on a nondiscriminatory basis
and shall be deemed approved if the City fails to approve or deny
the application within 90 days after the submission of a completed
application.
However, if an applicant intends
to proceed with the permitted activity on a deemed approved basis,
the applicant shall notify the City in writing of its intention to
invoke the deemed approved remedy no sooner than 75 days after the
submission of a completed application.
The permit shall be deemed approved
on the latter of the 90th day after submission of the complete application
or the 10th day after the receipt of the deemed approved notice by
the City. The receipt of the deemed approved notice shall not preclude
the City's denial of the permit request within the time limits as
provided under this Ordinance.
(c)Â
An application to collocate a small
wireless facility that includes the installation of a new utility
pole shall be processed on a nondiscriminatory basis and deemed approved
if the City fails to approve or deny the application within 120 days
after the submission of a completed application.
However, if an applicant intends
to proceed with the permitted activity on a deemed approved basis,
the applicant shall notify the City in writing of its intention to
invoke the deemed approved remedy no sooner than 105 days after the
submission of a completed application.
The permit shall be deemed approved
on the latter of the 120th day after submission of the complete application
or the 10th day after the receipt of the deemed approved notice by
the City. The receipt of the deemed approved notice shall not preclude
the City's denial of the permit request within the time limits as
provided under this article.
(d)Â
The City shall deny an application
that does not meet the requirements of this article.
[1]Â
If the City determines that applicable
codes, ordinances or regulations that concern public safety, or the
Collocation Requirements and Conditions contained herein require that
the utility pole or wireless support structure be replaced before
the requested collocation, approval shall be conditioned on the replacement
of the utility pole or wireless support structure at the cost of the
provider.
[2]Â
The City shall document the basis
for a denial, including the specific code provisions or application
conditions on which the denial is based, and send the documentation
to the applicant on or before the day the City denies an application.
[3]Â
The applicant may cure the deficiencies
identified by the City and resubmit the revised application once within
30 days after notice of denial is sent to the applicant without paying
an additional application fee. The City shall approve or deny the
revised application within 30 days after the applicant resubmits the
application or it is deemed approved. Failure to resubmit the revised
application within 30 days of denial shall require that the applicant
to submit a new application with applicable fees, and recommencement
of the City's review period.
[4]Â
The applicant must notify the City
in writing of its intention to proceed with the permitted activity
on a deemed approved basis, which may be submitted with the revised
application.
[5]Â
Any review of a revised application
shall be limited to the deficiencies cited in the denial. However,
this revised application cure does not apply if the cure requires
the review of a new location, new or different structure to be collocated
upon, new antennas, or other wireless equipment associated with the
small wireless facility.
(e)Â
Pole attachment agreement. Within
30 days after an approved permit to collocate a small wireless facility
on a municipal utility pole, the City and the applicant shall enter
into a Master Pole Attachment Agreement, provided by the City for
the initial collocation on a municipal utility pole by the application.
For subsequent approved permits to collocate a small wireless facility
on a municipal utility pole, the City and the applicant shall enter
into a License Supplement of the Master Pole Attachment Agreement.
(3)Â
Completeness of application. Within 30
days after receiving an application, the City shall determine whether
the application is complete and notify the applicant. If an application
is incomplete, the City must specifically identify the missing information.
An application shall be deemed complete if the City fails to provide
notification to the applicant within 30 days after all documents,
information and fees specifically enumerated in the City's permit
application form are submitted by the applicant to the City. Processing
deadlines are tolled from the time the City sends the notice of incompleteness
to the time the applicant provides the missing information.
(5)Â
Consolidated applications.
(a)Â
An applicant seeking to collocate
small wireless facilities within the jurisdiction of the City shall
be allowed, at the applicant's discretion, to file a consolidated
application and receive a single permit for the collocation of up
to 25 small wireless facilities if the collocations each involve substantially
the same type of small wireless facility and substantially the same
type of structure.
(b)Â
If an application includes multiple
small wireless facilities, the City may remove small wireless facility
collocations from the application and treat separately small wireless
facility collocations for which incomplete information has been provided
or that do not qualify for consolidated treatment or that are denied.
The City may issue separate permits for each collocation that is approved
in a consolidated application.
(6)Â
Duration of permits.
(a)Â
The duration of a permit shall be
for a period of not less than five years, and the permit shall be
renewed for equivalent durations unless the City makes a finding that
the small wireless facilities or the new or modified utility pole
do not comply with the applicable City codes or any provision, condition
or requirement contained in this article.
(b)Â
If the Act is repealed as provided
in Section 90 therein, renewals of permits shall be subject to the
applicable City code provisions or regulations in effect at the time
of renewal.
(7)Â
Means of submitting applications. Applicants
shall submit applications, supporting information and notices to the
City by personal delivery at the Department of Economic and Community
Development, by regular mail postmarked on the date due or by any
other commonly used means, including electronic mail.
[Amended 10-26-2020 by Ord. No. 2020-69]
C.Â
Collocation requirements and conditions.
(1)Â
Public safety space reservation. The City
may reserve space on municipal utility poles for future public safety
uses, for the City's electric utility uses, or both, but a reservation
of space may not preclude the collocation of a small wireless facility
unless the City reasonably determines that the municipal utility pole
cannot accommodate both uses.
(2)Â
Installation and maintenance. The wireless
provider shall install, maintain, repair and modify its small wireless
facilities in safe condition and good repair and in compliance with
the requirements and conditions of this article and applicable law.
The wireless provider shall ensure that its employees, agents or contractors
that perform work in connection with its small wireless facilities
are adequately trained and skilled in accordance with all applicable
industry and governmental standards and regulations.
(3)Â
No interference with public safety communication
frequencies.
(a)Â
The wireless provider's operation
of the small wireless facilities shall not interfere with the frequencies
used by a public safety agency for public safety communications.
(b)Â
A wireless provider shall install
small wireless facilities of the type and frequency that will not
cause unacceptable interference with a public safety agency's communications
equipment.
(c)Â
Unacceptable interference will be
determined by and measured in accordance with industry standards and
the FCC's regulations addressing unacceptable interference to public
safety spectrum or any other spectrum licensed by a public safety
agency.
(d)Â
If a small wireless facility causes
such interference, and the wireless provider has been given written
notice of the interference by the public safety agency, the wireless
provider, at its own expense, shall remedy the interference in a manner
consistent with the abatement and resolution procedures for interference
with public safety spectrum established by the FCC including 47 CFR
22.970 through 47 CFR 22.973 and 47 CFR 90.672 through 47 CFR 90.675.
(e)Â
The City may terminate a permit for
a small wireless facility based on such interference if the wireless
provider is not in compliance with the Code of Federal Regulations
cited in the previous paragraph. Failure to remedy the interference
as required herein shall constitute a public nuisance.
(4)Â
The wireless provider shall not collocate
small wireless facilities on City utility poles that are part of an
electric distribution or transmission system within the communication
worker safety zone of the pole or the electric supply zone of the
pole.
However, the antenna and support
equipment of the small wireless facility may be located in the communications
space on the City utility pole and on the top of the pole, if not
otherwise unavailable, if the wireless provider complies with applicable
codes for work involving the top of the pole.
For purposes of this subparagraph,
the terms "communications space," "communication worker safety zone,"
and "electric supply zone" have the meanings given to those terms
in the National Electric Safety Code as published by the Institute
of Electrical and Electronics Engineers.
(5)Â
The wireless provider shall comply with
all applicable codes and local code provisions or regulations that
concern public safety.
(6)Â
The wireless provider shall comply with
written design standards that are generally applicable for decorative
utility poles, or reasonable stealth, concealment and aesthetic requirements
that are set forth in a City ordinance, written policy adopted by
the City, a Comprehensive Plan or other written design plan that applies
to other occupiers of the rights-of-way, including on a historic landmark
or in a historic district.
(7)Â
Alternate placements.
(a)Â
Except as provided in this collocation
requirements and conditions section, a wireless provider shall not
be required to collocate small wireless facilities on any specific
utility pole, or category of utility poles, or be required to collocate
multiple antenna systems on a single utility pole. However, with respect
to an application for the collocation of a small wireless facility
associated with a new utility pole, the City may propose that the
small wireless facility be collocated on an existing utility pole
or existing wireless support structure within 100 feet of the proposed
collocation, which the applicant shall accept if it has the right
to use the alternate structure on reasonable terms and conditions,
and the alternate location and structure does not impose technical
limits or additional material costs as determined by the applicant.
(b)Â
If the applicant refuses a collocation
proposed by the City, the applicant shall provide written certification
describing the property rights, technical limits or material cost
reasons the alternate location does not satisfy the criteria in this
paragraph.
(8)Â
Height limitations.
(a)Â
The maximum height of a small wireless
facility shall be no more than 10 feet above the utility pole or wireless
support structure on which the small wireless facility is collocated.
(b)Â
New or replacement utility poles
or wireless support structures on which small wireless facilities
are collocated may not exceed the higher of:
[1]Â
Ten feet in height above the tallest
existing utility pole, other than a utility pole supporting only wireless
facilities, that is in place on the date the application is submitted
to the City, that is located within 300 feet of the new or replacement
utility pole or wireless support structure and that is in the same
right-of-way within the jurisdictional boundary of the City, provided
the City may designate which intersecting right-of-way within 300
feet of the proposed utility pole or wireless support structures shall
control the height limitation for such facility; or
[2]Â
Forty-five feet above ground level.
(9)Â
Height exceptions or variances. If an applicant proposes a height for a new or replacement pole in excess of the above height limitations on which the small wireless facility is proposed for collocation, the applicant shall apply for a variance in conformance with procedures, terms and conditions set forth in Chapter 44 of the City code.
(10)Â
Contractual design requirements.
The wireless provider shall comply with requirements that are imposed
by a contract between the City and a private property owner that concern
design or construction standards applicable to utility poles and ground-mounted
equipment located in the right-of-way.
(11)Â
Ground-mounted equipment spacing.
The wireless provider shall comply with applicable spacing requirements
in applicable codes and ordinances concerning the location of ground-mounted
equipment located in the right-of-way if the requirements include
a waiver, zoning or other process that addresses wireless provider
requests for exception or variance and do not prohibit granting of
such exceptions or variances.
(12)Â
Undergrounding regulations. The wireless
provider shall comply with local code provisions or regulations concerning
undergrounding requirements that prohibit the installation of new
or the modification of existing utility poles in a right-of-way without
prior approval if the requirements include a waiver, zoning or other
process that addresses requests to install such new utility poles
or modify such existing utility poles and do not prohibit the replacement
of utility poles.
(13)Â
Collocation completion deadline.
Collocation for which a permit is granted shall be completed within
180 days after issuance of the permit, unless the City and the wireless
provider agree to extend this period or a delay is caused by make-ready
work for a municipal utility pole or by the lack of commercial power
or backhaul availability at the site, provided the wireless provider
has made a timely request within 60 days after the issuance of the
permit for commercial power or backhaul services, and the additional
time to complete installation does not exceed 360 days after issuance
of the permit. Otherwise, the permit shall be void unless the City
grants an extension in writing to the applicant.
D.Â
Application fees. Application fees are
imposed as follows:
(1)Â
Applicant shall pay an application fee
as set forth in the Schedule of Fees for an application to collocate
a single small wireless facility on an existing utility pole or wireless
support structure, and for each small wireless facility addressed
in a consolidated application to collocate more than one small wireless
facility on existing utility poles or wireless support structures.
[Ord. No. 2018-89]
(2)Â
Applicant shall pay an application fee
as set forth in the Schedule of Fees for each small wireless facility
addressed in an application that includes the installation of a new
utility pole for such collocation.
[Ord. No. 2018]
(3)Â
Notwithstanding any contrary provision
of State law or local ordinance, applications pursuant to this section
shall be accompanied by the required application fee. Application
fees shall be non-refundable.
(4)Â
The City shall not require an application,
approval or permit, or require any fees or other charges, from a communications
service provider authorized to occupy the rights-of-way, for:
(a)Â
Routine maintenance;
(b)Â
The replacement of wireless facilities with wireless facilities that are substantially similar, the same size, or smaller if the wireless provider notifies the City at least 10 days prior to the planned replacement and includes equipment specifications for the replacement of equipment consistent with Subsection B(1)(d) of this section; or
(c)Â
The installation, placement, maintenance,
operation or replacement of micro wireless facilities suspended on
cables that are strung between existing utility poles in compliance
with applicable safety codes.
(5)Â
Wireless providers shall secure a permit
from the City to work within rights-of-way for activities that affect
traffic patterns or require lane closures.
E.Â
Exceptions to applicability.
(1)Â
Nothing in this article authorizes a person
to collocate small wireless facilities on:
(a)Â
Property owned by a private party
or property owned or controlled by the City or another unit of local
government that is not located within rights-of-way, or a privately
owned utility pole or wireless support structure without the consent
of the property owner;
(b)Â
Property owned, leased, or controlled
by a park district, forest preserve district, or conservation district
for public park, recreation or conservation purposes without the consent
of the affected district, excluding the placement of facilities on
rights-of-way located in an affected district that are under the jurisdiction
and control of a different unit of local government as provided by
the Illinois Highway Code; or
(c)Â
Property owned by a rail carrier
registered under Section 18c-7201 of the Illinois Vehicle Code,[2] Metra Commuter Rail or any other public commuter rail service, or an electric utility as defined in Section 16-102 of the Public Utilities Act,[3] without the consent of the rail carrier, public commuter
rail service, or electric utility. The provisions of this Ordinance
do not apply to an electric or gas public utility or such utility's
wireless facilities if the facilities are being used, developed and
maintained consistent with the provisions of Subsection I of Section
16-108.5 of the Public Utilities Act.[4]
(2)Â
For the purposes of this subsection, "public
utility" has the meaning given to that term in Section 3-105 of the
Public Utilities Act.[5] Nothing in this Ordinance shall be construed to relieve
any person from any requirement (a) to obtain a franchise or a State-issued
authorization to offer cable service or video service or (b) to obtain
any required permission to install, place, maintain, or operate communications
facilities, other than small wireless facilities subject to this Ordinance.
[5]
Editor's Note: See 220 ILCS 5/3-105.
F.Â
Preexisting agreements.
(1)Â
Existing agreements between the City and
wireless providers that relate to the collocation of small wireless
facilities in the right-of-way, including the collocation of small
wireless facilities on City utility poles, that are in effect on June
1, 2018, remain in effect for all small wireless facilities collocated
on the City's utility poles pursuant to applications submitted to
the City before June 1, 2018, subject to applicable termination provisions
contained therein. Agreements entered into after June 1, 2018, shall
comply with this Ordinance.
(2)Â
A wireless provider that has an existing
agreement with the City on the effective date of the Act may accept
the rates, fees and terms that the City makes available under this
Ordinance for the collocation of small wireless facilities or the
installation of new utility poles for the collocation of small wireless
facilities that are the subject of an application submitted two or
more years after the effective date of the Act by notifying the City
that it opts to accept such rates, fees and terms. The existing agreement
remains in effect, subject to applicable termination provisions, for
the small wireless facilities the wireless provider has collocated
on the City's utility poles pursuant to applications submitted to
the City before the wireless provider provides such notice and exercises
its option under this paragraph.
G.Â
Annual recurring rate. A wireless provider
shall pay to the City an annual recurring rate to collocate a small
wireless facility on a City utility pole located in a right-of-way
that equals (i) $200 per year or (ii) the actual, direct and reasonable
costs related to the wireless provider's use of space on the City
utility pole. If the City has not billed the wireless provider actual
and direct costs, the fee shall be $200 payable on the first day after
the first annual anniversary of the issuance of the permit or notice
of intent to collocate, and on each annual anniversary date thereafter.
H.Â
Abandonment. A small wireless facility
that is not operated for a continuous period of 12 months shall be
considered abandoned. The owner of the facility shall remove the small
wireless facility within 90 days after receipt of written notice from
the City notifying the wireless provider of the abandonment. The notice
shall be sent by certified or registered mail, return receipt requested,
by the City to the owner at the last known address of the wireless
provider. If the small wireless facility is not removed within 90
days of such notice, the City may remove or cause the removal of such
facility pursuant to the terms of its pole attachment agreement for
municipal utility poles or through whatever actions are provided for
abatement of nuisances or by other law for removal and cost recovery.
A wireless provider shall provide written notice to the City if it
sells or transfers small wireless facilities within the jurisdiction
of the City. Such notice shall include the name and contact information
of the new wireless provider.
[Ord. No. 2018-61]
In addition to any other applicable
design standards as set forth in this article or in an applicable
code or law, a wireless provider shall comply with the following design
standards:
A.Â
Screening. Whenever any equipment or appurtenances,
i.e., cabinet, controller, etc., are to be installed, screening must
be installed to minimize the visibility of such equipment or appurtenance
and shall not be permitted to obstruct sight lines or to create other
traffic or safety problems.
B.Â
Color and stealth. All small wireless facilities,
including all related equipment and appurtenances, must be a color
that blends with the surroundings of the utility pole, wireless support
structure, or other structure on which such facility or equipment
is mounted, placed, or collocated. The color must be comprised of
nonreflective materials which blend with the materials and colors
of the surrounding area and structures. The applicant shall use good
faith efforts to employ reasonable stealth techniques to conceal the
appearance of a small wireless facility or its related equipment and
appurtenances.
C.Â
Utility poles; wireless support structures;
extensions. Any utility pole extension or wireless support structure
extension must blend with the color of the utility pole or wireless
support structure upon which such extension is mounted. Any new utility
pole or replacement utility pole must blend with the color, style,
and structure of any surrounding utility poles or wireless support
structures.
D.Â
Size. The applicant shall make good faith
efforts to ensure the silhouette of a small wireless facility and
its related equipment and appurtenances are reduced to minimize visual
impact.
[Ord. No. 2018-61]
In addition to any other applicable
safety standards as set forth in in this article or in an applicable
code or law, a wireless provider shall comply with the following safety
standards:
A.Â
A small wireless facility and any related
equipment or appurtenance shall not be collocated in a manner so as
to obstruct or interfere with a motorist's view of roadways, nor shall
any small wireless facility and any related equipment or appurtenance
be collocated in a manner that obstructs the view of a motorist at
an intersection.
B.Â
All small wireless facilities shall comply
with tornado design standards as contained in the EIA-TIA 222 (latest
version).
C.Â
Any and all transmission cables and cable
trays deployed horizontally above the ground between any number of
small wireless facilities and its equipment, or between any number
of small wireless facilities, or between any number of small wireless
facilities' equipment, shall be at least eight feet above the ground
at all points.
D.Â
Wires and cables connecting the antenna
to the remainder of the small wireless facility must be installed
in accordance with the national electrical code, national electrical
safety code, and any other applicable code adopted by the City Code
and in force at the time of the installation of the small wireless
facility. Any wiring must be covered with an appropriate cover. No
wiring or cabling serving the facility will be allowed to interfere
with any existing uses.
E.Â
No signage is permitted on any small wireless
facility or its related equipment or appurtenances other than signs
that are required for public safety purposes, by law, or by the FCC,
FAA, or other similar governmental agency.
[Ord. No. 2018-61]
[Ord. No. 2018-61]
The Circuit Court of McLean County
shall have exclusive jurisdiction to resolve all disputes arising
under the Small Wireless Facilities Deployment Act. Pending resolution
of a dispute concerning rates for collocation of small wireless facilities
on municipal utility poles within the right-of-way, the City shall
allow the collocating person to collocate on its poles at annual rates
of no more than $200 per year per municipal utility pole, with rates
to be determined upon final resolution of the dispute.
[Ord. No. 2018-61]
A wireless provider shall indemnify
and hold the City and its officers, employees, and agents harmless
against any and all liability or loss from personal injury or property
damage resulting from or arising out of, in whole or in part, the
use or occupancy of the City improvements or right-of-way associated
with such improvements by the wireless provider or its employees,
agents, or contractors arising out of the rights and privileges granted
under this Ordinance and the Act. A wireless provider has no obligation
to indemnify or hold harmless against any liabilities and losses as
may be due to or caused by the sole negligence of the City or its
employees or agents. A wireless provider shall further waive any claims
that they may have against the City with respect to consequential,
incidental, or special damages, however caused, based on the theory
of liability.
A.Â
The wireless provider shall carry, at the
wireless provider's own cost and expense, the following insurance:
(1)Â
Property insurance for its property's replacement
cost against all risks;
(2)Â
Workers' compensation insurance, as required
by law; or
(3)Â
Commercial general liability insurance
with respect to its activities on the City improvements or rights-of-way
to afford minimum protection limits consistent with its requirements
of other users of City improvements or rights-of-way, including coverage
for bodily injury and property damage.
B.Â
The wireless provider shall include the
City as an additional insured on the commercial general liability
policy and provide certification and documentation of inclusion of
the City in a commercial general liability policy prior to the collocation
of any wireless facility.
C.Â
A wireless provider may self-insure all
or a portion of the insurance coverage and limit requirement required
by the City. A wireless provider that self-insures is not required,
to the extent of the self-insurance, to comply with the requirement
for the name of additional insureds under this section. A wireless
provider that elects to self-insure shall provide to the City evidence
sufficient to demonstrate its financial ability to self-insure the
insurance coverage limits required by the City.
[Ord. No. 2018-61]
[Ord. No. 2018-61]
If any provision of this Ordinance
or application thereof to any person or circumstances is ruled unconstitutional
or otherwise invalid, such invalidity shall not affect other provisions
or applications of this Ordinance that can be given effect without
the invalid application or provision, and each invalid provision or
invalid application of this Ordinance is severable.
