[R.O. 2009 § 525.010; Ord. No. 3541, 7-9-2019]
A. Title And Statement Of Purpose. This Chapter
shall be known and may be cited as the "Small Wireless Facility Deployment
Code," and it is intended to establish a uniform and consistent approach
to handling requests for the deployment of small wireless facilities
in the City, consistent with State and Federal law including Sections
67.5110 to 67.5121, RSMo. (while in effect), and Sections 67.1830
to 67.1846, RSMo. City ordinances shall apply to small wireless deployments
except to the extent inconsistent with this Chapter. This Chapter
shall apply to all Persons desiring to construct, operate, or maintain
small wireless facilities within the City.
B. Applicability; Preemption. Notwithstanding
any ordinance to the contrary, the procedures set forth in this Chapter
shall be applicable to all wireless communication facilities existing
or installed, built or modified after the effective date of this Chapter
to the fullest extent permitted by law. No provision of this Chapter
shall apply to any circumstance in which such application shall be
unlawful under superseding Federal or State law and furthermore, if
any Section, Subsection, sentence, clause, phrase, or portion of this
Chapter is now or in the future superseded or preempted by State or
Federal law or found by a court of competent jurisdiction to be unauthorized,
such provision shall be automatically interpreted and applied as required
by law.
[R.O. 2009 § 525.020; Ord. No. 3541, 7-9-2019]
As used in this Chapter, the following
terms shall mean:
ANTENNA
Communications equipment that transmits or receives electromagnetic
radio frequency signals used in the provision of wireless services.
APPLICABLE CODES
Uniform building, fire, electrical, plumbing, or mechanical
codes adopted by a recognized national code organization or the City's
amendments to such codes enacted to prevent physical property damage
or reasonably foreseeable injury to persons to the extent not inconsistent
with Sections 67.5110 to 67.5121, RSMo. (while in effect).
APPLICANT
Any person who submits an application and is a wireless provider.
APPLICATION
A request submitted by an applicant to the City for a permit
to collocate small wireless facilities on a utility pole or wireless
support structure, or to approve the installation, modification, or
replacement of a utility pole.
AUTHORITY POLE or CITY POLE
A utility pole owned, managed, or operated by or on behalf
of the City, but such term shall not include municipal electric utility
distribution poles.
COLLOCATE or COLLOCATION
To install, mount, maintain, modify, operate, or replace
small wireless facilities on or immediately adjacent to a wireless
support structure or utility pole, provided that the small wireless
facility antenna is located on the wireless support structure or utility
pole.
COMMUNICATIONS FACILITY
The set of equipment and network components, including wires,
cables, and associated facilities used by a cable operator, as defined
in 47 U.S.C. § 522(5); a telecommunications carrier, as
defined in 47 U.S.C. § 153(51); a provider of information
service, as defined in 47 U.S.C. § 153(24); or a wireless
services provider; to provide communications services, including cable
service, as defined in 47 U.S.C. § 522(6); telecommunications
service, as defined in 47 U.S.C. § 153(53); an information
service, as defined in 47 U.S.C. § 153(24); wireless communications
service; or other one-way or two-way communications service.
COMMUNICATIONS SERVICE PROVIDER
A cable operator, as defined in 47 U.S.C. § 522(5);
a provider of information service, as defined in 47 U.S.C. § 153(24);
a telecommunications carrier, as defined in 47 U.S.C. § 153(51);
or a wireless provider.
DECORATIVE POLE
A City pole that is specially designed and placed for aesthetic
purposes.
FEE
A one-time, non-recurring charge.
HISTORIC DISTRICT
A group of buildings, properties, or sites that are either
listed in the National Register of Historic Places or formally determined
eligible for listing by the Keeper of the National Register, the individual
who has been delegated the authority by the Federal agency to list
properties and determine their eligibility for the National Register,
in accordance with Section VI.D.1.a.i-v of the Nationwide Programmatic
Agreement codified at 47 CFR Part 1, Appendix C, or are otherwise
located in a district made subject to special design standards adopted
by City ordinance or under State law as of January 1, 2018, or subsequently
enacted for new developments.
MICRO WIRELESS FACILITY
A small wireless facility that meets the following qualifications.
1.
Is not larger in dimension than twenty-four
(24) inches in length, fifteen (15) inches in width, and twelve (12)
inches in height; and
2.
Any exterior antenna no longer than
eleven (11) inches.
PERMIT
A written authorization required by the City to perform an
action or initiate, continue, or complete a project.
PERSON
An individual, corporation, limited liability company, partnership,
association, trust, or other entity or organization, including any
government authority.
RIGHT-OF-WAY
The area on, below, or above a public roadway, highway, street,
sidewalk, alley, or similar property used for public travel, but not
including a Federal interstate highway, railroad right-of-way, or
private easement.
SMALL WIRELESS FACILITY
A wireless facility that meets both of the following qualifications:
1.
Each wireless provider's antenna
could fit within an enclosure of no more than six (6) cubic feet in
volume; and
2.
All other equipment associated with
the wireless facility, whether ground or pole-mounted, is cumulatively
no more than twenty-eight (28) cubic feet in volume, provided that
no single piece of equipment on the utility pole shall exceed nine
(9) cubic feet in volume; and no single piece of ground mounted equipment
shall exceed fifteen (15) cubic feet in volume, exclusive of equipment
required by an electric utility or municipal electric utility to power
the small wireless facility.
The following types of associated
ancillary equipment shall not be included in the calculation of equipment
volume: electric meter, concealment elements, telecommunications demarcation
box, grounding equipment, power transfer switch, cut-off switch, and
vertical cable runs and related conduit for the connection of power
and other services.
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TECHNICALLY FEASIBLE
By virtue of engineering or spectrum usage, the proposed
placement for a small wireless facility or its design or site location
can be implemented without a reduction in the functionality of the
small wireless facility.
UTILITY POLE
A pole or similar structure that is or may be used in whole
or in part by or for wireline communications, electric distribution,
lighting, traffic control, signage, or a similar function, or for
the collocation of small wireless facilities; provided, however, such
term shall not include wireless support structures, electric transmission
structures, or breakaway poles owned by the State Highways and Transportation
Commission.
WIRELESS FACILITY
Equipment at a fixed location that enables wireless communications
between user equipment and a communications network, including equipment
associated with wireless communications and radio transceivers, antennas,
coaxial or fiber-optic cable, regular and backup power supplies, and
comparable equipment, regardless of technological configuration. The
term includes small wireless facilities. The term does not include:
1.
The structure or improvements on,
under, or within which the equipment is collocated;
2.
Coaxial or fiber-optic cable between
wireless support structures or utility poles;
3.
Coaxial or fiber-optic cable not
directly associated with a particular small wireless facility;
4.
A wireline backhaul facility.
WIRELESS INFRASTRUCTURE PROVIDER
Any person, including a person authorized to provide telecommunications
service in the State, that builds or installs wireless communication
transmission equipment or wireless facilities but that is not a wireless
services provider.
WIRELESS PROVIDER
A wireless infrastructure provider or a wireless services
provider.
WIRELESS SERVICES
Any services using licensed or unlicensed spectrum, including
the use of Wi-Fi, whether at a fixed location or mobile, provided
to the public using wireless facilities.
WIRELESS SUPPORT STRUCTURE
An existing structure, such as a monopole or tower, whether
guyed or self-supporting, designed to support or capable of supporting
wireless facilities; an existing or proposed billboard; an existing
or proposed building; or other existing or proposed structure capable
of supporting wireless facilities, other than a structure designed
solely for the collocation of small wireless facilities. Such term
shall not include a utility pole.
WIRELINE BACKHAUL FACILITY
A physical transmission path, all or part of which is within
the right-of-way, used for the transport of communication data by
wire from a wireless facility to a network.
[R.O. 2009 § 525.030; Ord. No. 3541, 7-9-2019]
A. The provisions of this Section shall only
apply to activities of a wireless provider within the right-of-way
to deploy small wireless facilities and associated utility poles.
B. Subject to the provisions of this Section
and Sections 67.5110 to 67.5121, RSMo. (while in effect), a wireless
provider may, as a permitted use not subject to zoning review or approval,
collocate small wireless facilities and install, maintain, modify,
operate, and replace utility poles along, across, upon, and under
the right-of-way, except that the placement in the right-of-way of
new or modified utility poles in single-family residential zoning
districts or areas zoned as historic as of August 28, 2018, shall
remain subject to any applicable zoning requirements that are consistent
with Sections 67.5090 to 67.5103, RSMo. Small wireless facilities
collocated outside the right-of-way in property not zoned primarily
for single-family residential use shall be classified as permitted
uses and not subject to zoning review or approval. Such small wireless
facilities and utility poles shall be installed and maintained as
not to obstruct or hinder the usual travel or public safety on such
right-of-way or obstruct the legal use of such right-of-way by the
City, other governmental authorities or other authorized right-of-way
users.
C. A wireless provider must obtain a permit
from the City and with such reasonable conditions as may be imposed
by the City, for work in a right-of-way that will involve excavation,
affect traffic patterns, obstruct traffic in the right-of-way, or
materially impede the use of a sidewalk.
D. Each new, replacement, or modified utility
pole installed in the right-of-way shall not exceed the greater of
ten (10) feet in height above the tallest existing utility pole in
place as of January 1, 2019, located within five hundred (500) feet
of the new pole in the same right-of-way, or fifty (50) feet above
ground level. New small wireless facilities in the right-of-way shall
not extend more than ten (10) feet above an existing utility pole
in place as of August 28, 2018, or for small wireless facilities on
a new utility pole, above the height permitted for a new utility pole.
A new, modified, or replacement utility pole that exceeds these height
limits shall be subject to all applicable zoning requirements that
apply to other utility poles, to the extent consistent with Sections
67.5090 to 67.5103, RSMo.
E. A wireless provider shall be permitted
to replace decorative poles when necessary to collocate a small wireless
facility, but any replacement pole shall reasonably conform to the
design aesthetics of the decorative pole or poles being replaced,
as determined by the Public Works Director.
F. Subject to Subsection
525.040(C), and except for facilities excluded from evaluation for effects on historic properties under 47 CFR 1.1307(a)(4) of the Federal Communications Commission rules, a wireless provider must use appropriate and reasonable, technically feasible, non-discriminatory, and technologically neutral design or concealment measures in a historic district. Any such design or concealment measures shall not have the effect of prohibiting any provider's technology, nor shall any such measures be considered a part of the small wireless facility for purposes of the size restrictions in the definition of small wireless facility.
G. Small wireless facility collocations shall
not interfere with or impair the operation of existing utility facilities,
or City, or third-party attachments. A wireless provider shall repair,
at the wireless provider's expense, all damage to the right-of-way
directly caused by the activities of the wireless provider in the
right-of-way and shall return the right-of-way to its functional equivalence
before the damage under the competitively neutral, reasonable requirements
and specifications of the City. If the wireless provider fails to
make the repairs required by the City within a reasonable time after
written notice, the City may make those repairs and charge the wireless
provider the reasonable, documented cost of such repairs.
[R.O. 2009 § 525.040; Ord. No. 3541, 7-9-2019]
A. The provisions of this Section shall apply
to the permitting of small wireless facilities to be installed by
or for a wireless provider in or outside the right-of-way and to the
permitting of the installation, modification, and replacement of utility
poles by a wireless provider inside the right-of-way.
B. Wireless providers or their agents shall apply for and obtain a permit pursuant to applicable Code and this Chapter to collocate a small wireless facility or install a new, modified, or replacement utility pole associated with a small wireless facility as provided in Section
525.030 above. The City shall receive applications for, process, and issue such permits subject to the following requirements:
1.
An applicant shall not be required
to perform services or provide goods unrelated to the permit, such
as in-kind contributions to the City, including reserving fiber, conduit,
or pole space for the City.
2.
An applicant shall not be required to provide more information to obtain a permit than communications service providers that are not wireless providers, provided that an applicant shall include construction and stamped engineering drawings and information demonstrating compliance with the criteria in Subsection (I) of this Section and an attestation that the small wireless facility complies with the volumetric limitations in the definition of small wireless facility of Section
525.020 above.
3.
An applicant shall not be required
to place small wireless facilities on any specific utility pole or
category of poles or require multiple antenna systems on a single
utility pole.
4.
There is no limit as to the placement
of small wireless facilities by minimum horizontal separation distances.
5.
An applicant shall comply with reasonable,
objective, and cost-effective concealment or safety requirements as
provided herein.
6.
An applicant that is not a wireless
services provider shall provide evidence of agreements or plans demonstrating
that the small wireless facilities will be operational for use by
a wireless services provider within one (1) year after the permit
issuance date, unless the City and the applicant agree to extend this
period or if delay is caused by lack of commercial power or communications
transport facilities to the site and the applicant notifies the City
thereof. An applicant that is a wireless services provider shall provide
the information required by this Subsection by attestation.
7.
Within fifteen (15) days of receiving
an application, the City shall determine and notify the applicant,
in writing, whether the application is complete. If an application
is incomplete, the City shall specifically identify the missing information
in writing. The processing deadline in Subsection (H) of this Section
shall be tolled from the time the City sends the notice of incompleteness
to the time the applicant provides the missing information. That processing
deadline may also be tolled by agreement of the applicant and the
City.
8.
An application for collocation shall
be processed on a non-discriminatory basis and deemed approved if
the City fails to approve or deny the application within forty-five
(45) days of receipt of the application. An application for installation
of a new, modified, or replacement utility pole associated with a
small wireless facility shall be processed on a non-discriminatory
basis and deemed approved if the City fails to approve or deny the
application within sixty (60) days of receipt of the application.
9.
The City may deny a proposed collocation
of a small wireless facility or installation, modification, or replacement
of a utility pole that meets the requirements in Section 67.5112.3,
RSMo., only if the action proposed in the application could reasonably
be expected to:
a.
Materially interfere with the safe
operation of traffic control equipment or City-owned communications
equipment;
b.
Materially interfere with sight lines
or clear zones for transportation, pedestrians, or non-motorized vehicles;
c.
Materially interfere with compliance
with the Americans with Disabilities Act, 42 U.S.C. §§ 12101
to 12213, or similar Federal or State standards regarding pedestrian
access or movement;
d.
Materially obstruct or hinder the
usual travel or public safety on the right-of-way;
e.
Materially obstruct the legal use
of the right-of-way by the City, a utility, or other third party;
f.
Fail to comply with reasonable and
non-discriminatory spacing requirements of general application adopted
by ordinance or regulations promulgated by the State Highways and
Transportation Commission that concern the location of ground mounted
equipment and new utility poles. Such spacing requirements shall not
prevent a wireless provider from serving any location and shall include
a waiver, zoning, or other process that addresses wireless provider
requests for exception or variance and does not prohibit granting
of such exceptions or variances;
g.
Fail to comply with applicable codes,
including nationally recognized engineering standards for utility
poles or wireless support structures;
h.
Fail to comply with the reasonably
objective and documented aesthetics of a decorative pole and the applicant
does not agree to pay to match the applicable decorative elements;
i.
Fail to comply with reasonable and
non-discriminatory undergrounding requirements contained in City ordinances
as of January 1, 2018, or subsequently enacted for new developments,
that require all new utility facilities in the area to be placed underground
and prohibit the installation of new or the modification of existing
utility poles in a right-of-way without prior approval, provided that
such requirements include a waiver or other process of addressing
requests to install such utility poles and do not prohibit the replacement
or modification of existing utility poles consistent with this Section
or the provision of wireless services.
10.
The City shall document the complete
basis for a denial in writing, and send the documentation to the applicant
with the communication denying an application. The applicant may cure
the deficiencies identified by the City and resubmit the application
within thirty (30) days of the denial without paying an additional
application fee. The City shall approve or deny the revised application
within thirty (30) days. Any subsequent review shall be limited to
the deficiencies cited in the denial.
11.
Consolidated Applications.
a.
An applicant may file a consolidated
application and receive a single permit for the collocation of multiple
small wireless facilities; provided, however, the denial of one (1)
or more small wireless facilities in a consolidated application shall
not delay processing of any other small wireless facilities in the
same batch; and
b.
An application may include up to
twenty (20) separate small wireless facilities, provided that they
are for the same or materially same design of small wireless facility
being collocated on the same or materially the same type of utility
pole or wireless support structure, and geographically proximate.
If the City receives individual applications for approval of more
than fifty (50) small wireless facilities or consolidated applications
for approval of more than seventy-five (75) small wireless facilities
within a fourteen-day period, whether from a single applicant or multiple
applicants, the City may, upon its own request, obtain an automatic
thirty-day extension for any additional collocation or replacement
or installation application submitted during that fourteen-day period
or in the fourteen-day period immediately following the prior fourteen-day
period. The City shall promptly communicate its request to each affected
applicant. In rendering a decision on an application for multiple
small wireless facilities, the City may approve the application as
to certain individual small wireless facilities while denying it as
to others based on applicable requirements and standards, including
those identified in this Subsection. The City's denial of any individual
small wireless facility or subset of small wireless facilities within
an application shall not be a basis to deny the application as a whole.
12.
Installation or collocation for which
a permit is granted under this Chapter shall be completed within one
(1) year after the permit issuance date unless the City and the applicant
agree to extend this period, or the applicant notifies the City that
the delay is caused by a lack of commercial power or communications
transport facilities to the site.
13.
Approval of an application authorizes
the applicant to:
a.
Undertake the installation or collocation;
and
b.
Operate and maintain the small wireless
facilities and any associated utility pole covered by the permit for
a period of ten (10) years, which shall be renewed for equivalent
durations so long as the facilities and poles remain in compliance
with the criteria set forth in Subsection (I) of this Section, unless
the applicant and the City agree to an extension term of less than
ten (10) years. The provisions of this Subsection shall be subject
to the right of the City to require, upon adequate notice and at the
facility owner's own expense, relocation of facilities as may be needed
in the interest of public safety and convenience, and the applicant's
right to terminate at any time.
14.
Abandoned small wireless facilities shall be removed as provided in Section
525.130 or an agreement, as applicable.
15.
In determining whether sufficient
capacity exists to accommodate the attachment of a new small wireless
facility, the City shall take into account that any grant of access
hereunder shall be subject to a reservation to reclaim such space,
when and if needed, to meet a core utility purpose or documented plan
projected at the time of the application pursuant to a bona fide development
plan.
16.
In emergency circumstances that result
from a natural disaster or accident, the City may require the owner
or operator of a wireless facility to immediately remove such facility
if the wireless facility is obstructing traffic or causing a hazard
on the City's roadway, at the expense of the owner or operator of
the wireless facility. In the event that the owner or operator of
the wireless facility is unable to immediately remove the wireless
facility, the City may remove the wireless facility from the roadway
or other position that renders the wireless facility hazardous. Under
these emergency circumstances, the City shall not be liable for any
damage caused by removing the wireless facility and may charge the
owner or operator of the wireless facility the City's reasonable expenses
incurred in removing the wireless facility.
C. A permit is not required for:
1.
Routine maintenance on previously
permitted small wireless facilities;
2.
The replacement of small wireless
facilities with small wireless facilities that are the same or smaller
in size, weight, and height; or
3.
The installation, placement, maintenance,
operation, or replacement of micro wireless facilities that are strung
on cables between utility poles, in compliance with applicable codes.
For work described in Subsection (C)(1) and (2) that involves different equipment than that being replaced, the wireless services provider shall submit a description of such new equipment so that the City may maintain an accurate inventory of the small wireless facilities at that location.
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For work described in Subsection (C)(1) (2), and (3), the wireless provider shall provide at least five (5) business days' notice by e-mail to the Public Works Director for any work that may affect traffic patterns, obstruct traffic in the right-of-way, or materially impede the use of a sidewalk. All work that may affect traffic patterns or, obstruct traffic in the right-of-way shall require an approved traffic management plan and must adhere to the Manual on Uniform Traffic Control Devices (MUTCD) for traffic control in a work zone. In cases of emergency, the wireless provider may proceed with required work without providing at least five (5) business days' notice; however, all emergency work shall be reported as soon as reasonably practicable by e-mail to the Public Works Director. All emergency work occurring outside of business hours shall be immediately reported to an on-call Public Works employee. All emergency work which will or may affect traffic upon a road or vehicular access to a road must be coordinated with the City's Police Department.
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D. No approval for the installation, placement,
maintenance, or operation of a small wireless facility under this
Chapter shall be construed to confer authorization for the provision
of cable television service, or installation, placement, maintenance,
or operation of a wireline backhaul facility or communications facility,
other than a small wireless facility, in the right-of-way.
E. If applicable, the municipal electric utility
shall not require an application for the installation, placement,
maintenance, operation, or replacement of micro wireless facilities
that are strung on cables between utility poles, in compliance with
applicable codes.
[R.O. 2009 § 525.050; Ord. No. 3541, 7-9-2019]
A. This Section only applies to collocations
on City poles and wireless support structures that are located outside
the right-of-way.
B. Subject to Subsection
(C) of this Section, the City shall authorize the collocation of small wireless facilities on City wireless support structures and poles to the same extent, if any, that it permits access to such structures for other commercial projects or uses. Such collocations shall be subject to reasonable and non-discriminatory rates, fees, and terms as provided in an agreement between the City, or its agent, and the wireless provider.
C. The City shall not enter into an exclusive
agreement with a wireless provider concerning City poles or wireless
support structures, including stadiums and enclosed arenas, unless
the agreement meets the following requirements:
1.
The wireless provider provides service
using a shared network of wireless facilities that it makes available
for access by other wireless providers, on reasonable and non-discriminatory
rates and terms that shall include use of the entire shared network,
as to itself, an affiliate, or any other entity; or
2.
The wireless provider allows other
wireless providers to collocate small wireless facilities, on reasonable
and non-discriminatory rates and terms, as to itself, an affiliate,
or any other entity.
D. When determining whether a rate, fee, or
term is reasonable and non-discriminatory for the purposes of this
Section, consideration may be given to any relevant facts, including
alternative financial or service remuneration, characteristics of
the proposed equipment or installation, structural limitations, or
other commercial or unique features or components.
[R.O. 2009 § 525.060; Ord. No. 3541, 7-9-2019]
A. The provisions of this Section apply to
collocations on City poles within the right-of-way by a wireless provider.
B. Neither the City nor any person owning,
managing, or controlling City poles in the right-of-way shall enter
into an exclusive arrangement with any person for the right to attach
to such poles. A person who purchases or otherwise acquires a City
pole is subject to the requirements of this Section.
C. The City shall allow the collocation of small wireless facilities on its poles using the process set forth in Section
525.040.
D. An application shall include sealed engineering
and construction drawings, as well as plans and detailed cost estimates
for any make-ready work as needed, for which the applicant shall be
solely responsible.
E. Make-ready work shall be addressed as follows,
unless the City (or its successor) and applicant agree to different
terms in a pole attachment agreement:
1.
The rates, fees, and terms and conditions
for the make-ready work to collocate on a City pole shall be non-discriminatory,
competitively neutral, and commercially reasonable, and shall comply
with Sections 67.5110 to 67.5121, RSMo.;
2.
Unless the City allows the applicant
to perform any make-ready work, the City shall provide a good faith
estimate for any make-ready work necessary to enable the pole to support
the requested collocation by a wireless provider, including pole replacement
if necessary, within sixty (60) days after receipt of a complete application.
If applicable, make-ready work, including any pole replacement, shall
be completed by the City within sixty (60) days of written acceptance
of the good faith estimate and advance payment by the applicant. The
City may require replacement of its pole on a non-discriminatory basis
for reasons of safety and reliability, including a demonstration that
the collocation would make the pole structurally unsound, including,
but not limited to, if the collocation would cause a utility pole
to fail a crash test; and
3.
The person owning, managing, or controlling
the City pole shall not require more make-ready work than required
to meet applicable codes or industry standards. Fees for make-ready
work shall not include costs related to preexisting or prior damage
or non-compliance unless the City had determined, prior to the filing
of the application, to permanently abandon and not repair or replace
the structure. Fees for make-ready work, including any pole replacement,
shall not exceed actual costs or the amount charged to other communications
service providers for similar work, and shall not include third-party
fees, charges, or expenses, except for amounts charged by licensed
contractors actually performing the make-ready work.
F. When a small wireless facility is located
in the right-of-way of the State highway system, equipment and facilities
directly associated with a particular small wireless facility, including
coaxial and fiber optic cable, conduit, and ground mounted equipment,
shall remain in the utility corridor except as needed to reach a City
or utility pole in the right-of-way but outside the utility corridor
in which the small wireless facility is collocated.
[R.O. 2009 § 525.070; Ord. No. 3541, 7-9-2019]
A. This Section governs the rates and fees
to collocate small wireless facilities and the rates and fees for
the placement of utility poles, but does not limit the City's ability
to recover specific removal costs from the attaching wireless provider
for abandoned structures or other rates or fees allowed under Sections
67.5110 to 67.5121, RSMo. The rates to collocate on City poles shall
be non-discriminatory regardless of the services provided by the collocating
applicant.
B. The City shall not require a wireless provider
to pay any rates, fees, or compensation to the authority or other
person other than what is expressly authorized by Sections 67.5110
to 67.5121, RSMo. (while in effect) for the use and occupancy of a
right-of-way, for collocation of small wireless facilities on utility
poles in the right-of-way, or for the installation, maintenance, modification,
operation, and replacement of utility poles in the right-of-way.
C. Application fees shall be as follows:
1.
The total fee for any application under Subsection
(B) of Section
525.040 for collocation of small wireless facilities on existing City poles shall be one hundred dollars ($100.00) per small wireless facility. An applicant filing a consolidated application under Section
525.040(B)(11) shall pay one hundred dollars ($100.00) per small wireless facility included in the consolidated application; and
2.
The total application fees for the
installation, modification, or replacement of a pole and the collocation
of an associated small wireless facility shall be five hundred dollars
($500.00) per pole.
D. Rates.
1.
The rate for collocation of a small
wireless facility to a City pole shall be one hundred fifty dollars
($150.00) per pole per year.
2.
The City shall not charge a wireless provider any fee, tax other than a tax authorized by Subsection
(D)(3) below, or other charge, or require any other form of payment or compensation, to locate a wireless facility or wireless support structure on privately owned property, or on a wireless support structure not owned by the City.
3.
The City shall not demand any fees,
rentals, licenses, charges, payments, or assessments from any applicant
or wireless provider for, or in any way relating to or arising from,
the construction, deployment, installation, mounting, modification,
operation, use, replacement, maintenance, or repair of small wireless
facilities or utility poles, if not allowed by Section 67.5116, RSMo.
(while in effect).
[R.O. 2009 § 525.080; Ord. No. 3541, 7-9-2019]
A. Subject to the provisions of Sections 67.5110
to 67.5121, RSMo. (while in effect), and applicable Federal law, the
City shall continue to exercise zoning, land use, planning, and permitting
authority within its territorial boundaries, including with respect
to wireless support structures and utility poles, except that the
City shall not have or exercise any jurisdiction or authority over
the design, engineering, construction, installation, or operation
of any small wireless facility located in an interior structure or
upon the site of any campus, stadium, or athletic facility not owned
or controlled by the City, other than to comply with applicable codes.
B. Nothing in this Chapter limits the ability
of the City to require an Applicant to obtain one (1) or more permits
of general applicability that do not apply exclusively to wireless
facilities in addition to the permit, required by this Chapter.
C. Each Applicant shall comply with all applicable
City ordinances, resolutions, rules and regulations heretofore and
hereafter adopted or established, to the extent that they are consistent
with State and Federal law.
D. Nothing herein shall be deemed to relieve
an Applicant of the provisions of an existing franchise, license or
other agreement or permit.
E. The exercise of one (1) remedy under this
Chapter shall not foreclose use of another, nor shall the exercise
of a remedy or the payment of damages or penalties relieve an Applicant
of its obligations to comply with its permits. Remedies may be used
alone or in combination; in addition, the City may exercise any rights
it has at law or equity.
F. The City hereby reserves to itself the
right to intervene in any suit, action or proceeding involving any
provisions of this Chapter.
G. No applicant shall be relieved of its obligation
to comply with any of the provisions of this Chapter by reason of
any failure of the City to enforce prompt compliance.
H. The provisions hereof shall specifically
apply to any lands or property annexed as of the date of such annexation.
I. Nothing contained herein shall in any manner
be deemed or construed to alter, modify, supersede, supplement or
otherwise nullify any other ordinances of the City or requirements
thereof, whether or not relating to or in any manner connected with
the subject written hereof, unless expressly provided otherwise herein
or hereafter.
J. The use of the right-of-way under this
Chapter is subject to the police powers of the City to adopt and enforce
ordinances necessary to the health, safety and welfare of the public.
A person using the right-of-way pursuant to this Chapter shall comply
with all applicable general laws and ordinances enacted by the City
pursuant to its police powers.
K. In addition to the requirements set forth
in this Chapter, the City may adopt such orders, rules and regulations
which are reasonably necessary to accomplish the purposes of this
Chapter and are consistent herewith.
L. In no event shall any language or requirement
in this Chapter be construed as or constitute a waiver or limitation
of City's defenses with regard to sovereign immunity, governmental
immunity, or official immunity under Federal or State constitutions,
states, and/or laws.
[R.O. 2009 § 525.090; Ord. No. 3541, 7-9-2019]
A. This Chapter
525 shall not nullify, modify, amend, or prohibit a mutual agreement between the City and a wireless provider made prior to August 28, 2018, but an agreement that does not fully comply with Sections 67.5110 to 67.5121, RSMo. (while in effect), shall apply only to small wireless facilities and utility poles that were installed or approved for installation before August 28, 2018, subject to any termination provisions in the agreement.
B. Such an agreement shall not be renewed,
extended, or made to apply to any small wireless facility or utility
pole installed or approved for installation after August 28, 2018,
unless it is modified to fully comply with Sections 67.5110 to 67.5121,
RSMo. (while in effect). In the absence of an agreement, and until
such a compliant agreement or ordinance is entered or adopted, small
wireless facilities and utility poles that become operational or were
constructed before August 28, 2018, may remain installed and be operated
under the requirements of Sections 67.5110 to 67.5121, RSMo. (while
in effect).
[R.O. 2009 § 525.100; Ord. No. 3541, 7-9-2019]
A. A wireless provider shall indemnify and
hold the City and its elected and appointed officers and employees
harmless against any damage or personal injury caused by the negligence
of the wireless provider or its employees, agents, or contractors.
B. A wireless provider shall have in effect
insurance coverage consistent with Section 67.5121.2, RSMo., sufficient
to protect the City and its officers and employees from any damage
or personal injury caused by the negligence of the wireless provider
or its employees, agents, or contractors. A self-insured wireless
provider does not need to name the City or its officers and employees
as additional insured. A wireless provider shall furnish proof of
insurance, if applicable, prior to the effective date of any permit
issued for a small wireless facility.
C. The bonding requirements for small wireless
facilities shall be one thousand five hundred dollars ($1,500.00)
per small wireless facility. For wireless providers with multiple
small wireless facilities within the City, the total bond amount across
all facilities shall be seventy-five thousand dollars ($75,000.00),
which amount may be combined into one (1) bond instrument. The purpose
of such bonds shall be to:
1.
Provide for the removal of abandoned
or improperly maintained small wireless facilities, including those
that an authority determines need to be removed to protect public
health, safety, or welfare;
2.
Restore the right-of-way in connection
with removals under Section 67.5113, RSMo.;
3.
Recoup rates or fees that have not
been paid by a wireless provider in over twelve (12) months, so long
as the wireless provider has received reasonable notice from the City
of any non-compliance listed above and been given an opportunity to
cure.
D. Applicants that have at least twenty-five
million dollars ($25,000,000.00) in assets in the State and do not
have a history of permitting non-compliance within the City shall,
under Section 67.1830, RSMo., be exempt from the insurance and bonding
requirements otherwise authorized by this Chapter.
E. Any contractor, subcontractor, or wireless
infrastructure provider shall be under contract with a wireless services
provider to perform work in the right-of-way related to small wireless
facilities or utility poles, and such entities shall be properly licensed
under the laws of the State and all applicable City ordinances. Each
contracted entity shall have the same obligations with respect to
his or her work as a wireless services provider would have under this
Chapter, under Sections 67.5110 to 67.5121, RSMo., and other applicable
laws if the work were performed by a wireless services provider. The
wireless services provider shall be responsible for ensuring that
the work of such contracted entities is performed consistently with
the wireless services provider's permits and applicable laws relating
to the deployment of small wireless facilities and utility poles,
and responsible for promptly correcting acts or omissions by such
contracted entity.
[R.O. 2009 § 525.110; Ord. No. 3541, 7-9-2019]
A. Whenever, by reason of changes in the grade
or widening of a street or in the location or manner of constructing
a water pipe, drainage channel, sewer, or other City-owned underground
or above ground structure, it is deemed necessary by the City, in
the interest of public safety and convenience, to move, alter, or
change the location of underground or above ground facilities of a
wireless provider, the wireless provider shall relocate such facilities,
on alternative right-of-way provided by the City, if available, upon
adequate notice, in writing, by the City, without claim for reimbursement
or damages against the City.
B. The construction, operation, maintenance,
and repair of small wireless facilities shall be in accordance with
applicable codes and relevant City ordinances pertaining to construction,
operation, maintenance, and repair inside or outside the right-of-way.
C. Small wireless facilities will not materially
interfere with the following:
1.
The safe operation of traffic control
equipment or authority owned communications equipment; or
2.
Sight lines or clear zones for transportation,
pedestrians, or non-motorized vehicles; or
3.
Compliance with compliance with the
Americans with Disabilities Act, 42 U.S.C. §§ 12101
to 12213, or similar Federal or State standards regarding pedestrian
access or movement.
D. Small wireless facility collocations in
the right-of-way completed on or after August 28, 2018, shall not
interfere with or impair the operation of existing utility facilities,
or authority or third-party attachments.
E. Any and all rights-of-way disturbed or
damaged during the construction of small wireless facilities shall
be promptly repaired or replaced by the applicant, at the applicant's
expense, to its functional equivalence as existed before the disturbance
or damage.
F. All small cell wireless facilities and
associated poles owned, leased, or controlled by the wireless provider
shall be maintained by and at the expense of the wireless provider
in good and clean condition that includes but not limited to being
free of rust, peeling paint, and graffiti.
G. For metal poles used for a small cell wireless
facility, all cabling shall be run inside the pole to the maximum
extent technically feasible.
H. No generators shall be allowed at any small
cell wireless facility or associated pole.
I. Unless otherwise preempted by Federal law
or regulation, small cell wireless facilities and associated poles:
(i) shall not be lighted nor contain any markings, except for ownership
and contact information to be no larger than two (2) inches in height
unless required by applicable Federal or State agency; and (ii) commercial
advertising shall not be allowed.
J. Any wireless infrastructure provider, contractor
or subcontractor must be properly licensed under laws of the State
and all applicable local ordinances.
K. Each wireless infrastructure provider,
contractor or subcontractor shall have the same obligations with respect
to its work as wireless services provider would have hereunder and
applicable law if the work were performed by the wireless services
provider. The wireless services provider shall be responsible for
ensuring that the work of contracted entities is performed consistent
with their permits and applicable law, and shall be responsible for
promptly correcting any acts or omissions by such contracted entity.
[R.O. 2009 § 525.120; Ord. No. 3541, 7-9-2019]
A. All applications for a permit shall be
filed with the City's Public Works Department. The Public Works Director
is authorized to develop an application for use by wireless service
providers. An application for a permit shall include, at minimum,
the following:
1.
Construction and stamped engineering drawings by a Missouri licensed engineer which demonstrate compliance with the criteria in Section
525.040(B)(9);
2.
An attestation that the small wireless
facilities comply with the volumetric limitations in the definition
of small wireless facility;
3.
Information on the height of any
new, replacement, or modified utility pole;
4.
Applicable indemnity, insurance,
and performance bond information required under City ordinances;
5.
An applicant that is not a wireless
services provider must provide evidence of agreements or plans demonstrating
that the small wireless facilities will be operational for use by
a wireless services provider within one (1) year after the permit
issuance date, unless the City and the applicant agree to extend this
period or if the applicant notifies the City the delay is caused by
lack of commercial power or communications transport facilities. An
applicant that is a wireless services provider must provide this information
by attestation;
6.
Plans and detailed cost estimates
for any make-ready work as needed. The applicant shall be solely responsible
for the cost of any make-ready work; and
7.
Projected commencement and termination
dates for the permit, or if such dates are unknown at the time the
permit is issued, a provision requiring the permit holder to provide
Director of Public Works with reasonable advance notice of such dates
once they are determined.
[R.O. 2009 § 525.130; Ord. No. 3541, 7-9-2019]
A. The City, through its Public Works Director, may request, in writing, that an owner of a small wireless facility confirm with the City the continued use or abandonment of a small wireless facility or associated utility pole. If the owner fails to respond to the written request within sixty (60) days of receipt with confirmation that such facilities either remain in use or have been abandoned, the wireless provider shall be deemed to have abandoned such small wireless facility and/or associated pole and the City will notify the owner of any such decision in writing. The owner may appeal any decision by the City using the procedures as set forth in Section
500.378 of the Code of the City of Bolivar.
B. The City, upon such terms as it may impose,
may give a wireless provider written permission to abandon, without
removing, any small wireless facility, or portion thereof, directly
constructed, operated or maintained. Unless such permission is granted
or unless otherwise provided in this Chapter, a wireless provider
shall remove within a reasonable time the abandoned small wireless
facility and associated pole and shall restore, using prudent construction
standards, any affected right-of-way to their functional equivalence
at the time such system was installed and in accordance with the then
adopted engineering standards, so as not to impair their usefulness.
In removing its facilities and equipment, a wireless provider shall
refill, at its own expense, any excavation necessarily made by it
and shall leave to return the right-of-way to its functional equivalence
prior to such removal without materially interfering with any authority
pole or other utility wires, poles or attachments. The City shall
have the right to inspect and approve the condition of the right-of-way,
attachments and poles prior to and after removal. The liability, indemnity
and insurance provisions of this Chapter and any bonding provided
shall continue in full force and effect during the period of removal
and until full compliance by a wireless provider with the terms and
conditions of this Chapter.
C. Upon abandonment of any small wireless facility, wireless support structure, or associated pole in place as approved by the City pursuant to Subsection
(D), below, a wireless provider, if required by the City, shall submit to the City a written instrument, satisfactory in form to the City, transferring to the City the ownership of such poles or equipment allowed to remain within the right-of-way.
D. Upon written approval by the City, a wireless
provider may abandon underground portions of a small wireless facility
in place so long as it does not materially interfere with the use
of the right-of-way or with the use thereof by any public utility,
cable operator or other person.
E. If a wireless provider defaults under any
material provision of this Chapter and such default is not cured within
sixty (60) days following delivery of written notice by the City to
the wireless provider of its default, the City shall maintain all
rights and remedies, at law and in equity, that are consistent with
applicable law, including Sections 67.5110 to 67.5122, RSMo.
[R.O. 2009 § 525.140; Ord. No. 3541, 7-9-2019]
Unless otherwise provided for in
this Chapter, the procedures of 410.530, shall govern appeals by any
aggrieved person of a final action of any City Officer, employee,
board, or commission that are claimed by an aggrieved person to be
unlawful or an unconstitutional taking of property without compensation.
To the fullest extent permitted by law, the review procedures of 410.500
shall be exhausted before any action may be filed in any court against
the City or its officers, employees, boards, officials or commissions.
Nothing herein shall be deemed to unlawfully limit any remedy that
is required to be available as a matter of law.
[R.O. 2009 § 525.150; Ord. No. 3541, 7-9-2019]
This Chapter
525 shall expire at such time that Sections 67.5110 to 67.5122, RSMo., expire, except that for small wireless facilities already permitted or collocated on City poles prior to such date, the rate set forth in Section
525.070 for collocation of small wireless facilities on City poles shall remain effective for the duration of the permit authorizing the collocation.
[R.O. 2009 § 525.160; Ord. No. 3541, 7-9-2019]
If any provision of this Chapter
or the application thereof to anyone or to any circumstance is held
invalid, the remainder of those Sections and the application of such
provisions to others or other circumstances shall not be affected
thereby.