[HISTORY: Adopted by the Common Council of the City of Mayville
as indicated in article histories. Amendments noted where applicable.]
[Adopted 7-8-2019 by Ord.
No. 1107-2019]
A.
ADMINISTRATOR
APPLICANT
APPLICATION
BASE STATION
ELIGIBLE FACILITIES REQUEST
FCC
RIGHT-OF-WAY
SMALL WIRELESS FACILITY
(1)
(2)
(3)
(4)
(5)
(6)
SUPPORT STRUCTURE
TOWER
UNDERGROUND AREAS
UTILITY POLE
WIRELESS INFRASTRUCTURE PROVIDER
WIRELESS PERMIT or PERMIT
WIRELESS REGULATIONS
WIRELESS SERVICE PROVIDER
WIRELESS TELECOMMUNICATIONS EQUIPMENT
WIRELESS TELECOMMUNICATIONS FACILITY or FACILITY
For the purposes of this chapter, the terms below shall have the
following meanings:
The Director of Public Works or his or her designee.
A person filing an application for placement or modification
of a wireless telecommunications facility in the right-of-way.
A formal request, including all required and requested documentation
and information, submitted by an applicant to the City for a wireless
permit.
The same as in 47 CFR 1.6100(b)(1), which defines the term
to mean a structure or wireless telecommunications equipment at a
fixed location that enables FCC-licensed or authorized wireless communications
between user equipment and a communications network. This definition
does not include towers.
The same as in 47 CFR 1.6100(b)(3), which defines the term
to mean any request for modification of an existing tower or base
station that does not substantially change the physical dimensions
of such tower or base station, involving; i) co-location of new transmission
equipment; (ii) removal of transmission equipment; or iii) replacement
of transmission equipment.
The Federal Communications Commission.
The surface of, and the space above and below the entire
width of, an improved or unimproved public roadway, highway, street,
bicycle lane, landscape terrace, shoulder, side slope, and public
sidewalk over which the City exercises any rights of management and
control or in which the City has an interest.
Consistent with 47 CFR 1.6002(1), means a facility that meets
each of the following conditions:
The structure on which antenna facilities are mounted:
Each antenna (excluding associated antenna equipment) is no
more than three cubic feet in volume;
All other wireless equipment associated with the structure,
including the wireless equipment associated with the antenna and any
preexisting associated equipment on the structure, is cumulatively
no more than 28 cubic feet in volume;
The facility does not require antenna structure registration;
The facility is not located on tribal lands; and
The facility does not result in human exposure to radiofrequency
radiation in excess of the applicable safety standards specified by
federal law.
Any structure capable of supporting wireless telecommunications
equipment.
The same as in 47 CFR 1.6100(b)(9), which defines the term
as any structure built for the sole or primary purpose of supporting
any Federal Communications Commission (FCC) licensed or authorized
antennas and their associated facilities, including structures that
are constructed for wireless communications services, including, but
not limited to, private, broadcast, and public safety services, as
well as unlicensed wireless services and fixed wireless services such
as microwave backhaul, and the associated site. This definition does
not include utility poles.
Those areas where there are no electrical facilities or facilities
of the incumbent local exchange carrier in the right-of-way; or where
the wires associated with the same are or are required to be located
underground; or where the same are scheduled to be converted from
overhead to underground. Electrical facilities are distribution facilities
owned by an electric utility and do not include transmission facilities
used or intended to be used to transmit electricity at nominal voltages
more than 35,000 volts.
A structure in the right-of-way designed to support electric,
telephone, and similar utility distribution lines and associated equipment.
A tower is not a utility pole.
A person that owns, controls, operates, or manages a wireless
telecommunications facility or portion thereof within the right-of-way.
A permit issued pursuant to this chapter and authorizing
the placement or modification of a wireless telecommunications facility
of a design specified in the permit at a particular location within
the right-of-way, and the modification of any existing support structure
to which the wireless telecommunications facility is proposed to be
attached.
Those regulations adopted pursuant to § 400-5B(1) to implement the provisions of this chapter.
An entity that provides wireless services to end users.
Equipment at a fixed location that enables FCC-licensed or
authorized or -authorized wireless communications between user equipment
and a communications network.
A facility at a fixed location in the right-of-way consisting
of a base station, antennas and other accessory equipment, and a tower
and underground wiring, if any, associated with the base station.
B.
Definitions in this section may contain quotations or citations to
47 CFR 1.6100 and 1.6002. In the event that any referenced section
is amended, creating a conflict between the definition as set forth
in this chapter and the amended language of the referenced section,
the definition in the referenced section, as amended, shall control.
In the exercise of its police powers, the City has priority
over all other uses of the right-of-way. The purpose of this chapter
is to provide the City with a process for managing, and uniform standards
for acting upon, requests for the placement of wireless telecommunications
facilities within the right-of-way consistent with the City's
obligation to promote the public health, safety, and welfare; to manage
the right-of-way; and to ensure that the public's use is not
obstructed or incommoded by the use of the right-of-way for the placement
of wireless telecommunications facilities. The City recognizes the
importance of wireless telecommunications facilities to provide high-quality
communications and internet access services to residents and businesses
within the City. The City also recognizes its obligation to comply
with applicable federal and state laws regarding the placement of
wireless telecommunications facilities in the right-of-way including,
without limitation, the Telecommunications Act of 1996 (47 U.S.C.
§ 151 et seq.), Section 6409(a) of the Middle Class Tax
Relief and Job Creation Act of 2012,[1] §§ 182.017 and 196.58, Wis. Stats., and
this chapter shall be interpreted consistent with those provisions.
[1]
Editor's Note: See 47 U.S.C.A. § 1455(a).
A.
Applicability. Unless exempted by Subsection B, below, every person who wishes to place a wireless telecommunications facility in the right-of-way or modify an existing wireless telecommunications facility in the right-of-way must obtain a wireless permit under this chapter.
B.
Exempt facilities. The provisions of this chapter (other than §§ 400-10 through 400-14 shall not be applied to applications for the following:
(1)
Installation of a small wireless facility on the strand between two
utility poles, provided that the cumulative volume of all wireless
facilities on the strand shall not exceed one cubic foot, and provided
further that the installation does not require replacement of the
strand, or excavation, modification, or replacement of either of the
utility poles.
(2)
Installation of a mobile cell facility (commonly referred to as "cell
on wheels" or "cell on truck") for a temporary period in connection
with an emergency or event, but no longer than required for the emergency
or event, provided that installation does not involve excavation,
movement, or removal of existing facilities.
(3)
Placement or modification of a wireless telecommunications facility on structures owned by or under the control of the City. See § 400-13 of this chapter.
(4)
Placement or modification of a wireless telecommunications facility
by City staff or any person performing work under contract with the
City.
(5)
Modification of an existing wireless telecommunications facility
that makes no material change to the footprint of a facility or to
the surface or subsurface of a public street if the activity does
not disrupt or impede traffic in the traveled portion of a street,
and if the work does not change the visual or audible characteristics
of the wireless telecommunications facility.
In establishing the rights, obligations, and conditions set
forth in this chapter, it is the intent of the City to treat each
applicant and right-of-way user in a competitively neutral and nondiscriminatory
manner, to the extent required by law, while taking into account the
unique technologies, situation, and legal status of each applicant
or request for use of the right-of-way.
A.
Administrator. The Administrator is responsible for administering
this chapter.
B.
Powers. As part of the administration of this chapter, the Administrator
may:
(1)
Adopt wireless regulations governing the placement and modification
of wireless telecommunications facilities in addition to but consistent
with the requirements of this chapter, including regulations governing
co-location, the resolution of conflicting applications for placement
of wireless telecommunications facilities, and aesthetic standards.
(2)
Interpret the provisions of the chapter and the wireless regulations.
(3)
Develop forms and procedures for submission of applications for wireless
permits consistent with this chapter.
(4)
Collect any fee required by this chapter.
(5)
Require, as a condition of completeness of any application, notice
to members of the public that may be affected by the placement or
modification of the wireless telecommunications facility that is the
subject of the wireless permit application.
(6)
Establish deadlines for submission of information related to an application,
and extend or shorten deadlines where appropriate and consistent with
federal laws and regulations.
(7)
Issue notices of incompleteness or requests for information in connection
with any wireless permit application.
(8)
Select and retain an independent consultant or attorney with expertise
in telecommunications to review any issue that involves specialized
or expert knowledge in connection with any permit application.
(9)
Coordinate and consult with other City staff, committees, and governing bodies to ensure timely action on all other required permits under § 400-6B(8) of this chapter.
(10)
Subject to appeal as provided in § 400-8D of this chapter, determine whether to grant, grant subject to conditions, or deny an application.
(11)
Take such other steps as may be required to timely act upon
wireless permit applications, including issuing written decisions
and entering into agreements to mutually extend the time for action
on an application.
A.
Format. Unless the wireless regulations provide otherwise, the applicant
must submit both a paper copy and an electronic copy (in a searchable
format) of any application, as well as any amendments or supplements
to the application or responses to requests for information regarding
an application, to the Administrator. An application is not complete
until both the paper and electronic copies are received by the Administrator.
B.
Content. In order to be considered complete, an application must
contain:
(1)
All information required pursuant to the wireless regulations.
(2)
A completed application cover sheet signed by an authorized representative
of the applicant, listing all standard permit conditions.
(3)
The name of the applicant (including any corporate or trade name),
and the name, address, email address, and telephone number of a local
representative. If the applicant is a wireless infrastructure provider,
the name and contact information for the wireless service provider(s)
that will be using the wireless telecommunications facility must also
be provided.
(4)
A statement of which shot clock or shot clocks apply to the application
and the reasons the chosen shot clocks apply.
(5)
A separate and complete description of each proposed wireless telecommunications
facility and the work that will be required to install or modify it,
including but not limited to details regarding proposed excavations,
if any; detailed site plans showing the location of the facility and
technical specifications for each element of the facility, clearly
describing the site and all structures and facilities at the site
before and after installation or modification and identifying the
owners of such preexisting structures and facilities; and describing
the distance to the nearest residential dwelling unit. Before-and-after
360° photo simulations must be provided for each facility.
(6)
Proof that the applicant has mailed to the owners of all property
within 300 feet of the proposed wireless telecommunications facility
a notice that the applicant is submitting an application to the City
for placement or modification of a wireless telecommunications facility
in the right-of-way, which notice must include i) the proposed location
of the facility, ii) a description and scale image of the proposed
facility, and iii) an email address and phone number for a representative
of the applicant who will be available to answer questions from members
of the public about the proposed project.
(7)
A copy of the FCC license for the facility or a sworn written statement
from the applicant attesting that the facility will comply with current
FCC regulations.
(8)
To the extent that filing of the wireless permit application establishes
a deadline for action on any other permit that may be required in
connection with the wireless telecommunications facility, the application
must include complete copies of applications for every required permit
(including, without limitation, electrical permits, building permits,
traffic control permits, and excavation permits), with all engineering
completed and with all fees associated with each permit.
(9)
A certification by a registered and qualified engineer that the installation
can be supported by and does not exceed the tolerances of the structure
on which it will be mounted and that all elements of the wireless
telecommunications facility comply with applicable safety standards.
(10)
Payment of all required fees.
(11)
If an applicant contends that denial of the application would
prohibit or effectively prohibit the provision of service in violation
of federal law, or otherwise violate applicable law, the application
must provide all evidence on which the applicant relies in support
of that claim. Applicants are not permitted to supplement this evidence
if doing so would prevent the City from complying with any deadline
for action on an application.
(12)
If the application is an eligible facilities request, the application
must contain information sufficient to show that the application qualifies
as an eligible facilities request under 47 CFR 1.6100(b)(3), including
evidence that the application relates to an existing tower or base
station that has been approved by the City. Before-and-after 360°
photo simulations must be provided with detailed specifications demonstrating
that the modification does not substantially change the physical dimensions
of the existing approved tower or base station.
C.
Waivers. Requests for waivers from any requirement of this § 400-6 shall be made in writing to the Administrator. The Administrator may grant a request for waiver if it is demonstrated that, notwithstanding the issuance of the waiver, the City will be provided with all information necessary to understand the nature of the construction or other activity to be conducted pursuant to the wireless permit sought.
D.
Fees. The applicant must provide an application fee and shall be
required to pay all costs reasonably incurred in reviewing the application,
including costs incurred in retaining outside consultants. Fees shall
be reviewed periodically and raised or lowered based on the costs
the City expects to incur, with a review commencing by the first anniversary
of the effective date of this chapter.
E.
Public records. Applications are public records that may be made
publicly available pursuant to state and federal public records law.
Notwithstanding the foregoing, the applicant may designate portions
of the application materials that it reasonably believes contain proprietary
or confidential information by clearly marking each portion of such
materials accordingly, and the City shall endeavor to treat the information
as proprietary and confidential, subject to applicable state and federal
public records law and the Administrator's determination that
the applicant's request for confidential or proprietary treatment
of the application materials is reasonable. The City shall not be
required to incur any costs to protect the application from disclosure.
A.
Generally. Wireless telecommunications facilities shall meet the
minimum requirements set forth in this chapter and the wireless regulations,
in addition to the requirements of any other applicable law or regulation.
B.
Regulations. The wireless regulations and decisions on wireless permits
shall, at a minimum, ensure that the requirements of this chapter
are satisfied, unless it is determined that the applicant has established
that denial of an application would, within the meaning of federal
law, prohibit or effectively prohibit the provision of telecommunications
or personal wireless services, or otherwise violate applicable laws
or regulations. If that determination is made, the requirements of
this chapter and the wireless regulations may be waived, but only
to the extent required to avoid the prohibition.
C.
Standards.
(1)
Wireless telecommunications facilities shall be installed and modified
in a manner that:
(a)
Minimizes risks to public safety;
(b)
Ensures that placement of facilities on existing structures
is within the tolerance of those structures;
(c)
Avoids placement of aboveground facilities in underground areas,
installation of new support structures or equipment cabinets in the
public right-of-way, or placement in residential areas when commercial
areas are reasonably available;
(d)
Maintains the integrity and character of the neighborhoods and
corridors in which the facilities are located;
(e)
Ensures that installations are subject to periodic review to
minimize the intrusion on the right-of-way;
(f)
Ensures that the City bears no risk or liability as a result
of the installations; and
(g)
Ensures that applicant's use does not inconvenience the
public, interfere with the primary uses of the right-of-way, or hinder
the ability of the City or other government entities to improve, modify,
relocate, abandon, or vacate the right-of-way or any portion thereof,
or to cause the improvement, modification, relocation, vacation, or
abandonment of facilities in the right- of-way.
(2)
No wireless permit shall be issued unless i) the wireless service
provider applicant has immediate plans to use the proposed facility
or ii) the wireless infrastructure applicant has a contract with a
wireless service provider that has immediate plans to use the proposed
facility.
D.
Preferred locations. The following locations, in the order listed
from most to least preferred, are the preferred locations for installations
of facilities in public rights-of- way, except for areas within the
Main Street Historic District.
E.
Nonpreferred locations. The applicant should avoid locating new support
structures, towers, or utility poles within residential neighborhoods,
designated open space, conservation areas, or historic districts.
A facility may be permitted in a location other than a preferred location
if the applicant provides evidence showing that:
(1)
Adequate coverage can be maintained, existing services can be improved,
or new services can be added only if facilities are placed in a nonpreferred
location; or
(2)
The proposed facility will meet all applicable requirements for the
nonpreferred location and will complement the character of the surrounding
area.
F.
Co-location generally. Subject to the provisions of this section,
co-location of facilities is generally preferred over new support
structures if it can be accomplished in a way that better complements
the character of the surrounding area.
G.
Co-location with nonmunicipal facilities. Co-location on facilities
or support structures owned by parties other than the City is subject
to the following:
(1)
Where an existing facility or support structure can potentially accommodate
co-location of a new wireless facility, co-location will be required
unless:
(a)
The applicant submits substantial evidence supporting the unsuitability
of the co-location;
(b)
The owner of the existing facility or support structure is unwilling
to accommodate the applicant's equipment and cannot be required
to cooperate; or
(c)
The Public Works Committee determines that installing a new
support structure or co-location with a City facility is preferable
to co-location with another facility or support structure.
(2)
Authorization for co-location on a facility or support structure
owned by a party other than the City will be voided if the facility
or support structure is destroyed, removed, relocated, or replaced,
unless:
H.
Obstruction. Facilities and support structures, towers, and utility
poles must not obstruct, impede, or hinder vehicular, pedestrian,
or bicycle travel or public safety within the right-of-way, except
for authorized temporary lane or sidewalk closures. To the extent
possible, a facility, support structure, tower, or utility pole should
be located and designed so as to avoid interference with right-of-way
maintenance activities, such as:
J.
Alignment. Facilities and support structures, towers, and utility
poles must be located in alignment with existing trees, facilities,
support structures, towers, utility poles, and streetlights.
K.
Frontage.
(1)
Facilities and support structures, towers, and utility poles must
not be located along the frontage of any building deemed to be of
historic significance on a federal, state, or local level.
(2)
Frontage. New facilities and support structures, towers, and utility
poles must not be located directly in front of any existing residential,
commercial, or industrial structure.
(3)
To the extent possible, new facilities and support structures, towers,
and utility poles must be located in line with existing lot lines,
but in areas where multiple structures abut each other or where no
side lot setback requirement exists, structures must not be located
directly in front of an entrance or window of any existing structure.
L.
Use of lighting elements. A combination support structure and streetlight
pole should only be located where an existing pole can be removed
and replaced, or at a new location where the City has identified that
a streetlight is necessary.
M.
Maximum height of support structures, towers, and utility poles.
The height of a support structure, tower, or utility pole in the right-of-way
may not exceed the greater of 50 feet above ground level or 10 feet
above the tallest existing support structure, tower, or utility pole
that is in place on the effective date of this chapter and that is
located in the same right-of-way and within 500 feet of the facility
that is the subject of the application.
N.
Maximum height of small wireless facility. The height of a small
wireless facility in the right-of-way may not exceed the greater of
50 feet above ground level or 10 feet above the tallest existing support
structure, tower, or utility pole that is in place on the effective
date of this chapter and that is located in the same right-of-way.
O.
Minimum height of wireless communications equipment. Equipment mounted
to support structures must not interfere with or create a hazard to
pedestrian or vehicular traffic and must be a minimum of 10 feet above
any pedestrian or bicycle thoroughfare and a minimum of 25 feet above
any traffic lane.
P.
Undergrounding.
(1)
Underground areas. Ground-mounted equipment associated with facilities
must be placed underground in underground areas.
(2)
Other areas. In all other areas, ground-mounted equipment must be
placed underground to the extent feasible.
(3)
Ground-mounted equipment must be placed underground in connection
with a streetlight, traffic signal, or other similar infrastructure
in the right-of-way.
Q.
Concealment. Permits for wireless telecommunications facilities shall
incorporate specific concealment elements to minimize visual impacts,
and design requirements ensuring compliance with all standards for
noise emissions. Unless it is determined that another design is less
intrusive, or placement is required under applicable law:
(1)
Antennas located at the top of support structures shall be incorporated
into the structure, or placed within shrouds of a size such that the
antenna appears to be part of the support structure.
(2)
Antennas placed elsewhere on a support structure shall be integrated
into the structure, or be designed and placed to minimize visual impacts.
(3)
Radio units or equipment cabinets holding radio units and mounted
on a utility pole shall be placed as high as possible on a support
structure, located to avoid interfering with, or creating any hazard
to, any other use of the public rights-of-way, and located on one
side of the utility pole. Unless the radio units or equipment cabinets
can be concealed by appropriate traffic signage, radio units or equipment
cabinets mounted below the communications space on utility poles shall
be designed so that the largest dimension is vertical, and the width
is such that the radio units or equipment cabinets are minimally visible
from the opposite side of the support structure on which they are
placed.
(4)
Wiring and cabling shall be neat and concealed within or flush to
the support structure, ensuring concealment of these components to
the greatest extent possible.
(5)
Ground-mounted equipment associated with a wireless telecommunications
facility shall be permitted only where consistent with the portion
of the corridor in which it is to be placed, and may be required to
be underground, located in alleys or otherwise shielded. In no event
may ground-mounted equipment interfere with pedestrian or vehicular
traffic.
(6)
No support structures, towers, or utility poles shall be permitted
in the public rights-of-way, and no wireless telecommunications facilities
shall be permitted aboveground in underground areas provided that
the City may permit placements where all elements of the wireless
telecommunications facility are concealed and the facility does not
appear to a casual observer to be a wireless telecommunications facility.
(7)
Unless appropriately placed, and concealed, so that the size of the
facility cannot be increased except with the discretionary approval
of the City, no wireless telecommunications facility is permitted
in rights-of-way in alleys.
(8)
No wireless telecommunications facility is permitted in any local
historic district without the approval of the Public Works Committee
and the Common Council.
(9)
Color and materials. A new wireless telecommunications facility must
be constructed with materials and colors that match or blend with
the surrounding natural or built environment, to the maximum extent
practicable. Unless otherwise required, muted colors, earth tones,
and subdued hues shall be used.
(10)
Dimensions. Small wireless facilities shall not exceed the width
of an existing structure.
(11)
Visual impact. Wireless communication facilities must be designed
to minimize visual impacts. When feasible, the facilities must be
concealed or camouflaged. The facilities must have a nonreflective
finish and be painted or otherwise treated to minimize visibility
and the obstruction of views.
(12)
CAMOUFLAGED or CONCEALED
STEALTH
Definitions used in concealment provisions:
Designed to mask or blend with the surrounding environment
in such a manner to render it generally unnoticeable to the casual
observer. By way of example, a wireless communication facility may
be camouflaged in a faux tree, faux bush, flagpole, or otherwise designed
in a manner to be compatible with the appurtenant architecture, building,
or natural surroundings.
Concealment techniques that completely screen all associated
equipment from public view and are so integrated into the surrounding
natural or man-made environment that the observer does not recognize
the structure as a wireless facility. Examples include, but are not
limited to: 1) wireless equipment placed completely within existing
architectural features such that the installation causes no visible
change to the underlying structure; 2) new architectural features
that match the underlying structure in architectural style, physical
proportion and construction-materials quality; 3) flush-to-grade underground
equipment vaults with flush-to-grade entry hatches, with wireless
equipment placed completely within.
R.
Noise. Facilities must be constructed and operated in a manner that minimizes noise that is audible as provided in Mayville City Code § 317-5. A wireless facility and all equipment associated with a wireless facility shall not generate noise that exceeds the applicable ambient noise limit in the zone where the wireless facility is located. The City may require the applicant to install noiserattenuating or baffling materials and/or other measures, including but not limited to walls or landscape features, as the approval authority deems necessary or appropriate to ensure compliance with the applicable ambient noise limit.
S.
Lighting. Facilities must not be illuminated, except in accordance
with state or federal regulations or if incorporated as part of a
streetlight pole.
T.
Signage. Signage shall be subject to the following regulations:
(1)
General prohibition and requirements. Signage is not permitted except
to comply with FCC or Wisconsin regulations to provide safety warnings.
No facility may display any signage or advertisements unless expressly
allowed by the City in a written approval, recommended under FCC regulations
or required by law or permit condition. Every facility shall at all
times display signage that accurately identifies the facility owner
and provides the facility owner's unique site number, and also
provides a local or toll-free telephone number to contact the facility
owner's operations center.
(2)
Signage required: The owner and/or operator must post an identification
sign at each facility, including owner/operator emergency telephone
numbers. The design, materials, colors, and location of the identification
signs shall be subject to review and approval by the City. If at any
time a new owner or operator provider takes over operation of an existing
personal wireless service facility, the new personal wireless service
provider shall notify the City of the change in operation within 30
days, and the required and approved signs shall be updated within
30 days to reflect the name and phone number of the new wireless service
provider. The colors, materials and design of the updated signs shall
match those of the required and approved signs. No sign shall be greater
than two square feet in size.
U.
Standard permit conditions. All wireless permits under this chapter
are issued subject to the following minimum conditions:
(1)
Compliance. The permit holder shall at all times maintain compliance
with all applicable federal, state, and local laws, regulations, and
other rules.
(2)
Term. A wireless permit issued pursuant to an eligible facilities request shall expire at the same time the permit for the underlying existing wireless telecommunications facility expires. All other wireless permits shall be valid for a period of five years from the date of issuance unless revoked pursuant to § 400-9B of this chapter.
(3)
Contact information. The permit holder shall at all times maintain
with the City accurate contact information for the permit holder and
all wireless service providers making use of the facility, which shall
include a phone number, mailing address, and email address for at
least one natural person.
(4)
Emergencies. The City shall have the right to support, repair, disable,
or remove any elements of the facilities in emergencies or when the
facility threatens imminent harm to persons or property.
(5)
Indemnities. The permit holder, by accepting a permit under this
chapter, agrees to indemnify, defend, and hold harmless the City,
its elected and appointed officials, officers, employees, agents,
representatives, and volunteers (collectively, the "indemnified parties")
from and against any and all suits, actions, legal or administrative
proceedings, claims, demands, damages, liabilities, interest, attorneys'
fees, costs, and expenses of whatsoever kind or nature in any manner
caused in whole or in part, or claimed to be caused in whole or in
part, by reason of any act, omission, fault, or negligence, whether
active or passive, of the permit holder or anyone acting under its
direction or control or on its behalf, even if liability is also sought
to be imposed on one or more of the indemnified parties. The obligation
to indemnify, defend, and hold harmless the indemnified parties shall
be applicable even if the liability results from an act or failure
to act on the part of one or more of the indemnified parties. However,
the obligation does not apply if the liability results from the willful
misconduct of an indemnified party.
(6)
Adverse impacts on adjacent properties. The permit holder shall undertake
all reasonable efforts to avoid undue adverse impacts to adjacent
properties and/or uses that may arise from the construction, operation,
maintenance, modification, or removal of the facility.
(7)
General maintenance. The wireless communications facility and any
associated structures shall be maintained in a neat and clean manner
and in accordance with all approved plans and conditions of approval.
(8)
Graffiti removal. All graffiti on facilities shall be removed at
the sole expense of the permit holder within 48 hours after notification
from the City.
(9)
Relocation. At the request of the City pursuant to § 400-10 of this chapter, the permit holder shall promptly and at its own expense permanently remove and relocate any wireless telecommunications facility in the right-of-way.
(10)
Abandonment. The permit holder shall promptly notify the City whenever a facility has not been in use for a continuous period of 60 days or longer and must comply with § 400-11 of this chapter.
(11)
Restoration. A permit holder who removes or relocates a facility from the right-of-way must restore the right-of-way in accordance with § 400-12 of this chapter.
(12)
Record retention. The permit holder shall retain full and complete
copies of all permits and other regulatory approvals issued in connection
with the facility, which includes without limitation all conditions
of approval, approved plans, resolutions, and other documentation
associated with the permit or regulatory approval. In the event the
City cannot locate any such full and complete permits or other regulatory
approvals in its official records, and the permit holder fails to
retain full and complete records in the permit holder's files,
any ambiguities or uncertainties that would be resolved through an
examination of the missing documents will be conclusively resolved
against the permit holder.
(13)
Radio frequency emissions. Every wireless facility shall at
all times comply with applicable FCC regulations governing radio frequency
emissions, and failure to comply with such regulations shall be treated
as a material violation of the terms of the permit.
(14)
Certificate of insurance. A certificate of insurance sufficient
to demonstrate to the satisfaction of the Administrator that the applicant
has the capability to cover any liability that might arise out of
the presence of the facility in the right-of-way shall be provided.
A.
Rejection for incompleteness. Notices of incompleteness shall be
provided in conformity with state, local, and federal law, including
47 CFR 1.6003(d), as amended.
B.
Processing time line. Wireless permit applications [including applications
for other permits under Subsection 6B(8) necessary to place or modify
the facility] and appeals will be processed in conformity with the
shot clocks set forth in state, local, and federal law, as amended.
C.
Written decision. In the event that an application is denied (or approved with conditions beyond the standard permit conditions set forth in § 400-7C), the Administrator shall issue a written decision with the reasons therefor, supported by substantial evidence contained in a written record.
D.
Appeal to City Council. Any person adversely affected by the decision
of the Administrator may appeal that decision to the City Council,
which may decide the issues de novo, and whose written decision will
be the final decision of the City. An appeal by a wireless infrastructure
provider must be taken jointly with the wireless service provider
that intends to use the wireless telecommunications facility.
E.
Deadline to appeal.
(1)
Appeals that involve eligible facilities requests must be filed within
three business days of the written decision of the Administrator.
(2)
All other appeals not governed by Subsection 8E(1) above must be
filed within 10 business days of the written decision of the Administrator,
unless the Administrator extends the time therefor. An extension may
not be granted where such extension would result in approval of the
application by operation of law.
F.
Decision deadline. All appeals shall be conducted so that a timely
written decision may be issued in accordance with the applicable shot
clock.
A.
Expiration. A wireless permit issued pursuant to an eligible facilities
request shall expire at the same time the permit for the underlying
existing wireless telecommunications facility expires. All other wireless
permits shall be valid for a period of five years from the date of
issuance. Upon expiration of the wireless permit, the permit holder
must either:
B.
Revocation for breach. A wireless permit may be revoked for failure
to comply with the conditions of the permit or applicable federal,
state, or local laws, rules, or regulations. Upon revocation, the
wireless telecommunications facility must be removed within 30 days
of receipt of written notice from the City. All costs incurred by
the City in connection with the revocation, removal, and right-of-way
restoration shall be paid by the permit holder.
C.
Failure to obtain permit. Unless exempted from permitting by § 400-3B of this chapter, a wireless telecommunications facility installed without a wireless permit must be removed within 30 days of receipt of written notice from the City. All costs incurred by the City in connection with the notice, removal, and right-of-way restoration shall be paid by entities who own or control any part of the wireless telecommunications facility.
Except as otherwise prohibited by state or federal law, a permit
holder must promptly and at its own expense, with due regard for seasonal
working conditions, permanently remove and relocate any of its wireless
telecommunications facilities in the right-of-way whenever the City
requests such removal and relocation. The City may make such a request
to prevent the facility from interfering with a present or future
City use of the right-of-way; a public improvement undertaken by the
City; an economic development project in which the City has an interest
or investment; when the public health, safety, or welfare require
it; or when necessary to prevent interference with the safety and
convenience of ordinary travel over the right-of-way. Notwithstanding
the foregoing, a permit holder shall not be required to remove or
relocate its facilities from any right-of-way that has been vacated
in favor of a nongovernmental entity unless and until that entity
pays the reasonable costs of removal or relocation to the permit holder.
A.
Cessation of use. In the event that a permitted facility within the
right-of-way is not in use for a continuous period of 60 days or longer,
the permit holder must promptly notify the City and do one of the
following:
(1)
Provide information satisfactory to the Administrator that the permit
holder's obligations for its facilities under this chapter have
been lawfully assumed by another permit holder.
(2)
Submit to the Administrator a proposal and instruments for dedication
of the facilities to the City. If a permit holder proceeds under this
Subsection 11A(2) the City may, at its option:
B.
Abandoned facilities. Facilities of a permit holder who fails to comply with § 400-11A and which, for one year, remain unused shall be deemed to be abandoned. Abandoned facilities are deemed to be a nuisance. In addition to any remedies or rights it has at law or in equity, the City may, at its option:
In the event that a permit holder removes or is required to remove a wireless telecommunications facility from the right-of-way under this chapter (or relocate it pursuant to § 400-10, the permit holder must restore the right-of-way to its prior condition in accordance with City specifications. However, a support structure owned by another entity authorized to maintain that support structure in the right-of-way need not be removed but must instead be restored to its prior condition. If the permit holder fails to make the restorations required by this § 400-12, the City, at its option, may do such work. In that event, the permit holder shall pay to the City, within 30 days of billing therefor, the cost of restoring the right-of-way.
The City may negotiate agreements for placement of wireless
telecommunications facilities on City-owned or -controlled structures
in the right-of-way. The agreement shall specify the compensation
to the City for use of the structures. The person or entity seeking
the agreement shall reimburse the City for all costs the City incurs
in connection with its review of and action upon the request for an
agreement.
If any section, subsection, clause, phrase, or portion of this
chapter is for any reason held to be illegal or otherwise invalid
by any court or administrative agency of competent jurisdiction, such
illegal or invalid portion shall be severable and shall not affect
or impair any remaining portion of this chapter, which shall remain
in full force and effect.
