City of Blue Springs, MO Article VII Small Wireless Facilities

Section 505.710 Intent And Preemption.

[Ord. No. 4834, 6-17-2019]

A. Purpose. Consistent with the requirements of the Uniform Small Wireless Facility Deployment Act, Section 67.5110, et seq., RSMo., and in anticipation of a continued increased demand for the placement of small wireless facilities of the type regulated by the Uniform Small Wireless Facility Deployment Act and this Article both within the public rights-of-way and in other locations within the jurisdiction of the City, the City Council of the City of Blue Springs, Missouri, has found it to be in the best interests of the public health, safety, and general welfare of the City to adopt the regulations set forth in this Article in order to establish generally applicable standards for the permitting, location, construction, deployment, regulation, operation, maintenance, repair, concealment and removal of small wireless facilities both within the public rights-of-way and in other locations within the jurisdiction of the City.

B. Intent. Sections 505.710 through 505.715 of the Code of Ordinances, City of Blue Springs, Missouri, are intended to encourage and streamline the deployment of small wireless facilities, as herein defined, to help ensure that robust and dependable wireless radio-based communication services and networks are available throughout the City of Blue Springs while also protecting the health, safety, and welfare of the public and the limited public resource that is the public right-of-way. Specifically, the Article is intended to:

1. Facilitate orderly construction and maintenance of facilities in the right-of-way, reduce the damage to the facilities of rights-of-way users, and minimize disruption of service to the citizens of the City;

2. Manage the right-of-way to allow efficient location of small wireless facilities and maximize services to the citizens of the City;

3. Allow for the maximum utilization of the rights-of-way to meet the demands due to technical innovations;

4. Encourage responsible construction and maintenance practices in the City rights-of-way;

5. Ensure that regulation of small wireless facilities does not have the effect of prohibiting the provision of personal wireless services, and does not unreasonably discriminate among functionally equivalent providers of such service;

6. Prevent interference with the facilities, maintenance, and operations of the City's utilities and of other utilities lawfully located both within the public rights-of-way and in other locations within the City; and

7. Enhance the ability of providers of communication services to provide such services to the community quickly, effectively, and efficiently.

C. Preemption. Notwithstanding any ordinance to the contrary, the procedures set forth in this Article shall be applicable to small wireless facilities existing or installed, built or modified after the effective date of this Article (6-17-2019) to the fullest extent permitted by law. No provision of this Article shall apply to any circumstances in which such application shall be unlawful under superseding Federal or State law. Furthermore, if any Section, Subsection, sentence, clause, phrase, or portion of this Article 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.

Section 505.711 Definitions.

[Ord. No. 4834, 6-17-2019]

As used in this Article, the following terms shall have the following meanings:

ACT

The Uniform Small Wireless Facility Deployment Act, Section 67.5110, et seq., RSMo.

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 local amendments to such codes enacted to prevent physical property damage or reasonably foreseeable injury to persons.

APPLICANT

Any person who submits an application and is a wireless provider.

APPLICATION

A request submitted by an applicant to an authority 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

A utility pole owned, managed, or operated by or on behalf of an authority, but such term shall not include municipal electric utility distribution pole or facilities.

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.

DECORATIVE POLE

An authority pole that is specially designed and placed for aesthetic purposes.

DIRECTOR

Either the Director of Public Works, the Director of Community Development, or their authorized representative based on proposed location of facilities.

FEE

A one-time, non-recurring charge.

PERMIT

A written authorization required by an authority to perform an action or initiate, continue, or complete a project.

RATE

A recurring charge.

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:

Each wireless provider's antenna could fit within an enclosure of no more than six (6) cubic feet in volume; and

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.

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:

The structure or improvements on, under, or within which the equipment is collocated;

Coaxial or fiber-optic cable between wireless support structures or utility poles;

Coaxial or fiber-optic cable not directly associated with a particular small wireless facility; or

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 wifi, whether at a fixed location or mobile, provided to the public using wireless facilities.

WIRELESS SERVICES PROVIDER

A person who provides wireless services.

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.

ZONING ORDINANCE

The Title IV Unified Development Code of the City of Blue Springs, Missouri.

Section 505.712 General Requirements.

[Ord. No. 4834, 6-17-2019]

A. Height Restrictions.

1. 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 August 28, 2018, located within five hundred (500) feet of the new pole in the same right-of-way or fifty (50) feet above ground level at the site of the proposed installation, replacement, or modification.

2. New small wireless facilities in the right-of-way shall not exceed more than ten (10) feet above an existing utility pole in place as of August 28, 2018.

3. Any new, modified, or replacement utility pole that exceeds these height limits shall be subject to a conditional use permit under the City's zoning regulations.

B. Concealment Requirements. The reasonable, objective, cost-effective standards outlined in this Subsection seek to ensure that all small wireless facilities deployed in the City are deployed in a manner that preserves the visual appearance of the surrounding area and the legal use of the right-of-way. Any of the requirements set forth in this Subsection may be waived or altered by the director upon an applicant establishing good cause as to why the concealment requirements should not apply.

1. Small Wireless Facility Antenna. All antennas mounted as part of the deployment of a small wireless facility shall be mounted to the top of the utility pole or wireless support structure and aligned with the centerline of the utility pole or wireless support structure, unless otherwise agreed to by the director based on the specific context and characteristics of the utility pole or wireless support structure.

a. Shape. Any small wireless facility antenna collocated within the City shall be cylindrical or completely housed within a cylindrical enclosure or radome unless otherwise agreed to by the director based on the specific context and characteristics of the utility pole, wireless support structure, or small wireless facility.

b. Color. Exposed antennas and antenna enclosures shall match the color specifications of the utility pole or the wireless support structure.

2. Associated Pole Equipment. Any equipment attached to a pole as part of a small wireless facility shall be of the same or similar color as the pole on which it is attached. To the extent possible, any wires, fiber-optic cable, coaxial cable or any other cables associated with the collocation of a small wireless antenna running from any associated equipment, both pole mounted and ground mounted, shall run on the interior of the pole. If running any wires, fiber-optic cable, coaxial cable, or any other cable on the interior of the pole is not possible then said wires and cables shall either be located within a cylindrical tubing of the same or similar color as the pole and mount flush against the pole or be of the same or similar color as the pole on which they are attached and mounted flush against the pole or in any other matter which would reasonably conceal them. The director, in their discretion, may require additional concealment requirements, including the attachment of banners or signs on either side of any associated pole equipment.

3. Associated Ground Equipment. All associated ground equipment mounted as part of a small wireless facility deployment shall be placed to the greatest extent possible in an area so as to minimize its visual intrusiveness and detrimental effect to the legal use of the right-of-way. All associated ground equipment shall be located within a green cabinet or enclosure or any other color cabinet or enclosure that would minimize visual intrusiveness and conceal the associated ground equipment. To the extent possible, ground mounted equipment that is located within a cabinet or enclosure should be placed in vaults. If the owner demonstrates to the Director, and the Director determines that there is good cause for why the equipment cannot reside in a vault, the equipment must be placed in above ground cabinets that conform to Section 505.340(J). The land owner, assigns, or successors in interest shall be responsible for the maintenance of the landscape screening installed.

4. New And Replacement Poles. New and replacement streetlight or upright poles used for small cell sites shall follow the requirements set forth in Section 406.020(D)(3)(h). The pole color will be silver or grey unless the corridor has special colored poles. The small cell sites shall match other metal poles in the area.

[Ord. No. 4882, 1-21-2020]

C. Decorative Poles. Any applicant seeking to replace a decorative pole for the purpose of collocating a small wireless facility shall replace said decorative pole with a pole conforming to the design aesthetics of the decorative pole being replaced. Conformance to the design aesthetics of the decorative pole means, that any replacement pole shall at a minimum be of the same or similar design as the decorative pole, contain the same or similar decorative elements of the original decorative pole, be of the same color as the original decorative pole and other decorative poles in the area and that the small wireless facility collocated on the replacement decorative pole be the same color as the decorative pole and the replacement decorative pole.

D. Indemnification, Insurance, Performance Bond.

1. Indemnification. Wireless providers shall indemnify and hold the City, its officers, and employees harmless against any damage or personal injury caused by the negligence of the wireless provider or its employees, agents, or contractors.

2. Insurance. As part of any permit issued by the City under this Article, an applicant must provide proof of liability insurance coverage, prior to the effective date of any permit issued, against any damage or personal injury caused by the negligence of the wireless provider or its employees, agents, or contractors in an amount no less than the amount provided for in Section 537.210, RSMo. If the applicant is self-insured, the applicant must submit to the City proof of self-insurance in a comparable amount to the insurance referenced in the previous sentence.

3. Performance Bond.

a. An applicant for a permit under this Article shall post a performance bond of one thousand five hundred dollars ($1,500.00) per small wireless facility not to exceed seventy-five thousand dollars ($75,000.00) for all small wireless facilities deployed by the applicant. The performance bond shall be used to:

(1) Provide for the removal of abandoned or improperly maintained small wireless facilities, including those that the City determines need to be removed to protect public health, safety, or welfare;

(2) Restore the right-of-way in connection with removals;

(3) Recoup rates or fees that have not been paid by a wireless provider in over twelve (12) months, provided the wireless provider has had notice and an opportunity to cure.

b. Upon completion of the work associated with the permit to the satisfaction of the director, the director shall eliminate the bond or reduce its amount after a time appropriate to determine whether the work performed was satisfactory, which time shall be established by the director.

c. Recovery by the City for any amounts under the performance bond required by this Article does not limit an applicant's duty to indemnify the City in any way, nor shall such recovery relieve an applicant of its obligations under a permit or reduce amounts owed to the City other than by the amounts recovered by the City under the performance bond, or in any respect prevent the City from exercising any other right or remedy it may have.

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's jurisdiction shall be exempt from the insurance and bonding requirements otherwise authorized by this Subsection.

E. Relocation Of Facilities. Whenever, in the interest of public safety and convenience, the City may require a wireless provider relocate, move, alter, change, adapt, or conform the underground or above ground facilities of a wireless provider, the wireless provider shall make the alterations or changes as soon as practicable after being so ordered in writing by the City without claim for reimbursement or damages against the City.

F. Calculation Of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under this Article or any permit, and a period of time is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of time.

G. Construction Standards. All requirements of this Article shall apply to the construction, modification, and maintenance of small wireless facilities and are reincorporated herein as building code requirements to the extent permitted by law. The construction, operation, maintenance, and repair of small wireless facilities shall be in accordance with applicable codes. All small wireless facilities shall be installed and located with due regard to minimizing interference with the public and with other users of the right-of-way including the City. An applicant shall not place small wireless facilities or obstruct or hinder the various utility serving the residents and businesses in the City of their use of any right-of-way. Any and all right-of-way disturbed or damaged during the small wireless facilities work shall be promptly repaired or replaced by the applicant to its previous condition. Any wireless infrastructure provider, contractor or subcontractor must be properly licensed under laws of the State and all applicable local ordinances. 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 laws if the work were performed by the wireless services provider. The wireless services provider shall be responsible for ensuring that the work of wireless infrastructure providers, contractors or subcontractors is performed consistent with their permits and applicable law, shall be fully responsible for all acts or omissions of any wireless infrastructure provider, contractor or subcontractor, and shall be responsible for promptly correcting any acts or omissions by a wireless infrastructure provider, contractor or subcontractor.

H. Location. Small wireless facilities and utility poles shall be installed and maintained so as not to materially obstruct or hinder the usual travel or public safety on the right-of-way or materially obstruct the legal use of the right-of-way by the City or other authorized right-of-way users.

I. Replacement. The City may require an applicant to replace a utility pole on a non-discriminatory basis for reasons of safety and reliability.

J. Retained Zoning Authority. Where authorized by applicable law the City may require that an applicant under this Article receive all zoning approvals necessary or required by the zoning ordinance of the City.

K. Deemed Approved Facilities. Should the City fail to act with the time required by applicable law, any small wireless facility collocated on an existing structure or any installation, modification, or replacement of a utility pole shall be done in compliance with each and every provision of this Article.

Section 505.713 Small Wireless Facilities Permit.

[Ord. No. 4834, 6-17-2019]

A. Applications. Applications for a permit to collocate a small wireless facility on a utility pole or a permit for the installation, modification, or replacement of a utility pole shall be filed on such forms as required by the director and accompanied by the appropriate deposit as stated below. Applications are to be processed subject to the requirements of and in the manner and timeframe as otherwise established in this Article and subject to the applicable time frames imposed by applicable law. Applications requesting any information that is prohibited by Federal or State law under the applicable circumstance shall be deemed inapplicable to the subject application.

1. Collocation Application Fee. An application for a permit to collocate a small wireless facility on a utility pole shall be accompanied by a deposit of one hundred dollars ($100.00) for each small wireless facility the applicant seeks to collocate on a utility pole.

2. Installation, Modification, Replacement Fee. Applications for a permit to install, modify, or replace a utility pole shall be accompanied by a deposit of five hundred dollars ($500.00) for each installation, modification, or replacement sought by the applicant.

B. Pre-Application Meeting. Before any application is made, the applicant is encouraged to meet with the director to discuss, in general, the procedures and requirements for a permit request under this Section.

C. Application Process.

1. Form; Deficiency Notice. Any application under this Section shall be submitted on forms in accordance with the above to the director for a determination of completeness. Within the time prescribed by law of the receipt of an application, or such longer or other review times allowed by applicable law, the director shall review the application and identify any ways in which the application is not complete and provide the applicant with a written explanation of the deficiencies with citation to the Code or Statutes requiring such deficient item.

2. New Application. Given the various time restrictions applicable to approvals under applicable law, any modification of an application other than to correct incompleteness may be denied by the director if the change is material or presents difficulty in completing review of the modified application within the established review time. In such circumstance, the modified application must be resubmitted as a new application and the original application shall be deemed withdrawn.

3. Approval Or Denial. The City shall approve or deny the application to collocate a small wireless facility or the application for the installation, modification, or replacement of a utility within the timeframes provided by applicable law.

D. Application Contents. An application for a permit under this Section shall contain, at a minimum, the following information:

1. Site-specific structural integrity and make-ready analysis prepared by a structural engineer. The make-ready analysis shall include plans and detailed cost estimates for any make-ready work as needed. Any cost associated with the make-ready work shall be the sole responsibility of the applicant.

2. The location where each proposed small wireless facility or utility pole would be installed and photographs of the location and its immediate surroundings depicting the utility poles or structures on which each proposed small wireless facility would be mounted or location where utility poles or structures would be installed. The photographs shall include a digital photo simulation of the proposed location providing "before and after" views demonstrating the impact of the proposed wireless facilities on the surrounding environment, including the right-of-way if applicable.

3. The equipment type and model numbers of the antennas and all other wireless equipment associated with the small wireless facility.

4. An attestation that the small wireless facility complies with the volumetric limitations set forth in Section 505.711.

5. Applicable indemnity, insurance, and performance bond information as required by Section 505.712(D).

6. An applicant that is not a wireless services provider must provide evidence of agreements or plans that demonstrate that the small wireless facility will be operational for use within one (1) year after the permit for the applicable small wireless facility is issued, unless the City and applicant agree to extend this period in writing or if delay is caused by a lack of commercial power or communications transport facilities to the site and the applicant notifies the City in writing. The non-wireless service provider applicant must provide the above information by attestation, attached to the applicable application.

7. A projected commencement and termination date of the work proposed under the permit. If said dates are not known at the time of the application, then any permit holder shall provide the director advanced, written notice of such dates once determined.

8. Any information necessary to establish that the proposed collocation of the small wireless facility meets the concealment requirements of Section 505.712(B).

9. Any information necessary to determine that the collocation meets the height restrictions of Section 505.712(A).

10. In the event that the proposed small wireless facility is to be attached to an existing utility pole owned by an entity other than the City, the wireless provider shall provide legally competent evidence of the consent of the owners of such pole to the proposed collocation.

11. Any other information deemed to be relevant by the director.

E. Consolidated Applications.

1. An applicant may file a consolidated application and receive a single permit for the collocation of multiple small wireless facilities. 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 or wireless support structure and all the collocations are geographically proximate. The denial of one (1) or more small wireless facilities in a consolidated application shall not delay the processing of any other small wireless facilities in the same batch;

2. 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 will promptly communicate its request to each and any affected applicant.

F. Make-Ready Work. The City shall provide a good faith estimate for any make-ready work necessary to enable a pole to support the requested collocation by a wireless provider, including pole replacement if necessary, within the timeframe provided by applicable law. Make-ready work, including any pole replacement, shall be completed within the timeframe provided by applicable law.

G. Rate For Collocation. If an application for the collocation of a small wireless facility is approved, the wireless provider shall pay to the City one hundred fifty dollars ($150.00) per year per small wireless facility collocated on an authority pole.

Section 505.714 Denial Of Permit.

[Ord. No. 4834, 6-17-2019]

A. Reasons. The City may deny a proposed collocation of a small wireless facility or installation, modification, or replacement of a utility pole if the action proposed in the application submitted to the director could reasonably be expected to:

1. Materially interfere with the safe operation of traffic control equipment or City-owned communications equipment;

2. Materially interfere with sight lines or clear zones for transportation, pedestrians, or non-motorized vehicles;

3. Materially interfere with compliance with the American Disability Act, 42 U.S.C. Sections 1201 to 12213, or similar Federal or State standards regarding pedestrian access or movement;

4. Materially obstruct or hinder the usual travel or public safety on the right-of-way;

5. Materially obstruct the legal use of the right-of-way by an authority, utility or another third party;

6. Fail to comply with the spacing requirement set forth in Section 505.410(C);

7. Fail to comply with applicable Codes, including nationally recognized engineering standards for utility poles or wireless support structures;

8. 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;

9. Fail to comply with undergrounding requirements as of January 1, 2018, or any new undergrounding requirements for new developments; or

10. Any other reason as allowed by applicable State or Federal law.

B. Denial. The City shall document the complete basis for the denial, in writing, supported by substantial evidence contained in a written record, and send said denial and any accompanying documentation to the applicant on the day the authority denies the application. The applicant may cure the deficiencies identified by the City and resubmit the application within the time-line provided for in applicable law without paying an additional application fee.

Section 505.715 Fast-Track Small Wireless Facility Deployment.

[Ord. No. 4834, 6-17-2019]

A. General Conditions. Small wireless facilities meeting the below, additional requirements and all other requirements of this Article may be authorized to be collocated with the approval of the director on an expedited twenty-day time frame subject to the following additional requirements:

1. Only one (1) small wireless facility shall be permitted per structure in the rights-of-way;

2. The small wireless antenna and associated pole equipment shall be of the same or similar color as the pole on which it is to be attached;

3. All wires and cables associated with the small wireless facility shall be installed on the interior of the pole;

4. No associated ground equipment shall be authorized;

5. No small wireless facility shall be located in a manner which obstructs or causes a safety concern for vehicle or pedestrian traffic; and

6. If the proposed structure the applicant proposes to locate its small wireless facility on is not structurally sound, but the director finds such to be a desired location, the director can require the applicant to install a new substantially similar structure at its cost.

B. New Or Replacements Poles. An applicant applying for approval of the siting of a small wireless facility under this Section may request or require that a new or replacement utility pole may be located as part of such deployment subject to the following additional requirements:

1. The new or replacement utility pole is no greater than five (5) feet taller than any adjacent or existing utility pole within the same right-of-way;

2. The new or replacement utility pole is of the same or materially similar design as adjacent or surrounding utility poles.

C. Application Fee. The application fee for the collocation of a small wireless facility under this Section shall be seventy-five dollars ($75.00). The application fee for a new or replacement utility pole under this Section shall be four hundred dollars ($400.00).

D. Rate For Collocation. The rate for collocating a small wireless facility under this Section shall be one hundred dollars ($100.00) per small wireless facility collocated on an authority pole.

E. Consolidated Applications. An applicant may file a consolidated application under this Section regarding the collocation of twenty (20) small wireless facilities so long as the proposed small wireless facilities and any new or replacement utility poles are of the same design.

F. Director's Discretion. Approval of small wireless facilities under this Section shall be at the discretion of the director following the requirements and criteria stated in this Section, this Article or Chapter 505 generally. Any application under this Section may be denied by the director if the application fails to meet any of the requirements of this Section or any of the requirements of this Article. This Section shall not be available to small cell wireless facility deployment within the Historic Overlay District. The director may authorize the use of the fast-track process for small wireless facilities that do not strictly comply with the requirements of this Section as long as said small wireless facilities comply with the intent and purpose of this Section.