[10-1-2019 by Ord. No.
1176-19; effective 10-31-2019]
The purpose of this article is to establish a process for managing,
and uniform standards for acting upon, requests for the placement
of wireless facilities within the public rights-of-way of the City
consistent with the City's obligation to promote the public health,
safety, and welfare, to manage the public rights-of-way, and to ensure
that the public is not incommoded by the use of the public rights-of-way
for the placement of wireless facilities. The City recognizes the
importance of wireless facilities to provide high-quality communications
service to the residents and businesses within the City, and the City
also recognizes its obligation to comply with applicable federal and
state law regarding the placement of personal wireless services facilities
in its public rights-of-way. This article shall be interpreted consistent
with those provisions.
[10-1-2019 by Ord. No.
1176-19; effective 10-31-2019]
The terms used in this article shall have the following meanings:
A person filing an application for placement or modification
of a wireless facility in the public right-of-way.
A formal request, including all required and requested documentation
and information, submitted by an applicant to the City for a wireless
encroachment permit.
Shall have the meaning as set forth in 47 CFR 1.6100(b)(1),
or any successor provision.
Shall have the meaning as set forth in 47 CFR 1.6100(b)(3),
or any successor provision.
The Federal Communications Commission or its lawful successor.
City-owned or controlled property structures, objects, and
equipment in the ROW, including, but not limited to, streetlights,
traffic control structures, banners, street furniture, bus stops,
billboards, or other poles, lighting fixtures, or electroliers located
within the ROW.
Any person or entity granted a wireless encroachment permit
pursuant to this article.
Shall have the same meaning as set forth in 47 U.S.C. § 332(c)(7)(C)(i).
A wireless facility used for the provision of personal wireless
services.
Any portion of any public street, alley, sidewalk, parkway,
road, or way which the City has the responsibility to maintain or
manage.
Shall have the same meaning as "small wireless facility"
in 47 CFR 1.6002(l), or any successor provision (which is a personal
wireless services facility that meets the following conditions that,
solely for convenience, have been set forth below):
The facility:
Is mounted on a structure 50 feet or less in height, including
antennas, as defined in 47 CFR 1.1320(d); or
Is mounted on a structure no more than 10% taller than other
adjacent structures; or
Does not extend an existing structure on which it is located
to a height of more than 50 feet or by more than 10%, whichever is
greater;
Each antenna associated with the deployment, excluding associated
antenna equipment [as defined in the definition of "antenna" in 47
CFR 1.1320(d)], 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 no more than
28 cubic feet in volume;
The facility does not require antenna structure registration
under 47 CFR Part 17;
The facility is not located on tribal lands, as defined under
36 CFR 800.16(x); and
The facility does not result in human exposure to radiofrequency
radiation in excess of the applicable safety standards specified in
47 CFR 1.1307(b).
Any structure capable of supporting a base station.
Any structure built for the sole or primary purpose of supporting
any FCC-licensed or authorized antennas and their associated facilities,
including structures that are constructed for personal wireless 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
in excess of 35,000 volts.
A structure in the ROW designed to support electric, telephone
and similar utility lines. A tower is not a utility pole.
A permit issued pursuant to this article authorizing the
placement or modification of a wireless facility of a design specified
in the permit at a particular location within the ROW; and the modification
of any existing support structure to which the wireless facility is
proposed to be attached.
The transmitters, antenna structures and other types of installations
used for the provision of wireless services at a fixed location, including,
without limitation, any associated tower(s), support structure(s),
and base station(s).
A person that owns, controls, operates or manages a wireless
facility or portion thereof within the ROW.
Those regulations adopted pursuant to § 4-9.304 and implementing the provisions of this article.
An entity that provides personal wireless services to end
users.
[10-1-2019 by Ord. No.
1176-19; effective 10-31-2019]
(a)
In General. There shall be a type of encroachment permit entitled
a "wireless encroachment permit," which shall be subject to all of
the same requirements as an encroachment permit would under Title
4, Chapter 9, of the Code in addition to all of the requirements of
this article. Unless exempted, every person who desires to place a
wireless facility in the public rights-of-way or modify an existing
wireless facility in the public rights-of-way must obtain a wireless
encroachment permit authorizing the placement or modification in accordance
with this article. Except for small cell facilities, facilities qualifying
as eligible facilities requests, or any other type of facility expressly
allowed in the public right-of-way by state or federal law, no other
wireless facilities shall be permitted pursuant to this article.
(b)
Exemptions. This article does not apply to:
(1)
The placement or modification of facilities by the City or by
any other agency of the state solely for public safety purposes.
(2)
Installation of a "cell on wheels," "cell on truck" or a similar
structure 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.
(c)
Other Applicable Requirements. In addition to the wireless encroachment
permit required herein, the placement of a wireless facility in the
ROW requires the persons who will own or control those facilities
to obtain all permits required by applicable law, and to comply with
applicable law, including, but not limited to, applicable law governing
radio frequency (RF) emissions.
(d)
Preexisting Facilities in the ROW. Any wireless facility already
existing in the ROW as of the date of this article's adoption
shall remain subject to the provisions of the City Code in effect
prior to this article, unless and until an extension of such facility's
then-existing permit is granted, at which time the provisions of this
article shall apply in full force going forward as to such facility.
The review of any request for a renewal of a permit for such preexisting
facilities shall be conducted pursuant to this article, rather than
the portion(s) of the City Code that it was previously reviewed under.
(e)
Public Use. Except as otherwise provided by California law, any use
of the public right-of-way authorized pursuant to this article will
be subordinate to the City's use and use by the public.
[10-1-2019 by Ord. No.
1176-19; effective 10-31-2019]
(a)
Reviewing Authority. The Director of Public Works ("Director") or
its designee is responsible for administering this article. As part
of the administration of this article, the Director may:
(1)
Interpret the provisions of this article;
(2)
Develop and implement standards governing the placement and
modification of wireless facilities consistent with the requirements
of this article, including regulations governing co-location and resolution
of conflicting applications for placement of wireless facilities;
(3)
Develop and implement acceptable designs and development standards
for wireless facilities in the public rights-of-way, taking into account
the zoning districts bounding the public rights-of-way;
(4)
Develop forms and procedures for submission of applications
for placement or modification of wireless facilities, and proposed
changes to any support structure consistent with this article;
(5)
Determine the amount of and collect, as a condition of the completeness
of any application, any fee established by this article;
(6)
Establish deadlines for submission of information related to
an application, and extend or shorten deadlines where appropriate
and consistent with state and federal laws and regulations;
(7)
Issue any notices of incompleteness, requests for information,
or conduct or commission such studies as may be required to determine
whether a permit should be issued;
(8)
Require, as part of, and 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 facility and proposed
changes to any support structure;
(9)
Subject to appeal as provided herein, determine whether to approve,
approve subject to conditions, or deny an application; and
(10)
Take such other steps as may be required to timely act upon
applications for placement of wireless facilities, including issuing
written decisions and entering into agreements to mutually extend
the time for action on an application.
(b)
Appeal.
(1)
Any person adversely affected by the decision of the Director
pursuant to this article may appeal the Director's decision to
the City Manager, 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 personal wireless services facility.
(2)
Where the Director grants an application based on a finding
that denial would result in a prohibition or effective prohibition
under applicable federal law, the decision shall be automatically
appealed to the City Manager. All appeals must be filed within two
business days of the written decision of the Director, unless the
Director extends the time therefor. An extension may not be granted
where extension would result in approval of the application by operation
of law.
(3)
Any appeal shall be conducted so that a timely written decision
may be issued in accordance with applicable law.
[10-1-2019 by Ord. No.
1176-19; effective 10-31-2019]
(a)
Generally. Wireless facilities in the ROW shall meet the minimum
requirements set forth in this article and the wireless regulations,
in addition to the requirements of any other applicable law.
(b)
Regulations. The wireless regulations and decisions on applications
for placement of wireless facilities in the ROW shall, at a minimum,
ensure that the requirements of this section are satisfied, unless
it is determined that applicant has established that denial of an
application would, within the meaning of federal law, prohibit or
effectively prohibit the provision of personal wireless services,
or otherwise violate applicable laws or regulations. If that determination
is made, the requirements of this article may be waived, but only
to the minimum extent required to avoid the prohibition or violation.
(c)
Minimum Standards. Wireless facilities shall be installed and modified
in a manner that minimizes risks to public safety, avoids placement
of aboveground facilities in underground areas, avoids installation
of new support structures or equipment cabinets in the public rights-of-way,
and otherwise maintains the integrity and character of the neighborhoods
and corridors in which the facilities are located; ensures that installations
are subject to periodic review to minimize the intrusion on the rights-of-way;
and ensures that the City bears no risk or liability as a result of
the installations, and that such use does not inconvenience the public,
interfere with the primary uses of the rights-of-way, or hinder the
ability of the City or other government agencies to improve, modify,
relocate, abandon, or vacate the public rights-of-way or any portion
thereof, or to cause the improvement, modification, relocation, vacation,
or abandonment of facilities in the rights-of-way.
(d)
Design Standards and Location Preferences. All new wireless facilities
and co-locations, modifications, or other changes to existing wireless
facilities that are not eligible facilities requests must conform
to the design and development standards adopted by resolution of the
City Council. The Director, or its designees, is authorized to amend
these design and development standards from time to time.
[10-1-2019 by Ord. No.
1176-19; effective 10-31-2019]
(a)
Submission. Unless the wireless regulations provide otherwise, applicant
shall submit a paper copy and an electronic copy of any application,
amendments, or supplements to an application, or responses to requests
for information regarding an application to: Director of Public Works,
at City Hall, 410 Avalon Canyon Blvd., P.O. Box 707, Avalon, CA 90704.
(b)
Preapplication Meeting. Prior to filing an application for a wireless
encroachment permit, an applicant is encouraged to schedule a preapplication
meeting with the Director to discuss the proposed facility, the requirements
of this article, and any potential impacts of the proposed facility.
(c)
Content. An applicant shall submit an application on the form approved
by the Director, which may be updated from time to time, but in any
event shall require the submission of all required fee(s), documents,
information, and any other materials necessary to allow the Director
to make required findings and ensure that the proposed facility will
comply with applicable federal and state law, the City Code, and will
not endanger the public health, safety, or welfare. If no form has
been approved, applications must contain all information necessary
to show that applicant is entitled to the wireless encroachment permit
requested, and must specify whether the applicant believes state or
federal law requires action on the application within a specified
time period.
(d)
Fees. Application fee(s) shall be required to be submitted with any
application for a wireless encroachment permit. The City Council is
hereby authorized to determine, or cause to be determined, the amount,
type, and other terms of such fee(s) from time to time by means of
resolution. Notwithstanding the foregoing, no application fee shall
be refundable, in whole or in part, to an applicant for a wireless
encroachment permit unless paid as a refundable deposit.
(e)
Waivers. Requests for waivers from any requirement of this section
shall be made in writing to the Director or his or her designee. The
Director may grant or deny a request for a waiver pursuant to this
subsection. The Director may grant a request for waiver if it is demonstrated
that, notwithstanding the issuance of a waiver, the City will be provided
all information necessary to understand the nature of the construction
or other activity to be conducted pursuant to the permit sought. All
waivers approved pursuant to this subsection shall be: 1) granted
only on a case-by-case basis; and 2) narrowly tailored to minimize
deviation from the requirements of the City Code.
(f)
Incompleteness. For personal wireless facilities and eligible facilities
requests, applications will be processed, and notices of incompleteness
provided, in conformity with state, local, and federal law. If such
an application is incomplete, the Director may notify the applicant
in writing, and specifying the material omitted from the application.
[10-1-2019 by Ord. No.
1176-19; effective 10-31-2019]
(a)
Findings Required for Approval.
(1)
Except for eligible facilities requests, the Director or City
Manager, as the case may be, shall approve an application if, on the
basis of the application and other materials or evidence provided
in review thereof, it finds the following:
(2)
For eligible facilities requests, the Director or City Manager,
as the case may be, shall approve an application if, on the basis
of the application and other materials or evidence provided in review
thereof, it finds the following:
(b)
Decisions. Decisions on an application by the Director or City Manager
shall be in writing and include the reasons for the decision.
(c)
Independent Consultants. The Director or City Manager, as the case
may be, is authorized, in its discretion, to select and retain independent
consultant(s) with expertise in telecommunications in connection with
the review of any application under this article. Such independent
consultant review may be retained on any issue that involves specialized
or expert knowledge in connection with an application, including,
but not limited to, application completeness or accuracy, structural
engineering analysis, or compliance with FCC radio frequency emissions
standards.
[10-1-2019 by Ord. No.
1176-19; effective 10-31-2019]
(a)
Generally. In addition to any supplemental conditions imposed by
the Director or City Manager, as the case may be, all permits granted
pursuant to this article shall be subject to the following conditions,
unless modified by the approving authority:
(1)
Code Compliance. The permittee shall at all times maintain compliance
with all applicable federal, state and local laws, regulations and
other rules, including, without limitation, those applying to use
of public rights-of-way.
(2)
Permit Duration. A wireless encroachment permit shall be valid
for a period of 10 years, unless pursuant to another provision of
the Code or these conditions, it expires sooner or is terminated.
At the end of 10 years from the date of issuance, such permit shall
automatically expire, unless an extension or renewal has been granted.
A person holding a wireless encroachment permit must either: 1) remove
the facility within 30 days following the permit's expiration
(provided that removal of support structure owned by City, a utility,
or another entity authorized to maintain a support structure in the
right-of-way need not be removed, but must be restored to its prior
condition, except as specifically permitted by the City); or 2) at
least 90 days prior to expiration, submit an application to renew
the permit, which application must, among all other requirements,
demonstrate that the impact of the wireless facility cannot be reduced.
The wireless facility must remain in place until it is acted upon
by the City and all appeals from the City's decision exhausted.
(3)
Timing of Installation. The installation and construction authorized
by a wireless encroachment permit shall begin within one year after
its approval, or it will expire without further action by the City.
The installation and construction authorized by a wireless encroachment
permit shall conclude, including any necessary postinstallation repairs
and/or restoration to the ROW, within 30 days following the day construction
commenced.
(4)
Commencement of Operations. The operation of the approved facility
shall commence no later than one month after the completion of installation,
or the wireless encroachment permit will expire without further action
by the City.
(5)
As-Built Drawings. The permittee shall submit an as-built drawing
within 90 days after installation of the facility.
(6)
Inspections; Emergencies. The City or its designee may enter
onto the facility area to inspect the facility upon 48 hours'
prior notice to the permittee. The permittee shall cooperate with
all inspections and may be present for any inspection of its facility
by the City. The City reserves the right to enter or direct its designee
to enter the facility and support, repair, disable, or remove any
elements of the facility in emergencies or when the facility threatens
imminent harm to persons or property. The City shall make an effort
to contact the permittee prior to disabling or removing any facility
elements, but in any case shall notify permittee within 24 hours of
doing so.
(7)
Contact. The permittee shall at all times maintain accurate
contact information for all parties responsible for the facility,
which shall include a phone number, street mailing address and email
address for at least one natural person.
(8)
Insurance. Permittee shall obtain and maintain throughout the
term of the permit commercial general liability insurance with a limit
established by the City and limits of general aggregate including
premises operations, contractual liability, personal injury, and products
completed operations insurance as established by the City. The relevant
policy(ies) shall name the City, its elected/appointed officials,
commission members, officers, representatives, agents, and employees
as additional insureds. Permittee shall use its best efforts to provide
30 days' prior notice to the City of to the cancellation or material
modification of any applicable insurance policy.
(9)
Indemnities. The permittee and, if applicable, the owner of
the property upon which the wireless facility is installed shall defend,
indemnify and hold harmless the City, its agents, officers, officials,
and employees: i) from any and all damages, liabilities, injuries,
losses, costs, and expenses, and from any and all claims, demands,
lawsuits, writs of mandamus, and other actions or proceedings brought
against the City or its agents, officers, officials, or employees
to challenge, attack, seek to modify, set aside, void or annul the
City's approval of the permit; and ii) from any and all damages,
liabilities, injuries, losses, costs, and expenses, and any and all
claims, demands, lawsuits, or causes of action and other actions or
proceedings of any kind or form, whether for personal injury, death
or property damage, arising out of or in connection with the activities
or performance of the permittee or, if applicable, the private property
owner or any of each one's agents, employees, licensees, contractors,
subcontractors, or independent contractors. In the event the City
becomes aware of any such actions or claims the City shall promptly
notify the permittee and, if applicable, the private property owner,
and shall reasonably cooperate in the defense. The City shall have
the right to approve, which approval shall not be unreasonably withheld,
the legal counsel providing the City's defense, and the property
owner and/or permittee (as applicable) shall reimburse City for any
costs and expenses directly and necessarily incurred by the City in
the course of the defense.
(10)
Performance Bond. Prior to issuance of a wireless encroachment
permit, the permittee shall file with the City, and shall maintain
in good standing throughout the term of the approval, a performance
bond or other surety or another form of security for the removal of
the facility in the event that the use is abandoned or the permit
expires, or is revoked, is otherwise terminated. The security shall
be in the amount equal to 100% of the cost of physically removing
the facility and all related facilities and equipment on the site,
based on the higher of two contractor's quotes for removal that
are provided by the permittee. The permittee shall reimburse the City
for staff time associated with the processing and tracking of the
bond, based on the hourly rate adopted by the City Council. Reimbursement
shall be paid when the security is posted and during each administrative
review.
(11)
Adverse Impacts on Adjacent Properties. Permittee 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, and removal of the facility.
(12)
Noninterference. Permittee shall not move, alter, temporarily
relocate, change, or interfere with any existing structure, improvement,
or property without the prior consent of the owner of that structure,
improvement, or property. No structure, improvement, or property owned
by the City shall be moved to accommodate a permitted activity or
encroachment, unless the City determines that such movement will not
adversely affect the City or any surrounding businesses or residents,
and the permittee pays all costs and expenses related to the relocation
of the City's structure, improvement, or property. Prior to commencement
of any work pursuant to a wireless encroachment permit, the permittee
shall provide the City with documentation establishing to the City's
satisfaction that the permittee has the legal right to use or interfere
with any other structure, improvement, or property within the public
right-of-way or City utility easement to be affected by permittee's
facilities.
(13)
No Right, Title, or Interest. The permission granted by a wireless
encroachment permit shall not in any event constitute an easement
on or an encumbrance against the public right-of-way. No right, title,
or interest (including franchise interest) in the public right-of-way,
or any part thereof, shall vest or accrue in permittee by reason of
a wireless encroachment permit or the issuance of any other permit
or exercise of any privilege given thereby.
(14)
No Possessory Interest. No possessory interest is created by
a wireless encroachment permit. However, to the extent that a possessory
interest is deemed created by a governmental entity with taxation
authority, permittee acknowledges that City has given to permittee
notice pursuant to California Revenue and Taxation Code Section 107.6
that the use or occupancy of any public property pursuant to a wireless
encroachment permit may create a possessory interest which may be
subject to the payment of property taxes levied upon such interest.
Permittee shall be solely liable for, and shall pay and discharge
prior to delinquency, any and all possessory interact taxes or other
taxes, fees, and assessments levied against permittee's right
to possession, occupancy, or use of any public property pursuant to
any right of possession, occupancy, or use created by this permit.
(15)
General Maintenance. The site and the facility, including, but
not limited to, all landscaping, fencing, and related transmission
equipment, must be maintained in a neat and clean manner and in accordance
with all approved plans. All graffiti on facilities must be removed
at the sole expense of the permittee within 48 hours after notification
from the City.
(16)
RF Exposure Compliance. All facilities must comply with all
standards and regulations of the FCC and any other state or federal
government agency with the authority to regulate RF exposure standards.
After transmitter and antenna system optimization, but prior to unattended
operations of the facility, permittee or its representative must conduct
on-site postinstallation RF emissions testing to demonstrate actual
compliance with the FCC OET Bulletin 65 RF emissions safety rules
for general population/uncontrolled RF exposure in all sectors. For
this testing, the transmitter shall be operating at maximum operating
power, and the testing shall occur outwards to a distance where the
RF emissions no longer exceed the uncontrolled/general population
limit.
(17)
Testing. Testing of any equipment shall take place on weekdays
only, and only between the hours of 8:30 a.m. and 4:30 p.m., except
that testing is prohibited on holidays that fall on a weekday. In
addition, testing is prohibited on weekend days.
(18)
Modifications. No changes shall be made to the approved plans
without review and approval in accordance with this article.
(19)
Agreement with City. If not already completed, permittee shall
enter into the appropriate agreement with the City, as determined
by the City, prior to constructing, attaching, or operating a facility
on municipal infrastructure. This permit is not a substitute for such
agreement.
(20)
Conflicts with Improvements. For all facilities located within
the ROW, the permittee shall remove or relocate, at its expense and
without expense to the City, any or all of its facilities when such
removal or relocation is deemed necessary by the City by reason of
any change of grade, alignment, or width of any right-of-way, for
installation of services, water pipes, drains, storm drains, power
or signal lines, traffic control devices, right-of-way improvements,
or for any other construction, repair, or improvement to the right-of-way.
(21)
Abandonment. If a facility is not operated for a continuous
period of six months, the wireless encroachment permit and any other
permit or approval therefor shall be deemed abandoned and terminated
automatically, unless before the end of the six-month period: i) the
Director has determined that the facility has resumed operations;
or ii) the City has received an application to transfer the permit
to another service provider. No later than 90 days from the date the
facility is determined to have ceased operation or the permittee has
notified the Director of its intent to vacate the site, the permittee
shall remove all equipment and improvements associated with the Director.
The permittee shall provide written verification of the removal of
the facilities within 30 days of the date the removal is completed.
If the facility is not removed within 30 days after the permit has
been discontinued pursuant to this subsection, the site shall be deemed
to be a nuisance, and the City may cause the facility to be removed
at permittee's expense or by calling any bond or other financial
assurance to pay for removal. If there are two or more users of a
single facility or support structure, then this provision shall apply
to the specific elements or parts thereof that were abandoned, but
will not be effective for the entirety thereof until all users cease
use thereof.
(22)
Encourage Co-Location. Where the facility site is capable of
accommodating a co-located facility upon the same site in a manner
consistent with the permit conditions for the existing facility, the
owner and operator of the existing facility shall allow co-location
of third party facilities, provided the parties can mutually agree
upon reasonable terms and conditions.
(23)
Records. The permittee must maintain complete and accurate copies
of all permits and other regulatory approvals issued in connection
with the facility, which includes without limitation this approval,
the approved plans and photo simulations incorporated into this approval,
all conditions associated with this approval and any ministerial permits
or approvals issued in connection with this approval. In the event
that the permittee does not maintain such records as required in this
condition or fails to produce true and complete copies of such records
within a reasonable time after a written request from the City, any
ambiguities or uncertainties that would be resolved through an inspection
of the missing records will be construed against the permittee.
(24)
Attorney's Fees. In the event the City determines that
it is necessary to take legal action to enforce any of these conditions,
or to revoke a permit, and such legal action is taken, the permittee
shall be required to pay any and all costs of such legal action, including
reasonable attorney's fees, incurred by the City, even if the
matter is not prosecuted to a final judgment or is amicably resolved,
unless the City should otherwise agree with permittee to waive said
fees or any part thereof. The foregoing shall not apply if the permittee
prevails in the enforcement proceeding.
(b)
Eligible Facilities Requests. In addition to the conditions provided in § 4-9.308(a) of this article and any supplemental conditions imposed by the Director or City Manager, as the case may be, all permits for an eligible facility request granted pursuant to this article shall be subject to the following additional conditions, unless modified by the approving authority:
(1)
Permit Subject to Conditions of Underlying Permit. Any permit
granted in response to an application qualifying as an eligible facilities
request shall be subject to the terms and conditions of the underlying
permit.
(2)
No Permit Term Extension. The City's grant or grant by
operation of law of an eligible facilities request permit constitutes
a federally mandated modification to the underlying permit or approval
for the subject tower or base station. Notwithstanding any permit
duration established in another permit condition, the City's
grant or grant by operation of law of an eligible facilities request
permit will not extend the permit term for the underlying permit or
any other underlying regulatory approval, and its term shall be coterminous
with the underlying permit or other regulatory approval for the subject
tower or base station.
(3)
No Waiver of Standing. The City's grant or grant by operation
of law of an eligible facilities request does not waive, and shall
not be construed to waive, any standing by the City to challenge Section
6409(a) of the Spectrum Act, any FCC rules that interpret Section
6409(a) of the Spectrum Act, or any modification to Section 6409(a)
of the Spectrum Act.
(c)
Small Cell Facilities Requests. In addition to the conditions provided in § 4-9.308(a) of this article and any supplemental conditions imposed by the Director or City Manager, as the case may be, all permits for a small cell facility granted pursuant to this article shall be subject to the following condition, unless modified by the approving authority:
(1)
No Waiver of Standing. The City's grant of a permit for
a small cell facility request does not waive, and shall not be construed
to waive, any standing by the City to challenge any FCC orders or
rules related to small cell facilities, or any modification to those
FCC orders or rules.
[10-1-2019 by Ord. No.
1176-19; effective 10-31-2019]
(a)
For Breach. A wireless encroachment permit may be revoked for failure
to comply with the conditions of the permit or applicable law. Upon
revocation, the wireless facility must be removed; provided that removal
of a support structure owned by City, a utility, or another entity
authorized to maintain a support structure in the right-of-way need
not be removed, but must be restored to its prior condition, except
as specifically permitted by the City. All costs incurred by the City
in connection with the revocation and removal shall be paid by entities
who own or control any part of the wireless facility.
(b)
For Installation Without a Permit. A wireless facility installed
without a wireless encroachment permit (except for those exempted
by this article) must be removed; provided that removal of support
structure owned by City, a utility, or another entity authorized to
maintain a support structure in the right-of-way need not be removed,
but must be restored to its prior condition, except as specifically
permitted by the City. All costs incurred by the City in connection
with the revocation and removal shall be paid by entities who own
or control any part of the wireless facility.
(c)
Municipal Infraction. Any violation of this article will be subject
to the same penalties as a violation of the Title 1, Chapter 2 of
the Code.
[10-1-2019 by Ord. No.
1176-19; effective 10-31-2019]
The City, as a matter of policy, will negotiate agreements for
use of municipal infrastructure. The placement of wireless facilities
on those structures shall be subject to the agreement. The agreement
shall specify the compensation to the City for use of the structures.
The person seeking the agreement shall additionally reimburse the
City for all costs the City incurs in connection with its review of,
and action upon the person's request for, an agreement.
[10-1-2019 by Ord. No.
1176-19; effective 10-31-2019]
In establishing the rights, obligations and conditions set forth
in this article, it is the intent of the City to treat each applicant
or public right-of-way user in a competitively neutral and nondiscriminatory
manner, to the extent required by law, and with considerations that
may be unique to the technologies, situation and legal status of each
particular applicant or request for use of the public rights-of-way.
