[Adopted 8-20-2018 by Ord. No. 3425 (Ch. 12.04, sections 12.04.170 through
12.04.230, of the 1997 Code)]
A.Â
Applicability. Except as provided for herein, and where limited by
applicable law, this article shall apply to all excavations and all
use, construction, operation, and maintenance of facilities or structures
in the rights-of-way of the City. No person shall commence or continue
with the operation of any facilities or structures in the rights-of-way
except as provided and in compliance with this article. Because numerous
types of users and uses of the rights-of-way may be subject to various
or changing regulatory schemes under federal or state law, any such
limitation or qualification that may be applicable to less than all
users and uses of the rights-of-way is not duplicated herein, but
is nevertheless incorporated herein, whenever application is so required
by law, including but not limited to applicable provisions of state
and federal law.
B.Â
Preemption. No provision of this article shall apply to any circumstance
in which such application shall be unlawful under superseding federal
or state law; and furthermore, if any section, subsection, subdivision,
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the future superseded or preempted by state or federal law or found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.
For purposes of this article, the following terms, phrases,
words, and their derivatives shall have the meanings set forth in
this section, unless the context clearly indicates that another meaning
is intended:
Any equipment materials, apparatuses, devices, or facilities
that:
Are declared abandoned by the owner of such equipment or facilities;
Are no longer in active use for a period of six months or more,
and the owner of such equipment or facilities fails to respond within
30 days to a written notice sent by the City;
The owner allows a franchise, license, or other written authorization
to expire and fails to cure within 30 days after notice; or
Otherwise may be defined by applicable law.
Ground level shall be determined by the average elevation
of the natural ground level within a radius of 50 feet from the center
location of measurement.
Any device that transmits and/or receives wireless radio
waves for voice, data, or video communications purposes, including,
but not limited to, television, AM/FM radio, texts, microwave, cellular
telephone, and similar forms of communications. The term shall exclude
satellite earth station antennas less than two meters in diameter
(mounted within 12 feet of the ground or building-mounted) and any
receive-only home television antennas.
Any person who has applied for a franchise, license, ROW
permit, or any permit or other authorization to install, maintain,
repair, or otherwise physically access facilities in the ROW.
A structure for the protection and security of communications
equipment associated with one or more antennas where direct access
to equipment is provided from the exterior and that has horizontal
dimensions that do not exceed four feet by six feet, and vertical
height that does not exceed six feet.
A utility pole owned or operated by the City in public rights-of-way.
The Director of Public Works or his/her designee or official
acting in such capacity.
A permit authorizing excavation for the construction or installation
of facilities in the City's rights-of-way.
Any act by which earth, asphalt, concrete, sand, gravel,
rock, or any other material in or on the ground is cut into, dug,
uncovered, removed, or otherwise displaced, by means of any tools,
equipment, or explosives, except as excluded by applicable law.
The Federal Aviation Administration.
The construction, installation, repair, upgrade, or other
physical access to the facility in the rights-of-way that does not
involve excavation.
A permit issued by the City for the ROW user to provide maintenance
to its facilities or otherwise perform work in the ROW that does not
involve excavation but requires physical access to the facilities
in the ROW.
Any equipment, installation, or structure located in the
rights-of-way, including, without limitation, cables, wires, lines,
poles, towers, antennas, conduit facilities, vaults, pedestals, transmitters,
meters, fiber, foundations, and any other equipment, infrastructure,
structures, or obstruction. Facilities shall not include mailboxes,
lawful vehicular parking, or use of lawful minor incidental uses such
as driveway aprons, private utility connections, or other incidental
facilities which may be permitted by license issued by the Director
as provided herein.
The Federal Communications Commission.
A binding and accepted ordinance for certain ROW users to
occupy the rights-of-way for the purpose of providing, transporting,
or distributing electricity, gas, water, steam, lighting, energy,
cable, telecommunications, sewer, or any other service to any person
or area in the City's limits and boundaries.
The executed agreement between the City and a person to use
and occupy the rights-of-way for the purpose of installing incidental
temporary facilities within the rights-of-way or incidental uses such
as ingress and egress facilities, lateral utility lines, or driveway
aprons.
An individual, corporation, limited-liability company, partnership,
association, trust, or other entity or organization.
A recurring charge.
An excavation permit and/or a facilities maintenance permit.
All persons and entities, whether an Illinois Commerce Commission
registered entity or otherwise, owning, controlling, leasing, maintaining,
using, or installing facilities in the rights-of-way of the City,
not otherwise expressly exempted. "ROW user" shall also include any
entity defined by the Small Wireless Act as a "wireless provider".
To the extent permitted by law, "ROW user" shall not include the City.
The area on, below, or above a public roadway, highway, street,
or alleyway in which the City has an ownership interest or right of
management, and including such adjacent areas within such public ways
within such City control, except as may be limited by applicable law.
A building for the protection and security of communications
equipment associated with one or more antennas and where access to
equipment is gained from the interior of the building. Human occupancy
for office or other uses or the storage of other materials and equipment
not in direct support of the connected antenna is prohibited.
Public Act 100-0585, otherwise known as the "Small Wireless
Facilities Deployment Act."[1]
A wireless communications facility that meets both of the
following qualifications:
Each antenna is located inside an enclosure of no more than
six cubic feet in volume or, in the case of an antenna that has exposed
elements, the antenna and all of its exposed elements could fit within
an imaginary enclosure of no more than six cubic feet; and
All other wireless equipment attached to a utility pole or support
structure, associated with the small wireless facility, is cumulatively
no more than 25 cubic feet in volume, calculated to the extent permitted
by applicable law.
A freestanding structure such as a billboard or other structure
designed to, or capable of, supporting wireless communications facilities.
A support structure shall not include a utility pole.
A pole or similar structure that is used in whole or in part
by a ROW user or for electric distribution, lighting, or traffic control.
"Utility pole" shall not include a support structure.
Any antenna, small wireless facility, cabinet, shelter, and
support structure and associated equipment thereto.
[1]
Editor's Note: See 50 ILCS 840/1 et seq.
A.Â
Franchise agreement or license required. Except where otherwise authorized
or required by applicable law, no person may own, control, lease,
maintain, use, or install facilities in the rights-of-way without
a valid franchise or license with the City as provided herein and
as follows:
(1)Â
Franchise. A franchise shall be obtained in conformance with
all applicable franchise procedures for any rights-of-way user seeking
to use the rights-of-way for the purpose of providing, transporting,
or distributing electricity, gas, water, steam, lighting, energy,
cable, telecommunications, sewer, or any other service, or to place
any facilities into the rights-of-way as infrastructure for another
ROW user, to the extent permitted by applicable law, to any person
or area within the City's limits and boundaries.
(2)Â
License for incidental uses. Persons desiring to install an
incidental use, which includes installation of temporary structures
or minor incidental uses in the rights-of-way, such as driveway aprons,
ingress or egress facilities, and similar incidental uses, that utilizes
a small area of the rights-of-way and serves the principal structure,
may be permitted without a franchise agreement pursuant to a license
issued by the Director. The Director shall have discretion to establish
such application, application fee, requirements, and conditions applicable
to such uses consistent with the purposes of this article or as otherwise
established by law. Any person granted a license hereunder shall be
subject to the applicable requirements of this article. Unless otherwise
stated in the license, a license shall be for an indefinite term and
shall be revocable at any time on written notice in the public interest
by the City.
B.Â
Grant and nature of approval; terms and compensation. The authority
granted by the City in any franchise agreement or license shall be
for nonexclusive use of the rights-of-way. Such grant does not in
any way limit the continuing authority of the City through the proper
exercise of its statutory powers to adopt and enforce ordinances necessary
to provide for the health, safety, and welfare of the public. The
City specifically reserves the right to grant, at any time, such additional
franchise agreements or other rights to use the rights-of-way for
any purpose and to any other person, including itself, as it deems
appropriate, subject to all applicable laws. The granting of any franchise
or license by the City shall not be deemed to create any property
interest of any kind in favor of the ROW user, nor shall it create
any relationship of agency, partnership, joint venture, or employment
between the parties. Licenses may be approved by the Director on a
nondiscriminatory basis, provided that the person is in compliance
with all applicable requirements. Each franchise agreement and license
shall include terms of use and be deemed to incorporate the terms
of this article and other applicable laws of the City, except as may
be expressly stated in such franchise or license. The City may require
compensation for use of the rights-of-way or other public property
as may be reasonably required by the City Council, subject to applicable
law.
C.Â
Condition precedent to right-of-way permit. Unless otherwise required
by applicable law, no right-of-way permit may be issued unless such
person has a valid franchise agreement or license with the City that
authorizes that person's use of the rights-of-way. Unless prohibited
by applicable law, in addition to any other reason provided herein,
the Director may deny a ROW permit to any person that does not have
a valid franchise or license with the City.
D.Â
Transferability. Except as provided in this article or as otherwise
required by law, no franchise, license, or ROW permit may be transferred
or assigned without written application to and consent of the City
based on the requirements and policies of this article. The City shall
not unreasonably withhold its consent as provided herein, but any
costs incurred shall be paid by the ROW user to the extent not prohibited
by applicable law. In the case of the City granting consent to transfer,
the transferee shall be subject to the terms and conditions of this
article, and all terms and conditions of such transferred franchise,
license, or ROW permit.
E.Â
No warranties. The City makes no express or implied representation
or warranty regarding its rights to authorize the installation or
construction of facilities on any particular segment of rights-of-way
and shall not be liable for any damage therefrom. The burden and responsibility
for making all such determinations in advance of construction or installation
shall be entirely upon the rights-of-way user. The rights-of-way user
shall be solely liable for any damages to facilities or other property
due to excavation or other right-of-way work performed prior to obtaining
the location of all facilities within the work area. The rights-of-way
user shall not make or attempt to make repairs, relocation, or replacement
of damaged or disturbed facilities without the approval of the owner
of the facilities.
F.Â
Use of City or third-party facilities. Unless otherwise specified
in such franchise or license, no franchise agreement or license shall
grant the right to use facilities owned or controlled by the City
or a third party, and no such use shall occur, without the express
written consent of such party (on file with the City and subject to
other applicable requirements), nor shall any franchise agreement
or license excuse such person from first obtaining a pole attachment
agreement or other express consent (which may be expressly provided
for in a franchise) for such right or use before locating on the facilities
controlled or owned by the City or a third party.
G.Â
Lease required for public lands. Unless otherwise provided, use or
installation of any facilities in non-rights-of-way public property
of the City shall be permitted only if a lease agreement or other
separate written approval has been negotiated and approved by the
City with such reasonable terms as the City may require, and subject
to all applicable City ordinances and Illinois statutes.
H.Â
No cause of action against the City. A rights-of-way user shall have
no damages remedy or monetary recourse whatsoever against the City
for any loss, cost, expense, or damage arising from any of the provisions
or requirements of any franchise agreement or license, or other written
authorization or because of the enforcement thereof by said City,
or from the use of the rights-of-way. Nothing herein shall preclude
the rights-of-way user from seeking injunctive or declaratory judgment
relief against the City where such relief is otherwise available and
the requirements therefor are otherwise satisfied.
I.Â
Compliance with laws. Each rights-of-way user shall comply with all
applicable federal and state laws and regulations and rules as well
as all City ordinances, resolutions, rules applicable to building,
fire, electrical, plumbing, and mechanical codes and the local amendments
thereto, and regulations heretofore and hereafter adopted or established.
Rights-of-way users shall at all times be subject to the lawful exercise
of the police powers of the City, including but not limited to all
police powers regarding zoning, supervision of the restoration of
the rights-of-way, building and safety regulations, and control of
the rights-of-way. Installation of all facilities in the rights-of-way
are subject to and must be in compliance with all zoning, safety,
and building code requirements. For applications for installation
of wireless facilities in the rights-of-way: 1) the most restrictive
adjacent underlying zoning district classification shall apply, to
the extent permitted by applicable law, unless otherwise specifically
zoned and designated on the Official Zoning Map, and 2) no application
shall be submitted for approval without attaching the City's consent
to use the rights-of-way for the specific construction application.
J.Â
Indemnification. Every rights-of-way user, as a condition of use
of the rights-of-way, shall at its sole cost and expense fully indemnify,
protect, defend (with counsel for the City acceptable to the City),
and hold harmless the City, its municipal officials, officers, employees,
and agents, from and against any and all claims, demands, suits, proceedings,
and actions, liability, and judgment by other persons for damages,
losses, costs, and expenses, including attorney fees, arising, directly
or indirectly, in whole or in part, from the action or inaction of
the rights-of-way user, its agents, representatives, employees, contractors,
subcontractors, or any other person for whose acts the rights-of-way
user may be liable, in constructing, operating, maintaining, repairing,
restoring, or removing facilities, or use of the rights-of-way or
the activities performed, or failed to be performed, by the rights-of-way
user under this article or applicable law, or otherwise, except to
the extent arising from or caused by the sole or gross negligence
or willful misconduct of the City, its elected officials, officers,
employees, agents, or contractors. Nothing herein shall be deemed
to prevent the City or any agent from participating in the defense
of any litigation by its own counsel at its own expense. Such participation
shall not, under any circumstances, relieve the person from the duty
to defend against liability or its duty to pay any judgment entered
against the City or its agents. A ROW user shall also waive any claims
that they may have against the City or its agents with respect to
any damages, however caused, based on any theory of liability or other
culpability. This indemnification shall survive the expiration or
termination of any franchise, license, or ROW permit.
K.Â
Liability insurance.
(1)Â
Except as provided in this article, each rights-of-way user
shall provide, at its sole expense, and maintain during the term of
a franchise, commercial general liability insurance with a reputable,
qualified, and financially sound company licensed to do business in
the State of Illinois, and unless otherwise approved by the City,
with a rating by A.M. Best of not less than "A," that shall protect
the rights-of-way user, the City, and the City's officials, officers,
and employees from claims which may arise from operations under a
franchise, whether such operations are by the rights-of-way user,
its officers, directors, employees and agents, or any subcontractors
of the rights-of-way user. This liability insurance shall include,
but shall not be limited to, protection against claims arising from
bodily and personal injury and damage to property, resulting from
all rights-of-way user operations, products, services, or use of automobiles,
or construction equipment, and shall also include workers' compensation
insurance as required by Illinois law, and property insurance for
all ROW user's property for its property's replacement cost against
all risks. The amount of insurance for single limit coverage applying
to bodily and personal injury and property damage shall in no event
be less than $1,000,000 per occurrence and $2,000,000 in the aggregate,
with respect to its activities on the City's improvements or rights-of-way
to afford minimum protection limits consistent with its requirements
of other ROW users' use of the ROW, including coverage for bodily
injury and property damage. An endorsement shall be provided which
states that the City is listed as an additional insured, that the
insurer shall owe to the City a duty to defend the City for any and
all claims related to the insured's operation of facilities or other
structures within the City, and stating that the policy shall not
be cancelled or materially modified so as to be out of compliance
with the requirements of this section, or not renewed without 30 days'
advance written notice of such event being given to the Director.
(2)Â
If the person is self-insured to the satisfaction of the City,
it shall provide the City proof of compliance regarding its ability
to self-insure and proof of its ability to provide coverage in the
above amounts. The City reserves the right to waive any and all requirements
under this subsection when deemed to be in the public interest. A
copy of the liability insurance certificate, or other proof of compliance
if otherwise requested by the City, shall be delivered by the rights-of-way
user to the City Clerk.
L.Â
Rights-of-way user responsible for costs. The rights-of-way user
shall be responsible for all reasonable costs borne by the City that
are directly associated with the rights-of-way user's installation,
maintenance, repair, operation, use, and replacement of its facilities
in the rights-of-way that are not otherwise accounted for as part
of a permit fee, to the extent permitted by law. All such costs shall
be itemized and the City's books and records related to these costs
shall be made available upon request of the rights-of-way user.
M.Â
Use of existing facilities required; exceptions. All new facilities
or structures shall collocate on available existing poles or within
existing conduit, trenches, or other facilities to minimize unnecessary
use of rights-of-way space, reduce potential existing or future interference
and obstructions, and to reduce the cost to the public or others therefrom,
and to maximize the public's ability to use and license appropriate
private or public uses of the rights-of-way in the public interest
(except where preempted by law or where good cause is established
as determined by the City applying these objectives). Where existing
poles or facilities are available, or exist at or near the proposed
use, unless otherwise approved, the applicant must either use such
facilities or file a written request verified by the applicant for
exception, specifying the specific reasons why such facilities are
not available or feasible to be used and addressing the objectives
hereof.
N.Â
Subordinate use. The ROW user's use shall be, in all situations,
subordinate and subject to public municipal use. In situations where
multiple users are in the same location, first the municipal use shall
have priority followed by persons with a valid and current franchise
or license with the City, followed by all others.
O.Â
No interference. Every ROW user shall construct and maintain its
facilities so as not to interfere with other users of the rights-of-way.
The ROW user shall not interfere with or alter the facilities of the
City or other ROW user without their consent and shall be solely responsible
for such. Except as may otherwise be provided or as determined by
the Director, the ROW user shall, prior to commencement of work, execute
a City-approved resident-notification plan to notify residents affected
by the proposed work. All construction and maintenance by the ROW
user or its subcontractors shall be performed in accordance with industry
standards. All facilities and other structures shall be installed
and located to cause minimum interference with the rights and convenience
of property owners, ROW users, and the City. Facilities and other
structures shall not be placed where they will disrupt or interfere
with other facilities, structures, or public improvements or obstruct
or hinder in any manner the various utilities serving the residents
and businesses in the City or public improvements. Above-ground facilities,
where permitted, shall be constructed and maintained in such a manner
so as not to emit any unnecessary or intrusive noise. When reasonable
and necessary to accomplish such purposes, the Director may require
as alternatives to the proposed work either less disruptive methods
or different locations for facilities consistent with applicable law.
To the extent permitted by applicable law, failure to remedy the interference
as required by this subsection shall constitute a public nuisance.
P.Â
Forfeiture of franchise and privilege. In case of failure on the
part of the ROW user, including its successors and assigns, to comply
with any of the provisions of this article or a franchise or license,
or if the ROW user, its successors and assigns should do or cause
to be done any act or thing prohibited by or in violation of this
article or the terms of the authorization of such use, or otherwise
loses authority to provide its service in the City, the ROW user,
its successors and assigns shall forfeit all rights and privileges
permitted by any franchise or license, and all rights hereunder shall
cease, terminate, and become null and void, provided that said forfeiture
shall not take effect until the City shall carry out the following
proceedings: Before the City declares the forfeiture or revocation
of a franchise or license, it shall first serve a written notice upon
the person, setting forth in detail the neglect or failure complained
of, and the person shall have 30 days thereafter, or such other reasonable
period established by the Director, in which to cure the default by
complying with the conditions of the franchise or license and fully
remedying any default or violation. If, at the end of such period,
the City determines that the conditions have not been complied with
and that the person did not reasonably and in the public interest
require more than the established time to cure the default, the City
shall take action by an affirmative vote of the City Council present
at the meeting and voting to terminate the franchise or license, setting
out the grounds upon which said authorization is to be forfeited or
revoked. Nothing herein shall prevent the City from invoking any other
remedy or from declaring immediate forfeiture where the default is
incapable of being cured by the ROW user, including where such defaults
or violations have repeatedly occurred.
Q.Â
No waiver. No action or omission of the City shall operate as a future
waiver of any rights of the City under this article. Except where
rights are expressly granted or waived by a ROW permit, franchise,
or license, they are reserved, whether or not expressly enumerated.
A.Â
Application form. An application for a franchise agreement shall
be provided to the City on City forms and shall include all such information
as is required by this section and as determined necessary by the
Director. The ROW user shall be responsible for accurately maintaining
the information in the application during the term of any franchise
and shall be responsible for all costs incurred by the City due to
the failure to provide or maintain as accurate any application information
required herein.
B.Â
Application deposit fee. To the extent permitted by applicable law,
an application deposit of $500, or as otherwise determined by the
Director, is hereby established and shall be submitted with the application,
which shall be utilized to at least partly offset the City's costs
in reviewing and issuing a franchise, consistent with applicable law;
any amount not used by the City for its actual lawfully reimbursable
costs will be refunded upon request after execution of a franchise.
If applicable, the applicant shall be obligated to reimburse the City
for its reasonable expenses associated with the review, negotiation,
and adoption of an appropriate franchise agreement that may reasonably
exceed the application deposit amount.
C.Â
Standard for approval or renewal. In reviewing an application for
a new or renewal franchise, the City may consider prior conduct of
the person in performance of its obligations or compliance with the
City's ordinances in the past, or the existence of any outstanding
violations or deficiencies. The City may deny or condition any franchise
where the proposed use would interfere with the public use of the
rights-of-way or otherwise conflict with the legitimate public interests
of the City to fulfill the requirements and objectives of this article
or as otherwise provided by law. All franchises shall be approved
by ordinance or resolution of the City Council and applications shall
be decided on a nondiscriminatory basis and shall be approved, conditioned,
or denied based on compliance with all applicable requirements herein,
and conformance with applicable law and the public interest.
D.Â
Approval process. After submission by the applicant of a duly executed
and completed application, deposit fee, and executed franchise as
may be provided by the Director or as modified by the Director in
review of the specific circumstances of the application, all in conformity
with the requirements of this article and all applicable laws, the
Director shall submit such franchise to the City Council for approval.
Upon determining compliance with this article, the City Council may
authorize execution of the franchise (or a modified agreement otherwise
acceptable to the City consistent with the purposes of this article),
and such executed franchise shall constitute consent to use the rights-of-way;
provided that nothing herein shall preclude the rejection or modification
of any executed franchise submitted to the City to the extent applicable
law does not prohibit such rejection or modification, including where
necessary to reasonably and in a uniform or nondiscriminatory manner
reflect the distinct engineering, construction, operation, maintenance,
public work, or safety requirements applicable to the person or use.
A.Â
Review required. The design, location, and nature of all facilities
shall be subject to the review and approval of the Director. Such
review shall be on a nondiscriminatory basis in application of City
policy and approvals shall not be unreasonably withheld, to the extent
permitted by applicable law. City height limitations, applicable zoning
restrictions, and general City policies with regard to all users of
the rights-of-way shall also be applicable to all facilities. The
Director may establish such regulations or policies as may be deemed
necessary or appropriate to effect this provision.
B.Â
Underground facilities required; exceptions.
(1)Â
No person may erect, construct, or install new utility poles
or other facilities above the surface of the rights-of-way without
the written permission of the City based on good cause established
by the applicant and found by the City, unless the City's authority
has been preempted by state or federal law. Good cause may be shown
by demonstrating the following:
(a)Â
There exist other utility poles or support structures, proximate
to the area, that are located above ground. For purposes of showing
good cause under this factor, evidence of good cause for new utility
poles shall only be compared to existing utility poles; evidence of
good cause for new support structures shall only be compared to existing
support structures;
(b)Â
The proposed underground installation is impossible, impractical,
or not technically feasible; or
(c)Â
In the City's judgment, the proposed utility pole installation
will be made at a location, and will employ suitable design and materials,
to provide the greatest protection of aesthetic qualities of the proximate
area without adversely affecting safety.
(2)Â
Where reasonable and appropriate and where adequate rights-of-way exist, the ROW user shall place above-ground facilities underground in conjunction with City capital improvement projects and/or at specific locations requested by the City, provided that such placement is practical, efficient, and economically feasible. The requirements in this Subsection B shall not prohibit the replacement of existing utility poles.
C.Â
Use of existing poles/facilities required; exceptions. All new facilities
or structures shall collocate on existing utility poles or within
existing conduit, trenches, or other facilities to minimize unnecessary
use of rights-of-way space, reduce potential existing or future interference
and obstructions, and to reduce the cost to the public or others therefrom,
and to maximize the public's ability to use and license appropriate
private or public uses of the rights-of-way in the public interest
(except where preempted by law or where good cause is established
as determined by the City applying these objectives). To the extent
permitted by applicable law, where existing utility poles or support
structures are available, or exist at or near the proposed use, unless
otherwise approved, the applicant must either use such facilities
or file a written request verified by the applicant for exception,
specifying the specific reasons why such facilities are not available
or feasible to be used, and also the costs associated with utilizing
such existing facilities.
D.Â
Wireless antennas and facilities. Pursuant to City authority to properly
manage the limited space in the City's rights-of-way, minimize obstructions
and interference with the use of the rights-of-way by the public,
and to ensure public safety, preserve property values, while also
seeking to facilitate delivery of broadband technologies to City residents
and businesses, wireless communications facilities shall be permitted
in the rights-of-way only in compliance with the requirements applicable
to other facilities and users in the rights-of-way, and subject to
the supplemental requirements set forth in this section for wireless
antennas and facilities. Any wireless communications facilities authorized
in the rights-of-way shall be only as authorized in a binding, approved
franchise agreement which expressly authorizes attachment to the City's
utility poles and/or support structures, a pole attachment agreement,
or other written authorization with the City and subject to approval,
denial, or condition relating to location, design, height, appearance,
safety, specifications for use of City structures, and such building
or other regulations, except as may be limited by applicable law.
E.Â
General conditions. Any wireless communications facility in the rights-of-way shall be authorized only for persons or ROW users that have a current, unexpired, and lawful franchise agreement with the City pursuant to § 324-4.3A(1). All wireless communications facilities shall be subject to conditions relating to the location (including prohibited or limited locations), design, height, appearance, safety, radiofrequency, and other interference issues as may be lawfully imposed by the City where necessary or appropriate to protect the public, and to conform to policies and interests of the public as may be set forth in special district plans, historic areas, or other policies as may be reasonably adopted by the City to address changing infrastructure, technology, and uses of the rights-of-way and/or City facilities, to the extent permitted by applicable law.
F.Â
Small wireless facilities.
(1)Â
All small wireless facilities in the rights-of-way shall comply
with the following requirements, in addition to any other design,
safety, spacing, or construction requirements outlined in this section:
(a)Â
The maximum height of a small wireless facility that is collocated
on a utility pole or support structure shall be no more than 10 feet
above the utility pole or support structure on which such small wireless
facility is collocated;
(b)Â
All written design standards, currently in effect or as may
be hereafter adopted, applicable to the City's utility poles or support
structures shall be followed, along with all stealth, concealment,
and any other aesthetic requirements or written design plan applicable
to such utility poles or support structures on record, adopted, or
in effect within the City, including such stealth, concealment, or
other aesthetic requirements for historic landmarks or within a district
currently, or hereafter, zoned historic;
(c)Â
The small wireless facility and any associated equipment permitted
shall be painted the same or similar color as the utility pole or
support structure upon which the facility and/or equipment is collocated.
If good cause is shown for ground-mounted equipment, such ground-mounted
equipment associated with a collocated small wireless facility shall
be of such design, including color and size, that it maximally blends
in to the built environment of the proximate area;
(d)Â
Only one small wireless facility may be collocated on a utility
pole or support structure;
(e)Â
New or replacement utility poles or support structures may not
exceed 45 feet AGL, to the extent permitted by applicable law, without
a special use permit approved by City Council pursuant to Section
17.40.010 of the Columbia Zoning Code;
(f)Â
To the extent permitted by applicable law, all ROW users must
comply with any requirements imposed by any contract between the City
and a private property owner that concerns, or relates to, design
or construction standards for utility poles located in the rights-of-way;
(g)Â
To the extent permitted by applicable law, new utility poles and support structures shall follow Subsection B of this section, such that no new utility poles or other support structures may be installed within the City's rights-of-way without the prior approval of the City for compliance with design and aesthetic requirements. This requirement does not prohibit modification of existing utility poles or support structures to allow for collocation of small wireless facilities. Replacement utility poles shall be permitted as required by applicable law. In such a circumstance requiring a new or replacement pole for a small wireless facility, such new or replacement utility poles shall be at the cost of the ROW user;
(h)Â
No ground-mounted equipment associated with the small wireless
facility will be permitted. Waiver to this requirement may be granted
by the City Council if good cause is shown that the applicant requires
ground-mounted equipment to utilize the site for a small wireless
facility. If good cause is shown permitting such ground-mounted equipment
for a small wireless facility, no other ground-mounted equipment shall
be allowed for that particular applicant, or for the particular ROW
user if the applicant provides only infrastructure-related services
for the ROW user, within 250 feet of that approved ground-mounted
equipment;
(i)Â
The proposed collocation, modification, or replacement of utility
poles or support structures, where approved pursuant to this article,
shall cause only the minimum possible interference with the use of
the rights-of-way and shall cause only the minimum possible impact
upon, and interference with, the rights and reasonable convenience
of the property owners who adjoin said rights-of-way;
(j)Â
The height of all portions of the small wireless facility shall
be located at least eight feet above ground level so as not to interfere
with pedestrian or vehicle traffic;
(k)Â
No portions of the small wireless facility shall extend horizontally
from the surface of the utility pole or collocated support structure
more than 16 inches so as not to interfere with pedestrian or vehicle
traffic;
(l)Â
If the proposed utility pole or support structure on which the
applicant proposes to locate its small wireless facility is not structurally
sound, but the Director finds such site to be a desired location,
the Director can require the applicant to install a substantially
similar utility pole or support structure, at the applicant's cost;
and
(m)Â
Notwithstanding the maximum size descriptions which define a
small wireless facility contained in this article or otherwise contained
in applicable law, the applicant for the proposed installation or
collocation shall endeavor to use the smallest suitable vaults, boxes,
equipment enclosures, power pedestals, and/or cabinets then in use
by the ROW user, regardless of location, for the particular application.
(2)Â
The City Council may further waive one or more of these requirements
upon good cause shown by the applicant, and provided a showing that
the waiver is the minimum necessary to accomplish the purposes of
this subsection, or as otherwise required by applicable law. The burden
of proof for any waiver shall be wholly on the applicant and must
be shown by clear and convincing evidence.
G.Â
New structures. Wireless communications facilities shall not be permitted in the rights-of-way on new structures, provided that if evidence warranting an exception is provided by the applicant pursuant to Subsection B of this section, the City Council may grant an exception authorizing a new structure for a wireless communications facility if it also determines on a nondiscriminatory basis such proposed application is in the public interest in light of the purposes of this section, and provided such use and location has received prior, separate zoning authorization to the extent permitted by applicable law. In such circumstances where any new wireless support structure application is permitted in the rights-of-way, such use shall be subject to reasonable regulations or conditions and including any applicable specifications, compensation, and other terms established by the City in such approval or agreement as necessary or appropriate to preserve the purposes of this section and subsection.
H.Â
All other wireless in rights-of-way. Any wireless communications facility proposed to be located on a utility pole or support structure, but not meeting the requirements of Subsection E, General conditions, or Subsection F, Small wireless facilities, above, may be approved, subject to conditions as may be imposed consistent with the purposes of this section, only upon approval by the Council upon a determination by the Council that such wireless communications facility:
(1)Â
Is in the public interest to provide a needed service to persons
within the City;
(2)Â
Cannot feasibly meet all of the requirements of a small wireless
facility but varies from such requirements to the minimum extent necessary;
(3)Â
Does not negatively impact appearance or property values in
light of the location, design, and circumstances to be approved;
(4)Â
Does not create any unreasonable safety risk; and
(5)Â
Complies with all zoning, rights-of-way, and other applicable
requirements.
I.Â
Permit application requirements for wireless communications facilities.
(1)Â
Any application for a ROW permit, including one or more wireless
communications facilities, including but not limited to small wireless
facilities, shall include all of the requirements of this code, as
well as written proof of consent of landowner (copy of the enforceable
franchise agreement, or other written consent of the City) and of
structure owner (document authorizing use of the utility pole or support
structure). Additionally, for the installation of small wireless facilities,
the following information shall be required to constitute a completed
application:
(a)Â
A site-specific structural integrity report for each utility
pole and support structures, and for City utility poles and City-controlled
support structures, a make-ready analysis prepared by a structural
engineer, as that term is defined in Section 4 of the Structural Engineering
Practice Act of 1989;[1]
[1]
Editor's Note: See 225 ILCS 340/4.
(b)Â
Specifications and drawings prepared by a structural engineer
for each small wireless facility;
(c)Â
Location of each proposed small wireless facility which is proposed
to be installed, with photographs of the immediate surrounding areas
depicting where the small wireless facility would be mounted on its
associated structure;
(d)Â
The equipment types and model numbers for the antennas and all
other equipment associated with the small wireless facility;
(e)Â
A proposed schedule for the installation and completion for
each small wireless facility, if such application were approved;
(f)Â
Certification that the collocation proposed in the application
complies with the Small Wireless Act, and the City's requirements
for collocation, to the extent permitted by applicable law, including
the existence of an enforceable franchise agreement between the City
and the ROW user, undergrounding requirements, design requirements,
and all requirements of this § 342-4.5, to the best of the
applicant's knowledge; and
(g)Â
All application fees to the extent permitted by law. All application
fees to the City shall be nonrefundable. If such application requires
a replacement utility pole(s), such cost of the replacement utility
pole(s) will also be included in the application.
(2)Â
Failure to provide the application fee(s) as required by the
City's Code, or as otherwise provided for by the Small Wireless Act
or other law, will prevent the exercise by the applicant of any "deemed
approved" remedy which may be provided for in any applicable law.
The City's application fees shall be the maximum permitted by applicable
law, including but not limited to the Small Wireless Act, as may be
hereafter amended, and shall be effective until an ordinance establishing
such lesser or alternative amount is passed by City Council.
J.Â
Sight triangle maintained. All ROW users shall comply with the requirements
of sight triangles and nothing shall be erected, placed, planted,
or allowed to grow in such a manner as to materially impede the vision
within the triangular area formed by the rights-of-way lines and a
line connecting them at points 30 feet from their point of intersection
or at equivalent points on a private street.
K.Â
Installation and maintenance of facilities. Each ROW user shall maintain
its facilities in good and safe condition and in a manner that complies
with all applicable federal, state, and local requirements. If excavation
or facilities maintenance is being done for the ROW user by another
person, a subcontractor or otherwise, the ROW user shall be responsible
for ensuring that the excavation or facilities maintenance of said
person is performed consistent with its ROW permit and applicable
law (including that the contractor shall be properly licensed under
the State of Illinois and local ordinances) and shall be responsible
for promptly correcting acts or omissions by said person.
L.Â
Collocation completion deadline. Any collocation for a wireless communications
facility for which a ROW permit is granted shall be completed within
180 days after the issuance of the permit, measured as the day in
which the Director or his/her designee approves the application and
affixes his/her signature to such ROW permit. The City and the ROW
user may agree to extend this period, or if a period of delay is caused
by make-ready work for a City pole or by the lack of commercial power
or backhaul availability at the proposed location, if the ROW user
has made a request within 60 days after the issuance of the ROW permit
for commercial power or backhaul services. In no case shall an extension
be inferred via conduct or waiver, and may only be granted in writing,
expressly stating the nature of such extension, signed by the City.
Any additional extension cannot exceed 360 days after issuance of
the ROW permit. All ROW permits issued for which the work authorized
is not completed shall be deemed void and require a new application
to the City.
M.Â
Reservation of right of denial. Nothing herein shall prohibit a denial
of a wireless communications facility application, notwithstanding
any contrary requirement or provision of this article, if applicable
law at that time would otherwise not prohibit such denial, including
due to change of law, invalidation, inapplicability or expiration
of the Small Wireless Act, or otherwise.
N.Â
Wireless facility compensation requirements. Unless otherwise established
by the City Council or applicable law, compensation to the City for
use of City rights-of-way or structures for wireless facilities shall
be as follows unless otherwise lawfully provided for in the franchise
authorizing such use:
(1)Â
City structures. If a small wireless facility is to be collocated
on a City-owned structure acceptable for such use by the City, a franchise,
or other written authorization such as a pole attachment agreement,
shall be required with terms including insurance, indemnification,
and an annual rate of $200 per attachment, or such other compensation
as may be lawfully provided for in such franchise or authorization
(the "attachment rate"), shall be paid to the City.
(2)Â
Timing of payment. Unless otherwise agreed to in writing, all
small wireless facility attachment rate payments shall be due annually
on January 1 of each year. The attachment rate payment shall not be
pro-rated or otherwise reduced based on the date of attachment to
City infrastructure. Payment for linear feet of facilities, to the
extent not preempted by applicable law, shall be as provided in such
franchise or as otherwise required in the City Code. Payment of all
other fees as required by this Code or applicable franchise shall
be on a monthly basis, within 30 days after the end of each such month.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(3)Â
Interest on late payments and underpayments. If any fees or
rates required by this article, including all attachment rates, or
any portion thereof, are not postmarked or delivered on or before
the due date, interest on the payment and interest on the unpaid balance
shall accrue from the due date until received, on a monthly basis,
at the rate of 1.5% of the total amount past due or at such other
lower rate as may be required by applicable law.
(4)Â
Fee statement; retroactive adjustments. Each payment of the
fees or rates required by this article, including the attachment rate
payments, shall be accompanied by a statement, certified as true,
showing the manner in which the rights-of-way fee was calculated,
including the total number of feet of rights-of-way occupied by the
rights-of-way user's facilities and number of small wireless facilities
collocated on City infrastructure in the rights-of-way, number of
small wireless facilities for which the ROW user is paying, and any
applicable penalties or interest payments which may have accrued as
required. If any statement is determined to understate the payment
owed, then such additional amount owed shall be paid with a corrected
statement, including interest on said amount as provided herein. No
refund, credit, or offset shall be granted for any claimed payment
or overstatement of the amount due or certification of small wireless
facilities or linear feet of facilities reported, provided that a
corrected payment or report may be filed prior to any accrual of interest
on the original payment.
(5)Â
No accord and satisfaction. No acceptance by the City of any
payment shall be construed as an accord that the amount paid is in
fact the correct amount, nor shall acceptance of any payment be construed
as a release of any claim of the City.
(6)Â
Maintenance of records. Rights-of-way users shall at all times
maintain complete and accurate books of account and records of the
business, ownership, and operations of the rights-of-way user with
respect to the facilities in a manner that allows the City to determine
whether the rights-of-way user has properly calculated its required
payment in compliance with this section. Should the City reasonably
determine that the records are not being maintained in such manner,
the rights-of-way user shall correct the manner in which the books
and/or records are maintained so that the rights-of-way user comes
into compliance with this section. All financial books and records
which are maintained in accordance with FCC regulations and the regulations
of any governmental entity that regulates utilities in Illinois, and
generally accepted accounting principles, shall be deemed to be acceptable
under this section. Such books and records shall be maintained for
a period of at least five years.
(7)Â
Right of inspection. The City or its designated representatives
shall have the right to inspect, examine, or audit, during normal
business hours and upon seven calendar days' notice, all documents,
records, or other information that pertains to the facilities within
the rights-of-way and/or rights-of-way user's payment obligations.
In addition to access to the records of rights-of-way user for audits,
upon request, a rights-of-way user shall provide reasonable access
to records necessary to verify compliance with the terms of this section.
(8)Â
Fees, rates, and compensation not a tax. The fees, attachment
rates, and costs provided for in this section, and any compensation
charged and paid for the use of the rights-of-way as provided for
in this section, are separate from, and additional to, any and all
federal, state, City, or other local taxes as may be levied, imposed,
or due.
A.Â
Inspections. All work and facilities shall be subject to inspection
by the City and the supervision of all federal, state, and local authorities
having jurisdiction in such matters to ensure compliance with all
applicable laws, ordinances, departmental rules and regulations, and
the ROW permit.
B.Â
Stop-work orders. The Director shall have full access to all portions
of the work and may issue stop-work orders and corrective orders to
prevent unauthorized work or substandard work as established herein.
Except in cases of an emergency or with approval of the Director,
no work may be done in violation of a stop-work order issued by the
Director.
C.Â
Repairs when defective. All violations of the standards and requirements
herein shall be corrected within the time specified in the issuance
of a written notice to correct. Action to correct violations which
require immediate action shall be taken upon notification to the person
by the City. Every person failing to comply with the oral or written
notice shall be deemed in violation of this article. If the action
is not taken within the time period specified by notice, and in addition
to any other remedy, the Director may have the violation, including,
but not limited to, the existence of mud or debris on the rights-of-way,
immediately remedied and the City's costs shall be reimbursed by the
ROW user through the surety or otherwise. Nothing in this subsection
shall prevent prosecution of violation of this article in the absence
of or in addition to the issuance of a notice of violation.
D.Â
Appeals. Unless otherwise provided herein or by any other governing
ordinance or law, any person aggrieved by a decision, fee, or requirement
established or made pursuant to this article shall, prior to seeking
any judicial or statutory relief, if any, file a written appeal of
any such decision, fee, or requirement with the City Council within
15 days of such decision or imposition of such fee or requirement,
specifying this provision and including specific details of the alleged
claim or grievance, and an evidentiary hearing shall be held on such
appeal by the City Council or its designee to render a final decision.
Nothing herein shall deny or preclude any additional applicable appeal
remedy that may be granted and required by federal or state law after
such decision.
E.Â
Penalties. In addition to any other penalties and remedies for violations that may exist in law or equity, any person that violates any provision of this article shall be subject to such penalties as set forth in Chapter 1, Article III, § 1-3.1 of the Columbia Municipal Code per day for each and every day the violation exists or continues.
In addition to any rights specifically reserved to the City
by this article, the City reserves unto itself every right and power
which is required to be reserved by a provision of any ordinance under
any registration, permit, or other authorization granted under this
article, and as may be authorized by the 1970 Illinois Constitution
or any other authority applicable to regulation of the use of the
rights-of-way. Notwithstanding anything to the contrary set forth
herein, the provisions of this article shall not infringe upon the
rights of any person pursuant to any applicable state or federal statutes,
including, but not limited to, any right that may exist to occupy
the rights-of-way.
