[1]
Editor's Note: Prior legislation: C0323-19.
(C0487-20; amended as part of October 2021 update)
These rules and regulations establish uniform procedures for the placement, construction, maintenance and modification of small wireless facilities located in public rights-of-way in order to:
(a) 
Preserve the aesthetic character of the city;
(b) 
Minimize impacts to residential and business districts;
(c) 
Safeguard the quality of life for our residents;
(d) 
Protect public infrastructure investment; and
(e) 
Provide applicants with a thorough overview of the city’s reasonable requirements with regard to small wireless facilities.
(C0487-20; amended as part of October 2021 update)
(a) 
“Abandoned” shall mean the cessation of use of a small wireless facility for a period of more than 60 days.
(b) 
“Applicant” means any individual or entity who submits an application for a grant of location to locate a small wireless facility in a right-of-way or is acting on behalf of a wireless services provider or wireless infrastructure provider.
(c) 
“Right-of-way” or “ROW” means the public rights-of-way including without limitation all space in, upon, above, along, across, under and over any or all of the following: highways, streets, roads, lanes, courts, ways, alleys, paths, curbs, sidewalks, bridges, overpasses, underpasses, tunnels, easements, conduit and access manholes.
(d) 
“Small wireless facilities” are facilities that meet each of the following qualifications:
(1) 
The facilities are mounted on structures 50 feet or less in height including their antennas, or are mounted on structures no more than 10 percent taller than adjacent structures, or do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;
(2) 
Each antenna is located in an enclosure of no more than 3 cubic feet in volume;
(3) 
All other wireless equipment attached directly to a pole, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is cumulatively no more than 28 cubic feet in volume; and
(4) 
The facilities do not result in human exposure to radiofrequency radiation in excess of applicable safety standards set forth in applicable law.
(e) 
“Stealth design” shall mean any telecommunications facility, wireless support structure, or antenna that is integrated as an architectural feature of a structure or that is designed to be consistent with the existing infrastructure.
(C0487-20; amended as part of October 2021 update)
(a) 
Siting Guidelines.
The purpose of this section is to provide guidelines to applicants and the reviewing authority regarding the preferred locations, aesthetics and configurations for small wireless facilities in the city; provided, that nothing in this section shall be construed to permit a small wireless facility in any location that is otherwise prohibited by this division or any other section of the city’s applicable laws and zoning regulations.
(b) 
Order of Preference – Location.
The order of preference for the location of small wireless facilities in the city, from most preferred to least preferred, is:
(1) 
Industrial districts, industrial limited districts, business districts, business limited districts, telecommunications overlay district, river front overlay district, commercial triangle economic development district;
(2) 
Lower Broadway economic development district; and
(3) 
Dwelling districts, apartment districts.
(c) 
Additional Guidelines and Standards on Placement.
(1) 
to the extent possible, small wireless facilities and wireless support structures shall not be located closer than 150 feet away radially from another existing small wireless facility and wireless support structure occupied by the same carrier.
(2) 
No small wireless facilities shall be installed on any existing decorative streetlight poles, unless it is a stealth design and is approved by the executive director of planning and development.
(3) 
Pole mounted equipment minimum heights to the bottom of the equipment shall be 15 feet above sidewalk elevation.
(4) 
Antennas shall be limited to snug-mount, canister-mount, and concealed, and shall be mounted at the top of the pole with a diameter of no more than 6 inches greater than the diameter of the pole. Where conditions do not permit a top mounted antenna, the antenna may be side mounted with a minimum height of 15 feet above sidewalk elevation.
(5) 
to the extent possible, equipment should match the color and texture of the pole.
(C0487-20; amended as part of October 2021 update)
(a) 
The petition for a small wireless facility grant of location pursuant to MGL c.166, §22 shall be submitted in a form prescribed by the city and shall consist of:
(1) 
Site plan and engineering design and specifications for installation of the small wireless facility, including the location of radios, antenna facilities, transmitters, equipment shelters, cables, conduit, point of demarcation, transport solution, electrical distribution panel, electric meter, and electrical conduit and cabling, all of which shall conform to the city’s design and aesthetic criteria. Where applicable, the design documents should include specifications on design, pole modification, and ADA compliance;
(2) 
Load bearing study that determines whether the pole requires reinforcement or replacement in order to accommodate attachment of small wireless facilities. If pole reinforcement or replacement is warranted, the design documents should include the proposed pole modification;
(3) 
If the proposed installation will require reinforcement or replacement of an existing pole, provide applicable design and specification drawings; to the extent a pole replacement is needed to accommodate the applicant, the applicant shall convey ownership of the new pole to the owner of the existing pole if requested by the existing pole owner;
(4) 
The number, size, type and proximity to the facilities of all communications conduit(s) and cables to be installed;
(5) 
Description of the utility services required to support the facilities to be installed;
(6) 
All necessary permits and letters of authorization from all affected parties;
(7) 
List of the contractors and subcontractors, and their contact information, authorized to work on the project;
(8) 
Detailed map showing all existing and proposed small wireless facilities within 500 feet of the application site;
(9) 
Certification by a licensed radio frequency engineer that the proposed installation will not cause interference with public safety communications, a list of radio frequencies to be used at the proposed location, the areas it will service and evidence of the certifying engineer’s qualifications to make such certification;
(10) 
Certification that the proposed attachments will maintain or improve the capacity and/or coverage of service in the city;
(11) 
Description as to why the desired location is superior to other similar locations, from a community perspective, including:
a. 
Visual aspects; and
b. 
Proximity to residential structures;
(12) 
A mutually acceptable surety amount to cover removal costs of said facilities;
(13) 
Expected life of equipment;
(14) 
A report from a licensed radio frequency (RF) engineer who certifies that the radio frequency emissions from the proposed attachments comply with the limits set by the Federal Communications Commission; and
(15) 
Certification that the proposed attachments will be monitored following installation to ensure safe and proper operation of the attachments, including frequency and methodology of monitoring; and that the applicant will promptly address any irregularities in the attachments’ operation.
(b) 
The petition shall be accompanied by the appropriate filing fee(s) as indicated herein:
(1) 
Application fee for up to 5 small wireless facilities on existing poles – five hundred dollars ($500.00) flat fee.
(2) 
Application fee for more than 5 small wireless facilities on existing poles – five hundred dollars ($500.00) flat fee plus one hundred dollars ($100.00) per small wireless facility.
(3) 
Application fee for new pole – $1,000 flat fee.
(c) 
The city shall render a decision on a petition for a grant of location on an existing pole or wireless support structure within 60 days from the time the application is submitted and on a new pole or wireless support structure within 90 days from the time the application is submitted. Nothing in this section shall prohibit a greater approval period if mutually agreed to by the city and the applicant.
(d) 
The city clerk has 10 days to review such petition for completeness. to be deemed complete, the application must include all of the information detailed above.
(e) 
If the city clerk deems such petition to be incomplete, he shall so notify the applicant, in writing, so that they can complete the application as necessary. The 60-and 90-day time period (“shot clock”) will then be on hold until the completed application is submitted to the city clerk.
(f) 
If the city clerk deems the petition to be complete, he shall:
(1) 
Notify the applicant that their application has been accepted for consideration by the city council; and
(2) 
Forward a copy of the petition to department of public works and inspectional services and any other applicable city department or agent for review and comment.
(g) 
The city reserves the right to reasonably require, in its sole discretion, a supplemental review by independent experts of any application for a small wireless facility under this section. This may include efforts to confirm or refute an applicant’s assertion that there are no other nearby poles that could serve as reasonable alternatives. All reasonable costs of such review shall be borne by the applicant, in addition to scheduled fees. Whether based on the results of the supplemental review or the city’s own review, the city may require changes to or supplementation of the application.
(h) 
Unless construction has actually begun and is diligently pursued to completion at that point, no grant of location issued under this division shall be valid for more than 12 months unless the city and the applicant agree to an extension and all required fees are paid for the term regardless of construction.
(i) 
Any approval granted to an applicant shall be only for the specific applicant and application. Any change in the name/carrier or sistered service provided by another carrier, where the applicant does not hold more than a 51 percent ownership interest, or to small wireless location will require a new application and approval from the city.
(C0487-20; amended as part of October 2021 update)
(a) 
The city council shall conduct a public hearing on all completed applications for small wireless facilities.
(b) 
to facilitate such public hearings, the city clerk shall:
(1) 
Work with the applicant to schedule a date for a public hearing;
(2) 
Provide the applicant with:
a. 
A copy of the public hearing notice to be sent to the affected property owners; and
b. 
A list of the property owners to be notified as supplied by the board of assessors;
(3) 
Determine the meeting of the city council at which such application will be considered;
(4) 
Arrange to have a petition included on the business agenda for said city council meeting as a public hearing; and
(5) 
Place a legal advertisement in 1 or more of the local newspapers notifying the general public of the date, time, location and subject matter of the scheduled public hearing not less than 7 days prior to such hearing.
a. 
The expense of said advertisement(s) shall be the responsibility of the applicant.
b. 
Such expense shall usually be billed directly to the applicant.
(c) 
Property Owners Public Hearing Notice Requirements.
(1) 
Small wireless facility public hearing notices shall, at a minimum, include the date, time, location and subject matter of the scheduled public hearing.
(2) 
Property owners within a 200-foot radius of each proposed small wireless facility shall receive such hearing notice.
(3) 
In the case of an apartment building, the association or management company shall only need to receive such hearing notice and they may inform the building’s residents of said hearing.
(4) 
Such hearing notices shall be mailed by the applicant not less than 7 days prior to said hearing using certified – return receipt requested U.S. mail.
(5) 
The applicant shall be responsible, prior to said hearing, to provide the city clerk with return receipts from the U.S. Postal Service indicating that all required property owners have been notified of said hearing.
(d) 
In making its decision, the city council shall take into consideration the provisions of this division and recommendations and comments from those abutters obtained at the public hearing, the department of public works, inspectional services and any other city employees, representatives or agents.
(e) 
The city council, by majority vote, may dispose of the application in the following manner:
(1) 
Approve the grant of location on the terms and conditions set forth in the petition, or with additional reasonable conditions; or
(2) 
Deny the grant of location in the event that:
a. 
The proposed small wireless facility for the pole exceeds the height, dimension or other parameters for small wireless facilities under applicable law or the city’s then existing design and aesthetic criteria, if any;
b. 
The pole’s design documents attached to the petition do not comply with the city’s pole attachment laws for traffic light poles, or show that the small wireless facility will create interference with the city’s public safety radio system, traffic signal light system, or other communications components;
c. 
The petition does not include a load bearing study indicating that a pole has sufficient capacity for the proposed installation;
d. 
It is determined that the granting of such petition would impair the quality of life and/or safety of the city’s residents;
e. 
There is another nearby pole that is a reasonable alternative; or
f. 
Any other legally valid reason to deny such application.
(C0487-20; amended as part of October 2021 update)
(a) 
An applicant receiving a grant of location and intending to install a small wireless facility on a city utility pole or any other structure within a right-of-way in accordance with this section shall first:
(1) 
Execute a license agreement with the city; and
(2) 
Pay to the city an annual recurring rate of two hundred seventy dollars ($270.00) per small wireless facility, or any such higher rate permitted under Federal Communication Commission rules or federal law and as set forth in the license agreement, for the use of such utility pole.
(b) 
The license agreement shall be in a form prescribed by the city and shall include at least the following:
(1) 
If the annual recurring fee remains unpaid for a period of 60 days, the small wireless facility subject to a grant of location shall, upon written notice by the city, be considered abandoned, and may be ordered to be removed within 30 days after such notice.
(2) 
If a small wireless facility is not operated in compliance with a grant of location for a continuous period of 60 days, it shall be considered abandoned, and the city may, by written notice, order that such small wireless facility be removed within 30 days after such notice.
(3) 
If a small wireless facility is abandoned and ordered removed within 30 days, and the licensee refuses to do so, the city may, through all available legal means, have the small wireless facility removed and the licensee shall be responsible for reimbursing the city for its expenses in doing so. In any event, the applicant responsible for any small wireless facility which is not removed within 30 days after being listed as no longer in use in the annual recertification affidavit shall be subject to a fine of one hundred dollars ($100.00) per day until such installation is removed.
(4) 
If a small wireless facility is abandoned and removed, its grant of location shall be considered terminated; however, the license fee shall be due and payable for the entire year.
(5) 
In the event that a small wireless facility is sold, leased or otherwise assigned to another entity, only to the extent permissible pursuant to Section 4-63(i), written notice of such sale, lease, or assignment shall be provided to the city and all successors, lessees, or assignees shall be bound by the terms of its grant of location.
(6) 
The licensee shall take all commercially reasonable steps to correct and eliminate interference with public safety communications. If the interference issue is determined to be caused by the licensee, the city may require the licensee to discontinue use of the small wireless facility at issue and require the licensee to take diligent steps to develop a solution to said interferences.
(7) 
The licensee shall provide to the city a performance bond or other financial security for the timely removal of small wireless facilities and poles installed in the ROW at the end of the term or earlier termination of the grant of location in such amount determined by the city, not to exceed 125 percent of the removal costs, and adjusted for inflation.
(8) 
Beginning on the date of the grant of location and on each annual anniversary thereafter throughout the term thereof, the licensee shall maintain and provide to city a current map and list of the location(s) of small wireless facilities installed by the licensee in the city and report as to the operational status of such indicating, among other things, continuity of operations of such small wireless facilities, signed under the pains and penalties of perjury.
(9) 
The city retains the right to cut or move any small wireless facility located within the rights-of-way of the city in the event of an emergency, as the city may determine to be necessary, appropriate or useful in response to any imminent danger to public health, safety, or property. If circumstances permit, the city shall notify the wireless provider and provide the wireless provider an opportunity to move its own facilities prior to cutting or removing a facility and shall notify the wireless provider promptly after cutting or removing a small wireless facility. If the city performs work under this section, it may recover the actual and reasonable expenses of doing so from the wireless provider, its successor or assigns.
(10) 
Where such annual recertification has not been timely submitted, or equipment no longer in use has not been removed within the 30-day period, no further applications for small wireless facilities will be accepted by the city until such time as the annual recertification has been submitted and all fees and fines have been paid.
(11) 
The city shall have the right to employ a qualified radio frequency engineer to conduct an annual random and unannounced test of the licensee’s small wireless facilities located within the city to certify their compliance with all FCC radio frequency emission limits as they pertain to exposure to the general public. The reasonable cost of such tests may be requested of the licensee.
(12) 
In the event that such independent tests reveal that any small wireless facilities owned or operated by the licensee or its lessees, singularly or in the aggregate, is emitting radio frequency radiation in excess of FCC exposure guidelines as they pertain to the general public, the city shall notify the licensee and all residents living within 1,000 feet of the small wireless facility of the violation, and the licensee shall have 48 hours to bring the small wireless facility(ies) into compliance. Failure to bring the small wireless facility(ies) into compliance shall result in the forfeiture of all or part of the compliance bond, and the city shall have the right to require the removal of such facilities, as the city in its sole discretion may determine is in the public interest.
(13) 
Where feasible, as new technology becomes available, the licensee shall replace louder, and larger, more visually intrusive facilities, with quieter, and smaller, less visually intrusive facilities, after receiving all necessary permits and approvals required by the city.
(14) 
Insurance, Bonds and Indemnification.
a. 
All wireless providers shall maintain at all times insurance with the following minimum coverages: General liability insurance in an amount no less than $1,000,000 per occurrence and $2,000,000 in the aggregate, and umbrella insurance in an amount not less than $5,000,000. The city must be listed as an additionally insured party. Such insurance shall provide for the waiver by the insurance carrier of any subrogation rights against the city, its agents, servants and employees.
b. 
Upon approval of the application, the wireless provider shall be required to post a bond in the amount of $5,000 for each small wireless facility, each bond to be held and maintained until the removal of the small wireless facility by the provider or by the city as a guarantee to secure the applicant’s compliance with all applicable provisions of this division unless the applicant and the city both agree to a reasonable blanket bond.
c. 
To the fullest extent allowed by law, any wireless provider constructing, installing, operating, repairing, maintaining and using a small wireless facility shall indemnify, defend and hold harmless the city and its officials, agents, and employees from and against all suits, actions or claims of any character brought because of any injury or damage received or sustained by any person, persons or property arising out of, or resulting from, said wireless provider’s breach of any provision of law, including but not limited to any asserted negligent act, error or omission of the wireless provider, or its agents or employees, arising from or relating to its small wireless facility. The indemnifications required hereunder shall not be limited by reason of the specification of any particular insurance coverage for any permit. Each wireless provider’s obligation under this provision shall not terminate with the expiration or termination of its permit, but shall survive it.
(C0487-20; amended as part of October 2021 update)
(a) 
No small wireless facility shall be installed on double poles.
(b) 
No small wireless facility shall be installed on poles which are not ADA compliant.
(c) 
No small wireless facility shall remain within the city right-of-way or on city property which has not been certified as in use in the annual recertification affidavit.
(d) 
No small wireless facility equipment shall be replaced or altered without a reapplication, hearing, and approval from the city council unless equipment is no longer properly functioning, and it is being replaced with the same or substantially similar equipment.
(e) 
No small wireless facility shall be placed less than 15 feet radially from a residential dwelling structure, unless the report provided in Section 4-63(a)(14) demonstrates that the RF emissions from the proposed facility comply with the limits set forth by the Federal Communications Commission (FCC) for the distance requested. Upon written request from the city no more often than annually, the applicant shall provide the city with written certification that the RF emissions continue to comply with the limits set forth by the FCC for each facility that is located closer than 15 feet from a residential dwelling structure. The city reserves the right to conduct an annual test, at the expense of the applicant, should the applicant fail to provide written certification within 10 days of the city’s written request.
(f) 
No single application may seek approval of more than 10 proposed facilities.
(g) 
No applicant or closely held applicant may file more than 2 applications within 60 days of another; however, if the applications are processed and granted within 60 days, the applicant may apply for an additional 2 applications during that time frame.
(h) 
No small wireless facility shall be installed on historical, period, or decorative structures, unless it is a stealth design and is approved by the executive director of planning and development.
(C0487-20; amended as part of October 2021 update)
Any finding of the invalidity of any section, provision, paragraph, sentence, or clause of this division shall not invalidate any other section, provision, sentence, or clause thereof, nor shall it invalidate any grant of location, license, permit or determination that has been previously issued under this division.