(a)
The
purpose of this division is to establish policies and procedures for
the placement of node support poles in the right-of-way and network
nodes in the public right-of-way and on service poles within the city’s
jurisdiction, which will provide public benefits and will be consistent
with the preservation of the integrity, safe usage, and visual qualities
of the city public right-of-way and the city as a whole.
(b)
In
enacting this division, the city is establishing uniform standards
to address issues presented by network nodes, including without limitation,
ensuring that network nodes or node support poles do not adversely
affect:
(1)
Use of streets, sidewalks, alleys, parkways and other public ways
and places;
(2)
Vehicular and pedestrian traffic;
(3)
The operation of facilities lawfully located in public right-of-way
or public property;
(4)
The ability of the city to protect the environment, including the
prevention of damage to trees;
(5)
The character of residential and historic areas and city parks in
which network nodes may be installed; and
(6)
The rapid deployment of network nodes to provide the benefits of
wireless services.
(c)
This
division supersedes all chapters of the city code, parts of chapters
of the city code, and rules adopted prior hereto that are in conflict
herewith, only to the extent of such conflict.
(Ordinance 2019-27 adopted 8/13/19)
All terms used in this division, not specifically defined herein,
have the meaning provided in chapter 284 of the Texas Local Government
Code.
Chapter 284 of the Texas Local Government Code, as may be
amended, and the Telecommunications Act of 1996 consistent with the
interpretation set forth in that certain Declaratory Ruling and Third
Report and Order, FCC 18-133 issued by the Federal Communications
Commission adopted September 26, 2018 and released September 27, 2018.
Any person who submits an application and is a network provider.
A request submitted by an applicant:
The Odessa Municipal Code and other ordinance provisions
relevant to use of the public right-of-way where compliant with applicable
law.
A calendar day.
An individual, corporation, limited liability company, partnership,
association, trust, or other entity or organization, including the
city.
Maintenance in the public right-of-way that does not require
excavation or closing of sidewalks or vehicular lanes in a public
right-of-way;
Replacing or upgrading a network node or pole with a node or
pole that is substantially similar in size or smaller and that does
not require excavation or closing of sidewalks or vehicular lanes
in a public right-of-way; or
The installation, placement, maintenance, operation, or replacement
of micro network nodes that are strung on cables between existing
poles or node support poles, in the public right-of-way.
In light of prevailing industry and engineering standards,
reasons of insufficiency of capacity, safety, reliability, and/or
generally applicable engineering purposes consistent with applicable
law and city code.
(Ordinance 2019-27 adopted 8/13/19)
(a)
Collocation of network nodes and the placement of node support poles, meeting the parameters set forth in this division and in applicable law, shall be a permitted use. Except as provided in section 3-15-454, no zoning or land use review shall apply.
(b)
Except
as otherwise provided in this division, no person shall place a network
node, transport facility or node support pole in the public right-of-way,
without first filing a permit application and obtaining a permit therefor.
(c)
All
permit applications filed pursuant to this division shall be on a
form, paper or electronic, provided by the city. The applicant may
designate portions of its application materials that it reasonably
believes contain proprietary or confidential information as “proprietary”
or “confidential” by clearly marking each page of such
materials accordingly; however, the issue of whether such materials
are subject to public disclosure shall be governed by chapter 552
of the Texas Government Code, as may be amended.
(d)
The
permit application shall be made by the network provider or its duly
authorized representative and shall contain the following:
(1)
The applicant’s name, address, telephone number, and e-mail
address;
(2)
The name and title, address, telephone number, and e-mail address
of the person designated by the applicant to receive, on behalf of
the applicant, all communications and required notices from the city
in accordance with this division and applicable law;
(3)
The names, addresses, telephone numbers, and e-mail addresses of
all consultants, if any, acting on behalf of the Applicant with respect
to the filing of the application; and
(f)
An
applicant shall ensure that the information provided to the city in
a permit application is correct. If at any time, any change in facts
or circumstances causes the information contained in the initial permit
application to no longer be correct, the applicant shall submit in
writing to the city an amendment to the application within 30 days
after the change in facts or circumstances occurs.
(h)
To
the extent applicable law prescribes an application fee that is different
from the fee prescribes by this section, the fee prescribed by applicable
law shall apply.
(Ordinance 2019-27 adopted 8/13/19)
(a)
The city shall review applications for network nodes, node support poles and transport facilities in light of their conformity with applicable law, the city code and the design manual adopted in accordance with section 3-15-460 and shall issue such permits on nondiscriminatory terms and conditions subject to the following requirements:
(1)
Within 10 days of receiving an Application for a network node, node
support pole or transport facility, the city shall determine and notify
the applicant whether the application is complete. If the application
is incomplete, the city must specifically identify the missing information
in such notification. There shall be no fee charged for completion
and resubmittal of an application.
(2)
The city shall make its final decision to approve or deny a complete application that does not require zoning or land use approval under section 3-15-454 or applicable law not later than:
(3)
The city shall advise the applicant in writing of its final decision.
If the city denies the application, the city shall advise the applicant
in writing the basis for that denial, including specific provisions
of city code, design manual or applicable law on which the denial
was based, and send the documentation to the applicant on or before
the day the city denies the application. The applicant may cure the
deficiencies identified by the city and resubmit the application within
30 days of the denial without paying an additional application fee.
The city shall approve or deny the revised application within 90 days
of receipt of the amended application. The subsequent review by the
city shall be limited to the deficiencies cited in the original denial
documentation.
(4)
To the extent applicable law prescribes a date for approval or denial
of an application that is different from the date prescribed by this
section, the date prescribed by applicable law shall apply.
(5)
An applicant seeking to collocate network nodes may, at the applicant’s
discretion, file a consolidated application and receive permits for
up to 30 network nodes. Provided however, the city’s denial
of any node within a single application shall not affect other nodes
submitted in the same application. The city shall grant permits for
any and all nodes in a single application that it does not deny, subject
to the requirements of this section.
(b)
Notwithstanding
any other provision of this division, the city shall approve and may
not deny any eligible facilities request for modification of an eligible
support structure that does not substantially change the physical
dimensions of such structure within sixty (60) days according to the
procedures established under 47 CFR 1.40001(c).
(Ordinance 2019-27 adopted 8/13/19)
(a)
Collocation
of permitted use network nodes and installation of new, modified,
or replacement utility poles or node support poles in the public right-of-way
shall be subject to the size and height limitations specified in sections
284.003 and 284.103, as may be amended, of chapter 284 of the Local
Government Code, and as otherwise provided in applicable law, provided,
however, a network provider may construct, modify, or maintain in
a public right-of-way a network node or node support pole that exceeds
the height or distance limitations prescribed by chapter 284 of the
Local Government Code only if the municipality approves the construction,
modification, or maintenance subject to all applicable zoning or land
use regulations and applicable codes.
(b)
A
network provider shall comply with nondiscriminatory undergrounding
requirements, city code provisions, zoning regulations, state law,
private deed restrictions, and other public or private restrictions,
that prohibit installing aboveground structures in a public right-of-way
without first obtaining zoning or land use approval. This requirement
or restriction shall not be interpreted to prohibit a network provider
from replacing an existing structure.
(c)
Subject to the permit application approval time frames in section 3-15-453 of this division, a network provider must obtain advance approval from the city manager before collocating new network nodes or installing new node support poles in any areas zoned or designated as a historic district or as a design district if the district has decorative poles. Such installations shall be subject to the design and aesthetic standards of such areas as adopted by the city on reasonable notice to all network providers.
(d)
A
network provider may not install a new node support pole in a public
right-of-way without the discretionary, nondiscriminatory, written
consent of the city manager, or his designee, if the public right-of-way
is:
(e)
A
network provider seeking to construct, replace or modify a pole or
node in the public right-of-way that exceeds the height or size limits
contained in chapter 284 of the Local Government Code shall be subject
to applicable zoning requirements.
(Ordinance 2019-27 adopted 8/13/19)
(a)
A
permit from the city authorizes an applicant to undertake only certain
activities in accordance with this division and does not create a
property right or grant authority to the applicant to impinge upon
the rights of others who may already have an interest in the public
right-of-way.
(b)
A
network provider shall begin the installation for which a permit is
granted not later than six months after final approval and shall diligently
pursue the installation to completion. The city manager, or his designee,
may place a longer time limit on completion or grant reasonable extensions
of time as requested by the network provider.
(c)
Once
a network provider has collocated a network node or placed a node
support pole pursuant to a permit, the provider shall be permitted
to continue to maintain such collocation or such pole unless required
to remove or relocate under the terms of this division.
(Ordinance 2019-27 adopted 8/13/19)
(a)
Within
90 days following written notice from the city, a network provider
shall, at its own expense, protect, support, temporarily or permanently
disconnect, remove, relocate, change or alter the position of any
network node, node support pole and/or ground equipment, or any portion
thereof, within the public right-of-way whenever the city has determined
that such removal, relocation, change or alteration, is reasonably
necessary for the construction, repair, maintenance, or installation
of any city improvement in or upon, or the operations of the city
in or upon, the public right-of-way.
(b)
The
city retains the right and privilege to disconnect or move any network
node, node support pole and/or ground equipment, or any portion thereof,
located within the public right-of-way of the city, as the city may
determine to be necessary, appropriate or useful in response to any
public health or safety emergency. If circumstances permit, the city
shall notify the network provider of such disconnection or removal
and allow the network provider an opportunity to move its own facilities
prior to the city disconnecting or removing a facility, and shall
notify the network provider after disconnecting or removing a network
node, node support pole and/or ground equipment, or any portion thereof.
(c)
Upon
abandonment of a network node, node support pole and/or ground equipment,
or any portion thereof, within the public right-of-way, the network
provider shall notify the city within 90 days. Following receipt of
such notice, the city may direct the network provider to remove all
or any portion of a network node, node support pole and/or ground
equipment if the city manager, or his designee, determines, subject
to the city code, that such removal is necessary to protect public
health, safety and welfare.
(Ordinance 2019-27 adopted 8/13/19)
(a)
Once
a network provider has obtained a permit to install a network node
in the public right-of-way, network provider shall pay to the city
compensation for use of the public right-of-way in the amount of $250.00
annually per node in the city public right-of-way.
(b)
To
the extent applicable law prescribes a public right-of-way annual
rate that is different from the rate prescribed by this section, the
rate prescribed by applicable law shall apply.
(c)
A network provider is authorized to remove its facilities at any time from the public right-of-way, subject to any removal requirements of the design manual adopted in accordance with section 3-15-460, and to cease paying the city compensation for use of the public right-of-way following removal and notification to the city manager, or his designee, of such removal.
(Ordinance 2019-27 adopted 8/13/19)
A network provider shall be permitted to attach network nodes
to city-owned service poles, consistent with applicable law and the
city code and subject to the requirements specified herein.
(1)
Prior
to collocating a network node on a service pole, a network provider
shall obtain a permit pursuant to the terms of this division.
(2)
The
network provider shall be responsible for costs for make ready work
on city service poles to which the network provider seeks to place
a network node.
(3)
In
the event the city manager, or his designee, determines, based upon
technical grounds, that inadequate space exists on a service pole
to accommodate the proposed network node, such pole may be replaced
by network provider, at the network provider’s expense, with
a node support pole with adequate space to accommodate the proposed
network node.
(4)
The rate to collocate a network node on a service pole in the public right-of-way shall be $20.00 per pole per year. To the extent applicable law prescribes a collocation rate that is different from the rate prescribed by this section, the rate prescribed by applicable law shall apply. Subject to the provisions of section 3-15-459 of this division, such compensation together with the application fee specified in section 3-15-452 of this division and the public right-of-way rate specified in section 3-15-457 of this division shall be the sole compensation that the network provider shall be required to pay to the city for said collocation.
(5)
A network provider is authorized to remove its facilities at any time from a service pole in the public right-of-way, subject to any removal requirements of the design manual adopted in accordance with section 3-15-460, and to cease paying the service pole attachment fee to the city upon notification to the city manager, or his designee, of such removal.
(Ordinance 2019-27 adopted 8/13/19)
Installation of transport facilities, including applicable compensation
to the city for such facilities, shall be governed by section 284.055,
as may be amended, of chapter 284 of the Texas Local Government Code.
(Ordinance 2019-27 adopted 8/13/19)
(a)
The
city manager is hereby authorized to approve and adopt, on behalf
of the city, a design manual for the installation and construction
of network nodes and new node support poles in the public right-of-way
that includes installation and construction details. The city manager
is hereby authorized to approve and adopt, on behalf of the city,
amendments to said design manual. The city’s design manual,
as may be amended, shall not conflict with applicable law and must
be competitively neutral. The city’s design manual, as may be
amended, shall be on file in the office of the city secretary and
accessible on the city’s website.
(b)
A
network provider shall comply with the city’s design manual
that is in effect on the date a permit application is filed in relation
to work for which the city has approved a permit application.
(Ordinance 2019-27 adopted 8/13/19)
(a)
A
network provider shall construct and maintain network nodes and node
support poles in a manner that does not:
(1)
Obstruct, impede or hinder the usual travel or public safety on a
public right-of-way;
(2)
Obstruct the legal use of a public right-of-way by other utility
providers;
(3)
Violate nondiscriminatory uniform building, fire, electrical, plumbing
or mechanical codes adopted by a recognized national code organization,
or nondiscriminatory city amendments to those codes to the extent
not inconsistent with applicable law;
(4)
Violate or conflict the city’s publicly disclosed public right-of-way
design specifications; or
(5)
Violate the federal Americans with Disabilities Act of 1990 (42 U.S.C.
section 12101 et seq.), as may be amended.
(b)
If a network provider installs a network node, node support pole or ground equipment that causes an obstruction or violation described in subsection (a) of this section, then the network provider shall promptly remove the network node, node support pole or ground equipment.
(c)
A
network provider that has received a permit shall not construct and/or
maintain a network node or node support pole at a location other than
the location for which the permit was granted.
(d)
Within
30 days after receiving written notice from the city that a network
node, node support pole and/or ground equipment, or any portion thereof,
is located at a location other than that for which a permit is granted,
the city, in its sole discretion, may remove or require the network
provider to relocate the network node or node support pole and any
associated ground equipment to the correct location for which the
permit was granted.
(e)
The
city’s removal of a network node or node support pole found
to be in a location other than that for which a permit is granted
in accordance with this section shall be at the network provider’s
expense without any liability to the city. The city will invoice and
network provider shall pay within thirty (30) days of the date of
the invoice for the city’s cost of removal of the improperly
located facilities.
(Ordinance 2019-27 adopted 8/13/19)
(a)
A
person who violates any provision of this division shall be guilty
of a misdemeanor and shall be punished by a fine not exceeding five
hundred dollars ($500.00). A person commits a separate and distinct
offense for each separate violation of a provision of this division.
A person commits a separate and distinct offense for each day during
which a violation of this division is committed, permitted or continued.
(b)
Evidence
of a culpable mental state is not required to prove a criminal offense
under this division. It is hereby declared that, for all offenses
under this division, the culpable mental state required by section
6.02 of the Texas Penal Code is specifically negated and clearly dispensed
with.
(Ordinance 2019-27 adopted 8/13/19)
