Any person, firm, corporation or business entity violating this division shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be subject to a fine not to exceed the sum of $500.00, unless the violation relates to fire safety or public health and sanitation, including dumping and refuse, in which the fine shall not exceed the sum of $2,000.00. Each continuing day’s violation under this article shall constitute a separate offense. The penal provisions imposed under this division shall not preclude the city from filing suit to enjoin the violation. The city retains all legal rights and remedies available to it pursuant to local, state and federal law.
(Ordinance 639-18 adopted 6/26/18)
(a) 
Purpose.
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) 
Intent.
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) 
Conflicts with other provisions in the Code.
This division supersedes all provisions in the Code of Ordinances or rules adopted prior hereto that are in conflict herewith, to the extent of such conflict.
(Ordinance 617-17, sec. 1, adopted 8/22/17)
All terms used in this division, not specifically defined herein, have the meaning provided in Chapter 284 of the Texas Local Government Code, as amended.
Applicable law
means Chapter 284 of the Texas Local Government Code, as amended.
Applicant
means any person who submits an application as required by this division and is a network provider.
Application
means a request submitted by an applicant (i) for a permit to collocate network nodes; or (ii) to install a transport facility; or (iii) approve the installation, replacement or modification of a pole.
City
shall mean the City of Aubrey, Texas.
City Code
means those ordinance provisions relevant to use of the public right-of-way where compliant with applicable law.
Day
means calendar day.
Person
means an individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including the City.
Routine maintenance
means (i) work in the public right-of-way that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way; (ii) 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 (iii) 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.
Technical grounds
means, 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 617-17, sec. 1, adopted 8/22/17)
(a) 
Permitted use.
Collocation of network nodes and the placement of node support poles, meeting the parameters set forth in section 3.10.325 herein and in applicable law, shall be a permitted use. No zoning or land use review shall apply, subject to the requirements in section 3.10.325 herein.
(b) 
Permit required.
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 therefore, except as otherwise provided in this division.
(c) 
Permit application.
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.
(d) 
Application requirements.
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 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.
(3) 
Construction and engineering drawings and information confirming that the construction will be consistent with City Code.
(e) 
Routine maintenance and replacement.
A permit application shall not be required for: (i) routine maintenance; or for (ii) the replacement of a node with another node that is substantially similar.
(f) 
Information updates.
Any amendment to information contained in a permit application shall be submitted in writing to the city within 30 days after the change necessitating the amendment.
(g) 
Application fees.
All applications for permits pursuant to this Division shall be accompanied by the applicable network node application fee as set forth in article A9.000, “network node fees” in appendix A of the City’s Code.
(Ordinance 617-17, sec. 1, adopted 8/22/17)
(a) 
Review of applications.
The city shall review applications for network nodes, node support poles and transport facilities in light of their conformity with applicable law and City Code and shall issue such permits on nondiscriminatory terms and conditions subject to the following requirements:
(1) 
Within 30 days of receiving an application for a network node or node support pole, or ten days for a transport facility, the city shall determine and notify the applicant whether the application is complete; or if 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 no later than (i) 21 days after receipt of a complete application for a transport facility, (ii) 60 days after receipt of a complete application for a network node; and (iii) 150 days after receipt of a completed application for a new node support pole.
(3) 
The city shall advise the applicant in writing of its final decision, and, if denied, the basis for that denial, including specific provisions of City Code 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.
(4) 
If the city fails to act on a completed application within the review period specified in section 3.10.324 herein, the application shall be deemed approved.
(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) 
Review of eligible facilities requests.
Notwithstanding any other provision of this chapter, the city shall approve and may not deny applications for eligible facilities requests within 60 days pursuant to the procedures established under 47 CFR 1.40001(c).
(Ordinance 617-17, sec. 1, adopted 8/22/17)
(a) 
Maximum size of permitted use.
Collocation of permitted use network nodes in the public right-of-way shall be subject to the size limitations specified in Chapter 284.003 of the Local Government Code, as amended.
(b) 
Undergrounding provisions.
A network provider shall comply with nondiscriminatory undergrounding requirements, including all applicable Code sections, zoning regulations, state law, private deed restrictions, and other public or private restrictions, that prohibit installing above-ground 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) 
Historic areas and design districts.
Subject to the permit application approval time frames in section 3.10.324 herein, a network provider must obtain advance approval from the city 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.
(d) 
Installation in city parks and residential areas.
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 if the public right-of-way is within a city park, or is adjacent to a street or thoroughfare that is 1) not more than 50 feet wide; and 2) adjacent to single-family residential lots or other multifamily residences or undeveloped land that is designated for residential use by zoning or deed restrictions. A network provider shall comply with private deed restrictions and other private restrictions when installing network nodes in parks and residential areas.
(e) 
Zoning.
A network provider seeking to construct, replace or modify a pole or network node in the public right-of-way that exceeds the height or size limits contained in this section, shall be subject to applicable zoning requirements.
(Ordinance 617-17, sec. 1, adopted 8/22/17)
(a) 
Authority granted.
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) 
Time of installation.
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. Provided, however, the city may place a longer time limit on completion or grant reasonable extensions of time as requested by the network provider.
(c) 
Right to occupy.
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 chapter.
(d) 
Interference with network nodes.
City will not grant a permit to any person to install any network node or other wireless facility if the city knows or has reason to know that such person’s use of such network node of other wireless facility may in any way adversely affect or interfere with the use and operation of an existing and operational network node for which the city has previously issued a permit.
(Ordinance 617-17, sec. 1, adopted 8/22/17)
(a) 
Notice.
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 or node support pole 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) 
Emergency removal or relocation of facilities.
The city retains the right and privilege to disconnect or move any network node 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 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 or node support pole.
(c) 
Abandonment of facilities.
Upon abandonment of a network node or node support pole 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 or node support pole if the city, or any of its departments, determines, subject to City Code, that such removal is necessary to protect public health, safety and welfare.
(Ordinance 617-17, sec. 1, adopted 8/22/17)
(a) 
Annual rate.
Each network provider shall pay a network node annual rate to the city for each network node located in the city’s public right-of-way, as set forth in article A9.000, “network node fees” in appendix A of the City’s Code.
(1) 
The network node annual rate payment for the first year at any network node location (“initial network node annual rate payment”) begins accruing when the permit is issued and is due 30 days after the network provider obtains a permit to install or collocate a network node at the location. The initial network node annual rate payment shall be pro-rated for the months remaining in the calendar year after the permit issuance date.
(2) 
Subsequent years’ network node annual rate due date.
The network node annual rate for every year after the initial network node annual rate payment shall be paid in advance on or before December 31 of each calendar year for each network node in the public right-of-way for the next calendar year period.
(3) 
Annual network node rate adjustment.
The city may adjust the annual network node public right-of-way rate at its discretion by an amount equal to one-half the annual change in the Consumer Price Index for All Urban Consumers for Texas, as published by the federal Bureau of Labor Statistics. The city shall provide written notice to each network provider of the new rate, and the rate shall apply to the first payment due to the municipality on or after the sixtieth day following that notice.
(4) 
Cease payment.
A network provider is authorized to remove its facilities at any time from the public right-of-way and cease paying the city compensation for use of the public right-of-way following removal and notification to the city of such removal.
(Ordinance 617-17, sec. 1, adopted 8/22/17)
(a) 
Attachment permitted.
A network provider shall be permitted to attach network nodes to city-owned service poles, consistent with applicable law and City Code and subject to the requirements specified herein.
(b) 
Permits.
A network provider shall obtain a permit, pursuant to the terms of this division, prior to collocating network nodes on city-owned service poles.
(c) 
Make-ready.
Network provider shall be responsible for costs for make-ready work on city-owned service poles to which the network provider seeks to place a network node.
(d) 
Technical limitations.
In the event the city 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 service pole with adequate space to accommodate the proposed network node.
(e) 
Facilities rearrangements.
If another provider would have to rearrange or adjust any of its facilities to accommodate a new network node, the city shall use reasonable efforts to work with the affected providers to coordinate such activity. All make ready work shall comply with NESC, and other applicable codes. The applicant shall not be responsible for any third-party costs, including those of other network providers, to adjust existing attachments that are non-compliant with the NESC and other applicable codes at the time of the application.
(f) 
Collocation fee.
The rate to collocate a network node on a service pole in the public right-of-way shall be paid to the city as set forth in article A9.000, “network node fees” in appendix A of the City’s Code. Subject to the provisions of section 3.10.330 herein, such compensation together with the network node application fee specified in section 3.10.323(G) herein and the network node annual rate specified in section 3.10.328 herein shall be the sole compensation that the network provider shall be required to pay to the city.
(g) 
Cease payment.
A network provider is authorized to remove its facilities at any time from a service pole in the public right-of-way and cease paying the attachment fee to the city upon notification to the city that the facilities have been removed.
(Ordinance 617-17, sec. 1, adopted 8/22/17)
(a) 
Installation governed by statute.
Installation of transport facilities shall be governed by section 284.055 of the Texas Local Government Code, as amended.
(b) 
Monthly transport facilities fee.
To the extent network provider has transport facilities from a permitted network node in the city’s right-of-way, network provider shall pay the city a monthly transport facilities fee in the amount set forth in article A9.000, “network node fees” in appendix A of the City’s Code, which begins accruing when the permit is issued. Said payment shall be made on a quarterly basis. The fee set forth in this subsection (b) herein is in addition to any annual fee required by section 3.10.328(a) herein.
(Ordinance 617-17, sec. 1, adopted 8/22/17)
A network provider shall comply with the city’s design manual, if any, in place on the date a permit application is filed in relation to work for which the city has approved a permit application. The city’s design manual may not conflict with applicable law and must be competitively neutral.
(Ordinance 617-17, sec. 1, adopted 8/22/17)
Any person violating a provision of this division, upon conviction, shall be punished by a fine not to exceed the sum of $2,000.00 for each offense, and each and every day such violation shall continue shall be deemed to constitute a separate offense.
(Ordinance 617-17, sec. 1, adopted 8/22/17)