[Adopted 3-19-2021 by Ord. No. 548]
The purpose of this article is to establish a process for managing,
and uniform standards for acting upon, requests for the placement
of wireless facilities within the public right-of-way of the Town
consistent with the Town's obligation to promote the public health,
safety, and welfare, to manage the public right-of-way, and to ensure
that the public is not incommoded by the use of the public right-of-way
for the placement of wireless facilities. The Town recognizes the
importance of wireless facilities to provide high-quality communications
service to the residents and businesses within the Town, and the Town
also recognizes its obligation to comply with applicable federal and
state law regarding the placement of personal wireless services facilities
in its public right-of-way. This article shall be interpreted consistent
with those provisions.
The terms used in this article shall have the following meanings:
A person filing an application for placement or modification
of a wireless facility in the public right-of-way.
A formal request, including all required and requested documentation
and information, submitted by an applicant to the Town for a wireless
encroachment permit.
Shall have the meaning as set forth in 47 CFR 1.6100(b)(1),
or any successor provision.
Shall have the meaning as set forth in 47 CFR 1.6100(b)(3),
or any successor provision.
The Federal Communications Commission or its lawful successor.
The transport network that uses microwaves to connect the
radio access network (RAN) to the core network.
Town-owned or controlled property structures, objects, and
equipment in the ROW, including, but not limited to, streetlights,
traffic control structures, banners, street furniture, bus stops,
billboards, or other poles, lighting fixtures, or electroliers located
within the ROW.
Any person or entity granted a wireless encroachment permit
pursuant to this article.
Shall have the same meaning as set forth in 47 U.S.C. § 332(c)(7)(C)(i).
The surface and space above, on, and below any public highway,
avenue, street, lane, alley, boulevard, concourse, driveway, bridge,
tunnel, park, parkway, waterway, dock, bulkhead, wharf, pier, public
easement, right-of-way or any other public ground or water within
or in which the Town now or hereafter holds any property interest.
Shall have the same meaning as "small wireless facility"
in 47 CFR 1.6002(1), or any successor provision (which is a personal
wireless services facility that meets the following conditions that,
solely for convenience, have been set forth below):
The facility:
Is mounted on a structure 50 feet or less in height, including
antennas, as defined in 47 CFR Section 1.1320(d); or
Is mounted on a structure no more than 10% taller than other
adjacent structures; or
Does not extend an existing structure on which it is located
to a height of more than 50 feet or by more than 10%, whichever is
greater;
Each antenna associated with the deployment, excluding associated
antenna equipment [as defined in the definition of antenna in 47 CFR
1.1320(d)], is no more than three cubic feet in volume;
All other wireless equipment associated with the structure,
including the wireless equipment associated with the antenna and any
preexisting associated equipment on the structure, is no more than
28 cubic feet in volume;
The facility does not require antenna structure registration
under 47 CFR Part 17;
The facility is not located on Tribal lands, as defined under
36 CFR 800.16(x); and
The facility does not result in human exposure to radiofrequency
radiation in excess of the applicable safety standards specified in
47 CFR 1.1307(b).
A facility that:
Any structure capable of supporting a base station.
Any structure built for the sole or primary purpose of supporting
any FCC-licensed or authorized antennas and their associated facilities,
including structures that are constructed for personal wireless services
including, but not limited to, private, broadcast, and public safety
services, as well as unlicensed wireless services and fixed wireless
services such as microwave backhaul, and the associated site. This
definition does not include a utility pole.
Those areas where there are no electrical facilities or facilities
of the incumbent local exchange carrier in the public right-of-way;
or where the wires associated with the same are or are required to
be located underground; or where the same are scheduled to be converted
from overhead to underground. Electrical facilities are distribution
facilities owned by an electric utility and do not include transmission
facilities used or intended to be used to transmit electricity at
nominal voltages in excess of 35,000 volts.
A structure in the ROW designed to support electric, telephone
and similar utility lines. A tower is not a utility pole.
A permit issued pursuant to this article authorizing the
placement or modification of a wireless facility of a design specified
in the permit at a particular location within the ROW; and the modification
of any existing support structure to which the wireless facility is
proposed to be attached.
The transmitters, antenna structures and other types of installations
used for the provision of wireless services at a fixed location, including,
without limitation, any associated tower(s), support structure(s),
and base station(s).
A person that owns, controls, operates or manages a wireless
facility or portion thereof within the ROW.
Those regulations that may be adopted pursuant to this article
and implementing the provisions of this article.
An entity that provides personal wireless services to end
users.
A.
In general. There shall be a type of encroachment permit entitled a "wireless encroachment permit," which shall be subject to all of the same requirements as a public right-of-way permit would under Town Code, Article V, § 493-17 in addition to all of the requirements of this article. Unless exempted, every person who desires to place a wireless facility in the public right-of-way or modify an existing wireless facility in the public right-of-way must obtain a wireless encroachment permit authorizing the placement or modification in accordance with this article. A wireless encroachment permit is not required for routine maintenance or any like-for-like modification with substantially similar equipment that is of similar or smaller size if performed between October 1 and May 1. Except for small cell facilities, facilities qualifying as eligible facilities requests, or any other type of facility expressly allowed in the public right-of-way by state or federal law, no other wireless facilities shall be permitted pursuant to this article.
B.
Exemptions. This article does not apply to:
(1)
The placement or modification of facilities by the Town or by any
other agency of the state solely for public safety purposes.
(2)
Installation of a "cell on wheels," "cell on truck" or a similar
structure for a temporary period in connection with an emergency or
event, but no longer than required for the emergency or event, provided
that installation does not involve excavation, movement, or removal
of existing facilities.
C.
Other applicable requirements. In addition to the wireless encroachment
permit required herein, the placement of a wireless facility in the
ROW requires the persons who will own or control those facilities
to obtain all permits required by applicable law, and to comply with
applicable law, including, but not limited to, applicable law governing
radio frequency (RF) emissions.
D.
Preexisting facilities in the ROW. Any wireless facility already
existing in the ROW as of the date of this article's adoption
shall remain subject to the standards and conditions of the Town Code
in effect prior to this article, unless and until a renewal of such
facility's then-existing permit is granted, at which time the
provisions of this article shall apply in full force going forward
as to such facility. The review of any request for a renewal of a
permit for such preexisting facilities shall be conducted pursuant
to this article, rather than the portion(s) of the Town Code that
it was previously reviewed under.
E.
Public use. Except as otherwise provided by Delaware law, any use
of the public right-of-way authorized pursuant to this article will
be subordinate to the Town's use and use by the public.
A.
Town Manager. The Town Manager or their designee is responsible for
administering this article. As part of the administration of this
article, the Town Manager may:
(1)
Interpret the provisions of this article;
(2)
Develop and implement standards governing the placement and modification
of wireless facilities consistent with the requirements of this article,
including regulations governing co-location and resolution of conflicting
applications for placement of wireless facilities;
(3)
Develop and implement acceptable designs and development standards
for wireless facilities in the public right-of-way, taking into account
the zoning districts bounding the public right-of-way;
(4)
Develop forms and procedures for submission of applications for placement
or modification of wireless facilities, and proposed changes to any
support structure consistent with this article;
(5)
Determine the amount of and collect, as a condition of the completeness
of any application, any fee established by this article;
(6)
Establish deadlines for submission of information related to an application,
and extend or shorten deadlines where appropriate and consistent with
state and federal laws and regulations;
(7)
Issue any notices of incompleteness, requests for information, or
conduct or commission such studies as may be required to determine
whether a permit should be issued;
(8)
Require, as part of, and as a condition of completeness of any application,
notice to members of the public that may be affected by the placement
or modification of the wireless facility and proposed changes to any
support structure;
(9)
Subject to appeal as provided herein, determine whether to approve,
approve subject to conditions, or deny an application; and
(10)
Take such other steps as may be required to timely act upon
applications for placement of wireless facilities, including issuing
written decisions and entering into agreements to mutually extend
the time for action on an application.
B.
Appeal. Any person adversely affected by the decision of the Town
Manager may present to the Superior Court a petition, duly verified,
setting forth that such decision is illegal and specifying the grounds
of the illegality. Such petition shall be presented to the court within
30 days after the filing of the written decision of the Town Manager
in the Town Office. An appeal by a wireless infrastructure provider
must be taken jointly with the wireless service provider that intends
to use the personal wireless services facility.
A.
Generally. Wireless facilities in the ROW shall meet the minimum
requirements set forth in this article and the Wireless Regulations,
in addition to the requirements of any other applicable law.
B.
Regulations. The Wireless Regulations and decisions on applications
for placement of wireless facilities in the ROW shall, at a minimum,
ensure that the requirements of this section are satisfied, unless
it is determined that applicant has established that denial of an
application would, within the meaning of federal law, prohibit or
effectively prohibit the provision of personal wireless services,
or otherwise violate applicable laws or regulations. If that determination
is made, the requirements of this article may be waived, but only
to the minimum extent required to avoid the prohibition or violation.
C.
Minimum standards. Wireless facilities shall be installed and modified
in a manner that minimizes risks to public safety, avoids placement
of aboveground facilities in underground areas, avoids installation
of new support structures or equipment cabinets in the public right-of-way,
and otherwise maintains the integrity and character of the neighborhoods
and corridors in which the facilities are located; ensures that installations
are subject to periodic review to minimize the intrusion on the rights-of-way;
and ensures that the Town bears no risk or liability as a result of
the installations, and that such use does not inconvenience the public,
interfere with the primary uses of the public rights-of-way, or hinder
the ability of the Town or other government agencies to improve, modify,
relocate, abandon, or vacate the public rights-of-way or any portion
thereof, or to cause the improvement, modification, relocation, vacation,
or abandonment of facilities in the public rights-of-way.
D.
Location preferences. All applicants should, to the extent feasible,
co-locate new facilities and substantial changes to existing facilities
with existing facilities. Co-locations should, to the extent feasible,
be proposed on structures in accordance with the following preferences.
E.
Design standards. Permits for personal wireless services facilities
shall incorporate specific concealment elements to minimize visual
impacts and design requirements ensuring compliance with all standards
for noise emissions, unless it is determined that another design is
less intrusive, or placement is required under applicable law.
(1)
The Town Council may develop and implement acceptable designs and
development standards for wireless facilities in the public right-of-way,
taking into account the zoning districts bounding the public right-of-way.
Once codified, any updates to such standards shall be at the reasonable
discretion of the Town Manager.
A.
Submission. Unless the Wireless Regulations provide otherwise, applicant
shall submit a paper copy and an electronic copy of any application,
amendments, or supplements to an application, or responses to requests
for information regarding an application to: Town Manager of the Town
of Bethany Beach, at 214 Garfield Parkway, P.O. Box 109, Bethany Beach,
DE 19930.
B.
Content. An applicant shall submit an application on the form approved
by the Town Manager, which may be updated from time to time, but in
any event shall require the submission of all required fee(s), documents,
information, and any other materials necessary to allow the Town Manager
to make required findings and ensure that the proposed facility will
comply with applicable federal and state law, the Town Code, and will
not endanger the public health, safety, or welfare. If no form has
been approved, applications must contain all information necessary
to show that applicant is entitled to the wireless encroachment permit
requested and must specify whether the applicant believes state or
federal law requires action on the application within a specified
time period.
C.
Fees. Application fee(s) shall be required to be submitted with any
application for a wireless encroachment permit. The Town Council is
hereby authorized to determine, or cause to be determined, the amount,
type, and other terms of such fee(s) from time to time by means of
resolution. Notwithstanding the foregoing, no application fee shall
be refundable, in whole or in part, to an applicant for a wireless
encroachment permit unless paid as a refundable deposit.
D.
Waivers. Requests for waivers from any requirement of this section
shall be made in writing to the Town Manager or their designee. The
Town Manager may grant or deny a request for a waiver pursuant to
this subsection. The Town Manager may grant a request for waiver if
it is demonstrated that, notwithstanding the issuance of a waiver,
the Town Manager will be provided all information necessary to understand
the nature of the construction or other activity to be conducted pursuant
to the permit sought. All waivers approved pursuant to this subsection
shall be granted only on a case-by-case basis, and narrowly tailored
to minimize deviation from the requirements of the Town Code.
E.
Incompleteness. For personal wireless facilities and eligible facilities
requests, applications will be processed, and notices of incompleteness
provided, in conformity with state, local, and federal law. If such
an application is incomplete, the Town Manager may notify the applicant
in writing, and specifying the material omitted from the application.
A.
Findings required for approval.
(1)
Except for eligible facilities requests, the Town Manager or their
designee, as the case may be, shall approve an application if, on
the basis of the application and other materials or evidence provided
in review thereof, it finds the following:
(2)
For eligible facilities requests, the Town Manager or their designee,
as the case may be, shall approve an application if, on the basis
of the application and other materials or evidence provided in review
thereof, it finds the following:
B.
Decisions. Decisions on an application by the Town Manager or their
designee shall be in writing and include the reasons for the decision.
C.
Independent consultants. The Town Manager or their designee, as the
case may be, is authorized, in its discretion, to select and retain
independent consultant(s) with expertise in telecommunications in
connection with the review of any application under this article.
Such independent consultant review may be retained on any issue that
involves specialized or expert knowledge in connection with an application,
including, but not limited to, application completeness or accuracy,
structural engineering analysis, or compliance with FCC radio frequency
emissions standards.
A.
Generally. In addition to any supplemental conditions imposed by
the Town Manager or their designee, as the case may be, all permits
granted pursuant to this article shall be subject to the following
conditions, unless modified by the approving authority:
(1)
Code compliance. The permittee shall at all times maintain compliance
with all applicable federal, state and local laws, regulations and
other rules, including, without limitation, those applying to use
of public right-of-way.
(2)
Permit duration. A wireless encroachment permit shall be valid for
a period of 10 years, unless, pursuant to another provision of the
Town Code or these conditions, it expires sooner or is terminated.
At the end of 10 years from the date of issuance, the wireless encroachment
permit shall automatically expire, unless an extension or renewal
has been granted. A person holding a wireless encroachment permit
must either (1) remove the facility within 30 days following the wireless
encroachment permit's expiration (provided that removal of support
structure owned by Town, a utility, or another entity authorized to
maintain a support structure in the public right-of-way need not be
removed, but must be restored to its prior condition, except as specifically
permitted by the Town); or (2) at least 90 days' prior to expiration,
submit an application to renew the permit, which application must,
among all other requirements, demonstrate that the impact of the wireless
facility cannot be reduced. The wireless facility must remain in place
until it is acted upon by the Town and all appeals from the Town's
decision exhausted.
(3)
Timing of installation. The installation and construction authorized
by a wireless encroachment permit shall begin within one year after
its approval, or it will expire without further action by the Town.
The installation and construction authorized by a wireless encroachment
permit shall conclude, including any necessary post-installation repairs
and/or restoration to the ROW, within 90 days following the day construction
commenced.
(4)
Commencement of operations. The operation of the approved facility
shall commence no later than 60 days after the completion of installation,
or the wireless encroachment permit will expire without further action
by the Town.
(5)
As-built drawings. The permittee shall submit an as-built drawing,
or four-sided photo array accompanied with a measurable index of the
facility, within 90 days after installation of the facility. As-builts
shall be in an electronic format acceptable to the Town.
(6)
Inspections; emergencies. The Town or its designee may enter onto
the facility area to inspect the facility upon 48 hours' prior
notice to the permittee. The permittee shall cooperate with all inspections
and may be present for any inspection of its facility by the Town.
The Town reserves the right to enter or direct its designee to enter
the facility and support, repair, disable, or remove any elements
of the facility in emergencies or when the facility threatens imminent
harm to persons or property. The Town shall make an effort to contact
the permittee prior to disabling or removing any facility elements,
but in any case shall notify permittee within 24 hours of doing so.
(7)
Contact. The permittee shall at all times maintain accurate contact
information for all parties responsible for the facility, which shall
include a phone number, street mailing address and email address for
at least one natural person.
(8)
Insurance. Permittee shall obtain and maintain throughout the term
of the permit commercial general liability insurance with a limit
of $1,000,000 per occurrence for bodily injury and property damage
and $2,000,000 general aggregate including premises operations, contractual
liability, personal injury, and products completed operations. The
relevant policy(ies) shall name the Town, its elected/appointed officials,
commission members, officers, representatives, agents, and employees
as additional insureds. Permittee shall use its best efforts to provide
30 days' prior notice to the Town of to the cancellation or material
modification of any applicable insurance policy.
(9)
Indemnities. The permittee and, if applicable, the owner of the property
upon which the wireless facility is installed shall defend, indemnify
and hold harmless the Town, its agents, officers, officials, and employees
(i) from any and all damages, liabilities, injuries, losses, costs,
and expenses, and from any and all claims, demands, lawsuits, writs
of mandamus, and other actions or proceedings brought against the
Town or its agents, officers, officials, or employees to challenge,
attack, seek to modify, set aside, void or annul the Town's approval
of the permit, and (ii) from any and all damages, liabilities, injuries,
losses, costs, and expenses, and any and all claims, demands, lawsuits,
or causes of action and other actions or proceedings of any kind or
form, whether for personal injury, death or property damage, arising
out of or in connection with the activities or performance of the
permittee or, if applicable, the property owner or any of each one's
agents, employees, licensees, contractors, subcontractors, or independent
contractors. In the event the Town becomes aware of any such actions
or claims the Town shall promptly notify the permittee and, if applicable,
the property owner and shall reasonably cooperate in the defense.
The Town shall have the right to approve, which approval shall not
be unreasonably withheld, the legal counsel providing the Town's
defense, and the property owner and/or permittee (as applicable) shall
reimburse Town for any costs and expenses directly and necessarily
incurred by the Town in the course of the defense.
(10)
Performance bond. Prior to issuance of a wireless encroachment
permit, the permittee shall file with the Town, and shall maintain
in good standing throughout the term of the approval, a performance
bond or other surety or another form of security for the removal of
the facility in the event that the use is abandoned or the permit
expires, or is revoked, or is otherwise terminated. The security shall
be in the amount equal to 150% of the cost of physically removing
the facility and all related facilities and equipment on the site,
based on the higher of two contractor's quotes for removal that
are provided by the permittee. The permittee shall reimburse the Town
for staff time associated with the processing and tracking of the
bond, based on the hourly rate adopted by the Town Council. Reimbursement
shall be paid when the security is posted and during each administrative
review.
(11)
Adverse impacts on adjacent properties. Permittee shall undertake
all reasonable efforts to avoid undue adverse impacts to adjacent
properties and/or uses that may arise from the construction, operation,
maintenance, modification, and removal of the facility.
(12)
Noninterference. Permittee shall not move, alter, temporarily
relocate, change, or interfere with any existing structure, improvement,
or property without the prior consent of the owner of that structure,
improvement, or property. No structure, improvement, or property owned
by the Town shall be moved to accommodate a permitted activity or
encroachment, unless the Town determines that such movement will not
adversely affect the Town or any surrounding businesses or residents,
and the permittee pays all costs and expenses related to the relocation
of the Town's structure, improvement, or property. Prior to commencement
of any work pursuant to a wireless encroachment permit, the permittee
shall provide the Town with documentation establishing to the Town's
satisfaction that the permittee has the legal right to use or interfere
with any other structure, improvement, or property within the public
right-of-way or Town utility easement to be affected by permittee's
facilities.
(13)
No right, title, or interest. The permission granted by a wireless
encroachment permit shall not in any event constitute an easement
on or an encumbrance against the public right-of-way. No right, title,
or interest (including franchise interest) in the public right-of-way,
or any part thereof, shall vest or accrue in permittee by reason of
a wireless encroachment permit or the issuance of any other permit
or exercise of any privilege given thereby.
(14)
No possessory interest. No possessory interest is created by
a wireless encroachment permit. However, to the extent that a possessory
interest is deemed created by a governmental entity with taxation
authority, permittee acknowledges that Town has given to permittee
notice pursuant to Delaware State Code Section 5402 that the use or
occupancy of any public property pursuant to a wireless encroachment
permit may create a possessory interest which may be subject to the
payment of property taxes levied upon such interest. Permittee shall
be solely liable for, and shall pay and discharge prior to delinquency,
any and all possessory interact taxes or other taxes, fees, and assessments
levied against permittee's right to possession, occupancy, or
use of any public property pursuant to any right of possession, occupancy,
or use created by this permit.
(15)
General maintenance. The site and the facility, including, but
not limited to, all landscaping, fencing, and related transmission
equipment, must be maintained in a neat and clean manner and in accordance
with all approved plans. All graffiti on facilities must be removed
at the sole expense of the permittee within 48 hours after notification
from the Town.
(16)
RF exposure compliance. All facilities must comply with all
standards and regulations of the FCC and any other state or federal
government agency with the authority to regulate RF exposure standards.
After transmitter and antenna system optimization, but prior to unattended
operations of the facility, permittee or its representative must conduct
on-site post-installation RF emissions testing to demonstrate actual
compliance with the FCC OET Bulletin 65 RF emissions safety rules
for general population/uncontrolled RF exposure in all sectors. For
this testing, the transmitter shall be operating at maximum operating
power, and the testing shall occur outwards to a distance where the
RF emissions no longer exceed the uncontrolled/general population
limit.
(17)
Testing. Testing of any equipment shall take place on weekdays
only, and only between the hours of 8:30 a.m. and 4:30 p.m., except
that testing is prohibited on holidays that fall on a weekday. In
addition, testing is prohibited on weekend days.
(18)
Modifications. No changes shall be made to the approved plans
without review and approval in accordance with this article.
(19)
Agreement with Town. If not already completed, permittee shall
enter into the appropriate agreement with the Town, as determined
by the Town, prior to constructing, attaching, or operating a facility
on municipal infrastructure. A wireless encroachment permit is not
a substitute for such agreement.
(20)
Conflicts with improvements. For all facilities located within
the ROW, the permittee shall remove or relocate, at its expense and
without expense to the Town, any or all of its facilities when such
removal or relocation is deemed necessary by the Town by reason of
any change of grade, alignment, or width of any public right-of-way,
for installation of services, water pipes, drains, storm drains, power
or signal lines, traffic control devices, right-of-way improvements,
or for any other construction, repair, or improvement to the public
right-of-way.
(21)
Abandonment. If a facility is not operated for a continuous
period of six months, the wireless encroachment permit and any other
permit or approval therefor shall be deemed abandoned and terminated
automatically, unless before the end of the six-month period (i) the
Town Manager has determined that the facility has resumed operations,
or (ii) the Town has received an application to transfer the permit
to another service provider. No later than 45 days from the date the
facility is determined to have ceased operation or the permittee has
notified the Town Manager of its intent to vacate the site, the permittee
shall remove all equipment and improvements associated with the use
and shall restore the site to its original condition to the satisfaction
of the Town Manager. The permittee shall provide written verification
of the removal of the facilities within 30 days of the date the removal
is completed. If the facility is not removed within 30 days after
the permit has been discontinued pursuant to this subsection, the
site shall be deemed to be a nuisance, and the Town may cause the
facility to be removed at permittee's expense or by calling any
bond or other financial assurance to pay for removal. If there are
two or more users of a single facility or support structure, then
this provision shall apply to the specific elements or parts thereof
that were abandoned, but will not be effective for the entirety thereof
until all users cease use thereof.
(22)
Encourage co-location. Where the facility site is capable of
accommodating a co-located facility upon the same site in a manner
consistent with the permit conditions for the existing facility, the
owner and operator of the existing facility shall allow co-location
of third-party facilities, provided co-location is technically feasible
and the parties can mutually agree upon reasonable terms and conditions.
(23)
Records. The permittee must maintain complete and accurate copies
of all permits and other regulatory approvals issued in connection
with the facility, which includes without limitation this approval,
the approved plans and photo simulations incorporated into this approval,
all conditions associated with this approval and any ministerial permits
or approvals issued in connection with this approval. In the event
that the permittee does not maintain such records as required in this
condition or fails to produce true and complete copies of such records
within a reasonable time after a written request from the Town, any
ambiguities or uncertainties that would be resolved through an inspection
of the missing records will be construed against the permittee.
(24)
Attorney's fees. In the event the Town determines that
it is necessary to take legal action to enforce any of these conditions,
or to revoke a permit, and such legal action is taken, the permittee
shall be required to pay any and all costs of such legal action, including
reasonable attorney's fees, incurred by the Town, even if the
matter is not prosecuted to a final judgment or is amicably resolved,
unless the Town should otherwise agree with permittee to waive said
fees or any part thereof. The foregoing shall not apply if the permittee
prevails in the enforcement proceeding.
B.
Eligible facilities requests. In addition to the conditions provided in § 493-35A of this article and any supplemental conditions imposed by the Town Manager or their designee, as the case may be, all permits for an eligible facility request granted pursuant to this article shall be subject to the following additional conditions, unless modified by the approving authority:
(1)
Permit subject to conditions of underlying permit. Any permit granted
in response to an application qualifying as an eligible facilities
request shall be subject to the terms and conditions of the underlying
permit.
(2)
No permit term extension. The Town's grant or grant by operation
of law of an eligible facilities request permit constitutes a federally
mandated modification to the underlying permit or approval for the
subject tower or base station. Notwithstanding any permit duration
established in another permit condition, the Town's grant or
grant by operation of law of a eligible facilities request permit
will not extend the permit term for the underlying permit or any other
underlying regulatory approval, and its term shall be coterminous
with the underlying permit or other regulatory approval for the subject
tower or base station.
(3)
No waiver of standing. The Town's grant or grant by operation
of law of an eligible facilities request does not waive, and shall
not be construed to waive, any standing by the Town to challenge Section
6409(a) of the Spectrum Act, any FCC rules that interpret Section
6409(a) of the Spectrum Act, or any modification to Section 6409(a)
of the Spectrum Act.[1]
[1]
Editor's Note: See 47 U.S.C.A. § 1455(a).
C.
Small cell facilities requests. In addition to the conditions provided in § 493-35A of this article and any supplemental conditions imposed by the Town Manager or their designee, as the case may be, all permits for a small cell facility granted pursuant to this article shall be subject to the following condition, unless modified by the approving authority:
(1)
No waiver of standing. The Town's grant of a permit for a small
cell facility request does not waive, and shall not be construed to
waive, any standing by the Town to challenge any FCC orders or rules
related to small cell facilities, or any modification to those FCC
orders or rules.
A.
For breach. A wireless encroachment permit may be revoked for failure
to comply with the conditions of the permit or applicable law. Upon
revocation, the wireless facility must be removed; provided that removal
of a support structure owned by Town, a utility, or another entity
authorized to maintain a support structure in the public right-of-way
need not be removed, but must be restored to its prior condition,
except as specifically permitted by the Town. All costs incurred by
the Town in connection with the revocation and removal shall be paid
by entities who own or control any part of the wireless facility.
B.
For installation without a permit. A wireless facility installed
without a wireless encroachment permit (except for those exempted
by this article) must be removed; provided that removal of support
structure owned by Town, a utility, or another entity authorized to
maintain a support structure in the right of way need not be removed,
but must be restored to its prior condition, except as specifically
permitted by the Town. All costs incurred by the Town in connection
with the revocation and removal shall be paid by entities who own
or control any part of the wireless facility.
The Town, as a matter of policy, will negotiate agreements for
use of municipal infrastructure. The placement of wireless facilities
on those structures shall be subject to the agreement. The agreement
shall specify the compensation to the Town for use of the structures.
The person seeking the agreement shall additionally reimburse the
Town for all costs the Town incurs in connection with its review,
including vendor review, of, and action upon the person's request
for, an agreement.
In establishing the rights, obligations and conditions set forth
in this article, it is the intent of the Town to treat each applicant
or public right-of-way user in a competitively neutral and nondiscriminatory
manner, to the extent required by law, and with considerations that
may be unique to the technologies, situation and legal status of each
particular applicant or request for use of the public right-of-way.
The Town Manager, or their delegate, is directed to execute
all documents and to perform all other necessary Town acts to implement
effect this article.
If any section, subsection, provision, sentence, clause, phrase
or word of this article is for any reason held to be illegal or otherwise
invalid by any court of competent jurisdiction, such invalidity shall
be severable, and shall not affect or impair any remaining section,
subsection, provision, sentence, clause, phrase or word included within
this article, it being the intent of the Town that the remainder of
the article shall be and shall remain in full force and effect, valid,
and enforceable.
A.
The Town may use any combination of the following enforcement actions,
remedies, and penalties to stop, abate, and enjoin a violation of
this article:
(1)
Citation noting violation. The Town Manager may issue a citation
to the person pursuing the activity or activities in violation of
this article, requiring appearance before the Alderman court.
(2)
Stop order. The Town Manager may issue and serve upon a person pursuing
the activities in violation of this article a stop-work order requiring
that the person stop all activities in violation of this article.
(3)
Permit suspension or revocation. Any permit or other form of authorization
required under this article may be suspended or revoked if the Town
Manager determines that:
B.
Written notice of suspension or revocation shall be mailed or served
upon the property owner, agent, applicant, or other person to whom
the permit was issued or such notice may be posted in a prominent
location at the place of violation. No work or construction shall
proceed after service of the notice.
C.
Civil remedies. In addition to all other remedies and penalties outlined
in this article, the Town Manager may initiate an action or proceeding
for injunction or mandamus or other appropriate action or proceeding
to prevent, abate, or correct a violation of this article.
[Added 3-19-2021 by Ord.
No. 550]
The following design and development standards shall apply to
all wireless facilities in the public rights-of-way:
A.
Visual criteria.
(1)
Generally. Wireless facilities shall be designed in the least
visible means possible and be aesthetically compatible with the surrounding
area and structures (e.g., color, materials, size, and scale).
(a)
Materials. The materials used shall be nonreflective and nonflammable.
(b)
Concealment. The wireless facility and pole-mounted equipment
should be camouflaged or concealed to blend the facility with surrounding
materials and colors of the support structure on which the facility
is installed. Concealment elements include, but are not limited to,
the following:
(i)
Radio frequency (RF) transparent screening or shrouds;
(ii)
Matching the color of the existing support structure by painting,
coating, or otherwise coloring the wireless facility, equipment, mounting
brackets, and cabling;
(iii)
Placing cables and wires inside the pole or beneath conduit
of the smallest size possible;
(iv)
Minimizing the size of the site;
(v)
Installing new infrastructure that matches existing infrastructure
in the area surrounding the proposed site; and
(vi)
Using paint of durable quality.
B.
Location.
(2)
Poles should be utilized. Consistent with other aboveground
infrastructure, wireless facilities should be supported by or within
poles, and not support structures, unless the support structures are
stealth facilities. Where support structures must be authorized, the
support structures should comply as closely as possible to the standards
applicable to poles.
(3)
Preference for use on existing infrastructure. To prevent clutter
in the rights-of-way, and to avoid creation of additional hazards
in the rights-of-way, existing poles should be used when feasible.
New poles are not permitted in a corridor where there are existing
poles that can be used, or existing poles that can be modified or
replaced to support the facilities of a utility, unless it is shown
that: (i) it is not technically feasible to use, modify or replace
existing poles; or (ii) use of the pole can be shown by applicant
to prohibit or effectively prohibit service.
(a)
If existing poles are present in the surrounding area, then
the new pole shall be designed to resemble the existing poles in appearance,
height, color, materials, and distribution pattern/spacing.
(4)
Co-locations are encouraged.
(5)
Curb setback requirements. New or replacement poles shall be
a minimum of 18 inches from the face of the curb.
(6)
Strand-mounted facilities. Strand-mounted facilities are prohibited
unless they are necessary for technical reasons.
C.
Equipment.
(1)
Prohibition of generators. Generators are prohibited in the
right-of-ways.
(2)
Electric service. The Town strongly encourages site operators
to use flat-rate electric service when it would eliminate the need
for a meter. Where meters are required, use the narrowest electric
meter, and disconnect available.
(3)
Equipment preferences.
(a)
The Town prefers stealth facilities (placement within a streetlight
would be an example) or poles where all equipment is inside the pole
to exterior mounts for new poles; and where undergrounding is not
required, prefers pole-mounted to ground-mounted cabinets for new,
existing or replacement poles.
(b)
Pole-mounted equipment other than antennas should be mounted
high on a pole; concealed in an integrated base; or contained within
a pole, as appropriate for the corridor and the type of pole proposed.
(c)
While a higher placement should be used except where technically
infeasible, the lowest point of any equipment installed on the exterior
of a pole should be eight feet from ground level, and the equipment
may not be placed in a manner that would intrude upon a street, interfere
with parking or interfere with safe pedestrian/bicycle passage.
(d)
Ground-mounted aboveground equipment, other than approved stealth
equipment, or equipment in an integrated base is not permitted in
a corridor where there is not already ground-mounted equipment nearby.
Where there is ground-mounted equipment, the facilities proposed should
be similar in size, and should be placed and shielded in a manner
other equipment is placed and shielded (see also location standards).
Any equipment not used in direct support of such operations shall
not be stored on site.
(e)
In an area where other utility equipment is underground, a wireless
provider will be expected to place equipment below ground absent a
showing of technical infeasibility. However, the Town recognizes that
antennas and the structures that support them cannot be placed underground.
In order to use the rights-of-way, absent a showing of effective prohibition,
a design consistent with the corridor in which the facility will be
placed should be utilized.
D.
Security. All equipment and facilities shall be installed in a manner
to avoid being an attractive nuisance and to prevent unauthorized
access, climbing, and graffiti.
E.
Safety. All wireless facilities in the right-of-way, including each
piece of equipment, shall be located and placed in a manner so as
to not interfere with the use of the right-of-way; impede the flow
of vehicular or pedestrian traffic; impair the primary use and purpose
of poles/signs/traffic signals or other infrastructure; interfere
with outdoor dining areas or emergency facilities; or otherwise obstruct
the accessibility of the right-of-way. Further, all wireless facilities
and associated equipment in the right-of-way shall comply with Americans
with Disabilities Act (ADA) and the National Electric Safety Code
(NESC), as applicable.
F.
Noise. Wireless facilities and all accessory equipment and transmission
equipment must comply with all noise regulations and shall not exceed,
either individually or cumulatively, 65 dBA.
G.
Lighting. No facility shall be illuminated unless specially required
by the Federal Aviation Administration (FAA) or other government agency.
Any required lighting shall be shielded to eliminate, to the maximum
extent possible, impacts on the surrounding area property.
H.
Signs. No facility may display any signage or advertisement unless
it is expressly allowed by the Town in a written approval, recommended
under FCC regulations, or required by law or permit condition. Every
facility shall at all times display signage that accurately identifies
the facility owner and provides the owner's unique site number
and a local or toll-free telephone number to contact the facility
owner's operations center.
I.
Landscaping. In addition to any landscaping used for concealment
or screening purposes, the applicant shall propose and install additional
landscaping to replace any existing landscaping displaced during construction
or installation of the applicant's facility in the right-of-ways.
The applicant's landscaping plan shall be subject to the Town's
review and approval but shall, at a minimum, match the existing landscaping
and foliage surrounding the installation site.
J.
Modifications. Any modifications to existing facilities or equipment
or co-locations shall not defeat the concealment elements of the existing
support structure/facility.
[Added 3-19-2021 by Ord.
No. 550]
In addition to the generally applicable standards set forth in § 493-42 of this article, the design and development standards for pole-mounted facilities in the ROW are as follows:
A.
Definition of pole-mounted facility. For purposes of this article,
the term "pole-mounted facility" means a wireless facility that is,
or is proposed to be, attached to, contained in or on, or otherwise
mounted to, in, or on a pole.
B.
Definition of stealth facility. For the purposes of this article,
the term "stealth facility" (or "stealth facilities") shall mean a
small cell facility designed to look like some feature other than
a tower or base station.
C.
Poles, generally. For facilities installed on any pole:
(1)
Antennas. Antennas shall be top-mounted in a shroud. Antennas attached
to the side of the pole are discouraged, but if they are required
due to technical reasons, should use the smallest antenna volume possible
and be stacked vertically and close together with minimal distance
from the pole.
(2)
Dimensions. Antennas shall be of the smallest feasible size, but
in no case more than three cubic feet in volume. Pole-top wireless
facilities, including shroud, shall be no more than 72 inches in height
and 14.5 inches in diameter.
(3)
Accessory equipment. Undergrounding equipment that cannot be placed
with the antenna in the shroud is preferred where technically feasible.
Vaults and pull boxes shall be installed flush to grade. Ground-mounted
equipment is prohibited unless required for technical reasons. If
required, ground-mounted equipment shall incorporate camouflaging
and shrouding to match the colors, appearance, and materials of existing
facilities and screen facilities from public view as much as is technically
feasible. Further, if ground-mounted equipment is required, it must
be enclosed in cabinets, sized only for the needed equipment, and
camouflaged using paint that matches the surrounding environment.
(4)
Cables and wiring. All cables and wiring must be within the structure,
or if not feasible, within conduit on the exterior of the structure.
The conduit must be a color that matches the pole and of the smallest
size technically feasible.
(5)
Pole owner authorization. Proof of authorization from the pole owner
is required. If the Town owns the pole, then the applicant must enter
into an agreement with Town to install the pole-mounted facility.
D.
Utility poles. In addition to complying with the standards above, installations on utility poles must be stealth facilities, as defined in § 493-43B of this article. The facility shall be designed, painted, coated, and otherwise made to look like the utility pole rather than a wireless facility, tower, or base station.
E.
Replacement poles. If an applicant proposes a replacement pole to
accommodate the facility:
(1)
Placement. The base of the replacement pole shall be a minimum of
18 inches away from the face of the curb. Further, a replacement pole
must be in the same location as the pole that it is replacing or as
close to the original location as possible, taking into account pole
owner safety-related requirements and all applicable location and
placement standards herein.
(2)
Design. Replacement poles should match the design (e.g., color, dimensions,
height, style, and materials) of the existing pole that is being replaced
to the greatest extent feasible. The maximum pole height is 35 feet,
excluding wireless equipment unless applicant can demonstrate such
a limitation prohibits or effectively prohibits service.
F.
New poles.
(1)
Waiver required. New poles are prohibited unless a waiver is approved
by the Town to prevent a prohibition of service. The Town strongly
discourages waivers but in order to avoid the cost and burden of litigation,
the Town is required to permit the opportunity for waiver under federal
law.
(2)
Design. New poles shall have a maximum height of 35 feet and a maximum
diameter of 14 inches unless applicant can demonstrate such a limitation
prohibits or effectively prohibits service. The poles should be designed
so that cables and wiring can be contained inside the poles or concealed
in coverings that mirror the pole in color. Wooden poles, while not
prohibited, should not be a first option. If existing poles are present
in the surrounding area, then the new pole shall be designed to resemble
the existing poles in appearance, color, materials, and distribution
pattern/spacing.
(3)
Installations on new poles. Antennas shall be pole top-mounted in a shroud, and cables and wiring shall be contained within the new pole. Equipment that cannot fit in the shroud with the antenna shall be undergrounded, but if undergrounding is not technically feasible, then equipment shall be enclosed in cabinets, sized only for the needed equipment, and camouflaged using paint that matches the surrounding environment. The antennas and equipment on a new pole must be stealth, as defined above in § 493-43B.
[Added 3-19-2021 by Ord.
No. 550]
If any provision of this article or its application to any person
or circumstance is held invalid, such invalidity has no effect on
the other provisions or applications of the article that can be given
effect without the invalid provision or application, and to this extent,
the provisions of this article are severable. The Town Council declares
that it would have adopted this article irrespective of the invalidity
of any portion thereof.
