[HISTORY: Adopted by the Town Manager of the Town of Barnstable 9-13-2023 . Amendments
noted where applicable.]
The Town Manager, acting by virtue of the authority granted by Chapter 121, Licensing, Article II, Jurisdiction Over License and Permit Issuances of the Code of the Town of Barnstable, hereby adopts and makes these rules and regulations ("Regulations") governing grant of location application procedures and standards for the construction of Personal Wireless Service Facilities (as defined herein) within the layout of the public ways within the Town of Barnstable.
A.
The purpose of these Regulations is to provide a uniform and comprehensive
set of objective procedures and standards to regulate the location,
placement, installation, height, appearance, and operation of Personal
Wireless Service Facilities in the public rights-of-way, consistent
with the Town Code, applicable state and federal requirements, and
changing technology. The Regulations are intended to provide for the
appropriate development of Personal Wireless Service Facilities within
the public rights-of-way to meet the needs of residents, business
owners and visitors while protecting public health and safety and
preventing visual blight and degradation of the community's aesthetic
character and scenic vistas.
B.
The Regulations are intended to permit Personal Wireless Service
Facilities in the public rights-of-way that blend with their existing
surroundings and do not negatively impact the historic properties,
aesthetic character or public health and safety of the community.
C.
The public ways and places in the Town are a uniquely valuable resource,
closely linked with the Town's residential character and natural
beauty. Many public ways have been enhanced by the planting and maintenance
of public shade trees.
D.
The Town wishes to preserve and protect community safety and aesthetics
in its residential neighborhoods and village centers. Many residences
have a small amount of setback between the residence and the public
ways. Public ways, including sidewalks, must remain accessible and
safe under the Americans with Disabilities Act and traffic control
standards. The Town has many scenic roadways. It also has historic
districts and historic buildings. Aesthetics and compatibility with
immediate surroundings are important considerations in reviewing future
uses of the public ways. A competing consideration is the public interest
in maximizing the availability of reliable Personal Wireless Services
(as defined herein) which are adequate to meet the needs of the Town
(including but not limited to public safety communications needs),
its residents and businesses.
E.
The proliferation of Personal Wireless Service Facilities in public
ways since the passage of the federal Telecommunications Act of 1996,
in part due to evolving wireless technology and increased demand for
wireless services, has created a significant concern about the effects
of such facilities upon the character of residential areas, village
centers, scenic roads and historical districts, and the adverse impacts
of such facilities upon public safety and the well-being of the Town's
residents and other users of the public ways.
F.
The Town wishes to limit noise and vibration levels that may be associated
with some types of Personal Wireless Communications Facilities and
assure that such facilities comply on a continuing basis with the
Federal Communications Commission's ("FCC") regulations concerning
radio frequency emissions.
G.
The Town Manager therefore finds it necessary and desirable to provide
for reasonable regulation and orderly deployment of Personal Wireless
Service Facilities in the public ways. Accordingly, these Regulations
providing grant of location application procedures and standards for
Personal Wireless Service Facilities located in public ways have been
adopted.
H.
These Regulations are not intended to, nor shall they be interpreted
or applied to:
(1)
Prohibit or effectively prohibit any wireless service provider's
ability to provide Personal Wireless Services;
(2)
Prohibit or effectively prohibit any entity's ability to provide
any interstate or intrastate wireless communications service, subject
to any competitively neutral and nondiscriminatory rules, regulations
or other legal requirements for rights-of-way management;
(3)
Unreasonably discriminate among providers of functionally equivalent
services;
(4)
Deny any request for authorization to place, construct or modify
Personal Wireless Service Facilities on the basis of environmental
effects of radio frequency emissions to the extent that such Personal
Wireless Service Facilities comply with the FCC's regulations
concerning such emissions;
(5)
Prohibit any collocation or modification that the Town may not deny
under federal or state law; or
(6)
Preempt any applicable federal or state law.
I.
These Regulations govern Personal Wireless Service Facilities in
the public rights-of-way and include requirements related to applications,
notices, review procedures, development and design standards, conditions,
and operation and maintenance requirements. The Town Manager may hold
a public hearing or solicit public comment at his or her discretion
in order to seek input regarding the adoption of policies, procedures
and forms consistent with these Regulations. The Town Manager may
update these Regulations in his or her discretion to adjust for new
technologies, changes in federal and/or state law, and/or the need
to improve the Town's procedures and standards.
The following capitalized terms are defined for the purposes
of these Regulations as follows:
Any structure designed to specifically support an antenna,
and/or any appurtenance mounted on such a structure or antenna.
Applicable Laws means all controlling applicable federal,
state and local statute, regulations, bylaws, policies and administrative
rule and orders that have the effect of law as well as all applicable
final, nonappealable judicial opinions.
Any person or entity, including representatives thereof,
submitting an application to install Personal Wireless Service Facilities
in the public rights-of-way.
Multiple separate applications filed at the same time, each
for one or more sites, or a single application covering multiple sites.
A network of spatially separate antenna nodes connected to
a common source via a transport medium that provides wireless service
within a geographic area.
A grant of relief by the Town from a specific requirement
or limitation in these Regulations as part of a decision on a grant
of location.
An antenna facility or a Structure that is used for the provision
of Personal Wireless Service, whether such service is provided on
a standalone basis or commingled with other wireless communications
services.
Approval under MGL c. 166, §§ 21 and 22 and
these Regulations to install Personal Wireless Service Facilities
at specific locations on, over or below any public way and to obtain
ongoing access to the Personal Wireless Service Facilities.
Any chemical or combination of chemicals which, in any form,
is listed by trade name, chemical name, formula or otherwise as a
product which is a hazard to public drinking water supplies if concentrations
beyond a certain level are achieved therein. "Hazardous product" shall
also include any product for which there is any listing, declaration,
or announcement in any form issued by the United States Environmental
Protection Agency, the Massachusetts Department of Environmental Protection,
or by any other government agency having direct or indirect jurisdiction
over public water supplies that such product is such a hazard or is
a product known as an "emerging contaminant" suspected as being capable
of being a carcinogen.
A structure taller than 40 feet high composed of a single
spire, pole or tower used to support antennas or related equipment,
the primary purpose of which is to serve as a support structure for
Personal Wireless Service Facilities.
Facilities for the provision of Personal Wireless Services.
A provider of Personal Wireless Services and, for purposes
of these Regulations, a provider of a Distributed Antenna System which
is used by a Personal Wireless Service Provider to provide Personal
Wireless Services. The inclusion of a provider of a Distributed Antenna
System in this definition is not determinative of whether a provider
of a Distributed Antenna System provides a service which is functionally
equivalent to the service provided by a provider of Personal Wireless
Services.
Personal Wireless Services means commercial mobile services,
unlicensed wireless services and common carrier exchange access services,
as set forth in 47 U.S.C. § 332(c)(7)(C)(1).
As used herein and consistent with 47 CFR 1.1312(e)(2), Small
Wireless Facilities encompass facilities that meet the following conditions:
The facilities:
Are mounted on structures 50 feet or less in height including
their antennas as defined in 47 CFR 1.1320(d); or
Are mounted on structures no more than 10% taller than other
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%, 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
pre-existing associated equipment on the structure, is no more than
28 cubic feet in volume;
The facilities do not require antenna structure registration
under 47 CFR Part 17;
The facilities are not located on Tribal lands, as defined under
36 CFR 800.16(x); and
The facilities do not result in human exposure to radiofrequency
radiation in excess of the applicable safety standards specified in
47 CFR 1.1307(b).
Small Wireless Facilities in which antennas, cables, lines
and radio equipment are mounted directly on an existing aerial cable
between two Utility Poles and enclosed in a shroud.
For purposes of these regulations, a) a Utility Pole and
b) any new pole, located in the public right-of-way, the primary purpose
of which is to serve as a support structure for Personal Wireless
Service Facilities.
Any structure that is designed and constructed primarily for the purpose of supporting one or more antennas, including self-supporting lattice towers, guy towers, or monopole. Except as otherwise provided for by these Regulations, the requirements for a Tower and associated antenna facilities shall be those required in Chapter 240, §§ 240-106 through 240-109 of the Town Code (the Wireless Zoning Ordinance).
Infrastructure including, but not limited to, utility poles,
streetlight poles and traffic signals owned, operated and maintained
by the Town and located in a public way.
An upright pole used to support electric cables, telephone
cables, telecommunications cables and related facilities owned and
maintained by an electric distribution company, incumbent local exchange
carrier or provider of cable or telecommunications service, which
is regulated by the Massachusetts Department of Public Utilities and/or
the Massachusetts Department of Telecommunications and Cable. A Utility
Pole is not Town-owned infrastructure.
These Regulations govern the permitting of:
A.
Personal Wireless Service Facilities attachments to existing or replacement
Utility Poles which are located in the public rights-of-way and which
do not have any pre-existing wireless attachments;
B.
Modifications to existing Personal Wireless Service Facilities attached
to existing or replacement Utility Poles which are located in the
public rights-of-way and which do have pre-existing wireless attachments
but do not satisfy the requirements for eligible facilities requests
under 47 U.S.C. § 1455 and related Federal Communications
Commission ("FCC") regulations;
(1)
These Regulations do not apply to the filing and review of eligible
facilities requests, as defined under 47 U.S.C. § 1455 and
related FCC regulations, which involve a pole 1) located in a public
way and 2) classified as a base station under 47 U.S.C. § 1455.
If an Applicant seeks a permit approval pursuant to 47 U.S.C. § 1455
and related FCC regulations, the Applicant must submit a separate
application in accordance with separate Town procedures and standards.
If no separate procedures for the filing and review of eligible facilities
request applications involving a location in the public ways are in
effect, an application may be filed in the same manner as an application
under these Regulations, and substantive review of such application
will be based upon criteria in 47 U.S.C. § 1455 and related
FCC regulations.
C.
Construction of a new pole in a public right-of-way for the primary
purpose of providing Personal Wireless Services; and
D.
Personal Wireless Service Facilities attachments to or modifications
to existing Personal Wireless Service Facilities attached to existing
Town-owned infrastructure in the public rights-of-way; provided, however,
that an Applicant seeking to attach to Town-owned infrastructure located
in a public right-of-way must obtain a grant of location permit and
enter into a revocable license agreement with the Town.
A.
Eligible Applicants.
(1)
Only Applicants who have been granted the right to enter the public
rights-of-way pursuant to state or federal law shall be eligible to
construct, install, modify, operate, maintain or deploy Personal Wireless
Service Facilities. The Applicant must be a Personal Wireless Service
Provider or a carrier-neutral infrastructure provider of service to
a Personal Wireless Service Provider such as, but not limited to,
a Distributed Antenna System operator.
(2)
To establish eligibility, the Applicant shall demonstrate and provide
sufficient evidence of the following:
(a)
That it is qualified and eligible under MGL c. 166 to place
its facilities on Utility Poles located in the public rights-of-way,
construct a Structure, or attach to Town-owned infrastructure through
the provision of:
[1]
A statement of business operations filed with the Massachusetts
Department of Telecommunications and Cable, if any, and a link to
existing tariffs, if any; or
[2]
A copy of any current FCC license or other authorization covering
the provision of Personal Wireless Services by the Applicant using
Personal Wireless Service Facilities within the Town.
(b)
Evidence of its authority to conduct in the Commonwealth of
Massachusetts the business to be carried out through the proposed
Personal Wireless Service, such as a certificate from the Commonwealth
of Massachusetts Secretary of State.
(c)
Carrier-neutral Applicants such as, but not limited to, Distributed
Antenna System operators shall also 1) provide satisfactory evidence
that they have a contract with at least one Personal Wireless Service
Provider which will make use of the proposed facilities as part of
the application materials or 2) accept as a grant of location condition
that they shall not commence construction of their facilities until
such time as they have notified the Town that they have executed such
a contract, such notice to be provided within six months of the issuance
of a grant of location. Failure to satisfy this filing requirement
shall render the application incomplete and be grounds for denial
of the application.
B.
Speculative construction. The Town shall not approve an application
when the Applicant has stated that it does not intend to install Personal
Wireless Service Facilities within six months of receipt of a grant
of location.
C.
Application filing requirements.
(1)
Applications for a grant of location shall be made on forms prescribed
by and available from the Town Manager in accordance with the Town
Manager's instructions.
(2)
Exceptions. These Regulations are subject to applicable state and
federal law. A limited exception from a requirement under these Regulations
may be warranted where strict compliance with these Regulations would
1) conflict with state or federal law, or 2) impose, if so determined
by the Town, an unnecessary or unduly burdensome requirement on the
Applicant, taking into account benefits to the Town from enforcing
the requirement and the existence of a reasonable alternative.
(3)
If the Applicant intends to seek an Exception from any Town Personal
Wireless Service Facilities grant of location requirement(s) which
regulate the placement, construction and modification of Personal
Wireless Service Facilities on the grounds that it would: 1) prohibit
or have the effect of prohibiting the provision of Personal Wireless
Services; 2) unreasonably discriminate among providers of functionally
equivalent services; or 3) otherwise conflict with federal law, the
Applicant shall submit a detailed written explanation and supporting
information in its application. The Applicant also may request an
Exception to any condition recommended in a Town department report
following that department's review of the application. The Town
Manager or designee will determine whether to grant such an Exception
and provide a written statement of reasons regarding its determination.
Unless an Exception has been granted, all applications shall include
all of the forms, information, materials and documentation required
by the Town.
D.
Pole owner permission to attach to Utility Pole. The Applicant shall
submit evidence of pole owner permission to attach its Personal Wireless
Service Facilities to the specific Utility Pole(s) (e.g., with specific
pole numbers) included in its application (if any). If such evidence
is not currently available, as a condition of any grant of location,
the Applicant shall provide, prior to the Applicant's commencement
of construction of the Personal Wireless Service Facilities, written
evidence of such permission. A letter from the pole owner which certifies
that it has granted the Applicant a location-specific license for
the proposed location and identifies the pole number of such location
will constitute evidence of permission.
E.
Other permits needed in order to construct.
(1)
Applicants are responsible for obtaining any additional permits which
are needed in order to construct and operate the proposed Personal
Wireless Service Facilities. Such permits may include, but are not
limited to, building permits, electrical permits, street opening permits
and historic district commission certificates. Separate application
fees apply to each permit.
(2)
Other permits needed in order to construct the proposed Personal
Wireless Service Facilities will be subject to review within intervals
established by the FCC, such intervals to commence when a specific
permit application is made for each of these other permits.
(3)
If the proposed location is within an historic district of the Town,
and if the Applicant is required to obtain, but has not received,
from an historic district commission and submitted with its Application
an appropriate certificate and statement that all appeal periods have
expired, the Applicant shall accept as a condition of a grant of location
that it shall not construct the proposed Personal Wireless Service
Facilities until after it has received a certificate issued by the
historic district commission which is final and not subject to appeal
and has filed such certificate with the Town. If no such permission
from an historic district commission is required, this requirement
shall not apply to the grant of location application.
F.
Copies of application. Two complete applications shall be filed with
and date stamped by the Town Clerk.
G.
Application and recurring annual fees. The fees for a grant of location
application shall be initially set at $500 for a single application
for one to five Small Wireless Facilities; $100 for each additional
Small Wireless Facility; and $1,000 for a new pole application. An
annual recurring fee per Small Wireless Facility shall be $270. Thereafter
these fees may be modified by the Town Manager at a fee hearing. The
same fee structure shall apply to grant of location applications for
Personal Wireless Service Facilities that do not qualify as Small
Wireless Facilities.
H.
Peer review. In accordance with MGL c. 44, § 53G, the Town
Manager or designee shall determine whether a peer review of an application
is needed in order to enable the Town Manager or designee to fully
and timely evaluate the technical aspects of the application, including
but not limited to: accuracy, adequacy and completeness of submissions;
compliance with applicable radio frequency emissions standards; whether
any requested exception is necessary; technical demonstration of the
facility designs or configurations; technical feasibility; coverage
analysis; the validity of conclusions reached or claims made by the
Applicant; and any other factors deemed appropriate by the Town Manager
or designee to effectuate the purposes of these Regulations. A peer
review may be required to enable the timely review of a Batch Application.
A peer review shall be conducted by a consultant or consultants selected
by the Town Manager or designee at the Applicant's expense, for
the reasonable costs incurred by the Town. The Applicant shall be
entitled to seek administrative review of the selection of such consultant
or consultants by filing an appeal with the Town Council; provided
that the grounds for such an appeal shall be limited to claims that
the consultant selected has a conflict of interest or does not possess
the minimum required qualifications. Any such administrative review
shall be subject to the provisions of MGL c. 44, § 53G.
I.
Initial review of application.
(1)
Incomplete applications.
(a)
The Town Manager or designee will follow procedural requirements
for incomplete applications and any continued incompleteness established
by the FCC in its orders regarding applications to locate Personal
Wireless Service Facilities in the public ways, subject to 47 U.S.C.
§ 332(c)(7)(B) and FCC orders, including specific requirements
that apply in the case of Small Wireless Facilities.
(b)
Formal notice of initial incompleteness shall be given to the Applicant by the Town Manager or designee as soon as possible, and in all cases within 10 calendar days of the commencement of the shot clock interval, as set forth in Subsection J hereof, where the Application covers Small Wireless Facilities and otherwise within 30 calendar days of the commencement of the shot clock interval, and will specifically identify: 1) all missing documents and information; and 2) the code provision, regulation, form requirement, application instruction or otherwise publicly stated guideline that requires the documents and information to be submitted.
(c)
If such notice is not provided to the Applicant within such
applicable period, the Town shall not toll the running of a shot clock
interval based upon the incompleteness of the application. However,
an Applicant remains responsible for submitting a complete application
and bears the risk of a denial of its application based upon incompleteness
of its application even if no timely notice of incompleteness was
provided.
(d)
Any application deemed incomplete pursuant to the above procedures
must be made complete within 180 calendar days after the issuance
of the notice of incompleteness or the application shall be deemed
to be automatically withdrawn. No application fees or peer review
fees for reasonable costs incurred by the Town shall be refunded for
withdrawn applications.
(e)
In the case of a Batch Application, a notice of incompleteness
may apply to fewer than the total number of locations included in
the batch. In this instance, each location which is not subject to
a notice of incompleteness will be processed in accordance with the
applicable shot clock interval.
(2)
Complete application or no notice of incompleteness. If the Application
is found to be complete or if no notice of incompleteness has been
issued, the Town Manager or designee shall provide a written report
with recommendations within 30 calendar days of the application filing
date. The recommendations shall include findings or use of a checklist
showing whether the application complies with the standards governing
the application.
J.
Shot clocks.
(1)
The shot clock date interval is determined by counting forward beginning
on the day after the date when the application is date stamped by
the Town Clerk, by the number of days of the shot clock period identified
below; provided, that if the shot clock interval calculated in this
manner is a holiday, the shot clock interval will end on the next
business day after such date. The term "holiday" means any of the
following: Saturday, Sunday, and any holiday recognized by the Town
and any day the Town is closed for business. The term "business day"
means any day that is not a holiday, as defined herein. The shot clock
interval may be reset or tolled by mutual agreement or upon the Town's
issuance of a notice of incompleteness as provided under these Regulations
and applicable federal law.
(2)
For an application to attach Small Wireless Facilities to an existing
Utility Pole, the Town will act upon the application within 60 calendar
days of its receipt of a complete application and application fee,
unless the time period is reset or tolled by mutual agreement or due
to incompleteness of the application.
(3)
For an application to deploy Small Wireless Facilities using a new
Utility Pole, a replacement pole or other new Structure, the Town
will act upon the application within 90 calendar days of its receipt
of a written application and application fee, unless the time period
is reset or tolled by mutual agreement or due to incompleteness of
the Application.
(4)
In the case of a Batch Application, the Town will act upon each location
based on whether all of the locations in the batch are of a same type
and would be governed by a sixty-calendar-day shot clock or ninety-calendar-day
shot clock if filed separately. If the batch includes proposed locations
that would be subject to different shot clocks, the ninety-calendar-day
shot clock interval shall apply to the entire batch.
(5)
For an application to attach Personal Wireless Service Facilities
which are not Small Wireless Facilities, the Town will act upon the
Application within 90 calendar days of its receipt of a complete application
and application fee, unless the time period is reset or tolled by
mutual agreement or due to incompleteness of the application.
(6)
For an application to deploy Personal Wireless Service Facilities
which are not Small Wireless Facilities and are using a new Structure,
the Town will act upon the Application within 150 calendar days of
its receipt of a written application and application fee, unless the
time period is reset or tolled by mutual agreement or due to incompleteness
of the application.
(7)
In the case of an attachment to Town-owned infrastructure that requires
a pole to be replaced in order to safely accommodate the attachment,
the shot clock interval will be 90 days in the case of attachments
which are Small Wireless Facilities and 150 days in the case of attachments
which are not Small Wireless Facilities.
K.
Modification or supplementation of application. For an application
which has not been found to be incomplete, the Applicant shall disclose
at least 48 hours prior to a public hearing any modification(s) of
or supplementation to its proposal. If the Town determines that such
proposed modification or supplementation is so substantial that the
public notice of the application is inadequate, submission of a new
grant of location application shall be required. Applications that
are found to be incomplete must be supplemented as described above.
L.
Public hearing.
(1)
The Town Manager or designee will conduct a public hearing on the
application, subject to public notice requirements and requirements
for direct notice to abutters under MGL c. 166, § 22. The
Town Manager shall supplement statutory notice requirements by 1)
mailing notice of the public hearing to property owners within 300
feet of the proposed location; 2) posting a notice of public hearing
on the Town website and at Town Hall; and 3) establishing a method
enabling interested persons to sign up for and receive email notices
of grant of location applications filed by Personal Wireless Service
Providers and infrastructure providers (including but not limited
to carrier-neutral applicants serving Personal Wireless Service Providers,
including but not limited to DAS providers). Applications will be
made available for public inspection and may be posted on the Town
website.
(2)
Any materials to be submitted by a Town peer reviewer shall be filed
with the Town Manager or designee and provided to the Applicant at
least 48 hours prior to the public hearing.
M.
Written decision and statement of reasons. The Town Manager or designee
shall issue a written decision together with a statement of reasons
for granting, denying or granting with conditions the application,
based upon the public hearing record.
N.
Appeals. Any appeals from a final decision by the Town Manager or
designee shall be governed by applicable law.
O.
Acceptance of Grant of Location order with conditions. Grants of
location must be accepted by the Applicant as required under MGL c.
166, § 22. The Applicant shall pay the fee for recording
the grant of location order as required under the Town Code, and MGL
c. 166, § 22, and MGL c. 262, § 34, clause 62.
As of the effective date of these regulations, the statutory recording
fee is $3.50 for each street or way included in the Grant of Location
order.
P.
Additional Grant of Location approval required; activity that does
not require additional Grant of Location approval.
(1)
Any increase in the height, number or dimensions of Personal Wireless
Service Facilities components after construction shall be subject
to Town approval in accordance with applicable law.
(2)
No Town approval is required for renewing, repairing or replacing
the Personal Wireless Service Facilities as long as they do not increase
the height, number or dimensions of the existing Personal Wireless
Service Facilities or decrease ground clearance below the minimum
allowed. The Town Manager or designee, at the request of the Applicant,
may determine in writing that a de minimus increase does not require
further approval.
(3)
In the event that, after a grant of location order and before construction,
the position of a Personal Wireless Service Facilities component needs
or is required to be moved, the Applicant shall submit any revisions
to its plans to the Director of Public Works, the applicable Fire
Chief and the Building Commissioner, who shall each submit written
comments to the Town Manager or designee who may authorize the change
so long as the change does not reduce ground clearance below the minimum
allowed, or increase the height, dimensions or number of the Personal
Wireless Service Facilities by more than a de minimus amount (as determined
by the Town) or violate applicable Town requirements.
(4)
No Structure shall be removed or replaced without the written approval
of the Building Commissioner.
Q.
New poles. Applications for the construction or installation of new
poles are discouraged. Existing Utility Poles or replacement poles
at existing locations should be utilized where available. Any new
pole proposed for Personal Wireless Services use in excess of 40 feet
from ground level shall be considered a Monopole and prohibited in
the public rights-of-way unless an Exception is granted by the Town.
An Applicant proposing to construct or install a new pole for wireless
communications use must demonstrate that 1) attachment to an existing
Utility Pole or replacement Utility Pole at its existing location
is not a technically feasible alternative; 2) denial of the proposed
location would effectively prohibit its provision of Personal Wireless
Services; or 3) another ground for granting an Exception applies.
R.
Strand-Mounted Antenna. Strand-Mounted Antennas, as defined herein,
are subject to these Grant of Location Regulations.
A.
Purpose. These standards provide objective, uniform criteria for the review of grant of location applications for the placement of Personal Wireless Service Facilities in the public rights-of-way: 1) by attachment to a Utility Pole that has no pre-existing wireless attachments; 2) by attachment to a Utility Pole that has pre-existing wireless attachments where the application does not qualify or has not been submitted for review under 47 U.S.C. § 1455 and related FCC regulations; 3) by attachment to a new pole constructed for communications uses; and 4) by attachments to Town-owned infrastructure, such as streetlight poles, located within the public rights-of-way. In order to ensure compatibility with surrounding land uses, protect public safety and natural, cultural, and scenic resources, preserve and enhance the character of residential neighborhoods and promote attractive nonresidential areas, Personal Wireless Service Facilities in the public rights-of-way shall comply with all applicable requirements of these Regulations and be located, developed and operated in compliance with the standards set forth below in Subsection B, Standards, and Subsection C, Standard conditions. A Grant of Location does not authorize the provision of cable television service or any other service which requires a separate federal, state or local franchise, license or permit.
B.
Standards.
(1)
Avoidance of adverse impacts and obstructions.
(a)
Personal Wireless Service Facilities that are located within
the public rights-of-way shall be designed and maintained so as to
i) minimize visual clutter and reduce noise and other adverse impacts
on the surrounding community and ii) avoid any obstruction of the
use of the public rights-of-way, including sidewalks.
(b)
Each component part of the proposed Personal Wireless Service
Facilities shall be located so as not to cause any physical or visual
obstruction to pedestrian or vehicular traffic, inconvenience to the
public's use of the public right-of-way, safety hazards to pedestrians
and motorists, interference with the use of driveways, or interference
with any path of travel or other disability requirement imposed under
federal or state law.
(c)
All Personal Wireless Service Facilities shall be designed and
located in such manner as to avoid adverse impacts on pedestrian and
traffic safety, and shall comply with traffic control laws, ordinances,
rules, regulations and codes of the Town and the state. The grantee
of a Grant of Location ("grantee") shall employ Personal Wireless
Service Facilities that comply with any noise ordinance or other reasonable
noise level requirement of the Town as is technically feasible and
commercially practicable in light of industry standards and equipment
specifications. In the event that its facilities fail to comply with
such ordinance or requirement, the grantee shall immediately take
all steps necessary to correct such noncompliance, including providing
such equipment that is reasonably necessary to bring the facilities
into compliance with such ordinance or requirement. The grantee shall
promptly shut down and repair any equipment that is not in compliance.
(2)
Use of smallest technically feasible amount of space. Personal Wireless
Service Facilities shall be designed to occupy the least amount of
space in the public right-of-way that is technically feasible.
(3)
Preferred use of existing poles. The preferred location for Personal
Wireless Service Facilities shall be on existing Utility Poles, substantially
similar replacement poles or Town-owned infrastructure. If the Personal
Wireless Service Facilities cannot be placed on existing Utility Poles,
substantially similar replacement poles or Town-owned infrastructure,
the Applicant shall provide an explanation why such placement was
not available and a map of existing Utility Poles and Town-owned infrastructure
in the vicinity of the proposed location and describe why each site
was not technically feasible or otherwise unavailable.
(4)
Preferred and sensitive locations.
(a)
Preferred zoning locations. The order of preference for the location of Personal Wireless Service Facilities in the public ways, from most preferred to least preferred, as classified in Chapter 240 Zoning, Article II, § 240-5, is: a) Industrial Districts; b) Commercial, Office, and Downtown Hyannis Districts; c) Residential Districts.
(b)
Based on aesthetic considerations, Applicants are encouraged
to avoid pole locations that would be: a) directly in front of and
on the same side of the public way as a residential dwelling; b) on
a scenic road; c) directly in front of and on the same side of the
public way as an historic building listed in the Massachusetts Historic
Register; d) at an entry point to a village center (if so defined
by the Planning Department in design guidelines); or e) within an
existing underground utility district established pursuant to MGL
c. 166, §§ 22A through 22N.
(c)
The proposed location of a new pole shall be set back from a
residential dwelling by a distance of at least a fall zone and up
to 100 feet. If the proposed pole location is directly in front of
a residential dwelling, the Applicant shall submit as part of its
application a documented evaluation of alternative locations which
are not directly in front of a residential dwelling and any other
residential dwelling and whether such alternative locations are technically
feasible to meet the service objectives of the proposed location.
The Applicant shall explain and document whether any alternative pole
location evaluated is unavailable based upon a pole owner determination
in accordance with pole attachment license agreement terms and conditions
or technically infeasible due to distance, line of sight or other
factors. Such evaluation shall be supported by factual studies, documents,
reports and other information (which may include propagation maps
and drive test results) and an explanation of the criteria applied
to determine whether an alternative location is technically feasible.
The Town Manager will consider recommendations of the Planning Department
regarding the proposed and any alternative location(s). The Town Manager
may consider the availability of an alternative location which is
not directly in front of a residence and which is set further back
from the residence than the proposed location.
(d)
Personal Wireless Service Facilities of a grantee shall be spaced
at least 300 feet apart; provided, however, an applicant may propose
a modification to this spacing standard based on technical considerations.
(5)
Underground utility districts. New poles shall not be installed for
wireless communications purposes in locations where cable, electric
or telecommunications facilities are located underground in an existing
underground utility district established pursuant to MGL c. 166, §§ 22A
through 22N. If there is an existing Town-owned streetlight pole in
such a location, a party wishing to attach Personal Service Communications
Facilities to such a pole must obtain a license agreement or other
required permission from the Town in addition to a grant of location
pursuant to these regulations. An Applicant seeking an Exception from
these requirements must submit with its request a) factual information
(which may include photographs and mock-ups) which addresses whether
the proposed facilities at the proposed location are incompatible
with the existing proposed location and would defeat the purpose for
establishing such underground district; and b) the factual basis for
any assertion that the requirements under this section would prohibit
or effectively prohibit the provision of Personal Wireless Service.
(6)
Electric power meters. The Applicant shall state whether the use
of an electric power meter is required by the electric distribution
company's tariff or if a nonmetered rate is available under such
tariffs. If a nonmetered rate is available, the Applicant shall utilize
a nonmetered rate in order to reduce visual clutter, the risk of vandalism
and the weight borne by the Utility Pole. The Applicant is not required
to request a nonmetered rate which is not tariffed and which would
require entering into a special contract with the electric distribution
company subject to approval by the Massachusetts Department of Public
Utilities.
(7)
Radio frequency emissions; power densities.
(a)
In accordance with federal law, the Town shall not regulate
the placement, construction, and modification of Personal Wireless
Service Facilities on the basis of the environmental effects of radio
frequency emissions ("RFE") to the extent that such facilities comply
with the FCC's regulations concerning such emissions. As part
of its application, the Applicant shall provide: 1) a certification
by a qualified radio frequency engineer that the proposed facility
will comply with such regulations; and 2) a copy of its RFE compliance
and safety practices, including any ongoing review of compliance with
the FCC's RFE regulations.
(b)
A grantee shall submit within 90 days after beginning operations
under a Grant of Location a technically sufficient monitoring report
that demonstrates whether its Personal Wireless Service Facilities
are in compliance with the FCC's RFE regulations. Thereafter,
annual RFE monitoring is required for all sites by an independent
radio frequency engineer to be hired by the grantee at the grantee's
expense. Test results will be submitted to the Town Building Commissioner
as soon as available, but not later than the close of the calendar
year. Annual testing of RFE shall be required to ensure continual
compliance with the FCC RFE regulations, including aggregate emissions
requirements. In the event that the grantee discovers, during annual
testing or at any other time, that FCC RFE limits are exceeded, the
grantee shall bring the Personal Wireless Service Facilities into
compliance as soon as practicable, but in no case later than 30 days
after receipt of the above test results, and certify such compliance
to the Town, or, at grantee's election, grantee shall shut down
the operation of the Personal Wireless Service Facilities within 30
days of receipt of such test results. The failure to comply with these
requirements shall result in the termination or modification of the
Grant of Location.
(c)
In addition, for each Personal Wireless Service Facilities location,
the Town shall have the right, but not the obligation, to employ a
qualified independent radio frequency engineer to conduct random and
unannounced tests of the grantee's Personal Wireless Service
Facilities installations located within the Town to certify their
compliance with all FCC RFE regulations as they apply to exposure
of the general public. The cost of such tests shall be paid by the
Town, provided that if any such test establishes that the Personal
Wireless Service Facilities are not in compliance with such FCC RFE
regulations, the Town shall provide the test results to the grantee,
and grantee shall pay the costs of such test. In the event that FCC
RFE limits are exceeded, the grantee shall bring the Personal Wireless
Service Facilities into compliance as soon as practicable, but in
no case later than 30 days after receipt of such test results, and
certify such compliance to the Town, or, at grantee's election,
grantee shall shut down the operation of the Personal Wireless Service
Facilities within 30 days of receipt of such test results. The failure
to comply with these requirements shall result in the termination
or modification of the grant of location.
(8)
Back-up generators and air conditioning. Personal Wireless Service
Facilities, including backup generators and air-conditioning units,
shall not generate continuous noise in excess of 40 decibels (dBA)
measured at the property line of any adjacent residential property,
and shall not generate continuous noise in excess of 50 dBA during
the hours of 7:00 a.m. to 10:00 p.m. and 40 dBA during the hours of
10:00 p.m. to 7:00 a.m. measured at the property line of any nonresidential
adjacent property. Backup generators shall only be operated during
power outages and for testing and maintenance purposes. Testing and
maintenance shall only take place on weekdays between the hours of
8:30 a.m. and 4:30 p.m.
(9)
Maintenance of Personal Wireless Service Facilities. All equipment
and other improvements to be constructed, installed, operated and
maintained shall be maintained in a manner that is not detrimental
or injurious to public health and safety and general welfare and in
a manner that ensures that the aesthetic appearance of Personal Wireless
Service Facilities is continuously preserved and substantially the
same as shown in the approved plans. The Town shall have the right,
but not the obligation, to periodically inspect the installed Personal
Wireless Service Facilities and may include the reasonable cost of
such inspections in publicly established annual recurring charges
applicable to such facilities.
(10)
Planning Department design guidelines. The Planning Department
may provide design guidelines for the location and composition of
Personal Wireless Service Facilities which should be considered in
preparing and reviewing Applications. The design guidelines shall
be consistent with these Regulations and may include details, descriptions
and examples of acceptable designs for Wireless Communications Facilities,
visual depictions, the location of components, and acceptable coloring
and other acceptable concealment elements (as defined by federal law).
In the event of any conflict between the design guidelines and these
Regulations, these Regulations take precedence over the design guidelines.
The design guidelines shall be advisory in nature.
(11)
Stealth elements. Examples of stealth elements are included in these regulations and are required in order to limit any adverse visual impact and incompatibility of the proposed facilities in the area where the pole location is proposed. Examples of stealth elements are in § 435-6B(19) and include, but are not limited to: a) radio frequency transparent screening; b) approved specific colors; c) minimizing the size of the facilities; d) integrating the installation into existing utility infrastructure; e) installing new infrastructure that matches existing infrastructure in the area surrounding the proposed site; and f) measures which conceal Personal Wireless Service Facilities or make them appear like something other than such facilities. Stealth elements are distinguished from concealment elements, as that term has been interpreted by the FCC as measures that make the Personal Wireless Service Facilities appear like something other than such facilities. Stealth elements are intended to promote the public interest in minimizing the visual impacts of Personal Wireless Service Facilities and their incompatibility in the area in which they are proposed.
(12)
Strand-Mounted Antenna.
(a)
Strand-Mounted Antennas shall only be located between two utility
poles on a strand that is parallel to the ground and the edge of the
public right-of-way. Only one strand-mounted antenna shall be allowed
in each span.
(b)
Strand-Mounted Antennas shall not be located on any strand between
two utility poles that crosses the public right-of-way.
(c)
All Strand-Mounted Antennas shall be located entirely within
the limits of the public right-of-way.
(d)
Strand-Mounted Antennas shall be placed as close as possible
to the nearest utility pole, and in no event more than five feet from
the pole, subject to any requirements of the utility pole owner for
safety clearance.
(e)
Each Strand-Mounted Antenna shall not exceed a maximum volume
of three cubic feet comprised of radio, antenna and supplementary
equipment, but excluding mounts and connectors. No strand-mounted
component shall exceed 18 inches in diameter, and no portion shall
extend greater than a distance of 12 inches measured from the strand
on which it is mounted.
(f)
An Applicant must demonstrate that the supporting poles are
appropriately sized and have sufficient structural strength to accommodate
the additional material load per the National Electrical Safety Code.
(g)
An Applicant must demonstrate that the proposed location does
not involve a double pole or a pole scheduled to be replaced within
12 months.
(h)
Strand-Mounted Antennas shall not be installed directly below
pole-mounted streetlight fixtures.
(i)
Electric service for all Strand-Mounted Antennas shall be fed
from a pole-mounted power supply.
(j)
All new installations, upgrades, or modifications of Strand-Mounted
Antennas capable of any radio frequency emission shall comply with
radio frequency regulations of the FCC.
(k)
All conductive parts of the Strand-Mounted Antenna assembly
shall be bonded together and grounded to the pole ground.
(l)
Strand-Mounted Antennas shall be installed with good workmanship
and shall not interfere with climbing and maintenance of the Utility
Poles.
(m)
A service disconnect switch shall be installed for all power
supplies for the purpose of powering the equipment.
(n)
Each Strand-Mounted Antenna shall be tagged with an antenna
ownership identification tag, RF notice tag and RF caution tag.
(o)
Clearances shall comply with the National Electrical Safety
Code and utility pole owner requirements.
(p)
The Town shall have the right, but not the obligation, to inspect
Strand-Mounted antennas and may include such inspection as part of
any annual inspection of the grantee's facilities located in
the public ways pursuant to a grant of location.
(13)
Number limitation. Unless otherwise authorized by the Town for
good cause shown, only one personal wireless service provider or carrier-neutral
infrastructure provider such as a DAS operator, shall be allowed to
own, attach and/or operate Personal Wireless Service Facilities or
carrier-neutral facilities which are attached to a single Utility
Pole or strand-mounted. This provision does not prohibit a carrier-neutral
DAS host from allowing one or more wireless service providers to use
its facilities. The owners or operators of the attachments are jointly
responsible for compliance with the FCC's aggregate radio frequency
emissions regulations and are required to demonstrate that their facilities
will be in compliance and are in actual compliance within 30 days
after the construction of the additional attachment to the Structure.
(14)
Multiple antennas. If any multiple antennas are proposed to
be attached to a single Structure, the Town may limit the number of
antennas and related equipment so attached in order to prevent negative
visual impacts and protect the safety of the public.
(15)
Town-owned infrastructure. Attachment to Town-owned infrastructure
in the public right-of-way shall require, in addition to a grant of
location, a license agreement with the Town.
(16)
Replacement poles. If an application requires replacement of
an existing Utility Pole to accommodate proposed Personal Wireless
Service Facilities, the replacement pole shall be designed to resemble
the appearance and dimensions of existing poles near the proposed
location, including size, height, color, materials and style to the
maximum extent feasible (taking into account pole owner control of
its Utility Poles). Any licensing of the use of a pole which is Town-owned
infrastructure will require the replacement of the existing Town-owned
pole and such other specifications as determined by the Director of
Public Works. These specifications will be part of the license agreement
between the Applicant and the Town.
(17)
New Monopoles or poles. Subject to Exceptions under these standards,
no new Monopole or Utility Pole whose primary purpose is to support
Personal Wireless Service Facilities shall be installed within the
public ways of the Town unless authorized by the Town. Only pole-mounted
antennas and Strand-Mounted Antennas shall be permitted in the public
rights-of-way. Towers are prohibited in the public rights-of-way.
An Exception shall be required to place a new pole that is not a replacement
for an existing pole in the public right-of-way. If an Exception is
granted for placement of a new pole in the public right-of-way:
(a)
To the maximum extent feasible (taking into account ownership
of the new pole), the new pole shall be designed to resemble the appearance
and dimensions of existing poles near the proposed location, including
size, height, color, materials and style, with the exception of any
existing pole designs that are scheduled to be removed and not replaced.
(b)
Such new poles shall be subject to a height limitation of 40
feet unless a taller height is permitted by the Town.
(c)
A new pole justification analysis shall be submitted to demonstrate
why 1) existing Utility Poles or locations outside of the public rights-of-way
cannot be utilized; and 2) the new pole is the least intrusive means
possible, including a demonstration that the new pole is designed
to be the minimum functional height and width required to support
the proposed Personal Wireless Service Facilities.
(d)
For all wooden poles, conduit and cables attached to the exterior
of poles shall be mounted flush thereto.
(e)
A new pole shall not require the replacement of adjacent poles
or require the rearrangement of existing facilities of the pole owner,
the Town or another entity attaching to adjacent poles.
(18)
Americans with Disabilities Act requirements. All Personal Wireless
Service Facilities shall comply with Americans with Disabilities Act
(ADA) standards and requirements, including but not limited to sidewalk
access and clearance requirements. The Applicant shall demonstrate
in its application that the proposed construction meets ADA requirements
when in the public rights-of-way.
(19)
Attachment to Structures; limitations. No Personal Wireless
Service Facilities or Small Wireless Facilities shall be attached
to a Structure unless all of the following conditions are satisfied:
(a)
Surface area of antenna. In general, the personal wireless service
antenna, including antenna panels, whip antennas or dish-shaped antennas,
shall be as small as practicable, taking into account aesthetic and
public safety considerations.
(b)
Size of aboveground Personal Wireless Service Facilities. The
total combined volume of all aboveground equipment and appurtenances
serving a personal wireless service antenna shall be as small as practicable,
taking into account aesthetic and public safety considerations.
(c)
Lowest point above grade. The operator of Personal Wireless
Service Facilities or Small Wireless Facilities shall, whenever possible,
locate the base of the equipment or appurtenances at a height of no
lower than eight feet above grade. No facilities may be installed
at grade without the approval of the Director of Public Works and
the Town.
(d)
Height. The top of the highest point of the Utility Pole shall
not exceed 40 feet above ground level and the combination of the height
of the utility pole and personal wireless service antenna extension
shall not exceed 44 feet above ground level.
(e)
Color. To the maximum extent practicable, the color of the Personal
Wireless Service Facilities shall be similar to and blend with a)
the existing equipment on the Utility Pole and/or on other nearby
Utility Poles; b) the color of the Utility Pole; or c) another color
reasonably satisfactory to and directed by the Town. The Personal
Wireless Service Facilities shall have nonreflective materials. Any
applicable Planning Department design guidelines shall be taken into
account in applying these criteria.
(f)
Shielding of wiring. Any wiring on the pole must be covered
with an appropriate cover or cable shield.
(g)
Mounting. Antenna elements and equipment shall be mounted as
close to the surface of the pole as practical and feasible.
(h)
Antenna panel covering. Personal Wireless Service Facilities
antennas shall include a radome, cap or other antenna panel covering
or shield and shall use a color that blends with the color of the
utility pole on which it is mounted.
(i)
Signage. Other than signs required by federal or state law,
Personal Wireless Service Facilities shall not have signs installed
thereon. Identification tags may be utilized in accordance with governmental
and/or pole owner requirements.
(j)
Wiring and cabling. Wires and cables connecting the antenna
and/or appurtenances shall be installed in accordance with the National
Electrical Safety Code, any other applicable codes in force at the
time of installation of the wires and cables, and any stricter standards
required by a pole owner.
(k)
Grounding. The Personal Wireless Service Facilities shall be
grounded in accordance with the National Electrical Safety Code in
force at the time of installation of the wires and cables or any stricter
standard required by a pole owner.
(l)
Guy wires. No guy wires or other support wires shall be used
in connection with Personal Wireless Service Facilities unless the
facilities are proposed to be attached to an existing Utility Pole
that incorporates guy wires prior to the date that the applicant has
applied for a grant of location, or unless the use of guy wires or
support wires allows for an installation that furthers the objectives
of these procedures and standards better than other practical alternatives
that do not include the use of such wires. Guy wires shall not interfere
with the use of a driveway or the use of sidewalks.
(m)
Wind loads. The proposed Personal Wireless Service Facilities
shall be properly engineered to withstand wind loads required by applicable
safety codes and pole owner requirements. This requirement may be
satisfied if the Applicant provides with its application, or pursuant
to a condition of approval, a certificate of compliance with applicable
safety codes and pole owner requirements from the pole owner, including
a structural engineering certification provided by a Massachusetts
licensed engineer.
(n)
Obstructions. Each component part of the Personal Wireless Service
Facilities shall be located so as not to cause any physical or visual
obstruction to pedestrian or vehicular traffic, cause safety hazards
to pedestrians and motorists or otherwise interfere with the public's
use of the public right-of-way, nor shall any such component obstruct
intersection visibility. The Personal Wireless Service Facilities
shall not interfere with access to or operation of a streetlight,
fire alarm cable, municipal fiber optic facilities, fire hydrant,
fire alarm, fire station, fire escape, water valves and facilities,
sewer facilities, underground vault, valve housing structure, or any
other public health or safety facility. The Personal Wireless Service
Facilities shall not interfere with snow plowing, sidewalk clearing,
leaf removal or the maintenance of public shade trees. The maintenance
of the Personal Wireless Service Facilities shall not cause any such
obstructions.
(o)
Traffic safety. All Personal Wireless Service Facilities shall
be designed and located in such a manner as to avoid adverse impacts
on traffic and pedestrian safety. Personal Wireless Service Facilities
shall not project over the public right-of-way or sidewalk (beyond
the curb) in such a manner and at a height that will interfere with
the public use of the public right-of-way or sidewalk. The Applicant
shall comply with the Uniform Traffic Manual for Traffic Control at
all times during construction or installation.
(p)
Lighting. The grantee's Personal Wireless Service Facilities
shall not produce any lighting or blinking light that is not required
by federal or state law, unless otherwise permitted by the Town.
(q)
Security. Each installation shall be designed to be resistant
to, and minimize opportunities for, unauthorized access, climbing,
vandalism, graffiti and other conditions that would result in hazardous
situations, visual blight or attractive nuisances. The Applicant shall
provide its written security standards and practices and a written
explanation of its standards and practices to ensure adequate security
for its Personal Wireless Service Facilities in accordance with current
industry practices and any applicable standards.
(r)
Vibration. The Applicant shall demonstrate that it is capable
of promptly shutting down and repairing any equipment that vibrates
excessively.
(s)
Drip lines of trees. The Town discourages the installation of Personal Wireless Service Facilities within the dripline of a public shade tree or other Town-owned tree. If there is no alternative to the installation of such facilities within the dripline of a public shade tree or other Town-owned tree the installing party must comply with MGL c. 87, and/or the Town Trees Ordinance in Chapter 221 of the Town Code and obtain a tree permit from the Tree Warden. The Town will not permit the pruning, cutting, or damage to a public shade tree or other Town-owned tree to facilitate the installation of Personal Wireless Service Facilities unless approved by the Tree Warden.
(t)
Noninterference with other users of Utility Pole or other existing
Structure. The grantee and its facilities shall not interfere with
the operation and maintenance of any wires, cables or equipment already
attached to a Utility Pole or other existing Structure, including
but not limited to streetlights and cable, electrical and telecommunications
facilities (including any Town communications facilities such as fiber
optic cables and copper alarm transmission lines). Signage already
attached to a pole shall not be moved without the prior written consent
of the Town department that controls the placement of the signage.
(u)
Fire safety measures and requirements. The Applicant shall include
in its Application a written explanation of all fire safety measures
that it will implement. Such measures may include, but are not limited
to, i) readily accessible automatic or other means of shut off of
electric power to the Personal Wireless Service Facilities, ii) surge
protection for lightning discharge or other significant electrical
disturbance, iii) signage as required by grant of location conditions,
the National Electrical Code, FCC regulations and/or pole owners,
iv) instructions for first responders to de-energize equipment, v)
the training of employees and contractors, vi) the provision of information
as may be requested by the applicable Fire Chief or designee, the
provision of emergency information to the applicable Fire Chief or
designee, vii) proof of compliance with all applicable fire codes
and pole owner requirements related to fire safety, and viii) the
use of setbacks from buildings. The Applicant shall address whether
the risks of damages from a fire would be reduced if its facilities
were located farther from the nearest residence or building and if
such other location is available and technically feasible.
(v)
Hazardous products.
[1]
Only to the extent applicable to the grantee's Personal
Wireless Service Facilities or carrier-neutral facilities, the project
proponent shall provide full disclosure of all Hazardous Products
proposed to be used at any time at a project site, including current
copies of Material Safety Data Sheets for such products. Such disclosure
shall be provided in writing to the Building Commissioner with the
application. No application shall be considered complete until such
disclosure is submitted to the Building Commissioner. No such Hazardous
Products shall be deployed or used at any time at a project site without
Town Manager approval which may be withheld at his or her absolute
discretion. Use, storage and containment of Hazardous Products shall
comply with all federal, state, regional, and local codes and regulations,
including building, fire, and health codes. The Applicant shall require
all manufacturers to attest and certify that all equipment and all
other materials used on the proposed site shall not contain per- and
polyfluoroalkyl substances (PFAS).
[2]
Under no circumstances will equipment which includes Hazardous
Products be approved for deployment unless it provides for design
containment equal to a minimum of 110% of the Hazardous Product contained
in the associated equipment plus an additional volume to include the
100-year storm event over a twenty-four-hour period. The design shall
allow for drainage of rainwater but drains shall be fitted with products
or devices that shall immediately and fully close off drainage upon
contact with any such Hazardous Product. The sump and drainage devices
shall be outfitted with alarms that will immediately alert appropriate
authorities as designated by the Town from time to time of a release
of any Hazardous Product at the project site.
C.
Standard conditions. Each grant of location permit shall be subject to the standard Conditions set forth in this Subsection C.
(1)
Revocation of Grant of Location for failure to construct and/or operate.
The grantee shall construct and commence the operation of the approved
Personal Wireless Service Facilities within 12 months after its acceptance
of the Grant of Location. If the grantee has not commenced operations
within such twelve-month period, the Town may notify the grantee of
its intent to revoke the Grant of Location and direct the removal
of any unused Personal Wireless Services Facilities 30 days after
the date of such notice. In the event of a revocation of a Grant of
Location, a new Application must be submitted.
(2)
Certification of use of personal wireless facilities; abandonment
and removal. If requested by the Town, a grantee shall submit a list
of locations of its personal wireless facilities in the Public Ways,
identify any such location where such facilities are not currently
operated or used and specify when such facilities ceased being operated
or used. Any Personal Wireless Service Facilities that are not operated
or used for personal wireless services for a period of 180 consecutive
days or more shall be deemed abandoned. The Town shall have the right
to notify the grantee that such abandoned facilities must be removed
within 30 days of the date of such notice. At the time of removal,
the Personal Wireless Service Facilities and all associated debris
shall be removed. If the grantee does not comply with a removal notice,
the Town shall have the right to remove the Personal Wireless Service
Facilities at the expense of the grantee.
(3)
Nonemergency repairs. Non-emergency repairs shall be performed as
follows: 1) at least 48 hours' advance notice shall be provided
to the Director of Public Works and the Police Department; 2) a police
detail may be required at the sole cost and expense of the grantee;
and 3) work shall be performed on weekdays during hours designated
by the Director of Public Works.
(4)
Removal of Utility Pole. In the event that a Utility Pole is being
removed and replaced by the pole owner(s), the grantee shall transfer
the Personal Wireless Service Facilities to the replacement pole in
accordance with the pole attachment agreement(s) between the grantee
and the pole owner(s). In the event a pole is not a double pole, and
the pole owner no longer needs the pole for its own use and is proposing
to remove the pole and not replace it, the grantee shall have the
right to remain on the pole pursuant to its grant of location, but
shall reasonably cooperate in moving its equipment to another available
and technically suitable pole if one is available and approved for
the attachment of its Personal Wireless Service Facilities and the
grant of location allowed for the removed pole location shall terminate.
(5)
Licenses and permits. The grantee must obtain all other permits required
by law. A grant of location is subject to this condition.
(6)
Performance bond.
(a)
The grantee shall maintain at its sole cost and expense a performance
bond running to the Town, with good and sufficient surety licensed
to do business in the Commonwealth of Massachusetts in the sum of
$10,000 for each location. The amount of the bond is intended to cover
the cost of removal of the grantee's facilities, the cost of
disposal of such facilities and other reasonably related costs. The
amount of the performance bond may be adjusted from time to time to
take into account changes in costs.
(b)
The performance bond shall be conditioned upon the faithful
performance and discharge of all obligations of the grantee under
its grant of location.
(c)
The performance bond shall remain effective during the period
in which the grant of location is in effect as well as through the
time of removal of all of the grantee's Personal Wireless Service
Facilities or carrier-neutral facilities provided for in the Grant
of Location, and shall be conditioned that in the event that the grantee
shall fail to comply with any one or more of its obligations, the
Town shall recover from the surety of such bond all damages suffered
by the Town as a result thereof.
(d)
Said bond shall be a continuing obligation under a grant of
location. In the event that the Town recovers from said surety, the
grantee shall take immediate steps to reinstate the performance bond
to the appropriate amount required above. Neither a performance bond
accepted by the Town, nor any damages recovered thereunder, shall
limit the liability of the grantee.
(7)
Indemnification. To the fullest extent permitted by law, the grantee
shall, at its sole cost and expense, indemnify, defend, and save harmless
the Town and all of the Town's officers, agents and employees
from and against all suits and claims of liability of every name and
nature, including attorney's fees and costs of defending any
action or claim, for, or on account of, any claim, loss, liability
or personal injury or death or damage to property of the Town or any
person, firm, corporation or association related to, arising out of
or resulting from any act, omission, or negligence of the grantee,
its officers, agents, representatives, employees, permittees, licensees,
guests and invitees, or by its contractors and their officers, agents,
representatives, employees, permittees, licensees, guests and invitees
related to, arising out of or resulting from the construction, installation,
maintenance, operation and/or removal of Personal Wireless Facilities
under a grant of location from, and any related license agreement
with, the Town, and/or its/their failure to comply with the terms
and conditions of the grant of location and/or any related license
agreement, except to the extent such claims were caused by the Town's
gross negligence or willful misconduct. Such claims shall include,
but not be limited to, claims arising from the release or threat of
release of oil or hazardous materials, substances or wastes, or assessing,
containing, removing, or disposing of the same, claims arising from
Radio Frequency Emissions and claims arising from grantee's failure
to provide adequate safety and security at the location of its activities
authorized by the grant of location and any related license agreement.
These indemnification provisions are independent of, and shall not
be deemed to be limited, released, waived or modified in any respect
by reason of, any surety or insurance provided by the grantee pursuant
to the grant of location or any related license agreement with the
Town. These indemnification provisions shall survive the expiration
or termination of the grant of location and any related license agreement.
(8)
Insurance. At its sole cost and expense, the grantee shall carry
insurance at minimum in the types and amounts as described in this
section and provide copies of all insurance policies to the Town prior
to construction of its Personal Wireless Service Facilities:
(a)
Commercial general or public liability insurance. The grantee
shall carry appropriate commercial general or public liability insurance
which shall include coverage for bodily injury and personal injuries
as to third persons based upon the uses and equipment placed on or
at the location(s) on which Personal Wireless Service Facilities,
including related Structures, will be installed or constructed ["Location(s)"]
in the minimum amount of $1,000,000 per occurrence and a minimum of
$2,000,000 in the aggregate, or such higher amounts of insurance coverage
that are prudent given the risks inherent in the grantee's activities
on and use of the Location(s), or that the Town shall reasonably require
from time to time. This insurance must be primary and noncontributory
with respect to the losses for which the grantee is responsible.
(b)
Insurance for Town property. The grantee shall obtain and furnish
proof of sufficient property damage (fire, vandalism, structure, etc.)
insurance for Town property, i.e., any Town-owned infrastructure,
equipment, or other property at, on or within the Location(s) in at
least the minimum amount of $1,000,000 per occurrence and a minimum
of $2,000,000 in the aggregate or such higher amounts of liability
insurance coverage that are prudent given the risks inherent in the
grantee's activities and use of the Location(s). This insurance
must be primary and noncontributory.
(c)
Fire and casualty insurance. The grantee shall carry fire and
casualty or "all risk" liability insurance for its own equipment in
amounts that are prudent given the risks inherent in the grantee's
activities and use of the Location(s). This insurance must be primary
and noncontributory.
(d)
Workers' compensation. The grantee and grantee's contractors
shall also provide evidence of sufficient workers' compensation
insurance as required by Massachusetts law.
(e)
Additional insurance. The grantee should consider obtaining
any additional insurance to cover its risks inherent in its activities
on and use of the Location(s), including, but not limited to, professional
services, motor vehicle, construction/completed operations, vandalism,
terrorism, flood, wind, hail, etc.
(f)
The Licensee must purchase a notice endorsement such that the
Town is provided no less than 30 days' prior notice of cancellation
for non-payment reasons and no less than 10 days' prior notice
for cancellation for payment reasons. The grantee shall also obtain
an endorsement for each location explicitly naming the "Town of Barnstable"
as an additional insured on all applicable policies except Workers'
Compensation. Such endorsements shall be evident on any certificates
of insurance provided to the Town and may be submitted by e-mail.
(g)
The grantee shall furnish to the Town certificates of insurance
and proof of the required endorsements issued by an insurer or insurers
qualified to do business in Massachusetts with an A.M. Best rating
of no less than A, Class VI or higher or an equivalent Standard &
Poor's Rating of AA+/- or higher upon the issuance of a Grant
of Location and the execution of any related license agreement and
updated annually during the term of the Grant of Location and license.
The grantee shall provide such certificates of insurance and proof
of required endorsements to the Town office designated in the license.
(h)
Such insurance coverage shall commence no later than the date
on which construction of Personal Wireless Service Facilities is commenced.
Failure to maintain such insurance during the period in which the
grant of location and any related license agreement is in effect shall
be grounds for revocation of such grant of location and license agreement.
(9)
As-built drawings. The grantee shall submit as-built drawings to
the Town within 30 days after installation of its Personal Wireless
Service Facilities. As-built drawings shall be in an electronic format
acceptable to the Town which can be linked to the Town's Geographic
Information System (GIS). To the extent practicable, as-built drawings
should be able to be incorporated into the GIS layers.
(10)
Construction in compliance with approved plans. The grantee
must construct, operate and maintain the Personal Wireless Service
Facilities in strict compliance with the approved plans.
(11)
Current contact and site information. The grantee shall submit
with its application and maintain current basic contact and site information
on a form to be supplied by the Town. Such information shall include,
but is not limited to: a) name, address, email address and twenty-four-hour
local or toll-free and cellphone numbers of the grantee, the owner,
operator and agent or person responsible for maintenance of the Personal
Wireless Service Facilities; b) the owner of the Personal Wireless
Service Facilities; and c) emergency contacts in the event of emergency
situations. Notice of any change in contact information shall be provided
within three days of the effective date of such change. Notice of
any assignment or change in ownership shall be provided to the Town
within three days of such assignment or change in ownership; provided
that any assignment shall require the consent of the Town, the provision
of which shall not be unreasonably delayed or denied.
(12)
Relocation. A grantee shall promptly remove and relocate, at
no charge to the Town, any facilities or equipment if the removal
of a Utility Pole or Structure is made necessary by a change in the
grade, alignment or width of any public way, or by construction, maintenance
or operation of any Town facilities.
(13)
Dig safe; NJUNS. The grantee shall comply with all applicable
Dig Safe statutes and regulations. The grantee shall join the National
Joint Utilities Notification System ("NJUNS") and participate in the
double poles removal process in accordance with NJUNS practices. It
the event that the Town requests periodic meetings with pole owners
and attaching entities, the grantee shall have a representative attend
or participate virtually.
These Regulations may from time to time be amended by the Town
Manager in accordance with applicable law.
The provisions of this chapter are severable. In the event that
any part of these Regulations is declared invalid by a court of competent
jurisdiction, the validity of the remaining parts of the Regulations
shall not be affected.
To the extent not specifically required in these regulations,
grantees shall comply with all applicable laws.
These regulations are effective as of September 18, 2023.
