(a) General Standard of Review for Wireless Communications Facilities. All wireless communications facilities in the right of way shall conform to the Design Standards. The Engineering Division shall review and consider each application according to the application classifications, review processes, and deployment standards described in the Design Standards.
(b) Written Decision. After the Engineering Division renders a decision on an application, it shall send written notice to the applicant. Any denial shall include the reasons for the denial and information regarding the process for an appeal.
(c) Approval. Approval of an application and issuance of a Right-of-Way Permit shall include the following permissions:
(1) Permission to construct. Permission to construct the approved wireless communications facility, subject to any conditions established by the Engineering Division to carry out the purposes and intent of this chapter.
(2) Right-of-Way permission. Right-of-way occupancy permission, granting the applicant permission to occupy the right of way at the proposed site and subject to (a) the standard conditions required by Design Standards and Right-of-Way Permit and (b) any additional conditions required by the City Engineer to carry out the purposes and intent of this chapter. The Right-of-Way Permit shall not convey title, equitable or legal, in the right of way.
(d) Restrictions on Right-of-way Permits. A Right-of-Way Permit may be transferred upon notification to the City and acceptance by the transferee to allow the transferee to site wireless facilities in the same location on the same supporting structure as the transferor. Such a transfer may be made only to a provider who possesses a current Right-of-Way Permit from the city for siting wireless facilities elsewhere in the right of way.
(e) Denial. The city reserves the right to deny an application if any one of the following conditions exist:
(1) The applicant has not demonstrated that its application conforms to the provisions of this chapter, including the Design Standards established pursuant to this chapter;
(2) The applicant is not authorized to conduct business in the State of Ohio;
(3) For any application submitted as an eligible facilities request, the applicant has failed to show that the project qualifies for approval pursuant to 47 U.S.C. § 1455(a) and the related FCC regulations at 47 C.P.R. § 1.40001 et seq. ;
(4) For any application for a Right-of-Way Permit not involving an eligible facilities request, as defined by the FCC in 47 C.F.R. § 1.40001, the applicant has failed within the prior three years to comply or is presently not in full compliance with the requirements of this chapter with regard to another Wireless Communications Facility that is not the subject of the application in question;
(5) The applicant is in default of its obligation to pay to the city fees imposed by this chapter;
(6) The design or location does not comply with the relevant standards promulgated by the American Association of State Highway and Transportation Officials (AASHTO) or the Ohio Department of Transportation (ODOT) and utilized by the Engineering Division for construction in the right of way;
(7) The design or location does not comply with current or proposed Americans with Disabilities Act Accessibility Guidelines (ADAAG) promulgated by the United State Access Board.
(f) Appeal of Denial on the Merits. Upon denial of an application for failure to meet the requirements of this chapter, the applicant may appeal the decision in accordance with Ohio Revised Code Chapter 2506.
(g) Limited Exemption for Personal Wireless Service Facilities. Federal law prohibits a permit denial when it would effectively prohibit the provision of personal wireless services. Due to wide variation among wireless facilities and technical service objectives, and due to changed circumstances over time, a limited exemption for proposals in which strict compliance with this chapter would effectively prohibit personal wireless services serves the public interest. Circumstances in which an effective prohibition may occur are extremely difficult to discern. Therefore, in the event that any applicant asserts that strict compliance with any provision in this chapter, as applied to a specific proposed wireless communications facility, would effectively prohibit the provision of personal wireless services, the City Engineer may grant a limited, one- time exemption from strict compliance, subject to the following provisions:
(1) Required findings. The City Engineer shall not grant any exemption unless the applicant provides each of the following:
A. Evidence that the proposed wireless facility qualifies as a "personal wireless services facility" as defined in 47 U.S.C. § 332(c)(7)(C)(ii);
B. A clearly defmed and reasonable technical service objective and a clearly defined potential site search area; and
C. A meaningful comparative analysis that includes the factual reasons why: (1) any alternative location(s) or design(s) suggested by the City or otherwise identified in the administrative record are not technically feasible, and (2) the proposed location and design deviation is the least noncompliant location and design necessary to reasonably achieve the applicant's technical service objective.
(2) Scope of exemption. The City Engineer shall limit the exemption to the extent to which the applicant demonstrates such exemption is necessary to reasonably achieve its reasonable technical service objectives. The Engineering Division may adopt conditions of approval specific to a permit issued as a limited exemption pursuant to this section, as reasonably necessary to promote the purposes in this chapter and protect the public health, safety, and welfare.
(Ord. 47-18. Passed 7-17-18.)