(a) Any person who shall erect, construct, reconstruct, alter, repair, convert, attach, or maintain any wireless communications facility in violation of any of the terms of this chapter, or who, being the owner or agent of the owner of any lot, tract, or parcel of land, shall suffer or permit another to erect, construct, reconstruct, alter, repair, convert, attach, or maintain any such
facility, shall be deemed to have violated the provisions above and shall be fined a penalty of $750.00 for each day during the period such violation continues.
(b) If any wireless communications facility is erected, constructed, reconstructed, altered, repaired, converted, attached, or maintained in violation of this chapter or of any regulations made pursuant hereto, the proper officer of the City, in addition to other remedies, may institute in the name of the City any appropriate action or proceeding, whether by legal process or otherwise, to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance , attachment, or use, to restrain, correct, or abate such violation, to prevent the use of such facility, and/or to prevent any illegal act, conduct, business, or use in or about such facility.
(c) The Engineering Division is authorized to make requests and to issue orders regarding wireless communications facilities in the right of way for the purpose of public safety, health, and welfare and compliance with this chapter. The Engineering Division is also authorized to conduct visual and external inspections of wireless communications facilities and support structures in the right of way at any time and shall make efforts to coordinate with the provider responsible for a wireless communications facility for any internal inspection of the relevant equipment. (Ord. 47-18. Passed 7-17-18.)
DESIGN GUIDELINES
WIRELESS COMMUNICATIONS FACILITIES IN THE RlGHT-OF-WAY
I. GENERAL
A. This document is to be read in conjunction with Chapter 937, "Wireless Communications Facilities in the Right of Way," of the Codified Ordinances of the City of Ashland.
B. The City of Ashland Engineering Division is the responsible agency for administering the receipt and processing of applications for wireless communications facilities in the City's right-of-way.
C. All Public Right-of-Way work shall be furnished and placed in compliance with the following general standards for construction in the public right-of-way:
1. State of Ohio Department ofTransportation, (ODOT), Construction and Material Specifications and Location and Design Manual; latest editions.
2. American Association of State Highway and Transportation Officials, (AASHTO), Standards and Guidelines; latest edition.
3. National Fire Protection Association 70 National Electrical Code; (NFPA- 70 NEC); latest edition.
4. Americans with Disabilities Act and implementing regulations, including, without limitation, currently proposed Americans with Disabilities Act Accessibility Guidelines (ADAAG) promulgated by the United State Access Board.
5. All applicable local, state, and federal codes and regulations.
D. Upon installation of the new work, the contractor shall restore the street and/ or alley pavement, walks, driveways, and tree lawns as required in full and complete compliance with the Right-of-Way Permit and the restoration details contained in other sections of the Engineering Construction Standards. All damages to any existing infrastructure as a result of the contractor's work shall be repaired in accordance with the details contained in other sections of the Engineering Construction Standards.
II. PERMIT APPLICATIONS AND PROCEDURES
A. General. This section describes necessary requirements for a permit application. The Engineering Division may from time-to-time develop and publish new or additional permit application forms, checklists, informational handouts and other related materials. To avoid unnecessary delay in application processing, applicants are strongly encouraged to contact the Engineering Division before submittal to ensure that it has consulted all the most up-to-date requirements.
B. Categories of Applications. In accordance with FCC regulations, the Engineering Division shall classify every application to locate a wireless communications facility in the right of way as one of the following three types:
1. A Type I application is for a minor modification that:
a. involves collocation, removal or replacement of transmission equipment on an existing tower or base station; and
b. does not substantially change the physical dimensions of the existing tower or base station.
2. A Type II application is for a modification that:
a. involves collocation, removal or replacement of transmission equipment on an existing tower or base station; and
b. substantially changes the physical dimensions of the existing tower or base station or does not qualify for approval pursuant to 47 U.S.C. § 1455(a) for any lawful reason.
3. A Type III application is one that proposes:
a. siting new transmission equipment on a potential support structure in the right of way that does not already support transmission equipment; or
b. siting a new wireless communication facility on a new tower or other support structure in the right of way.
C. Application Requirements.
1. Application Fee. The applicant shall pay the applicable permit application fee as required by the Engineering Division's fee schedule.
2. RF Compliance Affidavit. Applicants shall submit a sworn affidavit prepared and signed by an RF engineer with knowledge about the proposed project that affirms the proposed project will be compliant with all applicable governmental regulations in connection with human exposure to radio frequency emissions. The affidavit shall include (1) all frequencies on which the equipment will operate; (2) how many channels will be used on each frequency; (3) the effective radiated power ("ERP") output level in measured watts; and (4) the height above ground for the lowest point on the lowest transmitter. The required disclosures above shall be included for all transmitters on the support structure, which includes without limitation existing collocated antennas and antennas used for wireless backhaul (such as microwave dish antenna or U/E relay).
3. Regulatory Authorization. To the extent that the applicant claims any regulatory authorization or other right to use the public right-of-way, the applicant shall provide a true and correct copy of the certificate, license, notice to proceed or other regulatory authorization that supports the applicant's claim.
4. Owner's Authorization. Applicants shall submit evidence sufficient to show that either (1) the applicant owns the proposed support structure or (2) the applicant has obtained the owner's authorization to file the application.
5. Site Plans and Structural Calculations. The applicant shall submit fully dimensioned site plans, elevation drawings, and structural calculations prepared, sealed, stamped and signed by a Professional Engineer licensed and registered by the State of Ohio. Drawings shall depict any existing wireless facilities with all existing transmission equipment and other improvements, the proposed facility with all proposed transmission equipment and other improvements, and the legal boundaries of the leased or owned area surrounding the proposed facility and any associated access or utility easements.
a. Photo Simulations. For all applications other than a Type I application for a collocation or modification to an existing facility with no concealment, the applicant shall provide photo simulations from at least two reasonable line-of-site locations in the vicinity of the proposed project site. Photo simulations shall be included in the site plans on a separate sheet.
b. Equipment Specifications. For all equipment depicted on the plans, the applicant shall include (1) the manufacturer's name and model number; (2) physical dimensions, including without limitation height, width, depth and weight with mounts and other necessary hardware; and (3) the ambient noise level generated from the equipment, if any.
6. Justification Statement. For all Type II and Type III applications, the applicant shall submit a written justification statement that includes (1) a short, plain statement to explain the applicant's technical objective and how the proposed facility will suit that technical objective; (2) color signal propagation maps with objective signal measurements in dBm (RSSI or RSRP), if the technical objective involves a gap in the applicant's service coverage; (3) forward data volume and average eligible scheduled user data for the affected macrosite, if the technical objective is to offload traffic from an existing facility; and (4) evidence that the applicant engaged in a reasonably diligent investigation as to whether any other potential locations would reasonably achieve the applicant's technical objective, including the physical address for each location and meaningful comparative analysis with the reasons why the applicant ruled out each alternative location. The Engineering Division shall not require a justification statement when the applicant proposes a Type I application or a standard configuration facility subject to minor review.
7. Deposit Necessary to Cover Cost of Consultant. Notice to the applicant that the Engineering Division has elected to retain a consultant for services, under Section 937.04 of the Codified Ordinances of the City of Ashland, shall include an estimated deposit required to cover the Engineering Division's costs to retain the consultant. The estimate shall not be binding on the Engineering Division and the Engineering Division may require further deposits.
D. Pre-Submittal Conference with the Engineering Division
1. Purpose. The Engineering Division offers pre-submittal conferences to meet with potential applicants and discuss possible projects on a conceptual level. The conference is intended to identify the correct application type and content requirements for any given project, and also to create an informal forum in which applicants and the Engineering Division can discuss any aesthetic, historic preservation or other concerns that should be addressed as soon as possible to avoid any unnecessary delays in the processing of an application.
2. Appointment Required. An appointment is required for all pre-submittal conferences. Each conference is generally limited to discussion of a single potential project, but applicants may request to discuss multiple projects.
3. Optional Pre-Submittal Conferences. Pre-submittal conferences are strongly encouraged but not required for Type III applications for a standard configuration facility subject to minor review.
4. Mandatory Pre-Submjttal Conferences. Pre-submittal conferences are required for all projects subject to standard review, including without limitation all Type II applications and all Type III for a non-standard configuration facility.
5. Limited Waiver from Application Requirements. The Engineering Division may grant a limited, written waiver from the obligation to submit a justification statement and/or photo simulations when the Engineering Division finds that strict compliance with the requirement would create an unnecessary or unreasonable burden. For example, the City Engineer might waive the justification statement for a standard configuration facility in a location that requires standard review because the Engineering Division finds that the specific proposed location for the facility raises no aesthetic concerns. The applicant's request for a waiver shall describe the proposed site location and design with sufficient particularity to allow the Engineering Division to ascertain whether a later-submitted application is the same proposal for which the waiver was granted.
E. Application Submittal Procedures. All applications shall be submitted to the Engineering Division.
III. MINOR MODIFICATIONS (TYPE I APPLICATION)
A. Overview. Minor modifications are additions or changes to facilities previously approved by the City and covered under 47 U.S.C. § 1455(a), which mandates approval for certain applications that do not propose a substantial change to the underlying facility. Federal regulations provide specific definitions and criteria for approval or denial. The provisions in this section are intended to assist applicants and the Engineering Division to determine whether an application qualifies for approval as a minor modification.
B. Criteria for Approval. The Engineering Division may approve or conditionally approve a Type I application for a minor modification when it finds that the proposed project:
1. involves collocation, removal or replacement of transmission equipment on an existing tower or base station; and
2. does not substantially change the physical dimensions of the existing tower or base station.
C. Criteria for Denial. Notwithstanding any other provisions in these Standards, and consistent with all applicable federal laws and regulations, the Engineering Division may deny a Type I application for a minor modification when it finds that the proposed project:
1. does not satisfy the criteria for approval;
2. violates any legally enforceable standard or permit condition reasonably related to public health and safety; or
3. involves the replacement of the entire support structure.
D. Written Decision. After the Engineering Division renders a decision, the Engineering Division shall send written notice to the applicant. In the event that the Engineering Division determines that a Type I application does not qualify for approval, the Engineering Division will send written notice to the applicant that includes the reasons to support the Engineering Division's decision.
IV. MAJOR MODIFICATIONS AND NEW FACILITIE (TYPES ll AND Ill APPLICATIONS)
A. General design principles. Every Type II and Type III wireless communications facility shall conform to the following design concept principles:
1. The proposed wireless facility, its support structure, equipment and all associated improvements, shall be designed and sited in a manner that is sympathetic to the particular architectural character of the buildings and compatible with the streets cape in the vicinity of the proposed project site;
2. Design elements of the proposed wireless facility, its support structure, equipment and all associated improvements , shall be sensitively selected to reflect the detailing and materials associated with the buildings and streetscape in the vicinity of the proposed project site;
3. The proposed wireless facility, its support structure, equipment and all associated improvements, shall be designed and sited in a manner that does not adversely impact right-of-way circulation, accessibility, or obstruct existing or planned-future uses of the right-of-way; and
4. The proposed wireless facility shall comply with all applicable design, construction and location provisions in these Standards.
B. General Design and Construction Standards. The Engineering Division desires to promote cleanly organized and streamlined facilities using the smallest and least intrusive means available. All wireless facilities in the public right-of-way shall comply with all applicable provisions in these standards. In the event that any other law, regulation or code requires any more restrictive structural design and/or construction requirements, the most restrictive requirement will control.
1. Collocation. The Engineering Division desires and encourages collocations between two separate wireless service providers on the same support structure whenever feasible and safe.
2. Antennas. The antenna(s) associated with the first installation shall be topmounted and concealed within a radome that also conceals the cable connections, antenna mount, and other hardware. The Engineering Division may approve a side-mounted antenna with the initial installation if, at the Engineering Division's discretion, the side-mounted antenna would be more appropriate given the built environment, neighborhood character, overall site appearance and would promote the purposes of these Standards. GPS antennas shall be placed within the radome or directly above the radome not to exceed six inches.
3. Pole-Mounted Equipment Cages. When pole-mounted equipment is either permitted or required, all equipment other than the antenna(s), electric meter and disconnect switch shall be concealed within an equipment cage not to exceed 28 cubic feet in total volume. Equipment cages may not extend more than 10 inches beyond the pole centerline on either side. The equipment cage shall be nonreflective and painted, wrapped or otherwise colored to match the existing pole. The City prefers and strongly encourages equipment cages to be mounted flush to the pole. All pole-mounted equipment shall be installed as flush to the pole as possible. Any standoff mount for the equipment cage may not exceed 4 inches and shall include metal flaps (or "wings") to conceal the space between the cage and the pole.
4. Underground Equipment Vaults. The Engineering Division generally permits pole-mounted equipment in self-contained cages, but for applications subject to standard review, the Engineering Division may require placement of the equipment in an underground vault.
5. Ground-Mounted Equipment. The Engineering Division will not approve any new ground-mounted equipment unless the applicant (1) proposes the groundmounted equipment in connection with a tapered metal pole and (2) shows clear and convincing evidence that the equipment cannot be feasibly installed as a polemounted installation, in an underground vault, or within an existing street feature for a valid technical reason. Increased costs alone shall be presumed to be insufficient. Ground-mounted equipment shall not be permitted in connection with a wood pole. In the event that the Engineering Division approves ground-mounted equipment, the applicant shall conform to the following requirements:
a. Self-Contained Cabinet or Shroud. The equipment shroud or cabinet shall contain all the equipment associated with the facility other than the antenna. All cables and conduits associated with the equipment shall be concealed from view, routed directly through the tapered metal pole and underground between the pole and the ground-mounted cabinet.
b. Concealment. The Engineering Division may require the applicant to incorporate concealment elements into the proposed design. Concealment may include, but shall not be limited to, strategic placement in less obtrusive locations and placement within existing or replacement street furniture.
c. Ambient Noise Suppression. The Engineering Division may require the applicant to incorporate ambient noise suppression measures and/or require the applicant to place the equipment in locations less likely to impact adjacent residences or businesses to ensure compliance with all applicable noise regulations.
6. Utility Lines. Utility service lines shall be underground whenever feasible to avoid additional overhead lines. For metal poles, underground cables and wires shall transition directly into the pole base without any external junction box.
7. Electric Meter. Multiple operators on a shared pole shall share a single electric meter. Site operators shall use the smallest and least intrusive electric meter available. The Engineering Division strongly encourages site operators to use flat-rate electric service when it would eliminate the need for a meter. Whenever permitted by the electric service provider, the electric meter should be painted to match the pole.
8. Telephone/Fiber Optic Utilities. Cabinets for telephone and/or fiber optic utilities may not extend more than 10 inches beyond the pole centerline on either side, and shall be painted, wrapped or otherwise colored to match the pole. Microwave or other wireless backhaul is discouraged when it would involve a separate and unconcealed antenna.
9. Spools and Coils. To reduce clutter and deter vandalism, excess fiber optic or coaxial cables shall not be spooled, coiled or otherwise stored on the pole except within the approved enclosure such as a cage or cabinet.
10. Underground Conduit. All underground conduit placed behind the curb face and underneath the sidewalk and shall be Schedule 40 PVC encased in concrete. All underground conduit shall be Schedule 40 PVC encased in rigid metal material when place: (1) underneath driveway aprons, (2) within tree wells or (3) in front of the curb face and beneath the street.
11. Above-Ground Conduit. On wood poles, all above-ground wires, cables and connections shall be encased in the smallest section or smallest diameter PVC channel, conduit, u-guard, or shroud feasible, with a maximum dimension of 4" diameter, and painted to match the pole.
12. Ground Rods. All ground rods shall be 1" in diameter and 10 feet in length made from copper-clad steel (high strength) as required in ASTM A325.
13. Lights. Unless otherwise required for compliance with FAA or FCC regulations, the facility shall not include any permanently installed lights. Any lights associated with the electronic equipment shall be appropriately shielded from public view. This provision shall not be interpreted to prohibit installations on streetlights or the installation of luminaires on new poles when required by the Engineering Division.
14. Generally Applicable Health and Safety Regulations. All facilities shall be designed, constructed, operated and maintained in compliance with all generally applicable health and safety regulations, including without limitation all applicable regulations for human exposure to RF emissions.
C. General Location Criteria
1. Collocation Preference. Whenever an applicant proposes to place a new wireless facility within 300 feet of an existing wireless facility, whether on a new pole or an existing potential support structure, the applicant shall either collocate with the existing facility or demonstrate with clear and convincing evidence that a collocation is either not technically feasible or space on the existing facility is not potentially available.
2. General Limitation on New Poles. The Engineering Division strongly discourages more than one (1) wireless facility on a new pole per block and will not approve more than one per block on each side of the street unless the applicant qualifies for a limited exception pursuant to Section 937.05(g) of the Codified Ordinances of the City of Ashland.
3. Alignment with Other Poles. The centerline of any new pole shall be aligned with the centerlines of existing poles on the same sidewalk segment, subject to required setbacks established by published utility company policies or regulatory requirements. After the Engineering Division approves a proposed new pole location, but before the permittee commences construction, the permittee shall verify the correct pole alignment in the field.
4. Setbacks for Visibility and Access. Any new pole and/or equipment and other improvements associated with a new pole or an existing pole shall be setback from intersections, alleyways and driveways and placed in locations where it will not obstruct motorists' sightlines or pedestrian access. In general, the Engineering Division will presume that no obstruction will occur when a new pole and/or equipment is setback at least (i) 50 feet from any intersection; (ii) six (6) feet from any driveway cut or alleyway entrance or exit; and (iii) six (6) feet from any permanent object or existing lawfully-permitted encroachment in the public right-of-way, including without limitation traffic signs and signals, street trees, open tree wells, benches or other street furniture, streetlights, door swings, gate swings or sidewalk cafe enclosures. The Engineering Division may, in its discretion, require an additional setback for a specific pole when it determines that the presumptively acceptable setback would nevertheless obstruct motorists' sightlines or pedestrian access.
5. Setback from City Utilities. Setbacks from City utilities shall be provided, as depicted within the Construction Standards.
6. Obstructions. Any new pole and/or equipment and other improvements associated with a new pole or an existing pole shall not obstruct any: (i) worker access to any above-ground or underground infrastructure for traffic control, streetlight or public transportation, including without limitation any curb control sign, parking meter, vehicular traffic sign or signal, pedestrian traffic sign or signal, barricade reflectors; (ii) access to any public transportation vehicles, street furniture, or other improvements (iii) worker access to above-ground or underground infrastructure owned or operated by any public or private utility agency; (iv) fire hydrant access; (v) access to any doors, gates, sidewalk doors, passage doors, stoops or other ingress and egress points to any building appurtenant to the right-of-way; or (vi) access to any fire escape.
7. Historic or Architecturally Significant Structures. Any new pole and/or equipment and other improvements associated with a new pole or an existing pole may not be placed directly in front of any historic or architecturally significant structures in prominent or highly visible locations.
D. New and Replacement Poles
1. General Restrictions on New Wood Poles. In all locations, the Engineering Division reserves the right to require a metal pole rather than a wood pole based on the build and/or natural environmental character of the proposed site location.
2. Overall Height. Any pole greater than 50 feet above ground level shall be subject to standard review by the Engineering Division. The Engineering Division shall consider other poles in vicinity, the built environment, the neighborhood character, the overall site appearance and the purposes in these Standards.
3. Pole Diameter. Any wood pole with a diameter greater than 14 inches or any tapered metal pole with a diameter at base greater than 12 inches shall be subject to standard review and approval by the Engineering Division. The Engineering Division shall consider other poles in vicinity, the built environment, the neighborhood character, the overall site appearance and the purposes in these Standards.
4. Wood Pole Footings and Foundations. All new wood poles shall be direct buried to a depth determined, stamped, sealed and signed by a professional engineer licensed and registered by the State of Ohio, and subject to the Engineering Division's review and approval.
5. Tapered Metal Pole Footings and Foundations. All new tapered metal poles shall be supported with a reinforced concrete pier designed, stamped, sealed and signed by a professional engineer licensed and registered by the State of Ohio, and subject to the Engineering Division's review and approval. Footings and anchor bolts shall be constructed from steel (high strength) per ASTM A36, threaded (J-type/L-type), hot-dip galvanized per ODOT CMS Item 711.02 and in a length and diameter determined, stamped, sealed and signed by a professional engineer licensed and registered by the State of Ohio, and subject to the Engineering Division's review and approval. All anchor bolts shall be concealed from public view with an appropriate pole boot or cover subject to the Engineering Division's prior approval.
6. Tapered Metal Pole Material. All tapered metal poles shall be constructed from hot-dip galvanized steel or other corrosion-resistant material approved by the Engineering Division and finished in accordance with these Standards to avoid rust stains on adjacent sidewalks, buildings or other improvements.
7. Metal Pole Finish. Metal poles shall be painted black. The applicant may select a paint or powder coat system in compliance with ASTM standards.
8. Lighting and Banners. The Engineering Division may require the applicant to install functional streetlights and/or banners when technically feasible and the Engineering Division determines that such additions will enhance the overall appearance and usefulness of the proposed facility.
E. Installations on Existing Poles and Other Potential Support Structures
1. General. The Engineering Division encourages applicants to consider existing poles and other potential support structures prior to any new pole to reduce congestion in the public right-of-way. The Engineering Division will consider all generally applicable design, construction and location standards when reviewing applications for new facilities installed on existing poles or other potential support structures in the public right-of-way.
2. Privately-Owned Structures. For a privately-owned structure in the public right-of-way onto which an applicant proposes to attach a wireless communications facility, if the owner of the structure requires a restrictive standards than those contained in these Standards, the more restrictive standards shall control. If any portion of a privately-owned structure is on private property, the applicant shall first obtain all applicable zoning and building permits prior to submittal of an application to the Engineering Division.
3. City-Owned Structures. The City, in its proprietary capacity, retains sole and absolute discretion over whether and on what terms it may allow wireless facilities on its poles and other facilities in the public right-of-way notwithstanding conflicting design provisions set forth in these Standards. Applicants may not submit any applications in connection with City-owned poles or other facilities without a valid and fully executed agreement to use the specific pole or other facility. The City shall not authorize any attachments to City-owned infrastructure that negatively impacts the structural integrity of the support structure.
4. Independent Power Source. A wireless communications facility on a City owned potential support structure may not use the same power source that provides power for the original purpose of the potential support structure.
5. City-Owned Traffic Control Signal Poles. The City prohibits non-City owned wireless facilities (and all other non-traffic control facilities) on City owned traffic control signal poles.
F. Additional Design and Construction Standards for Major Modifications
In addition to the requirements outlined herein, the Engineering Division requires all major modifications to eligible facilities (Type II application) to comply with the following requirements:
1. Coordination with Original Facility Design. The applicant shall design the proposed installation in a manner that mimics the design and any concealment elements of the existing facility. To the extent feasible, new facilities should utilize capacity in existing equipment cages or cabinets and existing conduits or risers. The Engineering Division may, at its discretion, authorize the applicant to replace an existing equipment enclosure with a larger one when the Engineering Division determines that a larger enclosure is more visually appropriate than a second enclosure on the same support structure.
2. Antennas. Any additional antenna(s) installed to the support structure shall be side-mounted and parallel to the roadway. The Engineering Division prohibits side-mounted antennas that overhang the roadway, but may permit side-mounted antennas that overhang the sidewalk provided that the antenna complies with all applicable setbacks requirements in these Standards.
3. Structural Integrity. Any additional equipment shall not negatively impact the structural integrity of the support structure and shall comply with all applicable local, state, and federal codes and regulations.
G. Standard Configuration Facilities
1. Definition. The Engineering Division defines a "standard configuration facility" as a pole-mounted wireless communication facility less than or equal to 50 feet above ground level in overall height, with pole-mounted or underground equipment, and compliant with all applicable general design standards and all the general location standards. Proposed facilities with groundmounted equipment shall not be eligible for review as a standard configuration facility. Engineering Construction Standards drawings illustrate standard configuration facilities. To the extent that any generally applicable standards in these Standards conflict with the design or specifications within the Engineering Construction Standards drawings, the specifications noted within the Standards shall control.
2. Applicable Standard of Review. To encourage standard configuration facilities in appropriate locations, the Engineering Division generally applies minor review. Applications for standard configuration facilities may require standard review in certain locations where, for example, historic resources or the City's investment in the public right-of-way necessitates a closer examination or a design more tailored to the specific location and context. Table 1 below delineates when the Engineering Division applies minor or standard review.
Table 1 -Applicable Standard of Review for
Standard Configuration Poles by Proposed Location
Location | Standard Wood Pole Configuration | Standard Metal Pole Configuration |
Major Thoroughfares | Standard Review | Standard Review |
B-1, B-2, B-3 Districts | Standard Review | Standard Review |
M-1, M-2, M-3, M-4 Districts | Standard Review | Standard Review |
Historic Districts | Standard Review | Standard Review |
All Other Locations | Minor Review | Minor Review |
3. Standard Configuration Facilities on Existing Poles. In accordance with the Engineering Division's general preference for wireless facilities on existing potential support structures, a proposed standard configuration facility on an existing pole will be eligible for minor review provided that the proposed facility on the existing pole does not exceed 50 feet above ground level and the finished project complies with all applicable design, construction and location standards.
V. APPROVALS AND DENIALS
A. Required Findings for Approvals.
1. Standard Review. The Engineering Division may approve or conditionally approve an application subject to standard review only when it finds that:
a. the proposed wireless facility, its support structure, equipment and all associated improvements, have been designed and sited in a manner that is sympathetic to the particular architectural character of the buildings and compatible with the streets cape in the vicinity of the proposed project site;
b. design elements of the proposed wireless facility, its support structure, equipment and all associated improvements, have been sensitively selected to reflect the detailing and materials associated with the buildings and streetscape in the vicinity of the proposed project site;
c. the proposed wireless facility, its support structure, equipment and all associated improvements, have been designed and sited in a manner that does not adversely impact right-of-way circulation, accessibility, or obstruct existing or planned-future uses of the right-of-way; and
d. the proposed wireless facility complies with all applicable design, construction and location provisions in the Standards.
2. Minor Review. The Engineering Division may approve or conditionally approve an application for a standard configuration facility subject to minor review only when it fmds the following:
a. the proposed project complies with all applicable design and construction standards for a standard configuration facility;
b. the proposed project complies with all applicable location standards; and
c. the project is proposed in a location identified appropriate for minor review in Table 1 above.
B. Minor Technical Exceptions.
1. Purpose. The Engineering Division recognizes that in some circumstances strict compliance with these Standards may result in undesirable aesthetic outcomes, and that minor deviations should be granted when the need for such deviation arises from circumstances outside the applicant's control. For example, if an applicant proposes to construct a standard configuration facility in an office district, but required a pole with a slightly wider base due to a poor foundation conditions, the Engineering Division would consider granting a technical exception rather than subjecting an otherwise preferred design to a standard review. This section describes the required fmdings for a minor technical exception.
2. Required Findings. The Engineering Division may, in its sole discretion, grant a minor technical exception from strict compliance with the design and location guidelines when the Engineering Division finds that:
a. the applicant has requested an exception in writing;
b. the proposed facility would normally qualify for minor review but for the need for a minor technical exception;
c. the need for the exception arises from an external factor outside the applicant's control that impact public health, safety or welfare, including without limitation soil compaction, existing congestion or clutter within the right-of-way or other location-specific phenomenon; and
d. the granting of a minor technical exception would not create any obvious hazard or unreasonable obstruction in the public right-of-way.
C. Written Decision. After the Engineering Division renders a decision, the Engineering Division shall send written notice to the applicant. Any denial shall include the reasons for the denial, and information about how and when to file an appeal.
VI. STANDARD CONDITIONS OF PERMIT
A. Standard conditions of approval. Permission to site wireless communications facilities in the right of way shall be conditioned in compliance with the standard conditions of approval provided herein. The Engineering Division may add or modify conditions of approval as necessary or appropriate to protect and promote the public health, safety, and welfare.
B. Right-of-Way Permit duration. For Type II and Type III permits, the Right-of- Way Permit will automatically expire ten years from the issuance date, except when federal or state law authorizes the City to issue a permit with a shorter term. Any request for a permit renewal shall be reviewed as request for a new permit subject to all applicable procedures and standards in effect at the time the request is received.
C. Standard conditions of approval for Type I permits. Any Type I permit approved or deemed granted by the operation of law shall be automatically subject to the following conditions of approval:
1. Permit duration. The City's grant or grant by operation of law of a Type I permit constitutes a federally-mandated modification to the underlying permit or approval of the subject tower and/or base station. The City's grant or grant by operation of law of a Type I permit will not extend the permit term for any underlying permit or other regulatory approval, and its term shall be coterminous with the underlying permit or other regulatory approval for the subject tower or base station.
2. Accelerated permit terms due to invalidation. In the event that any court of competent jurisdiction invalidates any portion of 47 U.S.C. § 1455(a) or any FCC rule that interprets 47 U.S.C. § 1455(a) such that federal law would not mandate approval of any Type I permit, such permit shall automatically expire one year from the effective date of the judicial order, unless the decision specifically does not authorize accelerated termination of previously approved Type I permits. A permittee shall not be required to remove its improvements approved under the invalidated Type I permit if it submits an application for a Type II or Type III permit for those improvements before the one-year period ends. The Engineering Division may extend beyond one-year the time in which a permittee may apply for a Type II or Type III permit for an invalidated Type I permit.
3. No waiver of standing. The City's grant or grant by operation of law of a Type I permit does not waive, and shall not be construed to waive, any standing by the City to challenge 47 U.S.C. § 1455(a), any FCC rules that interpret 47 U.S.C. § 1455(a), or any particular Type I permit.
D. Standard conditions of approval for all Right-of-Way permits. All Right-of- Way permits issued shall be subject to the following standard conditions of approval by operation of law:
1. Compliance with all applicable laws. Permittee shall at all times maintain compliance with all applicable federal, state and local laws, regulations, ordinances, and other rules.
2. Inspections and emergencies. The City or its designee may inspect a wireless communications facility in the right of way upon reasonable notice to the permittee. The permittee shall cooperate with all inspections. The City reserves the right to support, repair, disable, or remove any elements of the facility in emergencies or when the facility threatens imminent harm to persons or property.
3. Contact information for responsible parties. 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. All such contact information for responsible parties shall be provided to the Engineering Division.
4. Indemnities. The permittee and, if applicable, the non-government owner of a wireless communications facility shall defend, indemnify, and hold harmless the City and its agents, officers, officials, and employees from:
a. Any and all damages, liabilities, injuries, losses, costs, and expenses arising out of any claims, demands, lawsuits, writs of mandamus, or other actions or proceedings brought against the City to challenge, attack, seek to modify, set aside, void, or annul the City's approval of the applicable Right-of-Way Permit; and
b. Any and all damages, liabilities, injuries, losses, costs, and expenses and any claims, demands, lawsuits, or other actions or proceedings of any kind, whether for personal injury, death, or property damage, arising out of or in connection with the activities or performance of the permittee or its agents, employees, licensees, contractors, subcontractors, or independent contractors.
c. In the event the City becomes aware of any such actions or claims, the City shall promptly notify the permittee and shall reasonably cooperate in the defense. It is expressly agreed that the City shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the City's defense, and the permittee (as applicable) shall reimburse City for any costs and expenses directly and necessarily incurred by the City in the course of the defense.
5. Interference with public safety radio services. In the event that the City has reason to believe that permittee's wireless communications operations are causing interference with the City's radio communications operations, then the permittee shall, at its cost, immediately cooperate with the City to either rule out permittee as the interference source or eliminate the interference. Cooperation with the City may include, but shall not be limited to, temporarily switching the transmission equipment on and off for testing.
6. 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, or removal of the facility.
7. General maintenance. The site and the facility, including but not limited to all landscaping, fencing, and related transmission equipment, shall be maintained in a neat and clean manner and in accordance with all approved plans and conditions of approval.
8. Good condition required. Wireless communications facilities shall at all times be kept and maintained in good condition, order, and repair by qualified maintenance and construction personnel, so that the same shall not menace or endanger the life or property of any person.
9. Graffiti abatement. Permittee shall remove any graffiti on the wireless communication facility at permittee's sole expense.
10. RF exposure compliance. All wireless communications facilities shall 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.
11. Relocation for public improvement projects. Permittee shall remove and relocate the permitted wireless communications facility at permittee's sole expense to accommodate construction of any public improvement project by the City.
12. Removal if discontinued use. In the event that the use of a wireless communications facility is discontinued, the owner shall provide written notice to the City of its intent to discontinue use and the date when the use shall be discontinued. If a wireless communications facility is not removed within ninety (90) days of discontinued use, the City may remove it at the owner's expense irrespective of the notice requirement under this section.
13. Taxes and assessments. To the extent taxes or other assessments are imposed by taxing authorities on the use of City property as a result of an applicant's use or occupation of the right of way, the applicant shall be responsible for payment of such taxes, payable annually unless otherwise required by the taxing authority.
14. Prevention of failures and accidents. Any person who owns a wireless communications facility sited in the right of way shall at all times employ ordinary and reasonable care and install and maintain in use nothing less than the best available technology for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public.
15. Compliance with fire safety and FCC regulations. Wireless communications facilities, wires, cables, fixtures, and other equipment shall be installed and maintained in substantial compliance with the requirements of the National Electrical Code; all FCC, state, and local regulations; and in such manner that will not interfere with the use of other property.
16. Surety bond or equivalent fmancial tool for cost of removal. All owners shall procure and provide to the City a bond, or shall provide proof of an equivalent financial mechanism, to ensure compliance with all provisions of this section. The bond or equivalent financial method shall specifically cover the cost of removal of each wireless communications facility which the owner installs in the right of way in case the City has to remove or pay for removal of the wireless facility. Two acceptable alternatives to a bond include a funds setaside and a letter of credit.