§ 122.10  NON-EXCLUSIVITY; CHARGES; PERMITTED USE AND RIGHT-OF-WAY CRITERIA.
   This section applies only to activities of a wireless provider within the right-of-way to deploy small wireless facilities and associated utility poles.
   (A)   The municipality shall not enter into an exclusive arrangement with any person for use of the right-of-way.
   (B)   Subject to the other provisions of this chapter, the municipality may only charge a wireless provider on a nondiscriminatory basis the rate or fee provided in the Act for the use of any right-of-way for the collocation of small wireless facilities or the installation, maintenance, modification, operation, or replacement of a utility pole in the right-of-way if the authority charges other entities for the use of the right-of-way.
   (C)   Except as provided in this chapter, a wireless provider shall have the right, as a permitted use not subject to zoning review or approval, to collocate small wireless facilities and install, maintain, modify, operate, and replace utility poles along, across, upon, and under the right-of-way so long as such facilities and poles do not obstruct or hinder the usual travel or public safety on such right-of-way or obstruct the legal use of such right-of-way by utilities or the safe operation of their systems or provision of service. Small wireless facilities to be located in an airport hazard area shall comply with any regulations governing such area.
   (D)   Placement. This chapter only applies to the deployment of small wireless facilities in the right-of-way with the exception that the application fees provided in the FCC's Declaratory Ruling and Third Report and Order released September 27, 2018, apply to small wireless facilities in and outside of the right-of-way.
   (E)   Height limitations.
      (1)   Any new or modified utility pole installed in a right-of-way shall not exceed the greater of:
         (a)   Five feet in height above the tallest existing utility pole in place as of the effective date of the Act located within 500 feet of the new utility pole in the same right-of-way; or
         (b)   Fifty feet above ground level.
      (2)   New small wireless facilities in a right-of-way shall not extend more than the greater of:
         (a)   Fifty feet in height, including antenna; or
         (b)   More than five feet above an existing utility pole in place as of the effective date of the Act and located within 500 feet in the same right-of-way.
      (3)   The municipality shall have the right, at its sole discretion and subject to applicable nondiscriminatory regulations, to consider and approve an application to install a utility pole or wireless support structure that exceeds the height limits in this division for the right to collocate a small wireless facility and install, maintain, modify, operate, and replace a utility pole that exceeds such height limits along, across, upon, and under a right-of-way.
   (F)   An applicant may request approval from the municipality, as part of the application process, to replace a decorative pole when necessary to collocate a small wireless facility. Any replacement decorative pole shall conform to the nondiscriminatory design aesthetics of the decorative pole being replaced.
   (G)   Except for facilities excluded from evaluation for effects on historic properties under 47 C.F.R. 1.1307(a)(4), as such regulation existed on January 1, 2019, the municipality shall have the right to require design or concealment measures in a historic district established prior to January 1, 2019. Such design or concealment measures shall be objective and directed to avoid or remedy the intangible public harm of unsightly or out-of-character wireless facilities deployed at the proposed location. Any such design or concealment measures shall be reasonable, nondiscriminatory, and published in advance, and shall not be considered a part of the small wireless facility for purposes of the size restrictions of a small wireless facility.
   (H)   A public power supplier shall not be required to allow the collocation of small wireless facilities on utility poles owned, operated, or managed by a public power supplier except pursuant to a negotiated pole attachment agreement containing reasonable and nondiscriminatory terms and conditions, including, but not limited to, applicable rates, and the permit, operational, and safety requirements of the public power supplier.
(Ord. 1096, passed 8-27-2019)