(a) The purpose of this section is to:
(1) Provide standards for the construction, installation, modification, operation, and removal of facilities and wireless support structures in the Village's right-of-way to protect the health, safety, and welfare of the citizens of the Village;
(2) Preserve the character of the Village, including the Village's neighborhoods and downtown;
(3) Give guidance to wireless telecommunications providers to assist such companies in the timely, efficient, safe, and aesthetically pleasing installation of facilities and wireless support structures; and
(4) Comply with, and not conflict with or preempt, all applicable state and Federal laws.
(b) For the purpose of this section, and the interpretation and enforcement hereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:
(1) "Applicant" means any person or entity who submits an application pursuant to this chapter.
(2) "Application" means all necessary documentation submitted by an applicant to obtain a small cell use permit from the Village to collocate a small cell facility and/or to construct, maintain, modify, operate, or replace a wireless support structure.
(3) "Accessory equipment" means equipment used in conjunction with a small cell facility and generally at the same location of the small cell facility, including, but not limited to, electric meters, concealment elements, telecommunications demarcation boxes, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs.
(4) "Collocation" or "collocate" means to install, mount, maintain, modify, operate, or replace wireless facilities on a wireless support structure.
(5) "Design guidelines" means those detailed design guidelines, specifications, and examples adopted by the Mayor or the Mayor's designee pursuant to division 1024.10.11 of this section for the design and installation of small cell facilities and wireless support structures, which are effective insofar as they do not conflict with state and Federal law, rule and regulations.
(6) "Eligible facilities" or "eligible support structure request" means any request for modification of an existing support structure or base station that does not substantially change the physical dimension of such support structure involving collocation of new facilities, removal of facilities, or replacement of facilities. A substantial change means:
A. A modification that changes the physical dimension of a wireless support structure by increasing the height of the wireless support structure by more than ten percent or more than ten feet, whichever is greater, and/or by adding an appurtenance to the body of the wireless support structure that would protrude from the edge of the wireless support structure by more than six feet;
B. The installation of more than the standard number of equipment cabinets for the technology involved or the installation of more than four cabinets, whichever is less;
C. The installation for any new ground-mounted equipment cabinets if there are not existing ground-mounted equipment cabinets;
D. Any excavation or deployment outside of the current site of the facility;
E. Removal of any concealment elements of the facilities or the wireless support structure; and
F. Any change that does not comply with this chapter, the Design Guidelines established by the Mayor or the Mayor's designee, or state or Federal law and regulations.
The threshold for measuring increases that may constitute a substantial change are cumulative, measured from the facilities as originally permitted (including any modifications that were reviewed and approved by the Village prior to the enactment of the Spectrum Act on February 22, 2012.)
(7) "Facilities" means small cell facilities, accessory equipment, and wireless support structures.
(8) "Facilities operator" means the person or entity responsible for the installation, operation, maintenance, replacement, and modification of facilities. Facilities operator includes:
A. Operators;
B. Applicants who applied for consent to collocate a small cell facility or to construct, maintain, modify, operate, or replace a new wireless support structure pursuant to R.C. § 4939.031(E) and who have obtained a small cell use permit; and
C. Applicants who applied for consent to collocate a small cell facility or to construct, maintain, modify, operate, or replace a new wireless support structure pursuant to R.C. § 4939.033 and who have obtained a small cell use permit.
(9) "Operator" means a wireless service provider, cable operator, or a video service provider that operates a small cell facility and provides wireless service, including a wireless service provider, cable operator, or a video service provider that provides information services as defined in the "Telecommunications Act of 1996," 110 Stat. 59, 47 U.S.C. 153(20), and services that are fixed in nature or use unlicensed spectrum.
(10) "Public way" or "right-of-way" means the surface of, and the space within, through, on, across, above, or below any public street, public road, public highway, public freeway, public lane, public path, public alley, public court, public sidewalk, public boulevard, public parkway, public drive, public easement, and any other land dedicated or otherwise designated for a comparable public use, which is owned or controlled by the Village or other public entity or political subdivision.
(11) "Small cell facility" means a wireless facility that meets both of the following requirements:
A. Each antenna is located inside an enclosure of not more than six cubic feet in volume or, in the case of an antenna with exposed elements, the antenna and all of its exposed elements can fit within an enclosure of not more than six cubic feet in volume; and
B. All other wireless equipment associated with the facility is cumulatively not more than 28 cubic feet in volume. The calculation of equipment volume shall not include electric meters, concealment elements, telecommunications demarcation boxes, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs for the connection of power and other services.
(12) "Small cell equipment" means a small cell facility and all accessory equipment.
(13) "Small cell use permit" means the permit granted by the Village authorizing the applicant to collocate a small cell facility or to construct, maintain, modify, operate, or replace a wireless support structure in the right-of-way.
(14) "Village" means the Village of Bentleyville, Ohio.
(15) "Wireless support structure" means a pole, such as a monopole, either guyed or self-supporting, street light pole, traffic signal pole, a 15 foot or taller sign pole, or utility pole capable of supporting small cell facilities. As used in this section, "wireless support structure" excludes all of the following:
A. A utility pole or other facility owned or operated by a municipal electric utility; and
B. A utility pole or other facility used to supply traction power to public transit systems, including railways, trams, streetcars, and trolleybuses.
(a) Any person or entity seeking to collocate a small cell facility in the right-of-way, or to construct, maintain, modify, operate, or replace a wireless support structure in the right-of- way, shall first file a written application for a small cell use permit with the Building Official in accordance with the requirements in this chapter, the Design Guidelines established by the Mayor or the Mayor's designee, R.C. Chapter 4939, and all applicable state and Federal laws and regulations.
(b) Applicants are strongly encouraged to contact the Building Official and request a pre-application conference. This meeting will provide an opportunity for early coordination regarding proposed facilities, locations, design, application submittal, and the approval process in order to avoid any potential delays in the processing of an application and deployment of facilities in the Village.
(c) A small cell use permit granted under this chapter shall not convey any right, title, or interest in the right-of-way, but shall be deemed a permit only to use and occupy the public ways for the limited purposes and term stated in the permit, this chapter, and the Design Guidelines established by the Mayor or the Mayor's designee. Further, no small cell use permit shall be construed as any warranty of title.
(a) Type 1: Eligible facilities requests.
(b) Type 2: Application for collocation of small cell equipment on a wireless support structure that does not constitute an eligible facilities request.
(c) Type 3: New wireless support structure. Such applications will address construction, modification, replacement, or removal of a wireless support structure within the right-of-way. At the time of application, applicants shall certify that small cell equipment will be placed on the wireless support structure within 180 days from the date the small cell use permit is issued.
(a) Pursuant to R.C. § 4939.0312, an applicant may file one consolidated application for up to 30 individual small cell facilities or 30 individual wireless support structures as long as the facilities or structures for which consent is requested are substantially similar.
(1) Small cell facilities shall be considered substantially similar when the small cell equipment is identical in type, size, appearance, and function.
(2) Wireless support structures shall be considered substantially similar when the wireless support structures are identical in type, size, appearance, and function and are to be located in a similar location.
(3) Applications for facilities and wireless support structures cannot be commingled.
(b) The Village may, at its discretion, require separate applications for any small cell facilities or wireless support structures that are not substantially similar.
(a) The fee for each application is two hundred fifty dollars ($250.00). The Village shall adjust the fee by ten percent every five years, rounded to the nearest five dollars ($5.00), beginning in the year 2023.
(b) An application shall not be deemed complete until the fee is paid.
(c) If applications are consolidated, then the fee shall be the sum resulting from the fee set forth in division (a) multiplied by the total number of facilities or wireless support structures included in the consolidated application.
(a) In addition to the application fee, an annual fee shall be paid to the Village for each small cell facility attached to a municipally-owned wireless support is two hundred dollars ($200.00). The Village shall adjust the attachment fee by ten percent every five years, rounded to the nearest five dollars ($5.00), beginning in the year 2023.
(b) The first-year attachment fee shall be paid when the collocation is complete, and no later than January 1 each year thereafter. The first-year attachment fee shall not be prorated, regardless of the date that the collocation is complete.
(a) Completed application form including the identity, legal status, and Federal tax identification number of the applicant, as well as all affiliates and agents of the applicant that will use or be, in any way, responsible for the facilities.
(b) The name, address, and telephone number of the local officer, agent, or employee responsible for the accuracy of the application to be notified in case of emergency.
(c) Fully dimensional scaled site plan (scale no smaller than one inch equals 40 feet). The site plan must include:
(1) The exact proposed location of the facilities within the right-of-way;
(2) All existing facilities with all existing transmission equipment;
(3) The location of all overhead and underground public utilities, telecommunications, cable, water, sanitary sewer, and storm water drainage utilities in the public way within 100 feet surrounding the proposed facilities;
(4) The legal property boundaries within 100 feet surrounding the proposed facilities;
(5) Indication of distance between the facilities and existing curbs, driveways, sidewalks, trees, utilities, other poles, and existing buildings within 100 feet surrounding the proposed facilities; and
(6) Access and utility easements within 100 feet surrounding the proposed facilities.
(d) Elevation drawings (scale no smaller than one inch equals ten feet) of the proposed facilities.
(e) Evidence that the applicant provided notice by mail to all property owners within 300 feet of the proposed facilities prior to submitting the application. The notice shall include:
(1) Name of the applicant;
(2) Estimated date applicant intends to submit the application;
(3) Detailed description of the proposed facilities and the proposed location; and
(4) Accurate, to-scale photo simulation of the proposed facilities. The scale shall be no smaller than one inch equals 40 feet.
(f) A preliminary installation/construction schedule and completion date.
(g) Structural calculations prepared, stamped, and signed by an engineer licensed and registered by the State of Ohio showing that the wireless support structure can accommodate the weight of the proposed small cell equipment.
(h) Analysis demonstrating that the proposed facilities do not interfere with the Village's public safety radio system, traffic and emergency signal light system, or other Village safety communications components. It shall be the responsibility of the applicant to evaluate, prior to making the application for a small cell use permit, the compatibility between the existing Village infrastructure and applicant's proposed facilities.
(i) A landscape plan that demonstrates screening of proposed small cell equipment.
(j) Drawings of the proposed facilities. For all equipment depicted, the applicant must also include, if applicable:
(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 noise level generated by the equipment, if any.
(k) If the applicant is not an operator, then the applicant must provide proof that the applicant has been engaged by a wireless service provider who will be the end-user of the facilities.
(a) Applications shall be evaluated in the timeframes as follows:
(1) Type 1 applications: 60 days
(2) Type 2 applications: 90 days
(3) Type 3 applications: 120 days
(b) Applications shall be reviewed for completeness. If the application is incomplete, then the applicant will be notified of the insufficiency, and the timeframes set forth in division (a) shall be tolled until the application is made complete.
(c) The timeframes set out in division (a) may also be tolled as follows:
(1) If the Village receives between 15 and 30 applications in a 30 day period, then the Village may toll for an additional 20 days.
(2) If the Village receives more than 30 applications in a 30 day period, then the Village may toll for an additional 15 days for every 15 applications received.
(3) By mutual agreement between the applicant and the Village.
(4) When an applicant submits an underground area waiver pursuant to the Design Guidelines established by the Mayor or the Mayor's designee, in which case the Village may toll for an additional 14 days.
(d) If two applicants request to collocate on the same wireless support structure or two wireless support structures are proposed within a distance that would violate the spacing requirements set forth in division 1024.10.17 of this section, then the Building Official may resolve the conflict in any reasonable and nondiscriminatory manner.
(e) If a request for consent is denied, the Village shall provide, in writing, its reasons for denying the request, supported by substantial, competent evidence. The denial of consent shall not unreasonably discriminate against the applicant. Grounds for denying an application may include, but are not limited to:
(1) Failure to provide information required under division 1024.10.07 of this section;
(2) Failure to comply with the Design Guidelines established by the Mayor or the Mayor's designee;
(3) Failure to provide financial surety pursuant to division 1024.10.16 of this section;
(4) Failure to remove abandoned facilities as required under division 1024.10.13 of this section;
(5) Conflict with the historic nature or character of the surrounding area;
(6) Conflict with planned future improvements in the right-of-way; and
(7) Failure to comply with generally applicable health, safety, and welfare requirements.
(a) Upon approval of its application, an applicant shall receive a small cell use permit indicating that the Village has granted the applicant consent to occupy the right-of-way.
(b) A small cell use permit issued to an operator shall have duration of no longer than ten years. Permits may be renewed for five year terms.
(c) A small cell use permit issued to a facilities operator who is not an operator shall have a term of ten years or the duration of the facilities operator's agreement with a wireless service provider provided pursuant to division 1024.10.07(k) of this section, whichever is shorter.
(d) A small cell use permit shall not be renewed if the facilities operator or the facilities are not in compliance with all applicable laws and regulations.
(e) Pursuant to R.C. § 4939.0314(E), a small cell use permit shall be deemed terminated if the facilities operator has not completed construction of the facilities or has failed to attach small cell equipment to a wireless support structure within 180 days of issuance of the permit, unless the delay is caused by:
(1) Make-ready work for a municipally-owned wireless support structure; or
(2) Due to the lack of commercial power or backhaul availability at the site, provided that the operator has made a request for commercial power or backhaul services within 60 days after the small cell use permit was granted.
If the additional time to complete the installation exceeds 360 days after the issuance of the permit, then the permit shall be deemed terminated regardless of the cause of the delay.
(f) A small cell use permit for a new wireless support structure shall be deemed terminated if the facilities operator fails to attach small cell equipment to the new wireless support structure within 180 days of issuance of the small cell use permit.
(g) If the facilities operator fails to remit the annual attachment fee required pursuant to division 1024.10.06 of this section, then the small cell use permit will expire on the 90th day from the date the annual attachment fee was due.
(h) A small cell use permit may be terminated by the facilities operator at any time upon service of 60 days written notice to the Village.
(i) Upon termination of a small cell use permit, the facilities operator shall restore and rehabilitate all Village-owned wireless support structures and the right-of-way to their former condition and utility.
(j) The Village shall not issue any refunds for any amounts paid by the facilities operator upon termination of the permit.
(a) All facilities operators with consent to occupy or use the right-of-way shall register with the Village each calendar year between January 1 and January 31 on a form provided by the Village. The form will allow the facilities operator to indicate when there is no change in the information required, and when such indication is submitted, previously provided information will be considered current and will be relied upon. Facilities operators who obtain consent to occupy the right-of-way after September 30 of any year need not file an annual registration for next calendar year.
(b) The purpose of registration under this section is to:
(1) Compile, update, and supplement the Village's database so that the Village has accurate and current information concerning the facilities operators that own or operate facilities in the Village or in the Village's public right-of-way;
(2) Assist the Village in monitoring the usage of the public right-of-way in order to ensure that the public receives the maximum possible benefit from that use, and the use is consistent with the best management and care of the public right-of-way;
(3) Assist the Village in the collection and enforcement of any municipal taxes, fees, or other charges that may be due the Village; and
(4) Assist the Village in monitoring compliance with local, state, and Federal laws.
(c) Registration forms will be provided by the Village and shall require the following information:
(1) Any material changes to the information the facilities operator provided to the Village in the application for small cell use permit including, but not limited to:
A. The identity, legal status, and Federal tax identification number of the facilities operator, including any affiliates or agents.
B. The name, address, and telephone number of the local officer or agent employee responsible for the accuracy of the facilities operator's registration statement and available at all reasonable times to be notified in case of emergency.
C. Evidence that the facilities operator is in compliance with the insurance, indemnity, and financial surety requirements pursuant to this section.
D. Such other information as the Building Official may reasonably require.
(d) In addition to the annual registration requirement, each facilities operator shall keep all required registration information current at all times and shall provide the Village with notice of changes to the required information within 15 days following the date on which the facilities operator has notice of the need for such change.
(a) The Mayor or the Mayor's designee shall promulgate detailed Design Guidelines with objective, technically feasible criteria applied in non-discriminatory manner that reasonably match the aesthetics and character of the immediate area regarding all of the following, which the Village shall consider in reviewing an application:
(1) The location of any ground-mounted small cell facilities;
(2) The location of a small cell facility on a wireless support structure;
(3) The appearance and concealment of small cell facilities, including those relating to materials used for arranging, screening, and landscaping;
(4) The design and appearance of a wireless support structure.
(b) The Design Guidelines shall provide examples of small cell facility preferences including visual depictions.
(c) The provisions in this section shall not limit or prohibit the Mayor's discretion to promulgate and make publicly available other information, materials, or requirements in addition to, and separate from, the Design Guidelines, so long as the information, materials, or requirements do not conflict with state or Federal law.
(d) The Mayor or the Mayor's designee shall have authority to update or supplement the Design Guidelines to address relevant changes in law, technology, or administrative process. In the event of any conflict between the Design Guidelines and the standards articulated in this chapter, the language of this chapter shall take precedence over the language of the Design Guidelines.
(a) Facilities in the right-of-way that are legally in existence on the date of the adoption of this section but that do not comply with the requirements of this section may remain in the right-of-way but shall be considered a nonconforming facility.
(b) Any person or entity who owns or operates a nonconforming facility shall register such facility pursuant to division 1024.10.10 within 90 days of the date this section takes effect.
(c) If a nonconforming facility is damaged or destroyed beyond repair, any replacement facility must be designed in accordance with all provisions of this chapter, the Design Guidelines established by the Mayor or the Mayor's designee, and state and Federal law and regulations.
(a) A facilities operator shall provide written notice to the Village of its intent to discontinue use of any facilities. The notice shall include the date the use will be discontinued. If facilities are not removed within 365 days from the date the use was discontinued, the facilities shall be considered a nuisance and the Village may remove the facilities at the expense of the facilities operator.
(b) In the event that facilities are damaged, the facilities operator shall promptly repair the damaged facilities. Damaged facilities shall be repaired no later than 30 days after obtaining written notice that the facilities were damaged. If the damaged facilities are not repaired within 30 days, then the damaged facilities shall be considered a nuisance and the Village may repair or remove the facilities at the expense of the facilities operator.
(a) As a condition of the Village's consent to occupy the right-of-way, a facilities operator must secure and maintain the following liability insurance policies insuring both the facilities operator and the Village, and its elected and appointed officers, officials, agents, and employees as additional insureds:
(1) Comprehensive general liability insurance with limits not less than:
A. Five million dollars ($5,000,000) for bodily injury or death to each person;
B. Five million dollars ($5,000,000) for property damage resulting from any one accident; and
C. Five million dollars ($5,000,000) for all other types of liability.
(2) Automobile liability for owned, non-owned, and hired vehicles with a limit of three million dollars ($3,000,000) for each person and three million dollars ($3,000,000) for each accident.
(3) Worker's compensation within statutory limits and employer's liability insurance with limits of not less than one million dollars ($1,000,000).
(4) Comprehensive form premises-operations, explosions and collapse hazard, underground hazard, and products completed hazard with limits of not less than three million dollars ($3,000,000).
(b) Each such insurance policy shall contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until ninety (90) days after receipt by the Village, by registered mail, of a written notice addressed to the Mayor of such intent to cancel or not to renew."
(c) Within 60 days after receipt by the Village of said notice pursuant to division 1024.10.14(b) of this section, and in no event later than 30 days prior to said cancellation, the facilities operator shall obtain and furnish to the Village replacement insurance policies meeting the requirements of this division.
1024.10.15 Indemnification. A facilities operator shall indemnify, protect, defend, and hold the Village and its elected officials, officers, employees, agents, and volunteers harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees to include reasonable attorney fees and costs of defense, proceedings, actions, demands, causes of action, liability, and suits of any kind and nature, including personal or bodily injury or death, property damage, or other harm for which recovery of damages is sought, to the extent that it is caused by the negligence of the operator who owns or operates facilities in the right-of-way, any agent, officer, director, representative, employee, affiliate, or subcontractor of the operator, or their respective officers, agents, employees, directors, or representatives while installing, repairing, or maintaining facilities in the right-of-way.
(a) Each facilities operator must procure and provide to the Village a bond, escrow, deposit, letter of credit, or other financial surety to ensure compliance with this chapter and R.C. Chapter 4939. The financial surety must be in an amount sufficient to cover the cost of removal of all facilities owned or operated by the facilities operator.
(b) The Village may, in its sole discretion, draw on the financial surety to remove abandoned facilities, remove or repair damaged facilities, or to repair damage to any Village properly caused by the facilities operator or its agent. In such event, the facilities operator shall cause the financial surety be replenished to its prior amount within ten business days after the Village notifies the facilities operator that it has drawn on the financial surety.
1024.10.17 Reserved Space. The Village reserves the right to install, and permit others to install, facilities in the right-of-way. The Village may reserve space in the right-of-way and on wireless support structures for future utility, safety, or transportation uses. Such space may be reserved in an ordinance or plan approved by the Mayor, Village Council, Building Official, or Planning & Zoning Commission.
(a) The Village may require a facilities operator to remove or relocate facilities to accomplish construction and maintenance activities. The facilities operator shall remove or relocate the facilities at no cost to the Village. If the facilities operator fails to remove or relocate the facilities within 90 days of receiving a request to do so from the Village, then the Village may remove the facilities at facilities operator's sole cost and expense, without further notice to the facilities operator.
(b) If the facilities are placed in a location other than the location approved by the Village, the facilities operator shall relocate the facilities within 30 days of receiving notice that the facilities are located improperly.
(a) Any person or entity found guilty of violating, disobeying, omitting, neglecting, or refusing to comply with any of the provisions of this chapter shall be fined not less than one hundred dollars ($100.00) nor more than five hundred dollars ($500.00) for each offense. A separate and distinct offense shall be deemed committed each day during or on which a violation occurs or continues.
(b) Nothing in this chapter shall be construed as limiting any judicial remedies that the Village may have, at law or in equity, for enforcement of this chapter.
(Ord. 2018-36. Passed 9-19-18.)