§ 96.037  COLLOCATION OF SMALL WIRELESS FACILITIES IN PUBLIC WAYS.
   (A)   Collocation of small wireless facilities meeting the height requirements of G.S. 160A-400.55(b) are subject to all requirements of the town's Uniform Development Ordinance. In addition, small wireless collocations require written authorization in a form approved by the town and are subject to all the foregoing provisions of this chapter except where clarified or altered by the terms of this section. For other small wireless facilities, see division (B) below.
      (1)   General.
         (a)   Wireless providers may occupy and use the public way to collocate small wireless facilities to provide wireless services upon, along, over and under the public way in the town such that such collocations do not inhibit other utility installations within the public way.
         (b)   The town retains its right to impose fees and charges to the extent not prohibited by federal and state law. 
         (c)   Wireless services providers shall pay taxes for telecommunications services that are subject to taxation.
         (d)   Small wireless providers shall obtain approvals legally necessary to use the public way from owners, other than the town, of property interests in the public way or adjacent to the roadway system located within the town.
         (e)   Nothing in this section shall be deemed or construed to stop or limit the town from exercising any regulatory, police, governmental, or legislative function pursuant to applicable law, which powers include, but are not limited to, the authority to enact regulations, ordinances, rules, and orders not prohibited by state or federal law that affect the public way or a wireless provider's use of the public way.
         (f)   The terms of this section do not permit the wireless services provider to operate a cable system or to provide cable service, as those terms are defined by Section 602 of the Cable Communications Policy Act of 1984, as amended (47 U.S.C. Section 522), and the wireless services provider agrees that it will not operate a cable system or provide cable service in the town unless it obtains authorization from the town.
         (g)   This section only permits the wireless provider, upon obtaining required approvals and permits, to place small wireless facilities in those portions of the public way specifically approved by the Administrator.
         (h)   Collocation of small wireless facilities shall commence within six months of permit issuance and shall be activated for use no later than one year from the permit issuance date. Failure to commence collocation within six months of permit issuance shall void said permit. A small wireless facility not activated within one year of permit issuance shall be considered abandoned and shall be removed from the public way at the wireless provider's sole expense.
         (i)   No more than 25 small wireless facilities may be included in a single permit application.
         (j)   For general public safety and design purposes, documentation of compliance with the structural, operational, and insurance requirements for wireless communication facilities as found in the Unified Development Ordinance shall be required for all small wireless facility installations, unless superseded by this section.
         (k)   Historic preservation requirements of the Unified Development Ordinance shall apply to all permit applications, as applicable.
      (2)   Requirements for new poles.
         (a)   If possible, poles shall be designed to accommodate small wireless facilities for multiple wireless services providers.
         (b)   Poles shall be located a minimum of 15 feet from any tree, measured to the tree-trunk center. Additionally, 80% of the root protection zone shall remain undisturbed. The root protection zone shall either be a six-foot radius around the tree or a one-foot radius for every inch of tree diameter at breast height, whichever is greater. This minimum separation shall not apply for a new pole that replaces an existing pole, where the new pole is installed in the same place as, or immediate vicinity of, the existing pole.
         (c)   Poles shall be designed and installed with materials and appearance consistent with existing poles in the adjacent public way, unless materials and appearance are prescribed by other ordinance, law, or town requirements.
         (d)   To the extent practicable, all accessory cables and equipment shall be installed within the pole and/or placed underground per Town Code and Unified Development Ordinance undergrounding requirements. If any equipment cannot be installed underground, then it shall be installed on or at the base of the pole and concealed with skirting compatible with, and integrated into, the design of the pole.
      (3)   Pedestrian and vehicular movement requirements.
         (a)   No small wireless facility, structure, or associated equipment shall impede or interfere with pedestrian or vehicular movement, circulation, or visibility. Specifically, no small wireless facility, structure, or associated equipment shall:
            1.   Extend into an existing or proposed sidewalk or walkway, trail, bicycle parking area unless such extension provides at least eight feet vertical clearance;
            2.   Extend into an existing or proposed driveway, or vehicular parking area unless such extension provides at least 15 feet vertical clearance.
            3.   Extend into any motor vehicle travel lane.
         (b)   No new installation shall be installed within sight distance triangles pursuant to the requirements of this chapter and the Unified Development Ordinance.
         (c)   Installations that replace existing poles or collocate onto existing facilities already located within sight distance triangles shall not locate or install equipment that diminishes visibility relative to existing conditions. This requirement can be waived pursuant to Unified Development Ordinance standards for alternative dimensions.
      (4)    Information required. Prior to applying for authorization to install any portion of its small wireless facilities, a wireless provider shall provide the following information to the Administrator in addition to what is normally required for approval of an encroachment:
         (a)   The identity and corporate form of the wireless provider and affiliates who will perform work in the town's public way;
         (b)   The name and contact information for the officer, agent, or employee of the wireless provider responsible for communications with the town;
         (c)   A statement as to whether the services provided are telecommunications services taxed under G.S. 105-164.4(a)(4c) or are video programming taxed under G.S. 105-164.4(a)(6); and
         (d)   Attestation that small wireless facilities will be collocated on the utility pole, town utility pole, or wireless support structure, and that the small wireless facilities shall be activated for use by a wireless provider to provide service no later than one year from the permit issuance date.
      (5)   Relocation of facilities.
         (a)   Wireless providers shall, at no cost to the town, relocate or remove portions of its small wireless facilities located in the public way in the event the public way is closed, or if the Administrator, in the Administrator's sole discretion, determines that the location of a small wireless facility interferes with the efficient provision of utility services to town residents, or interferes with public safety and welfare, or conflicts with any highway, sidewalk, trail, or utility project, or that the public way can be better or more efficiently utilized by the removal and relocation or consolidation of certain existing facilities. The Administrator shall provide the wireless provider 180 days' written notice prior to the required relocation or removal of small wireless facilities.
         (b)   Except in the case of emergency repairs, before the wireless provider constructs, installs, upgrades, repairs or removes small wireless facilities along a portion of the public way, wireless providers shall provide notice to the Administrator per § 96.028.
      (6)   Construction, inspection, restoration, and removal.
         (a)   At the Administrator's request, as built maps in such further detail as the Administrator may require shall be provided no more than 60 days following the conclusion of construction.
         (b)   Wireless providers will advise the Administrator of any significant discrepancy between construction plans and actual construction.
         (c)   Wireless providers shall advise the Administrator if, during construction of small wireless facilities, such construction is within six feet of any water or sewer facilities.
         (d)   Engineering, construction and as-built documents shall be provided in hard copy (paper) and/or electronic copy as requested by the Administrator.
         (e)   In addition to design maps and as-built maps, wireless providers shall provide such other information regarding existing facilities in the public way, in such detail, as the Administrator may require.
         (f)   The wireless provider shall comply with all applicable federal, state and local regulations, such as the National Electrical Code, National Electrical Safety Code, fiber optic cable installation specifications, 1987 telecommunication industry committee standards, traffic safety/lane closure rules and construction requirements promulgated by the town and the North Carolina Department of Transportation as amended.
         (g)   The Administrator may inspect the small wireless facilities and restoration work performed by the wireless provider.
         (h)   The wireless provider shall notify the Administrator when it has completed each permitted portion of its small wireless facilities; or at such other time the Administrator requests. Following inspection, the wireless provider shall make any corrections necessary to bring the permitted installation into conformance with town requirements.
         (i)   The Administrator may approve the performance of repair or emergency work without issuance of a permit. When it is impossible for wireless provider to give the Administrator notice of repair work because of the unexpected, emergency nature of such work, wireless provider may perform such work provided notice is given to the Administrator as promptly as possible after the commencement of such work and a permit request is submitted retroactively or within two working days.
      (7)   Processing of applications.
         (a)   A small wireless permit application shall be deemed complete unless the Administrator provides notice otherwise in writing to the applicant within 30 days of submission or within some other mutually agreed upon time frame. The notice shall identify the deficiencies in the application which, if cured, would make the application complete. The application shall be deemed complete on resubmission if the additional materials cure the deficiencies identified.
         (b)   The application shall be deemed approved if the Administrator fails to approve or deny the application within 45 days from the time the application is deemed complete or within some other mutually agreed upon time frame between the Administrator and the applicant.
         (c)   1.   The Administrator may deny an application only on the basis that it does not meet one or more of the following:
               A.   The town's applicable codes;
               B.   Local code provisions or regulations that concern public safety, objective design standards for decorative utility poles, city utility poles, or reasonable and nondiscriminatory stealth and concealment requirements, including screening or landscaping for ground-mounted equipment;
               C.   Public safety and reasonable spacing requirements concerning the location of ground-mounted equipment in a right-of-way; or
               D.   Historic preservation requirements.
            2.   The Administrator must document the basis for a denial and send the documentation to the applicant on or before the day the Administrator denies an application. The applicant may seek to cure the deficiencies identified by the Administrator and resubmit the application within 30 days of the denial without paying an additional application fee. The Administrator shall approve or deny the revised application within 30 days of the date on which the application was resubmitted. Any subsequent review shall be limited to the deficiencies cited in the prior denial.
         (d)   In the event of a consolidated application for multiple facility collocations, the Administrator may remove and treat separately any facility collocations:
            1.   For which incomplete information has been provided; or
            2.   That are denied.
      (8)   Collocation of small wireless facilities on town utility poles.
         (a)   Request to collocate on town utility pole. The Administrator shall grant non-exclusive authorizations for collocations of small wireless facilities on town utility poles consistent with such terms, fees and conditions as Town Council may adopt consistent with G.S. § 160A-400.56. A request to collocate on a town utility pole may be denied if there is insufficient capacity or for reasons of safety, reliability, and generally applicable engineering principles, and those limitations cannot be remedied by rearranging, expanding, or otherwise reengineering the facilities at the reasonable and actual cost of the town to be reimbursed by the wireless provider. An applicant permitted to collocate on a town utility pole under this section must demonstrate compliance with applicable safety requirements, including the National Electrical Safety Code and the applicable rules and regulations issued by the Occupational Safety and Health Administration.
         (b)   Make-ready work. The Administrator shall provide a good-faith estimate for any make-ready work necessary to enable a town utility pole to support a requested collocation, including pole replacement if necessary, within 60 days after receipt of a complete application. Make-ready work, including any pole replacement, shall be completed within 60 days of written agreement on the cost of the work.
      (9)   Abandonment. Wireless providers shall remove all abandoned small wireless facilities within 180 days of abandonment. Should the wireless provider fail to timely remove the abandoned wireless facility, the Administrator may cause such small wireless facility to be removed and the town may recover the actual cost of such removal, including legal fees, if any, from the wireless provider. A small wireless facility shall be deemed abandoned at the earlier of the date that the wireless provider indicates that it is abandoning such facility or the date that is 180 days after the date that such small wireless facility ceases to transmit a signal, unless the wireless provider gives the Administrator reasonable evidence that it is diligently working to place such small wireless facility back in service.
      (10)   Exceptions to application and permitting requirements. No application or written authorization is required for:
         (a)   Routine maintenance;
         (b)   The replacement of small wireless facilities with small wireless facilities that are the same size or smaller; or
         (c)   Installation, placement, maintenance, or replacement of micro wireless facilities that are suspended on cables strung between existing utility poles or city utility poles in compliance with applicable codes by or for a communications service provider authorized to occupy the city rights-of-way and who is remitting taxes under G.S. 105-164.4(a)(4c) or G.S. 105-164.4(a)(6); provided, however, that written authorization is required for excavations or other work otherwise required to be permitted under this chapter.
   (B)   All other small wireless facilities shall be subject to all applicable provisions of this chapter and the Unified Development Ordinance.
(Ord. passed 9-17-2019)