(A) Location. While small cell facilities are permitted uses within all zoning districts within the city, deployment of small cell facilities within the city is subject to the standards set forth in this chapter.
(B) Height.
(1) Each new, or modified, pole installed in the right-of-way for the purpose of collocation of small wireless facilities shall not exceed the greater of:
(a) Fifty feet in height above ground level; or
(b) Ten percent taller than the tallest existing pole in place in the same right-of-way as of September 1, 2019, within 300 feet of the new, or modified, pole.
(2) A new small wireless facility in the right-of-way shall not extend more than 10% above the existing structure on which it is located, or 50 feet above ground level, whichever is greater.
(3) A wireless provider shall have the right to collocate a wireless facility and install, maintain, modify, and replace a pole that exceeds the height limits required under division (B)(1) above along, across, upon, and under the right-of-way, subject to this section, and any applicable zoning regulations.
(C) Location and design.
(1) A wireless provider shall not install a small wireless facility, or pole, in a historic district without complying with the requirements of general application for structures within the historic district.
(2) A wireless provider may replace decorative poles when necessary to deploy a small wireless facility, so long as the replacement reasonably conforms to the design of the original decorative pole.
(D) Damage and repair; replacements, abandonment, removal.
(1) (a) A wireless provider shall repair all damage to the right-of-way directly caused by the activities of the wireless provider in the right-of-way, and return the right-of-way to its functional, and aesthetic, equivalence before the damage under the competitively neutral, reasonable requirements, and specifications, of the city.
(b) If the wireless provider fails to make the repairs required by the city within a reasonable time after written notice, the city may make those repairs, and charge the applicable party the actual, and reasonable, documented cost, including overhead, of the repairs.
(2) (a) A wireless provider is not required to replace, or upgrade, an existing pole, except for reasons of structural necessity, or compliance with applicable codes.
(b) A wireless provider may, with the permission of the pole owner, replace, or modify, existing poles, but any such replacement, or modification, shall substantially conform to the design aesthetics of the pole being modified, or replaced.
(3) (a) A wireless provider shall notify the city at least 30 days before the wireless provider’s abandonment of a small wireless facility.
(b) If the wireless provider fails to remove the abandoned small wireless facility within 90 days after the notice, the city may undertake the removal, and recover the actual, and reasonable, documented cost, including overhead, of the removal from the wireless provider, or its successors or assigns.
(4) (a) The city may order the removal of a small wireless facility, or associated pole, in the right-of-way that violates A.C. §§ 23-17-505, 23-17-506, or applicable codes.
(b) The city shall provide written notice of the violation to the owner of the small wireless facility at least 30 days before removal to afford the owner the opportunity to conduct repairs or removal, or otherwise remedy the violation.
(5) (a) If the city determines that a wireless provider’s activity in a right-of-way under this section creates an imminent risk to public safety, the city may provide written notice to the wireless provider, and demand that the wireless provider address the risk.
(b) If the wireless provider fails to reasonably address the risk within 24 hours of the written notice, the city may take, or cause to be taken, action to reasonably address the risk, and charge the wireless provider the reasonable documented cost of the actions.
(6) A wireless provider shall not collocate a small wireless facility, or install, modify, or replace a pole in the right-of-way that:
(a) Materially interferes with the safe operation of traffic control equipment;
(b) Materially interferes with sight lines or clear zones for transportation, or pedestrians;
(c) Materially interferes with compliance with the Americans with Disabilities Act of 1990, being 42 U.S.C. §§ 12101 et seq., or similar federal, or state, standards regarding pedestrian access, or movement; or
(d) Fails to comply with applicable codes.
(E) Collocation.
(1) This section applies to activities of a wireless provider collocating small wireless facilities on authority poles in the city’s right-of-way, or in a right-of-way controlled by the State Department of Transportation located within the city.
(2) (a) A person owning, managing, or controlling poles in the city, or state right-of-way, shall not enter into an exclusive arrangement with any person for the right to attach to the poles.
(b) A person who purchases, or otherwise acquires, a pole in the city, or state right-of-way, is subject to the requirements of this section.
(3) The city shall allow the collocation of small wireless facilities on authority poles on nondiscriminatory terms, and conditions, using the process in § 153.04(A).
(4) The rates to collocate on authority poles is provided in § 153.04(F)(13).
(5) (a) As part of an application to collocate a small wireless facility on an authority pole, the wireless provider shall submit make-ready design drawings, and work descriptions, that enable the pole to support the requested collocation by the wireless provider, including pole replacement, if necessary.
(b) The city may amend the make-ready design drawings, and work to comply with applicable codes before the issuance of a permit to the extent reasonably necessary.
(c) The rates, fees, and terms and conditions for the make-ready work to collocate on an authority pole shall be nondiscriminatory, competitively neutral, and commercially reasonable, and shall comply with this chapter.
(d) The city shall not require more make-ready work than required to meet applicable codes or industry standards, nor may the fees for make-ready work include costs related to preexisting, or prior, damage or non-compliance.
(6) (a) The city may require replacement of an authority pole only if the collocation would make the authority pole structurally unsound.
(b) The city may require that the replaced authority pole have the same functionality as the pole being replaced.
(c) If the authority pole is replaced, the city shall take ownership of the new pole, and operate authority fixtures on the pole.
(7) (a) Make-ready fees charged by the city may include the amount the authority pays a professional engineer registered in the state to review the wireless provider’s make-ready work plans.
(b) Fees for make-ready work shall not include any revenue, or contingency-based consultant’s fees, or expenses of any kind.
(8) Within 60 days of the receipt of the application filed to collocate on a city pole, the city shall elect to:
(a) Perform the make-ready work necessary to enable the pole to support the requested collocation by a wireless provider, and provide a good-faith estimate for the work, including pole replacement, if necessary; or
(b) Authorize the wireless provider to perform the make-ready work.
(9) (a) The city shall complete make-ready work it elects to perform, including any pole replacement, within 60 days of written acceptance of the good faith estimate of the applicant.
(b) If the city, electing to perform the make-ready work, has not completed the work within 60 days after the written acceptance, and deposit of the good faith estimate by the applicant, the applicant may demand a return of any deposited funds, and proceed with the make-ready work as described in division (E)(5) above, using authorized, qualified contractors approved by the city with the authorization not to be unreasonably withheld, conditioned, or delayed.
(10) The city, or other applicable authority, may reserve space on an authority pole for future public safety, or transportation, uses in a documented, and approved, plan in place at the time an application is filed.
(a) A reservation of space shall not preclude placement of a pole, or collocation of a small wireless facility.
(b) If replacement of the city’s pole is necessary to accommodate the collocation of the small wireless facility and the future use, the wireless provider shall pay for the replacement of the authority pole, and the replaced pole shall accommodate future use.
(F) Aesthetics.
(1) The aesthetic appearance of small wireless facilities, and associated poles, is regulated by the city to ensure coordinated, adjusted, and harmonious development, as provided in this section. The city may apply these requirements to areas of the city in which coordinated, adjusted, and harmonious development has been established through the use of overlay districts, or historical districts, which have been in existence at least 90 days prior to the passage of this chapter.
(2) These aesthetic standards shall adhere to the following requirements:
(a) Reasonable, in that they are technically feasible and reasonably directed to avoiding, or remedying, unsightly, or out-of-character, deployments;
(b) No more burdensome than those applied to other types of utility and communications infrastructure deployments;
(c) Objective, and published, at least 90 days in advance of the filing of an application under this chapter;
(d) Any design, or concealment, measures are not considered a part of the small wireless facility for purposes of the size parameters in the definition of small wireless facility; and
(e) The city may deny an application for not complying with aesthetic requirements only if the city finds that the denial does not prohibit, or have the effect of prohibiting, the provision of wireless service.
(3) The Board of Zoning Adjustment may:
(a) Hear appeals of the decision of the Administrative Officer in respect to the enforcement, and application, of the aesthetic standards, and may affirm, or reverse, in whole or in part, the decision of the Administrative Officer;
1. Decisions of the Administrative Officer shall be rendered to the applicant in writing; and
2. An appeal must be filed within ten days of the written decision of the Administrative Officer.
(b) Hear requests for variances from the literal provisions of the aesthetic standards, and grant the variances only when it is necessary to avoid the prohibition of wireless service, or otherwise comply with the law.
(4) Decisions of the Board, in respect to this section, shall be subject to appeal only to a court of record having jurisdiction.
(5) Equipment enclosures standards shall be:
(a) To the extent technically feasible, if the support structure is a pole, all radios and wireless communication equipment, except the antenna, shall be enclosed within an equipment cabinet, and housed at the base of the support structure, pole mounted (at a height, and placement, that will not interfere with pedestrian, cyclist, or vehicular movements), or below grade; and
(b) Where underground utilities are required by the provisions of this chapter, or other city adopted regulations or codes, ancillary equipment related to the small wireless facility shall be placed in an underground vault to the greatest extent possible.
(6) Design shall be consistent with the provisions of this section. A small wireless facility shall be installed using the following design approaches to the extent reasonable, including, without limitation, the following:
(a) For location on newly proposed wireless support structures, the following options are available:
1. New poles installed to support small wireless facilities shall be made of the same, or similar, material as existing poles in the immediate area;
2. In an area where other above ground utilities are present, the deployment of a new small cell facility shall be located on the same side of the street which the existing above ground utilities are located, and a similar style utility pole (as those utilized by existing above ground utilities) may be utilized;
3. In an area where the city has required all electrical, and communication, lines to be placed underground by a date certain that is three months before the submission of the application, or where undergrounding is required after small wireless facilities have been installed, an explanation as to why collocation, or use, of an existing structure, remaining pole, or replacement pole is not technically feasible shall be required. This shall apply to the location of all pole attached utilities, and shall include demonstration of a reasonable attempt to collocate, or utilize, an existing structure. A wireless provider may install a new pole in the designated area that otherwise complies with this section when it is not able to provide wireless service by collocating on an existing structure, remaining pole, or replacement pole;
4. When a wireless provider applies to install a new pole in the right-of-way in an area zoned for residential use, the city may propose an alternative location in the right-of-way within 100 feet of the location stated in the application, and the wireless provider shall use the city’s proposed alternative location, unless the location imposes technical limits, or significant additional costs. The wireless provider shall certify that it has made the determination in good faith, based on the assessment of a licensed engineer, and the wireless provider shall provide a written summary of the basis for the determination; and
5. The city may require wireless providers to comply with reasonable, and nondiscriminatory, horizontal spacing requirements of general application for new poles and ground-mounted small wireless facilities, but the requirements shall not prevent a wireless provider from serving any location.
(b) For location on existing pole structures:
1. Stealth antennas and mounts (completely encased, or screened, antennas, when possible, to approximately match the color of the existing poles). In the event that some antennas cannot be covered due to their operational wavelength, the applicant shall provide proof of such to the city, and the antenna shall be required to be painted in a way that blends with the pole;
2. Stealth base cabinet enclosures (completely encases base cabinet equipment to match the colors of the existing poles to the extent feasible). Base cabinet may be placed in any location on the lower portion of the pole, but may not impede ADA accessibility of a sidewalk. The base cabinet may also be placed underground; and
3. The city shall not limit the collocation of small wireless facilities by minimum horizontal separation distance requirements from existing small wireless facilities, poles, or wireless support structures.
(c) For location on existing building structures:
1. New steeple, extension to existing steeple, and replacement steeple concealment structures;
2. Chimney concealment structures;
3. Chimney pot concealment structures;
4. Rooftop facade extension concealment;
5. Rooftop cupola concealment;
6. Rooftop screen concealment;
7. Rooftop pod concealment systems;
8. Building side grid concealment structures;
9. Building side screen concealment structures; and
10. Rooftop, or wall mounted, lantern concealment structures.
(d) Antenna arrays, cables, and other ancillary facilities used for providing the wireless service shall not be obtrusive, or noticeably visible from adjacent properties, or adjacent rights-of-way;
(e) The color of the facility shall be compatible with that of the non-tower support structure. To the extent any small wireless facilities extend above the height of the vegetation buildings and utilities immediately surrounding it, they shall be painted in a non-reflective light gray, light blue, or other hue, which blends with the skyline and horizon;
(f) Attachments, which are ancillary to the antenna arrays mounted onto a non-tower support structure, shall not project greater than three feet, as measured horizontally, from the surface of the non-tower support structure, and shall be painted, or screened, with materials that are a compatible color to the non-tower support structure. Cables that travel along the exterior of a non-tower support structure shall be closely connected to the structure, creating a minimal appearance of gaps, or loose wires. When possible, visible cables should be in conduit, or otherwise covered, in a material visually compatible in color to the support structure;
(g) The general design of a small wireless facility shall be compatible to the streetscape and aesthetics of the surrounding area with respect to street furniture and lights, building facade designs, and area character;
(h) Other design elements which, by industry standards, are considered stealth technology deployment may also be used; and
(i) Within enacted overlay district stealth concealment is required except when specifically identified by the applicant that such stealth concealment results in a material reduction in the functionality of the proposed small wireless facility.
(H) Signage. The applicable provisions of the city municipal code regarding signage shall apply to all small wireless facilities.
(I) Illumination. A small wireless facility shall not have lights on the facility, unless the lights are required by other laws, and consistent with the requirements of law, or designed as an intended amenity of the support structure.
(J) Fencing. A small wireless facility installed in the public right-of-way shall not be fenced.
(K) Use of right-of-wav and indemnification.
(1) The wireless provider shall fully indemnify, and hold harmless, the city and its officers, agents, and employees against any claims, demands, damages, lawsuits, judgments, costs, liens, losses, expenses, and attorney’s fees resulting from the installation, construction, repair, replacement, operation, or maintenance of poles, small wireless facilities, or attachments to city poles to the extent directly caused by the negligence of the wireless provider, its contractors, subcontractors, and their officers, employees, or agents.
(2) A permit from the city shall not create a property right, or grant any authority to the owner of the small wireless facility to impinge upon the rights of others who may already have an interest in the right-of-way.
(L) Guidance illustrations. Attached to this chapter, as a guidance to this section, are illustrations to provide guidance to applicants of aesthetic standards encouraged, and preferred, by the city in the installation of small wireless facilities, and associated poles. (See § 153.07).
(Ord. 2019-16, passed 8-26-2019)