(A) Agreement. Prior to installing in the right-of-way any small wireless facility, or any pole built for the sole or primary purpose of supporting a small wireless facility, or any tower, a person shall enter into an agreement with the municipality expressly authorizing use of the right-of-way for the small wireless facility, pole or tower proposed to be installed. The agreement shall provide for the attachment to municipal poles or structures in the right-of-way in addition to poles or structures owned by unrelated third parties; provided that, the applicant secures the written consent of the third party for such attachment.
(B) General terms.
(1) The term of an agreement shall be for up to ten years. The agreement may be renewed for an additional term of ten years subject to the mutual written agreement of the municipality and provider.
(2) The agreement authorizes the provider’s non-exclusive use of the right-of-way for the sole purpose of installing, maintaining and operating wireless communication facilities, including any pole built for the sole or primary purpose of supporting the wireless communication facilities and any tower, to provide the services expressly authorized in the agreement, subject to applicable laws, this article and the terms and conditions of the agreement. The agreement authorizes use only of the right-of-way in which the municipality has an actual interest. It is not a warranty of title or interest in any right-of-way and it does not confer on the provider any interest in any particular location or to a superior or preferred location within the right-of-way. Nothing herein shall authorize the use of the municipality’s poles, towers, support structures or other structures outside of the right-of-way. All use of municipal poles, towers, support structures and other structures in the right-of-way shall require a separate attachment agreement or be specifically provided for in the agreement and shall include the payment of fees for such use.
(3) The provider shall, at its sole cost and expense, keep and maintain its wireless communication facilities, poles, support structures and towers in the right-of-way in a safe condition and in good order and repair.
(4) In the event of an emergency regarding the provider’s small wireless facilities, or related poles, support structures or towers, the provider shall immediately notify the municipality of the nature of the emergency and planned response to the emergency.
(5) This article applies to the issuance of a permit for a small wireless facility within the right-of-way and to the issuance of a permit for the installation, modification, and replacement of a utility pole by an applicant within a right-of-way.
(6) An applicant that collocates a small wireless facility within a municipal right-of-way or on a utility pole assumes the risk of loss, damage to or loss of use of such facility when such pole is damaged, destroyed or taken out of service on municipal property, except to the extent that such loss or damage is due to or caused by the negligence or willful misconduct of the municipality or its employees, contractors or agents.
(7) The construction, operation, maintenance, collocation or placement of wireless facilities, utility poles or wireless support structures shall occur at no cost from an applicant to the municipality unless otherwise agreed to in advance between an applicant and the municipality.
(C) Permit required.
(1) An applicant shall apply for and obtain one or more permits to collocate a small wireless facility or install a new, modified or replacement utility pole associated with a small wireless facility. Such permits shall be of general applicability and not apply exclusively to wireless facilities.
(2) No person may construct, install or maintain in the right-of-way any wireless communication facilities without first receiving a permit from the municipality. Notwithstanding the foregoing, in the event of an emergency, a provider or its duly authorized representative may work in the right-of-way prior to obtaining a permit; provided that, the provider shall contact the municipality prior to commencing the work and shall apply for a permit as soon as reasonably possible, but not later than 24 hours after commencing the emergency work. For purposes of this division (C)(2), an EMERGENCY means a circumstance in which immediate repair to damaged or malfunctioning facilities is necessary to restore lost service or prevent immediate harm to persons or property.
(D) Permit application requirements.
(1) The application shall be submitted by the wireless provider or its duly authorized representative and shall contain the following:
(a) The applicant’s name, address, telephone number and email address, including emergency contact information for the applicant;
(b) The names, addresses, telephone numbers and email addresses of all consultants, if any, acting on behalf of the applicant or provider with respect to the filing of the application;
(c) A description of the proposed work and wireless communication facility sufficient to demonstrate compliance with the provisions of this article;
(d) If applicable, a copy of the authorization from the owner of the pole, tower or support structure on or in which the wireless communication facility will be placed or attached;
(e) To the extent the proposed wireless communication facility involves collocation on a pole, tower or support structure, a structural report prepared by a state licensed professional engineer evidencing that the pole, tower or support structure will support the collocation (or that the pole, tower or support structure will be modified to meet structural requirements) in accordance with applicable codes;
(f) For any new above-ground wireless communication facilities, accurate visual depictions or representations, if not included in the construction drawings or photo simulations; and
(g) Any other submission requirements per published municipal policies or regulations.
(2) All applications for small wireless facility installations in the right-of-way shall be made to the Zoning Administrator/Utility Superintendent.
(E) Denial.
(1) The municipality may deny a proposed collocation of a small wireless facility or installation, modification or replacement of a utility pole that meets the requirements of the Act only if the proposed application:
(a) Materially and demonstrably interferes with the safe operation of traffic-control equipment or the right-of-way;
(b) Materially interferes with sight lines or clear zones for air or land transportation or pedestrians;
(c) Materially interferes with compliance with the Federal 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;
(d) Fails to comply with reasonable and non-discriminatory spacing requirements of general application adopted by ordinance or resolution that concern the location of ground-mounted equipment and new utility poles. Such spacing requirements shall not prevent a wireless provider from serving any location;
(e) Fails to comply with applicable codes if they are of general applicability and do not apply exclusively to wireless facilities;
(f) Fails to comply with the municipality’s aesthetic requirements that are reasonable, objective and published in advance; or
(g) Designates the location of a new utility pole within seven feet in any direction of an electrical conductor unless the wireless provider obtains the written consent of the public power supplier that owns or manages the electrical conductor.
(2) The municipality shall document the basis for a permit application denial including any specific code provisions on which the denial was based, and send such documentation to the applicant on or before the day the municipality denies the application. The applicant may cure the deficiencies identified by the municipality and resubmit the application within 30 days after the denial without paying an additional application fee. The municipality shall approve or deny the resubmitted application within 30 days. Any subsequent review shall be limited to the deficiency cited in the denial.
(F) Reserving space. The municipality shall be allowed to reserve space on municipal poles, and the applicant shall cooperate with the municipality in any such reservation; except that, the municipality shall first notify the applicant in writing that it is interested in reserving such pole space or sharing the trenches or bores where the collocation is to occur. The applicant shall allow the municipality to place its infrastructure in the applicant’s trenches or bores or on the utility poles as requested by the municipality except that the municipality shall incur the incremental cost of placing the conduit or infrastructure as requested. The municipality shall be responsible for maintaining its facilities in the trenches and bores and on the municipal poles.
(G) Information. An applicant shall not be required to provide more information to obtain a permit than a communications service provider that is not a wireless provider, except as directly related to the impairment of wireless service in the immediate area of the proposed small wireless facility and except that an applicant may be required to include construction and engineering drawings and information demonstrating compliance with the criteria in this article.
(H) Alternate plan. The municipality may propose a technically feasible alternate utility pole location. The wireless provider shall cooperate with the municipality to address the municipality’s reasonable proposal. The municipality shall not require the placement of small wireless facilities on a specific utility pole or category of poles or require multiple antenna systems on a single utility pole.
(I) Limit. The municipality shall not limit the placement of small wireless antennas by minimum horizontal separation distances.
(J) Attestation. An applicant shall include an attestation that the small wireless facilities will be operational for use by a wireless services provider within nine months after the later of the completion of all make-ready work or the permit issuance date unless a delay is caused by lack of commercial power or communication transport facilities to the site. In such case the applicant shall have an extension, not to exceed nine months. The municipality and applicant may mutually agree to an additional extension.
(K) Proprietary or confidential information in application. Applications are public records that may be made publicly available pursuant to the state’s Public Records Law. Notwithstanding the foregoing, the applicant may designate portions of its application materials that it reasonably believes contain proprietary or confidential information as “proprietary” or “confidential” by clearly marking each portion of such materials accordingly, and the municipality shall treat the information as proprietary and confidential, subject to the state’s Public Records Law and the municipality’s determination that the applicant’s request for confidential or proprietary treatment of application materials is reasonable and in compliance with such law. The municipality shall not be required to incur any costs to protect the application materials from disclosure, other than the municipality’s routine procedures for complying with the state’s Public Records Law, being Neb. RS Chapter 84, Article 7.
(L) Routine maintenance and replacement. The municipality shall not require an application, permit or other approval or charge fees or rates for routine maintenance of small wireless facilities, replacement of small wireless facilities with small wireless facilities that are substantially similar in weight or windage or the same size or smaller, or for the installation, placement, maintenance, operation or replacement of microwireless facilities that are strung on cables between existing utility poles in compliance with the National Electrical Safety Code. A permit shall be required for work that exceeds original weight or windage or requires excavation or closing of sidewalks or vehicular lanes within the right-of-way for such activities.
(M) Application fees.
(1) The application fees for collocation of small wireless facilities on an existing or replacement municipal pole shall not exceed $500 for up to five small wireless facilities on the same application and $100 for each additional small wireless facility on the same application.
(2) The application fees for the installation, modification or replacement of a utility pole and the collocation of an associated small wireless facility that are a permitted use in accordance with the specifications of the Act shall not exceed $250 per pole. In the case of coapplicants for a single site, only one application fee may be charged for the site. The rate for collocation of a small wireless facility on a municipal pole in the right-of-way shall be no more than $20 per municipal pole per year.
(N) Bonds. Unless otherwise provided in an agreement or agreed to in writing by the municipality, a performance or construction bond or other form of surety acceptable to the municipality equal to at least 100% of the estimated cost of the work within the right-of-way shall be provided before the applicant commences work.
(O) Effect of permit. A permit from the municipality authorizes an applicant to undertake only the activities in the right-of-way specified in the application and permit, and in accordance with this article and any conditions included in the permit. A permit does not authorize attachment to or use of existing poles, towers, support structures or other structures in the right-of-way. A permittee or wireless provider must obtain all necessary approvals from the owner of any pole, tower, support structure or other structure prior to any attachment or use. A permit does not create a property right for the applicant. The applicant shall not interfere with other uses or users of the right-of-way.
(P) Duration. Installation or collocation for which a permit is granted shall be completed within one year of the later of the completion of all make-ready work or permit issuance date unless a delay is caused by the lack of commercial power or communications transport facilities at the site. In such case, the applicant shall have an extension of up to nine months. The municipality and applicant may mutually agree to an additional extension. Approval of an application authorizes the applicant to maintain and operate the small wireless facilities and any associated utility pole covered by the permit for a period of not less than five years, subject to applicable relocation requirements and the applicant’s right to terminate at any time. The municipality shall renew such permit for an equivalent duration so long as the applicant is in compliance with the criteria set forth in this article, as such criteria existed at the time the permit was granted.
(Q) Multiple sites in a consolidated application. An applicant seeking to collocate small wireless facilities may, at the applicant’s discretion, file a consolidated application for up to five individual small wireless facilities instead of filing a separate application for each individual small wireless facility. The denial of one or more small wireless facilities in a consolidated application shall not delay processing of any other small wireless facilities in the same application or be a basis upon which to deny the consolidated application as a whole. An applicant is allowed to file a single set of documents that apply to all of the applicant’s small wireless facilities, and the municipality shall render a decision regarding all of the applicant’s wireless facilities in a single administrative proceeding unless the local requirements require an elected or appointed body to render such a decision.
(Ord. 1040, passed 12-9-2019)