§ 153.125  OTHER USES.
   (A)   Athletic courts.
      (1)   Full sized regulation athletic courts, including basketball, tennis and pickle ball courts shall be allowed in the Private Club Residential (PC), High Density Residential (R4), Scenic Reserve (SR), and Public Facilities (P) zones. These courts may be enclosed by fencing not to exceed 15 feet tall and shall not be lit at night unless the court is in use.
      (2)   Athletic courts are permitted in the Low Density Single-family Residential (R1) and Medium Density Single-family Residential (R2) districts; provided that, they meet the following requirements.
         (a)   No athletic court shall be located in any front or side yard, nor shall any athletic court be located closer than five feet from any property line.
         (b)   No athletic court shall exceed 1,500 square feet in area.
         (c)   Athletic courts shall not be lighted.
         (d)   Fencing for athletic courts shall meet the requirements of § 153.145 of this chapter for fences.
         (e)   Athletic courts shall be included in calculating lot coverage for the underlying district.
   (B)   Mineral extraction operations.
      (1)   A special use approval shall be required for mineral extraction operations, including removal of soil, sand or gravel, where more than 600 cubic yards will be removed. The special use permit shall be subject to approval by the Planning Commission following a public hearing. Once issued, the special use may be reviewed annually by the Planning Commission to ensure that the operation conforms to all plans, progress, conditions and sureties. Removal operations shall not begin until the special use is approved and a zoning compliance permit is issued.
      (2)   Application. In addition to the submittals for a special use outlined in § 153.251 of this chapter, an application for a mineral extraction permit shall be accompanied by the following:
         (a)   A topographic map with two-foot contour intervals including the locations of all streets, buildings and existing drainage facilities within 300 feet of the property;
         (b)   A topographic map with two-foot contour intervals showing final elevations, including the proposed locations of access drives, parking areas and equipment;
         (c)   An estimated schedule for removal and an agreement conforming to all provisions of this section;
         (d)   A traffic control plan showing proposed truck routes to and from the site;
         (e)   A written description of proposed post-removal use of the property;
         (f)   A reclamation plan showing final grading of the site with two-foot contours, vegetation, roadways and other features to be installed; and
         (g)   A fee, determined by the City Manager, with input from staff to defray review, administration and inspection costs.
      (3)   Requirements. A special use permit shall not be issued unless activities comply with all the following requirements and the Planning Commission finds that there will be no serious consequences to the immediate area or community at large. A special use permit may be revoked if the use is found in violation of any part of this section.
         (a)   Activities shall comply with applicable soil erosion and sedimentation control regulations.
         (b)   Final grades shall not exceed 5% and shall meet existing elevations at all property lines. Grades in excess of 5% may be permitted by the Planning Commission if the applicant demonstrates that an increase is essential to implement a plan for future use.
         (c)   The limits of the excavation shall be at least 50 feet from any adjoining property line and 100 feet from any street right-of-way or private street easement line.
         (d)   Mineral extraction shall not create permanent depressions that may fill with water. All storm runoff must discharge into existing drainage systems.
         (e)   Since artificial lakes and water bodies can present threats of ground water pollution and stagnant water, thereby adversely affecting the public health, safety and welfare, they shall not be created as part of removal operations unless the applicant demonstrates:
            1.   Engineering and geological studies find there will be a positive source of unpolluted underground or stream-fed water in adequate amounts to produce positive water flow at all times;
            2.   Plans for the proposed artificial lake or water body have received all state approvals and conform to all federal, state, county and municipal standards;
            3.   A site plan of the proposed future development has been approved by the city; and
            4.   In an artificial lake or water body, a channel or lagoon shall not project beyond the main body of water greater than two times the width of the channel or lagoon.
      (4)   Conditions. Conditions may be imposed pursuant to the special land use provisions of § 153.252 of this chapter. Such conditions may include the reasonable regulation of hours of operation, blasting hours, noise levels, dust control measures and traffic unless prohibited by the state’s Zoning Enabling Act or other applicable law. All conditions shall be reasonable in accommodating customary mining operations.
      (5)   Financial guarantee. The city may require a financial guarantee in accordance with § 153.239 of this chapter to ensure compliance with the zoning ordinance and any conditions of approval.
   (C)   Similar uses.
      (1)   Applications for a use not specifically authorized in a zoning district, but similar to others that are identified, shall be submitted to the Planning Commission for review and a decision, based on the following.
         (a)   The Planning Commission shall first find that the proposed use is not listed as a permitted or special land use in any other district.
         (b)   If the use is not permitted elsewhere, the Planning Commission shall review the district purpose, permitted uses and special land uses in the zoning district to determine if the proposed use is consistent with the district purpose and is similar to other allowed uses relative to its character, scale and overall compatibility.
         (c)   The use would not be more appropriate within a different zoning district.
      (2)   If a proposed use is determined to be similar to other uses listed within the district, it shall comply with all the standards or requirements associated with the similar listed use(s). If the listed use(s) is a special land use, the similar use shall only be approved according to the requirements of §§ 153.250 through 153.257 of this chapter.
      (3)   The determination of whether a proposed use is similar to another listed use shall be considered as an interpretation of the use regulations and not a use variance. Once a use has been determined to be similar, it shall be deemed to be included in the list of uses, as regulated.
   (D)   Wireless telecommunications towers.
      (1)   Required approvals. The placement of communication facilities shall meet the following approval requirements.
         (a)   Installation of a new antenna. The installation of a new antenna(s) on an existing tower, including a legal non-conforming tower, and existing alternative structure (such as a water tower, building or church steeple) may be approved administratively by the Zoning Administrator, provided all the requirements of this subsection are met; however, such an installation on a city-owned or other municipal-owned structure must first be approved by the City Council. A new antenna that adds either 10% or 25 feet, whichever is less, to the highest point of an existing tower or alternative structure is subject to the provisions of this section for the installation of a new tower as described by divisions (D)(6) and (D)(7) below.
         (b)   Installation of a new tower. The installation of a new tower(s) requires approval of a special land use permit according to §§ 153.250 through 153.257 of this chapter.
         (c)   Installation of a new accessory structure. The installation of a new accessory structure(s), such as an equipment building, to support the installation of an additional antenna on an existing tower or alternative structure may be approved administratively by the Zoning Administrator; provided that, adequate space exists on the tower site.
      (2)   Removal. A tower that is unused or abandoned for 12 consecutive months shall be removed by the property owner at their expense.
      (3)   Interference with public safety facilities. A new telecommunications facility shall not interfere with public safety telecommunications.
      (4)   Required documentation for all facilities. In addition to the requirements provided in §§ 153.250 through 153.257 of this chapter for special land use and/or for land use permit submittals, an application for a new tower, new antenna and new related facilities shall include the following. Where an alternative structure is used, comparable information for that structure shall be provided.
         (a)   Engineer’s report. A report from a professional engineer licensed in the state that:
            1.   Describes the height and design of a new tower and/or antenna including a cross-section, latitude, longitude and elevation;
            2.   Describes or updates (in the case of new antennas) the tower’s capacity, including the type and number of antennas it can accommodate;
            3.   Certifies that construction specifications comply with all applicable requirements of the building codes adopted by the city, including, but not limited to, tower foundation, guy wire anchors (if used), collocation and strength requirements for natural forces (ice, wind, earth movements and the like);
            4.   Certifies the facility will not interfere with established public safety telecommunications; and
            5.   Includes an engineer’s seal and registration number.
         (b)   Proof of compliance. Copies of required approvals from the Federal Communications Commission (FCC), Federal Aviation Administration (FAA) and all other appropriate state and federal agencies.
         (c)   Removal affidavit. A letter committing all parties, including the property owner and their successors, to remove the tower and all related accessory structures, fences and equipment if the tower is abandoned. The removal affidavit shall be recorded in the county’s Register of Deeds, with a copy of the recorded affidavit provided to the Zoning Administrator.
      (5)   Determination of new tower need. A new telecommunications tower may only be approved if the applicant has submitted verification from a professional engineer licensed in the state that the antenna(s) planned for the proposed new tower cannot be accommodated on an existing or approved tower or other structure within a two-mile radius of the proposed tower location due to one or more of the following:
         (a)   Inadequate structural capacity. The antenna(s) would exceed the structural capacity of the existing or approved tower or other structure;
         (b)   Interference. The antenna would cause interference, impacting the usability of other existing or planned equipment at the tower site;
         (c)   Inadequate height. The existing or approved towers or structures within the search radius cannot accommodate the planned equipment at the necessary height; and
         (d)   Land availability. Additional land area is not available.
      (6)   Design requirements for new towers and related facilities. All telecommunications facilities shall meet the following design requirements.
         (a)   Lighting. Tower lighting shall only be as required for safety or security reasons or as required by the FAA or other federal or state authority. All ground level security lighting shall be full sharp cut-off fixtures (shielded down lights).
         (b)   Collocation. All telecommunication towers shall be designed, and engineered structurally, electrically and in all other respects to accommodate both the applicant’s equipment and at least one additional user for every 50 feet, or fraction thereof, in total tower height in excess of 75 feet.
         (c)   Assumption. Each additional user shall be assumed to have an antenna loading equal to that of the initial user.
         (d)   Rearrangement. Towers must be designed to allow for rearrangement of antennas and to accept antennas mounted at varying heights.
         (e)   Height. All towers and antennas shall conform with all FAA tall structure requirements. The maximum height of all accessory structures shall be 14 feet.
         (f)   Signs. Signs for all telecommunications facilities shall be permitted up to a total of four square feet per user, mounted on the associated equipment building. Signs required for technical and safety information shall be exempt from this requirement.
      (7)   Site requirements for new towers and related facilities. All new telecommunications facilities shall meet the following site requirements.
         (a)   Vehicular access. Vehicle access drives may be gravel or paved and shall be located within an access easement that is at least 20 feet wide. Any portion of the entrance located in a public right-of-way shall meet the applicable public street or road design, construction and pavement requirements.
         (b)   Site area. A tower shall be located on a lot (or lease area) that is sufficiently large to accommodate the use and all anticipated accessory structures for future antenna users.
            1.   The arrangement of the tower and site topography shall be considered when determining if the site area is sufficient.
            2.   All tower support and stabilizing wires shall be located within the site area.
         (c)   Setback. The minimum required setbacks for the tower and related facilities shall be as follows:
            1.   Minimum side and rear setback: 50 feet from all property lines;
            2.   Front yard setback: as specified for the zoning district in which the tower is located; and
            3.   Additional setback from residential districts: a tower and related facilities shall not be closer than a distance equal to the total height of the tower plus antennas to a property within a residential district, and no closer than one-half the height of the tower plus antennas to a property line in any other district.
         (d)   Encroachment. No part of any telecommunications facility nor associated lines, cables, equipment, wires or braces shall at any time extend across or over any part of a public right-of-way, sidewalk or property line.
         (e)   Fencing. An eight-foot high security fence shall completely surround the tower and accessory equipment building site. Sharpened or electrified fencing is not permitted. An area ten feet in width shall remain outside of the fence for the purpose of providing the landscape screening described below.
         (f)   Landscape screening. Evergreen buffer plantings shall be located and maintained around the outermost perimeter of the security fence of all communication facilities. The landscape plan shall show all plantings and shall be approved by the Zoning Administrator or Planning Commission, as applicable, as part of the review and approval process.
            1.   Evergreen trees shall be planted around the perimeter of the security fence, every ten feet apart on center.
            2.   If evergreen hedges are used, they shall be planted a maximum of five feet apart on center.
   (E)   Short-term rentals. Short-term rentals shall be regulated as provided in Chapter 114 of this code.
   (F)   Small wireless communications facilities deployment ordinance.
      (1)   This division shall be known and may be cited as the "small wireless communications facilities deployment ordinance."
      (2)   Definitions. For the purposes of this division, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
         ACT. The small wireless communications facilities deployment act, Public Act 365 of 2018, being M.C.L.A. §§ 460.1301 et seq., as the same may be amended from time to time.
         ANTENNA. Communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.
         APPLICANT. A wireless provider or wireless infrastructure provider that submits an application described in this division.
         AUTHORITY. The City of Charlevoix, to the extent authorized by law to make legislative, quasi-judicial, or administrative decisions concerning an application described in this division. AUTHORITY does not include any of the following:
         1.   A municipally owned electric utility.
         2.   An investor-owned utility whose rates are regulated by the Michigan Public Service Commission.
         3.   A state court having jurisdiction over an authority.
         AUTHORITY POLE. A utility pole owned or operated by an authority and located in the ROW.
         COLOCATE or COLLOCATION. To install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to a wireless support structure or utility pole. COLLOCATION has a corresponding meaning. COLOCATE does not include make-ready work or the installation of a new utility pole or new wireless support structure.
         FEE. An authority one-time per small cell site charge for application processing.
         HISTORIC DISTRICT. An officially designated historic district.
         MAKE-READY WORK. Work necessary to enable an authority pole or utility pole to support collocation, which may include modification or replacement of utility poles or modification of lines.
         MICRO WIRELESS FACILITY. A small cell wireless facility that is not more than 24 inches in length, 15 inches in width, and 12 inches in height and that does not have an exterior antenna more than 11 inches in length.
         PUBLIC RIGHT-OF-WAY or ROW. The area on, below, or above a public roadway, highway, street, alley, bridge, sidewalk, or utility easement dedicated for compatible uses. PUBLIC RIGHT-OF-WAY does not include any of the following:
         1.   A private right-of-way.
         2.   A limited access highway.
         3.   Land owned or controlled by a railroad as defined in § 109 of the Railroad Code of 1993, Public Act 354 of 1993, being M.C.L.A. § 462.109.
         4.   Railroad infrastructure.
         RATE. An authority annual charge per site.
         SMALL CELL WIRELESS FACILITY. A wireless facility that meets both of the following requirements:
         1.   Each antenna is located inside an enclosure of not more than six cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements would fit within an imaginary enclosure of not more than six cubic feet.
         2.   All other wireless equipment associated with the facility is cumulatively not more than 25 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: 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.
         UTILITY POLE. A pole or similar structure that is or may be used to support small cell wireless facilities. UTILITY POLE does not include a sign pole less than 15 feet in height above ground.
         WIRELESS FACILITY. Wireless equipment at a fixed location that enables the provision of wireless services between user equipment and a communications network, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. WIRELESS FACILITY includes a small cell wireless facility. WIRELESS FACILITY does not include any of the following:
         1.   The structure or improvements on, under, or within which the equipment is colocated.
         2.   A wireline backhaul facility.
         3.   Coaxial or fiber-optic cable between utility poles or wireless support structures or that otherwise is not immediately adjacent to or directly associated with a particular antenna.
         WIRELESS PROVIDER. A regulated provider of telecommunications services and a WIRELESS INFRASTRUCTURE PROVIDER is an installer of wireless equipment at small cell sites and, both terms are interchangeable terms for purposes of this division. WIRELESS PROVIDER does not include an investor-owned utility whose rates are regulated by the MPSC.
         WIRELESS SERVICES. Any services, provided using licensed or unlicensed spectrum, including the use of Wi-Fi, whether at a fixed location or mobile.
         WIRELESS SUPPORT STRUCTURE. A freestanding structure designed to support or capable of supporting small cell wireless facilities. WIRELESS SUPPORT STRUCTURE does not include a utility pole.
         WIRELINE BACKHAUL FACILITY. A facility used to transport services by wire or fiber-optic cable from a wireless facility to a network.
      (3)   Scope of authority.
         (a)   Except as provided in this division or the Act, the authority shall not prohibit, regulate, or charge for the collocation of small cell wireless facilities.
         (b)   The approval of a small cell wireless facility under this division authorizes only the collocation of a small cell wireless facility and does not authorize either of the following:
            1.   The provision of any services.
            2.   The installation, placement, modification, maintenance, or operation of a wireline in the ROW.
         (c)   The terms of this division do not permit the wireless provider to operate a cable system or to provide cable service, as those terms are defined by § 602 of the Cable Communications Policy Act of 1984, as amended (47 U.S.C. § 522), or install any wires or facilities that are required to be permitted under the METRO Act, Public Act 48 of 2002, being M.C.L.A. § 484.310, including any part of a small cell wireless facility constituting wireline telecommunication facilities.
      (4)   Small cell ROW access; permitted use; height; underground, downtown, residential and historic districts.
         (a)   This division applies only to activities of a wireless provider within the public right-of-way for the deployment of small cell wireless facilities and associated new or modified utility poles.
         (b)   The authority shall not enter into an exclusive arrangement with any person for use of the ROW for the construction, operation, or maintenance of utility poles or the collocation of small cell wireless facilities.
         (c)   1.   The authority shall not charge a wireless provider an annual rate more than:
               a.   $20 annually, unless division b. below applies.
               b.   $125 annually, if a new utility pole or wireless support structure was erected at a new site by or on behalf of the wireless provider on or after the effective date of this division. This division does not apply to the replacement of an existing utility pole that was not designed to support small cell wireless facilities.
            2.   Every five years after the effective date of the Act, the maximum rates are increased by 10% and rounded to the nearest dollar.
         (d)   All greater rates and fees in current agreements shall be modified within 90 days of application receipt, so as not to exceed the fees provided here, except for new small cell dedicated utility poles installed and operational in the ROW before the effective date of this division or related agreements, which shall remain in effect for the duration of the division or agreement.
         (e)   Except as set forth in §§ 153.125(F)(5) or (6), and as limited by this division, a wireless provider may colocate small cell wireless facilities and construct, maintain, modify, operate, or replace utility poles in, along, across, upon, and under the ROW as a permitted use not subject to zoning regulation if it complies with all other sections of this division and if:
            1.   A utility pole in the ROW installed or modified on or after the effective date of this division shall not exceed 40 feet above ground level, unless a taller height is agreed to by the authority.
            2.   A small cell wireless facility in the ROW installed or modified after the effective date of this division shall not extend more than five feet above a utility pole or wireless support structure on which the small cell wireless facility is colocated.
            3.   Such structures and facilities shall be constructed and maintained so as not to obstruct or hinder the usual travel or public safety on the ROW or obstruct the legal use of the authority's ROW or uses of the ROW by other utilities and communications service providers.
         (f)   A proposed utility pole or other support structure that exceeds the height limits under § 153.125(F)(4)(e), is subject to zoning review.
         (g)   Undergrounding. A wireless provider shall comply with reasonable and nondiscriminatory requirements including concealment measures that prohibit communications service providers from installing structures on or above ground in the ROW in an area designated solely for underground or buried cable and utility facilities, if:
            1.   The authority has required all cable and utility facilities, other than authority poles, along with any attachments, or poles used for street lights, traffic signals, or other attachments necessary for public safety, to be placed underground by a date that is not less than 90 days before the submission of the application; and
            2.   The authority does not prohibit replacement of authority poles by a wireless provider in the designated area.
            3.   A wireless provider may apply for a waiver of the undergrounding requirements.
         (h)   Historic, downtown and residential districts. A wireless provider shall comply with written, objective requirements for reasonable, technically feasible, nondiscriminatory, and technologically neutral designs or concealment measures in a historic district, downtown district, or residential zoning district. Such requirement shall not have the effect of prohibiting any wireless provider's technology. Any such design or concealment measures are not included in size restrictions in the definition of small wireless facility in this division.
         (i)   Aesthetic requirements. Wireless providers shall install, modify, collocate or otherwise provide all wireless facilities, equipment, poles, support structures and all other related wireless objects in a manner, size and appearance that is consistent and in conformity with the existing requirements and existing practices in fact, pertaining to such districts as defined by the applicable ordinances, rules and codes of this community and the applicable rules and laws of this state, in such fashion as to create the least negative impact on the district as possible. Such accommodations may include use of similar height, materials, color, design, number and appearance of other similar structures utilized by other occupiers of the ROW and public spaces.
            1.   Collocation including replacement of existing poles or support structures is strongly encouraged over the installation of additional new poles or support structures in the ROW.
            2.   Placement of all equipment inside the pole or support structure is favored over placement outside the pole, including ground mountings.
            3.   Smallest equipment, antennas and poles and support structures feasible is preferred.
            4.   Camouflaging, stealth or concealment elements are preferred.
            5.   Installations generally are favored in the following zoning districts, in the following order of preference:
               a.   1st Preference: Industrial
               b.   2nd Preference: Commercial
               c.   3rd Preference: Residential
               d.   4th Preference: Historic
               e.   5th Preference: Environmentally sensitive areas including nature and wetland preservation sites
            6.   Disagreements between the provider and authority on specific aesthetics issues shall be addressed by the City Council upon timely written request of the provider. Staff and City Council may consider incentives favoring installations in preferred districts.
         (j)   All wireless providers shall repair all damage to the ROW caused by the activities of the wireless provider while occupying, constructing, installing, mounting, maintaining, modifying, operating, or replacing small cell wireless facilities, utility poles, or wireless support structures in the ROW and, to return the ROW to its original condition. Following 60 days' written notice, the authority may make those repairs and charge the wireless provider the cost of the repairs.
      (5)   Provider and authority responsibilities; application information; shot clocks; tolling; deemed approved; basis for denial; resubmittal; batch applications; application fees; micro wireless facility exemption; alternative siting; decommissioning sites.
         (a)   This division applies to activities of a wireless provider within the public right-of-way.
         (b)   Except as otherwise provided in this division or the Act, a wireless provider shall seek an authority ROW access permit to colocate a small cell wireless facility or install, modify, or replace a utility pole on which a small cell wireless facility will be colocated as required of all ROW users. The processing of an application for an authority ROW access permit is subject to all of the following:
            1.   Unless physically or technically infeasible, all small wireless facilities shall be constructed to accommodate two or more users. Any wireless provider must openly allow another provider to colocate upon its wireless facility under rates and conditions that are acceptable within the industry to promote collocation. Collocation of small cell wireless facilities is strongly encouraged.
            2.   In-kind contributions to the authority are not permitted in lieu of rates and fees described above unless all parties voluntarily agree in furtherance of the interests of both.
            3.   The applicant shall provide all the information and documentation required by the authority to enable the authority to make an informed decision with regard to its criteria for authorizing ROW access including the following:
               a.   A certificate of compliance with FCC rules related to radio frequency emissions from a small cell wireless facility;
               b.   Proof of notification to every other affected authority and all necessary permits, permit applications, or easements to ensure all necessary permissions for the proposed activity are obtained;
               c.   An attestation that the small cell wireless facilities will be operational for use by a wireless services provider within one year after the permit issuance date. Failure to abide by this term shall result in termination of any permit issued in reliance on such attestation.
            4.   Within 25 days after receiving an initial application, the authority shall notify the applicant in writing whether the application is complete. If incomplete, the notice will delineate all missing documents or information. The notice tolls the running of the time for approving or denying an application under § 153.125(F)(5)(b)6.
            5.   If the applicant makes a supplemental submission in response to the authority's notice of incompleteness, the authority will so notify the applicant in writing within ten days, delineating the previously requested and missing documents or information. The time period for approval or denial is tolled in the case of second or subsequent notices under the procedures identified in § 153.125(F)(5)(b)4.
            6.   The authority shall approve or deny the application and notify the applicant in writing within the following period of time after the application is received:
               a.   Collocation shot clock. For an application for the collocation of small cell wireless facilities on a utility pole, 60 days, subject to the following adjustments:
                  (i)   Add 15 days if an application from another wireless provider was received within one week of the application in question.
                  (ii)   Add 15 days if the authority notifies the applicant in writing that an extension is needed and the reasons for the extension before the otherwise applicable 60-day or 75-day time period under this division elapses.
               b.   New or replacement 40-foot pole and limited equipment. For an application for a new or replacement utility pole that meets the height requirements of § 153.125(F)(4)(e) and associated small cell facility, 90 days, subject to the following adjustments:
                  (i)   Add 15 days if an application from another wireless provider was received within one week of the application in question.
                  (ii)   Add 15 days if, a timely extension is requested.
                  (iii)   Deemed approved. A completed application is considered to be approved if not timely acted upon by the authority and, subject to the condition that the applicant provide the authority not less than seven days' advance written notice that the applicant will be proceeding with the work pursuant to this automatic approval.
            7.   Basis for denial. The authority may deny a completed application for a proposed collocation of a small cell wireless facility or installation, modification, or replacement of a utility pole that meets the height requirements in § 153.125(F)(4)(e) if the proposed activity would do any of the following:
               a.   Materially interfere with the safe operation of traffic control equipment;
               b.   Materially interfere with sight lines or clear zones for transportation or pedestrians;
               c.   Materially interfere with compliance with the Americans with Disabilities Act of 1990, Public Law 101-336, or similar federal, state, or local standards regarding pedestrian access or movement.
               d.   Materially interfere with maintenance or full unobstructed use of public utility infrastructure under the jurisdiction of an authority.
               e.   With respect to drainage infrastructure under the jurisdiction of an authority, either of the following:
                  (i)   Materially interfere with maintenance or full unobstructed use of the drainage infrastructure as it was originally designed.
                  (ii)   Not be located a reasonable distance from the drainage infrastructure to ensure maintenance under the Drain Code of 1956,  Public Act 40 of 1956, being M.C.L.A. §§ 280.1 through 280.630, and access to the drainage infrastructure.
               f.   Fail to comply with reasonable, nondiscriminatory, written spacing requirements of general applicability adopted by ordinance or otherwise that apply to the location of ground-mounted equipment and new utility poles and that do not prevent a wireless provider from serving any location.
               g.   Fail to comply with all other applicable codes.
               h.   Fail to comply with §§ 153.125(F)(4)(g) or (h) relating to Undergrounding and Historic, Downtown, and Residential Districts.
               i.   Fail to meet reasonable, objective, written stealth or concealment criteria for small cell wireless facilities applicable in a historic district or other designated area, as specified in an ordinance or otherwise and non-discriminatorily applied to all other occupants of the ROW, including electric utilities, incumbent or competitive local exchange carriers, fiber providers, cable television operators, and the authority.
            8.   Reasons for denial; resubmission and 30-day shot clock. If the completed application is denied, the notice shall explain the reasons for the denial and, if applicable, cite the specific provisions of applicable codes on which the denial is based. The applicant may cure the deficiencies identified by the authority and resubmit the application within 30 days after the denial without paying an additional application fee. The authority shall approve or deny the revised application within 30 days. The authority shall limit its review of the revised application to the deficiencies cited in the denial.
            9.   Batch applications. An applicant may file an application and receive a single permit for the collocation of up to 20 substantially similar small cell wireless installations. The authority may approve or deny one or more small cell wireless facilities included in such consolidated application.
            10.   Approval of an application authorizes the wireless provider to undertake the installation, collocation and maintenance of such facilities.
            11.   The authority shall not institute a moratorium on filing, receiving, or processing applications or issuing permits for the collocation of small cell wireless facilities or the installation, modification, or replacement of utility poles on which small cell wireless facilities will be colocated.
            12.   The authority and an applicant may extend a time period under this division by mutual agreement.
         (c)   1.   Application fee for a permit under § 153.125(F)(5)(b) shall not exceed the lesser of the following:
                  a.   $200 for each small cell wireless facility alone.
                  b.   $300 for each small cell wireless facility and a new utility pole to which it will be attached.
            2.   Every five years after the effective date of the Act, the maximum fees are increased by 10% and rounded to the nearest dollar.
         (d)   The authority may revoke a permit, upon 30 days' notice and an opportunity to cure, if the permitted small cell wireless facilities and any associated utility pole fail to meet the requirements of § 153.125(F)(5)(b)7.
         (e)   Micro wireless facility exempt. The authority shall not require a permit or any other approval or require fees or rates for ordinance compliant replacement, maintenance or operation of a small cell wireless facility or ordinance compliant installation, replacement, maintenance or operation of a micro wireless facility that is suspended on cables strung between utility poles or wireless support structures in compliance with applicable codes.
         (f)   Alternate siting. Upon receipt of an application to place a new utility pole, the authority may propose an alternate location within the ROW or on property or structures owned or controlled by the authority within 75 feet of the proposed location to either place the new utility pole or colocate on an existing structure. The applicant shall use the alternate location if, as determined by the applicant, the applicant has the right to do so on reasonable terms and conditions and the alternate location does not impose unreasonable technical limits or significant additional costs.
         (g)   Decommissioning sites. A wireless provider shall notify the authority in writing before discontinuing use of a small cell wireless facility, utility pole, or wireless support structure. The notice shall specify when and how the wireless provider intends to remove the small cell wireless facility, utility pole, or wireless support structure. The wireless provider shall return the property to its pre-installation condition. If the wireless provider does not complete the removal within 45 days after the discontinuance of use, the authority may complete the removal and assess the costs of removal against the wireless provider. A permit under this division for a small cell wireless facility expires upon removal of the small cell wireless facility.
         (h)   A wireless provider shall obtain a permit for any work that will affect traffic patterns or obstruct vehicular or pedestrian traffic in the ROW.
      (6)   Zoning review for non-permitted uses.
         (a)   This division applies to zoning reviews for the following activities that are subject to zoning review and approval, that are not a permitted use under § 153.125(F)(4)(e), and that take place within or outside the public right-of-way:
            1.   The modification of existing or installation of new small cell wireless facilities.
            2.   The modification of existing or installation of new wireless support structures used for such small cell wireless facilities.
         (b)   The processing of an application for a zoning approval is subject to all of the following requirements:
            1.   Within 30 days after receiving an application under this division, the authority shall notify the applicant in writing whether the application is complete. If the application is incomplete, the notice shall clearly and specifically delineate all missing documents or information. The notice tolls the running of the 30-day period.
            2.   The running of the time period tolled under § 153.125(F)(6)(b)1 resumes when the applicant makes a supplemental submission in response to the authority's notice of incompleteness. If the applicant makes a supplemental submission in response to the authority's notice of incompleteness, the authority will so notify the applicant in writing within ten days, delineating the previously requested and missing documents or information. The time period may be tolled in the case of second or subsequent notices under the procedures identified in division § 153.125(F)(6)(b)1. Second or subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.
            3.   Modification of support structure or collocation or installation of wireless facilities shot clock 90 days - new support structure shot clock 150 days; modification by agreement; deemed approved. The authority shall approve or deny the application and notify the applicant in writing within 90 days after an application for a modification of a wireless support structure or installation of a small cell wireless facility is received or 150 days after an application for a new wireless support structure is received.
               a.   The time period for approval may be extended by mutual agreement between the applicant and authority.
               b.   If the authority fails to comply with this division, the application is considered to be approved subject to the condition that the applicant provide the authority not less than 15 days' advance written notice that the applicant will be proceeding with the work pursuant to this automatic approval.
            4.   The authority may deny an application if all of the following apply:
               a.   The denial is supported by substantial evidence contained in a written record that is publicly released contemporaneously.
               b.   There is a reasonable basis for the denial.
               c.   The denial would not discriminate against the applicant with respect to the placement of the facilities of other wireless providers.
         (c)   The authority's review of an application for a zoning approval is subject to all of the following requirements:
            1.   Applicant presumed reasonable. An applicant's business decision on the type and location of small cell wireless facilities, wireless support structures, or technology to be used is presumed to be reasonable. This presumption does not apply with respect to the height of wireless facilities or wireless support structures. The authority may consider the height of such structures in its zoning review, but shall not discriminate between the applicant and other communications service providers.
            2.   The authority shall not evaluate or require an applicant to submit information about an applicant's business decisions with respect to any of the following:
               a.   The need for a wireless support structure or small cell wireless facilities.
               b.   The applicant's service, customer demand for the service, or the quality of service.
            3.   Any requirements regarding the appearance of facilities, including those relating to materials used or arranging, screening, or landscaping, shall be reasonable.
            4.   Any spacing, setback, or fall zone requirement shall be substantially similar to a spacing, setback, or fall zone requirement imposed on other types of commercial structures of a similar height.
         (d)   Application fees:
            1.   $1,000 for a new wireless support structure or modification of an existing wireless support structure.
            2.   $500 for a new small cell wireless facility or modification of an existing small cell wireless facility.
         (e)   All zoning approval is void if the wireless provider fails to commence construction within one year of the grant of same, unless the authority and the applicant agree to extend this period or the delay is caused by a lack of commercial power or communications facilities at the site. The wireless provider may reapply for a zoning approval.
         (f)   A wireless provider may voluntarily request that a zoning approval be terminated.
         (g)   The authority shall not institute a moratorium on either of the following:
            1.   Filing, receiving, or processing applications for zoning approval.
            2.   Issuing approvals for installations that are not a permitted use.
         (h)   The authority may revoke a zoning approval, upon 30 days' notice and an opportunity to cure, if the permitted small cell wireless facilities and any associated wireless support structure fail to meet the requirements of the approval, applicable codes, or applicable zoning requirements.
      (7)   Authority owned poles; rates; terms.
         (a)   The authority shall not enter into an exclusive arrangement with any person for the right to attach to authority poles. A person who purchases, controls, or otherwise acquires an authority pole is subject to the requirements of this division.
         (b)   Rate. The rate for the collocation of small cell wireless facilities on authority poles shall be nondiscriminatory regardless of the services provided by the colocating person. The rate shall not exceed $30 per year per authority pole. Every five years after the effective date of the Act, the maximum rate then authorized under this division is increased by 10% and rounded to the nearest dollar. This rate for the collocation of small cell wireless facilities on authority poles is in addition to any rate charged for the use of the ROW under § 153.125(F)(4).
         (c)   All greater rates and fees in current agreements shall be modified within 90 days of application receipt, so as not to exceed the fees provided here, except with respect to wireless facilities on authority poles installed and operational before the effective date of this division or any related agreement, which shall remain in effect for the duration of the division or agreement.
         (d)   Within 90 days after receiving the first request to colocate a small cell wireless facility on an authority pole, the authority shall make available, through ordinance or otherwise, the rates, fees, and terms for the collocation of small cell wireless facilities on the authority poles. The rates, fees, and terms shall comply with all of the following:
            1.   The rates, fees, and terms shall be nondiscriminatory, competitively neutral, and commercially reasonable and shall comply with the Act.
            2.   The authority shall provide a good-faith estimate for any make-ready work within 60 days after receipt of a complete application. Make-ready work shall be completed within 60 days of written acceptance of the good-faith estimate by the applicant.
            3.   The person owning or controlling the authority pole shall not require more make-ready work than required to comply with law or industry standards.
            4.   Fees for make-ready work shall not do any of the following:
               a.   Include costs related to preexisting or prior damage or noncompliance unless the damage or noncompliance was caused by the applicant.
               b.   Include any unreasonable consultant fees or expenses.
               c.   Exceed actual costs imposed on a nondiscriminatory basis.
         (e)   This division does not require the authority to install or maintain any specific authority pole or to continue to install or maintain authority poles in any location if the authority makes a nondiscriminatory decision to eliminate aboveground poles of a particular type generally, such as electric utility poles, in a designated area of its geographic jurisdiction. For authority poles with colocated small cell wireless facilities in place when an authority makes a decision to eliminate aboveground poles of a particular type, the authority shall do one of the following:
            1.   Continue to maintain the authority pole.
            2.   Install and maintain a reasonable alternative pole or wireless support structure for the collocation of the small cell wireless facility.
            3.   Offer to sell the pole to the wireless provider at a reasonable cost.
            4.   Allow the wireless provider to install its own utility pole so it can maintain service from that location.
            5.   Proceed as provided by an agreement between the authority and the wireless provider.
      (8)   No provider requirement of service. This division does not require wireless facility deployment or regulate wireless services.
      (9)   Appeals. The applicant may appeal any authority determinations related to this division to the highest elected body of the authority or, the Charlevoix County Circuit Court.
      (10)   Defense, indemnity and insurance. All applicant wireless providers shall:
         (a)   Defend, indemnify, and hold harmless the authority and its officers, agents, and employees against any claims, demands, damages, lawsuits, judgments, costs, liens, losses, expenses, and attorney fees resulting from the installation, construction, repair, replacement, operation, or maintenance of any wireless facilities, wireless support structures, or utility poles to the extent caused by the applicant, its contractors, its subcontractors, and the officers, employees, or agents of any of these.
         (b)   Obtain insurance naming the authority and its officers, agents, and employees as additional insureds against any claims, demands, damages, lawsuits, judgments, costs, liens, losses, expenses, and attorney fees. A wireless provider may meet all or a portion of the authority's insurance coverage and limit requirements by self-insurance. To the extent a wireless provider elects to self-insure, the wireless provider shall provide to the authority evidence demonstrating, to the authority's satisfaction, the wireless provider's financial ability to meet the authority's insurance coverage and limit requirements.
      (11)   Bonding.
         (a)   As a condition of a permit described in this act, the wireless provider shall provide a $1,000 bond per small cell wireless facility, for the purpose of providing for the removal of abandoned or improperly maintained small cell wireless facilities, including those that an authority determines should be removed to protect public health, safety, or welfare, to repair the ROW as provided under § 153.125(F)(4)(b) and, to recoup rates or fees that have not been paid by a wireless provider in more than 12 months, if the wireless provider has received 60-day advance notice from the authority of the noncompliance.
         (b)   The authority shall not require a cash bond, unless the wireless provider has failed to obtain or maintain a bond required under this division or the surety has defaulted or failed to perform on a bond given to the authority on behalf of a wireless provider.
      (12)   Labeling. A small cell wireless facility for which a permit is issued shall be labeled with the name of the wireless provider, emergency contact telephone number, and information that identifies the small cell wireless facility and its location.
      (13)   Electric costs. A wireless provider is responsible for arranging and paying for the electricity used to operate a small cell wireless facility.
      (14)   Investor owned utilities.
         (a)   This division does not add to, replace, or supersede any law regarding poles or conduits, similar structures, or equipment of any type owned or controlled by an investor-owned utility whose rates are regulated by the MPSC, an affiliated transmission company, or an independent transmission company.
         (b)   This division does not impose or otherwise affect any rights, controls, or contractual obligations of an investor-owned utility whose rates are regulated by the MPSC, an affiliated transmission company, or an independent transmission company with respect to its poles or conduits, similar structures, or equipment of any type.
         (c)   Except for purposes of a wireless provider obtaining a permit to occupy a right-of-way, this division does not affect an investor-owned utility whose rates are regulated by the MPSC. Notwithstanding any other provision of this division, pursuant to and consistent with § 6g of Public Act 470 of 1980, being M.C.L.A. § 460.6g, the MPSC has sole jurisdiction over attachment of wireless facilities on the poles, conduits, and similar structures or equipment of any type or kind owned or controlled by an investor-owned utility whose rates are regulated by the MPSC.
(Prior Code, § 5.55)  (Ord. 784, passed 10-16-2017; Ord. 794, passed 9-17-2018; Ord. 820, passed 6-1- 2020)