(a) General. The City desires to promote orderly small cell facility and wireless support structure installations using the smallest and least intrusive means available to provide services to the community. All such installations in the public right of way shall comply with all applicable provisions in this Section. All applications shall be subject to the following conditions:
(1) Compliance with all Applicable Laws - Permittee shall at all times maintain compliance with all applicable federal, state and local laws, regulations, ordinances, or other rules.
(2) Right to Inspect - The City or its designee may inspect a small cell facility or wireless support structure within the Right of Way upon reasonable notice to the permittee. The permittee shall cooperate with all inspections. The City reserves the right to support, repair, disable, or remove any elements of the small cell facility or wireless support structure in emergencies or when the small cell facility or wireless support structure threatens imminent harm to persons or property.
(3) Contact information - Permittee shall at all times maintain accurate contact information for all parties reasonable for the small cell facility or wireless support structure, which shall include a phone number, street mailing address, and email address for at least one natural person. All such contact information for responsible parties shall be provided to the Service Director.
(4) Indemnities - The permittee and, if applicable, the non-government owner of a small cell facility or wireless support structure shall defend, indemnify, and hold harmless the City and its agents, officers, officials, and employees from:
A. Any and all damages, liabilities, injuries, losses, costs, and expenses arising out of any claims, demands, lawsuit, writ of mandamus, or other actions or proceedings brought against the City to challenge, attack, seek to modify, set aside, void, or annul the City's approval of the applicable permit or certificate; and
B. Any and all damages, liabilities, injuries, losses, costs and expenses and any claims, demands, lawsuits, or other actions or proceedings of any kind, whether for personal injury, death, or property damage, arising out of or in connection with the activities or performance of the permittee or its agents, employees, licensees, contractors, subcontractors, or independent contractors.
C. In the event the City becomes aware of any such actions or claims, the City shall promptly notify the permittee and shall reasonably cooperate in the defense. It is expressly agreed that the City shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the City's defense, and the permittee (as applicable) shall reimburse City for any costs and expenses directly and necessarily incurred by the City in the course of the defense.
(5) Interference with City Communication Services - In the event that the City has reason to believe that permittee's operations are causing interference with the City's radio communications operations, then the permittee shall, at its cost, immediately cooperate with the City to either rule out permittee as the interference source or eliminate the interference. Cooperation with the City may include, but shall not be limited to, temporarily switching the equipment on and off for testing.
(6) Adverse Impact - Permittee shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification, or removal of the small cell facility or wireless support structure.
(7) Maintenance - The site and the small cell facility or wireless support structure, including but not limited to all landscaping, fencing, and related equipment, must be maintained in a neat and clean manner and in accordance with all approved plans and conditions of approval.
(8) Good Condition - Small cell facilities and wireless support structures shall at all times employ best practices and maintain in use only the best available technology and methods for preventing failures and accidents so that the same shall not menace or endanger the life or property of any person.
(9) Graffiti and Vandalism - Permittee shall remove any graffiti at permittee's sole expense.
(10) Utility Lines - Service lines must be undergrounded in all subdivisions consistent with Cortland Codified Ordinances and in all other places service lines shall be undergrounded whenever feasible to avoid additional overhead lines.
(11) Relocation for Public Improvements - Permittee shall remove and relocate the permitted small cell facility and/or wireless support structure at permittee's sole expense to accommodate construction of a public improvement project by the City.
(12) Removal if Discontinued - In the event that the use of a small cell facility is discontinued, the owner shall provide written notice to the City of its intent to discontinue use and the date when the use shall be discontinued. Thereafter the City may treat the discontinued facility in the same manner as the treatment of other discontinued equipment in the Right of Way as set forth in Cortland's Codified Ordinances.
(13) Abandoned - In the event that the use of a small cell facility is abandoned, the City may remove it at the owner's expense.
(14) Site Restoration.
A. Upon completion of the new work, the contractor shall restore the street and/or alley pavement as required;
B. Upon completion of the new work, the contractor shall restore all concrete walks, driveway aprons, and other concrete as required;
C. Upon completion of the new work, the contractor shall restore all tree lawns and/or sod strips with topsoil and sod.
(15) General Construction - All work and designs shall comply with the general standards for construction in the City's Right of Way as required by all right of way workers and all other applicable local, state and federal codes and regulations.
(16) Taxes and assessments - To the extent taxes and other assessments are imposed by taxing authorities on the use of City property as a result of an applicant's use or occupation of the right of way, the applicant shall be responsible for payment of such taxes, payable annually unless otherwise required by the taxing authority.
(17) Interference - Small cell wireless and wireless support structures shall be constructed and maintained in such a manner that will not interfere with the use of other property.
(18) Financial Condition - All owners must procure and provide to the City a bond, more must provide proof of an equivalent financial mechanism, to ensure compliance with all provisions of this chapter. Such bond or financial mechanism must specifically cover the cost of removal of the item placed in the Right of Way.
(19) Setbacks for Visibility and Access - Any new small cell facility or wireless support structure and other improvements associated with a new small cell facility or wireless support structure or an existing small cell facility or wireless support structure must be setback from intersections, alleys and driveways and placed in locations where it will not obstruct motorists' sightlines or pedestrian access.
(20) Obstructions - Any new small cell facility or wireless support structure and other improvements associated with a new small cell facility or wireless support structure or an existing small cell facility or wireless support structure shall not obstruct any:
A. Worker access to any above-ground or underground infrastructure for traffic control, streetlight or public transportation, including without limitation any curb control sign, parking meter, vehicular traffic sign or signal, pedestrian traffic sign or signal, barricade reflectors;
B. Access to any public transportation vehicles, shelters, street furniture or other improvements at any public transportation stop (including, without limitation, bus stops, streetcar stops and bike share stations);
C. Worker access to above ground or underground infrastructure owned or operated by any public or private utility agency;
D. Fire hydrant access;
E. Access to any doors, gates, sidewalk doors, passage doors, stoops or other ingress and egress points to any building appurtenant to the right of way; or
F. Access to any fire escape.
(21) Historic or Architecturally Significant Structures - Any new utility installation and other improvements associated with a new utility installation or an existing utility installation may not be placed directly in front of any Historic Properties or other historic or architecturally significant structures in prominent or highly visible locations.
(22) Landscape Restoration - All trees, landscaping and grounds removed, damaged or disturbed as a result of the siting, construction, placement, collocation, modification, operation, and removal of small cell facilities and/or wireless support structures must be replaced or restored as nearly as may be practicable, to the condition existing prior to performance of work.
(b) Design and Siting Requirements.
(1) General Requirements.
A. Wireless support structures shall align with other poles to achieve a uniform inline appearance.
B. Wireless support structures shall be setback from the edge of pavement according to applicable safety and construction standards as set forth in 1032.05.1.O - General.
C. All small cell facilities and wireless support structures and any related items shall be installed and maintained plumb and level and shall maintain an orderly and neat appearance.
D. All equipment and enclosures shall be attached, anchored and/or strapped tightly to poles using corrosion resistant steel hardware.
E. Wireless support structures shall support no more than two small cell facilities.
F. Ambient noise suppression measures or placement of the equipment in locations less likely to impact adjacent properties shall be required to ensure compliance with all applicable noise regulations.
G. Unless otherwise required for compliance with FAA or FCC regulations, the small cell facility or wireless support structure shall not include any permanently installed lights. Any lights associated with the equipment shall be appropriately shielded from public view. This shall not be interpreted to prohibit streetlights or the placement of luminaires by the City.
(2) Location.
A. In accordance with ORC 4939.0314(D), Authority of a Municipal Corporation, the City shall reserve the right to propose an alternate location to the proposed location of a new wireless support structure, provided the alternate location is within 100' or a distance equal to the width of the Right of Way in or on which the new wireless support structure is proposed, whichever is greater. The City also finds that certain locations and collocation configurations are preferred. A preferred location and collocation configuration should be utilized whenever possible and should only be surpassed if in the determination of the Service Director, clear and convincing evidence support such a decision. Cost alone should not be grounds for such a determination. The order of preference is as follows:
1. First, small cell facilities should be collocated on an existing pole or wireless support structure within a utility easement. If no such pole or wireless support structure is available then proceed to the next preference;
2. Second, small cell facilities should be collocated on an existing pole or wireless support structure within an alley. If no such pole or wireless support structure is available then proceed to the next preference;
3. Third, small cell facilities should be collocated on a new wireless support structure within a utility easement. If no such location is available then proceed to the next preference;
4. Fourth, small cell facilities should be collocated on a new wireless support structure within an alley. If no such location is available then proceed to the next preference;
5. Fifth, small cell facilities should be collocated on a wireless support structure currently supporting a small cell facility located within the City Right of Way. If no such wireless support structure is available then proceed to the next preference;
6. Sixth, small cell facilities should be collocated on an existing pole located within the City Right of Way. If no such existing pole is available then proceed to the next preference;
7. Seventh, small cell facilities should be collocated on a new wireless support structure located within a utility easement. If no such location is available then proceed to the next preference;
8. Eighth, small cell facilities should be collocated on a new wireless support structure located within an alley. If no such location is available then proceed to the next preference;
9. Ninth, small cell facilities should be collocated on a new wireless support structure located within the City Right of Way.
B. New wireless support structures shall be spaced from other small cell facilities consistent with the average spacing of the existing utility poles and street light poles along that portion of the right of way and if none, no closer than 500 feet unless such spacing requirement shall prohibit, or have the effect of prohibiting, the provision of wireless service to any location.
(3) Wireless Facilities Design.
A. Wireless support structures shall be subject to the following design standards:
1. Wireless support structures shall be limited to 40 feet in height.
2. Wireless support structures shall be capable of supporting at least two small cell facility operators.
3. New wireless support structures shall have design elements matching the aesthetics and character of the immediate area as determined by the Service Director. Such a determination shall be based on the following factors:
(i) The design features of nearby poles serving in a similar capacity;
(ii) The design features of the existing or proposed streetscape, district, or site;
(iii) The historical context of a district, Historic Property or specific site.
B. Small cell facilities and micro wireless facilities shall be subject to the following design standards:
1. The City reserves the right to require the following:
(i) Antenna and all associated equipment shall be concealed to the extent deemed necessary by the Service Director in response to the aesthetic context of the small cell facility. Some possible configurations include but shall not be limited to the following:
I. Antenna(s) associated with the first fitting on a wireless support structure shall be top-mounted and concealed within a radome that also conceals the cable connections, antenna mount and other hardware. The Service Director may approve a side-mounted antenna with the initial fitting if, in the Service Director's discretion, the side-mounted antenna would be a better match to the aesthetics and character of the immediate area and would promote the purposes of this Chapter.
II. GPS antennas be placed within the radome or directly above the radome not to exceed six inches.
2. Each antenna and all associated equipment shall not exceed 6 cubic feet in volume.
3. All portions of a Small Cell Facility other than an antenna and as identified by the ORC 4939.01 (P) 2, shall not exceed 28 cubic feet in volume per facility.
4. Small cell facilities mounted to a wireless support structure shall be completely concealed within a common enclosure capable of containing at least two small cell facilities. Such common enclosures shall:
(i) Not exceed 21 cubic feet in volume;
(ii) Not exceed 90 inches in height, 20 inches in width, or 20 inches in depth;
(iii) Not extend more than 24 inches away from the pole on which it is mounted;
(iv) Shall be centered on the vertical axis of the pole to which it is mounted;
(v) Be mounted at a distance of at least 10 feet measured from grade to the bottom of the enclosure;
(vi) Be mounted on the side of the pole facing away from nearest traffic lane's discretion of travel.
5. Such common enclosures shall have the following design elements:
(i) Material - the enclosure material shall be metal, a composite, or an equivalent material as determined by the Service Director.
(ii) Color - the enclosure shall match the color of the pole on which it is mounted.
(iii) Style - the enclosure shall match the style of the pole on which it is mounted.
(iv) Coordinated Design Elements - common enclosures shall match the material, color, and style of nearby existing common enclosures when:
I. Such enclosures are located within 5000' of an existing common enclosure; and
II. Such enclosures are mounted on wireless support structures of a similar or matching design.
(v) Exception - if the aesthetics and character of the immediate area would be better matched by an enclosure a different material, color, style, or by deviating from the design of a nearby existing common enclosure as determined by the Service Director, then such design elements may be substituted with an alternate design element. Such determination shall be based on the following factors:
I. The design features of nearby poles serving in a similar capacity;
II. The design features of the existing or proposed streetscape, district, or site;
III. The historical context of a district, Historic Property, or specific site;
IV. A desire to camouflage or conceal the enclosure from view.
6. All ground mounted equipment shall be placed in an underground vault in areas that are designated solely for underground utilities for all structures and facilities in the right of way. A waiver of this provision may be granted by the Service Director if the following applies:
(i) The applicant has submitted clear and convincing evidence that the equipment cannot feasibly be pole-mounted or place in a location in the public right of way where the above ground prohibition does not apply, placed in an underground vault, or hidden within or integrated into an existing streetscape element (i.e. - bus stop shelter). Increased costs alone shall not be a consideration. If a ground mounted enclosure is approved, the Service Director shall reserve the right to require any of the following conditions:
I. Concealed Enclosure - all equipment shall be completely concealed within a metal, composite, or equivalent material enclosure as determined by the Service Director.
II. Smallest Size - the enclosure shall be no larger than necessary based on the smallest available size of the proposed equipment as determined by the Service Director.
III. Camouflage - camouflaging elements may be required. Such elements may include, but shall not be limited to, public art displayed on the enclosure, strategic placement in less visible or obtrusive locations, placement within an existing streetscape element, landscape screening, and strategic painting or coating to camouflage such enclosure or equipment.
(ii) The maximum height of any such enclosure shall be 30".
(c) Reservation of Right of Way.
(1) The City reserves the right to reserve space for future public safety or transportation uses in the Right of Way or on a wireless support structure or pole owned or operated by the City in a documented and approved plan in place at the time an application is filed. A reservation of space shall not preclude placement of a pole or collocation of a small cell facility. If replacement of the City's pole or wireless support structure is necessary to accommodate the collocation of the small cell facility and the future use, the small cell facility operator shall pay for the replacement of the pole or wireless support structure, and the replaced pole or wireless support structure must accommodate the future use.
(2) The Service Director is authorized to make requests and to issue orders regarding utility installations in the right of way for the purpose of public safety and compliance with this Chapter. The Service Director is also authorized to conduct visual and external inspections of utility installations in the right of way at any time and shall make efforts to coordinate with the provider responsible for a utility installation for any internal inspection of the relevant equipment.
(d) Nonconformity. Nonconforming small cell facility and/or wireless support structure shall immediately lose its nonconforming designation and must be brought into compliance with all of the provisions of this chapter, and all other applicable City laws and ordinances or be removed if any of the following conditions are present:
(1) The nonconforming small cell facility and/or wireless support structure or a part of the nonconforming small cell facility and/or wireless support structure is altered, modified, relocated, replaced, or changed in any manner whatsoever;
(2) The nonconforming small cell facility and/or wireless support structure is damaged or deteriorated and required any process of reconstruction, repair, maintenance, or restoration, and the cost of said reconstruction, repair, maintenance, or restoration exceeds fifty percent of the small cell facility and/or wireless support structure's replacement cost;
(3) The nonconforming small cell facility and/or wireless support structure is abandoned.
(e) Conflict with other Provisions. In the event that any other applicable law or code requires any more restrictive requirements, the most restrictive requirement shall control.
(f) Severability. The provisions of any part of this chapter are severable. If any provision or subsection, or the application of any provision or subsection to any person or circumstance, is held invalid, the remaining provisions, subsection, and applications of such ordinance to other persons or circumstances shall not be made invalid as well. It is declared to be the intent of this section that the remaining provisions would have been adopted had such invalid provision not been included in this chapter when originally adopted by Council.
(g) Penalties.
(1) Any person in violation of any of the terms of this chapter, or who, being the owner or agent of the owner of any lot, tract, or parcel of land, shall suffer or permit another to erect, construct, reconstruct, alter, repair, convert, attach, or maintain any such facility, shall be deemed to have violated the provisions hereof and commits a misdemeanor of the second degree each day during the period such violation continues. Each and every failure to comply shall be considered a distinct and separate offense.
(2) If any utility installation is erected, constructed, reconstructed, altered, repaired, converted, attached, or maintained in violation of this chapter or of any regulations made pursuant hereto, the proper officer of the City, in addition to other remedies, may institute in the name of the City any appropriate action or proceeding, whether by legal process or otherwise, to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance, attachment, or use, to restrain, correct, or abate such violation, to prevent the use of such utility installation, and/or to prevent any illegal act, conduct business, or use in or about such utility installation.
(Ord. 0-27-18. Passed 7-16-18.)