1149.09 JOINT PLANNING AND CONSTRUCTION.
(a) In order to promote the purposes of this chapter and the policy set forth herein, the Municipality shall perform an administrative review for all Right-Of-Way Occupancy Applications including the location or installation of new, modified or replacement poles and/or support structures and the Collocation of Small Wireless Facilities and equipment on Poles or Support Structures. Review factors, in addition to location, shall include the size, shape, color, texture, and materials of the structures and attachments. Such regulations shall not, however, require a Permittee to divulge trade secrets or other competitively sensitive confidential information, release of which would cause material injury to the Permittee. Such regulations shall also require any confidential information of a Permittee in the possession of the City be treated as such, to the extent such information does not legally constitute a public record.
(1) The Municipality may require that a proposed Small Wireless Facility or new, modified, or replacement Pole be designed to not be significantly more readily apparent or plainly visible (to a reasonable person of ordinary sensibilities) than existing facilities, structures, equipment, and Poles located within five hundred (500) linear feet on the same ROW as the subject Small Wireless Facility, Pole, or Support Structure.
(2) Where Small Wireless Facilities are determined to be appropriate, the use of reasonable stealth and concealment treatments, low-profile equipment and control boxes, and screening may be required to avoid significant negative impacts on the character and visual aesthetics of the area. However, such requirements may be waived by the Municipality upon a showing that the particular location of a Small Wireless Facility does not warrant stealth or concealment treatments or imposes an excessive expense. The waiver shall be granted or denied within forty-five (45) days after the date of the request.
(3) Supplemental Review Districts identified in Exhibit A Design Guidelines and Requirements as the Historic District - Zone 3 and Underground District - Zone 2 may be subject to a higher level of review.
(4) The Municipality may maintain a Design Manual which sets forth additional aesthetic, design, concealment, and stealth requirements applicable to Small Wireless Facilities. The Design Manual may also, but need not, set forth examples of Small Wireless Facility deployments that the Municipality deems to comply with this Ordinance and provide a means for pre-approval of designs that are suitable for a particular location, even if not strictly compliant with the design, placement, and aesthetic requirements of this Ordinance provided the design otherwise serves the goals of this Ordinance. Exhibit A Design Guidelines & Requirements may be amended from time to time by way of a duly enacted resolution.
(b) Maximum Size of Permitted Use.
(1) New Small Wireless Facilities (including any related Antenna) in the ROW may not extend more than five (5) feet above an existing pole in place as of the effective date of this chapter, or for Small Wireless Facilities (including any related Antenna) on a new Pole, above the height permitted for a new Pole pursuant to this section.
(2) Each new, modified, or replacement Pole installed in the ROW may not exceed the greater of five (5) feet in height above the tallest existing Pole in place as of the effective date of this chapter located within five hundred (500) feet of the new, modified, or replacement Pole in the same ROW, if a compatible pole height cannot be determined, then a maximum of forty (40) feet above ground level shall be used.
(3) For Applications to place Poles in residential zoning districts to deploy Small Wireless Facilities, the Municipality may propose an alternate location in the ROW within two hundred fifty (250) feet of the location set forth in the Application, and the Wireless Provider shall use the Municipality's proposed alternate location unless the location is not Technically Feasible or imposes significant additional costs. The Wireless Provider shall certify that it has made such a determination in good faith, based on the assessment of an engineer licensed in Ohio, and it shall provide a written summary of the basis for such determination.
(4) Collocation is not allowed on a Decorative Pole less than twenty (20) feet in height.
(5) New Poles are not permitted in a corridor where there are existing Poles that can be used, modified, or replaced to allow the proposed Collocation, unless the Applicant can demonstrate that:
A. It is not Technically Feasible to use, modify, or replace such existing Poles; or
B. Such use, modification, or replacement would impose significant additional costs on the Wireless Provider, as certified by the Wireless Provider in good faith and based on the assessment of an engineer licensed in Ohio along with a written summary of the basis for the certification; or
C. A new Pole may be placed in a manner that will cause no more interference with the ROW and will have no more of an impact on the overall appearance of the corridor and on adjoining properties than would the use, modification, or replacement of an existing Pole.
(c) Supplemental Review Districts. Collocated Small Wireless Facilitates and new, modified, or replacement Poles or Support Structures located in Supplemental Review Districts shall be subject to the compliant provisions pertaining to design and aesthetic standards in the ordinance establishing the Supplemental Review District(s) in addition to the requirements of this chapter. In addition, the following rules shall apply within the Supplemental Review Districts.
(1) Underground Districts. A Wireless Provider shall comply with reasonable and nondiscriminatory requirements that prohibit the installation of Poles in the ROW in an Underground District where:
A. No less than sixty days prior to the submission of the Application, the Municipality has required all such lines to be placed underground;
B. Poles the Municipality allows to remain are made available to Wireless Providers for the Collocation of Small Wireless Facilities and may be replaced by a Wireless Provider to accommodate the Collocation of Small Wireless Facilities in compliance with this Ordinance; and
C. A Wireless Provider is allowed to install a new Pole when it is not able to provide Wireless Services by Collocating on a remaining Pole or Support Structure.
Nothing in this section shall prohibit the use or replacement of existing Poles or Support Structures in Underground Districts for the Collocation of Small Wireless Facilities subject to appropriate design and concealment measures and a finding that such use or replacement does not increase the height of the Pole or Support Structure by more than three (3) feet.
For any such Application to install a new Pole in an Underground District, the City may propose an alternate location in the ROW within two hundred fifty (250) feet of the location set forth in the Application. The Wireless Provider shall use the City’s proposed alternate location unless the location is not Technically Feasible or imposes significant additional costs. The Wireless Provider shall certify that it has made such a determination in good faith, based on the assessment of an engineer licensed in Ohio, and it shall provide a written summary of the basis for such determination. For Small Wireless Facilities installed before the City establishes an Underground District, the City shall either permit Wireless Providers to
maintain the Small Wireless Facilities in place or permit the Wireless Provider to replace the associated Pole within fifty (50) feet of the prior location. In the latter case, the Wireless Provider shall allow other Communications Service Providers with attachments on the existing Pole to place those attachments on the replacement Pole under the same or reasonably similar fees, rates, terms, and conditions as applied to those attachments on the existing Pole.
(2) Historic and Underground Districts. The City may require reasonable, Technically Feasible, nondiscriminatory, and technologically neutral design and aesthetic requirements, stealth requirements, height limitations of no less than forty feet, and/or concealment measures in a Underground District or Historic District. For Applications to place Poles in a Underground District or a Historic District to deploy Small Wireless Facilities, the City may propose an alternate location in the ROW within two hundred fifty (250) feet of the location set forth in the Application. The Wireless Provider shall use the City’s proposed alternate location unless the location is not Technically Feasible or imposes significant additional costs. The Wireless Provider shall certify that it has made such a determination in good faith, based on the assessment of an engineer licensed in Ohio, and it shall provide a written summary of the basis for such determination.
This section may not be construed to limit a City’s authority to enforce historic preservation zoning regulations consistent with the preservation of local zoning authority under Chapter 1341 of the Codified Ordinances, the requirements for facility modifications under Small Cell Design Guidelines and Requirements Exhibit A, or the National Historic Preservation Act of 1966 (54 U.S.C. Section 300101 et seq.), and the regulations adopted to implement those laws.
(d) Appeals, Special Exceptions, and Variance Requirements. Appeals of administrative decisions and requests for special exceptions and variances from the provisions of this chapter, when strict application would result in an unnecessary hardship or in the inability to deploy needed Small Wireless Facilities, shall be heard and decided by the Board of Zoning Appeals or equivalent board for Supplemental Review Districts. An Applicant seeking a special exception to construct a new Decorative Pole, Pole, or Support Structure to Collocate a Small Wireless Facility in an Underground District shall demonstrate, including certification through an engineer, that it has diligently attempted to locate the proposed Decorative Pole, Pole, Support Structure, or Small Wireless Facility outside of the Underground District and that placement of the Decorative Pole, Pole, Support Structure, or Small Wireless Facility within the Underground District is necessary to provide the needed wireless coverage or capacity, and one or more of the following conditions exist supporting a Special Exception:
(1) No existing Pole or Support Structure is located within the location search radius or to the extent a Pole or Support Structure is located within the search radius, such Pole or Support Structure:
A. Is not available for Collocation under commercially reasonable rates, terms, and conditions;
B. Cannot accommodate the Collocation of the Small Wireless Facility and meet the technical requirements necessary to deliver adequate wireless service coverage or capacity; or
C. Would require modifications exceeding the height limitation imposed in Small Cell Design Guidelines and Requirements Exhibit A; or
(2) The only available option to deliver adequate wireless service coverage or capacity in the search radius requires modifications to an existing Pole or Support Structure exceeding the height limitation imposed in Small Cell Design Guidelines and Requirements Exhibit A or the installation of a new Pole or Support Structure for Collocation of a Small Wireless Facility, or
(3) The applicant has demonstrated other circumstances that, in the reasonable discretion of the applicable review body, warrant a special exception or variance.
The Applicant shall abide by the design, stealth, and concealment treatments imposed as conditions of the special exception.
(e) Existing Supplemental Review Districts. [Supplemental Review Districts approved by the City as of the effective date of this chapter are listed in Small Cell Design Guidelines and Requirements Exhibit A.] Nothing in this chapter shall prohibit or otherwise limit the City from establishing additional Supplemental Review Districts, provided however, that facilities and structures for which a Permit was approved or deemed approved pursuant to this chapter prior to the establishment of the additional Supplemental Review District remain subject to the provisions of this chapter, including routine maintenance and replacement of those facilities and structures as set out herein. If a Wireless Provider voluntarily replaces such facilities in a manner that does not comply Small Cell Design Guidelines and Requirements Exhibit A Ordinance, or if a Wireless Provider voluntarily relocates such facilities, such replacement or relocation is subject to the then-existing provisions and requirements of the additional Supplemental Review District.
(f) Decorative Poles. Subject to the City’s ability to deny an Application as set forth in this chapter, a Wireless Provider must be permitted to Collocate on or replace Decorative Poles when necessary to deploy a Small Wireless Facility.
(1) The City may require the Collocation on a Decorative Pole or the replacement of a Decorative Pole to reasonably conform to the design aesthetics of the original Decorative Pole, provided these requirements are Technically Feasible.
(2) For Applications to Collocate Small Wireless Facilities on Decorative Poles or to replace Decorative Poles to deploy Small Wireless Facilities, the City may propose an alternate location in the ROW within two hundred fifty (250) feet of the location set forth in the Application. The Wireless Provider shall use the City’s proposed alternate location unless the location is not Technically Feasible or imposes significant additional costs. The Wireless Provider shall certify that it has made such a determination in good faith, based on the assessment of an engineer licensed in Ohio, and it shall provide a written summary of the basis for such determination.
(g) Repair of Damage. A Wireless Provider shall repair all damage to the ROW directly caused by the activities of the Wireless Provider in the ROW and shall restore the ROW to its condition before the damage occurred. If within thirty (30) calendar days after written notice the Wireless Provider fails to the extent practicable in the reasonable judgment of the City to restore the ROW to its condition prior to the damage in compliance with this subsection, the City may, at the sole discretion of the City , restore the ROW to such condition and charge the applicable party the reasonable, documented cost of the restoration, plus a penalty not to exceed five hundred dollars ($500.00) provided; however, that the Wireless Provider may request additional time to make such repairs, and the City shall not unreasonably deny such a request. The City may suspend the ability of the Wireless Provider to receive any new Permits from the City until the Wireless Provider has paid the amount assessed for such restoration costs. The City shall not suspend such ability of any Applicant that has deposited the amount in controversy in escrow pending an adjudication of the merits of the dispute.
(Ord. 11-22. Passed 2-7-22.)