939.06 APPLICATION REVIEW AND WIRELESS FACILITY RIGHT-OF-WAY OCCUPANCY PERMIT.

   (a)   General Standard of Review for Wireless Communications Facilities. All wireless communications facilities in the right of way shall conform to the provisions of this chapter and to the Design Guidelines as modified from time to time by the City of Findlay Engineering Department. The City of Findlay Engineering Department shall review and consider each application according to the application classifications, review processes, and deployment standards described in the Design Guidelines.

   (b)   Notice to Residents. Within 10 days of filing a Type II or Type III application, the applicant shall provide the City of Findlay Engineering Department with proof of notice to the owners of all real property located within a 200-foot radius of the site of the proposed Wireless Communications Facility as well as notice to the corresponding community council(s). The notice shall inform interested persons of the opportunity to file written comments to be submitted to the City of Findlay Engineering Department, which comments should address whether the application conforms to the provisions of this chapter. The applicant shall provide the City of Findlay Engineering Department with proof that the notice required under this section has been given, including a mailing list for all recipients and a copy of the mailed notice. Notwithstanding the above, City of Findlay Engineering Department at its discretion, may provide additional public notice if it determines such notice is in the best interests of the public. Notice shall not be required for Type I applications.

   (c)   Written Decision. Within five working days after the City of Findlay Engineering Department renders a decision on an application, it shall send written notice to the applicant. Any denial shall include the reasons for the denial and information regarding the process for an administrative appeal under Section 939.06.

   (d)   Approval. Approval of an application shall include the following permissions:

      (1)   Permit to construct. A permit to construct the approved wireless communications facility, subject to any conditions established by the City of Findlay Engineering Department to carry out the purposes and intent of this chapter and the Cincinnati Municipal Code.

       (2)   Wireless facility right-of-way occupancy permit. A wireless right-of-way occupancy permit ("Wireless ROW Permit") granting the applicant permission to occupy the right of way at the proposed site and subject to (a) the standard conditions required by Section 939.07 and (b) any additional conditions required by the City of Findlay Engineering Department to carry out the purposes and intent of this chapter and the Findlay Municipal Code. The Wireless ROW Permit shall not convey title, equitable or legal, in the right of way.

   (e)   Restrictions on Wireless ROW Permits. A Wireless ROW Permit may be transferred upon notification to the city and acceptance by the transferee to allow the transferee to site wireless facilities in the same location on the same supporting structure as the transferor. Such a transfer may be made only to a provider who possesses a current Wireless ROW Permit from the city for siting wireless facilities elsewhere in the right of way.

   (f)    Denial. The city reserves the right to deny an application if any one of the following conditions exist:

      (1)   The applicant has not demonstrated that its application conforms to the provisions of this chapter and the Findlay Municipal Code, including the Design Guidelines established pursuant to this chapter;

      (2)   The applicant is not authorized to conduct business in the State of Ohio;

      (3)   For any Type I application, the applicant has failed to show that the project qualifies for approval pursuant to 47 U.S.C. § 1455(a) and the related FCC regulations at 47 C.F.R. § 1.40001 et seq.;

      (4)   For any Type II or Type III application, the applicant has failed within the prior three years to comply or is presently not in full compliance with the requirements of this chapter with regard to another Wireless Communications Facility that is not the subject of the application in question;

      (5)   The applicant is in default of its obligation to pay to the city fees imposed by this chapter;

      (6)   The design or location does not comply with the relevant standards promulgated by the American Association of State Highway and Transportation Officials (AASHTO) and utilized by the department of transportation of engineering for construction in the right of way;

      (7)   The design or location does not comply with current or proposed Americans with Disabilities Act Accessibility Guidelines (ADAAG) promulgated by the United State Access Board.

   (g)   Appeal of Denial on the Merits. Upon denial of an application for failure to meet the requirements of this chapter, the applicant may appeal the decision to the Public Service Director for reconsideration. The appeal must be in writing and delivered to the director no later than 5:00 p.m. (EST) on the tenth business day after written notification by the city of denial of the permit. An appeal must provide a detailed explanation, in writing, of the reasons the applicant contends the proposed wireless facility satisfies the requirements of Chapter 939 (including if the application qualifies for a limited exemption for personal wireless service facilities under Section 939.06(h). The appeal should include supporting documentation. The director shall review the written appeal together with other evidence in the record and grant the permit if the director determines that, based on substantial evidence in the application record, the permit complies with the requirements of Chapter 939. The director shall issue a written decision within ten (business days of the filing of the appeal. Failure by applicant to appeal and request reconsideration under this section shall constitute a failure to exhaust administrative remedies for purposes of any subsequent appeal in a court of law.

   (h)   Limited Exemption for Personal Wireless Service Facilities. Federal law prohibits a permit denial when it would effectively prohibit the provision of personal wireless services. Due to wide variation among wireless facilities and technical service objectives, and due to changed circumstances over time, a limited exemption for proposals in which strict compliance with this chapter would effectively prohibit personal wireless services serves the public interest. Circumstances in which an effective prohibition may occur are extremely difficult to discern, and specified findings to guide the analysis promotes clarity and the City's legitimate interest in well-planned wireless facilities deployment. Therefore, in the event that any applicant asserts that strict compliance with any provision in this chapter, as applied to a specific proposed wireless communications facility, would effectively prohibit the provision of personal wireless services, the Public Service Director may grant a limited, one-time exemption from strict compliance, subject to the following provisions:

      (1)   Required findings. The director of the department of transportation and engineering shall not grant any exemption unless the applicant provides each of the following:

         i.   Evidence that the proposed wireless facility qualifies as a "personal wireless services facility" as defined in 47 U.S.C. § 332(c)(7)(C)(ii);

         ii.   A clearly defined and reasonable technical service objective and a clearly defined potential site search area; and

         iii.   A meaningful comparative analysis that includes the factual reasons why (1) any alternative location(s) or design(s) suggested by the City or otherwise identified in the administrative record are not technically feasible and (2) the proposed location and design deviation is the least noncompliant location and design necessary to reasonably achieve the applicant's technical service objective.

      (2)   Scope of exemption. The Public Service Director shall limit the exemption to the extent to which the applicant demonstrates such exemption is necessary to reasonably achieve its reasonable technical service objectives. The City of Findlay Engineering Department may adopt conditions of approval specific to a permit issued as a limited exemption pursuant to this section, as reasonably necessary to promote the purposes in this chapter and protect the public health, safety, and welfare.

         (Ord. 2017-037. Passed 5-2-17.)