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§ 155.290 PURPOSE.
   (A)   The provisions of this subchapter shall be known as the small cell facilities regulation. It is the purpose of these provisions to develop standards and siting criteria and to establish removal procedures.
   (B)   It is further the purpose of these provisions:
      (1)   To establish regulations and siting standards for small cell wireless communication facilities (SCFs), whether in the public right-of-way or on other public or private property, in a manner that will protect the public’s health, safety, and welfare and maintain the aesthetic integrity of the community;
      (2)   To facilitate the provisions of wireless communication services; and
      (3)   To provide regulations which are specifically not intended to and shall not be interpreted or applied to prohibit or effectively prohibit the provision of wireless services, unreasonably discriminate among functionally equivalent service providers, or regulate wireless communication facilities and wireless transmission equipment on the basis of the environmental effects of radio frequency emissions to the extent that such emissions comply with the standards established by the Federal Communications Commission.
(Ord. 591, passed 10-21-2019)
§ 155.291 DEFINITIONS.
   For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
   ADMINISTRATIVE OFFICIAL. The City Administrator for the City of Flandreau, South Dakota, or such other person(s) designated by either act of ordinance, resolution, motion, or such other official appointment determination made by the City Council for the purpose of overseeing the enforcement of this subchapter.
   ANTENNA. Any communications equipment that transmits or receives electromagnetic radio frequency signals used in the provisions of wireless services. This definition does not include broadcast radio or television antennas, antennas designed for amateur radio use, or satellite dishes for residential or household purposes.
   APPLICANT. Any person who submits an application as, or on behalf of, a wireless provider.
   CITY. The City of Flandreau, South Dakota.
   COLLOCATION. The mounting or installation of an antenna or a small cell facility on a pre-existing utility pole or SCF support structure and/or modifying a utility pole or SCF support structure for the purpose of mounting or installing an antenna or SCF on that utility pole or SCF support structure in order to transmit and/or receive radio frequency signals for communications purposes.
   FCC. The Federal Communications Commission.
   HEIGHT. The vertical distance measured from the base of the structure at grade to the highest point of the structure including the antenna.
   NETWORK INTERFACE DEVICE. The telecommunications demarcation and test point separating the wireless facility and the wireline backhaul facility.
   PERSON. An individual, corporation, limited liability company, partnership, association, trust, or other entity or organization including the city.
   PUBLIC RIGHT-OF-WAY or RIGHT-OF-WAY or ROW. The surface and space above and below any street, sidewalk, avenue, boulevard, alley, lane, easement, right-of-way, highway, or thoroughfare open for public use in which the city has an interest in law or equity whether held in fee or other estate or interest or as a trustee for the public.
   SMALL CELL FACILITY or SCF. A wireless facility that either meets all of the following qualifications or is within a stealth design that is consistent with the design guidelines.
      (1)   Each antenna is located inside an enclosure of not more than three cubic feet in volume, or in the case of an antenna that has been exposed to the elements, the antenna and all of its exposed elements could fit within an enclosure of no more than three cubic feet.
      (2)   Each provider’s equipment enclosures shall be no larger than 28 cubic feet in volume. The following associated equipment may be located outside of the primary equipment enclosure and, if so located, is not included in the calculation of equipment volume: electric meters, concealment measures, network interface devices, underground enclosures, back-up power systems, grounding equipment, power transfer switches, cut-off switches, cables, conduits, vertical cable runs for the connection of power and other services, and any equipment concealed from public view within or behind an existing structure or concealment.
      (3)   The facility is mounted on a utility pole or SCF support structure 50 feet or less in height, including antennas, on a utility pole or SCF support structure no more than 10% taller than other adjacent structures of substantially similar design or on an existing utility pole or SCF support structure on which it is to be located to a height of more than the greater of either 50 feet or the height of such utility pole or SCF support structure plus 10%.
   SMALL CELL FACILITY PERMIT. A permit authorizing the installation, construction, and maintenance of a small cell facility.
   SMALL CELL FACILITY SUPPORT STRUCTURE or SCF SUPPORT STRUCTURE. A structure such as a monopole or tower either guyed or self-supporting, billboard, building, or other existing structure designed to support, or capable of supporting, SCFs. Such term does not include a utility pole.
   STEALTH DESIGN. Any SCF that is integrated as an architectural feature of a utility pole or changes a support structure design so that the purpose of the utility pole or SCF support structure for providing wireless services is not readily apparent. This includes the ability of SCFs to blend into the neighborhood environment at a given location and camouflage or conceal the SCF subject to applicable law.
   UTILITY POLE. A pole or similar structure that is or may be used, in whole or in part, to facilitate telecommunications, electric, distribution, lighting, traffic control, signage, or to carry lines, cables, or other similar function or for location or collocation of small cell facilities. Such term does not include a SCF support structure.
   WIRELINE BACKHAUL FACILITY. An above-ground or underground wireline facility used to transport communications data from a wireless facility network interface device to a network.
   WIRELESS FACILITY. Equipment at a fixed location that enables wireless services between user equipment and a communications network including equipment associated with wireless communications, radio transceivers, antennas, coaxial or fiber optic cable located on a utility pole or SCF support structure or immediately adjacent to the utility pole or SCF support structure or directly associated with equipment located on the utility pole or SCF support structure, regular and backup power supplies and rectifiers, and comparable equipment regardless of technological configuration. The term includes SCFs but does not include the structure or improvements on, under, or within which the equipment is collocated or wireline backhaul facilities.
   WIRELESS INFRASTRUCTURE PROVIDER. A person that builds or installs wireless facilities or utility poles or SCF support structures but not a wireless provider.
   WIRELESS PROVIDER. A wireless infrastructure provider or a wireless service provider.
   WIRELESS SERVICES. Any services using licensed or unlicensed spectrum including the use of WiFi, whether at a fixed location or mobile, provided to the public.
   WIRELESS SERVICES PROVIDER. A person who provides wireless services.
(Ord. 591, passed 10-21-2019)
§ 155.292 APPLICABILITY.
   (A)   Permit processing. For all SCF installation types, including new and replacement utility poles and SCF collocation to existing SCF support structures or existing utility poles, the Administrative Official shall issue permits in accordance with the terms and procedures set forth in this subchapter.
   (B)   Zoning exemption. All SCF installations shall be exempt from general zoning restrictions unless a provision of such zoning code is explicitly cited by a section of this subchapter.
   (C)   Exempt activities. This subchapter shall not apply to routine maintenance or the replacement of an SCF, utility pole, or SCF support structure which was previously approved pursuant to this subchapter with another SCF, utility pole, or SCF support structure that is the same or substantially similar.
(Ord. 591, passed 10-21-2019)
§ 155.293 SITING AND COLLOCATION CRITERIA.
   (A)   SCFs shall:
      (1)   Be located on existing structures such as utility poles or SCF support structures; or
      (2)   Be located on public property and structures if the controlling public entity agrees to the placement.
   (B)   Applications to collocate SCFs at locations other than those listed above in division (A) above may not be approved administratively. However, if an applicant certifies that it is not technically feasible, economically feasible, or places an undue burden to collocate an SCF at a location designated in division (A) above, the applicant may request a special review of the application as provided under § 155.295. Such certification shall include a written statement indicating the reason why said location is not feasible.
(Ord. 591, passed 10-21-2019)
§ 155.294 PERMIT REQUIRED.
   An SCF permit shall be required to install any SCF, utility pole, or SCF support structure. Applications for an SCF permit shall be considered and approved pursuant to the provisions of this section. An SCF permit shall be deemed to include all other municipal permits which may be necessary to place and construct an SCF, utility pole, or SCF support structure as represented in an approved application. The granting of an SCF permit pursuant to this subchapter is not a grant of any franchise. All applications shall first be reviewed administratively and then, if not eligible for administrative approval, may be considered via the special review process.
(Ord. 591, passed 10-21-2019)
§ 155.295 PERMIT PROVISIONS AND PROCESS.
   (A)   General review provisions.
      (1)   Review period. The Administrative Official must approve or deny all SCF permit applications pursuant to this subchapter within 90 days after the date an application is filed for an SCF permit application to place a new utility pole or SCF support structure or within 60 days after the date an application is filed for collocation of an SCF. If approved, the permit shall be issued on or before day 90 or 60.
      (2)   Tolling of review period. An applicant and the Administrative Official can mutually agree in writing to toll the applicable review period at any time.
      (3)   Final decision. By the end of the applicable review period, the city must advise the applicant in writing of its final decision. If the final decision is to deny the application, the final decision shall state the basis for denial including specific code provisions on which the denial is based.
      (4)   Nondiscrimination. The Administrative Official shall process all applicants under this subchapter in a nondiscriminatory manner. Aesthetic requirements shall be reasonable, no more burdensome than for other types of infrastructure deployments, objective, and published in advance.
   (B)   Administrative review process. An application submitted pursuant to this subchapter shall be reviewed as follows:
      (1)   Submission of application. Applicant shall submit a complete SCF application accompanied by any corresponding application fee to the Administrative Official.
      (2)   Review for completeness.
         (a)   The Administrative Official shall review the application for completeness following submittal. The Administrative Official must provide a written notice of incompleteness to the applicant within ten days of receipt of the SCF permit application clearly and specifically delineating all missing information. Information specified in a notice of incompleteness shall be limited to that which is relevant to the approval or denial of an application under this subchapter.
         (b)   The applicant shall then submit all information specified in the notice of incompleteness. The applicable review period shall restart at zero on the date the applicant provides the missing information to complete the application.
         (c)   For subsequent determinations of incompleteness, the applicable review period shall be tolled if the Administrative Official provides written notice within ten days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The applicable review period will continue and shall not restart at zero on the date the applicant provides the missing information identified in a subsequent incompleteness review.
      (3)   Approval. An application may not be approved via the administrative review process unless the proposed SCF, utility pole, or SCF support structure meets all applicable location and design requirements of this subchapter. An application shall be approved via the administrative review process if the proposed SCF, utility pole, or SCF support structure meets all applicable location and design requirements of this subchapter.
   (C)   Special review process. An applicant may request a special review of an application which is not eligible for administrative approval due to not meeting the applicable location or design requirements of this subchapter and where compliance with said requirements is not technically feasible, economically feasible, or poses an undue burden. Special reviews shall be conducted by the Board of Adjustment in a public meeting. Notice of such meeting shall comply with SDCL § 1-25-1.1. The review hearing and final decision shall take place within the applicable 60-or-90 day review period which shall begin on the date a complete application is submitted to the Administrative Official.
   (D)   Vote of approval. The Board of Adjustment must approve, by majority vote of all members, an SCF application upon finding that the proposed installation has no reasonable alternative which better fits the location and design requirements of this subchapter. The Board shall deny an application which does have a reasonable alternative which better fits the location and design requirements of this subchapter. For an alternative to be reasonable, the alternative must be technically feasible, economically feasible, and must not impose an undue burden.
   (E)   After final determination. After the Board of Adjustment has made a determination on an SCF application, the Administrative Official shall issue an SCF permit if the application was approved. If denied, the Administrative Official shall provide a notice of final decision including the grounds upon which the Board of Adjustment denied the application.
(Ord. 591, passed 10-21-2019)
Statutory reference:
   Related provisions, see SDCL § -25-1.1
§ 155.296 PERMIT CONDITIONS.
   (A)   A permittee shall comply with all applicable law including, but not limited to, applicable historic preservation ordinances of the city and utility under grounding requirements.
   (B)   Issuance of any permit pursuant to this subchapter shall not confer any ownership rights in the public right-of-way.
   (C)   No permittee may construct, operate, place, locate, or maintain any small cell facility so as to interfere with the use of the public right-of-way by the city, the general public, or any other persons authorized to use or be present in or upon the public right-of-way.
   (D)   No permittee or affiliate thereof shall take any action or cause any action to be done which may impair or damage any ROW or other property located in, on, or adjacent thereto. Any and all public right-of-way, public property, or private property that is disturbed or damaged by the permittee or affiliate thereof during the construction, operation, maintenance, or repair of a small cell facility shall be promptly repaired by permittee. In the event the permittee fails to make such repairs within a reasonable time period, the city may complete or cause to be completed the repair work and bill the actual and reasonable costs to the permittee. Public property, private property, and public right-of-way must be restored to as good a condition as before the disturbance or damage occurred to the reasonable satisfaction of the city.
   (E)   In the event of an unexpected repair or emergency, the owner of a small cell facility may commence such repair and emergency response work as required under the circumstances provided it shall notify the city promptly before such repair or emergency work or the next day thereafter if advance notice is not practicable.
   (F)   Each permittee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state, and local requirements. The permittee shall be responsible for all electrical or other utility costs associated with operating each installed SCF.
   (G)   Every small cell facility shall be subject to the right of periodic inspection by the city after notification to the small cell facility owner. Each operator must respond to requests for information regarding its system and plans for the system as the city may from time to time issue including requests for information regarding its plans for construction, operation, and repair of the public right-of-way.
   (H)   The city retains the right and privilege, after notifying the small cell facility owner, to move any small cell facility located within the public right-of-way as the city may determine to be necessary in response to any public health or safety emergency.
   (I)   To the extent permitted by state law, the city shall not be liable for any damage to any small cell facility within the public right-of-way as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the public right-of-way by or on behalf of the city except to the extent such damage is due to or caused by the city’s negligence or willful misconduct.
   (J)   Restoration shall comply with the following.
      (1)   When a permittee or any person acting on its behalf does any work in or affecting any public right-of-way, it shall, at its own expense, promptly remove any obstructions therefrom and restore such right-of-way or property to the same or better than the condition which existed before the work was undertaken. As used in this section, PROMPTLY shall mean as soon as required by the city in the reasonable exercise of the city’s discretion.
      (2)   If weather or other conditions do not permit the complete restoration required hereunder, the permittee shall temporarily restore the affected right-of-way or property. Such temporary restoration shall be at the permittee’s sole expense, and the permittee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.
      (3)   A permittee or other person acting on its behalf shall use suitable barricades, flags, flaggers, lights, flares, and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle, or property by reason of such work in or affecting the right-of-way.
      (4)   Restoration and repair work shall be the responsibility of the permittee for two years after completion thereof. Such work shall be limited to further restoration or repairs arising out of deficient completion of the initial work but shall not include further restoration or repairs arising out of events not related to the initial completion of the work.
   (K)   The site and small cell facilities and SCF support structures including all landscaping, fencing and related transmission equipment must be maintained at all times in a neat and clean manner and in accordance with all approved plans. This includes, but is not limited to, mowing, weeding, and trimming.
   (L)   All graffiti on small cell facilities must be removed at the sole expense of the permit holder after notification by the city to the owner or operator of the small cell facilities.
   (M)   A certificate of completion shall be required.
      (1)   A certificate of completion will only be granted upon satisfactory evidence that the SCF was installed in substantial compliance with the approved plans and photo simulations.
      (2)   If it is found that the SCF installation does not substantially comply with the approved plans and photo simulations, the applicant shall make any and all such changes required to bring the SCF installation into compliance within the time frame established by the municipality. Failing to obtain a certificate of completion within the applicable time frame shall cause a permit to be revoked.
   (N)   All small cell facilities must comply with all standards and regulations of the FCC and any state or other federal government agency with the authority to regulate small cell facilities.
   (O)   Each applicant shall secure and maintain liability insurance policies, as accepted by the city, insuring the applicant, the city, and the city’s elected and appointed officers, officials, boards, commissions, agents, representatives, and employees as additional insureds as their interest may appear under this section except workers compensation and employer’s liability which insurance shall be maintained during and for one year after termination of the permit. Expected coverage shall be the same or substantially similar to the following:
      (1)   General liability insurance with limits of:
         (a)   Five million dollars per occurrence for bodily injury including death;
         (b)   Two million dollars for property damage resulting from any one accident; and
         (c)   Five million dollars general aggregate including premises operations, products, completed operations, explosions, collapse, and underground hazards.
      (2)   Automobile liability for owned, non-owned, and hired vehicles in the amount of $2,000,000 combined single limit for each accident for bodily injury and property damage; and
      (3)   Worker’s compensation within state statutory limits and employer’s liability insurance with limits of $1,000,000 each accident, disease, or policy limit.
   (P)   Upon receipt of notice from its insurer(s), an applicant shall provide the city with 30 days prior written notice of cancellation of any required coverage. The applicant shall obtain and furnish to the city replacement insurance policies meeting the requirements of this section.
   (Q)   Upon approval of an SCF application, the permittee shall post a bond, letter of credit, or other form of surety acceptable to the city.
      (1)   The purpose of such financial assurance shall be to:
         (a)   Provide for the removal of abandoned or improperly maintained SCFs including those that the city determines need to be removed to protect public health, safety, or welfare;
         (b)   Restoration of the ROW in connection with removals as provided for in this subchapter; or
         (c)   Recoup rates or fees that have not been paid by the permittee in over 12 months, so long as the permittee has received reasonable notice from the city of any of the non-compliance listed above and an opportunity to cure.
      (2)   The amount of the financial assurance shall be $200 per approved SCF permit. For permittees with multiple SCFs within the city, the total amount of financial assurance across all facilities may not exceed $10,000 which amount may be combined into one surety instrument.
(Ord. 591, passed 10-21-2019)
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