A. Purpose and Scope.
1. Purpose. The purpose of this section is to establish regulations, standards and procedures for the siting and collocation of small wireless facilities on rights-of-way within the Village's jurisdiction, or outside the rights-of-way on property zoned by the Village exclusively for commercial or industrial use, in a manner that is consistent with the Act.
2. Conflicts with Other Ordinances. This section supersedes all Ordinances or parts of Ordinances adopted prior hereto that are in conflict herewith, to the extent of such conflict.
3. Conflicts with state and Federal Laws. In the event that applicable federal or State laws or regulations conflict with the requirements of this section, the wireless provider shall comply with the requirements of this section to the maximum extent possible without violating federal or state laws or regulations.
B. Definitions: For the purposes of this section, the following terms shall have the following meanings:
ANTENNA: | Communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services. |
APPLICABLE CODES: | Uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to those codes, including the National Electric Safety Code. |
APPLICANT: | Any person who submits an application and is a wireless provider. |
APPLICATION: | A request submitted by an applicant to the Village for a permit to collocate small wireless facilities, and a request that includes the installation of a new utility pole for such collocation, as well as any applicable fee for the review of such application. |
COLLOCATE OR COLLOCATION: | To install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to a wireless support structure or utility pole. |
COMMUNICATIONS SERVICE: | Cable service, as defined in 47 U.S.C. 522(6), as amended; information service, as defined in 47 U.S.C. 153(24), as amended; telecommunications service, as defined in 47 U.S.C. 153(53), as amended; mobile service, as defined in 47 U.S.C. 153(53), as amended; or wireless service other than mobile service. |
COMMUNICATIONS SERVICE PROVIDER: | A cable operator, as defined in 47 U.S.C. 522(5), as amended; a provider of information service, as defined in 47 U.S.C. 153(24), as amended; a telecommunications carrier, as defined in 47 U.S.C. 153(51), as amended; or a wireless provider. |
CONSTRUCTION OR CONSTRUCT: | The installation, repair, maintenance, placement, alteration, enlargement, demolition, modification or abandonment in place of facilities. |
EMERGENCY: | Any immediate maintenance to the facility required for the safety of the public using or in the vicinity of the right of way or immediate maintenance required for the health and safety of the general public served by the utility. |
FCC: | The Federal Communications Commission of the United States. |
FEE: | A one-time charge. |
HIGHWAY: | A specific type of right of way used for vehicular traffic including rural or urban roads or streets. "Highway" includes all highway land and improvements, including roadways, ditches and embankments, bridges, drainage structures, signs, guardrails, protective structures and appurtenances necessary or convenient for vehicle traffic. |
HIGHWAY CODE: | The Illinois Highway Code, 605 Illinois Compiled Statutes 5/1-101 et seq., as amended from time to time. |
HISTORIC DISTRICT OR HISTORIC LANDMARK: | A building, property, or site, or group of buildings, properties, or sites that are either: 1. Listed in the National Register of Historic Places or formally determined eligible for listing by the Keeper of the National Register, the individual who has been delegated the authority by the federal agency to list properties and determine their eligibility for the National Register, in accordance with Section VI.D.1.a.i through Section VI.D.1.a.v of the Nationwide Programmatic Agreement codified at 47 CFR Part 1, Appendix C; or 2. Designated as a locally landmarked building, property, site, or historic district by an ordinance adopted by the Village pursuant to a preservation program that meets the requirements of the Certified Local Government Program of the Illinois State Historic Preservation Office or where such certification of the preservation program by the Illinois State Historic Preservation Office is pending. |
LANDSCAPING: | Natural screening around a utility pole or ground equipment related to small wireless facilities in a manner satisfactory to the Village. |
LAW: | A federal or State statute, common law, code, rule, regulation, order, or local ordinance or resolution. |
MICRO WIRELESS FACILITY: | A small wireless facility that is not larger in dimension than twenty-four (24) inches in length, fifteen (15) inches in width, and twelve (12) inches in height and that has an exterior antenna, if any, no longer than eleven (11) inches. |
MUNICIPAL UTILITY POLE: | A utility pole owned or operated by the Village in public rights-of-way. |
PERMIT: | A written authorization required by the Village to perform an action or initiate, continue, or complete a project. |
PERSON: | An individual, corporation, limited liability company, partnership, association, trust, or other entity or organization. |
PUBLIC SAFETY AGENCY: | The functional division of the Federal government, the state, a unit of local government, or a special purpose district located in whole or in part within this state, that provides or has authority to provide firefighting, police, ambulance, medical, or other emergency services to respond to and manage emergency incidents. |
RATE: | A recurring charge. |
RIGHT-OF-WAY OR RIGHTS-OF-WAY: | The area on, below, or above a public roadway, highway, street, public sidewalk, alley, or utility easement dedicated for compatible use; and any street, alley, other land or waterway, dedicated or commonly used for utility purposes. Right-of-way shall not include any real or personal village property that is not specifically described in the previous two sentences and shall not include village buildings, fixtures, and other structures or improvements, regardless of whether they are situated in the right of way. Right-of-way does not include village-owned aerial lines. |
ROADWAY: | That part of the highway that includes the pavement and shoulders. |
SMALL WIRELESS FACILITY: | A low-powered wireless base station, including an antenna, transceiver equipment, and cabinets, that functions like a cell in a wireless mobile network but provides significantly smaller coverage area than a traditional macro cell. The term Small Wireless Facility, also known as a "small cell" includes microcells, DAS installations, PWS facilities, and all similar facilities; and a wireless facility that meets both of the following qualifications: 1. Each antenna is located inside an enclosure of no more than six (6) cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than six (6) cubic feet; and 2. All other wireless equipment attached directly to a utility pole associated with the facility is cumulatively no more than twenty-five (25) cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meter, concealment elements, telecommunications demarcation box, ground-based enclosures, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for the connection of power and other services. |
TELECOMMUNICATIONS: | Includes, but is not limited to, messages or information transmitted through use of local, toll, and wide area telephone service, channel services, telegraph services, teletypewriter service, computer exchange service, private line services, specialized mobile radio services, or any other transmission of messages or information by electronic or similar means, between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite, or similar facilities. Unless the context clearly requires otherwise, "telecommunications" shall also include wireless telecommunications as defined in the Illinois telecommunications infrastructure maintenance fee act, 35 Illinois Compiled Statutes 635/1 et seq. "Telecommunications " shall not include value added services in which computer processing applications are used to act on the form, content, code, and protocol of the information for purposes other than transmission. "Telecommunications" shall not include purchase of telecommunications by a telecommunications service provider for use as a component part of the service provided by him to the ultimate retail consumer who originates or terminates the end to end communications. Retailer access charges, right of access charges, charges for use of intercompany facilities, and all telecommunications resold in the subsequent provision and used as a component of, or integrated into, end to end telecommunications service shall not be included in gross charges as sales for resale. "Telecommunications" shall not include the provision of cable services through a cable system as defined in the cable communications act of 1984 (47 USC section 521 and following) as now or hereafter amended or cable or other programming services subject to an open video system fee payable to the Village through an open video system as defined in the Rules of the federal communications commission (47 CDF 76.1550 and following) as now or hereafter amended. |
UTILITY: | The individual or entity owning or operating any "facility" as defined in this Section. |
UTILITY POLE: | A pole or similar structure that is used in whole or in part by a communications service provider or for electric distribution, lighting, traffic control, or a similar function. |
VILLAGE: | The Village of Hawthorn Woods. |
WIRELESS FACILITY: | Equipment at a fixed location that enables wireless communications between user equipment and a communications network, including: 1. Equipment associated with wireless communications; and 2. Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. Wireless facility includes small wireless facilities. Wireless facility does not include: 1. The structure or improvements on, under, or within which the equipment is collocated; or 2. Wireline backhaul facilities, coaxial or fiber optic cable that is between wireless support structures or utility poles or coaxial, or fiber optic cable that is otherwise not immediately adjacent to or directly associated with an antenna. |
WIRELESS INFRASTRUCTURE PROVIDER: | Any person authorized to provide telecommunications service in the State that builds or installs wireless communication transmission equipment, wireless facilities, wireless support structures, or utility poles and that is not a wireless services provider but is acting as an agent or a contractor for a wireless services provider for the application submitted to the Village. |
WIRELESS PROVIDER: | A wireless infrastructure provider or a wireless services provider. |
WIRELESS SERVICES: | Any services provided to the general public, including a particular class of customers, and made available on a nondiscriminatory basis using licensed or unlicensed spectrum, whether at a fixed location or mobile, provided using wireless facilities. |
WIRELESS SERVICES PROVIDER: | A person who provides wireless services. |
WIRELESS SUPPORT STRUCTURE: | A freestanding structure, such as a monopole; tower, either guyed or self-supporting; billboard; or other existing or proposed structure designed to support or capable of supporting wireless facilities. Wireless support structure does not include a utility pole. |
C. Regulation of Small Wireless Facilities.
1. Permitted Use. Small wireless facilities shall be classified as permitted uses and subject to administrative review, except as provided in paragraph (9) regarding Height Exceptions or Variations, but not subject to zoning review or approval if they are collocated:
a. In rights-of-way in any zoning district; or
b. Outside rights-of-way in property zoned exclusively for commercial or industrial use.
2. Permit Required. An applicant shall obtain one or more permits from the Village to collocate a small wireless facility. An application shall be received and processed, and permits issued shall be subject to the following conditions and requirements:
a. Application Requirements. A wireless provider shall provide the following information to the Village, together with the Village's Small Cell Facilities Permit Application, as a condition of any permit application to collocate small wireless facilities on a utility pole or wireless support structure:
(1) Site specific structural integrity and, for a municipal utility pole, make-ready analysis prepared by a structural engineer, as that term is defined in Section 4 of the Structural Engineering Practice Act of 1989;
(2) The location where each proposed small wireless facility or utility pole would be installed and photographs of the location and its immediate surroundings depicting the utility poles or structures on which each proposed small wireless facility would be mounted or location where utility poles or structures would be installed. This should include a depiction of the completed facility;
(3) Specifications and drawings prepared by a structural engineer, as that term is defined in Section 4 of the Structural Engineering Practice Act of 1989, for each proposed small wireless facility covered by the application as it is proposed to be installed;
(4) The equipment type and model numbers for the antennas and all other wireless equipment associated with the small wireless facility;
(5) A proposed schedule for the installation and completion of each small wireless facility covered by the application, if approved; and
(6) Certification that the collocation complies with the Collocation Requirements and Conditions contained herein, to the best of the applicant's knowledge.
(7) In the event that the proposed small wireless facility is to be attached to an existing pole owned by an entity other than the Village, the wireless provider shall provide legally competent evidence of the consent of the owner of such pole to the proposed collocation.
(8) Landscape Plan identifying location, type, size and number of plantings around the base of the utility pole and/or ground equipment.
b. Application Process. The Village shall process applications as follows:
(1) The first completed application shall have priority over applications received by different applicants for collocation on the same utility pole or wireless support structure, unless the provider of the first completed and accepted application tolls its application as described in the permit required subsection of this section (Division C.2.d.Tolling).
(2) An application to collocate a small wireless facility on an existing utility pole or wireless support structure, or replacement of an existing utility pole or wireless support structure shall be processed on a nondiscriminatory basis and shall be deemed approved if the Village fails to approve or deny the application within ninety (90) days after the submission of a completed application.
However, if an applicant intends to proceed with the permitted activity on a deemed approved basis, the applicant shall notify the Village in writing of its intention to invoke the deemed approved remedy no sooner than seventy-five (75) days after the submission of a completed application.
The permit shall be deemed approved on the latter of the ninetieth (90th) day after submission of the complete application or the tenth (10th) day after the receipt of the deemed approved notice by the Village. The receipt of the deemed approved notice shall not preclude the Village's denial of the permit request within the time limits as provided under this section.
(3) An application to collocate a small wireless facility that includes the installation of a new utility pole shall be processed on a nondiscriminatory basis and deemed approved if the Village fails to approve or deny the application within one hundred and twenty (120) days after the submission of a completed application.
However, if an applicant intends to proceed with the permitted activity on a deemed approved basis, the applicant shall notify the Village in writing of its intention to invoke the deemed approved remedy no sooner than 105 days after the submission of a completed application.
The permit shall be deemed approved on the latter of the one hundred twentieth (120th) day after submission of the complete application or the tenth (10th) day after the receipt of the deemed approved notice by the Village. The receipt of the deemed approved notice shall not preclude the Village's denial of the permit request within the time limits as provided under this section.
(4) The Village shall deny an application which does not meet the requirements of this section.
If the Village determines that applicable codes, ordinances or regulations that concern public safety, or the Collocation Requirements and Conditions contained herein require that the utility pole or wireless support structure be replaced before the requested collocation, approval shall be conditioned on the replacement of the utility pole or wireless support structure at the cost of the provider.
The Village shall document the basis for a denial, including the specific code provisions or application conditions on which the denial is based, and send the documentation to the applicant on or before the day the Village denies an application.
The applicant may cure the deficiencies identified by the Village and resubmit the revised application once within thirty (30) days after notice of denial is sent to the applicant without paying an additional application fee. The Village shall approve or deny the revised application within thirty (30) days after the applicant resubmits the application or it is deemed approved. Failure to resubmit the revised application within thirty (30) days of denial shall require the application to submit a new application with applicable fees, and recommencement of the Village's review period.
The applicant must notify the Village in writing of its intention to proceed with the permitted activity on a deemed approved basis, which may be submitted with the revised application.
Any review of a revised application shall be limited to the deficiencies cited in the denial. However, this revised application does not apply if the cure requires the review of a new location, new or different structure to be collocated upon, new antennas, or other wireless equipment associated with the small wireless facility.
(5) Pole Attachment Agreement. Within thirty (30) days after an approved permit to collocate a small wireless facility on a municipal utility pole, the Village and the applicant shall enter into a Master Pole Attachment Agreement, a form of the agreement is attached as Exhibit A to Ord, 1863-18, provided by the Village for the initial collocation on a municipal utility pole by the application. Such agreement may be approved administratively by the Village's Chief Operating Officer (COO) or designee unless the COO or designee decides to place the approval of said supplemental agreement with the Corporate Authorities at the next available Village Board meeting. For subsequent approved permits to collocate on a small wireless facility on a municipal utility pole, the Village and the applicant shall enter into a License Supplement of the Master Pole Attachment Agreement that may be approved administratively by the Village's Chief Operating Officer (COO) or designee unless the COO or designee.
c. Completeness of Application. Within thirty (30) days after receiving an application, the Village shall determine whether the application is complete and notify the applicant. If an application is incomplete, the Village must specifically identify the missing information. An application shall be deemed complete if the Village fails to provide notification to the applicant within thirty (30) days after all documents, information and fees specifically enumerated in the Village's permit application form are submitted by the applicant to the Village.
Processing deadlines are tolled from the time the Village sends the notice of incompleteness to the time the applicant provides the missing information.
d. Tolling. The time period for applications may be further tolled by:
(1) An express written agreement by both the applicant and the Village; or
(2) A local, state or federal disaster declaration or similar emergency that causes the delay.
e. Consolidated Applications. An applicant seeking to collocate small wireless facilities within the jurisdiction of the Village shall be allowed, at the applicant's discretion, to file a consolidated application and receive a single permit for the collocation of up to twenty-five (25) small wireless facilities if the collocations each involve substantially the same type of small wireless facility and substantially the same type of structure.
If an application includes multiple small wireless facilities, the Village may remove small wireless facility collocations from the application and treat separately small wireless facility collocations for which incomplete information has been provided or that do not qualify for consolidated treatment or that are denied. The Village may issue separate permits for each collocation that is approved in a consolidated application.
f. Duration of Permits. The duration of a permit shall be for a period of not less than five (5) years, and the permit shall be renewed for equivalent durations unless the Village makes a finding that the small wireless facilities or the new or modified utility pole do not comply with the applicable Village codes or any provision, condition or requirement contained in this section.
If the Act is repealed as provided in Section 90 therein, renewals of permits shall be subject to the applicable Village code provisions or regulations in effect at the time of renewal, which in the case of small wireless facilities and new or modified utility poles shall fall within the New commercial Type of Construction category, per Section 8-2-5 of the Village Code.
g. Means of Submitting Applications. Applicants shall submit applications, supporting information and notices to the Village by personal delivery at the Village's designated place of business, by regular mail postmarked on the date due or by any other commonly used means, including electronic mail.
3. Collocation Requirements and Conditions.
a. Public Safety Space Reservation. The Village may reserve space on municipal utility poles for future public safety uses, for the Village's electric utility uses, or both, but a reservation of space may not preclude the collocation of a small wireless facility unless the Village reasonably determines that the municipal utility pole cannot accommodate both uses.
b. Installation and Maintenance. The wireless provider shall install, maintain, repair and modify its small wireless facilities in safe condition and good repair and in compliance with the requirements and conditions of this section. The wireless provider shall ensure that its employees, agents or contracts that perform work in connection with its small wireless facilities are adequately trained and skilled in accordance with all applicable industry and governmental standards and regulations.
c. No interference with public safety communication frequencies. The wireless provider's operation of the small wireless facilities shall not interfere with the frequencies used by a public safety agency for public safety communications.
A wireless provider shall install small wireless facilities of the type and frequency that will not cause unacceptable interference with a public safety agency's communications equipment.
Unacceptable interference will be determined by and measured in accordance with industry standards and the FCC's regulations addressing unacceptable interference to public safety spectrum or any other spectrum licensed by a public safety agency.
If a small wireless facility causes such interference, and the wireless provider has been given written notice of the interference by the public safety agency, the wireless provider, at its own expense, shall remedy the interference in a manner consistent with the abatement and resolution procedures for interference with public safety spectrum established by the FCC including 47 CFR 22.970 through 47 CFR 22.973 and 47 CFR 90.672 through 47 CFR 90.675.
The Village may terminate a permit for a small wireless facility based on such interference if the wireless provider is not in compliance with the Code of Federal Regulations cited in the previous paragraph. Failure to remedy the interference as required herein shall constitute a public nuisance.
d. The wireless provider shall not collocate small wireless facilities on Village utility poles that are part of an electric distribution or transmission system within the communication worker safety zone of the pole or the electric supply zone of the pole.
However, the antenna and support equipment of the small wireless facility may be located in the communications space on the Village utility pole and on the top of the pole, if not otherwise unavailable, if the wireless provider complies with applicable codes for work involving the top of the pole.
For purposes of this subparagraph, the terms "communications space", "communication worker safety zone", and "electric supply zone" have the meanings given to those terms in the National Electric Safety Code as published by the Institute of Electrical and Electronics Engineers.
e. The wireless provider shall comply with all applicable codes and local code provisions or regulations that concern public safety.
f. The wireless provider shall comply with written design standards that are generally applicable for decorative utility poles, or reasonable stealth, concealment and aesthetic requirements that are set forth in a Village ordinance, written policy adopted by the Village, a comprehensive plan or other written design plan that applies to other occupiers of the rights-of-way, including on a historic landmark or in a historic district.
g. Alternate Placements. Except as provided in this Collocation Requirements and Conditions Section, a wireless provider shall not be required to collocation small wireless facilities on any specific utility pole, or category of utility poles, or be required to collocate multiple antenna systems on a single utility pole. However, with respect to an application for the collocation of a small wireless facility associated with a new utility pole, the Village may propose that the small wireless facility be collocated on an existing utility pole or existing wireless support structure within one hundred (100) feet of the proposed collocation, which the applicant shall accept if it has the right to use the alternate structure on reasonable terms and conditions, and the alternate location and structure does not impose technical limits or additional material costs as determined by the applicant.
If the applicant refuses a collocation proposed by the Village, the applicant shall provide written certification describing the property rights, technical limits or material cost reasons the alternate location does not satisfy the criteria in this paragraph.
h. Height Limitations. The maximum height of a small wireless facility shall be no more than ten (10) feet above the utility pole or wireless support structure on which the small wireless facility is collocated.
New or replacement utility poles or wireless support structures on which small wireless facilities are collocated may not exceed the higher of:
(1) Ten (10) feet in height above the tallest existing utility pole, other than a utility pole supporting only wireless facilities, that is in place on the date the application is submitted to the Village, that is located within three hundred (300) feet of the new or replacement utility pole or wireless support structure and that is in the same right-of-way within the jurisdictional boundary of the Village, provided the Village may designate which intersecting right-of-way within three hundred (300) feet of the proposed utility pole or wireless support structures shall control the height limitation for such facility; or
(2) Forty-five (45) feet above ground level.
i. Height Exceptions or Variations. If an applicant proposes a height for a new or replacement pole in excess of the above height limitations on which the small wireless facility is proposed for collocation, the applicant shall apply for a variation in conformance with procedures, terms and conditions set forth in Section 4 of this section.
i. Contractual Design Requirements. The wireless provider shall comply with requirements that are imposed by a contract between the Village and a private property owner that concern design or construction standards applicable to utility poles and ground-mounted equipment located in the right-of-way.
j. Ground-mounted Equipment Spacing. The wireless provider shall comply with applicable spacing requirements in applicable codes and ordinances concerning the location of ground-mounted equipment located in the right-of-way if the requirements include a waiver, zoning or other process that addresses wireless provider requests for exception or variation and do not prohibit granting of such exceptions or variations.
k. Undergrounding Regulations. The wireless provider shall comply with local code provisions or regulations concerning undergrounding requirements that prohibit the installation of new or the modification of existing utility poles in a right-of-way without prior approval if the requirements include a waiver, zoning or other process that addresses requests to install such new utility poles or modify such existing utility poles and do not prohibit the replacement of utility poles.
l. Collocation Completion Deadline. Collocation for which a permit is granted shall be completed within 180 days after issuance of the permit, unless the Village and the wireless provider agree to extend this period or a delay is caused by make-ready work for a municipal utility pole or by the lack of commercial power or backhaul availability at the site, provided the wireless provider has made a timely request within sixty (60) days after the issuance of the permit for commercial power or backhaul services, and the additional time to complete installation does not exceed three hundred and sixty (360) days after issuance of the permit. Otherwise, the permit shall be void unless the Village grants an extension in writing to the applicant.
4. Application Fees. Application fees are imposed in accordance with Section 11-1-1 of the Village Code and as follows:
a. Notwithstanding any contrary provision of State law or local ordinance, applications pursuant to this Section shall be accompanied by the required application fee. Application fees shall be non-refundable.
b. The Village shall not require an application, approval or permit, or require any fees or other charges, from a communications service provider authorized to occupy the rights- of-way, for:
(1) Routine maintenance;
(2) The replacement of wireless facilities with wireless facilities that are substantially similar, the same size, or smaller if the wireless provider notifies the Village at least ten (10) days prior to the planned replacement and includes equipment specifications for the replacement of equipment consistent with division C.2.a. under the Section titled Application Requirements; or
(3) The installation, placement, maintenance, operation or replacement of micro wireless facilities suspended on cables that are strung between existing utility poles in compliance with applicable safety codes.
c. Wireless providers shall secure a permit from the Village to work within rights-of-way for activities that affect traffic patterns or require lane closures.
5. Exceptions to Applicability. Nothing in this section authorizes a person to collocate small wireless facilities on:
a. Property owned by a private party or property owned or controlled by the Village or another unit of local government that is not located within rights-of-way, or a privately owned utility pole or wireless support structure without the consent of the property owner;
b. Property owned, leased, or controlled by a park district, forest preserve district, or conservation district for public park, recreation or conservation purposes without the consent of the affected district, excluding the placement of facilities on rights-of-way located in an affected district that are under the jurisdiction and control of a different unit of local government as provided by the Illinois Highway Code; or
c. Property owned by a rail carrier registered under Section 18c-7201 of the Illinois Vehicle Code, Metra Commuter Rail or any other public commuter rail service, or an electric utility as defined in Section 16-102 of the Public Utilities Act, without the consent of the rail carrier, public commuter rail service, or electric utility. The provisions of this section do not apply to an electric or gas public utility or such utility's wireless facilities if the facilities are being used, developed and maintained consistent with the provisions of subsection (i) of Section 16-108.5 of the Public Utilities Act.
For the purposes of this subsection, "public utility" has the meaning given to that term in Section 3-105 of the Public Utilities Act. Nothing in this section shall be construed to relieve any person from any requirement:
(1) To obtain a franchise or a State-issued authorization to offer cable service or video service; or
(2) To obtain any required permission to install, place, maintain, or operate communications facilities, other than small wireless facilities subject to this section.
6. Pre-Existing Agreements. Existing agreements between the Village and wireless providers that relate to the collocation of small wireless facilities in the right-of-way, including the collocation of small wireless facilities on Village utility poles, that are in effect on June 1, 2018, remain in effect for all small wireless facilities collocated on the Village's utility poles pursuant to applications submitted to the Village before June 1, 2018, subject to applicable termination provisions contained therein. Agreements entered into after June 1, 2018, shall comply with this section.
A wireless provider that has an existing agreement with the Village on the effective date of the Act may accept the rates, fees and terms that the Village makes available under this section for the collocation of small wireless facilities or the installation of new utility poles for the collocation of small wireless facilities that are the subject of an application submitted two or more years after the effective date of the Act by notifying the Village that it opts to accept such rates, fees and terms. The existing agreement remains in effect, subject to applicable termination provisions, for the small wireless facilities the wireless provider has collocated on the Village's utility poles pursuant to applications submitted to the Village before the wireless provider provides such notice and exercises its option under this paragraph.
7. Annual Recurring Rate. A wireless provider shall pay to the Village an annual recurring rate (rental fee) to collocate a small wireless facility on a Village utility pole located in a right-of-way the fee amount established in Section 11-1-1 of the Village Code. that equals:
a. Two hundred dollars ($200) per year; or
b. The actual, direct and reasonable costs related to the wireless provider's use of space on the Village utility pole.
If the Village has not billed the wireless provider actual and direct costs, the fee shall be that established in Section 11-1-1 of the Village Code payable on the first day after the first annual anniversary of the issuance of the permit or notice of intent to collocate, and on each annual anniversary date thereafter.
8. Abandonment. A small wireless facility that is not operated for a continuous period of twelve (12) months shall be considered abandoned. Within thirty (30) days of a facility becoming inoperable, the owner of the facility shall notify the Village in writing that such facility is no longer operational. The owner of the facility shall remove the small wireless facility within ninety (90) days after receipt of written notice from the Village notifying the wireless provider of the abandonment.
The notice shall be sent by certified or registered mail, return receipt requested, by the Village to the owner at the last known address of the wireless provider. If the small wireless facility is not removed within ninety (90) days of such notice, the Village may remove or cause the removal of such facility pursuant to the terms of its Pole Attachment Agreement for municipal utility poles or through whatever actions are provided for abatement of nuisances or by other law for removal and cost recovery.
A wireless provider shall provide written notice to the Village if it sells or transfers small wireless facilities within the jurisdiction of the Village. Such notice shall include the name and contact information of the new wireless provider.
D. Variations.
1. Request For Variation: A utility requesting a variation from one or more of the provisions of this Section must do so in writing to the Director of Public Works as a part of the permit application. The request shall identify each provision of this Section from which a variance is requested and the reasons why a variance should be granted.
2. Authority To Grant Variations: The Village shall decide whether a variation is authorized for each provision of this Section identified in the variation request on an individual basis.
3. Conditions For Granting Of Variance: The Director of Public Works may authorize a variation only if the utility requesting the variation has demonstrated that:
a. One or more conditions not under the control of the utility (such as terrain features or an irregular right of way line) create a special hardship that would make enforcement of the provision unreasonable, given the public purposes to be achieved by the provision; and
b. All other designs, methods, materials, locations or facilities that would conform with the provision from which a variation is requested are impracticable in relation to the requested approach.
4. Additional Conditions For Granting Of A Variation: As a condition for authorizing a variation, the Director of Public Works may require the utility requesting the variation to meet reasonable standards and conditions that may or may not be expressly contained within this Section but which carry out the purposes of this Section.
5. Right to Appeal. Any utility aggrieved by any order, requirement, decision or determination, including denial of a variance, made by the Director of Public Works under the provisions of this Section shall have the right to appeal to the Village Board or such other board or commission as it may designate. The application for appeal shall be submitted in writing to the Village Clerk within thirty (30) days after the date of such order, requirement, decision or determination. The Village Board shall commence its consideration of the appeal at the Village Board's next regularly scheduled meeting occurring at least seven (7) business days after the filing of the appeal. The Village Board shall timely decide the appeal.
E. Dispute Resolution. The Circuit Court of Lake County, Illinois shall have exclusive jurisdiction to resolve all disputes arising under the Small Wireless Facilities Deployment Act. Pending resolution of a dispute concerning rates for collocation of small wireless facilities on municipal utility poles within the right-of-way, the Village shall allow the collocating person to collocate on its poles at annual rates of no more than two hundred dollars ($200) per year per municipal utility pole, with rates to be determined upon final resolution of the dispute.
F. Indemnification. A wireless provider shall indemnify and hold the Village harmless against any and all liability or loss from personal injury or property damage resulting from or arising out of, in whole or in part, the use or occupancy of the Village improvements or right-of-way associated with such improvements by the wireless provider or its employees, agents, or contractors arising out of the rights and privileges granted under this section and the Act.
A wireless provider has no obligation to indemnify or hold harmless against any liabilities and losses as may be due to or caused by the sole negligence of the Village or its employees or agents. A wireless provider shall further waive any claims that they may have against the Village with respect to consequential, incidental, or special damages, however caused, based on the theory of liability.
G. Insurance. The wireless provider shall carry, at the wireless provider's own cost and expense, the following insurance:
1. Property insurance for its property's replacement cost against all risks;
2. Workers' compensation insurance, as required by law; or
3. Commercial general liability insurance with respect to its activities on the Village improvements or rights-of-way to afford minimum protection limits consistent with its requirements of other users of Village improvements or rights-of-way, including coverage for bodily injury and property damage.
The wireless provider shall include the Village as an additional insured on the commercial general liability policy and provide certification and documentation of inclusion of the Village in a commercial general liability policy prior to the collocation of any wireless facility.
A wireless provider may self-insure all or a portion of the insurance coverage and limit requirement required by the Village. A wireless provider that self-insures is not required, to the extent of the self-insurance, to comply with the requirement for the name of additional insureds under this section. A wireless provider that elects to self-insure shall provide to the Village evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage limits required by the Village. (Ord. 1863-18, 7-23-2018)