(A) Pre-submittal meeting. To minimize issues related to a permit request, the city may require in its forms that, prior to submitting materials for a permit request, which does not include an application for a small wireless facility or a new utility pole to support a small wireless facility, a registrant conduct a pre-submittal meeting with the city to discuss the registrant's plans and network goals for placing or maintaining facilities in the public rights-of-way. A pre-submittal meeting, whether required herein or voluntary on the part of a registrant, shall not commence the time frames provided herein for city review and processing of a request or an application.
(B) Requirements for ail communications facilities in the public rights-of-way. As part of any permit application or request to place or maintain any facility pursuant to this chapter in the public rights-of-way, a registrant or a registrant's agent or contractor shall complete a permit form provided by the city that, at a minimum, includes the following information:
(1) If the person seeking the permit is not the registrant, a statement of authority by the registrant to act on behalf of the registrant. In addition, if the person seeking the permit is a contractor, the contractor's license or registration and contractor's insurance information confirming the contractor's authority to perform construction in the city and statements as to whether the contractor has any open permits with the city, and if so, the permit identification number or information.
(2) Confirmation that the registrant has an effective registration with the city, and is otherwise in compliance with the City Code.
(3) Engineering plan. An engineering plan signed and sealed by a licensed engineer, that includes the following:
(a) Except for applications to collocate small wireless facilities on existing utility poles in the public rights-of-way, an American Land Title Association (ALTA) or other survey pursuant to the city's form demonstrating that the proposed location of the facility or utility pole is within the public rights-of-way, unless waived by the city in its sole discretion, pursuant to an applicant's or requester's attestation that the proposed facility is located within the public rights-of-way;
(b) The type of proposed facility, location of the proposed facility, and the dimensions, height, footprint, camouflage design, and concealment features of the proposed facility;
(c) The Global Positioning System (GPS) coordinates of the proposed facility. The GPS coordinates shall be based on the reading from a handheld mobile GPS unit set to Datum NAD 83 or WGS84. GPS coordinates based on Google Earth or similar application may be used where areas of shading occur due to overhead canopy. GPS Coordinates shall be provided in decimal degrees at a six decimal point precision or as otherwise required by the city;
(d) Whether the proposed facility is proposed within a location subject to restrictions pursuant to this chapter;
(e) For new communications facilities and extensions of existing communications facilities that require a permit, within a 50 foot radius, a sketch showing pavement, sidewalks, driveways, ramps, trees, below-grade utilities, and other above-grade and below-grade structures and facilities located within the public rights-of-way and the distances from the proposed facility and the edge of nearby pavement, sidewalks, driveways, ramps, the nearest residential properties, nearby drainage systems, trees, ground-mounted equipment, nearby structures in the public rights-of-way, underground utilities and other above-grade and below-grade structures and utilities located within the public rights-of-way;
(f) Sufficient specificity demonstrating compliance with applicable codes, as defined herein and as may be amended;
(g) If applicable, the routes of all transmission and distribution lines to be placed or maintained in the public rights-of-way in connection with the proposed facility (such lines may be subject to separate permit requirements);
(h) Certification that the proposed facility will not materially interfere with the safe operation of traffic control equipment;
(i) Certification that the proposed facility will not interfere with sight lines or clear zones for transportation, pedestrians, or public safety purposes or result in the public rights-of-way being inconsistent with the Florida Greenbook;
(j) Certification that the proposed facility will not materially interfere with compliance with the Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement; and
(k) Other engineering information that may be requested by the city necessary to demonstrate compliance with applicable codes.
(4) Trees or landscaping proposed to be removed or impacted upon the placement or maintenance of the proposed facility.
(5) Photographic or video documentation of the pre-construction condition of the public rights-of-way in the area to be affected by the installation of the proposed facility.
(6) Description of installation or construction. A description of the method by which the facility will be installed and/or modified (i.e., anticipated construction methods or techniques).
(7) Temporary sidewalk closure plan. The applicant shall provide a temporary sidewalk closure plan, if appropriate, to accommodate placement or maintenance of the facility.
(8) Maintenance of Traffic (MOT) plan. The applicant shall provide a temporary traffic lane closure and Maintenance of Traffic plan (MOT), if appropriate, to accommodate placement or maintenance of the facility.
(9) Restoration plan and estimated cost of restoration of the public rights-of-way. A restoration plan and a good faith estimate of the cost of restoration of the public rights-of-way by a licensed engineer. Such estimate shall be accepted by the city unless the city determines such estimated costs are not representative of the actual costs of the restoration of the public rights-of-way as compared to the Broward County Highway Engineering Cost Estimating Template. Estimates of the cost to restore the public rights-of-way shall include all costs necessary to restore the public rights-of-way to its original condition. Such estimate may include, but shall not be limited to, costs to restore the paving, curbs/gutters, sidewalks, multi-purpose trails, and landscaping. All planted or naturally occurring shrubbery or vegetation, including sod, damaged or destroyed during work in the public rights-of-way shall be replaced. Tree or landscaping removal shown on the permit shall not be considered damage or impairment to be restored to the original condition provided the applicant or requester complies with the approved mitigation plan, if any.
(10) Timetable for construction or installation. The timetable for construction, placement or maintenance of the proposed facility or each phase thereof.
(11) Indemnification. A statement shall be included with the permit application or request that by execution of the application or request and by filing for the permit, the registrant shall be bound to the city with respect to the indemnification provisions set forth in this chapter.
(12) Airport airspace protection. If applicable, certification of compliance with F.S. Chapter 333, and all city, state and federal laws and regulations, as amended, pertaining to airport airspace protections.
(13) Attestation. For applications by a wireless infrastructure provider or its contractor for the placement of a utility pole in the public rights-of-way for collocation of a small wireless facility, the applicant shall provide an attestation by an authorized representative of the registrant that a small wireless facility will be collocated on the utility pole and will be used by a wireless services provider to provide communication service within nine months after the date the application is approved.
(14) Pole attachment agreement. If applicable for the proposed facility, except for registrants whose pole attachments are regulated by 47 U.S.C. § 224, the registrant shall provide a copy of a fully executed valid pole attachment agreement between the owner of the utility pole and registrant. In lieu of providing the complete pole attachment agreement between the owner of the utility pole and registrant, the registrant may provide the first page of such agreement and the signature page or a notarized letter of authorization from the owner of the utility pole, providing adequate identifying information, acceptable to the city, and indicating the registrant is authorized to install its facility on the identified utility pole. By submitting the city's permit form, the registrant certifies to the city that it has authority from the utility pole owner to collocate its facility.
(15) Information regarding height limitations. For an application for a new utility pole to support the collocation of a small wireless facility, the applicant shall provide information regarding the height and GPS location of the tallest utility pole located in the same public rights-of-way as of July 1, 2017, measured from grade in place within 500 feet of the proposed location of the utility pole. If there is no utility pole within 500 feet of the proposed utility pole as of July 1, 2017, the applicant shall so certify.
(16) If the permit request includes a backup power supply, information to demonstrate that the backup power supply and proposed fuel storage satisfies the applicable codes as well as codes and standards of the National Fire Protection Association.
(17) In addition to the requirements herein, as part of any permit application to place or maintain a small wireless facility or utility pole in the public rights-of-way, the applicant shall provide the following:
(a) Documentation to the satisfaction of the city from a licensed engineer, that the structure and foundation of the utility pole intended to support the collocation of the small wireless facility can support the additional load of the proposed small wireless facility consistent with the requirements of the Florida Building Code;
(b) Certification and description by the applicant to the satisfaction of the city how the proposed small wireless facility or utility pole complies with the objective design standards set forth in this chapter. For a proposed ground-mounted small wireless facility, such information shall include whether the proposed small wireless facility includes a wrap that has been approved by the city or is of an architectural design that is substantially similar to other infrastructure in the area of the public rights-of-way or has been approved by the city.
(c) Accurate photo simulations of the proposed utility pole or small wireless facility and, if applicable, as collocated on the utility pole.
(18) Applicable permittees including reimbursement for city consultants, to the extent not inconsistent with applicable law. The city acknowledges that currently, applicable law does not allow the city to require permit fees.
(19) Consolidated permit application and single application or request for multiple locations. The city may authorize a registrant to file a single application or request to place or to maintain multiple facilities in the public rights-of-way, where it would be more efficient for the registrant and the city to address multiple facilities in one permit. An applicant seeking to collocate multiple small wireless facilities may file a consolidated permit application and receive a single permit for the collocation of up to 30 small wireless facilities. The application must include the information required for an application for each of the proposed small wireless facilities. In addition, prior to applying for a consolidated permit, the applicant is strongly encouraged to engage in a pre-submittal meeting with the city to discuss all proposed small wireless facilities. If the application includes multiple small wireless facilities, the city may separately address small wireless facility collocations for which incomplete information has been received or which are denied. Each proposed utility pole to be placed in the public rights-of-way for the collocation of a small wireless facility shall require a separate application, and each communications facility to be placed in the public rights-of-way except for the collocation of a small wireless facility, shall require a separate request unless the city consents at a pre-submission meeting to a single application or request for such multiple facilities.
(20) To the extent not inconsistent with applicable law, such additional information requested by the city necessary to demonstrate compliance with applicable codes.
(C) Application review and procedures.
(1) Time periods within this subsection shall be extended for the period of time impacted by a force majeure event or by a declared State of Emergency by the city or Governor of the state that impacts the city's permitting ("force majeure extension"). If a registrant opposes a force majeure extension pursuant to this subsection, it shall notify the city within 24 hours of such extension becoming effective or the registrant shall be deemed to have consented to the extension. Except as otherwise provided herein, requests for permits for the placement of communications facilities in the public rights-of-way, including but not limited to backhaul facilities or fiber, shall be subject to the time frames and review procedures set forth in this subsection; requests shall be considered to be applications and requesters shall be considered to be applicants for purposes of time frames referenced in this subsection. The time frames and procedures herein shall not apply to other requests that do not involve the placement of communications facilities in the public rights-of-way, including but not limited to requests for permits to perform maintenance on existing communications facilities in the public rights-of-way.
(a) Unless extended by mutual consent of the applicant and city, within 14 days after receiving an application or reouest for a rights-of-way permit, the City Manager will notify the applicant by electronic mail as to whether the application or reguest is complete. If an application or reouest is deemed incomplete, the city will specifically identify the missing information. An application or reguest is deemed complete if the city fails to provide notification to the registrant within 14 days.
(b) Negotiation process.
1. Unless extended by mutual consent of the applicant and the city, within 14 days after the date of filing the application, the city may request that the proposed location of a small wireless facility be moved to another location in the right-of-way and placed on an alternative city utility pole or support structure or may place a new utility pole. The city and the applicant may negotiate the alternative location, including any objective design standards and reasonable spacing requirements for ground-based equipment, for 30 days after the date of the request.
2. At the conclusion of the negotiation period, if the alternative location is accepted by the applicant, the applicant must notify the city of such acceptance and the application shall be deemed granted for any new location for which there is agreement and all other locations in the application.
3. If an agreement is not reached, the applicant must notify the city of such non-agreement and the city must grant or deny the original application within 90 days after the date the application was filed unless extended by mutual consent of the applicant and city. Failure of the applicant to so notify the city as required herein shall be deemed to constitute the applicant's consent to the city's alternative location. A request for an alternative location, an acceptance of an alternative location, or a rejection of an alternative location must be in writing and provided by electronic mail.
(c) The city processes all applications and requests on a nondiscriminatory basis. Unless the city and the registrant applicant engage in negotiations as provided above, the city will approve or deny the application or request and will notify the registrant by electronic mail whether the application or request is approved or denied within 60 days after the receipt of a completed application or request.
(d) Extension of time. If the city and the registrant do not engage in negotiations, the registrant and city may mutually agree to extend the 60-day application review period. The city shall grant or deny the application or request at the end of the extended period.
(2) Basis to deny applications for small wireless facilities or utility poles to support a small wireless facility. The city may deny an application for a proposed collocation of a small wireless facility or to place a utility pole used to support a small wireless facility in the public rights-of-way if the proposed small wireless facility or utility pole to support a small wireless facility;
(a) Materially interferes with the safe operation of traffic control equipment;
(b) Materially interferes with sight lines or clear zones for transportation, pedestrians, or public safety purposes;
(c) Materially interferes with compliance with the Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement;
(d) Materially fails to comply with the 2017 edition of the Florida Department of Transportation Utility Accommodation Manual;
(e) Fails to comply with applicable codes;
(f) Fails to comply with objective design standards set forth in this chapter; or
(g) Fails to comply with the City Code, to the extent not inconsistent with applicable law.
(3) Basis to deny requests for communications facilities other than small wireless facilities or utility poles to support a small wireless facility. Except for applications for permits to collocate small wireless facilities or for utility poles to support the collocation of a small wireless facility addressed above, the city may deny a request for a permit to place or to maintain communications facilities in the public rights-of-way, including but not limited to a permit to place backhaul facilities, fiber, or conduit, consistent with applicable law and the city's standard procedures.
(4) Cure procedure.
(a) If the application or request is denied, the city will specify the basis for the denial, including the specific code provisions on which the denial was based, on the day the city denies the application or request.
(b) The registrant may cure the deficiencies identified by the city and resubmit the application or request within 30 days after the notice of denial is sent.
(c) If an attempt to cure is submitted by the registrant within such 30-day period, the city will approve or deny the revised application or request within 30 days after receipt of the revised application. If the registrant revises any information in the application or request other than to address expressly the deficiencies identified by the city, the registrant shall submit a new application or request and the denial of the pending application or request shall be final.
(d) The city's second and subsequent reviews of revised applications or requests will be limited to the deficiencies cited in the denial notice.
(e) A permit issued pursuant to an approved application or request to install a new communications facility shall remain in effect for one year unless otherwise extended, suspended, or revoked by the city pursuant to this chapter. If a communications facility including a small wireless facility or utility pole is going to be installed without a permit pursuant to this chapter or applicable state or federal law, the applicant or requester shall nevertheless be required to have an effective registration, comply with development standards and provide the bonds required in this chapter prior to performing construction. A permit from the city constitutes authorization to undertake only certain activities in the public rights-of-way in accordance with this Code, and does not create a property right or grant authority to impinge upon the rights of others who may have an interest in the public rights-of-way.
(D) Review procedures for wireless facilities modifications pursuant to the Spectrum Act of 2012. It is the city's intention that permits that the city issues for utility poles for the collocation of small wireless facilities and for small wireless facilities shall not constitute permits for towers or base stations as defined in the Spectrum Act and applicable FCC regulations, to the extent consistent with applicable federal law. A registrant may file an eligible facilities request to modify an existing tower or base station in the public rights-of-way, that does not substantially change the physical dimensions of such tower or base station, pursuant to Section 6409(a) of the Spectrum Act of 2012, 47 U.S.C. § 1455(a), and FCC regulations adopted thereto, 47 C.F.R. § 1.6100, as amended. Such request shall include the following: (1) confirmation that the registrant possesses an effective registration and submitted a permanent performance bond with the city; (2) a statement that it is an eligible facilities request; (3) a report, signed and sealed by a licensed engineer, that addresses the factors set forth in the FCC regulations, including a description of proposed modifications and the factors regarding whether the proposed modifications constitute a substantial change, and (4) a certified copy of the permit for the existing tower or base station that is proposed to be modified. The city shall review such request pursuant to the procedures and time frames set forth in the FCC regulations, notwithstanding other provisions of this chapter. The procedures in this chapter for appeal shall apply.
(E) Suspension and revocation of permits.
(1) The city may order the suspension of placement and maintenance work under a permit and ultimately may suspend or revoke any permit, in the event of a material breach of the terms and conditions of any applicable codes, this chapter, state and federal laws and regulations, or any condition of the permit. A material breach by the permittee may include but is not limited to:
(a) The violation of any material provision of the permit or applicable codes;
(b) An evasion or attempt to evade any material provision of the permit or the perpetration or attempt to perpetrate any fraud or deceit upon the city;
(c) Any material misrepresentation of fact in the process of permittee's request or application for a permit or registration;
(d) The failure to maintain the required performance cash bond or insurance;
(e) The failure to properly restore the public rights-of-way within the time frame required by the city;
(f) The failure to comply within the specified time with an order issued by the city;
(g) The failure to register, renew a registration, or provide notice of transfer in accordance with this chapter;
(h) The failure to relocate or remove facilities pursuant to this chapter and F.S. §§ 337.402, 337.403 and 337.404, as amended; or
(i) Conducting work in the public rights-of-way without a permit, if required.
(2) If the city determines that a registrant has committed a substantial breach of a term or condition of the permit or violation of applicable codes or this chapter, the city shall make a written demand upon the registrant to remedy such violation. The demand shall state that the continued violation(s) may be cause for suspension or revocation of the permit. Further, the city may place additional or revised permit conditions on the permit following a substantial breach. In addition, the city may refuse to issue new permits and may deny an application or request for a new permit to a registrant or registrant's contractor that has materially violated any provisions of a permit or applicable codes or this chapter, until such time as the registrant cures the violation to the satisfaction of the city, including paying any damages, costs or penalties that may have been assessed.
(a) Within 30 days of receiving notification of the breach, the permittee shall contact the city and provide a plan acceptable to the city. The city shall provide additional time as reasonably necessary for a permittee to establish an acceptable plan taking into account the nature and scope of the alleged breach. The permittee's failure to so contact the city, or the permittee's failure to submit an acceptable plan, or the permittee's failure to reasonably implement the approved plan, shall be cause for revocation or suspension of the permit. A final determination to suspend or to revoke a permit may be appealed in accordance with the procedures set forth in this chapter. Nothing herein shall affect the city's ability to take immediate action or to cause a registrant to take immediate action pursuant to this chapter or applicable law to address any condition that threatens the health, safety or welfare of persons or property.
(b) If a permit is revoked, the permittee shall reimburse the city for the city's reasonable costs, including restoration costs, administrative costs, and the cost of collection. These costs may also be deducted from the registrant's permanent performance bond in the city's discretion. A permittee that has its permit suspended or revoked may seek to have its permit reinstated upon providing evidence to the satisfaction of the city hat the basis for the suspension or revocation has been corrected.
(F) The City Manager may cause an immediate stop work order where the construction poses a serious threat to the health, safety or welfare of the public until such time as such serious threat has been abated. Nothing in this chapter shall serve as a waiver of the city's police powers.
(G) Requests for waivers.
(1) Nothing in this chapter shall be construed to prohibit or have the effect of prohibiting the use of public rights-of-way by communications service providers, communications facility providers or pass-through providers, in violation of federal or state law.
(2) A waiver may be granted by the City Manager in those circumstances where a competitively neutral use of the public rights-of-way is impaired by strict application of the requirements of this chapter, in violation of applicable law.
(3) A request for a waiver shall be filed either prior to or contemporaneously with the permit application or request. The request for waiver shall contain each provision for which a waiver is sought. A request for a waiver shall include the following information:
(a) A detailed explanation, with supporting engineering information by a Florida licensed engineer or other data, as to why a waiver from the requirements of this chapter is required to allow the applicant to have nondiscriminatory and competitively neutral use of the public rights-of-way, including a detailed explanation addressing the relevant engineering criteria;
(b) Nature and characteristics of the surrounding neighborhood;
(c) Any special conditions and circumstances affecting the proposed site which prevent compliance with the chapter or subsection for which a waiver is being sought;
(d) If applicable, topography, tree coverage and foliage in the immediate surrounding area of the proposed facility or within the surrounding neighborhood;
(e) Design of the proposed facility with particular reference to achieving compatibility with the surrounding neighborhood and other structures in the public rights-of-way and eliminating adverse visual impacts;
(f) If the proposed waiver is compliant with the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., and applicable codes;
(g) A request for waiver of the objective design standards contained herein shall include a showing that the design standards are not reasonably compatible for the particular location of a small wireless facility or utility pole, or are technically infeasible with supporting information from a licensed engineer, or that the design standards impose an excessive expense on the registrant with information as to the additional costs of compliance with the standards and the registrant's anticipated revenue from the proposed facility or assets. The city shall grant or deny a request for a waiver of objective design standards within 45 days after receiving the request for waiver unless the applicant and city consent to an extension, subject to a force majeure event;
(h) Any other information the city may reasonably require to process the request for waiver.
(4) Except for a request for a waiver of objective design standards, the city shall grant or deny a request for a waiver of any other provisions of the City Code pursuant to its standard procedures for requests for waivers or variance of its Code, consistent with applicable law. If a request for waiver or variance is not processed by the city within the time frame for granting or denying an application or request for a permit, the city shall deny the permit application or request unless the city and the registrant consent to an applicable extension, in granting any waiver, the city may impose conditions to the extent the city determines such conditions are necessary to minimize any adverse effects of the proposed facility on the surrounding neighborhood or to protect the health, safety and welfare of the public.
(5) Should a request for waiver, and ultimately a permit, be denied by the city, the denial of the waiver may be appealed with an appeal of the permit denial in accordance with this chapter.
(H) Appeals.
(1) Final, written decisions of a designee of the City Manager, including but not limited to a decision suspending, revoking, or denying a permit, denying a registration, denying a renewal of a registration, suspending or terminating a registration or denying a request for a waiver, or imposing costs or a fine, are subject to appeal to the City Manager. An appeal must be filed with the City Manager within 30 days of the date of the final, written decision to be appealed. An appeal that is not timely filed as set forth herein shall be waived. The City Manager shall hear or may appoint a hearing officer to consider the appeal. The decision on appeal shall be based on the information submitted previously to the city and no new information shall be considered. Subject to a force majeure event, the hearing shall occur within 30 days of the receipt of the appeal, unless waived by the applicant, and a written decision shall be rendered within 20 days of the hearing.
(2) An appeal from a decision of the City Manager or a hearing officer may be appealed to the City Commission within ten days, by filing a written notice of appeal with the City Clerk and providing copies to the City Manager and the City Attorney. Any appeal not timely filed shall be waived. The notice of appeal shall state the decision which is being appealed, the grounds for appeal, a brief summary of the relief which is sought, and shall be accompanied by a nonrefundable fee to be established by administrative order of the City Manager. The City Commission may affirm, modify or reverse the decision of the City Manager. The City Manager shall notify any party who has filed a written request for such notification of the date when the matter will be presented to the City Commission. Nothing contained herein shall preclude the City Commission from seeking additional information prior to rendering a final decision. The decision of the City Commission shall be by resolution and a copy of the decision shall be forwarded to the City Manager and the appealing party. Within the time prescribed by the appropriate Florida Rules of Appellate Procedure, a party aggrieved by a decision of the City Commission may appeal an adverse decision to the Circuit Court In And For Broward County or applicable federal district court. To the extent not inconsistent with applicable law, the party making the appeal shall be required to pay to the City Clerk a fee to be established by administrative order of the City Manager, to defray the costs of preparing the record on appeal. The fee shall be effective upon approval by the City Commission. To the extent required by applicable law, the city shall waive any claim or defense based on failure to exhaust administrative remedies if the city's administrative review is not complete within 45 days after a person files a complete request for review.
(Ord. O-2020-14, passed 10-7-20)