CHAPTER 933
Small Cell Facilities and Wireless Support Structures Within the Right-of-Way
933.01    Purpose and intent.
933.02    Definitions.
933.03   Applicability.
933.04    Application required.
933.05   Application review time frames and process.   
933.06     Design guidelines.
933.07     Standard conditions of permit approval.
933.08   Safety requirements.
933.09   Recovery of costs.
933.10   Severability.
933.11   Penalty.
 
CROSS REFERENCES
Rights of way administration - see SUPS Ch. 931
 
 
 
933.01 PURPOSE AND INTENT.
   (a)   The purpose of Chapter 933 is to establish general procedures and standards, consistent with all applicable federal, state, and local laws, for the siting, construction, installation, collocation, modification, operation, and removal of small cell facilities and wireless support structures in the right-of-way.
   (b)   The intent of this chapter is to:
      (1)   Establish basic criteria for applications to locate small cell facilities and wireless support structures in the right-of-way and authorize the City Manager or his or her designee to develop, publish, and from time to time amend, applications and other associated materials to provide clear guidance to applicants;
      (2)   Ensure that small cell facilities and wireless support structures are carefully designed, constructed, modified, maintained, and removed when no longer in use in conformance with all applicable regulations;
      (3)   Preserve the character of the City of Mentor by minimizing the potentially adverse visual impact of small cell facilities and wireless support structures through careful design, siting, landscaping and camouflaging techniques to blend these facilities into their environment to the maximum extent practicable;
      (4)   Enhance the ability of wireless service providers to deploy small cell facilities and wireless support structures in the City quickly, effectively, and efficiently so that residents, businesses, and visitors benefit from ubiquitous and robust wireless service availability and capacity;
      (5)   Establish an application process and structure for payment of fees and charges to be uniformly applied to all applicants, operators, and owners of small cell facilities and wireless support structures for such facilities;
      (6)   Comply with, and not conflict with, all applicable state and federal laws, including without limitation Section 101(a) and Section 704 of the Telecommunications Act, Pub. L. 104-104, 101 Stats. 56, 70 (Feb. 8, 1996) (codified as 47 U.S.C. 253(a), 332(c)(7)), as may be amended or superseded, and Section 6409(a) of the Middle Class Tax Relief and Job Creation Act, Pub. L. 112-96, 126 Stat. 156 (Feb. 22, 2012) (codified as 47 U.S.C. 1455(a)), as may be amended or superseded, and all FCC rules and regulations to interpret and implement applicable federal statutes; and Substitute House Bill (H.B.) 478 of the 132nd Ohio General Assembly (Aug. 1, 2018), as may be amended or superseded.
933.02 DEFINITIONS.
   (a)   General use of terms.
      (1)   The terms, phrases, words, and their derivations used in this Chapter shall have the meanings given in this section.
      (2)   When consistent with the context, words used in the present tense also include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number.
      (3)   All terms used in the definition of any other term shall have their meaning as otherwise defined in this section.
      (4)   The words "shall" and "will" are mandatory and "may" is permissive.
      (5)   Words not defined shall be given their common and ordinary meaning.
   (b)   Defined terms.
ABANDONED. Any small cell facilities or wireless support structures that are unused for a period of three hundred sixty-five days without the operator otherwise notifying the City and receiving the City's approval.
AFFILIATE. When used in relation to any entity, means another entity that owns or controls, is owned or controlled by, or is under common ownership or control with, such entity.
AGENT. A person authorized to work on behalf of a public utility or operator, and who provides the City written evidence of such authorization.
ANTENNA. Communications equipment that transmits or receives radio frequency signals in the provision of wireless service.
APPLICANT. Any person, including an entity, that submits an application to the City to site, install, construct, collocate, modify, and/or operate a small cell facility or wireless support structure in the right-of-way according to the requirements of this Chapter.
CABLE OPERATOR. Any person or group of persons:
(1)   Who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or
(2)   Who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system;
CABLE SERVICE. 
(1)   The one-way transmission to subscribers of (i) video programming, or (ii) other programming service; and
(2)   Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.
CABLE FRANCHISE. An initial authorization, or renewal thereof (including a renewal of an authorization which has been granted subject to 47 U.S.C. 522 Section 546), issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system.
CERTIFICATE OF REGISTRATION. Has the same meaning as in Section 931.01 (d)(4).
CITY. The City of Mentor.
CITY MANAGER. The City Manager of the City of Mentor, or a designee thereof.
COLLOCATION or COLLOCATE. To install, mount, maintain, modify, operate, or replace wireless small cell facilities on a wireless support structure.
DECORATIVE POLE. A pole, arch, or structure other than a street light pole placed in the public way specifically designed and placed for aesthetic purposes and on which no appurtenances or attachments have been placed except for any of the following:
(1)   Electric lighting;
(2)   Specially designed informational or directional signage;
(3)   Temporary holiday or special event attachments.
DESIGN GUIDELINES. Those detailed design guidelines, specifications and examples promulgated by the City Manager for the design and installation of small cell facilities and wireless support structures, which are effective insofar as they do not conflict with this Chapter or federal and state laws, rules, and regulations.
ELIGIBLE FACILITIES REQUEST. Has the same meaning as defined in 47 U.S.C. 1455 (a)(2).
FRANCHISE AUTHORITY. See CABLE FRANCHISE.
FCC. The U.S. Federal Communications Commission and any legally appointed, designated, or elected agent or successor.
HISTORIC DISTRICT. A building, property, or site, or group of buildings, properties, or sites that are either of the following:
(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-v of the nationwide programmatic agreement codified at 47 C.F.R. part 1, Appendix C;
(2)   A registered historic district as defined in section 149.311 of the Revised Code.
OCCUPY OR USE. With respect to the right-of-way, to place a tangible thing in the right-of-way for any purpose, including, but not limited to, constructing, repairing, positioning, maintaining, or operating lines, poles, pipes, conduits, ducts, equipment, or other structures, appurtenances, or facilities necessary for the delivery of public utility services or any services provided by a cable operator.
OPERATOR. A wireless service provider, cable operator, or a video service provider that operates a small cell facility and provides wireless service. For the purpose of this Chapter, "operator" includes a wireless service provider, cable operator, or a video service provider that provides information services as defined in the "Telecommunications Act of 1996," 110 Stat. 59, 47 U.S.C. 153(20), and services that are fixed in nature or use unlicensed spectrum.
PERSON. Any natural person, corporation, partnership, company, association, or other entity, including but not limited to any governmental entity.
PUBLIC UTILITY or UTILITY. A facilities-based provider of wireless service to one or more end users in this state, or any company described in section 4905.03 of the Ohio Revised Code and as further defined in section 4905.02 of the Ohio Revised Code, including but not limited to the following types of companies: telephone, electric light, gas, natural gas, pipe-lines, water-works, and sewage disposal systems.
RIGHT-OF-WAY. The surface of and the space above and below the paved or unpaved portions of any public street, public road, public highway, public freeway, public lane, public path, public bikepath, public way, public alley, public court, public sidewalk, public boulevard, public parkway, public drive and any other land dedicated or otherwise designated for the same now or hereafter held by the City. "Right-of-way" shall not include private easements or public property, except to the extent the use or occupation of public property is specifically granted in a right-of-way permit or by administrative regulation.
RIGHT OF WAY PERMIT, SMALL CELL. Means a permit issued by the City for the collocation, construction, maintenance, operation, or replacement of small cell facility(ies) and/or wireless support structures in, along, across, upon and under the right-of-way.
SMALL CELL FACILITY. A wireless facility that meets both of the following requirements:
(1)   Each antenna is located inside an enclosure of not more than six 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 enclosure of not more than six cubic feet in volume; and
(2)   All other wireless equipment associated with the facility is cumulatively not more than twenty-eight cubic feet in volume. The calculation of equipment volume shall not include electric meters, concealment elements, telecommunications demarcation boxes, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs for the connection of power and other services.
SUBSTANTIAL CHANGE: Has the same meaning as described in 47 C.F.R. 1.40001(b)(7).
TOLLING or TOLL PERIOD. The pausing or delaying of the running of a required time period.
UTILITY POLE. A structure that is designed for, or used for the purpose of, carrying lines, cables, or wires for electric or telecommunications service. "Utility pole" excludes street signs and decorative poles.
VIDEO SERVICE PROVIDER. A person granted a video service authorization under sections 1332.21 to 1332.34 of the Ohio Revised Code.
WIRELESS FACILITY. 
(1)   Equipment at a fixed location that enables wireless communications between user equipment and a communications network, including all of the following:
(A)   Equipment associated with wireless communications;
(B)   Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration.
(2)   The term includes small cell facilities.
(3)   The term does not include any of the following:
(A)   The structure or improvements on, under, or within which the equipment is collocated;
(B)   Coaxial or fiber-optic cable that is between wireless support structures or utility poles or that is otherwise not immediately adjacent to or directly associated with a particular antenna.
WIRELESS SERVICE. Any services using licensed or unlicensed wireless spectrum, whether at a fixed location or mobile, provided to the public using wireless facilities.
WIRELESS SERVICE PROVIDER. A person who provides wireless service as defined herein.
WIRELESS SUPPORT STRUCTURE. A pole, street light pole, traffic signal pole, a fifteen-foot or taller sign pole, or utility pole capable of supporting small cell facilities, excluding utility poles or other facilities used to supply traction power to public transit systems, including railways, trams, streetcars, and trolleybuses.
WIRELINE BACKHAUL FACILITY. A facility used for the transport of communications service or any other electronic communications by coaxial, fiber-optic cable, or any other wire.
   (Ord. 18-O-062. Passed 7-3-18.)
933.03 APPLICABILITY.
   (a)   Subject to the Ohio Revised Code and approval of an application under this Chapter, an operator may collocate a small cell facility and construct, maintain, modify, operate, or replace wireless support structures in, along, across, upon, and under the City right-of-way.
      (1)   An operator shall comply with generally applicable standards that are consistent with this Chapter and Chapter 931, and any rules, regulations, and design guidelines adopted by the City for the collocation of a small cell facilities and construction, maintenance, modification, operation, or replacement of wireless support structures in, along, across, upon, and under the City right-of-way, unless otherwise prohibited by state or federal law.
      (2)   All wireless support structures and small cell facilities shall be constructed and maintained so as not to impede or impair public safety or the legal use of the right-of-way by the City, the traveling public, or other public utilities.
   (b)   The permitting procedures and authorizations set forth herein in this Chapter shall apply only to small cell facilities and wireless support structures in the right-of-way, and do not authorize the construction and operation of a wireline backhaul facility, which continues to be governed by Chapter 931 of the Code.
   (c)   Relationship to Other Chapters. This chapter shall supersede all conflicting requirements of other titles and chapters of this Code regarding the locating and permitting of small cell facilities and wireless support structures in the right-of-way. The provisions of this Chapter do not apply to placement of other facilities or systems in the right-of-way, or to the construction, modification, collocation, or removal of small cell facilities, wireless support structures, towers, base stations, or other wireless telecommunications facilities outside the public right-of-way.
   (d)   Nothing in this chapter precludes the City from applying its generally applicable health, safety, and welfare regulations when granting consent for a small cell facility or wireless support structure in the City right-of-way.
(Ord. 18-O-062. Passed 7-3-18.)
933.04 APPLICATION REQUIRED.
   (A)   General Requirements. The following requirements shall apply to all small cell facilities and wireless support structures proposed within the right-of-way.
      (1)   No person shall occupy or use the right-of-way except in accordance with law.
      (2)   In occupying or using the right-of-way, no person shall unreasonably compromise the public health, safety, and welfare.
      (3)   No person shall occupy or use the right-of-way without first obtaining, under this chapter, Chapter 931, or section 1332.24 or 4939.031 of the Ohio Revised Code, a small cell right-of-way permit pursuant to this Chapter. Before placing small cell facilities or wireless support structures in the right-of-way, an operator must apply for and receive a certificate of registration under Section 931.06. If the operator's sole activities in the right-of-way will consist solely of collocating small cell facilities, constructing, modifying, or replacing new wireless support structures and associated small cell facilities, removing such facilities, or eligible facilities requests, then the operator shall not be required to pay the annual fee provided in Section 931.08(a). This provision shall not be construed to waive application fees or any other construction or work permit necessary for work in the City.
   (B)   Pre-Application Conference. 
      (1)   Purpose. Applicants are strongly encouraged to contact the City and request a pre-application conference. The pre-application conference will provide an opportunity for early coordination regarding proposed small cell facilities and wireless support structure locations, design, and the application submittal, and the review process to avoid any potential delays in the processing of an application and deployment of small cell facilities and wireless support structures in the City. Multiple presumptive applications of a provider may be discussed at a single pre-application conference.
      (2)   Appointment Required. An appointment is required for all pre-application conferences. Applicants must contact the designated City staff member as noted on the application form, who will provide applicants an appointment with all applicable City representatives in a timely manner.
   (C)   Application Required. In accordance with federal and state law and the City code, an operator may apply to the City to collocate a small cell facility on an existing wireless support structure and to construct, maintain, modify, operate, or replace wireless support structures in, along, across, upon, and under the City rights-of-way. Anyone seeking to collocate a small cell facility on an existing wireless support structure and/ or to construct, maintain, modify, operate, or replace wireless support structures in, along, across, upon, and under the City rights-of-way shall first duly file a written application with the City, in accordance with the requirements in this section and additional requirements set forth in the Design Guidelines as modified from time to time by the City Manager.
   (D)   Required Application Materials. Unless otherwise required by state or federal law, all applicants shall submit to the City materials and information associated with each application as outlined in the Design Guidelines in order for the application to be considered complete.
(Ord. 18-O-062. Passed 7-3-18.)
933.05 APPLICATION REVIEW TIMEFRAMES AND PROCESS.
   (a)   Permit Application Review Time Frames.
      (1)   Collocation of Small Cell Facilities on Existing Wireless Support Structures. The City shall grant or deny its consent for requests to collocate, or to replace or modify a small cell facility on, or associated with, an existing wireless support structure not later than ninety days after the date of filing by an entity of a completed application.
      (2)   New Wireless Support Structures and Associated Small Cell Facilities. The City shall grant or deny its consent for requests to construct, modify, or replace a wireless support structure associated with a small cell facility within the right-of-way not later than one hundred twenty days after the date of filing by an entity of a completed application.
      (3)   Wireless Support Structure and/or Small Cell Facilities Removal. The City shall grant or deny its consent for requests to remove wireless support structures associated with small cell facilities from the right-of-way in a reasonable time.
      (4)   Eligible Facilities Request. The City shall approve Eligible Facilities Requests in accordance with Ohio Revised Code Chapter 4939, 47 C.F.R. 1.40001, and this Chapter not later than sixty days after the date of filing by an entity of a submitted application.
   (b)   Failure to Grant or Deny Within Prescribed Time Frames. If the City fails to approve or deny a request for consent under this section or a request for a relevant work permit within the timeframes required under Section 933.05(a), provided the time period is not tolled under Section 933.05(D) or extended with the written consent of the applicant and the City, the request shall be deemed granted upon the requesting entity providing notice to the City that the time period for acting on the request has lapsed.
   (c)   Application Denials.
      (1)   The City shall not unreasonably withhold or deny consent for small cell facilities and wireless support structures within the right-of-way.
      (2)   If a request for consent is denied, the City shall provide in writing its reasons for denying the request, supported by substantial, competent evidence, and such information as the applicant may reasonably request to obtain consent. The denial of consent shall not unreasonably discriminate against the entity requesting the consent.
      (3)   Except in the case of a public utility subject to the jurisdiction and recognized on the rolls of the public utilities commission or of a cable operator possessing a valid franchise awarded pursuant to the "Cable Communications Policy Act of 1984," 98 Stat. 2779, 47 U.S.C.A. 541, the City, for good cause shown, may withhold, deny, or delay its consent to any person based upon the person's failure to possess the financial, technical, and managerial resources necessary to protect the public health, safety, and welfare.
   (d)   Tolling of Required Timeframes. 
      (1)   The time periods required in Section 933.05(a) may be tolled only:
         (A)   By mutual agreement between the entity requesting consent and the City;
         (B)   In cases where the City determines that the application is incomplete, as provided in division (d)(2) of this section; or
         (C)   If the number of requests for consent for small cell facilities or wireless support structures received is likely to result in difficulty processing applications within the time limits set forth in Section 933.05(a) due to the lack of resources of the City, then the City may toll the time limits as follows:
            i.   The time period may be tolled for up to twenty-one days for the first fifteen small cell facility or wireless support structure requests received by the City above the thresholds provided in the Table below within any consecutive thirty-day period:
Population of City at time Small Cell Facility or Wireless Support Structure Applications are received:
Number of Applications:
40,001 to 50,000 persons
25 applications or more
50,001 to 60,000 persons
30 applications or more
60,001 to 100,000 persons
60 applications or more
 
            ii.   Further, for every additional fifteen requests that the City receives above the thresholds provided in the Table above, the City may toll the time period for those requests for up to fifteen days in addition to the time period provided in division (d)(1)(C)(i) of this section.
            iii.   In no instance shall the City toll the time period for any small cell facility or wireless support structure request by more than ninety consecutive days. Upon request, the City shall provide an operator written notice of the time limit for a small cell facility or wireless support structure request.
      (2)   To toll the time period for incompleteness, the City shall provide written notice to the person requesting consent not later than thirty days after receiving the request, clearly and specifically delineating all missing documents or information. The missing documents or information shall be reasonably related to determining whether the request meets the requirements of applicable federal and state law. Any notice of incompleteness requiring other information or documentation, including information of the type described in section 4939.0313 of the Ohio Revised Code or documentation intended to illustrate the need for the request or to justify the business decision for the request, in accordance with state and federal law, does not toll the time period for incompleteness.
      (3)   The time period for granting or denying consent resumes when the entity makes a supplemental submission in response to the City's notice of incompleteness.
      (4)   If a supplemental submission is inadequate, the City shall notify the person requesting consent not later than ten days after receiving the supplemental submission that the supplemental submission did not provide the information identified in the original notice that delineated missing documents or information. The time period may be tolled in the case of second or subsequent notices under the procedures identified in divisions (d)(1) to (3) of this section. Second or subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.
   (e)   Consolidated Application for Multiple Small Cell Facilities And/or Wireless Support Structures.
      (1)   Applicants seeking to construct, modify, collocate, or replace more than one small cell facility or more than one wireless support structure may file, at the applicant's discretion, a consolidated application for up to thirty small cell facility requests or up to thirty wireless support structure requests in a single application and receive a single permit for the construction, modification, collocation, or replacement of the small cell facilities or wireless support structures subject to the following:
         (A)   This single application may be filed for multiple small cell facilities or multiple wireless support structures only if they are of substantially the same type.
         (B)   The City may separately address small cell facility collocations or wireless support structures for which incomplete information has been received or which are denied.
      (2)   In the case of a consolidated application, the fees provided for in section 4939.0316 of the Ohio Revised Code and Section 933.09 shall be cumulative. However, the City, at its discretion, may opt to reduce such fees to encourage consolidated application submittals.
      (3)   In the case of a consolidated application, each small cell facility or wireless support structure proposed to be constructed, modified, collocated on, or replaced shall constitute a separate request for consent for purposes of tolling the response deadline as authorized under section 4939.036 of the Ohio Revised Code and Section 933.05(d)(1). A request by a single operator for a new or replacement wireless support structure and associated small cell facility constitutes one request.
   (f)   Timeframe for Completion of Permit. 
      (1)   Collocations of small cell facilities on existing wireless support structures, and the construction of new wireless support structures and/or associated small cell facilities for which permits have been granted shall be completed by the operator or its agent within one hundred eighty days after issuance of the permit, unless:
         (A)   The City and the operator agree to extend this period; or
         (B)   A delay is caused by make-ready work for a City-owned wireless support structure or decorative pole or by the lack of commercial power or backhaul availability at the site, provided that:
            1.   The operator has made a timely request within sixty days after the issuance of the permit for commercial power or backhaul services; and
            2.   The additional time to complete installation does not exceed three hundred sixty days after issuance of the permit.
      (2)   If divisions (f)(1)(A) and (B) of this section cannot be met, the permit shall be void unless the City grants an extension in writing to the operator.
   (g)   Small Cell Facility and Wireless Support Structure Activities Not Requiring Consent.
      (1)   City consent shall not be required for either of the following activities conducted in the right-of- way:
         (a)   Routine maintenance of wireless facilities;
         (b)   The replacement of wireless facilities with wireless facilities that are consistent with the City's current design requirements and guidelines and that are either:
            1.   Substantially similar to the existing wireless facilities; or
            2.   The same size or smaller than the existing wireless facilities.
      (2)   The City may require a Certificate of Registration for any activity described in division (g)(1) of this section and for any activity for which consent is authorized herein and in accordance with state and federal law.
         (Ord. 18-O-062. Passed 7-3-18.)
933.06 DESIGN GUIDELINES.
   (a)   The City Manager shall promulgate detailed Design Guidelines with objective, technically feasible criteria applied in a non-discriminatory manner that reasonably match the aesthetics and character of the immediate area regarding all of the following, which the City shall consider in reviewing an application:
      (1)   The location of any ground-mounted small cell facilities;
      (2)   The location of a small cell facility on a wireless support structure;
      (3)   The appearance and concealment of small cell facilities, including those relating to materials used for arranging, screening, and landscaping;
      (4)   The design and appearance of a wireless support structure.
   (b)   The Design Guidelines shall provide examples of small cell facilities preferences including visual depictions.
   (c)   The provisions in this section shall not limit or prohibit the City Manager's discretion to promulgate and make publicly available other information, materials or requirements in addition to, and separate from, Design Guidelines so long as the information, materials, or requirements do not conflict with state or federal law.
   (d)   The City Manager shall have authority to update or supplement the Design Guidelines to address relevant changes in law, technology, or administrative processes. In the event of any conflict between the Design Guidelines and the standards articulated in this Chapter of the City of Mentor Code of Ordinances, the language of this Chapter shall take precedence over the language of the Design Guidelines.
(Ord. 18-O-062. Passed 7-3-18.)
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