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(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.)
(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.)
(a) Standard Conditions of Approval. Permission to site small cell facilities and wireless support structures in the right-of-way shall be conditioned on compliance with the standard conditions of approval provided in this Section 933.07. The City Manager or his or her designee may add or modify conditions of approval as necessary or appropriate to protect and promote the public health, safety, and welfare.
(b) Small Cell Right-of-way Permit Duration. The City's approval term of an attachment to a wireless support structure shall be for a period of not less than ten years, with presumption of renewal for successive five-year terms, subject to terms providing for early termination or nonrenewal for cause or by mutual agreement and unless otherwise agreed to by both the operator and the City, except for generally applied permitting to safeguard the public health, safety, and welfare. An operator may remove its small cell facilities at any time subject to applicable permit requirements and, following such removal, may stop paying annual charges or fees under Section 933.09.
(c) Compliance with All Applicable Laws.
(1) Operator shall at all times maintain compliance with all applicable federal, state and local laws, regulations, ordinances, or other rules.
(2) If state or federal standards and regulations are amended, the owners of the small cell facilities and/or wireless support structures governed by this chapter shall bring any facilities and/or structures into compliance with the revised standards and regulations within six months of the effective date of the standards and regulations, unless a different compliance schedule is mandated by the regulating agency. Failure to bring small cell facilities and/or wireless support structures into compliance with any revised standards and regulations shall constitute grounds for removal at the owner's expense.
(d) Inspections; Emergencies. The City or its designee may inspect small cell facilities and wireless support structures in the right-of-way. The operator shall cooperate with all inspections. The City reserves the right to support, repair, disable, or remove any elements of the facility in emergencies or when the facility threatens imminent harm to persons or property.
(e) Relocation or Adjustment as Requested by City. If requested by the City, in order to accomplish construction and maintenance activities directly related to improvements for the health, safety, and welfare of the public, an operator shall relocate or adjust its facilities within the right-of-way at no cost to the City, as long as such request similarly binds all users in or on such public way. Such relocation or adjustment shall be completed in accordance with law.
(f) Contact Information for Responsible Parties. Operators with small cell facilities or wireless support structures in the right-of-way shall at all times maintain accurate contact information for all parties responsible for the facility, which shall include a phone number, street mailing address, and email address for at least one natural person. All such contact information for responsible parties shall be provided to the City Manager.
(g) Indemnification. Any operator who owns or operates small cell facilities or wireless support structures in the right-of-way shall indemnify, protect, defend, and hold the City and its elected officials, officers, employees, agents, and volunteers harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees to include reasonable attorney fees and costs of defense, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury or death, property damage or other harm for which recovery of damages is sought, to the extent that it is caused by the negligence of the operator who owns or operates small cell facilities and wireless service in the right-of-way, any agent, officer, director, representative, employee, affiliate, or subcontractor of the operator, or their respective officers, agents, employees, directors, or representatives while installing, repairing, or maintaining facilities in the right-of-way.
(h) Interference with Public Safety Radio Services. In occupying or using the right-of-way, no person shall unreasonably compromise the public health, safety, and welfare. Operators shall comply with the applicable provisions of 47 CFR 22.970-973 and 47 CFR 90.672-675 respectively, which define unacceptable interference, state the obligations of licensees to abate unacceptable interference, provide interference resolution procedures, and set forth a discretionary information exchange between public safety licensees and other licensees.
(i) Adverse Physical Impacts on Adjacent Properties. Operators shall undertake all reasonable efforts to avoid adverse physical impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification, or removal of the small cell facility and/or wireless support structure.
(j) Good Condition Required. Small cell facilities and wireless support structures shall at all times be kept and maintained in good condition, order, and repair by qualified maintenance and construction personnel, so that the same shall not menace or endanger the health, safety or welfare of any person or property. Examples of poor condition include, but are not limited to: peeling, flaking, or blistered paint; rust or other visible deterioration of materials; or failure to maintain required landscape screening. All small cell facilities and wireless support structures shall be subject to generally applicable property maintenance requirements and to visual inspection by property maintenance inspectors. Notices and abatement of violations shall proceed as set forth in Chapter 1371 of the Codified Ordinances.
(k) Graffiti Abatement. Operators shall remove any graffiti on the small cell facility or wireless support structure at operator's sole expense.
(l) Rf Exposure Compliance. All facilities must comply with all standards and regulations of the FCC and any other state or federal government agency with the authority to regulate RF exposure standards.
(m) Relocation for Public Improvement Projects. Operators shall remove and relocate the permitted small cell facility and/or wireless support structure at operator's sole expense to accommodate construction of a public improvement project by the City.
(n) Removal of Small Cell Facilities If Use Discontinued or Abandoned.
(1) In the event that the use of a small cell facility and/or wireless support structure is discontinued, the owner or operator of the small cell facility and/ or wireless support structure shall submit a request for consent to remove the wireless support structure or small cell facility, as provided in Section 933.05(a)(3), and the date when the use shall be discontinued. If the small cell facility and/or wireless support structure is not removed within 365 days of discontinued use, the small cell facility and/ or wireless support structure shall be considered abandoned and the City may remove it at the owner's expense.
(2) Small cell facilities and wireless support structures determined by the City to be abandoned without notice from the owner may be removed by the City at the owner's expense to ensure the public health, safety, and welfare.
(3) The City reserves the right to inspect and to request information from the operator, which the operator shall provide following such request, as to the continued use of the operator's small cell facility(ies) or wireless support structure(s) within the right-of-way.
(Ord. 18-O-062. Passed 7-3-18.)
(a) Prevention of Failures and Accidents. Any person who owns a small cell facility and/or wireless support structure sited in the right-of-way shall at all times employ ordinary and reasonable care and install and maintain in use industry standard technology for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public.
(b) Compliance with Fire Safety and FCC Regulations. Small cell facilities, wires, cables, fixtures, and other equipment shall be installed and maintained in substantial compliance with the requirements of the National Electric Code, all FCC, state, and local regulations, and in such manner that will not interfere with the use of other property.
(c) Surety Bond or Equivalent Financial Tool for Cost of Removal. All owners must procure and provide to the City a bond, or must provide proof of an equivalent financial mechanism, to ensure compliance with all provisions of this Chapter. The bond or equivalent financial method must specifically cover the cost of removal of unused or abandoned small cell facilities and/ or wireless support structures or damage to City property caused by an operator or its agent of each small cell facility and/ or wireless support structure in case the City has to remove or pay for its removal. Two acceptable alternatives to a bond include a funds set-aside and a letter of credit.
(Ord. 18-O-062. Passed 7-3-18.)
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