(a) Permit Required.
(1) Unless otherwise exempted, it shall be unlawful for any person to collocate or remove a small cell facility or construct, maintain, modify, operate, replace, or remove wireless support structures in, along, across, upon, and/or under the right-of-way unless a permit has been issued by the City Engineer.
(2) Pursuant to R.C. 4939.0311(C), a cable or video service provider shall not be required to obtain permits from the City or to pay fees, with the exception of work permits and associated fees, to place, operate, maintain, or replace micro wireless facilities pursuant to an existing franchise or video service authorization under R.C. Chapter 1332; nor shall a holder of an existing franchise or video service authorization be required to obtain additional authorizations or to pay additional fees for the placement of micro wireless facilities already covered under an existing franchise or video service authorization under R.C. Chapter 1332.
(b) Application Requirements. This section specifies the necessary requirements for a complete permit application. A complete application shall consist of the following:
(1) Application fee. The applicant must provide the applicable permit application fee in the amount currently required by the Engineering Department and listed in its permit fee schedule.
(2) RF compliance affidavit. - Applicants must submit a sworn affidavit prepared and signed by an RF engineer with knowledge about the proposed project that affirms the proposed project will be compliant with all regulations pertaining to radio frequency emissions and exposure to such emissions of the federal communications commission.
(3) Regulatory authorization. To the extent that the applicant claims any regulatory authorization or other right to use the public right-of-way, the applicant must provide a true and correct copy of the certificate, license, notice to proceed or other regulatory authorization that supports the applicant’s claim.
(4) Owner’s authorization. Applicants must submit evidence sufficient to show that either:
A. The applicant owns the proposed support structure; or
B. The applicant has obtained the owner’s authorization to file the application.
(5) Site plans and structural calculations. The applicant must submit fully dimensioned site plans, elevation drawings and structural calculations prepared, sealed, stamped and signed by a Professional Engineer licensed and registered by the State of Ohio. Drawings must depict any existing wireless facilities with all existing wireless communications equipment and other improvements, the proposed facility with all proposed wireless communications equipment and other improvements and the legal boundaries of the leased or owned area surrounding the proposed facility and any associated access or utility easements.
(6) Equipment and enclosure specifications. The applicant shall provide dimensioned elevations, cut sheets, material samples or other construction documents necessary to evaluate for compliance with this chapter.
(7) Statement of intent. The applicant shall provide a statement of a wireless support structure’s intended purpose.
(c) Application Type.
(1) Each application to collocate or remove a small cell facility or construct, maintain, modify, operate, replace, or remove wireless support structures in, along, across, upon, and/or under the right-of- way shall be classified as one of three types. The three types of applications are:
A. Small cell minor. An application that:
1. Involves removal or replacement of small cell facilities and any associated equipment on an existing wireless support structure; and such removal or replacement does not constitute a substantial change; or
2. Involves the routine maintenance of a small cell facility.
B. Small cell substantial. An application that:
1. Involves the installation of a new small cell facility on a wireless support structure; or
2. Involves the removal or replacement of a small cell facility on an existing wireless support structure and such removal or replacement constitutes a substantial change.
C. Wireless support structure. An application for a proposal to construct, modify or replace a wireless support structure in the right-of-way.
(2) Applications seeking to collocate a small cell facility to a wireless support structure owned by the City and located within the City right-of-way shall also be required to obtain an attachment certificate and shall be subject to an attachment fee in an amount set by the City Engineer.
(3) Pursuant to R.C. 4939.0312(A), the City shall permit a person seeking to construct, modify, collocate, or replace more than one small cell facility or more than one wireless support structure within the jurisdiction of a single municipal corporation to file, at the person’s discretion, a consolidated application for consent for up to thirty small cell facilities requests in a single application or up to thirty wireless support structure request 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. However, this single application may only address multiple small cell facilities or multiple wireless support structures if they each involve substantially the same type of small cell facilities or substantially the same type of wireless support structures. The City may separately address small cell facility collocations or wireless support structures for which incomplete information has been received or which are denied. In the case of a consolidated application, the application fees shall be cumulative. 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 the purposes of tolling the response deadline.
(d) Decisions.
(1) The City Engineer shall review the application for conformance with the standards of this chapter and shall either:
A. Approve, approve with conditions, or deny a small cell minor application; or
B. Grant or deny consent for small cell substantial and wireless structure applications.
(2) If a request is denied, the reasons for denial shall be provided in writing to the applicant.
(3) The City reserves the right to deny an application if any one of the following conditions exist:
A. The application does not comply with a provision of this chapter or a provision of the City of Miamisburg’s Codified Ordinances;
B. The applicant is not authorized to conduct business in the State of Ohio;
C. The applicant is not current in its obligation to pay to the City fees or taxes;
D. The design or location is deemed unsafe or non-compliant in regards to transportation and engineering standards for construction within the right-of- way;
E. The design is counter to the health, safety, and welfare of the City;
F. The design or location is in conflict with current or proposed accessibility standards;
G. The design does not meet standards related to electrical, structural, safety or construction best practices.
H. The proposed design is in conflict with existing infrastructure, facilities, and/or utilities.
(4) Except as allowed in division (5) below, applications shall be reviewed and a decision rendered according to this division (d) Decisions - within the following time periods:
A. Small cell minor. Small cell minor applications shall be rendered within sixty days of the date of filing.
B. Small cell substantial. Small cell substantial applications shall be rendered within ninety days of the date of filing.
C. Wireless support structure. Wireless support structure applications shall be rendered within 120 days of the date of filing.
(5) The time period required in division (4) above may be tolled only:
A. By mutual agreement between the applicant and the City;
B. If the application is determined to be incomplete; or
C. The number of applications exceeds the City’s capacity to process them in a timely manner. If such number of applications exceeds capacity then the following tolling time periods may be instituted:
1. The time period may initially be tolled for up to fifteen days when the number of applications received within any consecutive thirty-day period exceeds fifteen applications;
2. For every additional fifteen applications that the City receives above the fifteen applications stated in division (d)(5)C.1. above the time period may be tolled an additional fifteen days; and
3. However, in no instance shall the time tolled exceed ninety consecutive days.
(6) To toll the time period for incompleteness, the City shall provide the applicant notice within thirty days of the date of filing. Such notice shall include a listing of the missing documents and/or information. The time period resumes once the applicant submits a response. If an application is still incomplete, the City shall notify the applicant within ten days of the response.
(7) If multiple applications are received by the City to install two or more wireless support structures that would violate the spacing requirements of Section 1038.05(b) Design and Siting Requirements, or to collocate two or more small cell facilities on the same wireless support structure, the City shall process and render a decision in the order they are received.
(8) In the event that an application is received by the City to install a wireless support structure or small cell facility in a location in common with another application for a facility in the ROW, preference shall be granted in the following order of service provided:
A. Municipal infrastructure;
B. Water;
C. Electricity;
D. Gas;
E. Landline telephone; and
F. Wireless service.
(e) Amendments. Amendments to an application in process which are not part of a response to a notice of incompleteness or a correction notice shall be treated as a new application.
(f) Issuance of Permit and Attachment Certificate.
(1) When a certificate of registration for small cell application is approved or granted consent, and the applicable permit fee is paid, a permit shall be issued to the applicant authorizing the following:
A. Small cell minor work permit. A permit to perform the approved action, removal, replacement, or maintenance work, subject to any conditions;
B. Small cell substantial work permit. A permit to perform the approved removal, replacement, or installation, and grant occupancy within the City right-of-way, subject to any permits or conditions;
C. Wireless support structure permit. A permit to construct, modify or replace a wireless support structure in the right-of-way, subject to any permits or conditions.
(2) When an application seeking collocation or a small cell facility to a wireless support structure owned by the City and located within the City right-of-way is approved and applicable fee paid, an attachment certificate authorizing such attachment, subject to any conditions, shall be issued.
(g) Scope of Approval.
(1) No permit or certificate authorized by this chapter shall be transferrable unless a firm or company with an approved permit or certificate merges or is acquired by another firm or company meeting the definition of “small cell facility operator, operator”. This standard shall not prevent the use of subcontractors to complete work for an approved permit.
(2) No permit or certificate authorized by this chapter shall convey title, equitable or legal, in the right-of-way.
(h) Duration of Approval.
(1) The work authorized by the permit issued must be completed within 180 days from the date of issuance, unless otherwise conditioned as part of the approval.
(2) An attachment certificate is valid for ten years from the date of issuance and may be renewed by the applicant in successive five year terms. Any request for renewal is subject to approval by the City Engineer and may be denied for cause.
(3) In the event that any court of competent jurisdiction invalidates any portion of federal law which mandates approval of any permit, such permit shall automatically expire one year from the date of the judicial order.
(4) In the event that any court of competent jurisdiction invalidates any portion of state law which mandates approval of any permit shall automatically expire sixty days from the date of the judicial order.
(i) Revocation. The following are grounds for the revocation or denial of approval:
(1) The intentional provision of materially misleading information by the applicant (the provision of information is considered “intentional” where the applicant was aware of the inaccuracies or could have discovered the inaccuracies with reasonable diligence);
(2) The failure to comply with any condition of approval, order, or other applicable law, rule, or regulation;
(3) The site, structure or operation is otherwise not in compliance with any other provision(s) of applicable law;
(4) The subject site or use is otherwise not in compliance due to incomplete work or projects, or is not in compliance due to unperformed or slow to perform work as part of an open permit.
(j) Appeals. The Board of Zoning, Building and Housing Appeals (BZA) shall hear and decide upon appeals where it is alleged there is an error in any written decision made by the City Engineer in the enforcement of this Code.
(1) A complete written appeal shall be filed by the appellant within sixty days of the written decision of the City Engineer or the appeal shall become void. The appeal shall be filed with the Engineering Department. The written appeal shall:
A. Cite specific provisions of this chapter that are alleged to have been interpreted in error or the specific action being appealed and the grounds on which the appeal is being made;
B. Include any required application fee in an amount set by Chapter 214 of the Codified Ordinances of the City of Miamisburg.
C. Include such other information as may be required to render a reasonable decision;
D. A statement as to why the appellant has standing as an aggrieved party to pursue the appeal.
(2) The Board of Zoning, Building and Housing Appeals (BZA) shall not be required to hear any case that has been the subject of an appeal during the previous twelve months, unless substantial new evidence, critical to the case, becomes available.
(Ord. 6739. Passed 7- 17-18.)