(a) Applicability. This section of regulations shall apply to the review of any small-cell wireless facility that will be located in the right-of-way within the City of Mount Vernon. Cellular or wireless communication systems that are to be located on a lot are subject to the provisions of Section 1105.04(i).
(b) General Requirements.
(1) The following requirements shall apply to all small cell facilities and wireless support structures proposed within the right-of-way.
A. No person shall occupy or use the right-of-way except in accordance with law.
B. In occupying or using the right-of-way, no person shall unreasonably compromise the public health, safety, and welfare.
C. No person shall occupy or use the right-of-way without first obtaining, under this section, or section 1332.24 or 4939.031 of the Ohio Revised Code, any requisite consent of the City. Before placing small cell facilities or wireless support structures in the right-of-way, an operator must apply for and receive a Small-Cell Facility Permit, issued by the City. This provision shall not be construed to waive application fees or any other construction or work permit necessary for work in the City.
(2) The permitting procedures and authorizations set forth herein in this section 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.
(3) Nothing in this section 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's right-of-way.
(c) Review Procedure.
(1) Pre-Application Meetings.
A. The City requires pre-submittal meetings to meet with potential applicants and discuss projects on a conceptual level. The conference is intended to identify the correct application type and content requirements for any given project, and also to create an informal forum in which applicants and the City can discuss any concerns that should be addressed as soon as possible to avoid any unnecessary delays in the processing of an application and deployment of wireless facilities in the City. The requirement for a pre-application meeting may be waived by the City Engineer or designee based on necessity and prior experience with the applicant.
B. An appointment is required for all pre- application meetings. The City Engineer may establish regular hours in which appointments are available and the number of potential projects that may be discussed at a pre- application meeting.
(2) Prior to installation, modification, relocation or removal of a small cell facility, relocation or removal of an existing wireless support structure, installation of a new wireless support structure, or collocation on an existing wireless support structure in the right-of-way, the operator shall apply to the City and receive approval from the City.
(3) Unless otherwise required by state or federal law, the application shall be submitted to the Engineering Department with the applicable fee and all required materials and information in accordance with the requirements of this section in order for the application to be considered complete.
(4) For processing an application for consent, the City may charge a fee for each small cell facility and wireless support structure requested as prescribed under section 4939.0316 of the ORC and as listed on the associated application forms which shall be made available by the Engineering Department. The City may adjust this fee ten percent (10%) every five (5) years, rounded to the nearest five dollars.
(d) Design Guidelines.
(1) The City Engineer may 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:
A. The location of any ground-mounted small cell facilities;
B. The location of a small cell facility on a wireless support structure;
C. The appearance and concealment of small cell facilities, including those relating to materials used for arranging, screening, and landscaping;
D. The design and appearance of a wireless support structure.
(2) The design guidelines shall provide examples of small cell facilities preferences including visual depictions.
(3) The provisions in this section shall not limit or prohibit the City Engineer'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.
(4) The City Engineer shall have authority to update or supplement the design guidelines to address relevant changes in law, technology, or administrative processes.
(e) Safety Requirements.
(1) 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.
(2) 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.
(3) If state or federal standards and regulations are amended, the owners of the small cell facilities and/or wireless support structures governed by this section 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.
(4) 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.
(5) 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 section. The bond must be maintained for as long as the owner has small cell facilities and/ or wireless support structures located in the right-of-way. 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.
(f) Installation and Inspection.
(1) The collocation or new wireless support structure for which a small cell permit is granted shall be completed within 180 days after issuance of the small cell permit unless the City and the applicant agree to extend this period. The City will agree to an extension if the delay is caused by:
A. Make-ready work for a City-owned wireless support structure; or
B. The lack of commercial power or backhaul availability at the site, provided that the operator has made a timely request within sixty (60) days after the issuance of the small cell permit for commercial power or backhaul services.
(2) The additional time to complete installation may not exceed a total of 360 days after the issuance of the small cell permit.
(3) In situations when completion will not occur within 180 days after issuance of the small cell permit, the applicant may request an extension of time. Such extension request must be completed utilizing the City's extension of time form, which will include the length of time being requested and the reason for the delay. The extension must be filed with the Engineering Department.
(g) General Provisions.
(1) As-Built Maps and Records.
A. Operator shall maintain accurate maps and other appropriate records, including an inventory, of its small cell facilities and wireless support structures as they are actually constructed in the right-of-way or any other City-owned property. The inventory shall include GIS coordinates, date of installation, type of wireless support structure used for installation, wireless support structure owner and description/type of installation for each small cell facility and wireless support structure.
B. Upon City's written request, the operator shall provide a cumulative inventory within thirty (30) days of City's request. Concerning small cell facilities and wireless support structures that become inactive, the inventory shall include the same information as active installations in addition to the date the small cell facility and/or wireless support structure was deactivated and the date the small cell facility and/or wireless support structure was removed from the right-of-way. The City may compare the inventory to its records to identify any discrepancies.
(2) All small cell facilities and wireless support structures shall be designed, constructed, operated and maintained in compliance with all generally applicable federal, state, and local health and safety regulations, including without limitation all applicable regulations for human exposure to RF emissions.
(h) Annual Collocation Fee. For each attachment of a small cell facilities to a wireless support structures owned or operated by the City and located in the right-of-way, the City may charge the operator an annual fee as prescribed in Section 4939.0316 of the ORC and as listed on associated application forms which shall be made available by the Engineering Department. The City may adjust this fee ten per cent every five (5) years, rounded to the nearest five dollars.
(i) Liability and Signal Interference.
(1) The City shall not be liable to the operator by reason of inconvenience, annoyance or injury to the small cell facilities, wireless support structures, and related ground or pole-mounted equipment or activities conducted by the operator therefrom, arising from the necessity of repairing any portion of the right-of-way, or from the making of any necessary alteration or improvements, in or to, any portion of the right-of-way, or in, or to, City's fixtures, appurtenances or equipment.
(2) In the event that an operator's small cell facility interferes with the public safety radio system, or the City's or State of Ohio's traffic signal system, then the Operator shall, at its cost, immediately cooperate with the City to either rule out Operator as the interference source or eliminate the interference. Cooperation with the City may include, but shall not be limited to, temporarily switching the transmission equipment on and off for testing.
(j) Requirements for Removal, Replacement, Maintenance, and Repair.
(1) Replacement of Municipal-Owned Wireless Support Structure.
A. The City may require, in response to an application to collocate a small cell facility on a City-owned wireless support structure, the replacement or modification of the wireless support structure at the operator's cost if the City determines that replacement or modification is necessary for compliance with construction and safety standards. Such replacement or modification shall conform to these design guidelines. The City may retain ownership of the replacement or modified wireless support structure.
B. If the City has reserved space for future public safety or transportation uses on the City-owned wireless support structure, the replacement or modification must accommodate the future use.
(2) Removal or Relocation Required for City Project.
A. Operator shall remove and relocate the permitted small cell facility and/or wireless support structure at the operator's sole expense to accommodate construction of a public improvement project by the City.
B. If operator fails to remove or relocate the small cell facility and/or wireless support structure or portion thereof as requested by the City within 120 days of the City's notice, then the City shall be entitled to remove the small cell facility and/or wireless support structure, or portion thereof at operator's sole cost and expense, without further notice to operator.
C. The operator shall, within thirty (30) days following issuance of invoice for the same, reimburse the City for its reasonable expenses incurred in the removal (including, without limitation, overhead and storage expenses) of the small cell facilities and/or wireless support structure, or portion thereof.
(3) Removal Required by City for Safety and Imminent Danger Reasons.
A. The operator shall, at its sole cost and expense, promptly disconnect, remove, or relocate the applicable Small cell facility and/or wireless support structure within the time frame and in the manner required by the City if the City reasonably determines that the disconnection, removal, or relocation of any part of a small cell facility and/or wireless support structure is necessary to protect the public health, safety, welfare, or City property, or operator fails to obtain all applicable licenses, permits, and certifications required by law for its small cell facility and/or wireless support structure.
B. If the Mayor reasonably determines that there is imminent danger to the public, then the City may immediately disconnect, remove, or relocate the applicable small cell facility and/or wireless support structure at the operator's sole cost and expense.
(4) Removal/Abandonment of Facilities.
A. The operator shall remove small cell facilities and/or wireless support structures when such facilities are abandoned regardless of whether or not it receives notice from the City. Unless the City sends notice that removal must be completed immediately to ensure public health, safety, and welfare, the removal must be completed within the earlier of sixty (60) days of the small cell facility and/or wireless support structure being abandoned, or within sixty (60) days of receipt of written notice from the City. When the operator abandons permanent structures in the right-of-way, the operator shall notify the City in writing of such abandonment and shall file with the City the location and description of each small cell facility and/or wireless support structure abandoned. Prior to removal, the operator must make application to the City and receive approval for such removal. The operator must obtain a right-of-way work permit for the removal. The City may require the operator to complete additional remedial measures necessary for public safety and the integrity of the right-of-way.
B. The City may, at its option, allow a wireless support structure to remain in the right-of-way and coordinate with the owner to transfer ownership of such wireless support structure to the City, instead of requiring the owner and/or operator to remove such wireless support structure.
(5) Restoration. The operator shall repair any damage to the right-of-way, any facilities located within the right-of-way, and/or the property of any third party resulting from operator's removal or relocation activities (or any other of the operator's activities hereunder) within ten (10) calendar days following the date of such removal or relocation, at the operator's sole cost and expense. Restoration of the right-of-way and such property must be to substantially the same condition as it was immediately before the date the operator was granted a small cell permit for the applicable location, or did the work at such location (even if the operator did not first obtain a small cell permit). This includes restoration or replacement of any damaged trees, shrubs, or other vegetation. Such repair, restoration and replacement shall be subject to the sole, reasonable approval of the City.
(k) Rule-Making Authority. The City Engineer is hereby authorized to promulgate additional rules and regulations, including but not limited to the adoption of forms and application submittal requirements, to carry out the purpose and intent of this section in order to protect the public health, safety and welfare. Such rules, and amendments thereto, shall be consistent with these Codified Ordinances, and shall be subject to the approval of the Safety Service Director.
(l) Effect of Partial Invalidity. The provisions of this section are hereby declared to be severable, and if any section, subsection, or clause of this section is held by a court of competent jurisdiction to be unconstitutional or otherwise invalid, such a ruling shall not affect the other parts of this section that can be given effect.
(m) Penalty.
(1) For failure to comply with any provision of this section or the design guidelines, the penalty shall be a civil forfeiture, payable to the City, in the amount of two hundred fifty dollars ($250.00) per day for each day the violation continues.
(2) In addition to the civil forfeiture in division (1), the City may also pursue the remedies of revocation of the small cell permit or specific performance of the violated provision.
(3) The City Engineer may excuse violations of this section for reasons of force majeure.
(4) For purposes of this section, "force majeure" means a strike, acts of God, acts of public enemies, orders of any kind of a government of the United States of America or of the State of Ohio or any of their departments, agencies, or political subdivisions; riots, epidemics, landslides, lightning, earthquakes, fires, tornadoes, storms, floods, civil disturbances, explosions, partial or entire failure of utilities or any other cause or event not reasonably within the control of the permittee, but only to the extent the disabled party notifies the other party as soon as practicable regarding such force majeure and then for only so long as and to the extent that, the force majeure prevents compliance or causes non-compliance with the provisions hereof.
(Ord. 2024-032. Passed 7-22-24.)