(A) Generally. The placement of telecommunication towers and antennae anywhere in the corporate limits of the city shall in all cases be subject to the city's zoning and land use regulations, including those set forth in §§ 35.110 through 35.114, Palm Bay Code. Where placement of a wireless antenna in the public rights-of-way has been approved by the city and to the extent not inconsistent with any city zoning and land use regulations, a wireless antenna attached to a permitted and legally maintained vertical structure in the public rights-of-way, such as a light pole or utility pole, shall, unless otherwise agreed to by the city in writing:
(1) not extend more than ten feet (10') above the highest point of the vertical structure;
(2) not have any type of lighted signal, lights, or illuminations unless required by an applicable federal, state, or local rule, regulation or law;
(3) comply with any applicable Federal Communications Council Emissions Standards;
(4) comply with any applicable local building codes in terms of design, construction and installation; and
(5) not contain any commercial advertising thereon.
(B) Small wireless facilities in public rights-of way. The city hereby adopts the following rules that will apply to the collocation of small wireless facilities in public rights-of-way for all applications filed on or after July 1, 2017:
(1) General conditions. Applicants seeking permission to collocate or install small wireless facilities within public rights-of-way shall comply with the registration, insurance coverage, indemnification, performance bonds, security funds, force majeure, abandonment, city liability, and city warranties provisions contained in this Chapter 101; provided, however, that the review timeframes and denial criteria of this § 101.08(B) shall control.
(2) Filing, review, and processing of applications. The city shall accept applications for permits and shall process and issue permits for the collocation of small wireless facilities in public rights-of-way subject to the following requirements:
(a) The applicant shall as a part of its application provide information necessary to demonstrate the applicant's compliance with the applicable provisions of Chapter 101 for the placement of small wireless facilities in the locations identified in the application, and shall bear the burden of demonstrating compliance therewith.
(b) Within fourteen (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 thirty (30) days after the date of the request. 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. If an agreement is not reached, the applicant must notify the city of such nonagreement and the city must grant or deny the original application within ninety (90) days after the date the application was filed. 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 hereby limits the height of a small wireless facility to 10 feet above the utility pole or structure upon which the small wireless facility is to be collocated. Unless waived by the city, the height for a new utility pole is limited to the tallest existing utility pole as of July 1, 2017, located in the same public right-of-way, other than a utility pole for which a waiver has previously been granted, measured from grade in place within five hundred feet (500') of the proposed location of the small wireless facility. If there is no utility pole within five hundred feet (500'), the city shall limit the height of the utility pole to fifty feet (50').
(d) Within fourteen (14) days after receiving an application, the city must determine and notify the applicant by electronic mail as to whether the application is complete. If an application is deemed incomplete, the city must specifically identify the missing information. An application is deemed complete if the city fails to provide notification to the applicant within fourteen (14) days.
(e) The city shall process all applications on a nondiscriminatory basis. If the city fails to approve or deny a complete application within 60 days after receipt of the application, the application is deemed approved. If the city does not use the 30-day negotiation period provided herein, the parties may mutually agree to extend the 60-day application review period. The city shall grant or deny the application at the end of the extended period.
(f) A permit issued pursuant to an approved application shall remain effective for 1 year unless extended by the city.
(g) The city shall notify the applicant of approval or denial by electronic mail. The city shall approve a complete application unless it does not meet the applicable provisions of this chapter.
(h) If the application is denied, the city shall specify in writing the basis for denial, including the specific code provisions on which the denial is based, and shall send the documentation to the applicant by electronic mail on the day the city denies the application.
(i) The applicant may cure the deficiencies identified by the city and resubmit the application within thirty (30) days after notice of the denial is sent to the applicant. Failure by the applicant to timely resubmit the application shall result in a final denial of the application. The city shall approve or deny a timely filed revised application within thirty (30) days after receipt or the application is deemed approved. Any subsequent review shall be limited to the deficiencies cited in the denial.
(j) An applicant seeking to collocate small wireless facilities within the city's boundaries may, at the applicant's discretion, file a consolidated application with the city and receive a single permit for the collocation of up to 30 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.
(k) The city may deny a proposed collocation of a small wireless facility in the public rights-of-way if the proposed collocation:
1. Materially interferes with the safe operation of traffic control equipment.
2. Materially interferes with sight lines or clear zones for transportation, pedestrians, or public safety purposes.
3. Materially interferes with compliance with the Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement.
4. Materially fails to comply with the 2010 edition of the Florida Department of Transportation Utility Accommodation Manual.
5. Fails to comply with applicable codes and the applicable provisions of this chapter.
(l) Notwithstanding anything to the contrary contained herein, the city may reserve space on city utility poles for future public safety uses. If replacement of a city utility pole is necessary to accommodate the collocation of the small wireless facility and the future public safety use, the pole replacement is subject to the make-ready provisions of this ordinance and the replaced pole shall accommodate the future public safety use.
(m) A structure granted a permit and installed pursuant to this § 101.08(B) shall comply with Fla. Stat. Ch. 333 and federal regulations pertaining to airport airspace protections.
(n) The city does not require approval or fees for (i) routine maintenance, (ii) replacement of existing wireless facilities with substantially similar wireless facilities, or (iii) installation, placement, maintenance, or replacement of micro wireless facilities that are suspended on cables strung between existing utility poles in compliances with applicable codes by or for a communications services provider authorized to occupy the public rights-of-way and who is remitting taxes under Fla. Stat. Ch. 202.
(3) Collocation of small wireless facilities on city utility poles. Collocation of small wireless facilities on city utility poles is subject to the following requirements:
(a) The city shall not enter into an exclusive arrangement with any person for the right to attach equipment to city utility poles.
(b) The rates and fees for collocations on city utility poles must be nondiscriminatory, regardless of the services provided by the collocating person.
(c) The city hereby levies, establishes, and sets an annual rate that shall be paid by all those applicants who file an application to collocate small wireless facilities on city utility poles in the amount of $150 per pole per year. The initial payment shall be made as a condition of the granting of the permit, with remaining annual payments to be made in all subsequent years on the same date.
(d) Agreements between the city and wireless providers that are in effect on July 1, 2017, and that relate to the collocation of small wireless facilities in the right-of-way, including the collocation of small wireless facilities on city utility poles, remain in effect, subject to applicable termination provisions. The wireless provider may accept the rates, fees, and terms established under this subsection for small wireless facilities and utility poles that are the subject of an application submitted after the rates, fees, and terms become effective.
(e) For a city utility pole that supports an aerial facility used to provide communications services or electric service by another, the parties shall comply with the process for make-ready work under 47 U.S.C. s. 224 and implementing regulations. The good faith estimate of the person owning or controlling the pole for any make-ready work necessary to enable the pole to support the requested collocation must include pole replacement if necessary.
(f) For a city utility pole that does not support an aerial facility used to provide communications services or electric service by another, the city shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested collocation, including necessary pole replacement, within sixty (60) days after receipt of a complete application. Make-ready work, including any pole replacement, must be completed within sixty (60) days after written acceptance of the good faith estimate by the applicant. Alternatively, the city may require the applicant seeking to collocate a small wireless facility to provide a make-ready estimate at the applicant's expense for the work necessary to support the small wireless facility, including pole replacement, and perform the make-ready work. If pole replacement is required, the scope of the make-ready estimate is limited to the design, fabrication, and installation of a utility pole that is substantially similar in color and composition. The city may not condition or restrict the manner in which the applicant obtains, develops, or provides the estimate or conducts the make-ready work subject to usual construction restoration standards for work in the right-of-way. The replaced or altered utility pole shall remain the property of the city.
(g) The city may not require more make-ready work than is required to meet applicable codes or industry standards. Fees for make-ready work may not include costs related to preexisting damage or prior noncompliance. Fees for make-ready work, including any pole replacement, may not exceed actual costs or the amount charged to communications services providers other than wireless services providers for similar work and may not include any consultant fee or expense.
(4) Placement of utility poles in the public rights-of-way in support of collocation of small wireless facilities. A wireless infrastructure provider may apply to the city to place utility poles in the public rights-of-way to support the collocation of small wireless facilities. The application must include an attestation that small wireless facilities will be collocated on the utility pole or structure and will be used by a wireless services provider to provide service within nine (9) months after the date the application is approved by the city. The city shall accept and process the application in accordance with § 101.08(B) and any applicable codes and other local codes governing the placement of utility poles in the public rights-of-way.
(5) Application and enforcement of historic preservation zoning regulations. Consistent with preservation of local zoning authority under 47 U.S.C. s. 332(c)(7), the requirements for facility modifications under 47 U.S.C. s. 1455(a), and the National Historic Preservation Act of 1966, as amended, this § 101.08(B) is subject to the provisions of Chapter 38, City Code, Historic Preservation.
(a) This § 101.08(B) does not authorize a person to collocate or attach wireless facilities, including any antenna, micro wireless facility, or small wireless facility, on a privately-owned utility pole, a utility pole owned by an electric cooperative or a municipal electric utility, a privately owned wireless support structure, or other private property without the consent of the property owner.
(b) The approval of the installation, placement, maintenance, or operation of a small wireless facility pursuant to this § 101.08(B) does not authorize the provision of any voice, data, or video services or the installation, placement, maintenance, or operation of any communications facilities other than small wireless facilities in the public right-of-way.
(d) This § 101.08(B) does not apply to the installation, placement, maintenance, or replacement of micro wireless facilities on any existing and duly authorized aerial communications facilities, provided that once aerial facilities are converted to underground facilities, any such collocation or construction shall be only as provided by the city's underground utilities ordinance.
(e) This § 101.08(B) does not authorize a person to collocate small wireless facilities or micro wireless facilities on a city utility pole or erect a wireless support structure in a location subject to covenants, conditions, restrictions, articles of incorporation, and bylaws of a homeowners' association. This paragraph does not apply to the installation, placement, maintenance, or replacement of micro wireless facilities on any existing and duly authorized aerial communications facilities.
(Ord. 2017-66, passed 10-3-17)