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(A) Administrative review. The town shall perform an administrative review of permit applications including the location or installation of new, modified, or replacement utility poles and/or wireless support structures and the attachment of wireless facilities and equipment on utility poles or wireless support structures. Review factors, in addition to location, shall include the size, shape, color, texture, and materials of the structures and attachments.
(1) The town may require a proposed wireless facility be designed to not be significantly more readily apparent or plainly visible (to a reasonable person of ordinary sensibilities) from covered areas than existing utility structures, poles and equipment located within 500 linear feet on the same covered area as the subject utility pole or wireless support structure.
(2) Where small wireless facilities are determined to be appropriate, the use of reasonable stealth and concealment treatments, low profile equipment and control boxes, and screening may be required to avoid significant negative impacts on the character and visual aesthetics of the area. However, such requirements may be waived by the town upon a showing that the particular location of a small wireless facility does not warrant stealth or concealment treatments or imposes an excessive expense. The waiver shall be granted or denied within 45 days after the date of the request.
(3) Supplemental review districts identified in § 156.05(C) and listed in Appendix A, as found attached to Ord. 18-22 may be subject to a higher level of review.
(B) Maximum size of permitted use.
(1) The height of an antenna of a collocated small wireless facility shall be limited to the greater often ten feet above:
(a) The height of an existing or modified utility pole or wireless support structure; or
(b) The height of a new utility pole or wireless support structure as provided in division (2) below.
(2) The height of a new or modified utility pole, or wireless support structure is limited to the greater of:
(a) The tallest utility pole, excluding transmission poles, or wireless support structure located in the same covered area, measured from grade, in place within 500 linear feet on the same covered area as the subject utility pole or wireless support structure as of the effective date of this chapter; or
(b) In the absence of any such utility pole or wireless support structure, either:
1. Forty feet in any area zoned exclusively for single family residential use, unless a waiver is granted, by Town Council or their designee, for good cause shown; or
2. Fifty feet in any other area.
3. Collocation is not allowed on a decorative pole less than 20 feet in height.
(C) Supplemental review districts.
(1) Collocated small wireless facilitates and new or modified utility poles or wireless support structures located in supplemental review districts shall be a conditional use and subject to the design and aesthetic requirements and review processes for structures specified in this chapter establishing the supplemental review district(s) in addition to the requirement of this chapter, provided that the town will work in good faith with the applicant to accommodate the installation of collocated small wireless facilities and new or modified utility poles or wireless support structures in supplemental review districts to the fullest extent practicable. The town reserves its right to maintain and implement the following types of supplemental review districts.
(a) Underground districts. A wireless services provider or a wireless infrastructure provider shall comply with nondiscriminatory requirements that prohibit electric utilities, telecommunications or cable providers from installing above-ground structures in the covered area in these districts. Nothing in this section shall prohibit the use or replacement of existing utility poles or wireless support structures in underground districts for the collocation of small wireless facilities subject to administrative review by the Zoning Administrator, appropriate design and concealment and a finding that such use does not increase the height by more than three feet.
(b) Historic and design districts. As a condition for approval of new small wireless facilities or new wireless support structure in a historic district or a design district, the town may require that a wireless services provider or a wireless infrastructure provider comply with the design and aesthetic standards of the historic district or design district to minimize the impact to the aesthetics in a historic district or on a design district's decorative poles. If design and concealment treatments are determined on review by the town to be insufficient to mitigate harm to the historic district or design district, the application may be denied.
(2) This section may not be construed to limit a municipality's authority to enforce historic preservation zoning regulations consistent with the preservation of local zoning authority under 47 U.S.C. Section 332(c)(7), the requirements for facility modifications under 47 U.S.C. Section 1455(a), or the National Historic Preservation Act of 1966 (54 U.S.C. Section 300101 et seq.), and the regulations adopted to implement those laws.
(D) Appeals, special exceptions and variance requirements.
(1) Appeals of administrative decisions and requests for special exceptions and variances from the provisions of this chapter, when strict application would result in an unnecessary hardship or in the inability to deploy needed small wireless facilities, shall be heard and decided by the Board of Zoning Appeals or equivalent board for architectural, design or historical district reviews. An applicant seeking a special exception to construct a new decorative pole, utility pole or other wireless support structure to collocate a small wireless facility in an Underground District shall demonstrate, including certification through an engineer, that it has diligently attempted to locate the proposed decorative pole, utility pole, wireless support structure, or small wireless facility outside of the underground district and that placement of the decorative pole, utility pole, wireless support structure, or small wireless facility within the underground district is necessary to provide the needed wireless coverage or capacity, and one or more of the following conditions exist supporting a special exception:
(a) No existing utility pole or wireless support structure is located within the location search radius or to the extent a utility pole or wireless support structure is located within the search radius, such utility pole or wireless support structure:
1. Is not available for collocation under commercially reasonable rates, terms, and conditions;
2. Cannot accommodate the collocation of the small wireless facility and meet the technical requirements necessary to deliver adequate wireless service coverage or capacity; or
3. Would require modifications exceeding the three feet height limitation imposed in division (C)(1).
(b) The only available option to deliver adequate wireless service coverage or capacity in the search radius requires modifications to an existing utility pole or wireless support structure exceeding the three feet height limitation imposed in division (C)(1) or the installation of a new utility pole or wireless support structure for collocation of a small wireless facility; or
(c) The applicant has demonstrated other circumstances that, in the reasonable discretion of the board, etc., warrant a special exception or variance.
(2) The applicant shall abide by the design, stealth and concealment treatments imposed as conditions of the special exception.
(E) Existing supplemental review districts. Supplemental review districts approved by the town as of the effective date of this chapter are listed in Appendix A, as found attached to Ord. 18-22. The code provisions authorizing the district, applicable design guidelines or manual, review authority and appeal jurisdiction are specified in Appendix A, as found attached to Ord. 18-22. Nothing in this chapter shall prohibit or otherwise limit the town from establishing additional supplemental review districts, provided however, that facilities and structures for which a permit was approved or deemed approved pursuant to this chapter prior to the establishment of the additional supplemental review district remain subject to the provisions of this chapter, including routine maintenance and replacement of those facilities and structures as set out in § 156.03(E)(1) and (2) of this chapter, and not to any provisions otherwise applicable to the additional supplemental review district. If a wireless services provider or a wireless infrastructure provider voluntarily replaces such facilities in a manner that does not comply with § 156.03(E)(2) of this chapter, or if a wireless services provider or a wireless infrastructure provider voluntarily relocates such facilities, such replacement or relocation is subject to the then-existing provisions and requirements of the additional supplemental review district.
(F) Repair of damage. A wireless services provider or a wireless infrastructure provider shall repair all damage to a town right-of-way directly caused by the activities of the wireless services provider or the wireless infrastructure provider, while occupying, installing, repairing, or maintaining wireless facilities, wireless support structures, town utility poles, or utility poles and to return the right-of-way to its functional equivalence before the damage. If the wireless services provider or the wireless infrastructure provider fails to make the repairs required by the town within 45 days after written notice, unless the town and the wireless services provider or the wireless infrastructure provider agree in writing to a longer time period, the town may undertake those repairs and charge the applicable party the reasonable and documented cost of the repairs. The town may maintain an action to recover the costs of the repairs.
(Ord. 18-22, passed 11-5-18)
(A) Authority granted. No property right or other interest created. A permit from the town authorizes an applicant to undertake only certain activities in accordance with the chapter, and does not create a property right or grant any authority whatsoever to the applicant to impinge upon the rights of others who may already have an interest in the covered area.
(B) Duration. Unless construction has actually begun and is diligently pursued to completion at that point, no permit for construction issued under this chapter shall be valid for a period longer than twelve months unless both town and applicant agree to a reasonable extension and all required fees are paid for the term regardless of construction. The inability of the applicant to obtain electrical power or backhaul transport services to serve the wireless facility such that it is operational within the twelve months due to the action or inaction of third-party utility providers shall not result in the invalidity of the permit.
(Ord. 18-22, passed 11-5-18)
(A) Notice. Within 90 days following written notice from the town, a wireless services provider or a wireless infrastructure provider shall, at its own expense, protect, support, temporarily or permanently disconnect, remove, relocate, change or alter the position of any wireless facilities or wireless support structures within the rights-of-way whenever the town, in its reasonable discretion, has determined that such removal, relocation, change or alteration, is reasonably necessary for the construction, repair, maintenance, or installation of any town improvement in or upon, or the operations of the town in or upon, the rights-of-way.
(B) Emergency removal or relocation of facilities. The town retains the right to cut or move any wireless facility or wireless support structure located within its rights-of-way as the town, in its reasonable discretion, may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. If circumstances permit, the town shall notify the wireless services provider or the wireless infrastructure provider and provide opportunity to move its own wireless facilities or wireless support structure prior to the town cutting or removing a wireless facility or wireless support structure and the town shall notify the wireless services provider or the wireless infrastructure provider after cutting or removing a wireless facility.
(C) Abandonment of facilities. Upon abandonment of a wireless facility or wireless support structure within the town rights-of-way, the wireless services provider or the wireless infrastructure provider shall notify the town within 90 days of such abandonment. Following receipt of such notice the town may direct the wireless services provider or the wireless infrastructure provider to remove all or any portion of the wireless facility or wireless support structure if the town, in its sole discretion, determines that such removal will be in the best interests of the public health, safety, and welfare.
(D) Abandonment by inaction. At any point when a wireless services provider or a wireless infrastructure provider fails to pay any required fee, or annual payment to the town, and fails to respond within 60 days to a written inquiry from the town as to whether the wireless services provider or the wireless infrastructure provider intends to continue to operate a wireless facility or wireless town support structure, for whatever reason, the wireless facility shall be deemed abandoned and the town may, at its sole option, remove all or any portion of the wireless facility or wireless support structure, or take other action as authorized by law, including recovery of actual costs incurred in removing the wireless facility or wireless support structure.
(Ord. 18-22, passed 11-5-18)
(A) Annual rate. The rate to place a small wireless facility on a town-owned pole in covered areas shall be $50 per year per wooden pole or $200 per year for all other town-owned poles. This rate is in addition to reimbursement to the town for any expenses for make-ready work. The town reserves the right to require a pole attachment agreement to further define the terms and conditions of attachments to town-owned poles. The rates specified in this section shall not apply to poles owned, or operated and accounted for as an asset of, a municipal electric utility.
(B) Cease payment. A wireless services provider or a wireless infrastructure provider is authorized to remove its facilities at any time from a town-owned pole in covered areas and cease paying the annual rate to the town as of the next due date for payment following the removal.
(C) Make-ready. For town-owned utility poles in covered areas, the applicant shall reimburse the town for expenses for any reasonable make-ready work. The town shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested small wireless facility, including pole replacement if necessary, within 60 days after receipt of a completed request. Make-ready work including any pole replacement shall be completed within 60 days of written acceptance of the good faith estimate by the wireless services provider or the wireless infrastructure provider.
(D) Municipal utilities excluded. Nothing in this section shall be construed to affect the authority of a municipal electric utility to deny, limit, restrict, or determine the rates, fees, terms, and conditions for the use of or attachment to a utility pole owned, or operated and accounted for as an asset of, a municipal electric utility.
(Ord. 18-22, passed 11-5-18)