A. Permitted Use: Small wireless facilities shall be classified as permitted uses and subject to administrative review, except as provided in subsection C9 regarding height exceptions or variances, but not subject to zoning review or approval if they are collocated (i) in rights of way in any zoning district, or (ii) outside rights of way in property zoned exclusively for commercial or industrial use.
B. Permit Required: An applicant shall obtain one or more permits from the City to collocate a small wireless facility. An application shall be received and processed, and permits issued shall be subject to the following conditions and requirements:
1. Application Requirements: A wireless provider shall provide the following information to the City, together with the City's small cell facilities permit application, as a condition of any permit application to collocate small wireless facilities on a utility pole or wireless support structure:
a. Site specific structural integrity and, for a municipal utility pole, make-ready analysis prepared by a structural engineer, as that term is defined in section 4 of the Structural Engineering Practice Act of 1989;
b. The location where each proposed small wireless facility or utility pole would be installed and photographs of the location and its immediate surroundings depicting the utility poles or structures on which each proposed small wireless facility would be mounted or location where utility poles or structures would be installed. This should include a depiction of the completed facility;
c. Specifications and drawings prepared by a structural engineer, as that term is defined in section 4 of the Structural Engineering Practice Act of 1989, for each proposed small wireless facility covered by the application as it is proposed to be installed;
d. The equipment type and model numbers for the antennas and all other wireless equipment associated with the small wireless facility;
e. A proposed schedule for the installation and completion of each small wireless facility covered by the application, if approved;
f. Emergency contact information of the application and installation contractor which shall include at a minimum a cellular phone number, email address and mailing address; and
g. Certification that the collocation complies with the collocation requirements and conditions contained herein, to the best of the applicant's knowledge.
2. Application Process: The City shall process applications as follows:
a. The first completed application shall have priority over applications received by different applicants for collocation on the same utility pole or wireless support structure.
b. An application to collocate a small wireless facility on an existing utility pole or wireless support structure, or replacement of an existing utility pole or wireless support structure shall be processed on a non- discriminatory basis and shall be deemed approved if the City fails to approve or deny the application within ninety (90) days after the submission of a completed application.
However, if an applicant intends to proceed with the permitted activity on a deemed approved basis, the applicant shall notify the City in writing of its intention to invoke the deemed approved remedy no sooner than seventy five (75) days after the submission of a completed application.
The permit shall be deemed approved on the latter of the ninetieth day after submission of the complete application or the tenth day after the receipt of the deemed approved notice by the City. The receipt of the deemed approved notice shall not preclude the City's denial of the permit request within the time limits as provided under this chapter.
c. An application to collocate a small wireless facility that includes the installation of a new utility pole shall be processed on a non- discriminatory basis and deemed approved if the City fails to approve or deny the application within one hundred twenty (120) days after the submission of a completed application.
However, if an applicant intends to proceed with the permitted activity on a deemed approved basis, the applicant shall notify the City in writing of its intention to invoke the deemed approved remedy no sooner than one hundred five (105) days after the submission of a completed application.
The permit shall be deemed approved on the latter of the one hundred twentieth day after submission of the complete application or the tenth day after the receipt of the deemed approved notice by the City. The receipt of the deemed approved notice shall not preclude the City's denial of the permit request within the time limits as provided under this chapter.
d. The City shall deny an application that does not meet the requirements of this chapter.
If the City determines that applicable codes, ordinances or regulations that concern public safety, or the collocation requirements and conditions contained herein require that the utility pole or wireless support structure be replaced before the requested collocation, approval shall be conditioned on the replacement of the utility pole or wireless support structure at the cost of the provider.
The City shall document the basis for a denial, including the specific code provisions or application conditions on which the denial is based, and send the documentation to the applicant on or before the day the City denies an application.
The applicant may cure the deficiencies identified by the City and resubmit the revised application once within thirty (30) days after notice of denial is sent to the applicant without paying an additional application fee. The City shall approve or deny the revised application within thirty (30) days after the applicant resubmits the application or it is deemed approved. Failure to resubmit the revised application within thirty (30) days of denial shall require the applicant to submit a new application with applicable fees, and recommencement of the City's review period.
The applicant must notify the City in writing of its intention to proceed with the permitted activity on a deemed approved basis, which may be submitted with the revised application.
Any review of a revised application shall be limited to the deficiencies cited in the denial. However, this revised application does not apply if the cure requires the review of a new location, new or different structure to be collocated upon, new antennas, or other wireless equipment associated with the small wireless facility.
e. Pole Attachment Agreement: Within thirty (30) days after an approved permit to collocate a small wireless facility on a municipal utility pole, the City and the application shall enter in a master pole attachment agreement, provided by the City for the initial collocation on a municipal utility pole by the applicant. For subsequent approved permits to collocate on a small wireless facility on a municipal utility pole, the City and the applicant shall enter in a license supplement of the master pole attachment agreement. The City Manager, or his designee, is hereby authorized to enter into such an agreement and license on behalf of the City.
3. Completeness Of Application: Within thirty (30) days after receiving an application, the City shall determine whether the application is complete and notify the applicant. If an application is incomplete, the City must specifically identify the missing information. An application shall be deemed complete if the City fails to provide notification to the applicant within thirty (30) days after all documents, information and fees specifically enumerated in the City's permit application form are submitted by the applicant to the City.
Processing deadlines are tolled from the time the City sends the notice of incompleteness to the time the application provided the missing information.
4. Tolling: The time period for applications may be further tolled by:
a. An express written agreement by both the applicant and the City; or
b. A local, State or Federal disaster declaration or similar emergency that causes the delay.
5. Consolidated Applications: An applicant seeking to collocate small wireless facilities within the jurisdiction of the City shall be allowed, at the applicant's discretion, to file a consolidated application and receive a single permit for the collocation of up to twenty five (25) small wireless facilities if the collocations each involve substantially the same type of small wireless facility and substantially the same type of structure.
If an application includes multiple small wireless facilities, the City may remove small wireless facility collocations from the application and treat separately small wireless facility collocations for which incomplete information has been provided or that do not qualify for consolidated treatment or that are denied. The City may issue separate permits for each collocation that is approved in a consolidated application.
6. Duration Of Permits: The duration of a permit shall be for a period of not less than five (5) years, and the permit shall be renewed for equivalent durations unless the City makes a finding that the small wireless facilities or the new or modified utility pole do not comply with the applicable City codes or any provision, condition or requirement contained in this chapter.
If the Act is repealed as provided in section 90 therein, renewals of permits shall be subject to the applicable City code provisions or regulations in effect at the time of renewal.
7. Means Of Submitting Applications: Applicants shall submit applications, supporting information, and notices to the City by personal delivery to the City's Engineering Department, by regular mail postmarked on the date due or by another other commonly used means, including electronic mail or by another method as otherwise required by the City.
C. Collocation Requirements And Conditions:
1. Public Safety Space Reservation: The City may reserve space on municipal utility poles for future public safety uses, for the City's electric utility uses, or both, but a reservation of space may not preclude the collocation of a small wireless facility unless the City reasonably determines that the municipal utility pole cannot accommodate both uses.
2. Installation And Maintenance: The wireless provider shall install, maintain, repair and modify its small wireless facilities in a safe condition and good repair and in compliance with the requirements and conditions of this chapter. The wireless provider shall ensure that its employees, agents or contracts that perform work in connection with its small wireless facilities are adequately trained and skilled in accordance with all applicable industry and governmental standards and regulations.
3. No interference with public safety communication frequencies. The wireless provider's operation of the small wireless facilities shall not interfere with the frequencies used by a public safety agency for public safety communications.
A wireless provider shall install small wireless facilities of the type and frequency that will not cause unacceptable interference with a public safety agency's communications equipment.
Unacceptable interference will be determined by and measured in accordance with industry standards and the FCC's regulations addressing unacceptable interference to public safety spectrum or any other spectrum licensed by a public safety agency.
If a small wireless facility causes such interference, and the wireless provider has been given written notice of the interference by the public safety agency, the wireless provider, at its own expense, shall remedy the interference in a manner consistent with the abatement and resolution procedures for interference with public safety spectrum established by the FCC including 47 CFR 22.970 through 47 CFR 22.973 and 47 CFR 90.672 through 47 CFR 90.675.
The City may terminate a permit for a small wireless facility based on such interference if the wireless provider is not in compliance with the Code of Federal Regulations cited in the previous paragraph. Failure to remedy the interference as required herein shall constitute a public nuisance.
4. The wireless provider shall not collocate small wireless facilities on City utility poles that are part of an electric distribution or transmission system within the communication worker safety zone of the pole or the electric supply zone of the pole.
However, the antenna and support equipment of the small wireless facility may be located in the communications space on the City utility pole and on the top of the pole, if not otherwise unavailable, if the wireless provider complies with applicable codes for work involving the top of the pole.
For purposes of this subparagraph, the terms "communications space", "communication worker safety zone", and "electric supply zone" have the meanings given to those terms in the National Electric Safety Code as published by the Institute of Electrical and Electronics Engineers.
5. The wireless provider shall comply with all applicable codes and local code provisions or regulations that concern public safety.
6. The wireless provider shall comply with written design standards that are generally applicable for decorative utility poles, or reasonable stealth, concealment and aesthetic requirements that are set forth in the City's Comprehensive Plan and the City Center Master Plan or other written design plan that applies to other occupiers of the rights of way, including on a historic landmark or in a historic district.
7. Alternate Placements: Except as provided in this section, a wireless provider shall not be required to collocate small wireless facilities on any specific utility pole, or category of utility poles, or be required to collocate multiple antenna systems on a single utility pole. However, with respect to an application for the collocation of a small wireless facility associated with a new utility pole, the City may propose that the small wireless facility be collocated on an existing utility pole or existing wireless support structure within one hundred feet (100') of the proposed collocation, which the applicant shall accept if it has the right to use the alternate structure on reasonable terms and conditions, and the alternate location and structure does not impose technical limits or additional material costs as determined by the applicant.
If the applicant refuses a collocation proposed by the City, the applicant shall provide written certification describing the property rights, technical limits or material cost reasons the alternate location does not satisfy the criteria in this paragraph.
8. Height Limitations: The maximum height of a small wireless facility shall be no more than ten feet (10') above the utility pole or wireless support structure on which the small wireless facility is collocated.
New or replacement utility poles or wireless support structures on which small wireless facilities are collocated may not exceed the higher of:
a. Ten feet (10') in height above the tallest existing utility pole, other than a utility pole supporting only wireless facilities, that is in place on the date the application is submitted to the City, that is located within three hundred feet (300') of the new or replacement utility pole or wireless support structure and that is in the same right of way within the jurisdictional boundary of the City, provided the City may designate which intersecting right of way within three hundred feet (300') of the proposed utility pole or wireless support structures shall control the height limitation for such facility; or
b. Forty five feet (45') above ground level.
9. Height Exceptions Or Variances On Rights Of Way: If an applicant proposes a height for a new or replacement pole, located within the City's right of way, in excess of the above height limitations on which the small wireless facility is proposed for collocation, the applicant shall apply for a variance in the following manner:
a. Request For Variance: A applicant requesting a variance from the height limitations of this section must do so in writing to the City Engineer as a part of the permit application. The request shall identify the variance sought and the reasons why a variance should be granted.
b. Authority To Grant Variances: The City Engineer shall decide whether a variance is authorized based upon variance request on an individual basis.
c. Conditions For Granting Of Variance: The Engineer may authorize a variance only if the applicant requesting the variance has demonstrated that:
(1) One or more conditions not under the control of the applicant (such as surrounding structure heights, location and height of existing poles, or an irregular right of way) create a special hardship that would make a small cell facility located upon a permitted new or replacement pole substantially ineffective; and
(2) All other designs, methods, materials, locations or facilities that would conform with the provision from which a variance is requested are impracticable in relation to the requested approach; and
d. Additional Conditions For Granting Of A Variance: As a condition for authorizing a variance, the City Engineer may require the applicant requesting the variance to meet reasonable standards and conditions that may or may not be expressly contained within this section.
e. Right To Appeal: Any utility aggrieved by any order, requirement, decision or determination, including denial of a variance, made by the City Engineer under the provisions of this chapter shall have the right to appeal to the City Board, or such other board or commission as it may designate. The application for appeal shall be submitted in writing to the City Clerk within thirty (30) days after the date of such order, requirement, decision or determination. The City Board shall commence its consideration of the appeal at the City Board's next regularly scheduled meeting occurring at least seven (7) days after the filing of the appeal. The City Board shall timely decide the appeal.
10. Height Exceptions Or Variances On Property Outside Of Rights Of Way: If an applicant proposes a height for a new or replacement pole, located on property that is not within a right of way located in the City, in excess of the above height limitations on which the small wireless facility is proposed for collocation, the applicant shall apply for a variation in conformance with procedures, terms and conditions set forth in City's Zoning Ordinance.
11. Contractual Design Requirements: The wireless provider shall comply with requirements that are imposed by a contract between the City and a private property owner that concern design or construction standards applicable to utility poles and ground-mounted equipment located in the right of way.
12. Ground-Mounted Equipment Spacing: The wireless provider shall comply with applicable spacing requirements in applicable codes and ordinances concerning the location of ground-mounted equipment located in the right of way if the requirements include a waiver, zoning or other process that addresses wireless provider requests for exception or variance and do not prohibit granting of such exceptions or variances.
13. Undergrounding Regulations: The wireless provider shall comply with local code provisions or regulations concerning undergrounding requirements that prohibit the installation of new or the modification of existing utility poles in a right of way without prior approval if the requirements include a waiver, zoning or other process that addresses requests to install such new utility poles or modify such existing utility poles and do not prohibit the replacement of utility poles.
14. Collocation Completion Deadline: Collocation for which a permit is granted shall be completed within one hundred eighty (180) days after issuance of the permit, unless the City and the wireless provider agree to extend this period or a delay is caused by make-ready work for a municipal utility pole or by the lack of commercial power or backhaul availability at the site, provided the wireless provider has made a timely request within sixty (60) days after the issuance of the permit for commercial power or backhaul services, and the additional time to complete installation does not exceed three hundred sixty (360) days after issuance of the permit. Otherwise, the permit shall be void unless the City grants an extension in writing to the applicant.
D. Application Fees: Application fees are imposed as follows:
1. The applicant shall pay an application fee of six hundred fifty dollars ($650.00) for an application to collocate a single small wireless facility on an existing utility pole or wireless support structure and three hundred fifty dollars ($350.00) for each small wireless facility addressed in a consolidated application to collocate more than one small wireless facility on existing utility poles or wireless support structures.
2. The applicant shall pay an application fee of one thousand dollars ($1,000.00) for each small wireless facility addressed in an application that includes the installation of a new utility pole for such collocation.
3. Notwithstanding any contrary provision of State law or local ordinance, applications pursuant to this section shall be accompanied by the required application fee. Application fees shall be non-refundable.
4. The City shall not require an application, approval, or permit, or require any fees or other charges, from a communications service provider authorized to occupy the rights of way, for:
a. Routine maintenance;
b. The replacement of wireless facilities with wireless facilities that are substantially similar, the same size, or smaller if the wireless provider notifies the City at least ten (10) days prior to the planned replacement and includes equipment specifications for the replacement of equipment consistent with subsection 16-17.3(b)(1)(d); or
c. The installation, placement, maintenance, operation, or replacement of micro wireless facilities suspended on cables that are strung between existing utility poles in compliance with applicable safety codes.
5. Wireless providers shall secure a permit from the City to work within rights of way for activities that affect traffic patterns or require lane closures.
E. Exceptions To Applicability: Nothing in this chapter authorizes a person to collocate small wireless facilities on:
1. Property owned by a private party or property owned or controlled by the City or another unit of local government that is not located within rights of way, or a privately owned utility pole or wireless support structure without the consent of the property owner;
2. Property owned, leased, or controlled by a park district, forest preserve district, or conservation district for public park, recreation, or conservation purposes without the consent of the affected district, excluding the placement of facilities on rights of way located in an affected district that are under the jurisdiction and control of a different unit of local government as provided by the Illinois Highway Code; or
3. Property owned by a rail carrier registered under section 18c-7201 of the Illinois Vehicle Code, Metra Commuter Rail or any other public commuter rail service, or an electric utility as defined in section 16-102 of the Public Utilities Act, without the consent of the rail carrier, public commuter rail service, or electric utility. The provisions of this chapter do not apply to an electric or gas public utility or such utility's wireless facilities if the facilities are being used, developed, and maintained consistent with the provisions of subsection (i) of section 16-108.5 of the Public Utilities Act.
For the purposes of this subsection, "public utility" has the meaning given to that term in section 3-105 of the Public Utilities Act. Nothing in this chapter shall be construed to relieve any person from any requirement (a) to obtain a franchise or a State-issued authorization to offer cable service or video service or (b) to obtain any required permission to install, place, maintain, or operate communications facilities, other than small wireless facilities subject to this chapter.
F. Pre-Existing Agreements: Existing agreements between the City and wireless providers that relate to the collocation of small wireless facilities in the right of way, including the collocation of small wireless facilities on authority utility poles, that are in effect on June 1, 2018, remain in effect for all small wireless facilities collocated on the City's utility poles pursuant to applications submitted to the City before June 1, 2018, subject to applicable termination provisions contained therein. Agreements entered into after June 1, 2018, shall comply with this chapter.
A wireless provider that has an existing agreement with the City on the effective date of the Act may accept the rates, fees and terms that the City makes available under this chapter for the collocation of small wireless facilities or the installation of new utility poles for the collocation of small wireless facilities that are the subject of an application submitted two (2) or more years after the effective date of the Act by notifying the City that it opts to accept such rates, fees and terms. The existing agreement remains in effect, subject to applicable termination provisions, for the small wireless facilities the wireless provider has collocated on the City's utility poles pursuant to applications submitted to the City before the wireless provider provides such notice and exercises its option under this paragraph.
G. Annual Recurring Rate: A wireless provider shall pay to the City an annual recurring rate to collocate a small wireless facility on a City utility pole located in a right of way that equals (i) two hundred dollars ($200.00) per year or (ii) the actual, direct, and reasonable costs related to the wireless provider's use of space on the City utility pole.
If the City has not billed the wireless provider actual and direct costs, the fee shall be two hundred dollars ($200.00) payable on the first day after the first annual anniversary of the issuance of the permit or notice of intent to collocate, and on each annual anniversary date thereafter.
H. Abandonment. A small wireless facility that is not operated for a continuous period of twelve (12) months shall be considered abandoned. The owner of the facility shall remove the small wireless facility within ninety (90) days after receipt of written notice from the City notifying the wireless provider of the abandonment.
The notice shall be sent by certified or registered mail, return receipt requested, by the City to the owner at the last known address of the wireless provider. If the small wireless facility is not removed within ninety (90) days of such notice, the City may remove or cause the removal of such facility pursuant to the terms of its pole attachment agreement for municipal utility poles or through whatever actions are provided for abatement of nuisances or by other law for removal and cost recovery.
A wireless provider shall provide written notice to the City if it sells or transfers small wireless facilities within the jurisdiction of the City. Such notice shall include the name and contact information of the new wireless provider. (Ord. O-18-27, 7-23-2018)