(A) An applicant may not co-locate a small cell wireless facility or install, modify, or replace a utility pole or wireless support structure on which a small cell wireless facility will be co-located within the public right-of-way (ROW) without first applying for and receiving a Permit from the Director in a form, and subject to such terms and conditions, as are acceptable to the Director.
(B) The processing of an application for a Permit under this section is subject to all of the following:
(1) An application in such form as prepared by the Director shall be completed and submitted as set forth in this section.
(2) The Director may require an applicant to provide information and documentation to enable them to make a compliance determination with regard to the criteria in this section. The Director may also require a certificate of compliance with Federal Communications Commission rules related to radio frequency emissions from a small cell wireless facility.
(3) If the proposed activity will occur within a shared ROW or a ROW that overlaps another ROW, an applicant shall provide, to each affected jurisdiction to which an application for the activity is not submitted, notification of the applicant's intent to locate a small cell wireless facility within the ROW. The Director may require proof of other necessary permits, permit applications, or easements to ensure all necessary permissions for the proposed activity are obtained.
(4) The Director may require an applicant to attest that the small cell wireless facility will be operational for use by a wireless provider within 1 year after the Permit issuance date, unless the Director and the applicant agree to extend this period or delay is caused by lack of commercial power or communications transport facilities to the site.
(5) An applicant may, at the applicant's discretion, file a consolidated application and receive a single permit for the co-location of up to 20 small cell wireless facilities within the city. The small cell wireless facilities within a consolidated application must consist of substantially similar equipment and be placed on similar types of utility poles or wireless support structures. The Director may approve a Permit for 1 or more small cell wireless facilities included in a consolidated application and deny a Permit for the remaining small cell facilities.
(6) The application for a permit under this section shall be accompanied by an application fee as established by the City Council and posted in the office of the City Clerk.
(7) The permit application shall be accompanied by a map(s) for any proposed small cell wireless facilities which shall be legible, to scale, labeled with streets, and contain sufficient detail to precisely identify the proposed small cell wireless facilities' locations and surroundings. Where applicable, the required map(s) shall include and identify any requested pole height(s), all attachments and detailed drawings of any attachment.
(8) The applicant shall field-stake all proposed locations for small cell wireless facilities which shall be subject to the advance approval of the Director, Saginaw County Road Commission and/or the Michigan Department of Transportation, as applicable. All approved small cell wireless facilities' locations shall be on a per pole/equipment/other basis.
(9) Once precise locations have been approved, the applicant shall provide latitude and longitude coordinates for the small cell wireless facilities' locations to the Director, as well as detailed as-built drawings within 90 days of the completion of installation.
(10) The applicant shall be responsible to obtain such other licenses, permits, and/or approvals as otherwise required by federal or state law or administrative rules or city ordinance or regulation.
(C) (1) Within 25 days after receiving an application, the Director shall notify the applicant in writing whether the application is complete. If the application is incomplete, the Director shall provide notice that clearly and specifically identifies all missing documents or information.
(2) Upon receipt of a complete application, the Director shall approve or deny the application and notify the applicant in writing within the following period of time after the completed application is received:
(a) For an application for the co-location of small cell wireless facilities on a utility pole, 60 days, subject to the following adjustments:
1. Add 15 days if an application from another applicant was received within one week of the application in question.
2. Add 15 days if, before the otherwise applicable 60-day or 75-day time period elapses, the Director notifies the applicant in writing that an extension is needed and the reasons for the extension.
(b) For an application for a new or replacement utility pole that meets the height requirements of the Act and associated small cell facility, 90 days, subject to the following adjustments:
1. Add 15 days if an application from another applicant was received within one week of the application in question.
2. Add 15 days if, before the otherwise applicable 90-day or 105-day time period elapses, the Director notifies the applicant in writing that an extension is needed and the reasons for the extension.
(3) If the Director fails to comply with this subsection, an application otherwise complete is considered to be approved subject to the condition that the applicant provide the Director not less than seven days' advance written notice that the applicant will be proceeding with the work pursuant to this automatic approval and the applicant shall be responsible to comply with all provisions of this subchapter and the Act.
(4) The Director and an applicant may extend a time period under this section by mutual agreement.
(D) The Director may deny a completed application for a proposed co-location of a small cell wireless facility or installation, modification, or replacement of a utility pole that meets the height requirements of the Act, if the proposed activity would do any of the following:
(1) Materially interfere with the safe operation of traffic control equipment;
(2) Materially interfere with sight lines or clear zones for transportation or pedestrians;
(3) Materially interfere with compliance with the Americans with Disabilities Act of 1990, Public Law 101-336, or similar Federal, state, or local standards regarding pedestrian access or movement;
(4) Materially interfere with maintenance or full unobstructed use of public utility infrastructure under the jurisdiction of the city;
(5) With respect to drainage infrastructure under the jurisdiction of the City, either of the following:
(a) Materially interfere with maintenance or full unobstructed use of the drainage infrastructure as it was originally designed.
(b) Not be located a reasonable distance from the drainage infrastructure to ensure maintenance under Public Act 40 of 1956, as amended, Michigan's Drain Code of 1956, and access to the drainage infrastructure.
(6) Fail to comply with reasonable, nondiscriminatory, written spacing requirements of general applicability adopted by the City by ordinance, administrative regulation, or otherwise that apply to the location of ground-mounted equipment and new utility poles and that do not prevent an applicant from serving any location.
(7) Fail to comply with other applicable codes or ordinances.
(8) Fail to comply with any provision of this ordinance.
(9) Fail to meet reasonable, objective, written stealth or concealment criteria for small cell wireless facilities applicable in a historic district or other designated area, as specified in an ordinance or otherwise and non-discriminatorily applied to all other occupants of the ROW, including electric utilities, incumbent or competitive local exchange carriers, fiber providers, cable television operators, and the city.
(E) Within one year after a permit is granted, an applicant shall complete co-location of a small cell wireless facility that is to be operational for use by a wireless services provider, unless the Director and the applicant agree to extend this period or the delay is caused by the lack of commercial power or communications facilities at the site. If the applicant fails to complete the co-location within the applicable time, the permit is void, and the applicant may reapply for a permit.
(F) Approval of an application authorizes the applicant to do both of the following:
(1) Undertake the installation or co-location.
(2) Subject to relocation requirements that apply to similarly situated users of the ROW and the applicant's right to terminate at any time, maintain the small cell wireless facilities and any associated utility poles or wireless support structures covered by the permit for so long as the site is in use and in compliance with the initial permit under the Act and ordinance.
(G) The Director may propose an alternate location within the ROW or on property or structures owned or controlled by the city within 75 feet of the proposed location to either place the new utility pole or co-locate on an existing structure. The applicant shall use the alternate location if, as determined by the applicant, the applicant has the right to do so on reasonable terms and conditions and the alternate location does not impose unreasonable technical limits or significant additional costs. The Director may request written confirmation of any decision rendered by the applicant under this subsection and the specific basis for the same.
(H) Nothing herein shall prohibit the Director from requiring a separate ROW access permit for work that will unreasonably affect traffic patterns or obstruct vehicular or pedestrian traffic in the ROW.
(I) As a condition of the issuance of a permit, the applicant shall obtain and maintain a bond, in the amount of $1,000 per small cell wireless facility, in a form reasonably satisfactory to the Director, for the small cell wireless facility as applicable to similarly situated users of the ROW for one or more of the following purposes:
(1) To provide for the removal of abandoned or improperly maintained small cell wireless facilities, including those that the city determines should be removed to protect public health, safety, or welfare.
(2) To repair the ROW as provided under the Act.
(3) To recoup rates or fees that have not been paid by an applicant in more than 12 months, if the applicant has received 60-days' advance notice from the city of the noncompliance.
(J) It is a condition of any permit issued under this chapter that:
(1) An applicant shall defend, indemnify, and hold harmless the city and its officers, agents, and employees against any claims, demands, damages, lawsuits, judgments, costs, liens, losses, expenses, and attorney fees resulting from the installation, construction, repair, replacement, operation, or maintenance of any wireless facilities, wireless support structures, or utility poles to the extent caused by the applicant, its contractors, its subcontractors, and the officers, employees, or agents of any of these. An applicant has no obligation to defend, indemnify, or hold harmless the city, or the officers, agents, or employees of the city against any liabilities or losses due to or caused by the sole negligence of the city or its officers, agents, or employees.
(2) An applicant shall obtain insurance, in an amount and of a type reasonably satisfactory to the Director, naming the city and its officers, agents, and employees as additional insureds against any claims, demands, damages, lawsuits, judgments, costs, liens, losses, expenses, and attorney fees. An applicant may meet all or a portion of these requirements by self-insurance. To the extent it self-insures, an applicant is not required to name additional insureds under this subsection. To the extent an applicant elects to self-insure, the applicant shall provide to the Director evidence demonstrating, to the Director's satisfaction, the applicant's financial ability to meet the insurance coverage and limit requirements of this subsection.
(K) It is the policy of the city to encourage the co-location of small cell wireless facilities first, outside of public rights-of-way and, secondarily, within the public rights-of-way. The co-location of uses shall be a condition of approval of any permit granted for a new wireless support structure or utility pole in the public right-of-way; provided, however, that the co-location requirement may be waived if the pole or support structure is disguised so as to blend with the immediate environment (e.g., streetlights, power poles, etc.).
(L) No person shall install or operate “telecommunications facilities,” as defined in Public Act 48 of 2002, as amended, the Metropolitan Extension Telecommunications Rights-Of-Way Oversight Act, without first obtaining a permit in accordance with that law and city ordinance, including any part of a small cell wireless facility, utility pole, or wireless support structure constituting telecommunication facilities.
(M) The following minimal design parameters shall apply to small cell wireless facilities, utility poles and wireless support structures in the City's public rights-of-way:
(1) An applicant may, as a permitted use not subject to zoning review or approval, but still subject to approval by the Director under this ordinance, co-locate small cell wireless facilities and construct, maintain, modify, operate, or replace utility poles in, along, across, upon, and under the ROW consistent with the following:
(a) A utility pole in the ROW installed or modified on or after the effective date of the Act shall not exceed 40 feet above ground level, unless a taller height is agreed to by the Director consistent with all applicable laws.
(b) A small cell wireless facility in the ROW installed or modified after the effective date of the Act shall not extend more than five feet above a utility pole or wireless support structure on which the small cell wireless facility is co-located.
(2) Such structures and facilities shall be constructed and maintained so as not to obstruct or hinder the usual travel or public safety on the ROW or obstruct the legal use of the city's ROW or uses of the ROW by other utilities and communications service providers.
(3) An applicant may co-locate a small cell wireless facility or install, construct, maintain, modify, operate, or replace a utility pole that exceeds the height limits under division (1), or a wireless support structure, in, along, across, upon, and under the row only upon issuance of a permit in accordance with this ordinance and upon receiving any zoning approvals that may be required by the city.
(N) The following design and concealment measures shall apply to the co-location of any small cell wireless facility or utility pole in a historic district, downtown district, including the RMU district, or residential zoning district:
(1) Equipment on a supporting structure may not exceed an aggregate width of four feet (centered on pole) and shall be secured a minimum of ten feet from the ground surface or 18 feet where equipment may overhang the back of curb line. Ground level equipment or shelters are not permitted.
(2) Small cell wireless facilities shall be located no closer than 18 inches from an existing sidewalk/face of curb or 18 inches from a proposed future sidewalk/face of curb location.
(3) Small cell wireless facilities shall be located no closer than ten feet from any driveway.
(4) Small cell wireless facilities shall be located in line with a side lot line and not in front of a residence.
(O) (1) Unless otherwise required by the Federal Communications Commission (FCC), the Federal Aviation Administration (FAA), or applicable codes, poles shall either maintain a galvanized silver, gray or concrete finish or, subject to any applicable standards of the FCC, FAA, or applicable codes, be painted a neutral color so as to reduce visual obtrusiveness.
(2) At all pole sites related equipment shall use materials, colors, textures, screening, and landscaping that will blend the facilities to the natural setting and environment to the extent reasonably practical.
(3) All poles shall be of monopole design and construction unless the Director approves an alternate design. Disguising poles is encouraged.
(P) Any design requirements established by the city shall not have the effect of prohibiting any applicant's technology.
(Q) (1) An applicant shall comply with any city requirements that prohibit communications service providers from installing structures on or above ground in the ROW in an area designated solely for underground or buried cable and utility facilities if each of the following apply:
(a) The city has required all cable and utility facilities, other than city poles, along with any attachments, or poles used for street lights, traffic signals, or other attachments necessary for public safety, to be placed underground by a date that is not less than 90 days before the submission of the applicant's application.
(b) The city does not prohibit the replacement of city poles by an applicant in the designated area.
(R) (1) Upon the written request of an applicant for a permit, the Zoning Board of Appeals may modify the design parameters, including the undergrounding requirements, contained in this ordinance following a hearing and based on its review of factors affecting the public health, safety and welfare including, but not limited to, the following:
(a) The presence of existing poles or other structures or equipment in the immediate vicinity;
(b) The ability to reasonably comply with the design parameters set forth in this ordinance;
(c) The visual and aesthetic impact of the proposed pole, antenna or facilities on the adjacent area;
(d) The existing and planned character of the adjacent area;
(e) Public comment;
(f) The scale and scope of the poles, antennas or facilities relative to the existing character of the area;
(g) Whether granting the modification will adversely impact public safety; and
(h) The recommendations of city staff.
(2) Following its review, the Zoning Board of Appeals may grant, deny, or grant with conditions a request to modify the design parameters and shall provide its decision and the basis for the same to the applicant in writing. The applicant shall be responsible to pay all costs of the city associated with the request to modify the design parameters.
(S) As a condition to the issuance of a Permit under this section, an applicant is required to repair all damage to the ROW directly caused by the activities of the applicant while occupying, constructing, installing, mounting, maintaining, modifying, operating, or replacing small cell wireless facilities, utility poles, or wireless support structures in the ROW and to return the ROW to its functional equivalent before the damage. If the applicant fails to make the repairs required by the city within 60 days after written notice, the city may make those repairs and charge the applicant the reasonable, documented cost of the repairs.
(T) Before discontinuing its use of a small cell wireless facility, utility pole, or wireless support structure, an applicant shall notify the Director in writing. The notice shall specify when and how the applicant intends to remove the small cell wireless facility, utility pole, or wireless support structure. The Director may impose reasonable and nondiscriminatory requirements and specifications for the applicant to return the property to its pre-installation condition. If the applicant does not complete the removal within 45 days after the discontinuance of use, the city may complete the removal and assess the costs of removal against the applicant. A permit under this section for a small cell wireless facility expires upon removal of the small cell wireless facility.
(U) The city may revoke a permit, upon 30 days' written notice to the applicant and an opportunity to cure, if the permitted small cell wireless facilities and any associated utility pole fail to meet the requirements of this section.
(V) The permittee shall be responsible to comply with all applicable legal requirements and to obtain any permits or approvals otherwise required by federal or state law or rule or city ordinances and regulations relative to the installation or operation of small cell wireless facilities in the city's public rights-of-way, including but not limited to electrical permits and encroachment permits. The city, in reviewing and authorizing a permit under the act and/or a permit referred to in this section, and the permittee, in the establishment and operation of any small cell wireless facilities, shall comply with all applicable federal and state laws and rules and city ordinances and regulations.
(W) Fees for the permits as authorized under the act shall be as provided for in the act or those documents and as periodically authorized by City Council and posted in the office of the City Clerk; provided, however, that for installations of utility poles designed to support small cell wireless facilities or co-locations of small cell wireless facilities installed and operational in the ROW before the effective date of the Act, the fees, rates, and terms of an agreement or ordinance for use of the ROW remain in effect subject to the termination provisions contained in the agreement or ordinance.
(Ord. O-213, passed 11-4-2019, effective 11-14-2019)