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(A) This section applies to activities of a wireless provider collocating small wireless facilities on authority poles in the city's right-of-way or in a right-of-way controlled by the Arkansas Department of Transportation located within the city.
(B) (1) A person owning, managing, or controlling poles in the city or state right-of-way shall not enter into an exclusive arrangement with any person for the right to attach to the poles.
(2) A person who purchases or otherwise acquires any pole in the city or state right-of-way is subject to the requirements of this section.
(C) The city shall allow the collocation of small wireless facilities on authority poles on nondiscriminatory terms and conditions using the process in § 156.040.
(D) The rates to collocate on authority poles is provided in § 156.043.
(E) (1) As part of an application to collocate a small wireless facility on an authority pole, the wireless provider shall submit make-ready design drawings and work descriptions that enable the pole to support the requested collocation by the wireless provider, including pole replacement if necessary.
(2) The city may amend the make-ready design drawings and work to comply with applicable codes before the issuance of a permit to the extent reasonably necessary.
(3) The rates, fees, and terms and conditions for the make-ready work to collocate on an authority pole shall be nondiscriminatory, competitively neutral, and commercially reasonable and shall comply with this chapter.
(4) The city shall not require more make-ready work than required to meet applicable codes or industry standards nor may the fees for make-ready work include costs related to preexisting or prior damage or noncompliance.
(F) (1) The city may require replacement of an authority pole only if the collocation would make the authority pole structurally unsound.
(2) The city may require that the replaced authority pole have the same functionality as the pole being replaced.
(3) If the authority pole is replaced, the city shall take ownership of the new pole and operate authority fixtures on the pole.
(G) (1) Make-ready fees charged by the city may include the amount the authority pays a professional engineer registered in Arkansas to review the wireless provider's make-ready work plans.
(2) Fees for make-ready work shall not include any revenue or contingency-based consultant's fees or expenses of any kind.
(H) Within 60 days of the receipt of the application filed to collocate on a city pole, the city shall elect to:
(1) Perform the make-ready work necessary to enable the pole to support the requested collocation by a wireless provider and provide a good-faith estimate for the work, including pole replacement, if necessary; or
(2) Authorize the wireless provider to perform the make ready work.
(I) (1) The city shall complete make-ready work it elects to perform, including any pole replacement, within 60 days of written acceptance of the good faith estimate of the applicant.
(2) If the city, electing to perform the make-ready work, has not completed the work within 60 days after the written acceptance and deposit of the good faith estimate by the applicant, the applicant may demand a return of any deposited funds and proceed with the make-ready work as described in division (E) of this section, using authorized, qualified contractors approved by the city with the authorization not to be unreasonably withheld, conditioned, or delayed.
(J) The city or other applicable authority may reserve space on an authority pole for future public safety or transportation uses in a documented and approved plan in place at the time an application is filed.
(1) A reservation of space shall not preclude placement of a pole or collocation of a small wireless facility.
(2) If replacement of the city's pole is necessary to accommodate the collocation of the small wireless facility and the future use, the wireless provider shall pay for the replacement of the authority pole and the replaced pole shall accommodate future use.
(Ord. 2019-08-856, passed 8-20-19)
(A) The aesthetic appearance of small wireless facilities and associated poles is regulated by the city to ensure coordinated, adjusted, and harmonious development, as provided in this section. The city may apply these requirements to areas of the city in which coordinated, adjusted, and harmonious development has been established through the use of overlay districts or historical districts which have been in existence at least 90 days prior to the passage of this chapter.
(B) These aesthetic standards shall adhere to the following requirements:
(1) Reasonable, in that they are technically feasible and reasonably directed to avoiding or remedying unsightly or out-of-character deployments;
(2) No more burdensome than those applied to other types of utility and communications infrastructure deployments;
(3) Objective and published at least 90 days in advance of the filing of an application under this chapter;
(4) Any design or concealment measures are not considered a part of the small wireless facility for purposes of the size parameters in the definition of "small wireless facility"; and
(5) The city may deny an application for not complying with aesthetic requirements only if the city finds that the denial does not prohibit or have the effect of prohibiting the provision of wireless service.
(C) The Board of Zoning Adjustment may:
(1) Hear appeals of the decision of the Administrative Officer in respect to the enforcement and application of the aesthetic standards, and may affirm or reverse, in whole or in part, the decision of the Administrative Officer.
(a) Decisions of the Administrative Officer shall be rendered to the applicant in writing; and
(b) An appeal must be filed within ten days of the written decision of the Administrative Officer.
(2) Hear requests for variances from the literal provisions of the aesthetic standards and grant the variances only when it is necessary to avoid the prohibition of wireless service or otherwise comply with the law.
(D) Decisions of the Board in respect to this section shall be subject to appeal only to a court of record having jurisdiction.
(E) Equipment enclosures.
(1) To the extent technically feasible, if the support structure is a pole, all radios and wireless communication equipment, except the antenna, shall be enclosed within an equipment cabinet and housed: at the base of the support structure, pole mounted (at a height and placement that will not interfere with pedestrian, cyclist, or vehicular movements), or below grade.
(2) Where underground utilities are required by the provisions of this code or other city adopted regulations or codes, ancillary equipment related to the small wireless facility shall be placed in an underground vault to the greatest extent possible.
(F) Design. Consistent with the provisions of this section, a small wireless facility shall be installed using the following design approaches to the extent reasonable including without limitation the following:
(1) For location on newly proposed wireless support structures, the following options are available:
(a) New poles installed to support small wireless facilities shall be made of the same or similar material as existing poles in the immediate area.
(b) In an area where other above ground utilities are present, the deployment of a new small cell facility shall be located on the same side of the street which the existing above ground utilities are located and a similar style utility pole (as those utilized by existing above ground utilities) may be utilized.
(c) In an area where the city has required all electrical and communication lines to be placed underground by a date certain that is three months before the submission of the application or where undergrounding is required after small wireless facilities have been installed, an explanation as to why collocation or use of an existing structure, remaining pole or replacement pole is not technically feasible shall be required. This shall apply to the location of all pole attached utilities and shall include demonstration of a reasonable attempt to collocate or utilize an existing structure. A wireless provider may install a new pole in the designated area that otherwise complies with this section when it is not able to provide wireless service by collocating on an existing structure, remaining pole or replacement pole
(d) When a wireless provider applies to install a new pole in the right-of-way in an area zoned for residential use, the city may propose an alternative location in the right-of-way within 100 feet of the location stated in the application, and the wireless provider shall use the city's proposed alternative location unless the location imposes technical limits or significant additional costs.
(i) The wireless provider shall certify that it has made the determination in good faith, based on the assessment of a licensed engineer, and the wireless provider shall provide a written summary of the basis for the determination.
(e) The city may require wireless providers to comply with reasonable and nondiscriminatory horizontal spacing requirements of general application for new poles and ground-mounted small wireless facilities, but the requirements shall not prevent a wireless provider from serving any location.
(2) For location on existing pole structures:
(a) Stealth antennas and mounts (completely encased or screened antennas, when possible, to approximately match the color of the existing poles). In the event that some antennas cannot be covered due to their operational wavelength, the applicant shall provide proof of such to the city and the antenna shall be required to be painted in a way that blends with the pole.
(b) Stealth base cabinet enclosures (completely encases base cabinet equipment to match the colors of the existing poles to the extent feasible). A base cabinet may be placed in any location on the lower portion of the pole, but may not impede ADA accessibility of a sidewalk. The base cabinet may also be placed underground.
(c) The city shall not limit the collocation of small wireless facilities by minimum horizontal separation distance requirements from existing small wireless facilities, poles, or wireless support structures.
(3) For location on existing building structures:
(a) New steeple, extension to existing steeple, and replacement steeple concealment structures;
(b) Chimney concealment structures;
(c) Chimney pot concealment structures;
(d) Rooftop facade extension concealment;
(e) Rooftop cupola concealment;
(f) Rooftop screen concealment;
(g) Rooftop pod concealment systems;
(h) Building side grid concealment structures;
(i) Building side screen concealment structures; and
(j) Rooftop or wall mounted lantern concealment structures.
(G) Antenna arrays, cables, and other ancillary facilities used for providing the wireless service shall not be obtrusive or noticeably visible from adjacent properties or adjacent rights-of-way.
(H) The color of the facility shall be compatible with that of the non-tower support structure. To the extent any small wireless facilities extend above the height of the vegetation buildings and utilities immediately surrounding it, they shall be painted in a non-reflective light gray, light blue, or other hue, which blends with the skyline and horizon.
(I) Attachments which are ancillary to the antenna arrays mounted onto a non-tower support structure shall not project greater than three feet, as measured horizontally, from the surface of the non-tower support structure and shall be painted or screened with materials that are a compatible color to the non-tower support structure. Cables that travel along the exterior of a non-tower support structure shall be closely connected to the structure creating a minimal appearance of gaps or loose wires. When possible, visible cables should be in conduit or otherwise covered in a material visually compatible in color to the support structure.
(J) The general design of a small wireless facility shall be compatible to the streetscape and aesthetics of the surrounding area with respect to street furniture and lights, building facade designs, and area character.
(K) Other design elements which by industry standards are considered stealth technology deployment may also be used.
(L) Within enacted overlay district, stealth concealment is required except when specifically identified by the applicant that such stealth concealment results in a material reduction in the functionality of the proposed small wireless facility.
(N) Illumination. A small wireless facility shall not have lights on the facility unless the lights are required by other laws and consistent with the requirements of law or designed as an intended amenity of the support structure.
(O) Fencing. A small wireless facility installed in the public right-of-way shall not be fenced.
(P) Appendix. Attached to this chapter as an appendix to this section are illustrations to provide guidance to applicants of aesthetic standards encouraged and preferred by the city in the installation of small wireless facilities and associated poles.
(Ord. 2019-08-856, passed 8-20-19)
(A) The wireless provider shall fully 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's fees resulting from the installation, construction, repair, replacement, operation, or maintenance of poles, small wireless facilities, or attachments to city poles to the extent directly caused by the negligence of the wireless provider, its contractors, subcontractors and their officers, employees or agents.
(B) A permit from the city shall not create a property right or grant any authority to the owner of the small wireless facility to impinge upon the rights of others who may already have an interest in the right-of-way.
(Ord. 2019-08-856, passed 8-20-19)
APPLICATION AND REVIEW PROCESS
(A) A permit is required for the placement and construction of a small wireless facility. Approval of a permit shall require an application.
(B) Contents of application. The small wireless facility permit application shall be made by the wireless services provider or an authorized agent. A permit application shall contain the following:
(1) The applicant's name, address, telephone number and e-mail address;
(2) The names, addresses, telephone numbers, and e-mail addresses of all consultants, if any, acting on behalf of the applicant with respect to the filing of the application;
(3) A general description of the proposed work. The scope and detail of such description shall be appropriate to the nature and character of the work to be performed, with special emphasis on those matters, including but not limited to sub-surface utilities, likely to be affected or impacted by the work proposed;
(4) Authorization for any consultant acting on behalf of the applicant to speak with the city, or a designee of the city;
(5) Verification from an appropriate professional that the small wireless facility shall comply with all applicable codes;
(6) Drawings and descriptions of the proposed facilities, non-tower support structures, and ancillary equipment;
(7) Maps with the specific locations;
(8) Geographic coordinates of the locations;
(9) If the proposed location is a new pole, an explanation as to why collocation or use of an existing structure is not technically feasible. This shall apply to the location of all pole attached utilities and shall include demonstration of a reasonable attempt to collocate or use an existing structure, remaining pole or replacement pole;
(10) If the applicant proposes to collocate on, or occupy any existing structure not owned by the applicant, a letter or written statement from the owner allowing the use; and
(11) A description and substantiation of any requests for exceptions from the requirements of this section.
(C) Batch applications. The city may require the applicant to file a separate application for any small wireless facility that is not of a substantially similar design to the others included in the application, or if submitted in a batch, the application must be sufficiently clear so that the city may determine whether one or more of the proposed facilities is not of a substantially similar design.
(D) Bond. The city may require the applicant to post a bond as required for any open cut, sidewalk, curb and gutter or other public right of way work as set forth in the Tontitown Municipal Code Section § 90.1000.2.
(E) Routine maintenance and replacement.
(1) An application shall not be required for:
(a) Routine maintenance that does not expand the size or height of the small wireless facility; and
(b) The replacement of a small wireless facility with another small wireless facility that is substantially similar or smaller in size, weight, and height.
(2) Provided, however, on a location where the city or another provider has placed equipment or facilities, any routine maintenance or replacement that is done shall not occur until written notice of an intent to proceed is provided to the city.
(Ord. 2019-08-856, passed 8-20-19)
The Administrative Official shall review the application for compliance with these and other applicable laws and regulations. Review and approval shall be in accordance with timeframes established by federal and state law or policy and the following:
(A) All applications shall be processed on a nondiscriminatory basis within:
(1) Sixty days of receipt of an application for the collocation of a small wireless facility; and
(2) Ninety days for an application to install, modify, or replace a pole on which a small wireless facility is or will be collocated.
(B) Within ten days of receiving an application, the Administrative Official shall determine and notify the applicant in writing:
(1) Whether the application is complete; or
(2) If the application is incomplete, what specific information is missing.
(C) If the application is incomplete, the applicant shall be allowed to resubmit the amended application without penalty or payment of any additional application fees, if resubmission occurs within 30 days of notification.
(D) The time frame for reviewing shall commence when the application is submitted, but may be tolled upon notification of incompleteness. If the application is incomplete, the applicable time frame for reviewing is reset when the missing information is provided by the applicant.
(E) Once the application is determined to be complete, the Administrative Official shall review the application and if the application meets the requirements and standards set forth in this chapter the application shall be granted and a permit issued.
(F) If the applicant is requesting an exception to any requirement, the standard of review shall be to determine if the exception is warranted due to an identifiable site-specific hardship or a technological
challenge, and more specifically if the excepted requirement is:
(1) Not necessary or desirable for the protection of the surrounding property, public health, public safety, or general welfare; or
(2) Unreasonable as applied to the particular application.
(G) The Administrative Official may approve some or all of the requested exception, and advise the applicant in writing of the extent of approval and/or reasons for denial. At his or her discretion, the Administrative Official may also submit the application to the Development Review Committee for input or comment.
(1) If the applicant believes the decision of the Administrative Official to be in error, an appeal may be made to the Tontitown Board of Zoning Adjustments.
(2) If the applicant accepts the decision of the Administrative Official the application shall proceed with review and approval or denial.
(H) The Administrative Official shall have the authority to defer an exception request to the Board of Zoning Adjustment. The Board of Zoning Adjustment shall act upon the request in a timely manner. If the decision of the Board of Zoning Adjustment is in the affirmative, the permit shall be approved, provided all other review requirements are met. If not, the application shall be referred to the Administrative Official for continued review.
(I) If the Board of Zoning Adjustment denies any or all of the requested exception, the applicant may appeal the decision to a court of jurisdiction in accordance with state law.
(J) The Administrative Official or designee shall notify the applicant in writing of its final decision:
(1) Within 60 days of receiving an application for the collocation of a small wireless facility using an existing structure;
(2) (a) Within 90 days for an application to collocate a small wireless facility on a new structure.
(b) These timelines may be tolled only by mutual agreement between the applicant and the city.
(3) If the application is approved, a permit shall be issued;
(4) If the application is denied, the Administrative Official shall specify, in writing, the basis for denial, citing specific code provisions from federal, state, or local law as to why the application was denied;
(5) Notwithstanding the initial denial, the applicant may cure any deficiencies identified by the Administrative Official within 30 days of the denial without paying an additional application fee. The Administrative Official shall approve or deny the revised application within 30 days of receipt of the amended application and its review shall be limited to the deficiencies specified in the original notice of denial;
(6) If a decision on an application is not made within the applicable time frame, the application shall be deemed approved ten days after written notice is provided by the applicant to the city that the time-period for acting on the application has lapsed.
(K) If after commencement of construction but before construction is complete for an approved permit, circumstances unforeseen at the time of approval arise which make continued construction unsafe or impracticable, the applicant may request an amendment to the application or plan by filing a request to amend the approved application. The applicant shall cease work, and the procedure for the amendment request shall proceed in the same manner as if it were a new application under this chapter. There is no application fee for an amendment request.
(Ord. 2019-08-856, passed 8-20-19)
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