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876.04.1 Permit Required. Unless otherwise exempted, it shall be unlawful for any person to collocate or remove a small cell facility or construct, maintain, modify, operate, replace, or remove wireless support structures in, along, across, upon, and/or under the right-of-way unless a permit has been issued by the Village Manager or designee.
876.04.2 Application Requirements. This section specifies the necessary requirements for a complete permit application. A complete application shall consist of the following:
(a) Application Fee. The applicant must provide the applicable permit application fee in the amount of two hundred fifty dollars ($250.00) per location.
(b) RF Compliance Affidavit. Applicants must submit a sworn affidavit prepared and signed by an RF engineer with knowledge about the proposed project that affirms the proposed project will be compliant with all applicable governmental regulations in connection with human exposure to radiofrequency emissions. The affidavit must include:
(1) All frequencies on which the equipment will operate;
(2) How many channels will be used on each frequency;
(3) The effective radiated power ("ERP");
(4) Output level in measured watts; and
(5) The height above ground for the lowest point on the lowest transmitter.
The required disclosures above must be included for all transmitters on the support structure, which includes without limitation existing collocated antennas and antennas used for wireless backhaul (such as microwave dish antenna or U/E relay).
(c) Regulatory Authorization. To the extent that the applicant claims any regulatory authorization or other right to use the public right-of-way, the applicant must provide a true and correct copy of the certificate, license, notice to proceed or other regulatory authorization that supports the applicant's claim.
(d) Owner's Authorization. Applicants must submit evidence sufficient to show that either:
(1) The applicant owns the proposed support structure; or
(2) The applicant has obtained the owner's authorization to file the application.
(e) Site Plans and Structural Calculations. The applicant must submit fully dimensioned site plans, elevation drawings and structural calculations prepared, sealed, stamped and signed by a professional engineer licensed and registered by the State of Ohio. Drawings must depict any existing wireless facilities with all existing wireless communications equipment and other improvements, the proposed facility with all proposed wireless communications equipment and other improvements and the legal boundaries of the leased or owned area surrounding the proposed facility and any associated access or utility easements.
(f) Equipment and Enclosure Specifications. The applicant shall provide dimensioned elevations, cut sheets, material samples or other construction documents necessary to evaluate for compliance with this chapter.
(g) Statement of Intent. The applicant shall provide a statement of a wireless support structure's intended purpose.
876.04.3 Application Type.
(a) Each application to collocate or remove a small cell facility or construct, maintain, modify, operate, replace, or remove wireless support structures in, along, across, upon, and/or under the right-of-way shall be classified as one of three types. The three types of applications are:
(1) Small cell minor. An application that:
A. Involves removal or replacement of small cell facilities and any associated equipment on an existing wireless support structure; and such removal or replacement does not constitute a substantial change; or
B. Involves the routine maintenance of a small cell facility.
(2) Small cell substantial. An application that:
A. Involves the installation of a new small cell facility on a wireless support structure; or
B. Involves the removal or replacement of a small cell facility on an existing wireless support structure and such removal or replacement constitutes a substantial change.
(3) Wireless support structure. An application for a proposal to construct, modify or replace a wireless support structure in the right-of-way.
(b) Applications seeking to collocate a small cell facility to a wireless support structure owned by the municipality and located within the municipality right-of-way shall also be required to obtain an attachment certificate and shall be subject to an annual attachment fee in the amount of two hundred dollars ($200.00) per small cell facility.
(a) The Village Manager or designee shall review the application for conformance with the standards of this chapter and shall either:
(1) Approve, approve with conditions, or deny a small cell minor application; or
(2) Grant or deny consent for small cell substantial and wireless structure applications.
(b) If a request is denied, the reasons for denial shall be provided in writing to the applicant.
(c) The municipality reserves the right to deny an application if any one of the following conditions exist:
(1) The application does not comply with a provision of this chapter or a provision of the Village of Yellow Springs Codified Ordinances;
(2) The applicant is not authorized to conduct business in the State of Ohio;
(3) The applicant is not current in its obligation to pay to the municipality fees or taxes imposed by this chapter or any other authorized tax or fee prescribed in the Codified Ordinances of Yellow Springs;
(4) The design or location is deemed unsafe or non-compliant in regards to transportation and engineering standards for construction within the right-of-way;
(5) The design is counter to the health, safety, and welfare of the municipality;
(6) The design or location is in conflict with current or proposed accessibility standards;
(7) The design does not meet standards related to electrical, structural, safety or construction best practices; and
(8) The proposed design is in conflict with existing infrastructure, facilities, and/or utilities.
(d) Except as allowed in division (3) below, applications shall be reviewed and a decision rendered according to 876.04.4(a), within the following time periods:
(1) Small cell minor. Small cell minor applications shall be rendered within sixty days of the date of filing.
(2) Small cell substantial. Small cell substantial applications shall be rendered within ninety days of the date of filing.
(3) Wireless support structure. Wireless support structure applications shall be rendered within 120 days of the date of filing.
(e) The time period required in 876.04.4(d)(2) may be tolled only:
(1) By mutual agreement between the applicant and the municipality;
(2) If the application is determined to be incomplete; or
(3) The number of applications exceeds the municipality's capacity to process them in a timely manner. If such number of applications exceeds capacity then the following tolling time periods may be instituted:
A. The time period may initially be tolled for up to fifteen days when the number of applications received within any consecutive thirty day period exceeds twenty-five applications;
B. For every additional fifteen applications that the municipality receives above the twenty-five applications stated in division A. above, the time period may be tolled an additional fifteen days; and
C. For every additional thirty applications that the municipality receives above the twenty-five applications stated in division A. above, the time period may be tolled an additional fifteen days.
D. However, in no instance shall the time tolled exceed ninety consecutive days.
(f) To toll the time period for incompleteness, the municipality shall provide the applicant notice within thirty days of the date of filing. Such notice shall include a listing of the missing documents and/or information. The time period resumes once the applicant submits a response. If an application is still incomplete, the municipality shall notify the applicant within ten days of the response.
(g) If multiple applications are received by the municipality to install two or more wireless support structures that would violate the spacing requirements of 876.05.2(b)(2) – Design & Siting Requirements, or to collocate two or more small cell facilities on the same wireless support structure, the municipality shall process and render a decision in the order they are received.
(h) In the event that an application is received by the municipality to install a wireless support structure or small cell facility in a location in common with another application for a facility in the ROW, preference shall be granted in the following order of service provided:
(1) Municipal infrastructure;
(5) Landline telephone; and
(6) Wireless service.
876.04.5 Amendments. Amendments to an application in process which are not part of a response to a notice of incompleteness or a correction notice shall be treated as a new application.
876.04.6 Issuance of Permit and Certificates.
(a) When an application is approved or granted consent, a permit shall be issued to the applicant authorizing the following:
(1) Small cell work permit. A permit to perform the approved action, removal, replacement, or maintenance work, subject to any conditions;
(2) Small cell collocation consent. Consent to perform the approved removal, replacement, or installation, and grant occupancy within the municipality right-of-way, subject to any permits or conditions;
(3) Wireless support structure. Consent to construct, modify or replace a wireless support structure in the right-of-way, subject to any permits or conditions.
(b) An applicant seeking collocation of a small cell facility to a wireless support structure owned by the municipality and located within the municipality right-of-way shall be issued an attachment certificate authorizing such attachment, subject to any conditions.
876.04.7 Scope of Approval.
(a) No permit or certificate authorized by this chapter shall be transferrable.
(b) No permit or certificate authorized by this chapter shall convey title, equitable or legal, in the right-of-way.
876.04.8 Duration of Approval.
(a) The work authorized by the permit issued must be completed within 180 days from the date of issuance, unless otherwise conditioned as part of the approval.
(b) An attachment certificate is valid for ten years from the date of issuance and may be renewed by the applicant in successive five year terms. Any request for renewal is subject to approval by the Village Manager or designee and may be denied for cause.
(c) In the event that any court of competent jurisdiction invalidates any portion of Federal law which mandates approval of any permit, such permit shall automatically expire one year from the date of the judicial order.
(d) In the event that any court of competent jurisdiction invalidates any portion of State law which mandates approval of any permit shall automatically expire sixty days from the date of the judicial order.
876.04.9 Revocation. The following are grounds for revocation or denial of approval:
(a) The intentional provision of materially misleading information by the applicant (the provision of information is considered "intentional" where the applicant was aware of the inaccuracies or could have discovered the inaccuracies with reasonable diligence);
(b) The failure to comply with any condition of approval, order, or other applicable law, rule, or regulation;
(c) The site, structure or operation is otherwise not in compliance with any other provision(s) of applicable law;
(d) The subject site or use is otherwise not in compliance due to incomplete work or projects, or is not in compliance due to unperformed or slow to perform work as part of an open permit.
876.04.10 Appeals. The Village Council shall hear and decide upon appeals where it is alleged there is an error in any written decision made by the Village Manager or designee in the enforcement of this Code.
(a) A complete written appeal shall be filed by the appellant within ten days of the written decision of the Village Manager or designee or the appeal shall become void. The appeal shall be filed with the Clerk of Council. The written appeal shall:
(1) Cite specific provisions of this chapter that are alleged to have been interpreted in error or the specific action being appealed and the grounds on which the appeal is being made.
(2) Include any required application fee in an amount set by the Village's Fee Schedule.
(3) Include such other information as may be required to render a reasonable decision.
(4) A statement as to why the appellant has standing as an aggrieved party to pursue the appeal.
(b) The Village Council shall then review the matter and after affording the applicant an opportunity to be heard, either in writing or in person at its next regularly scheduled meeting after receiving the appeal, render its decision. Except to the extent otherwise appealable by law, the City Council's decision shall be final.
(Ord. 2018-25. Passed 7-2-18.)