[Adopted 11-13-2002 by Ord. No. 18-2002; amended in its entirety 1-8-2014 by Ord. No.
3-2014]
The purposes of this article are to regulate access to and ongoing
use of public rights-of-way by telecommunications providers for their
telecommunications facilities while protecting the public health,
safety, and welfare and to exercise reasonable control of the public
rights-of-way in compliance with the Metropolitan Extension Telecommunications
Rights-of-Way Oversight Act [Act No. 48 of the Public Acts of 2002
(MCLA § 484.3101 et seq.)]; Public Act 143 of 2012 (MCLA
§ 125.3514); and Section 6409 of the Middle Class Tax Relief
and Job Creation Act of 2012 (47 U.S.C. § 1455), and other
applicable law, and to ensure that the Township qualifies for distributions
under the Act by modifying the fees charged to providers and complying
with the Act.
Nothing in this article shall be construed in such a manner
as to conflict with the Act; Public Act 143 of 2012 (MCLA § 125.3514);
Section 6409 of the Middle Class Tax Relief and Job Creation Act of
2012 (47 U.S.C. § 1455); or other applicable law.
A. The terms used in this article shall have the following meanings:
ACT
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Act [Act No. 48 of the Public Acts of 2002 (MCLA § 484.3101
et seq.)], as amended from time to time.
PERMIT
A nonexclusive permit issued pursuant to the Act and this
article to a telecommunications provider to use the public rights-of-way
in the Township for its telecommunications facilities.
TOWNSHIP BOARD
The Township Board of Cascade Charter Township or its designee.
This section does not authorize delegation of any decision or function
that is required by law to be made by the Township Board.
B. All other terms used in this article shall have the same meaning
as defined or as provided in the Act, and MCLA § 125.3514,
including without limitation the following:
AUTHORITY
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Authority created pursuant to the Act.
CO-LOCATE
To place or install wireless communications equipment on
an existing wireless communications support structure or in an existing
equipment compound. "Co-location" has a corresponding meaning.
EQUIPMENT COMPOUND
An area surrounding or adjacent to the base of a wireless
communications support structure and within which wireless communications
equipment is located.
MPSC
The Michigan Public Service Commission in the Department
of Consumer and Industry Services and shall have the same meaning
as the term "Commission" in the Act (MCLA § 484.3102).
PERSON
An individual, corporation, partnership, association, governmental
entity, or any other legal entity.
PUBLIC RIGHT-OF-WAY
The area on, below, or above a public roadway, highway, street,
alley, easement, or waterway. Public right-of-way does not include
a federal, state, or private right-of-way.
TELECOMMUNICATION FACILITIES or FACILITIES
The equipment or personal property, such as copper and fiber
cables, lines, wires, switches, conduits, pipes, and sheaths, which
are used to or can generate, receive, transmit, carry, amplify, or
provide telecommunication services or signals. Telecommunication facilities
or facilities do not include antennas, supporting structures for antennas,
equipment shelters or houses, and any ancillary equipment and miscellaneous
hardware used to provide federally licensed commercial mobile service
as defined in Section 332(d) of Part I of Title III of the Communications
Act of 1934, Chapter 652, 48 Stat. 1064, 47 U.S.C. § 332
and further defined as commercial mobile radio service in 47 CFR 20.3,
and service provided by any wireless, two-way communications device.
TELECOMMUNICATIONS PROVIDER, PROVIDER and TELECOMMUNICATIONS
SERVICES
Those terms as defined in Section 102 of the Michigan Telecommunications
Act, 1991 PA 179, MCLA § 484.2102. "Telecommunication provider"
does not include a person or an affiliate of that person when providing
a federally licensed commercial mobile radio service as defined in
Section 332(d) of Part I of the Communications Act of 1934, Chapter
652, 48 Stat. 1064, 47 U.S.C. § 332 and further defined
as commercial mobile radio service in 47 CFR 20.3, or service provided
by any wireless, two-way communication device. For the purpose of
the Act and this article only, a provider also includes all of the
following:
(1)
A cable television operator that provides a telecommunications
service.
(2)
Except as otherwise provided by the Act, a person who owns telecommunication
facilities located within a public right-of-way.
(3)
A person providing broadband internet transport access service.
WIRELESS COMMUNICATIONS EQUIPMENT
The set of equipment and network components used in the provision
of wireless communications services, including, but not limited to,
antennas, transmitters, receivers, base stations, equipment shelters,
cabinets, emergency generators, power supply cables, and coaxial and
fiber optic cables, but excluding wireless communications support
structures.
WIRELESS COMMUNICATIONS SUPPORT STRUCTURE
A structure that is designed to support, or is capable of
supporting, wireless communications equipment, including a monopole,
self-supporting lattice tower, guyed tower, water tower, utility pole,
or building.
A. Permit required. Except as otherwise provided in the Act, or in MCLA
§ 125.3514, a telecommunications provider using or seeking
to use public rights-of-way in the Township for its telecommunications
facilities shall apply for and obtain a permit pursuant to this article.
B. Application. Telecommunications providers shall apply for a permit
on an application form approved by the MPSC in accordance with the
Act and MCLA § 125.3514. A telecommunications provider shall
file one copy of the application with the Township Clerk, one copy
with the Township Manager, and one copy with the Township Attorney.
Applications shall be complete and include all information required
by the Act, including without limitation a route map showing the location
of the provider's existing and proposed facilities in accordance
with the Act.
C. Confidential information. If a telecommunications provider claims
that any portion of the route maps submitted by it as part of its
application contain trade secret, proprietary, or confidential information,
which is exempt from Michigan's Freedom of Information Act, Act
No. 442 of the Public Acts of 1976 [See MCLA § 15.231 et
seq. as amended, pursuant to Section 6(5) of the Act,; MCLA § 484.3106(5).],
the telecommunications provider shall prominently so indicate on the
face of each map.
D. Application fee. Except as otherwise provided by the Act, an application
shall be accompanied by a one-time nonrefundable application fee in
the amount of $500.
E. Administratively complete application. After an application for a permit is filed with the Township, the Township shall determine whether the application is administratively complete. Unless the Township proceeds as provided under Subsection
F below, the application shall be considered to be administratively complete when the Township makes that determination or 14 business days after the Township receives the application, whichever is first.
F. Additional information. As set forth above, the Township may request an applicant to submit such additional information which the Township Manager deems reasonably necessary or relevant. The applicant shall comply with all such requests in compliance with reasonable deadlines for such additional information established by the Township Manager. If the Township and the applicant cannot agree on the requirement of additional information requested by the Township, the Township or the applicant shall notify the MPSC as provided in Section 6(2) of the Act. [See MCLA § 484.3106, Sec. 6, (2).] If, before the expiration of the fourteen-day period under Subsection
E, the Township notifies the applicant that the application is not administratively complete, specifying the information necessary to make the application administratively complete, or notifies the applicant that the fee required to accompany the application has not been paid, specifying the amount due, the running of the fourteen-day period under Subsection
E is tolled until the applicant submits to the Township the specified information or fee amount due. The notice shall be given in writing or by electronic notification.
G. Response deadline. The Township shall approve or deny the application
not more than 60 days after the application is considered to be administratively
complete and not more than 90 days after the application is considered
to be administratively complete if special land use approval is required.
If the Township fails to timely approve or deny the application, the
application shall be considered approved and the Township shall be
considered to have made any determination required for approval.
H. Previously issued permits. Pursuant to MCLA § 484.3105,
Sec. 5, (1), authorizations or permits previously issued by the Township
under Section 251 of the Michigan Telecommunications Act, {Act No.
179 of the Public Acts of 1991, as amended, [MCLA § 484.2251
(repealed by P.A. 2002, No. 48, effective 11-1-2002)]}, and authorizations
or permits issued by the Township to telecommunications providers
prior to the 1995 enactment of Section 251 of the Michigan Telecommunications
Act but after 1985 shall satisfy the permit requirements of this article.
With the exception of fee provisions, which are now covered by 2002
P.A. 48, all provisions of Part 16, Ordinance No. 3-1998 of the Compilation
of Ordinances of Cascade Charter Township (old Part 16), shall remain
in full force and effect with regard to telecommunications providers
that obtained permits or consent agreements prior to November 1, 2002.
I. Existing providers. Pursuant to Section 5(3) of the Act, within 180 days from November 1, 2002, the effective date of the Act, a telecommunications provider with facilities located in a public right-of-way in the Township as of such date, that has not previously obtained authorization or a permit under Section 251 of the Michigan Telecommunications Act, Act No. 179 of the Public Acts of 1991, as amended, and MCLA § 125.3514, shall submit to the Township an application for a permit in accordance with the requirements of this article. Pursuant to MCLA § 484.3105, Sec. 5, (3), a telecommunications provider submitting an application under this subsection is not required to pay the application fee of $500 required under Subsection
D above. A provider under this subsection shall be given up to an additional 180 days to submit the permit application if allowed by the Authority for good cause, as provided in Section 5(4) of the Act. (MCLA § 484.3105, Sec. 5, (4)).
J. Special land use approval of wireless communications equipment described
above is expressly conditional only on the wireless communications
equipment's meeting the requirements of other local ordinances
and of federal and state laws before the wireless communications equipment
begins operation.
K. Permit not required. As set forth in MCLA § 125.3514, wireless
communications equipment that meets all of the following conditions
is a permitted use of the property and is not subject to special land
use permit requirements or other approval by the Township:
(1) The wireless communications equipment will be co-located on an existing
wireless communications support structure or in an existing equipment
compound;
(2) The existing wireless communications support structure or existing
equipment compound is in compliance with the local unit of government's
zoning ordinance or was approved by the appropriate zoning body or
official for the local unit of government;
(3) The proposed co-location will not do any of the following:
(a)
Increase the overall height of the wireless communications-support
structure by more than 20 feet or 10% of its original height, whichever
is greater; or
(b)
Increase the width of the wireless communications support structure
by more than the minimum necessary to permit co-location; or
(c)
Increase the area of the existing equipment compound to greater
than 2,500 square feet;
(4) The proposed co-location complies with the terms and conditions of
any previous final approval of the wireless communications support
structure or equipment compound by the appropriate zoning body or
official of the local unit of government.
L. If the wireless communications equipment meets all of the conditions as set forth above in Subsection
K, such that the use is a permitted use of the property not subject to special land use permit requirements or other approval by the Township, the applicant must still file with the Township a copy of the proposed site plan(s) and/or route map(s) for the wireless communications equipment no less than 30 days prior to the installation of such equipment and must provide the Township with a copy of the site plan and/or route map(s) within 90 days after installing the equipment if the equipment, as installed, does not comport with the previously disclosed site plan on file with the Township. (See also §
342-8 below.) This subsection shall not be interpreted to contradict the Act or MCLA § 125.3514, however is a means of insuring that the Township has a copy of all wireless equipment site plans for wireless equipment installed within the Township.
M. Non-co-located equipment and wireless support structures. For special land use approval for wireless communications equipment that is not co-located on an existing structure or compound, or for a request to install a wireless support structure, the same fourteen-day administrative window applies as outlined in Subsections
E and
F above; however, the period for approval or denial is 90 days, not 60 days.
A. Approval or denial. The authority to approve or deny an application for a permit is delegated to the Township Manager. Pursuant to MCLA § 484.3115(3) and MCLA § 125.3514, and as set forth above, the Township Manager shall approve or deny an application for a permit within 60 days (or 90 days under §
342-5, Subsection M) from the date the telecommunications provider's application for a permit for access to and usage of a public right-of-way within the Township is deemed administratively complete. The Township Manager shall notify the MPSC when the Township Manager has granted or denied a permit, including information regarding the date on which the application was filed and the date on which the permit was granted or denied. The Township Manager shall not unreasonably deny an application for a permit.
B. Form of permit. If an application for a permit is approved, the Township
Manager shall issue the permit in the form approved by the MPSC, with
or without additional or different permit terms, in accordance with
MCLA §§ 484.3106, Sec. 6, (1) and (2) and 484.3115.
C. Conditions. Pursuant to MCLA § 484.3115(4), and MCLA § 125.3514,
the Township Manager may impose conditions on the issuance of a permit,
which conditions shall be limited to the telecommunications provider's
access and use of the public right-of-way.
D. Bond requirement. Pursuant to MCLA § 484.3115(3), and without limitation on Subsection
C above, the Township Manager may require that a bond be posted by the telecommunications provider as a condition of the permit. If a bond is required, it shall not exceed the reasonable cost to ensure that the public right-of-way is returned to its original condition during and after the telecommunications provider's access and use.
A telecommunications provider shall not commence construction
upon, over, across, or under the public rights-of-way in the Township
without first obtaining a construction or engineering permit as required
under this Code, as amended, for construction within the public rights-of-way.
No fee shall be charged for such a construction or engineering permit.
In accordance with the Act, obtaining a permit or paying the
fees required under the Act or under this article does not give a
telecommunications provider a right to use conduit or utility poles.
Pursuant to MCLA § 484.3106(7), a telecommunications
provider shall, within 90 days after the substantial completion of
construction of new telecommunications facilities in the Township,
submit route maps showing the location of the telecommunications facilities
to both the MPSC and to the Township. The route maps should be in
electronic format unless and until the MPSC determines otherwise,
in accordance with MCLA § 484.3106(8).
A telecommunications provider undertaking an excavation or construction
or installing telecommunications facilities within a public right-of-way
or temporarily obstructing a public right-of-way in the Township,
as authorized by a permit, shall promptly repair all damage done to
the street surface and all installations under, over, below, or within
the public right-of-way and shall promptly restore the public right-of-way
to its preexisting condition.
In addition to the nonrefundable application fee paid to the Township set forth in §
342-4D above, a telecommunications provider with telecommunications facilities in the Township's public rights-of-way shall pay an annual maintenance fee to the Authority pursuant to MCLA § 484.3108.
In compliance with the requirements of MCLA § 484.3113(1),
the Township hereby modifies, to the extent necessary, fees charged
to telecommunications providers after November 1, 2002, the effective
date of the Act, relating to access and use of the public rights-of-way,
to an amount not exceeding the amounts of fees and charges required
under the Act, which shall be paid to the Authority. In compliance
with the requirements of MCLA § 484.3113(4), the Township
also hereby approves modification of the fees of providers with telecommunication
facilities in public rights-of-way within the Township's boundaries,
so that those providers pay only those fees required under MCLA § 484.3108.
The Township shall provide each telecommunications provider affected
by the fee a copy of this article, in compliance with the requirement
of Section 13(4) of the Act. To the extent any fees are charged telecommunications
providers in excess of the amounts permitted under the Act, or which
are otherwise inconsistent with the Act, such imposition is hereby
declared to be contrary to the Township's policy and intent and,
upon application by a provider or discovery by the Township, shall
be promptly refunded as having been charged in error. In all other
respects, the provisions of Part 16, Ordinance No. 3-1998 of the Compilation
of Ordinances of Cascade Charter Township (old Part 16), shall remain
in full force and effect with regard to telecommunications providers
that obtained permits or consent agreements prior to November 1, 2002.
Pursuant to Section 13(5) of the Act, if MCLA §§ 484.3113(5) and 484.3108, is found to be invalid or unconstitutional, the modification of fees under §
342-11 above shall be void from the date the modification was made.
Pursuant to MCLA § 484.3110(4), all amounts received
by the Township from the Authority shall be used by the Township solely
for rights-of-way related purposes.
Pursuant to MCLA § 484.3110(5), the Township Manager
shall file an annual report with the Authority on the use and disposition
of funds annually distributed by the Authority.
Pursuant to MCLA § 484.3113(6), the Township shall
not hold a cable television operator in default or seek any remedy
for its failure to satisfy an obligation, if any, to pay after November
1, 2002, the effective date of this Act, a franchise fee or similar
fee on that portion of gross revenues from charges the cable operator
received for cable modem services provided through broadband internet
transport access services.
Pursuant to MCLA § 484.3104(2), except as expressly
provided herein with respect to fees, this article shall not affect
any existing rights that a telecommunications provider or the Township
may have under a permit issued by the Township or under a contract
between the Township and a telecommunications provider related to
the use of the public rights-of-way.
The Township declares that its policy and intent in adopting
this article is to fully comply with the requirements of the Act;
MCLA § 125.3514; and Section 6409 of the Middle Class Tax
Relief and Job Creation Act of 2012 (47 U.S.C. § 1455),
and the provisions of this article should be construed in such a manner
as to achieve that purpose. The Township shall comply in all respects
with the requirements of the Act; MCLA § 125.3514; and Section
6409 of the Middle Class Tax Relief and Job Creation Act of 2012 (47
U.S.C. § 1455), including but not limited to the following:
A. Exempting certain route maps from disclosure consistent with the Act and state law as provided in §
342-4C of this article;
B. Allowing certain previously issued permits to satisfy the permit requirements hereof, in accordance with §
342-4F of this article;
C. Approving or denying an application for a permit within 60 days (or 90 days under §
342-4, Subsection
M) from the date the telecommunications provider's application for a permit for access to and usage of a public right-of-way within the Township is deemed administratively complete, in accordance with §
342-5A of this article;
D. Notifying the MPSC when the Township has granted or denied a permit, in accordance with §
342-5A of this article;
E. Not unreasonably denying an application for a permit, in accordance with §
342-5A of this article;
F. Issuing a permit in the form approved by the MPSC, with or without additional or different permit terms, as provided in §
342-5B of this article;
G. Limiting the conditions imposed on the issuance of a permit to the telecommunications provider's access and use of the public right-of-way, in accordance with §
342-5C of this article;
H. Not requiring a bond of a telecommunications provider which exceeds the reasonable cost to ensure that the public right-of-way is returned to its original condition during and after the telecommunication provider's access and use, in accordance with §
342-5D of this article;
I. Not charging any telecommunications providers any additional fees for construction or engineering permits, in accordance with §
342-6 of this article;
J. Providing each telecommunications provider affected by the Township's right-of-way fees with a copy of this article, in accordance with §
342-11 of this article;
K. Submitting an annual report to the Authority, in accordance with §
342-14 of this article; and
L. Not holding a cable television operator in default for a failure to pay certain franchise fees, in accordance with §
342-15 of this article.
Pursuant to MCLA § 484.3115(2), this article shall
not limit the Township's right to review and approve a telecommunication
provider's access to and ongoing use of a public right-of-way
or limit the Township's authority to ensure and protect the health,
safety, and welfare of the public.
The Township Manager or his or her designee is hereby designated
as the authorized Township official to issue municipal civil infraction
citations (directing alleged violators to appear in court) for violations
under this article as provided by the Township Code.
Any person who violates any provision of this article shall be responsible for a municipal civil infraction, subject to the penalties in Chapter
40, Article
IV, Penalties for Misdemeanors and Municipal Civil Infractions. Nothing in this section shall be construed to limit the remedies available to the Township in the event of a violation by a person of this article or a permit.