[HISTORY: Adopted by the Mayor and Council of the Town of
South Bethany as indicated in article histories. Amendments noted
where applicable.]
[Adopted 12-13-2019 by Ord. No. 196-19
The purpose of this article is to establish uniform policies
and procedures for the deployment and installation of small wireless
facilities in or on rights-of-way within the Town of South Bethany's
jurisdiction, in the interests of the public health, safety, welfare,
integrity and interests of the Town of South Bethany and its residents,
and in compliance with requirements under federal law governing wireless
infrastructure.
The terms below, as used herein, shall have the following meanings:
Following the placement of small wireless facilities (and
associated accessory equipment) or support structures in the Town
pursuant to a permit issued to a provider or an applicant, the facility
shall be considered abandoned if any of the following has occurred:
(1) for any reason the facilities cease to be used to transmit signals,
data or messages or otherwise be used for their intended purposes
for a period of greater than 180 days; (2) the Town revokes the permit
for placement and use of those facilities due to nonpayment of applicable
fees or other authorized reason; (3) the failure of the provider or
applicant to comply with conditions in the permit or in this article;
or (4) the provider or applicant fails to perform any of its responsibilities,
obligations and requirements in this article or in a permit that relate
to the installation, construction, maintenance, use or operation of
the facilities, accessory equipment or support structures, and that
breach remains uncured for a period of 60 days after the Town provides
written notice of the breach to the provider or applicant.
Any equipment other than an antenna that is related to and
used in conjunction with small wireless facility arrangements. This
equipment may be attached to or detached from a small wireless facility
support structure, and includes, but is not limited to, cabinets,
optical converters, power amplifiers, radios, DWDM and CWDM multiplexers,
microcells, radio units, fiber optic and coaxial cables, wires, meters,
pedestals, power switches, and related equipment on a support structure.
The term does not include the structure of improvements on, under,
or within which the equipment is collocated, wireline backhaul facilities,
coaxial or fiber optic cable that is between wireless support structure
or utility poles or coaxial or fiber optic cable that is otherwise
not immediately adjacent to, or directly associated, with an antenna.
Communications equipment that transmits and receives electromagnetic
radio signals, pursuant to FCC authorization, is attached to a small
wireless facility support structure and is used to communicate wireless
service. Each individual antenna shall be no more than three cubic
feet in volume.
Whether singular or plural, a personal wireless service provider,
wireless infrastructure provider, or an entity (including one that
is not a provider) that is authorized by a personal wireless service
provider to apply for or receive a permit to install, construct, manage,
modify or maintain a small wireless facility and related accessory
equipment or support structure in the Town, or an entity certificated
by the Delaware Public Service Commission to provide telecommunication
service.
A formal, written request submitted to the Town for a permit
to install, deploy, construct, collocate, modify or maintain a small
wireless facility and related accessory equipment or support structure.
The placement or installation of antenna(s), a new small
wireless facility or related accessory equipment on an existing pole
or other support structure that is owned, controlled or leased by
a utility, the Town, or other person or utility.
Placement, construction, or modification of a small cell
wireless facility.
A written authorization required by and/or granted by the
Town to perform an action or initiate, continue or complete a project.
An entity that provides personal wireless communication services
to the public or citizens of the Town on a commercial basis and is
authorized by the FCC to provide those services.
Real property located in the Town that does not lie within
the right-of-way.
Whether singular or plural, the surface and space in, upon,
above, along, across, over and below any public street, highways,
roads, alleys, sidewalks, and bicycle lanes, including all public
easements, as the same now or may hereafter exist that are within
the Town's corporate boundaries and under the control and jurisdiction
of the Town. This term shall not include state or federal rights-of-way
or any property owned and controlled by any person or entity other
than the Town.
Whether singular or plural, a freestanding structure designed
or used to support, or capable of supporting, small cell wireless
facilities, including, but not limited to, utility poles, street light
poles, traffic signal structures, rooftops, attics, or other enclosed
or open areas of a building or accessory structure, a sign, or a flag
pole. Such structures shall be subject to the size limitations as
described herein.
A network of spatially separated antenna sites connected to
a common source that provides wireless service within a geographic
area or structure, commonly referred to as "small cell" or "small
wireless." A small wireless facility means a wireless facility that
meets the following qualifications, or such definitions or qualifications
as may be codified from time to time by the Federal Communications
Commission:
Each antenna is no more than three cubic feet in volume; and
All associated wireless equipment associated with the facility
is cumulatively no more than 28 cubic feet in volume; and
The facility(ies) shall be:
Mounted on structure(s) measuring 50 feet in height or less,
including antennas, which structure(s) shall be no more than 10% taller
than other adjacent structures; or
Mounted on existing structure(s) where the addition of the facility(ies)
does not extend the structure to a height of more than 50 feet or
by more than 10%, whichever is greater.
Whether singular or plural, includes the following types of
structures: antenna; and associated accessory equipment, used for
the provision of personal wireless service.
The Town of South Bethany, Delaware
The Town Council of the Town of South Bethany, Delaware.
Any person, including a person authorized to provide telecommunications
service in the state, that builds or installs wireless communication
transmission equipment, facilities or support structures, but that
is not a provider.
A.
A permit
shall be required to place small wireless facilities in rights-of-way
or on Town-owned property. As to such permits, the following procedures
shall apply:
(1)
A provider
or applicant must obtain an infrastructure permit from the Town before
placing, installing, constructing, or operating any small wireless
facility (and associated accessory equipment) on any support structure
that is located on the right-of-way, or substantially modifying the
position or characteristics of any such existing facility thereon.
(2)
The
Town Manager (or his/her designee) will review and administratively
process any request for a permit to determine, in the exercise of
the Town Manager's (or his/her designee's) reasonable discretion,
if a permit should be issued for the location and in the manner requested
by the applicant. In this process, the provider or applicant must
demonstrate that the placement of the proposed small wireless facility
and associated accessory equipment or support structure on the right-of-way
is a reasonable physical installation, in compliance with all applicable
laws and regulations, which will achieve the goal of enhancing the
provision of personal wireless services when considering all pertinent
factors discussed in the provision immediately below. Except as set
forth in this section, this permitting process will be administrative
and not require the approval of any Town Council member or Town official
other than the Town Manager (or his/her designee). In the event the
Town Manager is unable or unavailable to perform his/her duties or
identify a designee in accordance with this subsection, the Mayor
shall be the Town Manager's designee for purposes of this subsection.
(3)
The
grant of a small wireless infrastructure permit shall not constitute
a grant of, or excuse application for, any other permit (e.g., building
or excavation permit) which may be required by the Town or other authority
for installation of facilities, support structures or associated equipment.
B.
In addition
to the contents of the application, the following factors, requirements
and guidelines may be considered and applied by the Town Manager (or
his/her designee) when determining whether to issue a permit for placement
of small wireless facilities and associated structures on the right-of-way,
including, but not limited to:
(1)
The
character of the area in which the structures are requested, including
surrounding buildings, properties and uses.
(2)
Whether
the structures are consistent with the historic nature and characteristics
of the requested location, where applicable in a historic district.
(3)
The
availability of alternative sites for providing personal wireless
communications services in the subject area which are technically
feasible and do not add substantial additional cost.
(4)
Balancing
the accommodation of wireless facilities as needed to facilitate communications
services with the need to avoid overcrowding of, or impairment of
uses on, the existing right-of-way.
(5)
Collocation.
To the extent practical, all facilities and associated accessory equipment
that are placed in the Town should presumptively be attached to a
preexisting support structure or an in-place replacement support structure
that increases the height above grade of the preexisting support structure
no more than 10 feet, unless a greater height is approved by the Town
Council, and that is owned, controlled or leased by a utility, franchisee,
the Town or other entity. If the applicant submits evidence that collocation
is unsuitable for a particular application, or that no collocation
opportunities exist in the area where a documented need for a facility
exists, the applicant may request that a new pole of other support
structure be installed in that area for the purposes of constructing
the facilities.
C.
Before
a permit is issued for erection of any new support structure, each
of the following must be established:
(1)
The
applicant must have provided the Town written certification that no
practical collocation opportunity exists. This evidence must demonstrate
that (i) alternative locations are not technically feasible, (ii)
the applicant made a commercially reasonable effort but was unable
to obtain access under reasonable terms and conditions, or (iii) the
alternative location(s) would involve substantially increased cost;
(2)
If
a facility is attached to a utility pole or other support structure
in the right-of-way, no antenna or other part of the facility shall
extend more than 10 feet above the height of such support structure,
or 50 feet in total height, whichever is greater;
(3)
Any
accessory equipment shall, if reasonably possible, be placed at least
10 feet above the ground;
(4)
The
color of antenna and accessory equipment shall be compatible with
that of the support structure;
(5)
The
facility (including accessory equipment) shall not be illuminated;
(6)
The
facility shall not interfere with public safety communications;
(7)
Determination
of whether the proposed installation may interfere with vehicular
traffic or sight lines, cause damage to root systems or canopy of
trees, or interfere with passage of pedestrians; maintenance of the
right-of-way, or other use of the right-of-way by the public;
(8)
If
the proposed installation will disturb conditions on the right-of-way,
whether the applicant agrees to, and can demonstrate its ability and
financial resources to, restore the subject area to its preexisting
condition following installation;
(9)
The
Town Manager must recommend the placement of the new support structure
in the right-of-way; and
(10)
Town
Council must approve the placement of the new support structure in
the right-of-way.
D.
Denial
of application. If an application is denied, the denial shall be issued
in writing with reasons provided for the denial.
A.
Each application
for a permit shall contain all of the following:
(1)
Engineering
drawings, engineering or similarly detailed drawings depicting the
type, description and size of facilities, support structure, and means
and points at which such facilities and associated accessory equipment
will be attached to a support structure;
(2)
Copies
of permits or documents evidencing compliance of all facilities and
accessory equipment with applicable federal and state laws and regulations,
including, but not limited to, regulations of the FCC (including radio
frequency emissions), pertaining to such facilities, upon request
by the Town;
(3)
Map(s)
designating with specificity the location(s) of the requested facilities;
(4)
Map(s)
depicting applicant's existing antenna facilities within the Town;
(5)
If
the facilities will be located on a support structure on the right-of-way
that is owned by any entity other than the Town or the applicant,
a copy of any license, lease, agreement or other written documentation,
which may be redacted to remove protected information of a commercially
sensitive or proprietary nature, evidencing that the owner of that
support structure authorizes the facilities to be attached thereto;
B.
Additional
requirements and maintenance of facilities.
(1)
Any
provider or applicant to whom a permit is issued, and who places facilities
and associated support structures on the right-of-way, shall also
comply with the following requirements so long as those facilities
and support structures are on or under the right-of-way.
(2)
Prior
to installing the facilities or support structures, the applicant
shall provide the Town a certificate(s) of insurance evidencing that
it has obtained and will maintain the following types of insurance
in connection with its operations on or use of the right-of-way: general
liability coverage insuring the risk of claims for damages to persons
or property arising from or related to the installation, construction,
maintenance, operation or any use of facility of support structure
placed on or along the right-of-way by the applicant (or any of their
contractors) with minimum limits of $1,000,000 per occurrence; and
workmen's compensation insurance as required by statute. The general
liability coverage shall include the Town as an additional insured,
and may be provided through a combination of a primary and umbrella
policies. All insurance policies shall be furnished by insurers who
are authorized to transact business in the State of Delaware. On an
annual basis following initial installation, the applicant also shall
furnish the Town a certificate indicating that the above-noted coverage
remains and will remain in effect. In lieu of the insurance requirements
above, an applicant may provide a certificate of self-insurance sufficient
to satisfy the above amounts.
(3)
All
facilities and associated support structures shall be installed, erected,
maintained and operated in compliance with applicable federal and
state laws and regulations, including, but not limited to, regulations
of the FCC.
(4)
The
Town Manager or his/her designee shall at all times have the right
to request inspection of any facility in the public right-of-way to
ensure compliance with health and safety standards. Owner, applicants
and/or providers shall reasonably cooperate with such inspections
and provide any information needed or requested.
(5)
Owner,
applicant and/or provider may be required to complete an annual report
regarding the status of its system(s) and other information that the
Town may require.
(6)
The
facilities and associated support structures must at all times be
maintained in good and safe condition. On no more frequent than a
triennial basis, the Town Manager (or his/her designee) may request
that the provider or applicant, at either of their expense, furnish
certification from a professional engineer who is licensed in the
State of Delaware that the facilities and support structures are in
sound condition. Should that engineer deem those structures unsound,
the provider or applicant shall furnish to the Town Manager (or his/her
designee) a plan to remedy any unsafe conditions or structural defect(s)
and take that remedial action at the provider or applicant's expense.
(7)
Upon
reasonable request and for good cause, following the installation
of any facilities and associated support structures, the Town Manager
(or his/her designee) may require the provider or applicant to submit
a written certification from a licensed professional engineer in the
State of Delaware stating that the structures at issue have been inspected
and are being maintained, operated and used in compliance with all
applicable laws and regulations, including those of the FCC that pertain
to the transmission of wireless communication signals. For purposes
of this provision, "good cause" shall mean circumstances have arisen
that indicate the facilities and associated support structures may
have been damaged, are not functioning in compliance with applicable
laws and regulations, or otherwise may pose a hazard to the public.
If those support structures should fail at any time to comply with
applicable laws and regulations, the provider or applicant, at either
of their expense, shall cause those structures to be brought into
compliance with said laws and regulations within 20 days of the date
of any written notice to them from the Town Manager (or his/her designee)
of noncompliance, and/or cease all personal wireless service operations
related to those structures until the applicant or provider comes
into full compliance with said laws and regulations.
(8)
Each
applicant or provider that applies for a permit to place facilities
(including accessory equipment) and support structures on the right-of-way
and installs and utilizes those structures shall defend, indemnify
and hold the Town, and its employees, officials and agents harmless
from all damages, losses, expenses (including attorney's fees and
court costs), demands or claims for personal injury, death or property
damage, judgments or liabilities or any type that may be asserted
or claimed against the Town (or its employees, agents and officials)
by any third person, firm or entity, where such liabilities arise
out of or relate in any manner to the following: the installation,
construction, maintenance, use or operation of the permitted facilities,
accessory equipment or any support structure owned by the applicant
or provider on or about the right-of-way; and/or the failure of the
provider or applicant (or their agents or representatives) to perform
any of their respective responsibilities, obligations and permit requirements
in this chapter. Notwithstanding the foregoing, the provider or applicant
shall not be obligated to indemnify the Town for claims or losses
resulting from the sole negligence or willful acts of the Town (or
its representatives).
(9)
A wireless
infrastructure provider seeking to install support structures must
demonstrate it has a bona fide contract with a wireless service provider
to install, construct, modify, maintain or operate wireless communications
facilities in the right-of-way in which such installation, construction,
modification, maintenance or operation is to occur within one year
of approval by the Town of permit(s) for such installations and, in
all cases, before installation or construction actually begins.
(10)
By
placing facilities and support structures in the right-of-way, owner,
applicant and/or provider agrees to allow reasonable placement of
public-service, government-related equipment (e.g., cameras, street
lights) upon their support structures, provided said government equipment
will not interfere with provider's system. Responsibility for maintenance
of structures shared between provider and any other public and/or
private user shall be by separate agreement between the users of the
structure.
A.
The Town
shall act upon applications seeking authorization for deployments
in the categories set forth below, within the following presumptive
time frames:
(1)
Review
of an application to deploy/collocate a small wireless facility using
an existing structure: 60 days.
(2)
Review
of an application to deploy a small wireless facility using a new
structure: 90 days.
(3)
These
time frames may be extended or amended upon written agreement between
the applicant and the siting authority.
(4)
Dates
under this article are to be determined by counting forward, beginning
on the day after the date when the application was submitted, the
applicable number of calendar days, provided that if a date calculated
in this manner falls upon a Saturday, Sunday or legal state or federal
holiday, the applicable date shall be the next business day after
such date.
B.
Batching.
(2)
If a single application seeks authorization for multiple deployments, the components of which are a mix of deployments that fall within Subsection A(1) and deployments that fall within Subsection A(2) of this section, then the presumptively reasonable period of time for acting upon the application as a whole is 90 days.
C.
Incomplete
applications. An application shall not be deemed complete until the
applicant has submitted all documents, information and forms specifically
enumerated in this article that pertain to the location, construction
or configuration of the facilities or support structures at the requested
location(s).
(1)
Within
10 days after an initial application for permit is submitted, the
Town shall notify the applicant in writing if any additional information
is needed to complete that application or supplemental information
is required to process the request.
(2)
Upon
timely notification of an incomplete application, the overall time
period set forth at §146-3A herein, shall begin again at zero
days on the day the applicant provides all of the requested information
to make the application complete.
(3)
If
the Town does not notify the applicant in writing that the application
is incomplete within 30 days following its receipt, the application
shall be deemed complete.
(4)
If
any resubmission is incomplete, the ensuing time period shall again
be tolled, provided that the applicant is notified within 10 days
of the resubmission date.
(5)
For
any incomplete application or resubmission, the Town shall identify
the missing documents or information required and the specific law,
rule or regulation which requires the missing documents or information.
(6)
The
time frames and tolling provisions above may be extended or modified
by written agreement between the applicant and the Town.
A.
Permit
and administrative fees. The applicant for a permit to place facilities
and/or associated support structures on the right-of-way shall pay
the following types of fees upon submission of any application:
(1)
An
initial application fee of $500 shall be assessed to each applicant,
upon its initial application to the Town for small wireless placement
facility permits. Such initial application may include permit requests
for up to five small wireless facilities (each facility to be situated
on an existing approved support structure on the right-of-way). Any
subsequent applications by the same applicant, or an initial application
for placement of more than five small wireless facilities, shall be
assessed a fee for each small wireless facility (each situated on
an existing approved support structure on the right-of-way), in the
amount of $100 per facility, or such other amount as may subsequently
be established by the Town Council; and
(2)
An application fee of $1,000 shall be assessed to any applicant for each installation of a new pole (support structure), not a collocation, intended to support one or more small wireless facilities. Said fee shall be in addition to any applicable small wireless permit fee(s) referenced at Subsection A(1).
B.
Annual
administrative fees.
(1)
To
compensate the Town for costs and expenses, including, but not limited
to, right-of-way access, review and inspection of each installation
and/or otherwise to administer this chapter, the provider or applicant
shall pay an annual administrative fee to the Town in the amount of
$270 per small wireless facility or such other amount, not inconsistent
with federal law, as may be established by the Town Council. The annual
administrative fee shall be paid each year a permit is in effect.
(2)
The
first annual administrative fee to be paid by a provider or applicant
shall be due and payable within 60 days of issuance of a permit and
shall be prorated for the calendar year during which the permit is
initially issued. Annual administrative fees for each permit year
thereafter shall be due and payable, in advance, on or before the
first business day of each calendar year. Annual administrative fees
not paid in a timely manner and as required by this subsection shall
be assessed interest at the rate of 1% per month, commencing on the
first day after the due date.
A.
Abandonment
of facilities on right-of-way. If a provider or applicant abandons
any facility (including but not limited to the accessory equipment)
or an associated support structure (collectively "facilities" for
purposes of this article) that is located on the right-of-way, the
following rights and obligations shall exist. The Town may require
the provider or applicant, at their expense, to remove and reclaim
the abandoned facilities within 60 days from the date of written notice
of abandonment issued by the Town, and to reasonably restore the condition
of the property at which the facilities are located to that existing
before they were installed.
B.
If the
provider or applicant fails to remove and reclaim its abandoned facilities
within such sixty-day period and the facilities are located on the
right-of-way, the Town shall have the right to remove them and charge
expenses of any such removal operation to the provider or applicant;
to purchase all abandoned facilities at the subject location from
the provider or applicant in consideration of $1, and at the Town's
discretion, either resell the abandoned facilities to a third party
or dispose and salvage them. Additionally, the Town shall have the
right to charge to the applicant any expense incurred by the Town
in removing, storing or disposing of facilities and in restoring the
right-of-way to its pre-installation condition.
The Town’s intent is to promote the public interest that
is served by collocating facilities and associated accessory equipment
on existing support structures and thereby mitigating the installation
of additional support structures throughout the Town.
A.
Franchise
agreements for other uses of right-of-way. This chapter regulates
the placement of antennas, small wireless facilities (and associated
accessory equipment) on or in the immediate vicinity of support structures
that are located or proposed to be locating in the right-of-way. No
provision in this article or elsewhere in this chapter is intended
to permit, regulate or authorize the placement by a provider or applicant
of fiber optic lines, coaxial cable, switches, pedestals or networking
equipment of any type that is used to transport telecommunication
signals, data or messages between support structures or between any
other points in the right-of-way. Any agreements for the placement
of such equipment or similar shall be as permitted by law, and by
separate written agreement with the Town as to areas along the right-of-way
at points not regulated by this article.
B.
Commercial
cell phone communication facilities, including, but not limited to,
support structures and other structures, are prohibited on private
properties in the commercial and residential zones unless approved
by the Town Council upon a showing that such prohibition will violate
the provision of personal wireless service under federal law.
C.
Non-applicability.
The placement of an antenna(s), facilities or equipment related to
the following types of wireless communication services are exempt
from regulation under this article: amateur radio service that is
licensed by the FCC if the facilities related thereto are not used
or licensed for any commercial purpose; and facilities used by any
federal, state or local government or agency to provide safety or
emergency services. Further, the provisions in this article are supplemental
to, and not intended to alter, affect or modify other provisions in
the Town of South Bethany Code that may be applicable to the placement
or use of macro telecommunications towers. Nor is this article intended
to revoke or modify any contracts which may previously have been entered
into, unless preempted by federal law.
A.
All ordinances
or parts of ordinances heretofore adopted by the Town Council of the
Town of South Bethany, Delaware, that are inconsistent with the provisions
of this article are hereby expressly repealed.
B.
If any
part, section or subdivision of this article shall be held unconstitutional
or invalid for any reason, such holding shall not be construed to
invalidate or impair the remainder of this article, which shall continue
in full force and effect notwithstanding such holding.
C.
This article
is intended to comply with, and shall automatically be deemed amended
as necessary to comply with and conform to, any mandatory and duly
enacted regulations, requirements or limitations which may be established
by an authorized federal agency regulating the subject matter.
