[HISTORY: Adopted by the Council of the City
of Schenectady 11-27-2006 by L.L. No. 5-2006. Amendments noted where
applicable.]
The City of Schenectady finds that wireless
telecommunications facilities may pose a unique set of circumstances
concerning the health, safety, public welfare and environment. The
City of Schenectady's intent is to minimize the negative impact of
wireless telecommunications facilities and establish a fair and efficient
process for review and approval of applications, assure an integrated,
comprehensive review of environmental impacts of such facilities,
and protect the health, safety and welfare of the citizens of the
City of Schenectady. The provisions herein shall be liberally construed
to effectuate this stated intent.
As used in this chapter, the following terms
shall have the meanings indicated:
A system of electrical conductors that transmit or receive
electromagnetic waves or radio frequencies or other wireless signals.
Such shall include, but not limited to, radio, television, cellular,
paging, personal telecommunications services (PCS), microwave telecommunications
and services not licensed by the FCC, but not expressly exempt from
the City's siting, building and permitting authority.
A person who submits an application.
[Added 8-24-2020 by Ord. No. 2020-12
The use of the same telecommunications tower or structure
to support two or more antennas for the provision of wireless services
by two or more persons or entities.
The inability to perform an act on terms that are reasonable
in commerce, the cause or occurrence of which could not have been
reasonably anticipated or foreseen and that jeopardizes the financial
efficacy of the project. The inability to achieve a satisfactory financial
return on investment or profit, standing alone, shall not deem a situation
to be a commercial impracticability and shall not render an act or
the terms of an agreement commercially impracticable.
An application that contains all information and/or data
necessary to enable the City or its duly authorized agent to evaluate
the merits of the application and to make an informed decision with
respect to the effect and impact of wireless telecommunications facilities
on the City in the context of the permitted land use for the particular
location requested.
Only programming transmitted or broadcast by satellite directly
to subscribers' premises without the use of ground receiving equipment,
except at the subscribers' premises or in the uplink process to the
satellite.
The State and/or Federal Environmental Protection Agency
or its duly assigned successor agency.
The Federal Aviation Administration or its duly designated
and authorized successor agency.
The Federal Communications Commission or its duly designated
and authorized successor agency.
A tower that is not supported by guy wires and ground anchors
or other means of attached or external support.
Non-ionizing electromagnetic radiation.
An individual, corporation, limited liability company, partnership,
association, trust, or other entity or organization, including a city.
[Added 8-24-2020 by Ord. No. 2020-12]
See definition for "wireless telecommunications facilities."
The same meaning as defined and used in the 1996 Telecommunications
Act.
A wireless facility that meets the following qualifications:
i) each antenna (including, without limitation, any strand-mounted
antenna) could fit within an enclosure of no more than three cubic
feet in volume; ii) all other wireless equipment associated with the
facility is cumulatively no more than 28 cubic feet in volume; iii)
the facilities do not require antenna structure registration under
47 CFR Part 17; and iv) the facilities do not result in human exposure
to radio frequency radiation in excess of the applicable safety standards
specified in 47 CFR 1. 1307(b). The following types of associated,
ancillary equipment are not included in the calculation of equipment
volume: electric meter, concealment elements, telecommunications demarcation
box, grounding equipment, power transfer switch, cut-off switch, and
vertical cable runs for connection of power and other services.
[Added 8-24-2020 by Ord. No. 2020-12]
The transmission and/or reception of audio, video, data,
and other information by wire, radio frequency, light, and other electronic
or electromagnetic systems.
See definition for "wireless telecommunications facilities."
A structure used in the provision of services described in
the definition of "wireless telecommunications facilities."
A structure, facility or location designed or intended to
be used as, or used to support, antennas or other transmitting or
receiving devices. This includes, without limit, telecommunications
towers of all types and kinds, including but not limited to freestanding
towers, guyed towers, monopoles, and similar structures that employ
camouflage technology, including but not limited to structures such
as a multistory building, church steeple, silo, water tower, sign
or other similar structures that can be used to mitigate the visual
impact of an antenna or the functional equivalent of such, including
all related facilities such as cabling, equipment shelters and other
structures associated with the site. It is a structure and facility
intended for transmitting and/or receiving radio, television, cellular,
paging, 911 and personal telecommunications services, commercial satellite
services, microwave services and services not licensed by the FCC,
but not expressly exempt from the City's siting, building and permitting
authority, but excluding those used exclusively for fire, police and
other dispatch telecommunications, or exclusively for private radio
and television reception and private citizen's bands, amateur radio
and other similar telecommunications where the height of the facility
is below the height limits otherwise established by the City of Schenectady.
In order to ensure that the placement, construction,
and modification of wireless telecommunications facilities protects
the City's health, safety, public welfare, environmental features
and the nature and character of the community and neighborhood and
other aspects of the quality of life and is consistent with any adopted
comprehensive plan and development policies, the City hereby establishes
an overall policy with respect to a special use permit for wireless
telecommunications facilities for the express purpose of achieving
the following goals:
A.
Implementing an application process for person(s)
seeking a special use permit for wireless telecommunications facilities;
B.
Establishing a policy for examining an application
for and issuing a special use permit for wireless telecommunications
facilities that is both fair and consistent;
C.
Establishing reasonable time frames for granting or
not granting a special use permit for wireless telecommunications
facilities, or recertifying or not recertifying or revoking the special
use permit granted under this section;
D.
Promoting and encouraging, wherever possible, the
sharing and/or collocation of wireless telecommunications facilities
among service providers;
E.
Promoting and encouraging, wherever possible, the
placement, height and quantity of wireless telecommunications facilities
in such a manner as to minimize adverse aesthetic impacts to the land,
property, buildings, and other facilities adjacent to, surrounding,
and in generally the same area as the requested location of such wireless
telecommunications facilities, which shall mean using the least visually
and physically intrusive facility that is not technologically or commercially
impracticable under the facts and circumstances.
Except as exempted by Subsection A below, all
applicants for a special use permit for wireless telecommunications
facilities or any modification of such facility shall comply with
the requirements set forth in this chapter and the following:
A.
Notwithstanding any other provisions of this section
and all subsections thereof, the collocation and/or shared use of
antennas on existing telecommunications towers or other tall structures
or compatible use structures, such as utility poles, water towers,
and other towers, shall be exempt from the special use permit process
and requirements of this section and shall be subject only to an administrative
review process by the City.
B.
The applicant shall include a statement in writing
that:
(1)
The applicant's proposed wireless telecommunications
facilities shall be maintained in a safe manner and in compliance
with all conditions of the special use permit, without exception,
unless specifically granted relief by the City or its duly authorized
agent, in writing, as well as all applicable and permissible local
codes, ordinances, and regulations, including any and all applicable
City, county, state and federal laws, rules, and regulations;
(2)
The construction of the wireless telecommunications
facilities is legally permissible, including but not limited to the
fact that the applicant is authorized to do business in the State
of New York.
(3)
All applications for the construction or installation
of new wireless telecommunications facilities shall contain the information
hereinafter set forth unless waived. The application shall be signed
by an authorized individual on behalf of the applicant, and where
a certification is called for, such certification shall be by a qualified
New York State licensed professional engineer acceptable to the City,
unless otherwise noted.
C.
Unless waived or otherwise modified, the application
shall include, in addition to the other requirements for the special
use permit, the following information:
(1)
Size of the property, stated both in square feet and
lot line dimensions, and a diagram showing the location of all lot
lines;
(2)
The location of nearest residential habitable structure;
(3)
The location of nearest habitable structure;
(4)
The location, size and height of all structures on
the property that is the subject of the application;
(5)
The location, size and height of all proposed and
existing antennas and all appurtenant structures;
(6)
The type, locations and dimensions of all proposed
and existing landscaping and fencing;
(7)
The number, type and design of the telecommunications
tower(s) and antenna(s) proposed and the basis for the calculations
of the telecommunications tower's capacity to accommodate multiple
users;
(8)
The make, model and manufacturer of the tower(s) and
antenna(s);
(9)
A description of the proposed tower and antenna(s)
and all related fixtures, structures, appurtenances and apparatus,
including height above preexisting grade, materials, color and lighting;
(10)
The frequency, modulation and class of service
of radio or other transmitting equipment;
(11)
The actual intended transmission and the maximum
effective radiated power of the antenna(s);
(12)
Direction of maximum lobes and associated radiation
of the antenna(s);
(13)
Certification that the RF (NIER) levels at the
proposed site are within the threshold levels adopted by the FCC;
(14)
Certification by a qualified New York State
licensed professional engineer that the proposed antenna(s) will not
cause interference with other telecommunications devices;
(15)
A copy of the FCC license applicable for the
intended use of the wireless telecommunications facilities;
(16)
Propagation studies of the proposed site and
all adjoining planned, proposed, in-service or existing sites; and
(17)
The applicant shall disclose in writing any
agreement in existence prior to submission of the application that
would limit or preclude the ability of the applicant to share any
new telecommunications tower that it constructs.
D.
In the case of a new telecommunications tower, the
applicant shall be required to submit a written report demonstrating
its meaningful efforts to secure shared use of existing telecommunications
tower(s) or the use of alternative buildings or other structures within
the City. Copies of written requests and responses for shared use
may be required to be provided along with any letters of rejection
stating the reason for rejection.
E.
Foundation and attachments are designed and will be
constructed to meet all local, county, state and federal structural
requirements for loads, including wind and ice loads.
F.
The applicant shall furnish written certification
that the wireless telecommunications facilities will be effectively
grounded and bonded so as to protect persons and property, and that
the same was installed with appropriate surge protectors.
G.
Prior to the issuance of a land use permit, the applicant
may be required to submit a National Environmental Policy Act checklist
required by the FCC.
H.
The applicant shall furnish a visual impact assessment
which shall include:
(1)
A "zone of visibility" map which shall be provided
in order to determine locations from which the tower(s) may be seen.
(2)
Pictorial representations of "before" and "after"
views from key viewpoints both inside and outside of the City as may
be appropriate, including but not limited to state highways and other
major roads; state and local parks; other public lands; historic districts;
preserves and historic sites normally open to the public; and from
any other location where the site is visible to a large number of
visitors, travelers or residents. Guidance will be provided concerning
the appropriate key sites.
(3)
An assessment of the visual impact of the tower base,
guy wires and accessory buildings from abutting and adjacent properties
and streets as relates to the need or appropriateness of screening.
(4)
The applicant shall, in a manner approved by the City,
demonstrate and provide in writing and/or by drawing how it shall
effectively screen from view the base and all related facilities and
structures of the proposed wireless telecommunications facilities.
I.
Any and all representations made by the applicant
on the record during the application process, whether written or verbal,
shall be deemed a part of the application and may be relied upon in
good faith.
J.
All utilities at wireless telecommunications facilities
sites shall be installed underground and in compliance with all applicable
laws, ordinances, rules and regulations, including specifically, but
not limited to, the National Electrical Safety Code and the National
Electrical Code, where appropriate. The City may waive or vary the
requirements of underground installation of utilities when, in the
opinion of the City, such variance or waiver shall not be detrimental
to the health, safety, general welfare and environment, including
the visual and scenic characteristics of the area.
K.
All wireless telecommunications facilities permit applicants shall demonstrate that the proposed facility will be sited so as to be the least visually intrusive to the extent reasonably possible, and thereby have the least adverse visual effect on the environment and its character, on existing vegetation, and on the residences in the area. A visual impact assessment as set forth in Subsection H may be used to satisfy this requirement.
L.
Both the wireless telecommunications facility and
any and all accessory or associated facilities shall maximize the
use of building materials, colors and textures designed to blend with
the structure to which it may be affixed and/or to harmonize with
the natural surroundings. This shall include the utilization of stealth
or concealment technology as may be required by the City, including
but not limited to the placement of associated facilities underground.
M.
At a wireless telecommunications facility site, an
access road, turnaround space and/or parking area shall be provided
to assure adequate emergency and service access. Maximum use of existing
roads, whether public or private, shall be made to the extent practicable.
Road construction shall at all times minimize ground disturbance and
vegetation-cutting. Road grades shall closely follow natural contours
to assure minimal visual disturbance and reduce soil erosion.
N.
A person who holds a special use permit for wireless
telecommunications facilities shall construct, operate, maintain,
repair, provide for removal of, modify or restore the permitted wireless
telecommunications facilities in strict compliance with all current
applicable technical, safety and safety-related codes adopted by the
county, the state, or the United States, including but not limited
to the most recent editions of the National Electrical Safety Code
and the National Electrical Code, as well as accepted and responsible
workmanlike industry practices and recommended practices of the National
Association of Tower Erectors. The codes referred to herein are codes
that include, but are not limited to, construction, building, electrical,
fire, safety, health, and land use codes. In the event of a conflict
between or among any of the preceding, the more stringent shall apply.
O.
A holder of a special use permit granted under the
provisions of this chapter shall obtain, at its own expense, all permits
and licenses required by applicable law, rule, regulation or code,
and must maintain the same, in full force and effect, for as long
as required by the City or other governmental entity or agency having
jurisdiction over the applicant.
P.
The applicant shall examine the feasibility of designing
a proposed telecommunications tower to accommodate future demand for
at least five commercial applications, for example, future collocations.
The scope of this examination shall be determined by the City or its
duly authorized agent. The telecommunications tower shall be structurally
designed to accommodate at least five additional antenna arrays equal
to those of the applicant and located as close to the applicant's
antenna as possible without causing interference. This requirement
may be waived, provided that the applicant, in writing, demonstrates
that the provisions of future shared usage of the telecommunications
tower is not technologically feasible, is commercially impracticable
or creates an unnecessary and unreasonable burden, based upon:
(1)
The foreseeable number of FCC licenses available for
the area;
(2)
The kind of wireless telecommunications facilities
site and structure proposed;
(3)
The number of existing and potential licenses without
wireless telecommunications facilities spaces/sites; and
(4)
Available space on existing and approved telecommunications
towers.
Q.
The applicant for a new tower shall submit a letter
of intent committing the owner of the proposed new tower, and his/her
successors in interest, to negotiate in good faith for the shared
use of the proposed tower by other telecommunications providers in
the future. This letter shall be filed in the City's Planning Department.
Failure to abide by the conditions outlined in the letter may be grounds
for revocation of the special use permit. The letter shall commit
the new tower owner and his/her successors in interest to:
(1)
Respond within 60 days to a request for information
from a potential shared-use applicant;
(2)
Negotiate in good faith concerning future requests
for shared use of the new tower by other telecommunications providers;
and
(3)
Allow shared use of the new tower if another telecommunications
provider agrees in writing to pay reasonable charges. The charges
may include, but are not limited to, a pro rata share of the cost
of site selection, planning, project administration, land costs, site
design, construction and maintenance financing, return on equity,
less depreciation, and all of the costs of adapting the tower or equipment
to accommodate a shared user without causing electromagnetic interference.
R.
Unless waived by the City there shall be a preapplication
meeting. The purpose of the preapplication meeting will be to address
issues which will help to expedite the review and permitting process.
A preapplication shall also include a site visit, unless otherwise
waived by the City. The costs of the consultants to prepare for and
attend the preapplication meeting will be borne by the applicant.
The preapplication meeting could be conducted by telephone or video
conference at the discretion of the City.
S.
The holder of a special use permit shall notify the
City of any intended modification of a wireless telecommunications
facility and shall apply to the City to modify, relocate or rebuild
a wireless telecommunications facility; provided, however, that nothing
in this section shall be deemed to require an approval of a modification
of a special use permit for the replacement of existing antennas or
base station electronic equipment at a wireless transmission facility.
T.
If required by the City, in order to better inform
the public relative to the application for construction of a new telecommunications
tower, the applicant shall, prior to the Planning Board meeting and
the public hearing on the application, hold a "balloon test" as follows:
the applicant shall arrange to fly, or raise upon a temporary mast,
a minimum of a three-foot-diameter brightly colored balloon at the
maximum height of the proposed new tower. The dates (including a second
date, in case of poor visibility on the initial date), times and location
of this balloon test shall be advertised by the applicant seven and
14 days in advance of the first test date in a newspaper in general
circulation in the City and as agreed to by the City. The applicant
shall inform the City, in writing, of the dates and times of the test,
at least 14 days in advance. The balloon shall be flown for at least
eight consecutive hours sometime between 7:00 a.m. and 4:00 p.m. on
the dates chosen. The primary date shall be on a weekend, but the
second date, in case of poor visibility on the initial date, may be
on a weekday.
U.
The applicant will provided a written copy of an analysis,
completed by a qualified individual or organization, to determine
if the telecommunications tower or existing structure intended to
support wireless telecommunications facilities requires lighting under
Federal Aviation Administration Regulation Part 77. This requirement
shall be for any new tower or for an existing structure or building
where the application increases the height of the structure or building.
If this analysis determines that the FAA must be contacted, then all
filings with the FAA, all responses from the FAA and any related correspondence
shall be provided in a timely manner.
After an approved special use permit is recorded,
the applicant shall submit, as part of the site plan approval and
building permit process, the following information:
A.
The make, model and manufacturer of the tower(s) and
antenna(s);
B.
Certification that a topographic and geomorphologic
study and analysis has been conducted. Said study must take into account
the subsurface and substrata conditions and proposed drainage, and
certify that the site is adequate to assure the stability of the proposed
wireless transmission facilities to be installed.
C.
Written certification that the wireless telecommunications
facility foundation and attachments are designed and will be constructed
to meet all county, state and federal structural requirements for
loads, including wind and ice loads.
A.
Wireless telecommunications facilities may not be
located in any area zoned either A, A-2, B, B-2, or C. The City will
nevertheless consider an application to locate a facility within one
of the listed zones, provided the applicant meets the requirements
specified in the Telecommunications Act of 1996 and any applicable
statute, rule or regulation promulgated thereunder.
B.
C.
If the proposed property site is not the highest priority
listed above, then a detailed explanation must be provided as to why
a site of a higher priority was not selected. The person seeking such
an exception must satisfactorily demonstrate the reason or reasons
why such a permit should be granted for the proposed site, and the
hardship that would be incurred by the applicant if the permit were
not granted for the proposed site.
D.
An applicant may not bypass sites of higher priority
by stating the site proposed is the only site leased or selected.
An application shall address collocation as an option. If such option
is not proposed, the applicant must explain to the reasonable satisfaction
of the City why collocation is commercially or otherwise impracticable.
Agreements between providers limiting or prohibiting collocation shall
not be a valid basis for any claim of commercial impracticability
or hardship.
E.
Notwithstanding the above, the City may approve any
site within an area in the above list of priorities, provided that
the City finds that the proposed site is in the best interest of the
health, safety and welfare of the City and its inhabitants and will
not have a deleterious effect on the nature and character of the community
and neighborhood.
F.
The applicant shall submit a written report demonstrating
the applicant's review of the above locations in order of priority,
demonstrating the technological reason for the site selection. If
appropriate based on selecting a site of lower priority, a detailed
written explanation as to why sites of a higher priority were not
selected shall be included with the application.
G.
The applicant shall, in writing, identify and disclose
the number and locations of any additional sites that the applicant
has been, is, or anticipates considering for the placement of wireless
telecommunications facilities in the City, and all municipalities
immediately adjacent to the City of Schenectady or within one mile
of its border, for a two-year period following the date of the application,
based on the information currently available to the applicant at that
time.
H.
Notwithstanding that a potential site may be situated
in an area of highest priority or highest available priority, the
City may disapprove an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and
requirements;
(2)
Conflict with traffic laws or adverse impact upon
traffic needs or definitive plans for changes in traffic flow;
(3)
Adverse impact upon the historic nature or character
of a neighborhood or historical district;
(4)
The use or construction of wireless telecommunications
facilities which is contrary to an already stated purpose of a specific
zoning or land use designation;
(5)
The placement and location of wireless telecommunications
facilities which would create an unacceptable risk, or the reasonable
probability of such, to residents, the public, employees and agents
of the City or employees of the service provider or other service
providers;
(6)
Conflicts with the provisions of this chapter; and/or
(7)
There is no demonstration of need for a facility.
I.
When telecommunications facilities are to be located
on property owned by the City of Schenectady:
(1)
The standards specified herein shall apply, and, at
the discretion of the City of Schenectady, appropriate fees may be
charged; however, the application shall be exempt from the procedures
and processes outlined herein.
(2)
The rent or other compensation paid to the City of
Schenectady shall be negotiated and subject to the approval of the
City Council.
A.
Shared use of existing wireless telecommunications
facilities shall be preferred by the City, as opposed to the construction
of a new telecommunications support facility. Where such shared use
is unavailable, location of antennas on other pre-existing structures
shall be preferred. The applicant shall submit a comprehensive report
inventorying existing towers and other appropriate compatible structures
within four miles of any proposed new tower site, unless the applicant
can show that some other distance is more reasonable, outlining opportunities
for the shared use of existing facilities and the use of other pre-existing
compatible structures as a preferred alternative to new construction.
B.
An applicant intending to locate on an existing telecommunications
tower or other compatible structure shall be required to document
the intent of the existing owner to permit its use by the applicant.
In the event an application to collocate on an existing telecommunications
tower or compatible structure does not increase the height of the
telecommunications tower or structure, the City shall waive such requirements
of the application required by this chapter as may be inappropriate
or for good cause shown.
A.
The applicant shall submit documentation justifying
to the City the total height of any telecommunications tower, facility
and/or antenna and the basis therefor.
B.
Telecommunications towers and facilities shall be
no higher than the minimum height necessary to accomplish the wireless
service coverage or capacity required within the community.
A.
Wireless telecommunications facilities shall not be
artificially lighted or marked, except as required by law.
B.
Telecommunications towers shall be of a galvanized
finish or painted with a rust-preventive paint of an appropriate color
to harmonize with the surroundings, as approved by the City or its
duly authorized agent, and shall be maintained in accordance with
the requirements of this chapter.
C.
If lighting is required, the applicant shall provide
a detailed plan for sufficient lighting of as unobtrusive and inoffensive
an effect as is permissible under state and federal regulations, and
an artist's rendering or other visual representation showing the effect
of light emanating from the site on neighboring habitable structures
within 1,500 feet of all property lines of the parcel on which the
wireless telecommunications facilities are located.
D.
Whenever practicable, the towers shall be erected
in such a manner as to eliminate the need for guy wires.
All wireless telecommunications facilities and
antennas shall be located, fenced or otherwise secured in a manner
that prevents unauthorized access. Specifically:
A.
All antennas, towers and other supporting structures,
including guy wires, shall be made inaccessible to individuals and
constructed or shielded in such a manner that they cannot be climbed
or run into; and
B.
Transmitters and telecommunications control points
must be installed in such a manner that they are readily accessible
only to persons authorized to operate or service them.
A.
Wireless telecommunications facilities shall contain
a sign adequate to provide adequate notification to persons in the
immediate area of the presence of an antenna that has transmission
capabilities. The sign shall contain the name(s) of the owner(s) and
operator(s) of the antenna(s) as well as emergency phone number(s).
The sign shall be on the equipment shelter or shed of the applicant
and be located so as to be visible from the access point of the site.
The sign shall not be lighted, unless the City expressly allows such
lighting or unless such lighting is required by applicable provisions
of law. The sign shall be approved by the City before installation.
No other signage, including advertising, shall be permitted on any
facilities, antennas, supporting structures or antenna towers, unless
required by law.
B.
This section shall not prevent lighting and signs
when the wireless telecommunications facilities are installed as a
shared use on billboards or other similar structures.
All proposed wireless telecommunications facilities
shall be set back from abutting parcels, recorded rights-of-way and
road and street lines by the greater of the following distances: a
distance equal to the height of the tallest wireless telecommunications
facility support structure plus 25 feet, or the existing setback requirements
of the underlying zoning district, whichever is greater. If the tower
is designed to break in the event of failure, the tallest shall be
the greatest distance from the base of the tower that any single portion
of the tower may reach. Any accessory structure shall be located so
as to comply with the applicable minimum setback requirements for
the property on which it is situated.
A.
The City may hire any consultant and/or expert necessary
to assist in reviewing and evaluating the application.
B.
An applicant shall deposit with the City funds sufficient
to reimburse for all reasonable costs of review of the application
plus the cost of consultants and/or expert evaluation and consultation
to the City in connection with the review of any application. The
amount of the initial deposit shall be established by the City and
may be changed within the discretion of the City. These funds shall
be deposited with the City five days prior to the preapplication meeting.
The City consultants and/or experts shall bill or invoice the City,
and the City will immediately notify the applicant of the amount being
billed. If the balance in escrow should be diminished to an amount
deemed insufficient to complete the review process, the applicant
shall immediately, upon request by the City, replenish said escrow
account by an amount determined by the City. Such additional escrow
funds shall be deposited with the City before any further action or
consideration is taken on the application. In the event that the amount
held in escrow by the City is more than the amount of the actual billing
or invoicing at the conclusion of the project, the remaining balance
shall be promptly refunded to the applicant. All invoices shall be
itemized and be public records available for inspection.
C.
The total amount of the funds needed as set forth
above may vary with the scope and complexity of the project, the completeness
of the application and other information as may be needed by the City
and/or its consultants and/or experts to complete the necessary review
and analysis. Additional escrow funds, as reasonably required and
requested by the City shall be paid by the applicant. However, notwithstanding
any other provisions of this section, if the total amount paid to
the consultants and/or experts exceeds $7,500 for a single application,
such amount shall be subject to review and approval by the City Council
at the request of the applicant.
A.
No person shall be permitted to site, place, build, construct or modify, or prepare any site for the placement or use of wireless telecommunications facilities as of the effective date of this chapter without having first obtained a special use permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this section, no special use permit shall be required for those noncommercial exceptions noted in the definition of "wireless telecommunications facilities" or the collocation and/or shared use of antenna(s) exempted by § 257-4A.
B.
New construction of and on existing wireless telecommunications
facilities shall comply with the requirements of this section.
C.
All wireless telecommunications facilities existing
on or before the effective date of this chapter shall be allowed to
continue as they presently exist; provided, however, that any modification
to existing wireless telecommunications facilities (other than the
modification, relocation or replacement of existing antenna(s) or
base station electronic equipment) must comply with this section.
A.
At any time between 12 months and six months prior
to the five-year anniversary date after the effective date of the
special use permit and all subsequent fifth anniversaries of the effective
date of the original special use permit for wireless telecommunications
facilities, the holder of a special use permit for such wireless telecommunications
facilities shall submit to the City documentation as required by this
section for recertification. In the recertification documentation,
the holder of such special use permit shall note the following:
(1)
The name of the holder of the special use permit for
the wireless telecommunications facilities;
(2)
If applicable, the number or title of the special
use permit;
(3)
The date of the original granting of the special use
permit;
(4)
Whether the wireless telecommunications facilities
have been moved, relocated, rebuilt, or otherwise modified since the
issuance of the special use permit and, if so, in what manner.
B.
If the wireless telecommunications facilities have
been moved, relocated, rebuilt, or otherwise modified (other than
the modification, relocation or replacement of existing antenna(s)
or base station electronic equipment), then the application for recertification
shall state whether the City or its duly authorized agent approved
such action, under what terms and conditions, and whether there was
compliance with those terms and conditions;
C.
Any requests for waivers or relief of any kind whatsoever
from the requirements of this chapter and any requirements for a special
use permit;
D.
That the wireless telecommunications facilities are
in compliance with the special use permit and in compliance with all
applicable codes, laws, rules and regulations;
E.
That the telecommunications tower and attachments
both are designed and constructed ("as built") to and continue to
meet all local, county, state and federal structural requirements
for loads, including wind and ice loads. Such recertification shall
be by a qualified New York State licensed professional engineer acceptable
to the City, the cost of which shall be borne by the applicant.
F.
If, after review of the required documentation, the
City determines that the permitted wireless telecommunications facilities
are not in compliance with the special use permit and all applicable
statutes, laws, ordinances, codes, rules and regulations, then the
City may send notice that the wireless telecommunications facilities
must either be brought into compliance within 60 days or the use of
the same must terminate. Such compliance must be verified by an inspection,
which inspection shall be performed expeditiously upon notice that
the facility is ready for inspection. Any decision requiring the cessation
of use of the facility or imposing a penalty shall be in writing and
supported by substantial evidence contained in a written record and
shall be promptly provided to the owner of the facility.
G.
If the applicant has submitted all of the information
requested by the City and required by this chapter, and if the City
does not complete its review, as noted above, prior to the five-year
anniversary date of the special use permit, or subsequent fifth anniversaries,
then the applicant for the permitted wireless telecommunications facilities
shall receive an extension of the special use permit for up to six
months, in order for the City to complete its review.
H.
If the holder of a special use permit for wireless
telecommunications facilities does not submit documentation for recertification
of such special use permit within the time frame noted above, then
such special use permit and any authorizations granted thereunder
shall cease to exist on the date of the fifth anniversary of the original
granting of the special use permit, or subsequent fifth anniversaries,
unless the holder of the special use permit adequately demonstrates
to the City that extenuating circumstances prevented a timely submission
of recertification documentation. If the City agrees that there were
legitimately extenuating circumstances, then the holder of the special
use permit may submit late documentation or an application for a new
special use permit.
The extent and parameters of a special use permit
for wireless telecommunications facilities shall be as follows:
A.
Such special use permit shall be nonexclusive;
B.
Such special use permit shall run with the land and
be enforceable upon successor owners and may be assigned, transferred
or conveyed to successor owners of the wireless transmission facility
after express prior written notification to the City.
C.
Such special use permit may, following a hearing upon
due prior notice to the applicant, be revoked, canceled, or terminated
for a violation of the conditions and provisions of the special use
permit for wireless telecommunications facilities or for a material
violation of this section after prior written notice to the applicant
and the holder of the special use permit.
At the time that a person submits an application
for a special use permit as outlined herein, or for a recertification,
such person shall pay a nonrefundable application fee, established
by the City, which may be changed within the discretion of the City
to an amount not to exceed an amount commensurate with the complexity
of the application, and in order to reimburse the City for its time
and expenses involved in processing and reviewing the application.
The applicant and the owner of record of any
proposed wireless telecommunications facilities property site shall,
at its cost and expense, be jointly required to execute and file with
the City a bond, or other form of security acceptable to the City
as to type of security and the form and manner of execution, in an
amount established by the City, and as may be changed within the discretion
of the City, and with such sureties as are deemed sufficient by the
City, to assure the faithful performance of the terms and conditions
of this chapter and conditions of any special use permit issued pursuant
to this chapter. The full amount of the bond or security shall remain
in full force and effect throughout the term of the special use permit
and/or until the removal of the wireless telecommunications facilities
and any necessary site restoration is completed. The failure to pay
any annual premium for the renewal of any such security shall be a
violation of the provisions of the special use permit and shall entitle
the City to revoke the special use permit after prior written notice
to the applicant and holder of the permit and after a hearing upon
due prior notice to the applicant and holder of the special use permit.
In order to verify that the holder of a special
use permit for wireless telecommunications facilities, and any and
all lessees, renters, and/or licensees of wireless telecommunications
facilities, place and construct such facilities, including towers
and antennas, in accordance with all applicable technical, safety,
fire, building, and zoning codes, laws, ordinances and regulations
and other applicable requirements, the City may inspect all facets
of said permit holder's, renter's, lessee's or licensee's placement,
construction, modification and maintenance of such facilities, including,
but not limited to, towers, antennas and buildings or other structures
constructed or located on the permitted site.
The City reserves the right to require the holder
of the special use permit to provide periodic certification in writing
to the City that NIER levels at the site are within the threshold
levels adopted by the FCC, so long as such certification is not required
more frequently than annually. Unless otherwise waived by the City,
the certifying engineer must be licensed to practice engineering in
the State of New York; however, he/she need not be approved by the
City.
A holder of a special use permit for wireless
telecommunications facilities shall secure, and at all times maintain,
liability insurance for personal injuries, death and property damage,
in reasonable amounts consistent with industry standards, for the
duration of the special use permit. Before construction of a permitted
wireless telecommunications facility is initiated, the holder of the
special use permit shall deliver to the City a copy of each of the
policies or certificates representing the insurance in the required
amounts. The City shall be a named insured on any and all such policies
of insurance.
Any application for wireless telecommunications
facilities that is proposed for City property, pursuant to this chapter,
shall contain a provision with respect to indemnification. Such provision
shall require the applicant, to the extent permitted by the law, to
at all times defend, indemnify, save, hold harmless, and exempt the
City, its officers, boards, employees, committee members, attorneys,
agents, and consultants from any and all penalties, damages, costs,
or charges arising out of any and all claims, suits, demands, causes
of action, or award of damages, whether compensatory or punitive,
or expenses arising therefrom, either at law or in equity, which might
arise out of, or are caused by, the placement, construction, erection,
modification, location, products performance, use, operation, maintenance,
repair, installation, replacement, removal, or restoration of said
facility, excepting, however, any portion of such claims, suits, demands,
causes of action or award of damages as may be attributable to the
negligent or intentional acts or omissions of the City, or its servants
or agents. With respect to the penalties, damages or charges referenced
herein, reasonable attorney's fees, consultants' fees, and expert
witness fees are included in those costs that are recoverable by the
City.
If wireless telecommunications facilities are
repaired, rebuilt, placed, moved, relocated, modified or maintained
in a way that is inconsistent or not in compliance with the provisions
of this chapter or of the special use permit, then the City may notify
the holder of the special use permit, in writing, of such violation.
The applicant and/or holder of the special use permit shall have 60
days to cure any specified default. Upon a failure to cure the stated
default, the City may revoke the special use permit and all use of
the wireless telecommunications facilities shall cease.
A.
Under the following circumstances, the City may determine
that the health, safety, and welfare interests of the City warrant
and require the removal of wireless telecommunications facilities:
(1)
Wireless telecommunications facilities with a permit
have been abandoned (i.e., not used as wireless telecommunications
facilities) for a period exceeding 90 consecutive days or a total
of 180 days in any three-hundred-sixty-five-day period, except for
periods caused by force majeure or acts of God, in which case repair
or removal shall commence within 90 days;
(2)
Permitted wireless telecommunications facilities fall
into such a state of disrepair that it creates a health or safety
hazard; and/or
(3)
Wireless telecommunications facilities have been located,
constructed, or modified without first obtaining, or in a manner not
authorized by, the required special use permit, or any other necessary
authorization.
B.
If the City makes such determination as noted in Subsection A of this section, then the City shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed, the City may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
C.
The holder of the special use permit, or its successors
or assigns, shall dismantle and remove such wireless telecommunications
facilities, and all associated structures and facilities, from the
site and restore the site to as close to its original condition as
is possible, such restoration being limited only by physical or commercial
impracticability, within 90 days of receipt of written notice from
the City. However, if the owner of the property upon which the wireless
telecommunications facilities are located wishes to retain any access
roadway to the wireless telecommunications facilities, the owner may
do so with the approval of the City.
D.
If wireless telecommunications facilities are not
removed or substantial progress has not been made to remove the wireless
telecommunications facilities within 90 days after the permit holder
has received notice, then the City may order officials or representatives
of the City to remove the wireless telecommunications facilities at
the sole expense of the owner or special use permit holder.
E.
If the City removes or causes removal of wireless
telecommunications facilities and the owner of the wireless telecommunications
facilities does not claim and remove all items from the site to a
lawful location within 10 days, then the City may take steps to declare
the wireless telecommunications facilities abandoned and sell them
and their components.
F.
Notwithstanding anything in this section to the contrary,
the City may approve a temporary use permit/agreement for the wireless
telecommunications facilities, for no more than 90 days, during which
time a suitable plan for removal, conversion, or relocation of the
affected wireless telecommunications facilities shall be developed
by the holder of the special use permit, subject to the approval of
the City. If such a plan is not developed, approved and executed within
the ninety-day time period, then the City may take possession of and
dispose of the affected wireless telecommunications facilities in
the manner provided herein.
Any applicant or permittee (a party to the special
use permit) desiring relief or exemption from any aspect or requirement
of this section may request such from the City at a preapplication
meeting, provided that the relief or exemption is contained in the
original application for either a special use permit or, in the case
of an existing or previously granted special use permit, a request
for modification of its tower and/or facilities. Such relief may be
temporary or permanent, partial or complete, at the sole discretion
of the City. However, the burden of proving the need for the requested
relief or exemption is solely on the applicant to prove to the satisfaction
of the City. The applicant shall bear all costs of the City in considering
the request, and the relief shall not be transferable to a new or
different holder of the permit or owner of the tower(s) or facilities
without the specific written permission of the City. Such permission
shall not be unreasonably withheld or delayed. No such relief or exemption
shall be approved unless the applicant demonstrates by clear and convincing
evidence that, if granted the relief or exemption, it will have no
significant effect on the health, safety and welfare of the City,
its residents and other service providers.
A.
To the extent that the holder of a special use permit
for wireless telecommunications facilities has not received relief,
or is otherwise exempt from appropriate state and/or federal agency
rules or regulations, then the holder of such a special use permit
shall adhere to, and comply with, all applicable rules, regulations,
standards, and provisions of any state or federal agency, including,
but not limited to, the FAA and the FCC. Specifically included in
this requirement are any rules and regulations regarding height, lighting,
security, electrical and RF emission standards.
B.
To the extent that applicable rules, regulations,
standards, and provisions of any state or federal agency, including
but not limited to, the FAA and the FCC, and specifically including
any rules and regulations regarding height, lighting, and security
are changed and/or are modified during the duration of a special use
permit for wireless telecommunications facilities, then the holder
of such a special use permit shall conform the permitted wireless
telecommunications facilities to the applicable changed and/or modified
rule, regulation, standard, or provision within a maximum of 24 months
of the effective date of the applicable changed and/or modified rule,
regulation, standard, or provision, or sooner as may be required by
the issuing entity.
[Added 8-24-2020 by Ord. No. 2020-12]
A.
Prior to receiving any permit to install a small wireless
facility in the public ROW, each applicant shall be required to enter
into a master license agreement between the City and the applicant,
on terms and conditions substantially the same for all applicants.
B.
The applicant shall pay the fees and rates set forth
in the master license agreement, as well as any other fees otherwise
provided by applicable laws including but not limited to permit fees
as the same shall be set and may be adjusted by the City Council.
C.
The following uses within the public ROW shall be a
permitted use, subject to administrative review and issuance of a
permit as set forth in this section. All such uses shall be in accordance
with all other applicable provisions of this section, including without
limitation:
(1)
Installation/collocation of a small wireless facility;
(2)
Modification of a pole, or replacement of a pole,
for collocation that qualifies as an eligible facilities request or
involves a small wireless facility that does not exceed the maximum
limitations; and
(3)
Construction of a new pole to be used for installation/collocation
of a small wireless facility that does not exceed the maximum height
limitations.
D.
Permit required. No person shall place any facility described in Subsection C above in the public ROW without obtaining a permit therefor.
E.
Proprietary or confidential information in application.
The City shall make accepted applications publicly available. Notwithstanding the foregoing,
applicant may designate portions of its application materials that
it reasonably believes contain proprietary or confidential information
as "proprietary" or "confidential" by clearly marking each portion
of such materials accordingly, and the City shall treat the information
as proprietary and confidential, subject to applicable state and local
"freedom of information" or "sunshine" laws and the City's determination
that the applicant's request for confidential or proprietary
treatment of an application material is reasonable.
F.
Administrative review application requirements. The
application shall contain, at a minimum, the following:
(1)
The applicant's name, address, telephone number,
and email address, including emergency contact information for the
applicant.
(2)
The names, addresses, telephone numbers, and email
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 and
the purposes and intent of the proposed facility. The scope and detail
of such description shall be appropriate to the nature and character
of the physical work to be performed, with special emphasis on those
matters likely to be affected or impacted by the physical work proposed.
(4)
Detailed construction drawings regarding the proposed
facility.
(5)
To the extent the proposed facility involves collocation
on a pole, a structural report performed by a duly licensed engineer
evidencing that the pole will structurally support the collocation
(or that the pole, will be modified to meet structural requirements)
in accordance with applicable codes.
(6)
For any new aboveground facilities, visual depictions
or representations if not included in the construction drawings.
(7)
Payment of any applicable permit fee.
G.
Information updates. Any material change to information
contained in an application shall be submitted in writing to the City
within 30 days after the change necessitating the change.
H.
Action on administrative review of applications.
(1)
The City shall form a Small Wireless Commission
chaired by the City Engineer or their designated representative and
further consisting of representatives from the Department of Development
and Department of Utilities with the express purpose of completing
the administrative reviews of applications.
(2)
The City, through the Small Wireless Commission,
shall review the application in light of its conformity with applicable
provisions of this chapter, and shall issue a permit on nondiscriminatory
terms and conditions, subject to the following requirements:
(a)
Within 10 days of receiving an application,
the City must determine and notify the applicant whether the application
is complete; or if an application is incomplete, the City must specifically
identify the missing information, and may toll the approval interval
in below. The applicant may resubmit the completed application within
20 days without additional charge, and the subsequent review will
be limited to the specifically identified missing information subsequently
completed, except to the extent material changes to the proposed facility
have been made by the applicant (other than those requested or required
by the City) in which case a new application and application fee for
same must be submitted; and
(b)
The City must make its final decision to approve
or deny the application within 60 days for a collocation, and 90 days
for any new structure, after the application is complete (or deemed
complete);
(c)
The City must advise the applicant in writing
of its final decision, and in the final decision document the basis
for a denial, including specific code provisions and/or regulations
on which the denial was based. A decision to deny an application shall
be in writing and supported by evidence contained in a written record,
publicly released, and sent to the applicant. The written decision,
supported by such substantial evidence, shall constitute final action
by City. The applicant may cure the deficiencies identified by the
City and resubmit the application within 30 days of the denial without
paying an additional application Fee unless denial was issued due
to noncompliance with design guidelines or other requirements under
this chapter (in which case a new application fee must be paid). The
City shall approve or deny the revised application within 30 days
of receipt of the revised application.
(d)
In addition to the above requirements, for
small wireless facilities to be installed on City-owned poles and
structures, the Small Wireless Commission shall submit their recommendation(s)
regarding the issuance of a permit to the City Council and receive
the approval City Council to issue the same prior to a final decision.
(3)
If the City fails to act on an application within
the review period referenced above, the applicant may provide the
City written notice that the time period for acting has lapsed, and
the City then has 20 days after receipt of such notice within which
to render its written decision; failing which, the application is
then deemed approved by passage of time and operation of law. The
applicant shall provide notice to the City at least seven days prior
to beginning construction or collocation pursuant to a permit issued
pursuant to a deemed approved application, and such notice shall not
be construed as an additional opportunity for objection by the City
or other entity to the deployment.
(4)
An applicant seeking to construct, modify or replace
a network of communications facilities may, at the applicant's
discretion and subject to the City's batch application requirements
and process, file a consolidated application and receive a single
permit for multiple communications facilities, or multiple permits.
The City's denial of any site or sites within a consolidated
application shall not affect other sites submitted in the same application.
The City shall grant a permit(s) for any and all sites in a consolidated
application that it does not otherwise deny, subject to the requirements
of this section.
I.
Small wireless facilities; maximum height; other requirements.
(1)
Maximum size of permitted use. small wireless facilities,
and new, modified or replacement poles, to be used for collocation
of small wireless facilities may be placed in the public right-of-way
as a permitted use in accordance with this section, subject to the
following requirements:
(2)
Each new, modified or replacement pole installed
in the public ROW shall not exceed five feet above the tallest existing
pole, tower or support structure not exceeding 50 feet in the public
ROW, in place as of the effective date of this chapter, and located
within 500 feet of the new proposed pole; or 10 feet on utility distribution
poles where required by the electrical utility separation requirements.
(3)
Each modified or replacement pole installed in
the public ROW shall not exceed five feet above the height of the
structure being modified or replaced in place as of the effective
date of this chapter; or 10 feet on utility distribution poles where
required by the electrical utility separation requirements.
J.
Discretionary review requirements. The foregoing notwithstanding,
all applications shall be subject to any and all discretionary review
applicable to construction and placement of such facilities, e.g.,
building code, electrical permitting, zoning/land use, including but
not limited to any and all applicable aesthetic or other design criteria
for small wireless facilities and poles upon which small wireless
facilities are attached (collectively, the "design criteria") which
may be promulgated by the Engineering Department.
K.
Effect of permit.
(1)
City granted; no property right or other interest
created. A permit from the City authorizes an applicant to undertake
only certain activities in accordance with this chapter, and does
not create a property right or grant City to the applicant to impinge
upon the rights of others who may already have an interest in the
public ROW.
(2)
Duration. Any permit for construction issued under
this chapter shall be valid for a period of six months after issuance,
provided that the six-month period shall be extended for up to an
additional six months upon written request of the applicant (made
prior to the end of the initial six-month period) if the failure to
complete construction is delayed as a result of circumstances beyond
the reasonable control of the applicant.
L.
Other public ROW installation requirements:
(1)
General principles.
(a)
The City shall have the power to establish
reasonable and non-discriminatory limitations on the placement of
new or additional facilities within specific congested segments of
the public ROW if there is insufficient space to accommodate all of
the requests of applicants or other persons to occupy and use the
public ROW. In making such decisions, the City shall to the extent
possible accommodate all existing users and potential users (i.e.,
those who have submitted an application to deploy facilities within
the public ROW) of the public ROW, and shall be guided primarily by
considerations of the public interest, the width and physical condition
of the public ROW, the time of year with respect to essential utilities,
the protection of existing facilities in the public ROW and established
plans for public improvements and development projects which have
been determined to be in the public's interest.
(b)
Leasing of excess space in ducts, conduits
and on a pole is a matter between interested parties (subject to any
applicable pole attachment regulations and any other applicable statutory,
regulatory or contractual obligations); however, lessees or licensees
of such physical facilities must still comply with the terms of this
chapter, unless otherwise expressly exempted by the City.
(c)
An occupant of the public ROW shall employ
due care during the installation and maintenance process, and comply
with all safety and public ROW-protection requirements of applicable
federal, state and local laws (and any generally applicable City guidelines,
standards and practices), and any additional commonly accepted safety
and public ROW protection standards, methods and devices (to the extent
not inconsistent with applicable Laws). All facilities under the streets
of the City shall be kept and maintained in a safe and well-ordered
condition, and in good order and repair.
(d)
Any permittee occupying any portion of the
public ROW shall erect a barrier around the perimeter of any excavation
and provide any and all traffic-control devices, signs and lights
appropriate to the level of complexity of the activity in order to
protect, warn and guide the public (vehicular and pedestrian) through
the work zone. The manner and use of these devices shall be described
within a traffic-control plan in accordance with the Uniform Manual
of Traffic Control Devices.
(e)
Occupants of the public ROW with open excavations
awaiting final restoration shall maintain all devices until the City
notifies the occupant in writing that the City or the City's
designated contractor is assuming responsibility for traffic control.
(f)
Each occupant shall designate a safety officer.
The safety officer shall be responsible for safety-related issues
affecting both the public and the occupant's field employees
and contractors for all job sites within the public ROW.
(2)
Location of existing facilities.
(a)
An occupant of the public ROW shall not place
any fixtures or equipment where the same will interfere with any existing
facility, and shall locate its lines and equipment in such a manner
as not to interfere unnecessarily with the usual traffic patterns
(vehicular or pedestrian) or with the rights or reasonable convenience
of owners of property that abuts any public ROW.
(b)
To minimize disruption of public passage or
infrastructure, to forestall or relieve overcrowding of the public
ROW, or to protect historic property or environmentally sensitive
areas, the City may require, as a condition of issuing any permit
for placement of underground facilities, that the occupant place empty
conduits in excess of its own present and reasonably foreseeable requirements
for the purpose of accommodating the City's use. The occupant
shall cooperate with the City in any such construction, provided that
the City has first notified the occupant in writing that it is interested
in sharing the trenches or bores in the area where the construction
is occurring. The occupant shall allow the City to place its infrastructure
in the occupant's trenches and bores as requested by the City,
provided that the City incurs an incremental share of the costs of
trenching, boring, and placing the conduit/infrastructure. The City
shall be responsible for maintaining its facilities buried in the
trenches and bores or otherwise placed in the public ROW under this
subsection.
(c)
Before beginning excavation in any public
ROW, an occupant shall contact the regional notification center for
subsurface installations to determine possible conflicts.
(3)
Relocation of existing facilities.
(a)
If relocation of facilities is required as
a result of any public project, the City shall provide the greatest
practical advance notice to the affected occupants of the public ROW
and shall facilitate the greatest reasonable project coordination
among the affected occupants, wherein coordinated sequencing dependencies
are common.
(b)
Unless otherwise provided by applicable laws,
the occupant, at no cost to the City, shall accomplish the necessary
relocation within a reasonable time from the date of the notification,
but, in no event, no later than seven days prior to the date the City
has notified the occupant that it intends to commence its work which
mechanically requires the occupant's relocation, or immediately
in the case of emergencies. With as much notice as possible, but in
no event less than 180 days following written notice from the City,
an applicant shall, at its own expense, protect, support, temporarily
or permanently disconnect, remove, relocate, change or alter the position
of any communications facility.
(c)
Except as provided in Section 2.05[1] the City may not directly or indirectly require an applicant
to perform services unrelated to the communications facility or support
structure for which approval is sought, such as in-kind contributions,
except reserving fiber, conduit or pole space for the City. Notwithstanding
the foregoing, an applicant may offer in-kind contributions related
to communications facility or support structure for which approval
is sought, on a reasonable and nondiscriminatory basis, including
by contributing the cash value of an in-kind contribution already
provided by another party.
[1]
Editor's Note: So in original.
(d)
In the event of an emergency where any communications
facility in the public ROW creates or is contributing to an imminent
danger to health, safety, or property, the City may protect, support,
temporarily disconnect, remove, or relocate any or all parts of such
communications facility, and charge the occupant for actual and reasonable
costs incurred. The City shall engage the emergency contact information
of record or best available, if possible, for prior notice, and if
not possible because of emergent and imminent danger, shall notify
the occupant promptly afterwards. Ten days after notification as outlined
in this subsection, the City may remove any communications facilities
that obstructs the progress of a public project. All costs associated
with any removal or protection of communications equipment shall be
the sole responsibility of the applicant.
M.
Abandonment of facilities.
(1)
Any occupant of the public ROW that intends to
permanently discontinue use of any facilities within the public ROW
shall notify the City in writing within 30 days prior to abandonment.
Such notice shall describe the facilities for which the use is to
be discontinued, and the date of discontinuance of use. Following
notification, the City will choose from the following options or any
other agreed upon option, and so notify the occupant of its decision.
(2)
Abandon the facilities in place and the occupant
shall further convey full title and ownership of such abandoned facilities
to the City. The occupant is responsible for all obligations of the
facilities, or other associated liabilities, until the conveyance
to the City is completed; or
(3)
The facilities shall be removed and the occupant
shall be liable for removing the facilities at its own cost. If an
occupant fails to remove facilities that the City requires it to remove,
after 90 days' notice to the occupant, the City may perform the
work and shall be entitled to collect the cost from the occupant its
successors and/or assigns.
N.
Emergency removal or relocation of facilities. The
City retains the right and privilege to cut power to or move any communications
facility located within the public ROW of the City, as the City may
determine to be necessary, appropriate or useful in response to any
public welfare emergency, or safety emergency. If circumstances permit,
the City shall notify the applicant and provide the applicant an opportunity
to move its own facilities prior to cutting power to or removing the
communications facility and in all cases shall notify the applicant
after cutting power to or removing the communications facility as
promptly as reasonably possible.
O.
Attachment to City-owned poles in the public ROW; make-ready.
For any attachment to City-owned poles in the public ROW, the City
shall provide a good faith estimate for any make-ready work necessary
to enable the City-owned pole to support the proposed facility, including
replacement of the pole if necessary, within 60 days after receipt
of a completed application requesting attachment to the City-owned
pole. Make-ready work including any pole replacement shall be completed
within 120 days of written acceptance of the good faith estimate by
the applicant. Such acceptance shall be signified by payment via check
or other commercially reasonable and customary means specified by
the City.
