[HISTORY: Adopted by the Village Board of
the Village of New Glarus 11-17-2020 by Ord. No. 20-06.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance was originally adopted as Ch.
306 but was renumbered to maintain the alphabetical organization of
the Code.
The purpose of this chapter is to provide the Village of New
Glarus with a process for managing, and uniform standards for acting
upon, requests for the placement of wireless telecommunications facilities
within the right-of-way consistent with the Village of New Glarus'
obligation to promise the public health, safety, and welfare; to manage
the right-of-way; and to ensure that the public's use is not
obstructed or incommoded by the use of the right-of-way for the placement
of wireless telecommunications facilities.
Every person who wishes to place a wireless telecommunications facility in the right-of-way or modify an existing wireless telecommunications facility in the right-of-way must obtain a wireless permit under this chapter. This chapter is intended to regulate communications towers and other telecommunications facilities, but not residential satellite dishes that are 36 inches or less in diameter, residential television antennas, amateur radio facilities, or signal-receiving antennas under § 305-60.
A.
Exempt facilities:
(1)
Installation of a small wireless facility on the strand between two
utility poles, provided that the cumulative volume of all wireless
facilities on the strand shall not exceed one cubic foot, and provided
further that the installation does not require replacement of the
strand, or excavation, modification, or replacement of either of the
utility poles.
(2)
Installation of a mobile cell facility (commonly referred to as "cell
on wheels" or "cell on truck") for a temporary period in connection
with an emergency or event, but no longer than required for the emergency
or event, provided that installation does not involve excavation,
movement, or removal of existing facilities.
(3)
Placement or modification of a wireless telecommunications facility
on structures owned by or under the control of the Village of New
Glarus.
(4)
Placement or modification of a wireless telecommunications facility
by the Village of New Glarus staff or any performing work under contract
with the Village of New Glarus.
(5)
Placement or modification of a wireless telecommunications facility
that makes no material change to the footprint of a facility or to
the surface or subsurface of a public street if the activity does
not disrupt or impede traffic in the traveled portion of a street,
and if the work does not change the visual or audible characteristics
of the wireless telecommunications facility.
For the purposes of this chapter, the terms below shall have
the following meanings:
A person filing an application for placement or modification
of a wireless telecommunications facility in the right-of-way.
A formal request, including all required and requested documentation
and information, submitted by an applicant to the Village of New Glarus
for a wireless permit under this chapter.
Means the same as in 47 CFR 1.6100(b)(1), which defines the
term to mean a structure or wireless telecommunications equipment
at a fixed location that enables FCC-licensed or authorized wireless
communications between user equipment and a communications network.
This definition does not include towers.
Means the same as in 47 CFR 1.6100(b)(3), which defines the
term to mean any request for modification of an existing tower or
base station that does not substantially change the physical dimensions
of such tower or base station, involving: i) co-location of new transmission
equipment; ii) removal of transmission equipment; or iii) replacement
of transmission equipment.
The Federal Communications Commission.
The surface of, and the space above and below the entire
width of, an improved or unimproved public roadway, highway, street,
bicycle lane, landscape terrace, shoulder, side slope, and public
sidewalk over which the Village of New Glarus exercises any rights
of management and control or in which the Village of New Glarus has
an interest.
Consistent with 47 CFR 1.6002(1), means a facility that meets
each of the following conditions:
The structure on which antenna facilities are mounted is 50
feet or less in height, or is no more than 10% taller than other adjacent
structures, or is not extended to a height of more than 50 feet or
by more than 10% above its preexisting height, whichever is greater,
as a result of co-location of new antenna facilities;
Each antenna (excluding associated antenna equipment) is no
more than three cubic feet in volume;
All other wireless equipment associated with the structure,
including the wireless equipment associated with the antenna and any
preexisting associated equipment on the structure, is cumulatively
no more than 28 cubic feet in volume;
The facility does not require antenna structure registration;
The facility is not located on tribal lands; and
The facility does not result in human exposure to radio frequency
radiation in excess of the applicable safety standards specified by
federal law.
Any structure capable of supporting wireless telecommunications
equipment.
Means the same as in 47 CFR 1.6100(b)(9), which defines the
term as any structure built for the sole or primary purpose of supporting
any Federal Communications Commission (FCC) licensed or authorized
antennas and their associated facilities, including structures that
are constructed for wireless communications services, including, but
not limited to, private, broadcast, and public safety services, as
well as unlicensed wireless services and fixed wireless services such
as microwave backhaul, and the associated site. This definition does
not include utility poles.
A structure in the right-of-way designed to support electric,
telephone, and similar utility distribution lines and associated equipment.
A tower is not a utility pole.
A person that owns, controls, operates, or manages a wireless
telecommunications facility or portion thereof within the right-of-way.
A permit issues pursuant to this chapter and authorizing
the placement or modification of a wireless telecommunications facility
of a design specified in the permit at a particular location within
the right-of-way, and the modification of an existing support structure
to which the wireless telecommunications facility is proposed to be
attached.
Those regulations adopted pursuant to § 301-4.
Any entity that provides wireless service to end users.
Equipment at a fixed location that enables FCC-licensed or
authorized wireless communications between user equipment and a communications
network.
A facility at a fixed location in the right-of-way consisting
of a base station, antennas and other accessory equipment, and a tower
and underground wiring if any, associated with the base station.
The Village Engineer is responsible for administering this chapter.
As part of the administration of this chapter, the Village Engineer
may:
A.
Adopt wireless regulations governing the placement and modification
of wireless telecommunications facilities in addition to but consistent
with the requirements of this chapter.
B.
Interpret the provisions of this chapter and the wireless regulations.
C.
Develop forms and procedures for submission of applications for wireless
permits consistent with this chapter.
D.
Collect any fees required by this chapter.
E.
Require, as a condition of completeness of any application, notice
to members of the public that may be affected by the placement or
modification of the wireless telecommunications facility that is the
subject of the wireless permit application.
F.
Establish deadlines for submission of information related to an application,
and extend or shorten deadlines where appropriate and consistent with
any wireless permit application.
G.
Issue notices of incompleteness or requests for information in connection
with any wireless permit application.
H.
Determine whether to grant, grant subject to conditions, or deny
an application.
I.
Take such other steps as may be required to timely act upon wireless
permit applications, including issuing written decisions and entering
into agreements to mutually extend the time for action on an application.
Unless the wireless regulations provide otherwise, the applicant
must submit an application, as well as any amendments or supplements
to the application or responses to requests for information regarding
an application, to the Village Engineer on forms approved by and in
a format acceptable to the Village Engineer.
A.
In order to be considered complete, an application must contain:
(1)
All information required pursuant to the wireless regulations.
(2)
A completed application cover sheet signed by an authorized representative
of the applicant, listing all standard permit conditions.
(3)
The name of the applicant (including any corporate or trade name),
and the name, address, email address, and telephone number of a local
representative. If the applicant is a wireless infrastructure provider,
the name and contact information for the wireless service provider(s)
that will be using the wireless telecommunications facility must also
be provided.
(4)
A statement of which shot clock or shot clocks apply to the application
and the reasons the chosen shot clocks apply.
(5)
A separate and complete description of each proposed wireless telecommunications
facility and the work that will be required to install or modify it,
including but not limited to detail regarding proposed excavations,
if any; detailed site plans showing the location of the facility and
technical specifications for each element of the facility, clearly
describing the site and all structures and facilities at the site
before and after installation or modification and identifying the
owners of such preexisting structures and facilities; and describing
the distance to the nearest residential dwelling unity. Within 10
days of submission of the application, the Village Engineer may require
the applicant to submit before-and-after 360° photo simulations
for each facility covered by the application. Failure to provide these
photos within 10 days of request shall be considered nonresponsive,
and the application shall be considered incomplete.
(6)
Proof that the applicant has mailed to the owners of all property
within 300 feet of the proposed wireless telecommunications facility
a notice that the applicant is submitting an application to the Village
of New Glarus for placement or modification of a wireless telecommunications
facility in the right-of-way, which notice must include i) the proposed
location of the facility, ii) a description and scale image of the
proposed facility, and iii) an email address and phone number for
a representative of the applicant who will be available to answer
questions from members of the public about the proposed project.
(7)
A copy of the FCC license for the facility or a sworn written statement
from the applicant attesting that the facility will comply with current
FCC regulations.
(8)
To the extent that filing of the wireless permit application establishes
a deadline for action on any other permit that may be required in
connection with the wireless telecommunications facility, the application
must include complete copies of applications for every required permit
(including without limitation electrical permits, building permits,
traffic control permits, and excavation permits), with all engineering
completed and with all fees associated with each permit.
(9)
A sealed report by a professional engineer registered in the State
of Wisconsin that the installation can be supported by and does not
exceed the tolerances of the structure on which it will be mounted
and that all elements of the wireless telecommunications facility
comply with applicable safety standards.
(10)
Payment of all required fees, including any unpaid fees owed
by the applicant to the Village under this section.
(11)
If an applicant contends that denial of the application would
prohibit or effectively prohibit the provision of service in violation
of federal law, or otherwise violate applicable law, the application
must provide all evidence on which the applicant relies in support
of that claim. Applicants are not permitted to supplement this evidence
if doing so would prevent the Village of New Glarus from complying
with any deadline for action on an application.
(12)
If the application is an eligible facilities request, the application
must contain information sufficient to show that the application qualifies
as an eligible facilities request under 47 CFR 1.6100(b)(3), including
evidence that the application relates to an existing tower or base
station that has been approved by the Village of New Glarus, and detailed
specifications demonstrating that the modification does not substantially
change the physical dimensions of the existing approved tower or base
station. Within 10 days of submission of the application, the Village
Engineer may require the applicant to submit before-and-after 360°
photo simulations for each eligible facility request covered by the
application. Failure to provide these photos within 10 days of request
shall be considered nonresponsive, and the application shall be considered
incomplete.
(13)
Requests for waivers from any requirement of this section shall
be made in writing to the Village Engineer. The Village Engineer may
grant a request for waiver if it is demonstrated that, notwithstanding
the issuance of the waiver, the Village of New Glarus will be provided
with all information necessary to understand the nature of the construction
or other activity to be conducted pursuant to the wireless permit
sought.
(14)
The applicant must provide an application fee and shall be required
to pay all costs reasonably incurred in reviewing the application,
including costs incurred in retaining outside consultants. Fees shall
be reviewed periodically and raised or lowered based on the costs
the Village of New Glarus expects to incur.
(15)
Applications are public records that may be made publicly available
pursuant to state and federal public records law. Notwithstanding
the foregoing, the applicant may designate portions of the application
materials that it reasonably believes contain proprietary or confidential
information by clearly marking each portion of such material accordingly,
and the Village of New Glarus shall endeavor to treat the information
as proprietary and confidential, subject to applicable state and federal
public records law and the Village Engineer's determination and
the applicant's request for confidential or proprietary treatment
of the application materials is reasonable. The Village of New Glarus
shall not be required to insure any costs to protect the application
from disclosure and makes no representations of such confidential
treatment.
Wireless telecommunications facilities shall meet the minimum
requirements set forth in this section and the wireless regulations,
in addition to the requirements of any other applicable law or regulation.
A.
The wireless regulations and decisions on wireless permits shall,
at a minimum, ensure that the requirements of this chapter are satisfied,
unless it is determined that the applicant has established that denial
of an application would, within the meaning of federal law, prohibit
or effectively prohibit the provision of telecommunications or personal
wireless services, or otherwise violate applicable laws or regulations.
If that determination is made, the requirements of this section and
the wireless regulations may be waived, but only to the extent required
to avoid the prohibition.
B.
Wireless telecommunications facilities shall be installed and modified
in a manner that:
(1)
Ensures that placement of facilities on existing structures is within
the tolerance of those structures.
(2)
Avoids placement of aboveground facilities in underground areas,
installation of new support structures or equipment cabinets in the
public right-of-way, or placement in residential areas when commercial
areas are reasonably available;
(3)
Maintains the integrity and character of the neighborhoods and corridors
in which the facilities are located;
(4)
Ensures that the Village bears no risk or liability as a result of
the installations; and
(5)
Ensures that applicant's use does not inconvenience the public,
interfere with the primary uses of the right-of-way, or hinder the
ability of the Village or other government entities to improve, modify,
relocate, abandon, or vacate the right-of-way or any portion thereof,
or to cause the improvement, modification, relocation, vacation, or
abandonment of facilities in the right-of-way.
C.
No wireless permit shall be issued unless i) the wireless service
provider applicant has immediate plans to use the proposed facility
or ii) the wireless infrastructure applicant has a contract with a
wireless service provider that has immediate plans to use the proposed
facility.
D.
In no event may ground-mounted equipment interfere with pedestrian
or vehicular traffic and at all times must comply with the requirements
of the Americans with Disabilities Act of 1990.
E.
Standard permit conditions. All wireless permits under this chapter
are issued subject to the following minimum conditions:
(1)
The permit holder shall at all times maintain compliance with all
applicable federal, state, and local laws, regulations, and other
rules.
(2)
A wireless permit issued pursuant to an eligible facilities request
shall expire at the same time the permit for an underlying existing
wireless telecommunications facility expires. All other wireless permits
shall be valid for a period of five years from the date of issuance
unless revoked.
(3)
Work to install a permitted facility shall commence within 12 months
and be completed no later than 15 months from issuance of a permit
under this section. Failure to comply with this requirement shall
result in the expiration of the permit, unless the Village Engineer,
upon application by the permittee and a showing of good cause, grants
additional time for the work to commence or be completed.
(4)
The Village of New Glarus shall have the right to support, repair,
disable, or remove any elements of the facilities in emergencies or
when the facility threatens imminent harm to persons or property.
(5)
By accepting this permit, the permittee agrees to hold harmless,
defend, and indemnify the Village, its officers, officials, employees
and agents, from and against all claims, suits, liability, damages,
expenses and penalties arising from the permittee's activities
under this permit, whether caused by or contributed to by the negligence
of the Village, its officers, officials, employees and agents.
(6)
The permit holder shall undertake all reasonable efforts to avoid
undue adverse impacts to adjacent properties and/or uses that may
arise from the construction, operation, maintenance, modification,
or removal of the facility.
(7)
The wireless communications facility and any associated structures
shall be maintained in a neat and clean manner and in accordance with
all approved plans and conditions of approval.
(8)
All graffiti on facilities shall be removed at the sole expense of
the permit holder within 48 hours after notification from the Village
of New Glarus.
(9)
At the request of the Village of New Glarus pursuant to § 301-9 of this chapter, the permit holder shall promptly and at its own expense permanently remove and relocate any wireless telecommunications facility in the right-of-way.
(10)
The permit holder shall promptly notify the Village of New Glarus whenever a facility has not been in use for a continuous period of 60 days or longer and must comply with § 301-10 of this chapter.
(11)
A permit holder who removes or relocates a facility from the right-of-way must restore the right-of-way in accordance with § 301-11 of this chapter.
(12)
The permit holder shall retain full and complete copies of all
permits and other regulatory approvals issued in connection with the
facility, which includes without limitation all conditions of approval,
approved plans, resolutions, and other documentation associated with
the permit or regulatory approval. In the event the Village of New
Glarus cannot locate any such full and complete permits or other regulatory
approvals in its official records, and the permit holder fails to
retain full and complete records in the permit holder's files,
any ambiguities or uncertainties that would be resolved through an
examination of the missing documents will be conclusively resolved
against the permittee.
(13)
Every wireless facility shall at all times comply with applicable
FCC regulations governing radio frequency emissions, and failure to
comply with such regulations shall be treated as a material violation
of the terms of the permit.
(14)
Certificate of insurance. A certificate of insurance sufficient
to demonstrate to the satisfaction of the Village Engineer that the
applicant has the capability to cover any liability that might arise
out of the presence of the facility in the right-of-way.
F.
The Village Engineer may add special conditions to a permit issued
under this section that are reasonably necessary to protect the public's
health, safety and welfare, including after the issuance of the permit,
provided such special conditions are not contrary to any federal,
state or local law or regulation.
A.
Notices of incompleteness shall be provided in conformity with state,
local and federal law, in particular, 47 CFR 1.6003(d), as amended.
B.
Wireless permit applications and appeals will be processed in conformity
with shot clocks set forth in state, local, and federal law, as amended.
C.
In the event that an application is denied (or approved) with conditions
beyond the standard permit conditions, the Village Engineer shall
issue a written decision with the reasons therefor, supported by substantial
evidence contained in a written record.
D.
Any person adversely affected by the decision of the Village Engineer
may appeal that decision to the Village of New Glarus Board, which
may decide the issues de novo, and whose written decision will be
the final decision of the Village. An appeal by a wireless infrastructure
provider must be taken jointly with the wireless service provider
that intends to use the wireless telecommunications facility.
E.
Appeals that involve eligible facilities requests must be filed within
three business days of the written decision of the Village Engineer.
F.
All other appeals must be filed within 10 business days of the written
decision of the Village Engineer, unless the Village Engineer extends
the time therefor. An extension may not be granted where extension
would result in approval of the application by operation of law.
G.
Decision deadline. All appeals shall be conducted so that a timely
written decision may be issued in accordance with the applicable shot
clock. Within 20 days after the hearing, the Board shall cause to
be issued a written decision which shall affirm, reverse or modify
the determination of the Village Engineer, and state the reasons for
this decision that are supported by the record.
A.
A wireless permit issued pursuant to an eligible facilities request
shall expire at the same time the permit for the underlying existing
wireless telecommunications facility expires. All other wireless permits
shall be valid for a period of five years from the date of issuance.
Upon expiration of the wireless permit, the permit holder must either:
(1)
Remove the wireless telecommunications facility; or
(2)
Submit an application to renew the permit at least 90 days prior
to its expiration. The facility must remain in place until the renewal
application is acted on by the Village of New Glarus and any appeals
from the Village of New Glarus' decision are exhausted.
B.
A wireless permit may be revoked for failure to comply with the conditions
of the permit or applicable federal, state, or local laws, rules,
or regulations. Upon revocation, the wireless telecommunications facility
must be removed within 30 days of receipt of written notice from the
Village of New Glarus. All costs incurred by the Village of New Glarus
in connection with the revocation, removal, and right-of-way restoration
shall be paid by the permittee.
C.
Unless exempted from permitting under this chapter, a wireless telecommunications
facility installed without a wireless permit must be removed within
30 days of receipt of written notice from the Village of New Glarus.
All costs incurred by the Village of New Glarus in connection with
the notice, removal, and right-of-way restoration shall be paid by
entities who own or control any part of the wireless telecommunications
facility.
Except as otherwise prohibited by state or federal law, a permit
holder must promptly and at its own expense, with due regard for seasonal
working conditions, permanently remove and relocate any of its wireless
telecommunications facilities in the right-of-way whenever the Village
of New Glarus requests such removal and relocation. The Village of
New Glarus may make such a request to prevent the facility from interfering
with a present or future Village of New Glarus use of the right-of-way;
a public improvement undertaken by the Village of New Glarus; an economic
development project in which the Village of New Glarus has an interest
or investment; when the public health, safety, or welfare requires
it; or when necessary to prevent interference with the safety and
convenience of ordinary travel over the right-of-way. Notwithstanding
the foregoing, a permit holder shall not be required to remove or
relocate its facilities from any right-of-way that has been vacated
in favor of a nongovernmental entity unless and until that entity
pays the reasonable costs of removal or relocation to the permit holder.
A.
In the event that a permitted facility within the right-of-way is
not in use for continuous period of 60 days or longer, the permit
holder must promptly notify the Village of New Glarus and do one of
the following:
(1)
Provide information satisfactory to the Village Engineer that the
permit holder's obligations for its facilities under this chapter
have been lawfully assumed by another permit holder.
(2)
Submit to the Village Engineer a proposal and instruments for dedication of the facilities to the Village of New Glarus. If a permit holder proceeds under this § 301-10A(2), the Village of New Glarus may, at its option:
In the event that a permit holder removes or is required to remove a wireless telecommunications facility from the right-of-way under this chapter (or relocate it pursuant to § 301-9), the permit holder must restore the right-of-way to its prior condition in accordance with Village of New Glarus specifications. However, a support structure owned by another entity authorized to maintain that support structure in the right-of-way need not be removed but must instead be restored to its prior condition. If the permit holder fails to make the restorations required by this § 301-11, the Village of New Glarus at its option may do such work. In the event, the permit holder shall pay to the Village of New Glarus, within 30 days of billing therefor, the cost of restoring the right-of-way.
The Village of New Glarus may negotiate agreements for placement
of wireless telecommunications facilities on Village of New Glarus
owned or controlled structures in the right-of-way. The agreement
shall specify the compensation to the Village of New Glarus for use
of the structures. The person or entity seeking the agreement shall
reimburse the Village of New Glarus for all costs the Village of New
Glarus incurs in connection with its review of and action upon the
request for an agreement.
If any section, subsection, clause, phrase, or portion of this
chapter is for any reason held to be illegal or otherwise invalid
by any court or administrative agency of competent jurisdiction, such
illegal or invalid portion shall be severable and shall not affect
or impair any remaining portion of this chapter, which shall remain
in full force and effect.
