[Added 9-10-2001]
[Amended 8-25-2014]
A.
Purpose. Wireless telecommunication antennas may be installed, erected,
and maintained pursuant to the provisions of this section. The purpose
of this section is to balance the federal interest concerning the
construction, modification and placement of telecommunication antennas
for use in providing personal wireless service and the legitimate
interest of the Village of Elm Grove in administering local zoning.
The goals of this section are to minimize adverse impacts and promote
public health, welfare and safety.
B.
CLASS 1 CO-LOCATION
CLASS 2 CO-LOCATION
EQUIPMENT COMPOUND
MOBILE SERVICE
MOBILE SERVICE FACILITY
MOBILE SERVICE PROVIDER
MOBILE SERVICE SUPPORT STRUCTURE
SEARCH RING
SUBSTANTIAL MODIFICATION
(1)
(2)
(3)
(4)
SUPPORT STRUCTURE
TOWER
WIRELESS COMMUNICATION ANTENNAS
As used in this section, the following terms shall have the meaning set forth herein and in § 335-94:
The placement of a new Mobile Service Facility on an existing
Tower or Support Structure such that the owner of the facility does
not need to construct a freestanding Tower or Support Structure for
the Mobile Service Facility but does involve Substantial Modification.
The placement of a new Mobile Service Facility on an existing
Tower or Support Structure such that the owner of the facility does
involve constructing a freestanding Tower or Support Structure for
the Mobile Service Facility or involve Substantial Modifications.
The area surrounding or adjacent to the base of an existing
Support Structure within which a Mobile Service Facility is located.
Shall have the meaning given in Wisconsin Statutes § 66.040(1).
Set of equipment, Structures and network components, including
Wireless Communication Antennas, transmitters, receivers, base stations,
power supplies, cabling and associated equipment, necessary to provide
mobile service to a discrete geographic area, but does not include
the underlying support structure.
Shall have the meaning as defined in Wisconsin Statutes § 66.0304.
It is a person who provides Mobile Service.
A freestanding structure that is designed to support a Mobile
Service Facility.
Shape drawn on a map to indicate the general area within
which a mobile service Support Structure should be located to meet
radio frequency engineering requirements, taking into account relevant
factors including topography and the demographics of the service area.
The modification of a mobile service Support Structure, including
the mounting of a Wireless Communication Antenna on such structure
that does any of the following:
For a structure with an overall height of 200 feet or less,
increases the overall height of the structure by more than 20 feet.
For a structure with an overall height of more than 200 feet,
increases the overall height of the structure by 10% or more.
Increases the width of the tower by 20 feet or more (measured
at the level of the appurtenance added to the structure as a result
of the modification), unless a larger area is necessary for co-location.
Increases the square footage of an existing Equipment Compound
to a total area of more than 2,500 square feet.
An existing or new Structure that supports or can support
a Mobile Service Facility, or enclose, including a tower, Structure
utility pole, water tower, building or other structure.
Any structure that is designed and assembled or constructed
for the purpose of supporting one or more antennas for telephone,
radio, and similar communication purposes, including self-supporting
lattice towers, guyed towers or monopole towers.
Any transmitting or receiving device used for commercial
purposes and placed or mounted on a Tower, Building or Structure used
to radiate or capture wireless communication signals.
D.
Conditional use permit required.
(1)
A conditional use permit shall be required for the construction
of new Towers and Mobile Service Facilities or Substantial Modifications
and Class 1 co-locations that involve existing Towers, Support Structures
and Mobile Service Facilities.
E.
Conditional use application shall follow the provisions set forth in § 335-86E, or any amendments thereto, of the Village Code of Ordinances.
F.
General requirements. In addition to the requirements of this section, and § 335-86E, the following standards shall apply to the placement and installation of any Wireless Telecommunication Antennas, Towers, Mobile Service Facilities and Equipment Compounds:
(1)
All Wireless Communication Antennas shall meet or exceed current
standards and regulations, as amended from time to time, of the FCC
and any other agency of the state or federal government with the authority
to regulate antennas.
(2)
Wireless Communication Antennas shall not exceed 10 feet in
height.
(3)
The Wireless Communications Antenna, and appurtenant equipment
Mobile Service Facility, and Equipment Compound must be of neutral
color that is identical to, or closely compatible with, the color
of the Supporting Structure so as to make the antenna and related
equipment as visually unobtrusive as possible.
(4)
No advertising material or signage other than warning or equipment
information shall be allowed on any Wireless Communications Antenna,
Equipment Compound component, Tower, or Mobile Service Facility. This
includes flags, decorative signs, streamers, pennants, ribbons, spinners
or waving, fluttering or revolving devices.
(5)
Wireless Communication Antennas, Towers and Mobile Service Facilities
shall not be artificially illuminated unless required to comply with
current FAA or FCC standards. If lighting is required, the lighting
alternatives and design chosen must cause the least impacts to the
surrounding views.
(6)
Any screening necessary to enclose appurtenant antenna equipment
shall be of a material, color and design that will reflect the character
of the surroundings.
G.
Installation or modification of a Mobile Service Facility that is defined as a Class 2 Co-location shall be required to obtain a permit as specified under Chapter 106 of this Code. The permit applicant shall be required to provide the following information:
H.
Removal of abandoned Wireless Communication Antennas, Towers and
Mobile Service Facilities. A Wireless Communication Antenna, Tower
or Mobile Service Facility that is not operated for a continuous period
of 12 months shall be considered abandoned, and the owner of the structure
upon which such Wireless Communication Antenna, or Mobile Service
Facility is located shall remove the same within 90 days of receipt
of notice from the Village of Elm Grove.
[Added 10-28-2019]
A.
Definitions.
(1)
ADMINISTRATOR
APPLICANT
APPLICATION
BASE STATION
CO-LOCATE, CO-LOCATE ON, OR CO-LOCATION
ELIGIBLE FACILITIES REQUEST
FCC
RIGHT-OF-WAY
SMALL WIRELESS FACILITY
(a)
[1]
[2]
[3]
(b)
(c)
(d)
(e)
(f)
SUPPORT STRUCTURE
TECHNICALLY FEASIBLE
TOWER
UNDERGROUND AREAS
UTILITY POLE
VILLAGE
WIRELESS INFRASTRUCTURE PROVIDER
WIRELESS PERMIT OR PERMIT
WIRELESS PROVIDER
WIRELESS REGULATIONS
WIRELESS SERVICE PROVIDER
WIRELESS TELECOMMUNICATIONS EQUIPMENT
WIRELESS TELECOMMUNICATIONS FACILITY OR FACILITY
For the purposes of this section, the terms below shall have
the following meanings:
The Village Manager or his or her designee.
A wireless provider that submits an application.
A formal request, including all required and requested documentation
and information, submitted by an applicant to the Village of Elm Grove
for a wireless permit.
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.
The placement, mounting, replacement, modification, operation,
or maintenance of a small wireless facility on, or of ground-mounted
antenna equipment adjacent to, a structure.
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:
The Federal Communications Commission.
The area on, below, or above a highway, as defined in § 340.01(22), Wis. Stats., other than a federal interstate highway; sidewalk; utility easement, other than a utility easement for a cooperative association organized under ch. 185 for purposes of providing or furnishing heat, light, power, or water to its members only; or other similar property; including property owned or controlled by the Department of Transportation.
A wireless facility to which all of the following apply:
The wireless facility satisfies any of the following:
The wireless facility is mounted on a structure 50 feet or less
in height, including any antenna.
The wireless facility is mounted on a structure no more than
10% taller than any other adjacent structure.
The wireless facility does not increase the height of an existing
structure on which the wireless facility is located to a height of
more than 50 feet or by 10%, whichever is greater.
Each antenna associated with the deployment of the wireless
facility, excluding associated antenna equipment, is no more than
three cubic feet in volume.
All other wireless equipment associated with the wireless facility specified in Subsection (a), including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure, is no more than 28 cubic feet in volume.
The wireless facility does not require registration as an antenna
structure under 47 CFR Part 17.
The wireless facility is not located on tribal land, as defined
in 36 CFR 800.16(x).
The wireless facility does not result in human exposure to radio
frequency in excess of the applicable safety standards specified in
47 CFR 1.1307.
Any structure capable of supporting wireless telecommunications
equipment.
That by virtue of engineering or spectrum usage, the proposed
placement for a small or otherwise wireless facility, or its design,
concealment measures, or site location can be implemented without
a significant reduction in the functionality of same.
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.
Those areas where there are no electrical facilities or facilities
of the incumbent local exchange carrier in the right-of-way; or where
the wires associated with the same are or are required to be located
underground; or where the same are scheduled to be converted from
overhead to underground. Electrical facilities are distribution facilities
owned by an electric utility and do not include transmission facilities
used or intended to be used to transmit electricity at nominal voltages
more than 35,000 volts.
A pole that is used in whole or in part by a communications
service provider; used for electric distribution, lighting, traffic
control, signage, or a similar function; or used for the co-location
of small wireless facilities. Utility pole does not include a wireless
support structure or electric transmission structure.
The Village of Elm Grove.
Any person, other than a wireless services provider, that
builds or installs wireless communications transmission equipment,
antenna equipment, or wireless support structures.
A written authorization issued pursuant to this section allowing
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 any existing support structure
to which the wireless telecommunications facility is proposed to be
attached.
A wireless infrastructure provider or a wireless services
provider.
Those regulations adopted pursuant to Subsection E(2)(a) to implement the provisions of this section.
An entity that provides wireless services 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.
(2)
Definitions in this section may contain quotations or citations
to 47 CFR §§ 1.6100 and 1.6002. In the event that any
referenced section is amended, creating a conflict between the definition
as set forth in this section and the amended language of the referenced
section, the definition in the referenced section, as amended, shall
control.
B.
Purpose. In the exercise of its police powers, the Village has priority
over all other uses of the right-of-way. The purpose of this section
is to provide the Village 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's obligation to promote 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. The Village
recognizes the importance of wireless telecommunications facilities
to provide high-quality communications and Internet access services
to residents and businesses within the Village. The Village also recognizes
its obligation to comply with applicable federal and state laws regarding
the placement of wireless telecommunications facilities in the right-of-way,
including, without limitation, the Telecommunications Act of 1996
(47 U.S.C. § 151 et seq.), Section 6409(a) of the Middle
Class Tax Relief and Job Creation Act of 2012, §§ 182.017
and 196.58, Wis. Stats., and this section shall be interpreted consistent
with those provisions.
C.
Scope.
(1)
Applicability. Unless exempted by Subsection C(2), below, 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 section.
(2)
Exempt facilities. The provisions of this section (other than Subsections J through N) shall not be applied to applications for the following:
(a)
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
two utility poles linked by the strand.
(b)
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.
(c)
Placement or modification of a wireless telecommunications facility
on structures owned by or under the control of the Village.
(d)
Placement or modification of a wireless telecommunications facility
by Village staff or any person performing work under contract with
the Village.
(e)
Modification of an existing 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 either vehicular or pedestrian in the
traveled portion of a street, and if the work does not change the
visual or audible characteristics of the wireless telecommunications
facility.
D.
Nondiscrimination. In establishing the rights, obligations, and conditions
set forth in this section, it is the intent of the Village to treat
each applicant and right-of-way user in a competitively neutral and
nondiscriminatory manner, to the extent required by law, while taking
into account the unique technologies, situation, and legal status
of each applicant or request for use of the right-of-way.
E.
Administration.
(1)
Village Manager. The Village Manager is responsible for administering
this section.
(2)
Powers. As part of the administration of this section, the Village
Manager may:
(a)
Adopt and amend wireless regulations and fee schedules governing
the placement and modification of wireless telecommunications facilities,
which shall be deemed ratified by the Village Board 30 days after
notification by the Village Manager of the adoption of any amendments
thereto if no trustee requests that any part of an amendment be reconsidered
by the entire Board, in addition to but consistent with the requirements
of this Chapter, including regulations governing co-location, the
resolution of conflicting applications for placement of wireless telecommunications
facilities, and aesthetic standards.
(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 section.
(d)
Establish and update fees which encompass all direct and indirect
costs and expenses attributable to the evaluation, monitoring and
administration of the placement of a small wireless facility, including
but not limited to any related permit or fee associated with its placement
or installation within any right-of-way.
(e)
Collect any fees associated with the administration of any applicable
Village chapter or regulation.
(f)
Require, as a condition of completeness of any application,
notice to members of the public, at the sole expense of the applicant,
that may be affected by the placement or modification of the wireless
telecommunications facility that is the subject of the wireless permit
application.
(g)
Establish deadlines for submission of information related to
an application, and extend or shorten deadlines where appropriate
and consistent with federal laws and regulations.
(h)
Issue notices of incompleteness or requests for information
in connection with any wireless permit application.
(i)
Select and retain, at the sole expense of the applicant, independent
consultant(s) or attorney(s) with expertise in telecommunications
to review any issue that involves specialized or expert knowledge
in connection with any permit application.
(j)
Coordinate and consult with other Village staff, committees, and governing bodies to ensure timely action on all other required permits under Subsection F(2)(i) of this section.
(k)
Subject to appeal as provided in Subsection H(4) of this section, determine whether to grant, grant subject to conditions, or deny an application.
(l)
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.
F.
Application.
(1)
Format. Unless the wireless regulations provide otherwise, the
applicant must submit both a paper copy and an electronic copy (in
a searchable format) of any application, as well as any amendments
or supplements to the application or responses to requests for information
regarding an application, to the Village Manager. An application is
not complete until both the paper and electronic copies are received
by the Village Manager.
(2)
Content. In order to be considered complete, an application
must contain:
(a)
All information required pursuant to this and other relevant
chapters, the wireless regulations and forms and procedures applicable
thereto.
(b)
A completed application cover sheet signed by an authorized
representative of the applicant, agreeing to all necessary permit
conditions.
(c)
The complete legal name of the applicant (including any corporate
or trade name), and the name, address, email address, and telephone
number of the main office of the applicant and of a local representative
including his/her cell phone number. If the applicant is a wireless
infrastructure provider, the name, address, email address, and telephone
number of the main office and contact information for the wireless
service provider(s) that will be using the wireless telecommunications
facility must also be provided.
(d)
A statement of which shot clock or shot clocks apply to the
application and the reasons the chosen shot clocks apply.
(e)
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 unit. Before and
after 360° photo simulations must be provided for each facility.
(f)
At least four photographs taken of each site, support structure,
tower or utility pole that is proposed to be used by the applicant
showing a view of same from a North, South, East and West perspective.
(g)
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
for placement or modification of a wireless telecommunications facility
in the right-of-way, which notice must include:
(h)
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.
(i)
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 or interruption permits, and excavation
permits), with all engineering completed and with all fees associated
with each permit.
(j)
A certification for each support structure by a registered and
qualified engineer that the installation can be supported by and does
not exceed the tolerances of the structure on which it will be mounted
and that the specific place on the support structure where the wireless
telecommunications facility is intended to be placed or mounted is
in a suitable condition for such purpose and that all elements of
the wireless telecommunications facility comply with applicable safety
standards.
(k)
Payment of all required fees.
(l)
If an applicant should contend 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 may not supplement submitted
evidence if doing so would prevent the Village from complying with
any deadline for action on an application.
(m)
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. Before and
after 360° photo simulations must be provided with detailed specifications
demonstrating that the modification does not substantially change
the physical dimensions of the existing approved tower or base station.
(3)
Waivers. Requests for waivers from any requirement of this Subsection F shall be made in writing to the Village Manager. The Village Manager may grant a request for waiver if it is demonstrated that, notwithstanding the issuance of the waiver:
(a)
The Village 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; and
(b)
The Village will be able to conclude that the Village's
obligation to promote the public health, safety and welfare is not
compromised by the granting of a waiver.
(4)
Fees. 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 adjusted based on the costs
the Village expects to incur, with a review commencing by the first
anniversary of the effective date of this section.
(5)
Public records. 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
materials accordingly, and the Village shall endeavor to treat the
information as proprietary and confidential, subject to applicable
state (§§ 19.31 through 19.39, Wis. Stats.) and federal
public records law and the Village Manager's determination that
the applicant's request for confidential or proprietary treatment
of the application materials is reasonable. The Village shall not
be required to incur any costs to protect the application from disclosure
but can tender the defense of any public records complaint/action
to the applicant.
G.
General standards.
(1)
Generally. Wireless telecommunications facilities shall meet
the minimum requirements set forth in this Chapter and the wireless
regulations, in addition to the requirements of any other applicable
law or regulation.
(2)
Regulations. 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 Chapter and the wireless regulations may be waived,
but only to the extent required to avoid the prohibition.
(3)
Standards.
(a)
Wireless telecommunications facilities shall be installed and
modified in a manner that:
[1]
Minimizes risks to public safety;
[2]
Ensures that placement of facilities on existing
structures is within the tolerance and suitability of those structures
in consideration of all other fixtures planned for or existing thereon;
[3]
Avoids, where technically feasible, placement of
facilities in aboveground 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;
[4]
Maintains the integrity and character of the neighborhoods
and corridors in which the facilities are located;
[5]
Ensures that installations minimize the intrusion
on the right-of-way;
[6]
Ensures that the Village bears no risk or liability
as a result of the installations; and
[7]
Ensures that the 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.
(4)
Standard permit conditions. All wireless permits under this
section are issued subject to the following minimum conditions:
(a)
Compliance. The permit holder shall at all times maintain compliance with all applicable federal, state, and Village ordinances and regulations, and other rules. Violation of such provisions may result in forfeitures under Village of Elm Grove Code, § 1-16.
(b)
Term. 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. Otherwise, wireless permits shall be valid for a period of five years from the date of issuance unless revoked pursuant to Subsection I(2) of this section.
(c)
Contact information. The permit holder shall at all times maintain
with the Village accurate contact information for the permit holder
and all wireless service providers making use of the facility, which
shall include an office and cell phone number, mailing address, and
email address for at least one natural person and his or her backup
who shall be available 24/7 in the event of any emergency.
(d)
Emergencies. The Village 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.
(e)
Indemnities. The permit holder, by accepting a permit under
this section, agrees to indemnify, defend, and hold harmless the Village,
its elected and appointed officials, officers, employees, agents,
representatives, and volunteers (collectively, the "indemnified parties")
from and against any and all suits, actions, legal or administrative
proceedings, claims, demands, damages, liabilities, interest, attorneys'
fees, costs, and expenses of whatsoever kind or nature in any manner
caused in whole or in part, or claimed to be caused in whole or in
part, by reason of any act, omission, fault, or negligence, whether
active or passive, of the permit holder or anyone acting under its
direction or control or on its behalf, even if liability is also sought
to be imposed on one or more of the indemnified parties. The obligation
to indemnify, defend, and hold harmless the indemnified parties shall
be applicable even if the liability results from or in part from an
act or failure to act on the part of one or more of the indemnified
parties. However, the obligation does not apply if the liability results
from the willful misconduct of an indemnified party.
(f)
Adverse impacts on adjacent properties. 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 any wireless facility,
support structure or wireless telecommunications equipment.
(g)
General maintenance. The wireless communications facility or
equipment and any associated structures shall be maintained in a neat
and clean manner and in accordance with all approved plans and conditions
of approval.
(h)
Graffiti removal. All graffiti on facilities shall be removed
at the sole expense of the permit holder within 48 hours after notification
from the Village.
(i)
Relocation. At the request of the Village pursuant to Subsection J of this section, the permit holder shall promptly and at its own expense without right of reimbursement permanently remove and relocate any wireless telecommunications facility in the right-of-way.
(j)
Abandonment. The permit holder shall promptly notify the Village whenever a facility has not been in use for a continuous period of 60 days or longer and must comply with Subsection K of this section.
(k)
Restoration. A permit holder who removes or relocates a facility from the right-of-way must restore the right-of-way in accordance with Subsection L of this section.
(l)
Record retention. 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 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 permit holder.
(m)
Radio frequency emissions. 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 a permit issued pursuant to
this section.
(n)
Certificate of insurance. A certificate of insurance (except
an Accord 25) and all necessary endorsements demonstrating to the
satisfaction of the Village Attorney that the applicant has named
the Village, its officers, agents and employees as an additional insured
on a primary and contributing basis for general liability in an amount
of not less than $1,000,000 and has provided statutory workers compensation
coverage for liability that might arise out of the presence of the
facility in the right-of-way.
H.
Application processing and appeal.
(1)
Rejection for incompleteness. Notices of incompleteness shall
be provided in conformity with state, local, and federal law, including
47 CFR § 1.6003(d), as amended.
(2)
Processing timeline. Wireless permit applications [including applications for other permits under Subsection F(2)(i) necessary to place or modify the facility] and appeals will be processed in conformity with the shot clocks set forth in state, local, and federal law, as amended.
(3)
Written decision. In the event that an application is denied
[or approved with conditions beyond the standard permit conditions
set forth in Section 7(d)], the Village Manager shall issue a written
decision with the reasons therefor, supported by evidence contained
in a written record.
(4)
Appeal to Village Board. Any person adversely affected by the
decision of the Village Manager may appeal to the Village Board of
Trustees in writing detailing the basis for the appeal. An appeal
by a wireless infrastructure provider must be taken jointly with the
wireless service provider that intends to use the wireless telecommunications
facility.
(5)
Deadline for appeal.
(a)
Appeals that involve eligible facilities requests must be filed
within three business days of the written decision of the Village
Manager.
(b)
All other appeals not governed by Subsection H(5)(a), above, must be filed within 10 business days of the written decision of the Village Manager, unless the Village Manager extends the time therefor. An extension may not be granted where extension would result in approval of the application by operation of law.
(6)
Decision deadline. All appeals shall be conducted so that a
timely written decision may be issued in accordance with the applicable
shot clock.
I.
Expiration and revocation.
(1)
Expiration. 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.
Otherwise, 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:
(2)
Revocation for breach. A wireless permit may be revoked for
failure to comply with the conditions of the permit or applicable
federal, state, county or Village ordinance or regulations or rules.
Upon revocation, the wireless telecommunications facility must be
removed within 30 days of receipt of written notice from the Village.
All costs incurred by the Village in connection with the revocation,
removal, and right-of-way restoration shall be paid by the permit
holder.
(3)
Failure to obtain permit. Unless exempted from permitting by Subsection C(2) of this section, a wireless telecommunications facility installed without a wireless permit must be removed within 30 days of receipt of written notice from the Village. All costs incurred by the Village 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.
J.
Relocation. Except as otherwise prohibited by state or federal law,
a permit holder shall promptly, and at its own sole expense without
right of any reimbursement, 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 requests such
removal and relocation. The Village may make such a request to prevent
the facility from interfering with a present or future Village use
of the right-of-way or on a utility pole for designated services per § 66.0414(1)(y),
Wis. Stats.; a public improvement undertaken by the Village; an economic
development project in which the Village has an interest or investment;
when the public health, safety, or welfare require 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 except an abutting property owner, unless and until that entity
pays the reasonable costs of removal or relocation to the permit holder.
K.
Abandonment.
(1)
Cessation of use. In the event that a permitted facility within
the right-of-way is not in use for a continuous period of 60 days
or longer, the permit holder must promptly notify the Village and
do one of the following:
(a)
Provide information satisfactory to the Village Manager that
the permit holder's obligations for its facilities under this
section have been lawfully assumed by another permit holder.
(b)
Submit to the Village Manager a proposal and instruments for dedication of the facilities to the Village. If a permit holder proceeds under this Subsection K(1)(b), the Village may, at its option:
(2)
Abandoned facilities. Facilities of a permit holder who fails
to comply with Section 11(a) and which, for six months, remain unused
shall be deemed to be abandoned. Abandoned facilities are deemed to
be a public nuisance. In addition to any remedies or rights it has
at law or in equity, the Village may, at its option:
L.
Restoration. In the event that a permit holder removes or is required to remove a wireless telecommunications facility from the right-of-way under this section (or relocate it pursuant to Subsection H), the permit holder must restore the right-of-way to its prior condition in accordance with Village 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 Subsection L, the Village at its option may do such work. In that event, the permit holder shall pay to Village, within 30 days of billing therefor, the cost of restoring the right-of-way.
M.
Placement on Village-owned or-controlled structures. The Village
may negotiate agreements for placement of wireless telecommunications
facilities on Village-owned or -controlled structures in the right-of-way.
The agreement shall specify the compensation to the Village for use
of the structures. The person or entity seeking the agreement shall
reimburse the Village for all costs the Village incurs in connection
with its review of and action upon the request for an agreement.
N.
Severability. If any section, subsection, clause, phrase, or portion
of this section 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 section, which shall remain
in full force and effect.
