El Centro Municipal Code Div. 2 [small Wireless Facilities in the Public Right-of-Way]

Footnotes:

--- (2) ---

Editor's note— 18-13, § 2, adopted Dec. 18, 2018, set out provisions intended for use as Art. 1, Div. 1. For purposes of classification, and at the editor's discretion, these provisions have been included as Art 1, Div. 2.

For the purposes of this division, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:

(a) City facilities means existing city-owned structures located within the public right-of-way and excludes city directional and other signage, decorative poles, traffic signals and their power sources or streetlight power sources.

(b) Collocation means to install, mount, maintain, modify, operate, or replace additional wireless facilities on an existing structure located in the right-of-way.

(c) Decorative pole means an existing structure, replacement pole, or city facility designed as aesthetically decorative to carry out a community theme or design that incorporates artistic elements not typically found in the majority of city facilities. By means of example but not of limitation, "Decorative streetlight poles" are located in Main Street between 4 th Street to 8 th Street.

(d) Existing structure means any structure within a public way that is installed or approved for installation at the time collocation is requested and includes any structure within a public way that is currently supporting, designed to support, or capable of supporting the attachment of small wireless facilities, including utility poles and city facilities as defined in this division.

(e) FCC or Federal Communications Commission means the federal administrative agency, or lawful successor, authorized to regulate and oversee wireless service providers on a national level.

(f) Maintenance means any effort or expenditure taken or made to preserve, repair, or improve existing small wireless facilities in accordance with generally accepted industry standards.

(g) New pole means a structure placed in the public way pursuant to this division to support one or more small wireless facilities, including the underground supports and foundations for such facilities.

(h) Person means an individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including an authority.

(i) Public street means the surface of and the space above and below any public street, road, highway, avenue, sidewalk, median, bridge, alley or other public right-of-way, including non-paved surfaces, now or hereafter held by the city for the purpose of public travel, communications, street lighting, power distribution or related use.

(j) Public right-of-way or public way means and includes all public streets now or hereafter held or controlled by the city, to the extent of the city's right, title, interest or authority to allow use such streets for communications facilities as set out in this chapter. Public right-of-way does not include water and sewer easements.

(k) Replacement pole means a pole that replaces an existing structure.

(l) Small cell facility or small wireless facility means a wireless facility complying with the following design standards:

(1) Twenty-four (24) inches or smaller antenna or combination of antennas that will fit inside an enclosure of no more than six (6) cubic feet in volume.

(2) The antenna mounting location shall be on the top of the pole and include a cable shroud. Alternative locations or configurations require approval by the city engineer or his designee.

(3) Wires shall be contained within metal and concrete poles and shrouded with a sleeve on wooden poles.

(4) Pole mounted radio equipment shall not exceed seven (7) cubic feet in volume. Attachment brackets for radio equipment shall be shrouded with plates or other material that matches the radio equipment covering.

(5) Pole mounted integrated antenna and radio equipment may include up to three (3) radio antennas. The integrated equipment shroud shall not exceed eight (8) cubic feet in volume.

(6) The following types of associated equipment may be located outside the primary enclosure and are not included in the calculation of equipment volume when located away from a city facility or existing structure proposed to hold a small cell facility: electric meter, concealment, telecommunications demarcation box, ground-based enclosures, backup power system, grounding equipment, power transfer switch, cut-off switch, and cable and conduit runs for the connection of power and other services. Equipment that is concealed from public view within or behind an existing structure or concealment is not included in the volume calculations. Small cell facilities do not include the structure or improvements on, under or within which the equipment is collocated; wireline backhaul facilities; coaxial or fiber-optic cable that is between wireless support structures or poles; or coaxial or fiber optic cable that is otherwise not immediately adjacent to, or directly associated with, an antenna.

(7) The small cell facility must include a small sign placed on or near the radios, indicating the licensee name and a current 24/7 phone number to call.

(8) All new equipment on existing structures shall be painted to match the structure.

(9) The power and fiber attachment points shall be located in undergrounded "hand holes" near the base of the pole except in those cases where power and fiber is aerial to the subject pole.

(10) The city engineer may request a structural evaluation of existing structures.

(11) The applicant shall be provide evidence of a separate agreement with the power company.

(m) "Utility pole" means a structure owned, operated, or owned and operated by a public utility, local government other than the city, or by the state, located in the public right-of-way, that is designed specifically for and used to carry lines, cables, or wires for communications, cable television, or electricity and any structure that replaces an existing structure.

(n) Wireless services means (i) "personal wireless services" as defined in 47 U.S.C. § 332(c)(7)(C)(i); (ii) "personal wireless service facilities" as defined in 47 U.S.C. § 332(c)(7)(C)(ii), including commercial mobile services as defined in 47 U.S.C. § 332(d), provided to personal mobile communication devices through wireless facilities; and (iii) any other fixed or mobile wireless service, using licensed or unlicensed spectrum, provided using wireless facilities.

(o) Wireless services provider means a person who provides wireless service as well as a person who builds, installs, or maintains wireless communications transmission equipment, wireless facilities or wireless support structures. For purposes of this ordinance, the term shall refer to the provider seeking to place a small wireless facility in the right-of-way.

(Ord. No. 18-13, § 2, 12-18-18)

(a) Initial and an annual encroachment permit issued pursuant to and governed by this chapter shall be required for any location, placement or collocation of small wireless facilities in the public right-of-way.

(b) Each such encroachment permit shall be issued and enforced pursuant to the provisions of this chapter. Each encroachment permit authorizes an applicant to undertake only certain activities in accordance with this chapter, and does not create a property right or grant any authority whatsoever to the applicant to impinge upon the rights of others who may already have an interest in the public way.

(c) No construction may commence under the initial encroachment permit until the applicant has obtained a building permit and/or where applicable, an electrical permit. No maintenance shall commence until the applicant has obtained an annual encroachment permit.

(d) Annual encroachment permit: At the time the applicant obtains an initial encroachment permit, the applicant also shall obtain an ongoing encroachment permit to address traffic control and related issues of maintaining small wireless facilities in the public right-of-way. Depending upon the nature of the maintenance, a building and/or electrical permit may be required. No annual encroachment permit will be granted without payment of the annual fee set by the city council.

(Ord. No. 18-13, § 2, 12-18-18)

(a) The application for an encroachment permit shall be made on the encroachment permit application provided by the city, as that may be revised from time to time, shall be made by the wireless services provider, or its duly-authorized.

(b) The applicant may include up to five (5) small wireless facilities located within the same vicinity on each encroachment permit.

(c) The public works department shall review and process the application subject to the following requirements:

i. Within ten (10) business days of receiving an application, the city shall determine and notify the applicant whether the application is complete; and, if the application is incomplete, what information is missing.

ii. If the application is deemed incomplete, the applicant may cure the deficiencies identified by the city and resubmit the application within thirty (30) calendar days without paying an additional fee.

(d) There shall be a final decision to issue or deny the permit within sixty (60) business days of the submission of a complete application for collocation of a small wireless facility on an existing city facility located in the public right-of-way.

(e) There shall be a final decision within ninety (90) days of the submission of a complete application for placement of a small wireless facility on a new pole located in the public right-of-way.

(f) The city shall notify the applicant in writing of its final decision, and if the application is denied shall specify the basis for denial, citing specific code provisions from federal, state, or local codes provisions as to why the application was denied.

(g) The decision of the city engineer shall be final.

(Ord. No. 18-13, § 2, 12-18-18)

(a) In the interest of public health, safety and welfare and consistent with the city's ordinances and plans, the city may make or cause to be made improvements, repairs, or replacements of the public facilities located on public ways. Such construction activity commonly requires adjustment or relocation of public utilities. The city deems the right of public utilities to use public ways to be permissive and subordinate to the reasonable exercise of the city's police power. Thus, the cost of relocating a public utility installation shall not be borne by the city.

(b) The city retains the right to cut or move any small cell facility located within its public ways as the city, in its sole discretion, may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. If circumstances permit, the city shall notify the wireless provider an opportunity to move its own facilities prior to the city cutting or removing a facility.

(c) Upon abandonment of a small cell facility with the city public ways, the wireless services provider shall notify the city within ninety (90) calendar days of such abandonment.

(d) Abandonment shall occur when, at any point, a wireless services provider fails to pay any fee to the city or fails to respond within sixty (60) calendar days to a written inquiry from the city as to whether the wireless services provider intends to continue to operate, at which time the small cell facility shall be deemed abandoned and the city may, at its sole option, remove all or any portion of the small cell facility.

(e) The wireless services provider shall provide a bond as set out in the encroachment permit application to guarantee removal of the small wireless facility.

(Ord. No. 18-13, § 2, 12-18-18)

(a) Application fees. Unless otherwise provided by law, all applications for permits pursuant to this division shall be accompanied by a fee for actual costs incurred by the city related to processing the application as determined by an independent fee study and set by resolution of the city council.

(b) Annual rate. The annual rate to maintain small cell facilities on a city-owned pole in the public way shall be determined by an independent fee study and shall be set by city resolution.

(Ord. No. 18-13, § 2, 12-18-18)