Chapter 16.135 SMALL CELL FACILITIES IN PUBLIC RIGHTS-OF-WAY

Chapter 16.135
SMALL CELL FACILITIES IN PUBLIC RIGHTS-OF-WAY Revised 9/22

Sections:

16.135.010 Purpose and scope. Revised 9/22

16.135.020 Definitions. Revised 9/22

16.135.030 General standards. Revised 9/22

16.135.040 Design standards and technical requirements for small cell facilities in the rights-of-way. Revised 9/22

16.135.050 Siting requirements. Revised 9/22

16.135.060 Waivers. Revised 9/22

16.135.070 Undergrounding. Revised 9/22

16.135.080 Permit required – Application process. Revised 9/22

16.135.090 Substantive review timelines. Revised 9/22

16.135.100 Substantive review process. Revised 9/22

16.135.110 Substantive review criteria – Burden of proof – Denial. Revised 9/22

16.135.120 Post approval provisions. Revised 9/22

16.135.130 Liability. Revised 9/22

16.135.010 Purpose and scope. Revised 9/22

(a) Purpose. The purpose of this chapter is to establish policies and procedures for the placement of small cell facilities, utility poles and stand-alone poles in rights-of-way within the town’s jurisdiction, which will provide public benefit consistent with the preservation of the integrity, safe usage, and visual qualities of the town rights-of-way and the town as a whole. Notwithstanding the above, nothing in this chapter authorizes the placement of macro facilities in the rights-of-way which are prohibited in the rights-of-way.

(b) Intent. In enacting this chapter, the town is establishing uniform standards to address issues presented by small cell facilities, including, without limitation, to:

(1) Limit interference with the use of streets, sidewalks, alleys, parkways, public utilities, public views, certain town corridors, and other public ways and places;

(2) Limit the creation of visual and physical obstructions and other conditions that are hazardous to vehicular and pedestrian traffic;

(3) Limit interference with the facilities and operations of other facilities lawfully located in rights-of-way or public property;

(4) Limit environmental damage, including damage to trees;

(5) Respect the character of the neighborhoods and other areas in which facilities are installed; and

(6) Facilitate efficient but responsible deployment of small cell facilities to provide the benefits of advanced wireless services. [Ord. 960 § 1, 2021].

16.135.020 Definitions. Revised 9/22

When used in this chapter, the following terms and phrases shall have the following meanings, unless the context indicates otherwise:

“Antenna” means an apparatus designed for the purpose of emitting radiofrequency (RF) signals, to be operated or operating from a fixed location for the provision of personal wireless service and any commingled information services.

“Applicable codes” means uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization, or local amendments to those codes, enacted solely to address imminent threats of destruction of property or injury to persons, to the extent not inconsistent with this chapter.

“Applicant” means a person or entity that submits an application to site, install, collocate or modify a small cell facility in the rights-of-way, and the agents, employees, and contractors of such person or entity.

“Application” means a request submitted by an applicant (1) for a permit to install, collocate, or modify small cell facilities; or (2) to approve the installation or modification of a wireless support structure or utility pole associated with a collocated wireless facility.

“Application fee” means a one-time charge set by ordinance or resolution of the board of trustees to offset costs incurred by the town in reviewing applications.

“Code” means the Granby Municipal Code.

“Collocate” means the mounting or installing of a small cell facility on a pre-existing structure, and/or modifying a structure for the purpose of mounting or installing a small cell facility on that structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.

“Communications service provider” means a cable operator, as defined in 47 U.S.C. Section 522(5); a provider of information service, as defined in 47 U.S.C. Section 153(24); a telecommunications carrier, as defined in 47 U.S.C. Section 153(51); or a wireless provider.

“Day” means calendar day.

“Emergency” means a condition that (1) constitutes a clear and immediate danger to the health, welfare, or safety of the public; or (2) has caused or is likely to cause facilities in the rights-of-way to be unusable and result in loss of the services provided.

“FCC” means the Federal Communications Commission of the United States.

“Law” means federal, state, or local law, statute, common law, code, rule, regulation, order, or ordinance.

“Micro wireless facility” means a small wireless facility that is no larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height; and that has an exterior antenna, if any, that is no more than 11 inches in length.

“Operator” means a person who operates and controls a small cell facility in the rights-of-way, but does not own such facility.

“Owner” means a person who owns a small cell facility in the rights-of-way.

“Person” means an individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including the town.

“Radiofrequency compliance report” means the RF exposure compliance report that certifies that the proposed small cell facility, as well as any collocated wireless facilities, will comply with applicable federal RF exposure standards and exposure limits. The RF report must be prepared and certified by an RF engineer acceptable to the town. The RF report must include the actual frequency and power levels (in watts effective radiated power) for all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess of the controlled/occupational limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site.

“Recurring charge” means a recurring charge set by ordinance or resolution of the town board of trustees for wireless provider access to the ROW and attachment of facilities to town poles.

“Replacement pole” means a newly constructed utility pole designed to support a small cell facility, micro cell facility, or to accommodate collocation, which replaces a utility pole in the same location.

“Rights-of-way” or “ROW” means the area on, below, above, or adjacent to a roadway, highway, street, sidewalk, alley, or utility easement which has been lawfully dedicated to or reserved by the town as a public right-of-way.

“Signal non-interference letter” means a letter from the applicant certifying that the proposed small cell facilities that are the subject of the application shall be designed, sited, and operated in accordance with applicable federal regulations addressing radio frequency interference.

“Small cell facility” means a wireless communications facility where each antenna is located inside an enclosure of no more than three cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than three cubic feet; and primary equipment enclosures are no larger than 17 cubic feet in volume. The following associated equipment may be located outside of the primary equipment enclosure and, if so located, is not included in the calculation of equipment volume: electric meter, concealment, telecommunications demarcation box, ground-based enclosure, back-up power systems, grounding equipment, power transfer switch and cut-off switch. The definition of a small cell facility shall also include a micro cell or micro cell facility.

“Stand-alone pole” means a pole erected for the sole or primary purpose of housing small cell facilities.

“Town” means the town of Granby.

“Town manager” means the town manager of the town of Granby or the town manager’s designee.

“Town pole” means a utility pole owned, managed, or operated by or on behalf of the town.

“Utility pole” means a pole or similar structure that is used in whole or in part for the purpose of carrying electric distribution lines or cables or wires for telecommunications, cable or electric service, or for lighting. Such term shall not include structures supporting only wireless facilities. This term shall include light standards.

“Wireless communications facility” or “WCF” shall mean a facility used to provide personal wireless services as defined at 47 U.S.C. Section 332(c)(7)(C); or wireless information services provided to the public or to such classes of users as to be effectively available directly to the public via licensed or unlicensed frequencies; or wireless utility monitoring and control services. A WCF does not include a facility entirely enclosed within a permitted building where the installation does not require a modification of the exterior of the building; nor does it include a device attached to a building, used for serving that building only and that is otherwise permitted under other provisions of the code. The term does not include mobile transmitting devices used by wireless service subscribers, such as vehicle or hand-held radios/telephones and their associated transmitting antennas, nor does it include other facilities specifically excluded from the coverage of this chapter. [Ord. 960 § 1, 2021].

16.135.030 General standards. Revised 9/22

(a) Federal Requirements. All small cell facilities shall meet the current standards and regulations of the Federal Aviation Administration (FAA), the Federal Communications Commission (FCC) and any other agency of the federal government with the authority to regulate small cell facilities. If such standards and regulations are changed, then the owners of the small cell facility shall bring such facility into compliance with such revised standards and regulations within the time period mandated by the controlling federal agency. Unless preempted by federal law or mutually agreed to by the parties, failure to meet such revised standards and regulations shall constitute grounds for the removal of the facility at the owner’s expense.

(b) Operation and Maintenance. To ensure the structural integrity of small cell facilities, the owner of a small cell facility shall ensure it is maintained in compliance with the standards contained in the building and electrical codes, as applicable and adopted by the town from time to time. The owner of a small cell facility shall ensure ongoing compliance, operation and maintenance consistent with the town’s approval, including but not limited to the upkeep of site landscaping, paint and surface treatments, litter removal, fence or screening repair, and general maintenance to assure a clean, well-kept facility. If upon inspection, the town concludes that a small cell facility fails to comply with such codes and constitutes a danger to persons or property, then, upon written notice being provided to the owner, the owner shall have 30 days from the date of notice to bring the small cell facility into compliance. Upon good cause shown by the owner and meeting reasonable safety considerations, the town may extend such compliance period, not to exceed 90 days from the date of said notice. If the owner fails to bring such small cell facility into compliance within said time period, the town may remove such small cell facility at the owner’s expense.

(c) Abandonment and Removal. If a small cell facility has not been in use for a period of three months, the owner of the small cell facility shall notify the town of the non-use and shall indicate whether re-use is expected within the ensuing three months. Any small cell facility that is not operated for a continuous period of six months shall be considered abandoned. The town, in its sole discretion, may require an abandoned small cell facility to be removed. The owner of such small cell facility shall remove the same within 30 days of receipt of written notice from the town. If such small cell facility is not removed within 30 days, the town may remove it at the owner’s expense and any approved permits for the small cell facility shall be deemed to have expired.

(d) Town Rights-of-Way Work. Within 90 days following written notice from the town, an owner or operator shall, at its own expense, protect, support, temporarily or permanently disconnect, remove, relocate, change, or alter the position of any small cell facility for which it has a permit hereunder whenever the town has determined that such removal, relocation, change or alteration, is reasonably necessary for the construction, repair, maintenance, or installation of any town improvement in or upon, or the operations of the town in or upon, the ROW.

(e) Emergency Removal or Relocation of Facilities. The town retains the right to remove all or part of any permitted small cell facility located within the ROW, as the town may determine to be necessary, appropriate, or useful in response to any public health or safety emergency, such as, by way of example and not limitation, if a pole is damaged by a moving vehicle and falls or is at risk of falling into that part of the ROW used for vehicular or pedestrian traffic. If circumstances permit, the town shall notify the owner and provide it an opportunity to move its small cell facilities prior to cutting or removing them, and in all circumstances shall promptly notify the owner after cutting or removing a permitted facility or structure.

(f) Collocation. No owner or operator of a small cell facility shall unreasonably exclude a wireless competitor from using the same facility or location. Upon request by the town manager, the owner or operator shall provide evidence explaining why collocation is not possible at a particular facility or site.

(g) Hazardous Materials. No hazardous materials shall be permitted in association with small cell facilities, except those necessary for the operations of the small cell facilities and only in accordance with all applicable laws governing such materials.

(h) Lighting. Small cell facilities shall not be artificially lighted, unless required by the FAA or other applicable governmental authority, or the small cell facility is mounted on a light pole or other similar structure primarily used for lighting purposes. If lighting is required, the town may review the available lighting alternatives and approve the design that would cause the least disturbance to the surrounding views. Lighting shall be shielded or directed to the greatest extent possible so as to minimize the amount of glare and light falling onto nearby properties, particularly residences.

(i) Small Cell Facilities in the Rights-of-Way. All requests to locate small cell facilities in the rights-of-way shall be reviewed for compliance with the applicable section or sections of this chapter and the federal and state rules in effect at the time the application is received. [Ord. 960 § 1, 2021].

16.135.040 Design standards and technical requirements for small cell facilities in the rights-of-way. Revised 9/22

The following design and landscaping standards apply to small cell facilities governed by this chapter; provided, however, that the town manager may waive any of these requirements if the town manager determines that the goals of this section are better served thereby. To that end, small cell facilities shall be designed and located to minimize the impact on the surrounding area and to maintain the character and appearance of the town, consistent with other provisions of this code.

(a) Camouflage, Concealment, or Camouflage Design Techniques. All small cell facilities and any transmission equipment shall, to the extent technically feasible, use camouflage design techniques and not be readily apparent. Techniques may include, but not be limited to, the use of materials, colors, textures, screening, undergrounding, or other design options that will blend the small cell facility to the surrounding natural setting and/or built environment. Design, materials and colors of the small cell facilities shall be compatible with the surrounding environment. Designs shall be compatible with structures and vegetation on sites located in the rights-of-way and on adjacent parcels.

(1) Camouflage design may be of heightened importance where findings of particular sensitivity are made (e.g., proximity to historic or aesthetically significant structures and/or natural or community features, or in a growth management area). Should the town manager determine that small cell facilities are located in areas of high visibility, they shall (where possible) be designed (including but not limited to camouflaged, placed underground, depressed, or located behind earth berms) to minimize their profile at the request of the town manager.

(2) All small cell facilities shall be constructed out of or finished with nonreflective materials (visible exterior surfaces only).

(b) New small cell facilities in the ROW may not extend more than eight feet above any structure in place in the ROW as of the effective date of the ordinance codified in this chapter.

(d) All new poles supporting small cell facilities shall substantially match the color of the other metal poles (e.g., light poles) in the vicinity of the new pole.

(e) All small cell facilities shall blend in color with the wireless support structure on which they are installed.

(f) All ground based equipment shall be installed on or within the utility pole supporting the small cell facility, or collocated within an equipment cabinet, unless the applicant demonstrates that such installation or collocation is not feasible. All ground based accessory equipment shall be set back from trails and sidewalks a minimum of three feet and shall be clearly marked with a wand so that the equipment is visible during the winter months.

(g) Wires and cables connecting the antenna and appurtenances serving the small cell facility shall:

(1) Be installed in accordance with the version of the National Electrical Code and National Electrical Safety Code adopted by the town and in force at the time of installation;

(2) Be located within a wireless support structure or utility pole or, if not technically feasible, located within a fully enclosed sheathing attached to the wireless support structure or utility pole. Such sheathing shall be the same color as the wireless support structure, or similar color to the utility pole, shall be limited in size to that necessary to cover the wiring or cabling, and may not extend out from the wireless support structure by more than four inches in circumference, or the minimum necessary to comply with applicable safety codes; and

(3) Not interfere with any wiring or cabling installed by a cable television or video service operator, electric utility, or telephone utility.

(h) Grounding. The small cell facility, including any ground-mounted equipment, shall be grounded in accordance with the requirements of the most current edition of the National Electrical Code adopted by the town regarding grounding of wireless communications facilities.

(i) Signage. Other than warning or notification signs required by applicable law or regulations, or identification and location markings, a small cell facility shall not have signs installed thereon.

(j) New utility poles installed to support small cell facilities shall be made of the same or similar material as existing poles in the immediate area.

(k) All small cell facilities, support structures, and any appurtenances shall blend in with the surrounding environment or be otherwise concealed to the extent practicable. [Ord. 960 § 1, 2021].

16.135.050 Siting requirements. Revised 9/22

(a) All new utility poles supporting small cell facilities and all stand-alone small cell facilities shall be set back from trails and sidewalks a minimum of three feet and shall be clearly marked with a wand so that the equipment is visible during the winter months.

(b) When placed near a residential property, small cell facilities, utility poles and stand-alone poles shall be placed adjacent to a common property line between adjoining residential properties, when technically feasible, such that the facility minimizes visual impacts equitably among adjacent properties, unless landscaping, topography, other structures, or other considerations minimize visual impacts to a greater extent at a different location.

(c) All stand-alone small cell facilities shall be separated from all other stand-alone small cell facilities within rights-of-way by a distance of at least 600 feet, except where the applicant demonstrates to the town that such separation would effectively prohibit the owner’s or operator’s ability to provide wireless service, in which case the stand-alone small cell facility shall be placed no closer to another stand-alone small cell facility than is necessary to eliminate the effective prohibition; provided, however, that, under no circumstances shall a stand-alone small cell facility be separated from another stand-alone small cell facility by fewer than 200 feet.

(d) No small cell facility, associated utility pole, or any associated equipment may be located or maintained in a manner that would:

(1) Alter vehicular circulation or parking within the rights-of-way;

(2) Unreasonably impede vehicular, bicycle, or pedestrian access or visibility along the rights-of-way;

(3) Interfere with town snow removal operations; or

(4) Present a hazard to public health, safety, or welfare.

(e) No small cell facility may be located or maintained in a manner that would cause violation of, or inhibit the town’s compliance with, the Americans with Disabilities Act.

(f) Small cell facilities shall be located such that they do not interfere with any public health or safety facility, including, but not limited to, a fire hydrant, fire station, fire escape, water valve, underground vault, valve housing structure, or any other public health or safety facility. New utility poles and small cell facilities shall not be installed within 10 feet of any storm drainage ditch, water line, sewer line, storm drain line, or service line unless waived by the town manager pursuant to GMC 16.135.060; provided, that under no circumstances shall new utility poles and small cell facilities be installed directly over any of the above-listed items.

(g) Any tree-disturbing activity necessary for the installation or collocation of small cell facilities and utility poles installed to support small cell facilities shall be minimized to the greatest extent practicable.

(h) No small cell facility shall be located within the rights-of-way so as to interfere with the vested rights of a property owner, operator, or user.

(i) No small cell facility shall be located in a manner that would interfere with a proposed development for which a property owner or developer has submitted a completed application to the town in accordance with the requirements of this title prior to the applicant’s submission of an application for such small cell facility pursuant to this chapter, unless and until such application has been denied or approved in a form, or with conditions, that would eliminate the interference.

(j) Collocations are preferred, and the number of poles within the rights-of-way shall be limited as much as possible.

(k) The model license agreement provides preferred locations for siting facilities on streets, support structures, and general placement.

(l) New facilities placed on new wooden poles are prohibited, unless authorized through the model license agreement. [Ord. 960 § 1, 2021].

16.135.060 Waivers. Revised 9/22

An applicant may seek a waiver of the requirements in this chapter, which may be granted by the town manager upon good cause shown, as determined by the town manager. Such waivers shall be granted in a nondiscriminatory manner among wireless providers. “Good cause” shall include but not be limited to:

(a) When a requirement of this chapter is clearly preempted by state or federal law, as determined by the town attorney;

(b) When the wireless provider demonstrates to the satisfaction of the town manager that strict adherence to a requirement of this chapter will effectively prohibit the wireless provider’s ability to provide wireless service; or

(c) When the proposal set forth in the application would further the purpose and intent of this chapter the same or better than if the application were to strictly adhere to a requirement of this chapter. [Ord. 960 § 1, 2021].

16.135.070 Undergrounding. Revised 9/22

Subject to applicable franchise and license agreements, the town may require the undergrounding of aerial cable and utility facilities and removal of town poles. Prior to removing any town poles to which small cell or micro cell facilities are attached, the town shall notify the owner or operator of such facility in writing, and the owner or operator shall remove the facility within 90 days of the date of such notice. Such facilities may be relocated subject to and in accordance with the requirements of this chapter. [Ord. 960 § 1, 2021].

16.135.080 Permit required – Application process. Revised 9/22

(a) Permission to Use Rights-of-Way, Permit Required. No person shall modify or place small cell facilities and associated utility poles in the ROW, without first having obtained land use approvals as required in this chapter and in this title, pole attachment agreement or license (as applicable), and a building permit for this purpose. It is the town’s policy that all small cell facilities sited in the ROW shall be pursuant to a model license agreement with the town, granting a nonexclusive license to use the ROW; provided, however, that if an applicant chooses to move forward with an application prior to completion of a model license agreement the town shall consider the application in accordance with this code. Attachment of small cell facilities on an existing traffic signal, street light pole, or similar structure shall require written evidence of a license, or other legal right or approval, to use such structure by its owner. The applicant shall remain the owner of, and solely responsible for, any small cell facility installed in the ROW.

(b) Application. All applications for permits filed pursuant to this chapter shall be on a form, paper or electronic, provided by the town.

(c) Application Requirements. An application shall be made by the owner or operator of the proposed small cell facilities or its duly authorized representative. All required application items must be submitted in order for the application to be complete. An application shall contain the following:

(1) The owner or operator’s name, address, telephone number, and e-mail address.

(2) The applicant’s name, address, telephone number, and email address, if different than the owner or operator, and its interest in the work.

(3) The names, addresses, telephone numbers, and e-mail addresses of all consultants, if any, acting on behalf of the applicant with respect to the filing of the application.

(4) A general description of the proposed work and the purposes and intent of the small cell facility. The scope and detail of such description shall be appropriate to the nature and character of the work to be performed, with special emphasis on those matters likely to be affected or impacted by the work proposed.

(5) A site plan pursuant to GMC 16.125.180, with sufficient detail to show the proposed location of facilities the applicant seeks to install in the ROW, including any manholes or poles, and the size, type, and depth of any conduits or enclosures.

(6) Other supporting documentation, including location and dimension of all improvements, including topography, radiofrequency coverage, facility and structure height, setbacks, drives, parking, fencing, landscaping, adjacent uses, adjacent public utilities, drainage, and other information deemed necessary by the town manager to assess compliance with this chapter.

(7) Signal noninterference letter.

(8) Radiofrequency compliance report.

(9) An attestation that the small cell facilities will be operational for use by a wireless services provider within one year after the permit issuance date, unless the town and the applicant agree to extend this period or delay is caused by lack of commercial power at the site.

(10) An attestation that, to the best of the applicant’s knowledge, the information contained in the application is true.

(11) Applicable application fee.

(12) An affidavit on a form approved by the town shall be required from the owner and from the applicant acknowledging that each is responsible for compliance with GMC 16.135.030(c) regarding abandonment and removal of small cell facilities.

(13) A letter certifying that the site proposed for the small cell facility is either categorically exempt from National Environmental Policy Act (NEPA) requirements or if not exempt, documentation demonstrating NEPA compliance.

(e) Micro Wireless Facilities. An application shall be required for the installation, placement, maintenance, operation, or replacement of micro wireless facilities that are strung on cables between existing utility poles; provided, however, that such applications shall be reviewed and approved by the town manager within 10 days of application receipt, so long as the proposed micro wireless facility complies with the most current version of the National Electrical Safety Code adopted by the state of Colorado.

(f) When Application Not Required. An application shall not be required for: (1) routine maintenance; or (2) the replacement of a small cell facility with another small cell facility that is substantially similar or smaller in size, weight, and height, in compliance with the National Electrical Safety Code; provided, that nothing in this subsection (f) shall relieve a wireless provider from obtaining a permit pursuant to Chapter 12.05 GMC prior to performing any work in the ROW.

(g) Batched Applications.

(1) A single permit application may be used for up to 10 small cell facilities. If the sites within the batched permit application have differing review timelines, the longer timeline will apply to review of the consolidated grouping of sites.

(2) If the town denies the application for one or more small cell facilities in a batched application, the town may not use the denial as a basis to delay the application process of any other small cell facility in the same batched application.

(3) A single permit may be issued for siting and collocating up to 10 small cell facilities. [Ord. 960 § 1, 2021].

16.135.090 Substantive review timelines. Revised 9/22

(a) Timelines for Review. The review period begins to run when the application is filed and may be tolled only by mutual agreement of the town and the applicant, or in cases where the town determines that the application is incomplete.

(b) Final action on applications for locating or collocating small cell facilities on existing structures will be made within 60 days of application, provided all standards in this chapter are met. Final action on applications for construction of new support structures will be made within 90 days of application, provided all standards in this chapter are met.

(c) To toll the application review period for incompleteness, the town must provide written notice to the applicant within 30 days of receipt of the application, specifically delineating all missing documents or information required in the application. The time frame for review period continues running again when the applicant makes a supplemental written submission in response to the town’s notice of incompleteness.

(d) An applicant and the town may enter into a written agreement to toll the time periods set forth in subsection (b) of this section. [Ord. 960 § 1, 2021].

16.135.100 Substantive review process. Revised 9/22

(a) All applications for location of small cell facilities and/or associated support structures in the public rights-of-way shall be reviewed by the town manager, subject to the review timelines established by this chapter, for conformance with the provisions in this chapter. The town manager may approve, approve with conditions, or deny an application in accordance with this chapter.

(b) All conditions of approval shall be reasonably related to impacts created by the proposal, or which the town deems necessary and proper to ensure that the improvements will be constructed in the manner indicated in the application and in accordance with the standards and criteria established within this chapter and other applicable town regulations and adopted codes. All conditions of approval shall be listed in the town-issued permit. [Ord. 960 § 1, 2021].

16.135.110 Substantive review criteria – Burden of proof – Denial. Revised 9/22

(a) The town may deny an application if the structures or facilities proposed in the application:

(1) Would materially interfere with the safe operation of traffic control equipment.

(2) Would materially interfere with town snow removal operations.

(3) Would materially interfere with sight lines or clear zones for transportation or pedestrians.

(4) Would materially interfere with compliance with the Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement.

(5) Fails to comply with applicable codes.

(6) Fails to comply with any of the requirements of this chapter.

(b) The burden of proof to show the application’s compliance with this chapter shall be on the applicant.

(c) Any decision to approve, approve with conditions, or deny an application shall be in writing and supported by substantial evidence in a written record. The applicant shall receive a copy of the decision. [Ord. 960 § 1, 2021].

16.135.120 Post approval provisions. Revised 9/22

(a) After receiving approval of the application, the applicant shall submit two complete sets of plans with required signatures, along with applicable recording fees, to the town manager. The town will then issue a permit for installation, modification, or collocation requested in the application.

(b) The permit shall require the owner and/or operator to:

(1) Indemnify the town from and against any liability arising as a result of the applicant’s, owner’s or operator’s use of the public rights-of-way;

(2) Furnish a bond, in form approved by the town attorney, to guarantee payment for any damages to town property and removal of facilities upon their abandonment; and

(3) Pay the recurring charge; and

(4) Comply with all conditions of approval that have been added to the permit in accordance with this chapter.

(c) Prior to performing any construction activity in the public rights-of-way, the applicant shall obtain all permits required by local, state, and federal law, including but not limited to excavating permits. Town issuance of excavation permits is subject to the restrictions set forth in Chapter 12.05 GMC, including but not limited to the seasonal restriction and exception process set forth in GMC 12.05.020.

(d) The applicant shall obtain all required permits and complete construction of the approved improvements within one year from the date the application was approved, or the permit shall be deemed expired, unless the town and the applicant agree to extend this period or a delay is caused by the lack of commercial power or communications facilities at the site.

(e) Any violation of the requirements of this chapter, or the terms of the permit issued in accordance with this section, shall constitute a violation of this code, punishable pursuant to the town’s general penalty provisions set forth in GMC 1.05.090.

(f) A permit from the town authorizes an applicant to undertake only certain activities subject to and in accordance with this chapter, and does not create a property right or grant authority to the applicant to impinge upon the rights of others who may already have an interest in the ROW. [Ord. 960 § 1, 2021].

16.135.130 Liability. Revised 9/22

(a) The town shall not be liable for damage to small cell facilities or the structures to which they are attached located in the public rights-of-way caused by the town’s snow removal or other municipal operations, except when such damage is caused by the town’s grossly negligent or willful and wanton conduct.

(b) The owner or operator of small cell facilities in the ROW shall repair, at its sole cost and expense, any damages, including, but not limited to, subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to town streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility line and systems, or sewer or water systems and water and sewer lines that result from any activities performed in connection with the installation and/or maintenance of a small cell facility in the ROW. The owner or operator shall restore such areas, structures, and systems to substantially the same or a better condition in which they existed prior to the installation or maintenance that necessitated the repairs.

(c) An owner or operator of small cell facilities in the ROW shall bear the sole risk of, and the town shall have no liability for, interference with the owner or operator’s network, by any buildings or structures now existing or constructed in the future. The owner or operator of small cell facilities acknowledges that the town may approve development applications for any property within the town’s zoning jurisdiction subject to and in accordance with this title. [Ord. 960 § 1, 2021].