Chapter 11.12 PERMITS AND IMPROVEMENTS

“Antenna” means that part of a wireless communications facility designed to radiate or receive RF signals or electromagnetic waves for the provision of services, including, but not limited to, cellular, paging, personal communications services and microwave communications.

“Applicant” means the person applying for a permit under this chapter, including the applicant’s officials, employees, agents, and contractors.

“Collocation” means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(2), as may be amended, which defines that term as the mounting or installation of transmission equipment on an eligible pole for the purpose of transmitting or receiving RF signals for communications purposes. As an illustration and not a limitation, the FCC’s definition effectively means “to add” and does not necessarily refer to more than one wireless communication facility installed at a single site.

“Communications facility” means, collectively, the equipment at a fixed location or locations within a City right-of-way that enables communications services, including: (1) radio transceivers, antennas, coaxial, fiber-optic or other cabling, power supply, backup battery, and comparable equipment, regardless of technological configuration; and (2) all other equipment associated with any of the foregoing. A communications facility does not include the pole, tower or support structure to which the equipment is attached.

“Communications support structure” means a proposed or existing pole located in the City right-of-way or a pole proposed to replace an existing pole in the right-of-way to which communications facilities are attached or proposed or intended to be attached.

“Director” means the Director of Public Works or his or her designee.

“FCC” means the Federal Communications Commission.

“Permittee” means the person that receives a permit to work in or install facilities, equipment or structures in the right-of-way under this chapter and the person that owns facilities, equipment or structures permitted to be installed under this chapter, including the permittee’s officials, employees, agents, and contractors.

“Pole” means a single shaft of wood, steel, concrete, or other material at least 26 feet tall and capable of supporting the equipment mounted thereon in a safe and adequate manner, including a privately owned utility pole.

“Privately owned utility pole” means a utility pole that is not owned by municipal, County, or State government.

“RF” means radio frequency or electromagnetic waves between 30 kHz and 300 GHz in the electromagnetic spectrum range.

“Urban forest tree” means an urban forest tree as defined in Chapter 12.12. (Ord. 2018-50, 2019)

11.12.010 Permit required for grading, construction, and installation.

A. No person shall grade, construct, cut, excavate or deposit any material on any City street, road, highway, alley, driveway apron, sidewalk, right-of-way, curb or gutter or install any structure or equipment in the City right-of-way, or begin any such work, without first obtaining a permit from the City.

B. General Findings Required for Issuance of All Installation Permits. A permit shall not be issued for a proposed installation when the location selected in the application is in an area where there is an overconcentration of structures or facilities in, on or over the right-of-way, as determined by the Director in the Director’s reasonable discretion and judgment. Any structure or facility installed in a City right-of-way, including those attached to a structure in the right-of-way, must:

1. Comply with all structural and safety standards specified by the Director;

2. Not obstruct pedestrian or vehicular traffic flow or sight lines, and not obstruct parking or the entering and exiting of persons from vehicles parked in the right-of-way;

3. Comply with the Americans with Disabilities Act;

4. If a pole, have a diameter and height no greater than the maximums established by the Director, but be tall enough to ensure that all attached equipment is at least 15 feet above ground;

5. If a replacement pole, be located within two feet of the base of the previously existing pole and at the same distance from the edge of the travel lane, unless the Director determines that a different location is preferable to facilitate pedestrian use of the right-of-way, vehicle and pedestrian sight lines, or the City’s use of the right-of-way;

6. If an equipment cabinet, comply with size limits and placement requirements established by the Director, including maximum volume limits for all equipment cabinets associated with a pole;

7. If an antenna, be demonstrated to be the least visible antenna possible to accomplish the coverage objectives;

8. For antennas, antenna mounts and cabinets, be situated, screened, shrouded, concealed or treated to minimize visual and acoustic impact (including having antennas flush mounted to the extent reasonably feasible), as determined in consultation with the Director. All antenna mounts shall be designed so as not to preclude possible future collocation by the same or other operators or carriers;

9. Have a color and finish for antennas, antenna mounts, cabinets and poles to be determined in consultation with the Director to minimize visual impact to the neighborhood, taking into consideration historic area designations and color and design schemes for City facilities, commercial districts, and other areas with aesthetic guidelines;

10. Be designed to be resistant to unauthorized access, climbing, vandalism, and other activities that result in hazardous situations, interception of communications, or attractive nuisances; and

11. Comply with such other requirements and conditions as the Director may determine are appropriate.

C. The Director may require modifications to a proposed project before granting a permit and impose conditions when granting a permit.

D. In the event of an unexpected repair or emergency, the responsible person may commence such repair and emergency response work as required under the circumstances; provided, that the responsible person shall notify the City as promptly as possible of such repair or emergency work and shall obtain a permit from the City for such work, if required, as soon as possible. (Ord. 2018-50, 2019/prior code § 11-15)

11.12.015 Communications facilities and communications support structures—Requirements and findings.

A. Communications facilities and communications support structures proposed to be located in the City right-of-way shall meet the following requirements:

1. Compliance with Section 11.12.010;

2. Compliance with all relevant requirements of the Montgomery County Zoning Ordinance;

3. Absent a specific finding by the Director, communications facilities may only be installed on existing utility poles, and only entities certificated by the Maryland Public Service Commission pursuant to the Annotated Code of Maryland, Public Services and Utilities, Division I, Title 7 or Title 8, as amended, may erect or contract to erect replacement poles in the City’s right-of-way. To allow the installation of an additional or replacement pole, the Director must find that:

a. Additional communications facilities are necessary in the location of the proposed pole to provide adequate telecommunications coverage; and

b. Existing poles do not have the capacity for the necessary communications facilities;

4. If proposed to be attached to a privately owned utility pole, be authorized by an executed attachment agreement with the utility pole owner, setting forth, at a minimum, the title, date and term of the agreement;

5. Be necessary in the location of the proposed facility to provide adequate telecommunications coverage;

6. Allow up to but not more than three antennas per pole;

7. Have no exterior wiring if the pole on which it is mounted can accommodate internal wiring or, if necessary, have exterior wiring enclosed in a shielded conduit; and

8. Comply with such other requirements and conditions as the Director may determine are appropriate.

B. Communications facilities and communications support structures proposed to be located on City rights-of-way may be permitted upon a finding by the Director that:

1. The application complies with all standards and requirements set forth in subsection (A) of this section;

2. The applicant has submitted proof of insurance, documentation of compliance with Federal RF emissions limitations, and a performance bond required under this chapter;

3. The Montgomery County Telecommunications Facility Coordinating Group Tower Coordinator has recommended the proposed installation if the installation is subject to review by the Montgomery County Transmission Facility Coordinating Group;

4. The installation will not harm any urban forest tree, or the location of the installation minimizes the adverse impact of the installation on urban forest trees to the extent reasonably possible given the need for communications coverage;

5. The installation work will be conducted in a manner that minimizes the adverse impact of the project upon urban forest trees to the extent reasonable, including the use of reasonable tree protection measures;

6. All communications facilities associated with a communications support structure, including communications facilities associated with a proposed new antenna and preexisting communications facilities, will be no more than the maximum volume determined by the Director;

7. The structure does not require antenna structure registration under 47 C.F.R. Chapter 1, Part 17, as amended; and

8. Each support structure, antenna, and equipment cabinet is labeled with the identity of the owner or owner’s agent, a 24-hour monitored phone number and email address for reporting problems with the structure or facility, and a unique identification number.

C. If the Director determines that any trees must be removed, the permit shall not be issued until the applicant pays the cost of replacing such trees, in accordance with the tree replacement requirements of Chapter 12.12, except that at least one replacement tree shall be required for each tree that must be removed.

D. The Director may waive minor variances from the requirements of this section if the variance does not jeopardize the public health, safety, or welfare.

E. Work permitted under this section shall be subject to the goals of Chapter 12.12, Urban Forest, as set forth in Section 12.12.010, but shall be exempt from the procedural requirements of Section 12.12.010 except as provided herein.

F. Upon installation of an antenna, the RF emissions for the antenna or, if applicable, the cumulative RF emissions from the new antenna and any collocated antennas, shall be tested for compliance with Federal limits. If an antenna exceeds Federal RF emissions limits or causes the antennas collocated on a support structure to exceed Federal RF emissions limits, the newly installed antenna must be removed by the applicant within five days at its own expense. (Ord. 2018-50, 2019)

11.12.020 Permit application—Contents.

A. General Permit Application Requirements for All Installation Permit Applications Except Driveway Apron Permit Applications. Applications for a permit under this chapter shall be filed with the Director on forms provided by the Director. The application submission shall include, wherever applicable, the following:

1. Right-of-way, name of street (if any) and width of right-of-way, abutting lots, GIS location, north point, and scale;

2. The following information within 50 feet of the site:

a. Pavement plan, curb and gutter, sidewalks, curb cuts and driveways, and dimensions;

b. Catch basins, inlets, culverts and other drainage structures, and dimensions;

c. Construction details, including cross section pavement, curb and gutter, details of drainage structures, culverts, headwalls, etc.;

d. Grading plan and profile, showing existing grades and finishing grades;

3. A certificate from an independent licensed professional engineer that a proposed installation is structurally sound;

4. A statement committing to comply with applicable safety standards for the proposed activities in the City right-of-way;

5. Identity and contact information for the entity performing the work in the right-of-way; and

6. Any additional data and detail required by the Director.

B. Potential Waiver of Requirements for All Installation Permit Applications. The Director may waive plan detail requirements for any application to install attachments on existing structures that does not involve excavation or the use of heavy equipment or vehicles outside of the paved roadway.

C. Communications Facilities and Communications Support Structure Permit Applications. In addition to the requirements of subsection (A) of this section, applicants for a permit to install communications facilities or communications support structures must submit documentation with the following information pertaining to a proposed deployment of communications facilities or communications support structures:

1. A technical description of the proposed communication facilities or support structures, including the purpose and intent of the proposed facilities or support structures, a written description identifying the geographic service area for the subject installation, photographs of the communications equipment to be installed, a description of the noise emitted by the proposed facilities, an accurate visual impact analysis with photo simulations, and a list of any existing antennas mounted on the support structure if the application relates to a proposed collocation;

2. A site plan drawing indicating the proposed installation, right-of-way, name of street (if any) and width of right-of-way, utility pole identification number if proposed installation involves attachment to or replacement of an existing utility pole, abutting lots, all trees in the right-of-way within 50 feet of the proposed project, north point, and scale;

3. A detailed deployment plan describing facilities planned to be installed by the applicant for the 24-month period following the permit issuance anywhere in the City or within 500 feet of City limits, including on private property and Maryland State and County rights-of-way, and a description of the completed deployment;

4. A completed RF exposure guidelines checklist and proof of all applicable licenses or other approvals required by the FCC; and

5. Such other information as the Director may require.

D. Driveway Apron Permit Applications. Driveway apron applicants shall provide the address and lot and block number where construction is to be done and a drawing showing measurement for the property, all buildings, all porches, all permanent walks, all other permanently installed improvements and the size and location of the driveway to be installed. (Ord. 2018-50, 2019/prior code § 11-16)

11.12.030 Application requirements.

An application for a permit under this chapter shall not be accepted by the Director unless and until the required information is furnished, together with the necessary plans and specifications. (Ord. 2018-50, 2019/prior code § 11-17)

11.12.040 Application revision and resubmission.

In cases where the plans and specifications submitted to the Director do not meet the minimum construction standards as provided in this chapter, or if unusual conditions require a special determination by the Director as to type of construction, the plans and specifications, with necessary revisions noted appropriately thereon, shall be returned to the applicant for revision and resubmission. (Ord. 2018-50, 2019/prior code § 11-18)

11.12.050 Examination of application—Issuance of permit.

The Director, upon receipt of a complete application for a permit, shall review the plans and specifications of the proposed project and consider any public comment on the application and, if satisfied that the plans meet the minimum construction standards as provided in Chapter 11.08 and all other requirements of this chapter and associated administrative regulations have been complied with, shall issue a permit. The Director may require modifications to a proposed project before granting a permit and impose conditions when granting a permit. The Director may condition the issuance of a permit upon the applicant’s payment of an escrow deposit or obtaining a bond to cover costs of possible damage or other related problems to public property be paid to the City. The amount of the escrow deposit or bond shall be determined by the Director based on the project and shall be refunded after completion of the project with the approval of the Director, except as provided otherwise in this chapter. (Ord. 2018-50, 2019/prior code § 11-19)

11.12.060 Approval of plans required.

If a new subdivision or resubdivision is required, then no construction permit shall be issued by the Director unless and until the Director has evidence in writing from the Maryland-National Capital Park and Planning Commission that a preliminary plan and profiles and grades for the subdivision in which the proposed highway, road, street or alley construction is located has been approved by the Park and Planning Commission and by the Washington Suburban Sanitary Commission, as applicable. (Ord. 2018-50, 2019/prior code § 11-20)

11.12.070 Permit fees.

A. Every applicant shall pay a permit application fee upon submission of the application. Such fees shall not be refundable. The Director shall establish a permit application fee schedule that allows the City to recover the actual cost of application processing, administration, review, inspection, and certification of compliance of the completed installation, and such fees may be increased if reasonably required to cover additional costs in cases such as when applications or technology are unusually complex or the City needs to consult outside experts as part of the permit review process.

B. An application for a permit shall not be processed by the Director until the required fee is paid.

C. The Director shall require payment of an additional application fee if the Director determines that material changes to an application after submission will materially increase the time or costs of the permit review and treat the changed application as a new application for purposes of any time limits for permit decisions under applicable law. (Ord. 2018-50, 2019/Ord. 2011-33 § 2 (part), 2011/prior code § 11-21)

11.12.080 Permit fees—Not to be credited or returned.

Fees paid by any permittee whose permit has expired or become invalid shall not be credited against the fees required for a new permit of the permittee. Fees for expired and invalid permits shall not be returnable. (Ord. 2018-50, 2019/prior code § 11-22)

11.12.090 Expiration of permits—Renewal.

Permits shall be valid for a period of six months from the date of issuance. If any work under a permit has not been commenced within this period, the permit shall be invalid, and a new permit required before the project may be commenced. (Ord. 2018-50, 2019/prior code § 11-23)

11.12.100 Naming, widening or closing of streets prohibited—Exceptions.

A. No person shall name, widen, open or close or cause to be named, widened, opened or closed or in any way attempt to name, widen, open or close any street, alley or other similar opening, except by authority of the Mayor and Council.

B. No person shall change, alter, vary or in any way modify the name, width or opening or cause to be changed, altered, varied or in any way modified the name, width or opening of any street, alley or similar opening except by consent and authority of the Mayor and Council.

C. A violation of this section is a Class B offense. (Prior code § 11-24)

11.12.110 Permit required for altering street or name.

Any person desiring to name, widen, open or close or cause to be named, widened, opened or closed or in any way change, alter, vary or modify any street, alley or other similar opening shall submit a petition to the Mayor and Council in writing, giving the precise location, together with a plat and complete description of changes desired, for their approval, before making the changes. (Prior code § 11-25)

11.12.120 Driveway apron cost—Corrective action—Installation requirements.

A. Circumstances in which the City shall charge all costs of driveway apron installation or replacement to the property owner are:

1. When the property owner requests in writing to have the City install or replace the driveway apron;

2. When the Director of Public Works determines that the driveway apron has deteriorated to the point where pieces of concrete project above the surface or pieces of concrete have become dislodged and that these conditions are deemed hazardous to vehicular or pedestrian traffic or threaten to erode the public right-of-way or threaten to erode the public improvements, the Director of Public Works or the Director’s representative shall send by certified mail to the property owner notice that he or she has 30 days to repair or replace the driveway apron. After 30 days, if the driveway apron has not been repaired or replaced, the City shall replace the driveway apron at the owner’s expense and charged all cost as specified in subsection (B) of this section.

B. Charges for City Taking Corrective Action.

1. If the City has taken corrective action to bring the driveway apron into compliance with subsection (A)(2) of this section, the Director of Public Works or the Director’s representative who has caused the offensive condition to be corrected shall certify the cost to the Treasurer.

2. The Treasurer shall examine the certificate and, if approved by the Mayor and Council and found correct, shall cause the cost as shown thereon to be charged against the lands. The amount so charged shall forthwith become a lien upon the lands and shall be added to and become and form part of the taxes next to be assessed and levied upon the lands, the amount to bear interest at the same rate as taxes, and shall be collected and enforced by the officers and in the same manner as taxes.

C. When the City replaces driveway aprons crossing public rights-of-way as a result of sidewalk or street repairs; there shall be no charge to the property owner whose property the driveway apron serves.

D. A contractor or property owner may install or replace a driveway apron, provided that a construction permit has been issued with the Director of Public Works’ or the Director’s representative’s approval and that the installation or replacement is in accordance with specifications provided by Public Works.

E. The Clerk shall issue construction permits for all driveway apron installations and replacement, provided that all requirements of this chapter have been complied with.

F. The requirements to install or replace driveway aprons on a City right-of-way shall be to:

1. Obtain forms from Public Works and complete them as specified by the Director of Public Works or the Director’s representative;

2. Submit the permit application fee of $40.00 along with the application and required information;

3. Obtain a construction permit from the Clerk;

4. Comply with all requirements of this chapter.

G. A violation of this section is a Class B offense. (Ord. 2011-33 § 2 (part), 2011/prior code § 11-26)

11.12.130 Driveway apron limitations—Exemptions—Construction requirements.

A. The length of driveway aprons, for single-family homes and apartments, to be installed shall not exceed 24% or 20', whichever should occur first, or be less than 10' measured at the property line of the respective property frontage abutting the right-of-way where the driveway apron is to be installed.

B. The length of driveway aprons, for duplex homes that share the same deeded lot, to be installed shall not exceed 24% or 20', whichever should occur first, or be less than 10' for each dwelling in the duplex, measured at the property line, based on 1/2 of the respective property frontage abutting the right-of-way. Duplex homes that do not share the same deeded lot shall be treated as a single-family home in subsection (A) of this section.

C. Replacement of an existing driveway apron is exempt from length limitations, provided that the length of the new apron, measured at the property line, is the same size as the one it is replacing and that it is installed in the same location.

D. Dwellings that do not have property abutting a right-of-way, except for an easement or a narrow piece of land intended for ingress and egress, are exempt from driveway apron size limitations only.

E. Commercial properties shall conform to all County codes for driveway apron size limitations and location. Residential properties and apartments shall conform to all County codes for driveway apron locations.

F. A construction permit may be issued for a one-vehicle driveway apron to serve a 2-vehicle driveway, provided that the driveway parking area has a minimum of 162 square feet allocated for the parking of each vehicle and that a 10' maneuvering distance is maintained between the edge of the driveway apron abutting the private property and the parking area of the driveway.

G. A construction permit may be issued for a 2-vehicle driveway apron to serve a 3-vehicle driveway, provided that the driveway parking area has a minimum of 162 square feet allocated for the parking of each vehicle and that a 10' maneuvering distance is maintained between the edge of the driveway apron abutting the private property and the parking area of the driveway.

H. Cement concrete shall be used for installing or replacing driveway aprons when it abuts a cement concrete curb. Bituminous concrete or cement concrete shall be used for installing or replacing driveway aprons when it does not abut a cement concrete curb.

I. Driveway aprons shall not be installed within 3' of a tree planted in the City right-of-way.

J. Trees in City rights-of-way shall not be removed for the purpose of installing a driveway apron.

K. The City Administrator or his or her designee may grant exemptions from the requirements of this section on such terms and conditions as he or she may deem appropriate when the requirements of this section are in conflict with applicable County requirements.

L. A violation of this section is a Class B offense. (Prior code § 11-27)

11.12.140 Exceeding permit time periods prohibited.

A. No person without a permit shall make an excavation in any right-of-way or other public space or remove from or deposit in the area any earth or other material.

B. No person shall exceed the time period granted by such permit in performance of the project for which the permit was issued. (Ord. 2018-50, 2019/prior code § 11-28)

11.12.150 Permit required to place vent or door in public streets.

No person without a permit shall destroy, cut or injure the footway or roadway of any street, avenue or other public place nor place or maintain in the footway of any pavement any stopcock box, street washer, vent, vault, cover, cellar door or hinge which projects above the level of the pavement, or any vault cover with a smooth surface. A violation of this section is a Class B offense. (Prior code § 11-29)

11.12.160 Construction of fence and planting of trees—Permit required.

No person without a permit shall erect a fence or wall or plant a tree in any public street, avenue or public place. A violation of this section is a Class B offense. (Prior code § 11-30)

11.12.185 Conditions for approval for all communications facilities and support structures.

In addition to compliance with the requirements of this chapter, upon approval all permittees and facilities shall be subject to each of the following conditions of approval, as well as any modification of these conditions or additional conditions of approval deemed necessary by the Director:

A. If new technology becomes available that reduces noise, RF emissions, or energy usage or that reduces the size, visibility or obtrusiveness of a facility, the permittee shall replace outdated facilities with current industry-standard facilities, after receiving all necessary permits and approvals.

B. The permittee shall submit and maintain current at all times basic contact and site information on a form to be supplied by the City. The permittee shall notify the City of any changes to the information submitted within seven days of any change, including change of the name or legal status of the owner or operator, and the emergency contact information shall be updated on the pole as expeditiously as possible. This information shall include, but is not limited to, the following:

1. Identity, including the name, address and 24-hour contact phone number of the permittee, the owner, the operator, and the agent or person responsible for the maintenance of the facility; and

2. The legal status of the owner of the communications facility or communications structure, including official identification numbers and FCC certification if applicable.

C. The permittee shall provide the City with emergency contact information and promptly respond to emergencies relating to its communications facilities and communications support structures.

D. At all times, the permittee shall ensure that the facility, as mounted with any collocated facilities, complies with the most current industry standards for size and regulatory and operational standards that reduce noise, RF emissions, or energy usage or that reduce the size, visibility or obtrusiveness of a facility including, but not limited to, RF emissions standards adopted by the FCC. The City shall retain a consultant, at the sole expense of the permittee, to perform testing demonstrating compliance with current regulatory and operational standards. Tests shall occur upon commencement of operations and annually between May 1st and June 30th thereafter.

E. If, at any time, the Director determines there is good cause to believe that the facility, as mounted with any collocated facilities, may emit RF emissions that are likely to exceed FCC standards, the Director may require the permittee to submit a technically sufficient written report certified by a qualified independent RF emissions engineer, certifying that the facility is in compliance with such FCC standards within 10 days.

F. The permittee shall pay for and provide a performance bond, which shall be in effect until the facilities are fully and completely removed and the site reasonably returned to its original condition, to cover permittee’s obligations under these conditions of approval and the City Code. The bond coverage shall include, but not be limited to, removal of the facility, and maintenance obligations. The amount of the performance bond shall be set by the Director in an amount reasonably related to the obligations covered by the bond and shall be specified in the conditions of approval.

G. The permittee shall indemnify and hold harmless the City from any claims arising from the installation and presence of the communications facilities and communications support structures and shall maintain liability insurance naming the City as additional insured in coverage amounts determined by the Director until the facilities are fully and completely removed.

H. The permittee shall defend, indemnify, protect and hold harmless the City, its officers, officials, agents, consultants, employees, and volunteers from and against any and all claims, actions, or proceedings against the City and its officers, officials, agents, consultants, employees and volunteers to attack, set aside, void or annul an approval of the City concerning the permit and the project. Such indemnification shall include damages, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, attorneys’ fees and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding. The City shall promptly notify the permittee of any claim, action, or proceeding against which the City seeks defense. Nothing contained herein shall prohibit City from participating in a defense of any claim, action or proceeding, or revoking a permit and requiring the modification or removal of an installation. The City shall have the option of coordinating the defense, including, but not limited to, choosing counsel for the defense at permittee’s expense.

I. Any modification, removal, or relocation of the facility shall be completed within 90 days of written notification by the City unless exigencies dictate a shorter period for removal or relocation. Modification or relocation of the facility shall require a permit. In the event the facility is not modified, removed, or relocated within said period of time, the City may cause the same to be done at the sole cost and expense of permittee. Further, due to exigent circumstances, the City may modify, remove, or relocate wireless communications facilities without prior notice to permittee provided permittee is notified within a reasonable period thereafter.

J. All work performed by the permittee in connection with the installation, connection, maintenance, modification, or removal of the communications facilities and support structures shall comply with Chapter 14.12, Noise Control, and the provisions of the Maryland Vehicle Law regarding the idling of vehicles, and the storage and staging of equipment shall be conducted in conformity with any requirements established for the work by the Director.

K. The permittee shall, at its sole expense, keep its communications facilities and communications support structures in a safe condition and in good and neat order and repair.

L. The permittee shall repair, restore, or replace any portion of the right-of-way that is damaged by its communications facilities and communications support structures or the installation or maintenance thereof. The permittee authorizes the City to repair, restore, or replace the damaged portion of the right-of-way and shall reimburse the City for the costs incurred if the permittee fails promptly to perform the work.

M. The City retains the right to cut or remove any communications facilities and communications support structures it deems necessary in response to a public emergency, and the permittee shall be responsible for the cost of restoration.

N. The permittee promptly shall relocate or remove and replace, as appropriate, its communications facilities and communications support structures upon written request by the City when the City determines that the facility or structure materially interferes with the City’s use of the right-of-way. The permittee authorizes the City to remove its communications facilities and communications support structures and shall reimburse the City for the costs incurred if the permittee fails promptly to respond to a request from the City.

O. If the permittee ceases to operate or abandons any of its communications facilities or communications support structures, it shall remove them within 60 days. If the permittee fails to remove the abandoned facilities or support structures, the City may perform the work and collect the reasonable cost thereof from the permittee.

P. All conditions of approval shall be binding as to the applicant, permittee and all successors in interest. (Ord. 2018-50, 2019)

11.12.190 Public notice and comment on wireless communications facilities and communications support structure installation applications.

A. When an application is filed for a permit to install communications facilities or a communications support structure, including a replacement pole, in the City right-of-way:

1. The Director shall:

a. Post notice of the application on the City’s website;

b. Make the application materials available for public inspection;

c. Receive and consider written comment and documentary evidence submitted from the public;

d. Schedule, and a representative of the applicant must attend, a community meeting to provide the public with information about the proposed installation, answer questions, receive information, and respond to concerns; and

e. Seek and consider input from Takoma Park boards, commissions and committees with applicable subject matter jurisdiction.

2. The applicant shall inform the public about the proposed installation and the date, time, and location of the community meeting by:

a. Posting a notice at the proposed site; and

b. Providing written notice to property owners, residents and businesses with property lines located within 500 feet of the proposed installation. (Ord. 2018-50, 2019)

11.12.200 Exceptions.

A. No City permit shall be required under this chapter to excavate any portion of a street that is a part of the state highway system and for which a state permit is required under the provisions of the Annotated Code of Maryland, Transportation, Section 8-646 as amended.

B. Exceptions pertaining to any provision of this chapter, including, but not limited to, exceptions from findings that would otherwise justify denial, may be granted by the Director if the Director makes the finding that:

1. Denial of the facility as proposed would violate Federal law, State law, or both; or

2. A provision of this chapter, as applied to applicant, would deprive applicant of its rights under Federal law, State law, or both; or

3. Strict application of this chapter would be contrary to the public interest because the harm to the public of strict application would be greater than the harm caused by granting an exception.

C. An applicant may only request an exception under subsection (B) of this section at the time of applying for a permit. The request must include both the specific provision(s) of this chapter from which the exception is sought and the basis of the request. Any request for an exception after the City has deemed an application complete and accepted shall be treated as a new application.

D. The applicant shall have the burden of proving that denial of the facility as proposed would violate Federal law, State law, or both, or that the provisions of this chapter, as applied to applicant, would deprive applicant of its rights under Federal law, State law, or both, using the evidentiary standards required by that law at issue. The City shall have the right to hire an independent consultant, at the applicant’s expense, to evaluate the issues raised by the exception request and shall have the right to submit rebuttal evidence to refute the applicant’s claim. (Ord. 2018-50, 2019)

11.12.210 Right-of-way maintenance and administration fee.

The owner of a communications facility or support structure shall pay an annual right-of-way maintenance and administration fee within 15 days of the approval of the permit application and on the anniversary date of the permit approval each year thereafter. (Ord. 2018-50, 2019)

11.12.220 Annual certification.

Between June 1st and July 1st of each year that a permitted communications facility or support structure remains in the City right-of-way, the owner shall submit to the Director an affidavit signed by an authorized representative of the owner confirming that the facility or support structure remains in use and remains covered by insurance and that the facility is the current industry standard facility of that type as required under this chapter. (Ord. 2018-50, 2019)

11.12.230 Violations and enforcement.

A. A violation of this chapter and any regulations adopted to implement or enforce this chapter is a Class A municipal infraction.

B. Each day that a violation of a term or condition of a permit continues shall constitute a separate violation.

C. Each day that an installation for which the City has not issued a permit remains in the City right-of-way shall constitute a separate violation.

D. The City may abate outstanding violations and charge the cost of abatement to the responsible person.

E. In addition to all other means of enforcement provided for by law and in this chapter, the City Manager, Director, Code Enforcement Officers or police officers may issue a stop-work order to any person who violates any provision of this chapter or any regulations adopted to implement or enforce this chapter. Any person who receives such a stop-work order shall immediately cease work. The person shall comply with all terms and conditions imposed by the stop-work order before the work may resume. (Ord. 2018-50, 2019)

11.12.240 Waiver of communications facilities and support structure fees for public benefits.

The Director, in consultation with the City Manager, may waive or reduce application and annual right-of-way maintenance and administration fees for communications facilities and support structure installations and provide other benefits, excluding any that would weaken health and safety protections, to applicants and permittees in exchange for public benefits to be provided by the applicant or permittee, including, but not limited to, the installation of communications facilities and support structures in underserved locations and the installation of connections to or discounted service for multifamily rental facilities. (Ord. 2018-50, 2019)

11.12.250 Regulations.

The Director shall endeavor to promulgate regulations to implement this chapter within 90 days. Such regulations shall include, but shall not be limited to, establishing application fees and right-of-way maintenance and administration fees, requiring the posting of public notice of work in the right-of-way, requiring the entity performing work in the right-of-way to attend a preconstruction meeting, requiring that the timing of nonemergency work in the right-of-way be coordinated to minimize traffic disruption or complications resulting from other construction activity taking place in the City, establishing time frames for permit review, and establishing maximum volumes and dimensions for antennas, equipment cabinets, and other communications facilities and support structures. (Ord. 2018-50, 2019)