Chapter 158 WIRELESS TELECOMMUNICATIONS FACILITIES

In order to ensure that the placement, construction or modification of wireless telecommunications facilities is consistent with the city’s land use policies and the Telecommunications Act of 1996 (the “Act”), the city is adopting a comprehensive, wireless telecommunications facilities application and permit process. The intent of this chapter is to minimize impact of wireless telecommunications facilities, establish a balanced, fair and efficient process for review and approval of applications, assure an integrated, comprehensive review of environmental impacts of such facilities, and protect the health, safety and welfare of the City of Rio Rancho.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06)

158.02 DEFINITIONS.

For the purpose of this chapter, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number and words in the singular number include the plural number. The word “shall” is always mandatory, and not merely directory.

ACCESSORY FACILITY OR STRUCTURE. An accessory facility or structure serving or being used in conjunction with wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including but not limited to utility or transmission equipment, storage sheds or cabinets.

ANTENNA. A system of electrical conductors that transmit or receive electromagnetic waves or radio frequency or other wireless signals.

APPLICANT. Any wireless service provider submitting an application for a telecommunications permit.

APPLICATION. All necessary and appropriate documentation that an applicant submits in order to receive a telecommunications permit.

BASE STATION. A structure or equipment at a fixed location that enables Commission-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in this section or any equipment associated with a tower.

(1) The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

(2) The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks).

(3) The term includes any structure other than a tower that, at the time the relevant application is filed under this chapter, supports or houses equipment described in subsection (1) or (2) of this definition that has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.

(4) The term does not include any structure that, at the time the relevant application is filed under this chapter, does not support or house equipment described in subsection (1) or (2) of this definition.

COLLOCATION. The mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.

COMPLETED APPLICATION. An application that contains all the submittals, information and/or data required under this chapter and necessary to enable an informed decision to be made with respect to an application.

EFFECTIVE DATE OF THIS CHAPTER. November 6, 2004, the date on which Ordinance No. 16, Enactment No. 04-041, became effective.

ELIGIBLE FACILITIES REQUEST. Any request for modification of an existing tower or base station that is not a substantial change to the physical dimensions of such tower or base station involving:

(1) Collocation of new transmission equipment;

(2) Removal of transmission equipment; or

(3) Replacement of transmission equipment.

ELIGIBLE SUPPORT STRUCTURE. Any tower or base station as defined in this section; provided, that it is existing at the time the relevant application is filed with the state or local government under this section.

EXISTING. A constructed tower or base station is existing for purposes of this chapter if it has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process; provided, that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.

FAA. The Federal Aviation Administration, or its duly designated and authorized successor agency.

FCC. The Federal Communications Commission, or its duly designated and authorized successor agency.

GOVERNING BODY. The Governing Body of the City of Rio Rancho.

HEIGHT. When referring to a tower or structure, the distance measured from the preexisting grade level to the highest point on the tower or structure, even if the highest point is an antenna or lightning protection device.

MODIFICATION or MODIFY. The addition, removal or change of any of the physical and visually discernible components or aspects of a wireless telecommunications facility, such as antennas, cabling, equipment shelters, fencing, utility feeds, changing the color or materials of any visually discernible components, vehicular access, parking and/or equipment. Adding a new wireless carrier or service provider to a telecommunications tower or telecommunications site as a collocation is a MODIFICATION.

PERSON. Any individual, corporation, estate, trust, partnership, joint stock company, association of two or more persons having a joint common interest, or any other entity.

PERSONAL WIRELESS SERVICES (PWS) or PERSONAL COMMUNICATIONS SERVICE (PCS). These terms shall have the same meaning as defined and used in the 1996 Telecommunications Act.

PLANNING AND ZONING BOARD. The Planning and Zoning Board of the City of Rio Rancho.

STATE. The State of New Mexico.

SUBSTANTIAL CHANGE. A substantial change, as defined in 47 CFR § 1.6100(b)(7) or a subsequent provision, is a modification which substantially changes the physical dimensions of an eligible support structure by meeting any of the following criteria:

(1) For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than 10 feet, whichever is greater; changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings’ rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act (42 U.S.C. 1344(a) Section 6409a);

(2) For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20 feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;

(3) For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no preexisting ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure;

(4) It entails any excavation or deployment outside the current site;

(5) It would defeat the concealment elements of the eligible support structure; or

(6) It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment; provided, however, that this limitation does not apply to any modification that is noncompliant only in a manner that would not exceed the thresholds identified in subsections (1) through (4) of this definition.

TELECOMMUNICATIONS. The transmission and/or reception of audio, video, data, and other information by wire, radio frequency, light, and other electronic or electromagnetic systems.

TELECOMMUNICATIONS PERMIT. The official document or permit by which an applicant is allowed to file for a building permit to construct and use wireless telecommunications facilities as granted or issued by the city.

TELECOMMUNICATIONS STRUCTURE. A structure used in the provision of services described in the definition of WIRELESS TELECOMMUNICATIONS FACILITIES.

TEMPORARY. Temporary in relation to all aspects and components of this chapter; something intended to, or that does, exist for fewer than 90 days.

TOWER. Any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site.

TRANSMISSION EQUIPMENT. Equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

WIRELESS TELECOMMUNICATIONS FACILITIES. This term means the structure, facility or location designed, or intended to be used as, or used to support antennas or other telecommunications transmitting or receiving devices, including, without limit, towers of all types and kinds and structures, including, but not limited to, buildings, church steeples, silos, water towers, signs or other structures that can be used as a support structure for antennas or their functional equivalent, and all related facilities and equipment such as cabling, equipment shelters and other structures associated with the site. It is a structure and facility intended for transmitting and/or receiving radio, television, cellular, SMR, paging, 911, personal communications services (PCS), commercial satellite services, microwave services and any commercial wireless telecommunication service not licensed by the FCC.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06)

158.03 OVERALL POLICY AND GOALS.

In order to ensure that the placement, construction, and substantial change of wireless telecommunications facilities are conducted with due regard for the city’s health, safety, public welfare, environmental features, the nature and character of the community and neighborhood and other aspects of the quality of life specifically listed elsewhere in this chapter, the city hereby adopts an overall policy with respect to a telecommunications permit for wireless telecommunications facilities for the express purpose of achieving the following goals:

(A) Requiring a telecommunications permit for any new, collocation or substantial change of a wireless telecommunications facility.

(B) Implementing an application process for person(s) seeking a telecommunications permit.

(C) Establishing a policy for examining an application for and issuing a telecommunications permit that is both fair and consistent.

(D) Promoting and encouraging, wherever possible, the sharing and/or collocation of wireless telecommunications facilities among service providers.

(E) Promoting and encouraging, wherever possible, the placement, height and quantity of wireless telecommunications facilities in such a manner, including but not limited to the use of camouflaged wireless telecommunications facilities technology, to minimize adverse aesthetic and visual impacts on the land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of such wireless telecommunications facilities, which shall mean using the least visually and physically intrusive facility that is not technologically impracticable under the facts and circumstances.

(F) In granting a telecommunications permit, the city has determined that the facility shall be located in the most appropriate site in regards to being the least visually and physically intrusive among those available in the city.

(G) Implement provisions and requirements of the FCC pertaining to eligible facilities requests.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06)

158.04 PERIODIC REGULATORY REVIEW.

(A) The city may at any time conduct a review and examination of this entire chapter.

(B) If after such a periodic review and examination of this chapter, the city determines that one or more provisions of this chapter should be amended, repealed, revised, clarified, or deleted, then the city may take whatever measures are necessary in accordance with applicable law in order to accomplish the same. It is noted that where warranted, and in the best interests of the city, the city may repeal this entire chapter at any time.

(C) Notwithstanding the provisions of subsections (A) and (B) of this section, the city may at any time and in any manner (to the extent permitted by federal, state, or local law) amend, add, repeal, and/or delete one or more provisions of this chapter.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06)

PERMIT

158.10 PERMIT REQUIRED.

(A) No person shall be permitted to site, place, build, construct, or materially modify a wireless telecommunications facility after the effective date of this chapter without having first obtained a telecommunications permit for such facility. Notwithstanding anything to the contrary in this section, no telecommunications permit shall be required for those facilities listed in Section 158.11.

(B) No person shall perform any construction of or on a wireless telecommunications facility without having first obtained a building permit for such construction. In order to obtain a building permit for a wireless telecommunications facility, the applicant shall present a copy of a duly issued telecommunications permit with the building permit application.

(C) No person shall use a wireless telecommunications facility for which a telecommunications permit is required without having first obtained a certificate of compliance for such wireless telecommunications facility. A certificate of compliance shall be issued to an applicant upon a final inspection of the wireless telecommunications facility showing that the construction of the facility meets all requirements and conditions of the telecommunications permit, and that all applicable codes and related building requirements have been met.

(D) An applicant for or holder of a telecommunications permit shall obtain, at its own expense, all permits and licenses required by applicable law, rule, regulation or code, and must maintain the same, in full force and effect, for as long as required by the city or other governmental entity having jurisdiction over the wireless telecommunications facility.

(E) All wireless telecommunications facilities legally permitted and existing on or before the effective date of this chapter shall be allowed to continue as they presently exist, as legally permitted nonconforming uses. These facilities may be used, maintained, or repaired without having to comply with the permit provisions of this chapter. Any substantial change of such an existing wireless telecommunications facility will require compliance with all requirements of this chapter.

(F) Repair and maintenance of a wireless telecommunications facility shall not require a telecommunications permit.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06) Penalty, see § 158.99

158.11 EXEMPTIONS.

The following shall be exempt from this chapter:

(A) The city’s fire, police, department of transportation or other public service facilities owned and operated by the local government.

(B) Any facilities expressly exempt from the city’s siting, building and permitting authority.

(C) Over-the-air reception devices including the reception antennas for direct broadcast satellites (DBS), multi-channel multipoint distribution (wireless cable) providers (MMDS), television broadcast stations (TVBS) and other customer-end antennas that receive and transmit fixed wireless signals that are primarily used for reception.

(D) Facilities exclusively for private, noncommercial radio and television reception and private citizen’s bands, and other similar noncommercial telecommunications, subject to applicable zoning and building requirements of this title.

(E) FCC licensed amateur radio facilities require an administrative approval and are exempt from all aspects of this chapter except reasonable screening, setback, placement, construction, tower height, and health and safety standards in accordance with New Mexico state law.

(F) Facilities exclusively for providing unlicensed spread spectrum technologies (such as IEEE 802.11 a, b, g (Wi-Fi) and Bluetooth) for the benefit of a limited area, where telecommunications service is not sold but is provided for the benefit or convenience of patrons or residents, and where the facility does not require a new tower.

(G) Facilities located in the public rights-of-way and subject to the provisions of Sections 158.50 through 158.80.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06)

158.12 APPLICATION.

(A) All applicants for a telecommunications permit shall comply with the requirements set forth in this chapter. Applications for wireless telecommunications facilities shall be submitted to the Department of Development Services. Except for those applications for which a public hearing is required under Section 158.14, the City Manager or his or her designee shall review, analyze, evaluate and make decisions with respect to granting, not granting, or revoking telecommunications permits. The city may at its discretion delegate or designate other official agencies or officials of the city to accept, review, analyze, evaluate and make recommendations to the City Manager or Planning and Zoning Board with respect to the granting, not granting, or revoking of telecommunications permits.

(B) The city may reject applications not meeting the requirements stated herein or which are incomplete. An application will be considered complete when the applicant has provided all submittals required by this section, including but not limited to all required data, reports, attachments, certifications, and authorizations.

(C) Any and all written representations made by the applicant to the city on the record during the application process, and oral representations made on the record during a hearing before the Planning and Zoning Board, Governing Body, or other public meeting, shall be deemed a part of the application and may be relied upon in good faith by the city.

(D) An application for a telecommunications permit shall be signed on behalf of the applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information.

(E) The applicant shall provide written and notarized documentation to verify it has the right to proceed as proposed on the site and to employ such easements and/or other property interests to access the site as may be necessary for repair and maintenance of the facility. Such documentation may consist of a summary plat or duly executed deeds or other conveyances clearly depicting the site and all easements or other authorized access routes.

(F) The applicant shall include a statement in writing:

(1) That the applicant’s proposed wireless telecommunications facilities shall be maintained in a safe manner, and in compliance with all conditions of the telecommunications permit, without exception, unless specifically granted relief by the city in writing, as well as all applicable and permissible local codes, ordinances, and regulations, including any and all applicable city, state and federal laws, rules, and regulations;

(2) That the construction of the applicant’s wireless telecommunications facilities is legally permissible, including but not limited to demonstration of the applicant’s authority to do business in the state.

(G) Where a certification is called for in this chapter, such certification shall bear the signature and seal of a professional engineer licensed in the state.

(H) In addition to all other required information as stated in this chapter, all applications for the construction or installation of new wireless telecommunications facilities, collocations and substantial changes of existing facilities shall contain the information hereinafter set forth, except as otherwise provided in this section.

(1) A generally descriptive statement of the objective(s) for the new facility or substantial change including and expanding on a need such as type of coverage (“in building” or “in vehicle”) and/or capacity requirements. Such statements shall not contain proprietary information such as build out plans and projected number of customers. Such statement may focus on past and current needs rather than future needs.

(2) The applicant shall provide information showing that the facility is necessary, and that its denial would constitute a prohibition or effective prohibition under federal law, i.e., propagation studies.

(3) The name, physical address, email address and phone number of the person preparing the report.

(4) The name, physical address, email address, and phone number of the property owner and applicant, and to include the legal name of the applicant. If the site is a tower or other structure and the owner is different than the applicant, provide name, structural address, and email address of the tower/structure owner, and authorization by the owner to seek utilization of the tower, property, structure.

(5) The postal address, legal description and tax map parcel number of the property.

(6) The zoning district or designation in which the property is situated.

(7) Size of the property stated both in square feet and lot line dimensions, and a survey showing the location of all lot lines and existing structures and easements.

(8) The location of nearest residential structure.

(9) The location, size and height of all existing and proposed structures on the property which is the subject of the application.

(10) The type, locations and dimensions of all proposed and existing landscaping and fencing.

(11) The number and azimuth, size and center line height location of all proposed and existing antennas on the supporting structure.

(12) The number and type of the antenna(s) proposed with a copy of the specification sheet.

(13) The make, model, type and manufacturer of the tower and design plan stating the tower’s capacity to accommodate multiple users.

(14) A site plan describing the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above preexisting grade, materials, color and lighting.

(15) The frequency, modulation and class of service of radio or other transmitting equipment.

(16) The actual intended transmission power stated as the maximum effective radiated power in watts.

(17) Signed documentation showing that the wireless telecommunication facility with the proposed installation will be in full compliance with current FCC RF emissions guidelines. If not categorically excluded, a complete RF emissions study is required to provide verification.

(18) A sworn statement or other evidence of the FCC license applicable for the intended use of the wireless telecommunications facilities.

(19) A copy of the geotechnical subsurface soils investigation, evaluation report and foundation recommendation for a proposed or existing tower site and if existing tower or water tank site, a copy of the installed foundation design. This information may be provided following the issuance of a telecommunications permit but must be provided prior to the issuance of a building permit and prior to the start of construction.

(20) A copy of the City of Rio Rancho business registration.

(I) The applicant shall provide a written analysis, completed by a qualified individual or organization, showing that the proposed wireless telecommunications facility is in compliance with Federal Aviation Administration Regulation Part 77 and if it requires lighting. If this analysis shows that an FAA determination is required, then all filings with the FAA, all responses from the FAA and any related correspondence shall be provided with the application. This information may be provided following the issuance of a telecommunications permit but must be provided prior to the issuance of a building permit.

(J) When a permit is required under this chapter for a substantial change of, or collocation on, an existing wireless telecommunications facility for which a telecommunications permit has previously been issued, the applicant shall submit only those items, reports, certifications, documentation and other matters that reflect and pertain to changes in the information submitted in application for the previous permit; no propagations studies shall be required under subsection (H)(2) of this section in an application for a collocation no more than 10 feet higher than an existing, permitted antenna on a previously permitted structure.

(K) The applicant shall provide certification with documentation (structural analysis) including calculations showing that the telecommunication facility tower and foundation and attachments, rooftop support structure, water tank structure, and any other proposed supporting structure are designed and will be constructed to meet all local, city, state and federal structural requirements for loads, including wind and ice loads. In no case shall design capacity be acceptable which exceeds 100% except as set forth in ANSI standards or adopted building code. This information may be submitted following the issuance of the telecommunications permit but shall be provided prior to the issuance of the building permit and prior to the start of construction.

(L) If the applicant’s proposal is for a collocation or substantial change on an existing tower, the applicant shall provide signed documentation of the tower condition such as an ANSI report as per Annex E, Tower Maintenance and Inspection Procedures, ANSI/TIA/EI 222F-96 or most recent version which must be dated no later than three years from the date of application for a guyed tower and five years for monopoles and self-supporting towers.

(M) The applicant shall provide to the city photo simulations of all proposed new wireless telecommunications facilities or collocations on existing wireless telecommunications facilities.

(N) The applicant shall demonstrate in writing and/or by drawing how it shall effectively screen from view the base and all related equipment and structures of the proposed wireless telecommunications facility.

(O) The applicant shall demonstrate in writing and/or by drawing the proposed facility’s compliance with all of the applicable requirements of Sections 158.25 through 158.31.

(P) The city strongly urges any applicant to attend a preapplication meeting with city staff and the city’s expert/consultant, to address issues that will help to expedite the review and permitting process. A preapplication meeting shall also include a site visit if there has not been a prior site visit for the requested site. Costs of the city’s consultants to prepare for and attend the preapplication meeting will be charged to the applicant’s escrow account established under Section 158.13 following submission of an application.

(Q) An applicant shall submit its completed application to the city either electronically, or in a sufficient number of hard copies (in accordance with rules therefor published by the city), but in no event more than four copies plus the original.

(R) Except when due to circumstances beyond an applicant’s reasonable control, all applications for a telecommunications permit shall be completed, including all submittals, reports, documentation, certifications and payments required under this chapter, within one year from the applicant’s initial submittal relating to the application. An application that is not so completed within one year (except when due to circumstances beyond the applicant’s control) shall be disregarded and application fees (Section 158.17) forfeited, and the applicant shall comply with all applicable requirements of this chapter anew, as if the previous application had not been submitted.

(S) Where reasonably possible and practicable all applicants for telecommunications permit should develop their plans to allow reasonable requests from the city to use space on its towers and space within the existing or planned compound for deploying and operating public service radio facilities (e.g., police, fire, emergency, homeland security, and the like). Should the addition of city requirements exceed structural limits the request may be denied by the permit holder or owner of the wireless telecommunications facility; the city will pay reasonable market value for any such use. Where reasonably practicable the city will also require access to its equipment on a 24/7 basis for maintenance and operating requirements. However, the city will work with applicants to ensure they receive adequate advance notice for routine activities (excluding emergencies).

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06) Penalty, see § 158.99

158.13 APPLICATION REVIEW COSTS.

(A) The city may hire any consultant and/or expert necessary to assist the city in reviewing and evaluating applications, and for inspecting construction and/or modification of wireless telecommunications facilities.

(B) An applicant shall deposit with the city funds sufficient to reimburse the city for all reasonable costs of consultant and expert evaluation and consultation to the city in connection with the review of any application including the construction and modification of the site, once permitted. The initial deposit shall be $7,000 for a new tower and $4,000 for a collocation or substantial change of an existing structure. However, should multiple (three or more) projects, by the same applicant, be started to proceed concurrently the escrow amounts may be negotiated. The placement of the escrow amounts with the city shall precede the preapplication meeting and is the official start of the application process. The city will provide reasonable information about the ordinance and the process prior to official start of the process. The city will maintain a separate escrow account for all such funds. The city’s consultants/experts shall invoice the city for its services in reviewing the application, including the construction and modification of the site, once permitted. If at any time during the process this escrow account appears to be inadequate to complete the consultants’/experts’ review, the applicant shall immediately, upon notification by the city, replenish that escrow account so that it has a balance of at least $1,000. Such additional escrow funds shall be deposited with the city before any further action or consideration is taken on the application. In the event that the amount held in escrow by the city is more than the amount of the actual invoicing at the conclusion of the project, the remaining balance shall be promptly refunded to the applicant, in accordance with the requirements of the city’s Financial Services Department.

(C) The total amount of the funds needed as set forth in subsection (B) of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification.

(D) Application review costs and fees shall be reviewed and adjusted as needed to insure that the amounts required to be deposited into escrow under this section and the amount of the nonrefundable application fee charged under Section 158.17 represent, as accurately as practicable, the city’s cost of reviewing and processing applications.

(E) In no event shall the total application review costs under this section and the city’s fee paid pursuant to Section 158.17 exceed $15,000 for a new tower, or $8,000 for a collocation or substantial change. All invoices received by the city to be paid out of funds held in escrow under this section shall be open to inspection by the applicant during regular business hours upon reasonable prior notice.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06) Penalty, see § 158.99

158.14 ADMINISTRATIVE HEARING; NOTICE REQUIREMENTS.

(A) An administrative hearing before the city’s Development Services Director, or designated hearing officer, shall be held prior to approval of any application to construct a new tower for a wireless telecommunications facility in a residential zone, or a collocation or substantial change at such an existing site. Such administrative hearing shall be open to the public and follow the procedures for public hearings as set forth by the Governing Body.

(B) The hearing referred to in subsection (A) of this section shall concern only the applicant’s compliance with the provisions of this chapter. The Director or hearing officer shall render a written determination as to whether the application complies with this chapter, based on review of the applicant’s submittals and the matters appropriately raised at the hearing, no later than 10 calendar days following its adjournment. If the Director or hearing officer determines that the application does not demonstrate compliance with this chapter, a written determination shall enumerate, with particularity, the specific deficiencies, omissions, and/or instances of such noncompliance.

(C) The hearing referred to in subsection (A) of this section shall be held no later than 30 days of the applicant’s submission of a completed application, with all reports and other submittals required hereunder.

(D) Notwithstanding anything to the contrary contained in this section, no hearing shall be required for the issuance of a permit for:

(1) Any collocation on, or substantial change of, a wireless telecommunications facility for which a permit has previously been issued under this chapter, if such collocation or substantial change does not significantly change the appearance or height of the facility;

(2) Any collocation on a wireless telecommunications facility for which a permit has previously been issued under this chapter, if such facility was, at the time it was permitted, designed to include such collocation pursuant to Section 158.26(A); or

(3) Any application properly qualifying as an eligible facilities request and processed under Section 158.19.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06; Am. Ord. 21-04) Penalty, see § 158.99

158.15 ACTION ON APPLICATION.

(A) The city will undertake a review of a completed application pursuant to this chapter in a timely fashion, consistent with its responsibilities, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public’s interest and need to be involved, the applicant’s desire for a timely resolution, and applicable state and federal law.

(B) After the administrative hearing (if required) and/or after formally considering the application, the city may approve, approve with conditions, or deny a telecommunications permit, based on the applicant’s compliance with the requirements of this chapter. Its decision shall be in writing and shall be supported by substantial evidence contained in a written record. The burden of proof for the grant of the permit shall always be upon the applicant.

(C) If the city approves the telecommunications permit, then the applicant shall be notified of such approval in writing, and the telecommunications permit shall be issued within 10 calendar days of the city’s action. Except for necessary building permits, and subsequent certificates of compliance, once a telecommunications permit has been granted hereunder, no additional permits or approvals from the city, such as site plan or zoning approvals, shall be required by the city for the wireless telecommunications facilities covered by the telecommunications permit.

(D) If the city denies the telecommunications permit, then the applicant shall be notified of such denial in writing within 10 calendar days of the city’s action. Such written notice shall enumerate, with particularity, the specific deficiencies, omissions, and/or instances of noncompliance with the requirements of this chapter.

(E) If the city denies a telecommunications permit, and the grounds for such denial concern matters that may be cured within a reasonable time, the applicant may amend, supplement, or resubmit its application within 60 days of the city’s denial, and such amendment(s), supplement(s), or resubmission shall be evaluated as part of the applicant’s original application.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06) Penalty, see § 158.99

158.16 TRANSFER/REVOCATION OF PERMIT.

The extent and parameters of a telecommunications permit shall be as follows:

(A) The telecommunications permit shall not be assigned, transferred or conveyed without written notification to the city. Such notification will occur within 60 calendar days of such assignment, transfer or conveyance.

(B) A telecommunications permit may, following a hearing upon due prior notice to the holder of the permit, be revoked, canceled, or terminated for a violation of the conditions and provisions of the telecommunications permit, or for a material violation of this chapter after prior written notice to the holder of the telecommunications permit and an opportunity to cure.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06) Penalty, see § 158.99

158.17 APPLICATION FEE.

At the time that a person submits an application for a telecommunications permit for a new tower, such person shall pay a nonrefundable application fee of $5,000 to the city. If the application is for a telecommunications permit for collocating or substantial change on an existing tower or other suitable structure, where no increase in height of the tower or structure is required, the nonrefundable fee shall be $2,500. The application fee is a one-time cost, at permit application, and covers administrative expenses, legal notice, notification of surrounding property owners, substantial change, records retention, future code adherence inspections, providing access to and information from records to other wireless companies seeking information on a particular site or sites and the same for collocation. These fees represent the city’s best estimate of the actual cost of city personnel and resources for processing applications and monitoring compliance with this chapter for the life of a wireless telecommunications facility, which is estimated to be 30 years. Application review costs and fees shall be reviewed and adjusted as needed to insure that the amount of the fees represents, as accurately as practicable, the city’s cost of reviewing and processing applications and monitoring compliance with this chapter.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06) Penalty, see § 158.99

158.18 RELIEF.

Any applicant desiring relief, waiver or exemption from any aspect or requirement of this chapter may request such at the preapplication meeting; provided, that the relief or exemption sought is contained in the submitted application for a telecommunications permit, or an amendment to the permit application. Such relief may be temporary or permanent, partial or complete. The applicant shall have the burden of showing the need for the requested relief, waiver or exemption and shall bear all costs of the city’s consultants/experts (if any) in considering the request for relief. No such relief shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted, the relief, waiver or exemption will have no significant effect on the health, safety and welfare of the city, its residents and other service providers.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06)

158.19 ELIGIBLE FACILITIES REQUESTS.

(A) Application. An application shall be submitted for approval of eligible facilities requests containing at least the following:

(1) A completed application form signed by applicant, and identifying a person who may be contacted regarding the application, and that person’s mail and email addresses and telephone number.

(2) A clear statement that the request is being made as an eligible facilities request pursuant to this chapter and complies with all requirements set forth therein.

(3) A clear description of the work proposed, including but not limited to a description of the excavation that may be associated with the work, and a description of the base station elements or wireless support structure elements that may be modified, and the modifications that will be made; and the date(s) and time(s) during which the work will take place.

(4) Photographs and scale drawings showing the dimensions and location of the base station, wireless support structure and accessory facilities prior to performance of the work proposed, and photo simulations and scale drawings showing the dimensions and locations of the same after the work is performed.

(5) A statement certifying that, before commencing, during performance of and upon completion of the work proposed, the permitted wireless facility will comply with all applicable laws, regulation, practices or other requirements under federal, state or local law, including but not limited to building and electrical codes.

(6) For modifications to wireless support structures or other structures, written verification from a licensed professional engineer certifying that the host wireless support structure or structure is structurally and mechanically capable of supporting the proposed additional antenna or configuration of antennas and other equipment, extensions and appurtenances associated with the modification, and that the modification will not cause the facility to violate existing fall zone requirements. In no case shall design capacity be acceptable which exceeds 100% except as set forth in ANSI standards or adopted building code.

(B) Action upon receipt.

(1) Review. Upon receipt of an application for approval of an eligible facilities request, the City Manager or its designee shall review such application to determine whether the application qualifies as an eligible facilities request and is complete, and shall promptly notify applicant if the application is incomplete or is not an eligible facilities request within the time frames specified by applicable Federal Communications Commission regulations implementing 47 U.S.C. § 1455. An application is incomplete if it omits or withholds any required information, or fails to provide information in sufficient detail to determine whether the application is for an eligible facilities request, or to determine whether the work will be performed in accordance with and will result in a wireless facility that complies with applicable safety codes.

(2) Approval. If the application is an eligible facilities request and the application is complete, the City Manager shall approve the application subject to this section. This section shall be operative, and any permit issued pursuant to this section shall remain in effect only so long as federal law, 47 U.S.C. § 1455, and implementing Federal Communications Commission regulations, 47 CFR 1.6100, require approval of an eligible facilities request as defined herein. By approval, the city solely intends to comply with a requirement of federal law and not to grant any property rights or interests except as compelled by federal law.

(C) Denial. If the application does not satisfy requirements for an eligible facilities request, or if applicant fails to submit a complete application after being notified that the application is incomplete by a time specified by the City Manager, or the application would otherwise result in a wireless facility that does not comply with applicable federal, state or local laws, the application shall be denied within 60 days of receipt unless the City Manager and applicant agree to a different date for action on the application.

(D) Exceptions – Effect of approval. City may except particular applications from approval, or may condition approval as appropriate consistent with federal law. Without limitation, approval does not exempt applicant from, or prevent city from opposing a proposed modification that is subject to complaint under, the National Historic Preservation Act, the National Environmental Protection Act, or other applicable law.

(E) Powers of City Manager. The City Manager or appropriate designee:

(1) Shall develop the forms required for an application for an eligible facilities request;

(2) Shall issue notices required under 47 U.S.C. § 1455, or Federal Communications Commission regulations implementing the statute;

(3) May waive any requirements of the code, including procedural and notice requirements, that are inconsistent with the procedural or substantive requirements of 47 U.S.C. § 1455 or Federal Communications Commission regulations implementing the statute;

(4) May request additional materials during review as needed to determine compliance with state, federal and local laws and regulations; and

(5) May agree to dates for action on an eligible facilities request.

(F) Limitation on permit. Because an eligible facilities request application is for modification of a base station or tower previously approved by the city, a permit issued pursuant to this section is subordinate to and shall be of no force and effect if the approval of the underlying wireless facility is revoked or expires.

(Ord. 20-06)

FACILITIES

158.25 LOCATION OF FACILITIES.

(A) Applicants for wireless telecommunications facilities shall locate, site and erect the wireless telecommunications facilities in accordance with the following priorities, subsection (A)(1) of this section being the highest priority and subsection (A)(6) of this section being the lowest priority:

(1) On existing towers or other structures without increasing the height of the tower or structure;

(2) On existing towers or other structures without increasing the overall height of the tower or structure by more than 10 feet;

(3) On properties in areas zoned Nonresidential/Heavy Industrial including C-2 Wholesale and Warehousing Commercial District, M-1 Industrial and Business Park District, BP Business Park District, and SU Special Use districts approved for such uses;

(4) On properties in areas zoned Nonresidential/Commercial to include C-1 Retail Commercial District, MU-A Mixed Use Activity Center District, NC Neighborhood Commercial District, O-1 Office District, CBD Central Business District, and SU Special Use districts approved for such uses;

(5) On city-owned properties or structures (provided space is available, loading is within the structure’s capacity, and the city deems the use appropriate);

(6) On properties in areas zoned for residential uses, subject to the hearing requirements of Section 158.14, in the following descending order of priority:

(a) R-3 and R-6 Multi-Family Residential Districts, and SU Special Use for multi-family residential uses;

(b) R-1, R-2, R-4 and R-5 Single-Family Residential Districts; SU Special Use for single-family residential uses; and T-Z Transitional Zoning Districts; and

(B) An applicant may not bypass sites of higher priority by stating the site proposed is the only site leased or selected without a demonstration that inability to use the requested site would constitute a prohibition or effective prohibition under applicable federal or state law.

(C) The applicant shall submit written evidence demonstrating the applicant’s review of the above locations in order of priority, and demonstrating the technological reason for the site selection. If the proposed site is not proposed for the highest priority listed above, then a detailed written explanation must be provided as to why a site of a higher priority was not selected. The person seeking such an exception must demonstrate why a permit should be granted for the proposed site and why failure to grant such a permit would constitute a prohibition or effective prohibition of the applicant’s ability to provide service as defined under applicable state or federal law.

(D) Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the city may disapprove an application for any of the following reasons:

(1) Conflict with safety and safety-related codes and requirements;

(2) Conflict with the historic nature or character of the site;

(3) The placement and location of wireless telecommunications facilities which would create an unreasonable risk, physical harm or safety arising from a collapse, structural failure or weather related safety issues all relating to the facilities;

(4) Conflicts with the provisions of this chapter.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06) Penalty, see § 158.99

158.26 SHARED USE OF FACILITIES.

(A) An applicant for a new tower permit shall examine the feasibility of designing the proposed tower to accommodate future demand for at least two additional commercial applications, such as future collocations, and shall design the proposed tower to structurally accommodate at least two additional antenna arrays equal to those of the applicant, and located as close to the applicant’s antenna as possible without causing interference. This requirement may be waived provided that the applicant, in writing demonstrates that the provisions of future shared usage of the tower is not technologically feasible or creates an unnecessary and unreasonable burden, based upon:

(1) The foreseeable number of FCC licenses available for the area, and the number of existing and potential licenses without available telecommunications sites;

(2) The kind of wireless telecommunications facility and structure proposed;

(3) Space available in the vicinity on existing and approved telecommunications sites.

(B) The owner of a tower permitted under this chapter shall negotiate in good faith for the shared use of the tower by other wireless service providers in the future, and shall:

(1) Respond within 60 days to a request for information from a potential shared-use applicant;

(2) Allow shared use of the tower if another telecommunications provider agrees in writing to pay reasonable, fair market charges for such use, and the services are technologically compatible. Such charges may include, but are not limited to, a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, permitting costs, return on equity, less depreciation, and all of the costs of adapting the tower or equipment to accommodate such shared use without causing electromagnetic interference.

(3) Failure to abide by the conditions of this section may be grounds for revocation of the telecommunications permit.

(C) All collocations shall comprise the minimum antenna array technologically required to provide service in the manner described in the application, to the extent practicable.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06) Penalty, see § 158.99

158.27 HEIGHT OF TOWERS; COMPLIANCE WITH CODES AND REGULATIONS.

(A) No tower constructed after the effective date of this chapter shall exceed the minimum height necessary to provide service, as demonstrated by the propagation studies submitted under Section 158.12(H)(2).

(B) All wireless telecommunications facilities shall be constructed, operated, maintained, repaired, provided for removal of, modified or restored in strict compliance with all current applicable technical, safety and safety-related codes adopted by the city, state, or United States, including but not limited to the most recent editions of the ANSI Code, National Electrical Safety Code and the National Electrical Code, as well as accepted and responsible workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but are not limited to, construction, building, electrical, fire, safety, health, and land use codes. In the event of a conflict between or among any of the preceding, the more stringent rule shall apply.

(C) All utilities at a wireless telecommunications facilities site shall be installed underground, to the extent practicable, and in compliance with all laws, ordinances, rules and regulations of the city, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate.

(D) All telecommunications sites shall include an access road, turn around space and parking, adequate to assure emergency and service access. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and the cutting of vegetation. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion. All road construction or improvements require a permit as determined by the City Engineer.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06) Penalty, see § 158.99

158.28 VISIBILITY.

(A) Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.

(B) Towers shall be galvanized and/or painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings and shall be maintained in accordance with the requirements of this chapter.

(C) If lighting is required, applicant shall provide a detailed plan for sufficient lighting of as unobtrusive and inoffensive an effect as is permissible under state and federal regulations.

(D) Wireless telecommunications facilities and any and all accessory or associated facilities shall be effectively screened from view to the extent practicable, and shall maximize the use of building materials, colors and textures designed to blend with the structure to which it may be affixed and/or to harmonize with the natural surroundings, including the use of camouflage technology to the extent practicable.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06) Penalty, see § 158.99

158.29 SECURITY.

All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner that prevents unauthorized access. Specifically:

(A) All antennas, towers and other supporting structures, including guy anchor points and wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or collided with; and

(B) Transmitters, telecommunications control points, and all utility connections shall be installed in such a manner that they are readily accessible only to persons authorized to operate or service them.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06) Penalty, see § 158.99

158.30 SIGNAGE.

(A) Each wireless telecommunications facility shall display a sign no larger than four square feet, containing the site identification number and emergency phone number(s) of the permit holder or other person operating the facility. The sign shall be on the equipment shelter or cabinet of the applicant and be visible from the access point of the site and must identify the equipment owner of the shelter or cabinet. The signs shall not be lighted, unless applicable law, rule or regulation requires lighting. No other signage, including advertising, shall be permitted.

(B) The applicant or future owner of the site shall update the site identification number and emergency phone number of the wireless telecommunications facility as displayed on the required sign within 60 calendar days of any sale, assignment, or transfer.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06) Penalty, see § 158.99

158.31 LOT SIZE AND SETBACKS.

All proposed towers and any other proposed wireless telecommunications facility structures shall be set back from abutting parcels, recorded rights-of-way and road and street lines by sufficient distance to assure safety of persons and structures in the vicinity. A standard of acceptable distance will be equal to the height of the proposed tower or wireless telecommunications facility structure. A freestanding wireless telecommunications structure that abuts a residential district shall establish the setback equal to the height of the structure. Applicants proposing a smaller setback shall demonstrate ancillary safety precautions in the design of the structure that justify the smaller setback, with acceptance of the ancillary safety precautions by the city.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06) Penalty, see § 158.99

158.32 – 158.39

RESERVED.

WIRELESS TELECOMMUNICATIONS IN THE PUBLIC RIGHT-OF-WAY

158.50 PURPOSE.

(A) To establish policies and procedures for the placement of small wireless facilities in rights-of-way within the city, which will provide public benefit consistent with the preservation of the integrity, safe usage, and visual qualities of the city rights-of-way and the city as a whole;

(B) To prevent interference with the use of streets, sidewalks, alleys, parkways and other public ways and places;

(C) To prevent the creation of visual and physical obstruction or other condition which may be hazardous to vehicular or pedestrian traffic;

(D) To prevent interference with the facilities or operations of facilities lawfully located in rights-of-way;

(E) To preserve the character of the neighborhoods in which facilities are installed;

(F) To facilitate rapid deployment of small wireless facilities to provide the benefits of advanced wireless services;

(G) To ensure city zoning regulations are applied consistently with federal and state telecommunications laws, rules and regulations of the Federal Communications Commission (“FCC”) and controlling court decisions; and

(H) To provide regulations which are specifically not intended to, and shall not be interpreted or applied to: (1) prohibit or effectively prohibit the provision of personal wireless services, (2) unreasonably discriminate among functionally equivalent service providers, or (3) regulate wireless communication facilities and wireless transmission equipment on the basis of the environmental effects of radio frequency emissions to the extent that such emissions comply with the standards established by the FCC.

(Ord. 20-06)

158.51 DEFINITIONS.

Terms not defined herein shall be given the meaning given in Section 158.02. For any conflicts with definitions set forth in Section 158.02 this section shall prevail. As used in this section, the following terms shall have the meanings set forth below:

(A) ANTENNA means communications equipment that transmits or receives electromagnetic radio frequency signals and that is used to provide wireless services.

(B) ANTENNA ARRAY means a single or group of antenna elements, not including small wireless facilities, and associated mounting hardware, transmission lines, remote radio units, or other appurtenances which share a common attachment device such as a mounting frame or mounting support structure for the sole purpose of transmitting or receiving wireless communication signals.

(C) APPLICABLE CODES means uniform building, fire, electrical, plumbing or mechanical codes adopted by a recognized national code organization and enacted by the city, including the local amendments to those codes enacted by the city solely to address imminent threats of destruction of property or injury to persons, to the extent that those amendments are consistent with the Wireless Consumer Advanced Infrastructure Investment Act (“Act”).

(D) APPLICANT means a wireless provider that submits an application.

(E) APPLICATION means a request submitted by an applicant to the city for a permit to collocate one or more small wireless facilities or to approve the installation, modification or replacement of a utility pole or wireless support structure.

(F) CITY means the City of Rio Rancho.

(G) CITY UTILITY POLE means a utility pole, owned or operated by the city, in a right-of- way.

(H) COLLOCATE or COLLOCATION means to install, mount, maintain, modify, operate or replace one or more wireless facilities on, in or adjacent to a wireless support structure or utility pole.

(I) DESIGN DISTRICT means an area zoned or otherwise designated by municipal ordinance and for which a municipality maintains and uniformly enforces unique design and aesthetic standards.

(I.1) DESIGN STANDARDS means standards of design for small wireless facilities as adopted by resolution of the governing body.

(J) DIRECTOR means the Director of the city’s Department of Development Services (or successor department) or his designee.

(K) FAA means the Federal Aviation Administration.

(L) FEE means a one-time charge germane to a particular application or service.

(M) LAW means federal, state or local law.

(N) PERMIT means the written permission of the city for a wireless provider to install, mount, maintain, modify, operate or replace a utility pole or to collocate a small wireless facility on a utility pole or wireless support structure.

(O) PERSON means an individual, corporation, limited liability company, partnership, association, trust or other entity or organization and includes the city.

(P) RATE means a recurring charge.

(Q) RIGHT-OF-WAY or ROW means the area on, below or above a public roadway, highway, street, sidewalk, alley or utility easement. “Right-of-way” does not include the area on, below or above a federal interstate highway, a state highway or route under the jurisdiction of the Department of Transportation, a private easement or a utility easement that does not authorize the deployment sought by a wireless provider.

(R) SMALL WIRELESS FACILITY means a wireless facility whose:

(1) Antennas are, or could fit, inside an enclosure with a volume of six or fewer cubic feet; and

(2) Other ground- or pole-mounted wireless equipment, not including the following, is 28 or fewer cubic feet in volume:

(a) Electric meter;

(b) Concealment elements;

(d) Grounding equipment;

(e) Power transfer switch;

(f) Cutoff switch;

(g) Vertical cable runs for the connection of power and other services; and

(h) Design elements required by the city.

(S) STEALTH DESIGN means technology that minimizes the visual impact of wireless communication facilities by camouflaging, disguising, screening or blending into the surrounding environment. Examples of stealth design include, but are not limited to, facilities disguised as trees (monopines), flagpoles, utility and light poles, bell towers, clock towers, ball field lights and architecturally screened roof-mounted antennas or flush-mounted antennas that are either painted to match or enclosed in an architecturally applicable box.

(T) TOWER means any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site.

(U) UTILITY POLE means a pole or similar structure used in whole or in part for communications services, electricity distribution, lighting or traffic signals. “Utility pole” does not include a wireless support structure or electric transmission structure.

(V) WIRELESS FACILITY means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including equipment associated with wireless communications; radio transceivers, antennas, coaxial or fiber-optic cables, regular and backup power supplies and comparable equipment, regardless of technological configuration; and includes a small wireless facility. “Wireless facility” does not include:

(1) The structure or improvements on, under or within which the equipment is collocated;

(2) A wireline backhaul facility, coaxial cable or fiber-optic cable between wireless support structures or utility poles; or

(3) Coaxial or fiber-optic cable otherwise not immediately adjacent to, or directly associated with, an antenna.

(W) WIRELESS INFRASTRUCTURE PROVIDER means a person, other than a wireless services provider, that may provide telecommunications service in New Mexico and that builds or installs wireless communications transmission equipment, wireless facilities’ utility poles or wireless support structures.

(X) WIRELESS PROVIDER means a wireless infrastructure provider or wireless services provider.

(Y) WIRELESS SERVICES means services provided to the public that use licensed or unlicensed spectrum, either mobile or at a fixed location, through wireless facilities.

(Z) WIRELESS SERVICES PROVIDER means a person that provides wireless services.

(AA) WIRELESS SUPPORT STRUCTURE means a freestanding structure, including a monopole or guyed or self-supporting tower, but not including a utility pole.

(BB) WIRELINE BACKHAUL FACILITY means a facility used to transport services by wire from a wireless facility to a network.

(Ord. 20-06)

158.52 EXEMPT FACILITIES.

The following are exempt from this chapter:

(A) FCC licensed amateur (ham) radio facilities;

(B) Satellite earth stations, dishes or antennas used for private television reception not exceeding one meter in diameter; and

(C) A temporary, commercial wireless communication facility installed for providing coverage of a special event such as news coverage or sporting event, subject to approval by the city. The facility shall be exempt from the provisions of this chapter for up to one week before and after the duration of the special event.

(Ord. 20-06)

158.53 PERMITTED USE; APPLICATION AND FEES.

(A) Permitted use. Collocation of a small wireless facility or a new or modified utility pole for the collocation of a small wireless facility shall be a permitted use subject to the other requirements of this chapter.

(B) Permit required. No person shall place a small wireless facility in the rights-of-way, without first filing a small wireless facility application and obtaining a permit therefor.

(C) Permit application. All small wireless facility applications for permits filed pursuant to this chapter shall be on a form, paper or electronic, provided by the city.

(D) Application requirements. The small wireless facility permit application shall be made by the wireless provider or its duly authorized representative and shall contain the following:

(1) The applicant’s name, address, telephone number, and email address;

(2) The names, addresses, telephone numbers, and email addresses of all consultants, if any, acting on behalf of the applicant with respect to the filing of the application;

(3) A general description of the proposed work and the purposes and intent of the small wireless 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;

(4) A demonstration that the small wireless facility shall comply with all applicable codes and standards, including the city’s design standards;

(5) An acknowledgement that the permit may be subject to an executed agreement regarding responsibilities for maintenance and provisions to allow city maintenance of city-owned facilities.

(E) Routine maintenance and replacement. The city may not require an application, approval or permit or impose a fee, rate or other charge for the routine maintenance of a small wireless facility or the replacement of a small wireless facility with one that is similar in size to, the same size as or smaller than it as long as the wireless provider notifies the city of the replacement at least 10 days before the replacement. The city may require a permit for routine maintenance or replacement of a small wireless facility in the rights-of-way that affect traffic patterns or require lane closures.

(F) Application fees. The city may charge an applicant an application fee in the amount of $100 for each of up to five small wireless facilities and $50 for each additional small wireless facility whose collocation is requested in a single application.

(Ord. 20-06)

158.54 PERMIT APPLICATIONS.

(A) Review of small wireless facility applications.

(1) The Director shall review the application for a small wireless facility permit in light of its conformity with applicable regulations of this chapter, and other applicable local ordinances, and all other governing laws, on nondiscriminatory terms and conditions, as follows:

(a) Within 30 days of receiving an application, the Director shall determine and notify the applicant whether the application is complete. If an application is incomplete, the Director shall so notify the applicant in writing and specifically identify the missing information.

1. The processing deadline set forth in subsection (A)(1)(a)(2) of this section shall be tolled from the date the Director sends such notice to the applicant, to the date the applicant provides the missing information. The processing deadline may also be tolled by agreement of the applicant and the city. The application shall be deemed complete if the city does not notify the applicant of any deficiency within the 30-day period, subject to tolling.

2. The applicant may cure the deficiencies identified by the Director and resubmit the application within 30 days of the denial without paying an additional application fee. The Director shall approve or deny the revised application within 30 days of receipt of the amended application. The subsequent review by the city shall be limited to the deficiencies cited in the original denial.

(b) The city shall render its final decision to approve or deny the application within 90 days of receipt of a completed application, subject to the tolling provisions herein.

(c) The Director shall advise the applicant in writing of its final decision, and in the final decision document the basis for a denial, if any, including specific code provisions on which the denial was based, and send the documentation to the applicant.

1. In the 90 days after the city receives an application to collocate a small wireless facility, the city may provide public notice of the application and an opportunity for written public comment on the application, submit the written public comment to the applicant and request that the applicant respond to it.

2. If the Director determines that applicable codes or laws require that a utility pole or wireless support structure be replaced before an application for collocation is approved, the Director may condition approval of the application on that replacement.

(2) If the city fails to act on an application within the 90-day review period, subject to tolling, the application shall be deemed approved; provided, however, that the city and the applicant may agree to extend the 90-day period. An applicant shall not unreasonably deny a city’s request to extend the period.

(3) The city may only deny a completed application to collocate small wireless facilities if the application does not conform with applicable codes, regulations and requirements, or local laws concerning:

(a) Public safety;

(b) Design for utility poles to the extent that the standards are objective;

(d) The spacing and location of ground-mounted equipment in a right-of-way; or

(e) If there is nonconformance with design standards, design district or historic district requirements.

(f) The Director may require the applicant to certify that the small wireless facilities to be collocated conform with the FCC’s regulations concerning radio frequency emissions.

(g) Inadequate provisions to allow use and maintenance of the primary purpose of the utility pole or other city maintained utilities.

(4) An applicant seeking to collocate small wireless facilities may, at the applicant’s discretion, file a consolidated application and receive a single permit for multiple small wireless facilities. Provided, that the city’s denial of one or more small wireless facilities in a consolidated application shall not delay the processing of any other small wireless facilities submitted in the same application.

(5) The city may require an applicant to obtain one or more permits to collocate a small wireless facility in a right-of-way if the requirement is of general applicability to users of the right-of-way. An applicant seeking to collocate within the city up to 25 small wireless facilities, all of which are substantially the same type, on substantially the same types of structures, may file a consolidated application for the collocation of the facilities. An applicant shall not file with the city more than one consolidated application in any five-business-day period. The applicant shall include in a consolidated application an attestation that, unless a delay in collocation is caused by the lack of commercial power or fiber at the site, the collocation will begin within 180 days after the permit issuance date. The city and provider may subsequently agree to extend that period.

(Ord. 20-06)

158.55 SMALL WIRELESS FACILITIES IN THE ROW; MAXIMUM HEIGHT; OTHER REQUIREMENTS.

(A) Maximum size of permitted use. Small wireless facilities, and new or modified utility poles for the collocation of small wireless facilities, may be placed in the rights-of-way as a permitted use contingent upon the approval of an application by the city and subject to the following requirements:

(1) A new replacement or modified utility pole associated with the collocation of a small wireless facility in the right-of-way is not subject to zoning review and approval, except for that which pertains to undergrounding prohibitions, unless the utility pole is higher than whichever of the following is greater: 10 feet plus the height in feet of the tallest existing utility pole, excluding a utility pole supporting wireless facilities that is in place on the effective date of the Act, located within 500 feet of the new, replacement or modified utility pole, in the same right-of-way, and 50 or fewer feet above ground level or 50 feet.

(2) New small wireless facilities in the rights-of-way may not extend:

(a) More than 10 feet above an existing utility pole in the rights-of-way in place as of the effective date of this chapter; or

(b) More than 10 feet above the height for a new utility pole.

(3) A small wireless facility collocated on a utility pole or wireless support structure that extends 10 or fewer feet above the pole or structure in a right-of-way in any zone is classified as a permitted use and is not subject to zoning review or approval.

(B) Application required for a utility pole. An application for the installation of a new, replacement or modified utility pole for the collocation of a small wireless facility in the right-of-way is required. The application shall be approved unless the installation does not conform with:

(1) Applicable codes or laws regarding public safety, design, or undergrounding prohibitions if those regulations require undergrounding by a date certain within one year after the application, include a waiver of zoning or other processes and allow the replacement of utility poles;

(2) Federal or state standards for pedestrian access or movement;

(3) Design standards and design or historic district requirements;

(4) Contractual requirements between the city and a private property owner concerning the design of utility poles in the right-of-way; or

(5) The city’s laws concerning public safety and reasonable minimum spacing requirements for new utility poles in the rights-of-way.

(C) Application processing. An application for a permit to install a new, replacement or modified utility pole for the collocation of a small wireless facility shall be processed within 150 days after receipt of the application, or as otherwise required by law. If the city fails to act on the application within that time period, the application is deemed approved. The application fee shall be $750.

(D) Installation. Installation, modification or replacement shall begin within 180 days after the permit issuance unless the city and wireless provider agree to extend that time or a delay is caused by a lack of commercial power or fiber at the site. The new, modified or replacement utility pole may be maintained for 10 years and the permit will be renewed for one 10-year period unless the utility pole does not conform with applicable codes or local laws. At the expiration of the permit renewal/extension, the permit shall lapse and a new application will be required.

(E) Zoning. Any wireless provider that seeks to install, modify, operate or replace a utility pole in the rights-of-way that exceeds the height or size limits contained in this chapter shall be subject to applicable zoning requirements.

(F) Decorative poles. A wireless provider shall be permitted to replace a decorative pole when necessary to collocate a small wireless facility, but any replacement pole shall reasonably conform to the design aesthetics of the decorative pole being replaced and shall be subject to local approval, which shall not be unreasonably denied.

(G) Underground district. In areas designated solely for underground or buried cable and utility facilities, the city shall allow replacement of city poles in the designated area. The wireless provider is permitted to seek a waiver of the undergrounding requirements for the placement of a new utility pole to support small wireless facilities.

(H) Historic and design districts. The city may require as they pertain to small wireless facilities located in design districts or historic districts reasonable, technically feasible, nondiscriminatory and technologically neutral design or concealment measures and reasonable measures for conforming to the design aesthetics of design districts or historic districts. Any such measures may not have the effect of prohibiting a wireless provider’s technology.

(Ord. 20-06)

158.56 EFFECT OF PERMIT.

(A) Authority granted. A permit from the city authorizes an applicant to undertake only certain activities 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 rights-of-way.

(B) Permit duration. Work described in a permit granted pursuant to this chapter shall begin within 180 days of the permit issuance date unless the city and applicant agree to extend this period due to delay caused by the lack of commercial power or communications facilities. Subject to applicable relocation requirements and the applicant’s right to terminate collocation at any time, the permit is valid for a period of 10 years, and will be renewed for one 10-year term unless the city finds that the small wireless facility does not conform with applicable codes and local laws. At the expiration of the permit renewal/extension, the permit shall lapse and a new application will be required.

(Ord. 20-06)

158.57 REMOVAL, RELOCATION OR MODIFICATION OF SMALL WIRELESS FACILITIES IN THE ROW.

(A) Notice. Within 90 days following written notice from the city, a wireless provider shall, at its own expense, protect, support, temporarily or permanently disconnect, remove, relocate, change or alter the position of any small wireless facilities within the rights-of-way whenever the city has determined that such removal, relocation, change or alteration, is reasonably necessary for the construction, repair, maintenance, or installation of any city improvement in or upon, or the operations of the city in or upon, the rights-of-way.

(B) Emergency removal. The city retains the right and privilege to cut or move any small wireless facility located within the rights-of-way of the city, as the city 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 and provide the wireless provider an opportunity to move its own facilities prior to cutting or removing a facility and shall notify the wireless provider after cutting or removing a small wireless facility.

(C) Abandonment of facilities. Upon abandonment of a small wireless facility or utility pole within the rights-of-way of the city, the wireless provider shall notify the city in writing of its intention to discontinue use of a small wireless facility or utility pole. The notice shall inform the city of the time and the way in which the small wireless facility or utility pole will be removed. The wireless provider is responsible for the costs of the removal. The city may require the wireless provider to return the property to its pre-installation condition according to the city’s reasonable and nondiscriminatory requirements and specifications. If the wireless provider does not complete the removal within 45 days after notice, the city may complete the removal and assess the costs of removal against the wireless provider. The permit for the small wireless facility or utility pole expires upon removal.

(D) Damage and repair. The city may require a wireless provider or the provider’s contractor to repair all damage to the city’s property or rights-of-way caused by the activities of the wireless provider or contractor and return the property and rights-of-way to their pre-damage condition according to the city’s requirements and specifications upon written notice of the requirements to the provider. If the wireless provider fails to make the repairs within a reasonable period after receiving the notice, the city may effectuate those repairs and charge the provider the reasonable, documented cost of such repairs.

(Ord. 20-06)

158.58 RATES.

(A) Annual rate for use of right-of-way. The city may charge a wireless provider for the provider’s use of the right-of-way in constructing, installing, maintaining, modifying, operating or replacing a utility pole or in collocating a small wireless facility in the right-of-way an annual rate of $250 multiplied by the number of small wireless facilities placed by the wireless provider in the city’s right-of-way.

(B) Annual rate increase for use of right-of-way. The city may adjust the annual rate, but no more often than once a year and by no more than an amount equal to one-half the annual change, if any, in the most recent Consumer Price Index for all urban consumers for New Mexico, as published by the United States Department of Labor. The city shall notify all wireless providers charged the pre-adjusted rate of the prospective adjustment and shall make the adjustment effective 60 days or more following that notice.

(C) Annual rate for use of city utility poles. The rate for collocation of a small wireless facility on a city utility pole in the right-of-way shall be $20 per year.

(Ord. 20-06)

158.59 ATTACHMENT TO OR UTILITY POLES IN THE RIGHT-OF-WAY.

(A) Placement of small wireless facilities and poles. Subject to the approval of an application by the city, a wireless provider may collocate small wireless facilities and construct, install, modify, mount, maintain, operate and replace utility poles associated with the collocation of a small wireless facility along, across, on or under city right-of-way. The city shall not enter into an exclusive agreement with a wireless provider for the use of a right-of-way in constructing, installing, maintaining, modifying, operating or replacing a utility pole or collocating a small wireless facility on a utility pole or wireless support structure.

(B) Review of applications. The city shall process an application for approval to collocate a small wireless facility on a city utility pole in accordance with this chapter. The city may condition the issuance of a permit on the wireless provider’s replacement of the city utility pole if applicable codes or local laws concerning public safety require that replacement. The city shall process an application for a permit to install a replacement city pole in accordance with this chapter. The city shall retain ownership of the replacement utility pole.

(Ord. 20-06)

158.60 PROPER PLACEMENT.

(A) A wireless provider that deploys a utility pole or small wireless facility in a right-of-way shall construct, maintain and locate it so as not to obstruct travel, endanger the public or interfere with another utility facility in the right-of-way. The wireless provider’s operation of a small wireless facility in the right-of-way shall not interfere with the city’s public safety communications. The wireless provider shall comply with the National Electrical Safety Code and all applicable laws. The city may, through its Development Services Department, adopt reasonable regulations, including requiring a right of use or encroachment agreement, concerning the separation of the wireless provider’s utility poles and small wireless facilities from other utility facilities in the right-of-way, or abutting public utility easement.

(B) If the city determines that a utility pole or the wireless support structure of a wireless provider must be relocated to accommodate a public project, the provider shall assume the cost of relocating the wireless facility deployed on the pole or structure.

(C) Without the city’s written consent, a wireless provider shall not install a new utility pole or small wireless facility in a right-of-way adjacent to a street or thoroughfare that is 50 feet wide or less and adjacent to single-family residential lots or other multifamily residences or to undeveloped land designated for residential use by zoning or deed restrictions.

(D) Exempt from zoning review.

(1) Small wireless facilities, DAS (distributed antenna system) and other similar networks on poles in public rights-of-way, on city-owned property, on private property, or on other structures, including stealth facilities, monopoles or replacement poles under 50 feet that are located in the public rights-of-way for placement of small wireless facilities, DAS and other similar networks, are exempt from zoning review and shall be subject only to encroachment or building permits by administrative review.

(2) Notwithstanding any other provision of this chapter, the city may not require an applicant or provider to submit an application or pay a rate for:

(a) Routine maintenance that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way;

(b) Replacing or upgrading a small wireless facility, DAS, other similar network with a facility that is substantially similar in size or smaller and that does not require excavation or closing of sidewalks or vehicular lanes in a public right-of-way;

1. Twenty-one days for temporary uses related to special events;

2. Ninety days for temporary uses related to repair facilities; or

3. Not more than 90 days at any location within the city after declaration of an emergency or a disaster by the Governor of New Mexico.

(3) For purposes of the foregoing exemptions, a small wireless facility, DAS, other similar network, or pole is considered to be “substantially similar” if:

(a) The new or upgraded facility, including the antenna or other equipment element, will not be more than 10% larger on a one-time basis than the original facility; provided, that the increase may not result in the facilities exceeding the size limitations provided elsewhere in this chapter;

(b) The new or upgraded pole will not be higher than the existing pole;

(d) The replacement or upgrade does not defeat existing design standards and concealment elements of the existing pole; and

(e) The determination of whether a replacement or upgrade is substantially similar is made by measuring from the dimensions of the small wireless facility or pole as approved by the city.

(E) Collocation. Support structures for small wireless facilities or similar networks shall be capable of accommodating the collocation of other service providers.

(F) Signage. Signs located at the small wireless facilities, DAS, and similar networks shall be limited to ownership and contact information, FCC antenna registration number (if required) and any other information as required by an applicable governmental authority. Commercial advertising is strictly prohibited.

(G) Accessory equipment. Accessory equipment, including any buildings, cabinets or shelters, shall be used only to house equipment in support of the operation of the small wireless facility or its support structure. Any equipment not used in direct support of such operation shall not be stored on the site.

(Ord. 20-06)

158.61 COMPLIANCE.

(A) All small wireless facilities must comply with all standards and regulations of the FCC and any state or other federal government agency with the authority to regulate those facilities.

(B) The site and small wireless facilities, including all landscaping, fencing and related transmission equipment must be maintained at all times in a neat and clean manner and in accordance with all approved plans.

(C) If any FCC, state or other governmental license or any other governmental approval to provide communication services is ever revoked as to any site permitted or authorized by the city, the permittee must inform the city of the revocation within 30 days of receiving notice of such revocation.

(Ord. 20-06)

158.62 INDEMNIFICATION.

Each permit issued for small wireless facilities located in city right-of-way or other city property shall be deemed to have as a condition of the permit a requirement that the wireless provider defend, indemnify and hold harmless the city and its officers, agents, employees, volunteers, and contractors from any and all liability, damages, or charges (including attorneys’ fees and expenses) arising out of claims, suits, demands, or causes of action as a result of the construction, performance, operation, maintenance, repair, replacement, removal, or restoration of the small wireless facilities.

(Ord. 20-06)

158.63 CONFLICTS.

In the event of a conflict between the provisions of this chapter and any other provision of the municipal code, this chapter shall govern, but only to the extent necessary to resolve the conflict.

(Ord. 20-06)

158.64 – 158.80

RESERVED.

ENFORCEMENT

158.81 INDEPENDENT TECHNICAL AND LEGAL REVIEW.

Although the city intends for city staff to review administrative matters to the extent feasible, the city may retain the services of independent experts of its choice to provide technical and legal evaluations of permit applications for all wireless facilities and poles. The expert’s review may include, but is not limited to (A) the accuracy and completeness of the items submitted with the application; (B) the applicability of analysis and techniques and methodologies proposed by the applicant; (C) the validity of conclusions reached by the applicant; and (D) whether the proposed wireless facilities comply with the applicable approval criteria set forth in this chapter. The applicant shall pay the actual, direct and reasonable cost for any independent consultant fees through a deposit, paid within 10 days of the city’s request. When the city requests such payment, the application shall be deemed incomplete for purposes of application processing timelines until the deposit is received. In the event that such costs and fees do not exceed the deposit amount, the city shall refund any unused portion within 30 days after the final permit is released or, if no final permit is released, within 30 days after the city receives a written request from the applicant. If the costs and fees exceed the deposit amount, then the applicant shall pay the difference to the city.

(Ord. 20-06)

158.82 INSTALLATION SAFETY REVIEW.

(A) For the period beginning on the date a permit is issued and ending on the date the permitted work is accepted, the city may perform a safety review of construction, reconstruction or installation of all wireless facilities and poles as it deems necessary to ensure compliance with this chapter and the city code. All city plans, reviews, inspections, standards, and other rights and actions related to the wireless provider’s improvements are for the city’s sole and exclusive benefit and neither the wireless provider nor any other person may rely on the city’s safety reviews or have any rights related to the reviews. The preceding sentence does not prevent the wireless provider from relying on consents, permits, or approvals the city may grant based on the city’s plans, reviews, and inspections. As a condition of obtaining the permits authorized by this chapter, the wireless provider grants the city the right to access the wireless provider’s wireless facilities and poles. Except for emergencies, this right of access is limited to dates and times agreed to by the parties.

(B) The city may recover the city’s costs incurred to perform such installation safety reviews as the city deems necessary at the rates established by resolution of the Governing Body. However, in no event will the safety review exceed the total number of hours listed in the table below for each permit. The city will submit an invoice to the wireless provider for each site installation safety review that shows the number of hours billed in increments of one-quarter hour (15 minutes) for the time spent per person on site for each review; except that a flat rate of one-quarter hour (15 minutes) will be charged for travel to and from each site for each review, and a flat rate of one hour will be charged for a wireless provider’s failure to permit access to the facilities at the agreed time and date. The wireless provider shall pay any such invoice within 30 calendar days of the invoice date.

Installation Safety Review		Not to Exceed Total Number of Hours
Pole-type structure No. 1: Existing noncity pole (no modification or replacement)	Per permit	1
Pole-type structure No. 2: Existing city pole (no modification or replacement)	Per permit	1
Pole-type structure No. 3: Existing noncity pole (modification or replacement required)	Per permit	2
Pole-type structure No. 4: Existing city pole (modification or replacement required)	Per permit	2
Pole-type structure No. 5: New city pole	Per permit	3
Pole-type structure No. 6: New noncity pole	Per permit	3

(C) In order to fully recover its costs, the city may increase the hourly rate charged once a year by one-half the annual change, if any, in the most recent Consumer Price Index for all urban consumers for New Mexico, as published by the United States Department of Labor.

(Ord. 20-06)

158.83 FINAL INSPECTION.

(A) A certificate of completion will only be granted upon satisfactory evidence that the wireless facilities were installed in substantial compliance with the approved plans.

(B) If it is found that the wireless facilities installation does not substantially comply with the approved plans, the applicant shall make any and all such changes required to bring the facilities into compliance promptly and in any event prior to putting the facilities in operation.

(Ord. 20-06)

158.84 PERFORMANCE SECURITY.

An applicant for a telecommunications permit and/or the owner of record of the proposed wireless telecommunications facility shall, at their cost and expense, execute and file with the city a bond with one or more sureties reasonably satisfactory to the city or other form of security acceptable to the city, in an amount of at least $25,000 for a tower and $5,000 for a collocation, to assure the faithful performance of the terms and conditions of this chapter and conditions of any telecommunications permit issued pursuant to this chapter. The full amount of the bond or security shall remain in full force and effect throughout the term of the telecommunications permit and/or until any necessary site restoration is completed to restore the site to a condition comparable to that which existed prior to the issuance of the original telecommunications permit. No bond or other security shall be required for permits issued for material modification of, or collocation on, an existing wireless telecommunications facility for which a bond has already been provided.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06. Formerly 158.40) Penalty, see § 158.99

158.85 INSPECTION AND MAINTENANCE.

In order to verify that the holder of a telecommunications permit and any and all lessees and/or licensees of wireless telecommunications facilities, place, construct, maintain and operate such facilities in accordance with all applicable requirements of this chapter, the telecommunications permit issued for such facility, and all technical, safety, fire, building, and zoning codes, laws, ordinances and regulations and other applicable requirements, the city may inspect all facets of the permit holder’s, lessee’s or licensee’s placement, construction, modification and maintenance of such facilities, including, but not limited to, towers, antennas and buildings or other structures constructed or located on the permitted site. An inspection report, per ANSI report as per Annex E, Tower Maintenance and Inspection Procedures, ANSI/TIA/EI 222F-96 or most recent version, must be performed every three years for a guyed tower and five years for monopoles and self-supporting towers.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06. Formerly 158.41) Penalty, see § 158.99

158.86 LIABILITY INSURANCE.

(A) A holder of a telecommunications permit shall secure and at all times maintain public liability insurance, with one or more insurance carriers licensed to do business in the state and having an A.M. Best rating of A or better, for personal injuries, death and property damage for the duration of the telecommunications permit, with policy limits of at least $1,000,000 per occurrence/$2,000,000 aggregate.

(B) For a wireless telecommunications facility on city property, such insurance policy shall name the city an additional insured.

(C) A certificate of insurance evidencing the insurance coverage required by this section shall be provided to the city prior to the construction of any wireless telecommunications facility, and within 10 days of any renewal policy or replacement policy therefor. The policy or policies required by this section shall include an endorsement obligating the insurer to provide the city at least 30 days’ prior written notice of any change in or cancellation of such policy or coverage.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06. Formerly 158.42) Penalty, see § 158.99

158.87 INDEMNIFICATION.

An application for any wireless telecommunication facility to be located on city property shall include a binding, written undertaking by the applicant to defend and indemnify the city and its officers, officials, employees and agents, and to hold them harmless from and for any and all penalties, damages, costs, charges, claims, suits, demands, causes of action or award of damages, of any kind and nature, known or unknown, at law or in equity arising from or relating to the placement, construction, erection, modification, location, use, operation, maintenance, repair, installation, replacement, removal, or restoration of the proposed wireless telecommunications facility, to the extent permitted by law, excepting, however any portion of such claims, suits, demands, causes of action or damages as may be attributable to the fault of the city, or its servants or agents.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06. Formerly 158.43) Penalty, see § 158.99

158.88 DEFAULT.

If a wireless telecommunications facility is repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter or of the telecommunications permit, then the city shall notify the holder of the telecommunications permit in writing of the violation. After receiving written notification, a permit holder shall have 60 calendar days to cure the violation. The city shall consider extensions to the cure period as may be required upon the permit holder’s demonstration that, despite its good faith efforts, such default cannot be reasonably cured within the provided time. A permit holder still in violation after expiration of the cure period may be considered in default, subject to fines as in Section 158.99, and its telecommunications permit may be revoked.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06. Formerly 158.44) Penalty, see § 158.99

158.89 REMOVAL OF FACILITIES.

(A) Under the following circumstances, the city may determine that the health, safety, and welfare of the city warrant the removal of a wireless telecommunications facility:

(1) A wireless telecommunications facility that has been abandoned (i.e., not used as a wireless telecommunications facility) for a period exceeding 90 consecutive days, or a total of 180 days in any 365-day period except for periods of non-use caused by circumstances beyond the facility operator’s reasonable control, such as force majeure or acts of God, shall be either restored to use (with such repairs as may be required) or removed within 90 days of the city’s notice, as described below;

(2) A wireless telecommunications facility that falls into such a state of disrepair that it creates a health or safety hazard, as determined by a licensed engineer, shall be repaired or removed within 60 days of such determination, unless the owner or operator of such facility demonstrates that it has made substantial progress to repair the facility, but that its good faith efforts could not restore the disrepair within the 60-day time period;

(3) A wireless telecommunications facility located, constructed, or modified without a telecommunications permit when one is required, or in a manner not authorized by the required telecommunications permit or any other necessary license, permit or authorization, that may be subject to immediate removal.

(B) If the city makes a determination that a wireless telecommunications facility is in a condition described in the preceding paragraphs of this section, the city shall notify the holder of the telecommunications permit that the wireless telecommunications facilities must be repaired or removed, as provided above. Notwithstanding the foregoing, the city may approve an interim temporary use permit for the facility, to enable the sale or cure of the condition(s) requiring repair or removal, if the city in its discretion determines that such a temporary use permit is in the city’s best interest.

(C) Whenever a wireless telecommunications facility is required to be removed under this section the holder of a telecommunications permit, or its successors or assigns, shall dismantle and remove such wireless telecommunications facilities, and all associated structures and facilities, from the site and restore the site to as close to its original condition as is possible, such restoration being limited only by physical or commercial impracticability, within the time required under this section. Notwithstanding the foregoing, the owner of the property upon which such a wireless telecommunications facility is located may retain any access roadway and any improvements thereto.

(D) The city may remove, or cause to be removed, any wireless telecommunications facility which remains in violation of this section after the expiration of the period provided for repair or removal, at the sole expense of the owner of the property on which the facility is situated. If the components and other materials of such wireless telecommunications facility have not been claimed within 10 working days of the city’s removal of the facility, the city may declare such components and other material abandoned and dispose of the same in any manner the city deems fit.

(E) The city shall approve a temporary wireless telecommunications facility under any of the following circumstances, in the manner provided in this section:

(1) In the event that an existing wireless telecommunications facility becomes inoperable due to force majeure or an act of God, the city will approve a temporary telecommunications permit, with the condition that any temporary wireless telecommunications facility installed or employed to provide service must be removed from the site within 30 days of the existing wireless telecommunications facility resuming service, or the completion of a replacement wireless telecommunications facility;

(2) Due to a special event occurring in the city which draws a large number of visitors and requires extra resources to maintain service, in which case any and all temporary wireless telecommunications facilities must be removed from the site within 48 hours of the conclusion of the event;

(3) In the event of an emergency or natural disaster which renders other forms of communication nonviable, thus necessitating a temporary wireless telecommunications facility, the city shall permit any temporary wireless communications facilities, on such terms and conditions as the city and the telecommunications provider, based on the needs of the city and the capabilities of the telecommunications provider.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06. Formerly 158.45) Penalty, see § 158.99

158.90 COMPLIANCE WITH FEDERAL AND STATE REGULATIONS.

(A) To the extent that the holder of a telecommunications permit has not received relief, or is otherwise exempt, from appropriate state and/or federal agency rules or regulations, then the holder of such a telecommunications permit shall adhere to, and comply with, all applicable rules, regulations, standards, and provisions of any state or federal agency, including, but not limited to, the FAA and the FCC. Specifically included in this requirement are any rules and regulations regarding height, lighting, security, electrical and RF emission standards.

(B) To the extent that applicable rules, regulations, standards, and provisions of any state or federal agency, including but not limited to the FAA and the FCC, and specifically including any rules and regulations regarding height, lighting, and security are changed and/or are modified during the duration of a telecommunications permit, then the holder of such a telecommunications permit shall conform the permitted wireless telecommunications facilities to the applicable changed and/or modified rule, regulation, standard, or provision within a maximum of 24 months of the effective date of the applicable changed and/or modified rule, regulation, standard, or provision, or sooner as may be required by the issuing entity.

(C) A determination by a state or federal agency with jurisdiction that a rule or regulation has been violated shall be grounds to revoke a telecommunications permit.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06. Formerly 158.46) Penalty, see § 158.99

158.91 APPEALS.

(A) Any telecommunications provider aggrieved by the city’s failure to issue a telecommunications permit under this chapter, by any conditions imposed by an issued telecommunications permit, or any other final decision regarding the issuance of, or failure to issue, a telecommunications permit (other than a decision made by the Director or hearing officer following an administrative hearing under Section 158.14), may appeal in the manner provided by Section 150.08.

(B) The appeal process provided by this section shall not apply to any matter concerning the granting or withholding relief under Section 158.18, nor to any determination regarding the use of city-owned property under Section 158.25(A)(5).

(C) The decision of the Planning and Zoning Board shall be final, subject to appeal to the Governing Body in the manner provided by Section 150.08.

(Ord. 07-41; Am. Ord. 18-28; Am. Ord. 20-06. Formerly 158.47)

158.92 – 158.98

RESERVED.

158.99 PENALTIES.

(A) Except as otherwise provided in this chapter, the city may impose against the holder of a telecommunications permit the penalties as set forth below.

(B) A failure to obtain a permit when required or a violation of any telecommunications permit issued pursuant to this chapter is hereby declared to be an offense, punishable by a fine not exceeding $500 per occurrence upon conviction. Each week’s continued violation shall constitute a separate additional violation.

(C) Notwithstanding anything in this chapter, the holder of a wireless telecommunications permit may not use the payment of fines, liquidated damages or other penalties, to evade or avoid compliance with this chapter or any section of this chapter. An attempt to do so shall subject the holder of the telecommunications permit to termination and revocation of its telecommunications permit. The city may also seek injunctive relief to prevent the continued violation of this chapter, without limiting other remedies available to the city.

(Ord. 04-041; Am. Ord. 07-41; Am. Ord. 20-06)