Chapter 12.26 PUBLIC RIGHTS-OF-WAY

Article I. General Provisions

"Person" means a natural person; an association of natural persons such as partnership or tenancy in common; or a legal entity such as a corporation or limited liability company. This term is to be broadly construed to include anyone or anything that could possibly encroach on the public rights-of way.

"Public rights-of-way" include, but are not limited to, streets, roads, highways, bridges, alleys, sidewalk, trails, paths, public easements and all other public ways or areas, including subsurface and air space over these areas.

"Within the city" means territory over which the city now has or acquires jurisdiction for the exercise of its powers.

12.26.020 Scope of regulatory control.

The city has jurisdiction and exercises regulatory control over each public right-of-way whether the city has a fee, easement, or other legal interest in the rights-of-way. The city has jurisdiction and regulatory control over each right-of-way whether the legal interest in the right-of-way was obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure or other means.

12.26.030 City permission requirement.

No person may occupy or encroach on, over, or beneath a public right-of-way without the prior permission of the city, which may be withheld at its sole discretion. The city may grant permission to use rights-of-way by franchises, licenses and permits. Any such permission shall be granted in writing.

12.26.040 Obligations of the city.

The exercise of jurisdiction and regulatory control over a public right-of-way by the city is not official acceptance of the right-of-way, and does not obligate the city to maintain or repair any part of the right-of-way or accept any liability therefore.

12.26.050 Violation--Penalty.

Any person, firm or corporation who violates any provision of this chapter shall be guilty of committing an infraction. The penalty for committing an infraction shall be a fine, not to exceed five hundred dollars. Refer to Chapter 1.20, General Penalty of this Municipal Code.

Article II. Small Wireless Facilities in the Rights-of-Way

12.26.060 Purpose and scope.

A. Purpose. The purpose of this article is to establish reasonable and nondiscriminatory policies and procedures for the placement of small wireless facilities in rights-of-way within the city’s jurisdiction, which will provide public benefit consistent with the preservation of the integrity, safe usage, and reasonable aesthetic qualities of the city rights-of-way and the city as a whole.

B. Intent. In enacting this article, the city is establishing uniform standards consistent with federal law to address the placement of small wireless facilities and associated poles in the rights-of-way, including without limitation, to manage the public rights-of-way in order to:

1. Prevent interference with the use of streets, sidewalks, alleys, parkways and other public ways and places;

2. Prevent the creation of obstructions and other conditions that are hazardous to vehicular and pedestrian traffic;

3. Prevent interference with the facilities and operations of facilities lawfully located in rights-of-way or public property;

5. Preserve the character of the community, historic districts or areas with decorative poles; and

6. Facilitate technology advancements, such as deployment of small wireless facilities, to provide the benefits of wireless services.

C. Scope. The provisions of this article pertain only to small cell wireless facilities within the right-of-way. Provisions for small cell wireless facilities not within the right-of-way are addressed in the city’s Land Development Code.

12.26.070 Definitions.

A. "Antenna" means the same as defined in 47 CFR Section 1.6002(b), as may be amended or superseded. The term includes an apparatus designed for the purpose of emitting radio frequencies (RF) to be operated or operating from a fixed location pursuant to Federal Communications Commission authorization, for the provision of personal wireless service and any commingled information services. For purposes of this definition, the term "antenna" does not include an unintentional radiator, mobile station, or device authorized under 47 CFR Part 15.

B. "Antenna equipment" means the same as defined 47 CFR Section 1.6002(c), as may be amended or superseded, which defines the term to mean equipment, switches, wiring, cabling, power sources, shelters or cabinets associated with an antenna, located at the same fixed location as the antenna, and, when collocated on a structure, is mounted or installed at the same time as such antenna.

C. "Antenna facility" means the same as defined in 47 CFR Section 1.6002(d), as may be amended or superseded, which defines the term to mean an antenna and associated antenna equipment.

D. "Applicable codes" means uniform building, fire, safety, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or state or local amendments to those codes that are of general application and consistent with state and federal law.

E. "Applicant" means any person who submits an application as or on behalf of a wireless provider.

F. "Application" means requests submitted by an applicant (1) for permission to collocate small wireless facilities; or (2) to approve the installation, modification or replacement of a structure on which to collocate a small wireless facility in the rights-of-way, where required.

G. "City structure" means a structure located in the rights-of-way within the city’s jurisdictional boundaries that is owned, managed or operated by the city or any subdivision or instrumentality thereof, including municipal electric utilities. A structure includes but is not limited to streetlights, traffic signals, utility poles and buildings.

H. "Collocate" means the same as defined in 47 CFR Section 1.6002(g), as may be amended or superseded, which defines that term to mean (1) mounting or installing an antenna facility on a pre-existing structure, and/or (2) modifying a structure for the purpose of mounting or installing an antenna facility on that structure. "Collocation" has a corresponding meaning.

I. "Day" means calendar day. For purposes of the FCC review period, a terminal day that falls on a holiday or weekend shall be deemed to be the next immediate business day.

J. "Decorative pole" means a city structure that is specially designed and placed for aesthetic purposes.

K. "Historic district" means a group of buildings, properties, or sites that are either: (1) listed in the National Register of Historic Places or formally determined eligible for listing by the Keeper of the National Register in accordance with Section VI.D.1a.i-v of the Nationwide Programmatic Agreement codified at 47 CFR Part 1, Appendix C; or (2) a locally designated historic district as of the effective date of this article or in a locally designated historic district existing when an application is submitted.

M. "Person" means an individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including the city.

N. "Pole" means a type of structure in the rights-of-way that is or may be used in whole or in part by or for wireline communications, electric distribution, lighting, traffic control, signage, or similar function, or for collocation of small wireless facilities; provided, such term does not include a tower, building or electric transmission structures.

O. "Right-of-way," "rights-of-way," "public right-of-way," or "ROW" means and includes, but is not limited to, the space in, upon, above, along, across, over or under the public streets, roads, highways, lanes, courts, ways, alleys, boulevards, bridges, trails, paths, sidewalks, bicycle lanes, public utility easements and all other public ways or areas, including the subsurface under and air space over these areas, but does not include parks, parkland, or other city property not generally open to the public for travel.

P. "Routine maintenance" means inspections, testing, repair, and modifications subject to Section 6409(a) of the Spectrum Act of 2012 that maintain functional capacity, aesthetic and structural integrity of a small wireless facility and/or the associated pole or structure.

Q. "Small wireless facility" means a facility that meets each of the following conditions per 47 CFR Section 1.6002(l), as may be amended or superseded:

1. The facilities (a) are mounted on structures fifty feet or less in height including the antennas, or (b) are mounted on structures no more than ten percent taller than other adjacent structures, or (c) do not extend existing structures on which they are located to a height of more than fifty feet or by more than ten percent, whichever is greater; and

2. Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three cubic feet in volume; and

3. All other wireless equipment associated with the structure, including wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than twenty-eight cubic feet in volume; and

4. The facilities do not result in human exposure to radio frequency in excess of the applicable safety standards specified in 47 CFR Section 1.1307(b).

R. "Structure" means the same as defined in 47 CFR Section 1.6002(m), as may be amended or superseded, which defines that term as a pole, tower, or base station, whether or not it has an existing antenna facility, that is used or to be used for the provision of personal wireless service (whether on its own or commingled with other types of service).

S. "Wireless infrastructure provider" means any person, including a person authorized to provide communications service in the state, that builds or installs wireless communication transmission equipment, wireless facilities, but that is not a wireless services provider.

T. "Wireless provider" means a wireless infrastructure provider or a wireless services provider.

U. "Wireless services provider" means a person who provides personal wireless services (whether or not it is commingled with other services).

12.26.080 Permitted use--Application and fees.

A. Permitted Use. The following uses within the rights-of-way shall be a permitted use, subject to compliance with the city’s applicable design standards, administrative review and issuance of a permit as set forth in this article:

2. Placement of a new, modified, or replacement pole to be used for collocation of a small wireless facility.

1. Except as otherwise provided in this article, no person shall place any small wireless facility described in subsection A of this section in the rights-of-way, without first filing an application for the facility and obtaining a permit.

2. The siting of small cell wireless facilities on structures not owned by the city shall require the written approval and signature of the owner of the structure(s) to be utilized prior to acceptance of a permit application.

C. Application Requirements. An application filed pursuant to this article shall be made by the wireless provider or its duly authorized representative and shall contain the following:

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

3. A general description of the proposed small wireless facility and associated pole, if applicable. 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 physical work proposed;

4. Site plans and engineering drawings to scale that identify the proposed small wireless facility;

5. A statement or other demonstration that the small wireless facility shall comply with all applicable codes, regulations and standards, including applicable FCC regulations for human exposure to RF emissions.

D. Routine Maintenance and Replacement. An application shall not be required for: (1) routine maintenance; or (2) the replacement of a small wireless facility with another small wireless facility that is the same, substantially similar or smaller in size and weight and height. The city shall, however, require a permit for work within the right-of-way.

E. Information Updates. Any amendment to nonmaterial information contained in an application shall be submitted in writing to the city within thirty days of the change. Material changes may necessitate a new application in accordance with this article.

1. The application fee for siting SWF in the city ROW on existing infrastructure, as it involves both access to city ROW and vertical infrastructure located in the city ROW, shall be set by resolution of the city council and may be evaluated on an annual basis to ensure the fees reflect the actual costs to the city to process the permit applications.

2. The annual usage fee for siting and maintaining SWF in the city ROW shall be set by resolution of the city council.

12.26.090 Action on administrative permit applications subject to this article.

A. The city may deny an application subject to this article if the proposed small wireless facility or new, modified, or replaced pole:

1. Materially and demonstrably interferes with the safe operation of traffic control equipment;

2. Materially and demonstrably interferes with sight lines or clear zones for transportation or pedestrians;

3. Materially fails to comply with the Americans with Disabilities Act or similar federal, state, or local laws, standards and regulations regarding pedestrian access or movement;

4. Fails to comply with applicable codes, standards and regulations, including the city’s design standards; or

B. The city must act on an application within the applicable review period and provide written notice to the applicant if the application is denied. The written notice shall state the reasons for denial, with reference to specific code provisions, ordinance, application instruction or otherwise publicly stated procedures on which the denial was based, and be sent to the applicant within five days after the city denies the application or before the applicable review period expires, whichever occurs first. The applicable review period is governed by the FCC in 47 CFR Section 1.6003.

C. Batch Applications. Applicants are allowed to submit multiple small cell wireless facility applications without numerical limits. SWF applications to be batched must be substantially similar with respect to design elements and within fifty feet of each other, in order to promote efficiency with respect to the city’s review process.

A batch application that includes deployment(s) that fall within collocations on existing structures and deployment(s) on new structures shall be subject to a ninety-day time frame for approval as opposed to a sixty-day time frame.

12.26.100 Small wireless facilities in the ROW--Maximum height--Other requirements.

A. Maximum Size of Permitted Use. Any wireless provider that seeks to install, modify, or replace facilities on a pole in the rights-of-way that exceeds the height limits contained in Section 12.26.070(Q)(1) shall be subject to applicable requirements.

B. Decorative Poles. Subject to this code and applicable design standards, a wireless provider is permitted to collocate on or replace a decorative pole when necessary to collocate a small wireless facility; provided, that any such replacement pole shall, to the extent feasible, replicate the design of the pole being replaced.

C. Underground District. Small wireless facilities are exempt from the requirements of Section 13.24.010.

12.26.110 Effect of construction/work permit.

A. Authority Granted--No Property Right or Other Interest Created. A permit from the city authorizes an applicant to undertake only certain activities in accordance with this article 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. The approval of a small wireless facility permit does not grant a right-of-way construction permit or right to provide services.

1. A permit for construction granted pursuant to this section shall be valid for a period of one hundred eighty days after issuance unless the city agrees to extend this period for good cause, including but not limited to delay caused by the lack of commercial power or communications facilities, or by other events outside of the reasonable control of the wireless provider.

2. The installed facility is subject to applicable relocation requirements, termination for material noncompliance after notice and a reasonable opportunity to cure, and an applicant’s right to terminate a permit at any time.

12.26.120 Removal, relocation or modification of small wireless facility in the ROW.

A. Notice. The city shall provide the applicant reasonable advance notice, but no less than ninety days following written notice from the city, the 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 or Relocation of Facilities. The city retains the right and privilege to cut or move any small wireless facility located within the rights-of-way of the city in the event of an emergency, as the city may determine to be necessary, appropriate or useful in response to any imminent danger to public health, safety, or property. 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 promptly after cutting or removing a small wireless facility.

C. Abandonment of Facilities. Applicant is required to remove all equipment from the facility and return the facility to its original condition, or condition as approved by the planning director, if the facility is abandoned for a period greater than six months. Removal and restoration must occur within ninety days of the end of the six-month period.

D. Damage and Repair. The city may require a wireless provider to repair all damage to the rights-of-way directly caused by the activities of the wireless provider and return the rights-of-way to its functional equivalence before the damage pursuant to the competitively neutral, reasonable requirements and specifications. If the wireless provider fails to make the repairs within thirty days after written notice, the city may affect those repairs and charge the applicable party the actual, documented cost of such repairs.

E. Payment Obligation Upon or After Facility Removal. A wireless provider may remove one or more of its small wireless facilities at any time from the rights-of-way and city structures in the ROW with the required permits. The wireless provider will cease owing the city compensation, as of the date of removal, for such removed facilities.

12.26.130 Collocation on city structures in the ROW.

A. Collocation on City Structures. Small wireless facilities may be collocated on city structures in the rights-of-way pursuant to this article. No person will be permitted an exclusive arrangement or an arrangement which excludes otherwise qualified applicants to attach to city structures in the rights-of-way. A person who purchases or otherwise acquires a city structure is subject to the requirements of this section.

B. Make-Ready. The rates, fees, terms and conditions for the make-ready work to collocate a small wireless facility on a pole owned or controlled by the city must comply with this article and shall be subject to the following:

1. The city or any person owning, managing, or controlling the poles owned by the city or private franchise utility will provide a good faith estimate for any make-ready work reasonably necessary to make a specific city pole suitable for attachment of the requested small wireless facility, including pole replacement if necessary, within sixty days after receipt of a completed request. Make-ready work including any pole replacement shall be completed within sixty days of written acceptance of the good faith estimate by the applicant.

12.26.140 Design guidelines.

1. Ground-mounted equipment in the right-of-way is discouraged, unless the applicant can demonstrate that pole-mounted equipment is not technically feasible, or the electric utility requires placement of equipment on the ground (such as an electric meter). If ground-mounted equipment is necessary, then the applicant shall conceal the equipment in a cabinet, in street furniture or with landscaping.

2. Replacement poles, new poles and all antenna equipment shall comply with the Americans with Disabilities Act ("ADA"), city construction and sidewalk clearance standards and city, state and federal laws and regulations in order to provide a clear and safe passage within, through and across the right-of-way. Further, the location of any replacement pole, new pole, and/or antenna equipment must comply with applicable traffic requirements, not interfere with utility or safety fixtures (e.g., fire hydrants, traffic control devices), and not adversely affect public health, safety or welfare.

4. Any replacement pole shall substantially conform to the material and design of the existing pole or adjacent poles located within the contiguous right-of-way unless a different design is requested and approved pursuant to subsection G of this section.

5. No advertising, branding or other signage is allowed unless approved by the city as a concealment technique or as follows:

a. Safety signage as required by applicable laws, regulations, and standards; and

b. Identifying information and twenty-four-hour emergency telephone number (such as the telephone number for the operator’s network operations center) on wireless equipment in an area that is visible from the ground.

6. The total volume of multiple antennas on one structure shall not exceed fifteen cubic feet, unless additional antenna volume is requested and approved pursuant to subsection G of this section.

7. Antennas and antenna equipment shall not be illuminated except as required by municipal, federal or state authority, provided this shall not preclude deployment on a new or replacement street light.

a. Small wireless facilities may not displace any existing street tree or landscape features unless:

i. Such displaced street tree or landscaping is replaced with native and/or drought-resistant trees, plants or other landscape features approved by the city; and

ii. The applicant submits and adheres to a landscape maintenance plan or agrees to pay an appropriate in-lieu fee for the maintenance costs.

B. Small Wireless Facilities Attached to Wooden Poles and Nonwooden Poles with Overhead Lines. Small wireless facilities located on wooden utility poles and nonwooden utility poles with overhead lines shall conform to the following design criteria unless a deviation is requested and approved pursuant to subsection G of this section:

c. National Electrical Safety Code ("NESC") and National Electrical Code ("NEC") standards.

2. The pole at the proposed location may be replaced with a taller pole or extended for the purpose of accommodating a small wireless facility; provided, that the replacement or extended pole, together with any small wireless facility, does not exceed fifty feet in height or ten percent taller than adjacent poles, whichever is greater. The replacement or extended pole height may be increased if required by the pole owner, and such height increase is the minimum necessary to provide sufficient separation and/or clearance from electrical and wireline facilities. Such replacement poles may either match the approximate color and materials of the replaced pole or shall be the standard new pole used by the pole owner in the city.

3. To the extent technically feasible, antennas, equipment enclosures, and all ancillary equipment, boxes, and conduit shall match the approximate material and design of the surface of the pole or existing equipment on which they are attached, or adjacent poles located within the contiguous right-of-way. Near matches may be permitted by the city when options are limited by technical feasibility considerations, such as when high-frequency antennas cannot be placed within an opaque shroud but could be wrapped with a tinted film.

4. Antennas which are mounted on poles shall be mounted as close to the pole as technically feasible and allowed by the pole owner.

5. No antenna shall extend horizontally more than twenty inches past the outermost mounting point (where the mounting hardware connects to the antenna), unless additional antenna space is requested and approved pursuant to subsection G of this section.

6. Antenna equipment, including but not limited to radios, cables, associated shrouding, disconnect boxes, meters, microwaves and conduit, which is mounted on poles shall be mounted as close to the pole as technically feasible and allowed by the pole owner.

7. Antenna equipment for small wireless facilities must be attached to the pole, unless otherwise required by the pole owner or permitted to be ground-mounted (pursuant to subsection (A)(1) of this section). The equipment must be placed in an enclosure reasonably related in size to the intended purpose of the facility.

8. All cables and wiring shall be covered by conduits and cabinets to the extent that it is technically feasible, if allowed by pole owner. The number of conduits shall be minimized to the extent technically feasible.

C. Small Wireless Facilities Attached to Nonwooden Light Poles and Nonwooden Utility Poles without Overhead Utility Lines. Small wireless facilities attached to existing or replacement nonwooden light poles and nonwooden utility poles without overhead lines shall conform to the following design criteria unless a deviation is requested and approved pursuant to subsection G of this section:

1. The antennas and associated equipment enclosures must be concealed within the pole, camouflaged to appear as an integral part of the pole or be mounted as close to the pole as feasible and must be reasonably related in size to the intended purpose of the facility and reasonable expansion for future frequencies and/or technologies, not to exceed the volumetric requirements described in Section 12.26.070. If the equipment enclosure(s) is mounted on the exterior of the pole, the applicant is encouraged to place the equipment enclosure(s) behind any decorations, banners or signs that may be on the pole. Conduit and fiber must be fully concealed within the pole. Any replacement pole shall substantially conform to the material and design of the existing pole or adjacent poles located within the contiguous right-of-way unless a different design is requested and approved pursuant to Section I.

2. The height of any replacement pole may not extend more than ten feet above the height of the existing pole unless such further height increase is required in writing by the pole owner.

D. New Poles. Small wireless facilities may be attached to new poles that are not replacement poles under subsection B or C of this section, installed by the wireless provider, subject to the following criteria:

1. Antennas, antenna equipment and associated equipment enclosures (excluding disconnect switches), conduit and fiber shall be fully concealed within the structure. If such concealment is not technically feasible, or is incompatible with the pole design, then the antennas and associated equipment enclosures must be camouflaged to appear as an integral part of the structure or mounted as close to the pole as feasible, and must be reasonably related in size to the intended purpose of the facility, not to exceed the volumetric requirements in Section 12.26.070.

2. To the extent technically feasible, all new poles and pole-mounted antennas and equipment shall substantially conform to the material and design of adjacent poles located within the contiguous right-of-way unless a different design is requested and approved pursuant to Section H.

3. New poles shall be no more than forty feet in height unless additional height is requested and approved pursuant to Section H.

4. The city prefers that wireless providers install small wireless facilities on existing or replacement poles instead of installing new poles, unless the wireless provider can document that installation on an existing or replacement pole is not technically feasible or otherwise not possible (due to a lack of owner authorization, safety considerations, or other reasons acceptable to the city).

E. Historic District Requirements. Small wireless facilities or poles to support collocation of small wireless facilities located in historic districts shall be designed to have a similar appearance, including material and design elements, if technically feasible, of other poles in the rights-of-way within five hundred feet of the proposed installation. Any such design or concealment measures may not be considered part of the small wireless facility for purpose of the size restrictions in the definition of "small wireless facility."

F. Strand-Mounted Equipment. Strand-mounted small wireless facilities are permitted, subject to the following criteria:

1. Each strand-mounted antenna shall not exceed three cubic feet in volume, unless a deviation is requested and approved pursuant to Section H.

2. Only two strand-mounted antennas are permitted between any two existing poles.

3. Strand-mounted devices shall be placed as close as possible to the nearest pole and in no event more than five feet from the pole unless a greater distance is required by the pole owner.

4. No strand-mounted device will be located in or above the portion of the roadway open to vehicular traffic.

5. Strand-mounted devices must be installed with the minimum excess exterior cabling or wires (other than original strand) to meet the technological needs of the facility.

1. An applicant may obtain a deviation from these design standards if compliance with the standard:

2. When requests for deviation are sought under subsections (G)(1)(a) through (e) of this section, the request must be narrowly tailored to minimize deviation from the requirements of these design standards, and the city must find the applicant’s proposed design provides similar aesthetic value when compared to strict compliance with these standards.

3. The city may also allow for a deviation from these standards when it finds the applicant’s proposed design provides equivalent or superior aesthetic value when compared to strict compliance with these standards.

4. The small wireless facility design approved under this subsection G must meet the conditions of 47 CFR Section 1.6002(l).

5. The city will review and may approve a request for deviation to the minimum extent required to address the applicant’s needs or facilitate a superior design.