Chapter 13.12
SMALL CELL COMMUNICATIONS FACILITIES
Sections:
13.12.015 Declaration of purpose and intent.
13.12.020 Orders, rules, and regulations.
13.12.025 Master license agreement required.
13.12.035 Use of right-of-way for small wireless facilities and utility poles.
13.12.040 General public ROW installation requirements.
13.12.045 Small wireless facilities – Restrictions.
13.12.050 Design standards applicable to all small wireless facilities.
13.12.055 Design standards applicable to collocated small wireless facilities.
13.12.060 Design standards applicable to small wireless facilities on new stand-alone utility poles.
13.12.065 Design standards applicable to decorative poles.
13.12.080 Application process.
13.12.085 Procedure for administrative review of applications.
13.12.100 Removal of small wireless facilities.
13.12.010 Definitions.
“Abandoned facilities” means facilities no longer in service or physically disconnected from the operating facilities, or from any other facilities, or from any other facilities that are in use or that still carry service. Facilities are deemed to be abandoned facilities if they are not properly permitted with the city.
“Administrative review” means ministerial review of an application by Eagle Mountain City relating to the review and issuance of a permit, including review by the city engineer or his/her designee to determine whether the issuance of a permit is in conformity with the applicable provisions of this chapter.
“Antenna” means communications equipment that transmits and/or receives electromagnetic radio frequency signals used in the provision of wireless services. This definition does not apply to broadcast antennas, antennas designed for amateur radio use, or satellite dishes for residential or household purposes.
“City” or “the city” means Eagle Mountain City, Utah.
“Collocate” means to install or mount a small wireless facility on an existing support structure, an existing tower, or on an existing pole.
“Communications facility” means, collectively, the equipment at a fixed location or locations within the public ROW that enables communications services, including: (1) radio transceivers, antennas, coaxial, fiber-optic or other cabling, power supply (including backup battery), and comparable equipment, regardless of technological configuration; and (2) all other equipment associated with any of the foregoing. A communications facility does not include the pole, tower or support structure to which the equipment is attached.
“Communications service” means cable service, as defined in 47 USC 522(6); information service, as defined in 47 USC 153(24); or telecommunications service, as defined in 47 USC 153(53).
“Communications service provider” means a provider of communications services and includes a cable operator, as defined in 47 USC 522(5), a provider of information service, as information service is defined in 47 USC 153(24); a telecommunications carrier, as defined in 47 USC 153(51); or a wireless provider.
“Decorative pole” means a pole that is specially designed and placed for aesthetic purposes.
“Discretionary review” means review of an application by Eagle Mountain City relating to the review and issuance of a permit that is other than an administrative review.
“Eligible facilities request” means an eligible facilities request as set forth in 47 CFR 1.6100(b)(3), as that section may be amended from time to time.
“Emergency” means any event that may threaten public health or safety, including, but not limited to, damaged or leaking water or gas conduit systems, damaged, plugged, or leaking sewer or storm drain conduit systems, damaged facilities, downed aerial facilities, downed poles or service outages whether to one customer or an area of the city.
“Master license agreement” means an agreement between a wireless provider and the city that sets forth the general terms and conditions pursuant to which the wireless provider may install and operate wireless facilities in the public way.
“Ordinary maintenance and repair” means inspections, testing and/or repair that maintain functional capacity, aesthetic and structural integrity of a communications facility and/or the associated support structure, pole or tower, that do not require blocking, damaging or disturbing any portion of the public ROW.
“Pole” means a legally constructed pole, such as a utility, lighting, traffic, or similar pole made of wood, concrete, metal or other material, located within the public right-of-way. A pole does not include a tower or support structure and does not include a pole or structure that supports electric transmission lines.
“Provider” means a communications service provider or a wireless services provider and includes any person that owns and/or operates within the public ROW any communications facilities, wireless facilities, poles built for the sole or primary purpose of supporting communications facilities, or towers.
“Public utility easement” means, unless otherwise specified or restricted by the terms of the easement, the area on, below, or above a property in which the property owner has dedicated an easement for use by utilities. Public utility easement does not include an easement dedicated solely for Eagle Mountain City use, or where the proposed use by the provider is inconsistent with the terms of any easement granted to Eagle Mountain City.
“Rate” means a recurring charge.
“Replace” or “replacement” means, in connection with an existing pole, support structure or tower, to replace (or the replacement of) same with a new structure, substantially similar in design, size and scale to the existing structure and in conformance with this chapter and any applicable Eagle Mountain City code, in order to address limitations of the existing structure to structurally support collocation of a communications facility.
“Small wireless facility” means a type of wireless facility: (1) on which each wireless provider’s antenna could fit within an enclosure of no more than six cubic feet in volume; and (2) for which all wireless equipment associated with the wireless facility, whether ground-mounted or pole-mounted, is cumulatively no more than 28 cubic feet in volume, not including any: (a) electric meter; (b) concealment element; (c) telecommunications demarcation box; (d) grounding equipment; (e) power transfer switch; (f) cut-off switch; (g) vertical cable run for the connection of power or other service; (h) wireless provider antenna; or (i) coaxial or fiber-optic cable that is immediately adjacent to or directly associated with a particular collocation, unless the cable is a wireline backhaul facility.
“State” means the state of Utah.
“Support structure” means a structure in the public ROW other than a pole or a tower to which a wireless facility is attached at the time of the application.
“Tower” means any structure in the public ROW built for the sole or primary purpose of supporting a wireless facility. A tower does not include a pole or a support structure.
“Wireless facility” means the equipment at a fixed location or locations in the public ROW that enables wireless services. The term does not include: (1) the support structure, tower or pole on, under, or within which the equipment is located or collocated; or (2) coaxial, fiber-optic or other cabling that is between communications facilities or poles or that is otherwise not immediately adjacent to or directly associated with a particular antenna. A small wireless facility is one type of a wireless facility.
“Wireless infrastructure provider” includes a person authorized to provide a telecommunications service in the city. It does not include a wireless service provider.
“Wireless services” means any wireless services using licensed or unlicensed spectrum, whether at a fixed location or mobile, provided to the public.
“Wireless services provider” means a person who provides wireless services. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.015 Declaration of purpose and intent.
A. Purpose. The purpose of this chapter is to establish the requirements for the siting and use of wireless facilities in a manner that facilitates the delivery of wireless services within the city, while minimizing associated adverse impacts. The goals of this chapter are to:
1. Provide for the managed development and installation, maintenance, modification, and removal of wireless services infrastructure in the city to provide adequate wireless communication coverage, without unreasonably discriminating against wireless providers of functionally equivalent services including all of those who install, maintain, and operate wireless facilities;
2. Promote and protect the public health, safety, and welfare, and, specifically, protect aesthetic values, by reducing the visibility of wireless facilities and structures to the fullest extent possible through techniques including but not limited to camouflage/concealment, design techniques, and undergrounding of wireless facilities and the equipment associated therewith, where appropriate;
3. Encourage the deployment of smaller, less intrusive wireless facilities to supplement existing telecommunications facilities;
4. Encourage owners and users of wireless facilities and structures to locate them, to the extent possible, where the adverse impact on the community is minimized;
5. Enhance the ability of wireless providers to provide such wireless services to the community quickly, effectively, and efficiently; and
6. Effectively manage wireless facilities in the public way.
B. Scope.
1. This chapter shall provide the basic local scheme for providers of wireless services and systems that require the use of the public ways, including providers of both the system and service, and those providers of the system only.
2. The requirements set forth in this chapter shall apply to all wireless facilities and structures located within the public way, and to all applications to locate or modify wireless facilities and structures within city public ways. This chapter shall apply to all future wireless providers and to all wireless providers in the city prior to the effective date of this chapter, whether operating with or without a license.
3. The activities regulated by this chapter are subject to terms of the Small Wireless Facilities Deployment Act, Title 54, Chapter 21, Utah Code Annotated 1953, or its successor.
C. Excluded Activity. This chapter shall not apply to video service systems, wireline backhaul facilities, or macro wireless facilities. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.020 Orders, rules, and regulations.
In addition to the requirements set forth in this chapter, the city may adopt such orders, rules and regulations which are reasonably necessary to accomplish the purposes of this chapter and are consistent herewith. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.025 Master license agreement required.
A. Any wireless provider desiring to install, repair, maintain, remove, and replace wireless facilities in the public way shall first enter into a master license agreement with the city, except to the extent exempted by federal or state law.
B. The city is empowered and authorized to grant nonexclusive master license agreements on a nondiscriminatory basis governing the installation, operation, use and maintenance of wireless facilities in the city’s public way in accordance with the provisions of this section.
C. The city shall grant a master license agreement to a wireless provider pursuant to a city council ordinance, noncodified, authorizing the negotiation and execution of a master license agreement. Acceptance of the master license shall occur by the wireless provider executing the authorized master license agreement within 30 days of recordation of the authorizing ordinance. Any amendment or extension thereof will also require city council approval.
D. The term of a master license agreement may be renewed if the wireless provider is in compliance with the master license agreement and all applicable laws, rules, and regulations, including this chapter.
E. This section shall only apply to wireless facilities. If a wireless provider has telecommunications systems that may be used for multiple purposes, such as a wireline backhaul facility, cable television, telecommunication services as defined in Chapter 10-1-401 et seq., Utah Code Annotated 1953, or video services system, then such provider shall obtain a franchise agreement per EMMC 13.10.030 or other applicable city law for each permitted purpose.
F. Before offering or providing any wireless services pursuant to the master license agreement, a wireless provider shall obtain all other regulatory approvals, permits, authorizations, or licenses for the offering or providing of such services from the appropriate federal, state, and local authorities, if required, and, upon request of the city, shall submit to the city evidence of the same, such as a license from the FCC or certificate from the Utah Public Service Commission.
G. The grant of a master license agreement will not excuse the wireless provider from obtaining (1) any permit or other authorization required to engage in or carry on any business within the city as required by the laws, rules, and regulations of the city, (2) any other permit, agreement or authorization required in connection with the use of property or facilities owned by third parties, or (3) any other permit or authorization required in connection with excavating or performing other work in or along the public way.
H. Wireless providers shall comply with all applicable federal, state, and city laws, rules and regulations, including those of the FCC.
I. Except to the extent exempted by applicable law, any wireless provider acting without a master license agreement on the effective date of the ordinance codified in this chapter shall request issuance of a master license agreement from the city within 90 days of the effective date of the ordinance codified in this chapter. If such request is made, the wireless provider may continue to provide services during the course of negotiations. If a timely request is not made, or if a master license agreement is not granted, the wireless provider shall remove its equipment from the public way within 30 days of notice from the city.
J. A master license agreement shall not convey title, equitable or legal, in the public way. A master license agreement is a license to occupy the public way on a nonexclusive basis for the limited purposes and time period stated in the agreement.
K. A master license agreement granted pursuant to this chapter shall contain appropriate provisions for enforcement, compensation, and protection of the public, consistent with the other provisions of this chapter, including, but not limited to, defining events of default, procedures for accessing the bond/security fund, and rights of termination or revocation.
L. In the event a wireless provider continues to operate all or any of its wireless facilities after the terms of the master license have expired, such wireless provider shall continue to comply with all applicable provisions of this chapter and the master license agreement, including, without limitation, all compensation provisions; provided, that any such continued operations shall in no way be construed as a renewal or other extension of the master license agreement, nor as a limitation on the remedies available to the city as a result of such continued operation after the term, including, but not limited to, damages and restitution. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.030 Permits required.
A. An applicant shall obtain a permit prior to:
1. Collocating a small wireless facility in a public right-of-way;
2. Installing a new, modified, or replacement stand-alone pole or other structure associated with a small wireless facility in a right-of-way.
B. Exceptions to Permitting. Unless the work requires the closing of sidewalks or vehicular lanes in the public right-of-way, an application for a permit is not required for:
1. Routine maintenance of a small wireless facility or support structures for a small wireless facility;
2. The replacement of one small wireless facility with another small wireless facility of substantially similar or smaller size;
3. Nonsubstantial modifications.
C. A wireless provider shall give notice to the city of an activity described in subsection B of this section at least five business days prior to conducting the activity.
D. All construction practices and activities shall be in accordance with the permit and approved final plans and specifications. Eagle Mountain City and its representatives shall be provided access to the work site and such further information as they may require to ensure compliance with such requirements. All work that does not comply with the permit, the approved plans and specifications for the work, or the requirements of this chapter shall be removed at the sole expense of the permittee. Eagle Mountain City may stop work in order to assure compliance with the provisions of this chapter.
E. No permit issued under this chapter shall be valid for a period longer than 12 months unless construction has commenced within that period and is thereafter diligently pursued to completion. If construction begins but is inactive for more than 90 days, the permit expires. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.035 Use of right-of-way for small wireless facilities and utility poles.
A. No person shall install, construct, modify, or otherwise place any small wireless facility within the public right-of-way except pursuant to the provisions of this chapter.
B. All references to small wireless facilities in this chapter shall refer only to small wireless facilities in the right-of-way and upon Eagle Mountain City property and not small wireless facilities located anywhere outside of these spaces.
C. Subject to the provisions of this chapter and along, across, upon or under a right-of-way, a wireless provider may:
1. Collocate a small wireless facility, including collocation on a city pole;
2. Install, operate, modify, maintain, or replace:
a. A stand-alone pole owned by a wireless provider for use with a small wireless facility in approved areas of the city; or
b. Equipment described in Section 54-21-101(25)(b)(i) through (ix), Utah Code Annotated 1953, required for a wireless provider’s operation or collocation of small wireless facilities.
D. An applicant may not install a new stand-alone pole or a small wireless facility, including any associated equipment, upon or under a residential street or residential property without the city’s discretionary written consent.
E. Microwave, macro towers, and other wireless backhaul facilities are not permitted within the right-of-way. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.040 General public ROW installation requirements.
A. General Work Requirements. The permittee shall employ due care during the installation, maintenance or any other work in the ROW, and shall comply with all safety and public ROW protection requirements of applicable laws, applicable codes, and any generally applicable Eagle Mountain City guidelines, standards and practices, and any additional commonly accepted safety and public ROW protection standards, methods and devices (to the extent not inconsistent with applicable laws).
B. Traffic Control. Unless otherwise specified in the permit, the permittee shall erect a barrier around the perimeter of any excavation and provide appropriate traffic control devices, signs and lights to protect, warn and guide the public (vehicular and pedestrian) through the work zone. The manner and use of these devices shall be described within a traffic control plan in accordance with the Manual on Uniform Traffic Control Devices. The permittee shall maintain all barriers and other traffic control and safety devices related to an open excavation until the excavation is restored to a safe condition or as otherwise directed by Eagle Mountain City.
C. Interference. The permittee shall not interfere with any existing facilities or structures in the public ROW, and shall locate its lines and equipment in such a manner as not to interfere with the usual traffic patterns (vehicular or pedestrian) or with the rights or reasonable convenience of owners of property that abuts any public ROW.
D. Utility Locates. Before beginning any excavation in the public ROW, the permittee shall comply with Section 54-8a, Utah Code Annotated 1953. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.045 Small wireless facilities – Restrictions.
A. A small wireless facility, including associated poles, equipment and structures, installed under this chapter shall:
1. Be located such that it in no way impedes, obstructs, or hinders the usual pedestrian or vehicular travel, affects public safety, obstructs the legal access to or use of the public ROW, violates applicable law, violates or conflicts with public ROW design standards, specifications, or design district requirements, violates the federal Americans with Disabilities Act of 1990, or in any way creates a risk to public health, safety, or welfare.
2. Be placed in alignment with existing trees, utility poles, and streetlights.
3. Be located on a property line at the farthest distance away from a residence as much as possible.
B. A small wireless facility, including associated poles, equipment and structures, installed under this chapter shall not:
1. Be located within two feet of a curb; provided, that this restriction does not apply to an existing utility pole that is used for collocation unless the pole is proposed to be replaced;
2. Utilize guy wires to support; provided, that this restriction does not apply to an existing utility pole with a guy wire;
3. Obstruct, damage, or interfere with:
a. Another utility facility in a right-of-way; or
b. A utility’s use of the utility’s facility in a right-of-way;
4. Be located adjacent to a commercial establishment, such as a shop or restaurant, where it could negatively impact the business;
5. Be located in front of storefront windows, primary walkways, primary entrances or exits, or in such a way that it would impede a delivery to the building.
C. No new stand-alone poles shall be permitted unless the applicant demonstrates to the city engineer’s satisfaction that no existing tower, pole, or support structure can reasonably accommodate the applicant’s proposed wireless facility. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.050 Design standards applicable to all small wireless facilities.
A. Integrated Design Consideration. Small wireless facilities, including equipment associated with the small wireless facility, shall be integrated into the stand-alone pole, utility pole or authority pole where possible and generally shall be installed in a manner minimizing the visual impact. Whether the small wireless facility is collocated or is placed on its own pole:
1. Small wireless facilities should not be readily noticed;
2. All equipment, including electric meters, should be located on or within the pole unless prohibited by the owner of a pole used for collocation, in which case an alternative power meter box must be approved by the engineering department;
3. A small wireless facility and associated equipment located on the exterior of a pole shall be enclosed in a shroud or enclosure painted to match the existing pole color;
4. All small wireless facilities shall be constructed out of or finished with nonreflective materials (visible exterior surfaces only);
5. Cable runs should be inside of the pole to the maximum extent practicable;
6. Poles used for collocation shall be designed to separate different pole users, such as through dual chamber or tri-chamber design;
7. Wireless facility equipment on the outside of a utility pole within an enclosure shall be placed at least eight feet above the public way, unless otherwise permitted by city;
8. Shall not be lighted or marked unless required by the Federal Communications Commission (FCC), the Federal Aviation Administration (FAA), or other applicable governmental authority; and
9. Signs located at the small wireless facility shall be limited to ownership and contact information, FCC antenna registration number (if required) and any other information as required by applicable governmental authority. Commercial advertising is strictly prohibited.
B. Antennas.
1. Each individual antenna shall be located entirely within a shroud enclosure of not more than three cubic feet in volume. All antennas associated with the small wireless facility shall not exceed a combined space of six cubic feet.
2. The diameter of the antenna or antenna enclosure should generally not exceed the diameter of the top of the wireless support structure pole, and, to the maximum extent practical, should appear as a seamless vertical extension of the pole.
3. In no case shall the maximum diameter of the shroud be wider than one and one-half times the diameter of the top of the pole.
4. Unless technologically infeasible or otherwise appropriate based on neighborhood context, all antennas shall be mounted to the top of the wireless support structure pole, aligned with the centerline of the structure.
5. Antennas shall be generally cylindrical in shape.
6. The shroud enclosure should be cylindrical in shape and capable of accepting paint to match the wireless support structure.
C. Height Limitations.
1. The height of a structure used for collocation of a small wireless facility, including the wireless facility, measured at the base of the structure shall not exceed 40 feet.
2. The height of a stand-alone pole shall not exceed 40 feet in height, including any antenna.
D. Attachment. The shroud enclosure shall be securely strapped to the wireless support structure pole using stainless steel banding straps. Through-bolting or use of lag bolts on publicly owned wireless support structures is prohibited.
Example of poles and streetlights that would meet design standards within this chapter.
[Ord. O-26-2022 § 2 (Exh. A)].
13.12.055 Design standards applicable to collocated small wireless facilities.
Collocated small wireless facilities shall, in addition to the requirements of EMMC 13.12.050, also meet the following design standards:
A. Where equipment intended for collocation of small wireless facilities cannot reasonably be incorporated into the pole in accordance with EMMC 13.12.050, it may be installed within a ground-mounted cabinet at the base of or under the pole.
1. The ground-mounted cabinet shall meet the same separation standards as required for a new utility pole from trees and drive approaches;
2. For an above-ground cabinet:
a. Shall be secured to a concrete foundation or slab with a breakaway design in the event of collisions.
b. Shall not exceed three feet in height, unless special conditions exist that would result in the cabinet encroaching into the sidewalk or to within two feet of the curb.
c. Shall mimic the color and design of nearby poles and other utilities in the immediate vicinity.
d. No horizontal flat spaces greater than one and one-half inches shall exist on the equipment cabinet to prevent cups, trash, and other objects from being placed on the equipment cabinet as seen in the following example:
Example of pole with ground cabinet that would meet design standards within this chapter.
[Ord. O-26-2022 § 2 (Exh. A)].
13.12.060 Design standards applicable to small wireless facilities on new stand-alone utility poles.
If an applicant proposes to install a new stand-alone utility pole in connection with a small wireless facility, the pole and facilities shall, in addition to the requirements of EMMC 13.12.050 and 13.12.055, meet the following design standards:
A. Design of the pole shall be cylindrical, painted black and shall match the aesthetics of existing streetlight poles and streetlights installed adjacent to the pole.
B. Together with the small wireless facility components, shall be sized to be visually pleasing.
1. The equipment associated with the small wireless facility shall be hidden per the requirements found in EMMC 13.12.050, provided a ground mounted cabinet is not in use per EMMC 13.12.055.
2. All hardware connections shall be hidden from view.
3. Each pole component shall be architecturally compatible with existing Eagle Mountain City poles to create a cohesive aesthetic. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.065 Design standards applicable to decorative poles.
Small wireless facilities located on decorative poles shall, in addition to any other requirements of this chapter, meet the following design standards:
A. If necessary to collocate a small wireless facility, a wireless provider may replace a decorative pole if the replacement pole reasonably conforms to the design aesthetic of the displaced decorative pole as approved by the planning manager. A replacement pole does not reasonably conform to the design aesthetic if it extends the current pole height by more than 25 percent. Replacement poles that also contain streetlights must conform to city lighting standards to maintain dark skies objectives. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.070 Design standards applicable to small wireless facilities located on tops or sides of buildings.
A. Facilities Placed on Top of Buildings. When facilities extend above the roof height of a building on which it is mounted, every reasonable effort shall be made to conceal the facility within or behind existing architectural features to limit its visibility from public ways. If concealment behind existing architectural features is not possible, screening panels manufactured to match existing architectural features may be used. Facilities mounted on a roof shall be stepped back from the front facade to the extent technically feasible in order to limit their impact on the building’s silhouette. Screening panels shall be approved by the community development director. Generally, screening panels shall not exceed five feet in height above the existing building’s roofline.
B. Facilities Placed on Sides of Buildings. Facilities which are side-mounted on buildings shall be reasonably camouflaged (such as in a light fixture), shrouded, painted or constructed of materials to match the color of the building material directly behind them, and shall not extend above the roof line or extend more than two feet from the facade of the building. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.075 Undergrounding.
A. A wireless provider will place newly constructed lines and cables underground whenever practicable.
B. Any request by a wireless provider for location of any overhead or aerial facilities (other than the antennas or other facilities required to remain above ground in order to be functional) shall be considered by city in accordance with applicable rules and regulations. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.080 Application process.
A. Applications for the installation or collocation of a small wireless facility shall be filed with the city engineer on a form or forms to be furnished by the city engineer.
B. The appropriate application fee shall be paid to the city as set forth in EMMC 13.12.090.
C. Eagle Mountain City shall advise the applicant in writing of its final decision.
D. A preapplication meeting is encouraged prior to submitting an application for small cell wireless facilities. The purpose of the pre-application meeting is to discuss the nature of the proposed deployment, review process and schedule, and application plans, policies, and regulations.
E. Application Time Frame. A final decision shall be issued for applications for small cell wireless facilities within 60 calendar days subject to the following:
1. The city shall supply written notice to the applicant within 30 days of receipt of an application clearly and specifically delineating any missing documents or information.
2. The applicant shall submit any supplemental documentation and information to the city.
3. The city shall then have up to 10 calendar days to notify applicant that the supplemental documentation or information satisfies the city’s request.
4. Second or subsequent notices may not specify missing documents or information that were not identified in the original notice of incompleteness.
5. This time frame shall be tolled in cases in which the city determines that the application is incomplete. This time frame may also be tolled by mutual agreement of the applicant and city.
F. The city engineer may, with support of the city manager and city attorney, waive minor variances from the requirements of this chapter and approve applications by administrative review rather than discretionary review.
G. After an application has been approved, the applicant shall obtain any required permits, including right-of-way, excavation or electrical permits, prior to commencing installation or construction of the small wireless facility.
H. Eagle Mountain City may require payment of an additional permit application fee in the event Eagle Mountain City determines, in its sole discretion, that material changes to an application after submission amount to a new application and will materially increase the time and/or costs of the permit review process.
I. A permit from Eagle Mountain City authorizes an applicant to undertake only the activities in the public right-of-way and/or Eagle Mountain City property specified in the application and permit, and in accordance with this chapter and any general conditions included in the permit. A permit does not authorize attachment to or use of existing poles, towers, support structures, or other structures in the public right-of-way that are not the property of Eagle Mountain City; a permittee or provider must obtain all necessary approvals from the owner of any pole, tower, support structure or other structure prior to any attachment or use. A permit does not create a property right or grant authorization to the applicant to interfere with other existing uses of the public right-of-way.
J. If construction of an approved small wireless facility is not complete within 270 days after an application has been approved, the approval shall lapse, and a new application will be required for the designated location.
K. Applications are public records that may be made publicly available pursuant to Section 63G-2-305, Utah Code Annotated 1953. Notwithstanding the foregoing, the applicant may designate portions of its application materials that it reasonably believes contain proprietary or confidential information as “proprietary” or “confidential” by clearly marking each portion of such materials accordingly, and Eagle Mountain City shall treat the information as proprietary and confidential, subject to Section 63G-2-305, Utah Code Annotated 1953, and Eagle Mountain City’s determination that the applicant’s request for confidential or proprietary treatment of application materials is reasonable. Eagle Mountain City shall not be required to incur any costs to protect the application materials from disclosure, other than Eagle Mountain City’s routine procedures for complying with Section 63G-2-305, Utah Code Annotated 1953. [Ord. O-21-2024 § 2 (Exh. A); Ord. O-26-2022 § 2 (Exh. A)].
13.12.085 Procedure for administrative review of applications.
A. The city shall review a complete application, including a consolidated application of up to 25 small wireless facilities, and approve or deny the application within the time frames and subject to the standards contained in Sections 54-21-302(3) through (9), Utah Code Annotated 1953.
B. Third Party Review. In certain instances, there may be a need for expert review by a third party of the technical data submitted by the applicant. The city may require such a technical review, to be paid for by the applicant. The selection of the third-party expert will be by mutual agreement between the applicant and the city. Such mutual agreement is not to be unreasonably withheld by either party. The third-party expert shall have recognized training and qualifications in the field of radio frequency engineering or structural engineering, as appropriate. The expert review is intended to be a site-specific review of technical aspects of the small wireless facility and other matters as described herein, and not a subjective review of the site selection. In particular, but without limitation, the expert shall be entitled to provide a recommendation on the height of the proposed facilities relative to the applicant’s coverage objectives and system design parameters, or the structural requirements for accommodating collocation. Such a review should address the accuracy and completeness of the technical data, whether the analysis techniques and methodologies are legitimate, the validity of the conclusions and any specific technical issues outlined by the city or other interested parties. Based on the results of the third-party review, the city may require changes to the application for the small cell wireless facilities that comply with the recommendations of the expert.
C. Applicant shall provide maps to the city engineer showing the location of equipment in rights-of-way after construction. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.090 Fees.
A. Unless a wireless provider is subject to the municipal telecommunications license tax under Title 10, Chapter 1, Part 4, Utah Code Annotated 1953, for the right to use and occupy the right-of-way:
1. The wireless provider shall pay to the city an annual fee equal to the greater of:
a. Three and one-half percent of all annual gross revenue related to the wireless provider’s use of the right-of-way within the city; or
b. Two hundred fifty dollars annually for each small wireless facility located in the city.
2. The annual fee, together with the fee described in subsection C of this section, shall be paid on or before December 31st, with the fee for any new small wireless facility installed in the prior year prorated by the number of months after the facility has been approved. Upon written request by the city to the wireless provider, payments shall be made on a monthly basis.
3. Annually, on or before December 31st, a provider required to make a payment under subsection (A)(1) of this section shall provide the city with a report of gross revenue upon which payments are calculated and a description, of reasonable specificity, of the small wireless facilities which have generated the revenue.
a. Such report shall include such information related to such payment as the city may reasonably request.
b. The records pertaining to the reports and payment required by this chapter, including but not limited to any records deemed necessary or useful by the city to calculate or confirm gross revenue, and all other records of the wireless provider reasonably required by city to assure compliance by the wireless provider with the terms of this chapter, shall be open to inspection by the city and its duly authorized representatives upon reasonable notice at all reasonable business hours of the wireless provider.
B. With each application to locate a small wireless facility within the city, an applicant shall pay an application fee of:
1. One hundred dollars per small wireless facility on the same application where the application requests collocation of the facility; or
2. Two hundred fifty dollars per small wireless facility on the same application where the application requests the installation, modification or replacement of a stand-alone pole associated with the facility.
C. The wireless provider shall pay the city an annual fee for each collocated small cell wireless device on a city pole in the amount of $50.00 per pole.
D. Other Fees. A wireless provider or applicant shall pay all other applicable fees established by Eagle Mountain City.
E. Except as otherwise provided in a master license agreement, and under the conditions of EMMC 13.12.100, the provider may remove its communications facilities and poles (if applicable) from the public right-of-way at any time, upon not less than 30 days’ prior written notice to Eagle Mountain City, and may cease paying to Eagle Mountain City any applicable recurring fees for such use, as of the date of actual removal of the facilities and complete restoration of the public right-of-way. In no event shall a provider be entitled to a refund of fees paid prior to the removal of its communications facilities. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.095 Damage and repair.
A. If a wireless provider’s activity disrupts or causes damage to a right-of-way, the wireless provider shall restore or repair the right-of-way to substantially the same condition as before the disruption or damage and in accordance with city’s engineering standards.
B. If a wireless provider fails to make a repair required by the city under subsection A of this section within a reasonable time after written notice or the damage causes an urgent safety hazard, the city may:
1. Make the required repair; and
2. Charge the wireless provider the reasonable, documented, actual cost for the repair. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.100 Removal of small wireless facilities.
A. Abandoned System. In the event that:
1. The use of any portion of a small wireless facility is discontinued for a continuous period of 12 months, and 30 days after no response to written notice from the city to the last known address of the wireless provider;
2. The term of the applicable master license agreement has expired; or
3. Any small wireless facility has been installed in the rights-of-way without complying with the requirements of this chapter or master license agreement, a wireless provider shall be deemed to have abandoned such small wireless facility.
B. Removal of Abandoned Facility. The city, upon such terms as it may impose, may give a wireless provider written permission to abandon, without removing, any small wireless facility, or portion thereof, directly constructed, operated or maintained under a master license agreement. Unless such permission is granted or unless otherwise provided in this chapter, a wireless provider shall remove within 180 days the abandoned small wireless facility and shall restore, using prudent construction standards, any affected rights-of-way to their former state at the time such system was installed and in accordance with adopted engineering standards, so as not to impair their usefulness. In removing its facilities and equipment, a wireless provider shall refill, at its own expense, any excavation necessarily made by it and shall leave all rights-of-way in as good condition as that prevailing prior to such removal without materially interfering with any authority pole or other utility wires, poles or attachments. The city shall have the right to inspect and approve the condition of the rights-of-way, attachments and poles prior to and after removal. The liability, indemnity and insurance provisions of this chapter and any security fund provided in a master license agreement shall continue in full force and effect during the period of removal and until full compliance by a wireless provider with the terms and conditions of this section.
C. Transfer of Abandoned Facility to City. Upon abandonment of a small wireless facility located upon a pole that has replaced a city street light, a wireless provider, if required by the city, shall submit to the city a written instrument, satisfactory in form to the city, transferring to the city the ownership of such poles or equipment allowed to remain within the right-of-way. If a street light has collocated facilities, the pole should first be offered to the other provider.
D. Removal of Above-Ground System. At the expiration of the term for which a master license agreement is granted, or upon its revocation or earlier expiration, in any such case without renewal, extension or transfer, the city shall have the right to require a provider to remove, at its expense, all above-ground portions of small wireless facilities, including poles, within a reasonable period of time, which shall not be less than 180 days.
E. Leaving Underground System. Upon written approval by city, a wireless provider may abandon underground portions of a small wireless facility in place so long as it does not materially interfere with the use of the rights-of-way or with the use thereof by any public utility, cable operator or other person.
F. Default. If a wireless provider defaults under any provision of this chapter and such default is not cured within 30 days following notice by city to wireless provider of its default, the city shall maintain all its rights and remedies, at law and in equity, including the ability to charge fines and recover fees and costs. In the alternative, the city may remove the small wireless facilities and associated equipment and charge the reasonable, documented, actual cost to the wireless provider.
G. Emergency Removal. The city retains the right and privilege to dismantle, remove, or temporarily relocate 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 serious public health or safety emergency. If circumstances permit, the city shall notify the wireless provider in writing and provide the wireless provider a reasonable opportunity to move its own wireless facilities prior to cutting or removing a wireless facility and shall notify the wireless provider after cutting or removing a wireless facility. Any removal shall be at the wireless provider’s sole cost. Should the wireless facility be collocated on property owned by a third party, the city shall rely on the third party to remove the wireless facility and shall be provided adequate notice and time to facilitate such removal. [Ord. O-26-2022 § 2 (Exh. A)].
13.12.105 Other requirements.
A. Insurance and Bonding. A wireless provider will be responsible for carrying and maintaining insurance and bonds as may be required in the master license agreement or otherwise by the city and in connection with obtaining a permit.
B. Indemnity. A wireless provider shall indemnify, save harmless, and defend the city, its officers and employees, from and against all losses, claims, counterclaims, demands, actions, damages, costs, charges, and causes of action of every kind or character, including attorneys’ fees, arising out of or in connection with such provider’s wireless facilities or use of the public way, unless and to the extent caused by the city’s negligence.
C. Tree Trimming. A wireless provider may trim trees overhanging the public way to prevent the branches of such trees from coming in contact with the wireless facilities only with permission and under the direction of the city’s urban forester and at the wireless provider’s expense.
D. Electrical Service. A wireless provider is solely responsible for establishing electrical power service for its small wireless facilities and for the payment of all electrical utility charges associated with the small wireless facility.
1. A wireless provider shall have a separate electrical meter installed for each small wireless facility.
2. A wireless provider shall obtain a building permit for installation of such electrical service as required by the city.
E. Hazardous Materials. A wireless provider shall not possess, use, generate, release, discharge, store, dispose of, or transport any hazardous materials on, under, in, above, to, or from any public way except in compliance with all applicable environmental laws and pre-approved by the city. A wireless provider shall promptly reimburse the city for any fines or penalties levied against the city because of a wireless provider’s failure to comply with environmental laws.
F. Inspections. All small wireless facilities and wireless provider-owned structures shall be maintained by the wireless provider in a clean and good condition, free of graffiti, rusting, excessive dirt, and peeling paint. The city shall have the authority to conduct inspections of the small wireless facilities and structures at any time to determine whether such facilities and structures comply with the requirements of this chapter.
G. Additional Requirements. Wireless facilities will be subject to any additional requirements set forth in the applicable master license agreement and permit. [Ord. O-26-2022 § 2 (Exh. A)].