All buildings newly constructed or buildings renovating their exterior walls shall construct those exterior walls facing public highways/rights-of-way in districts zoned CN, CC, CG, OF, R3, R4, IL and IG in accordance with the following restrictions:

(1)

Eighty percent of total wall area must consist of one or more types of the following materials: brick, cement, solid wood, concrete, rock or vinyl siding. Only 20 percent of the total exterior wall area may be comprised of metallic materials such as sheet metal or other metallic coverings or of composition woods including, but not limited to press board or laminated woods.

(2)

All building plans for buildings to be constructed in CN, CC, CG, OF, R3, R4, IL and IG districts must be submitted to the zoning officer prior to the issuance of a building permit by the village to ensure compliance with this section. Building plans submitted to the zoning officer must show the exterior of the building and identify the materials proposed to be used in the construction.

(Code 1974, § 22-201; Ord. No. 2000-29, § 1, 7-18-2000)

(a)

Purpose.

(1)

Purpose. The purpose of this section is to provide specific regulations for the placement, construction and modification of personal wireless service facilities. The provisions of this section are not intended to and shall not be interpreted to prohibit the provision of personal wireless services, nor shall they be applied so as to unreasonably discriminate between providers of functionally equivalent wireless services. To the extent that any provision of this section is inconsistent with or in conflict with any other provision of this section or any ordinance of the village, the provisions of this section shall control.

(2)

The purpose of this section is to also establish general guidelines for the siting of wireless communications towers and antennas. The goals of this section are to:

a.

Protect residential areas and land uses from potential adverse impacts of towers and antennas, and to encourage the location of towers in non-residential areas;

b.

Minimize the total number of towers throughout the community and encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers;

c.

Encourage users of towers and antennas to locate them in areas where the adverse impact on the community is minimal, and to configure them in a way that minimizes the adverse visual impact of the towers and antennas through careful design, siting, landscape screening and innovative camouflaging techniques;

d.

Enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively and efficiently;

e.

Consider the impact of communications towers on the public health and safety, and avoid potential damage to adjacent properties from tower failure through engineering and careful siting of tower structures.

In furtherance of these goals, the village shall give due consideration to the village's comprehensive planning documents, zoning map, existing land uses, and environmentally sensitive areas in approving sites for the location of towers and antennas.

(3)

When reviewing any request for approval required under this section, the village shall act within a reasonable period of time after the request is filed, taking into account the nature and scope of the request. Any decision to deny such a request shall be in writing and supported by substantial evidence contained in a written record.

(b)

Definitions. As used in this section, the following terms shall have the meanings set forth below:

Alternative tower structure. Shall mean man-made trees, clock towers, bell steeples, light poles and similar alternative-design mounting structures that camouflage or conceal the presence of antennas or towers.

Antenna. Shall mean any exterior transmitting or receiving device mounted on a tower, building or structure and used in communications, which radiates or captures electromagnetic waves, digital signals, analog signals, radio frequencies (excluding radar signals), wireless telecommunications signals or other communication signals.

Antenna support structure. Shall mean any structure utilized for the principal purpose of supporting an antenna.

Backhaul network. Shall mean the lines that connect a provider's tower/cell sites to one or more cellular telephone switching offices, and/or long distance providers, or the public switched telephone network.

FAA. Shall mean the Federal Aviation Administration.

FCC. Shall mean the Federal Communications Commission.

Height. Shall, when referring to a tower or other structure, mean the distance measured from the finished grade of the parcel to the highest point on the tower or other structure, including the base pad and any antenna.

Pre-existing towers, pre-existing antennas. Shall mean any tower or antenna for which a building permit, special use permit, or similar approval has been properly granted prior to the effective date of this section, including self-supporting lattice towers, guyed towers, or monopole towers. The term includes radio and television transmission towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures and the like, as well as the structure and any support thereto.

(c)

General provisions.

(1)

New towers and antennas. All new towers or antennas in the village shall be subject to these regulations, except as provided in subsections (c)(2) through (c)(4), inclusive.

(2)

Amateur radio station operators and receive only antennas. This section shall not govern any tower or the installation of any antenna, less than 70 feet in height and owned and operated by a federally-licenses amateur radio station operator, or any tower or antennas when used exclusively for receive only use. Said antennas are governed by subsection (c)(5)g., herein.

(3)

Pre-existing towers or antennas. Pre-existing towers and pre-existing antennas shall not be required to meet the requirements of this section, other than the requirements of subsections (c)(5)g. and (c)(5)h. herein.

(4)

AM array. For purposes of implementing this section, an AM array, consisting of one or more tower units and supporting ground system which functions as one AM broadcasting antenna, shall be considered one tower. Measurements for setbacks and separation distances shall be measured from the outer perimeter of the towers included in the AM array. Additional tower units may be added within the perimeter of the AM array by right.

(5)

General requirements.

a.

Principal or accessory use. Antennas and towers may be considered either principal or accessory uses. A different existing use of an existing structure on the same lot shall not preclude the installation of an antenna or tower on such lot.

b.

Lot size. For purposes of determining whether the installation of a tower or antenna complies with zoning district regulations, including but not limited to setback requirements, lot-coverage requirements and other such requirements, the dimensions of the entire lot shall control, even though the antennas or towers may be located on leased parcels within such lot.

c.

Inventory of existing sites. Each applicant for an antenna and/or tower shall provide to the village an inventory of existing towers, antennas, or sites approved for towers and antennas, that are either within the jurisdiction of the village or within 1 ½ miles of the corporate border, including specific information about the location, height and design of each tower. The village may share such information with other applicants applying for approvals or special use permits, or other organizations seeking to locate antennas within the village, provided that the village is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.

d.

Aesthetics. Towers and antennas shall meet the following requirements:

i.

Towers shall maintain a galvanized steel finish or, subject to the applicable standards of the FAA, be painted a neutral color to reduce visual impact.

ii.

At a tower site, the design of the buildings and related structures shall, to the extent possible, use materials, colors, textures, screening and landscaping that will blend them into the natural setting, surrounding land uses, and buildings.

iii.

If an antenna is installed on a structure other than a tower, the antenna and supporting electrical and mechanical equipment must be of a neutral color that is identical to, or closely compatible with, the color of the supporting structure so as to make the antenna and related equipment as visually unobtrusive as possible.

iv.

Barbed or razor wire fencing is not permitted.

v.

Prior to the issuance of a building permit for a tower, the applicant shall obtain approval of tower materials and colors, exterior building design, site lighting and landscaping through the village's project review procedures.

e.

Lighting. Towers shall not be artificially lighted, unless required by the FAA or other applicable authority. If lighting is required, the lighting alternatives and design chosen shall cause minimal disturbance to the surrounding views.

f.

Height. No freestanding facility may rise more than 100 feet above curb level, or 150 feet in an Industrial (I) district. The height limit may be increased to 110 feet for any additional user and to 120 feet for two additional users.

g.

State or federal requirements. All towers shall meet or exceed current standards and regulations of the FAA, the FCC, and any other state or federal government agency with the authority to regulate towers and antennas. If such standards and regulations are changed, then the owners of the towers and antennas shall bring them into compliance with said standards and regulations within six months of their effective date, unless a different compliance schedule is mandated by the controlling state or federal agency. Failure to achieve such compliance shall constitute grounds for the removal of the tower or antenna at the owner's expense.

h.

Building codes and safety standards. To ensure the structural integrity of towers, the owner of a tower shall maintain it in compliance with standards contained in applicable state or village building codes and the applicable standards for towers that are published by the Electronic Industries Association, as amended from time to time. If, upon inspection, the village concludes that a tower fails to comply with such codes and standards and that it constitutes a danger to persons or property, then upon written notice being provided to the owner of the tower, the owner shall have 30 days to bring such tower into compliance with such standards. Failure to achieve such compliance within said 30 days shall constitute grounds for the removal of the tower or antenna at the owner's expense.

i.

Measurement. For purposes of measurement, tower setbacks and separation distances shall be calculated and applied to facilities located in the village irrespective of municipal and county jurisdictional boundaries.

j.

Not essential services. Towers and antennas shall be regulated and permitted pursuant to this section and shall not be regulated or permitted as essential services, public utilities or private utilities.

k.

Franchises. Owners and/or operators of towers or antennas shall certify that all franchises required by law for the construction and/or operation of a wireless communication system in the village have been obtained and shall file a copy of all required franchises with the village.

l.

Public notice. For purposes of this section, any special use request, variance request, or appeal of an approved use or special use shall require public notice to all abutting property owners and all property owners of properties that are located within the corresponding separation distance listed in Table 1 herein, in addition to any other notice required by this section.

m.

Signs. No signs shall be allowed on an antenna or tower unless required by the FAA or FCC or other applicable authority.

n.

Buildings and support equipment. Buildings and support equipment associated with antennas or towers shall comply with the requirements of this section.

o.

Multiple antenna/tower plan. The village encourages the users of towers and antennas to submit a single application for approval of multiple towers and/or antenna sites.

(6)

Permitted uses. Antennas or towers located on property owned, leased, or otherwise controlled by the village, provided a license, lease, or similar means of approval authorizing such antenna or tower has been issued by the village, are deemed to be permitted uses and shall not require a special use permit.

(7)

Review and approval procedures. A building permit and special use permit is required for each new wireless tower installation.

a.

When a wireless tower facility requires special use approval, such approval must be obtained before any building permit may issue.

b.

If the planning and zoning commission does not make a recommendation on a special use application for a wireless tower facility within 120 days after the application is filed, the planning and zoning commission will be deemed to have recommended approval of the special use permit, provided that this limitation does not apply during any period of time during which consideration of the application has been delayed at the request of the applicant. Final decisions on any such special use permit application must be made by the village board of trustees by ordinance.

c.

Each applicant requesting a permit for a wireless communication facility must submit an application and fee as determined, from time to time, by separate ordinance or resolution of the village board, as well as a scaled site plan and a scaled elevation view and other supporting drawings, calculations, and other documentation, signed and sealed by appropriate licensed professionals, showing:

i.

The location and dimension of all improvements;

ii.

Information concerning topography;

iii.

Radio frequency coverage;

iv.

Tower height requirements and setbacks;

v.

Drives, parking, fencing, landscaping, and adjacent uses; and

vi.

Any other information deemed by the planning and zoning commission to be necessary to assess compliance with the zoning section.

d.

A new tower shall not be permitted unless the applicant demonstrates to the reasonable satisfaction of the planning and zoning commission that no existing tower, structure or alternative technology that does not require the use of towers or structures can accommodate the applicant's proposed wireless tower and/or antenna. An applicant shall submit information related to the availability of suitable existing towers, other structures, or alternative technology. Evidence submitted to demonstrate that no existing tower, structure or alternative technology can accommodate the applicant's proposed antenna may consist of any of the following:

i.

No existing towers or structures are located within the geographic area which meets the applicant's engineering requirements;

ii.

Existing towers or structures are not of sufficient height to meet applicant's engineering requirements;

iii.

Existing towers or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment;

iv.

The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing towers of structures, or the antenna on the existing towers of structures would cause interference with the applicant's proposed antenna;

v.

The fees, costs, or contractual provisions required by the owner in order to share an existing tower or structure or to adapt an existing tower or structure for sharing are unreasonable. Costs exceeding new tower development are presumed to be unreasonable;

vi.

The applicant demonstrates that there are other limiting factors that render existing towers and structures unsuitable; and

vii.

The applicant demonstrates that an alternative technology that does not require the use of towers or structures, such as a cable micro cell network using multiple low-powered transmitters/receivers attached to a wire line system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable.

e.

Approved wireless communication facilities may be transferred to successors and assigns of the approved party, subject to all the conditions that apply to initial approval.

(8)

Setbacks. The following setback requirements shall apply to all towers for which a special use permit is required; however, the village board of trustees may reduce the standard setback requirements if the goals of the section are better served:

a.

Towers must be set back a distance equal so that if the tower and one-half of the length of any portion of the tower that is horizontal or perpendicular to the tower base is laid on the ground from the tower base in any direction that no part of the tower extends beyond the zoning lot boundaries.

b.

Guys and accessory buildings must satisfy the minimum zoning district setback requirements.

(9)

Separation. The following separation requirements shall apply to all towers and antennas for which a special use permit is required, however, the village board of trustees may reduce the standard separation requirements in accordance with subsection (c)(12), herein.

a.

Separation from off-site uses/designated areas.

i.

Tower separation shall be measured from the base of the tower to the lot or property line of the off-site uses and/or designated areas as specified or otherwise provided for in Table 1.

ii.

Separation requirements for towers shall comply with the minimum standards established in Table 1.

b.

Separation distances between towers. Separation distances between towers shall apply to and be measured between the proposed tower and pre-existing towers. Separation distances shall be measured by drawing or following a straight line between the base of the existing tower and the base of the proposed tower. Separation distances listed in linear feet shall be as shown in Table 2.

(10)

Security fencing. Towers shall be enclosed by security fencing not less than six feet in height and shall also be equipped with an appropriate anti-climbing device. The village board of trustees may, however, waive such requirements, as it deems appropriate.

(11)

Landscaping. The following requirements shall govern the landscaping surrounding towers for which a special use permit is required.

a.

Tower facilities shall be landscaped with a plant material buffer that screens the view of the tower compound. At a minimum, the buffer shall consist of a landscaped strip at least four feet wide outside the perimeter of the compound. In locations where the visual impact of the tower will be minimal, the landscaping requirement may be reduced by the village board of trustees.

b.

Existing mature tree growth and natural land forms on the site shall be preserved to the greatest extent possible. In some cases, such as towers, sited on large, wooded lots, existing natural growth around the perimeter of the property may be a sufficient buffer.

c.

Landscaping plans shall be submitted to the village for required review and approval prior to the issuance of a required building permit.

(12)

Variances/Modifications. The planning and zoning commission may recommend, and the village board of trustees may approve, variations to modify any of the non-federally-mandated requirements of this section pertaining to height limitations, setback requirements, and screening or landscaping if it determines that the goals of this section are better served thereby.

a.

Setback requirements may be modified if the applicant shows, to the satisfaction of the planning and zoning commission and the village board of trustees, that such modification will result in a reduction of the visual impact of the wireless communication facility.

b.

The height increases authorized in subsection (c)(5)f. are available only if the applicant shows, to the satisfaction of the planning and zoning commission and village board of trustees, that:

i.

The facility will be constructed to safely and effectively accommodate co-location of one or more wireless communication facilities comparable in weight, size and surface area to the applicant's wireless communication facility; and

ii.

Certified letters have been sent to all other wireless carriers licensed to serve the Cherry Valley market notifying them of the construction of the wireless communication facility and its availability for co-location.

(d)

Buildings or other equipment storage.

(1)

Antennas mounted on structures or rooftops. The equipment cabinet or structure used in association with antennas shall comply with the following:

a.

The equipment cabinet or structure shall not contain more than 300 square feet of gross floor area or be greater than 15 feet in height. In addition, for buildings and structures which are less than 50 feet in height, the related unmanned equipment structure, if having 150 or more square feet of gross floor area or a height of ten or more feet, shall be located on the ground and not on the roof of the structure.

b.

If the equipment structure is located on the roof of a building, the area of the equipment structure and other equipment or structures shall not occupy more than 150 square feet or 20 percent of the roof area, whichever is greater.

c.

Equipment storage buildings or cabinets shall comply with all applicable building codes.

(2)

Antennas mounted on utility poles or light poles. The equipment cabinet or structure used in association with antennas shall be located in accordance with the following:

a.

In residential districts, the equipment cabinet or structure may be located:

i.

In a side yard provided the cabinet or structure is no greater than four feet in height or 24 square feet in gross floor area, and the cabinet/structure is located a minimum of five feet from all lot lines. The cabinet/structure shall be screened by an evergreen hedge with an ultimate height of at least 42 to 48 inches and a planted height of at least 36 inches.

ii.

In a rear yard, provided the cabinet or structure is no greater than six feet in height or 24 square feet in gross floor area. The cabinet/structure shall be screened by an evergreen hedge with an ultimate height of eight feet and a planted height of at least 36 inches.

iii.

The cabinet or structure may not be located in a front yard or side yard abutting a street.

b.

In commercial or industrial districts the equipment cabinet or structure shall be no greater than six feet in height or 64 square feet in gross floor area. The structure or cabinet shall be screened by an evergreen hedge with an ultimate height of eight feet and a planted height of at least 36 inches. In all other instances, structures or cabinets shall be screened from view of all residential properties which abut or are directly across the street from the structure or cabinet by a solid fence six feet in height or an evergreen hedge with an ultimate height of eight feet and a planted height of at least 36 inches. The cabinet or structure may not be located in a front yard or side yard abutting a street.

(3)

Antennas located on towers. The related unmanned equipment structure shall not contain more than 300 square feet of gross floor area or be more than 15 feet in height, and shall be located in accordance with the minimum yard requirements of the zoning district in which located.

(4)

Modification of building size requirements. The requirements of subsection (d)(1) and (d)(2) of this section may be modified by the village board of trustees in the case of uses permitted by special use to encourage collocation.

(e)

Removal of abandoned antennas and towers. Any antenna or tower that is not operated for a continuous period of 12 months shall be considered abandoned, and the owner of such antenna or tower shall remove the same within 90 days of receipt of notice from the village advising the owner of such abandonment. Failure to remove an abandoned antenna or tower within said 90 days shall be grounds to remove the tower or antenna at the owner's expense. If there are two or more users of a single tower, then this provision shall not become effective until all users cease using the tower.

(f)

Nonconforming towers or antennas.

(1)

Expansion of non-conforming use. Towers and antennas constructed or installed in accordance with the provisions of this section shall not be deemed to constitute the expansion of a nonconforming use or structure.

(2)

Pre-existing towers. Pre-existing towers shall be allowed to continue their usage as they presently exist. Routine maintenance, including replacement with a new tower of like construction and height, shall be permitted on such pre-existing towers. New construction other than routine maintenance on a pre-existing tower shall comply with the requirements of this chapter.

(3)

Rebuilding damaged or destroyed nonconforming towers or antennas. Notwithstanding subsection (e) herein, nonconforming towers or antennas that are damaged or destroyed may be rebuilt without first having to obtain administrative approval or a special use permit, and without having to meet the separation requirements specified herein. The type, height and location of the tower onsite shall be of the same type and intensity of the original tower. Building permits to rebuild the facility shall comply with the building codes in effect at the time of permit application and shall be obtained within 180 days from the date the facility is damaged or destroyed. If no permit is obtained within said 180 days or if said permit expires, the tower or antenna shall be deemed abandoned as specified herein.

(g)

Amateur radio facilities with surface area over ten square feet. In any zoning district, any antenna and antenna support structure having a combined surface area greater than ten square feet or having any single dimension exceeding 12 feet that is capable of transmitting and/or receiving signals and is licensed by the FCC as an amateur radio facility or is capable of receiving signals must satisfy each of the following conditions:

(1)

Number limited. No more than one such antenna support structure with a surface area greater than ten square feet or any single dimension exceeding 12 feet may be located on any zoning lot.

(2)

Height limited. No such antenna support structure shall, if ground mounted, exceed 75 feet in height or, if attached to a building pursuant to these regulations, the height herein specified.

(3)

Attachment to buildings limited. No such antenna or its support structure shall be attached to a principal or accessory structure unless all of the following conditions are satisfied:

a.

Height. The antenna and its support structure shall not extend more than 20 feet above the highest point of the building or structure on which it is mounted.

b.

Mounting. The antenna and its support structure shall not be attached to or mounted upon any building appurtenance, including a chimney. The antenna and its support structure shall not be mounted or attached to the front of any principal building or to the side of any building facing a street, including any portion of the building facing any street. The antenna and its support structure shall be designed to withstand a wind force of 80 miles per hour on its own and without the support of guy wires.

c.

Grounding. The antenna and its support structure shall be bonded to a grounding rod.

d.

Other standards. The antenna support structure shall satisfy such other design and construction standards as the village board of trustees reasonably determines are necessary to ensure safe construction and maintenance of the antenna and its support structure.

(4)

Setback from street. No such antenna or its support structure shall be erected or maintained closer to any street than the wall of the principal building to which it is accessory that is nearest to such street.

(5)

Setbacks from adjacent buildings. No such antenna or its support structure shall be located in any required side yard or near than one-half the height of the antenna and support structure to any habitable building on any adjacent property.

(6)

Zoning regulations for antennas and antenna support structures in all zoning districts.

a.

Certificate of compliance. In addition to any other provisions, no antenna or antenna support structure permitted under this section shall be constructed, altered, or enlarged in the village unless a certificate of zoning compliance has been issued by the village.

b.

Unless specifically provided to the contrary, when the regulations of this section are more restrictive than any other regulations generally applicable within the zoning districts, the provisions of this section shall apply.

c.

For purposes of this section, the surface area of an antenna and its support structure shall be determined by adding together the actual surface area of each solid element or part of the antenna or its support structure, where "solid" is defined to include all air spaces that are fully bounded by solid elements.

d.

Except as otherwise expressly provided in this section, all such antennae and antennae support structures shall be subject to the provisions of this section applicable to accessory uses and structures.

e.

The foregoing special regulations shall not apply to antennae and antennae support structures owned or maintained by the village.

(Ord. No. 2016-22, § 2, 6-7-2016)

Editor's note— Ord. No. 2016-22, § 2, adopted June 7, 2016, amended § 82-482 in its entirety to read as herein set out. Former § 82-482, pertained to communication antenna support structure regulations, and derived from Code 1974, § 22-220.

(a)

Purpose and scope.

(1)

Purpose. The purpose of this section is to establish regulations, standards and procedures for the siting and collocation of small wireless facilities on rights-of-way within the village's jurisdiction, or outside the rights-of-way on property zoned by the village exclusively for commercial or industrial use, in a manner that is consistent with the Act.

(2)

Conflicts with other ordinances. This section supersedes all ordinances or parts of ordinances adopted prior hereto that are in conflict herewith, to the extent of such conflict.

(3)

Conflicts with state and federal laws. In the event that applicable federal or state laws or regulations conflict with the requirements of this section, the wireless provider shall comply with the requirements of this section to the maximum extent possible without violating federal or state laws or regulations.

(b)

Definitions. For the purposes of this section, the following terms shall have the following meanings:

Antenna means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.

Applicable codes means uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to those codes, including the National Electric Safety Code.

Applicant means any person who submits an application and is a wireless provider.

Application means a request submitted by an applicant to the Village for a permit to collocate small wireless facilities, and a request that includes the installation of a new utility pole for such collocation, as well as any applicable fee for the review of such application.

Collocate or collocation means to install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to a wireless support structure or utility pole.

Communications service means cable service, as defined in 47 U.S.C. 522(6), as amended; information service, as defined in 47 U.S.C. 153(24), as amended; telecommunications service, as defined in 47 U.S.C. 153(53), as amended; mobile service, as defined in 47 U.S.C. 153(53), as amended; or wireless service other than mobile service.

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

FCC means the Federal Communications Commission of the United States.

Fee means a one-time charge.

Historic district or historic landmark means a building, property, or site, or group of buildings, properties, or sites that are either (i) listed in the National Register of Historic Places or formally determined eligible for listing by the keeper of the National Register, the individual who has been delegated the authority by the federal agency to list properties and determine their eligibility for the National Register, in accordance with section VI.D.l.a.i through section VI.D.1.a.v of the Nationwide Programmatic Agreement codified at 47 CFR part 1, appendix C; or (ii) designated as a locally landmarked building, property, site, or historic district by an ordinance adopted by the village pursuant to a preservation program that meets the requirements of the Certified Local Government Program of the Illinois State Historic Preservation Office or where such certification of the preservation program by the Illinois State Historic Preservation Office is pending.

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

Micro wireless facility means a small wireless facility that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height and that has an exterior antenna, if any, no longer than 11 inches.

Municipal utility pole means a utility pole owned or operated by the village in public rights-of-way.

Permit means a written authorization required by the village to perform an action or initiate, continue, or complete a project.

Person means an individual, corporation, limited liability company, partnership, association, trust, or other entity or organization.

Public safety agency means the functional division of the federal government, the state, a unit of local government, or a special purpose district located in whole or in part within this state, that provides or has authority to provide firefighting, police, ambulance, medical, or other emergency services to respond to and manage emergency incidents.

Rate means a recurring charge.

Right-of-way means the area on, below, or above a public roadway, highway, street, public sidewalk, alley, or utility easement dedicated for compatible use. "Right-of-way" does not include village-owned aerial lines.

Small wireless facility means a wireless facility that meets both of the following qualifications: (i) each antenna is located inside an enclosure of no more than six cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than six cubic feet; and (ii) all other wireless equipment attached directly to a utility pole associated with the facility is cumulatively no more than 25 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meter, concealment elements, telecommunications demarcation box, ground-based enclosures, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for the connection of power and other services.

Utility pole means a pole or similar structure that is used in whole or in part by a communications service provider or for electric distribution, lighting, traffic control, or a similar function.

Wireless facility means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including: (i) equipment associated with wireless communications; and (ii) radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. Wireless facility includes small wireless facilities. Wireless facility does not include: (i) the structure or improvements on, under, or within which the equipment is collocated; or (ii) wireline backhaul facilities, coaxial or fiber optic cable that is between wireless support structures or utility poles or coaxial, or fiber optic cable that is otherwise not immediately adjacent to or directly associated with an antenna.

Wireless infrastructure provider means any person authorized to provide telecommunications service in the state that builds or installs wireless communication transmission equipment, wireless facilities, wireless support structures, or utility poles and that is not a wireless services provider but is acting as an agent or a contractor for a wireless services provider for the application submitted to the village.

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

Wireless services means any services provided to the general public, including a particular class of customers, and made available on a nondiscriminatory basis using licensed or unlicensed spectrum, whether at a fixed location or mobile, provided using wireless facilities.

Wireless services provider means a person who provides wireless services.

Wireless support structure means a freestanding structure, such as a monopole; tower, either guyed or self-supporting; billboard; or other existing or proposed structure designed to support or capable of supporting wireless facilities. Wireless support structure does not include a utility pole.

(c)

Regulation of small wireless facilities.

(1)

Permitted use. Small wireless facilities shall be classified as permitted uses and subject to administrative review, except as provided in paragraph (d) regarding height exceptions or variances, but not subject to zoning review or approval if they are collocated (i) in rights-of-way in any zoning district, or (ii) outside rights-of-way in property zoned exclusively for commercial or industrial use.

(2)

Permit required. An applicant shall obtain one or more permits from the village to collocate a small wireless facility. An application shall be received and processed, and permits issued shall be subject to the following conditions and requirements:

a.

Application requirements. A wireless provider shall provide the following information to the village, together with the village's small cell facilities permit application, as a condition of any permit application to collocate small wireless facilities on a utility pole or wireless support structure:

1.

Site specific structural integrity and, for a municipal utility pole, make-ready analysis prepared by a structural engineer, as that term is defined in section 4 of the Structural Engineering Practice Act of 1989;

2.

The location where each proposed small wireless facility or utility pole would be installed and photographs of the location and its immediate surroundings depicting the utility poles or structures on which each proposed small wireless facility would be mounted or location where utility poles or structures would be installed. This should include a depiction of the completed facility;

3.

Specifications and drawings prepared by a structural engineer, as that term is defined in section 4 of the Structural Engineering Practice Act of 1989, for each proposed small wireless facility covered by the application as it is proposed to be installed;

4.

The equipment type and model numbers for the antennas and all other wireless equipment associated with the small wireless facility;

5.

A proposed schedule for the installation and completion of each small wireless facility covered by the application, if approved; and

6.

Certification that the collocation complies with the collocation requirements and conditions contained herein, to the best of the applicant's knowledge.

7.

In the event that the proposed small wireless facility is to be attached to an existing pole owned by an entity other than the village, the wireless provider shall provide legally competent evidence of the consent of the owner of such pole to the proposed collocation.

b.

Application process. The village shall process applications as follows:

1.

The first completed application shall have priority over applications received by different applicants for collocation on the same utility pole or wireless support structure.

2.

An application to collocate a small wireless facility on an existing utility pole or wireless support structure, or replacement of an existing utility pole or wireless support structure shall be processed on a nondiscriminatory basis and shall be deemed approved if the village fails to approve or deny the application within 90 days after the submission of a completed application.

However, if an applicant intends to proceed with the permitted activity on a deemed approved basis, the applicant shall notify the Village in writing of its intention to invoke the deemed approved remedy no sooner than 75 days after the submission of a completed application.

The permit shall be deemed approved on the latter of the 90th day after submission of the complete application or the tenth day after the receipt of the deemed approved notice by the village. The receipt of the deemed approved notice shall not preclude the village's denial of the permit request within the time limits as provided under this section.

3.

An application to collocate a small wireless facility that includes the installation of a new utility pole shall be processed on a nondiscriminatory basis and deemed approved if the village fails to approve or deny the application within 120 days after the submission of a completed application.

However, if an applicant intends to proceed with the permitted activity on a deemed approved basis, the applicant shall notify the village in writing of its intention to invoke the deemed approved remedy no sooner than 105 days after the submission of a completed application.

The permit shall be deemed approved on the latter of the one hundred twentieth day after submission of the complete application or the tenth day after the receipt of the deemed approved notice by the village. The receipt of the deemed approved notice shall not preclude the village's denial of the permit request within the time limits as provided under this section.

4.

The village shall deny an application which does not meet the requirements of this section.

If the village determines that applicable codes, ordinances or regulations that concern public safety, or the collocation requirements and conditions contained herein require that the utility pole or wireless support structure be replaced before the requested collocation, approval shall be conditioned on the replacement of the utility pole or wireless support structure at the cost of the provider.

The village shall document the basis for a denial, including the specific code provisions or application conditions on which the denial is based, and send the documentation to the applicant on or before the day the village denies an application.

The applicant may cure the deficiencies identified by the village and resubmit the revised application once within 30 days after notice of denial is sent to the applicant without paying an additional application fee. The village shall approve or deny the revised application within 30 days after the applicant resubmits the application or it is deemed approved. Failure to resubmit the revised application within 30 days of denial shall require the application to submit a new application with applicable fees, and recommencement of the village's review period.

The applicant must notify the village in writing of its intention to proceed with the permitted activity on a deemed approved basis, which may be submitted with the revised application.

Any review of a revised application shall be limited to the deficiencies cited in the denial. However, this revised application does not apply if the cure requires the review of a new location, new or different structure to be collocated upon, new antennas, or other wireless equipment associated with the small wireless facility.

5.

Pole attachment agreement. Within 30 days after an approved permit to collocate a small wireless facility on a municipal utility pole, the village and the applicant shall enter into a master pole attachment agreement, provided by the village for the initial collocation on a municipal utility pole by the application. For subsequent approved permits to collocate on a small wireless facility on a municipal utility pole, the village and the applicant shall enter into a license supplement of the master pole attachment agreement.

c.

Completeness of application. Within 30 days after receiving an application, the village shall determine whether the application is complete and notify the applicant. If an application is incomplete, the village must specifically identify the missing information. An application shall be deemed complete if the village fails to provide notification to the applicant within 30 days after all documents, information and fees specifically enumerated in the village's permit application form are submitted by the applicant to the village.

Processing deadlines are tolled from the time the village sends the notice of incompleteness to the time the applicant provides the missing information.

d.

Tolling. The time period for applications may be further tolled by:

1.

An express written agreement by both the applicant and the village; or

2.

A local, state or federal disaster declaration or similar emergency that causes the delay.

e.

Consolidated applications. An applicant seeking to collocate small wireless facilities within the jurisdiction of the village shall be allowed, at the applicant's discretion, to file a consolidated application and receive a single permit for the collocation of up to 25 small wireless facilities if the collocations each involve substantially the same type of small wireless facility and substantially the same type of structure.

If an application includes multiple small wireless facilities, the village may remove small wireless facility collocations from the application and treat separately small wireless facility collocations for which incomplete information has been provided or that do not qualify for consolidated treatment or that are denied. The village may issue separate permits for each collocation that is approved in a consolidated application.

f.

Duration of permits. The duration of a permit shall be for a period of not less than five years, and the permit shall be renewed for equivalent durations unless the village makes a finding that the small wireless facilities or the new or modified utility pole do not comply with the applicable village codes or any provision, condition or requirement contained in this section.

If the Act is repealed as provided in Section 90 therein, renewals of permits shall be subject to the applicable village code provisions or regulations in effect at the time of renewal.

g.

Means of submitting applications. Applicants shall submit applications, supporting information and notices to the village by personal delivery at the village's designated place of business, by regular mail postmarked on the date due or by any other commonly used means, including electronic mail.

(d)

Collocation requirements and conditions.

(1)

Public safety space reservation. The village may reserve space on municipal utility poles for future public safety uses, for the village's electric utility uses, or both, but a reservation of space may not preclude the collocation of a small wireless facility unless the village reasonably determines that the municipal utility pole cannot accommodate both uses.

(2)

Installation and maintenance. The wireless provider shall install, maintain, repair and modify its small wireless facilities in safe condition and good repair and in compliance with the requirements and conditions of this section. The wireless provider shall ensure that its employees, agents or contracts that perform work in connection with its small wireless facilities are adequately trained and skilled in accordance with all applicable industry and governmental standards and regulations.

(3)

No interference with public safety communication frequencies. The wireless provider's operation of the small wireless facilities shall not interfere with the frequencies used by a public safety agency for public safety communications.

A wireless provider shall install small wireless facilities of the type and frequency that will not cause unacceptable interference with a public safety agency's communications equipment.

Unacceptable interference will be determined by and measured in accordance with industry standards and the FCC's regulations addressing unacceptable interference to public safety spectrum or any other spectrum licensed by a public safety agency.

If a small wireless facility causes such interference, and the wireless provider has been given written notice of the interference by the public safety agency, the wireless provider, at its own expense, shall remedy the interference in a manner consistent with the abatement and resolution procedures for interference with public safety spectrum established by the FCC including 47 CFR 22.970 through 47 CFR 22.973 and 47 CFR 90.672 through 47 CFR 90.675.

The village may terminate a permit for a small wireless facility based on such interference if the wireless provider is not in compliance with the Code of Federal Regulations cited in the previous paragraph. Failure to remedy the interference as required herein shall constitute a public nuisance.

(4)

Prohibited sites. The wireless provider shall not collocate small wireless facilities on village utility poles that are part of an electric distribution or transmission system within the communication worker safety zone of the pole or the electric supply zone of the pole.

However, the antenna and support equipment of the small wireless facility may be located in the communications space on the village utility pole and on the top of the pole, if not otherwise unavailable, if the wireless provider complies with applicable codes for work involving the top of the pole.

For purposes of this subparagraph, the terms "communications space," "communication worker safety zone," and "electric supply zone" have the meanings given to those terms in the National Electric Safety Code as published by the Institute of Electrical and Electronics Engineers.

(5)

Compliance with applicable codes and regulations. The wireless provider shall comply with all applicable codes and local code provisions or regulations that concern public safety.

(6)

Compliance with design standards. The wireless provider shall comply with written design standards that are generally applicable for decorative utility poles, or reasonable stealth, concealment and aesthetic requirements that are set forth in a village ordinance, written policy adopted by the village, a comprehensive plan or other written design plan that applies to other occupiers of the rights-of-way, including on a historic landmark or in a historic district.

(7)

Alternate placements. Except as provided in this collocation requirements and conditions section, a wireless provider shall not be required to collocation small wireless facilities on any specific utility pole, or category of utility poles, or be required to collocate multiple antenna systems on a single utility pole. However, with respect to an application for the collocation of a small wireless facility associated with a new utility pole, the village may propose that the small wireless facility be collocated on an existing utility pole or existing wireless support structure within 100 feet of the proposed collocation, which the applicant shall accept if it has the right to use the alternate structure on reasonable terms and conditions, and the alternate location and structure does not impose technical limits or additional material costs as determined by the applicant.

If the applicant refuses a collocation proposed by the village, the applicant shall provide written certification describing the property rights, technical limits or material cost reasons the alternate location does not satisfy the criteria in this paragraph.

(8)

Height limitations. The maximum height of a small wireless facility shall be no more than ten feet above the utility pole or wireless support structure on which the small wireless facility is collocated.

New or replacement utility poles or wireless support structures on which small wireless facilities are collocated may not exceed the higher of:

a.

Ten feet in height above the tallest existing utility pole, other than a utility pole supporting only wireless facilities, that is in place on the date the application is submitted to the village, that is located within 300 feet of the new or replacement utility pole or wireless support structure and that is in the same right-of-way within the jurisdictional boundary of the village, provided the village may designate which intersecting right-of-way within 300 feet of the proposed utility pole or wireless support structures shall control the height limitation for such facility; or

b.

45 feet above ground level.

(9)

Height exceptions or variances. If an applicant proposes a height for a new or replacement pole in excess of the above height limitations on which the small wireless facility is proposed for collocation, the applicant shall apply for a special use permit, variance or administrative waiver in conformance with procedures, terms and conditions set forth in section 82-54.

(10)

Contractual design requirements. The wireless provider shall comply with requirements that are imposed by a contract between the village and a private property owner that concern design or construction standards applicable to utility poles and ground-mounted equipment located in the right-of-way.

(11)

Ground-mounted equipment spacing. The wireless provider shall comply with applicable spacing requirements in applicable codes and ordinances concerning the location of ground-mounted equipment located in the right-of-way if the requirements include a waiver, zoning or other process that addresses wireless provider requests for exception or variance and do not prohibit granting of such exceptions or variances.

(12)

Undergrounding regulations. The wireless provider shall comply with local code provisions or regulations concerning undergrounding requirements that prohibit the installation of new or the modification of existing utility poles in a right-of-way without prior approval if the requirements include a waiver, zoning or other process that addresses requests to install such new utility poles or modify such existing utility poles and do not prohibit the replacement of utility poles.

(13)

Collocation completion deadline. Collocation for which a permit is granted shall be completed within 180 days after issuance of the permit, unless the village and the wireless provider agree to extend this period or a delay is caused by make-ready work for a municipal utility pole or by the lack of commercial power or backhaul availability at the site, provided the wireless provider has made a timely request within 60 days after the issuance of the permit for commercial power or backhaul services, and the additional time to complete installation does not exceed 360 days after issuance of the permit. Otherwise, the permit shall be void unless the village grants an extension in writing to the applicant.

(e)

Application fees. Application fees are imposed as follows:

(1)

Applicant shall pay an application fee of $650.00 for an application to collocate a single small wireless facility on an existing utility pole or wireless support structure, and $350.00 for each small wireless facility addressed in a consolidated application to collocate more than one small wireless facility on existing utility poles or wireless support structures.

(2)

Applicant shall pay an application fee of $1,000.00 for each small wireless facility addressed in an application that includes the installation of a new utility pole for such collocation.

(3)

Notwithstanding any contrary provision of state law or local ordinance, applications pursuant to this section shall be accompanied by the required application fee. Application fees shall be non-refundable.

(4)

The village shall not require an application, approval or permit, or require any fees or other charges, from a communications service provider authorized to occupy the rights-of-way, for:

a.

Routine maintenance;

b.

The replacement of wireless facilities with wireless facilities that are substantially similar, the same size, or smaller if the wireless provider notifies the village at least ten days prior to the planned replacement and includes equipment specifications for the replacement of equipment consistent with subsection d. under the section titled application requirements; or

c.

The installation, placement, maintenance, operation or replacement of micro wireless facilities suspended on cables that are strung between existing utility poles in compliance with applicable safety codes.

(5)

Wireless providers shall secure a permit from the village to work within rights-of-way for activities that affect traffic patterns or require lane closures.

(f)

Exceptions to applicability. Nothing in this section authorizes a person to collocate small wireless facilities on:

(1)

Property owned by a private party or property owned or controlled by the village or another unit of local government that is not located within rights-of-way, or a privately owned utility pole or wireless support structure without the consent of the property owner;

(2)

Property owned, leased, or controlled by a park district, forest preserve district, or conservation district for public park, recreation or conservation purposes without the consent of the affected district, excluding the placement of facilities on rights-of-way located in an affected district that are under the jurisdiction and control of a different unit of local government as provided by the Illinois Highway Code; or

(3)

Property owned by a rail carrier registered under 625 ILCS 5/18C-7201, Illinois Vehicle Code, Metra Commuter Rail or any other public commuter rail service, or an electric utility as defined in 220 ILCS 5/16-102, Public Utilities Act, without the consent of the rail carrier, public commuter rail service, or electric utility. The provisions of this section do not apply to an electric or gas public utility or such utility's wireless facilities if the facilities are being used, developed and maintained consistent with the provisions of subsection (i) of 220 ILCS 5/16-108.5, Public Utilities Act.

For the purposes of this subsection, "public utility" has the meaning given to that term in 220 ILCS 5/3-105, Public Utilities Act. Nothing in this section shall be construed to relieve any person from any requirement (a) to obtain a franchise or a state-issued authorization to offer cable service or video service or (b) to obtain any required permission to install, place, maintain, or operate communications facilities, other than small wireless facilities subject to this section.

(g)

Pre-existing agreements. Existing agreements between the village and wireless providers that relate to the collocation of small wireless facilities in the right-of-way, including the collocation of small wireless facilities on village utility poles, that are in effect on June 1, 2018, remain in effect for all small wireless facilities collocated on the village's utility poles pursuant to applications submitted to the village before June 1, 2018, subject to applicable termination provisions contained therein. Agreements entered into after June 1, 2018, shall comply with this section.

A wireless provider that has an existing agreement with the village on the effective date of the Act may accept the rates, fees and terms that the village makes available under this section for the collocation of small wireless facilities or the installation of new utility poles for the collocation of small wireless facilities that are the subject of an application submitted two or more years after the effective date of the Act by notifying the village that it opts to accept such rates, fees and terms. The existing agreement remains in effect, subject to applicable termination provisions, for the small wireless facilities the wireless provider has collocated on the village's utility poles pursuant to applications submitted to the village before the wireless provider provides such notice and exercises its option under this paragraph.

(h)

Annual recurring rate. A wireless provider shall pay to the village an annual recurring rate to collocate a small wireless facility on a Village utility pole located in a right-of-way that equals (i) $200.00 per year or (ii) the actual, direct and reasonable costs related to the wireless provider's use of space on the village utility pole.

If the village has not billed the wireless provider actual and direct costs, the fee shall be $200.00 payable on the first day after the first annual anniversary of the issuance of the permit or notice of intent to collocate, and on each annual anniversary date thereafter.

(i)

Abandonment. A small wireless facility that is not operated for a continuous period of 12 months shall be considered abandoned. The owner of the facility shall remove the small wireless facility within 90 days after receipt of written notice from the village notifying the wireless provider of the abandonment.

The notice shall be sent by certified or registered mail, return receipt requested, by the village to the owner at the last known address of the wireless provider. If the small wireless facility is not removed within 90 days of such notice, the village may remove or cause the removal of such facility pursuant to the terms of its pole attachment agreement for municipal utility poles or through whatever actions are provided for abatement of nuisances or by other law for removal and cost recovery.

A wireless provider shall provide written notice to the village if it sells or transfers small wireless facilities within the jurisdiction of the village. Such notice shall include the name and contact information of the new wireless provider.

(j)

Dispute resolution. The Circuit Court of Winnebago County shall have exclusive jurisdiction to resolve all disputes arising under the Small Wireless Facilities Deployment Act. Pending resolution of a dispute concerning rates for collocation of small wireless facilities on municipal utility poles within the right-of-way, the village shall allow the collocating person to collocate on its poles at annual rates of no more than $200.00 per year per municipal utility pole, with rates to be determined upon final resolution of the dispute.

(k)

Indemnification. A wireless provider shall indemnify and hold the village harmless against any and all liability or loss from personal injury or property damage resulting from or arising out of, in whole or in part, the use or occupancy of the village improvements or right-of-way associated with such improvements by the wireless provider or its employees, agents, or contractors arising out of the rights and privileges granted under this section and the Act. A wireless provider has no obligation to indemnify or hold harmless against any liabilities and losses as may be due to or caused by the sole negligence of the village or its employees or agents. A wireless provider shall further waive any claims that they may have against the village with respect to consequential, incidental, or special damages, however caused, based on the theory of liability.

(l)

Insurance. The wireless provider shall carry, at the wireless provider's own cost and expense, the following insurance:

(1)

Property insurance for its property's replacement cost against all risks;

(2)

Workers' compensation insurance, as required by law; or

(3)

Commercial general liability insurance with respect to its activities on the village improvements or rights-of-way to afford minimum protection limits consistent with its requirements of other users of village improvements or rights-of-way, including coverage for bodily injury and property damage.

The wireless provider shall include the village as an additional insured on the commercial general liability policy and provide certification and documentation of inclusion of the village in a commercial general liability policy prior to the collocation of any wireless facility.

A wireless provider may self-insure all or a portion of the insurance coverage and limit requirement required by the village. A wireless provider that self-insures is not required, to the extent of the self-insurance, to comply with the requirement for the name of additional insureds under this section. A wireless provider that elects to self-insure shall provide to the village evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage limits required by the village.

(Ord. No. 2018-12, § 1, 7-3-2018)