(a)

Title. This article shall be known and may be cited as the City of DeFuniak Springs Communications Rights-of-Way Ordinance.

(b)

Intent and purpose. It is the intent of the city to promote the public health, safety and general welfare by: providing for the placement or maintenance of communications facilities in the public rights-of-way within the city; adopting and administering reasonable rules and regulations not inconsistent with state and federal law, including F.S. (2000 edition) § 337.401, as it may be amended, the city home-rule authority, and in accordance with the provisions of the Federal Telecommunications Act of 1996 and other federal and state law; establishing reasonable rules and regulations necessary to manage the placement or maintenance of communications facilities in the public rights-of-way by all communications services providers; and minimizing disruption to the public rights-of-way. In regulating its public rights-of-way, the city shall be governed by and shall comply with all applicable federal and state laws.

(c)

Definitions. For purposes of this article, the following terms, phrases, words and their derivations shall have the meanings given. Where not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined shall be construed to mean the common and ordinary meaning.

(d)

Registration for placing or maintaining communications facilities in public rights-of-way.

(1)

A communications services provider that desires to place or maintain a communications facility in public rights-of-way in the city shall first register with the city in accordance with this article. Subject to the terms and conditions prescribed in this article, a registrant may place or maintain a communications facility in public rights-of-way.

(2)

A registration shall not convey any title, equitable or legal, to the registrant in the public rights-of-way. Registration under this article governs only the placement or maintenance of communications facilities in public rights-of-way. Other ordinances, codes or regulations may apply to the placement or maintenance in the public rights-of-way of facilities that are not communications facilities. Registration does not excuse a communications services provider from obtaining appropriate access or pole attachment agreements before locating its facilities on the city or another person's facilities. Registration does not excuse a communications services provider from complying with all applicable city ordinances, codes or regulations, including this article.

(3)

Each communications services provider that desires to place or maintain a communications facility in public rights-of-way in the city shall file a single registration with the city, which shall include the following information:

a.

Name of the applicant;

b.

Name, address and telephone number of the applicant's primary contact person in connection with the registration, and the person to contact in case of an emergency;

c.

For registrations submitted prior to October 1, 2001, the applicant shall state whether it provides local service or toll service or both;

d.

Evidence of the insurance coverage required under this article and acknowledgment that registrant has received and reviewed a copy of this article, which acknowledgment shall not be deemed an agreement; and

e.

The number of the applicant's certificate of authorization or license to provide communications services issued by the Florida Public Service Commission, the Federal Communications Commission, or other federal or state authority, if any.

f.

For an applicant that does not provide a Florida Public Service Commission certificate of authorization number, if the applicant is a corporation, proof of authority to do business in the State of Florida, such as the number of the certificate from or filing with the Florida Department of State.

(4)

Registration application fees. The city may, at its option, require a registration application fee through October 1, 2001.

a.

Each applicant for a registration may be required to submit a registration application fee with the application, which shall not be refunded if the application is withdrawn; provided that the registrant may credit the registration application fee as provided in F.S. (2000) § 337.401(3). Fee amounts shall be established by resolution of the city and shall be in an amount not to exceed the city costs and expenses incurred in connection with reviewing and approving the registration. If the registration application fee is insufficient to cover all costs or expenses incurred by the city in connection with review and approval of the registration, the applicant shall reimburse the city for any such costs and expenses in excess of the registration application fee following receipt of written notice, which shall explain any additional costs or expenses. This subsection (4)a. shall be repealed and shall have no force or effect on or after October 1, 2001.

b.

No registration application fees shall be imposed on or after October 1, 2001.

(5)

The city shall review the information submitted by the applicant. Such review shall be by the city manager or his designee. If the applicant submits information in accordance with subsection (3) above, the registration shall be effective and the city shall notify the applicant of the effectiveness of registration in writing. If the city determines that the information has not been submitted in accordance with subsection (3) above, the city shall notify the applicant of the noneffectiveness of registration, and reasons for the noneffectiveness, in writing. The city shall so reply to an applicant within thirty (30) days after receipt of registration information from the applicant. Noneffectiveness of registration shall not preclude an applicant from filing subsequent applications for registration under the provisions of this section. An applicant has thirty (30) days after receipt of a notice of noneffectiveness of registration to appeal the decision as provided in section 18-61(h).

(6)

A registrant may cancel a registration upon written notice to the city stating that it will no longer place or maintain any communications facilities in public rights-of-way within the city and will no longer need to obtain permits to perform work in public rights-of-way. A registrant cannot cancel a registration if the registrant continues to place or maintain any communications facilities in public rights-of-way.

(7)

Registration does not in and of itself establish a right to place or maintain or priority for the placement or maintenance of a communications facility in public rights-of-way within the city but shall establish for the registrant a right to apply for a permit, if permitting is required by the city. Registrations are expressly subject to any future amendment to or replacement of this article and further subject to any additional city ordinances, as well as any state or federal laws that may be enacted.

(8)

A registrant shall renew its registration with the city by April 1 of even numbered years in accordance with the registration requirements in this article, except that a registrant that initially registers during the even numbered year when renewal would be due or the odd numbered year immediately preceding such even numbered year shall not be required to renew until the next even numbered year. Within thirty (30) days of any change in the information required to be submitted pursuant to subsection (3), except, as of October 1, 2001, subsection (3)c., a registrant shall provide updated information to the city. If no information in the then existing registration has changed, the renewal may state that no information has changed. Failure to renew a registration may result in the city restricting the issuance of additional permits until the communications services provider has complied with the registration requirements of this article.

(9)

In accordance with applicable city ordinances, codes or regulations, a permit may be required of a communications services provider that desires to place or maintain a communications facility in public rights-of-way. An effective registration shall be a condition of obtaining a permit. Notwithstanding an effective registration, permitting requirements shall apply. A permit may be obtained by or on behalf of a registrant having an effective registration if all permitting requirements are met.

(e)

Notice of transfer, sale or assignment of assets in public rights-of-way. If a registrant transfers, sells or assigns its assets located in public rights-of-way incident to a transfer, sale or assignment of the registrant's assets, the transferee, buyer or assignee shall be obligated to comply with the terms of this article. Written notice of any such transfer, sale or assignment shall be provided by such registrant to the city within twenty (20) days after the effective date of the transfer, sale or assignment. If the transferee, buyer or assignee is a current registrant, then the transferee, buyer or assignee is not required to re-register. If the transferee, buyer or assignee is not a current registrant, then the transferee, buyer or assignee shall register as provided in section 18-61(d) within sixty (60) days of the transfer, sale or assignment. If permit applications are pending in the registrant's name, the transferee, buyer or assignee shall notify the city manager's office that the transferee, buyer or assignee is the new applicant.

(f)

Placement or maintenance of a communications facility in public rights-of-way.

(1)

A registrant shall at all times comply with and abide by all applicable provisions of the state and federal law and city ordinances, codes and regulations in placing or maintaining a communications facility in public rights-of-way.

(2)

A registrant shall not commence to place or maintain a communications facility in public rights-of-way until all applicable permits, if any, have been issued by the city or other appropriate authority, except in the case of an emergency. The term "emergency" shall mean a condition that affects the public's health, safety or welfare, which includes an unplanned out-of-service condition of a pre-existing service. Registrant shall provide prompt notice to the city of the placement or maintenance of a communications facility in public rights-of-way in the event of an emergency and may be required to obtain an after-the-fact permit if a permit would have originally been required to perform the work undertaken in public rights-of-way in connection with the emergency. Registrant acknowledges that as a condition of granting such permits, the city may impose reasonable rules or regulations governing the placement or maintenance of a communications facility in public rights-of-way. Permits shall apply only to the areas of public rights-of-way specifically identified in the permit. The city may issue a blanket permit to cover certain activities, such as routine maintenance and repair activities, that may otherwise require individual permits.

(3)

As part of any permit application to place a new or replace an existing communications facility in public rights-of-way, the registrant shall provide the following:

a.

The location of the proposed facilities, including a description of the facilities to be installed, where the facilities are to be located, and the approximate size of facilities that will be located in public rights-of-way;

b.

A description of the manner in which the facility will be installed (i.e. anticipated construction methods or techniques);

c.

A maintenance of traffic plan for any disruption of the public rights-of-way;

d.

Information on the ability of the public rights-of-way to accommodate the proposed facility, if available (such information shall be provided without certification as to correctness, to the extent obtained from other persons);

e.

If appropriate given the facility proposed, an estimate of the cost of restoration to the public rights-of-way;

f.

The timetable for construction of the project or each phase thereof, and the areas of the city which will be affected; and

g.

Such additional information as the city finds reasonably necessary with respect to the placement or maintenance of the communications facility that is the subject of the permit application to review such permit application.

(4)

To the extent not otherwise prohibited by state or federal law, the city shall have the power to prohibit or limit the placement of new or additional communications facilities within a particular area of public rights-of-way.

(5)

All communications facilities shall be placed or maintained so as not to unreasonably interfere with the use of the public rights-of-way by the public and with the rights and convenience of property owners who adjoin any of the public rights-of-way. The use of trenchless technology (i.e., directional bore method) for the installation of facilities in the public rights-of-way as well as joint trenching or the collocation of facilities in existing conduit is strongly encouraged, and should be employed wherever feasible. The city manager or his designee may promulgate reasonable rules and regulations concerning the placement or maintenance of a communications facility in public rights-of-way consistent with this article and other applicable law.

(6)

All safety practices required by applicable law or accepted industry practices and standards shall be used during the placement or maintenance of communications facilities.

(7)

After the completion of any placement or maintenance of a communications facility in public rights-of-way or each phase thereof, a registrant shall, at its own expense, restore the public rights-of-way to its original condition before such work. If the registrant fails to make such restoration within thirty (30) days, or such longer period of time as may be reasonably required under the circumstances, following the completion of such placement or maintenance, the city may perform restoration and charge the costs of the restoration against the registrant in accordance with F.S. (2000 edition) § 337.402, as it may be amended. For twelve (12) months following the original completion of the work, the registrant shall guarantee its restoration work and shall correct any restoration work that does not satisfy the requirements of this article at its own expense.

(8)

Removal or relocation at the direction of the city of a registrant's communications facility in public rights-of-way shall be governed by the provisions of F.S. (2000 edition) §§ 337.403 and 337.404, as they may be amended.

(9)

A permit from the city constitutes authorization to undertake only certain activities in public rights-of-way in accordance with this article, and does not create a property right or grant authority to impinge upon the rights of others who may have an interest in the public rights-of-way.

(10)

A registrant shall maintain its communications facility in public rights-of-way in a manner consistent with accepted industry practice and applicable law.

(11)

In connection with excavation in the public rights-of-way, a registrant shall, where applicable, comply with the Underground Facility Damage Prevention and Safety Act set forth in, Florida Statute (2000 edition) Chapter 556, as it may be amended.

(12)

Registrant shall use and exercise due caution, care and skill in performing work in the public rights-of-way and shall take all reasonable steps to safeguard work site areas.

(13)

Upon request of the city, and as notified by the city of the other work, construction, installation or repairs referenced below, a registrant may be required to coordinate placement or maintenance activities under a permit with any other work, construction, installation or repairs that may be occurring or scheduled to occur within a reasonable timeframe in the subject public rights-of-way, and registrant may be required to reasonably alter its placement or maintenance schedule as necessary so as to minimize disruptions and disturbance in the public rights-of-way.

(14)

A registrant shall not place or maintain its communications facilities so as to interfere with, displace, damage or destroy any facilities, including but not limited to, sewers, gas or water mains, storm drains, pipes, cables or conduits of the city or any other person's facilities lawfully occupying the public rights-of-way of the city.

(15)

The city makes no warranties or representations regarding the fitness, suitability, or availability of city public rights-of-way for the registrant's communications facilities and any performance of work, costs incurred or services provided by registrant shall be at registrant's sole risk. Nothing in this article shall affect the city authority to add, vacate or abandon public rights-of-way, and city makes no warranties or representations regarding the availability of any added, vacated or abandoned public rights-of-way for communications facilities. No abandonment of any rights-of-way will be made without first complying with chapter 22, section 22-2 of the DeFuniak Springs Municipal Code.

(16)

The city shall have the right to make such inspections of communications facilities placed or maintained in public rights-of-way as it finds necessary to ensure compliance with this article.

(17)

A permit application to place a new or replace an existing communications facility in public rights-of-way shall include plans showing the location of the proposed installation of facilities in the public rights-of-way. If the plans so provided require revision based upon actual installation, the registrant shall promptly provide revised plans. The plans shall be in a hard copy format or an electronic format specified by the city, provided such electronic format is maintained by the registrant. Such plans in a format maintained by the registrant shall be provided at no cost to the city.

(18)

The city reserves the right to place and maintain, and permit to be placed or maintained, sewer, gas, water, electric, storm drainage, communications, and other types of facilities, cables or conduit, and to do, and to permit to be done, any underground and overhead installation or improvement that may be deemed necessary or proper by the city in public rights-of-way occupied by the registrant. The city further reserves without limitation the right to alter, change, or cause to be changed, the grading, installation, relocation, or width of the public rights-of-way within the limits of the city and within said limits as same may from time to time be altered.

(19)

A registrant shall, on the request of any person holding a permit issued by the city, temporarily raise or lower its communications facilities to permit the work authorized by the permit. The expense of such temporary raising or lowering of facilities shall be paid by the person requesting the same, and the registrant shall have the authority to require such payment in advance. The registrant shall be given not less than thirty (30) days advance written notice to arrange for such temporary relocation.

(20)

A wireless facility that is a portion of a communication facility, such as an antenna ("wireless facility(ies)"), which is attached to a legally maintained vertical structure in the public rights-of-way, such as a light pole or utility pole ("vertical structure(s)"), shall be subject to the following criteria:

a.

Such wireless facilities may not extend more than twenty (20) feet above the highest point of the vertical structure;

b.

Such wireless facilities that are attached to a vertical structure located in public rights-of-way that is fifteen (15) feet or less in width and is located adjacent to real property used as a single-family residence shall be flush mounted to the vertical structure;

c.

Such wireless facilities shall not have any type of lighted signal, lights, or illuminations unless required by an applicable federal, state, or local rule, regulation or law;

d.

Such wireless facilities shall comply with any applicable federal communications commission emissions standards;

e.

The design, construction, and installation of such wireless facilities shall comply with any applicable local building codes;

f.

No commercial advertising shall be allowed on such wireless facilities; and

g.

Any accessory equipment and related housing in the public rights-of-way that are used in conjunction with such a wireless facility shall comply with any applicable local rules, regulations, ordinances, or laws governing the placement and design of such equipment.

Vertical structures, such as towers, whose sole purpose is to serve as a mounting device for antennae, are expressly prohibited from being placed in the public rights-of-way unless applicable zoning and land use laws or regulations allow such structures to be placed within the zoning district in which such public rights-of-way are located or to which they are adjacent.

(g)

Suspension of permits. The city may suspend a permit for work in the public rights-of-way for one (1) or more of the following reasons; subject to section 18-61(h) of this article.

(1)

Violation of permit conditions, including conditions set forth in the permit, this article or other applicable city ordinances, codes or regulations governing placement or maintenance of communications facilities in public rights-of-way;

(2)

Misrepresentation or fraud by registrant in a registration or permit application to the city; or

(3)

Failure to properly renew or ineffectiveness of registration.

(4)

Failure to relocate or remove facilities as may be lawfully required by the city.

The city manager shall provide notice and an opportunity to cure any violation of (1) through (4) above, each of which shall be reasonable under the circumstances.

(h)

Appeals. Final, written decisions of the city manager or his designee suspending or denying a permit, denying an application for a registration or denying an application for renewal of a registration are subject to appeal. An appeal must be filed with the city manager within thirty (30) days of the date of the final, written decision to be appealed. Any appeal not timely filed as set forth above shall be waived. The city council shall hear the appeal as set forth in this article. The hearing shall occur within thirty (30) days of the receipt of the appeal, unless waived by the registrant, and a written decision shall be rendered within twenty (20) days of the hearing. Upon correction of the grounds that gave rise to a suspension or denial, the suspension or denial shall be lifted.

(i)

Involuntary termination of registration.

(1)

The city may terminate a registration if:

a.

A federal or state authority suspends, denies, or revokes a registrant's certification or license to provide communications services;

b.

The registrant's placement or maintenance of a communications facility in the public rights-of-way presents an extraordinary danger to the general public or other users of the public rights-of-way and the registrant fails to remedy the danger promptly after receipt of written notice; or

c.

The registrant ceases to use all of its communications facilities in public rights of-way and has not complied with section 18-61(p) of this article.

(2)

Prior to termination, the registrant shall be notified by the city manager or his designee with a written notice setting forth all matters pertinent to the proposed termination action, including which of (1) through (3) above is applicable as the reason therefore, and describing the proposed action of the city with respect thereto. The registrant shall have sixty (60) days after receipt of such notice within which to address or eliminate the reason or within which to present a plan, satisfactory to the city manager or his designee to accomplish the same. If the plan is rejected, the city manager or his designee shall provide written notice of such rejection to the registrant and shall make a recommendation to the city council regarding a decision as to termination of registration. A decision by a city to terminate a registration may only be accomplished by an action of the city council. A registrant shall be notified by written notice of any decision by the city council to terminate its registration. Such written notice shall be sent within seven (7) days after the decision.

(3)

In the event of termination, the former registrant shall: (a) notify the city of the assumption or anticipated assumption by another registrant of ownership of the registrant's communications facilities in public rights-of-way; or (b) provide the city with an acceptable plan for disposition of its communications facilities in public rights-of-way. If a registrant fails to comply with this subsection (c), which determination of noncompliance is subject to appeal as provided in section 18-61(h), the city may exercise any remedies or rights it has at law or in equity, including but not limited to taking possession of the facilities where another person has not assumed the ownership or physical control of the facilities or requiring the registrant within ninety (90) days of the termination, or such longer period as may be agreed to by the registrant, to remove some or all of the facilities from the public rights-of-way and restore the public rights-of-way to its original condition before the removal.

(4)

In any event, a terminated registrant shall take such steps as are necessary to render safe every portion of the communications facilities remaining in the public rights-of-way of the city.

(5)

In the event of termination of a registration, this section does not authorize the city to cause the removal of communications facilities used to provide another service for which the registrant or another person who owns or exercises physical control over the facilities holds a valid certification or license with the governing federal or state agency, if required for provision of such service, and is registered with the city, if required.

(j)

Existing communications facilities in public rights-of-way. A communications services provider with an existing communications facility in the public rights-of-way of the city has sixty (60) days from the effective date of this article to comply with the terms of this article, including, but not limited to, registration, or be in violation thereof.

(k)

Insurance.

(1)

A registrant shall provide, pay for and maintain satisfactory to the city the types of insurance described herein. All insurance shall be from responsible companies duly authorized to do business in the state and having a rating reasonably acceptable to the city. All liability policies shall provide that the city is an additional insured as to the activities under this article. The required coverages must be evidenced by properly executed certificates of insurance forms. The certificates must be signed by the authorized representative of the insurance company and shall be filed and maintained with the city annually. Thirty (30) days' advance written notice by registered, certified or regular mail or facsimile as determined by the city must be given to the city if any cancellation, intent not to renew or reduction in the policy coverage's. The insurance requirements may be satisfied by evidence of self-insurance or other types of insurance acceptable to the city.

(2)

The limits of coverage of insurance required shall be not less than the following:

a.

Worker's compensation and employer's liability insurance.

Worker's compensation—Florida statutory requirements.
Employer's liability one million dollars ($1,000,000.00) limit each accident.
Five hundred thousand dollars ($500,000.00) limit per accident.
Five hundred thousand dollars ($500,000.00) limit per each employee.

b.

Comprehensive general liability.

Bodily injury and property damage—One million dollars ($1,000,000.00) combined single limit each occurrence.

c.

Automobile liability.

Bodily injury and property damage—One million dollars ($1,000,000.00) combined single limit each accident.

(l)

Indemnification.

(1)

A registrant shall, at its sole cost and expense, indemnify, hold harmless, and defend the city, its officials, boards, members, agents, and employees, against any and all claims, suits, causes of action, proceedings, judgments for damages or equitable relief, and costs and expenses incurred by the city arising out of the placement or maintenance of its communications system or facilities in public rights-of-way, regardless of whether the act or omission complained of is authorized, allowed or prohibited by this article, provided, however, that a registrant's obligation hereunder shall not extend to any claims caused by the negligence, gross negligence or wanton or willful acts of the city. This provision includes, but is not limited to, the city reasonable attorneys' fees incurred in defending against any such claim, suit or proceedings. The city agrees to notify the registrant, in writing, within a reasonable time of city receiving notice, of any issue it determines may require indemnification. Nothing in this section shall prohibit the city from participating in the defense of any litigation by its own counsel and at its own cost if in the city reasonable belief there exists or may exist a conflict, potential conflict or appearance of a conflict. Nothing contained in this section shall be construed or interpreted: (a) as denying to either party any remedy or defense available to such party under the laws of the state; or (b) as a waiver of sovereign immunity beyond the waiver provided in F.S. (2000 edition) § 768.28, as it may be amended.

(2)

The indemnification requirements shall survive and be in effect after the termination or cancellation of a registration.

(m)

Construction bond.

(1)

Prior to issuing a permit where the work under the permit will require restoration of public rights-of-way, the city may require a construction bond to secure the restoration of the public rights-of-way. Notwithstanding the foregoing, a construction bond hereunder may only be required to the extent that the cost of the restoration exceeds the amount recoverable against the security fund as provided in section 18-61(n). The following shall provide for more specific requirements for a construction bond in this article: (a.) Twelve (12) months after the completion of the restoration in public rights-of-way in accordance with the bond, the registrant may eliminate the bond. However, the city may subsequently require a new bond for any subsequent work in the public rights-of-way. (b.) The construction bond shall be issued by a surety having a rating reasonably acceptable to the city; shall be subject to the approval of the city manager or his designee; and shall provide that: "for twelve (12) months after issuance of this bond, this bond may not be canceled, or allowed to lapse, until sixty (60) days after receipt by the city, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew."

(2)

The rights reserved by the city with respect to any construction bond established pursuant to this section are in addition to all other rights and remedies the city may have under this article, or at law or equity.

(3)

The rights reserved to the city under this section are in addition to all other rights of the city, whether reserved in this article, or authorized by other law, and no action, proceeding or exercise of a right with respect to the construction bond will affect any other right the city may have.

(n)

Security fund. At or prior to the time a registrant receives its first permit to place or maintain a communications facility in public rights-of-way after the effective date of this article, the registrant may be required to file with the city, for city approval, an annual bond, cash deposit or irrevocable letter of credit in the sum of twenty-five thousand dollars ($25,000.00) or other appropriate amount having as a surety a company qualified to do business in the state, and acceptable to the city manager or his designee, which shall be referred to as the "security fund." The security fund shall be maintained from such time through the earlier of: (1) transfer, sale, assignment or removal of all communications facilities in public rights-of-way; or (2) twelve (12) months after the termination or cancellation of any registration. The security fund shall be conditioned on the full and faithful performance by the registrant of all requirements, duties and obligations imposed upon registrant by the provisions of this article. The security fund shall be furnished annually or as frequently as necessary to provide a continuing guarantee of the registrant's full and faithful performance at all times. In the event a registrant fails to perform its duties and obligations imposed upon the registrant by the provisions of this article, subject to section 18-61(o) of this article, there shall be recoverable, jointly and severally from the principal and surety of the security fund, any damages or loss suffered by the city as a result, including the full amount of any compensation, indemnification or cost of removal, relocation or abandonment of any facilities of the registrant in public rights-of-way, plus a reasonable allowance for attorneys' fees, up to the full amount of the security fund. Notwithstanding the foregoing, the city may in its discretion not require a security fund or may accept a corporate guarantee of the registrant or its parent company.

(o)

Enforcement remedies.

(1)

A registrant's failure to comply with provisions of this article shall constitute a violation of this article and shall subject the registrant to the code enforcement provisions and procedures as provided in F.S. (2000 edition) § 166.0415. In addition, violation of this article may be punishable as provided in F.S. § 162.22, as it may be amended. Additional provisions could be:

a.

Before imposing a fine pursuant to this section, the city manager or his designee shall give written notice of the violation and its intention to assess such penalties, which notice shall contain a description of the alleged violation. Following receipt of such notice, the registrant shall have thirty (30) days to either:

1.

Cure the violation to the city satisfaction and the city shall make good faith reasonable efforts to assist in resolving the violation; or

2.

File an appeal with the city to contest the alleged violation. Section 18-61(h) shall govern such appeal. If no appeal is filed and if the violation is not cured within the thirty (30) day period, the city may collect all fines owed, beginning with the first day of the violation, through any means allowed by law.

b.

In determining which remedy is appropriate, the city shall take into consideration the nature of the violation, the person bearing the impact of the violation, the nature of the remedy required in order to prevent further violations, and such other matters as the city determines are appropriate to the public interest.

c.

In any proceeding before the city where there exists an issue with respect to a registrant's performance of its obligations pursuant to this article, the registrant shall be given the opportunity to provide such information as it may have concerning its compliance with the terms and conditions of this article. The city may find a registrant that does not demonstrate compliance with the terms and conditions of this article in default and apply a remedy as authorized by this article.

d.

The city manager or his designee or a designee shall be responsible for administration and enforcement of this article, and is authorized to give any notice required by law.

(2)

Failure of the city to enforce any requirements of this article shall not constitute a waiver of the city right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies.

(p)

Abandonment of a communications facility.

(1)

Upon abandonment of a communications facility owned by a registrant in public rights-of-way, the registrant shall notify the city ninety (90) days.

(2)

The city may direct the registrant by written notice to remove all or any portion of such abandoned facility at the registrant's sole expense if the city determines that the abandoned facility's presence interferes with the public health, safety or welfare, which shall include, but shall not be limited to, a determination that such facility: (a) compromises safety at any time for any public rights-of-way user or during construction or maintenance in public rights-of-way; (b) prevents another person from locating facilities in the area of public rights-of-way where the abandoned facility is located when other alternative locations are not reasonably available; or (c) creates a maintenance condition that is disruptive to the public rights-of-way's use. In the event of (b) [of subsection (2)], the city may require the third person to coordinate with the registrant that owns the existing facility for joint removal and placement, where agreed to by the registrant.

(3)

In the event that the city does not direct the removal of the abandoned facility, the registrant, by its notice of abandonment to the city shall be deemed to consent to the alteration or removal of all or any portion of the facility by the city or another person at such third party's cost.

(4)

If the registrant fails to remove all or any portion of an abandoned facility as directed by the city within a reasonable time period as may be required by the city under the circumstances, the city may perform such removal and charge the cost of the removal against the registrant.

(q)

Force majeure. In the event a registrant's performance of or compliance with any of the provisions of this article is prevented by a cause or event not within the registrant's control, such inability to perform or comply shall be deemed excused and no penalties or sanctions shall be imposed as a result, provided, however, that such registrant uses all practicable means to expeditiously cure or correct any such inability to perform or comply. For purposes of this article, causes or events not within a registrant's control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of public enemies, riots or civil disturbances, sabotage, strikes and restraints imposed by order of a governmental agency or court. Causes or events within registrant's control, and thus not falling within this section, shall include, without limitation, registrant's financial inability to perform or comply, economic hardship, and misfeasance, malfeasance or nonfeasance by any of registrant's directors, officers, employees, contractors or agents.

(r)

Reservation of rights and remedies.

(1)

The city reserves the right to amend this article as it shall find necessary in the lawful exercise of its police powers.

(2)

This article shall be applicable to all communications facilities placed in the public rights-of-way on or after the effective date of this article and shall apply to all existing communications facilities in the public rights-of-way prior to the effective date of this article, to the full extent permitted by state and federal law.

(3)

The adoption of this article is not intended to affect any rights or defenses of the city or a communications service provider under any existing franchise, license or other agreements with a communications services provider.

(4)

Nothing in this article shall affect the remedies the city or the registrant has available under applicable law.

(5)

Any person who uses the communications facilities of a registrant, other than the registrant that owns the facilities, shall not be entitled to any rights to place or maintain such facilities in excess of the rights of the registrant that places or maintains the facilities.

(Ord. No. 881, § 18.61, 6-26-2017)

(a)

Purpose and legislative intent. The Telecommunications Act of 1996 affirmed the city's authority concerning the placement, construction and modification of wireless telecommunications facilities. The city finds that wireless telecommunications facilities may pose significant concerns to the health, safety, public welfare, character and environment of the city and its inhabitants. The city also recognizes that facilitating the development of wireless service technology can be an economic development asset to the city and of significant benefit to the city and its residents. In order to insure that the placement, construction or modification of wireless telecommunications facilities is consistent with the city's land use policies, the city is adopting a single, comprehensive, wireless telecommunications facilities application and permit process. The intent of this local ordinance is to minimize the negative impact of wireless telecommunications facilities, establish a fair and efficient process for review and approval of applications, assure an integrated, comprehensive review of environmental impacts of such facilities, and protect the health, safety and welfare of the city.

(b)

Title. This section shall be known and cited as the wireless telecommunications facilities siting ordinance for the City of DeFuniak Springs.

(c)

Severability.

(1)

If any word, phrase, sentence, part, section, subsection, or other portion of this article or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection, or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this article, and all applications thereof, not having been declared void, unconstitutional, or invalid, shall remain in full force and effect.

(2)

Any special use permit issued under this article shall be comprehensive and not severable. If part of a permit is deemed or ruled to be invalid or unenforceable in any material respect, by a competent authority, or is overturned by a competent authority, the permit shall be void in total, upon determination by the city.

(d)

Overall policy and desired goals for special use permits for wireless telecommunications facilities. In order to ensure that the placement, construction, and modification of wireless telecommunications facilities protects the city's health, safety, public welfare, environmental features, the nature and character of the community and neighborhood and other aspects of the quality of life specifically listed elsewhere in this article, the city hereby adopts an overall policy with respect to a special use permit for wireless telecommunications facilities for the express purpose of achieving the following goals:

(1)

Implementing an application process for person(s) seeking a special use permit for wireless telecommunications facilities;

(2)

Establishing a policy for examining an application for and issuing a special use permit for wireless telecommunications facilities that is both fair and consistent;

(3)

Promoting and encouraging, wherever possible, the sharing and/or co-location of wireless telecommunications facilities among service providers;

(4)

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

(e)

Special use permit application and other requirements.

(1)

All applicants for a special use permit for wireless telecommunications facilities or any modification of such facility shall comply with the requirements set forth in this article. The city council is the officially designated agency or body of the city to whom applications for a special use permit for wireless telecommunications facilities must be made, and that is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting, recertifying or not recertifying, or revoking special use permits for wireless telecommunications facilities. The city may at its discretion delegate or designate other official agencies of the city to accept, review, analyze, evaluate and make recommendations to the city council with respect to the granting or not granting, recertifying or not recertifying or revoking special use permits for wireless telecommunications facilities.

(2)

An application for a special use permit for wireless telecommunications facilities shall be signed on behalf of the applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information. The landowner, if different than the applicant, shall also sign the application. At the discretion of the city, any false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.

(3)

The city may reject applications not meeting the requirements stated herein or which are otherwise incomplete.

(4)

The applicant shall include a statement in writing:

a.

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

b.

That the construction of the wireless telecommunications facilities is legally permittable, including, but not limited to the fact that the applicant is authorized to do business in the state.

(5)

No wireless telecommunications facilities shall be installed or constructed until the application is reviewed and approved by the city, and the special use permit has been issued.

(6)

All applications for the construction or installation of new wireless telecommunications facilities shall contain the information hereinafter set forth. Where a certification is called for in this article, such certification shall bear the signature and seal of a professional engineer licensed in the state. The application shall include the following information:

a.

Documentation that demonstrates the need for the wireless telecommunications facility to provide service primarily and essentially within the city. Such documentation shall include propagation studies of the proposed site and all adjoining planned, proposed, in-service or existing sites;

b.

The name, address and phone number of the person preparing the report;

c.

The name, address, and phone number of the property owner, operator, and applicant, and to include the legal form of the applicant;

d.

The postal address and tax map parcel number of the property;

e.

The zoning district or designation in which the property is situated;

f.

Size of the property stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines;

g.

The location of nearest residential structure;

h.

The location, size and height of all structures on the property which is the subject of the application;

i.

The location, size and height of all proposed and existing antennae and all appurtenant structures;

j.

The type, locations and dimensions of all proposed and existing landscaping, and fencing;

k.

The number, type and design of the tower(s) and antenna(s) proposed and the basis for the calculations of the tower's capacity to accommodate multiple users;

l.

The make, model and manufacturer of the tower and antenna(s);

m.

A description of the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above pre-existing grade, materials, color and lighting;

n.

The frequency, modulation and class of service of radio or other transmitting equipment;

o.

The actual intended transmission and the maximum effective radiated power of the antenna(s);

p.

Direction of maximum lobes and associated radiation of the antenna(s);

q.

Certification that the NIER levels at the proposed site are within the threshold levels adopted by the FCC;

r.

Certification that the proposed antenna(s) will not cause interference with other telecommunications devices;

s.

A copy of the FCC license applicable for the intended use of the wireless telecommunications facilities;

t.

Certification that a topographic and geomorphologic study and analysis has been conducted, and that taking into account the subsurface and substrata, and the proposed drainage plan, that the site is adequate to assure the stability of the proposed wireless telecommunications facilities on the proposed site.

(7)

In the case of a new tower, the applicant shall be required to submit a written report demonstrating its meaningful efforts to secure shared use of existing tower(s) or the use of alternative buildings or other structures within the city. Copies of written requests and responses for shared use shall be provided to the city in the application, along with any letters of rejection stating the reason for rejection.

(8)

The applicant shall certify that the telecommunication facility, foundation and attachments are designed and will be constructed to meet all local, city, state and federal structural requirements for loads, including wind and ice loads.

(9)

The applicant shall certify that the wireless telecommunications facilities will be effectively grounded and bonded so as to protect persons and property and installed with appropriate surge protectors.

(10)

The applicant shall furnish a visual impact assessment, which shall include:

a.

A "zone of visibility map" which shall be provided in order to determine locations from which the tower may be seen.

b.

Pictorial representations of "before and after" views from key viewpoints both inside and outside of the city as may be appropriate, including but not limited to state highways and other major roads; state and local parks; other public lands; historic districts, preserves and historic sites normally open to the public, and from any other location where the site is visible to a large number of visitors, travelers or residents. Guidance will be provided, concerning the appropriate key sites at a pre-application meeting.

c.

An assessment of the visual impact of the tower base, guy wires and accessory buildings from abutting and adjacent properties and streets as relates to the need or appropriateness of screening.

(11)

The applicant shall demonstrate and provide in writing and/or by drawing how it shall effectively screen from view the base and all related facilities and structures of the proposed wireless telecommunications facilities.

(12)

Any and all representations made by the applicant to the city on the record during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the city.

(13)

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

(14)

All wireless telecommunications facilities shall contain a demonstration that the facility be sited so as to be the least visually intrusive reasonably possible and thereby have the least adverse visual effect on the environment and its character, on existing vegetation, and on the residences in the area of the wireless telecommunications facility.

(15)

Both the wireless telecommunications facility and any and all accessory or associated facilities shall maximize the use of building materials, colors and textures designed to blend with the structure to which it may be affixed and/or to harmonize with the natural surroundings, this shall include the utilization of stealth or concealment technology as may be required by the city.

(16)

At a telecommunications site, an access road, turn around space and parking shall be provided to assure adequate emergency and service access. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and the cutting of vegetation. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion.

(17)

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

(18)

A holder of a special use permit granted under this article shall obtain, at its own expense, all permits and licenses required by applicable law, rule, regulation or code, and must maintain the same, in full force and effect, for as long as required by the city or other governmental entity or agency having jurisdiction over the applicant.

(19)

With respect to this application process, the city intends to be the lead agency, pursuant to FDEP. The council shall conduct an environmental review of the proposed project in combination with its review of the application under this law.

(20)

An applicant shall submit to the city the number of completed applications determined to be needed at the pre-application meeting. Written notification of the application shall be provided to the legislative body of all adjacent municipalities.

(21)

The applicant shall examine the feasibility of designing a proposed tower to accommodate future demand for at least five (5) additional commercial applications, for example, future co-locations. The tower shall be structurally designed to accommodate at least five (5) additional antenna arrays equal to those of the applicant, and located as close to the applicant's antenna as possible without causing interference. This requirement may be waived, provided that the applicant, in writing, demonstrates that the provisions of future shared usage of the tower is not technologically feasible, is commercially impracticable or creates an unnecessary and unreasonable burden, based upon:

a.

The foreseeable number of FCC licenses available for the area;

b.

The kind of wireless telecommunications facilities site and structure proposed;

c.

The number of existing and potential licenses without wireless telecommunications facilities spaces/sites;

d.

Available space on existing and approved towers.

(22)

The owner of the proposed new tower, and his/her successors in interest, shall negotiate in good faith for the shared use of the proposed tower by other wireless service providers in the future, and shall:

a.

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

b.

Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers;

c.

Allow shared use of the new tower if another telecommunications provider agrees in writing to pay reasonable charges. The charges may include, but are not limited to, a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity, less depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference.

Failure to abide by the conditions outlined above may be grounds for revocation of the special use permit for the tower.

(23)

There shall be a pre-application meeting. The purpose of the pre-application meeting will be to address issues that will help to expedite the review and permitting process. A pre-application meeting shall also include a site visit if there has not been a prior site visit for the requested site. Costs of the city's consultants to prepare for and attend the pre-application meeting will be borne by the applicant.

(24)

The holder of a special use permit shall notify the city of any intended modification of a wireless telecommunications facility and shall apply to the city to modify, relocate or rebuild a wireless telecommunications facility.

(25)

In order to better inform the public, in the case of a new telecommunication tower, the applicant shall, prior to the public hearing on the application, hold a "balloon test". The applicant shall arrange to fly, or raise upon a temporary mast, a minimum of a three (3) foot in diameter brightly colored balloon at the maximum height of the proposed new tower. The dates, (including a second date, in case of poor visibility on the initial date) times and location of this balloon test shall be advertised by the applicant seven (7) and fourteen (14) days in advance of the first test date in a newspaper with a general circulation in the city. The applicant shall inform the city, in writing, of the dates and times of the test, at least fourteen (14) days in advance. The balloon shall be flown for at least four (4) consecutive hours sometime between 7:00 a.m. and 4:00 p.m. on the dates chosen. The primary date shall be on a weekend, but in case of poor weather on the initial date, the secondary date may be on a weekday.

(26)

The applicant will provide a written copy of an analysis, completed by a qualified individual or organization, to determine if the tower or existing structure intended to support wireless facilities requires lighting under FAA Regulation Part 77. This requirement shall be for any new tower or for an existing structure or building where the application increases the height of the structure or building. If this analysis determines, that the FAA must be contacted, then all filings with the FAA, all responses from the FAA and any related correspondence shall be provided in a timely manner.

(f)

Location of wireless telecommunications facilities.

(1)

Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities in accordance with the following priorities, one (1) being the highest priority and six (6) being the lowest priority.

a.

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

b.

On city-owned properties;

c.

On properties in areas zoned for heavy industrial use;

d.

On properties in areas zoned for commercial use;

e.

On properties in areas zoned for agricultural use;

f.

On properties in areas zoned for residential use.

(2)

If the proposed site is not proposed for the highest priority listed above, then a detailed explanation must be provided as to why a site of a higher priority was not selected. The person seeking such an exception must satisfactorily demonstrate the reason or reasons why such a permit should be granted for the proposed site, and the hardship that would be incurred by the applicant if the permit were not granted for the proposed site.

(3)

An applicant may not by-pass sites of higher priority by stating the site proposed is the only site leased or selected. An application shall address co-location as an option. If such option is not proposed, the applicant must explain to the reasonable satisfaction of the city why co-location is commercially or otherwise impracticable. Agreements between providers limiting or prohibiting co-location shall not be a valid basis for any claim of commercial impracticability or hardship.

(4)

Notwithstanding the above, the city may approve any site located within an area in the above list of priorities, provided that the city finds that the proposed site is in the best interest of the health, safety and welfare of the city and its inhabitants and will not have a deleterious effect on the nature and character of the community and neighborhood.

(5)

The applicant shall submit a written report demonstrating the applicant's review of the above locations in order of priority, demonstrating the technological reason for the site selection. If appropriate, based on selecting a site of lower priority, a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.

(6)

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

a.

Conflict with safety and safety-related codes and requirements;

b.

Conflict with the historic nature or character of a neighborhood or historical district;

c.

The use or construction of wireless telecommunications facilities which is contrary to an already stated purpose of a specific zoning or land use designation;

d.

The placement and location of wireless telecommunications facilities which would create an unacceptable risk, or the reasonable probability of such, to residents, the public, employees and agents of the city, or employees of the service provider or other service providers;

e.

Conflicts with the provisions of this article.

(g)

Shared use of wireless telecommunications facilities and other structures.

(1)

The city, as opposed to the construction of a new tower, shall prefer locating on existing towers or others structures without increasing the height. The applicant shall submit a comprehensive report inventorying existing towers and other suitable structures within four (4) miles of the location of any proposed new tower, unless the applicant can show that some other distance is more reasonable and demonstrate conclusively why an existing tower or other suitable structure cannot be used.

(2)

An applicant intending to locate on an existing tower or other suitable structure shall be required to document the intent of the existing owner to permit its use by the applicant.

(3)

Such shared use shall consist only of the minimum antenna array technologically required to provide service primarily and essentially within the city, to the extent practicable, unless good cause is shown.

(h)

Height of telecommunications tower(s).

(1)

The applicant shall submit documentation justifying the total height of any tower, facility and/or antenna and the basis therefore. Such documentation will be analyzed in the context of the justification of the height needed to provide service primarily and essentially within the city, to the extent practicable, unless good cause is shown.

(2)

No owner constructed after the effective date of this article, including allowing for all attachments, shall exceed that height which shall permit operation without required artificial lighting of any kind in accordance with municipal, city, state, and/or any federal statute, law, local law, city ordinance, code, rule or regulation.

(i)

Visibility of wireless telecommunications facilities.

(1)

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

(2)

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

(3)

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

(j)

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

(1)

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

(2)

Transmitters and telecommunications control points shall be installed such a manner that they are readily accessible only to persons authorized to operate or service them.

(k)

Signage. Wireless telecommunications facilities shall contain a sign no larger than four (4) square feet in order to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities and shall contain the name(s) of the owner(s) and operator(s) of the antenna(s) as well as emergency phone number(s). The sign shall be on the equipment shelter or cabinet of the applicant and be visible from the access point of the site and must identify the equipment owner of the shelter or cabinet. The sign shall not be lighted, unless applicable law, rule or regulation requires lighting. No other signage, including advertising, shall be permitted.

(l)

Lot size and setbacks. All proposed towers and any other proposed wireless telecommunications facility structures shall be set back from abutting parcels, recorded rights-of-way and road and street lines by the greater of the following distances: A distance equal to the height of the proposed tower or wireless telecommunications facility structure plus ten (10) percent of the height of the tower or structure, or the existing setback requirement of the underlying zoning district, whichever is greater. Any accessory structure shall be located so as to comply with the applicable minimum setback requirements for the property on which it is situated.

(m)

Retention of expert assistance and reimbursement by applicant.

(1)

The city may hire any consultant and/or expert necessary to assist the city in reviewing and evaluating the application, including the construction and modification of the site, once permitted, and any requests for recertification.

(2)

An applicant shall deposit with the city funds sufficient to reimburse the city for all reasonable costs of consultant and expert evaluation and consultation to the city in connection with the review of any application including the construction and modification of the site, once permitted. The initial deposit shall be eight thousand five hundred dollars ($8,500.00). The placement of the eight thousand five hundred dollars ($8,500.00) with the city shall precede the pre-application meeting. The city will maintain a separate escrow account for all such funds. The city's consultants/experts shall invoice the city for its services in reviewing the application, including the construction and modification of the site, once permitted. If at any time during the process this escrow account has a balance less than two thousand five hundred dollars ($2,500.00), the applicant shall immediately, upon notification by the city, replenish said escrow account so that it has a balance of at least five thousand dollars ($5,000.00). Such additional escrow funds shall be deposited with the city before any further action or consideration is taken on the application. In the event that the amount held in escrow by the city is more than the amount of the actual invoicing at the conclusion of the project, the remaining balance shall be promptly refunded to the applicant.

(3)

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

(n)

Exceptions from a special use permit for wireless telecommunications facilities.

(1)

No person shall be permitted to site, place, build, construct, modify or prepare any site for the placement or use of, wireless telecommunications facilities as of the effective date of this article without having first obtained a special use permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this section, no special use permit shall be required for those noncommercial exceptions noted in the definition of wireless telecommunications facilities.

(2)

All wireless telecommunications facilities existing on or before the effective date of this article shall be allowed to continue as they presently exist, provided however, that any visible modification of an existing wireless telecommunications facility must comply with this section.

(o)

Public hearing and notification requirements.

(1)

Prior to the approval of any application for a special use permit for wireless telecommunications facilities, a public hearing shall be held by the city, notice of which shall be published in the official newspaper of the city no less than ten (10) calendar days prior to the scheduled date of the public hearing. In order that the city may notify nearby landowners, the application shall contain the names and address of all landowners whose property is located within one thousand five hundred (1,500) feet of any property line of the lot or parcel on which the new wireless telecommunications facilities are proposed to be located.

(2)

There shall be no public hearing required for an application to co-locate on an existing tower or other structure, as long as there is no proposed increase in the height of the tower or structure, including attachments thereto.

(3)

The city shall schedule the public hearing referred to in subsection (a) of this section once it finds the application is complete, the city, at any stage prior to issuing a special use permit, may require such additional information as it deems necessary.

(p)

Action on an application for a special use permit for wireless telecommunications facilities.

(1)

The city will undertake a review of an application pursuant to this article in a timely fashion, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public's interest and need to be involved, and the applicant's desire for a timely resolution.

(2)

The city may refer any application or part thereof to any advisory or other committee for a nonbinding recommendation.

(3)

After the public hearing and after formally considering the application, the city may approve, approve with conditions, or deny a special use permit. Its decision shall be in writing and shall be supported by substantial evidence contained in a written record. The burden of proof for the grant of the permit shall always be upon the applicant.

(4)

If the city approves the special use permit for wireless telecommunications facilities, then the applicant shall be notified of such approval in writing within ten (10) calendar days of the city's action, and the special use permit shall be issued within thirty (30) days after such approval. Except for necessary building permits, and subsequent certificates of compliance, once a special use permit has been granted hereunder, no additional permits or approvals from the city, such as site plan or zoning approvals, shall be required by the city for the wireless telecommunications facilities covered by the special use permit.

(5)

If the city denies the special use permit for wireless telecommunications facilities, then the applicant shall be notified of such denial in writing within ten (10) calendar days of the city's action.

(q)

Recertification of a special use permit for wireless telecommunications facilities.

(1)

Between twelve (12) months and six (6) months prior to the five (5) year anniversary date after the effect date of the special use permit and all subsequent five (5) year anniversaries of the effective date of the original special use permit for wireless telecommunications facilities, the holder of a special use permit for such wireless telecommunications facilities shall submit a signed written request to the city for recertification. In the written request for recertification, the holder of such special use permit shall note the following:

a.

The name of the holder of the special use permit for the wireless telecommunications facilities;

b.

If applicable, the number or title of the special use permit;

c.

The date of the original granting of the special use permit;

d.

Whether the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise visibly modified since the issuance of the special use permit and if so, in what manner;

e.

If the wireless telecommunications facilities have been moved, relocated, rebuilt, or otherwise visibly modified, then whether the city approved such action, and under what terms and conditions, and whether those terms and conditions were complied with;

f.

That the wireless telecommunications facilities are in compliance with the special use permit and compliance with all applicable codes, laws, rules and regulations;

g.

Recertification that the tower and attachments both are designed and constructed and continue to meet all local, city, state and federal structural requirements for loads, including wind and ice loads. Such recertification shall be by a professional engineer licensed in the state, the cost of which shall be borne by the applicant.

(2)

If, after such review, the city determines that the permitted wireless telecommunications facilities are in compliance with the special use permit and all applicable statutes, laws, local laws, ordinances, codes, rules and regulations, then the city shall issue a recertification of the special use permit for the wireless telecommunications facilities, which may include any new provisions or conditions that are mutually agreed upon, or that are required by applicable statutes, laws, ordinances, codes, rules or regulations. If, after such review it is determined that the permitted wireless telecommunications facilities are not in compliance with the special use permit and all applicable statutes, laws, ordinances, codes, rules and regulations, then the city may refuse to issue a recertification special use permit for the wireless telecommunications facilities, and in such event, such wireless telecommunications facilities shall not be used after the date that the applicant receives written notice of the decision by the city until such time as the facility is brought into compliance. Any decision requiring the cessation of use of the facility or imposing a penalty shall be in writing and supported by substantial evidence contained in a written record and shall be promptly provided to the owner of the facility.

(3)

If the applicant has submitted all of the information requested and required by this article, and if the review is not completed, as noted in subsection (b) of this section, prior to the five (5) year anniversary date of the special use permit, or subsequent five (5) year anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six (6) months, in order for the completion of the review.

(4)

If the holder of a special use permit for wireless telecommunications facilities does not submit a request for recertification of such special use permit within the timeframe noted in subsection (a) of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent five (5) year anniversaries, unless the holder of the special use permit adequately demonstrates that extenuating circumstances prevented a timely recertification request. If the city agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.

(r)

Extent and parameters of special use permit for wireless telecommunications facilities. The extent and parameters of a special use permit for wireless telecommunications facilities shall be as follows:

(1)

Such special use permit shall be nonexclusive;

(2)

Such special use permit shall not be assigned, transferred or conveyed without the express prior written notification to the city.

(3)

Such special use permit may, following a hearing upon due prior notice to the applicant, be revoked, canceled, or terminated for a violation of the conditions and provisions of the special use permit, or for a material violation of this article after prior written notice to the holder of the special use permit.

(s)

Application fee.

(1)

At the time that a person submits an application for a special use permit for a new tower, such person shall pay a nonrefundable application fee of five thousand dollars ($5,000.00) to the city. If the application is for a special use permit for co-locating on an existing tower or other suitable structure, where no increase in height of the tower or structure is required, the nonrefundable fee shall be two thousand five hundred dollars ($2,500.00).

(2)

No application fee is required in order to re-certify a special use permit for wireless telecommunications facilities, unless there has been a visible modification of the wireless telecommunications facility since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the fees provided in subsection (a) shall apply.

(t)

Performance security. The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall, at its cost and expense, be jointly required to execute and file with the city a bond, or other form of security acceptable to the city as to type of security and the form and manner of execution, in an amount of at least seventy-five thousand dollars ($75,000.00) for a tower facility and twenty-five thousand dollars ($25,000.00) for a co-location on an existing tower or other structure and with such sureties as are deemed sufficient by the city to assure the faithful performance of the terms and conditions of this article and conditions of any special use permit issued pursuant to this article. The full amount of the bond or security shall remain in full force and effect throughout the term of the special use permit and/or until any necessary site restoration is completed to restore the site to a condition comparable to that, which existed prior to the issuance of the original special use permit.

(u)

Reservation of authority to inspect wireless telecommunications facilities. In order to verify that the holder of a special use permit for wireless telecommunications facilities and any and all lessees, renters, and/or licensees of wireless telecommunications facilities, place and construct such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building, and zoning codes, laws, ordinances and regulations and other applicable requirements, the city may inspect all facets of said permit holder's, renter's, lessee's or licensee's placement, construction, modification and maintenance of such facilities, including, but not limited to, towers, antennas and buildings or other structures constructed or located on the permitted site.

(v)

Liability insurance.

(1)

A holder of a special use permit for wireless telecommunications facilities shall secure and at all times maintain public liability insurance for personal injuries, death and property damage, and umbrella insurance coverage, for the duration of the special use permit in amounts as set forth below.

a.

Commercial general liability covering personal injuries, death and property damage: One million dollars ($1,000,000.00) per occurrence/two million dollars ($2,000,000.00) aggregate;

b.

Automobile coverage: One million dollars ($1,000,000.00) per occurrence/two million ($2,000,000.00) aggregate;

c.

Workers compensation and disability: Statutory amounts.

(2)

The commercial general liability insurance policy shall specifically include the city and its officers, councils, employees, committee members, attorneys, agents and consultants as additional named insureds.

(3)

The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the state and with a Best's rating of at least A.

(4)

The insurance policies shall contain an endorsement obligating the insurance company to furnish the city with at least thirty (30) days prior written notice in advance of the cancellation of the insurance.

(5)

Renewal or replacement policies or certificates shall be delivered to the city at least fifteen (15) days before the expiration of the insurance that such policies are to renew or replace.

(6)

Before construction of a permitted wireless telecommunications facilities is initiated, but in no case later than fifteen (15) days after the grant of the special use permit, the holder of the special use permit shall deliver to the city a copy of each of the policies or certificates representing the insurance in the required amounts.

(w)

Indemnification.

(1)

Any application for wireless telecommunications facilities that is proposed for city property, pursuant to this article, shall contain a provision with respect to indemnification. Such provision shall require the applicant, to the extent permitted by the law, to at all times defend, indemnify, protect, save, hold harmless, and exempt the city, and its officers, councils, employees, committee members, attorneys, agents, and consultants from any and all penalties, damages, costs, or charges arising out of any and all claims, suits, demands, causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might arise out of, or are caused by, the placement, construction, erection, modification, location, products performance, use, operation, maintenance, repair, installation, replacement, removal, or restoration of said facility, excepting, however, any portion of such claims, suits, demands, causes of action or award of damages as may be attributable to the negligent or intentional acts or omissions of the city, or its servants or agents. With respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees, and expert witness fees are included in those costs that are recoverable by the city.

(2)

Notwithstanding the requirements noted in subsection (w)(1) of this section, an indemnification provision will not be required in those instances where the city itself applies for and secures a special use permit for wireless telecommunications facilities.

(x)

Fines.

(1)

In the event of a violation of this article or any special use permit issued pursuant to this article, the city may impose and collect, and the holder of the special use permit for wireless telecommunications facilities shall pay to the city, fines or penalties as set forth below.

(2)

The holder of a special use permits failure to comply with provisions of this article shall constitute a violation of this article and shall subject the applicant to the code enforcement provisions and procedures as provided in chapter 1, section 1-11 of the City of DeFuniak Springs Code of Ordinances and F.S. § 166.0415. In addition, violation of this article may be punishable as provided in F.S. § 162.22 as it may be amended.

(3)

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

(y)

Default and/or revocation. If wireless telecommunications facilities are repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this article or of the special use permit, then the city shall notify the holder of the special use permit in writing of such violation. Such notice shall specify the nature of the violation or noncompliance and shall be in accordance with the procedure outlined in F.S. Ch. 162.06.

(z)

Removal of wireless telecommunications facilities.

(1)

Under the following circumstances, the city may determine that the health, safety, and welfare interests of the city warrant and require the removal of wireless telecommunications facilities.

a.

Wireless telecommunications facilities with a permit have been abandoned (i.e. not used as wireless telecommunications facilities) for a period exceeding ninety (90) consecutive days or a total of one hundred eighty (180) days in any three hundred sixty five (365) day period, except for periods caused by force majeure or acts of God, in which case, repair or removal shall commence within ninety (90) days;

b.

Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard;

c.

Wireless telecommunications facilities have been located, constructed, or modified without first obtaining, or in a manner not authorized by, the required special use permit, or any other necessary authorization.

(2)

If the city makes such a determination as noted in subsection (1) of this section, then the city shall notify the holder of the special use permit for the wireless telecommunications facilities within forty-eight (48) hours that said wireless telecommunications facilities are to be removed, the city may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.

(3)

The holder of the special use permit, or its successors or assigns, shall dismantle and remove such wireless telecommunications facilities, and all associated structures and facilities, from the site and restore the site to as close to its original condition as is possible, such restoration being limited only by physical or commercial impracticability, within ninety (90) days of receipt of written notice from the city. However, if the owner of the property upon which the wireless telecommunications facilities are located wishes to retain any access roadway to the wireless telecommunications facilities, the owner may do so with the approval of the city.

(4)

If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications facilities within ninety (90) days after the permit holder has received notice, then the city may order officials or representatives of the city to remove the wireless telecommunications facilities at the sole expense of the owner or special use permit holder.

(5)

If, the city removes, or causes to be removed, wireless telecommunications facilities, and the owner of the wireless telecommunications facilities does not claim and remove it from the site to a lawful location within ten (10) days, then the city may take steps to declare the wireless telecommunications facilities abandoned, and sell them and their components.

(6)

Notwithstanding anything in this section to the contrary, the city may approve a temporary use permit/agreement for the wireless telecommunications facilities, for no more ninety (90) days, during which time a suitable plan for removal, conversion, or relocation of the affected wireless telecommunications facilities shall be developed by the holder of the special use permit, subject to the approval of the city, and an agreement to such plan shall be executed by the holder of the special use permit and the city. If such a plan is not developed, approved and executed within the ninety (90) day time period, then the city may take possession of and dispose of the affected wireless telecommunications facilities in the manner provided in this section.

(aa)

Relief. Any applicant desiring relief, waiver or exemption from any aspect or requirement of this article may request such at the pre-application meeting, provided that the relief or exemption is contained in the original application for either a special use permit, or in the case of an existing or previously granted special use permit a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete. However, the burden of proving the need for the requested relief, waiver or exemption is solely on the applicant to prove. The applicant shall bear all costs of the city in considering the request and the relief, waiver or exemption. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted the relief, waiver or exemption will have no significant effect on the health, safety and welfare of the city, its residents and other service providers.

(bb)

Periodic regulatory review by the city.

(1)

The city may at any time conduct a review and examination of this entire article.

(2)

If after such a periodic review and examination of this article, the city determines that one (1) or more provisions of this article should be amended, repealed, revised, clarified, or deleted, then the city may take whatever measures are necessary in accordance with applicable law in order to accomplish the same. It is noted that where warranted, and in the best interests of the city, the city may repeal this entire article at any time.

(3)

Notwithstanding the provisions of subsections (1) and (2) of this section, the city may at any time and in any manner (to the extent permitted by federal, state, or local law), amend, add, repeal, and/or delete one (1) or more provisions of this article.

(cc)

Adherence to state and/or federal rules and regulations.

(1)

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

(2)

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

(dd)

Conflict with other laws. Where this article differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by the city, state or federal government, this article shall apply.

(Ord. No. 881, § 18.62, 6-26-2017)