Gresham Village City Zoning Code
§ 325-17
Wireless telecommunications facilities in the right-of-way.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
A.
Definitions.
(1)
For the purposes of this section, the terms below shall have the following meanings:
ADMINISTRATOR
The Operations Manager or his or her designee.
APPLICANT
A person filing an application for placement or modification of a wireless telecommunications facility in the right-of-way.
APPLICATION
A formal request, including all required and requested documentation and information, submitted by an Applicant to the Village of Gresham for a wireless permit.
BASE STATION
Means the same as in 47 CFR § 1.6100(b)(1), which defines the term to mean a structure or wireless telecommunications equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. This definition does not include towers.
ELIGIBLE FACILITIES REQUEST
Means the same as in 47 CFR § 1.6100(b)(3), which defines the term to mean any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving:
(a)
Co-location of new transmission equipment;
(b)
Removal of transmission equipment; or
(c)
Replacement of transmission equipment.
FCC
The Federal Communications Commission.
RIGHT-OF-WAY
The surface of, and the space above and below the entire width of an improved or unimproved public roadway, highway, street, bicycle lane, landscape terrace, shoulder, side slope, and public sidewalk over which the Village of Gresham exercises any rights of management and control or in which the Village of Gresham has an interest.
SMALL WIRELESS FACILITY
Consistent with 47 CFR § 1.6002(1), means a facility that meets each of the following conditions:
(a)
The structure on which antenna facilities are mounted:
[1]
Is 50 feet or less in height; or
[2]
Is no more than 10% taller than other adjacent structures; or
[3]
Is not extended to a height of more than 50 feet or by more than 10% above its preexisting height, whichever is greater, as a result of the co-location of new antenna facilities;
(b)
Each antenna (excluding associated antenna equipment) is no more than three cubic feet in volume;
(c)
All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure, is cumulatively no more than 28 cubic feet in volume;
(d)
The facility does not require antenna structure registration;
(e)
The facility is not located on tribal lands; and
(f)
The facility does not result in human exposure to radio frequency radiation in excess of the applicable safety standards specified by federal law.
SUPPORT STRUCTURE
Any structure capable of supporting wireless telecommunications equipment.
TOWER
Means the same as in 47 CFR § 1.6100(b)(9), which defines the term as any structure built for the sole or primary purpose of supporting any Federal Communication Commission (FCC) licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services, including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services, such as microwave backhaul, and the associated site. This definition does not include utility poles.
UNDERGROUND AREAS
Those areas where there are no electrical facilities or facilities of the incumbent local exchange carrier in the right-of-way; or where the wires associated with the same are or are required to be located underground; or where the same are scheduled to be converted from overhead to underground. Electrical facilities are distribution facilities owned by an electric utility and do not include transmission facilities used or intended to be used to transmit electricity at nominal voltages more than 35,000 volts.
UTILITY POLE
A structure in the right-of-way designed to support electric, telephone, and similar utility distribution lines and associated equipment. A tower is not a utility pole.
WIRELESS INFRASTRUCTURE PROVIDER
A person that owns, controls, operates, or manages a wireless telecommunications facility or portion thereof within the right-of-way.
WIRELESS PERMIT or PERMIT
A permit issued pursuant to this chapter and authorizing the placement or modification of a wireless telecommunications facility of a design specified in the permit at a particular location within the right-of-way, and the modification of any existing support structure to which the wireless telecommunications facility is proposed to be attached.
WIRELESS REGULATIONS
Those regulations adopted pursuant to Subsection E(2)(a) to implement the provisions of this section.
WIRELESS SERVICE PROVIDER
An entity that provides wireless services to end users.
WIRELESS TELECOMMUNICATIONS EQUIPMENT
Equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network.
WIRELESS TELECOMMUNICATIONS FACILITY or FACILITY
A facility at a fixed location in the right-of-way consisting of a base station, antennas and other accessory equipment, and a tower and underground wiring, if any, associated with the base station.
(2)
Definitions in this section may contain quotations or citations to 47 CFR §§ 1.6100 and 1.6002. In the event that any referenced section is amended, creating a conflict between the definition as set forth in this section and the amended language of the referenced section, the definition in the referenced section, as amended, shall control.
B.
Purpose. In the exercise of its police powers, the Village of Gresham has priority over all other uses of the right-of-way. The purpose of this section is to provide the Village of Gresham with a process for managing, and uniform standards for acting upon, requests for the placement of wireless telecommunications facilities within the right-of-way consistent with the Village's obligation to promote the public health, safety, and welfare; to manage the right-of-way; and to ensure that the public's use is not obstructed or incommoded by the use of the right-of-way for the placement of wireless telecommunications facilities. The Village recognizes the importance of wireless telecommunications facilities to provide high-quality communications and internet access services to residents and businesses within the Village of Gresham. The Village also recognizes its obligation to comply with applicable federal and state laws regarding the placement of wireless telecommunications facilities in the right-of-way, including, without limitation, the Telecommunications Act of 1996 (47 U.S.C. § 151 et seq.), Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012,[1] Wis. Stat. § 182.017, and Wis. Stat. § 196.58, and this chapter shall be interpreted consistent with those provisions.
[1]
Editor's Note: See 47 U.S.C. § 1455(a).
C.
Scope.
(1)
Applicability. Unless exempted by Subsection C(2), below, every person who wishes to place a wireless telecommunications facility in the right-of-way or modify an existing wireless telecommunications facility in the right-of-way must obtain a wireless permit under this section.
(2)
Exempt facilities. The provisions of this section (other than Subsections J through M) shall not be applied to applications for the following:
(a)
Installation of a small wireless facility on the strand between two utility poles, provided that the cumulative volume of all wireless facilities on the strand shall not exceed one cubic foot, and provided further that the installation does not require replacement of the strand, or excavation, modification, or replacement of either of the utility poles.
(b)
Installation of a mobile cell facility (commonly referred to as "cell on wheels" or "cell on truck") for a temporary period in connection with an emergency or event, but no longer than required for the emergency or event, provided that installation does not involve excavation, movement, or removal of existing facilities.
(c)
Placement or modification of a wireless telecommunications facility on structures owned by or under the control of the Village of Gresham. See Subsection M of this section.
(d)
Placement or modification of a wireless telecommunications facility by Village of Gresham staff or any person performing work under contract with the Village of Gresham.
(e)
Modification of an existing wireless telecommunications facility that makes no material change to the footprint of a facility or to the surface or subsurface of a public street if the activity does not disrupt or impede traffic in the traveled portion of a street, and if the work does not change the visual or audible characteristics of the wireless telecommunications facility.
D.
Nondiscrimination. In establishing the rights, obligations, and conditions set forth in this section, it is the intent of the Village of Gresham to treat each applicant and right-of-way user in a competitively neutral and nondiscriminatory manner, to the extent required by law, while taking into account the unique technologies, situation, and legal status of each applicant or request for use of the right-of-way.
E.
Administration.
(1)
Administrator. The Operations Manager is responsible for administering this section.
(2)
Powers. As part of the administration of this section, the Administrator may:
(a)
Adopt wireless regulations governing the placement and modification of wireless telecommunications facilities in addition to but consistent with the requirements of this section, including regulations governing co-location, the resolution of conflicting applications for placement of wireless telecommunications facilities, and aesthetic standards.
(b)
Interpret the provisions of this section and the wireless regulations.
(c)
Develop forms and procedures for submission of applications for wireless permits consistent with this section.
(d)
Collect any fee required by this section.
(e)
Require, as a condition of completeness of any application, notice to members of the public that may be affected by the placement or modification of the wireless telecommunications facility that is the subject of the wireless permit application.
(f)
Establish deadlines for submission of information related to an application, and extend or shorten deadlines where appropriate and consistent with federal laws and regulations.
(g)
Issue notices of incompleteness or requests for information in connection with any wireless permit application.
(h)
Select and retain an independent consultant or attorney with expertise in telecommunications to review any issue that involves specialized or expert knowledge in connection with any permit application.
(i)
Coordinate and consult with other Village staff, committees, and governing bodies to ensure timely action on all other required permits under Subsection F(2)(h) of this section.
(j)
Subject to appeal, as provided in Subsection H(4) of this section, determine whether to grant, grant subject to conditions, or deny an application.
(k)
Take such other steps as may be required to timely act upon wireless permit applications, including issuing written decisions and entering into agreements to mutually extend the time for action on an application.
F.
Application.
(1)
Format. Unless the wireless regulations provide otherwise, the applicant must submit both a paper copy and an electronic copy (in a searchable format) of any application, as well as any amendments or supplements to the application or responses to requests for information regarding an application, to the Administrator. An application is not complete until both the paper and electronic copies are received by the Administrator.
(2)
Content. In order to be considered complete, an application must contain:
(a)
All information required pursuant to the wireless regulations.
(b)
A completed application cover sheet signed by an authorized representative of the applicant, listing all standard permit conditions.
(c)
The name of the applicant (including any corporate or trade name), and the name, address, email address, and telephone number of a local representative. If the applicant is a wireless infrastructure provider, the name and contact information for the wireless service provider(s) that will be using the wireless telecommunications facility must also be provided.
(d)
A statement of which shot clock or shot clocks apply to the application and the reasons the chosen shot clocks apply.
(e)
A separate and complete description of each proposed wireless telecommunications facility and the work that will be required to install or modify it, including but not limited to detail regarding proposed excavations, if any; detailed site plans showing the location of the facility and technical specifications for each element of the facility, clearly describing the site and all structures and facilities at the site before and after installation or modification and identifying the owners of such preexisting structures and facilities; and describing the distance to the nearest residential dwelling unit. Before and after 360° photo simulations must be provided for each facility.
(f)
Proof that the applicant has mailed to the owners of all property within 300 feet of the proposed wireless telecommunications facility a notice that the applicant is submitting an application to the Village of Gresham for placement or modification of a wireless telecommunications facility in the right-of-way, which notice must include.
[1]
The proposed location of the facility;
[2]
A description and scale image of the proposed facility; and
[3]
An email address and phone number for a representative of the applicant who will be available to answer questions from members of the public about the proposed project.
(g)
A copy of the FCC license for the facility or a sworn written statement from the applicant attesting that the facility will comply with current FCC regulations.
(h)
To the extent that filing of the wireless permit application establishes a deadline for action on any other permit that may be required in connection with the wireless telecommunications facility, the application must include complete copies of applications for every required permit (including, without limitation, electrical permits, building permits, traffic control permits, and excavation permits), with all engineering completed and with all fees associated with each permit.
(i)
A certification by a registered and qualified engineer that the installation can be supported by and does not exceed the tolerances of the structure on which it will be mounted and that all elements of the wireless telecommunications facility comply with applicable safety standards.
(j)
Payment of all required fees.
(k)
If an applicant contends that denial of the application would prohibit or effectively prohibit the provision of service in violation of federal law, or otherwise violate applicable law, the application must provide all evidence on which the applicant relies in support of that claim. Applicants are not permitted to supplement this evidence if doing so would prevent the Village from complying with any deadline for action on an application.
(l)
If the application is an eligible facilities request, the application must contain information sufficient to show that the application qualifies as an eligible facilities request under 47 CFR § 1.6100(b)(3), including evidence that the application relates to an existing tower or base station that has been approved by the Village. Before and after 360° photo simulations must be provided with detailed specifications demonstrating that the modification does not substantially change the physical dimensions of the existing approved tower or base station.
(3)
Waivers. Requests for waivers from any requirement of this Subsection F shall be made, in writing, to the Administrator. The Administrator may grant a request for waiver if it is demonstrated that, notwithstanding the issuance of the waiver, the Village will be provided with all information necessary to understand the nature of the construction or other activity to be conducted pursuant to the wireless permit sought.
(4)
Fees. Applicant must provide an application fee and shall be required to pay all costs reasonably incurred in reviewing the application, including costs incurred in retaining outside consultants. Fees shall be reviewed periodically and raised or lowered based on the costs the Village expects to incur, with a review commencing by the first anniversary of the effective date of this section. The Village Clerk will maintain the Village Fee Schedule.
(5)
Public records. Applications are public records that may be made publicly available pursuant to state and federal public records law. Notwithstanding the foregoing, the applicant may designate portions of the application materials that it reasonably believes contain proprietary or confidential information by clearly marking each portion of such materials accordingly, and the Village shall endeavor to treat the information as proprietary and confidential, subject to applicable state and federal public records law and the Administrator's determination that the applicant's request for confidential or proprietary treatment of the application materials is reasonable. The Village shall not be required to incur any costs to protect the application from disclosure.
G.
General standards.
(1)
Generally. Wireless telecommunications facilities shall meet the minimum requirements set forth in this section and the wireless regulations, in addition to the requirements of any other applicable law or regulation.
(2)
Regulations. The wireless regulations and decisions on wireless permits shall, at a minimum, ensure that the requirements of this chapter are satisfied, unless it is determined that the applicant has established that denial of an application would, within the meaning of federal law, prohibit or effectively prohibit the provision of a telecommunications or personal wireless services, or otherwise violate applicable laws or regulations. If that determination is made, the requirements of this chapter and the wireless regulations may be waived, but only to the extent required to avoid the prohibition.
(3)
Standards.
(a)
Wireless telecommunications facilities shall be installed and modified in a manner that:
[1]
Minimizes risks to public safety;
[2]
Ensures that placement of facilities on existing structures is within the tolerance of those structures;
[3]
Avoids placement of aboveground facilities in underground areas, installation of new support structures or equipment cabinets in the public right-of-way, or placement in residential areas when commercial areas are reasonably available;
[4]
Maintains the integrity and character of the neighborhoods and corridors in which the facilities are located;
[5]
Ensures that installations are subject to periodic review to minimize the intrusion on the right-of-way;
[6]
Ensures that the Village of Gresham bears no risk or liability as a result of the installations; and
[7]
Ensures that applicant's use does not inconvenience the public, interfere with the primary uses of the right-of-way, or hinder the ability of the Village of Gresham or other government entities to improve, modify, relocate, abandon, or vacate the right-of-way or any portion thereof, or to cause the improvement, modification, relocation, vacation, or abandonment of facilities in the right-of-way.
(b)
No wireless permit shall be issued unless i) the wireless service provider applicant has immediate plans to use the proposed facility or ii) the wireless infrastructure applicant has a contract with a wireless service provider that has immediate plans to use the proposed facility.
(c)
In no event may ground-mounted equipment interfere with pedestrian or vehicular traffic and at all times must comply with the requirements of the Americans with Disabilities Act of 1990.[2]
[2]
Editor's Note: See 42 U.S.C. § 12101 et seq.
(4)
Standard permit conditions. All wireless permits under this section are issued subject to the following minimum conditions:
(a)
Compliance. The permit holder shall at all times maintain compliance with all applicable federal, state, and local laws, regulations, and other rules.
(b)
Term. A wireless permit issued pursuant to an eligible facilities request shall expire at the same time the permit for the underlying existing wireless telecommunications facility expires. All other wireless permits shall be valid for a period of five years from the date of issuance, unless revoked pursuant to Subsection I(2) of this section.
(c)
Contact Information. The permit holder shall at all times maintain with the Village accurate contact information for the permit holder and all wireless service providers making use of the facility, which shall include a phone number, mailing address, and email address for at least one natural person.
(d)
Emergencies. The Village shall have the right to support, repair, disable, or remove any elements of the facilities in emergencies or when the facility threatens imminent harm to persons or property.
(e)
Indemnities. The permit holder, by accepting a permit under this chapter, agrees to indemnify, defend, and hold harmless the Village, its elected and appointed officials, officers, employees, agents, representatives, and volunteers (collectively, the "indemnified parties") from and against any and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, interest, attorneys' fees, costs, and expenses of whatsoever kind or nature in any manner caused in whole or in part, or claimed to be caused in whole or in part, by reason of any act, omission, fault, or negligence, whether active or passive, of the permit holder or anyone acting under its direction or control or on its behalf, even if liability is also sought to be imposed on one or more of the indemnified parties. The obligation to indemnify, defend, and hold harmless the indemnified parties shall be applicable even if the liability results from an act or failure to act on the part of one or more of the indemnified parties. However, the obligation does not apply if the liability results from the willful misconduct of an indemnified party.
(f)
Adverse impacts on adjacent properties. The permit holder shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification, or removal of the facility.
(g)
General maintenance. The wireless communications facility and any associated structures shall be maintained in a neat and clean manner and in accordance with all approved plans and conditions of approval.
(h)
Graffiti removal. All graffiti on facilities shall be removed at the sole expense of the permit holder within 48 hours after notification from the Village.
(i)
Relocation. At the request of the Village pursuant to Subsection J of this section, the permit holder shall promptly and at its own expense permanently remove and relocate any wireless telecommunications facility in the right-of-way.
(j)
Abandonment. The permit holder shall promptly notify the Village whenever a facility has not been in use for a continuous period of 60 days or longer and must comply with Subsection K of this section.
(k)
Restoration. A permit holder who removes or relocates a facility from the right-of-way must restore the right-of-way in accordance with Subsection L of this chapter.
(l)
Record retention. The permit holder shall retain full and complete copies of all permits and other regulatory approvals issued in connection with the facility, which includes without limitation all conditions of approval, approved plans, resolutions, and other documentation associated with the permit or regulatory approval. In the event the Village cannot locate any such full and complete permits or other regulatory approvals in its official records, and the permit holder fails to retain full and complete records in the permit holder's files, any ambiguities or uncertainties that would be resolved through an examination of the missing documents will be conclusively resolved against the permit holder.
(m)
Radio frequency emissions. Every wireless facility shall at all times comply with applicable FCC regulations governing radio frequency emissions, and failure to comply with such regulations shall be treated as a material violation of the terms of the permit.
(n)
Certificate of insurance. A certificate of insurance sufficient to demonstrate to the satisfaction of the Administrator that the applicant has the capability to cover any liability that might arise out of the presence of the facility in the right-of-way.
H.
Application processing and appeal.
(1)
Rejection for incompleteness. Notices of incompleteness shall be provided in conformity with state, local, and federal law, including 47 CFR § 1.6003(d), as amended.
(2)
Processing timeline. Wireless permit applications (including applications for other permits under Subsection F(2)(h) necessary to place or modify the facility) and appeals will be processed in conformity with the shot clocks set forth in state, local, and federal law, as amended.
(3)
Written decision. In the event that an application is denied [or approved with conditions beyond the standard permit conditions set forth in Subsection G(4)], the Administrator shall issue a written decision with the reasons therefor, supported by substantial evidence contained in a written record.
(4)
Appeal to Village Board. Any person adversely affected by the decision of the Administrator may appeal that decision to the Village Board which may decide the issues de novo, and its written decision will be the final decision of the City. An appeal by a wireless infrastructure provider must be taken jointly with the wireless service provider that intends to use the wireless telecommunications facility.
(5)
Deadline to appeal.
(a)
Appeals that involve eligible facilities requests must be filed within three business days of the written decision of the Administrator.
(b)
All other appeals not governed by Subsection H(5)(a), above, must be filed within 10 business days of the written decision of the Administrator, unless the Administrator extends the time therefor. An extension may not be granted where extension would result in approval of the application by operation of law.
(6)
Decision deadline. All appeals shall be conducted so that a timely written decision may be issued in accordance with the applicable shot clock.
I.
Expiration and revocation.
(1)
Expiration. A wireless permit issued pursuant to an eligible facilities request shall expire at the same time the permit for the underlying existing wireless telecommunications facility expires. All other wireless permits shall be valid for a period of five years from the date of issuance. Upon expiration of the wireless permit, the permit holder must either:
(a)
Remove the wireless telecommunications facility; or
(b)
Submit an application to renew the permit at least 90 days prior to its expiration. The facility must remain in place until the renewal application is acted on by the Village and any appeals from the Village's decision are exhausted.
(2)
Revocation for breach. A wireless permit may be revoked for failure to comply with the conditions of the permit or applicable federal, state, or local laws, rules, or regulations. Upon revocation, the wireless telecommunications facility must be removed within 30 days of receipt of written notice from the Village. All costs incurred by the Village in connection with the revocation, removal, and right-of-way restoration shall be paid by the permit holder.
(3)
Failure to obtain permit. Unless exempted from permitting by Subsection C(2) of this section, a wireless telecommunications facility installed without a wireless permit must be removed within 30 days of receipt of written notice from the Village. All costs incurred by the Village in connection with the notice, removal, and right-of-way restoration shall be paid by entities who own or control any part of the wireless telecommunications facility.
J.
Relocation. Except as otherwise prohibited by state or federal law, a permit holder must promptly and at its own expense, with due regard for seasonal working conditions, permanently remove and relocate any of its wireless telecommunications facilities in the right-of-way whenever the Village requests such removal and relocation. The Village may make such a request to prevent the facility from interfering with a present or future Village use of the right-of-way; a public improvement undertaken by the Village; an economic development project in which the Village has an interest or investment; when the public health, safety, or welfare require it; or when necessary to prevent interference with the safety and convenience of ordinary travel over the right-of-way. Notwithstanding the foregoing, a permit holder shall not be required to remove or relocate its facilities from any right-of-way that has been vacated in favor of a nongovernmental entity, unless and until that entity pays the reasonable costs of removal or relocation to the permit holder.
K.
Abandonment.
(1)
Cessation of use. In the event that a permitted facility within the right-of-way is not in use for a continuous period of 60 days or longer, the permit holder must promptly notify the Village and do one of the following:
(a)
Provide information satisfactory to the Administrator that the permit holder's obligations for its facilities under this section have been lawfully assumed by another permit holder.
(b)
Submit to the Administrator a proposal and instruments for dedication of the facilities to the Village. If a permit holder proceeds under this Subsection K(1)(b), the Village may, at its option:
[1]
Accept the dedication for all or a portion of the facilities;
[2]
Require the permit holder, at its own expense, to remove the facilities and perform the required restoration under Subsection L; or
[3]
Require the permit holder to post a bond or provide payment sufficient to reimburse the Village for reasonably anticipated costs to be incurred in removing the facilities and undertaking restoration under Subsection L.
(c)
Remove its facilities from the right-of-way within one year and perform the required restoration under Subsection L, unless the Administrator waives this requirement or provides a later deadline.
(2)
Abandoned facilities. Facilities of a permit holder who fails to comply with Subsection K(1) and which, for one year, remain unused shall be deemed to be abandoned. Abandoned facilities are deemed to be a nuisance. In addition to any remedies or rights it has at law or in equity, the Village may, at its option:
(a)
Abate the nuisance and recover the cost from the permit holder or the permit holder's successor in interest;
(b)
Take possession of the facilities; and/or
(c)
Require removal of the facilities by the permit holder or the permit holder's successor in interest.
L.
Restoration. In the event that a permit holder removes or is required to remove a wireless telecommunications facility from the right-of-way under this section (or relocate it pursuant to Subsection J), the permit holder must restore the right-of-way to its prior condition in accordance with Village specifications. However, a support structure owned by another entity authorized to maintain that support structure in the right-of-way need not be removed, but must instead be restored to its prior condition. If the permit holder fails to make the restorations required by this Subsection L, the Village, at its option, may do such work. In that event, the permit holder shall pay to the Village, within 30 days of billing therefor, the cost of restoring the right-of-way.
M.
Placement on Village-owned or -controlled structures. The Village may negotiate agreements for placement of wireless telecommunications facilities on Village-owned or -controlled structures in the right-of-way. The agreement shall specify the compensation to the Village for use of the structures. The person or entity seeking the agreement shall reimburse the Village for all costs the Village incurs in connection with its review of and action upon the request for an agreement.