The purpose of this Article is to regulate the placement, construction, and modification of small cell facilities to protect the health, safety, and welfare of the public and to provide for managed development, installation, maintenance, modification, and removal of small cell facilities that is consistent with the City's mountain town character, while at the same time not unreasonably interfering with or materially inhibiting the development of a competitive wireless communications marketplace in the City.

(Ord. No. 2023-05, § 5, 5-2-2023)

No person shall construct a small cell facility in the City except in compliance with the provisions of this Article. Wireless communications providers shall request permission to locate small cell facilities or modify existing small cell facilities pursuant to the requirements of this Article. The siting, mounting, placement, construction, and operation of small cell facilities is a permitted use by right in any zone, provided that the conditions of this Article are satisfied.

(Ord. No. 2023-05, § 5, 5-2-2023)

(a)

Small Cell Facilities—Generally. No new small cell facility shall be constructed except after a written request from an applicant, reviewed and approved by the City in accordance with the procedures set forth in this subsection (a), unless eligible for review as an eligible facilities request as set forth in subsection (b).

(1)

Within ten (10) business days of receipt of an application for a new small cell facility, the Administrator shall provide written comments to the applicant determining completeness of the application and setting forth any modifications required to complete the application to bring the proposal into full compliance with the requirements of this Article.

a.

To toll the timeframe for incompleteness, the City must provide written notice to the applicant within ten (10) business days of receipt of the application, specifically delineating all missing documents or information required in the application.

b.

The timeframe for review resets to zero (0) when the applicant makes a supplemental written submission in response to the City's notice of incompleteness.

c.

Following a supplemental submission, the City will notify the applicant within ten (10) business days whether the supplemental submission provided the information identified in the original notice delineating missing information. If the application remains incomplete, the timeframe is tolled pursuant to the procedures identified in the foregoing paragraphs. In the case of a second or subsequent notice of incompleteness, the City may not specify missing information or documents that were not delineated in the original notice of incompleteness.

(2)

Subject to tolling, the City shall approve or deny an application for a new small cell facility within ninety (90) calendar days of the date on which the City receives such an application.

(b)

Small Cell Facilities—Eligible Facilities Requests. No collocation of a small cell facility nor modification to any existing small cell facility shall occur except after a written request from an applicant, reviewed and approved by the City in accordance with the procedures for eligible facilities requests set forth in this subsection (b).

(1)

Upon receipt of an application for an eligible facilities request, the City shall review such application to determine whether the application so qualifies. An application for an eligible facilities request does not qualify as such if the modification would result in a substantial change to an eligible support structure or would violate a generally applicable building, structural, electrical, or safety code or other law codifying objective standards reasonably related to public health and safety.

(2)

Subject to tolling, the City shall approve an eligible facilities request within sixty (60) calendar days of the date on which the City receives such an application, unless it determines that the request is not properly classified as an eligible facilities request. The sixty-calendar-day review period begins to run when the application is filed with the City, and may be tolled by mutual agreement of the City and the applicant or where the City determines that the application is incomplete, as follows:

a.

To toll the timeframe for incompleteness, the City must provide written notice to the applicant within thirty (30) calendar days of receipt of the application, specifically delineating ah missing documents or information required in the application;

b.

Upon notice of incompleteness to the applicant, the timeframe for review pauses. The timeframe for review begins running again, but does not reset to zero (0), when the applicant makes a supplemental written submission in response to the City's notice of incompleteness; and

c.

Following a supplemental submission, the City will notify the applicant within ten (10) calendar days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The timeframe is tolled in the case of second or subsequent notices pursuant to the procedures identified in the foregoing paragraphs. In the case of a second or subsequent notice of incompleteness, the City may not specify missing documents or information that were not delineated in the original notice of incompleteness.

(3)

In the event the City fails to act on an Eligible Facilities Request within the timeframe for review (accounting for any tolling), the request shall be deemed granted. The deemed grant of approval becomes effective when the applicant notifies the City in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.

(c)

The Administrator shall be the final approval authority for all small cell facilities and eligible facilities requests and, upon approval, shall issue a permit to the applicant to deploy or modify a small cell facility.

(d)

Where an applicant seeks approval for more than one (1) small cell facility, the City shall allow the applicant, at the applicant's discretion, to file a consolidated application for small cell facilities and receive a single approval for multiple small cell facilities in a consolidated application. For a consolidated application, each small cell facility within the consolidated application remains subject to review for compliance with the requirements of this Article. The denial of any individual small cell facility is not a basis to deny the consolidated application as a whole or any other small cell facility incorporated within the consolidated application.

(e)

The Administrator may apply reasonable conditions to the approval of a small cell facility application or an eligible facilities request to ensure conformance with applicable design criteria or to advance a legitimate City interest related to health, safety, or welfare, except where the City's authority is limited with respect to eligible facilities requests.

(f)

The approval under this Article for any small cell facility expires if the small cell facility is not established within one (1) year of the approval or if it is abandoned or unused for a period of six (6) months.

(Ord. No. 2023-05, § 5, 5-2-2023)

(a)

An application for a small cell facility or an eligible facilities request shall include the following information and materials:

(1)

The applicant's name, address, and telephone number and the name, address, and telephone number of any representative authorized to act on behalf of the applicant.

(2)

A description of the property on which the small cell facility is proposed for development, including a visual plan illustrating the proposed location of the small cell facility.

(3)

A disclosure of the ownership of the property on which the small cell facility is proposed for development, and a demonstration of the applicant's right to install a small cell facility on such property.

(4)

An eight and one-half (8½) inches by eleven (11) inches vicinity map locating the subject property within the City.

(5)

A written description of the proposal and a written explanation of how the proposed small cell facility complies with the requirements for small cell facilities or, if applicable, eligible facilities requests.

(6)

A signed statement from a qualified radio frequency engineer, certifying that a technical evaluation of proposed small cell facility indicates no potential interference problems and that the site will comply with all applicable regulations for radio frequency emissions promulgated by the FCC.

(7)

A signed statement from the applicant certifying the accuracy of the information contained in the application.

(b)

An applicant for a small cell facility or eligible facilities request shall pay the required fees as set forth in the City's fee schedule. An application submitted without the required fees shall be deemed incomplete.

(c)

All applications are public records and the information contained therein is subject to disclosure, except such information that is protected from public disclosure by applicable law.

(Ord. No. 2023-05, § 5, 5-2-2023)

Small cell facilities shall conform to the following design standards:

(1)

Trees. Existing trees shall be preserved to the maximum extent possible.

(2)

Height Limitation. The maximum height of any small cell facility shall either not exceed the maximum structure height established for the zoning district in which the facility is to be located or not extend beyond five (5) feet taller than any other utility poles or traffic signals within five hundred (500) feet of the proposed small cell facility located within the same zone district.

(3)

Camouflage/Concealment Required. Small cell facilities shall, to the maximum extent possible, use concealment design techniques, such as incorporating the facility into the built environment, using a pole painted a color consistent with other utility poles in the vicinity (with all antennas and related equipment located within the pole structure), or replacing existing permitted facilities with small cell facilities located within the replaced poles, so that the presence of the small cell facility is not apparent. Where concealment design techniques are not possible, small cell facilities shall utilize camouflage design techniques. Camouflage design techniques include, but are not limited to, using materials, colors, textures, screening, undergrounding, landscaping, or other design options that will blend the site to the surrounding natural setting and built environment.

(4)

Non-reflective Materials. The visible exterior surfaces of small cell facilities, such as poles, antennas, vaults, and equipment enclosure structures shall be constructed out of or finished with non-reflective materials and shall be painted to match as closely as possible the color and texture of the vertical infrastructure on which it is mounted.

(5)

Equipment Vaults Below Grade. Except for equipment that is expressly permitted above grade for a small cell facility, equipment vaults and other transmission equipment shall be placed below grade when located within the right-of-way. Such equipment may be placed above grade outside of the right-of-way, provided concealment/camouflage design techniques are utilized.

(6)

Multiple Users. To the extent practicable, all small cell facilities shall be designed and constructed to permit such facilities to accommodate at least two (2) wireless service providers on the same facility.

(7)

Separation. All stand-alone small cell facilities located within the right-of-way shall be separated from other stand-alone small cell facilities by a distance of at least six hundred (600) feet. In determining compliance with this separation requirement, the Administrator may consider approved and pending applications for other small cell facilities.

(8)

Residential Property. When located adjacent to a residential property, a small cell facility must be placed in front of the common side yard property line between adjoining residential properties. In the case of a corner lot, a small cell facility must be placed in front of the common side yard property line adjoining residential properties or on the corner formed by two (2) intersecting streets.

(9)

Historic Preservation. Any small cell facility that is proposed for construction in a historic district shall be required to receive a certificate of approval pursuant to Chapter 16, Article XII, unless exempt pursuant to Section 16-12-100.

(10)

Any other administratively approved small cell facility design standards adopted by the Administrator.

(Ord. No. 2023-05, § 5, 5-2-2023)

(a)

Federal Requirements. All small cell facilities shall meet the current standards and regulations of the Federal Aviation Administration, the Federal Communications Commission, and any other agency of the federal government with the authority to regulate small cell facilities. If such standards and regulations are changed, then the owners of the small cell facility shall bring such facility into compliance with such revised standards and regulations within the time period mandated by the controlling federal agency. Failure to meet such revised standards and regulations shall constitute grounds for the removal of the small cell facility at the applicant's expense.

(b)

Radio Frequency Standards. All small cell facilities shall comply with federal standards for radio frequency emissions.

(c)

Signal Interference. All small cell facilities shall be designed and sited, consistent with applicable federal regulations, so as not to cause interference with the normal operation of radio, television, telephone, public safety communications, and other services utilized by adjacent residential and nonresidential properties.

(d)

Operation and Maintenance. All small cell facilities shall be maintained in compliance with standards contained in applicable local building and safety codes. If upon inspection, the City concludes that a small cell facility fails to comply with such codes and constitutes a danger to persons or property, then the City may take any action with respect to such violation as provided by applicable law, including removal of the small cell facility at the applicant's expense.

(e)

Abandonment and Removal. Any small cell facility that is not used for a period of six (6) months or more shall be deemed to be abandoned. No applicant shall fail to remove a small cell facility that is abandoned. If a small cell facility applicant fails to remove an abandoned facility at the request of the Administrator, the City may remove the small cell facility at the applicant's expense.

(f)

Hazardous Materials. No hazardous materials shall be permitted in association with small cell facilities, except those necessary for the operation of small cell facilities and only in accordance with all applicable laws governing such materials.

(g)

Collocation. No small cell facility applicant shall unreasonably exclude a communications competitor from using the same facility or location. Upon request by the Administrator, the applicant shall provide evidence explaining why collocation is not possible at a particular facility or location.

(h)

Compliance with Other Laws. All small cell facilities shall meet the requirements of the City design and construction standards, the requirements of Chapter 11, "Streets, Sidewalks and Public Property," and all other applicable local, State, and Federal laws.

(Ord. No. 2023-05, § 5, 5-2-2023)

As a condition of its permit, the applicant for any small cell facility shall, at its sole cost and expense, indemnify, hold harmless and faithfully defend the City, its officials, boards, commissions, commissioners, agents, and employees against any claims, suits, causes of action, proceedings, and judgments for damages or equitable relief arising out of the construction, maintenance, or operation of its equipment authorized by this Article. This indemnification requirement will apply whether the act or omission complained of is authorized, allowed, or prohibited by applicable law, except in cases where liability is solely caused by the negligence of the person or persons covered by the indemnity.

(Ord. No. 2023-05, § 5, 5-2-2023)

The Administrator shall have the authority to waive any requirement or standard set forth in this Article if the Administrator makes a determination that the specific requirement or standard is preempted by federal or state law. Prior to applying the waiver to any pending application, the Administrator shall, in consultation with the City Attorney, make a written preemption determination which written determination shall identify the specific requirement or standard that is being waived and cite to the specific Federal or State law provision that preempts the specific City requirement or standard set forth in this Article.

(Ord. No. 2023-05, § 5, 5-2-2023)