ORDINANCE NO. 010-19

ORDINANCE NO. 010-19
AN ORDINANCE AMENDING CHAPTER 5.5 OF THE CODE OF ORDINANCES
OF THE CITY OF OPELIKA, ALABAMA, BY ADDING ARTICLE IV RELATING TO THE PLACEMENT OF SMALL WIRELESS FACILITIES, ASSOCIATED SUPPORT STRUCTURES AND ACCESSORY EQUIPMENT
WITHIN THE PUBLIC RIGHTS-OF-WAY
WHEREAS, to ensure that residents, businesses, and public safety operations in the City
of Opelika, Alabama, have reliable access to wireless communications network technology and state of the art mobile broadband communications services, the City desires to accommodate the deployment of wireless communications facilities and services within the City, including the City’s public rights-of-way, while remaining consistent with the City’s rights and obligations with respect to right-of-way management within the City;
WHEREAS, the City Council of the City of Opelika finds that unregulated deployment
of wireless communications facilities may adversely impact the health, safety, public welfare, character and environment of the City and its inhabitants; and WHEREAS, through the exercise of its police power, and by virtue of its legal status as
the owner of the public right-of-way, the City has the right and obligation, in a manner consistent with applicable law, to regulate the placement of wireless facilities within the City, including entry into and usage of the public rights-of-way, and to impose fees upon entrants and users to defray the costs and burdens to the public associated with such entry and usage.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF OPELIKA, ALABAMA, as follows:
Section 1. Amendment of Chapter 5.5. That Chapter 5.5 of the Code of Ordinances of the City of Opelika, Alabama, is hereby amended by adding a new Article IV entitled “Small
Wireless Facilities” to read as follows:
ARTICLE IV SMALL WIRELESS FACILITIES
Sec. 5.5-401 Purpose and Legislative Intent
A. The purpose of this Article is to establish a comprehensive set of siting and permitting requirements addressing the placement of wireless facilities and accessory equipment, and the placement and use of
associated support structures within the public rights-of-way. These regulations are intended to provide for the managed development of wireless facilities in a manner that recognizes and enhances the community benefits of wireless telecommunications technology and
reasonably accommodates the needs of citizens and wireless providers in accordance with federal and state rules and regulations. At the same time,
these regulations are intended to protect the community from potential adverse impacts of such facilities, including but not limited to noise, traffic, aesthetic, safety and other impacts over which the City has purview, and to preserve the visual character of the established community through appropriate design, siting, screening, and maintenance and location standards.
B. This Article does not address civil relationships between private landowners and owners or operators of wireless facilities and does not affect the need to obtain all necessary property rights from private landowners for the placement of wireless facilities.
C. This Article does not regulate the siting of wireless facilities within state rights-of-way except to the extent that the City has the authority to
regulate the placement and location of wireless facilities within a state right-of-way.
Sec. 5.5-402 Definitions
For purposes of this Article, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations, and their
derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number and words in the
singular number include the plural number. The word “shall” is always mandatory, and not merely discretionary.
(a) “Accessory Equipment” means any equipment, other than an antenna, used in conjunction with a wireless facility. It includes but is not limited to cabinets, optical converters, power amplifiers, radios, multiplexers, radio units, fiber optic and coaxial cables, wires, meters, pedestals, power switches, junction boxes, batteries, power supplies and related equipment located upon or in the immediate vicinity of the support
structure.
(b) “Antenna” means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.
(c) “Applicant” means any person submitting an application for a permit to place wireless facilities under this Article.
(d) “Application” means all documentation that an applicant must submit to enable the City to process a request for permit to install a wireless facility under this Article.
(e) “Applicable Standards” means all applicable engineering and safety standards governing the installation, maintenance, and operation of
wireless facilities and support structures, and the performance of all work in the public right of way, and includes the most current versions of National Electric Safety Code (“NESC”), the National Electrical Code
(“NEC”), the regulations of the Federal Communications Commission (“FCC”) or the Occupational Safety and Health Administration (“OSHA”),
and provisions of the City’s building, construction, zoning, and safety codes, including those of the City’s Department of Public Works and Department Planning, and/or other reasonable safety, engineering,
architectural or aesthetic requirements of the City or federal authority having jurisdiction over such facilities.
(f) “City” means the City of Opelika, Alabama.
(g) “Collocation” means to install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to an existing pole or wireless
support structure.
(h) “Concealment”” means a physical design or treatment that minimizes adverse aesthetic and visual impacts on the view from land, property, buildings, and other facilities adjacent to, surrounding, and in generally the same area as the requested location of a wireless facility.
(i) “FCC” means the Federal Communications Commission.
(j) “Height” means, when referring to a support structure, the
distance measured from the pre-existing grade level to the highest point on the structure, including any collocated wireless facility.
(k) “Historic Downtown Area” means the downtown commercial area as designated in Ordinance No. 151-01.
(l) “OPS” means Opelika Power Services.
(m) “Permit” means an authorization issued by the City allowing the applicant to install a wireless facility or new wireless support structure within the public rights-of-way pursuant to the terms of this Article. A
permit may be in the form of a special use permit or an administrative approval, as specified in this Article.
(n) “Person” means any individual, corporation, estate, trust,
partnership, joint stock company, association of two (2) or more persons having a joint common interest, or any other entity.
(o) “Planning Director” means the Planning Director of the City of Opelika, or designee.
(p) “Pole” means a utility pole, streetlight pole, traffic light pole, or other similar freestanding support structure within the public right-of-way,
whether or not owned by the City, OPS or a private utility.
(q) “Public Rights-of-Way” or PROW means the surface and space in, upon, above, along, across, over and below the entire width of any public streets, avenues, highways, roads, courts, lanes, alleys, boulevards,
ways, shoulders, side slopes, sidewalks, and bicycle lanes, as the same now or may hereafter exist, that are within the City’s corporate boundaries
and under the jurisdiction of the City. Public rights-of-way shall not include any City buildings, City or OPS streetlight or utility poles, or other structures or improvements, or any privately-owned poles or facilities,
regardless of whether they are situated within the public rights-of-way.
(r) “Small Wireless Facility” means a wireless facility that meets the following qualifications:
(1) The structure on which antenna facilities are mounted:
a) is fifty (50) feet or less in height including antenna, or
b) is no more than ten percent (10%) taller than other adjacent
structures, or
c) is not extended to a height of more than fifty (50) feet or by more than ten percent (10%) above its preexisting height as a result of the collocation of new antenna facilities, whichever is greater; and
(2) Each antenna array, including components of such, associated with the deployment or modification is no more than three (3) cubic feet in
volume; and
(3) All accessory equipment associated with the facility is
cumulatively no more that twenty-eight (28) cubic feet in volume.
(s) “Special Use Permit” means a permit requiring approval by City Council, following a public hearing.
(t) “State” means the State of Alabama.
(u) “Substantial Modification” or “Substantial Change” means,
for support structures or poles within the public right-of-way:
a) The proposed collocation or modification increases the overall height more than ten percent (10%) or ten (10) feet (whichever is greater); or
b) The proposed collocation or modification increases the width more than six (6) feet from the edge of the support structure; or
c) The proposed collocation or modification involves the installation of any new equipment cabinets on the ground when there are no existing
ground-mounted equipment cabinets; or
d) The proposed collocation or modification involves the installation of any new ground-mounted equipment cabinets that are ten percent (10%)
larger in height or volume than any existing ground-mounted cabinets; or
e) The proposed collocation or modification involves excavation outside the area in proximity to the structure and other transmission equipment already deployed on the ground.
(v) “Utility Pole” means a pole that is used in whole or in part for the purpose of supporting electric, telecommunications and cable wires for the
distribution of electric or communications services. Such term shall not include electric transmission facilities, or freestanding structures that are
primarily constructed to support wireless facilities.
(w) “Wireless Facility” or “Facility” means equipment at a fixed location that enables wireless services between user equipment and a communications network, including radio transceivers, antennas, coaxial
or fiber-optic cable located upon a support structure, regular and backup power supplies, and other accessory equipment, regardless of technological configuration. The term includes small wireless facilities.
(x) “Wireless Infrastructure Provider” means any person that builds or installs wireless facilities or support structures primarily intended to support wireless facilities, but that is not a wireless services provider.
(y) “Wireless Provider” means a wireless infrastructure provider or wireless services provider that has applied for or received a permit under
this Article.
(z) “Wireless Services” means any voice, video or data
communications services, whether at a fixed location or mobile, that are provided through the use of wireless facilities located within the City.
(aa) “Wireless Support Structure” or “Support Structure” means a freestanding structure, such as a monopole; tower, either guyed or self-supporting; billboard; or other existing or proposed structure primarily
designed to support or capable of supporting wireless facilities.
Sec. 5.5-403 When Permit Required; Scope of Permit
A. Except as otherwise provided in this Article, no person may undertake any of the following activities without first submitting a permit application to the Planning Department and obtaining a permit as provided
under this Article:
(a) the placement of a wireless facility within the City’s public
rights-of-way;
(b) the placement of any additional or replacement support
structure intended to be used to support one or more wireless
facilities within the public rights-of-way; or
(c) the substantial modification of a wireless facility or support
structure within the public rights-of-way.
B. A violation of subsection A above is hereby declared to be an offense, punishable by a fine not exceeding three hundred fifty dollars
($350.00) or imprisonment for a period not to exceed six (6) months, or both for conviction of a first offense; for conviction of a second offense both of which were committed within a period of five (5) years,
punishable by a fine not less than three hundred fifty ($350.00) dollars nor
more than five hundred dollars ($500.00) or imprisonment for a period not to exceed six (6) months, or both; and, upon conviction for a third or
subsequent offense all of which were committed within a period of five (5) years, punishable by a fine of five hundred dollars ($500.00) or imprisonment for a period not to exceed six (6) months, or both. However,
for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of this Article or of such ordinance or regulation shall
be deemed misdemeanors and for such purpose only all of law relating to misdemeanors shall apply to such violations. Each week’s continued
violation shall constitute a separate additional offense.
C. Administrative Approval. Unless otherwise specified, a permit issued under this Article shall be in the form of an administrative approval, and shall not require a special use permit, variance, or other authorization requiring a public hearing or approval of City Council.
D. Only Small Wireless Facilities Eligible for Permit Placement within the public rights-of-way of a wireless facility that exceeds the
defined dimensions of a small wireless facility is not eligible for administrative approval under this Article and shall require a special use permit. Unless approved by City Council, no permit may be issued under
this Article for a wireless facility that exceeds the stated dimensions and other requirements applicable to a small wireless facility.
E. No Grant of Attachment Rights. Nothing in this Article shall confer any right to install wireless facilities upon City-owned, OPS-owned, or privately-owned poles or structures, including utility poles,
absent a separate pole attachment agreement with the owners of such poles or structures.
F. Content of Application Incorporated. All information submitted as part of an application under this Article is hereby incorporated as part of any permit, subject to any amendments, conditions or modification to
such information subsequently approved or required by the City
G. Other Required Permits. A permit issued under this Article does not affect a wireless provider’s obligation to obtain and comply with any building permit, excavation permit, or other permit or authorization
required under the City Ordinances or other applicable law.
H. Master Public Right-of-Way License Agreement. The City in its sole discretion may require an applicant or wireless provider to enter into a
Master Public Rights-of-Way License Agreement with the City, in such form as the City may prescribe, incorporating the terms and conditions of
this Article.
Sec. 5.5-404 Exclusions
The following shall not require a permit under this Article:
A. Any facilities expressly exempt from the City’s siting, building and permitting authority, or expressly made exempt pursuant to 47 U.S.C. § 332 or the FCC’s rules and regulations.
B. If constructed as required by the original permit, any properly permitted wireless facility that exists on the effective date of this Article, provided that it exists and is operating as originally permitted, and any
modification of the facility has been properly permitted, if required.
C. Wireless facilities used exclusively for private, non-commercial radio and television reception and private citizen’s bands, licensed amateur radio and other similar non-commercial telecommunications.
D. Any repair, maintenance or upgrade of a wireless facility that does not i) increase the height of the structure, ii) alter the physical profile, iii) change the loading, iv) change the RF emissions levels, v) increase the footprint of the facility or vi) otherwise exceed the conditions of the permit.
Sec. 5.5-405 Application Requirements
A. General Application Content Requirements. The following
items shall be included in an application for permit under this Article. In addition to the following, the City may, at any point prior to issuing a permit, require the applicant to provide such additional information as the City deems necessary for effective evaluation of the applicant’s permit application.
(a) The name, address, phone number and e-mail address of
the person preparing the application;
(b) If different from the applicant, the legal name, address,
phone number and e-mail address of a wireless provider that has committed to use, or that the applicant expects to use, the facilities;
(c) The legal name, address, phone number and e-mail address of the applicant;
(d) The name, address, and phone number of the title holder of the support structure and of the wireless facility;
(e) A general description of the proposed work and the
purposes and intent of the wireless facility. The scope and detail of such description shall be appropriate to the nature and character of the work to be performed, with special emphasis on those matters likely to be affected or impacted by the work proposed.
(f) A street map identifying the specific location, including the
postal address of the immediately adjacent property, GPS
Coordinates (latitude and longitude) in decimal degrees for the
proposed small wireless facility location.
(g) Street view photographic images of the location.
(h) If requested by the City, to-scale photographic simulations
of the wireless facility “before and after construction” from key viewpoints inside of the City, and a map showing the locations of where the photos were taken and the distance(s) of each location from the proposed structure. If required, guidance will be provided concerning the appropriate key viewpoints on an individual application basis.
(i) The location of the nearest residential structure;
(j) The location, size and height of all existing and proposed
support structures above thirty (30) feet in height, whether or not currently supporting a wireless facility, within five hundred (500) feet of the proposed location;
(k) The transmission and maximum effective radiated power of the antenna(s), as well as a list of the specific frequency bands to be initially activated upon completion of construction and a copy of the FCC licenses applicable for all the frequency bands licensed to the carrier to the wireless provider;
(l) A written statement affirming that (a) the applicant’s
wireless facility shall always without exception be maintained in a safe manner, and in compliance with all conditions of the permit, all applicable and permissible local codes, Articles, and regulations and all applicable City, State and Federal Laws, rules, and
regulations, unless specifically granted relief by the Council in
writing pursuant to Section 5.5-414 of this Article; and (b) that the applicant is licensed to do business within the State.
(m) Certified detailed construction drawings, including but not
limited to the following information:
a) a survey showing the location of all adjacent lot lines and rights-of-way;
b) all existing and proposed ground-mounted enclosures and cabinets within fifty (50) feet of the proposed small wireless facility site;
c) elevation drawings showing the profile or the vertical rendition of the facility, and specifically identifying
all existing and proposed attachments and all related fixtures, structures, appurtenances and apparatus, including the height above the existing grade, materials, colors and lighting;
d) proposed connection to wireline or wireless backhaul; and
e) proposed electrical service and grounding plans for the facility.
(n) The type and manufacturer of the existing or proposed
support structure and a rigorous structural analysis and report,
including calculations, certified by a licensed Alabama Professional Engineer, proving the structure’s capability to safely
accommodate the proposed facilities. No permit will be issued for any wireless facility where the support structure is in need of safety-related remediation to comply with the requirements of this Article and other adopted standards of the City, unless and until all remediation work that is deemed necessary has been completed or a schedule for the remediation work has been approved by the City.
(o) For placement of antennas with the lowest part of the
antenna less than thirty-three feet (33’) in height, a completed and signed checklist for categorical exclusion of radio frequency electromagnetic emissions. If the modification, collocation or placement of a wireless facility is not categorically excluded based on applicable FCC rules, the applicant shall provide an RF compliance letter to the City and shall remain in full compliance with all related requirements set forth by FCC. The City may require the permit holder to perform an on-site RF survey of the facility after the construction or modification of the facility. Such survey shall be done under the observation and direction of the
City or its designee, and an un-redacted copy of the survey results along with all calculations provided to the City.
(p) A signed statement that the applicant will expeditiously
remedy any physical or RF interference with other wireless devices or services, if required to do so under applicable law.
(q) A security plan, including emergency contact information,
location and accessibility of a main breaker switch, emergency procedures to follow, and a description of an anticipated
maintenance program.
(r) Written documentation evidencing approval of the owner
of any tower, pole, support structure, or building to which a
wireless facility or any associated equipment is to proposed to be attached. The permit application may be accepted without this attached document but shall not be approved without the executed agreement authorizing said attachment.
(s) The applicant may designate as such portions of its application materials that it reasonably believes contain proprietary
or confidential information.
(t) An application shall be signed on behalf of the applicant by the person(s) vested with the authority to bind and commit the applicant and attesting to the truth, completeness and accuracy of the information presented.
B. Application for New Additional Support Structures. In
addition to the general application content requirements set forth in Subsection A, an application to place a new additional wireless support structure shall include written evidence demonstrating that the applicant
reasonably explored collocation opportunities, but is unable to collocate on any existing structure.
C. Application Involving Substantial Modification. An application for permit to substantially modify a wireless facility or support structure
shall include the following:
(a) Information clearly identifying the wireless provider and
the subject wireless facility or support structure.
(b) A to-scale visual depiction of the modification.
(c) A narrative explaining the nature of the proposed modification.
(d) A certified structural report, including calculations, demonstrating the structure’s capacity to accommodate the wireless facility following the proposed modification.
(e) If requested by the City, to-scale photographic simulations
of the wireless facility “before and after construction” from key viewpoints inside of the City as may be appropriate and required and a map showing the locations of where the photos were taken and the distance(s) of each location from the proposed structure. If required, guidance will be provided concerning the appropriate key viewpoints on an individual application basis.
(f) A narrative description of activities proposed to minimize
the visual impact of such modification.
D. Batched Submittals. The batched submittal process described in
this subsection allows an applicant to combine individual permit
applications for the placement of wireless facilities (that are proposed to
be substantially the same and that would otherwise be processed as separate individual applications) into a single batched submittal containing
the individual applications to be processed at the same time. An applicant may submit a single “batched” application submittal seeking permits for multiple small wireless facilities at multiple locations, subject to the
following conditions:
(a) An applicant may combine into a single batch application
up to ten (10) individual applications for permits for new small wireless facilities to be located in the City public rights-of-way, provided that the proposed wireless facilities are of substantially the same design and style.
(b) A single person or entity shall not apply for more than ten (10) locations for small wireless facilities in any period of thirty (30) calendar days.
E. Public Meeting. To more fully inform those reasonably expected to be affected by the applicant’s proposed activities and facilities, the City in its sole discretion may require a public meeting to be held prior to approval of any permit application. Written notice of the meeting and its purpose shall be provided directly to potentially affected residents and businesses (including but not limited to adjacent property owners) at least two (2) weeks prior to the date of the meeting. The meeting shall be scheduled by the City Council or Planning Department. All costs related to
the meeting shall be borne solely by the applicant, including but not limited to the cost of written notification and any reasonable costs of the City. The conduct of any such public meeting shall not toll or otherwise affect the time for consideration of a permit application specified in Section 5.5-407.
F. Pre-Application Meeting. All prospective applicants shall initiate an informal pre-application meeting with the Planning Director or designee, which may be held either in-person or telephonically as deemed appropriate. The purpose of the pre-application meeting will be to expedite the application review and permitting process by identifying and preliminarily addressing any significant issues or concerns the City or the
applicant may have.
Sec. 5.5-406 Information Updates
Any substantial changes to information contained in a permit application, whether occurring during the pendency of an application or after a permit has been issued, shall be submitted in writing to the Planning Director within thirty (30) days after the change necessitating the amendment.
Sec. 5.5-407 City Action on Applications
No work of any kind may commence on a proposed wireless facility until the application is reviewed and a permit has been issued to the applicant. Following receipt of a completed application, the City will undertake a review pursuant to this Article in a timely fashion, consistent with its responsibilities and applicable law, and shall act within the time required by applicable law.
A. Sufficiency of Application
(a) Within ten (10) days of receiving an initial application for a small wireless facility permit, the City will notify the applicant in writing if the application is materially incomplete and shall clearly and specifically identify the missing documents or information and the specific rule or regulation creating the obligation to submit the
requested information. Upon receipt of the requested information the applicable time period for City to complete its review of the application will start over as if the Application were received on that date;
(b) Within ten (10) days of receiving a resubmitted application in response to a notice of insufficiency for any type of permit application, the City will notify the applicant in writing if the resubmitted application continues to be materially incomplete and shall clearly and specifically identify the missing documents or information and the specific rule or regulation creating the obligation to submit the requested information. Pending the receipt of the requested information the review period shall be tolled. Upon receipt of the requested information the applicable
time period for the City to complete its review of the application shall resume.
(c) Any subsequent review of an application by the City after
notice of incompleteness shall be limited to the deficiencies cited in the notice.
(d) There shall be no additional application fee to review an
application resubmitted pursuant to this Subsection.
B. Time Period for Permit Application Review
(a) The City shall make a final decision to approve or deny a
permit application within the following time frames, subject to such deadlines being reset or tolled in the event of an incomplete or deficient application:
(1) Review of an application to collocate a small wireless facility upon an existing structure: 60 days.
(2) Review of an application to deploy a small wireless facility using a new support structure: 90 days.
(b) The City shall advise the applicant in writing of its final
decision and shall include in the final decision the basis for any
denial(s), including specific code provisions on which the denial(s) were based. The applicant may cure the deficiencies identified by the City and resubmit the application within thirty (30) days of the denial(s) without paying an additional application fee. The City
will approve or deny the revised application within thirty (30) days of receipt of the amended application. The subsequent review by City shall be limited to the deficiencies cited in the original denial(s).
(c) If the City fails to act on a permit application within the
above prescribed time periods, the applicant may provide notice that the time period for acting has lapsed, after which the applicant may pursue such other remedies as may be available under then-prevailing law.
(d) If the permit application is to modify existing authorized
wireless facilities and the proposed modification does not
constitute a “substantial change,” as that term is defined by the FCC, to the existing wireless facility, the City will approve the permit application within sixty (60) days or else the permit application shall be deemed granted.
C. Scope of Review. The Planning Director, or an authorized third-party contractor working on behalf of the City, shall review the permit application and shall prepare any findings and proposed conditions. The review and evaluation may include, but shall not be limited to, such items as:
(a) Completeness of the application;
(b) The proposed facility’s compliance with federal, state, and local laws, regulations, codes, and City ordinances, including but not limited to this Article;
(c) Completeness and sufficiency of the vicinity map;
(d) General project information, including type of facility, number of antennas, height to top of antennas, radio frequency range, wattage output of equipment, compliance with FCC
requirements, and concealment elements;
(e) Compliance with aesthetic standards published by the City,
including but not limited those set forth in Section 5.5-410 of this Article;
(f) Noise and acoustical information;
(g) Applicant’s certification that the proposed wireless facilities will comply with all applicable FCC radio frequency (RF)
requirements;
(h) Sufficiency of the security plan;
(i) Adequacy of the maintenance program;
(j) Recommendations of City personnel or consultants with
respect to the application; and
(k) The existence of significant unresolved issues of noncompliance with respect to existing permitted wireless facilities
of applicant.
Sec. 5.5-408 Effect of Permit; Duration
A. Authority Granted; No Property Right or Other Interest
Created. A permit issued under this Article authorizes a permit holder to undertake only certain activities in accordance with the terms of the permit and this Article and does not create a property right or grant authority to the permit holder to impinge upon the rights of others, including those who may already have an interest in the public rights-of-way.
B. Duration. No permit issued under this Article shall remain valid for a period longer than twelve (12) months unless construction has actually begun within that period and is thereafter diligently pursued to completion. Any permit will automatically expire ten (10) years from the issuance date. A permit properly issued will automatically renew for additional successive ten (10) year periods every ten (10) years from the
issuance date. As a condition precedent to such automatic renewal the City may require a permit holder to certify that the subject wireless facility is being operated in accordance with the requirements of this Article and
that the wireless provider has not abandoned or elected to remove the subject wireless facility.
C. Other Approvals. The issuance of a permit shall not relieve a wireless provider of the obligation to obtain all other applicable permits, approvals, and agreements necessary to install and operate its wireless
facilities in conformance with federal, state, and local laws, rules, and regulations.
Sec. 5.5-409 Fees
A. Application Processing Fee. At the time that a person submits an application for a permit, such person shall pay a non-refundable application processing fee to the City as follows:
(a) The application processing fee with respect to a permit for
collocation of a small wireless facility, or substantial modification of a small wireless facility on an existing support structure, shall be $500 for up to five (5) small wireless facilities, with an additional $100 for each small wireless facility beyond five in a batch. For example, the application processing fee for one application is $500, the application processing fee for two applications is $500, the application fee for six applications is $600, and the application
fee for seven applications is $700.
(b) The application processing fee for a new support structure
to support a small wireless facility shall be $1000.
B. Right-of-Way Usage Fee Upon Issuance of Permit and
Annually Thereafter. Upon issuance of a permit for placement of small wireless facilities in the public rights-of-way, the permit holder shall pay a public rights-of-way usage fee of $270 per permitted wireless facility, less the pole attachment fee that the permit holder pays pursuant to Section 5.5-411(B) for access to the facility at issue. Thereafter, the permit holder shall continue to pay this fee for each wireless facility that the permit holder installs and maintains within the public rights-of-way.
C. Contractor Fee. The City may, in its discretion, utilize one or more contractors to review and process individual or batched applications for permit. In the event that the City chooses to utilize such contractors, an applicant shall pay the reasonable fees of such contractor for the review
and processing of the applicant’s permit application. Such fees shall be based upon standard processes and prevailing rates in Lee County, Alabama, in an amount not to exceed two hundred fifty dollars ($250) per
hour.
D. Fees for Modification of Facilities. Any proposed modification to an existing authorized wireless facility, whether or not a “substantial change” as defined by the FCC, shall be subject to the same permit
application fees as new facilities. Routine repair and maintenance activities (as described in Section 5.5-404D) that do not require a permit shall not require a permit application nor payment of application processing fees.
Sec. 5.5-410 General Standards and Requirements
The placement and operation of wireless facilities within the City’s public rights-of-way shall be permitted only in accordance with the requirements set forth in this Section.
A. No Interference. Without limiting the scope of the aesthetic specifications or any other provision of this Article, all wireless facilities and any associated support structures shall be subject to the following requirements:
(a) No wireless facility or support structure, nor any work
associated with such, shall block, restrict, interfere with, impede access to, or impede use of, any street, sidewalk, alley, driveway, walkway, passageway, door, gate, ingress or egress points of a building or structure, delivery or pickup area, access to public transportation stops or shelters, access to above-ground or below-
ground infrastructure owned or operated by any public or private utility, and any public way or place.
(b) No wireless facility or support structure shall create a
visual obstruction to vehicular and pedestrian traffic, including, but not limited to, obstruction of any required sight triangle.
(c) No wireless facility or support structure shall create,
contribute to, or exacerbate a violation of the Americans With
Disabilities Act or related federal or state standards or regulations. No wireless facility shall interfere with safe operation of City or OPS equipment and facilities, specifically including, but not limited to, City-owned streetlights, traffic control equipment, and utility facilities.
B. Damage to Public Rights-of-Way or City Facilities. If a
wireless provider or its employees, agents, subcontractors, or others acting on its behalf damages the public rights-of-way, or damages or interferes with the operation of any City facilities, equipment, or structures, the wireless provider shall, at its own expense, immediately do all things reasonable to correct the damages and avoid further injury or damages, direct and incidental, resulting therefrom and shall notify the City.
C. Location of Facilities Within Public Rights-of-Way. In addition to the specific location requirements set forth in Section 5.5-410F. The City reserves the right to deny an application for a wireless facility permit if the City determines that the proposed site or group of sites, based on the particular facts and circu stances, is substantially adverse to the health, safety and welfare of the City and its inhabitants, or will have a deleterious effect on the nature and character of the community and neighborhood. In the event a location proposed by applicant is unacceptable, the City will
work in good faith with the applicant to identify one or more suitable alternate locations.
D. Setback. Wireless facilities shall be installed with a minimum 20-foot setback from buildings, the minimum separate required by NESC or
the existing setback requirement of the underlying zoning district, whichever is greater. An applicant may request a waiver of this requirement in the event a building is located immediately adjacent to the
public right-of-way, and no reasonable alternative siting locations are available.
E. New Additional Poles.
(a) No new additional poles will be permitted unless an
applicant submits written documentation demonstrating to the
satisfaction of the City that applicant has undertaken reasonable efforts to collocate the proposed wireless facility upon an existing support structure, and that (i) no suitable support structure exists, or (ii) such efforts have been unsuccessful.
(b) New additional poles approved under this Article shall be installed with a minimum 20-foot setback from buildings, the minimum separation required by NESC, or the existing setback requirement of the underlying zoning district, whichever is greater.
F. Aesthetic Standards. Wireless facilities shall comply with the aesthetic standards set forth in this subsection. In the event an applicant seeks to place a wireless facility that does not comply with these standards, it must request and be granted a waiver as set forth in this Article.
(a) General Aesthetic Requirements
(1) The placement and design of wireless facilities shall be consistent with existing structures and aesthetics, in harmony with the surroundings, and as unobtrusive as reasonably possible.
(2) To minimize the visual impact, all pole-mounted
equipment shall be installed as
close to the pole as technically feasible, and shall be painted flat and non-reflective colors that match the underlying pole (unless such requirement is specifically waived by the City).
(3) Screening and equipment enclosures shall blend with the surrounding environmental and structural context in terms of scale, form, texture, materials and color.
Equipment shall be concealed as much as reasonably possible by blending into the natural and/or physical environment.
(4) Collocations between limited numbers of multiple
separate wireless service providers on the same support
structure are encouraged wherever feasible. If an applicant
seeking to place a new wireless facility proposes to not collocate when reasonable options appear available, demonstrative proof must be provided as to why collocation is not feasible.
(5) In the historic downtown area, small wireless facilities collocated upon existing decorative light poles shall be consistent with the existing decorative light poles.
Applicant shall propose a design that uses concealment
effects, that is comparable in scale, and that incorporates
the design characteristics of those poles. Wireless facilities
in the historic downtown area shall use coloring to match
surrounding light poles and fixtures.
(6) If a new standalone pole or cabinet for a wireless facility is to be installed within one hundred feet (100’) of any decorative pole, the color of the new pole and cabinet should match the color of the decorative pole. Otherwise, such new poles and cabinets should be black in color, using Gloss Black #17038 per Federal Color Standard 595.
(7) In residential areas in which utilities are placed underground and decorative light poles are used, any new pole proposed by Applicant shall substantially match existing decorative poles in terms of material, color and
design.
(8) New standalone poles shall be constructed of aluminum or steel.
(9) All cabling for a wireless facility upon a new pole
must traverse the interior of the pole. Otherwise, cable traversing the pole shall be covered using a U-guard of steel or aluminum construction no less than two (2”) in diameter. No cables shall be visible on the exterior of a City light pole.
(10) Wireless facilities shall be installed with a minimum spacing of 300 feet between wireless facilities of a single applicant in commercial areas, or 600 feet in
residential areas.
(11) Wireless facilities should use tapered shapes that smoothly integrate into structures (avoiding, for example, new rectangular boxes).
(12) No wireless facilities shall be installed within a public park or in a public right-of-way within 250 feet of a park.
(b) Antennas.
(1) The total volume of antennas must not exceed 3 cubic feet on a single pole.
(2) Antennas must be no taller than 4 feet.
(3) Antennas must have a smooth cylindrical shape, such as a single canister, or multiple separate antennas placed inside sheeting that is flush with the pole, or a form factor in which multiple antennas merge into a single smooth shape. No separately mounted antennas will be allowed on a single installation (for example, multiple-sector panel antennas).
(4) Antennas must be flush-mounted or placed in line with the pole.
(c) Cabinets.
(1) Pole-mounted cabinets.
i. Pole-mounted cabinets should not be used on a light pole if a technical and commercially
reasonable alternative is available. Equipment should be placed inside the pole, such as in the base of the pole, in a way that integrates with the design of the pole.
ii. Cabinets may be permitted on the sidewalk side of light poles except in the historic downtown area.
iii. Cabinets may be permitted on the sidewalk side of wooden utility poles.
iv. Outside the historic downtown area, cabinets may either be mounted on a pole or on a concrete slab within 50 feet of the pole where the antenna is
mounted.
v. Pole-mounted cabinets must have at least an 8-foot clearance from the ground, or the minimum clearance required by the NESC, whichever is greater.
vi. Pole-mounted cabinets must be flush-mounted to poles.
vii. Rectangular cabinets on poles shall be limited to 48” (height) by 24” (width) by 18”
(depth); cabinets that are non-rectangular in shape must be comparable or less in volume and visual impact.
viii. Pole-mounted equipment should be placed within enclosures with tapered shapes, which are less obtrusive than rectangular cabinets.
ix. The power meter and power disconnect switch must be located below the cabinet or (in the case of a light pole) inside the pole.
x. Cabinets on light poles must be same color as the pole. Cabinets on wooden utility poles must be a neutral, unobtrusive color (e.g., black, brown,
dark green).
(2) Surface-mounted cabinets.
ii. Surface-mounted cabinets must be on a concrete slab, and where possible must be in close
proximity to existing pedestals and cabinets (for example, near traffic signal controllers, transformers or other utility pedestals).
iii. Surface-mounted cabinets must be the same color as other nearby pedestals or cabinets. Where there are no other nearby pedestals or cabinets, the cabinets should be the same color as the pole housing the antenna.
iv. Surface-mounted cabinets must be no larger than 10 cubic feet in volume, and with height,
width, and depth each not exceeding 3.5 feet.
(d) Attachments to Buildings. To preserve and protect the
nature and character of the area, any attachment of an antenna to a building shall be upon the face of the structure without increasing the height of the building, unless the applicant demonstrates that such restriction will prohibit or have the effect of prohibiting the provision of service. Any cabling shall match as closely as possible the color and texture of the building. If antennas are required to be mounted above the roof-line of any building, the applicant must comply with a plan to camouflage the antennas.
(e) Lighting and Noise.
(1) No lighting is allowed on small wireless facilities.
If there are lights on the supplied equipment, they must be
covered, removed, or deactivated.
(2) Wireless attachments may not create noise greater than 50 dB measured at 20 feet from the device in residential neighborhoods.
G. Replacement of Poles.
(a) Use of a City-owned pole to collocate a wireless facility may require replacement with a new pole designed to accommodate the wireless facility, as described in Section 5.5-411.
In the event the applicant believes the existing pole can support the structure and fulfill all other aesthetic and technical standards, the applicant shall provide an industry-standard pole load analysis certified by an Alabama Professional Engineer indicating that the specific pole will safely support the load.
(b) A City-owned pole that is replaced with a new pole must be replaced with a new pole at the same location that is designed primarily to serve the purpose of the original pole (such as illumination) while also serving as a support structure for the wireless attachment. Any such replacement pole shall be substantially identical to the specific type pole that it replaces, notwithstanding modifications that may be necessary to build equipment into the interior or base, or other departures from the original design that may be required by the City.
(c) Replacement poles shall be constructed of the same material as the pole replaced, unless otherwise permitted or required by the City.
(d) The applicant shall minimize any design differences
between a replacement structure and the original pole or structure.
H. Use of Wooden Utility Poles.
(a) Wireless facilities may not be installed on wooden utility
poles with existing transformers, switches, or risers.
(b) The order of preference in use of wooden utility poles is as
follows:
a. Stub poles
b. Poles without primary power
c. Poles with primary power, extended with a pole top
prior to installing any wireless attachments.
(c) Cables must be bonded, grounded, and placed inside a riser on the pole. Risers must be the same color as the pole and
mounted on the back side of the pole.
I. Undergrounding Provisions. Applicant shall comply with City Ordinance requirements concerning undergrounding of service lines and related equipment which can be feasibly installed underground for utility
and telecommunications facilities, which shall be applied on a non-discriminatory basis, provided that such requirements shall not prohibit the replacement of allowed existing structures with similar structures. Nor shall such requirements prohibit or effectively prohibit the provision of wireless services in the areas subject to undergrounding requirements.
Sec. 5.5-411 Attachment to OPS Utility Poles, Streetlight Poles and Other Structures in the Public Rights-of-Way
A. Attachment Agreement Required. A wireless provider shall not attach wireless facilities to an OPS utility pole, streetlight pole, or any other City-owned structure or building without first obtaining an
attachment agreement with the City or OPS, as applicable.
B. Annual Rate. The rate to place a wireless facility on an OPS utility pole, streetlight pole, or other City-owned structure in the public rights-of-way shall be specified in the pole attachment agreement required
by Subsection A of this Section. This fee and the right-of-way usage fee required under section 5.5-409 of this Article shall not exceed a total of $270 per facility per year.
C. Make-Ready. For OPS utility poles, streetlight poles, or other City-owned structures in the public rights-of-way, the City or OPS, as appropriate, shall provide a good faith estimate of any make-ready work necessary to enable the pole or facility to support the requested wireless facility, including pole replacement if necessary, within 60 days after receipt of a completed request. Make-ready work for attachments including any pole replacement shall be completed within sixty (60) days of the wireless provider’s written acceptance of OPS’s or the City’s good faith estimate, except that attachments located in or above the electric space of an OPS utility pole shall be completed within ninety (90) days of acceptance.
Sec. 5.5-412 Removal, Relocation and Abandonment
A. Within ninety (90) days following written notice from the City, a wireless provider shall, at its own expense, protect, support, temporarily or permanently disconnect, remove, relocate, change, or alter the position of
any permitted wireless facility whenever the City has determined that such removal, relocation, change, or alteration, is reasonably necessary for the
construction, repair, maintenance, or installation of any City improvement in or upon the public rights-of-way, or the operations of the City, or OPS
utility facilities, in or upon the public rights-of-way.
B. Emergency Removal or Relocation of Facilities. The City retains the right and privilege to move or rearrange any wireless facility located within the public rights-of-way of the City, as the City may determine to be necessary, appropriate, or useful with respect to an emergency affecting the public health, safety or welfare. If circumstances permit, the City shall notify the wireless provider and provide the wireless provider an opportunity to move its own facilities prior to rearranging or removing a facility and shall notify the wireless provider after removing or rearranging a wireless facility. The City shall not be liable for any damages to the wireless facility or for an interruption in service resulting
from such rearrangements or removals when undertaken in response to a public safety or emergency.
Sec. 5.5-413 Radiofrequency (RF) Emissions
To assure the protection of the public health and safety, the City reserves the right to require that a wireless provider verify compliance with the FCC’s regulations regarding RF emissions, either for individually-owned equipment or cumulatively for all equipment at the site, as may be deemed appropriate from time to time.
Sec. 5.5-414 Relief, Waiver and Exemption
A. Any applicant desiring relief, waiver or exemption from any aspect or requirement of this Article shall address and identify such in writing as part of its application, including a written justification explaining why
such relief should be granted. The City may grant or deny such request in its sole discretion. Such relief may be temporary or permanent, partial or
complete, and conditional or absolute.
B. If a request for relief, waiver or exemption for any item or issue is requested after the submittal of the application, the City reserves the right to require a formal amendment or resubmittal of the application, including the payment of all applicable fees and charges.
C. Any variance from the regulations contained in this Article shall be reviewed in terms of i) technological impracticability and ii) commercial impracticability, both in relation to the area intended to be served by the proposed wireless facility and the City’s objectives, rights and obligations as stated in this Article.
D. No relief, waiver or exemption shall be approved unless the applicant demonstrates that, if granted, the relief, waiver or exemption will have no significant adverse effect on the health, safety and welfare of the
City, its residents or other service providers. The burden of proving the need for the requested relief, waiver or exemption shall be solely on the applicant.
E. The applicant shall bear all costs of the City in considering the request and the relief, waiver or exemption.
Sec. 5.5-415 Compliance With Applicable Law
A wireless provider shall at all times maintain compliance with all applicable City, state and federal ordinances and statutes, Applicable Standards, and all
applicable rules, regulations, standards, and provisions of any State or Federal agency, including, but not limited to, the FCC.
Sec. 5.5-416 Assignment and Transfer
A. A permit issued under this Article shall not be assigned, transferred or conveyed without the express prior written notification to the City, such notice to be not fewer than thirty (30) business days prior to the intended assignment, transfer or conveyance.
B. Any purported transfer, assignment or other conveyance of a permit shall be invalid unless and until the new permit holder provides to the City a written commitment of the new permit holder that it will abide
by all applicable laws, rules and regulations, including but not limited to this Article.
Sec. 5.5-417 Noncompliance, Cure and Revocation
A. Event of Noncompliance. If a wireless provider fails to comply with any material term or condition of this Article or any permit issued under it, including nonconformity with application materials as approved by the City, the provider shall be in non-compliance with this Article.
B. Remedies Following Failure to Cure. In the event that a wireless provider is found to be in non-compliance with this Article the City shall give the wireless provider forty-five (45) days written notice to cure the
violation(s), or diligently commence the cure for matters that cannot reasonably be cured within forty-five (45) days. In the event of an uncured material failure to comply with this Article, the City, at its option,
shall be entitled to pursue any and all remedies that it may have in law or at equity, including terminating non-compliant permits, and drawing down
the non-compliant wireless provider’s performance and payment bond to cover any fees, costs, damages, expenses, or penalties that a wireless provider has not paid.
C. Removal of Facilities. Upon termination for non-compliance, a wireless provider shall remove its wireless facilities from the public rights-of-way within six (6) months of receiving notice, or at a rate of twenty-five (25) of its wireless facilities per month, whichever period results in the shortest length of time for completing removal. A wireless provider shall restore the public rights-of-way to its prior condition at the commencement of its permit applications, except for reasonable wear and tear. If not so removed within that time period, the City shall have the
right, but not the obligation, to treat the wireless provider’s facilities as abandoned and to take title, store, sell, or otherwise dispose of them. A wireless provider shall be required to pay the City’s actual and
documented costs of taking title, storing, selling, or otherwise disposing of a wireless facility subject to this Subsection within ninety (90) calendar days after it has received an invoice from the City.
Sec. 5.5-418 Retention of Local Police Power; Effect of Future Changes in Governing Law
This Article is intended to establish only the minimum restrictions upon the police power of the City necessary to comply with the final rules adopted by the Federal Communications Commission regarding permissible local regulations of wireless facilities and wireless support structures. Nothing in this article shall be construed as surrender by the City of its right and power to adopt future ordinances, rules, and regulations in the exercise of its police power applying to wireless facilities to the maximum extent allowed by applicable law. Issuance
of any permit pursuant to this Article shall not grant the permittee any vested rights in the event of a change in governing law, including any vested right for permittee to remain regulated under the laws, ordinances, rules, and regulations in effect at the time of issuance of a permit. In the event of any future change in governing law (including, but not limited to, invalidation or modification of the final rules of the Federal Communications Commission in effect at the time of initial adoption of this article), the City at all times reserves the right to regulate wireless facilities under new governing law as changed and to apply new City regulations allowed by the changed law to all pre-existing wireless facilities.
Sec. 5.5-419 Liability Insurance
A. A holder of a permit issued pursuant to this Article 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 permit in amounts as set forth below:
(a) Commercial General Liability covering personal injuries,
death and property damage: $1,000,000 per occurrence/$2,000,000 aggregate; and
(b) Automobile Coverage: $1,000,000.00 per occurrence/
$2,000,000 aggregate; and
(c) A $3,000,000 Umbrella coverage; and
(d) Workers Compensation and Disability: Statutory amounts.
B. For a facility located on City property, the Commercial General Liability insurance policy shall specifically name the City and its officers, boards, employees, committee members, attorneys, agents and consultants as additional insureds.
C. 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.
D. Renewal or replacement policies or certificates shall be delivered to the City at least fifteen (15) days prior to the expiration of the insurance that such policies are to renew or replace.
E. Before construction of a permitted wireless facility is initiated, the permit holder shall deliver to the City a copy of each of the policies or certificates representing the insurance in the required amounts.
F. A Certificate of Insurance that states that it is for informational purposes only and does not confer rights upon the City shall not be deemed to comply with this Article.
Sec. 5.5-420 Indemnification
A. Any application to place wireless facilities shall contain a
provision with respect to indemnification of the City. Such provision shall require the applicant, to the extent permitted by applicable law, to at all times defend, indemnify, protect, save, hold harmless and exempt the City and its officers, commissions, committees, employees, 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 there from, 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.
B. Notwithstanding the requirements noted in subsection (A) of this section, an indemnification provision will not be required in those instances where the City itself applies for and secures a permit for a wireless facility.
Sec. 5.5-421 Performance Security
A wireless provider shall furnish a performance and payment bond executed by a
surety company reasonably acceptable to the City which is duly authorized to do business in the state of Alabama in the amount of twenty-five thousand dollars ($25,000.00) for the duration of any authorizations granted hereunder as security
for the faithful performance of the terms and conditions of its permits, and for the payment of all fees, and persons performing labor and furnishing materials in connection with its installation and use of wireless facilities in the public rights-
of-way.
Sec. 5.5-422 Planning Department Authority and Delegation
The Planning Department is the officially designated agency or body of the City to whom applications for a permit under this Article must be made, and that is authorized to make decisions with respect to granting or not granting administrative approval permits applied for under this Article, or revocation of
existing permits. The City Council may at its discretion, consistent with this Article, delegate or designate to the City Planning Commission or other official agencies or officials of the City or outside consultants the authority to accept, review, analyze, evaluate and make recommendations with respect to the granting or not granting of permit applications, or revocation of existing permits.
Sec. 5.5-423 Severability
A. 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.
B. Any permit issued pursuant to 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.
Sec. 5.5-424 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.
Sec. 5.5-425 Authority
This Article is enacted pursuant to applicable authority granted by the State and federal government.
Section 2. Repeal of Conflicting Ordinances. Any ordinance or part thereof in
conflict with the provisions of this ordinance are repealed to the extent of the conflict only.
Section 3. Effective Date. This ordinance (and Article IV hereby adopted) shall take effect and be enforced immediately upon its adoption and publication as required by law
Section 4. Publication. The City Clerk of the City of Opelika, Alabama is hereby authorized and directed to cause this Ordinance to be published one (1) time in a newspaper of general circulation published in the City of Opelika, Lee County, Alabama.
Section 5. Codification. Codification of Article IV adopted herein in the Code of Ordinances of the City of Opelika, Alabama, is hereby authorized and directed.
ADOPTED AND APPROVED this the 7th day of May, 2019.
/s/ Eddie Smith PRESIDENT OF THE CITY COUNCIL OF THE CITY OF OPELIKA, ALABAMA
ATTEST:
/s/ R. G. Shuman CITY CLERK
TRANSMITTED TO MAYOR on this the 8 th day of May, 2019.
/s/ R. G. Shuman CITY CLERK
ACTION BY MAYOR
APPROVED this the 8th day of May, 2019.
/s/ Gary Fuller MAYOR
ATTEST:
/s/ R. G. Shuman CITY CLERK
Legal Run 5/15/2019