(a) Co-Located Small Cell Installation means a single telecommunication tower, pole, mast, cable, wire or other structure supporting two or more Small Cell Installations.
(b) Exempted Telecommunications Facility includes, but is not limited to, the following unless located within a recognized Historic District:
(1) A single ground or building mounted receive-only radio or television antenna including any mast, for the sole use of the tenant occupying the residential parcel on which the radio or television antenna is located; with an antenna height not exceeding twenty-five feet;
(2) A ground or building mounted citizens band radio antenna, including any mast, if the height (post and antenna) does not exceed thirty-five feet;
(3) A ground, building, or tower mounted antenna operated by a federally licensed amateur radio operator as part of the Amateur Radio Service, if the height (post and antenna) does not exceed thirty-five feet;
(4) A ground or building mounted receive-only radio or television satellite dish antenna, which does not exceed thirty-six inches in diameter, for the sole use of the resident occupying a residential parcel on which the satellite dish is located; provided the height of said dish does not exceed the height of the ridgeline of the primary structure on said parcel.
(5) Mobile services providing public information coverage of news events of a temporary nature.
(6) Handheld devices such as cell phones, business-band mobile radios, walkie-talkies, cordless telephones, garage door openers and similar personal-use devices.
(7) Government-owned and operated receive and/or transmit telemetry station antennas for supervisory control and data acquisition (SCADA) systems for water, flood alert, traffic control devices and signals, storm water, pump stations and/or irrigation systems, with heights not exceeding thirty-five feet.
(8) City-owned and operated antennae used for emergency response services, public utilities, operations and maintenance if the height does not exceed seventy feet.
(9) Wireless Telecommunication Facilities, including multiple antennas, in compliance with the applicable sections of this chapter, located on an industrial parcel and utilized for the sole use and purpose of a research and development tenant of said parcel, where it is found by the Planning Administrator to be aesthetically compatible with the existing and surrounding structures.
(c) FCC means the Federal Communications Commission.
(d) Major Telecommunications Facility means telecommunication towers, poles or similar structures greater than fifty feet in height, including accessory equipment such as transmitters, repeaters, microwave dishes, horns, and other types of equipment for the transmission or receipt of such signals, as well as support structures, equipment buildings and parking areas.
(e) Permittee means an individual or entity that is issued a permit to construct and maintain a Small Cell Installation within the public right-of-way.
(f) Public Right of Way means the area on, below, or above property that has been designated for use as or is used for a public roadway, highway, street, sidewalk, alley or similar purpose, and for purposes of this Chapter shall include Public Utility Easements, but only to the extent the City has the authority to permit use of the area for this purpose. The term does not include a federal interstate highway or other areas that are not within the legal jurisdiction, ownership or control of the City.
(g) RF means radio frequency.
(h) Small Cell Installation(s) means all equipment required for the operation and maintenance of so-called “small cell” wireless communications systems that transmit and/or receive signals but are not “Major Telecommunications Facilities,” including antennas, microwave dishes, power supplies, transformers, electronics, and other types of equipment required for the transmission or receipt of such signals.
(h) Wireless Communication Services means services that are provided by Wireless Telecommunication Facilities.
(i) Wireless Telecommunications Facilities means co-located Small Cell Installations, Small Cell Installations and Major Telecommunications Facilities.
(Ord. 956)
The City of Maize hereby finds:
(a) The wireless telecommunications industry has expressed interest in submitting applications to place antennas and associated equipment on new or existing structures in the City’s public rights-of-way for deployment of Small Cell Installations.
(b) The deployment of Small Cell Installations may have both positive and negative impacts on the City. Multiple Small Cell Installations within the public right-of-way can impact property values; pose a threat to the public health, safety and welfare; create traffic and pedestrian safety hazards; impact trees where proximity conflicts may require trimming of branches or require removal of roots; create visual and aesthetic blights and potential safety concerns from excessive size, height, weight, noise or lack of camouflaging which negatively impact the quality and character of the City.
(c) The City currently regulates all Wireless Telecommunications Facilities in the public rights-of-way through a zoning and permit process. The City’s existing code has not been updated to reflect current telecommunications trends or necessary legal requirements. Further, the existing code provisions were not specifically designed to address the unique legal and practical issues that arise in connection with Small Cell Installations and multiple Small Cell Installations deployed in the public rights-of-way.
(d) Federal regulations have changed substantially since the City last updated its code regarding Wireless Telecommunications Facilities. A recent FCC Order suggests that all local jurisdictions comply with various rules and recommendations on the exercise of local aesthetic, zoning, public works, and fee schedules when dealing with Small Cell Installations. Thus the City is in clear need of its own updated regulations for Small Cell Installations in the public rights-of-way given the number of anticipated applications and new legal timelines during which the City must act.
(e) The City recognizes its responsibilities under the Federal Telecommunications Act of 1996 and state law, and believes that it is acting consistent with the current state of the law in ensuring that development activity does not endanger public health, safety, or welfare. The City intends this Chapter XXIX, Article I of the City code to ensure that the installation, augmentation and relocation of Small Cell Installations in the public rights-of-way are conducted in such a manner as to lawfully balance the legal rights of applicants under the Federal Telecommunications Act and K.S.A. 66-2019 with the rights, safety, privacy, property and security of residents of the City.
(f) This chapter is not intended to, nor shall it be interpreted or applied to: (1) prohibit or effectively prohibit any Wireless Telecommunications Service provider’s ability to provide wireless services; (2) prohibit or effectively prohibit any entity’s ability to provide any interstate or intrastate telecommunications service; (3) unreasonably discriminate among providers of functionally equivalent services; (4) deny any request for authorization to place, construct or modify Wireless Telecommunications Service Facilities on the basis of environmental effects of radio frequency emissions so long as such Wireless Telecommunication Facilities comply with the FCC’s regulations concerning such emissions; (5) prohibit any collocation or modification that the City may not deny under federal or state law; or (6) otherwise authorize the City of Maize to preempt any applicable federal or state law.
(g) Based on the foregoing, the governing body of the City finds and determines that the preservation of public health, safety and welfare requires that this Chapter XXIX, Article I be passed and adopted.
(Ord. 956)
(a) Permit Required. No Small Cell Installation shall be constructed, erected, modified, mounted, attached, operated or maintained within the City on or within any public right-of-way without the issuance of a permit. No approval granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public right-of-way of the City for delivery of Wireless Communications Services or any other purpose.
(b) Application Content. All permit applications must include:
(1) Detailed site and engineering plans for each proposed Small Cell Installation, including all associated equipment necessary for its operation;
(2) A master plan showing the geographic service area for the proposed Small Cell Installation(s), and all of applicant’s existing, proposed and anticipated installations in the City;
(3) Photographs of proposed facility equipment;
(4) Visual impact analyses with photo simulations;
(5) Certification by a certified radio-frequency engineer that the Small Cell Installation will be in compliance with the FCC standards for RF emissions as they relate to the general public, including aggregate emissions for all co-located equipment;
(6) Certification that the applicant has a right under state law to install Wireless Telecommunications Facilities in the public right-of-way;
(7) Documentation demonstrating a good faith effort to locate the Small Cell Installation in accordance with the preferred provisions of this chapter and article of the code of the City;
(8) Documentation that owners of all properties within 500 feet of the proposed Small Cell Installation have been notified in writing of the proposed installation;
(9) An executed indemnification agreement as set forth in section 29-103(f) hereof;
(10) A fully completed application, on a form that will be provided to the applicant by the City.
(Ord. 956)
The City shall assess a per-installation fee of $500 per application, which can include up to five Small Cell Installations, with an additional $100 per installation after five to cover the City’s costs of processing, reviewing, evaluating, conducting a public hearing, and other activities involved in consideration of the application, and conducting oversight of the construction of the Small Cell Installation to ensure compliance with zoning requirements.
(Ord. 956)
The City may retain an independent technical consultant to assist the City in its review of the application. The reasonable cost of the review shall be paid by the applicant.
(Ord. 956)
Upon approval of the application, the Permittee shall be required to post a bond in the amount of $50,000 for each Small Cell Installation, such bond to be held and maintained during the entire period of Permittee’s operation of each Small Cell Installation in the City as a guarantee that no such installation, including any co-located equipment, exceeds or will exceed the allowable FCC limits for RF radiation exposure to the general public as determined by a qualified independent RF engineer under Section 29-108(b) of the code.
(Ord. 956)
As part of obtaining a permit to install a Small Cell Installation, Permittee shall provide an executed agreement in the form provided by the City, pursuant to which Permittee agrees to defend, hold harmless and fully indemnify the City, its officers, employees, agents, attorneys, and volunteers, from (i) any claim, action or proceeding brought against the City or its officers, employees, agents, or attorneys to attack, set aside, void, or annul any such approval of the City or (ii) a successful legal action brought against the City for loss of property value or other harm caused by the placement or operation of a Small Cell Installation. The indemnification agreement shall include, but not be limited to, damages, fees and/or costs awarded against the City, if any, and cost of suit, attorney’s fees, and other costs, liabilities and expenses incurred in connection with such proceeding whether incurred by the Permittee, the City and/or the parties initiating or bringing such proceeding. The agreement shall also include a provision obligating the Permittee to indemnify the City for all of the City’s costs, fees and damages which the City incurs in enforcing the indemnification provisions of this Section 29-107 of the code of the City.
(Ord. 956)
(a) Before a permit is issued and each year thereafter commencing on the first anniversary of the issuance of the permit, the Permittee shall submit to the City a certificate of insurance evidencing that each Small Cell Installation is covered by liability insurance in the amount of $2,000,000, naming the City as additional insured.
(b) Before a permit is issued and each year thereafter commencing on the first anniversary of the issuance of the permit, the Permittee shall submit to the City a certificate recertifying that each active Small Cell Installation has been inspected for safety and found to be in sound working condition and in compliance with all federal safety regulations concerning RF exposure limits. Annual recertification fee shall be $270 per year for each Small Cell Installation.
(c) The City shall have the right to employ a qualified RF engineer to conduct an annual random and unannounced test of the Permittee’s Small Cell Installations located within the City to certify their compliance with all FCC radio-frequency emission limits as they pertain to exposure to the general public. The reasonable cost of such tests shall be paid by the Permittee.
(d) In the event that such independent tests reveal that any Small Cell Installation owned or operated by Permittee or its Lessees, singularly or in the aggregate, is emitting RF radiation in excess of FCC exposure guidelines as they pertain to the general public, the City shall notify the Permittee and all residents living within 1500 feet of the Small Cell Installation(s) of the violation, and the Permittee shall have forty-eight (48) hours to bring the Small Cell Installation(s) into compliance. Failure to bring the Small Cell Installation(s) into compliance will result in the City having the right to require the removal of such installation(s), as the City in its sole discretion may determine is in the public interest.
(e) Any Small Cell Installation which is no longer in use shall be removed by the Permittee within 30 days of being taken out of use.
(f) Any Small Cell Installation which is not removed within 30 days after being listed as no longer in use in the annual re-certification affidavit shall be subject to a fine of $100/day until such Small Cell Installation is removed.
(g) Where such annual certificate of insurance and re-certification as required by Section 29-108(a) has not been properly or timely submitted, or equipment no longer in use has not been removed within the required 60-day period, no further applications for Small Cell Installations will be accepted by the City until such time as the annual certificate of insurance and re-certification have been submitted and all fees and fines paid.
(Ord. 956)
Any Small Cell Installation constructed, erected, modified or enhanced prior to the issuance of a site-specific permit from the City will be removed prior to the submission of any other application. No application for a Small Cell Installation will be considered, and no so-called “shot clock” for approval shall commence, while such unauthorized installations remain.
(Ord. 956)
(a) Siting Guidelines. The purpose of this section is to provide guidelines to applicants and the reviewing authority regarding the preferred locations and configurations for Small Cell Installations in the City, provided that nothing in this section shall be construed to permit a Small Cell Installation in any location that is otherwise prohibited by this Chapter XXIX, Article I of the code of the City or any other section of the code of the City.
(b) Order of preference; Location. The order of preference for the location of Small Cell Installations in the City, from most preferred to least preferred, is:
(1) Industrial zone
(2) Commercial zone
(3) Mixed commercial and residential zone
(4) Residential zone
(c) Configuration. Configuration preferences shall be:
(1) Co-located with existing wireless facilities
(2) Mounted on existing utility poles
(3) Mounted on new poles or towers
(Ord. 956)
(a) The Permittee must construct, install and operate the Small Cell Installation in strict compliance with the plans and specifications included in the application, with this Chapter XXIX, Article I, and applicable state and federal laws.
(b) Where feasible, as new technology becomes available, the Permittee shall replace larger, more visually intrusive facilities with smaller, less visually intrusive facilities, after receiving all necessary permits and approval required by the City.
(c) The Permittee shall submit and maintain current at all times basic contact and site information on a form to be supplied by the City. The Permittee shall notify the City of any changes to the information submitted within seven days of any change, including the name or legal status of the owner or operator.
(d) At all times, all required notices and signs shall be posted on the site as required by the FCC and state law, and as approved by the City. The location and dimensions of a sign bearing the emergency contact name and telephone numbers shall be posted pursuant to the approved plans.
(e) The Permittee shall maintain current at all times liability and property insurance for each Small Cell Installation in the Public Right-of-Way in the amount of $2,000,000 naming the City as an additional insured.
(f) The proposed Small Cell Installation shall have an adequate fall zone to minimize the possibility of damage or injury resulting from pole collapse or failure, ice fall or debris fall, and to avoid or minimize all other impacts upon adjoining properties.
(g) Every effort shall be made to locate Small Cell Installations no less than 1000 feet away from the Permittee’s or any lessee’s nearest other Small Cell Installation, or no closer than 200 feet from any permanent residential dwelling.
(h) Single or co-located Small Cell Installations must be mounted on an existing structure such as a utility or lighting pole that can support its weight and the weight of any existing co-located equipment. All new wires needed to service the Small Cell Installation must be located within the width of the existing structure so as to not exceed the diameter and height of the existing utility pole.
(i) All equipment not to be installed on or inside the pole must be located underground, flush to the ground, within three (3) feet of the utility pole. Each installation is to have its own dedicated power source to be installed and metered separately.
(Ord. 956)
This chapter shall apply to all Small Cell Installations and co-located Small Cell Installations in the City, and shall not apply to any Exempted Telecommunications Facility or Major Telecommunications Facility.
(Ord. 956)