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7/29/2020 - Ordinance No. 20-11024 Adding a New Article XIV to Chapter 35, to establish standards for the Construction, Maintenance and Modification of Small Cell Wireless Facilities in the Public Right-of-Way

ORDINANCE NO. 20-11024

 

AN ORDINANCE AMENDING THE CITY CODE BY ADDING A NEW ARTICLE XIV TO CHAPTER 35, TO ESTABLISH STANDARDS FOR THE CONSTRUCTION, MAINTENANCE, AND MODIFICATION OF SMALL CELL WIRELESS FACILITIES IN THE PUBLIC RIGHTS-OF-WAY, AND REPEALING ARTICLE XIII OF CHAPTER 42 PERTAINING TO REGULATION OF THE SAME SUBJECT.

BE IT ORDAINED by the Governing Body of the City of Salina, Kansas:

Section 1. Article XIII of Chapter 42 of the Salina Code is hereby repealed in its entirety.

Section 2. Article XIV of Chapter 35 of the Salina Code is hereby established to read as follows:

ARTICLE XIV. SMALL CELL FACILITIES AND WIRELESS SUPPORT STRUCTURES IN THE PUBLIC RIGHT-OF-WAY.

Sec. 35-291. Definitions.

Whenever used in this article, the following terms and their derivations shall be defined as follows:

  1. Accessory equipment means any equipment serving or being used in conjunction with a wireless facility or wireless support structure including, but not limited to, utility or transmission equipment, power supplies, generators, batteries, cables, equipment buildings, enclosures and storage sheds, shelters or similar structures.
  2. Alley means a dedicated right-of-way, other than a street, that affords a secondary means of access to abutting property.
  3. Antenna means communications equipment that transmits or receives radio electromagnetic signals in the provision of wireless service.
  4. Application means a request submitted by a provider to the city for:
    1. The construction of a new wireless support structure or new wireless facility;
    2. The substantial modification of a wireless support structure or wireless facility; or
    3. Collocation of a wireless facility or replacement of a wireless facility.
  5. Base station means a station that includes a structure that currently supports or houses an antenna, transceiver, coaxial cables, power cables or other associated equipment at a specific site that is authorized to communicate with mobile stations, generally consisting of radio transceivers, antennas, coaxial cables, power supplies and other associated electronics.“Base station” does not mean a tower or equipment associated with a tower and does not include any structure that, at the time the relevant application is filed with the city, does not support or house equipment described in this paragraph.
  6. Cantenna means a structural, weatherproof enclosure that protects an antenna. The cantenna is constructed of material that minimally attenuates the electromagnetic signal transmitted or received by the antenna. Cantennas protect antenna surfaces from weather and/or conceal antenna accessory equipment from public view.
  7. Collocation, collocate means the mounting or installation of wireless facilities on a building, structure, wireless support structure, tower, utility pole, base station or existing structure for the purposes of transmitting or receiving radio frequency signals for communication purposes.
  8. Enclosure means a cabinet, box, or shroud for antennas or accessory equipment intended to conceal its contents, prevent electrical shock to users, and protect the contents from the environment.
  9. Facility or facilities means any portion or component of the network located in, along, over, upon, under, or through the public right-of-way.
  10. Network means a wireless service provider's wireless facilities or small cell facilities, including the antenna, poles, accessory equipment, enclosures, wireless support structures, underground and aboveground fiber optic cable, wires, lines, fiber enclosures, fiber repeaters and related equipment and appurtenances, and similar facilities and appurtenances, designed, constructed or occupied for the purpose of producing, receiving, amplifying or distributing wireless services to or from locations within the city.
  11. Provider means a wireless infrastructure provider or wireless service provider.
  12. Right-of-way means only the area of real property in which the city has a dedicated or acquired right-of-way interest in the real property. It shall include the area on, below or above the present and future streets, alleys, avenues, roads, highways, parkways or boulevards dedicated or acquired as right-of-way. The term does not include easements obtained by utilities or private easements in platted subdivisions or tracts.
  13. Small cell facility means a wireless facility that meets both of the following qualifications:
    1. Each antenna is located inside an enclosure of not more than six cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of not more than six cubic feet, and
    2. Primary equipment enclosures that are no larger than 17 cubic feet in volume, or facilities comprised of such higher limits as the federal communications commission has excluded from review pursuant to 54 U.S.C. § 306108. Associated equipment may be located outside the primary equipment, and if so located, is not to be included in the calculation of equipment volume. Associated equipment includes, but is not limited to, any electric meter, concealment, telecommunications demarcation box, ground-based enclosures, back-up power systems, grounding equipment, power transfer switch, cut-off switch and vertical cable runs for the connection of power and other services.
  14. Small cell facility deployment agreement means an agreement between a wireless services provider or wireless infrastructure provider and the city for the deployment of small cell facilities on or adjacent to existing, modified, replacement or new utility poles or wireless support structures within the public right-of-way pursuant to K.S.A. 66-2019, and amendments thereto, and federal law.A “small cell facility deployment agreement” is not a franchise, franchise agreement, franchise ordinance, contract franchise or contract franchise ordinance.
  15. Small cell network means a collection of interrelated small cell facilities designed to deliver wireless service.
  16. Street means a public thoroughfare used, or intended to be used, for passage or travel by motor vehicles.
  17. Substantial modification means a proposed modification to an existing wireless support structure that will substantially change the physical dimensions of the wireless support structure under the objective standard for substantial change, established by the FCC in 47 C.F.R. § 1.40001(b)(7), as may be amended, and as applicable to facilities in the public right-of-way.
  18. Utility Pole means a structure owned or operated by a public utility as defined in K.S.A. 66-104, and amendments thereto, a municipality as defined in K.S.A. 75-6102, and amendments thereto, or an electric cooperative as defined in K.S.A. 2019 Supp. 17-4652, and amendments thereto, that is designed specifically for and used to carry lines, cables or wires for telecommunications, cable, electricity or to provide lighting
  19. Wireless facility means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including, but not limited to:
    1. Equipment associated with wireless services such as private, broadcast and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul; and
    2. Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration.

    Wireless facility does not mean any wired connections from a wireless support structure or base station to a hub or switching station.

  20. Wireless infrastructure provider means any person that builds or installs transmission equipment, wireless facilities or wireless support structures, but that is not a wireless services provider.
  21. Wireless service provider means a provider of wireless services.
  22. Wireless services means “personal wireless services” and "personal wireless service facilities" as defined in 47 U.S.C. § 332(c)(7)(C), including commercial mobile services defined in 47 U.S.C. § 332(d), provided to personal mobile communication devices through wireless facilities or any fixed or mobile wireless services provided using wireless facilities.
  23. Wireless support structure means a freestanding structure, such as a monopole, guyed or self-supporting tower or other suitable existing or alternative structure designed to support or capable of supporting wireless facilities. “Wireless support structure” shall not include any telephone or electrical utility pole or any tower used for the distribution or transmission of electrical service.

Sec. 35-292.  Applicability.

  1. This article applies to the placement of small cell facilities in the right-of-way which are otherwise authorized by a small cell facility deployment agreement and applicable law.
  2. Nothing herein shall be construed to exempt an applicant from any other applicable ordinances, rules, regulations, or other requirements of the city, including but not limited to a franchise requirement, building codes, electrical codes, and the city’s right-of-way management code.
  3. If any other applicable law, regulation or provision of this code imposes a more restrictive structural design or construction requirement, the most restrictive requirement will control.

Sec. 35-293.  Application and permit required.

  1. No person shall install, structurally modify, or change in height, dimension, or number of antenna a wireless facility in the right-of-way without having first entered into a small cell facility deployment agreement with the city and having obtained a permit as provided in this article.
  2. Maintenance or repair of existing permitted wireless facilities shall be excluded from the permitting requirement of this section.

Sec. 35-294.  Preapplication meeting.  Before submitting a permit application under this article, an applicant may contact the city manager to schedule a preapplication conference, which shall be held prior to filing the application, except as provided herein.  The purpose of the preapplication conference is to review and discuss the applicant’s specific proposal, and the provisions and requirements of this article.  The preapplication conference shall be scheduled by the city manager, at the request of an applicant, and shall be held in a timely manner, within thirty (30) days from the date of the applicant’s request. 

Sec. 35-295.  Application fee.  Each applicant seeking to obtain a permit pursuant to this article shall pay a non-refundable fee to the city in an amount determined pursuant to section 2-2.

Sec. 35-296.  Application requirements. Each application for a permit shall be filed with the city manager and shall include the following information:

  1. Site plans and structural calculations. The applicant must submit fully-dimensioned and scaled site plans, elevation drawings and structural calculations prepared, sealed, stamped, and signed by a professional engineer licensed and registered by the state of Kansas. Drawings must depict:
    1. any existing wireless facilities on a wireless support structure or utility pole, and any existing transmission equipment;
    2. the proposed utility pole or wireless support structure, and the small cell facility, with all proposed transmission equipment and other improvements; and
    3. surrounding property lines and rights-of-way, easements, existing street furniture, trees, and other infrastructure (both above-ground and underground) in the vicinity of the proposed installation.
  2. Photo simulations. For additions to existing infrastructure the applicant shall submit a photo simulation from a reasonable line-of-sight location near the proposed small cell facility site. For new infrastructure installations, the applicant shall submit photo simulations from at least three reasonable line-of-sight locations near the proposed small cell facility site. All photo simulations must be taken from the viewpoint of nearby pedestrian and vehicular traffic. The angle of photo simulation separation must be at least 90 degrees or greater and provide a full profile depiction. For both existing and new infrastructure installations, the city manager may request additional photo simulations from other line-of-sight locations if the city manager determines that additional information about the conditions in the vicinity of the proposed small cell facility site is needed in order to evaluate an application.
  3. Equipment specifications. For all components of the small cell facilities, wireless support structures, and accessory equipment depicted on the plans, the applicant must include, if applicable:
    1. The manufacturer’s name and model number;
    2. Physical dimensions including, without limitation, height, width, depth, volume and weight with mounts and other necessary hardware; and
    3. Technical renderings of all external components, including enclosures and all attachment hardware.

Sec. 35-297.  Issuance or denial of permit.

  1. The city manager shall approve, approve with conditions, or deny an application within the timeframe prescribed by applicable laws, and subject to the limitations of applicable laws. The city manager’s decision shall be based on compliance with the standards and criteria set forth in this article. Any decision to deny a permit under this section shall be made in writing and shall state the specific reasons for the denial. In the event of a denial, the city shall notify the applicant in writing of the city's final decision, supported by substantial evidence contained in a written record and issued contemporaneously.
  2. Construction may only occur after receiving the city manager’s approval of the specific application and the city’s approval of all permits of general applicability, including but not limited to any permit required by the city’s right-of-way management code.

Sec. 35-298.  Waiver of requirements due to infeasibility. The city manager, in his or her sole discretion, may waive or grant exceptions to any requirement of this article if the city manager finds that the requirement, as applied to a specific set of circumstances, is not technologically or economically feasible. Any claim of infeasibility shall be supported by substantial evidence to the satisfaction of the city manager.

Sec. 35-299.  General location criteria. Small cell facilities shall:   

  1. be placed so as not to create an adverse obstruction to pedestrian and vehicular sight lines along a street or alley;
  2. in residential areas, be placed between properties at the common property line and not in front of a house; in commercial and industrial areas, be placed at the common property line between properties whenever possible;
  3. On corner lots or through lots, be placed on the secondary street frontage if no alley exists;
  4. be placed in such a manner as to avoid material interference with existing utilities and infrastructure;
  5. if placed on a new wireless support structure, be placed equidistant from any adjacent utility poles or wireless support structures;
  6. comply, and not interfere, with the requirements of the Americans with Disabilities Act (ADA) and not obstruct, impede, or hinder usual pedestrian, bicycle, or vehicular travel, or interfere with the operation or maintenance of signal lights, signage, street lights, street furniture, fire hydrants, trees and landscaping, underground utilities, or business district maintenance;
  7. be located out of the drip-zone of street trees to prevent disturbance within the critical root zone;
  8. not cause or result in the removal of any existing street furniture, street tree, or other city infrastructure, without the express written permission of and compensation to the city;
  9. not be placed on traffic signal poles, decorative streetlight poles, or poles with decorative luminaries.

Sec. 35-300.  Obstructions. Any new wireless support structure, utility pole, or accessory equipment, and other improvements associated with the placement of small cell facilities, must not obstruct:

  1. access to any above-ground or underground infrastructure for pedestrian or traffic control signals, lighting, signage, streetlights, irrigation, parking meters, barricades or bollards, bike racks, benches, trash bins, or any other public street furniture;
  2. access to any public transportation vehicles, shelters, or other improvements at any public transportation stop, including bus stops, streetcar stops, and bike share stations;
  3. any intersection sight distances as required by the American Association of State and Highway Transportation Officials (AASHTO), latest addition adopted by the city, or as may be reasonably required by the city engineer;
  4. access to aboveground or underground infrastructure owned or operated by any public or private utility;
  5. access to any fire hydrant;
  6. access to any doors, gates, stoops or other ingress and egress points to any building appurtenant to the right-of-way;
  7. access to any fire escape; or
  8. access or right of travel along any sidewalk, pathway, trail, street or alley, by any pedestrian, bicycle, or vehicle, as applicable.

Sec. 35-301.  Maintenance and repair.

A provider shall maintain all personal property in the right-of-way associated with its small cell facilities, including, but not limited to, wireless support structures, accessory equipment and all other components of its network, in a condition that conforms to the requirements of this article. This responsibility includes, as applicable, regular maintenance, periodic re-painting, and timely repairs or equipment replacement in the event of damage. Upon notice from the city of provider’s noncompliance with this section, the provider must remedy the violations within a reasonable period of time, or the city may either repair or remove the damaged equipment at the provider’s expense.

Sec. 35-302.  Abandonment.

Any small cell facility that is not operated for a continuous period of ninety (90) days after completion of initial installation, excluding nonoperation due to a natural disaster or other unforeseeable circumstance or temporary equipment failure, shall be considered abandoned. If a small cell facility is abandoned, the provider shall notify the city within thirty (30) days of the abandoned status of such facility.  No later than ninety (90) days after any small cell facility is abandoned, a provider shall remove the abandoned facility at the provider’s sole cost and expense.

Sec. 35-303.  Alley placement preferred and encouraged.

Within the grid-street areas of the city that incorporate alleys, small cell facilities and wireless support structures are preferred by the city to be placed within the alleys. The standards and requirements imposed by section 35-305 and subsection (a) of section 35-306 shall be waived for small cell facilities placed in an alley, unless such standards or requirements are imposed by generally applicable ordinances, rules, regulations, or other requirements of the city, or unless the particular alley is located in a redevelopment area for which the city has adopted separate aesthetic standards that are in effect at the time of submission of a permit application under this article.

Sec. 35-304.  City locational preferences.

  1. Preferred locations. The city finds that certain locations and collocation configurations are preferred for the placement of small cell facilities. The order of preference for location of small cell facilities is as follows:
    1. On an existing pole, cable, or wireless support structure located within an alley right-of-way;
    2. On a new pole or wireless support structure located within an alley right-of-way;
    3. On a wireless support structure currently supporting a small cell facility located within the right-of-way;
    4. On an existing pole, cable or wireless support structure located within the street right-of-way; and
    5. On a new pole or wireless support structure located within the street right-of-way.
  2. Suggested Alternative locations. During the preapplication meeting required by section 35-294, the city manager may suggest, but shall not require, an alternate location to the proposed location of new small cell facilities, if the alternate location is within 100 feet or a distance equal to the width of the right-of-way on which the new small cell facilities are proposed, whichever is greater; provided, however, that the city manager shall not evaluate a submitted application based on the availability of other potential locations for the placement of wireless support structures or wireless facilities including, but not limited to, the option to collocate, instead of construct, a new wireless support structure or for substantial modification of a support structure.

Sec. 35-305.  Accessory equipment.

  1. Internal installation. All accessory equipment shall be installed within an existing or new utility pole or wireless support structure when technologically feasible. Any accessory equipment installed within a pole may not protrude from the pole except to the extent reasonably necessary.
  2. Conduits. All cables shall be installed inside a utility pole or wireless support structure, except that flush-mounted conduit shall be used on utility poles and wireless support structures constructed of wood.
  3. External shrouding. The antenna shall be contained in a cantenna and any associated equipment, wiring, and cabling shall be contained in the utility pole or wireless support structure or, if not feasible to install inside the utility pole or wireless support structure, in an enclosure.
  4. Electrical and data service lines to poles. Service lines for power and data must be underground in all areas where power and other utility lines are underground. Service lines are encouraged to be underground in other areas of the city whenever possible to avoid additional overhead lines. For hollow wireless support structures, underground cables and wires must transition directly into the base without external junction boxes.
  5. Sidearm or off-set installations. The furthest point of an enclosure shall not extend more than eighteen (18) inches from the utility pole or wireless support structure.
  6. Hardware attachments. All hardware attachments shall be concealed and shall not be welded onto existing equipment.
  7. Color. Unless the placement is in a location where a specific streetscape color-scheme has been established for light poles or other equipment in the right-of-way, a non-wood wireless support structure and all associated external accessory equipment shall be painted to reasonably match, using a flat “go-away” green color approved by the city that minimizes glare and visibility. Paint should be powder-coated or incorporated in the pole material. On utility poles and wireless support structures made of wood, visible attachments and hardware shall be painted a flat non-glare grey.
  8. Antennas. An antenna shall be top-mounted, unless a sidearm or off-set installation is required by the owner of an existing utility pole or wireless support structure, and concealed within a cantenna that also conceals the cable connections, antenna mount and other hardware. When such concealment within the cantenna is not feasible, the antenna and all cable should be shrouded from view. GPS antennas, if needed, must be placed within the cantenna or directly above the cantenna not to exceed six inches. The cantenna or side-mounted antenna and GPS antenna must be non-reflective and painted or otherwise reasonably colored to match the pole.
  9. Cantennas. Cantennas must be mounted directly on top of the pole, unless a sidearm or off-set installation is required by the owner of an existing utility pole or wireless support structure. A tapered transition between the upper pole and cantenna is required to shroud all cabling.
  10. Ground-mounted enclosures. Ground-mounted enclosures shall comply with all generally applicable ordinances, rules, regulations, or other requirements of the city for ground-mounted enclosures and be attached to a concrete foundation. The maximum acceptable dimensions of ground-mounted enclosures shall be thirty (30) inches wide by thirty (30) inches deep by four (4) feet high. Ground-mounted enclosures must be installed flush to the ground and must match the color of any corresponding wireless support structure. Ground-mounted accessory equipment on sidewalks must not interfere with the flow of pedestrian traffic and must comply with the Americans with Disabilities Act (ADA) in relation to required unobstructed sidewalk dimensions. A provider shall not install more than one (1) enclosure per utility pole or wireless support structure.
  11. Pole-mounted enclosures. The lowest point of any pole-mounted enclosure shall not be lower than ten (10) feet above the grade of the ground on which the pole is located. The enclosure shall be mounted flush to the pole or mounted on a standoff mount that extends no more than six (6) inches.A standoff mount must include metal shrouding to conceal the space between the shroud and the pole.

Sec. 35-306.  New and replacement poles.

  1. Pole material and style. New wireless support structures shall not be constructed of wood unless located in alleys. New wireless support structures shall be hollow metal, fiberglass or a similar composite material that is structurally designed and certified for the intended use, and generally round or octagonal, and designed for internal cabling. Providers placing new wireless support structures in designated development or redevelopment areas that have an established streetscape style and color for light poles and other poles shall coordinate with the city to match the established character, style, height and color, as is reasonably feasible.
  2. Height of poles. A new or replacement wireless support structure or utility pole shall not exceed the greater of:
    1. Thirty-five (35) feet in height, excluding the antenna, in areas where there are no wireless support structures or utility poles taller than thirty (30) feet in height above ground level and the maximum allowable height for building construction in the underlying zoning district of the adjoining property is thirty (30) feet or less; or
    2. Forty (40) feet in height, excluding the antenna, in all other areas.
  3. Height of collocation facilities. Collocation on existing utility poles or wireless support structures has no height limitation beyond the added height of the cantenna.

Section 3.  Summary of ordinance for publication.  This ordinance shall be published by the following summary:

Ordinance No. 20-11024 Summary

On July 27, 2020, the City of Salina, Kansas, passed Ordinance No. 20-11024.  The ordinance amends the Salina Code by adding a new Article XIV to Chapter 35 to establish standards for the construction, maintenance, and modification of small cell wireless facilities in the public rights-of-way and repealing Article XIII of Chapter 42 pertaining to regulation of the same subject. A complete copy of the ordinance is available at www.salina-ks.gov or in the office of the city clerk, 300 W. Ash Street, free of charge.  This summary is certified by the city attorney.

Section 4.  Effective date.  This ordinance shall be in full force and effect from and after its adoption and publication by summary once in the official city newspaper.

 

                                                                                                Introduced:     July 20, 2020

                                                                                                Adopted:         July 27, 2020

 

                                                                                                Michael L. Hoppock, Mayor

[SEAL]

ATTEST:

Cheryl Mermis, Deputy City Clerk

The publication summary set forth above is certified this ____ day of July, 2020.

______________________________

Greg A. Bengtson, City Attorney