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HomeMy WebLinkAboutORDINANCE 6009113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Ordinance: 6009 File Number: 2017-0532 SMALL CELL COMMUNICATIONS FACILITIES: AN ORDINANCE TO ENACT § 110.03 SMALL CELL FACILITIES AND NETWORKS INTO CHAPTER 110: TELECOMMUNICATION FRANCHISE, BILLPOSTING, AND SMALL CELL FACILITIES AND NETWORKS WHEREAS, the City has been approached by multiple telecommunications providers who are interested in erecting small cell facilities throughout the City to provide services to Fayetteville residents; and WHEREAS, it is necessary to balance the importance of ensuring residents have access to this important technology, the providers' interest in having a streamlined, consistent and fair procedure and fees to install and maintain the facilities, and the interest of the City and residents in responsibly managing the use of the public rights of way and minimizing the aesthetic impact of small cell facilities. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby enacts § 110.03 Small Cell Facilities and Networks in Chapter 110: Telecommunication Franchise, Billposting, and Small Cell Facilities and Networks of the Fayetteville Code as shown in Exhibit "A" attached hereto and made a part hereof. PASSED and APPROVED on 11/21/2017 Page 1 Printed on 11/27/17 Ordinance: 6009 File Number- 2017-0532 Attest: Sondra E. Smith, City Clerk Treasurer 01111111111, r R' -'f. ori �c:a 4"AYC1�1=.V C. 1LL� r f+. r u , Page 2 Printed on 11/27/17 EXHIBIT A 110.03 Small Cell Facilities and Networks (A) Definitions: As used in § 110.03, the following terms shall have the meanings set out below: (1) Administrative Review means non -discretionary evaluation of an Application by the Zoning and Development Administrator. This process is not subject to a public hearing or conditional or special review process. (2) Antenna means communications equipment that transmits or receives electromagnetic radio signals used in the provision of telecommunications services: (a) Distributed antenna system (DAS) means a network that distributes radio frequency signals and consisting of. 1. Remote communications or Antenna nodes deployed throughout a desired coverage area, each including at least one Antenna for transmission and reception; 2. A high capacity signal transport medium that is connected to a central communications hub site; and 3. Radio transceivers located at the hub's site to process or control the communications signals transmitted and received through the Antennas to provide Wireless or mobile Service within a geographic area or structure. (b) Small Cell Facility means a Telecommunications Facility that meets both of the following qualifications: 1. Each Antenna is located inside an enclosure of no more than six (6) cubic feet in volume, or in the case of an Antenna that has exposed elements, the Antenna and all of the Antenna's exposed elements could fit within an imaginary enclosure of no more than six (6) 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 FCC has excluded from review pursuant to 54 U.S.C. § 306108. Accessory Facilities may be located outside the primary equipment, and if so located, are not to be included in the calculation of equipment volume. Accessory Facilities 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. (c) Small Cell Network means a collection of interrelated Small Cell Facilities designed to deliver wireless service. (3) Applicant means any person or entity that is engaged in the business of providing wireless services or the wireless infrastructure required for wireless services. (4) Competing local exchange carrier means a telecommunications provider that has received a certificate of public convenience and necessity from the Arkansas Public Service Commission under the authority of Ark. Code Ann. § 23-17-409 and is authorized to install equipment and operate within the public rights of way or on public or private property in the City of Fayetteville. This shall include distributed antenna systems, small cell facilities and small cell networks. (5) Person means any individual, resident, citizens, business firm, corporation, partnership, governmental agency, or institution. (6) Stealth technology means systems, components and materials used in the construction of wireless communications facilities to make it compatible with the surrounding property. (7) Streets means all streets, roads, highways, alleys, rights-of-way, public utility easements, public property, public ways and air space over such streets, roads, alleys, public rights-of-way, public utility easements, public property and public ways located within the geographic limits of the city. (8) Telecommunications means the transmission, between or among points specified by the user, of information of the user's choosing without change in the form or content of the information sent and received, whether wired or wireless. (9) Telecommunications facilities or facilities means all conduits, manholes, poles, antennas, transceivers, wires, cable (including fiber optic cable), technology, and appurtenances owned or utilized by a telecommunications provider or third party infrastructure provider and located in, under or over the streets of the city or on public or private property and utilized in the provision of telecommunications services. This includes without limit, towers of all types, and base stations, including but not limited to buildings, church steeples, water towers, signs, poles, streetlights, traffic signals, or other structures that can be used as a support structure for antennas or the functional equivalent of such. It further includes all related accessory facilities associated with the site. It is a structure and facility intended for transmitting and/or receiving, wireless services, Specialized Mobile Radio (SMR), personal communications services (PCS), commercial satellite services, microwave services, radio, television, and any commercial Wireless Service not licensed by the FCC. (10) Telecommunications Provider or provider means any person, firm, corporation, partnership or other business entity, other than the city, that provides telecommunications services within or without the geographic boundaries of the city by utilizing telecommunications facilities to provide telecommunications services. This shall include competing local exchange 2 carriers or businesses that install small cell facilities on behalf of telecommunications providers. (11) Telecommunications services or services means any service delivering telecommunications by a telecommunications provider that the provider is authorized to provide under federal, state and local law, except that these terms do not include cable service as defined by the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. §521 et seq., and the Telecommunications Act of 1996. (B) Compliance with State and Federal Regulations. Applicant shall comply with all applicable state and federal regulations. Proof of compliance shall be provided upon request of the Zoning and Development Administrator. Applicant shall not be required to enter into any franchise agreement with the City. (C) Consolidated Application. An applicant may file one consolidated application for a small cell network of up to ten (10) individual small cell facilities of a substantially similar design every seven calendar days. The City may require a separate application for any small cell facilities that are not of a substantially similar design. The form of the permit Application is located on the City's website under Small Cell Facilities and Networks. (D)An applicant shall submit with the application all documentation or other evidence required by the Zoning and Development Administrator to sufficiently establish the structural soundness of proposed facilities. (E) Administrative Approval of Co -Located Facilities and Facilities Located on Existing Structures. The Zoning and Development Administrator, following an Administrative Review, may approve the following facility installations: (1) Locating on Existing Structures. Installation of facilities on an existing structure other than a tower (such as a building, light pole, electric transmission tower, water tank, or other free-standing non-residential structure) provided that the facilities do not extend any higher than five feet above the existing structure. The Zoning and Development Administrator may grant an additional variance, not to exceed ten (10) feet in height above the existing structure, when such additional height is necessary for improved functionality or safety. (a) Facilities Placed on Top of Buildings. When facilities extend above the roof height of a building on which it is mounted, every reasonable effort shall be made to conceal the facility within or behind existing architectural features to limit its visibility from public ways. If concealment behind existing architectural features is not possible, screening panels manufactured to match existing architectural features may be used. Facilities mounted on a roof shall be stepped back from the front fagade to the extent technically feasible in order to limit their impact on the building's silhouette. Screening panels, if used, shall not exceed five (5) feet in height above the existing building's roofline. 3 (b) Facilities Placed on Sides of Buildings. Facilities which are side - mounted on buildings shall be reasonably camouflaged (such as in a light fixture), shrouded, painted or constructed of materials to match the color of the building material directly behind them, and shall not extend above the roof line or extend more than two (2) feet from the fagade of the building. The Zoning and Development Administrator may grant a variance of up to three (3) additional feet from the fagade of a building when such additional clearance is necessary for improved functionality or safety. (2) Locating on Existing Tower Not Previously Approved Through § 163.13 of the U.D.C. Existing towers that do not have facilities may not add such capability without securing a conditional use permit, except as otherwise allowed by 47 U.S.C. § 1455. (3) Locating on Existing Towers Previously Approved Through § 163.13. Additional facilities may be placed upon any tower already approved through § 163.14 of the U.D.C. so long as such additional facilities would not violate any requirements of the conditional use permit or other provisions of § 163.13. (4) Replacement of Existing Structures. If installation of facilities requires the removal and replacement of an existing structure, such as a pole, the new structure shall be considered an existing structure for the purposes of this section as long as the replacement structure is the same height as the existing structure, is constructed of substantially similar material or is a camouflaged/stealth structure, and the replacement structure is located within five (5) feet of the location of the original structure. The provisions of § I I0.02(E) shall govern the standards of and procedures for construction or installation of replacement facilities within the public rights of way. The facilities may extend up to five feet above the replacement structure. The Zoning and Development Administrator may grant an additional variance, not to exceed ten (10) feet in height above the replacement structure, when such additional height is necessary for improved functionality or safety. (5) The applicant must submit a letter of intent indicating the intent and agreement to allow co -location of facilities or installation of facilities on an existing structure. (6) If proposed facilities are not or cannot be adequately camouflaged, the City may require the installation of new stealth facilities. (7) Any disturbance of City infrastructure (such as, but not limited to, streets, sidewalks, and utilities) shall be repaired and restored by the applicant at its expense and to a condition at least as good as that existing before the work causing such disturbance was commenced. (8) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $250.00 for each facility co -located or installed on an existing structure in the public rights-of-way. L, (9) Variances. In order to receive a variance under this subsection, an applicant must show that strict enforcement would make it difficult to provide service due to circumstances unique to the facility under consideration (e.g., topographical challenges or line of sight issues) and demonstrate that the granting of the variance will be in keeping with the spirit and intent of this ordinance. (F) Administrative Approval of New Facilities in Public Rights of Way. Providers proposing the construction or installation of new facilities in the public rights of way (specifically excluding the replacement of existing structures) shall comply with following requirements: (1) Construction Maintenance. The provisions of § 110.02(E), with the exception of §§ I I0.02(E)(3) and (E)(10), shall govern the process of approval for the construction or installation of any new facilities within the public rights of way. (2) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $50.00 for each new facility located in the public right of way. (3) Height Limitations. New facilities placed by the provider in public rights of way are permitted to be a maximum height of no more than ten (10) feet above the median height of other telecommunications facilities in the block for the proposed location, but in no event taller than thirty (30) feet above grade for residential and local streets, forty (40) feet for collector streets, or fifty (50) feet for arterial streets. The Zoning and Development Administrator may grant a variance not to exceed ten (10) additional feet when such additional height is necessary for improved functionality or safety. In order to receive a variance under this subsection, an applicant must also show that strict enforcement would make it difficult to provide services due to circumstances unique to the facility under consideration (e.g., topographical challenges or line of sight issues) and demonstrate that the granting of the variance will be in keeping with the spirit and intent of this ordinance. (4) Camouflaging or Stealth Technology Required. New facilities shall be designed to be camouflaged to the greatest extent reasonably possible including, but not limited to, use of compatible building materials and colors, incorporation within street lights, screening, landscaping, and placement within trees. All antenna arrays, cables, and other accessories used for providing the services shall not be obtrusive or noticeably visible. The Zoning and Development Administrator may approve the installation of a standard utility pole in areas where such installation will not degrade the streetscape but any facilities shall be camouflaged to the greatest extent reasonably possible. Camouflaging and stealth technology shall be required in all residential areas, improvement districts (including, but not limited to, the Dickson Street area and College Avenue improvement corridor), and any area in which utilities have been installed or relocated underground. E Understanding that new technologies are anticipated to change the components of telecommunications facilities, the Administrator may determine if a telecommunications facility or component of a telecommunications facility is designed to be stealth. (5) Fall Zone. The minimum distance from the base of any facility to any residential dwelling unit shall be the lower height or required setback, whichever is greater, unless all persons owning said residence or the land on which said residences are located consent in a signed writing to the construction of said facility. This setback is considered a "fall zone." In the event that an existing facility is proposed as a mount for the provider's equipment, a fall zone shall not be required. (6) Distance between new facilities. New non -camouflaged or non -stealth facilities shall be spaced a minimum of five hundred feet (500') from any other new non -camouflaged or non -stealth facility approved under subsection (F). New camouflaged facilities or new facilities utilizing stealth technology to fit within the streetscape (e.g., incorporated within a street light) shall not be subject to this distance requirement. (7) Information Required to Process Requests for New Facilities. (a) Provide a map of the geographic area that your project will serve; (b) Provide a map that shows other existing facilities that are used by the telecommunications provider who is making the application; (c) Provide a map that shows other potential standalone locations for your facility that have been explored; (d) Provide a scaled site plan containing information showing the property boundaries, proposed facility, existing land use, surrounding land uses and zoning, access road(s) location and surface material, existing and proposed structures and topography.; (e) Describe why the proposed location is superior, from a community perspective, to other potential locations. Factors to consider in the community perspective should include: visual aspects, setbacks, and proximity of single-family residences; (f) Describe your efforts to install your facility on existing structures. The applicant should demonstrate a good faith effort to locate facilities on existing structures and/or co -locate with other carriers. The city may deny a request to construct or install a new structure by an applicant that has not demonstrated a good faith effort with respect to this requirement. (g) Describe whether you will or will not accommodate equipment of other telecommunications providers that could co -locate on your facility. Describe how such accommodation will impact both your pole and your ground mounted facilities. Provide documentation of your provider's willingness or unwillingness to accommodate other providers who may be able to co -locate on your facility. Cel (G)Application Time Frame. A final decision shall be issued for applications for facilities under subsections (E) and (F) within 60 calendar days subject to the following: (1) The City shall supply written notice to the Applicant within thirty days of receipt of an Application clearly and specifically delineating any missing documents or information. (2) Applicant shall submit any supplemental documentation and information to the City. (3) City shall then have up to ten (10) calendar days to notify Applicant that the supplemental documentation or information satisfies the City's request. (4) Second or subsequent notices may not specify missing documents or information that were not identified in the original notice of incompleteness. (5) This timeframe shall be tolled in cases in which the City determines that the application is incomplete. This timeframe may also be tolled by mutual agreement of the Applicant and City. (H)New Structures on Private Property. Telecommunications providers proposing the construction or installation of new poles or towers on privately owned property in the City shall comply with the provisions of § 163.13 Wireless Communications Facilities and shall obtain a conditional use permit. (I) New Facilities on Public Property. The City of Fayetteville will actively market its own property and existing facilities as suitable co -location sites. Applications for new facilities on public property shall be subject to the Administrative Review process. An annual lease amount should be charged according to the fair market value of the location. In cases in which the company no longer needs the facility, the city may require it to be removed. Applicants may be required to provide co -location space for city -owned facilities. For purposes of this subsection, public property shall not include any public right of way or structures in any public right of way. Small cell facilities installed in the public right of way or on structures in the public right of way shall pay only the fees set forth in subsection (E) and shall not be charged additional fees under this subsection. (J) Permit Expiration. Permits issued for the construction or installation of any telecommunication facilities under this chapter shall expire after a period of six (6) months unless construction or installation of the permitted facility has been initiated. (K)Appeals. An Applicant may appeal to the City Council a decision or interpretation made in the Administrative Review process by the Zoning and Development Administrator. Appeals shall follow the procedure set forth in Section 155.02 of the Unified Development Code. Pedestrian access and safety. All facilities shall be installed in such a manner not to impede, restrict, or adversely impact pedestrian or vehicular safety or convenience, or violate any provision of the Americans with Disabilities Act. (L) Emergency removal or relocation of facilities. The City retains the right to cut or move any facility located within its rights-of-way as the City, in its sole discretion, may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. City shall notify the provider after cutting or removing any facility within its rights-of-way. If circumstances permit, the City shall notify the 7 provider in advance of any cutting or removal and give the provider an opportunity to move its own facilities. j_ City of Fayetteville, Arkansas 113 West Mountain Street F k Fayetteville, AR 72701 i. (479) 575-8323 L' Text File File Number: 2017-0532 Agenda Date: 11/21/2017 Version: 1 Status: Passed In Control: City Council Meeting File Type: Ordinance Agenda Number: B. 1 SMALL CELL COMMUNICATIONS FACILITIES: AN ORDINANCE TO ENACT § 110.03 SMALL CELL FACILITIES AND NETWORKS INTO CHAPTER 110: TELECOMMUNICATION FRANCHISE, BILLPOSTING, AND SMALL CELL FACILITIES AND NETWORKS WHEREAS, the City has been approached by multiple telecommunications providers who are interested in erecting small cell facilities throughout the City to provide services to Fayetteville residents; and WHEREAS, it is necessary to balance the importance of ensuring residents have access to this important technology, the providers' interest in having a streamlined, consistent and fair procedure and fees to install and maintain the facilities, and the interest of the City and residents in responsibly managing the use of the public rights of way and minimizing the aesthetic impact of small cell facilities. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby enacts § 110.03 Small Cell Facilities and Networks in Chapter 110: Telecommunication Franchise, Billposting, and Small Cell Facilities and Networks of the Fayetteville Code as shown in Exhibit "A" attached hereto and made a part hereof. City of Fayetteville, Arkansas Page 1 Printed on 11/27/2017 Susan Norton Submitted By City of Fayetteville Staff Review Form 2017-0532 Legistar File ID 10/3/2017 City Council Meeting Date - Agenda Item Only N/A for Non -Agenda Item 9/18/2017 MAYORS ADMIN (015) Submitted Date Division / Department Action Recommendation: The Administration recommends approval of the attached ordinance for the implementation process for small cell communications facilities within the City of Fayetteville. Budget Impact: Account Number Fund Project Number Project Title Budgeted Item? No Current Budget $ Funds Obligated $ Current Balance $ - Does item have a cost? NA Item Cost Budget Adjustment Attached? NA Budget Adjustment Remaining Budget $ - V20140710 Previous Ordinance or Resolution # Original Contract Number: Approval Date: Comments: CITY OF FAYETTEVILLE W49, k ARKANSAS MEETING OF OCTOBER 3, 2017 TO: Mayor and City Council THRU: Don Marr, Chief of Staff FROM: Susan Norton, Communications Director DATE: 9/18/17 SUBJECT: Small Cell Ordinance RECOMMENDATION: CITY COUNCIL MEMO The Mayor's Administration recommends approval of the Small Cell Facilities Ordinance. An internal team made up of Administration, Development Services, Information Technology staff and City Attorney's office spent several months reviewing recently enacted ordinances and statutes from a number of cities and states across the region, looking for what would be the best fit for Fayetteville. BACKGROUND: Over the past several months, the City has been approached by at least 5 providers who are interested in erecting small cell facilities to provide telecommunications services to the citizens of Fayetteville. City staff have met with these providers to review draft language for the ordinance that we now propose. DISCUSSION: There are four primary issues to be considered as we implement this new technology in our city: 1. Providing a streamlined application window that enables providers to proceed to implementation while creating procedures for existing staff to establish criteria for review and a process to facilitate approvals. 2. Ensuring that the city's right-of-way management remains with the city. 3. Ensuring that the aesthetics of the small cell facilities are consistent with city design principles and do not clutter the landscape. 4. Coming up with fair and reasonable application and annual lease fees. We ultimately chose an ordinance from Overland Park, Kansas as our model and then the City Attorney's office helped craft the language to fit within our existing code. Some issues we found needed to be addressed with respect to the types of technologies that may be implemented, including but not limited to: types of new pole installations (standard wood poles or stealth, such as facilities hidden within lightpoles); types of structures that may be attached to city owned assets (traffic signals) or utility company Mailing Address: 113 W. Mountain Street www.fayetteville-ar.gov Fayetteville, AR 72701 poles and how they may be camouflaged; both ensuring and limiting distances between licensees or pole operators so the installations would not be crowded nor would they impede equal opportunity for the carriers to support their networks; and "pole standards," to help maintain consistency in attachments. We recognize that there are certain technologies that should have access to the public rights of way but can not be required to enter into a franchise agreement, which is why we established this new section of code 110.03 Small Cell Facilities and Networks. BUDGET/STAFF IMPACT: None 1'{ l .i HE [a t_)�R�L _'\-i13I: £i 11, ,201 i CC EXHIBIT A 110.03 Small Cell Facilities and Networks (A) Definitions: As used in § 110.03, the following terms shall have the meanings set out below: (1) Administrative Review means non -discretionary evaluation of an Application by the Zoning and Development Administrator. This process is not subject to a public hearing or conditional or special review process. (2) Antenna means communications equipment that transmits or receives electromagnetic radio signals used in the provision of telecommunications services: (a) Distributed antenna system (DAS) means a network that distributes radio frequency signals and consisting of - 1. f1. Remote communications or Antenna nodes deployed throughout a desired coverage area, each including at least one Antenna for transmission and reception; 2. A high capacity signal transport medium that is connected to a central communications hub site; and 3. Radio transceivers located at the hub's site to process or control the communications signals transmitted and received through the Antennas to provide Wireless or mobile Service within a geographic area or structure. (b) Small Cell Facility means a Telecommunications Facility that meets both of the following qualifications: Each Antenna is located inside an enclosure of no more than six (6) cubic feet in volume, or in the case of an Antenna that has exposed elements, the Antenna and all of the Antenna's exposed elements could fit within an imaginary enclosure of no more than six (6) 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 FCC has excluded from review pursuant to 54 U.S.C. § 306108. Accessory Facilities may be located outside the primary equipment, and if so located, are not to be included in the calculation of equipment volume. Accessory Facilities 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. (c) Small Cell Network means a collection of interrelated Small Cell Facilities designed to deliver wireless service. (3) Applicant means any person or entity that is engaged in the business of providing wireless services or the wireless infrastructure required for wireless services. (4) Competing local exchange carrier means a telecommunications provider that has received a certificate of public convenience and necessity from the Arkansas Public Service Commission under the authority of Ark. Code Ann. § 23-17-409 and is authorized to install equipment and operate within the public rights of way or on public or private property in the City of Fayetteville. This shall include distributed antenna systems, small cell facilities and small cell networks. (5) Person means any individual, resident, citizens, business firm, corporation, partnership, governmental agency, or institution. (6) Stealth technology means systems, components and materials used in the construction of wireless communications facilities to make it compatible with the surrounding property. (7) Streets means all streets, roads, highways, alleys, rights-of-way, public utility easements, public property, public ways and air space over such streets, roads, alleys, public rights-of-way, public utility easements, public property and public ways located within the geographic limits of the city. (8) Telecommunications means the transmission, between or among points specified by the user, of information of the user's choosing without change in the form or content of the information sent and received, whether wired or wireless. (9) Telecommunications facilities or facilities means all conduits, manholes, poles, antennas, transceivers, wires, cable (including fiber optic cable), technology, and appurtenances owned or utilized by a telecommunications provider or third party infrastructure provider and located in, under or over the streets of the city or on public or private property and utilized in the provision of telecommunications services. This includes without limit, towers of all types, and base stations, including but not limited to buildings, church steeples, water towers, signs, poles, streetlights, traffic signals, or other structures that can be used as a support structure for antennas or the functional equivalent of such. It further includes all related accessory facilities associated with the site. It is a structure and facility intended for transmitting and/or receiving, wireless services, Specialized Mobile Radio (SMR), personal communications services (PCS), commercial satellite services, microwave services, radio, television, and any commercial Wireless Service not licensed by the FCC. (10) Telecommunications Provider or provider means any person, firm, corporation, partnership or other business entity, other than the city, that provides telecommunications services within or without the geographic 2 boundaries of the city by utilizing telecommunications facilities to provide telecommunications services. This shall include competing local exchange carriers or businesses that install small cell facilities on behalf of telecommunications providers. (11) Telecommunications services or services means any service delivering telecommunications by a telecommunications provider that the provider is authorized to provide under federal, state and local law, except that these terms do not include cable service as defined by the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. §521 et seq., and the Telecommunications Act of 1996. (B) Compliance with State and Federal Regulations. Applicant shall comply with all applicable state and federal regulations. Proof of compliance shall be provided upon request of the Zoning and Development Administrator. Applicant shall not be required to enter into any franchise agreement with the City. (C) Consolidated Application. An applicant may file one consolidated application for a small cell network of up to ten (10) individual small cell facilities of a substantially similar design every seven calendar days. The City may require a separate application for any small cell facilities that are not of a substantially similar design. The form of the permit Application is located on the City's website under Small Cell Facilities and Networks. (D) An applicant shall submit with the application all documentation or other evidence required by the Zoning and Development Administrator to sufficiently establish the structural soundness of proposed facilities. (E) Administrative Approval of Co -Located Facilities and Facilities Located on Existing Structures. The Zoning and Development Administrator, following an Administrative Review, may approve the following facility installations: (1) Locating on Existing Structures. Installation of facilities on an existing structure other than a tower (such as a building, light pole, electric transmission tower, water tank, or other free-standing non-residential structure) provided that the facilities do not extend any higher than five feet above the existing structure. The Zoning and Development Administrator may grant an additional variance, not to exceed ten (10) feet in height above the existing structure, when such additional height is necessary for improved functionality or safety. (a) Facilities Placed on Top of Buildings. When facilities extend above the roof height of a building on which it is mounted, every effort shall be made to conceal the facility within or behind existing architectural features to limit its visibility from public ways. If concealment behind existing architectural features is not possible, screening panels manufactured to match existing architectural features may be used. Facilities mounted on a roof shall be stepped back from the front facade to the extent technically feasible in order to limit their impact 3 on the building's silhouette. Screening panels, if used, shall not exceed five (5) feet in height above the existing building's roofline. (b) Facilities Placed on Sides of Buildings. Facilities which are side - mounted on buildings shall be camouflaged (such as in a light fixture), shrouded, painted or constructed of materials to match the color of the building material directly behind them, and shall not extend above the roof line or extend more than two (2) feet from the facade of the building. The Zoning and Development Administrator may grant a variance of up to three (3) additional feet from the facade of a building when such additional clearance is necessary for improved functionality or safety. (2) Locating on Existing Tower Not Previously Approved Through § 163.13 of the U.D.C. Existing towers that do not have facilities may not add such capability without securing a conditional use permit, except as otherwise allowed by 47 U.S.C. § 1455. (3) Locating on Existing Towers Previously Approved Through § 163.13. Additional facilities may be placed upon any tower already approved through § 163.14 of the U.D.C. so long as such additional facilities would not violate any requirements of the conditional use permit or other provisions of § 163.13. (4) Replacement of Existing Structures. If installation of facilities requires the removal and replacement of an existing structure, such as a pole, the new structure shall be considered an existing structure for the purposes of this section as long as the replacement structure is the same height as the existing structure, is constructed of substantially similar material or is a camouflaged/stealth structure, and the replacement structure is located within five (5) feet of the location of the original structure. The provisions of § 110.02(E) shall govern the standards of and procedures for construction or installation of replacement facilities within the public rights of way. The facilities may extend up to five feet above the replacement structure. The Zoning and Development Administrator may grant an additional variance, not to exceed ten (10) feet in height above the replacement structure, when such additional height is necessary for improved functionality or safety. (5) The applicant must submit a letter of intent indicating the intent and agreement to allow co -location of facilities or installation of facilities on an existing structure. (6) If proposed facilities are not or cannot be adequately camouflaged, the City may require the installation of new stealth facilities. (7) Any disturbance of City infrastructure (such as, but not limited to, streets, sidewalks, and utilities) shall be repaired and restored by the applicant at its expense and to a condition at least as good as that existing before the work causing such disturbance was commenced. (8) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the C! amount of $250.00 for each facility co-located or installed on an existing structure in the public rights-of-way. If the Provider is installing its own fiber optic technology to a particular location and does not otherwise have a City franchise to do so, or does not pay franchise fees to the City pursuant to another agreement, the Provider shall also provide the City with four (4) dark pairs of fiber that the City may use for a public purpose. (9) Variances. In order to receive a variance under this subsection, an applicant must show that strict enforcement would make it difficult to provide service due to circumstances unique to the facility under consideration (e.g., topographical challenges or line of sight issues) and demonstrate that the granting of the variance will be in keeping with the spirit and intent of this ordinance. (F) Administrative Approval of New Facilities in Public Rights of Way. Providers proposing the construction or installation of new facilities in the public rights of way (specifically excluding the replacement of existing structures) shall comply with following requirements: (1) Construction Maintenance. The provisions of § 110.02(E), with the exception of §§ I I0.02(E)(3) and (E)(10), shall govern the process of approval for the construction or installation of any new facilities within the public rights of way. (2) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $50.00 for each new facility located in the public right of way. If the Provider is installing its own fiber optic technology to a particular location and does not otherwise have a City franchise to do so, or does not pay franchise fees to the City pursuant to another agreement, the Provider shall also provide the City with four (4) dark pairs of fiber that the City may use for a public purpose. (3) Height Limitations. New facilities placed by the provider in public rights of way are permitted to be a maximum height of no more than ten (10) feet above the median height of other telecommunications facilities in the block for the proposed location, but in no event taller than thirty (30) feet above grade for residential and local streets, forty (40) feet for collector streets, or fifty (50) feet for arterial streets. The Zoning and Development Administrator may grant a variance not to exceed ten (10) additional feet when such additional height is necessary for improved functionality or safety. In order to receive a variance under this subsection, an applicant must also show that strict enforcement would make it difficult to provide services due to circumstances unique to the facility under consideration (e.g., topographical challenges or line of sight issues) and demonstrate that the granting of the variance will be in keeping with the spirit and intent of this ordinance. (4) Camouflaging or Stealth Technology Required. New facilities shall be designed to be camouflaged to the greatest extent possible including, but not limited to, use of compatible building materials and colors, incorporation 5 within street lights, screening, landscaping, and placement within trees. All antenna arrays, cables, and other accessories used for providing the services shall not be obtrusive or noticeably visible. The Zoning and Development Administrator may approve the installation of a standard utility pole in areas where such installation will not degrade the streetscape but any facilities shall be camouflaged to the greatest extent possible. Camouflaging and stealth technology shall be required in all residential areas, improvement districts (including, but not limited to, the Dickson Street area and College Avenue improvement corridor), and any area in which utilities have been installed or relocated underground. Understanding that new technologies are anticipated to change the components of telecommunications facilities, the Administrator may determine if a telecommunications facility or component of a telecommunications facility is designed to be stealth. (5) Fall Zone. The minimum distance from the base of any facility to any residential dwelling unit shall be the lower height or required setback, whichever is greater, unless all persons owning said residence or the land on which said residences are located consent in a signed writing to the construction of said facility. This setback is considered a "fall zone." In the event that an existing facility is proposed as a mount for the provider's equipment, a fall zone shall not be required. (6) Distance between new facilities. New non -camouflaged or non -stealth facilities shall be spaced a minimum of five hundred feet (500') from any other new non -camouflaged or non -stealth facility approved under subsection (F). New camouflaged facilities or new facilities utilizing stealth technology to fit within the streetscape (e.g., incorporated within a street light) shall not be subject to this distance requirement. (7) Information Required to Process Requests for New Facilities. (a) Provide a map of the geographic area that your project will serve; (b) Provide a map that shows other existing facilities that are used by the telecommunications provider who is making the application; (c) Provide a map that shows other potential standalone locations for your facility that have been explored; (d) Provide a scaled site plan containing information showing the property boundaries, proposed facility, existing land use, surrounding land uses and zoning, access road(s) location and surface material, existing and proposed structures and topography.; (e) Describe why the proposed location is superior, from a community perspective, to other potential locations. Factors to consider in the community perspective should include: visual aspects, setbacks, and proximity of single-family residences; (f) Describe your efforts to install your facility on existing structures. The applicant should demonstrate a good faith effort to locate facilities on existing structures and/or co -locate with other carriers. The city may deny a request to construct or install a new structure by an applicant :1 that has not demonstrated a good faith effort with respect to this requirement. (g) Describe whether you will or will not accommodate equipment of other telecommunications providers that could co -locate on your facility. Describe how such accommodation will impact both your pole and your ground mounted facilities. Provide documentation of your provider's willingness or unwillingness to accommodate other providers who may be able to co -locate on your facility. (G) Application Time Frame. A final decision shall be issued for applications for facilities under subsections (E) and (F) within 60 calendar days subject to the following: (1) The City shall supply written notice to the Applicant within thirty days of receipt of an Application clearly and specifically delineating any missing documents or information. (2) Applicant shall submit any supplemental documentation and information to the City. (3) City shall then have up to ten (10) calendar days to notify Applicant that the supplemental documentation or information satisfies the City's request. (4) Second or subsequent notices may not specify missing documents or information that were not identified in the original notice of incompleteness. (5) This timeframe shall be tolled in cases in which the City determines that the application is incomplete. This timeframe may also be tolled by mutual agreement of the Applicant and City. (H)New Structures on Private Property. Telecommunications providers proposing the construction or installation of new poles or towers on privately owned property in the City shall comply with the provisions of § 163.13 Wireless Communications Facilities and shall obtain a conditional use permit. (I) New Facilities on Public Property. The City of Fayetteville will actively market its own property and existing facilities as suitable co -location sites. Applications for new facilities on public property shall be subject to the Administrative Review process. An annual lease amount should be charged according to the fair market value of the location. In cases in which the company no longer needs the facility, the city may require it to be removed. Applicants may be required to provide co -location space for city -owned facilities. For purposes of this subsection, public property shall not include any public right of way or structures in any public right of way. Small cell facilities installed in the public right of way or on structures in the public right of way shall pay only the fees set forth in subsection (E) and shall not be charged additional fees under this subsection. (J) Permit Expiration. Permits issued for the construction or installation of any telecommunication facilities under this chapter shall expire after a period of six (6) months unless construction or installation of the permitted facility has been initiated. (K) Appeals. An Applicant may appeal to the City Council a decision or interpretation made in the Administrative Review process by the Zoning and Development Administrator. Appeals shall follow the procedure set forth in Section 155.02 of the Unified Development Code. Pedestrian access and safety. All facilities shall be installed in such a manner not to impede, restrict, or adversely impact pedestrian or 7 vehicular safety or convenience, or violate any provision of the Americans with Disabilities Act. (L) Emergency removal or relocation of facilities. The City retains the right to cut or move any facility located within its rights-of-way as the City, in its sole discretion, may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. City shall notify the provider after cutting or removing any facility within its rights-of-way. If circumstances permit, the City shall notify the provider in advance of any cutting or removal and give the provider an opportunity to move its own facilities. OFFICE OF THE CI'T'Y ATTORNEY a�� X , C,4�OA DEPARTMENTAL CORRESPONDENCE TO: Mayor Jordan City Council FROM: Blake Pennington, Assistant City Attorney DATE: November 14, 2017 Kit Williams City Attorney Blake Pennington Assistant City Attorney Rhonda Lynch Paralegal RE: Small Cell Facilities ordinance - Administration Recommendation Based on the comments received from the interested providers, the Administration recommends adopting the following changes: 1. The addition of "to the extent technically feasible" to (E)(1)(a) regarding the step -back requirement for facilities placed on top of buildings. The Administration recognizes that technical feasibility may play a role in the placement of these facilities on the top of buildings. 2. Replace the last sentence in (E)(2) with "except as otherwise allowed by 47 U.S.C. §1455." The intent of the last sentence is similar to but not exactly the same as the "substantial modification" standard set by federal law. It makes sense to align with the federal standard on this. 3. Renumber the existing (F)(8) to (G). Since this will apply to both (E)and (F), it should not have been included in (F). 4. Insert "not" in the existing (F)(8)(d), which would be the new (G)(4). This was an oversight in the initial drafting. 5. The providers are concerned about squatters claiming sites without having any intent to deploy. To address this, the Administration recommends adopting a permit expiration of 120 days if installation or construction has not been initiated. EXHIBIT A 110.03 Small Cell Facilities and Networks (A)Definitions: As used in § 110.03, the following terms shall have the meanings set out below: (1) Administrative Review means non -discretionary evaluation of an Application by the Zoning and Development Administrator. This process is not subject to a public hearing or conditional or special review process. (2) Antenna means communications equipment that transmits or receives electromagnetic radio signals used in the provision of telecommunications services: (a) Distributed antenna system (DAS) means a network that distributes radio frequency signals and consisting of: 1. Remote communications or Antenna nodes deployed throughout a desired coverage area, each including at least one Antenna for transmission and reception; 2, A high capacity signal transport medium that is connected to a central communications hub site; and 3. Radio transceivers located at the hub's site to process or control the communications signals transmitted and received through the Antennas to provide Wireless or mobile Service within a geographic area or structure. (b) Small Cell Facility means a Telecommunications Facility that meets both of the following qualifications: 1. Each Antenna is located inside an enclosure of no more than six (6) cubic feet in volume, or in the case of an Antenna that has exposed elements, the Antenna and all of the Antenna's exposed elements could fit within an imaginary enclosure of no more than six (6) 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 FCC has excluded from review pursuant to 54 U.S.C. § 306108. Accessory Facilities may be located outside the primary equipment, and if so located, are not to be included in the calculation of equipment volume. Accessory Facilities 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. (c) Small Cell Network means a collection of interrelated Small Cell Facilities designed to deliver wireless service. (3) Applicant means any person or entity that is engaged in the business of providing wireless services or the wireless infrastructure required for wireless services. (4) Competing local exchange carrier means a telecommunications provider that has received a certificate of public convenience and necessity from the Arkansas Public Service Commission under the authority of Ark. Code Ann. § 23-17-409 and is authorized to install equipment and operate within the public rights of way or on public or private property in the City of Fayetteville. This shall include distributed antenna systems, small cell facilities and small cell networks. (5) Person means any individual, resident, citizens, business Firm, corporation, partnership, governmental agency, or institution. (6) Stealth technology means systems, components and materials used in the construction of wireless communications facilities to make it compatible with the surrounding property. (7) Streets means all streets, roads, highways, alleys, rights-of-way, public utility easements, public property, public ways and air space over such streets, roads, alleys, public rights-of-way, public utility easements, public property and public ways located within the geographic limits of the city. (8) Telecommunications means the transmission, between or among points specified by the user, of information of the user's choosing without change in the form or content of the information sent and received, whether wired or wireless. (9) Telecommunications facilities or facilities means all conduits, manholes, poles, antennas, transceivers, wires, cable (including fiber optic cable), technology, and appurtenances owned or utilized by a telecommunications provider or third party infrastructure provider and located in, under or over the streets of the city or on public or private property and utilized in the provision of telecommunications services. This includes without limit, towers of all types, and base stations, including but not limited to buildings, church steeples, water towers, signs, poles, streetlights, traffic signals, or other structures that can be used as a support structure for antennas or the functional equivalent of such. It further includes all related accessory facilities associated with the site. It is a structure and facility intended for transmitting and/or receiving, wireless services, Specialized Mobile Radio (SMR), personal communications services (PCS), commercial satellite services, microwave services, radio, television, and any commercial Wireless Service not licensed by the FCC. (10) Telecommunications Provider or provider means any person, firm, corporation, partnership or other business entity, other than the city, that provides telecommunications services within or without the geographic boundaries of the city by utilizing telecommunications facilities to provide telecommunications services. This shall include competing local exchange carriers or businesses that install small cell facilities on behalf of telecommunications providers. (11) Telecommunications services or services means any service delivering telecommunications by a telecommunications provider that the provider is authorized to provide under federal, state and local law, except that these terms do not include cable service as defined by the Cable Communications Policy Act of 1984, as amended by the Cable "Television Consumer Protection and Competition Act of 1992, 47 U.S.C. §521 et seq., and the Telecommunications Act of 1996. (B) Compliance with State and Federal Regulations. Applicant shall comply with all applicable state and federal regulations. Proof of compliance shall be provided upon request of the Zoning and Development Administrator. Applicant shall not be required to enter into any franchise agreement with the City. (C) Consolidated Application. An applicant may file one consolidated application for a small cell network of up to ten (10) individual small cell facilities of a substantially similar design every seven calendar days. The City may require a separate application for any small cell facilities that are not of a substantially similar design. The form of the permit Application is located on the City's website under Small Cell Facilities and Networks. (D) An applicant shall submit with the application all documentation or other evidence required by the Zoning and Development Administrator to sufficiently establish the structural soundness of proposed facilities. (E) Administrative Approval of Co-Located Facilities and Facilities Located on Existing Structures. The Zoning and Development Administrator, following an Administrative Review, may approve the following facility installations: (l) Locating on Existing Structures. Installation of facilities on an existing structure other than a tower (such as a building, light pole, electric transmission tower, water tank, or other free-standing non-residential structure) provided that the facilities do not extend any higher than five feet above the existing structure. The Zoning and Development Administrator may grant an additional variance, not to exceed ten (10) feet in height above the existing structure, when such additional height is necessary for improved Functionality or safety. (a) Facilities Placed on Top of Buildings. When facilities extend above the roof height of a building on which it is mounted, every effort shall be made to conceal the facility within or behind existing architectural features to limit its visibility from public ways, If concealment behind existing architectural Features is not possible, screening panels manufactured to match existing architectural features may be used. Facilities mounted on a roof shall be stepped back from the front fagade lty,tlle bEvlyi lu lt}liuttll� li iLsiblc in order to limit their impact on the building's silhouette. Screening panels, if used, shall not exceed five (5) feet in height above the existing building's roolline. (b) Facilities Placed on Sides of Buildings. Facilities which are side - mounted on buildings shall be camouflaged (such as in a light fixture), shrouded, painted or constructed of materials to match the color or the building material directly behind them, and shall not extend above the roof line or extend more than two (2) feet from the fapade of the building. The Zoning and Development Administrator may grant a variance of up to three (3) additional feet from the fagade of a building when such additional clearance is necessary For improved functionality or safety. (2) Locating on Existing Tower Not Previously Approved "through § 163.13 of the U.D.C. Existing towers that do not have facilities may not add such capability without securing a conditional use permit, es,;lpt_as otkctwis�! 1�3u�vetlb� �7li.!�L.,_�id55-:1rrte€rasassv-�-r�ph�*s�.b-ter-ssearittsr�asstrn��. at•thesa ertglatturdria thetitttt 6�lSiae�tweazwtltra:rtettnas•$ itt� �rlts�v�cl< (3) Locating on Existing Towers Previously Approved Through §163.13. Additional facilities may be placed upon any tower already approved through § 163.14 of the U.D.C. so long as such additional facilities would not violate any requirements of the conditional use permit or other provisions of § 163.13. (4) Replacement of Existing Structures. IF installation of facilities requires the removal and replacement of an existing structure, such as a pole, the new structure shall be considered an existing structure for the purposes oFthis section as long as the replacement structure is the same height as the existing structure, is constructed of substantially similar material or is a camouflaged/stealth structure, and the replacement structure is located within five (5) feet of the location of the original structure. The provisions of § 110.02(E) shall govern the standards of and procedures for construction or installation of replacement facilities within the public rights of way. The facilities may extend up to five feet above the replacement structure. The Zoning and Development Administrator may grant an additional variance, not to exceed ten (10) feet in height above the replacement structure, when such additional height is necessary for improved functionality or safety. (5) The applicant must submit a letter of intent indicating the intent and agreement to allow co -location of facilities or installation of facilities on an existing structure. (6) If proposed facilities are not or cannot be adequately camouflaged, the City may require the installation of new stealth facilities. (7) Any disturbance of City infrastructure (such as, but not limited to, streets, sidewalks, and utilities) shall be repaired and restored by the applicant at its expense and to a condition at least as good as that existing before the work causing such disturbance was commenced. (8) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $250.00 for each facility co -located or installed on an existing structure in the public rights-oF-way. If the Provider is installing its own fiber optic technology to a particular location and does not otherwise have a City Franchise to do so, or does not pay franchise fees to the City pursuant to another agreement, the Provider shall also provide the City with four (4) dark pairs of fiber that the City may use for a public purpose. (9) Variances. In order to receive a variance under this subsection, an applicant must show that strict enforcement would make it difficult to provide service due to circumstances unique to the facility under consideration (e.g., topographical challenges or line of sight issues) and demonstrate that the granting of the variance will be in keeping with the spirit and intent of this ordinance. (F) Administrative Approval of New Facilities in Public Rights of Way. Providers proposing the construction or installation, of new facilities in the public rights of way (specifically excluding the replacement of existing structures) shall comply with following requirements: (1) Construction Maintenance. The provisions of § 110.02(E), with the exception of §§ 110.02(E)(3) and (E)(10), shall govern the process of approval For the construction or installation of any new facilities within the public rights of way. (2) Fees. An applicant shall pay an application Fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $50.00 for each new facility located in the public right of way. If the Provider is installing its own fiber optic technology to a particular location and does not otherwise have a City franchise to do so, or does not pay franchise fees to the City pursuant to another agreement, the Provider shall also provide the City with four (4) dark pairs of fiber that the City may use for a public purpose. (3) Height Limitations, New Facilities placed by the provider in public rights of way are permitted to be a maximum height of no more than ten (10) feet above the median height of other telecommunications facilities in the block for the proposed location, but in no event taller than thirty (30) feet above grade for residential and local streets, forty (40) feet For collector streets, or Filly (50) feet for arterial streets. The Zoning and Development Administrator may grant a variance not to exceed ten (10) additional Feet when such additional height is necessary for improved functionality or safety. In order to receive a variance under this subsection, an applicant must also show that strict enforcement would make it difficult to provide services due to circumstances unique to the facility under consideration (e.g., topographical challenges or line of sight issues) and demonstrate that the granting of the variance will be in keeping with the spirit and intent of this ordinance. (4) Camouflaging or Stealth Technology Required. New facilities shall be designed to be camouflaged to the greatest extent possible including, but not limited to, use of compatible building materials and colors, incorporation within street lights, screening, landscaping, and placement within trees. All antenna arrays, cables, and other accessories used for providing the services shall not be obtrusive or noticeably visible. The Zoning and Development Administrator may approve the installation of a standard utility pole in areas where such installation will not degrade the streetscape but any facilities shall he camouflaged to the greatest extent possible. Camouflaging and stealth technology shall be required in all residential areas, improvement districts (including, but not limited to, the Dickson Street area and College Avenue improvement corridor), and any area in which utilities have been installed or relocated underground. Understanding that new technologies are anticipated to change the components of telecommunications facilities, the Administrator may determine if a telecommunications facility or component of a telecommunications facility is designed to be stealth. (5) Fall Zone. The minimum distance from the base of any facility to any residential dwelling unit shall be the lower height or required setback, whichever is greater, unless all persons owning said residence or the land on which said residences are located consent in a signed writing to the construction of said facility. This setback is considered a "fall zone." In the event that an existing facility is proposed as a mount for the provider's equipment, a fall zone shall not be required. (6) Distance between new facilities. New non -camouflaged or non -stealth facilities shall be spaced a minimum of five hundred feet (500') from any other new non -camouflaged or non -stealth facility approved under subsection (F). New camouflaged facilities or new facilities utilizing stealth technology to fit within the streetscape (e.g., incorporated within a street light) shall not be subject to this distance requirement. (7) Information Required to Process Requests for New Facilities. (a) Provide a map of the geographic area that your project will serve; (b) Provide a map that shows other existing facilities that are used by the telecommunications provider who is making the application; (c) Provide a map that shows other potential standalone locations for your facility that have been explored; (d) Provide a scaled site plan containing information showing the property boundaries, proposed facility, existing land use, surrounding land uses and zoning, access road(s) location and surface material, existing and proposed structures and topography.; (e) Describe why the proposed location is superior, from a community perspective, to other potential locations. Factors to consider in the community perspective should include: visual aspects, setbacks, and proximity of single-family residences; (f) Describe your efforts to install your facility on existing.structures. The applicant should demonstrate a gond faith effort to locate facilities on existing structures and/or co -locate with other carriers. The city may deny a request to construct or install a new structure by an applicant that has not demonstrated a good faith effort with respect to this requirement. (g) Describe whether you will or will not accommodate equipment of other telecommunications providers that could co -locate on your facility. Describe how such accommodation will impact both your pole and your ground mounted facilities. Provide documentation of your provider's willingness or unwillingness to accommodate other providers who may be able to co -locate on your facility. ( )(6) Application Time Frame. A final decision shall be issued for applications for facilities under subsections (E) and (F) within 60 calendar days subject to the Following: fUlO The City shall supply written notice to the Applicant within thirty days of receipt of an Application clearly and specifically delineating any missing documents or information. (f ULApplicant shall submit any supplemental documentation and information to the City. =_t_City shall then have up to ten (10) calendar days to notify Applicant that the supplemental documentation or information satisfies the City's request. 01(,. 1LSecond or subsequent notices may not specify missing documents or information that were not identified in the original notice of incompleteness. W(51 -This timeframe shall be tolled in cases in which the City determines that the application is incomplete. This timeframe may also be tolled by mutual agreement of the Applicant and City. ii4(L}f)hiew Structures on Private Property. Telecommunications providers proposing the construction or installation of new poles or towers on privately owned property in the City shall comply with the provisions of § 163.13 Wireless Communications Facilities and shall obtain a conditional use permit. (!�_New'Facilities on Public Property. The City of Fayetteville will actively market its own property and existing Facilities as suitable co -location sites. Applications For new facilities on public property shall be subject to the Administrative Review process. An annual lease amount should be charged according to the fair market value of the location. In cases in which the company no longer needs the facility, the city may require it to be removed. Applicants may be required to provide co -location space for city -awned facilities. For purposes of this subsection, public property shall not include any public right of way or structures in any public right of way. Small cell Facilities installed in the public right of way or on structures in the public right of way shall pay only the fees set forth in subsection (F.) and shall not be charged additional fees under this subsection, ( 1)t?+ I tittNlgt 1.,�gu_ utrm_ flc:I Inks iti +wd 10t (I Or ius4ulhuion rst�f�x1 tLlt�ifNllNnull il7lN NLtn inc?ltue- lhIet flus challltl ,flail e) plre atlar,l_lsurind ELlLofn111 ttiilti7a cum driletnml Ur VIII tllnlloll of the l_KI Ilntted 1,46 1m has 11c,:41 Initiaked, Formatted - — --� Formatted - . -= -____ Formatted: Font, Bold (-yQ�LAppeals. An Applicant may appeal to the City Council a decision or interpretation made in the Administrative Review process by the Zoning and Development Administrator. Appeals shall follow the procedure set forth in Section 155,02 of the Unified Development Code. Pedestrian access and safety. All facilities shall be installed in such a manner not to impede, restrict, or adversely impact pedestrian or vehicular safety or convenience, or violate any provision of the Americans with Disabilities Act. MLL�Emergency removal or relocation of facilities. The City retains the right to cut or move any facility located within its rights -of --way as the City, in its sole discretion, may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. City shall notify the provider after cutting or removing any facility within its rights-of-way. If circumstances permit, the City shall notify the Provider in advance of any cutting or removal and give the provider an opportunity to move its own facilities. N1 OFFICE OF THE, CITY ATTORNEY 1-dd o u 11-14-7 DEPARTMENTAL CORRESPONDENCE TO: Mayor Jordan City Council FROM: Blake Pennington, Assistant City DATE: November 14, 2017 Attorne44- RE: Small Cell Facilities ordinance - Provider Comments Kit Williams City Attorney Blake Pennington Assistant City Attorney Rhonda Lynch Paralegal Attached are the comments we received from Mobilitie (by email) and AT&T/Verizon/T-Mobile (in a Word document). We also met with representaLives of A` U' and T -Mobile this afternoon to go over their suggested changes. The Administration has agreed with some but not with others. Agreed Suggestions 1. The addition of "'to the extent technically feasible" to (E)(1)(a) regarding the step -back requirement for facilities placed oil top of buildings. 'rhe Administration recognizes that technical feasibility may playa role ill the placement of these facilities on the top of buildings. 2. Replace the last sentence in (E)(2) with "except as otherwise allowed by 47 U.S.C. §1455." The intent of the last sentence is similar to but not exactly the same as the "substantial modification" standard set by federal law. It makes sense to align with the federal standard on this. 3. Renumber the existing (F)(€i) to its own lettered paragraph. Since this will apply to both. (E)and (F), it should not have been included in (F). 4. Insert 'not" in the existing (F)(8)(d). This was an oversight in the initial drafting. 5. The providers are concerned about squatters claiming sites without having any intent to deploy. To address thjis, the Administra tion recommends adopting a permit expiration of 120 days if installation or construction has not been initiated. Page Two - SmaIl Cell C7ther Suggestions The Administration does not support many of the other changes requested by the providers. These include: Mobilitie suggested specifically defining "camouflage" contending that it is too broad as currently drafted. When a word is not defined, the dictionary definition controls. Camouflage is somewhat broad but the intent is to not bind the hands of either providers or staff in designing facilities that are compatible with surrounding property. AT&T/Verizon/T-Mobile made several suggestions: 1. The suggested definition of co -locate in subsection (A) does not fit with either the industry definition we were given by AT&T several weeks ago or the dictionary definition. 2. The suggested definition of technically feasible in subsection (A) is unnecessary. 3. The differentiation between "utility pole" and "wireless support structure" in subsection (A) and used throughout their recommended draft is unnecessary and rather than providing clarity, as is the stated goal, it seems more confusing. Facilities is defined broadly in the ordinance to capture all potential types of installations. 4.. The insertion of "reasonable" or "reasonably" throughout the document is unnecessary. The Administration believes that staff will apply this ordinance reasonably and fairly and applicants will have an opportunity to appeal to the City Council if they believe a staff interpretation or application is unreasonable. 5. The administration strongly recommends against the suggestion to move the variance procedure in (17)(3), where it applies only to height, to a more universal application. The Administration does not recommend allowing variances to the other standards set in the ordinance. 6. The administration strongly recommends against weakening the distance requirement in (F)(6). If the suggested language was adopted, the priority on aesthetic concerns would be gutted. 2 From: Neil Bora <nbora@mobilitie.com> Sent: Friday, November 10, 2017 9:58 AM To: Pennington, Blake Cc: James Mikles Subject: RE: Small Cell ordinance - Exhibit A as amended 11/7/17 Attachments: EXHIBIT A - Small Cell Facilities and Networks - Amended and Incorporated 11.7.17 - CLEAN VERSION.DOCX; EXHIBIT A - HIGHLIGHTED CHANGES.DOCX Blake, Thanks for sending this over. Just to be clear, these highlights are the only changes since the last comment period? If so, these are acceptable except for one section. Section F(6): "Distance between new facilities. New non -camouflaged or non -stealth facilities shall be spaced a minimum of five hundred feet (500') from any other new non -camouflaged or non - stealth facility approved under subsection (F). New camouflaged facilities or new facilities utilizing stealth technology to fit within the streetscape (e.g., incorporated within a street light) shall not be subject to this distance requirement." Mobilitie understands that the preference is to camouflage technology, and we can certainly do so. However, the description of camouflage is very broad in the section. Throughout the country municipalities are considering camouflage to mean equipment all painted the same color. If that is the case, we can certainly agree to this section. However, the code describes camouflage as: "Camouflaging or Stealth Technology Required. New facilities shall be designed to be camouflaged to the greatest extent possible including, but not limited to, use of compatible building materials and colors, incorporation within street lights, screening, landscaping, and placement within trees. All antenna arrays, cables, and other accessories used for providing the services shall not be obtrusive or noticeably visible." My concern is that instead of being asked to paint the equipment on the pole the same color as the pole/surrounding infrastructure or being asked to put the equipment in a box, we will be asked to do the latter requirements (incorporation within street lights, placement within trees). If we can get a clear definition on "camouflage" as painting the equipment the same color or having ancillary equipment within a box on the pole, we can certainly agree to this. However, the code is very broad on this requirement. My suggestion is to clarify these camouflage requirements because the current description in the code is overly broad and ranges from practical to improbable from an industry standpoint. Really appreciate all of your help with these. Thanks, Neil Bora Goverumenl Relations Manager nl ,�r;lirr.a111Jlilt[ lex 911 (469)744-0218 AT&T/Verizon/T-Mobile comment EXHIBIT A 110.03 Small Cell Facilities and Networks (A) Definitions: As used in § 110.03, the following terms shall have the meanings set out below: (1) Administrative Review [Weans non -discretionary evaluation of an Application by the Zoning and Development Administrator. This process is not subject to a public hearing or conditional.or special review process. (2) Antenna means communications equipment that transmits or receives electromagnetic radio signals used in the provision of telecommunications services: (a) Distributed antenna system (DAS) means a network that distributes radio frequency signals and consisting of: 1. Remote communications or Antenna nodes deployed throughout a desired coverage area, each including at least one Antenna for transmission and reception; 2. A high capacity signal transport medium that is connected to a central communications hub site; and 3. Radio transceivers located at the hub's site to process or control the communications signals transmitted and received through the Antennas to provide Wireless or mobile Service within a geographic area or structure. (b) Small Cell Facility means a Telecommunications Facility that meets both of the following qualifications: I. Each Antenna is located inside an enclosure of no more than six (6) cubic feet in volume, or in the case of an Antenna that has exposed elements, the Antenna and all of the Antenna's exposed elements could Fit within an imaginary enclosure of no more than six (6) 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 FCC has excluded from review pursuant to 54 U.S.C. § 306108. Accessory Facilities may be located outside the primary equipment, and if so located, are not to be included in the calculation of equipment volume. Accessory Facilities 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. (c) Small Cell Network means acollection of interrelated Small Cell Facilities designed to deliver wireless service. QJ Applicant means any person or entity that is engaged in the business of providing wireless services or the wireless infrastructure required for wireless services. ¢33�y�-l�crxrr,�tfls�ut�,ta riisi,sll, r�i � tnt. �fnuntnif�rtt�tiil.�, r�+ftr�ra,�ea�r r��r,„ -- titetiortltmnt[cation facil[lieswtww lcctlrti(cul y lcasj 'C+�il atiati_tt ea lall'FS7Sliltt� f ilr,�l Fr1r4� (�t5_L"N+tyaerae►;'orrltiriv_r',local exchange carrier means a ----------'---------------- --- telecommunications provider that has received a certificate of public convenience and necessity from the Arkansas Public Service Commission under the authority of Ark. Code Ann. § 23-17409 and is authorized to install equipment and operate within the public rights of way or on public or private property in the City of Fayetteville. This shall include distributed antenna systems, small cell facilities and small cell networks. 0)i63L_l'erson means any individual, resident, citizens, business firm, corporation, partnership, governmental agency, or institution. (AV LStealth technology means systems, components and materials used in the construction of wireless communications facilities to make it compatible with the surrounding property. 04 i Streets means all streets, roads, highways, alleys, rights-of-way, public utility casements, public property, public ways and air space over such streets, roads, alleys, public rights-of-way, public utility casements, public property and public ways located within the geographic limits of the city. ,•_l;iclll,ica[ly-f sxs tbl�",_Ine,ltt ghnl �r� virlur, t�f c)Igilliwrittg�str cpc.�trtlni usugL k1w, Insi1jiss xd nl;tc(-r 'itI of it slp.Ajjccll I'MAIRY. qr i3s cicsi r of Nilk l4)c:ltnqu, far[ g in tglnr:ltt,..l_rs•ithout..a r>v'�iuelior> ll 11 ^.fimrlilnink 's% of I LV ,nt,}!I cJl larti_lity. R)OD (g)( l.0),Telecommunications means the transmission, between or among points specified by the user, of information of the user's choosing without change in the form or content of the information sent and received, whether wired or wireless, (u)(I I ITelecommunicationsfacilitiesorfacilities means all conduits, manholes, poles, antennas, transceivers, wires, cable (including fiber optic cable), technology, and appurtenances owned or utilized by a telecommunications provider or third party infrastructure provider and located in, under or over the streets of the city or on public or private property and utilized in the provision of telecommunications services. This includes without limit, towers of all Commented [All: i LAocate and collnmtion are used repeatedly below Intent here is to simply add the commonly accepted definition oFlhose terms This definition does not affect substance of the provisions below but rather ensures use of commonly understood meaning This definition tracks applicable Federal law Commented [A2]: Revision here to conform definition to oommonly used term in the industry types, and base stations, including but not limited to buildings, church steeples, water towers, signs, poles, streetlights, traffic signals, or other structures that can be used as a support structure for antennas or the functional equivalent of such. It further includes all related accessory facilities associated with the site. It is a structure and facility intended for transmitting and/or receiving, wireless services, Specialized Mobile Radio (SMR), personal communications services (PCS), commercial satellite services, microwave services, radio, television, and any commercial Wireless Service not licensed by the FCC. (-W)( 12l.. __ __Telecommunications Provider or provider means any person, firm, corporation, partnership or other business entity, other than the city, that provides telecommunications services within or without the geographic boundaries of the city by utilizing telecommunications facilities to provide telecommunications services. This shall include competing local exchange carriers or businesses that install small cell facilities on behalf of telecommunications providers. f{�_i)_Telecommunications services or services means any service delivering telecommunications by a telecommunications provider that the provider is authorized to provide under federal, state and local law, except that these terms do not include cable service as defined by the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. §521 et seq., and the Telecommunications Act of 1996_ { f>�:) _ _`_�3tilify P til�:�lis apuS�Ts�r smliur s�rs�c:turas h 's�+r �tttr;rl tri YrflE+le; t>r in url byc:r�lrlr,tivirc in� c�rrtntunir etlt , efk+ kris di_*tributiom lighting_ tra[rr tiesntcul. ignugrur p iM lar gutta tion. or be Cite t olluCuiyun UL�Ltj-R Gell FadlfigL .; ,}fro ided. howeygr s!!c term shall not IneligLt: Wirt ssSu port,Structures.c)reioctril lralrslnission.struttor , Win:las_, SUJ) ut Nilucturt:" rtlaun -auLrtrctu g atvh-;B ()Lc, W L cilberl;rtyworSol i=su pr ne-,billbaardi,hulldltll;ietraathercwlsti1lgn @rfsr+uxel tln)ci+in clt signrrf srs ra Ica u tt le _Ilei ornsrn�nicg trurt3%u;i{�G �tathwr §rn t� strs�elllra clrai �xi s f -for #lie- �ralltrefltlun ciPsrn-- t—;il_ I------ acs. Sttclt tcrdt�kLr!II_ttul ttl�lu€lc t iiiilit #'talc. Clliii, i------ (B) Compliance with State and Federal Regulations. Applicant shall comply with all applicable state and federal regulations. Proof of compliance shall be provided upon request of the Zoning and Development Administrator. Applicant shall not be required to enter into any franchise agreement with the City. (C) Consolidated Application. An applicant may file one consolidated application for a small cell network of up to ten (10) individual small cell facilities of a substantially similar design every seven calendar days. The City may require a separate application for any small cell facilities that are not of a substantially similar design, [QdVnt!nted IA31: Agexplained below. g6 an the btendth ,,,,he tern+ fldhIv (I"C prpcediull de n+lwn), we Pett it would be helptid to add dntinihntn for utdth pole oral wiralt:43 suppon 3InR:IM tU provide dkuisy :u In when tubsev.dum CEI wid f'Ft W** apply The form of the permit Application is located on the City's website under Small Cell Facilities and Networks. (D)An applicant shall submit with the application all documentation or other evidence required by the Zoning and Development Administrator to sufficiently establish the structural soundness of proposed facilities. (E) Administrative Approval of Co -Located Facilities and FacilitiesEn-Located on ExistingfVlrirclesS Sugj rt StriwKtar s r Ilii t I'ulc�. The Zoning and Development Administrator, following an Administrative Review, may approve the following facility installations: (1) C;u_-Locating on Existing Structures. Installation of facilities on an existing structure other than a tower (such as a building, light pole, electric transmission tower, water tank, or other free-standing non-residential structure) provided that the facilities do not extend any higher than five feet above the existing structure. The Zoning and Development Administrator may grant an additional variance, not to exceed ten (10) feet in height above the existing structure, when such additional height is necessary for improved functionality or safety. (a) Facilities Placed on Top of Buildings. When facilities extend above the roof height of a building on which it is mounted, everygtatt>.ls_ effort shall be made to conceal the facility within or behind existing architectural features to limit its visibility from public ways. If concealment behind existing architectural features is not possible, screening panels manufactured to match existing architectural features may be used. Facilities mounted on a roof shall be stepped back from the front fagade.to tl eexiVttl tkchlltutlly. iblalin order to limit their impact on the building's silhouette. Screening panels, if used, shall not exceed five (5) feet in height above the existing building's roofline. (b) Facilities Placed on Sides of Buildings. Facilities which are side - mounted on buildings shall be teksgil]stl?]y camouflaged (such as in a light fixture), shrouded, painted or constructed of materials to match the color of the building material directly behind them, and shall not extend above the roof line or extend more than two (2) feet from the fagade of the building. The Zoning and Development Administrator may grant a variance of up to three (3) additional feet from the facade of a building when such additional clearance is necessary for improved functionality or safety. (2) CEr-Locating on Existing Tower Not Previously Approved Through § 163.13 of the U,D,C. Existing towers that do not have facilities may not add such capability without securing a conditional use perm4,S&�gp qs �ftltenvise u[iu►vet( hv-6 S C N l'i : Att6±sartla natty-berdfklr�k�+{ I.�ysilrvilElr tntr�+anus 63i4he ,;i ne fie lg l -arid-for-tfte tilti9tC bRSje f3sit 4t,S 1giY#;nlinnElS-I3kltl ; . r- lEteed- (3) Qq -,Locating on Existing Towers Previously Approved Through § 163.13. Additional facilities may be placed upon any tower already approved through Commented [A4]: see comments above and below rogpnitng addition of these two terns r Commented [AS]: We request the phrase"reasonabic' be used [o place some boundary on the eYibrts that must be made to conceal the facility We"ve proposed this addition in a couple of uthet places Commented [A6]: We suggest that the notion of technically feasible be incorporated into the step back iequirement as such requirements can affect site runcrionaliry depeadttig on axlent tl Commented [A7]: 6409 addresses different variations of this type of stmetton under federal law 4s a result, we recommend including a general reference to that provision to t capture all those scenarios. §163.14 of the U.D.C. so long as such additional facilities would not violate any requirements of the conditional use permit or other provisions of §1163.11 (4) Replacement of Exisling�4'Nir;lm� titstLirUrt 5trueflm artd i IliliS,v Purl If installation of facilities requires the removal and replacement of an existing structure, such as a pole, the new structure shall be considered an existing structure for the purposes of this section as long as the replacement structure is the -same height as the cxistingwirdiqs D flstructure rpt (I ii`(�}]&J,s constructed of substantially similar material or is a camouflaged/stealth structure, and the replacement structure is located within five (5) feet of the location of the original structure. The provisions of § 1 1O.02(E) shall govern the standards of and procedures for construction or installation of replacement faeitititttavirultwti s�l3�pvfl s(rueturcx_or,uli�i,l. (labs within the public rights of way. The facilities may extend up to five feet above the replacement structure. The Zoning and Development Administrator may grant an additional variance, not to exceed ten (10) feet in height above the replacement structure, when such additional height is necessary for improved functionality or safety. (5) The applicant must submit a letter of intent indicating the intent and agreement to allow co,41ocation of facilities or installation of facilities on an existing structure. (6) If proposed facilities are not or cannot be adequately camouflaged, the City may require the installation of new stealth facilities. (7) Any disturbance of City infrastructure (such as, but not limited to, streets, sidewalks, and utilities) shall be repaired and restored by the applicant at its expense and to a condition at least as good as that existing before the work causing such disturbance was commenced. (8) Fees. An applicant shall pay an application fee in the amount of $200.00 ['or a single facility and $25.00 For each additional facility included in the application. Providers with approved permits shall pay an annual Fee in the amount of $25O.00 for each facility co-located or installed on aro existing structure in the public rights•oNwa>j. tf ifi • Provider is irrstalling its own fiber e] tiedesllnoJogy-tt�ti pttr it wlsfr 4or rioa} and dries nut otberrvise haven-city frmch6e40-€io,vfp,-o doesnot(xty €am iaisaAaes to-Owt-parsivarit-16 ttrtt�tttwr•agt rrtera�tla+s frra�aidar st�alf at r rtwiEls�tha city +with frsra,++l +Iork lxairs of litrer- -ltett t#le City etrts tr+r tirr a- Pub iiV--pugx•)sO. (9) Variances. In order to receive a variance under this subsection, an applicant must show that strict enforcement would make it difficult to provide service due to circumstances unique to the facility under consideration (e.g., topographical challenges or line of sight issues) and demonstrate that the granting of the variance will be in keeping with the spirit and intent of this ordinance, (F) Administrative Approval o *wA,1Fac i I i ties Wea[ u on New I Itilii —s in Public Rights of Way. Providers proposing the construction or installation of new ftt'tWftea to iltl% i+111r•a Ir+ eupippll• frra4� cu[i I t ifitic5. in the public rights of way (specifically Commented [Aa]: Change made to track new definitions Suggested above, Commented (A9]: We have three concerns with the provisions related to dark Fiber I )Arkansas law already contains provisions on Franchises and what compensation may be required of a telecom provider The dark fiber requirement is not consistent with ark. Code Ann 14-200-101 2)T -he dark fiber provision is discriminatory in violation o the federal Telecom act at 47 USC 253 3i State law also controls when an entity is required to obtain a franchise Given these provisions of stutetfederal, it is our recommendation that this provision be dropped Commented (A101: As we-ve discussed, the definition of facilities above is quite broad covering both antennas.. poles. towers, etc , so this provision could be read as precluding the placement Ofnew facilities as broadly defined Our understanding ofthe intent here was to lima the installation of new utility poles We've suggested a new defined term for utility pule and wireless support structure that we believe should be used here to more accurately rellml what we believe the underlying intent of this subsection to be�F excluding the replacement of existing�iFtu�Fu��s�yh_cfcss_su Dort strucittt 4 tjlfty potes) shall comply with following requirements: (l) Construction Maintenance. The provisions of § 110.02(E), with the exception of §§ 110,02(E)(3) and (E)(10), shall govern the process of approval for the construction or installation of any new ftra:ik3t-ieY. gtllikpealgwithin the public rights of way. (2) Pees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $50.00 for each new facility located in the public right ofiwa;{_ If E�te�'�+tui�fi�=isinsfaAlling i3s l�wt�fiher-�ptic�asa�logy-ttrulrter+ice�l�z�9vottEi'3n and (*!, not-otherwisiz-have a-Givy lr+trtolai k�rtihs r-e'x= tons nut p€ty lriknohise f o tiler{;'}ty-pla scatarr€ to o+�n#ter recn7errt;-fila tar +� ad l-hhrall ulse>trF>v6ds itaa�,itv-�4+t1t-t�rrt�rd=t)�dawl: ptri�s�,�#ids►sk�tr?'-tlac��+ry+trltytt,�-RF�r €�pt,t�ltcpftgxas� (3) Height Limitations, New facilities placed by the provider in public rights of way are permitted to be a maximum height of no more than ten (10) feet above the median height of other utility Lxjle tel t�tttm=r€rietatipt � i iii in the block for the proposed location, but in no event taller than thirty (30) feet above grade for residential and local streets, forty (40) feet for collector streets, or fifty (50) feet for arterial streets. The Zoning and Development Administrator may grant a variance not to exceed ten (10) additional feet when such additional height is necessary for improved functionality or safety. In order to receive a variance under this subsection. an applicant must also show that strict enforcement would make it difficult to provide services due to circumstances unique to the facility under consideration (e.g.. topographical challenges or line of sight issues) and demonstrate that the granting of the variance will be in keeping with the spirit and intent of this ordinance (4) Camouflaging or Stealth Technology Required. New facilities shall be designed to be camouflaged to the greatest extent,ICep n8bl�,,possible including, but not limited to, use of compatible building materials and colors, incorporation within street lights, screening, landscaping, and placement within trees. All antenna arrays, cables, and other accessories used for providing the services shall not be obtrusive or noticeably visible. The Zoning and Development Administrator may approve the installation of a standard utility pole in areas where such installation will not degrade the streetscape but any facilities shall be camouflaged to the greatest extent tcasllrlahly possible. Camouflaging and stealth technology shall be required in all residential areas, improvement districts (including, but not limited to, the Dickson Street area and College Avenue improvement corridor), and any area in which utilities have been installed or relocated underground. Understanding that new technologies are anticipated to change the components of telecommunications facilities, the Administrator may Commented [All]: See prior comment re. fiher Commented (A121:Other "telecommunications' facilities may not beat the top portion of a pole .Additionallyas noted above. the definition ol" telecommunication facilities' is very broad Commented [A13]: Suggest moving this discussion to its on subsection below Like rhe preceding Section (E). we believe the intent here is to describe the variance requirement standards generally in this subsection (El as opposed to the variance process for just height. � Commented [A34]: We request the phrase reasonable be used to place some houndary on the efforts that must he made to conceal the facility J determine if a telecommunications facility or component of a telecommunications facility is designed to be stealth. (5) Fall Zone. The minimum distance from the base of any facility to any residential dwelling unit shall be the lower height or required setback, whichever is greater, unless all persons owning said residence or the land on which said residences are located consent in a signed writing to the construction of said facility. This setback is considered a "fall zone." In the event that an existing facility is proposed as a mount for the provider's equipment, a ['all zone shall not be required. (6) Distance between new fimilitiesulil.;ty poles. New non -camouflaged or non - stealth fi,iiit6wzgjllity Utes shall be spaced a minimum of five hundred feet (SU{P) front any other new non-cttmounaged or non -stealth 1heility Ill: iIi:y pok., oporoved fcrr..tlritt..r#ruv_itturpxlej"'ubsection(F)..,New earnounilged f►cilitius or new facilities utilizing stealth technology to fit within the streetscape (e.g., incorporated within a street light) shall not be subject to this distance requirement. (7) Information Required to Process Requests for lFacilitiga [ta lx 1.,usrlyrI on New kfbiti[;tili Polus. (a) Provide a map of the geographic area that your project will crvc; (b) CProvide k map that shows other existing facilities that arc used by the telecommunications provider who is making the application; (c) Provide a map that shows other potential standalone locations for your facility that have been explored; (d) Provide a scaled site plan containing information showing the property boundaries, proposed facility, existing land use, surrounding land uses and zoning, access road(s) location and surface material, existing and proposed structures and topography.; (e) Describe why the proposed location is superior, from a community perspective, to other potential locations. Factors to consider in the community perspective should include: visual aspects, setbacks, and proximity ofsingle-family residences; (f) Describe your efforts to install your facility on existing structures. The applicant should demonstrate a good faith effort to locate facilities on existing structures and/or co -locate with other carriers. The city may deny a request to construct or install a new structure by an applicant that has not demonstrated a good faith effort with respect to this requiremenk (g) Describe whether you will or will not accommodate equipment of other telecommunications providers that could co -locate on your facility. Describe how such accommodation will impact both your pole and your ground mounted facilities. Provide documentation of your provider's willingness or unwillingness to accommodate other providers who may be able to co -locate on your facility. 1 Commented [A151: This will prevent "squatting" by one provider in areas in which new wood poles are appropnate and do not disturb the aesthetics of the area It will also eliminate claims of dixrirrunanon undet the federal Telecom t act at -17 USC 353� Commented (A161::A provider would have previously provided the information in fb) to the city with pear applications Requiring it m be resubmitted would be duplicative We_-wWAcsrthat this rcqurrerricA[berernoved (8) �Application�ime Frame_ A final decision shall be issuedfor applications for facilities under subsections (E) and (F) within 60 calendar days subject to the following: (a) The City shall supply written notice to the Applicant within thirty days of receipt of an Application clearly and specifically delineating any missing documents or information. (b) Applicant shall submit any supplemental documentation and information to the City. (c) City shall then have up to ten (10) calendar days to notify Applicant that the supplemental documentation or information satisfies the City's request. (d) Second or subsequent notices may not specify missing documents or information that were not identified in the original notice of incompleteness. (c) This timeframe shall be tolled in cases in which the City determines that the application is incomplete. This timeframe may also be tolled by mutual agreement of the Applicant and City. (G)New Structures on Private Property. Telecommunications providers proposing the construction or installation of new poles or towers on privately owned property in the City shall comply with the provisions of § 163.13 Wireless Communications Facilities and shall obtain a conditional use permit. (H)New Facilities on Public Property. The City of Fayetteville will actively market its own property and existing facilities as suitable co -location sites. Applications for new facilities on public property shall be subject to the Administrative Review process. An annual lease amount should he charged according to the fair market value of the location. In cases in which the company no longer needs the facility, the city may require it to be removed. Applicants may be required to provide co -location space for city -owned facilities. For purposes ofthis subsection, public property shall not include any public right of way or structures in any public right of way. Small cell facilities installed in the public right of way or on structures in the public right of way shall pay only the fees set forth in subsection (F.,) and shall not be charged additional fees under this subsection. (1) Appeals. An Applicant may appeal to the City Council a decision or interpretation made in the Administrative Review process by the Zoning and Development Administrator. Appeals shall follow the procedure set forth in Section 155,02 of the Unified Development Code, Pedestrian access and safety, All facilities shall be installed in such a manner not to impede, restrict, or adversely impact pedestrian or vehicular safety or convenience, or violate any provision of the Americans with Disabilities Act. (1) Emergency removal or relocation of facilities. The City retains the right to cut or move any facility located within its rights-of-way as the City, in its sole discretion, may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. City shall notify the provider after cutting or removing any facility within its rights-of-way. If circumstances permit, the City shall notify the provider in advance of any cutting or removal and give the provider an opportunity to move its own facilities. Commented 1A171 Since this section appli s to both A subsection (E) and ( r), we wonder whether it should he its own standalone subsection NEWLY REVISED TO REFLECT CHANGES AMENDED AT THE NOVEMBER 7TH CC MTG EXHIBIT A 110.03 Small Cell Facilities and Networks (A) Definitions: As used in § 110.03, the following terms shall have the meanings set out below: (1) Administrative Review means non -discretionary evaluation of an Application by the Zoning and Development Administrator. This process is not subject to a public hearing or conditional or special review process. (2) Antenna means communications equipment that transmits or receives electromagnetic radio signals used in the provision of telecommunications services: (a) Distributed antenna system (DAS) means a network that distributes radio frequency signals and consisting of: 1. Remote communications or Antenna nodes deployed throughout a desired coverage area, each including at least one Antenna for transmission and reception; 2. A high capacity signal transport medium that is connected to a central communications hub site; and 3. Radio transceivers located at the hub's site to process or control the communications signals transmitted and received through the Antennas to provide Wireless or mobile Service within a geographic area or structure. (b) Small Cell Facility means a Telecommunications Facility that meets both of the following qualifications: 1. Each Antenna is located inside an enclosure of no more than six (6) cubic feet in volume, or in the case of an Antenna that has exposed elements, the Antenna and all of the Antenna's exposed elements could fit within an imaginary enclosure of no more than six (6) 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 FCC has excluded from review pursuant to 54 U.S.C. § 306108. Accessory Facilities may be located outside the primary equipment, and if so located, are not to be included in the calculation of equipment volume. Accessory Facilities 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. (c) Small Cell Network means a collection of interrelated Small Cell Facilities designed to deliver wireless service. NEWLY REVISED TO REFLECT CHANGES AMENDED AT THE NOVEMBER 7TH CC MTG (3) Applicant means any person or entity that is engaged in the business of providing wireless services or the wireless infrastructure required for wireless services. (4) Competing local exchange carrier means a telecommunications provider that has received a certificate of public convenience and necessity from the Arkansas Public Service Commission under the authority of Ark. Code Ann. § 23-17-409 and is authorized to install equipment and operate within the public rights of way or on public or private property in the City of Fayetteville. This shall include distributed antenna systems, small cell facilities and small cell networks. (5) Person means any individual, resident, citizens, business firm, corporation, partnership, governmental agency, or institution. (6) Stealth technology means systems, components and materials used in the construction of wireless communications facilities to make it compatible with the surrounding property. (7) Streets means all streets, roads, highways, alleys, rights-of-way, public utility easements, public property, public ways and air space over such streets, roads, alleys, public rights-of-way, public utility easements, public property and public ways located within the geographic limits of the city. (8) Telecommunications means the transmission, between or among points specified by the user, of information of the user's choosing without change in the form or content of the information sent and received, whether wired or wireless. (9) Telecommunications facilities or facilities means all conduits, manholes, poles, antennas, transceivers, wires, cable (including fiber optic cable), technology, and appurtenances owned or utilized by a telecommunications provider or third party infrastructure provider and located in, under or over the streets of the city or on public or private property and utilized in the provision of telecommunications services. This includes without limit, towers of all types, and base stations, including but not limited to buildings, church steeples, water towers, signs, poles, streetlights, traffic signals, or other structures that can be used as a support structure for antennas or the functional equivalent of such. It further includes all related accessory facilities associated with the site. It is a structure and facility intended for transmitting and/or receiving, wireless services, Specialized Mobile Radio (SMR), personal communications services (PCS), commercial satellite services, microwave services, radio, television, and any commercial Wireless Service not licensed by the FCC. (10) Telecommunications Provider or provider means any person, firm, corporation, partnership or other business entity, other than the city, that provides telecommunications services within or without the geographic 2 NEWLY REVISED TO REFLECT CHANGES AMENDED AT THE NOVEMBER 7TH CC MTG boundaries of the city by utilizing telecommunications facilities to provide telecommunications services. This shall include competing local exchange carriers or businesses that install small cell facilities on behalf of telecommunications providers. (11) Telecommunications services or services means any service delivering telecommunications by a telecommunications provider that the provider is authorized to provide under federal, state and local law, except that these terms do not include cable service as defined by the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C, §521 et seq., and the Telecommunications Act of 1996. (B) Compliance with State and Federal Regulations. Applicant shall comply with all applicable state and federal regulations. Proof of compliance shall be provided upon request of the Zoning and Development Administrator. Applicant shall not be required to enter into any franchise agreement with the City. (C) Consolidated Application. An applicant may file one consolidated application for a small cell network of up to ten (10) individual small cell facilities of a substantially similar design every seven calendar days. The City may require a separate application for any small cell facilities that are not of a substantially similar design. The form of the permit Application is located on the City's website under Small Cell Facilities and Networks. (D) An applicant shall submit with the application all documentation or other evidence required by the Zoning and Development Administrator to sufficiently establish the structural soundness of proposed facilities. (E) Administrative Approval of Co -Located Facilities and Facilities Located on Existing Structures. The Zoning and Development Administrator, following an Administrative Review, may approve the following facility installations: (1) Locating on Existing Structures. Installation of facilities on an existing structure other than a tower (such as a building, light pole, electric transmission tower, water tank, or other free-standing non-residential structure) provided that the facilities do not extend any higher than five feet above the existing structure. The Zoning and Development Administrator may grant an additional variance, not to exceed ten (10) feet in height above the existing structure, when such additional height is necessary for improved functionality or safety. (a) Facilities Placed on Top of Buildings. When facilities extend above the roof height of a building on which it is mounted, every effort shall be made to conceal the facility within or behind existing architectural features to limit its visibility from public ways. If concealment behind existing architectural features is not possible, screening panels manufactured to match existing architectural features may be used. Facilities mounted on a roof shall be stepped back from the front fagade in order to limit their impact on the building's silhouette. 3 NEWLY REVISED TO REFLECT CHANGES AMENDED AT THE NOVEMBER 7TH CC MTG Screening panels, if used, shall not exceed five (5) feet in height above the existing building's roofline. (b) Facilities Placed on Sides of Buildings. Facilities which are side - mounted on buildings shall be camouflaged (such as in a light fixture), shrouded, painted or constructed of materials to match the color of the building material directly behind them, and shall not extend above the roof line or extend more than two (2) feet from the fagade of the building. The Zoning and Development Administrator may grant a variance of up to three (3) additional feet from the fagade of a building when such additional clearance is necessary for improved functionality or safety. (2) Locating on Existing Tower Not Previously Approved Through § 163.13 of the U.D.C. Existing towers that do not have facilities may not add such capability without securing a conditional use permit. Antennas may be replaced by similar antennas at the same height and for the same basic usage as the antennas being replaced. (3) Locating on Existing Towers Previously Approved Through § 163.13. Additional facilities may be placed upon any tower already approved through § 163.14 of the U.D.C. so long as such additional facilities would not violate any requirements of the conditional use permit or other provisions of § 163.13. (4) Replacement of Existing Structures. If installation of facilities requires the removal and replacement of an existing structure, such as a pole, the new structure shall be considered an existing structure for the purposes of this section as long as the replacement structure is the same height as the existing structure, is constructed of substantially similar material or is a camouflaged/stealth structure, and the replacement structure is located within five (5) feet of the location of the original structure. The provisions of § 110.02(E) shall govern the standards of and procedures for construction or installation of replacement facilities within the public rights of way. The facilities may extend up to five feet above the replacement structure. The Zoning and Development Administrator may grant an additional variance, not to exceed ten (10) feet in height above the replacement structure, when such additional height is necessary for improved functionality or safety. (5) The applicant must submit a letter of intent indicating the intent and agreement to allow co -location of facilities or installation of facilities on an existing structure. (6) If proposed facilities are not or cannot be adequately camouflaged, the City may require the installation of new stealth facilities. (7) Any disturbance of City infrastructure (such as, but not limited to, streets, sidewalks, and utilities) shall be repaired and restored by the applicant at its expense and to a condition at least as good as that existing before the work causing such disturbance was commenced. (8) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the M NEWLY REVISED TO REFLECT CHANGES AMENDED AT THE NOVEMBER 7TH CC MTG application. Providers with approved permits shall pay an annual fee in the amount of $250.00 for each facility co -located or installed on an existing structure in the public rights-of-way. If the Provider is installing its own fiber optic technology to a particular location and does not otherwise have a City franchise to do so, or does not pay franchise fees to the City pursuant to another agreement, the Provider shall also provide the City with four (4) dark pairs of fiber that the City may use for a public purpose. (9) Variances. In order to receive a variance under this subsection, an applicant must show that strict enforcement would make it difficult to provide service due to circumstances unique to the facility under consideration (e.g., topographical challenges or line of sight issues) and demonstrate that the granting of the variance will be in keeping with the spirit and intent of this ordinance. (F) Administrative Approval of New Facilities in Public Rights of Way. Providers proposing the construction or installation of new facilities in the public rights of way (specifically excluding the replacement of existing structures) shall comply with following requirements: (1) Construction Maintenance. The provisions of § 110.02(E), with the exception of §§ I I0.02(E)(3) and (E)(10), shall govern the process of approval for the construction or installation of any new facilities within the public rights of way. (2) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $50.00 for each new facility located in the public right of way. If the Provider is installing its own fiber optic technology to a particular location and does not otherwise have a City franchise to do so, or does not pay franchise fees to the City pursuant to another agreement, the Provider shall also provide the City with four (4) dark pairs of fiber that the City may use for a public purpose. (3) Height Limitations. New facilities placed by the provider in public rights of way are permitted to be a maximum height of no more than ten (10) feet above the median height of other telecommunications facilities in the block for the proposed location, but in no event taller than thirty (30) feet above grade for residential and local streets, forty (40) feet for collector streets, or fifty (50) feet for arterial streets. The Zoning and Development Administrator may grant a variance not to exceed ten (10) additional feet when such additional height is necessary for improved functionality or safety. In order to receive a variance under this subsection, an applicant must also show that strict enforcement would make it difficult to provide services due to circumstances unique to the facility under consideration (e.g., topographical challenges or line of sight issues) and demonstrate that the granting of the variance will be in keeping with the spirit and intent of this ordinance. (4) Camouflaging or Stealth Technology Required. New facilities shall be designed to be camouflaged to the greatest extent possible including, but not E NEWLY REVISED TO REFLECT CHANGES AMENDED AT THE NOVEMBER 7TH CC MTG limited to, use of compatible building materials and colors, incorporation within street lights, screening, landscaping, and placement within trees. All antenna arrays, cables, and other accessories used for providing the services shall not be obtrusive or noticeably visible. The Zoning and Development Administrator may approve the installation of a standard utility pole in areas where such installation will not degrade the streetscape but any facilities shall be camouflaged to the greatest extent possible. Camouflaging and stealth technology shall be required in all residential areas, improvement districts (including, but not limited to, the Dickson Street area and College Avenue improvement corridor), and any area in which utilities have been installed or relocated underground. Understanding that new technologies are anticipated to change the components of telecommunications facilities, the Administrator may determine if a telecommunications facility or component of a telecommunications facility is designed to be stealth. (5) Fall Zone. The minimum distance from the base of any facility to any residential dwelling unit shall be the lower height or required setback, whichever is greater, unless all persons owning said residence or the land on which said residences are located consent in a signed writing to the construction of said facility. This setback is considered a "fall zone." In the event that an existing facility is proposed as a mount for the provider's equipment, a fall zone shall not be required. (6) Distance between new facilities. New non -camouflaged or non -stealth facilitiesshall be spaced a minimum of five hundred feet (500') from any other new non -camouflaged or non -stealth facility approved under subsection (F). New camouflaged facilities or new facilities utilizing stealth technology to fit within the streetscape (e.g., incorporated within a street light) shall not be subject to this distance requirement. (7) Information Required to Process Requests for New Facilities. (a) Provide a map of the geographic area that your project will serve; (b) Provide a map that shows other existing facilities that are used by the telecommunications provider who is making the application; (c) Provide a map that shows other potential standalone locations for your facility that have been explored; (d) Provide a scaled site plan containing information showing the property boundaries, proposed facility, existing land use, surrounding land uses and zoning, access road(s) location and surface material, existing and proposed structures and topography.; (e) Describe why the proposed location is superior, from a community perspective, to other potential locations. Factors to consider in the community perspective should include: visual aspects, setbacks, and proximity of single-family residences; (f) Describe your efforts to install your facility on existing structures. The applicant should demonstrate a good faith effort to locate facilities on existing structures and/or co -locate with other carriers. The city may 0 NEWLY REVISED TO REFLECT CHANGES AMENDED AT THE NOVEMBER 7TH CC MTG deny a request to construct or install a new structure by an applicant that has not demonstrated a good faith effort with respect to this requirement. (g) Describe whether you will or will not accommodate equipment of other telecommunications providers that could co -locate on your facility. Describe how such accommodation will impact both your pole and your ground mounted facilities. Provide documentation of your provider's willingness or unwillingness to accommodate other providers who may be able to co -locate on your facility. (8) Application Time Frame. A final decision shall be issued for applications for facilities under subsections (E) and (F) within 60 calendar days subject to the following: (a) The City shall supply written notice to the Applicant within thirty days of receipt of an Application clearly and specifically delineating any missing documents or information. (b) Applicant shall submit any supplemental documentation and information to the City. (c) City shall then have up to ten (10) calendar days to notify Applicant that the supplemental documentation or information satisfies the City's request. (d) Second or subsequent notices may not specify missing documents or information that were identified in the original notice of incompleteness. (e) This timeframe shall be tolled in cases in which the City determines that the application is incomplete. This timeframe may also be tolled by mutual agreement of the Applicant and City. (G) New Structures on Private Property. Telecommunications providers proposing the construction or installation of new poles or towers on privately owned property in the City shall comply with the provisions of § 163.13 Wireless Communications Facilities and shall obtain a conditional use permit. (H) New Facilities on Public Property. The City of Fayetteville will actively market its own property and existing facilities as suitable co -location sites. Applications for new facilities on public property shall be subject to the Administrative Review process. An annual lease amount should be charged according to the fair market value of the location. In cases in which the company no longer needs the facility, the city may require it to be removed. Applicants may be required to provide co -location space for city -owned facilities. For purposes of this subsection, public property shall not include any public right of way or structures in any public right of way. Small cell facilities installed in the public right of way or on structures in the public right of way shall pay only the fees set forth in subsection (E) and shall not be charged additional fees under this subsection. (1) Appeals. An Applicant may appeal to the City Council a decision or interpretation made in the Administrative Review process by the Zoning and Development Administrator. Appeals shall follow the procedure set forth in Section 155.02 of the Unified Development Code. Pedestrian access and safety. All facilities shall be installed in such a manner not to impede, restrict, or adversely impact pedestrian or V/ NEWLY REVISED TO REFLECT CHANGES AMENDED AT THE NOVEMBER 7TH CC MTG vehicular safety or convenience, or violate any provision of the Americans with Disabilities Act. (J) Emergency removal or relocation of facilities. The City retains the right to cut or move any facility located within its rights-of-way as the City, in its sole discretion, may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. City shall notify the provider after cutting or removing any facility within its rights-of-way. If circumstances permit, the City shall notify the provider in advance of any cutting or removal and give the provider an opportunity to move its own facilities. THIS EXHIBIT HAS BEEN UPDATED 110.03 Small Cell Facilities and Networks (A) Definitions: As used in § 110.03, the following terms shall have the meanings set out below: (1) Administrative Review means non -discretionary evaluation of an Application by the Zoning and Development Administrator. This process is not subject to a public hearing or conditional or special review process. (2) Antenna means communications equipment that transmits or receives electromagnetic radio signals used in the provision of telecommunications services: (a) Distributed antenna system (DAS) means a network that distributes radio frequency signals and consisting of. 1. Remote communications or Antenna nodes deployed throughout a desired coverage area, each including at least one Antenna for transmission and reception; A high capacity signal transport medium that is connected to a central communications hub site; and Radio transceivers located at the hub's site to process or control the communications signals transmitted and received through the Antennas to provide Wireless or mobile Service within a geographic area or structure. (b) Small Cell Facility means a Telecommunications Facility that meets both of the following qualifications: Each Antenna is located inside an enclosure of no more than six (6) cubic feet in volume, or in the case of an Antenna that has exposed elements, the Antenna and all of the Antenna's exposed elements could fit within an imaginary enclosure of no more than six (6) cubic feet; and Primary equipment enclosures that are no larger than 17 cubic feet in volume, or facilities comprised of such higher limits as the FCC has excluded -from review pursuant to 54 U.S.C. § 306108. Accessory Facilities may be located outside the primary equipment, and if so located, are not to be included in the calculation of equipment volume. Accessory Facilities 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. (c) Small Cell Network means a collection of interrelated Small Cell Facilities designed to deliver wireless service. THIS EXHIBIT HAS BEEN UPDATED (3) Applicant means any person or entity that is engaged in the business of providing wireless services or the wireless infrastructure required for wireless services. (4) Competing local exchange carrier means a telecommunications provider that has received a certificate of public convenience and necessity from the Arkansas Public Service Commission under the authority of Ark. Code Ann. § 23-17-409 and is authorized to install equipment and operate within the public rights of way or on public or private property in the City of Fayetteville. This shall include distributed antenna systems, small cell facilities and small cell networks. (5) Person means any individual, resident, citizens, business firm, corporation, partnership, governmental agency, or institution. (6) Streets means all streets, roads, highways, alleys, rights-of-way, public utility easements, public property, public ways and air space over such streets, roads, alleys, public rights-of-way, public utility easements, public property and public ways located within the geographic limits of the city. (7) Telecommunications means the transmission, between or among points specified by the user, of information of the user's choosing without change in the form or content of the information sent and received, whether wired or wireless. (8) Telecommunications facilities or facilities means all conduits, manholes, poles, antennas, transceivers, wires, cable (including fiber optic cable), technology, and appurtenances owned or utilized by a telecommunications provider or third party infrastructure provider and located in, under or over the streets of the city or on public or private property and utilized in the provision of telecommunications services. This includes without limit, towers of all types, and base stations, including but not limited to buildings, church steeples, water towers, signs, poles, streetlights, traffic signals, or other structures that can be used as a support structure for antennas or the functional equivalent of such. It further includes all related accessory facilities associated with the site. It is a structure and facility intended for transmitting and/or receiving, wireless services, Specialized Mobile Radio (SMR), personal communications services (PCS), commercial satellite services, microwave services, radio, television, and any commercial Wireless Service not licensed by the FCC. (9) Telecommunications Provider or provider means any person, firm, corporation, partnership or other business entity, other than the city, that provides telecommunications services within or without the geographic boundaries of the city by utilizing telecommunications facilities to provide telecommunications services. This shall include competing local exchange carriers or businesses that install small cell facilities on behalf of telecommunications providers. THIS EXHIBIT HAS BEEN UPDATED (10) Telecommunications services or services means any service delivering telecommunications by a telecommunications provider that the provider is authorized to provide under federal, state and local law, except that these terms do not include cable service as defined by the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. §521 et seq., and the Telecommunications Act of 1996. (B) Compliance with State and Federal Regulations. Applicant shall comply with all applicable state and federal regulations. Proof of compliance shall be provided upon request of the Zoning and Development Administrator. Applicant shall not be required to enter into any franchise agreement with the City. (C) Consolidated Application. An applicant may file one consolidated application for a small cell network of up to ten (10) individual small cell facilities of a substantially similar design every seven calendar days. The City may require a separate application for any small cell facilities that are not of a substantially similar design. The form of the permit Application is located on the City's website under Small Cell Facilities and Networks. (D) An applicant shall submit with the application all documentation or other evidence required by the Zoning and Development Administrator to sufficiently establish the structural soundness of proposed facilities. (E) Administrative Approval of Co -Located Facilities. The Zoning and Development Administrator, following an Administrative Review, may approve the following facility installations: (1) Locating on Existing Structures. Installation of facilities on an existing structure other than a tower (such as a building, light pole, electric transmission tower, water tank, or other free-standing non-residential structure) provided that the facilities do not extend any higher than the existing structure. The Zoning and Development Administrator may grant a variance of up to ten (10) feet in height when such additional height is necessary for improved functionality or safety. (a) Facilities Placed on Top of Buildings. When facilities extend above the roof height of a building on which it is mounted, every effort shall be made to conceal the facility within or behind existing architectural features to limit its visibility from public ways. Facilities mounted on a roof shall be stepped back from the front facade in order to limit their impact on the building's silhouette. (b) Facilities Placed on Sides of Buildings. Facilities which are side - mounted on buildings shall be camouflaged (such as in a light fixture), shrouded, painted or constructed of materials to match the color of the building material directly behind them, and shall not extend above the roof line or extend more than five (5) feet from the fagade of the building. (2) Locating on Existing Tower Not Previously Approved Through § 163.13 of the U.D.C. Existing towers that do not have facilities may not add such THIS EXHIBIT HAS BEEN UPDATED capability without securing a conditional use permit. Antennas may be replaced by similar antennas at the same height and for the same basic usage as the antennas being replaced. (3) Locating on Existing Towers Previously Approved Through § 163.13. Additional facilities may be placed upon any tower already approved through § 163.14 of the U.D.C. so long as such additional facilities would not violate any requirements of the conditional use permit or other provisions of § 163.13. (4) The applicant must submit a letter of intent indicating the intent and agreement to allow colocation of facilities. (5) If proposed facilities are not or cannot be adequately camouflaged, the City may require the installation of new stealth facilities. (6) Any disturbance of City infrastructure (such as, but not limited to, streets, sidewalks, and utilities) shall be repaired and restored by the applicant at its expense and to a condition at least as good as that existing before the work causing such disturbance was commenced. (7) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $250.00 for each facility co -located on an existing structure in the public rights-of-way. If the Provider is installing its own fiber optic technology to a particular location and does not otherwise have a City franchise to do so, the Wireless Provider shall also provide the City with four (4) dark pairs of fiber that the City may use for a public purpose. (F) Administrative Approval of New Facilities in Public Rights of Way. Providers proposing the construction or installation of new facilities in the public rights of way shall comply with following requirements: (1) Construction Maintenance. The provisions of § 110.02(E), with the exception of §§ I I0.02(E)(3) and (E)(10), shall govern the process of approval for the construction or installation of any new facilities within the public rights of way. (2) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $50.00 for each new facility located in the public right of way. If the Provider is installing its own fiber optic technology to a particular location and does not otherwise have a City franchise to do so, the Wireless Provider shall also provide the City with four (4) dark pairs of fiber that the City may use for a public puruose. (3) Height Limitations. New facilities placed by the provider in public rights of way are permitted to be a maximum height of no more than ten (10) feet above the median height of other telecommunications facilities in the block for the proposed location, but in no event taller than thirty (30) feet above grade. THIS EXHIBIT HAS BEEN UPDATED (4) Camouflaging or Stealth Technology Required. New facilities shall be designed to be camouflaged to the greatest extent possible including, but not limited to, use of compatible building materials and colors, incorporation within street lights, screening, landscaping, and placement within trees. All antenna arrays, cables, and other accessories used for providing the services shall not be obtrusive or noticeably visible. The Zoning and Development Administrator may approve the installation of a standard utility pole in areas where such installation will not degrade the streetscape but any facilities shall be camouflaged to the greatest extent possible. Camouflaging and stealth technology shall be required in all residential areas, improvement districts (including, but not limited to, the Dickson Street area and College Avenue improvement corridor), and any area in which utilities have been installed or relocated underground. Understanding that new technologies are anticipated to change the components of telecommunications facilities, the Administrator may determine if a telecommunications facility or component of a telecommunications facility is designed to be stealth. (5) Fall Zone. The minimum distance from the base of any facility to any residential dwelling unit shall be the lower height or required setback, whichever is greater, unless all persons owning said residence or the land on which said residences are located consent in a signed writing to the construction of said facility. This setback is considered a "fall zone." In the event that an existing facility is proposed as a mount for the provider's equipment, a fall zone shall not be required. (6) Distance between new facilities. New facilities, excluding facilities camouflaged to fit within the streetscape (e.g., facilities incorporated within a street light), shall be spaced a minimum of five hundred feet (500') from any other new facility approved under this section. (7) Information Required to Process Requests for New Facilities. (a) Provide a map of the geographic area that your project will serve; (b) Provide a map that shows other existing or planned facilities that will be used by the telecommunications provider who is making the application; (c) Provide a map that shows other potential standalone locations for your facility that have been explored; (d) Provide a scaled site plan containing information showing the property boundaries, proposed facility, existing land use, surrounding land uses and zoning, access road(s) location and surface material, existing and proposed structures and topography. The plan shall indicate proposed landscaping, fencing, parking areas, location of any signage and specifications on proposed lighting of the facility; (e) Describe why the proposed location is superior, from a community perspective, to other potential locations. Factors to consider in the community perspective should include: visual aspects, setbacks, and proximity of single-family residences; THIS EXHIBIT HAS BEEN UPDATED (f) Describe your efforts to co -locate your facility on existing structures, one of the poles or towers that currently exists, or is under construction. The applicant should demonstrate a good faith effort to co -locate with other carriers. The city may deny a request to construct or install a new structure by an applicant that has not demonstrated a good faith effort to provide for co -location. Such good faith effort includes: 1. A survey of all existing structures that may be feasible sites for co -locating wireless communications facilities; 2. Contact with all other telecommunications providers; 3. Sharing information necessary to determine if co -location is feasible under the design configuration most accommodating to co -location; and 4. Letter from tower or pole owner stating why co -location is not feasible. (g) Describe whether you will or will not accommodate equipment of other telecommunications providers that could co -locate on your facility. Describe how such accommodation will impact both your pole and your ground mounted facilities. Provide documentation of your provider's willingness or unwillingness to accommodate other providers who may be able to co -locate on your facility. (8) Application Time Frame. A final decision shall be issued for applications for facilities under subsections (E) and (F) within 60 calendar days subject to the following: (a) The City shall supply written notice to the Applicant within thirty days of receipt of an Application clearly and specifically delineating any missing documents or information. (b) Applicant shall submit any supplemental documentation and information to the City. (c) City shall then have up to ten (10) calendar days to notify Applicant that the supplemental documentation or information satisfies the City's request. (d) Second or subsequent notices may not specify missing documents or information that were identified in the original notice of incompleteness. (e) This timeframe shall be tolled in cases in which the City determines that the application is incomplete. This timeframe may also be tolled by mutual agreement of the Applicant and City. (G)New Structures on Private Property. Telecommunications providers proposing the construction or installation of new poles or towers on privately owned property in the City shall comply with the provisions of § 163.13 Wireless Communications Facilities and shall obtain a conditional use permit. (H) New Facilities on Public Property. The City of Fayetteville will actively market its own property and existing facilities as suitable co -location sites.. Applications for new facilities on public property shall be subject to the Administrative Review process. An annual lease amount should be charged according to the fair market value THIS EXHIBIT HAS BEEN UPDATED of the location. In cases in which the company no longer needs the facility, the city may require it to be removed. Applicants may be required to provide co -location space for city -owned facilities. (1) Appeals. An Applicant may appeal to the City Council a decision or interpretation made in the Administrative Review process by the Zoning and Development Administrator. Appeals shall follow the procedure set forth in Section 155.02 of the Unified Development Code. Pedestrian access and safety. All facilities shall be installed in such a manner not to impede, restrict, or adversely impact pedestrian or vehicular safety or convenience, or violate any provision of the Americans with Disabilities Act. (J) Emergency removal or relocation of facilities. The City retains the right to cut or move any facility located within its rights-of-way as the City, in its sole discretion, may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. City shall notify the provider after cutting or removing any facility within its rights-of-way. 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Y h0 > r c x o ° °' o„=Eve > v > > > a O 7 U N tC Cm Ul4LL m v v ` C o ° NN O o r r E o v v m- YO `O v O 7 o u w- t a '-^ 0 7 3 ° d N ` c 3 o. b o o o t a o' v m o ti O v aTi � 3 1 F O ° n v - ° OW W s o 0 N EXHIBIT A 110.03 Small Cell Facilities and Networks (A)Definitions: As used in § 110.03, the following terms shall have the meanings set out below: (1) Administrative Review means non -discretionary evaluation of an Application by the Zoning and Development Administrator. This process is not subject to a public hearing or conditional or special review process. (2) Antenna means communications equipment that transmits or receives electromagnetic radio signals used in the provision of telecommunications services: (a) Distributed antenna system (DAS) means a network that distributes radio frequency signals and consisting of: I. Remote communications or Antenna nodes deployed throughout a desired coverage area, each including at least one Antenna for transmission and reception; 2. A high capacity signal transport medium that is connected to a central communications hub site; and 3. Radio transceivers located at the hub's site to process or control the communications signals transmitted and received through the Antennas to provide Wireless or mobile Service Within a geographic area or structure. (b) Small Cell Facility means a Telecommunications Facility that meets both of the following qualifications: 1. Each Antenna is located inside an enclosure of no more than six (6) cubic feet in volume; or in the case of an Antenna that has exposed elements, the Antenna and all of the Antenna's exposed elements could fit within an imaginary enclosure of no more than six (6) 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 FCC has excluded from review pursuant to 54 U.S.C. § 306108. Accessory Facilities may be located outside the primary equipment, and if so located, are not to be included in the calculation of equipment volume. Accessory Facilities 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. (c) Small Cell Network means a collection of interrelated Small Cell Facilities designed to deliver wireless service. (3) Applicant means any person or entity that is engaged in the business of providing wireless services or the wireless infrastructure required for wireless services. (4) Competing local exchange carrier means a telecommunications provider that has received a certificate of public convenience and necessity from the Arkansas Public Service Commission under the authority of Ark. Code Ann. § 23-17-409 and is authorized to install equipment and operate within the public rights of way or on public or private property in the City of Fayetteville. This shall include distributed antenna systems, small cell facilities and small cell networks. U5 _Person means any individual, resident, citizens, business firm, corporation, partnership, governmental agency, or institution. (5)(,6),_ tc�rrl►lt technolo v'nicans systems, components and materials used in tl3q construction of wireless ccimmunicatlons facilities to make _it compalible with ll-ie surrounding n ope1 (6)(7 _Streets means all streets, roads, highways, alleys, rights-of-way, public utility easements, public property, public ways and air space over such streets, roads, alleys, public rights-of-way, public utility easements, public property and public ways located within the geographic limits of the city. (7)(�)_ _Telecommunications means the transmission, between or among points specified by the user, of information of the user's choosing without change in the form or content of the information sent and received, whether wired or wireless. (8)(9)__„Telecommunications facilities or facilities means all conduits, manholes, poles, antennas, transceivers, wires, cable (including fiber optic cable), technology, and appurtenances owned or utilized by a telecommunications provider or third party infrastructure provider and located in, under or over the streets of the city or on public or private property and utilized in the provision of telecommunications services. This includes without limit, towers of all types, and base stations, including but not limited to buildings, church steeples, water towers, signs, poles, streetlights, traffic signals, or other structures that can be used as a support structure for antennas or the functional equivalent of such. It further includes all related accessory facilities associated with the site. It is a structure and facility intended for transmitting and/or receiving, wireless services, Specialized Mobile Radio (SMR), personal communications services (PCS), commercial satellite services, microwave services, radio, television, and any commercial Wireless Service not licensed by the FCC. (9)(M -Telecommunications Provider or provider means any person, firm, corporation, partnership or other business entity, other than the city, that provides telecommunications services within or without the geographic boundaries of the city by utilizing telecommunications facilities to provide telecommunications services. This shall include competing local exchange Cornrnented [P[31]: Our team recommended including a definition ofstealih technology. This is the same defmition that appears in Section 15 1.01 Definitions of the Unified j Development Code. Camouflaging does not need to be defined because we can use the plain and ordinary dictionary definition. carriers or businesses that install small cell facilities on behalf of telecommunications providers. (10)(1_) Telecommunications services or services means any service delivering telecommunications by a telecommunications provider that the provider is authorized to provide under federal, state and local law, except that these terms do not include cable service as defined by the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. §521 et seq., and the Telecommunications Act of 1996. (B) Compliance with State and Federal Regulations. Applicant shall comply with all applicable state and federal regulations. Proof of compliance shall be provided upon request of the Zoning and Development Administrator. Applicant shall not be required to enter into any franchise agreement with the City. (C) Consolidated Application. An applicant may file one consolidated application for a small cel I network of up to ten (10) individual small cell facilities of a substantially similar design every seven calendar days. The City may require a separate application for any small cell facilities that are not of a substantially similar design. The form of the permit Application is located on the City's website under Small Cell Facilities and Networks. (D)An applicant shall submit with the application all documentation or other evidence required by the Zoning and Development Administrator to sufficiently establish the structural soundness of proposed facilities. (E) Administrative Approval of Co -Located Facilities�nd Facilities Located on Existing Structures. The Zoning and Development Administrator, following an - Administrative Review, may approve the following facility installations: (1) Locating on Existing Structures. Installation of facilities on an existing structure other than a tower (such as a building, light pole, electric transmission tower, water tank, or other free-standing non-residential structure) provided that the facilities do not extend any higher than the existing structure. -The Zoning and Development Administrator may grant a variance of up to ten (10) feet in height when such additional height is necessary for improved functionality or safety. (a) Facilities Placed on Top of Buildings. When facilities extend above the roof height of a building on which it is mounted, every effort shall be made to conceal the facility within or behind existing architectural features to limit its visibility from public ways. l€E conccaln�eni hind existing architectural features is not possible. screeningpanels maltufactured to match exisling architectural features may be used Facilities mounted on a roof shall be stepped back from the front facade in order to limit their impact on the building's silhouette. Screening panels, if used, shall not exceed five (5) feet in height above the existing building's mofline. (b) Facilities Placed on Sides of Buildings. Facilities which are side - mounted on buildings shall be camouflaged (such as in a light fixture), Commented [PB2]: Change in this subsection title to clarify die difference between co -location (two providers on the same structure) and installation on an existing structure. The City is not requiring co -location but will leave it as a 'merit}option as technology evolves. Commented [PB3]:'rhis is a request from Sinith Communication. Per the reconunendation of the Planning Director, we established concealment behind existing architectural features will be the priority and screening panels could be a secondary option if the first is not possible, The screening panels would be installed at die fagade of the building and still lunit the visibility while making less ofan impact on the silhouette_ This is intended to provide the applicant and staffmore flexibility for design to fit within the streetscape. shrouded, painted or constructed of materials to match the color of the building material directly behind them, and shall not extend above the roof line or extend more than €w4. -two (52) feet from the facade of the building. f3 g Zoning_and Deveippqent_Administratior ina�_grtitit a. variance of up to three f 31 additional feet from the facade of a buiidinr when such additional cirarettee is necessary far iiatpraved func(ionality or safety.: (2) Locating on Existing Tower Not Previously Approved Through § 163.13 of the U.D.C. Existing towers that do not have facilities may not add such capability without securing a conditional use permit. Antennas may be replaced by similar antennas at the same height and for the same basic usage as the antennas being replaced. 3(3)Locating on Existing Towers Previously Approved Through §163.13. Additional facilities may be placed upon any tower already approved through § 163.14 of the U.D.C. so long as such additional facilities would not violate any requirements of the conditional use permit or other provisions of § 163.13. (3)(4)__1 enlacement of Existing Structure . If installation of Facilities reguims the removal arta replacemet4t of an existin¢ structure, such as a pole. the new structure shall be. considered_ an existiniz stmeturefoor the purposes_ of This section as long as the replacement structure is constructed of substantinii sift ila"naterial or is a camoufiagedlstcallh structure and the replacement structure is located within rive (5) feet of the location of the odgisl_al *iruclure. The provisioas of § 110102 - shad]] goyr-lit (lie standards of and procedures For construction or installation of rep faci1i[iasWithin the public ri_ghts_of way,._The_Zoning and Deyeloprnent_A ...... strato.r may grant a Yal'1 ltcc,pf ,to ten I feet in_It i_ght whenoich.adtlitiona] height is neegMi-y for improved fungtionali1y or safety. (4)( )_ The applicant must submit a letter of intent indicating the intent and agreement to allow co -location of facilities ar installakion of faeilit#es ort a_n \IStt g structurk:. (3)f6) If proposed facilities are not or cannot be adequately camouflaged, the City may require the installation of new stealth facilities. WCLAny disturbance of City infrastructure (such as, but not limited to, streets, sidewalks, and utilities) shall be repaired and restored by the applicant at its expense and to a condition at least as good as that existing before the work causing such disturbance was commenced. .. ......... Commented [PB41: Verizon had requested that we allow up to five feet from the fapade through a variance procedure. The original language unintentionally granted 5 feet of clearance by right. The recommended language grants 2 feet by right and an additional 3 feet through a variance. - Commented [PBS : At AT&T's request we included language clarifying that a provider can replace an existing pole and have the replacement pole treated as an existing structure. The provider would have to follow the procedures in 110.02(E) which governs the construction standards for telecommunications facilities in the public rights ofway. As an existing facility, the 10 foot height variance could be requested. Commented [P66]: Clarification as noted in the title of this subsection. (8) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $250.00 for each facility co -located yr installed bn an existing Commented [PB7]: Clarifical ion as noted in the title of structure in the public rights-of-way. If the Provider is installing its own fiber this subsection. optic technology to a particular location and does not otherwise have a City franchise to do so. or does not pay franchise fees it) (lie City pursuant to another aoreetnent.3he Provider shall also provide the City with four (4) dark pairs of fiber that the City may use for a public purpose. liariances.. In order to receive a vManc.e under iirts sul�sectron_,_sr1 applicant must show that strict enforcement would make it difftcultc fuse undue hardshin,due because _of to circumstances unique to sire facility, under consideration {c. e., topological challenges or line ofaigLjt issugLand demonstrate that the granting of the variance will be in keepirly with the spirit and intent of this ordinance. (F) Administrative Approval of New Facilities in Public Rights of Way. Providers proposing the construction or installation of new facilities in the public rights of way s ecifrcally excluding the renlacetnerit of existing structures) Isha_1]_c_omply with - - - - following requirements: (1) Construction Maintenance. The provisions of § 110.02(E), with the exception of §§ 110.02(E)(3) and (E)(l0), shall govern the process of approval for the construction or installation of any new facilities within the public rights of way. (2) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $50.00 for each new facility located in the public right of way. If the Provider is installing its own fiber optic technology to a particular location and does not otherwise have a City franchise to do so,:or does not t U franchise fees to the Citynur cwant to another reet tent,',the Provider shall also provide the City with four (4) dark pairs of fiber that the City may use for a public purpose. (3) Height Limitations. New facilities placed by the provider in public rights of way are permitted to be a maximum height of no more than ten (10) feet above the median height of other telecommunications facilities in the block for the proposed location, but in no event taller than thirty (30) feet above grade. (4) Camouflaging or Stealth Technology Required. New facilities shall be designed to be camouflaged to the greatest extent possible including, but not limited to, use of compatible building materials and colors, incorporation within street lights, screening, landscaping, and placement within trees. All antenna arrays, cables, and other accessories used for providing the services shall not be obtrusive or noticeably visible. The Zoning and Development Administrator may approve the installation of a standard utility pole in areas where such installation will not degrade the streetscape but any facilities shall be camouflaged to the greatest extent possible. Camouflaging and stealth technology shall be required in all residential areas, improvement districts (including, but not limited to, the Dickson Street area and College Avenue improvement corridor), and any area in which utilities have been installed or relocated underground. Understanding that new technologies are anticipated to change the components of telecommunications facilities, the Administrator Commented [PB8]: Al the request of Cox Communications we are recommending that we recognize that providers who have a franchise through the State of Adcaosas but still pay City franchise fees should be exempt Commented [PB9]: Al the Planning Director's request, we have included a clear standard for staff to consider variance requests. This is the same standard used by the Board of Adjustment when considering variances to zoning regulations. Commented [PB10]: Further clarification that replacement of a pole is not installation of a new facility. "� Commented [P811]: Same change as (E)(8) above. may determine if a telecommunications facility or component of a telecommunications facility is designed to be stealth. (5) Fall Zone. The minimum distance from the base of any facility to any residential dwelling unit shall be the lower height or required setback, whichever is greater, unless all persons owning said residence or the land on which said residences are located consent in a signed writing to the construction of said facility. This setback is considered a "fall zone." In the event that an existing facility is proposed as a mount for the provider's equipment, a fall zone shall not be required. (6) :Distance between new facilities.. New facilities, excluding facilities camouflaged to fit within the streetscape (e.g., facilities incorporated within a street light), shall be spaced a minimum of five hundred feet (500') from any other new facility approved under this section. (7) Information Required to Process Requests for New Facilities. (a) Provide a map of the geographic area that your project will serve; (b) Provide a map that shows other existingofj4anhied facilities that wfl4 are be -used by the telecommunications provider who is making_the_ -- --- - - - - -- - - - - -- — application; (c) Provide a map that shows other potential standalone locations for your facility that have been explored; (d) Provide a scaled site plan containing information showing the property boundaries, proposed facility, existing land use, surrounding land uses and zoning, access road(s) location and surface material, existing and proposed structures and topography.-T-4+e-pkw 51tBL4-ittdieete-sed #arid �+r rtei g-pRl7�i rg Pear l$eatie-4 O""r sipoge*nd ,.the moi_- --- - (e.)__Describe why the proposed location is superior, from a community perspective, to other potentia] locations. Factors to consider in the community perspective should include: visual aspects, setbacks, and proximity of single-family residences; (P} -Describe your efforts to cam► Iso teinstall your facility on existing structures;-e,n f-the-Wes-eF4 e"at eurrefArex or-is-tlttdee eon wmetkm. The applicant should demonstrate a good faith effort to locate facilities on eeistins structures andur,co-locate with other carriers. The city may deny a request to construct or install a new structure by an applicant that has not demonstrated a good faith effort to -viih ses_pect to this requirement. preade ferrrrsad faith -effort includes.: fg}--A-sur•Mev-vf alfa i�tit sttroctrif+k-s-t4101-H+ay bv-kaSimhle-sirtes4or c-0 4fte ig-wireltssree+t}tmimeoti"lig-faaml tins; (-4rj--�onlaet wft4t-al l c+tl:eFEeleeenstt�ar�ieat#ons-pfevidet�: (I)(f). Shanag-information-neeessary4o-deterfnine ifeo-loeatien is -feasible ander-tile de�at�asr�t�uretiatrttayst-tttxrtadatrns;-tere>Et-lvs�ttican; Commented [PB12]: AT&T requested that we clarify this language, The team does not think this is necessary. The original intent was to make sure new wood poles were spaced out; however, the application of this would also Ibnit i other types of poles or structures that don't fit into the streetscape. We want to encourage camounaging and stealth I technology and do not limil the spacing of those types of facilities as long as they fit within the streetscape.. Commented [PB13]: Some providers are concerned about issues with releasing confidential infonnalion about future planned facilities to the City that could negatively impact their competitive advantage- While I believe the City would not be allowed to release this if we received a Freedom of 1 Information Act request, because ofthe competitive {� advantage exception, we understand Ore sensitive nature of this information and do not believe it would be necessary for staffto make its decision on applications. Commented [PB141: This language is from our cell lower ordinance and would not apply to the small cell facilities We recommend removing the language. The remaining k language is relevant to staffs consideration of the f applications. f -amble., ------------------------------------ (j)(g) Describe whether you will or will not accommodate equipment of other telecommunications providers that could co -locate on your facility. Describe how such accommodation will impact both your pole and your ground mounted facilities. Provide documentation of your provider's willingness or unwillingness to accommodate other providers who may be able to co -locate on your facility. (8) Application Time Frame. A final decision shall be issued for applications for facilities under subsections (E) and (F) within 60 calendar days subject to the following: (a) The City shall supply written notice to the Applicant within thirty days of receipt of an Application clearly and specifically delineating any missing documents or information. (b) Applicant shall submit any supplemental documentation and information to the City. (c) City shall then have up to ten (10) calendar days to notify Applicant that the supplemental documentation or information satisfies the City's request. (d) Second or subsequent notices may not specify missing documents or information that were identified in the original notice of incompleteness. (e) This timeframe shall be tolled in cases in which the City determines that the application is incomplete. This timeframe may also be tolled by mutual agreement of the Applicant and City. (G)New Structures on Private Property. Telecommunications providers proposing the construction or installation of new poles or towers on privately owned property in the City shall comply with the provisions of § 163.13 Wireless Communicettions Facilities and shall obtain a conditional use permit. This excludes the rq1p aceniestt of existine structures as provided in suissection (EX4) above. (H)New Facilities on Public Property. The City of Fayetteville will actively market its own property and existing facilities as suitable co -location sites—. Applications for new facilities on public property shall be subject to the Administrative Review process. An annual lease amount should be charged according to the fair market value of the location. In cases in which the company no longer needs the facility, the city may require it to be removal. Applicants may be required to provide co -location space for city -owned facilities. I1=or p sesQ1_tliis suhsectign._public Omperty Strad not include anv public right of way or structures in any public right of way. Small cell facilities instalf_ed in the public ri&ht of way or on structures in the public right of way shall nav oniv the fees `et forth fit su >seciian LE -Land shall not W charged additional fees under this subsection. (1) Appeals. An Applicant may appeal to the City Council a decision or interpretation made in the Administrative Review process by the Zoning and Development Administrator. Appeals shall follow the procedure set forth in Section 155.02 of the Unified Development Code. Pedestrian access and safety. All facilities shall be Commented [PB15]: Nearly all carriers have indicated that they will be unwilling to co -locate their facilities with otherprovidem Recognizing this, werecommend removing, some of the specific requirements but still requiring providers to show a good faith effort to co -locate and/or install on existing structures before they receive approval to install a new pole or structure in the right ofway. This is in line with the Administration's priority to encourage co - location and installation on existing facilities and reduce the number of new poles and other structures in town. Commented [PB16]: Clarification that replacements are not new structures Commented [PB17]: Clarification at AT&T's request. installed in such a manner not to impede, restrict, or adversely impact pedestrian or vehicular safety or convenience, or violate any provision of the Americans with Disabilities Act. (J) Emergency removal or relocation of facilities. The City retains the right to cut or move any facility located within its rights-of-way as the City, in its sole discretion, may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. 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Thank you. Susan Dear City Council - As you know, the City of Fayetteville has an aggressive agenda for digital inclusion and broadband deployment while maintaining our community's aesthetic values, safety standards, and an even playing field for all telecommunications providers. We have continued to work over several months with providers, incorporating a majority of the modifications they have requested; however, we are reluctant to concede any points that would undercut the aesthetic standards we are trying to set. For example, the 500 foot spacing requirement was modified to only impact new poles that do not fit within the existing streetscape but it has been misinterpreted to mean 500 feet between all facilities. Providers can leverage existing poles to install equipment as needed, regardless of the spacing requirements. If an. existing pole can not be used to provide coverage, new structures can be installed within the 500 foot area as long as they are camouflaged or use stealth technology. During all of our discussions in person and over email, and in the very presentation they gave the Council two weeks ago showing photos of proposed structures, the providers indicate they understand the value of stealth and camouflage technologies for aesthetic purposes. After the presentation on the Small Cell Facilities ordinance at the October 17 City Council meeting, I forwarded the final draft of the ordinance and the synthesized staff comments to telecommunications providers who have been following this item, asking that they submit any new substantive comments to me by COB Wednesday, October 25. We did not receive additional comments from those providers who attended the October 17 City Council meeting. We did, however, receive additional comments from one firm representing the Townes Telecommunications Company in Lewisville, Arkansas. Townes is an existing local exchange carrier in southwest Arkansas who recently entered the potential 5G market in our region with the purchase of spectrum from the Federal Communications Commission auction. This firm wishes to find a 5G project that is a fit for our region. Townes is discussing 5G based WIFI; the other carriers are discussing 4G cellular (to boost service within saturated networks) with intent to implement 5G at the same locations when standards are adopted. The information presented by the consultant on behalf of Townes Telecommunications is attached. As you can see, they have no issues with the ordinance in the areas objected to by some cellular providers with respect to stealth/camouflage, height, distance between poles, and co -location. The administration will not be making any further changes requested by the providers and recommends that you consider the red -lined draft that is before you. For now, we believe we have written flexibility into the ordinance in an effort to accommodate providers today and in the future. The administration desires feedback from the City Council and will make adjustments as the Council deems appropriate. Thank you. Team @FYVGOV (Susan, Blake, Keith, Don, Garner) LAW OFFICES BLOOSTON, MORDKOFSKY, DICKENS, DUFFY & PRENDERGAST, LLP 2120 L STREET, NW BENJAMIN H. DICKENS, JR. WASHINGTON, DC 20087 AFFILIATED SOUTH AMERICAN OFFICES JOHN A. PRENDERGAST ESTUDIO JAUREGUI & ASSOCIATES GERARD J. DUFFY (202) 659.0880 BUENOS AIRES, ARGENTINA RICHARD D. RUBINO FACSIMILE: (202) 828-5568 MARY J. SISAK HAROLD MORDKOFSKY D. CARY MITCHELL OF COUNSEL SALVATORE TAILLEFER, JR. EUGENE MALISZEWSKYJ ARTHUR BLOOSTON October 11, 2017 ENGINEERING CONSULTANT 1914-1999 WRITER'S CONTACT INFORMATION bad@bloostonlaw.c oin 202-828-5510 VIA Federal Express and Electronic Mail Devin Howland, CEcD Director of Economic Vitality City of Fayetteville City Council 113 W. Mountain Street City of Fayetteville, AR 72701 Email: Qbfa)Lettevi1le-aL.goy RE: Small Cell Ordinance Comments Dear Mr. Howland: I represent Townes Telecommunications, Inc. ("Townes"), and I have been asked by our consultant Edward M. Roche provide you with Townes' comments on the proposed Small Cell Ordinance that was discussed in the City Council meeting October 3rd, 2017. Townes is a local Arkansas company headquartered at 120 East First Street, in Lewisville, Arkansas. Townes is the sole owner of the 5G spectrum license for the 28 GHz for the counties of Fayetteville, Springdale and Rogers. The reserved spectrum under the FCC's Universal Licensing System is titled "Local Multipoint Distribution Service License" and has the call sign WPOJ979.1 In preparing comments on the proposed Small Cell Ordinance that was discussed at the City Council Meeting held on October 3, 2017, Townes has examined the following documents: (1) the video of the meeting, beginning at 2 minutes 30 seconds;2 (2) The City of Fayetteville Staff Review Form 2017-0532 Registrar File ID 10/3/2017; (3) the City Council Memo, September 18, 2017 from Susan Norton to the Mayor and City Council; (4) Exhibit "A", which is a copy of the draft ordinance named "110.03 Small Cell Facilities and Networks;" and (5) a 1 The details of this license are available on the FCC website at the following URL: IJtt °i://wirciess2.1'cc.gov/U lsApp/U lsSearch/license,osp?I icK€y=210713 2 As found at the following URL: httu:/laccessfayettevillc.granices.conl/MediaPlayer.php?view_id=14&clip id=5710 slide presentation titled "Small Cells are a Big Deal," October 3, 2017, n.a., n.p. (referred to as "the Slides"). In addition, Townes has considered the comments in that same meeting provided by representatives from Mobility, Smith Communications, Verizon, and AT&T, particularly the statement by AT&T that one reason why "co -location" of antennas is not technically feasible is because AT&T "will be using interference spectrum". Finally, Townes has considered a comment by one Council Member that the fees suggested in the proposed Small Cell Ordinance are "extremely magnanimous" (on the part of the City of Fayetteville). In response, Townes respectfully submits the following comments for your consideration: Issue 1): Additional Equipment Installed on Poles Supporting Antennas The City Council has not been provided complete information regarding the amount of equipment that is necessary to support a 5G antenna, and has the impression that much more equipment is needed than actually is. Specifically, Townes refers to a picture labeled "Samples of Small Cell Towers" found on Page 4 of the Slides, in which a significant amount of other pieces of equipment apart from the antenna are shown, including: (a) a fiber/telecom junction box; (b) radio packs; (c) grounding bar; (d) antenna coax; (e) electric meter; and (f) breaker panel/disconnect. Given all of this equipment, it reasonable for anyone to be concerned with a visual "technology blight" disturbing the pristine landscape for which Fayetteville is famous. In our view, this picture is deceptive. See Figure 1 below. It is a photograph of a 5G 28 GHz wireless installation. As you can see, all of the extra equipment mentioned above in the Slides is not necessary. On the contrary, the size of the antenna in Figure 1 is about the same as a pineapple. (Note: In Figure 1, the small rectangular shape near the bottom of the pole is a traffic sign, not a piece of supporting technology). This is because the 5G system in Figure 1 is using a different type of architecture than what the City Council has been shown in the Slides. Specifically, the antenna in Figure 1 is using "self -configuring mesh network" architecture instead of an individual connection with a terrestrial fiber optic network that relies on terrestrial cables. In the mesh network, the backbone Internet signals are passed from one antenna to another. In other words, there is no terrestrial connection, and therefore no need for these excessive structures on the supporting pole. Please note also that in Figure 1 you are looking at not a test or demonstration network, but a live network in service today. ira Figure 1: In -Service 5G 28 GHz antenna. Location 52'l 2'47.43N 0°06'39.05"E. (The rectangular shape near the bottom of the pole is a traffic sign, not part of any telecommunications infrastructure.) Issue (2): The Co -Location Rule The spectrum that Townes is proposing to use is licensed. There will not be any other carrier operating on these 5G frequencies without its permission. As a consequence, since any co -location by definition will not have antennas operating at our licensed frequencies, Townes has no objection to the co -location rule. Townes shares with the City of Fayetteville the view that co -location is an efficient and ecologically sound way to both better utilize existing resources, protect the environment, and minimize the visual "technology blight" in the City that would occur with unconstrained and reckless deployment of too many antennas. Issue M: 500 Foot Rule Ref-mrdin,2 Seiaaration of Antennas The typical propagation of unobstructed 5G signals is 1-2 kilometers. If there are obstructions, then the propagation is small. With today's technology, obstruction can be caused by (a) trees and leaves and (b) buildings. However, the new 5G antenna technology being developed, called MIMO (multiple -input and multiple -output) uses a "method for multiplying the capacity of a radio link using multiple transmit and receive antennas to exploit multi -path propagation." Included in the R&D engineering design for 5G is the ability of antennas to bounce signals off of buildings, and thereby "go around" solid structures, thereby avoiding the need for strict line -of -sight. These technologies are being developed under the program of standardization managed by the International Telecommunications Union (ITU), an international organization based in Geneva, Switzerland. But these standards will not be available for at least 2 years, probably more. The reason the vendor comments you have received thus far are cold towards the 500 foot rule is that they are not envisioning deployment of "real" 5G. Instead, they are planning on deployment of a less -sophisticated technology that is reliant on non -licensed spectrum. Such technology will not have the sophistication of "true 5G", which will include the MIMO capabilities described above. The essence of the objection expressed by other vendors is that they wish each to be able to erect their own separate antennas to service the exact same geographic area, such as a public park or other place where many persons will be found. We believe it is in the interest of the City of Fayetteville to seek more clarification regarding the exact technologies being considered by each vendor in their "5G" deployments. Issue (4): Thirty Feet Height Restriction In our view, it is perfectly reasonable for the City of Fayetteville to be concerned with the placement of numerous tall antennas everywhere. If completely unrestricted, the City will start to look from the air like a spine -laden puffer -fish. However, in the type of architecture Townes is proposing, the access to the Internet will be provided not by the linking of each antenna into a terrestrial fiber cable, which is expensive and unsightly, but instead via a wireless link to an Internet "Point -of -Presence" (POP), located on a building, or possibly on a cell tower. If the Internet PoP is located on a cell tower, then like other antennas on a cell tower, our 5G antenna 0 needs to be located at a height greater than 30 feet. Except for our PoP antenna, if located on a cell tower, Townes does not envision any need for our service antennas to be located higher than 30 feet. To resolve this issue, Townes recommends that the City implement a waiver process so that the rule can be set aside when circumstances warrant, such as a small cell antenna being used solely for PoP purposes to supply Internet to a 5G mesh antenna network is located on a cell tower that already is zoned for providing antenna infrastructure, and that is of a height of greater than 30 feet. Issue (5): The Need for Providinu Dark Fiber During the October 5, 2017 City Council meeting, mention was made of "providing dark fiber" as a condition of installing 5G antennas. We have been unable to locate this specific provision in the copy of the Ordinance that Townes are in possession of We would comment, however, that the type of architecture Townes is considering avoids the use of unsightly and expensive terrestrial cables for antenna access to the Internet. As a consequence, if there is a requirement to provide "dark fiber" for each antenna, then this rule would be unduly burdensome and expensive. In addition, it would completely bypass the advantages of the "all -wireless" architecture Townes are proposing. Therefore, Townes would suggest that the City of Fayetteville amend its ordinance so that providing "dark fiber" would be required only in situations where the antenna being installed is itself dependent upon directly connected terrestrial wired network infrastructure to get to its Internet PoP. Issue (6): The Fees (Atmlication Fee: Annual Fee Under the proposed Ordinance, there are two fees envisioned. The first is a $200 dollar application fee. The second is an annual $250 fee. It is our presumption that the $200 dollar application fee is to compensate for the considerable effort that will by necessity be expended by the City of Fayetteville in consideration and review of applications. Townes finds the application fee to be reasonable, or even generous, on the part of the City of Fayetteville. The company is concerned, however, about the $250 dollar annual fee. The 5G architecture proposed by Townes will require many more antennas than previous generations of wireless technology. Specifically, Townes has estimated that adequate 5G coverage for the Bentonville, Springdale, and Fayetteville region, it easily would require 5,000 to 10,000 antennas. This would be an annual fee of $1-2.5 million dollars per year. Such an annual fee would be prohibitively expensive for Townes and, likely, any other similarly situated entity. It is Townes' understanding that the annual fee is based on the assumption that the builders of these antennas are major carriers who will be using their "5G" antennas to supplement services (such as 4G) that they already provide to tens of thousands of customers. But Townes does not have 4G mobile customers that are providing hundreds of millions of dollars per year in revenues; rather, Townes is a "pure" 5G carrier, not a "hybrid" 5G carrier able to cross -subsidize across lucrative wireless services. The annual fee, as proposed, would clearly prevent small local carriers who do not have the deep pockets to cross -subsidize 5G services using revenue streams from other services from entering the market, and FCC rules prohibit municipalities from adopting ordinances that have the effect of erecting barriers to entry in wireless telecommunications.3 Townes also believes that the ordinance should recognize that there are circumstances in which this annual fee and application fee should be waived altogether. For example, Townes intends to propose the cities of Fayetteville, Bentonville, and Springdale provide Wi-FI for their very popular and useful Trails system through Townes. The cities would pay for this service and then provide it to its citizens, similar to provisioning of electrical power. Except in this case, Wi- Fi service would be provided for free to citizens as part of the Trails system, and the citizens would pay for this in the same way they pay for Parks in general. Under these circumstances, then every effort must be made to reduce to the lowest possible level the cost of this system. Townes looks forward to bringing 5G technology to this market and very much appreciates the opportunity to share its views with the City Council. Please do not hesitate to contact the undersigned with any questions you may have. Sincerely, V-4 � a,,: 6I{ 1 V Benjamin H. Dickens, Jr. General Counsel, Townes Telecommunications, Inc. 3 47 U.S.C. 332(c). Proposed Ordinance to be introduced to 10/03/17 City Council Agenda EXHIBIT - A 3. Small Cell Facilities and Networks (A) Definitions: As used in § 110.03, the following terms shall have the meanings set out below: (1) Antenna means communications equipment that transmits or receives electromagnetic radio signals used in the provision of telecommunications services: (a) Distributed antenna system (DAS) means a network that distributes radio frequency signals and consisting of: 1. Remote communications or Antenna nodes deployed throughout a desired coverage area, each including at least one Antenna for transmission and reception; 2. A high capacity signal transport medium that is connected to a central communications hub site; and 3. Radio transceivers located at the hub's site to process or control the communications signals transmitted and received through the Antennas to provide Wireless or mobile Service within a geographic area or structure. (b)Small Cell Facility means a Telecommunications Facility that meets both of the following qualifications: Each Antenna is located inside an enclosure of no more than six (6) cubic feet in volume, or in the case of an Antenna that has exposed elements, the Antenna and all of the Antenna's exposed elements could fit within an imaginary enclosure of no more than six (6) cubic feet; and Primary equipment enclosures that are no larger than 17 cubic feet in volume, or facilities comprised of such higher limits as the FCC has excluded from review pursuant to 54 U.S.C. § 306108. Accessory Facilities may be located outside the primary equipment, and if so located, are not to be included in the calculation of equipment volume. Accessory Facilities 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. (c) Small Cell Network means a collection of interrelated Small Cell Facilities designed to deliver wireless service. Proposed Ordinance to be introduced to 10/03/17 City Council Agenda (2) Applicant means any person or entity that is engaged in the business of providing wireless services or the wireless infrastructure required for wireless services. (3) Competing local exchange carrier means a telecommunications provider that has received a certificate of public convenience and necessity from the Arkansas Public Service Commission under the authority of Ark. Code Ann. § 23-17-409 and is authorized to install equipment and operate within the public rights of way or on public or private property in the City of Fayetteville. This shall include distributed antenna systems, small cell facilities and small cell networks. (4) Person means any individual, resident, citizens, business firm, corporation, partnership, governmental agency, or institution. (5) Streets means all streets, roads, highways, alleys, rights-of-way, public utility easements, public property, public ways and air space over such streets, roads, alleys, public rights-of-way, public utility easements, public property and public ways located within the geographic limits of the city. (6) Telecommunications means the transmission, between or among points specified by the user, of information of the user's choosing without change in the form or content of the information sent and received, whether wired or wireless. (7) Telecommunications facilities or facilities means all conduits, manholes, poles, antennas, transceivers, wires, cable (including fiber optic cable) and appurtenances owned or utilized by a telecommunications provider or third party infrastructure provider and located in, under or over the streets of the city or on public or private property and utilized in the provision of telecommunications services. This includes without limit, towers of all types, and base stations, including but not limited to buildings, church steeples, water towers, signs, or other structures that can be used as a support structure for antennas or the functional equivalent of such. It further includes all related accessory facilities associated with the site. It is a structure and facility intended for transmitting and/or receiving, wireless services, Specialized Mobile Radio (SMR), personal communications services (PCS), commercial satellite services, microwave services, radio, television, and any commercial Wireless Service not licensed by the FCC. (8) Telecommunications Provider or provider means any person, firm, corporation, partnership or other business entity, other than the city, that provides telecommunications services within or without the geographic boundaries of the city by utilizing telecommunications facilities to provide telecommunications services. This shall include competing local exchange carriers or businesses that install small cell facilities on behalf of telecommunications providers. (9) Telecommunications services or services means any service delivering telecommunications by a telecommunications provider that the provider is authorized to provide under federal, state and local law, except that these terms do not include cable service as defined by the Cable Communications Proposed Ordinance to be introduced to 10103/17 City Council Agenda Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. §521 et seq., and the Telecommunications Act of 1996. (B) Compliance with State and Federal Regulations. Applicant shall comply with all applicable state and federal regulations. Proof of compliance shall be provided upon request of the Zoning and Development Administrator. (C) Consolidated Application. An applicant may file one consolidated application for a small cell network of up to ten (10) individual small cell facilities of a substantially similar design every seven calendar days. The City may require a separate application for any small cell facilities that are not of a substantially similar design. (D) An applicant shall submit with the application all documentation or other evidence required by the Zoning and Development Administrator to sufficiently establish the structural soundness of proposed facilities. (E) Administrative Approval of Co -Located Facilities. The Zoning and Development Administrator, following an administrative review, may approve the following facility installations: (1) Locating on Existing Structures. Installation of facilities on an existing structure other than a tower (such as a building, light pole, electric transmission tower, water tank, or other free-standing non-residential structure) provided that the facilities do not extend any higher than the existing structure. The Zoning and Development Administrator may grant a variance of up to five (5) feet in height when such additional height is necessary for improved functionality or safety. (a) Facilities Placed on Top of Buildings. When facilities extend above the roof height of a building on which it is mounted, every effort shall be made to conceal the facility within or behind existing architectural features to limit its visibility from public ways. Facilities mounted on a roof shall be stepped back from the front fagade in order to limit their impact on the building's silhouette. (b) Facilities Placed on Sides of Buildings. Facilities which are side - mounted on buildings shall be camouflaged (such as in a light fixture), shrouded, painted or constructed of materials to match the color of the building material directly behind them, and shall not extend above the roof line or extend more than two (2) feet from the facade of the building. (2) Locating on Existing Tower Not Previously Approved Through § 163.13 of the U.D.C. Existing towers that do not have facilities may not add such capability without securing a conditional use permit. Antennas may be replaced by similar antennas at the same height and for the same basic usage as the antennas being replaced. (3) Locating on Existing Towers Previously Approved Through § 163.13. Additional facilities may be placed upon any tower already approved through § 163.14 of the U.D.C. so long as such additional facilities would not violate any requirements of the conditional use permit or other provisions of § 163.13. Proposed C)rdimnee to be introduced to 10/03/17 -City Council Agenda (4) The applicant must submit a letter of intent indicating the intent and agreement to share space. (5) If proposed facilities are not or cannot be adequately camouflaged, the City may require the installation of new stealth facilities. (6) Any disturbance of City infrastructure (such as, but not limited to, streets, sidewalks, and utilities) shall be repaired and restored by the applicant at its expense and to a condition at least as good as that existing before the work causing such disturbance was commenced. (7) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $250.00 for each facility co -located on an existing structure in the public rights-of-way. (F) Administrative Approval of New Facilities in Public Rights of Way. Providers proposing the construction or installation of new facilities in the public rights of way shall comply with following requirements: (1) Construction Maintenance. The provisions of § 110.02(E) shall govern the process of approval for the construction or installation of any new facilities within the public rights of way. (2) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $250.00 for each new facility located in the public right of way. (3) Height Limitations. New facilities placed by the provider in public rights of way are permitted to be a maximum height of no more than six (6) feet above the median height of other telecommunications facilities in the block for the proposed location, but in no event taller than thirty (30) feet above grade. (4) Camouflaging or Stealth Technology Required. New facilities shall be designed to be camouflaged to the greatest extent possible including, but not limited to, use of compatible building materials and colors, incorporation within street lights, screening, landscaping, and placement within trees. All antenna arrays, cables, and other accessories used for providing the services shall not be obtrusive or noticeably visible. The Zoning and Development Administrator may approve the installation of a standard utility pole in areas where such installation will not degrade the streetscape but any facilities shall be camouflaged to the greatest extent possible. Camouflaging and stealth technology shall be required in all residential areas, improvement districts (including, but not limited to, the Dickson Street area and College Avenue improvement corridor), and any area in which utilities have been installed or relocated underground. Understanding that new technologies are anticipated to change the components of telecommunications facilities, the Administrator may determine if a telecommunications facility or component of a telecommunications facility is designed to be stealth. Proposed Ordinance to be introduced to 10/03/17 City Council Agenda (5) Fall Zone. The minimum distance from the base of any facility to any residential dwelling unit shall be the lower height or required setback, whichever is greater, unless all persons owning said residence or the land on which said residences are located consent in a sign writing to the construction of said facility. This setback is considered a "fall zone." In the event that an existing facility is proposed as a mount for the provider's equipment, a fall zone shall not be required. (6) Distance between new facilities. New facilities, excluding facilities camouflaged to fit within the streetscape (e.g., facilities incorporated within a street light), shall be spaced a minimum of five hundred feet (500') from any other new facility approved under this section. (7) Information Required to Process Requests for New Facilities. (a) Provide a map of the geographic area that your project will serve; (b) Provide a map that shows other existing or planned facilities that will be used by the telecommunications provider who is making the application; (c) Provide a map that shows other potential standalone locations for your facility that have been explored; (d)Provide a scaled site plan containing information showing the property boundaries, proposed facility, existing land use, surrounding land uses and zoning, access road(s) location and surface material, existing and proposed structures and topography. The plan shall indicate proposed landscaping, fencing, parking areas, location of any signage and specifications on proposed lighting of the facility; (e) Describe why the proposed location is superior, from a community perspective, to other potential locations. Factors to consider in the community perspective should include: visual aspects, setbacks, and proximity of single-family residences; (f) Describe your efforts to co -locate your facility on existing structures, one of the poles or towers that currently exists, or is under construction. The applicant should demonstrate a good faith effort to co -locate with other carriers. The city may deny a request to construct or install a new structure by an applicant that has not demonstrated a good faith effort to provide for co -location. Such good faith effort includes: 1. A survey of all existing structures that may be feasible sites for co -locating wireless communications facilities; 2. Contact with all other telecommunications providers; 3. Sharing information necessary to determine if co -location is feasible under the design configuration most accommodating to co -location; and Proposed Ordinance to be introduced to 10103117 City Council Agenda 4. Letter from tower or pole owner stating why co -location is not feasible. (g) Describe how you will accommodate equipment of other telecommunications providers that could co -locate on your facility. Describe how this accommodation will impact both your pole and your ground mounted facilities. Provide documentation of your provider's willingness to accommodate other providers who may be able to co - locate on your facility. (8) Application Time Frame. A final decision shall be issued for applications under subsection (D) within 60 calendar days. This timeframe may be tolled by mutual agreement or in cases in which the City determines that the application is incomplete. To toll the timeframe for incompleteness, the City shall provide written notice to the applicant within 30 days of receipt of the application, clearly and specifically delineating all missing documents and information. The timeframe shall begin running again when the applicant submits the supplemental documents or information in response to the City's notice. The City then has 10 days to notify the applicant that the supplemental submission did not provide the information identified in the original notice. Second or subsequent notices may not specify missing documents or information that were identified in the original notice of incompleteness. (G)New Structures on Private Property. Telecommunications providers proposing the construction or installation of new poles or towers on privately owned property in the City shall comply with the provisions of § 163.13 Wireless Communications Facilities and shall obtain a conditional use permit. (H) New Facilities on Public Property. The City of Fayetteville will actively market its own property and existing facilities as suitable co -location sites. As noted above, the review process is shortened and simplified when a request for location or co -location on city property is submitted by applicant. An annual lease amount should be charged according to the fair market value of the location. In cases in which the company no longer needs the facility, the city may require it to be removed. Applicants may be required to provide co -location space for city -owned facilities. (1) Pedestrian access and safety. All facilities shall be installed in such a manner not to impede, restrict, or adversely impact pedestrian or vehicular safety or convenience, or violate any provision of the Americans with Disabilities Act. (J) Emergency removal or relocation of facilities. The City retains the right to cut or move any facility located within its rights-of-way as the City, in its sole discretion, may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. City shall notify the provider after cutting or removing any facility within its rights-of-way. If circumstances permit, the City shall notify the provider in advance of any cutting or removal and give the provider an opportunity to move its own facilities. BARRACLOUGH October 24, 2017 Mrs. Susan Norton Director Department of Communications and Marketing City of Fayetteville, Arkansas 72701 Dear Mrs. Norton Edward M. Roche Edward M. Roche Director of Scientific Intelligence Barraclough NY LLC 135 East 54th Street 4-B New York, NY 10022 Phone: +1 (212) 758-1296 E-mail: Roche@barracloughllc.com Your question regarding spectrum is actually complicated, but I will summarize as best I can the situation. ADOPTION OF THE 5G STANDARDS I have attached a time -line of milestones in the evolution of 5G. This work is being done through the International Telecommunications Union (ITU). The standard- ization process is one of collaboration between carriers and vendors (manufacturers) of telecommunications equipment. The way it works is that the carriers conduct a number of experiments and when they find a solution that seems to work, they submit it as a standard. Naturally, more than one standard can emerge. It is important to note that a "standard" is not necessarily the only way to do something. But instead, it is something that a carrier chooses based both on its performance (reliability) but also on how adoption of that particular solution will fit with the business plans of the carrier. What you can see from the time -line is that we can expect at least some standards to be adopted by a vote at the ITU in late 2018. After that, and depending on what the carriers decide to do, the manufacturers (Nokias; Ericsson2) will begin ramping up their manufacturing of equipment, based on incoming orders from the carriers. After 1Nokia sold its cell phone business to Microsoft, but purchased Alcatel, and what was Bell Laboratories. Nokia, regardless of its Finnish name, is actually the old Bell Labs. 2The world's largest manufacturer of equipment is the Chinese company Huawei, but the U.S. Government has issued a report that strongly discourages any use of Huawei equipment becuase of fears of industrial and other espionage. As a consequence, it is doubtful you will find any responsible U.S. carrier or other vendor useing Huawei equipment. that, the roll-out of services will begin, and we can expect Fayetteville to get 5G in the 2020 period (although some carriers may claim what they are offering earlier than that is "5G"). So that summarizes in a superficial way the 5G time -line. LICENSED AND UNLICENSED SPECTRUM I have also attached a slide on spectrum. It shows the Townes band, but also the other frequencies that may be used for 5G communications. Lets move from Right to Left. On the right hand side, you can see three bands 71-76, 81-86, and 92-96Ghz that are the "E -Band". These are extremely high-capacity channels, but you should note that no one except possibly the military has any equipment for this yet. So it is really irrelevant for at least half of a decade and possibly longer. Next (coming from Right to Left) you see the 57-64Ghz band that is unlicensed. Because of the high frequency, this spectrum will not go through trees, is absorbed by oxygen itself, and will be used mostly indoors, like in a factory environment. Again, this is not really relevant to your Small Cells Ordinance, because it is highly doubtful that anyone is going to be attempting to run 60Ghz channels outdoors. Next (moving Right to Left) we have the LMDS band which is licensed, and which in your area is owned by Townes Telecommunications of Lewisville, Arkansas. (We are not a giant multinational carrier like AT&T and Verizon.) Then on the left hand side, it gets more interesting. There is the 3.5Ghz band. That is almost certainly what Verizon and AT&T are planning on hanging on your Small Cells around Fayetteville, if allowed to. But the licensing- scheme for the 3.5 spectrum is a little different. This is the CBRS or Citizens Broadband Radio Service. In this spectrum, the users (carriers) will be divided into three classes. Class I are the incumbents. These have the right to use the spectrum without interference of others. Example: some fixed satellite companies. Class II are call Priority Access Licenses (PALs). There is a limit of only 4 PALS in limited geographic areas, and for three years. PALS are divided up into into 7 segments each of 10Mhz size. Class III is called General Authority Access and has the lowest priority. In this band, the carriers will "fight" with each other to use this spectrum. This almost certainly is why the carriers object to the co -location rules of the Small Cell Ordinance. If they are forced to co -locate, then it will increase problems of competition for spectrum (since it is not licensed). WRAPPING UP What the carriers (AT&T and Verizon) are planning is to install 3.5Ghz antennas using unlicensed spectrum. After this is in place, then persons using mobile phones (or other wireless devices) will be able to "jump" onto these faster circuits when they are 2 available. For example, if a person is streaming video on their mobile device over the LTE network, then when they walk near to a carrier's 3.5Ghz antenna, the network will switch their session over to these faster circuits. Whether or not the carriers call this "5G" in some sense is a marketing issue. The higher -speed bandwidth that Townes is working with has a few key differences. First, it is very much faster. Second, it will not require users to be tied to a carrier in order to get access to network services. One will not need a contract with Verizon or AT&T. What we are going to propose soon to the City of Fayetteville is a way to use this higher -speed spectrum to provide WiFi to your Trails system, without all of the complex equipment that needs to be hung on the poles of the 3.5Ghz solution. Our solution will be many times less expensive, unless the carriers decide to compete by simply dumping their services into the market by cross -subsidizing them from other revenue -streams. Since we will be using licensed spectrum, then we do not care about co -location issues. And we also do not care too much about the rules on appearance of the poles, because our solution is so small and uncluttered. I hope that has given you a reasonable picture of the spectrum issues, and I hope that it has answered your question. If you have any other questions, then please feel free to contact me. Yours cordially, Edward M. Roche 3 G LO Ln Ln V, 4) DEPARTMENTAL CORRESPONDENCE OFFICE OF THE CITY ATTORNEY TO: Mayor Jordan City Council FROM: Blake Pennington, Assistant City Atiorne L -- DATE: November 7, 2017 Kit Williams City Attorney Blake Pennington Assistant City Attorney Rhonda Lynch Paralegal RE: Council Member Petty's Amendments to Small Cell Facilities ordinance Attached is a copy of the Small Cell Facilities and Networks ordinance with amendments highlighted that are being proposed by Council Member Matthew Petty. These are additional amendments to the draft I sent out to you yesterday afternoon. To summarize: • (E)(1) - grants providers five feet of additional height by right because antennas are going to extend above the pale or structure on which they are installed. providers can request an additional variance of tip to 10 feet total above the structure. • (E)(4) -- clarifies that replacement poles must be the same height but also grants five feet of additional height by right and up to 10 feet total by variance. • (F)(3) - changes the height limitation for new facilities from 30 feet city- wide to height based on street classification (30 feet for residential and local streets; 40 feet for collector streets; and 50 feet for arterial streets). Adds a variance procedure for a provider to receive up to 10 feet in additional height. (F)(G) - clarifies Haat the 500 foot spacing limitation only applies to new non -camouflaged, non -stealth poles. No spacing limitation applies for existing or co -located facilities or for new camotiflaged/stealth facilities. If these amendments meet with your approval, I would suggest moving to amend the ordinance to adopt this version of Exhibit A so discussion can be had on all of the proposed changes. EXHIBIT A, 110.03 Small Cell Facilities and Networks (A) Definitions: As used in § 110.03, the following terms shall have the meanings set out below: (1) Administrative Review means non -discretionary evaluation of an Application by the Zoning and Development Administrator. This process is not subject to a public hearing or conditional or special review process. (2) Antenna means communications equipment that transmits or receives electromagnetic radio signals used in the provision of telecommunications services: (a) Distributed antenna system (DAS) means a network that distributes radio frequency signals and consisting of: 1. Remote communications or Antenna nodes deployed throughout a desired coverage area, each including at least one Antenna for transmission and reception; 2. A high capacity signal transport medium that is connected to a central communications hub site; and 3. Radio transceivers located at the hub's site to process or control the communications signals transmitted and received through the Antennas to provide Wireless or mobile Service within a geographic area or structure. (b) Small Cell Facility means a Telecommunications Facility that meets both of the following qualifications: I . Each Antenna is located inside an enclosure of no more than six (6) cubic feet in volume, or in the case of an Antenna that has exposed elements, the Antenna and all of the Antenna's exposed elements could fit within an imaginary enclosure of no more than six (6) 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 FCC has excluded from review pursuant to 54 U.S.C. § 306108. Accessory Facilities may be located outside the primary equipment, and if so located, are not to be included in the calculation of equipment volume. Accessory Facilities 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. (c) Small Cell Network means a collection of interrelated Small Cell Facilities designed to deliver wireless service. (3) Applicant means any person or entity that is engaged in the business of providing wireless services or the wireless infrastructure required for wireless services. (4) Competing local exchange carrier means a telecommunications provider that has received a certificate of public convenience and necessity from the Arkansas Public Service Commission under the authority of Ark. Code Ann. § 23-17-409 and is authorized to install equipment and operate within the public rights of way or on public or private property in the City of Fayetteville. This shall include distributed antenna systems, small cell facilities and small cell networks. (5) Person means any individual, resident, citizens, business firm, corporation, partnership, governmental agency, or institution. (6) Stealth technology means systems, components and materials used in the construction of wireless communications facilities to make it compatible with the surrounding property. (7) Streets means all streets, roads, highways, alleys, rights-of-way, public utility easements, public property, public ways and air space over such streets, roads, alleys, public rights-of-way, public utility easements, public property and public ways located within the geographic limits of the city. (8) Telecommunications means the transmission, between or among points specified by the user, of information of the user's choosing without change in the form or content of the information sent and received, whether wired or wireless. (9) Telecommunications facilities or facilities means all conduits, manholes, poles, antennas, transceivers, wires, cable (including fiber optic cable), technology, and appurtenances owned or utilized by a telecommunications provider or third party infrastructure provider and located in, under or over the streets of the city or on public or private property and utilized in the provision of telecommunications services. This includes without limit, towers of all types, and base stations, including but not limited to buildings, church steeples, water towers, signs, poles, streetlights, traffic signals, or other structures that can be used as a support structure for antennas or the functional equivalent of such. It further includes all related accessory facilities associated with the site. It is a structure and facility intended for transmitting and/or receiving, wireless services, Specialized Mobile Radio (SMR), personal communications services (PCS), commercial satellite services, microwave services, radio, television, and any commercial Wireless Service not licensed by the FCC. (10) Telecommunications Provider or provider means any person, firm, corporation, partnership or other business entity, other than the city, that provides telecommunications services within or without the geographic boundaries of the city by utilizing telecommunications facilities to provide telecommunications services. This shall include competing local exchange carriers or businesses that install small cell facilities on behalf of telecommunications providers. (11) Telecommunications services or services means any service delivering telecommunications by a telecommunications provider that the provider is authorized to provide under federal, state and local law, except that these terms do not include cable service as defined by the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. §521 et seq., and the Telecommunications Act of 1996. (B) Compliance with State and Federal Regulations. Applicant shall comply with all applicable state and federal regulations. Proof of compliance shall be provided upon request of the Zoning and Development Administrator. Applicant shall not be required to enter into any franchise agreement with the City. (C) Consolidated Application. An applicant may file one consolidated application for a small cell network of up to ten (10) individual small cell facilities of a substantially similar design every seven calendar days. The City may require a separate application for any small cell facilities that are not of a substantially similar design. The form of the permit Application is located on the City's website under Small Cell Facilities and Networks. (D) An applicant shall submit with the application all documentation or other evidence required by the Zoning and Development Administrator to sufficiently establish the structural soundness of proposed facilities. (E) Administrative Approval of Co -Located Facilities and Facilities Located on Existing Structures. The Zoning and Development Administrator, following an Administrative Review, may approve the following facility installations: (1) Locating on Existing Structures. Installation of facilities on an existing structure other than a tower (such as a building, light pole, electric transmission tower, water tank, or other free-standing non-residential structure) provided that the facilities do not extend any higher than five feet above the existing structure. The Zoning and Development Administrator may grant an additional variance, not to exceed ten (10) feet in height above the existing structure, when such additional height is necessary for improved functionality or safety. (a) Facilities Placed on Top of Buildings. When facilities extend above the roof height of a building on which it is mounted, every effort shall be made to conceal the facility within or behind existing architectural features to limit its visibility from public ways. If concealment behind existing architectural features is not possible, screening panels manufactured to match existing architectural features may be used. Facilities mounted on a roof shall be stepped back from the front facade in order to limit their impact on the building's silhouette. Screening panels, if used, shall not exceed five (5) feet in height above the existing building's roofline. (b) Facilities Placed on Sides of Buildings. Facilities which are side - mounted on buildings shall be camouflaged (such as in a light fixture), shrouded, painted or constructed of materials to match the color of the building material directly behind them, and shall not extend above the roof line or extend more than two (2) feet from the facade of the building. The Zoning and Development Administrator may grant a variance of up to three (3) additional feet from the fayade of a building when such additional clearance is necessary for improved functionality or safety. (2) Locating on Existing Tower Not Previously Approved Through § 163.13 of the U.D.C. Existing towers that do not have facilities may not add such capability without securing a conditional use permit. Antennas may be replaced by similar antennas at the same height and for the same basic usage as the antennas being replaced. (3) Locating on Existing Towers Previously Approved Through § 163.13. Additional facilities may be placed upon any tower already approved through § 163.14 of the U.D.C. so long as such additional facilities would not violate any requirements of the conditional use permit or other provisions of § 163.13. (4) Replacement of Existing Structures. if installation of facilities requires the removal and replacement of an existing structure, such as a pole, the new structure shall be considered an existing structure for the purposes of this section as long as the replacement structure is the same height as the existing structure, is constructed of substantially similar material or is a camouflaged/stealth structure, and the replacement structure is located within five (5) feet of the location of the original structure. The provisions of § 110.02(E) shall govern the standards of and procedures for construction or installation of replacement facilities within the public rights of way. The facilities may extend up to five feet above the replacement structure. The Zoning and Development Administrator may grant an additional variance, not to exceed ten (10) feet in height above the replacement structure, when such additional height is necessary for improved functionality or safety. (5) The applicant must submit a letter of intent indicating the intent and agreement to allow co -location of facilities or installation of facilities on an existing structure. (6) If proposed facilities are not or cannot be adequately camouflaged, the City may require the installation of new stealth facilities. (7) Any disturbance of City infrastructure (such as, but not limited to, streets, sidewalks, and utilities) shall be repaired and restored by the applicant at its expense and to a condition at least as good as that existing before the work causing such disturbance was commenced. (8) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $250.00 for each facility co -located or installed on an existing structure in the public rights-of-way. If the Provider is installing its own fiber optic technology to a particular location and does not otherwise have a City franchise to do so, or does not pay franchise fees to the City pursuant to another agreement, the Provider shall also provide the City with four (4) dark pairs of fiber that the City may use for a public purpose. (9) Variances. In order to receive a variance under this subsection, an applicant must show that strict enforcement would make it difficult to provide service due to circumstances unique to the facility under consideration (e.g., topographical challenges or line of sight issues) and demonstrate that the granting of the variance will be in keeping with the spirit and intent of this ordinance. (F) Administrative Approval of New Facilities in Public Rights of Way. Providers proposing the construction or installation of new facilities in the public rights of way (specifically excluding the replacement of existing structures) shall comply with following requirements: (1) Construction Maintenance. The provisions of § I I0.02(E), with the exception of §§ I I0.02(E)(3) and (E)(10), shall govern the process of approval for the construction or installation of any new facilities within the public rights of way. (2) Fees. An applicant shall pay an application fee in the amount of $200.00 for a single facility and $25.00 for each additional facility included in the application. Providers with approved permits shall pay an annual fee in the amount of $50.00 for each new facility located in the public right of way. If the Provider is installing its own fiber optic technology to a particular location and does not otherwise have a City franchise to do so, or does not pay franchise fees to the City pursuant to another agreement, the Provider shall also provide the City with four (4) dark pairs of fiber that the City may use for a public purpose. (3) Height Limitations. New facilities placed by the provider in public rights of way are permitted to be a maximum height of no more than ten (10) feet above the median height of other telecommunications facilities in the block for the proposed location, but in no event taller than thirty (30) feet above grade for residential and local streets, forty (40) feet for collector streets, or fifty (50) feet for arterial streets. The Zoning and Development Administrator may grant a variance not to exceed ten (10) additional feet when such additional height is necessary for improved functionality or safety, In order to receive a variance under this subsection, an applicant must also show that strict enforcement would make it difficult to provide services due to circumstances unique to the facility under consideration (e.g., topographical challenges or line of sight issues) and demonstrate that the granting of the variance will be in keeping with the spirit and intent of this ordinance. (4) Camouflaging or Stealth Technology Required. New facilities shall be designed to be camouflaged to the greatest extent possible including, but not limited to, use of compatible building materials and colors, incorporation within street lights, screening, landscaping, and placement within trees. All antenna arrays, cables, and other accessories used for providing the services shall not be obtrusive or noticeably visible. The Zoning and Development Administrator may approve the installation of a standard utility pole in areas where such installation will not degrade the streetscape but any facilities shall be camouflaged to the greatest extent possible. Camouflaging and stealth technology shall be required in all residential areas, improvement districts (including, but not limited to, the Dickson Street area and College Avenue improvement corridor), and any area in which utilities have been installed or relocated underground. Understanding that new technologies are anticipated to change the components of telecommunications facilities, the Administrator may determine if a telecommunications facility or component of a telecommunications facility is designed to be stealth. (5) Fall Zone. The minimum distance from the base of any facility to any residential dwelling unit shall be the lower height or required setback, whichever is greater, unless all persons owning said residence or the land on which said residences are located consent in a signed writing to the construction of said facility. This setback is considered a "fall zone." In the event that an existing facility is proposed as a mount for the provider's equipment, a fall zone shall not be required. (6) Distance between new facilities. New non -camouflaged or non -stealth facilitiesshall be spaced a minimum of five hundred feet (500') from any other new non-cariwuflaged or non -stealth facility approved under subsection (F). New camouflaged facilities or new facilities utilizing stealth technology to fit within the streetscape (e.g., incorporated within a street light) shall not be subject to this distance, requirement. (7) Information Required to Process Requests for New Facilities. (a) Provide a map of the geographic area that your project will serve; (b) Provide a map that shows other existing facilities that are used by the telecommunications provider who is making the application; (c) Provide a map that shows other potential standalone locations for your facility that have been explored; (d) Provide a scaled site plan containing information showing the property boundaries, proposed facility, existing land use, surrounding land uses and zoning, access road(s) location and surface material, existing and proposed structures and topography.; (e) Describe why the proposed location is superior, from a community perspective, to other potential locations. Factors to consider in the community perspective should include: visual aspects, setbacks, and proximity of single-family residences; (f) Describe your efforts to install your facility on existing structures. The applicant should demonstrate a good faith effort to locate facilities on existing structures and/or co -locate with other carriers. The city may deny a request to construct or install a new structure by an applicant that has not demonstrated a good faith effort with respect to this requirement. (g) Describe whether you will or will not accommodate equipment of other telecommunications providers that could co -locate on your facility. Describe how such accommodation will impact both your pole and your ground mounted facilities. Provide documentation of your provider's willingness or unwillingness to accommodate other providers who may be able to co -locate on your facility. (8) Application Time Frame. A final decision shall be issued for applications for facilities under subsections (E) and (F) within 60 calendar days subject to the following: (a) The City shall supply written notice to the Applicant within thirty days of receipt of an Application clearly and specifically delineating any missing documents or information. (b) Applicant shall submit any supplemental documentation and information to the City. (c) City shall then have up to ten (10) calendar days to notify Applicant that the supplemental documentation or information satisfies the City's request. (d) Second or subsequent notices may not specify missing documents or information that were identified in the original notice of incompleteness. (e) This timeframe shall be tolled in cases in which the City determines that the application is incomplete. This timeframe may also be tolled by mutual agreement of the Applicant and City. (G)New Structures on Private Property. Telecommunications providers proposing the construction or installation of new poles or towers on privately owned property in the City shall comply with the provisions of § 163.13 Wireless Communications Facilities and shall obtain a conditional use permit. (H)New Facilities on Public Property. The City of Fayetteville will actively market its own property and existing facilities as suitable co -location sites. Applications for new facilities on public property shall be subject to the Administrative Review process. An annual lease amount should be charged according to the fair market value of the location. In cases in which the company no longer needs the facility, the city may require it to be removed. Applicants may be required to provide co -location space for city -owned facilities. For purposes of this subsection, public property shall not include any public right of way or structures in any public right of way. Small cell facilities installed in the public right of way or on structures in the public right of way shall pay only the fees set forth in subsection (E) and shall not be charged additional fees under this subsection. (1) Appeals. An Applicant may appeal to the City Council a decision or interpretation made in the Administrative Review process by the Zoning and Development Administrator. Appeals shall follow the procedure set forth in Section 155.02 of the Unified Development Code. Pedestrian access and safety. All facilities shall be installed in such a manner not to impede, restrict, or adversely impact pedestrian or vehicular safety or convenience, or violate any provision of the Americans with Disabilities Act. (J) Emergency removal or relocation of facilities. The City retains the right to cut or move any facility located within its rights-of-way as the City, in its sole discretion, may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. City shall notify the provider after cutting or removing any facility within its rights-of-way. If circumstances permit, the City shall notify the provider in advance of any cutting or removal and give the provider an opportunity to move its own facilities. DEC 12 2017 NORTHWEST ARKANSAS 0171' O FAYETTEVIC_ "i CIT; / A���� Ordinance: 6009 File Number 2017-0532RR��''rr''�7N,SMALL mocrat V CELL COMMUNICATIONS FACILITIES: AN ORDINANCE TO ENACT § 110.03 SMALL CELL FACILITIES AND NETWORKS INTO CHAPTER 110: TELECOMMUNICATION FRANCHISE, BILLPOSTING, AND SMALL CELL FACILITIES AND NETWORKS WHEREAS, the City has been approached AFFIDAVIT OF PUBLICATION by multiple telecommunications providers who are interested in erecting small cell facilities throughout the City to provide I Karen Caler do soll swear that I am the Le al Clerk of the , emny g services to Fayetteville residents; and WHEREAS, it is necessary to balance the Northwest Arkansas Democrat -Gazette, printed and published in importance of ensuring residents have access to this important technology, the Washington County and Benton County, Arkansas, and of bona fide providers' interest in having a streamlined, circulation, that from my own personal knowledge and reference consistent and fair procedure and fees to install and maintain the facilities, and the to the files of said publication the advertisement of: interest of the City and residents in , responsibly managing the use of the public rights of way and minimizing the aesthetic impact of small cell facilities. CITY OF FAYETTEVILLE NOW, THEREFORE, BE IT ORDAINED Ord. 6009 BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby enacts § 110.03 Small Cell Facilities and Networks Was inserted in the Regular Edition on: in Chapter 110: Telecommunication Franchise, Billposting, and Small Cell Facilities and Networks of the Fayetteville Code as shown in Exhibit "A" attached November 3 0, 2017 hereto and made a part hereof. PASSED and APPROVED on 11/21/2017 Approved: Publication Charges: $ 88.40 Lioneld Jordan, Mayor Attest: Sondra E. Smith, City Clerk Treasurer 74356932 Nov. 30, 2017 Kar n Caler Subscribed and sworn to before me This (© day of f �YC , 2017. (AD. (A�& Notary Public My Commission Expires: ? CATHY WILES Arkansas Benton County Notary Public - Comm# 12397118 My Commission Expires Feb 20, 2024 **NOTE** Please do not pay from Affidavit. Invoice will be sent.