2396ORDINANCE NO. 2396
AN ORDINANCE TO AMEND THE BLAIR MUNICIPAL CODE BY AMENDING
CHAPTER 10 BUSINESS REGULATIONS, AND ADDING A NEW ARTICLE 23
ENTITLED "SMALL CELL WIRELESS FACILITIES", REGULATING THE CITY'S
PROCESSING OF APPLICATIONS FOR THE DEPLOYMENT OF SMALL
WIRELESS FACILITIES BY TELECOMMUNICATIONS COMPANIES; AND TO
PROVIDE THE EFFECTIVE DATE THEREOF, REPEALING ALL ORDINANCES OR
PARTS OF ORDINANCES IN CONFLICT HEREWITH, PROVIDING WHEN THIS
ORDINANCE SHALL BE IN FULL FORCE AND EFFECT AND PUBLISHING IN
PAMPHLET FORM.
BE IT ORDAINED by the City Council of the City of BLAIR, Nebraska as
follows:
Section 1. That the BLAIR Municipal Code is amended by amending Chapter 10
Business Regulations, to include a new Article, namely: Article 23 entitled "Small Wireless
Facilities", consisting of Sections 10-2301 through 10-23XX, reading as follows:
Chapter 10 BUSINESS REGULATIONS.
ARTICLE 23. Small Wireless Facilities
Section 10-2301. Findings and purpose.
A. The city council finds that it is necessary to achieve a balance between the
telecommunications needs of the city's citizens, and the orderly, safe, and
aesthetic deployment of small wireless facilities by telecommunications
companies. The deployment of small wireless facilities is expected to enable the
provision of improved and enhanced wireless services to citizens and visitors in
the city. The FCC has encouraged and required the adoption of policies
supporting the deployment of small wireless facilities, in its September 27, 2018
Declaratory Ruling and Third Report and Order, WT Docket Nos. 17-79 and 17-
84. Also, 2019 Legislative Bill 184 imposed new limits on the local regulation of
small wireless facilities. Those actions encourage the placement of such small
wireless facilities in public rights of way.
B. The city is responsible for the safe and aesthetic maintenance of its public rights
of way, for the benefit of the public and for the protection of public health, safety,
and welfare. Public rights of way are a finite resource and are subject to demands
from competing interests. It is necessary to govern their use in a fair, safe, and
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orderly manner. This includes the proposed use of public right of way for
telecommunications purposes. The city is also responsible for the processing and
review of proposed telecommunications uses for properties other than public
rights of way, with the objective ofprotecting public health, safety, and welfare.
C. It is therefore appropriate to adopt these rules and regulations for the processing
and review of proposed small wireless facilities, both on public rights of way
and on other properties.
D. The purpose of this article is to adopt regulations governing the safe, responsible,
and fair deployment of small wireless facilities on public rights of way and on
other properties. It is the further purpose of this article to comply with or adopt
provisions stated in the said September 27,2018 FCC Order and 2019
Legislative Bill 184.
Section 10-2302. Definitions.
For the purposes of this Article, the defined terms, phrases, words, abbreviations, and
their derivations shall have the meaning given in this section. The purpose of these
provisions is to promote consistency and precision in the interpretation of this Article.
Themeanings and construction ofwords assetforthshall apply tluoughoutthisArticle,
unless where modified in a specific section or where the context of such words or
phrases clearly indicates a different meaning or construction.
ACTION or TO ACT --The city's grant of an application or issuance of written decision
denying an application.
ANTENNA --Communications equipment that transmits or receives electromagnetic
radio frequency signals used in providingwireless services.
APPLICABLE CODES -- Any uniform building, fire, safety, electrical, plumbing, or
mechanical codes adopted by a recognized national code organization or local
amendments to such codes so long as such amendments are not in conflict with federal
or state law and to the extent such codes have been adopted by the city and are generally
applicable in the city.
APPLICANT -- Any person who submits an application and is a wireless provider.
APPLICATION -- A written request submitted by an applicant to the city (1) for a
permit to collocate small wireless facilities on an existing utility pole or support
structure or (2) for a permit for approval for the installation, modification, or
replacement of a utility pole to support the installation of a small wireless facility.
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AUTHORIZATION -- Any approval that the city must issue under this article and
applicable codes prior to the deployment of a small wireless facility, along with any
associated antenna equipment and support structure, including, but not limited to,
zoning approval, building permit, and permit under this article.
CANTENNA -- means a cylindrical shaped antenna.
COLLOCATE or COLLOCATION -- To install, mount, maintain, modify, operate,
or replace small wireless facilities on or adjacent to a support structure or utility pole.
Collocate or collocation does not include the installation of a new utility pole or new
support structure in the right-of-way.
COMMUNICATIONS FACILITY -- Any set of equipment and network components
including wires, cables, and associated facilities used by a cable operator as defined
in 47 U.S.C. 522(5), as such section existed on January 1, 2019, a telecommunications
carrier as defined in 47 U.S.C. 153(51), as such section existed on January 1, 2019,
a provider of information service as defined in 47 U.S.C. 153(24), as such section
existed on January 1, 2019, or a wireless services provider, to provide communications
services, including cable service as defined in 47 U.S.C. 153(8), as such section
existed on January 1, 2019, an information service as defined in 47 U.S.C. 153(24),
as such section existed on January 1, 2019, wireless services, or other one-way or two-
way communications service.
COMMUNICATIONS NETWORK -- A network used to provide communications
service.
COMMUNICATIONS SERVICE -- A cable service as defined in 47 U.S.C. 522, as
such section existed on January 1, 2019, an information service as defined in 47
U.S.C. 153, as such section existed on January 1, 2019, a telecommunications service
as defined in 47 U.S.C. 153, as such section existed on January 1, 2019, or a wireless
service.
COMMUNICATIONS SERVICE PROVIDER --A cable operator as defined in 47
U.S.C. 522, a provider of information service as defined in 47 U.S.C. 153, or a
telecommunications carrier as defined in 47 U.S.C. 153, as such sections existed on
January 1, 2019. Communications service provider includes a wireless provider.
DECORATIVE POLE -- A utility pole that is owned, managed, or operated by or on
behalf of the City, and which is specially designed and placed for aesthetic purposes.
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DEPLOYMENT -- Placement, construction, or modification of a small wireless
Facility.
FCC --The Federal Communications Commission.
FEE -- A one-time, nonrecurring charge, to be collected upon application.
HISTORIC DISTRICT -- Any prehistoric or historic district, site, building, structure,
or object included in, or eligible for inclusion in, the National Register of Historic
Places, in accordance with Stipulation VI.D. 1. a (i) -(v) oftheNationwide Programmatic
Agreement for Review of Effects on Historic Properties for Certain Undertakings
Approved by the Federal Communications Commission codified at 47 C.F.R. part 1,
Appendix C, as such regulation existed on Januaiy 1, 2019, or designated pursuant to
state historic preservation law if such designation exists at the time of application.
LAW --Any federal, state, or local law, statute, common law, code, rule, regulation,
order, or ordinance.
MAKE-READY WORK -- All work, as reasonably determined by the city, required to
accommodate a small wireless facility on a utility pole, and to comply with all the city's
applicable codes. Such work includes, but is not limited to, modification or replacement
of utility poles or lines, installation of guys and anchors, rearrangement of existing
equipment, inspections, reasonable consultant fees or expenses, permitting work, design,
planning, construction, materials, cost of removal (less any salvage value), tree
trimming (other than tree trimming performed for normal maintenance purposes),
facility construction, or conduit system clearing, but does not include ordinary
maintenance.
MICROWIRELESS FACILITY --Any small wireless facility that is not larger in
dimension than twenty-four inches in length, fifteen inches in width, and twelve
inches in height and with any exterior antenna no longer than eleven inches.
ORDINARY MAINTENANCE AND REPAIR -- Inspections, testing and/or repair
that maintain functional capacity, aesthetic and structural integrity of a facility.
PERMIT -- A written authorization, in electronic or hard copy format required by the
city to perform an action, initiate, continue, or complete installation of a small wireless
facility on an existing utility pole or an existing support structure, or to install,
modify, or replace a utility pole to support installation of a small wireless facility.
PERMITTEE -- An applicant that has received a permit under this article, and its
successors and assignees.
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PERSON -- An individual, a corporation, a limited liability company, a partnership,
an association, a trust, or any other entity or organization.
PUBLIC POWER SUPPLIER -- A public power district or any other governmental
entity providing electric service. Public power supplier includes a municipal electric
utility or a rural public power supplier.
RATE -- A recurring charge, collected on a regular basis such as annually.
REPLACE or REPLACEMENT -- In connection with an existing utility pole or
support structure, to replace (or the replacement of) same with a new pole or
structure in conformance with this article and any other applicable codes, in order to
address limitations of the existing pole or structure to structurally support collocation
of a small wireless facility.
RIGHT OF WAY -- The area on, below, or above a public roadway, highway, street,
sidewalk, alley, dedicated utility easement, or similar property, but not including a
freeway as defined in§ 39-1302, the National System of Interstate and Defense
Highways, or a private easement.
RURAL PUBLIC POWER SUPPLIER -- A public power district, a public power
and irrigation district, an electric cooperative, or an electric membership association,
that does not provide electric service to any city of the metropolitan class, city of the
primary class, or city of the first class.
SIGHT TRIANGLE ZONE -- An area defined by a triangle with legs of 30 feet from
the point at which the curbs or edges of two intersecting streets, private ways, trails,
sidewalks, courts or an intersecting street, private way, trail, sidewalk or court and
driveway meet.
SHOT CLOCK -- The period of time in which the city is required to act on an
application.
SMALL WIRELESS FACILITY -- Any wireless facility that meets each of the
following conditions: (1) The facilities (a) are mounted on structures fifty feet or less
in height including the antennas or (b) are mounted on structures no more than ten
percent taller than other adjacent structures; (2) each antenna associated with the
deployment is no more than three cubic feet in volume; (3) all other equipment
associated with the structure, whether ground -mounted or pole -mounted, is no more
than twenty-eight cubic feet in volume; (4) the facilities do not require antenna
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structure registration under 47 C.F.R. part 17, as such regulation existed on January
1, 2019; (5) the facilities are not located on tribal lands, as defined in 36 C.F.R.
800.16(x), as such regulation existed on January 1, 2019; and (6) the facilities do not
result in human exposure to radio frequency radiation in excess of the applicable
safety standards specified in 47 C.F.R. 1.1307(b), as such regulation existed on
January 1, 2019.
SUPPORT STRUCTURE -- Any structure such as a guyed or self-supporting tower,
billboard, building, or other existing or proposed structure designed to support or
capable of supporting wireless facilities other than a structure designed solely for the
collocation of small wireless facilities. "Support structure " does not include a utility
pole.
TECHNICALLY FEASIBLE -- By virtue of engineering or spectrum usage, the
proposed placement for a small wireless facility, or its design or site location, can be
implemented without a reduction in the functionality of the small wireless facility.
UTILITY POLE or POLE -- A pole located in the right-of-way that is used for
wireline communications, lighting, the vertical portion of support structures for traffic
control signals or devices or a similar function, or for the collocation of small wireless
facilities and located in the right-of-way. Utility pole does not include (1) support
structures, (2) any transmission infrastructure owned or operated by a public power
supplier or rural public power supplier, and (3) any distribution or communications
infrastructure owned or operated by a rural public power supplier.
WIRELESS FACILITY -- Equipment at a fixed location that enables wireless
communications between user equipment and a communications network, including
(a) equipment associated with wireless communications and (b) radio transceivers,
antennas, coaxial or fiber-optic cable, regular power supply, and small back-up
battery, regardless of technological configuration. Wireless facility includes small
wireless facilities. "Wireless facility" does not include (a) the structure or
improvements on, under, or within the equipment which is collocated, (b) coaxial or
fiber-optic cable that is between wireless structures or utility poles or that is
otherwise not immediately adjacent to, or directly associated with, a particular
antenna, or (c) a wireline backhaul facility.
WIRELESS INFRASTRUCTURE PROVIDER -- Any person, including a person
authorized to provide telecommunications service in the State of Nebraska, when
acting to build or install wireless communication transmission equipment, wireless
facilities, or support structures, but that is not a wireless services provider.
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WIRELESS PROVIDER -- A wireless services provider or a wireless infrastructure
provider when acting as a co -applicant for a wireless services provider.
WIRELESS SERVICES -- Any services using licensed or unlicensed spectrum,
including the use of Wi-Fi, whether mobile or at a fixed location, provided to the
public using wireless facilities.
WIRELESS SERVICES PROVIDER -- A person who provides wireless services.
WIRELINE BACKHAUL FACILITY -- An above -ground or underground facility
used to transport communications services from a wireless facility to a
communications network.
Section 10-2303. Applicability.
This article shall apply to all deployments of small wireless facilities on rights ofway or other
public or private property within the city and its two mile extraterritorial jurisdiction, as
amended or annexed from time to time, except as specifically excluded in this section or
in this article. With respect to deployments on rights of way which are owned by another
jurisdiction, the city shall coordinate its regulation under this article with such jurisdiction,
by agreement or otherwise, so that only one of the jurisdictions regulates the same. This
article shall not apply to any facility that was in existence and authorized by an agreement
with the city as of the effective date of this article. Notwithstanding this section, the shot
clock for an application shall be governed by this article or by an existing agreement,
whichever provides for a shorter shot clock. Notwithstanding this section, application fees
and yearly rates shall be governed by this article or by an existing agreement, whichever
provides for smaller fees or rates. Small wireless facilities shall be governed by this article,
and not by other lease requirements ofthe city or this Code. This article shall not apply to the
design, engineering, construction, installation, or operation of any small wireless facility
located in the interior structure or upon the site of any college or university campus, stadium,
or athletic facility not owned or controlled by the city, other than to comply with applicable
codes. For an application submitted to the State of Nebraska regarding a location within right
of way or other property owned or controlled by the State, to the extent that the State seeks a
recommendation from the city regarding such application, the city shall apply the location
and design standards of Section 10-2311. The applicant for a location on such State right of
way or other property shall provide to the city a copy of the application submitted to the State,
but no application fee shall be due. This article shall not apply to a micro wireless facility
that is strung on a cable between existing utility poles in compliance with the National
Electrical Safety Code, which may be installed, maintained and operated without permit or
fees; provided, that standard rules regulating the excavation or closing of sidewalks or streets
shall apply to the same.
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Section 10-2304. Permit required.
It shall be unlawful for any person to install, maintain, or operate a small wireless facility,
unless such person shall have previously obtained a permit under this article from the city
expressly authorizing such small wireless facility. It shall be unlawfiil for any person to
collocate a small wireless facility on or associated with an existing utility pole or support
structure, unless suchperson shall have previously obtained a permit under this article from
the city expressly authorizing the attachment or association ofthat specific small wireless
facility. It shall be unlawful for any person to construct, install, replace, maintain, or operate
anew utility pole or support structure to which will be attached or associated a small wireless
facility, unless suchperson shall have previously obtained a permit under this article.
Section 10-2305. Application.
A. Form and content. Application for a permit under this article shall be filed with
the Director of Public Works or his/her designed, on a form provided by that
department. On or in addition to that form, an application shall include the
following:
(1) The applicant's name, address, telephone number, and e-mail address,
including emergency contact information for the applicant.
(2) The names, addresses, telephone nuunbers, and e-mail addresses of all
consultants, if any, acting on behalf of the applicant with respect to the
application.
(3) A description of the proposed work and the purposes and intent of the
proposed small wireless facility.
(4) If applicable, written authorization from the owner of the utility pole or
support structure on which the small wireless facility will be placed or
attached, if not the city. For a utility pole or support structure owned or
controlled by the Omaha Public Power District or other owner, the
applicant shall provide proof of approval of the specific plans by that
District or owner.
(5) Two (2) detailed construction drawings regarding the proposed small
wireless facility, and any associated equipment and utility pole or
support structure. The drawings shall show the location, dimensions,
elevations, equipment specifications, and attachment methods for the
small wireless facility, all equipment, and the utility pole or support
structure.
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(6) To the extent the proposed small wireless facility involves collocation
on a utility pole or support structure, a structural report performed by a
duly licensed engineer evidencing that the pole or support structure will
structurally support the collocation (or that the pole or support structure
will be modified to meet structural requirements) in accordance with
applicable codes.
(7) For any new above ground antenna equipment, a conceptual rendering
of the said equipment, including accurate visual depictions and
locations, if not included in the construction drawings.
(8) A full description of any make-ready work to be performed by the city
in preparation for theproposed installation and use ofthe small wireless
facility, associated equipment and utility pole or support structure.
(9) The application fee as required by this article.
(10) Bond and certificate of insurance as required by this article.
(11) The application form shall include:
(a) Language providing for the indemnification of the city by the
applicant as required by this article; and
(b) Anattestation bythe applicant that the small wireless facility shall
be operational for use by a wireless services provider within nine
months after the later ofthe completion of all make-ready work or
the permit issuance date, unless a delay is caused by lack of
commercial power or communications transport facilities to the
site, in which case the deadline shall be extended for up to nine
months.
(c) The applicant's signature on and submittal of the application
shall constitute agreement to subsections (A) and (B) above.
B. Batching. An applicant may not apply for more than one small wireless facilities in
a single application. Application fees shall be paid for each small wireless facility,
as provided in this article.
C. Replacement or modification. A permittee shall be required to file an application and
pay an application fee for the proposed replacement or modification of an existing
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small wireless facility, antenna equipment, or associated utility pole or support
structure. In such case, the application shall include two (2) updated drawings of
the facilities showing such replacement or modification. Such proposed
replacement or modification shall be reviewed and acted upon by the city as if it
were an initial application. This section C does not apply to the replacement of a
small wireless facility with a small wireless facility that is substantially similar in
weight or windage or the same size or smaller, in which case no permit, application,
or fee is required.
D. Shot clock. The city shall act on a filed application, and all associated requests, on
or before the expiration of the shot clock period.
(1) The shot clock period for an application is the sum of:
(a) Ninety days, plus one additional period of ten business days if
requested in writing by the city prior to the expiration of the
ninety days, plus,
(b) Such additional number of days of the tolling period, if any,
pursuant to subsection (D)(2) below.
(2) Unless a written agreement between the applicant and the city provides
otherwise, the tolling period for an application, if any, is as set forth
below:
(a) If the city notifies the applicant in writing on or before the
twentieth day after submission that the application is incomplete,
and specifically identifies the missing documents or information,
the shot clock date calculation shall restart at zero on the date on
which the applicant submits all the documents and information
identified bythe city to render the application complete.
(b) Subsequent findings of incompleteness shall further toll the shot
clock from the time the city sends written notice of
incompleteness until the time the applicant provides the missing
information.
(c) If the applicant submits new or additional documents or
information that include material changes not otherwise required
by the city, a new application and application fee shall be
submitted.
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(3) The shot clock deadline for an application is determined by counting
forward, beginning on the day after the date when the application was
submitted, by the number of calendar days of the shot clock period
identified pursuant to this subsection (D); provided, that if the deadline
calculated in this manner falls on a weekend or holiday, the deadline shall
be the next business day after such date. The term " business day" means
any day that is not a weekend day or holiday.
E. Permit issuance. Approval of an application authorizes the permittee to maintain and
operate the small wireless facilities and any associated utility pole covered by the
permit for a period of five years, subject to applicable relocation requirements and
the permittee' s right to terminate at any time. At the end of each such term, such
permit shall be considered automatically renewed for an equivalent duration so long
as the permittee complies with the criteria of this article as of the time the permit
was issued.
Section 10-2306. Fees.
A. Application fees.
(1) An application for a permit under this article for the collocation of a small
wireless facility on an existing utility pole or support structure shall be
accompanied by an application fee in the amount of $100.00 per small
wireless facility.
(2) An application for a permit for one new, modified, or replacement utility
pole or support structure intended to support one or more small wireless
facilities, and for one small wireless facility to be placed on such pole or
structure, shall be accompanied by an application fee of $250.00 per pole
or structure.
B. Annual rates. A permittee who does not pay the city any occupation taxes under
Chapter 10, Article 18 of this Code shall pay to the city an annual rate of $20.00 for
each small wireless facility attached to a utility pole in city right of way, and an
annual rate of $250.00 for each small wireless facility located anywhere else in city
right of way or city property. A permittee who does pay the city any occupation
taxes under Chapter 10, Article 18 of this Code shall not be required to pay to the
city an annual rate the annual rate shall be paid by or before January 1, in advance
for the ensuing year.
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C. Reimbursement of direct costs. If the applicant or permittee excavates or damages
city right of way or other city property and the city repairs such excavation or
damage, the applicant or permittee shall reimburse to the city the actual cost of
such repair, as provided in Section 10-2310.
Section 10-2307. Interference, removal, relocation and abandorunent.
A. In the event that any facility of a permittee on city right of way or city property
obstructs or hinders the usual travel or public safety or obstructs the legal use
of such right of way or property by utilities or other authorized users, the city
may provide written notice to the permittee of such interference and of the
need to resolve such interference. In the event that any such facility of the
permittee causes any radiofrequency interference to any city facilities or other
uses of city right of way or city property, the city may notify the permittee in
writing of such interference and the need to resolve such interference. Upon
service of any notice under this subsection, the permittee shall remedy such
interference within 90 days or, in the case of an emergency, within such
shorter time period as directed by the city. If such interference is not resolved in
a timely manner, the permittee shall, at its own expense, remove its facilities
from that location. In such case, the permittee may apply for the relocation of
similar facilities at another location, without payment of an application fee.
B. Within 10 days following written notice from the city, the permittee shall, at
its own expense, protect, support, temporarily or permanently disconnect,
remove, relocate, change or alter the position of any of its facilities, whenever
the city has determined, in its sole discretion, that such removal, relocation,
change or alteration is necessary for the construction, repair, maintenance or
installation of any city improvement in, under or upon the public right of way.
The permittee shall be responsible to the city for any damages orpenalties the
city may incur as a result of the permittee' s failure to remove or relocate the
facilities as required in this subsection.
C. The city retains the right and privilege to cut ormove any facility ofthepermittee
located within the public right of way or on city property, as the city may
determine in its sole discretion to be necessary, appropriate or useful in
response to any public emergency. If circumstances petanit, the city shall notify
the permittee and give the permittee an opportunity to move its own facilities
prior to cutting or removing the facilities. In all cases the city shall notify the
permittee after cutting or removing the facilities as promptly as reasonably
possible. The permittee shall reimburse the City for any costs incurred as a
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result of having to cut or move any facility of the permittee located within
the public right of way or on city property, and shall hold the city harmless
from any damages to the permittee's property.
D. Permittee understands and acknowledges that the city, at any time and from time to
time, may require permittee to remove or relocate upon a written request from the city
right of way or the city property upon ten (10) days' notice at permittee's sole cost
and expense, all or a portion of the small cell facility whenever city reasonably
determines that the removal or relocation is needed: (1) to facilitate or accommodate
the construction, completion, repair, relocation, or maintenance of a city project, (2)
because the small cell facility interferes with or adversely affects proper operation of
the light poles, traffic signals, city -owned communications systems or other city
facilities, (3) because of a sale or vacation of the Public Ways by the city, (4) because
there is a change in use of the right of way by the city provided such use similarly
effects similarly licensed users in the public right of way, (5) because there is damage
to and/or removal of the pole or right of way, or (6) to preserve and protect the public
health and safety, in a manner not inconsistent with 47 U.S.C. § 332(c)(7). Permittee
shall at its own cost and expense remove, relocate and/or adjust the small
cell facility, or any part thereof, to such other location or locations in the Public
Rights -of -Way, or in such manner, as appropriate, as may be designated or granted,
in writing and in advance, by the city. Such removal, relocation, adjustment shall be
completed within the time prescribed by the city in its written request and in
accordance with the terms of this Agreement. Permittee shall not be in default
hereunder if it has taken appropriate action as directed by the city to obtain such grant.
If permittee fails to remove, relocate, adjust or support any portion of the small cell
facility as described by the city within the prescribed time, city may take all
reasonable, necessary, and appropriate action, as stated in this ordinance.
E. The permittee may abandon its facilities at a location. The permittee shall notify
the city of abandonment of any facility at the time the decision to abandon is
made, but in no case shall such notification be made later than 30 days prior to
abandonment. The permittee shall, within 30 days of such notice, remove its
facilities at the permittee's own expense, unless the city determines and states
in writing, in its sole discretion, that any part ofthe facilities may be abandoned
in place. The permittee shall remain solely responsible and liable for all of its
facilities until they are removed from the public right of way unless the city
agrees in writing to take ownership of the abandoned facilities. For the purpose
of this subsection, abandonment of facilities and cancellation of the related
permit shall also be deemed to have occurred after such facilities are not used
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for a period of one year.
F. If the permittee fails to timely protect, support, temporarily or permanently
disconnect, remove, relocate, change or alter any of its facilities or remove any
of its abandoned facilities as required in this section, the city or its contractor
may do so. In such case, the permittee shall pay all reasonable costs related to
such work.
Section 10-2308. Indemnification.
In submitting an application and maintaining and operating its facilities, the
permittee agrees to indemnify, defend and hold the city harmless from all
claims, costs, damages, demands, suits, judgments, court costs and costs of
defense, including attorney fees, which arise out of, in whole or in part,
permittee' s acts or omissions pursuant to its permit or this article, or which
arise out of, in whole or in part, the installation, construction, operation, or
maintenance of the permittee's facilities, whether or not any act or omission
complained of is authorized, allowed, or prohibited by the permit or this article.
Permittee's indemnity shall not apply to any loss or damage resulting from the
negligence or willful misconduct of the city or its employees, contractors, or
agents. The application to be signed by the applicant shall contain the
indemnification language stated in this section.
Section 10-2309. Insurance.
A. Upon and after application, the permittee of a permit under this article shall
procure and thereafter continuously maintain for as long as any pen -nit in its favor
remains in effect, at the permittee's expense, commercial general liability
insurance per ISO form or its equivalent with a limit of at least $2,000,000 per
occurrence and at least $2,000,000 general aggregate for bodily injury
(including death) and $2,000,000 property damage, including explosion,
collapse and underground property damage and an Umbrella liability of
$4,000,000 with a maximum deductible of $50,000.00 and/or base insurance.
Upon receipt of notice from its insurer(s), the permittee shall provide the city
with thirty (3 0) days prior written notice of any prospective cancellation of the
policy, unless the required coverage is immediately replaced. A certificate of
insurance shall be provided with the application. The policy shall be available
for review by the city upon request. The policy shall include the city as additional
insured as its interest may appear under this article.
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B. Upon and after application, the permittee of a permit located on right of way or
other city property shall provide and maintain in effect a bond naming permittee
as obligor, with a surety, in favor of the city, in the minimum amount of
$50,000, to cover all permitted sites of the permittee. The surety of the bond
shall be a surety company licensed to do business in Nebraska. The bond shall
be conditioned:
(1) That the permittee and its successors or assigns shall indemnify,
defend, and hold the city harmless from all claims, costs, damages,
demands, suits, judgments, and court costs and costs of defense, including
attorney fees, which arise out of, in whole or in part, permittee's acts or
omissions pursuant to its permit or this article, or which arise out of, in
whole or in part, the installation, construction, operation, or maintenance
ofthe permittee's facilities, whether or not any act or omission complained
of is authorized, allowed, or prohibited by thepermit or this article.
(2) For the maintenance of the sidewalk or public right of way.
(3) For the compliance with all applicable laws regarding the permitted
facilities and the use of the city right of way or other property.
(4) For the return of the sidewalk, street, right of way or other public
property to its condition prior to the permit.
Section 10-2310. Permittee duties.
As a condition of the issuance of a permit under this article, the permittee
shall perform the following duties:
A. Small wireless facilities and associated communications facilities, utility
poles and support structures shall be located, installed and maintained so that
they do not materially endanger the lives, health or safety of persons, or
materially interfere with any public improvements the city or other
governmental entities (including any traffic control devices or signs, gas,
electric, storm water, sanitary sewer or water utilities or enterprises) have in
place or may deem proper to make. The location, installation or maintenance
of the small wireless facility and associated communications facilities, utility
pole and support structure shall not hinder or obstruct the usual travel or
public safety on right of way, or obstruct the legal use of right of way by
utilities or the safe operation of their systems or provision of service.
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B. All small wireless facilities and associated communications facilities, utility
poles, and support structures shall be located, installed, and used so as to
cause minimum radiofrequency interference with the rights and reasonable
convenience of other users of rights of way and of owners' property which
adjoins rights of way, except to the extent such interference is specifically
authorized by federal law.
C. All construction, excavation, maintenance and repair work done by the
permittee shall be done in a safe, workmanlike and expeditious manner which
minimizes inconvenience and danger to the city, the general public and
individuals. All such construction, excavation, maintenance and repair work
done by the permittee shall comply with all applicable codes and laws. The
city shall have the right to inspect all construction or excavation work to
ensure compliance with applicable codes, laws, andpermits, andmay order the
permittee to perform corrective work. All right of way or other city property
disturbed by permittees' activities shall be promptly restored by the permittee at
its expense to its former condition, subject to inspection by the city. If the
permittee fails to make required repairs, the city may give the permittee written
notice of the required repairs. If after such notice the permittee fails to make the
required repairs within fourteen days, the city may make the repairs, and
permittee shall pay the city the reasonable documented cost of such repairs. The
city shall grant the permittee a ten-day extension to perform repairs ifrequested by
the permittee within the original fourteen -day period. In the event of immediate
threat to life, safety, or to prevent serious injury, the city may immediately
undertake to restore the site and then notify the permittee and charge the
peimittee for all reasonable restoration costs.
D. The permittee shall install, construct, maintain and operate its small wireless
facilities and associated communications facilities, utility poles, and support
structures in a safe manner providing reasonable protection against injury or
damage to any and all persons or property.
E. Unless otherwise specified in the permit, the permittee shall erect a barrier around
the perimeter of any excavation and provide appropriate traffic control devices,
signs and lights to protect, warn and guide the public (vehicular and pedestrian)
through the work zone. The manner and use of these devices shall be described
within a traffic control plan in accordance with the Manual on Uniform Traffic
Control Devices. The permittee shall maintain all barriers and other traffic control
and safety devices related to an open excavation until the excavation is filled and
finished to the satisfaction of the city, or as otherwise directed by the city.
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F. All construction and use of the small wireless facilities and associated
communication facilities, utility poles, and support structures shall comply with the
permit and approved final plans and specifications. Upon completion of installation
of the small wireless facilities and associated communication facilities, utilitypoles
and support structures, the permittee shall notify the Director of Public Works or
his/her Designee within three (3) business days of the completion of said work so
that the city may conduct an inspection as provided for above. The city will
perform any such inspection within five (5) business days. Any construction that
does not conform to the permit and approved final plans and specifications shall be
reconstructed or repaired to conform to the permit and approved final plans and
specification within five (5) business days. If the construction and use of the small
wireless facilities and associated communication facilities, utility poles, and
support structures continues to fail to conform to the permit and approved final plans
and specifications, the city may revoke the associated permit until such time as the
work is in conformance.
G. If a new utility pole or support structure is to be built for the sole or primaiy purpose
of supporting a small wireless facility, such pole or structure shall comply with all
applicable codes.
H. The permittee shall always follow the Manual on Uniform Traffic Control Devices
(MUTCD) when it is working in the street, city sidewalks, or in the right of way. The
city reserves the right to shut down construction by the permittee if the city determines
in its sole discretion that the permittee is violating public safety.
Section 10-2311. Location and design standards.
The City desires to promote aesthetically acceptable and area conforming wireless
facilities using the smallest and least intrusive means available to provide small
wireless services to the community. All facilities in the public right of way must
comply with all applicable provisions in this section.
A. All small wireless facilities shall meet the following requirements:
(1) Antennas must be top -mounted or side -mounted and concealed within a
radome (a structural, weatherproof enclosure that protects an antenna and
is constructed of material that minimally attenuates the signal
transmitted/received by such antenna) or otherwise concealed to the
extent feasible. Cable connections, antenna mounts and other hardware
must also be concealed. The radome or other concealment elements must
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be non -reflective and painted or otherwise colored to match the existing
support structure.
(2) Each antenna shall be no more than three cubic feet in volume. All other
equipment associated with a small wireless facility, whether ground -
mounted or pole -mounted, shall be no more than twenty-eight cubic feet
in volume.
(3) The color of the small wireless facility shall reasonably match the color
of the utility pole or support structure upon which it is attached.
(4) There shall be no advertising or signs on the small wireless facility,
except for equipment logos, specifications, or maintenance instructions
that are generally not readable from the ground or from ten feet away,
and except for signage required by the FCC.
(5) A small wireless facility shall be mounted at a height no more than the
greater of (A) 50 feet, including the antenna, or (B) five feet above an
existing utility pole in place as of the effective date of this article and
located within five hundred feet in the same right of way.
(6) Antennas shall be no more than 12 inches in diameter and 48 inches in
height.
(7) If an antenna of the small wireless facility is side -mounted, it shall not
protrude more than eighteen inches outside the pole and shall not exceed
the height ofthe pole.
(8) The small wireless facility and all associated equipment mounted to the
outside of a pole or support structure shall be at least ten feet above grade,
excluding the disconnect switch.
(9) Collocations between wireless service providers on the same support
structure is required wherever technically feasible. If an applicant chooses
to not collocate in areas where options are or appear to be available, the
applicant must document that collocation is technically infeasible.
(10) Cabling shall be located within conduit or inside the pole or support
structureto as great a degree as possible, and otherwise shall be as flush
........._.. _......_... .
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to the pole or support structure as possible. Any support arms shall use
flanges or channels to conceal exterior cables and passive radiofrequency
gear. Shrouds, sleeves, or ninety -degree connectors shall be used to
prevent exposed cables.
(11) A small wireless facility shall include a disconnect switch. The
disconnect switch shall be no more than twelve cubic inches in size, shall
be painted the same color as the pole or support structure, and shall be
mounted on the pole or support structure at a maximum of six feet above
grade, unless otherwise directed by the city inspector.
(12) Unless otherwise required by the City, or for compliance with FAA or
FCC regulations, small wireless facilities shall not include any lights or
lighting.
(13) A small wireless facility may be placed on an existing utility pole that
exists within a sight triangle zone as of the effective date of this article;
provided, that any replacement pole replacing such an existing utility
pole shall be relocated outside of the sight triangle zone.
(14) A small wireless facility shall be placed on an existing utility pole whenever
feasible. New poles should only be permitted when it would unfeasible to place
a small wireless facility on an existing pole.
(15) Any small wireless facility mounted to an existing pole or a new or
replacement utility pole shall not be mounted less than ten (10) feet above
ground.
(16) Ground mounted cabinet shall only be used when no existing pole
or new pole is feasible and shall require separate consent of the city
council.
B. A new or replacement utility pole for a small wireless facility, referred to in
this subsection as a "new pole," shall be subject to the following
requirements:
(1) The new pole shall meet the generally applicable standards for such
poles as established by the owner of such poles.
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(2) The new pole shall comply with applicable codes of general
applicability.
(3) The new pole shall be reasonably similar in color, design, size, scale,
material, style, and arm structure to the nearest adjacent existing poles;
provided, that there shall be no new installations of wooden poles.
(4) A new pole replacing an existing decorative pole shall conform to all
non- discriminatory design aesthetic features of the existing decorative
pole.
(5)The height of a new pole shall not exceed the greater of (A) five feet
above the tallest existing utility pole in place as of the effective date of
this article located within five hundred feet of the new pole in the same right
of way, or (B) fifty feet above ground level.
(6) The diameter of the new pole shall be no more than fourteen inches;
provided, that the bottom sixty-six inches of the new pole may be no more
than eighteen inches in diameter.
(7) The new pole shall be in alignment with existing trees, utility poles, and
streetlights.
(8) The new pole shall be an equal distance between trees when possible, with
a minimum of 15 feet separation such that no proposed disturbance shall
occur within the critical root zone of any tree.
(9) The new pole shall be placed with appropriate clearance from existing
utilities, to accommodate the passage of traffic in the right of way and any
work done on or around the facilities.
(10) The new pole shall be placed outside of a 30 -foot clear sight triangle zone
where pedestrian trails, sidewalks, and streets intersect(s) .
(11) The new pole shall be placed so as not to be located along the frontage of
a Historic District.
(12) The new pole shall not be placed within 5 0 feet of the apron of afire station
or other emergency service responder facility.
201Paa,e
(13) In accordance with existing standards for street light poles, and provided it
does not result in an effective prohibition of service, a new pole shall be
located no closer than one hundred fifty feet from an existing street light
pole on an arterial or collector street, and no closer than one hundred feet
from an existing street light pole on a local or residential street. This
requirement shall not prevent the replacement of light poles in place as of
the effective date of this article that do not meet this spacing requirement.
(14) A new pole shall not be located within seven feet of an electrical
conductor unless the applicant obtains the written consent of the entity that
owns or manages the electrical conductor.
(15) Any small wireless facility mounted to the new pole shall not be mounted
less than ten (10) feet above ground.
C. All small wireless facilities, and all of their associated equipment, ground
equipment, communications facilities, and utility poles and support structures, shall
comply with the following requirements:
(1) So as not to impede or impair public safety or the legal use of the right-of-way
by the traveling public, ground mounted equipment must be installed below
grade or concealed in a ground -mounted cabinet. Ground mounted cabinet
shall only be used when no existing pole or new pole is feasible and
shall require separate consent of the city council. Ground mounted
cabinets must comply with the following design standards:
a. In urban sections with curb and gutter, ground mounted
equipment shall not be located closer than four (4) feet from the
pavement or face of curb, and shall not be located closer than two
(2) feet from a sidewalk, bike lane, or shared -use path as measured
to the nearest part of the equipment.
b. In rural sections with open ditches, ground mounted equipment
shall be located at least one (1) foot inside the right-of-way line.
C. Ground mounted equipment shall be placed outside of all sight
triangle zone(s) and shall avoid the front yards of residences
whenever possible.
d. Groundmounted equipment locations shallbe located aminimum
of twelve (12) feet from driveway aprons as measured parallel to
the right-of-way.
e. Ground mounted equipment shall be consistent with any
applicable design standards of the Blair Guidelines and
__ 211Page
Regulations for Driveway Location, Design and Construction.
f. Ground mounted equipment must be secured to a concrete
foundation or slab with a breakaway design allowing the equipment
to disconnect from the foundation in the event of collision or impact.
g. Screening of ground mounted equipment with a variety of plant
material may be required based on the characteristics of the
surrounding area.
h. All proposed ground mounted equipment shall be reviewed for
determination of applicability of the city's generally applicable
landscape screening requirements based on the surrounding
context, and where required, for appropriateness of the proposed
planting plan and plant specifications.
(2) Such items shall not materially interfere with sight lines or clear zones for air
or land transportation or pedestrians.
(3) Such items shall not obstruct or hinder the usual travel orpublics afety on right
of way or obstruct the legal use of right of way by utilities or the safe
operation of their systems or provision of service.
(4) Such items shall not violate or materially interfere with compliance with
the federal Americans with Disabilities Act of 1990 or similar federal or
state standards regarding pedestrian access or movement.
(5) Such items shall comply with applicable codes of general applicability.
Section 10-2312. Make-ready work.
A. In its application, the applicant shall identify any make-ready work proposed to
be performed by the city. Within one hundred twenty days after receipt of a
completed application, the city shall provide a preliminary good faith estimate
of the cost of such make-ready work to be paid by the applicant to the city. The
applicant shall pay to the city the amount ofthe estimated cost. Make-ready work
to be performed by the city shall be completed within ninety days after written
acceptance ofthe good faith estimate by the applicant. Upon the city's completion
ofthe make-ready work, the applicant shall pay the city, or the city shall refund to
the applicant, as the case may be, the difference between the cost estimate paid
and the actual cost. Total fees shall not exceed actual costs of the make-ready
work. Alternatively, the city and the applicant may agree that the applicant or a
party other than the city may perform the make-ready work, subject to the city's
approval before and after the work.
.............._._.... .
221Page
B. The city may require replacement of the utility pole if it determines that the
collocation would make the utility pole structurally unsound. The person owning
the utility pole shall not require more make-ready work than required to meet
applicable codes and industry standards.
Section 10-2313. Assigmnent.
A permittee may assign its rights to a permit, small wireless facility, and associated
equipment or structures it owns, to an assignee. Such assignment shall not be effective
until the applicant and the assignee sign and file with the building and inspections
department a notice of assignment, containing:
A. The assignee's name, address, telephone number, and e-mail address, including
emergency contact information.
B. Exact location of all small wireless facilities and associated equipment or
structures being assigned.
Section 10-2314. (Reserved)
Section 10-2315. (Reserved)
Section 2. Effective Date. This Ordinance shall be in fiill force and effect fifteen (15)
days after its passage. The City Clerk is directed to effectuate the publishing ofthis Ordinance
for at least one (1) week in a newspaper in general circulation within the City of Blair, which
publication must take place within fifteen days of the passage of this Ordinance by the City
Council. The City Clerk shall cause this Ordinance to bepublished inbook orpamphlet form.
That this Ordinance shall have the same force and effect as though it had been published at
large.
That a copy of said Ordinance shall be filed for use and examination by the public in the
office ofthe City Clerk.
PASSED AND APPROVED this 12TH day of MAY 2020.
CITY OF BLAIR,
RICHARD HANSEN, MAYOR
231Page
Attest:
$ NDA WHEELER, CITY CLERK
(SEAL)
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