§ 7-287. Use of rights-of-way.

(a)

Compliance with the law. A facility owner agrees at all times to comply with and abide by all applicable provisions of the state and federal statutes, state and federal regulations, and local laws including, but not limited to, applicable ordinances, zoning regulations, and engineering standards, not inconsistent with state and federal laws.

(b)

Permit required to commence work in public rights-of-way. Except in the case of an emergency, which shall include without limitation an out of service condition affecting 911 service, and which shall require subsequent notification to the city, no person shall construct any facility for the provision of communications services, including wireless services, under, or within any public rights-of-way which disrupts the public rights-of-way without first filing an application with and obtaining permits from the city, pursuant to applicable permitting requirements of the city, and other applicable city code requirements, except as otherwise provided in this article. An applicant may submit a consolidated application and receive a single permit for the collocation of up to thirty (30) small wireless facilities.

Unless otherwise required by this Code, no permit shall be required for installation and maintenance of service connections to customers' premises where there will be no disruption of the public rights-of-way. A communications services, wireless services or pass-through provider must be registered with the city prior to the issuance of any engineering or building permit.

(c)

Contents of construction proposal. As part of any permit application, with respect to new or existing facilities in the public rights-of-way, the registrant shall provide a proposal for construction of the communications facility, wireless communication facility, utility pole or wireless support structure that sets forth at least the following:

(1)

An engineering plan signed and sealed by a Florida registered professional engineer, or prepared by a person who is exempt from such registration requirements as provided in F.S. § 471.003, identifying the location of the proposed facility, including a description of the facilities to be installed, where it is to be located, and the size of facilities and equipment that will be located in, on, over, or above the public rights-of-way in compliance with minimum engineering standards and this article. Such engineering plan shall identify all existing utilities above and below ground within twenty-five (25) feet of the proposed installation and upon review, the city may require registrant to soft dig in the vicinity of the proposed facility. This requirement shall not apply to wireline pole attachment installations made in the communications space on utility poles.

(2)

A description of the manner in which the system will be installed (i.e. anticipated construction methods or techniques), the time required to construct the system, a maintenance of traffic plan for any disruption of the public rights-of-way, information on the ability of the public rights-of-way to accommodate the proposed system, if available (such information shall be provided without certification as to correctness, to the extent obtained from other users of the public rights-of-way), and, if appropriate given the system proposed, an estimate of the cost of restoration to the public rights-of-way. Such plan shall include the timetable for construction for each phase of the project, and the areas of the city which will be affected.

(3)

An application for a new utility pole or wireless support structure shall identify the location and height measured from grade of all utility poles existing within the same right-of-way within five hundred (500) feet of the proposed new pole and which existed in that location on July 1, 2017.

(4)

If an application seeks a permit for construction of a new utility pole, a new wireless support structure, or a repurposed structure, a statement or statements prepared by a professional registered engineer licensed to practice in the State of Florida, or a person who is exempt from registration requirements as provided in F.S. § 471.003, shall be submitted certifying that the construction will comply with all applicable standards. No such utility pole, wireless support structure, or repurposed structure shall be permitted in the public rights-of-way if any equipment attachments cause the load on the pole or existing or repurposed structure to exceed its structural wind-loading capacity as proposed, or it does not conform to the applicable standards.

(5)

To the extent permitted by law, the city may require such additional information as it finds reasonably necessary to review an application for a permit to perform work in the public rights-of-way.

(d)

Application completeness review. Within fourteen (14) days after receiving an application, the community development department shall notify the applicant by electronic mail as to whether the application is complete. If an application is deemed incomplete, the department shall specifically identify the required information missing from the application. If the department fails to provide such notification to the applicant within the fourteen-day application completeness review period, the application is deemed complete. An application is not deemed received until it has been delivered to the community development department. It is the responsibility of the applicant to ensure that an application has been delivered to the correct city department.

(e)

Permit sufficiency determination.

(1)

Application review. The city shall grant or deny a properly completed permit application for installation of a communications facility, a utility pole, or a wireless support structure in the public rights-of-way within sixty (60) days after receipt of the completed application. If the community development department has not approved or denied the completed application in writing by electronic mail within this time period, the application shall be deemed approved. If the application is denied, the community development department shall specify in writing the basis for the denial, including the specific code provisions on which the denial was based, and deliver such written denial to the applicant by electronic mail on the date of the decision to deny the application. The applicant may elect to cure the deficiencies identified in the written denial and resubmit the application within thirty (30) days after notice of the denial is sent to the applicant. The community development department shall approve or deny the revised application within thirty (30) days after receipt, or the application shall be deemed approved. Subsequent application review shall be limited to deficiencies cited in the application denial.

(2)

Request for alternative location. Within fourteen (14) days after the date of filing an application for the placement of a small wireless facility in the public right-of-way, the community development department may request that the proposed location of the utility pole or wireless support structure supporting the proposed small wireless facility be moved to another location and be placed on another existing structure or by placing a new utility pole or wireless support structure. The city and applicant may negotiate the alternative location, including alternative design standards and reasonable spacing requirements for ground-based equipment for thirty (30) days after the city submits the request. The applicant shall notify the city of its acceptance or rejection within the thirty-day negotiating period. If the applicant accepts the alternative location, the application shall be deemed granted for the agreed-upon alternative location and all other locations in the application. If the requested alternative location is rejected by the applicant, the community development department shall approve or deny the original application within ninety (90) days after the date the application was filed.

(3)

Consolidated permit applications. The city may separately address each proposed small wireless facility, or each utility pole or wireless support structure proposed to support the small wireless facility, for which incomplete information has been received or which are denied.   

(f)

New facilities prohibited if insufficient space available. The city shall have the power to prohibit or limit the placement of new or additional communications facilities within the public rights-of-way if there is insufficient space to accommodate, in accordance with the latest edition of the Florida Department of Transportation Utility Accommodation Manual: all of the documented requests to occupy and use the rights-of-way; the documented city plans for public improvements; or development projects which have been determined by the city to be in the public interest.

(g)

Installations shall not interfere with other right-of-way uses. All communications facilities other than micro wireless facilities, and all new utility poles or wireless support structures upon which such communications facilities will be attached, and their appurtenant attachments and ground-based facilities, shall be installed, located and maintained so as not to: (1) materially interfere with the safe operation of traffic control equipment; (2) materially interfere with sight lines or clear zones for transportation, pedestrians, or public safety purposes; (3) materially interfere with compliance with the Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement; (4) materially fail to comply with the latest edition of the Florida Department of Transportation Utility Accommodation Manual; or (5) fail to comply with applicable standards. Additionally, no communications facility that is not also a small wireless facility or a micro wireless facility shall unreasonably interfere with the use of the public rights-of-way by the public, to cause unreasonable interference with the rights and convenience of property owners who adjoin any of the public rights-of-way by preventing or unnecessarily impeding access to their private property, or to unreasonably interfere or conflict with public improvements or development projects which have been determined by the city to be in the public interest. The registrant shall be liable for the displacement, damage or destruction of any irrigation system or landscaping within the public rights-of-way. The use of trenchless technology (i.e., directional bore method) for the installation of communications facilities in the public rights-of-way as well as joint trenching or the collocation of facilities in existing conduit is strongly encouraged, and should be employed wherever possible. The city may issue such rules and regulations concerning the installation and maintenance of a communications facility in the public rights-of-way, as may be consistent with applicable law and not inconsistent with this article.

(h)

Equipment, vaults, boxes and cabinets. The safety, dimensions and location in the public rights-of-way of any communications facility equipment vaults, boxes or cabinets, or any small wireless facility, shall not interfere with the use of the public rights-of-way or encroach into safety sight triangles. After the effective date of this ordinance, no permit or order shall be granted authorizing placement, construction or modification in the public rights-of-way of an at-grade communications facility cabinet, box or vault having a total volume exceeding twenty-eight cubic feet (28 ft ), unless the registrant provides a statement explaining the need for the greater proposed dimensions and certifying that current technology provides no alternative consistent with the dimensional requirements of this section 7-287(h). The community development director or his or her designee may also require a statement certifying the need for the proposed equipment and location. No generators utilized in connection with communications services may be placed in the public rights-of-way, except temporarily in the case of emergency and with notification to the community development department. New utility pole and wireless support structure installations shall be of substantially the same design, material, and color of other utility poles and support structures in the surrounding environment. If the city has a documented plan to replace utility poles and support structures in the subject public right-of-way, the proposed utility pole or wireless support structure shall conform to the city's design, material, and color.   

(i)

Height, setbacks and related location requirements for certain communications facilities providing wireless service.

(1)

The height of a small wireless facility attached to a pole or structure located in the public rights-of-way shall not extend more than ten feet above the top of the pole or structure to which it is attached. Unless waived by the community development director or his or her designee, the height of a new utility pole, or a new wireless support structure, in the public rights-of-way to which a small wireless facility is attached shall not exceed the height of the tallest existing utility pole as of July 1, 2017, located in the same right-of-way, other than a utility pole for which a waiver has previously been granted, measured from grade in place within five hundred (500) feet of the proposed location of the small wireless facility. If no such existing poles are present in the public rights-of-way within five hundred (500) feet of such proposed new pole, the new pole shall not exceed fifty (50) feet.

(2)

The height of a new utility pole or new wireless support structure in the public rights-of-way to which a wireless facility other than a small wireless facility or micro wireless facility is attached shall not exceed the height of the tallest existing utility pole or wireless support structure in the public rights-of-way or on property adjoining the site of the proposed utility pole or wireless support structure within one hundred (100) feet of such proposed new utility pole or wireless support structure. If no such existing poles are present in the public rights-of-way or adjoining property within one hundred (100) feet of such proposed new pole, the new pole shall not exceed the maximum height as set forth below:

a.

In public rights-of-way where adjoining property is not residentially zoned, the top of the pole shall not exceed fifty-five (55) feet in height as measured from grade at the base of the pole;

b.

In public rights-of-way where adjoining property is residentially zoned, the top of the pole shall not exceed forty (40) feet in height as measured from grade at the base of the pole;

c.

For each collocation on an existing pole or a repurposed pole, the maximum heights set forth in sections (i)(2)(a) and (i)(2)(b) may extend an additional ten (10) feet to accommodate the collocation of the wireless facility, as may be necessary for engineering reasons or to avoid signal interference with existing wireless facilities mounted on the same structure, provided such collocation complies with all applicable standards.

(3)

Except as otherwise provided herein, communications facilities located in the public rights-of-way shall conform to the standards and requirements set forth in the State of Florida Department of Transportation Utility Accommodation Manual and applicable engineering standards.

(4)

No new utility pole or wireless support structure in the public rights-of-way to which wireless facilities other than small wireless facilities or micro wireless facilities are attached shall be permitted within the public rights-of-way a distance from any single-family residential structure that is equal to the combined height of the new utility pole or wireless support structure and the attached wireless facilities proposed to be installed. No new utility pole or wireless support structure shall be located directly in front of a single-family residential structure, but shall instead be located in the public rights-of way near or adjacent to side yard property boundaries between single-family residential structures. Where possible, such new poles and structures should be located in areas where existing foliage or other aesthetic features mitigate and obscure the view of the new pole from the nearby single-family residential structures. The requirements of this subparagraph shall not apply to repurposed structures or modified existing structures when there is a one-to-one repurposing of an existing structure or modification of an existing structure to allow collocation or attachment of a communications facility. All new poles, modified existing structures and repurposed structures shall be subject to the maximum height limitations set forth in section 7-287(i).

(5)

A box, cabinet or vault housing equipment connected to a communications facility that is in the public rights-of-way at-grade may be required to be screened from view.

(6)

For any new pole installation, the city may request a street light to be attached to the registrant's proposed pole.

(7)

Mobile or other temporary communications facilities are prohibited unless expressly approved by the city. An unapproved communications facility in the public rights-of-way shall be considered abandoned and may be removed by the city without further notice.

(8)

Each application for a new pole shall contain a rendering or photograph of the proposed new pole with attachments and any appurtenant equipment which depicts its aesthetic features including, but not limited to, the use of colors, landscaping and screening devices. The rendering or photograph shall also depict the proposed design, style, type, color, height and location of the facilities demonstrating compatibility with adjacent structures, compliance with the height and locational criteria contained in section 7-287, and consistency with the definition of a visually unobtrusive facility as defined in section 7-281.

(9)

No signals, lights, or illumination shall be permitted on a communications facility, except in the case of a light pole or a visually unobtrusive facility designed to emulate a light pole, to which such communications facility is attached, unless required by applicable state or federal laws or rules.

(10)

Communications facilities shall be mounted at a height and location that will not interfere with use of the public right-of-way.

(11)

Exterior looping of excess cable length installed on any communications facility located in the public rights-of-way is prohibited.

(12)

To minimize the adverse visual impacts associated with the proliferation and clustering of new poles, no utility pole, or wireless support structure, supporting a wireless facility other than a small wireless facility or micro wireless facility shall be located within four hundred (400) feet of any existing structure that can be collocated upon, repurposed or modified to allow collocation of such wireless facility within the public rights-of-way.

(13)

A wireless facility other than a small wireless facility or micro wireless facility located in the public rights-of-way shall, to the extent possible, be collocated on an existing or repurposed structure. When collocation of such facility on an existing structure is not feasible for structural, capacity, or signal interference reasons, the registrant must then demonstrate why modification of an existing structure or installation of a repurposed structure is not feasible. Only in the event that the registrant can demonstrate to the satisfaction of the community development director that there are no feasible collocation or attachment options available on existing or repurposed structures, may a registrant propose a new pole installation that will be subject to all locational, height and design requirements contained in section 7-287. Such new pole shall be designed and constructed to reasonably provide for future collocation and attachment opportunities for itself and other communications services providers.

(j)

Antenna collocations . Applications seeking collocation shall be processed in accordance with the applicable provisions of F.S. § 337.401(7)(d).

(k)

Signs and advertising prohibited. The use of any portion of a communications facility in the public rights-of-way for the posting of signs or for advertising purposes, including but not limited to the display of company name, banners and streamers is strictly prohibited, unless required by state or federal law. Any signage required for identification of safety, hazard or notice purposes is exempt from this prohibition.

(l)

Inspections.

(1)

Each registrant shall ensure that the city's community development department engineering division has current contact information for such registrant or its authorized representative.

(2)

The community development department may conduct periodic visual inspections of such facilities in the public rights-of-way to ensure structural integrity and electrical safety. The owner of such poles, structures, or facilities that are found to violate applicable standards or to be in an unsafe or hazardous condition will be required to remedy such condition.

(m)

Actual or effective prohibition; cooperative determination. In the event a registrant demonstrates to the satisfaction of the community development director that operation of this section results in an actual or effective prohibition of wireless services, the registrant and the community development director or his or her designee shall cooperate to determine an appropriate location and aesthetic design for the proposed communications facility. In any such cooperative determination there shall be a preference for the use of free standing visually unobtrusive structures which are consistent, to the extent possible, with the height, setback, and locational requirements of this section. With respect to any such cooperative determination relating to wireless facilities that are not small wireless facilities or micro wireless facilities, there shall also be a preference for collocation upon existing structures, modification of existing structures or installation of a repurposed structure. Where such wireless facilities that are neither small nor micro wireless facilities cannot be collocated upon an existing, modified or repurposed structure, and no unused capacity exists, there shall be a preference of the use of free standing visually unobtrusive structures which are consistent, to the extent possible, with the height, setback, and locational requirements of this section. The community development director or designee may require a statement certifying that the proposed location is needed by a personal wireless services provider as defined in 47 U.S.C. § 332(c)(7)(C)(i), to close a significant gap in its service to the affected area. The registrant shall reimburse the reasonable costs incurred by the city incurred in making this cooperative determination.

(n)

All safety practices required by applicable law or accepted industry practices and standards shall be used during construction, maintenance, and repair of the communications facilities.

(o)

Relocation and registrant's expense. In the event that at any time during the term of the rights granted by this article, the city shall lawfully elect to alter, or change the grade of, any public rights-of-way, upon reasonable notice by the city, the communications facility owner shall make any necessary removals, relaying and relocations of its facilities at its own expense, in accordance with applicable law and subject to F.S. § 337.403.

(p)

Restoration and repair of right-of-way. A communications facility owner shall obtain any and all required permits and pay any and all required fees before commencing any construction on or otherwise disturbing any public rights-of-way as a result of its construction, except as provided in this article. The communications facility owner shall, at its own expense, restore such public rights-of-way to as good a condition as existed prior to commencement of work. A final inspection by the community development department or one of its divisions will be required. A registrant shall guarantee its restoration for a period of twelve (12) months after the completion of such restoration. If such restoration is not performed in a reasonable and satisfactory manner within thirty (30) calendar days after the completion of construction, the city may, after written notice to registrant, cause the repairs to be made at the communications facility's owner expense, using city employees, agents or contractors, charge any and all costs, and require reimbursement within thirty (30) days after the submission of the bill by the city to the registrant. A permit from the city constitutes authorization to undertake only certain activities on public rights-of-way in accordance with this article, and does not create a property right or grant authority to impinge upon the rights of others who may have an interest in the public rights-of-way.

(q)

Compliance inspections. All ongoing installation, construction and maintenance of a communications facility located in the public rights-of-way shall be subject to the city's periodic inspections. In the event a violation exists which is not considered to be an emergency or extraordinary danger, the city will provide no less than three (3) days written notice to the communications facility owner setting forth the violation and request compliance with this article, or any applicable provisions of the City Code.

(r)

No interference with other uses . A registrant shall not place its facilities so as to interfere unreasonably with any other person lawfully using the public rights-of-way of the city.

(s)

Information provided by facility owner. A facility owner shall cooperate with the city by providing timely and complete information requested under this subparagraph. Upon completion of any installation or construction of new facilities in public rights-of-way, at no cost to the city, the facility owner shall provide such information, as may be requested, showing the exact location of its facilities and structures, if different from the approved permit plans. All information required by this section shall be maintained in accordance with F.S. § 202.195.

(t)

Suspension or denial of permits . Subject to section 7-287(t)(5) below, the community development director or designee may suspend or deny a permit for work in the public rights-of-way for one (1) or more of the following reasons:

(1)

Violation of permit conditions, including conditions set forth in this article or other applicable provisions of the City Code or regulations governing use of public rights-of-way; or

(2)

Misrepresentation or fraud by registrant in a registration or permit application to the city; or

(3)

Failure to relocate or remove facilities as may be lawfully required by the city; or

(4)

Failure of registrant, its employees, agents or subcontractors, in connection with the subject permit, to (a) place barricades or signs around the work area, (b) take reasonable safety precautions to alert the public of work at the work site, or (c) repair, replace and restore any sidewalk, street, alley, pavement, water, sewer or other utility line or appurtenance, irrigation, soil, landscaping, dirt or other improvement, property or structure of any nature. In the event of such failure, the city may perform the work using city employees, agents or contractors, charge any and all costs, and require reimbursement within thirty (30) days after the submission of the bill by the city to registrant.

(5)

Immediately after the suspension or denial of a permit pursuant to this section, the city shall provide written notice of the violation, which notice shall contain a description of the violation. Final, written decisions of the city denying or suspending a permit or denying an application for a registration are subject to appeal. An appeal must be filed with the city within thirty (30) days of the date of the final, written decisions to be appealed. Any appeal not timely filed as set forth above shall be waived. The city commission shall hear the appeal no later than forty-five (45) days from the end of the thirty-day appeal period, unless waived by the registrant. Upon correction of any violation that gave rise to a suspension or denial of permit, the suspension or denial shall be lifted.

(u)

In the event registrant desires to use its existing facilities or to construct new facilities for the purpose of providing other utility or non-utility services to existing or potential consumers or resellers, by providing cable services, or any other services other than the provision of communications service, including wireless service, or for providing any other use to existing or potential consumers, a registrant shall seek such additional and separate authorization from city for such activities as may be required by applicable law. In the event that a registrant is acting in its proprietary function as a retail provider of communications equipment or appliances, registrant shall seek the appropriate permits and licenses from the city.

(v)

To the extent that any person or registrant leases or otherwise uses the facilities of an entity that is duly registered or otherwise authorized to place and maintain facilities in the public rights-of-way of the city, the person or registrant shall make no claim, nor assert any right, which will impede the lawful exercise of the city's rights, including requiring the removal of such facilities from the public rights-of-way of the city, regardless of the effect on the person's ability to provide service or on the registrant's ability to maintain its own communications facilities in the public rights-of-way of the city.

(w)

Termination of registration . The involuntary termination of a registration may only be accomplished by an action of the city commission. The city may declare the registration terminated and revoke and cancel all privileges granted under that registration if (a) a federal or state authority suspends, denies, or revokes a registrant's certification to provide telecommunications service, (b) the registrant's use of the public rights-of-way presents an extraordinary danger to the general public or other users of the right-of-way, or (c) the registrant abandons all of its facilities. Prior to such termination by the city resulting from a violation of any of the provisions of this subparagraph, the registrant shall be notified by the finance and administrative services director with a written notice setting forth all matters pertinent to such violation, and describing the action the city proposes to take. A copy of this written notice will be simultaneously transmitted to registrant's bank when an irrevocable letter of credit is used as security fund, or transmitted to the registrant's surety if a contract bond is provided as security fund. The registrant shall have sixty (60) days after receipt of such notice within which to cure the violation, or within which to present a plan, satisfactory to the city commission, to accomplish the same. In the event an emergency, the city may take appropriate action in accordance with section 7-286(d) of the City Code. In the event of a vote by the city commission to terminate, the registrant shall, within a reasonable time following such termination, remove or abandon the facilities and take such steps as are necessary to render every portion of the facilities remaining within the public rights-of-way of the city safe. If the registrant has either abandoned its facilities or chooses to abandon its facilities, the city may either (1) negotiate and work directly with the registrant's surety to agree on an option to remove some or all of the facilities from the public rights-of-way and restore the public rights-of-way to its proper condition or (2) the city may require that some or all of the facilities be removed and the public rights-of-way restored to its proper condition at the registrant's expense, using city employees, agents or contractors, and document all incurred costs to seek reimbursement as set forth in section 7-293. The obligations of the registrant shall survive the termination of the registration. In the event of a termination of registration, this provision does not permit the city to cause the removal of any facilities that are used to provide another service for which the registrant holds a valid certification with the governing federal and state telecommunications agencies and is properly registered with the city, for such certificated service, under this article.

(x)

Statements of certification; requirements . Any statement or certification submitted by or on behalf of a registrant pursuant to the provisions of this section shall be prepared applying rational analysis by one or more engineers registered and licensed in the state, or by such other person or persons designated by the registrant who are qualified to perform the required analysis.

(y)

Reservation of rights .

(1)

The city does not waive any rights under applicable law with respect to management of its public rights-of-way. The city shall require that owners and users of communications facilities in the public rights-of-way pay the maximum compensation to the city that is allowed by law. The city reserves the right to enforce all applicable City Code provisions with respect to facilities in the public rights-of-way.

(2)

The city does not warrant or make any representations that the public rights-of-way are available, suitable or appropriate for the construction, placement, maintenance or use of communications facilities.

(3)

The city's approval of an application for the construction, placement, or modification of any communications facility in the public rights-of-way shall not create any rights in such facilities' ability to be maintained or utilized in the public rights-of-way for any particular period of time or any rights that are inconsistent with the City Code.

(4)

The city reserves the right to abandon any public rights-of-way, notwithstanding the presence of any communications facilities in the public rights-of-way that have been approved by the city and the city shall have no liability or responsibility to the owner, operator or users of such facilities.

(5)

The city reserves the right to require the relocation or removal of any communications facility in the public rights-of-way consistent with its authority under applicable law. The city shall have no liability or responsibility to the owner, operator or users of the communications facilities in the public rights-of-way.

(6)

The city shall have no responsibility or liability for damage to or interference with the use or maintenance of communications facilities in the public rights-of-way by any third party.

(z)

Modification or replacements. An application for modification or replacement of any communications facility that is submitted as and determined by the city to be an eligible facilities request as contemplated in Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 shall not be subject to the height, setback and locational requirements of this section, but shall be approved in accordance with otherwise applicable standards.

(aa)

Exemptions. Notwithstanding anything to the contrary in this section, no permit, fee or other charge is required for the following:

(1)

Installation, placement, maintenance, or replacement of micro wireless facilities.

(2)

Routine maintenance.

(3)

Replacement of existing wireless facilities with wireless facilities that are substantially similar or of the same or smaller size.

(Ord. No. 456, § 2, 12-26-00; Ord. No. 456-17-A, § 5, 2-14-17; Ord. No. 456-17-B, § 3, 11-14-17)