§ 58-75. Permit application requirements and review procedures.

(a)

Pre-submittal meeting. To minimize issues related to a permit application, prior to submitting materials for a permit application, a registrant shall conduct a pre-submittal meeting with the city to discuss the registrant's plans and network goals for placing or maintaining facilities in the public rights-of-way. The city shall undertake efforts to accommodate a registrant's request for a pre-submittal meeting within ten business days of a request. At a registrant's request, the city, in its sole discretion, may waive the requirement of a pre-submittal meeting for good cause based on the scope of the proposed permit and registrant's compliance with this article. In no event shall the requirement of a pre-submittal meeting be waived for a consolidated permit.

(b)

Application requirements for all communications facilities in the public rights-of-way. As part of any permit application to place or maintain any facility pursuant to this article in the public rights-of-way, a registrant or a registrant's agent or contractor shall provide a permit application on a form provided by the city that, at a minimum, includes the following information:

(1)

If the applicant for the permit is not the registrant, a statement of authority by the registrant for the applicant to act on behalf of the registrant. In addition, if the applicant is a contractor, the contractor's license or registration and contractor's insurance information confirming the contractor's authority to perform construction in the city and statements as to whether the contractor has any open permits with the city, and if so, the permit identification number or information.

(2)

Confirmation that the applicant engaged in a pre-submittal meeting or such meeting was waived by the city and that the applicant has an effective registration with the city.

(3)

Engineering plan. An engineering plan signed and sealed by a Florida licensed engineer, that includes the following:

a.

Except for applications to collocate small wireless facilities on existing utility poles in the public rights-of-way, an American Land Title Association (ALTA) or other survey pursuant to the city's application form demonstrating that the proposed location of the facility or utility pole is within the public rights-of-way, unless waived by the city in its sole discretion, pursuant to an applicant's attestation that the proposed facility is located with the public rights-of-way;

b.

The type of proposed facility, location of the proposed facility, and the dimensions, height, footprint, stealth design, and concealment features of the proposed facility;

c.

The global positioning system (GPS) coordinates of the proposed facility. The GPS coordinates shall be based on the reading from a handheld mobile GPS unit set to Datum NAD 83 or WGS84. GPS coordinates based on Google Earth or similar application may be used where areas of shading occur due to overhead canopy. GPS Coordinates shall be provided in decimal degrees at a six decimal point precision;

d.

Whether the proposed facility is proposed within a location subject to restrictions pursuant to subsection 58-78(b) of this article;

e.

For new communications facilities, within a 50 foot radius, a sketch showing pavement, sidewalks, driveways, ramps, trees, below-grade utilities, and other above-grade and below-grade structures and facilities located within the public rights-of-way and the distances from the proposed facility and the edge of nearby pavement, sidewalks, driveways, ramps, the nearest residential properties, nearby drainage systems, trees, ground-mounted equipment, nearby structures in the public rights-of-way, underground utilities and other above-grade and below-grade structures and utilities located within the public rights-of-way;

f.

Sufficient specificity demonstrating compliance with applicable codes, the Florida Building Code, most current edition, specifically including, but not limited to, terms of compliance with the High Velocity Zone Criteria specified therein, the 2010 Florida Department of Transportation Utility Accommodation Manual, as applicable; National Electrical Code, the National Electrical Safety Code and the "Safety Rules for the Installation and Maintenance of Electrical Supply and Communication Lines" established by the Department of Commerce, Bureau of Standards of the United States, as may be amended;

g.

If applicable, the routes of all transmission and distribution lines to be placed or maintained in the public rights-of-way in connection with the proposed facility (such lines may be subject to separate permit requirements);

h.

Certification that the proposed facility will not materially interfere with the safe operation of traffic control equipment;

i.

Certification that the proposed facility will not interfere with sight lines or clear zones for transportation, pedestrians, or public safety purposes or result in the public rights-of-way being inconsistent with the Florida Greenbook;

j.

Certification that the proposed facility will not materially interfere with compliance with the Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement; and

k.

Other engineering information that may be requested by the city.

(4)

Trees or landscaping proposed to be removed or impacted upon the placement or maintenance of the proposed facility.

(5)

Photographic or video documentation of the pre-construction condition of the public rights-of-way in the area to be affected by the installation of the proposed facility.

(6)

Description of installation or construction. A description of the method by which the facility will be installed and/or modified (i.e. anticipated construction methods or techniques).

(7)

Temporary sidewalk closure plan. The applicant shall provide a temporary sidewalk closure plan, if appropriate, to accommodate placement or maintenance of the facility.

(8)

Temporary traffic control (TTC) plan. The applicant shall provide a temporary traffic lane closure and temporary traffic control (TTC), if appropriate, to accommodate placement or maintenance of the facility.

(9)

Restoration plan and estimated cost of restoration of the public rights-of-way. A restoration plan and a good faith estimate of the cost of restoration of the public rights-of-way. Such good faith estimate shall be accepted by the city unless the city determines such estimated costs are not representative of the actual costs of the restoration of the public rights-of-way. Estimates of the cost to restore the public rights-of-way shall include all costs necessary to restore the public rights-of-way to its original condition. Such good faith estimate may include, but shall not be limited to, costs to restore the paving, curbs/gutters, sidewalks, multi-purpose trails, and landscaping. All planted or naturally occurring shrubbery or vegetation, including sod, damaged or destroyed during work in the public rights-of-way shall be replaced. Tree or landscaping removal shown on the permit shall not be considered damage or impairment to be restored to the original condition provided the applicant complies with the approved mitigation plan, if any.

(10)

Timetable for construction or installation. The timetable for construction, placement or maintenance of the proposed facility or each phase thereof.

(11)

Indemnification. A statement shall be included with the permit application that by execution of the application and by applying for the permit, the applicant shall be bound to the city with respect to the indemnification provisions set forth in subsection 58-73(f)(5) of this article.

(12)

Airport airspace protection. If applicable, the applicant shall confirm compliance with F.S. ch. 333, and all city, State and federal laws and regulations, as amended, pertaining to airport airspace protections.

(13)

Attestation. For applications by a wireless infrastructure provider or its contractor for the placement or maintenance of a utility pole in the public rights-of-way for collocation of a small wireless facility, the applicant shall provide an attestation by an officer of the registrant that a small wireless facility will be collocated on the utility pole and will be used by a wireless services provider to provide communication service within nine months after the date the application is approved.

(14)

Pole attachment agreement. If applicable for the proposed facility, except for applicants whose pole attachments are regulated by 47 U.S.C. § 224, the applicant shall provide a copy of a fully executed valid pole attachment agreement between the owner of the utility pole and registrant. In lieu of providing the complete pole attachment agreement between the owner of the utility pole and registrant, the applicant may provide the first page of such agreement and the signature page or a notarized letter of authorization from the owner of the utility pole, providing adequate identifying information, acceptable to the city, and indicating the registrant is authorized to install its facility on the identified utility pole. By submitting an application, the applicant certifies to the city that it has authority from the utility pole owner to collocate its facility.

(15)

Information regarding height limitations. For an application for a new utility pole to support the collocation of a small wireless facility, the applicant shall provide information regarding the height and GPS location of the tallest utility pole located in the same public rights-of-way as of July 1, 2017, measured from grade in place within 500 feet of the proposed location of the utility pole. If there is no utility pole within 500 feet of the proposed utility pole as of July 1, 2017, the applicant shall so certify.

(16)

If the permit application includes a backup power supply, information to demonstrate that the backup power supply and proposed fuel storage satisfies the applicable codes as well as codes and standards of the National Fire Protection Association.

(17)

In addition to the requirements herein, as part of any permit application to place or maintain a small wireless facility in the public rights-of-way, the applicant shall provide the following:

a.

Documentation to the satisfaction of the city from a Florida licensed engineer, that the structure and foundation of the utility pole intended to support the collocation of the small wireless facility can support the additional load of the proposed small wireless facility consistent with the requirements of the Florida Building Code;

b.

Certification and description by the applicant to the satisfaction of the city how the proposed small wireless facility complies with the objective design standards set forth in this article. For a proposed ground-mounted small wireless facility, such information shall include whether the proposed small wireless facility includes a wrap that has been approved by the city or is of an architectural design that is substantially similar to other infrastructure in the area of the public rights-of-way or has been approved by the city.

c.

Accurate photo simulations of the proposed small wireless facility and if applicable, as collocated on the utility pole.

(18)

Applicable permit fees including reimbursement for city consultants, to the extent not inconsistent with applicable law.

(19)

Consolidated permit application and single application for multiple locations. A registrant may submit a single application to place or to maintain multiple facilities in the public rights-of-way, where it would be more efficient for the registrant and the city to address multiple facilities in one permit application. An applicant seeking to collocate multiple small wireless facilities may file a consolidated permit application and receive a single permit for the collocation of up to 30 small wireless facilities. The application must include the information required for an application for each of the proposed small wireless facilities. In addition, prior to applying for a consolidated permit, the applicant must engage in a pre-submittal meeting with the city to discuss all proposed small wireless facilities. If the application includes multiple small wireless facilities, the city may separately address small wireless facility collocations for which incomplete information has been received or which are denied.

(20)

To the extent not inconsistent with applicable law, such additional information requested by the city reasonably necessary for the permit application.

(c)

Application review and procedures for small wireless facilities and utility poles for collocation of small wireless facilities.

(1)

Time periods within this subsection may be extended for the period of time impacted by a force majeure event or by a declared state of emergency by the city or governor of the state that impacts the city ("force majeure extension). If an applicant opposes a force majeure extension pursuant to this subsection, it shall notify the city within 24 hours of such extension becoming effective or the applicant shall be deemed to have consented to the extension.

a.

Unless extended by mutual consent of the applicant and city, within 14 days after receiving an application, the city manager will notify the applicant by electronic mail as to whether the application is complete. If an application is deemed incomplete, the city will specifically identify the missing information. An application is deemed complete if the city fails to provide notification to the applicant within 14 days.

b.

Negotiation Process.

1.

Unless extended by mutual consent of the applicant and the city, within 14 days after the date of filing the application, the city may request that the proposed location of a small wireless facility be moved to another location in the right-of-way and placed on an alternative city utility pole or support structure or may place a new utility pole. The city and the applicant may negotiate the alternative location, including any objective design standards and reasonable spacing requirements for ground-based equipment, for 30 days after the date of the request.

2.

At the conclusion of the negotiation period, if the alternative location is accepted by the applicant, the applicant must notify the city of such acceptance and the application shall be deemed granted for any new location for which there is agreement and all other locations in the application.

3.

If an agreement is not reached, the applicant must notify the city of such nonagreement and the city must grant or deny the original application within 90 days after the date the application was filed unless extended by mutual consent of the applicant and city. Failure of the applicant to so notify the city as required herein shall be deemed to constitute the applicant's consent to the city's alternative location. A request for an alternative location, an acceptance of an alternative location, or a rejection of an alternative location must be in writing and provided by electronic mail.

c.

The city processes all applications on a nondiscriminatory basis. Unless the city and the applicant engage in negotiations as provided above, the city will approve or deny the application and will notify the applicant by electronic mail whether the application is approved or denied within 60 days after the receipt of a completed application.

d.

Extension of time. If the city and the applicant do not engage in negotiations, the applicant and city may mutually agree to extend the 60-day application review period. The city shall grant or deny the application at the end of the extended period.

e.

The city may deny a proposed collocation of a small wireless facility in the public rights-of-way if the proposed collocation:

1.

Materially interferes with the safe operation of traffic control equipment;

2.

Materially interferes with sight lines or clear zones for transportation, pedestrians, or public safety purposes;

3.

Materially interferes with compliance with the Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement;

4.

Materially fails to comply with the 2010 edition of the Florida Department of Transportation Utility Accommodation Manual: or

5.

Fails to comply with applicable codes.

f.

Cure Procedure.

1.

If the application is denied, the city will specify the basis for the denial, including the specific code provisions on which the denial was based, on the day the city denies the application.

2.

The applicant may cure the deficiencies identified by the city and resubmit the application within 30 days after the notice of denial is sent.

3.

If an attempt to cure is made by the applicant, the city will approve or deny the revised application within 30 days after receipt of the revised application. If the applicant revises any information in the application other than to address expressly the deficiencies identified by the city, the applicant shall submit a new application.

4.

The city's second and subsequent reviews of revised applications will be limited to the deficiencies cited in the denial notice.

g.

A permit issued pursuant to an approved application shall remain in effect for one year unless otherwise extended, suspended, or revoked by the city pursuant to this article. If a small wireless facility or utility pole is installed without a permit pursuant to applicable state or federal law, the applicant shall nevertheless be required to have an effective registration, comply with development standards and provide the performance bond required in this article prior to performing construction.

h.

A permit from the city constitutes authorization to undertake only certain activities in the 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.

(2)

Review procedures for applications for all other communications facilities. The city shall review and process applications for other communications facilities not subject to the Advanced Wireless Infrastructure Deployment Act, F.S. § 337.401(7), consistent with applicable law.

(3)

Suspension and revocation of permits.

a.

The city may order the suspension of placement and maintenance work under a permit and ultimately may suspend or revoke any permit, in the event of a material breach of the terms and conditions of any applicable codes including, but not limited to, this article, State and federal laws and regulations, or any condition of the permit. A material breach by the permittee may include, but is not limited to:

1.

The violation of any material provision of the permit or applicable codes;

2.

An evasion or attempt to evade any material provision of the permit or the perpetration or attempt to perpetrate any fraud or deceit upon the city;

3.

Any material misrepresentation of fact in the process of permittee's request for a permit or registration;

4.

The failure to maintain the required performance cash bond or insurance;

5.

The failure to properly restore the public rights-of-way;

6.

The failure to comply within the specified time with an order issued by the city;

7.

The failure to register, renew a registration, or provide notice of transfer in accordance with this article;

8.

The failure to relocate or remove facilities pursuant to this article and F.S. §§ 337.402, 337.403 and 337.404, as amended;

9.

Conducting work in the public rights-of-way without a permit, if required.

b.

If the city determines that a registrant has committed a substantial breach of a term or condition of the permit or violation of applicable codes including, but not limited to, this article, the city shall make a written demand upon the registrant to remedy such violation. The demand shall state that the continued violation(s) may be cause for suspension or revocation of the permit. Further, the city may place additional or revised permit conditions on the permit following a substantial breach. In addition, the city may refuse to issue new permits and may deny an application for a new permit to a registrant or registrant's contractor that has materially violated any provisions of a permit or applicable codes including, but not limited to, this article, until such time as the registrant cures the violation to the satisfaction of the city, including paying any damages, costs or penalties that may have been assessed.

c.

Within 30 days of receiving notification of the breach, the permittee shall contact the city and provide a plan, acceptable to the city. The city shall provide additional time as reasonably necessary for a permittee to establish an acceptable plan taking into account the nature and scope of the alleged breach. The permittee's failure to so contact the city, or the permittee's failure to submit an acceptable plan, or the permittee's failure to reasonably implement the approved plan, shall be cause for revocation or suspension of the permit. A final determination to suspend or to revoke a permit may be appealed in accordance with the procedures set forth in this article. Nothing herein shall affect the city's ability to take immediate action or to cause a registrant to take immediate action pursuant to this article or applicable law to address any condition that threatens the health, safety or welfare of persons or property.

d.

If a permit is revoked, the permittee shall reimburse the city for the city's reasonable costs, including restoration costs, administrative costs, and the cost of collection. These costs may also be deducted from the registrant's permanent performance cash bond in the city's discretion.

e.

The city manager may cause an immediate stop work order where the construction poses a serious threat to the health, safety or welfare of the public until such time as such serious threat has been abated.

(4)

Requests for waivers.

a.

Nothing in this article shall be construed to prohibit or have the effect of prohibiting the nondiscriminatory and competitively neutral use of public rights-of-way by communications service providers, communications facility providers or pass-through providers, in violation of federal or state law.

b.

A waiver may be granted by the city manager in those circumstances where a competitively neutral use of the public rights-of-way is impaired by strict application of the requirements of this article.

c.

A request for a waiver shall be filed either prior to or contemporaneously with the permit application. The request for waiver shall contain each provision for which a waiver is sought. A request for a waiver shall include the following information:

1.

A detailed explanation, with supporting engineering information by a Florida licensed engineer or other data, as to why a waiver from the requirements of this article is required to allow the applicant to have nondiscriminatory and competitively neutral use of the public rights-of-way, including a detailed explanation addressing the relevant engineering criteria;

2.

Nature and characteristics of the surrounding neighborhood;

3.

Any special conditions and circumstances affecting the proposed site which prevent compliance with the Article or subsection for which a waiver is being sought;

4.

If applicable, topography, tree coverage and foliage in the immediate surrounding area of the proposed facility or within the surrounding neighborhood;

5.

Design of the proposed facility with particular reference to achieving compatibility with the surrounding neighborhood and other structures in the public rights-of-way and eliminating adverse visual impacts;

6.

If the proposed waiver is compliant with the Americans With Disabilities Act, 42 U.S.C. §12101, et seq., and applicable codes;

7.

Any other information the city may reasonably require to process the request for waiver.

d.

The city shall grant or deny a request for a waiver within 45 days after receiving the request for waiver or time frame under applicable law unless the applicant and city consent to an extension. In granting any waiver, the city may impose conditions to the extent the city determines such conditions are necessary to minimize any adverse effects of the proposed facility on the surrounding neighborhood or to protect the health, safety and welfare of the public.

e.

Should a request for waiver, and ultimately a permit, be denied by the city, the denial of the waiver may be appealed with an appeal of the permit denial in accordance with this article.

(5)

Appeals.

a.

Final, written decisions of a designee of the city manager, including, but not limited to, a decision suspending, revoking, or denying a permit, denying a registration, denying a renewal of a registration, suspending or terminating a registration or denying a request for a waiver, or imposing costs or a fine, are subject to appeal to the city manager. An appeal must be filed with the city manager within 30 days of the date of the final, written decision to be appealed. An applicant shall waive any appeal that is not timely filed as set forth herein. The city manager shall hear or may appoint a hearing officer to consider the appeal. The decision on appeal shall be based on the information submitted previously to the city and no new information shall be considered. Subject to a force majeure event, the hearing shall occur within 30 days of the receipt of the appeal, unless waived by the applicant, and a written decision shall be rendered within 20 days of the hearing.

b.

An appeal from a decision of the city manager or a hearing officer may be appealed to the city council within 30 days, by filing a written notice of appeal with the city clerk and providing copies to the city manager and the city attorney. Any appeal not timely filed shall be waived. The notice of appeal shall state the decision which is being appealed, the grounds for appeal, a brief summary of the relief which is sought, and shall be accompanied by a nonrefundable fee to be established by administrative order of the city manager. The city council may affirm, modify or reverse the decision of the city manager. The city manager shall notify any party who has filed a written request for such notification of the date when the matter will be presented to the city council. Nothing contained herein shall preclude the city council from seeking additional information prior to rendering a final decision. The decision of the city council shall be by resolution and a copy of the decision shall be forwarded to the city manager and the appealing party. Within the time prescribed by the appropriate Florida Rules of Appellate Procedure, a party aggrieved by a decision of the city council may appeal an adverse decision to the circuit court in and for volusia County or applicable federal district court. The party making the appeal shall be required to pay to the city clerk a fee to be established by administrative order of the city manager, to defray the costs of preparing the record on appeal. Said fee shall be effective upon approval by the council.

(Ord. No. 2018-13 , § 3, 8-7-2018)