§ 58-78. Development and objective design standards for the placement or maintenance of communications facilities in the public rights-of-way.

(a)

Terms and conditions for collocation on city utility poles.

(1)

The city shall not enter into an exclusive arrangement with any person for the right to attach equipment to city utility poles. The city reserves the right to enter into agreements for collocation on city utility poles in its discretion.

(2)

Reservation of space on city utility poles. The city may reserve space on city utility poles for future public safety uses. However, a reservation of space may not preclude collocation of a small wireless facility. If replacement of the city utility pole is necessary to accommodate the collocation of the small wireless facility and the future public safety use, the pole replacement is subject to make-ready provisions and the replaced pole shall accommodate the future public safety use. The replaced pole shall continue to be owned by the city.

(3)

The rate to collocate a small wireless facility on a city utility pole shall be $150.00 per pole annually, or the highest rate authorized by applicable law. This amount shall not be deducted from any fees or taxes that may be due to the city. The fee shall be paid upon the city's issuance of a permit to collocate a small wireless facility on a city utility pole and annually thereafter on October 1.

(4)

Agreements between the city and wireless providers that were in effect on July 1, 2017, and that relate to the collocation of small wireless facilities in the right-of-way, including the collocation of small wireless facilities on city utility poles, remain in effect, subject to applicable termination provisions. The wireless provider may accept the rates, fees, and terms established under this article for small wireless facilities and utility poles that are the subject of an application submitted after the rates, fees, and terms become effective.

(5)

For a city utility pole that supports an aerial facility used to provide communications services or electric service, the parties shall comply with the process for make-ready work under 47 U.S.C. §224 and implementing regulations. The good faith estimate of the city for any make-ready work necessary to enable the pole to support the requested collocation must include pole replacement if necessary.

(6)

For a city utility pole that does not support an aerial facility used to provide communications services or electric service, the city shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested collocation, including necessary pole replacement, within 60 days after receipt of a complete application. Make-ready work, including any pole replacement, must be completed within 60 days after written acceptance of the good faith estimate by the applicant. Alternatively, the city may require the applicant seeking to collocate a small wireless facility to provide a make-ready estimate at the applicant's expense for the work necessary to support the small wireless facility, including pole replacement, and perform the make-ready work. If pole replacement is required, the scope of the make-ready estimate is limited to the design, fabrication, and installation of a utility pole that is substantially similar in color and composition. The city may not condition or restrict the manner in which the applicant obtains, develops, or provides the estimate or conducts the make-ready work subject to usual construction restoration standards for work in the right-of-way. The replaced or altered utility pole shall remain the property of the city.

(7)

The city may not require more make-ready work than is required to meet applicable codes or industry standards. Fees for make-ready work may not include costs related to preexisting damage or prior noncompliance. Fees for make-ready work, including any pole replacement, may not exceed actual costs or the amount charged to communications services providers other than wireless services providers for similar work and may not include any consultant fee or expense.

(8)

A collocation of a small wireless facility on a city utility pole shall comply with all applicable codes including this article, and shall not compromise the city utility pole's finish, functionality, or structural integrity particularly with respect to vulnerability to high velocity wind conditions.

(9)

A collocation of a small wireless facility on a city utility pole shall not affect the city's ability to remove or to replace the pole in its sole discretion. A city utility pole that has been partially removed or has been designated to be removed by the city shall not be available for collocation or repurpose for collocation. Within 30 days after receiving notification that the city intends to remove or to replace the utility pole, the registrant shall remove its collocated small wireless facility at its cost. In the interest of public safety and safety of city employees, a city structure in the public rights-of-way used to support an avian structure or facility shall not be available for collocation or repurpose or replacement for collocation. A city building or city utility pole extending from a building in the public rights-of-way shall not be available for collocation, or repurpose or replacement for collocation.

(b)

Location context and public safety regulations. A proposed communications facility shall comply with the following location context requirements unless waived by the city. In conjunction with granting such waiver, the city may require conditions on the permit approving such facility.

(1)

A registrant shall comply with and abide by all applicable provisions of the state law and city ordinances, applicable codes and regulations, quasi-judicially approved conditions for approvals, settlement agreements, applicable contracts, applicable court orders, and applicable provisions of federal statutes, FCC regulations and PSC regulations in placing or maintaining a communications facility in the public rights-of-way. Wireless facilities shall be considered to be structures under the Florida Building Code, building risk category iv, structures, chapter 16 section 1620—1621, high velocity hurricane zone area.

(2)

All communications facilities shall be placed and maintained so as not to interfere with, create any safety hazard, or create a visual obstruction to the traveling public's the use of the public rights-of-way or the use of bicycle lanes or multipurpose trails. To avoid such visual obstructions, not utility poles for collocation of small wireless facilities or ground mounted small wireless facilities shall be located within traffic circles.

(3)

For public safety purposes, aboveground communications facilities, including, but not limited to, small wireless facilities, micro wireless facilities and utility poles for collocation of small wireless facilities, shall not be placed or maintained on multipurpose trails.

(4)

Communications facilities shall be placed between the property line and the curb line of a street and shall not be located within a clear zone.

(5)

All communications facilities shall be placed and maintained so as not to cause unreasonable interference with the rights, accessibility and safety of property owners who abut any of the public rights-of-way. By way of example, the placement or maintenance of a communications facility in the public rights-of-way shall not cause excessive noise or light levels in violation of chapter 42, article iv, noise and light regulation, of the Code, based upon the use occupancy category of the adjacent property, shall not impede ingress and egress to adjacent property, materially block views from or into a business or residence, or materially block visibility of address or other signage on abutting properties.

(6)

A registrant shall not place or maintain its communications facilities to interfere, displace, damage or destroy any facilities, including, but not limited to, the city drainage plan, sewers, ponds, gas or water mains, storm drains, pipes, cables or conduits of the city or any other person's facilities or utilities lawfully occupying the public rights-of-way of the city, unless waived by the city.

(7)

The city may prohibit or limit the placement of new or additional communications facilities within the public rights-of-way if there is insufficient space to accommodate all of the requests to place and maintain facilities and utilities in the proposed location of the public rights-of-way, to safely accommodate additional installations at any location, for the protection of existing facilities and utilities in the public rights-of-way, or to accommodate city plans for public improvements, other approved capital improvements projects as part of the city Comprehensive Plan or projects the city determines are in the public interest.

(8)

Facilities to be installed underground.

a.

All facilities shall be subject to the city's non-discriminatory undergrounding requirements that prohibit above-ground structures and utilities in the public rights-of-way. Unless waived by the city, all new communications facilities shall be placed underground, to the extent that new utilities other than fire hydrants are required to be located underground, including new electric and communications utilities in accordance with chapter 11, section 8 of the Code. In addition, to the extent required by applicable PSC rules and regulations, applicable codes, restrictive covenants, quasi-judicially approved conditions of a development, planned unit development, community development district, or court order, a registrant shall install its facilities underground. Additionally, a registrant shall endeavor to place all new facilities underground unless prevented from doing so by existing technology or by the physical characteristics of the installation location.

b.

A registrant shall not place or maintain utility poles for the collocation of small wireless facilities or small wireless facilities in a location in the public rights-of-way where there are no existing electric or communications utility poles and where new electric and communications utilities are required to be installed underground to the extent not inconsistent with applicable law.

c.

New proposed wireline fiber or coaxial backhaul facilities for small wireless facilities shall be installed underground consistent with applicable codes, unless waived by the city.

d.

For purposes of this subsection, unless inconsistent with applicable law, adoption of a final resolution by the city council shall constitute an undergrounding requirement over any area of the public rights-of-way. This subsection does not apply to the installation, placement, maintenance, or replacement of micro wireless facilities on any existing and duly authorized aerial communications facilities, provided that if the city notifies the registrant of the micro wireless facility that aerial communications or electric distribution utilities will be converted to underground utilities, the registrant shall remove its micro wireless facility at its expense within the time frame required by the city.

e.

Conversion of overhead utilities to underground. No utility poles for the collocation of small wireless facilities, micro wireless facilities, ground mounted small wireless facilities, or small wireless facilities collocated on utility poles shall be placed in a location in the public rights-of-way where the city council has determined that existing above ground electric and communications utilities should be removed and relocated underground. The presence of small wireless facilities or micro wireless facilities shall not be a basis not to comply with the city's requirements to convert above ground utilities to underground. To comply with the city's undergrounding requirements, a registrant shall remove its small wireless facilities, micro wireless facilities, and utility poles for collocation of small wireless facilities at its expense within 60 days of being notified by the city that such facilities must be removed. The city shall have the right to remove such facilities at the registrant's expense if the registrant fails to do so.

(9)

Prohibition against placement in violation of OSHA or NESC or NERC rules and regulations. Communications facilities, including, but not limited to, small wireless facilities and utility poles for the collocation of small wireless facilities shall not be placed in a location which violates rules and regulations set by Occupational Safety and Health Administration or the National Electrical Safety Code or the North American Electric Reliability Corporation standards. By way of example and not limitation, a small wireless facility or utility pole intended to support the collocation of a small wireless facility may not be placed within a ten foot radius of an electric distribution facility or within a 20 foot radius of an electric transmission line.

(10)

Prohibition against placement within a location subject to homeowners' association restrictions. Small wireless facilities shall not be place in a location subject to covenants, restrictions, articles of incorporation, or bylaws of a homeowners' association unless specifically authorized by the homeowners' association. For purposes of this subsection, to the extent not inconsistent with applicable law, a location in a public right-of-way that abuts parcels within a homeowners' association on both sides of its width shall be considered a location subject to covenants, restrictions, articles of incorporation, or bylaws of such homeowners' association. This subsection shall not apply to limit the installation, placement, maintenance, or replacement of micro wireless facilities on any existing and duly authorized aerial communications facility.

(11)

Placement in relation to adjacent uses of property and building façades thereon. Where parking and/or loading spaces are not permitted between a building façade and the corresponding property line (i.e. front façade and front property line, side street façade and side street property line) by design standard, or such spaces do not exist in those locations on existing properties, new communication facilities and new utility poles for collocation of small wireless facilities shall be placed in-line with the common, interior side lot lines and shall not be placed in-line with the front/principal façade of a residence, place of business, or any other principal use building located on property that abuts the public rights-of-way.

(12)

To accommodate and to protect the city's nature preserve area of Dorris Leeper Spruce Creek Preserve, as described in the city's Comprehensive Plan, no new communications facilities, including, but not limited to, wireless facilities, small wireless facilities, new utility poles for collocation of small wireless facilities, or fiber, shall be placed or maintained within public rights-of-way within Dorris Leeper Spruce Creek Preserve, unless waived by the city.

(13)

Specific locations, capital improvement projects, districts and community redevelopment agency areas.

a.

A registrant shall not place new utility poles for the collocation of small wireless facilities, small wireless facilities or micro wireless facilities within the public rights-of-way in such a location that would interfere with or impair the city's ability to pursue the projects identified within the city's Capital Improvement Program FY18-FY23 adopted by the city council on August 15, 2017, as it may be amended, as described more fully in Resolution No. 17-33, unless waived by the city manager. In conjunction with granting such waiver, the city may require conditions on the permit approving such facility so as to minimize the impact on the CIP. A registrant shall relocate at its expense, its utility poles, small wireless facilities and micro wireless facilities that need to be relocated to accommodate the city's CIP construction, to the extent not inconsistent with applicable law.

b.

Small wireless facilities, utility poles for collocation of small wireless facilities and aerial communications facilities shall not be permitted in an area within the public rights-of-way that would interfere with the city's public art program. The city may notify a registrant to relocate at its cost a utility pole used for collocation of a small wireless facility or ground mounted small wireless facility if such location interferes with a planned installation of art. A registrant that damages an object of art installed pursuant to the art program, the registrant shall be responsible for the costs of the art and shall indemnify the city as required in this article. The city reserves the right to require an additional security fund in conjunction with an application to place or maintain a communications facility in an area where an art object has been located.

(14)

A structure granted a permit and installed pursuant to this article shall comply with F.S. ch. 333, and city or federal regulations pertaining to airport airspace protections.

(15)

Historic preservation. This Article does not limit the city's authority to enforce historic preservation zoning regulations consistent with the preservation of local zoning authority under 47 U.S.C. §332(c)(7), the requirements for facility modifications under 47 U.S.C. §1455(a), or the National Historic Preservation Act of 1966, as amended, and the regulations adopted to implement such laws. Communications facilities shall not be permitted to be collocated on or to interfere with historic property or landmark that may be within or adjacent to the public rights-of-way unless waived by the city. The city shall not allow small wireless facilities, utility poles for the collocation of small wireless facilities or micro wireless facilities to be located in a manner that would impact negatively historic property or landmark unless waived by the city. Historic properties and landmarks may be so designated as being listed in the National Register of Historic Places pursuant to the National Historic Preservation Act of 1966, as amended, a property within a National Register-listed district, or individually listed in the Florida or city register of historic places, consistent with city codes, administrative rules, or regulations that were adopted by city ordinance on or before April 1, 2017, which are applicable to a historic area designation by the state or city.

(c)

Objective design standards.

(1)

Intent and purpose. Small wireless facilities in the public rights-of-way and utility poles installed or repurposed in the public rights-of-way for collocation of small wireless facilities shall be designed in such a manner to maximize compatibility with the surrounding neighborhood and to minimize any negative visual impact on the surrounding neighborhood. The objective design standards contained in this article regulating the location context, color, stealth design, and concealment of the proposed small wireless facility shall apply, unless waived by the city.

(2)

Applicants shall not place or maintain signage on communications facilities, including small wireless facilities or utility poles for collocation of small wireless facilities, in public rights-of-way, unless otherwise required by federal or state law, provided; however, existing structures that lawfully supported signage before being repurposed may continue to support signage as otherwise permitted by law.

(3)

A small wireless facility shall not have any type of lighted signal, lights, or illuminations unless required by applicable codes, local codes or regulations, a permit issued by the city, or state and federal laws and regulations or as permitted by the city.

(4)

Design standards for utility poles. Stealth design for new or replaced utility poles for collocation of small wireless facilities. All proposed new or replaced utility poles for collocation of small wireless facilities shall comply with applicable codes and shall meet the design standards contained in this subsection unless waived by the city.

a.

A replaced or restructured utility pole to accommodate the collocation of a small wireless facility shall be in substantially the same location as the original utility pole.

b.

The replaced or restructured utility pole shall be substantially similar in finish, base and pole design, diameter, material and height as the original pole being replaced, unless the city requires a different design, color or composition to be consistent with applicable city standards for new utility poles.

c.

Unless waived by the city, the height for a new utility pole or replaced utility pole installed pursuant to this article shall not exceed the height of the tallest existing utility pole as of July 1, 2017, in the same right-of-way, measured from grade, in place within 500 feet of the proposed location of the small wireless facility. If there is no utility pole within 500 feet in the same public right-of-way as of July 1, 2017, the height shall be limited to 50 feet measured from grade. Height shall include only the height of the utility pole and shall not include any light, antennas, masts or other attachments to the utility pole.

d.

Unless waived by the city, a new utility pole shall be designed to be substantially similar in design to other utility poles in the same block or vicinity of the public rights-of-way. Such design aspects to follow include the material, base, pole diameter and style, location and style of attachments, finish, and cap, as applicable. By way of example, if existing utility poles in the same area of the public rights-of-way are light poles, the new utility pole should be designed substantially similar to such light poles and to the extent consistent with location context regulations, equidistant between existing poles. Unless waived by the city, any such stealth utility pole for collocation of a small wireless facility shall function in the same manner as the facility it is intended to resemble in compliance with the Code, at the expense of the registrant to the extent not inconsistent with applicable law. By way of example, if a registrant installs a utility pole for collocation small wireless facility to resemble a nearby light pole, the registrant is encouraged to include a light that is operated in the same manner as other light poles, at the applicant's expense. The city manager may, in the exercise of discretion, approve a collocation of a small wireless facility on a city light pole that would otherwise not qualify for collocation under this article.

e.

Notwithstanding this subsection, if the proposed location of a new utility pole for collocation of a small wireless facility is within a public right-of-way that is within a particular zoning district, planned unit development, community development district, community redevelopment agency, or a homeowners' association that has design standards applicable to utility poles, such proposed utility pole shall substantially comply with such design standards.

f.

If there are no existing utility poles in close proximity to a new utility pole for collocation to resemble or any applicable design standards based on the location, the new utility pole shall be a concrete or fiberglass pole with a black finish, or designed pursuant to standards established by the city manager.

g.

This subsection does not authorize the installation of a new utility pole for collocation of a small wireless facility in a location that is otherwise prohibited pursuant to court order or applicable codes, including, but not limited to, this article.

(5)

Stealth design for collocation of small wireless facilities.

a.

Wires, cables and equipment to be collocated on a utility pole shall be within the utility pole or if not possible to being installed within the utility pole, covered with a shroud. No exposed wires or cables are permitted.

b.

If the utility pole for the proposed collocation of a small wireless facility is a light pole, a street light fixture substantially similar in design to the existing street light fixture shall be used to camouflage the small wireless facility such as through replacement of the cobra head with a new cobra head containing the small wireless facility, or a side-mounted light may be replaced with a substantially similarly designed side mounted light containing the small wireless facility. Unless consistent with the design of the utility pole, a small wireless facility shall not be collocated on a mast of a utility pole. In no event shall a small wireless facility be collocated on the mast of a utility pole that serves as a traffic signal pole. Any street light fixture installed by the registrant shall be maintained in good working order by the registrant at its cost.

c.

Slim design shall be used wherein the top mounted antenna does not exceed the diameter of the supporting utility pole at the level of the antenna attachment by more than six inches, or if applicable for other than round poles, by more than six inches on each side, and side mounted enclosures, if any, do not extend more than 24 inches beyond the exterior dimensions of the existing structure, repurposed structure or utility pole at the level of antenna attachment measured from the edge of the pole to the outermost surface of the antenna.

d.

Maximum height restrictions. A small wireless facility, including any attached antennas, shall not exceed ten feet above the existing structure, repurposed structure or utility pole upon which the small wireless facility is to be collocated. A small wireless facility in the public rights-of-way shall not be used for the attachment of any communications facilities or fiber other than the equipment included within the small wireless facility.

(6)

Small wireless facilities not collocated on utility poles or existing structures.

a.

Ground-mounted small wireless facilities up to 28 cubic feet in dimension shall be located within a ten foot radius of the existing structure or utility pole for the collocated small wireless facility. Pursuant to F.S. § 337.401(7)(b)(2), ground-mounted small wireless facilities shall be located with reasonable spacing of at least 200 feet from other ground-mounted small wireless facilities.

b.

The ground-mounted small wireless facility shall be architecturally designed and of the same materials and color finish to be substantially similar to other at-grade infrastructure within 500 feet of the proposed location in the public rights-of-way such as waste receptacles or utility facilities. If the ground-mounted small wireless facility is not substantially similar to other at-grade infrastructure as set forth herein, the proposed small wireless facility shall be submitted to the city for review and approval.

c.

To the extent not inconsistent with applicable codes, at the city's direction, ground-mounted small wireless facilities shall be enclosed in a wrap the design of which has been approved by the city staff. The registrant shall maintain the wrap in good condition at its sole cost and expense. The city may designate specific areas of the city where all ground-mounted small wireless facilities must be enclosed in a wrap.

d.

To the extent not inconsistent with applicable codes, at the city's direction the registrant owner of a ground mounted small wireless facility in the public rights-of-way shall conceal the facility with landscaping and plantings. Landscaping and plantings pursuant to this subsection shall be subject to the city's approval and be maintained by the registrant at its sole cost and expense consistent with the Code for so long as the small wireless facility remains in the public rights-of-way.

e.

The city manager is authorized to create a manual showing figures of acceptable and unacceptable designs for facilities to be placed or maintained in the public rights-of-way.

(7)

Development standards for communications facilities other than small wireless facilities and utility poles for collocation of small wireless facilities.

a.

Dimensional limits. No communications facility other than small wireless facilities located aboveground, excluding utility poles, having exterior dimensions greater than four feet high, by four and one-half feet long, by two and one-half feet wide, or having a total volume exceeding 45 cubic feet, shall be granted a permit for construction or installation nor shall be constructed within the corporate limits of the city on any public rights-of-way unless:

1.

The communication service provider can properly demonstrate in its permit application for placement of communication facilities in the public rights-of-way that strict compliance with the dimensional limits in this subsection will prevent the communications service provider from installing, constructing, maintaining, or providing its communications network; and

2.

The communication service provider demonstrates in its permit application that the proposed communications facilities it desires to construct which exceeds the dimensional limits set forth above in this subsection are necessary to provide adequate capacity to meet the requirements of the applicant at a specific location, or that said limits are otherwise technologically infeasible at the location, and that the proposed equipment the service provider desires to utilize is of the minimum size available to meet the requirements of the applicant's communications network; and

3.

The communications service provider demonstrates in its permit application that the proposed communications facilities are located and composed in a manner to minimize adverse impacts to abutting properties and the surrounding neighborhood and does not create a hazard by impairment of visibility to motorists or pedestrians at the proposed site and does not negatively impact or violate location and other regulations contained in this article; and

4.

The communications facility proposed by the communications provider does not otherwise create a hazard to the public health, safety and welfare

b.

Notice to residential areas. Whenever a communications service provider subject to this subsection submits a permit application to locate communications equipment which exceeds the dimensional limits in this subsection within residentially-zoned districts in the city, the applicant shall provide notice by posting an 18 inches × 24 inches sign, satisfactory to the city, at the proposed location advising residents that they may review the permit application at the city and provide their comments to the city. The sign shall be posted a minimum of 30 days prior to any decision being made on the permit application to allow adequate time for input by residents and so as not to unduly delay the processing of any application.

(Ord. No. 2018-13 , § 3, 8-7-2018)