ORD NO 10-2019 CITY OF VAN BUREN,ARKANSAS
ORDINANCE NO. J O -2019
BE IT ENACTED BY THE CITY COUNCIL, FOR THE CITY OF VAN BUREN,
ARKANSAS, AN ORDINANCE TO BE ENTITLED:
AN ORDINANCE ESTABLISHING STANDARDS FOR SMALL
WIRELESS FACILITIES WITHIN THE CITY OF VAN BUREN,
ARKANSAS; DECLARING AN EMERGENCY; AND FOR OTHER
PURPOSES.
WHEREAS, the City of Van Buren does not currently have standards or regulations
pertaining to the placement of small wireless facilities within the city; and
WHEREAS, the City Council of the City of Van Buren finds that the City of Van Buren
is experiencing substantial residential and commercial growth within its city limits, and also
experiencing increasing traffic congestion on its streets that makes the orderly maintenance and
use of its right-of-ways of upmost importance and concern; and
WHEREAS, the City Council of the City of Van Buren finds it necessary for the health,
safety and welfare of its citizens to enact uniform standards to preserve to integrity, provide for
the safe usage, and maintain the visual qualities of the city; and
WHEREAS,the City Council of the City of Van Buren find the standards set forth in this
ordinance to be in the best interests of its citizens of the City of Van Buren; and
WHEREAS, the City Council for the City of Van Buren desires to enact regulations
pertaining to the placement of small wireless facilities within the City that are in line with
applicable state and federal law, regulations and guidelines.
NOW, THEREFORE, BE IT ORDAINED AND ENACTED BY THE CITY
COUNCIL OF THE CITY OF VAN BUREN,ARKANSAS, THAT:
Section 1—Purpose and Scope
1. Purpose: The purpose of this Section is to provide policies and procedures for the placement
of small wireless facilities,which will provide a public benefit consistent with the preservation
of the integrity, safe usage, and visual qualities of the city and comply with applicable state
and federal laws, regulations and guidelines.
2. Intent. In enacting this Chapter, the City is establishing uniform standards to address issues
presented by small wireless facilities, including without limitation:
a. Health, safety, and welfare of citizens;
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b. Limit interference with the use of streets, sidewalks, alleys, parkways, public utilities,
public views, certain city corridors, and other public ways and places;
c. Limit the creation of visual and physical obstructions and other conditions that are
hazardous to vehicular and pedestrian traffic
d. Limit interference with the facilities and operations of facilities lawfully located in
rights-of-way or public property;
e. Limit environmental damage, including damage to trees;
f. Respect the character of the neighborhoods in which facilities are installed by minimization
of visual clutter and preservation of the character and aesthetics of areas in close proximity
to small wireless communication facilities;
g. Facilitate the city's permitting process to encourage fair and meaningful competition;
h. Encourage collocation of antenna on existing facilities; and
i. Facilitate deployment of small cell facilities to provide the benefits of advanced wireless
services to all citizens and organizations throughout the city. Municipalities recognize the
economic and social value of data connectivity and desire to encourage wireless
infrastructure investment by providing a fair and predictable process for the deployment of
small wireless facilities within the public rights-of-way in a manner that is:
i. Safe;
ii. Compatible with and complementary to the provision of services by the
municipality and others lawfully using the rights-of-way; and
iii. Consistent with the aesthetic standards of the municipality.
• 3. Zoning and Use of Rights of Way by Wireless Provider.
a. A wireless provider shall have the right, as a permitted use not subject to zoning review or
approval, to collocate, maintain, modify, operate, and replace small wireless facilities
and to install, maintain, modify, and replace poles it owns or manages or, with the
permission of the owner, a third party's pole, associated with a small wireless facility,
along, across, upon, and under the right-of-way.
b. Small wireless facilities and associated poles shall be installed and maintained as to not
obstruct or hinder the usual travel or public safety of the right-of-way or the usage of the
right-of-way by utilities.
c. Therefore, applications to collocate a small wireless facility or install or modify an
associated utility pole in the rights-of-way shall be treated as a permitted use in all districts
within the City, but are not exempt from the following local regulations and review.
;i. All wireless facilities not meeting the definition of a small wireless facility shall be subject
to applicable local zoning and development requirements.
4. Conflicts with Other Chapters. This Chapter supersedes all Chapters or parts of
Chapters adopted prior hereto that are in conflict herewith, to the extent of such
conflict.
5. Conflicts with State and Federal Laws. In the event that applicable federal or state laws
or regulations conflict with the requirements of this Chapter, the Wireless Services
Provider shall comply with the requirements of this Chapter to the extent that its provisions
are not preempted by, or do not conflict with, applicable federal or state laws or
regulations.
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Section 2 — Permitted Use; Height, Location, Design, Aesthetics, and other
Standards
1. Location. While small cells facilities are permitted uses within all zoning districts within the
city, deployment of small cell facilities within the City is subject to the standards set forth in
this ordinance.
2. Height:
a. Each new or modified pole installed in the right-of-way for the purpose of
collocation of small wireless facilities shall not exceed the greater of:
i. Fifty feet(50') in height above ground level; or
ii. Ten percent (10%) taller than the tallest existing pole in place in the same
right-of-way as of September 1, 2019, within three hundred feet (300') of
the new or modified pole.
b. A new small wireless facility in the right-of-way shall not extend more than ten
percent(10%) above the existing structure on which it is located or fifty feet (50')
above ground level,whichever is greater.
c. A wireless provider shall have the right to collocate a wireless facility and install,
maintain, modify, and replace a pole that exceeds the height limits required under
subsection(a)of this section along,across,upon and under the right-of-way,subject
to this section and any applicable zoning regulations.
3. Location and Design:
a. A wireless provider shall not install a small wireless facility or pole in a historic
district without complying with the requirements of general application for
structures within the historic district.
b. A wireless provider may replace decorative poles when necessary to deploy a small
wireless facility so long as the replacement reasonably conforms to the design of
the original decorative pole.
4. Damage and repair: Replacements,Abandonment, Removal
a.
i. A wireless provider shall repair all damage to the right-of-way directly
caused by the activities of the wireless provider in the right-of-way and
return the right-of-way to its functional and aesthetic equivalence before the
damage under the competitively neutral, reasonable requirements and
specifications of the City.
ii. If the wireless provider fails to make the repairs required by the City within
a reasonable time after written notice,the City may make those repairs and
charge the applicable party the actual and reasonable documented cost,
including overhead, of the repairs.
b.
i. A wireless provider is not required to replace or upgrade an existing pole
except for reasons of structural necessity or compliance with applicable
codes.
ii. A wireless provider may, with the permission of the pole owner, replace or
modify existing poles, but any such replacement or modification shall
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substantially conform to the design aesthetics of the pole being modified or
replaced.
c.
i. A wireless provider shall notify the City at least thirty (30) days before the
wireless provider's abandonment of a small wireless facility.
ii. If the wireless provider fails to remove the abandoned small wireless facility
within ninety(90)days after the notice,the City may undertake the removal
and recover the actual and reasonable documented cost,including overhead,
of the removal from the wireless provider, or its successors or assigns.
d.
i. The City may order the removal of a small wireless facility or associated
pole in the right-of-way that violates Ark. Code. Ann. §§ 23-17-505, § 23-
17-506, or applicable codes.
ii. The City shall provide written notice of the violation to the owner of the
small wireless facility at least thirty (30) days before removal to afford the
owner the opportunity to conduct repairs or removal, or otherwise remedy
the violation.
e.
i. If the City determines that a wireless provider's activity in a right-of-way
under this subchapter creates an imminent risk to public safety,the City may
provide written notice to the wireless provider and demand that the wireless
provider address the risk.
ii. If the wireless provider fails to reasonably address the risk within twenty-
four(24)hours of the written notice,the City may take or cause to be taken
action to reasonably address the risk and charge the wireless provider the
reasonable documented cost of the actions.
f.
i. A wireless provider shall not collocate a small wireless facility or install,
modify, or replace a pole in the right-of-way that:
1. Materially interferes with the safe operation of traffic control
equipment;
2. Materially interferes with sight lines or clear zones for
transportation or pedestrians;
3. Materially interferes with compliance with the Americans with
Disabilities Act of 1990, Pub. L. No. 101-336, or similar federal or
state standards regarding pedestrian access or movement; or
4. Fails to comply with applicable codes.
5. Collocation:
a. This section applies to activities of a wireless provider collocating small wireless facilities
on authority poles in the City's right-of-way or in a right-of-way controlled by the Arkansas
Department of Transportation located within the City.
b.
i. A person owning, managing, or controlling poles in the City or state right-of-way
shall not enter into an exclusive arrangement with any person for the right to attach
to the poles.
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ii. A person who purchases or otherwise acquires a pole in the City or state right-of-
way is subject to the requirements of this section.
c. The City shall allow the collocation of small wireless facilities on authority poles on
nondiscriminatory terms and conditions using the process in the "permits" section of this
code.
d. The rates to collocate on authority poles is provided in the "rates and fees" section of this
code
e.
i. As part of an application to collocate a small wireless facility on an authority pole,
the wireless provider shall submit make-ready design drawings and work
descriptions that enable the pole to support the requested collocation by the wireless
provider, including pole replacement if necessary.
ii. The City may amend the make-ready design drawings and work to comply with
applicable codes before the issuance of a permit to the extent reasonably necessary.
iii. The rates, fees, and terms and conditions for the make-ready work to collocate on
an authority pole shall be nondiscriminatory, competitively neutral, and
commercially reasonable and shall comply with this Chapter.
iv. The City shall not require more make-ready work than required to meet applicable
codes or industry standards nor may the fees for make-ready work include costs
related to preexisting or prior damage or noncompliance.
f.
i. The City may require replacement of an authority pole only if the collocation would
make the authority pole structurally unsound.
ii. The City may require that the replaced authority pole have the same functionality
as the pole being replaced.
iii. If the authority pole is replaced,the City shall take ownership of the new pole and
operate authority fixtures on the pole.
g.
i. Make-ready fees charged by the City may include the amount the authority pays a
professional engineer registered in Arkansas to review the wireless provider's
make-ready work plans.
ii. Fees for make-ready work shall not include any revenue or contingency-based
consultant's fees or expenses of any kind.
h. Within sixty(60)days of the receipt of the application filed to collocate on a City pole,the
City shall elect to:
i. Perform the make-ready work necessary to enable the pole to support the
requested collocation by a wireless provider and provide a good-faith estimate
for the work, including pole replacement, if necessary; or
ii. Authorize the wireless provider to perform the make ready work.
i. The City shall complete make-ready work it elects to perform, including any pole
replacement,within sixty(60)days of written acceptance of the good faith estimate
of the applicant.
ii. If the City, electing to perform the make-ready work, has not completed the work
within sixty (60) days after the written acceptance and deposit of the good faith
estimate by the applicant,the applicant may demand a return of any deposited funds
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and proceed with the make-ready work as described in subsection(e)of this section,
using authorized, qualified contractors approved by the City with the authorization
not to be unreasonably withheld, conditioned, or delayed.
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i. The City or other applicable authority may reserve space on an authority pole for
future public safety or transportation uses in a documented and approved plan in
place at the time an application is filed.
a. A reservation of space shall not preclude placement of a pole or collocation
of a small wireless facility.
b. If replacement of the City's pole is necessary to accommodate the
collocation of the small wireless facility and the future use, the wireless
provider shall pay for the replacement of the authority pole and the replaced
pole shall accommodate future use.
6. Aesthetics:
a. The aesthetic appearance of small wireless facilities and associated poles is
regulated by the City to ensure coordinated, adjusted, and harmonious
development, as provided in this section. The City may apply these requirements
to areas of the City in which coordinated, adjusted, and harmonious development
has been established through the use of overlay districts or historical districts.
b. These aesthetic standards shall adhere to the following requirements:
i. Reasonable, in that they are technically feasible and reasonably directed to
avoiding or remedying unsightly or out-of-character deployments;
ii. No more burdensome than those applied to other types of utility and
communications infrastructure deployments;
iii. Objective and published at least ninety (90)days in advance of the filing of
an application under this Chapter;
iv. Any design or concealment measures are not considered a part of the small
wireless facility for purposes of the size parameters in the definition of
"small wireless facility"; and
v. The City may deny an application for not complying with aesthetic
requirements only if the City finds that the denial does not prohibit or have
the effect of prohibiting the provision of wireless service.
c. The Board of Zoning Adjustment may:
i. Hear appeals of the decision of the Administrative Officer in respect to the
enforcement and application of the aesthetic standards, and may affirm or
reverse, in whole or in part, the decision of the administrative officer.
1. Decisions of the Administrative Officer shall be rendered to the
applicant in writing; and
2. An appeal must be filed within ten(10) days of the written decision
of the Administrative Officer.
ii. Hear requests for variances from the literal provisions of the aesthetic
standards and grant the variances only when it is necessary to avoid the
prohibition of wireless service or otherwise comply with the law.
d. Decisions of the Board in respect to this section shall be subject to appeal only to a
court of record having jurisdiction.
e. Equipment Enclosures:
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i. To the extent technically feasible,if the support structure is a pole,all radios
and wireless communication equipment, except the antenna, shall be
enclosed within an equipment cabinet and housed: at the base of the support
structure, pole mounted (at a height and placement that will not interfere
with pedestrian, cyclist, or vehicular movements), or below grade.
ii. Where underground utilities are required by the provisions of this Code or
other City adopted regulations or codes, ancillary equipment related to the
small wireless facility shall be placed in an underground vault to the greatest
extent possible.
f. Design: Consistent with the provisions of this section,a small wireless facility shall
be installed using the following design approaches to the extent reasonable
including without limitation the following:
i. For location on newly proposed Wireless Support Structures,the following
options are available:
1. New poles installed to support small wireless facilities shall be made
of the same or similar material as existing poles in the immediate
area.
2. In an area where other above ground utilities are present, the
deployment of a new small cell facility shall be located on the same
side of the street which the existing above ground utilities are
located and a similar style utility pole (as those utilized by existing
above ground utilities)may be utilized.
3. In an area where the City has required all electrical and
communication lines to be placed underground by a date certain that
is three(3)months before the submission of the application or where
undergrounding is required after small wireless facilities have been
installed, an explanation as to why collocation or use of an existing
structure, remaining pole or replacement pole is not technically
feasible shall be required. This shall apply to the location of all pole
attached utilities and shall include demonstration of a reasonable
attempt to collocate or utilize an existing structure. A wireless
provider may install a new pole in the designated area that otherwise
complies with this section when it is not able to provide wireless
service by collocating on an existing structure, remaining pole or
replacement pole
4. When a wireless provider applies to install a new pole in the right-
of-way in an area zoned for residential use,the City may propose an
alternative location in the right-of-way within one hundred feet
(100') of the location stated in the application, and the wireless
provider shall use the City's proposed alternative location unless the
location imposes technical limits or significant additional costs.
(i) The wireless provider shall certify that it has made the
determination in good faith, based on the assessment of
a licensed engineer, and the wireless provider shall
provide a written summary of the basis for the
determination.
5. Horizontal spacing for all new poles and ground-mounted small
wireless facilities shall be three hundred (300') feet, but the
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requirements shall not prevent a wireless provider from serving any
location. Any request for an installation less than three hundred
(300') feet shall include a certification from the wireless provider
that it has made the determination in good faith, based on the
assessment of a licensed engineer, and the wireless provider shall
provide a written summary of the basis for the determination.
6. The City prefers that new facilities be designed to be camouflaged,
including, but not limited to, use of compatible building materials
and colors, incorporation within street lights, screening,
landscaping, and placement within trees.
7. Camouflaging and stealth technology is preferred in all residential
areas and corridors that are currently developed with underground
utilities or have been developed with steel or decorative poles.
8. Except as permitted by the City, no person shall install a new pole
within a right-of-way unless the pole is within ten feet (10') feet of
a side lot line and at least eighteen inches (18") from the road
surface. When compliance with this requirement is not technically
feasible, the new pole will be installed in a location as close to the
lot line as possible. This requirement shall not apply when installing
new poles in a median between roadways or within a right-of-way
controlled by the Arkansas Department of Transportation.
ii. For location on existing Pole Structures:
a) Stealth antennas and mounts (completely encased or screened antennas,
when possible, to approximately match the color of the existing poles).
In the event that some antennas cannot be covered due to their
operational wavelength,the applicant shall provide proof of such to the
City and the antenna shall be required to be painted in a way that blends
with the pole.
b) Stealth base cabinet enclosures (completely encases base cabinet
equipment to match the colors of the existing poles to the extent
feasible). Base cabinet may be placed in any location on the lower
portion of the pole, but may not impede ADA accessibility of a
sidewalk. The base cabinet may also be placed underground.
c) The City shall not limit the collocation of small wireless facilities by
minimum horizontal separation distance requirements from existing
small wireless facilities,poles, or wireless support structures.
iii. For location on existing Building Structures:
a) New steeple,extension to existing steeple,and replacement steeple
concealment structures,
b) Chimney concealment structures,
c) Chimney pot concealment structures,
d) Rooftop facade extension concealment,
e) Rooftop cupola concealment,
f) Rooftop screen concealment,
g) Roof top pod concealment systems,
h) Building side grid concealment structures,
i) Building side screen concealment structures,
j) Rooftop or wall mounted lantern concealment structures.
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ii. Antenna arrays,cables,and other ancillary facilities used for providing the wireless
service shall not be obtrusive or noticeably visible from adjacent properties or
adjacent rights-of-way.
iii. The color of the facility shall be compatible with that of the non-tower support
structure. To the extent any small wireless facilities extend above the height of the
vegetation buildings and utilities immediately surrounding it, they shall be painted
in a non-reflective light gray,light blue,or other hue,which blends with the skyline
and horizon.
iv. Attachments which are ancillary to the antenna arrays mounted onto a non-tower
support structure shall not project greater than three (3) feet, as measured
horizontally, from the surface of the non-tower support structure and shall be
painted or screened with materials that are a compatible color to the non-tower
support structure. Cables that travel along the exterior of a non-tower support
structure shall be closely connected to the structure creating a minimal appearance
of gaps or loose wires. When possible, visible cables should be in conduit or
otherwise covered in a material visually compatible in color to the support structure.
v. The general design of a small wireless facility shall be compatible to the streetscape
and aesthetics of the surrounding area with respect to street furniture and lights,
building façade designs, and area character.
vi. Other design elements which by industry standards are considered stealth
technology deployment may also be used.
vii. Within enacted overlay district stealth concealment is required except when
specifically identified by the applicant that such stealth concealment results in a
material reduction in the functionality of the proposed small wireless facility.
7. Signage: The applicable provisions of the Van Buren Municipal Code regarding signage
shall apply to all small wireless facilities.
8. Illumination: A small wireless facility shall not have lights on the facility unless the lights
are required by other laws and consistent with the requirements of law or designed as an
intended amenity of the support structure.
9. Fencing: A small wireless facility installed in the public right-of-way shall not be fenced.
10. Use of Right-of-Way and indemnification:
a. The wireless provider shall fully indemnify and hold harmless the City and its
officers, agents and employees against any claims, demands, damages, lawsuits,
judgments, costs, liens, losses, expenses, and attorney's fees resulting from the
installation, construction, repair, replacement, operation, or maintenance of poles,
small wireless facilities, or attachments to City poles to the extent directly caused
by the negligence of the wireless provider, its contractors, subcontractors and their
officers, employees or agents.
b. A permit from the City shall not create a property right or grant any authority to the
owner of the small wireless facility to impinge upon the rights of others who may
already have an interest in the right-of-way.
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11. Appendix to Section 6. Attached to this Ordinance as an Appendix to this Section are
illustrations to provide guidance to applicants of aesthetic standards encouraged and
preferred by the city in the installation of small wireless facilities and associated poles.
Section 3—Application and Review Process
1. Permit and Application. A permit is required for the placement and construction of a small
wireless facility. Approval of a permit shall require an application.
2. Contents of Application. The small wireless facility permit application shall be made by the
Wireless Services Provider or an authorized agent. A permit application shall contain the
following:
a. The applicant's name, address,telephone number and e-mail address;
b. The names, addresses, telephone numbers, and e-mail addresses of all consultants, if
any, acting on behalf of the Applicant with respect to the filing of the Application;
c. A general description of the proposed work. The scope and detail of such description
shall be appropriate to the nature and character of the work to be performed, with
special emphasis on those matters, including but not limited to sub-surface utilities,
likely to be affected or impacted by the work proposed;
d. Authorization for any consultant acting on behalf of the Applicant to speak with the
city, or a designee of the city;
e. Verification from an appropriate professional that the small wireless facility shall
comply with all applicable codes;
f. Drawings and descriptions of the proposed facilities,non-tower support structures,and
ancillary equipment;
g. Maps with the specific locations;
h. Geographic coordinates of the locations;
i. If the proposed location is a new pole, an explanation as to why collocation or use of
an existing structure is not technically feasible. This shall apply to the location of all
pole attached utilities and shall include demonstration of a reasonable attempt to
collocate or use an existing structure, remaining pole or replacement pole;
j. If the applicant proposes to collocate on, or occupy any existing structure not owned
by the applicant, a letter or written statement from the owner allowing the use; and
k. A description and substantiation of any requests for exceptions from the requirements
of this Section.
3. Batch Applications. The city may require the applicant to file a separate application for any
small wireless facility that is not of a substantially similar design to the others included in the
application,or if submitted in a batch,the application must be sufficiently clear so that the City
may determine whether one or more of the proposed facilities is not of a substantially similar
design.
4. Bond. The city may require the applicant to post a bond as required for any open cut,sidewalk,
curb and gutter or other public right of way work as set forth in the Van Buren Municipal Code
Section § 9.16.04.
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5. Routine Maintenance and Replacement.
a. An application shall not be required for:
i. routine maintenance that does not expand the size or height of the small wireless
facility; and
ii. the replacement of a small wireless facility with another small wireless facility that
is substantially similar or smaller in size,weight, and height.
b. Provided,however,on a location where the City or another provider has placed equipment
or facilities, any routine maintenance or replacement that is done shall not occur until
written notice of an intent to proceed is provided to the City.
6. Review Procedure:
a. The Planning Director shall review the application for compliance with these and other
applicable laws and regulations. Review and approval shall be in accordance with
timeframes established by federal and state law/policy and the following:
i. All applications shall be processed on a nondiscriminatory basis within:
a. Sixty (60) days of receipt of an application for the collocation of a small
wireless facility; and
b. Ninety(90)days for an application to install,modify,or replace a pole on which
a small wireless facility is or will be collocated.
ii. Within ten(10)days of receiving an application,the Planning Director shall determine and
notify the applicant in writing:
1. Whether the application is complete; or
2. If the application is incomplete, what specific information is missing.
iii. If the application is incomplete, the applicant shall be allowed to resubmit the amended
application without penalty or payment of any additional application fees, if resubmission
occurs within thirty (30) days of notification.
iv. The time frame for reviewing shall commence when the application is submitted,but may
be tolled upon notification of incompleteness. If the application is incomplete, the
applicable time frame for reviewing is reset when the missing information is provided by
the applicant.
v. Once the application is determined to be complete, the Planning Director shall review the
application and if the application meets the requirements and standards set forth in this
section the application shall be granted and a permit issued.
vi. If the applicant is requesting an exception to any requirement, the standard of review
shall be to determine if the exception is warranted due to an identifiable site-
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specific hardship or a technological challenge, and more specifically if the excepted
requirement is:
a) Not necessary or desirable for the protection of the surrounding property, public
health, public safety, or general welfare; or
b) Unreasonable as applied to the particular application.
vii. The Planning Director may approve some or all of the requested exception, and advise the
applicant in writing of the extent of approval and/or reasons for denial.
a) If the applicant believes the decision of the Planning Director to be in error, an
appeal may be made to the Van Buren Board of Zoning Adjustments.
b) If the applicant accepts the decision of the Planning Director the application shall
proceed with review and approval/denial.
viii. The Planning Director shall have the authority to defer an exception request to the Board
of Zoning Adjustment. The Board of Zoning Adjustment shall act upon the request in a
timely manner. If the decision of the Board of Zoning Adjustment is in the affirmative,the
permit shall be approved, provided all other review requirements are met. If not, the
application shall be referred to the Planning Director for continued review.
ix. If the Board of Zoning Adjustment denies any or all of the requested exception, the
applicant may appeal the decision to a court of jurisdiction in accordance with state law.
x. The Planning Director or designee shall notify the applicant in writing of its final decision:
1. Within sixty (60) days of receiving an application for the collocation of a small
wireless facility; using an existing structure.
2. Within ninety (90) days for an application to collocate a small wireless facility on
a new structure.
i. These timelines may be tolled only by mutual agreement between the
applicant and the City.
3. If the application is approved, a permit shall be issued;
4. If the application is denied,the Planning Director shall specify,in writing,the basis
for denial, citing specific code provisions from federal, state, or local law as to why
the application was denied.
5. Notwithstanding the initial denial, the applicant may cure any deficiencies
identified by the Planning Director within thirty (30) days of the denial without
paying an additional application fee. The Planning Director shall approve or deny
the revised application within thirty(30)days of receipt of the amended application
and its review shall be limited to the deficiencies specified in the original notice of
denial.
6. If a decision on an application is not made within the applicable time frame, the
application shall be deemed approved ten(10) days after written notice is provided
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by the applicant to the City that the time-period for acting on the application has
lapsed.
xi. If after commencement of construction but before construction is complete for an approved
permit, circumstances unforeseen at the time of approval arise which make continued
construction unsafe or impracticable, the applicant may request an amendment to the
application or plan by filing a request to amend the approved application. The applicant
shall cease work, and the procedure for the amendment request shall proceed in the same
manner as if it were a new application under this section. There is no application fee for an
amendment request.
xii. Prohibitions and Work Requirements:
1. Within sixty (60) days of written notice, the owner of the small wireless facility
shall:
a. Remove all graffiti on the facility at his or her expense; and
b. Repair or replace any damaged equipment.
2. Facilities located in the public right-of-way shall not materially visually obstruct
traffic signals or signage and shall be maintained in a manner that does not
materially interfere with public safety equipment.
3. The owner shall employ due care during the installation,maintenance or any other
work in the ROW, and shall comply with all safety and Public ROW protection
requirements of all applicable local,state,and federal laws. The owner shall restore,
repair and/or replace any portion of the public improvements in the ROW that are
damaged or disturbed by the owner's work or small wireless facilities.
4. Unless otherwise specified in the permit,the owner shall erect a barrier around the
perimeter of any excavation and provide appropriate traffic control devices, signs
and lights to protect, warn and guide the public(vehicular and pedestrian)through
the work zone. The manner and use of these devices shall be described within a
traffic control plan in accordance with the Uniform Manual of Traffic Control
Devices. The owner shall maintain all barriers and other traffic control and safety
devices related to an open excavation until the excavation is restored to a safe
condition or as otherwise directed by the city.
5. If use of the right-of-way on which the Small Wireless Facility is located is
necessary for a construction or improvement project undertaken by the City of Van
Buren or on its behalf,the Small Wireless Facility shall be relocated.Notice of such
relocation shall be provided by the City as soon practicable and at least ninety (90)
days before the deadline for completing the relocation. The City shall not bear any
expense of any necessary relocation.
6. A small wireless facility shall not interfere with City and public safety
communication systems and shall comply with all FCC regulations governing
interference.
13
7. A guy wire or other support wire shall not be used in connection with an antenna,
antenna array, or a non-tower support structure except when used to anchor the
antenna, antenna array, or non-tower support structure to an existing building or
ground to which such antenna, antenna array, or non-tower support structure is
attached.
8. The owner of a small wireless facility that is not in service or use for more than six
(6) months shall disassemble and remove the facility.
xiii. Fees and rates:
1. For the co-location of a small wireless facility on an existing pole or structure: One
Hundred Dollars ($100.00) non-recurring application fee.
a. Additionally, except as described in Ark. Code Ann. § 23-17-510(e), a
wireless provider shall pay the City compensation for use of the right-of-
way, an annual rate of thirty dollars ($30.00) per small wireless facility.
The annual rate shall be paid to the City by January 31St of the following
year.
b. A wireless provider shall pay the City compensation for collocation of small
wireless facilities on City poles an annual rate of Two Hundred and Forty
Dollars ($240.00) for each City pole.
2. For the installation of a small wireless facility and a pole: Two Hundred Fifty
Dollars ($250.00) for the installation, modification, or replacement of a pole
together with the collocation of an associated small wireless facility in the right-of-
way.
a. Additionally, except as described in Ark. Code. Ann. § 23-17-510(e), a
wireless provider shall pay the City compensation for use of the right-of-
way, an annual rate of thirty dollars ($30.00) per small wireless facility.
The annual rate shall be paid to the City by January 31st of the following
year.
3. If the application is for multiple facilities, the fee is One Hundred Dollars ($100.00)
(non-recurring application fee) for each additional facility.
4. Exceptions:
a. A wireless provider is not required to pay an authority compensation for
micro-wireless facilities that are suspended on cables strung between
existing utility poles in the right-of-way as long as the wireless provider
compensates the authority through other licenses or franchises held directly
or through one (1) of the wireless provider's affiliates for the placement of
the suspension cables in the right-of-way.
14
Section 4—Exclusive Arrangements Prohibited
1. Non-exclusivity. The City shall not enter into an exclusive arrangement with a
person for use of the right-of-way for the collocation of small wireless facilities or
the installation, operation,marketing,modification,maintenance, or replacement of
poles for the collocation.
Section 5—Local Authority
1. Exercise of Zoning Authority. Subject to the provisions of the Small Wireless
Facility Deployment Act codified at Ark. Code Ann. § 23-17-501 et seq. and
applicable federal law, the City may continue to exercise zoning, land use,
planning, and permitting authority within its territorial boundaries with respect to
wireless support structures, including the enforcement of applicable codes.
2. Interior Installations. The City shall not have or exercise any jurisdiction or
authority over the design, engineering, construction, installation, or operation of a
small wireless facility located in an interior structure or upon the site of a campus,
stadium, or athletic facility not owned or controlled by the City, other than to
require compliance with applicable codes.
Appendix Section 6 - Guidance illustrations.
Examples of stealth building attachments.
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Examples of stealth pole attachments for small wireless facilities.
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Section 7- Definitions
"Affiliate" means an entity that directly or indirectly controls, is controlled by, or is under
common control with another party;
"Antenna" means communications equipment that transmits or receives an electromagnetic radio
frequency signal in the provision of wireless service;
"Antenna equipment" means equipment, switches, wiring, cabling, power sources, shelters, or
cabinets associated with an antenna, located at the same fixed location as the antenna, and when
collocated on a structure is mounted or installed at the same time as the antenna.
"Antenna equipment" does not include:
16
(i) The structure or improvements on, under, or within which the equipment is
collocated; or
(ii) Wireline backhaul facilities, coaxial or fiber optic cable that is between
structures,or coaxial or fiber optic cable that is otherwise not immediately adjacent
to or directly associated with an antenna;
"Antenna facility" means an antenna and associated antenna equipment;
"Applicable codes" means uniform electrical reliability, building, fire, electrical, plumbing, or
mechanical codes, as adopted by a recognized national code organization, or local amendments to
the codes that are of general application, or local ordinances that are of general application, that
address public health, safety, or welfare and are consistent with this subchapter;
"Applicant" means a person who submits an application as or on behalf of a wireless provider;
"Application" means a request submitted by an applicant to an authority for a permit:
(A) To collocate small wireless facilities; or
(B) To install, modify, or replace a pole on which a small wireless facility is or will be
collocated, in the right-of-way;
"Authority" means the City.
"Authority pole" means a pole owned,managed, or operated by or on behalf of an authority;
"Collocate" or "collocate on" means the placement, mounting, replacement, or modification of
a small wireless facility on, or of ground-mounted antenna equipment adjacent to, a structure.
"Collocate" or "collocate on" includes collocated ground-mounted antenna equipment
as a small wireless facility if it meets the requirements of Ark. Code. Ann § 23-17-
503(25)(A)(iii)-(vi) and the associated facilities on the adjacent structure meet the
requirements of Ark. Code Ann. § 23-17-503(25)(i)-(vi);
"Collocation," Collocation is defined as placing an antenna on any existing structure,
regardless of whether that structure already has wireless equipment on it, or whether it has
been zoned for placing that equipment.
"Communications service" means:
(A) A cable service, as defined in 47 U.S.C. § 522(6), as it existed on January 1, 2019;
(B) A telecommunications service, as defined in 47 U.S.C. § 153(53), as it existed on
January 1, 2019;
(C) An information service, as defined in 47 U.S.C. § 153(24), as it existed on January 1,
2019; or
(D) Wireless service;
"Communications service provider" means:
(A) A cable operator, as defined in 47 U.S.C. § 522(5), as it existed on January 1, 2019;
(B) A provider of information service, as defined in 47 U.S.C. § 153(24), as it existed on
January 1, 2019;
(C) A telecommunications carrier, as defined in 47 U.S.C. § 153(51); or
(D) A wireless provider;
"Control" means the direct or indirect:
17
(A) Ownership of at least fifty percent (50%) of the equity;
(B) Ability to direct at least fifty percent(50%) of voting power; or
(C) Ability otherwise to direct management policies;
"Controlled-access facility" means a highway or street described in Ark. Code Ann. § 27-68-
102;
"Decorative pole" means an authority pole that is specifically designed and placed for aesthetic
purposes and on which limited appurtenances or attachments, such as a small wireless facility,
lighting, specially designed informational or directional signage, or temporary holiday or special
event attachments, have been placed or are permitted to be placed according to nondiscriminatory
City rules or codes;
"Day" Calendar day unless there is a time frame for the City to respond to a request and the last
day to respond ends on a weekend, holiday, or time when all but City emergency services are
closed due to weather or some unforeseen situation.
"Facility"means an antenna facility or a structure that is used for the provision of wireless service;
"Fee" means a one-time, nonrecurring charge;
"Historic district" means a group of buildings, properties, or sites that are either:
(A) Listed in the National Register of Historic Places or formally determined eligible for
listing by the Keeper of the National Register of Historic Places, according to Section
VI.D.1.a.i-v of the Nationwide Programmatic Agreement Regarding the Section 106
National Historic Preservation Act Review Process, 47 C.F.R. Part 1, Appendix C, as it
existed on January 1, 2019;
(B) A historic district designated under the Historic Districts Act, § 14-172-201 et seq.; or
(C) A historic district otherwise designated under a local ordinance as of January 1,2019;
"Micro-wireless facility" means a wireless facility that:
(A) Is not larger in dimension than twenty-four inches(24") in length, fifteen inches(15")
in width, and twelve inches (12") in height;
(B) Has an exterior antenna that is no longer than eleven inches (11"); and
(C) Is not placed any farther than ten feet (10') down the span as measured from the side
of the pole;
"Permit" means an authorization, written or otherwise, required by an authority to perform an
action or initiate, continue, or complete a project for the deployment of wireless service at a
specified location;
"Person" means an individual, corporation, limited liability company, partnership, association,
trust, authority, or other entity or organization;
"Pole" means a pole in a right-of-way that may be used by or for wireline communications,
electric distribution, lighting, traffic control, signage, or a similar function, or for collocation of
small wireless facilities.
"Pole" does not include a wireless support structure or an electric transmission structure;
18
"Rate" means a recurring charge;
"Right-of-way" means an area on, below, or above a public utility easement,roadway, highway,
street, sidewalk, alley, or similar property.
"Right-of-way" does not include a federal interstate highway, controlled-access facility,
or a public utility easement that does not authorize the deployment sought by the wireless
provider;
"Small wireless facility" means a wireless facility that meets all of the following specifications:
(i) The facility:
(a) Is mounted on a structure fifty feet(50')or less in height, including the
antennas;
(b) Is mounted on a structure no more than ten percent (10%) taller than
other adjacent structures; or
(c) Does not extend an existing structure on which it is located to a height
of more than fifty feet (50') or by more than ten percent (10%), whichever
is greater;
(ii) Each antenna associated with the deployment, excluding associated antenna
equipment, is no more than three cubic feet(3 cu. ft.) in volume;
(iii) All other wireless equipment associated with the structure, including the
wireless equipment associated with the antenna and any preexisting associated
equipment on the structure, is no more than twenty-eight cubic feet (28 cu. ft.) in
volume;
(iv) The facility does not require antenna structure registration under 47 C.F.R.
Part 17, as it existed on January 1, 2019;
(v) The facility is not located on tribal lands, as defined in 36 C.F.R. 800.16(x), as
it existed on January 1, 2019; and (vi) The facility does not result in human
exposure to radio frequency in excess of the applicable safety standards specified
in 47 C.F.R. 1.1307(b), as it existed on January 1, 2019.
"Small wireless facility" does not include:
(i) The structure or improvements on, under, or within which the equipment is
located or collocated or to which the equipment is attached; and
(ii) Any wireline backhaul facility or coaxial or fiber optic cable that is between
wireless support structures or utility poles, or that is otherwise not immediately
adjacent to or directly associated with a particular antenna;
"Stealth Technology/Camouflaging" means systems, components and materials used in the
construction of wireless communications facilities to make it compatible with the surrounding
property.
"Structure" means a pole or wireless support structure, whether or not it has an existing antenna
facility, that is used or to be used for the provision of wireless service;
"Technically feasible" means that by virtue of engineering or spectrum usage the proposed
placement for a small wireless facility, or its design, concealment measures, or site location, can
be implemented without a material reduction in the functionality of the small wireless facility;
19
"Utility Pole"A pole or similar structure that is used in whole or in part for the purpose of carrying
electric distribution lines or cables or wires for telecommunications, cable or electric service, or
for lighting, traffic control signage, or a similar function regardless of ownership. Such term shall
not include structures supporting only Wireless Facilities.
"Wireless Facility" Equipment at a fixed location that enables wireless communications between
user equipment and a communication network, including: (i) equipment associated with wireless
communications;(ii)radio transceivers,Antennas,coaxial or fiber-optic cable,regular and backup
power supplies, and comparable equipment, regardless of technological configuration. The term
includes Small Wireless Facilities. The term does not include the structure or improvements on,
under, or within which the equipment is collocated, wireline backhaul facilities, coaxial or fiber
optic cable that is between wireless support structures or utility poles or coaxial or fiber optic cable
that is otherwise not immediately adjacent to, or directly associated with, an antenna.
"Wireless infrastructure provider" means a person or an affiliate thereof, including a person
authorized to provide communications service in the state,that builds or installs facilities for the
provision of wireless service, but that is not a wireless service provider;
"Wireless provider" means a wireless infrastructure provider or a wireless service provider;
"Wireless service" means any service using licensed or unlicensed spectrum, including the use
of Wi-Fi,whether at a fixed location or mobile, provided to the public;
"Wireless service provider" means a person who provides wireless service;
"Wireless support structure" means a structure, including:
(i) A monopole;
(ii) A tower, either guyed or self-supporting;
(iii) A billboard;
(iv) A building; or
(v) Any other existing or proposed structure designed to support or that is capable
of supporting small wireless facilities, other than a structure designed solely for the
collocation of small wireless facilities.
"Wireless support structure" does not include a pole
"Wireline backhaul facility" means an aboveground or underground facility used to transport
communications services from a wireless facility to a network.
Section 8. Parts of Ordinances in Conflict Repealed. That all ordinances or parts of
ordinances in conflict herewith, are hereby repealed to the extent of the conflict.
Section 9. Severance Clause. That the provisions of this Ordinance are hereby
declared to be severable and if any section, phrase, or provision shall be declared or held invalid,
such invalidity shall not affect the remainder of the sections, phrases or provisions.
Section 10. Any provision or portion of this ordinance which a court of competent jurisdiction
determines conflicts with state law or is ambiguous shall be resolved in favor of the provisions set forth in
the Arkansas Small Wireless Facility Deployment Act.
20
Declaration of Emergency. It is hereby found and determined that there is an immediate
need within the municipality for standards and regulations pertaining to small wireless facilities
and that existing standards and regulations are not in place, and based upon the needs of the City
of Van Buren in connection with its current and future growth the enactment of this Ordinance
will provide for the safe and orderly control of small wireless facilities within the city and help
assure the safe and proper growth and transmission of small wireless facilities, the safe
development of land and the safe maintenance and use of city right-of-ways. Therefore, an
emergency is declared to exist, and this act being immediately necessary for the preservation and
protection of the public peace,health, safety and welfare of the City and its citizens, shall become
effective on the date of its passage and approval by the Mayor. If the Ordinance is neither approved
nor vetoed by the Mayor, it shall become effective on the expiration of the period of time during
which the Mayor may veto this Ordinance. If the Ordinance is vetoed by the Mayor and the veto
is overridden by the City Council, it shall become effective on the date the City Council overrides
the veto.
IN WITNESS WHEREOF, the City of Van Buren, Arkansas, by its City Council, did
pass, approve, and adopt, by a vote of (pfor and 0 against, the foregoing Ordinance at its
regular meeting held on the 26th day of August 2019.
ita
Jo eph '. Hurst
Ma
ATTESTED: APPRI D AS 1 ! :
.4141b
aLIAC?liaa)
Ph is Thomas Candic- .4
City Clerk/Treasurer City Attorney
21
Big news about small cell
By C.Jason Carter
ur world is very connected. : '77 7—','„. 3: r-`--f 1 \\ ,T, { -. ~
Through the Internet,we
j
I connect with others for busi-
ness,social interaction,and . _,',. ,,
entertainment.That connectivity even ,, , + l
extends to the objects and devices we 1+ z _i
use every day,from coffee makers to the } ,--:::!,4`,,-,,;,-; `: i`
lights in our homes,in a new category fIj*' '-' -..—,� 5
of technology dubbed the"Internet of , `'a l xAq ti , .,\ii,
things."It touches every facet of our ,`x ,...,A;" y�4R -
_
lives,or soon will. .)-= ,f," V Iti ,
To engage in these tactivities,we 4•
need to move lots of data quickly and ,4-4,1., �,_ 1 '
reliably.Sometimes we do that across a '< t t47 - r' i�
$ S 4y H4 '�q 4 A I '
wired connection,but more and more l,$tx,.ty i
we access information wirelessly across ¢1. , d� �. i , 4'
cellular networks. .. g _' `
' i
The small computers that we carry = < :,,,,,,›J-i. , jE� '�� 0
in our pockets are placing heavy de-
Placing small cells on existing structures in the right-of-way may make sense economically,
mands on the existing cellular system but cities may have safety and aesthetic concerns.
that was designed more for voice com-
munication than high-speed data.We need significant of cities.The rules are being challenged in court but are
improvements in cellular infrastructure to meet the data currently effective.
1emands that are forecasted for the next several years. A few key limitations:
One solution that has gained national momentum is • Moratoriums of any kind are prohibited.
called small cell. • Aesthetic requirements must be consistent with
Traditional cell towers that are located throughout requirements for other infrastructure and work
the state carry voice and data for lots of users across a with small cell technology.
large footprint with a limited data transfer rate.Small • Rates and fees imposed on wireless providers must
cells have a shorter range and support fewer users,but be nondiscriminatory and based on costs.There
at a significantly higher speed.Small cells are proposed is a"safe harbor"provision that causes some rates
to work in conjunction with traditional cell towers to and fees to be presumed valid.
provide users both data reliability and speed. • Small cell applications must be processed
Unfortunately,range limitations require many small quickly-60 days for attachments to existing poles
cells to cover the same area as one traditional cell tower. and 90 days for new poles.
Deploying so many small cells is not easy. The Arkansas Legislature may soon consider laws
Wireless service providers want to deploy small cells that further define the authority of the local government
on existing poles in the right-of-way.It's fast,predict 7 • related to small cells.The Arkansas Municipal League
able,and avoids costs related to'property acquisition, !- has actively communicated local interests to the telecom-
construction,and maintenance.In many ways,cities munication industry to shape any proposed law in a way
may favor installing small cells on existing poles in the that works best for our communities.Our goal is a legal
right-of-way.It reduces visual clutter and hurries the landscape that allows small cell technology to be de-
process of gaining high-speed data communication for ployed quickly and efficiently in a way that is consistent
cities.But some public concerns like safety,appearance, with local standards.
fairness,efficiency,and cost recovery need to be consid-
ered as well. C.Jason Carter is an attorney with the Carter Law Firm who
i Last year,the Federal Communications Commission serves as general counsel for the Arkansas Municipal Power
adopted two rules that limited the regulatory authority Association.He is the former city attorney for North Little Rock.
,
MARCH 2019 41
PLANNING TO SUCCEED
Small cells, ` � `
.tom .,. ,'_,;,4,-1.,1,,1-'11.,_ Pr 4; ,r f
? 1 47 S . k t
\ Big issues ,,
,.. ,
•
By Jim von Tungeln , y,, �yT _-...L.2,,,-.: '. L : {
� . .. r' w -- l� 1,► � .� V
0 f all the issues that confront t l
municipalities in our state,and ' r 7
across the country,none may ;1� .r. .;,�.
prove to be more challenging ''� - rA : r V' ;'I
than the coming of small cell internet tow- 1 l '�`` t.4'._;.,
r
ers.Larger cities are already dealing with �- � � 'f�Xl �� 1 � � �
them.Smaller communities may expect i 'Fu ''
them soon. ;I t J
What are they,what can cities expect,
and how can cities deal with them? '_ - ! Z'
Small cell towers are wireless com- _ '
munication towers,maybe 50 feet of 0�,�" _maximum height, and designed to service , _ - f
a small or targeted area.They will be at the r =
heart of the highly anticipated 5G network, • ,^ - = iI i
which promises to provide internet service J•,` ;l, `
that is 10 to 100 times faster than what is
available now.The economic development
potential will be immense,so they say. 4► _
In describing small cell towers, - _ . % _� •� t ; r a
inda Poon,in an October 2017 article at dWNW' I
www.citylab.com commented,"They're — -- ' l
essentially low-power transmitters that are sI =_ ; j
smaller in size and range than traditional __�.._-- , .
cell towers.They need to be densely packed - '-'
together so that they operate as a relay _
team around obstacles,handing off signals a` r _ d'
from one station to another.That means �- a� �
thousands would have to be placed on Some small cell towers are more attractive than others.
streetlights,utility poles,and other city
property.San Francisco alone would need about 10,000." larger than a loaf of bread on the top and a fixture the
Therein lies the debate:the sheer number of loca- size of a refrigerator at its base.Photos of existing place-
tions required. ments,however,suggest that this description fails fully to
They can also be quite unattractive,a fact that will describe the actual appearance of a small cell.
create additional debate.Progress can affect the ap- What can municipal leaders do?Unfortunately,
pearance and charm of a city. On the other hand,cities space herein allows only a brief overview of approaches.
strive for state-of-the-art internet service.It promises One of the major problems facing municipalities is that
significant economic development returns for cities the industry doesn't seem to have a clear idea of what
that can achieve it and lagging status for those who they will eventually want.Both the ultimate potential
can't.Both citizens and businesses will want the service. and final goals are still under contemplation.Cities must
Whether they will want the equipment providing it is face,to some degree,a moving target.
another matter. There are a number of possible ways of locating
The appearance of a small cell facility,according to the small cell apparatus.The first priority for both the
experts,usually resembles a pole with a fixture not much industry and for cities would be placement on existing
20 CITY&TOWN
structures.This could be any structure suitable for their own home.Elected officials will be stuck in the
installation and located where it would serve the need. middle of the debate.
Utility poles present a much-discussed target.For this There is also the question of where to place regula-
` eason,cities in our state that operate their own electrical tions.Some cities have proposed stand-alone ordinances
systems face a particularly complicated task in dealing to regulate small cell placement.Others will opt to place
with small cell locations.Most are already working on them within the planning and zoning function.This
the problem.Some have finished. appears to have some benefits.There is a large body of
For complex reasons,the industry avoids co- law affecting planning and zoning.It should provide our
location,creating the need for more nodes.Thus,so attorneys guidance in creating regulations guiding the
called"distributive antenna systems,"or facilities serving placement of small cells.
multiple wireless service providers,will not likely fit into Also,planning commissioners should be accustomed
future plans. to dealing with difficult,complex,and controver-
A second option for location is within public ease- sial issues.
ments.This poses problems for municipalities.How Finally,the issue will require detailed training.
much control can the city exercise over easements not Planning commissioners and planning staff should al-
owned by the city?In some cases this may even include ready be trained to some degree,thus avoiding the initial
easements within the city's own water and sewer systems. costs in introducing individuals to the complex issues
Some cities have approached the small cell issue by involved in the regulation of land uses.
means of a franchise system.This can create a consistent There also exists the possibility that the issue may
flow of revenue through franchise fees,but the effect of be resolved outside the control of local government.
"life-cycle"costs may outweigh the revenue.These are One state has already passed legislation favoring the
costs to the city that would continue for the entire dura- location of small cells due to the economic development
tion of the franchise,escalating costs that can eventually potential.This legislation removes the regulation of small
strain city budgets. cell placement from local zoning authority.
As a last resort,providers may seek easements from One thing is clear:There are some battles looming.
private property owners for placement of small cells. For example,providers seeking multiple approvals of
Again,how much control will a municipality have over locations.Cities fear this due to limited staff capabilities.
pis within its police power? A related issue is the establishment of reasonable ap-
The answer to local control is a complex legal one plication processing fees.Experienced local officials are
and one that evades a simple answer.At the present time, well aware of the gap that exists between what providers
small cell placement seems to rest under the provisions deem reasonable and what a complex review of plans
of the Wireless Communications Act of 1996.With cer- and proposals actually costs a city.
tam limitations,this law has allowed cities some leeway Providers also want applications to be"deemed
in controlling the placement of towers.Such limitations approved"if not acted on within a specific time.This no
include the following: doubt relates back to the so-called"pocket vetoes"used
• A city can't prevent a provider from fulfilling the by a few cities to resist unwanted cell towers.Again,
provisions of federal license, elected officials worry about staffing shortages.
• A city can't use false science to deny a These battles may prove more difficult because of
placement,and the changing technology of small cell usage.For the
• A city can't favor one provider over another. moment,the only call to action for most cities is to start
learning about and preparing for the coming technology.
From the view of a planner working with the act,it
appears that the courts have been kind toward cities that Meanwhile,the Arkansas Municipal League has legal
prove a clear rational basis for exercising control over staff working on this looming issue.This new problem
cell towers.It remains to be seen if this kindness will deserves a reasoned approach and our cities deserve the
remain in place as small cells proliferate. new benefits that small cells can provide.
With the aforementioned economic benefits that
small cell placements promise,those working within the Jim von Tungeln is staff planning consultant
t and available for consultation as a service
economic development function of a city will no doubt 41-, of the Arkansas Municipal League.He is a
support placements.Residents will likely support their member of the American Institute of Certified
placement enthusiastically,except at or anywhere near Planners.Persons having comments or
questions may reach him at(501)944-3649.
- His email is uplan@swbell.net.
SEPTEMBER 2018 21
Memorandum
To: Planning Commission
From: Wally Bailey, Planning Director
Date: 8/21/2019
Re: Small Wireless Facilities
During the recent 92nd General Assembly,the Arkansas Legislature passed Act 999
which is An Act to Establish the Small Wireless Facility Deployment Act. The
purpose of the Act is to establish state wide consistency and fairness with regard to
procedures,rates and fees for new small wireless facilities. The Act has an effective
date of September 1, 2019.
While the Act is specific with many issues there are some issues where Cities can
address items concerning aesthetics, horizontal separation, and historic district
provisions among other items. However, even these items have limitations
prescribed by the Act.
Act 999 gives wireless providers the authority to do several things such as:
• A new or modified pole shall not exceed the greater of:
o Fifty(50') above ground level; or
o Ten percent(10%)taller than the tallest existing pole in the same right
of way as of September 1, 2019 within 300 feet of the new or
modified pole. (The definition of pole does not include a wireless
support structure or an electric transmission structure.)
o A small wireless facility shall not extend more than 10% above the
existing structure (e.g. pole) on which it is located or 50 feet above
ground level,whichever is greater.
0
Each antenna excluding the associated equipment is no more than
three (3) cubic feet in volume. The associated equipment is no more
than twenty-eight(28) cubic feet in volume. For reference, a 3' x 3' x
3' box is 27 cubic feet.
• The definition of right-of-way includes streets, alleys, and public utility
easements.
• Collocation on city-owned poles cannot be denied. For Van Buren this will
include traffic signal poles or any poles we own. (The installation cannot
1
August 21, 2019
create a structurally unsafe situation, or interfere with the operation of a
traffic signal or otherwise create an unsafe situation. However, the wireless
provider has the option of replacing the pole to meet their needs and the
city's needs).
• The ability to replace decorative poles with a similar pole to meet their needs.
• Collocation cannot be restricted based on horizontal separation.
• A wireless provider can submit an unlimited number of permit requests in a
batch. The City has a specific time to respond to the request regardless of the
number of permits submitted in the batch.
Act 999 gives cities the authority to create some regulation such as:
• Small wireless facilities cannot be installed in historic districts without
complying with the requirements of the historic district.
• A city may establish aesthetic regulations but must establish these same
aesthetic requirements on other types of utility and communication
infrastructure.
• A city may establish minimum horizontal separation on new poles and ground
mounted small wireless facilities but eh requirement shall not prevent a
wireless provider from serving any location.
• When a proposed new pole location is in an area zoned for residential use,the
city may propose an alternative location within 100 feet of the proposed
location.
• The City can establish a permitting procedure as prescribed by 23-17-510 of
the Act.
• The City may collect fees and rates as prescribed by 23-17-511 of the Act.
• The City may require insurance and bonds for the wireless provided we
require the same of other right of way uses.
While the installation of small wireless facilities and the implementation of 5G into
our community is a good thing there are some concerns for us to consider, such as:
• How do we address the aesthetics issues?
o Neighborhoods with underground utilities and decorative poles
o Downtown
o Properties on the National Register of Historic Places
• Horizontal separation of new poles
• Permits
• Fees and Rates
We are currently working on a proposed ordinance that will address these issues. I
will provide you with a copy of the draft as soon as I can.
Finally, it is unfortunate we are faced with such a deadline of September 1st. I
realize there is not much time to study this but it is important we get something in
2
August 21, 2019
place by September 1, 2019. I will be asking the Planning Commission for a
recommendation so the Council can review an ordinance with your recommendation
at their August 26th meeting.
I have included several items for your review including a copy of Act 999,the
Arkansas Municipal League power point, news articles and photographs showing
good and bad installations.
Please let me know if you have any questions or require any additional information.
3 '
Stricken language would be deleted from and underlined language would be added to present law.
Act 999 of the Regular Session
1 State of Arkansas As Engrossed: S4/1/19
2 92nd General Assembly A Bill
3 Regular Session,2019 SENATE BILL 602
4
5 By: Senator J.Dismang
6 By: Representatives A.Davis,Love,Lynch
7
8 For An Act To Be Entitled
9 AN ACT TO ESTABLISH THE SMALL WIRELESS FACILITY
10 DEPLOYMENT ACT; AND FOR OTHER PURPOSES.
11
12
13 Subtitle
14 TO ESTABLISH THE SMALL WIRELESS FACILITY
15 DEPLOYMENT ACT.
16
17
18 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
19
20 SECTION 1. Arkansas Code Title 23, Chapter 17, is amended to add an
21 additional subchapter to read as follows:
22 Subchapter 5 — Small Wireless Facility Deployment Act
23
24 23-17-501. Legislative findings and intent.
25 (a) The General Assembly finds that:
26 (1) The deployment of small wireless facilities and other next-
27 generation wireless and broadband network facilities is a matter of federal
28 and statewide concern and interest;
29 (2) Wireless and broadband products and services are a
30 significant and continually growing part of the state economy, and
31 accordingly, encouraging the development of strong and robust wireless and
32 broadband communications networks throughout the state is integral to the
33 state's economic competitiveness;
34 (3) Rapid deployment of small wireless facilities will serve
35 numerous important statewide goals and public policy of:
36 (A) Meeting growing consumer demand for wireless data;
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1 (B) Increasing competitive options for communications
2 services available to the state's residents; and
3 (C) Promoting the ability of the state's citizens to
4 communicate with other citizens and with their state and municipalities, and
5 promoting public safety;
6 (4) Small wireless facilities, including facilities commonly
7 referred to as "small cells" and distributed antenna systems often are
8 deployed most effectively in a public right-of-way;
9 (5) To meet the key objectives of this subchapter and federal
10 law, wireless service providers must have access to public rights-of-way and
11 the ability to attach to infrastructure located in public rights-of-way to
12 increase the density of the wireless service provider's networks and provide
13 next generation wireless services;
14 (6) Rates and fees for the permitting and deployment of small
15 wireless facilities in public rights-of-way and on authority infrastructure,
16 including poles, throughout the state, consistent with federal law, is
17 reasonable and will encourage the deployment of robust next-generation
18 wireless and broadband networks for the benefit of citizens throughout the
19 state;
20 (7) The procedures, rates, and fees in this subchapter are:
21 (A) Consistent with federal law and multiple ordinances
22 adopted by municipalities throughout the state;
23 (B) Fair and reasonable when viewed from the perspective
24 of the state's citizens and the state's interest in having robust. reliable.
25 and technologically advanced wireless and broadband networks; and
26 (C) Reflective of a balancing of the interests of the
27 wireless providers deploying new facilities and the interests of authorities
28 in recovering their costs of managing access to the public rights-of-way and
29 the attachment space provided on authority infrastructure in the public
30 rights-of-way;
31 (8) Municipalities are the custodians of public rights-of-way,
32 and public property within the public rights-of-way, within the limits of
33 their respective jurisdictions;
34 (9) Municipalities may adopt ordinances and regulations
35 governing the use, construction, development, and appearance of public and
36 private property within their respective jurisdictions; and
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1 (10) Municipalities recognize the economic and social value of
2 data connectivity and desire to encourage wireless infrastructure investment
3 by providing a fair and predictable process for the deployment of small
4 wireless facilities within the public rights-of-way in a manner that is:
5 (A) Safe;
6 (B) Compatible with and complementary to the provision of
7 services by the municipality and others lawfully using the rights-of-way; and
8 (C) Consistent with the aesthetic standards of the
9 municipality.
10 (b) It is the intent of the General Assembly that the operation of
11 small wireless facilities are matters of statewide concern and interest.
12
13 23-17-502. Title.
14 This subchapter shall be known and may be cited as the "Small Wireless
15 Facility Deployment Act".
16
17 23-17-503. Definitions.
18 As used in this subchapter:
19 (1) "Affiliate" means an entity that directly or indirectly
20 controls, is controlled by, or is under common control with another party;
21 (2) "Antenna" means communications equipment that transmits or
22 receives an electromagnetic radio frequency signal in the provision of
23 wireless service;
24 (3) (A) "Antenna equipment" means equipment, switches. wiring,
25 cabling, power sources, shelters, or cabinets associated with an antenna,
26 located at the same fixed location as the antenna, and when collocated on a
27 structure is mounted or installed at the same time as the antenna.
28 (B) "Antenna equipment" does not include:
29 (i) The structure or improvements on, under, or
30 within which the equipment is collocated; or
31 (ii) Wireline backhaul facilities, coaxial or fiber
32 optic cable that is between structures, or coaxial or fiber optic cable that
33 is otherwise not immediately adjacent to or directly associated with an
34 antenna;
35 (4) "Antenna facility" means an antenna and associated antenna
36 equipment;
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1 (5) "Applicable codes" means uniform electrical reliability,
2 building, fire, electrical, plumbing, or mechanical codes, as adopted by a
3 recognized national code organization, or local amendments to the codes that
4 are of general application, or local ordinances that are of general
5 application, that address public health, safety, or welfare and are
6 consistent with this subchapter;
7 (6) "Applicant" means a person who submits an application as or
8 on behalf of a wireless provider;
9 (7) "Application" means a request submitted by an applicant to
10 an authority for a permit:
11 (A) To collocate small wireless facilities; or
12 (B) To install, modify, or replace a pole on which a small
13 wireless facility is or will be collocated, in the right-of-way;
14 (8) (A) "Authority" means a county, a municipality, a
15 subdivision, or instrumentality thereof, including without limitation:
16 (i) A public utility district;
17 (ii) An irrigation district; or
18 (iii) A municipal electric utility.
19 (B) "Authority" does not include a state court having
20 jurisdiction over an authority;
21 (9) "Authority pole" means a pole owned, managed, or operated by
22 or on behalf of an authority;
23 (10) (A) "Collocate" or "collocate on" means the placement,
24 mounting, replacement, or modification of a small wireless facility on, or of
25 ground-mounted antenna equipment adjacent to, a structure.
26 (B) "Collocate" or "collocate on" includes collocated
27 ground-mounted antenna equipment as a small wireless facility if it meets the
28 requirements of § 23-17-503(25) (A) (iii)-(vi) and the associated facilities on
29 the adjacent structure meet the requirements of § 23-17-503(25) (i)-(vi) ;
30 (11) "Communications service" means:
31 (A) A cable service, as defined in 47 U.S.C. § 522(6) , as
32 it existed on January 1, 2019;
33 (B) A telecommunications service, as defined in 47 U.S.C.
34 § 153(53) , as it existed on January 1, 2019;
35 (C) An information service, as defined in 47 U.S.C. §
36 153(24) , as it existed on January 1, 2019; or
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1 (D) Wireless service;
2 (12) "Communications service provider" means:
3 (A) A cable operator, as defined in 47 U.S.C. § 522(5) , as
4 it existed on January 1, 2019;
5 (B) A provider of information service, as defined in 47
6 U.S.C. § 153(24) , as it existed on January 1, 2019;
7 (C) A telecommunications carrier, as defined in 47 U.S.C.
8 § 153(51) ; or
9 (D) A wireless provider;
10 (13) "Control" means the direct or indirect:
11 (A) Ownership of at least fifty percent (50%) of the
12 equity;
13 (B) Ability to direct at least fifty percent (50%) of
14 voting power; or
15 (C) Ability otherwise to direct management policies;
16 (14) "Controlled-access facility" means a highway or street
17 described in § 27-68-102;
18 (15) "Decorative pole" means an authority pole that is
19 specifically designed and placed for aesthetic purposes and on which limited
20 appurtenances or attachments, such as a small wireless facility, lighting,
21 specially designed informational or directional signage, or temporary holiday
22 or special event attachments, have been placed or are permitted to be placed
23 according to nondiscriminatory authority rules or codes;
24 (16) "Facility" means an antenna facility or a structure that is
25 used for the provision of wireless service;
26 (17) "Fee" means a one-time, nonrecurring charge;
27 (18) "Historic district" means a group of buildings, properties,
28 or sites that are either:
29 (A) Listed in the National Register of Historic Places or
30 formally determined eligible for listing by the Keeper of the National
31 Register of Historic Places, according to Section VI.D.1.a.i-v of the
32 Nationwide Programmatic Agreement Regarding the Section 106 National Historic
33 Preservation Act Review Process, 47 C.F.R. Part 1, Appendix C, as it existed
34 on January 1, 2019;
35 (B) A historic district designated under the Historic
36 Districts Act, § 14-172-201 et seq. ; or
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1 (C) A historic district otherwise designated under a local
2 ordinance as of January 1, 2019;
3 (19) "Micro-wireless facility" means a wireless facility that:
4 (A) Is not larger in dimension than twenty-four inches
5 (24") in length, fifteen inches (15") in width, and twelve inches (12") in
6 height;
7 (B) Has an exterior antenna that is no longer than eleven
8 inches (11"); and
9 (C) Is not placed any farther than ten feet (10') down the
10 span as measured from the side of the pole;
11 (20) "Permit" means an authorization, written or otherwise,
12 required by an authority to perform an action or initiate, continue, or
13 complete a project for the deployment of wireless service at a specified
14 location;
15 (21) "Person" means an individual, corporation, limited
16 liability company, partnership, association, trust, authority, or other
17 entity or organization;
18 (22)(A) "Pole" means a pole in a right-of-way that may be used
19 by or for wireline communications, electric distribution, lighting, traffic
20 control, signage, or a similar function, or for collocation of small wireless
21 facilities.
22 (B) "Pole" does not include a wireless support structure
23 or an electric transmission structure;
24 (23) "Rate" means a recurring charge;
25 (24) (A) "Right-of-way" means an area on, below, or above a
26 public utility easement, roadway, highway, street, sidewalk, alley, or
27 similar property.
28 (B) "Right-of-way" does not include a federal interstate
29 highway, controlled-access facility, or a public utility easement that does
30 not authorize the deployment sought by the wireless provider;
31 (25)(A) "Small wireless facility" means a wireless facility that
32 meets all of the following specifications:
33 (i) The facility:
34 (a) Is mounted on a structure fifty feet (50' )
35 or less in height, including the antennas;
36 (b) Is mounted on a structure no more than ten
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1 percent (10%) taller than other adjacent structures; or
2 (c) Does not extend an existing structure on
3 which it is located to a height of more than fifty feet (50') or by more than
4 ten percent (10%) , whichever is greater;
5 (ii) Each antenna associated with the deployment,
6 excluding associated antenna equipment, is no more than three cubic feet (3
7 cu. ft.) in volume;
8 (iii) All other wireless equipment associated with
9 the structure, including the wireless equipment associated with the antenna
10 and any preexisting associated equipment on the structure, is no more than
11 twenty-eight cubic feet (28 cu. ft.) in volume;
12 (iv) The facility does not require antenna structure
13 registration under 47 C.F.R. Part 17, as it existed on January 1, 2019;
14 (v) The facility is not located on tribal lands, as
15 defined in 36 C.F.R. 800.16(x), as it existed on January 1, 2019; and
16 (vi) The facility does not result in human exposure
17 to radio frequency in excess of the applicable safety standards specified in
18 47 C.F.R. 1.1307(b) , as it existed on January 1, 2019.
19 (B) "Small wireless facility" does not include:
20 (i) The structure or improvements on, under, or
21 within which the equipment is located or collocated or to which the equipment
22 is attached; and
23 (ii) Any wireline backhaul facility or coaxial or
24 fiber optic cable that is between wireless support structures or utility
25 poles, or that is otherwise not immediately adjacent to or directly
26 associated with a particular antenna;
27 (26) "Structure" means a pole or wireless support structure,
28 whether or not it has an existing antenna facility, that is used or to be
29 used for the provision of wireless service;
30 (27) "Technically feasible" means that by virtue of engineering
31 or spectrum usage the proposed placement for a small wireless facility, or
32 its design, concealment measures, or site location, can be implemented
33 without a material reduction in the functionality of the small wireless
34 facility;
35 (28) "Wireless infrastructure provider" means a person or an
36 affiliate thereof, including a person authorized to provide communications
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1 service in the state, that builds or installs facilities for the provision of
2 wireless service, but that is not a wireless service provider;
3 (29) "Wireless provider" means a wireless infrastructure
4 provider or a wireless service provider;
5 (30) "Wireless service" means any service using licensed or
6 unlicensed spectrum, including the use of Wi-Fi, whether at a fixed location
7 or mobile, provided to the public;
8 (31) "Wireless service provider" means a person who provides
9 wireless service;
10 (32)(A) "Wireless support structure" means a structure,
11 including:
12 (i) A monopole
13 (ii) A tower, either guyed or self-supporting;
14 (iii) A billboard;
15 (iv) A building; or
16 (v) Any other existing or proposed structure
17 designed to support or that is capable of supporting small wireless
18 facilities, other than a structure designed solely for the collocation of
19 small wireless facilities.
20 (B) "Wireless support structure" does not include a pole;
21 and
22 (33) "Wireline backhaul facility" means an aboveground or
23 underground facility used to transport communications services from a
24 wireless facility to a network.
25
26 23-17-504. Exclusive arrangements.
27 An authority shall not enter into an exclusive arrangement with a
28 person for use of the right-of-way for the collocation of small wireless
29 facilities or the installation, operation, marketing, modification,
30 maintenance, or replacement of poles for the collocation.
31
32 23-17-505. Use of rights-of-way by wireless provider.
33 (a) Subject to this subchapter, a wireless provider shall have the
34 right, as a permitted use not subject to zoning review or approval, to
35 collocate, maintain, modify, operate, and replace small wireless facilities
36 and to install, maintain, modify, and replace poles it owns or manages or,
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1 with the permission of the owner, a third party's pole, associated with a
2 small wireless facility, along, across, upon, and under the right-of-way.
3 (b) Small wireless facilities and associated poles shall be installed
4 and maintained as to not obstruct or hinder the usual travel or public safety
5 of the right-of-way or the usage of the right-of-way by utilities.
6
7 23-17-506. Requirements — Height limits — Standards.
8 (a) Each new or modified pole installed in the right-of-way for the
9 purpose of collocation of small wireless facilities shall not exceed the
10 greater of:
11 (1) Fifty feet (50') in height above ground level; or
12 (2) Ten percent (10%) taller than the tallest existing pole in
13 place in the same right-of-way as September 1, 2019, within three hundred
14 feet (300') of the new or modified pole.
15 (b) A new small wireless facility in the right-of-way shall not extend
16 more than ten percent (10%) above the existing structure on which it is
17 located or fifty feet (50' ) above ground level, whichever is greater.
18 (c) A wireless provider shall have the right to collocate a wireless
19 facility and install, maintain, modify, and replace a pole that exceeds the
20 height limits required under subsection (a) of this section along, across,
21 upon, and under the right-of-way, subject to this section and any applicable
22 zoning regulations.
23 (d) A wireless provider shall not install a small wireless facility or
24 pole in a historic district without complying with the requirements of
25 general application for structures within the historic district.
26 (e) A wireless provider may replace decorative poles when necessary to
27 deploy a small wireless facility so long as the replacement reasonably
28 conforms to the design of the original decorative pole.
29
30 23-17-507. Damage and repair — Replacements — Abandonment — Removal.
31 (a) (1) A wireless provider shall repair all damage to the right-of-way
32 directly caused by the activities of the wireless provider in the right-of-
33 way and return the right-of-way to its functional and aesthetic equivalence
34 before the damage under the competitively neutral, reasonable requirements
35 and specifications of the authority.
36 (2) If the wireless provider fails to make the repairs required
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1 by the authority within a reasonable time after written notice, the authority
2 may make those repairs and charge the applicable party the actual and
3 reasonable documented cost, including overhead, of the repairs.
4 (b) (1) A wireless provider is not be required to replace or upgrade an
5 existing pole except for reasons of structural necessity or compliance with
6 applicable codes.
7 (2) A wireless provider may, with the permission of the pole
8 owner, replace or modify existing poles, but any such replacement or
9 modification shall substantially conform to the design aesthetics of the pole
10 being modified or replaced.
11 (c) (1) A wireless provider shall notify the authority at least thirty
12 (30) days before the wireless provider's abandonment of a small wireless
13 facility.
14 (2) If the wireless provider fails to remove the abandoned small
15 wireless facility within ninety (90) days after the notice, the authority may
16 undertake the removal and recover the actual and reasonable documented cost,
17 including overhead, of the removal from the wireless provider, or its
18 successors or assigns.
19 (d) (1) An authority may order the removal of a small wireless facility
20 or associated pole in the right-of-way that violates § 23-17-505, § 23-17-
21 506, or applicable codes.
22 (2) The authority shall provide written notice of the violation
23 to the owner of the small wireless facility at least thirty (30) days before
24 removal to afford the owner the opportunity to conduct repairs or removal, or
25 otherwise remedy the violation.
26 (3) (A) If the authority determines that a wireless provider's
27 activity in a right-of-way under this subchapter creates an imminent risk to
28 public safety, the authority may provide written notice to the wireless
29 provider and demand that the wireless provider address the risk.
30 (B) If the wireless provider fails to reasonably address
31 the risk within twenty-four hours of the written notice, the authority may
32 take or cause to be taken action to reasonably address the risk and charge
33 the wireless provider the reasonable documented cost of the actions.
34 (e) (1) A wireless provider shall not collocate a small wireless
35 facility or install, modify, or replace a pole in the right-of-way that:
36 (A) Materially interferes with the safe operation of
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1 traffic control equipment;
2 (B) Materially interferes with sight lines or clear zones
3 for transportation or pedestrians;
4 (C) Materially interferes with compliance with the
5 Americans with Disabilities Act of 1990, Pub. L. No. 101-336, or similar
6 federal or state standards regarding pedestrian access or movement; or
7 (D) Fails to comply with applicable codes.
8 (2) (A) For an authority that requires permits under § 23-17-510,
9 compliance with these criteria will be determined during the permitting
10 process.
11 (B) An authority that does not require a permit under §
12 23-17-510 shall provide at least thirty (30) days' notice of and a reasonable
13 opportunity to cure a violation of subdivision (e) (1) of this section.
14
15 23-17-508. Aesthetic standards.
16 (a) An authority that has adopted an ordinance under § 14-17-209 or §
17 14-56-416 may adopt and enforce standards that govern the aesthetic
18 appearance of small wireless facilities and associated poles to ensure
19 coordinated, adjusted, and harmonious development, as provided in this
20 section.
21 (b) Aesthetic standards adopted by an authority for small wireless
22 facilities and associated poles shall meet the following requirements:
23 (1) The aesthetic standards shall be:
24 (A) Reasonable, in that they are technically feasible and
25 reasonably directed to avoiding or remedying unsightly or out-of-character
26 deployments;
27 (B) No more burdensome than those applied to other types
28 of utility and communications infrastructure deployments; and
29 (C) Objective and published at least ninety (90) days in
30 advance of the filing of an application under this subchapter;
31 (2) Any design or concealment measures are not considered a part
32 of the small wireless facility for purposes of the size parameters in the
33 definition of "small wireless facility"; and
34 (3) An authority may deny an application for not complying with
35 aesthetic requirements only if the authority finds that the denial does not
36 prohibit or have the effect of prohibiting the provision of wireless service.
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1 (c) Anauthority may prohibit wireless providers from installing poles
2 in the right-of-way in areas where the authority has required that all
3 communications and electric lines be placed underground, if:
4 (1) The authority has required all electric and communications
5 lines to be placed underground by a date certain that is three (3) months
6 before the submission of the application;
7 (2) Any poles the authority allows to remain shall be made
8 available to wireless providers for the collocation of small wireless
9 facilities, and may be replaced by a wireless provider to accommodate the
10 collocation of small wireless facilities, in compliance with this subchapter;
11 (3) A wireless provider may install a new pole in the designated
12 area that otherwise complies with this section when it is not able to provide
13 wireless service by collocating on a remaining structure; and
14 (4) (A) For small wireless facilities installed before an
15 authority adopts requirements that communications and electric lines be
16 placed underground, an authority adopting the requirements shall:
17 (i) Permit a wireless provider to maintain the small
18 wireless facilities in a place on any pole not required to be removed,
19 subiect to any applicable pole attachment agreement with the pole owner; or
20 (ii) Permit the wireless provider to replace an
21 existing pole within fifty feet (50') of the prior location.
22 (B) An authority may require wireless providers to comply
23 with reasonable and nondiscriminatory horizontal spacing requirements of
24 general application for new poles and ground-mounted small wireless
25 facilities, but the requirements shall not prevent a wireless provider from
26 serving any location.
27 (d) (1) When a wireless provider applies to install a new pole in the
28 right-of-way in an area zoned for residential use, the authority may propose
29 an alternative location in the right-of-way within one hundred feet (100') of
30 the location stated in the application, and the wireless provider shall use
31 the authority's proposed alternative location unless the location imposes
32 technical limits or significant additional costs.
33 (2) The wireless provider shall certify that it has made the
34 determination in good faith, based on the assessment of a licensed engineer,
35 and the wireless provider shall provide a written summary of the basis for
36 the determination.
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1 (e) Aesthetic standards shall be effective after approval by
2 ordinance, resolution, or rule of the governing body of the authority.
3 (f) (1) The board of zoning adjustment of an authority may:
4 (A) Hear appeals of the decision of the administrative
5 officers in respect to the enforcement and application of the aesthetic
6 standards, and may affirm or reverse, in whole or in part, the decision of
7 the administrative officer; and
8 (B) Hear requests for variances from the literal
9 provisions of the aesthetic standards and grant the variances only when it is
10 necessary to avoid the prohibition of wireless service or otherwise comply
11 with the law.
12 (2) Decisions of the board in respect to subdivision (f) (1) of
13 this section shall be subject to appeal only to a court of record having
14 jurisdiction.
15
16 23-17-509. Collocation on authority poles.
17 (a) This section applies to activities of a wireless provider
18 collocating small wireless facilities on authority poles in the authority's
19 right-of-way or in a right-of-way controlled by the Arkansas Department of
20 Transportation located within an authority.
21 (b) (1) A person owning, managing, or controlling authority poles in
22 the right-of-way shall not enter into an exclusive arrangement with any
23 person for the right to attach to the poles.
24 (2) A person who purchases or otherwise acquires an authority
25 pole is subject to the requirements of this section.
26 (c) An authority shall allow the collocation of small wireless
27 facilities on authority poles on nondiscriminatory terms and conditions using
28 the process in § 23-17-510.
29 (d) The rate to collocate on authority poles is provided in § 23-17-
30 511.
31 (e) (1) (A) As part of an application to collocate a small wireless
32 facility on an authority pole, the wireless provider shall submit make-ready
33 design drawings and work descriptions that enable the pole to support the
34 requested collocation by the wireless provider, including pole replacement if
35 necessary.
36 (B) An authority may amend the make-ready design drawings
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1 and work to comply with applicable codes before the issuance of a permit to
2 the extent reasonably necessary.
3 (2) The rates, fees, and terms and conditions for the make-ready
4 work to collocate on an authority pole shall be nondiscriminatory,
5 competitively neutral, and commercially reasonable and shall comply with this
6 subchapter.
7 (3) The authority shall not require more make-ready work than
8 required to meet applicable codes or industry standards nor may the fees for
9 make-ready work include costs related to preexisting or prior damage or
10 noncompliance.
11 (4) (A) An authority may require replacement of an authority pole
12 only if the collocation would make the authority pole structurally unsound.
13 (B) The authority may require that the replaced authority
14 pole have the same functionality as the pole being replaced.
15 (C) If the authority pole is replaced, the authority shall
16 take ownership of the new pole and operate authority fixtures on the pole.
17 (5) (A) Make-ready fees charged by an authority may include the
18 amount the authority pays a professional engineer registered in Arkansas to
19 review the wireless provider's make-ready work plans.
20 (B) Fees for make-ready work shall not include any revenue
21 or contingency-based consultant's fees or expenses of any kind.
22 (6) Within sixty (60) days of the receipt of the application
23 filed to collocate on an authority pole, the authority shall elect to:
24 (A) Perform the make-ready work necessary to enable the
25 pole to support the requested collocation by a wireless provider and provide
26 a good-faith estimate for the work, including pole replacement, if necessary;
27 or
28 (B) Authorize the wireless provider to perform the make-
29 ready work.
30 (7) (A) The authority shall complete make-ready work it elects to
31 perform, including any pole replacement, within sixty (60) days of written
32 acceptance of the good faith estimate of the applicant.
33 (B) If the authority electing to perform the make-ready
34 work has not completed the work within sixty (60) days after the written
35 acceptance and deposit of the good faith estimate by the applicant, the
36 applicant may demand a return of any deposited funds and proceed with the
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1 make-ready work as described in subdivision (e) (1) (A) of this section, using
2 authorized, qualified contractors approved by the authority with the
3 authorization not to be unreasonably withheld, conditioned, or delayed.
4 (f) (1) An authority may reserve space on an authority pole for future
5 public safety or transportation uses in a documented and approved plan in
6 place at the time an application is filed.
7 (2) A reservation of space shall not preclude placement of a
8 pole or collocation of a small wireless facility.
9 (3) If replacement of the authority's pole is necessary to
10 accommodate the collocation of the small wireless facility and the future
11 use, the wireless provider shall pay for the replacement of the authority
12 pole and the replaced pole shall accommodate future use.
13
14 23-17-510. Permits.
15 (a) (1) This section applies to all permits required for the
16 collocation of small wireless facilities and to the permitting of the
17 installation, modification, and replacement of associated poles by a wireless
18 provider that:
19 (A) Is in an authority's right-of-way; or
20 (B) Is in a right-of-way controlled by the Arkansas Department
21 of Transportation located within the jurisdiction of an authority if the
22 application is for collocation on an authority pole or if the authority has
23 adopted aesthetic standards under § 23-17-508.
24 (2) A permit issued under subdivision (a) (1)(B) of this section
25 remains subject to the rules of the Arkansas Department of Transportation.
26 (b) Except as provided in this subchapter, an authority shall not
27 prohibit, regulate, or charge for the collocation of small wireless
28 facilities or the installation, modification, or replacement of associated
29 poles that may be permitted in this section.
30 (c) An authority may require an applicant to obtain one (1) or more
31 permits to collocate small wireless facilities or to install a new, modified,
32 or replacement pole associated with a small wireless facility as provided in
33 § 23-17-505 to § 23-17-507, provided the permits are of general applicability
34 and do not apply exclusively to small wireless facilities.
35 (d) An authority shall receive and process applications subject to the
36 following requirements:
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1 (1) An authority shall not directly or indirectly require an
2 applicant to perform services or provide goods unrelated to the permit, such
3 as in-kind contributions to the authority, including without limitation
4 reserving fiber, conduit, or space on the applicant's pole for the authority;
5 (2) An authority may require an applicant to submit the
6 information and fees stated in subdivision (d) (2) (A)-(J) of this section for
7 a permit for a deployment in the authority's right-of-way or on an authority
8 pole in the right-of-way controlled by the Arkansas Department of
9 Transportation located within an authority and may only require an applicant
10 to submit the information and fees stated in subdivision (d) (2) (A)-(C) and
11 (J) of this section for deployments of or on poles that are not owned by the
12 authority located in the right-of-way controlled by the Arkansas Department
13 of Transportation located within an authority:
14 (A) Identification of the applicant;
15 (B) A map or description of the location of the
16 facilities;
17 (C) An illustration that shows the final appearance of the
18 facilities;
19 (D) Engineering drawings of the facilities to be
20 installed, including required make-ready work to be performed;
21 (E) Electrical load information;
22 (F) Pole loading calculations;
23 (G) Worker safety information related to small wireless
24 facility installation;
25 (H) Evidence of bonding, if required;
26 (I) Evidence of insurance, if required; and
27 (J) Required application fees;
28 (3) An authority shall not require:
29 (A) The collocation of small wireless facilities on any
30 specific pole or category of poles or require multiple antenna facilities on
31 a single pole;
32 (B) The use of specific pole types or configurations when
33 installing new or replacement poles; or
34 (C) The underground placements of small wireless
35 facilities that are, or are designated in an application, to be pole-mounted
36 or ground-mounted;
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1 (4) An authority shall not limit the collocation of small
2 wireless facilities by minimum horizontal separation distance requirements
3 from existing small wireless facilities, poles, or wireless support
4 structures;
5 (5) The applicant shall attest that the small wireless
6 facilities will be operational for use by a wireless service provider within
7 one (1) year of after the permit issuance date, unless the authority and the
8 applicant agree to extend this period or delay is caused by lack of
9 commercial power, communications, transport facilities to the site, or any
10 other factors outside of the applicant's control;
11 (6) (A) Within ten (10) days of receiving an application, an
12 authority shall determine and notify the applicant in writing whether the
13 application is complete.
14 (B) If an application is incomplete, the authority shall
15 specifically identify the missing information in writing.
16 (C) The processing deadline in subdivision (d) (7) of this
17 section shall restart at zero (0) on the date the applicant provides the
18 missing information identified under subdivision (b) (6) (B) to complete the
19 application;
20 (7) (A) Applications shall be processed on a nondiscriminatory
21 basis within:
22 (i) Sixty (60) days of receipt of an application for
23 the collocation of a small wireless facility; and
24 (ii) Ninety (90) days for an application to install,
25 modify, or replace a pole on which a small wireless facility is or will be
26 collocated.
27 (B) The processing deadline may be tolled by agreement of
28 the applicant and the authority.
29 (C) If an authority fails to act on a complete application
30 within the applicable deadline, the application shall be deemed to be
31 approved ten (10) days after written notice is provided by the applicant to
32 the authority that the time period for acting on the application has lapsed;
33 (8) An authority may deny a proposed collocation of a small
34 wireless facility or installation, modification, or replacement of a pole in
35 its right-of-way that meets the requirements in § 23-17-506(a)-(c) only if
36 authorized under subdivisions (d) (9) or (d) (10) or the proposed deployment:
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1 (A) Materially interferes with the safe operation of
2 traffic control equipment;
3 (B) Materially interferes with sight lines or clear zones
4 for transportation or pedestrians;
5 (C) Materially interferes with compliance with the
6 Americans with Disabilities Act of 1990, Pub. L. No. 101-336, or similar
7 federal or state standards regarding pedestrian access or movement;
8 (D) Fails to comply with applicable codes; or
9 (E) Fails to comply with § 23-17-506(d) and (e) and § 23-
10 17-508;
11 (9) An authority may deny a proposed collocation of a small
12 wireless facility on an authority pole in a right-of-way controlled by the
13 Arkansas Department of Transportation located within the authority that meets
14 the requirements in § 23-17-506 only if the proposed collocation meets the
15 criteria in § 23-17-510(d) (8) (A) or (D) or fails to comply with aesthetic
16 standards adopted in an ordinance under § 23-17-508;
17 (10) An authority may deny a proposed collocation of a small
18 wireless facility or installation, modification, or replacement of a pole in
19 a right-of-way controlled by the Arkansas Department of Transportation
20 located within the authority that meets the requirements in § 23-17-506 only
21 if the proposed deployment fails to comply with aesthetic standards adopted
22 in an ordinance under § 23-17-508;
23 (11) (A) The authority shall document the basis for a denial,
24 including the specific code, rule, or statutory authority on which the denial
25 is based, and send the documentation to the applicant on or before the day
26 the authority denies an application.
27 (B) The applicant may cure the deficiencies identified by
28 the authority and resubmit the application within thirty (30) days of the
29 denial without paying an additional application fee.
30 (C) The authority shall approve or deny the revised
31 application within thirty (30) days of resubmission and limit its review to
32 the deficiencies cited in the denial;
33 (12) (A) (i) An applicant seeking to collocate small wireless
34 facilities within the jurisdiction of a single authority shall be allowed at
35 the applicant's discretion to file a batched application for small wireless
36 facilities and associated poles and receive a single permit for the
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1 collocation of multiple small wireless facilities and the placement of
2 associated poles.
3 (ii) However, the denial of one (1) or more small
4 wireless facilities in a batched application shall not delay processing of
5 any other small wireless facilities or poles in the same consolidated
6 application.
7 (B) Batched applications shall be collectively processed
8 according to the procedures in this section.
9 (C) A consolidated application that includes new pole
10 deployments shall be subject to a ninety-day timeframe for approval;
11 (13) (A) Installation or collocation for which a permit is
12 granted under this section shall be completed within one (1) year after the
13 permit issuance date unless the authority and the applicant agree to extend
14 this period, or a delay is caused by circumstances beyond the applicant's
15 control.
16 (B) Approval of an application authorizes the applicant to
17 undertake the installation or collocation;
18 (14) Subject to applicable relocation requirements and the
19 applicant's right to terminate at any time, the applicant shall operate and
20 maintain the small wireless facilities and any associated poles covered by
21 the permit for a period of not less than ten (10) years, which shall be
22 renewed for equivalent durations so long as the small wireless facilities
23 comply with the criteria stated in subdivision (d) (8) of this section; and
24 (15) An authority shall not institute, either expressly or de
25 facto, a moratorium on:
26 (A) Filing, receiving, or processing applications; or
27 (B) Issuing permits or other approvals, if any, for the
28 collocation of small wireless facilities or the installation, modification,
29 or replacement of associated poles.
30 (e) (1) An authority shall not require an application for:
31 (A) Routine maintenance;
32 (B) The replacement of small wireless facilities with
33 small wireless facilities that are substantially similar or the same size or
34 smaller; or
35 (C) The installation, placement, maintenance, operation,
36 or replacement of a micro-wireless facility that is suspended on cables that
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1 are strung between existing poles and that complies with the applicable
2 codes.
3 (2) However, an authority may require a permit for work that
4 requires excavation or closure of sidewalks or vehicular lanes within the
5 right-of-way for the activities.
6 (3) A permit shall be issued to the applicant on a
7 nondiscriminatory basis upon terms and conditions applied to any other
8 person's activities in the right-of-way that requires excavation, closing of
9 sidewalks, or vehicular lanes.
10
11 23-17-511. Fees and rates.
12 (a) This section shall govern an authority's rates and fees for use of
13 authority poles and the placement of a small wireless facility or associated
14 poles.
15 (b) An authority shall not require a wireless provider to pay any
16 rates, fees, or compensation to the authority or other person other than what
17 is expressly authorized by this subchapter for the right to use or occupy a
18 right-of-way, for collocation of small wireless facilities on or in
19 structures in the right-of-way, or for the installation, maintenance,
20 modification, and replacement of associated poles in the right-of-way.
21 (c) Application fees for a permit shall be nondiscriminatory and shall
22 not collectively exceed the following:
23 (1) One hundred dollars ($100) for each small wireless facility;
24 or
25 (2) Two hundred fifty dollars ($250) for the installation,
26 modification, or replacement of a pole together with the collocation of an
27 associated small wireless facility in the right-of-way.
28 (d) (1) Except as described in § 23-17-510(e) , a wireless provider
29 shall pay an authority compensation for use of the right-of-way, an annual
30 rate of up to thirty dollars ($30.00) per small wireless facility.
31 (2) A wireless provider shall pay an authority compensation for
32 collocation of small wireless facilities on authority poles an annual rate of
33 up to two hundred forty dollars ($240) for each authority pole.
34 (e) A wireless provider is not required to pay an authority
35 compensation for micro-wireless facilities that are suspended on cables
36 strung between existing utility poles in the right-of-way as long as the
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1 wireless provider compensates the authority through other licenses or
2 franchises held directly or through one (1) of the wireless provider's
3 affiliates for the placement of the suspension cables in the right-of-way.
4 (f) The rates under this section, together with a one-time application
5 fee, shall be the total compensation that the wireless provider is required
6 to pay the authority for the deployment of small wireless facilities in the
7 right-of-way and any associated poles.
8
9 23-17-512. Local authority.
10 (a) (1) Subject to this subchapter and applicable federal law, an
11 authority may continue to exercise zoning, land use, planning, and permitting
12 authority within its territorial boundaries with respect to wireless support
13 structures, including the enforcement of applicable codes.
14 (2) An authority shall not have or exercise any jurisdiction or
15 authority over the design, engineering, construction, installation, or
16 operation of a small wireless facility located in an interior structure or
17 upon the site of a campus, stadium, or athletic facility not owned or
18 controlled by the authority, other than to require compliance with applicable
19 codes.
20 (b) This subchapter does not authorize the state or any political
21 subdivision, including an authority, to require small wireless facility
22 deployment or to regulate wireless service.
23
24 23-17-513. Arkansas Public Service Commission — Jurisdiction over pole
25 attachments.
26 (a) This subchapter does not limit, abrogate, or supersede the
27 jurisdiction of the Arkansas Public Service Commission, or any rule or order
28 of the commission concerning pole attachments under § 23-4-1001 et seq. , or
29 any agreement of a public utility pole owner and attacher related to the
30 rates, terms, and conditions for a pole attachment.
31 (b) This subchapter does not authorize:
32 (1) Any attachment or installation to or on an electric
33 cooperative-owned pole;
34 (2) Any attachment or installation within a nonpublic right-of-
35 way acquired by an electric cooperative; or
36 (3) Use of an electric cooperative-owned line, duct, conduit,
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1 similar structure, or equipment of any type.
2 (c) This subchapter does not authorize:
3 (1) Any attachment or installation to or on an investor-owned
4 electric utility-owned pole;
5 (2) Any attachment or installation within a nonpublic right-of-
6 way acquired by an investor-owned electric public utility; or
7 (3) Use of an investor-owned electric public utility owned line,
8 duct, conduit, similar structure, or equipment of any type.
9
10 23-17-514. Implementation.
11 (a) (1) An authority may adopt an ordinance that makes available to
12 wireless providers rates, fees, and other terms that comply with this
13 subchapter.
14 (2) Subiect to the other provisions of this section, in the
15 absence of an ordinance or agreement that substantially implements this
16 subchapter and until such an ordinance is adopted or agreement is reached, if
17 at all, a wireless provider may collocate small wireless facilities and
18 install associated poles under the requirements of this subchapter.
19 (3) An authority shall not require a wireless provider to enter
20 into an agreement to implement this subchapter, but such agreements are
21 permissible if voluntary and nondiscriminatory.
22 (b) Ordinances and agreements implementing this subchapter are public
23 or private arrangements and are matters of legitimate and significant
24 statewide concern.
25 (c)(1) A provision of an agreement or ordinance with an effective date
26 before September 1, 2019, that does not fully comply with this subchapter
27 shall apply only to small wireless facilities and associated poles that were
28 operational before September 1, 2019, and shall be deemed invalid and
29 unenforceable beginning on the one hundred eighty-first day after September
30 1, 2019.
31 (2) To the extent an agreement or ordinance, or part thereof, is
32 invalid under subdivision (c) (1) of this section, small wireless facilities
33 and associated poles that became operational before September 1, 2019, under
34 the agreement or ordinance, may remain installed and be operated under the
35 requirements of this subchapter.
36 (d) (1) An agreement or ordinance with an effective date of September
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1 1, 2019, or later that applies to small wireless facilities and associated
2 poles is invalid and unenforceable unless it fully complies with this
3 subchapter.
4 (2) In the absence of an ordinance or agreement that complies
5 with this subchapter, a wireless provider may install and operate small
6 wireless facilities and associated poles in the right-of-way under the
7 requirements of this subchapter.
8
9 23-17-515. Dispute resolution.
10 (a) A court of competent jurisdiction shall have jurisdiction to
11 determine disputes arising under this subchapter.
12 (b) Pending resolution of a dispute concerning rates for collocation
13 of small wireless facilities on authority poles in the right-of-way, the
14 authority owning or controlling the structure shall allow the collocating
15 person to collocate at annual rates of no more than:
16 (1) Thirty dollars ($30.00) per small wireless facility for use
17 of the right-of-way; and
18 (2) An annual rate of up to two hundred forty dollars ($240) for
19 each authority pole used for the collocation of small wireless facilities,
20 with rates to be trued up upon final resolution of the dispute.
21 (c) Any disputes, wherever filed, shall be pursued according to
22 accelerated docket or complaint procedures, if available.
23
24 23-17-516. Indemnification, insurance, and bonding.
25 (a) An authority may adopt reasonable indemnification, insurance, and
26 bonding requirements related to the deployment of small wireless facilities
27 and associated poles under this subchapter.
28 (b)(1) An authority may require a wireless provider to defend,
29 indemnify and hold harmless the authority and its officers, agents and
30 employees against any claims, demands, damages, lawsuits, judgments, costs,
31 liens, losses, expenses, and attorney's fees resulting from the installation,
32 construction, repair, replacement, operation, or maintenance of poles, small
33 wireless facilities, or attachments to authority poles to the extent directly
34 caused by the negligence of the wireless provider, its contractors,
35 subcontractors and their officers, employees or agents.
36 (2) A wireless provider has no obligation to defend, indemnify,
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1 or hold harmless an authority or its officers, agents, or employees against
2 any liabilities or losses due to or caused by the sole negligence of the
3 authority or its employees or agents.
4 (c) (1) An authority may require a wireless provider to have in effect
5 insurance coverage against the claims, demands, damages, lawsuits, judgments,
6 costs, liens, losses, expenses, and attorney's fees described in subsection
7 (b) of this section, so long as the authority imposes similar requirements on
8 other right-of-way users and the requirements are reasonable and
9 nondiscriminatory, and provided that an authority does not require a wireless
10 provider to obtain insurance naming the authority or its officers and
11 employees as additional insureds.
12 (2) (A) A wireless provider with net assets of at least five
13 hundred million dollars ($500,000,000) , including the assets of its
14 affiliates, may self-insure as to any required coverage.
15 (B) An authority may require reasonable proof that the
16 wireless provider is eligible under subdivision (c) (2) (A) of this section to
17 self-insure.
18 (C) A wireless provider shall immediately notify each
19 authority in which the wireless provider has obtained permits of any change
20 in its self-insured status as to any coverage required under this subsection,
21 and of any change in the ability of the wireless provider to cover the losses
22 specified in subdivision (c) (1) of this section.
23 (d) (1) An authority may adopt bonding requirements for small wireless
24 facility collocations if the authority imposes similar requirements in
25 connection with other right-of-way users.
26 (2) The purpose of the bonds shall be to:
27 (A) Provide for the removal of abandoned or improperly
28 maintained small wireless facilities, including those that an authority
29 determines needs to be removed to protect public health, safety, or welfare;
30 and
31 (B) Recoup rates or fees that have not been paid by a
32 wireless provider in over twelve (12) months, so long as the wireless
33 provider has received reasonable notice from the authority of any of the
34 noncompliance listed above and an opportunity to cure.
35 (3) (A) Bonding requirements shall not exceed one thousand
36 dollars ($1,000) per small wireless facility.
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1 (B) For wireless providers with multiple small wireless
2 facilities within the jurisdiction of a single authority, the total bond
3 amount across all facilities may not exceed ten thousand dollars ($10,000) ,
4 which amount may be combined into a single bond instrument.
5 (C) An authority may waive bonding requirements for a
6 wireless provider that already maintains bonding for other operations.
7 (D) An authority shall not require a cash bond, unless
8 either of the following applies:
9 (i) The wireless provider has failed to obtain or
10 maintain a bond required under this section; or
11 (ii) The surety has defaulted or failed to perform
12 on a bond given to the authority on behalf of the wireless provider.
13
14 23-17-517. Overlapping jurisdiction of management of right-of-way.
15 (a) In an area where more than one (1) authority may assert
16 jurisdiction over a right-of-way, only the authority controlling the smallest
17 geographic territory shall be authorized to adopt standards under § 23-17-
18 508, issue permits under § 23-17-510, or require the payment of fees under §
19 23-17-511.
20 (b) This section does not restrict the authority of the Arkansas
21 Department of Transportation over the location of a facility in a right-of-
22 way controlled by the department.
23
24 SECTION 2. EFFECTIVE DATE. This act is effective on and after
25 September 1, 2019.
26
27
28 /s/J. Dismang
29
30
31 APPROVED: 4/15/19
32
33
34
35
36
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Cityof Van Buren Arkansas
Municipal ex
111 North 12th Street • Van Buren, Arkansas 72956
VAN BUREN CITY COUNCIL MEMORANDUM
TO: MAYOR JOE HURST AND CITY COUNCIL
FROM: WALLY BAILEY, PLANNING DIRECTOR
SUBJECT: SMALL WIRELESS FACILITIES ORDINANCE
DATE: AUGUST 21, 2019
CC:
RECOMMENDATION: In response to recent federal and state actions, I am recommending an
Ordinance for the purpose of establishing standards pertaining to the placement of small
wireless facilities within the City of Van Buren.
BACKGROUND: In 2018,the Federal Communications Commission issued an industry-backed
declaratory ruling that included several preemption provisions, including a "shot clock" for time
limits for processing applications and limiting fees that local governments can charge providers
to use the city's right of way. The FCC ruling is currently being challenged and legislation has
been introduced in Congress to reverse the order. Additionally, the Arkansas State Legislature
in the 2019 session enacted Act 999, "To Establish the Small Wireless Facility Deployment Act,"
which added Arkansas to over 20 states that had previously enacted legislation to pre-empt
local authority in this same manner. Act 999 is set to take effect September 1, 2019.
On August 6, 2019 the Planning Commission held their monthly meeting. This subject was
discussed by the Commissioners. A motion was made by Philip Bagby and seconded by John
Symonds to recommend the City Council review and approve an ordinance creating strong
regulations for small wireless facilities. Motion was passed unanimously.
On August 8, 2019 the Historic District Commission held their monthly meeting. After discussion
of the subject, a motion was made by Lonnie London and seconded by Derald Porter to
recommend the City Council approve an ordinance creating strong regulations for small
wireless facilities. Motion was passed unanimously.
DISCUSSION: The proposed Ordinance is the results of research and work with the City
Attorney, and research that including consultation with other communities and some
discussion with representatives of a wireless provider.
The potential impacts ofsmall wireless facilities installations are significant and because the Act
has an effective date of September 1, 2019 it is important for the City Council to give the
proposed Ordinance consideration for adoption at the August 26, 2019 meeting. The proposed
Ordinance has an emergency clause.
For additional background on the subject, I have included a copy of Act 999, two articles from
City&Town, the memorandum to the Planning Commission. I will be prepared to provide
further details and discussion at the August 26, 2019, City Council meeting.