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HomeMy WebLinkAboutZOA-17-03/ WCity of TV r ( ITEM NO 1-\Prv- ?s_ —u DATE: June 12, 2017. REQUEST FOR CITY COUNCIL ACTION 3. TITLE: COUNCIL BILL NO. 09-2017 - AN ORDINANCE AMENDING CHAPTER 26 OF THE WHEAT RIDGE CODE OF LAWS TO REGULATE AND ALLOW SMALL CELL COMMERCIAL MOBILE RADIO SERVICE (CMRS) FACILITIES ® PUBLIC HEARING ❑ ORDINANCES FOR IST READING (05/22/2017) ❑ BIDS/MOTIONS ® ORDINANCES FOR 2ND READING (06/12/2017) ❑ RESOLUTIONS QUASI-JUDICIAL: ❑ YES ® NO P I d i Community Devklopment Director City Manager ISSUE: During the 2017 Colorado state legislative session, the legislature adopted, and the governor signed, House Bill 17-1193 pertaining to small cell wireless service infrastructure. As it pertains to local governments, the bill does two significant things: 1. Makes such facilities a use -by -right in all zoning districts; and 2. Allows them to locate in public rights-of-way (ROW) and on utility and traffic signal poles in those locations, and in public utility easements, with some limitations and subject to City review and approval. Based on this action, staff recommends the City adopt local regulations pertaining to the design parameters and approval processes for such facilities. The bill is effective July 1, 2017, and staff has received some inquiries from the small cell industry, potentially interested in making application for facilities in the City ROW. As such, staff recommends prompt action to ensure the City has the ability to proactively regulate their design and location, particularly when wishing to locate in the ROW. PRIOR ACTION: Late in 2016, the City modified its regulations regarding commercial mobile radio service Council Action Form — Small Cell CMRS Facilities June 12, 2017 Page 2 (CMRS) facilities. This update was done principally to comply with updated Federal Communications Commission (FCC) regulations stipulating maximum local government review timeframes. City Council reviewed the draft ordinance at a study session on May 15 and directed staff to proceed forward to package for Council's consideration at 1St Reading on May 22. Based on discussion at that meeting, staff added language in Section 1 of the ordinance, adding Section 26- 615.1-1.9 regarding "Permit Expiration." Staff also identified one minor correction in the ordinance. In Section 1 of the ordinance on page 5, Section 26-615.D.7.e is duplicative of 26- 615.D.7.c and has been recommended to be stricken from the ordinance. This is included in the draft ordinance. Planning Commission Public Hearing The Planning Commission held a public hearing on the ordinance on June 1 and recommended approval with the condition that several typos be addressed: • The code reference in the third recital be corrected to read 26-615 instead of 26-215, • The incomplete sentence in subsection D.7.e (on page 5 of the ordinance) be deleted, and • The spelling of "alternative" be corrected in subsection H.2.e (on page 7 of the ordinance). There was no further discussion and no public comment. The Planning Commission staff report is attached for additional reference. FINANCIAL IMPACT: The City collects building permit application fees for all new CMRS facilities. In some cases, new facilities require review and approval of a special use permit, which also have small application fees. When requesting to locate in public ROWS, the state legislation allows municipalities to assess application fees, which cannot exceed strictly direct cost recovery. Cumulatively, these are minor revenue sources for the City. BACKGROUND: Since the 1996 adoption of the Federal Telecommunications Act, both the federal and state governments have placed some limitations on the manner in which local governments regulate the installation of CMRS facilities. In addition to the previously mentioned new state regulations pertaining to small cell facilities, the FCC is also considering rulemaking that would limit the manner in which such facilities can be regulated at a local level. City staff has provided comment to the FCC on the draft regulations. The City has generally been permissive in regulating the industry, while maintaining reasonable design standards that ensure such facilities blend in with the community's built environment. RECOMMENDATIONS: Staff has met internally to consider modifications to local regulations that will comply with the new state legislation and provide reasonable design standards and a review process for small cell wireless facilities. Staff believes this can be accomplished with an ordinance proposing relatively minor amendments to Chapter 26 (Zoning and Development). Given that such facilities are now Council Action Form — Small Cell CMRS Facilities June 12, 2017 Page 3 mandated by the state to be allowed in public rights-of-way, staff believes it is particularly important to update City regulations to address the design parameters and location of such facilities. In order to have such regulations in place by the effective date of the legislation (July 1, 2017), the ordinance is drafted to take effect immediately upon Council adoption. After final review of the ordinance, staff has proposed a modification to subsection H, which will better clarify which regulations apply on private property versus public rights-of-way. This modification along with the Planning Commission recommendations are provided as redlines in Attachment 4. RECOMMENDED MOTION: "I move to approve Council Bill No. 09-2017, an ordinance amending Chapter 26 of the Wheat Ridge Code of Laws to regulate and allow small cell commercial mobile radio service (CMRS) facilities as amended on second reading, order it published, and that it take effect immediately." Or, "I move to postpone indefinitely the ordinance amending Chapter 26 of the Wheat Ridge Code of Laws to regulate and allow small cell commercial mobile radio service (CMRS) facilities for the following reason(s) " REPORT PREPARED BY; Kenneth Johnstone, Director of Community Development Patrick Goff, City Manager ATTACHMENTS: 1. Council Bill No. 09-2017 0" reading) 2. House Bill 17-1193 3. Planning Commission staff report 4. Council Bill No. 09-2017 Redlines Council Action Form — Small Cell CMRS Facilities June 12, 2017 Page 4 CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER WOODEN COUNCIL BILL NO. 09 ORDINANCE NO. Series 2017 TITLE: AN ORDINANCE AMENDING CHAPTER 26 OF THE WHEAT RIDGE CODE OF LAWS TO REGULATE AND ALLOW SMALL CELL COMMERCIAL MOBILE RADIO SERVICE (CMRS) FACILITIES WHEREAS, the City of Wheat Ridge, Colorado, is a Colorado home rule municipality, duly organized and existing pursuant to Section 6 of Article XX of the Colorado Constitution; and WHEREAS, pursuant to its home rule authority and C.R.S. § 31-23-101, the City, acting through its City Council is authorized to adopt ordinances for the protection of the public health, safety or welfare; and WHEREAS, in the exercise of this authority the Council has previously adopted Section 26-215 of the Wheat Ridge Code of Laws concerning commercial mobile radio service facilities; and WHEREAS, the Council wishes to amend Section 26-615 to address changes in state law affecting "small cell" facilities and to make conforming amendments in connection therewith; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 26-615 of the Code, concerning commercial mobile radio service facilities, is hereby amended as follows: Sec. 26-615. — Commercial mobile radio service (CMRS) facilities. A. Purpose and intent. The purpose and intent of this section 26-615 is to accommodate the communication needs of residents and businesses while protecting the public health, safety, and general welfare of the community. These regulations are necessary in order to: 1. Facilitate the provision of wireless telecommunication services to the residents and businesses of the city. 2. Minimize adverse impacts of facilities through careful design, siting and screening standards. 3. Encourage and maximize colocation and the use of existing and approved towers, buildings, and other structures to accommodate new wireless telecommunication antennas in order to reduce the number of towers needed to serve the community. 4. Provide specific regulations related to the review processes for CMRS facilities. Attachment 1 A C 5. Align the review and approval process for CMRS facilities with the FCC and any other agency of the federal government with the authority to regulate CMRS facilities. Applicability. The standards contained in this section shall apply to all applications for any CMRS facility. The applicant shall demonstrate in writing that its proposed CMRS facility meets all applicable standards and provisions of the code. Pre- existing CMRS facilities shall not be required to meet the requirements of this section, other than the requirements of subsection E. Changes and additions to pre-existing CMRS facilities must meet the applicable requirements of this section. Review and approval process. Proposed CMRS facilities shall be reviewed pursuant to the following procedures depending upon the facility type and/or proposed change: 1. Review procedure a. Building- or structure -mounted facilities in all zone districts shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. b. Roof -mounted facilities in all zone districts shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. c. New freestanding or alternative tower CMRS facilities must receive a special use permit, pursuant to sections 26-114, 26-204 and 26-1111. d. New freestanding or alternative tower CMRS facilities in all planned development zone districts (including planned residential districts) unless specifically listed or shown as such in the outline development plan, also require amendment of the outline development plan pursuant to Article III. At the sole discretion of the community development director, new freestanding or alternative tower CMRS facilities may be reviewed as a special use pursuant to sections 26- 114, 26-204 and 26-309. e. Applications for colocation on any existing facility shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. f. SMALL CELL CMRS FACILITIES AND NETWORKS IN PUBLIC RIGHTS-OF-WAY AND EASEMENTS SHALL BE REVIEWED BY THE PUBLIC WORKS DEPARTMENT AND SHALL REQUIRE A PERMIT UNDER SECTION 21-101, ET. SEQ.. g. SMALL CELL CMRS FACILITIES AND NETWORKS ON PRIVATE PROPERTY SHALL BE REVIEWED BY THE COMMUNITY DEVELOPMENT DEPARTMENT THROUGH A BUILDING PERMIT APPLICABLE FOR COMPLIANCE WITH THE REQUIREMENTS FOR SUCH FACILITIES. 2. Approval process a. The city shall review and act upon the application within the following time periods: Attachment 1 i. Within 30 days the city will give written notice of incompleteness if so determined, specifying the code section(s) that requires such missing information. This determination pauses the remaining deadlines until a complete application is filed. ii. Within 60 days the city will act on applications that are not a substantial change. iii. Within 90 days the city will act on APPLICATIONS FOR SMALL CELL FACILITIES OR colocation applications that are not a substantial increase in the size of a tower. iv. Within 150 days the city will act on applications for new CMRS facilities, colocation applications that are a substantial increase in the size of the tower or substantial increase of an existing CMRS facility. b. The final action of the city on any CMRS application shall be in writing and shall advise the applicant of the reasons for approval, approval with conditions, or denial. D. Standards for all CMRS facilities. The following are standards for all CMRS facilities. 1. Colocation. The shared use of existing freestanding or roof-mounted CMRS facilities shall be preferred to the construction of new facilities in order to minimize adverse visual impacts associated with the proliferation of towers. a. No CMRS application to construct a new freestanding or roof-mounted CMRS facility shall be approved unless the applicant demonstrates to the reasonable satisfaction of the city that no existing CMRS facility within a reasonable distance, regardless of municipal boundaries, can accommodate the applicant's needs. Evidence submitted to demonstrate that no existing facility can accommodate the applicant's proposed CMRS facility shall consist of one or more of the following: i. No existing CMRS facilities are located within the geographic area required to meet the applicant's coverage demands. ii. Existing CMRS facilities or structures are not of sufficient height to meet the applicant's coverage demands and cannot be extended to such height. iii. Existing CMRS facilities or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment. iv. Existing CMRS facilities or structures do not have adequate space on which proposed equipment can be placed so it can function effectively and reasonably. v. The applicant's proposed antenna would cause electromagnetic interference with the antennas on the existing CMRS facility, or the antennas on the existing facility would cause interference with the applicant's proposed antenna. vi. The applicant demonstrates that there are other compelling limiting factors, including but not limited to economic factors, that render CMRS facilities or structures unsuitable. Attachment 1 b. No CMRS facility owner or operator shall unreasonably exclude a telecommunication competitor from using the same facility or location. Upon request by the city, the owner or operator shall provide evidence and a written statement to explain why colocation is not possible at a particular facility or site. c. If a telecommunication competitor attempts to collocate a CMRS facility on an existing or approved CMRS facility or location, and the parties cannot reach an agreement, the city may require a third -party technical study to be completed at the applicant's expense to determine the feasibility of colocation. d. Applications for new freestanding CMRS facilities shall provide evidence that the facility can accommodate colocation of additional carriers. 2. Federal requirements. All CMRS facilities shall meet the current standards and regulations of the FAA, the FCC, and any other agency of the federal government with the authority to regulate CMRS facilities. Failure to meet such revised standards and regulations shall constitute grounds for revocation of city approvals and removal of the facility at the owner's expense. 3. Safety standards. All CMRS facilities shall conform to the requirements of the international building code, and national electrical code, as applicable. 4. Abandonment. CMRS facilities which are abandoned by nonuse, disconnection of power service, equipment removal or loss of lease for greater than six (6) months shall be removed by the CMRS facility owner. Should the owner fail to remove the facilities, the city may do so at its option, and the costs thereof shall be a charge against the owner and recovered by certification of the same to the county treasurer for collection as taxes in the manner provided by code section 2-93, or by any other means available under article x of chapter 26. 5. Third party review. a. CMRS providers use various methodologies and analysis tools, including geographically based computer software, to determine the specific technical parameters of MRS facilities, such as expected coverage area, antenna configuration and topographic constraints that affect signal paths. In certain instances there may be a need for expert review by a third party of the technical data submitted by the CMRS provider. The city may require such a technical review to be paid for by the applicant for a CMRS facility. The selection of the third party expert may be by mutual agreement between the applicant and the city or at the discretion of the city, with a provision for the applicant and interested parties to comment on the proposed expert and review its qualifications. The expert review is intended to be a site-specific review of technical aspects of the CMRS facilities and not a subjective review of the site selection. The expert review of the technical submission shall address the following: i. The accuracy and completeness of the submission; Attachment 1 ii. The applicability of analysis techniques and methodologies; iii. The validity of conclusions reached; iv. Any specific technical issues designated by the city. b. Based on the results of the third party review, the city may require changes to the application for the CMRS facility that comply with the recommendation of the expert. 6. All CMRS facilities are accessory uses to the structure upon which they are placed or to the primary use of the property on which they are constructed. WITH THE EXCEPTION OF SMALL CELL FACILITIES, no CMRS facility shall be located on a vacant lot devoid of any primary or main building. 7. Siting of CMRS facilities in residential areas. The city encourages the siting of CMRS facilities in nonresidential areas. a. The city prohibits freestanding CMRS facilities in the following zone districts: i. Residential -One (R-1), ii. Residential -One A (R -1A), iii. Residential -One B (R-1 B), iv. Residential -One C (R-1 C), v. Residential -Two (R-2), vi. Residential -Two A (R -2A), vii. Residential -Three (R-3), viii. Residential -Three A (R -3A), ix. Agricultural -One (A-1), x. Agricultural -Two (A-2), and A. Mixed Use -Neighborhood (MU -N) zone districts. b. The city prohibits all CMRS facilities on properties where the principal use is a single or two-family dwelling. c. Alternative tower CMRS facilities may be located on a property containing a non-residential use, regardless of underlying zoning. d. Building, structure or roof -mounted CMRS facilities may be located on a property containing a nonresidential or multi -family use, regardless of underlying zoning. e. Alternative tower structures may be located on a property f. SMALL CELL FACILITIES ARE PERMITTED IN ALL ZONE DISTRICTS. E. Standards for freestanding and alternative tower CMRS facilities. Freestanding and alternative tower CMRS facilities are subject to the following requirements and shall be evaluated as a special use. 1. Freestanding CMRS facilities shall be visually screened from adjacent residential development and public rights-of-way. 2. Freestanding and alternative tower CMRS facilities shall be permitted only as an accessory use, and are subject to accessory use setback development standards in the applicable zone district. 3. Freestanding and alternative tower CMRS facilities shall not exceed the permitted height for the principal use on the subject property. Attachment 1 4. Freestanding CMRS facilities shall not be permitted between the principal structure and the street. F. Standards for building or structure -mounted CMRS facilities. Building or structure - mounted CMRS facilities are subject to the following requirements and shall be evaluated as part of the community development department's review process. 1. Such facilities shall be architecturally compatible with and textured and colored to match the building or structure to which they are attached. 2. The antenna shall be mounted as flush to the wall as technically possible. The maximum protrusion of such facilities from the building or structure face to which they are attached shall be two (2) feet. 3. Panel antennae shall not extend above the building wall or parapet to which they are mounted. 4. Whip antennae shall extend no more than ten (10) feet above the highest point of the building or structure to which they are attached. G. Standards for roof -mounted CMRS facilities. Roof -mounted CMRS facilities are subject to the following requirements and shall be evaluated as part of community development department's review process. 1. All roof -mounted CMRS facilities and accessory equipment shall be set back from the roof or parapet edge so that visibility from the street or adjacent residential properties is minimized to the greatest extent possible. 2. If roof -mounted equipment is visible from the street or adjacent residential properties, CMRS facilities and accessory equipment shall be screened by materials that are architecturally compatible with and colored to match the building or structure to which they are attached. 3. No roof -mounted facility, including antenna or accessory equipment, shall exceed twelve (12) feet in height, as measured from the roof deck. 4. Roof -mounted accessory equipment shall not be permitted on a sloped roof, unless it can be demonstrated that it is not visible from the street or adjacent residential areas. H. STANDARDS FOR SMALL CELL FACILITIES AND NETWORKS. 1. APPLICABLE REQUIREMENTS. SMALL CELL FACILITIES AND SMALL CELL NETWORKS, SHALL COMPLY IN ALL RESPECTS WITH THE REQUIREMENTS OF THIS SECTION APPLICABLE TO ALL CMRS FACILITIES, WITH THE FOLLOWING EXCEPTIONS: a. SETBACK REQUIREMENTS; AND b. DESIGN REQUIREMENTS 2. LOCATION. SMALL CELL FACILITIES ARE PERMITTED IN CITY RIGHTS- OF-WAY, UPON FACILITIES IN THESE RIGHTS-OF-WAY AND ON PUBLIC EASEMENTS OWNED BY THE CITY UNDER THE FOLLOWING PRIORITY: a. FIRST, ON A CITY -OWNED UTILITY POLE, WHICH SHALL BE REMOVED AND REPLACED WITH A POLE DESIGNED TO CONTAIN ALL ANTENNAE AND EQUIPMENT WITHIN THE POLE TO CONCEAL ANY GROUND-BASED SUPPORT EQUIPMENT AND OWNERSHIP OF WHICH POLE IS CONVEYED TO THE CITY. Attachment 1 b. SECOND, A CITY -OWNED UTILITY POLE WITH ATTACHMENT OF THE SMALL CALL FACILITIES IN A CONFIGURATION APPROVED BY THE CITY. c. THIRD, ON A THIRD -PARTY OWNED UTILITY POLE, (WITH THE CONSENT OF THE OWNER THEREOF), WITH ATTACHMENT OF THE SMALL CELL FACILITIES IN A CONFIGURATION APPROVED BY THE CITY. d. FOURTH, ON A TRAFFIC SIGNAL POLE OR MAST ARM IN A CONFIGURATION APPROVED BY THE CITY, OR IN THE CASE OF A CDOT FACILITY, BY CDOT. e. FIFTH, ON A FREESTANDING OR GROUND -MOUNTED FACILITY WHICH MEETS THE DEFINITION OF AND REQUIREMENTS FOR AN ALTTERNATIVE TOWER STRUCTURE IN A LOCATION AND CONFIGURATION APPROVED BY THE CITY. 3. HEIGHT. ALL SMALL CELL FACILITIES SHALL NOT EXCEED TWO FEET ABOVE THE LIGHT POLE, TRAFFIC SIGNAL OR OTHER FACILITY OR STRUCTURE TO WHICH THEY ARE ATTACHED, OR THE MAXIMUM HEIGHT IN THE RELEVANT ZONE DISTRICT, WHICHEVER IS LESS. WHEN NEW UTILITY POLES ARE PROPOSED AS AN ALTERNATIVE TOWER, THEIR HEIGHT SHALL BE SIMILAR TO EXISTING UTILITY/LIGHT POLES IN THE VICINITY. 4. SPACING. NO SMALL CELL FACILITY SHALL BE LOCATED WITHIN ONE THOUSAND FEET (1000 FT) OF ANY OTHER SUCH FACILITY. 5. DESIGN. SMALL CELL FACILITIES SHALL BE DESIGNED TO BLEND WITH AND BE CAMOUFLAGED IN RELATION TO THE STRUCTURE UPON WHICH THEY ARE LOCATED (E.G.: PAINTED TO MATCH THE STRUCTURE OR SAME MATERIAL AND COLOR AS ADJACENT UTILITY POLES). 6. PERMITTING. SMALL CELL FACILITIES AND NETWORKS SHALL MAKE APPLICATION FOR A PERMIT FOR WORK IN THE RIGHT-OF-WAY UNDER CODE SECTION 21-11, ET. SEQ., AND FOR LOCATION AND MAINTENANCE OF SUCH FACILITY SHALL MAKE APPLICATION FOR A PERMIT FOR USE OF THE PUBLIC RIGHT OF WAY UNDER CODE SECTION 21-101, ET SEQ. SMALL CELL FACILITIES AND NETWORKS SHALL MAKE APPLICATION FOR LOCATION ON PRIVATE PROPERTY THROUGH THE BUILDING PERMIT PROCESS. THE CITY MAY ACCEPT APPLICATIONS FOR A SMALL CELL NETWORK, PROVIDED EACH SMALL CELL FACILITY SHALL BE SEPARATELY REVIEWED. 7. INDEMNIFICATION. THE OPERATOR OF A SMALL CELL FACILITY WHICH IS PERMITTED TO LOCATE ON A CITY -OWNED UTILITY POLE, TRAFFIC SIGNAL OR OTHER STRUCTURE OWNED BY THE CITY SHALL, AS A CONDITION OF PERMIT APPROVAL, INDEMNIFY THE CITY FROM AND AGAINST ALL LIABILITY AND CLAIMS ARISING AS A RESULT OF THAT ATTACHMENT, INCLUDING REPAIR AND Attachment 1 REPLACEMENT OF DAMAGED POLES AND EQUIPMENT, IN A FORM APPROVED BY THE CITY ATTORNEY. 8. BONDING. ALL PERMITS FOR LOCATION OF SMALL CELL FACILITIES ON REAL PROPERTY NOT OWNED BY THE SMALL CELL PERMITTEE SHALL INCLUDE AS A CONDITION OF APPROVAL A BOND, IN FORM APPROVED BY THE CITY ATTORNEY, TO GUARANTEE PAYMENT FOR ANY DAMAGES TO THE REAL PROPERTY AND REMOVAL OF THE FACILITY UPON ITS ABANDONMENT. 9. PERMIT EXPIRATION. A PERMIT FOR A SMALL CELL FACILITY SHALL EXPIRE NINE (9) MONTHS AFTER APPROVAL UNLESS CONSTRUCTION OF THE PERMITTED STRUCTURE HAS BEEN INITIATED. Standards for ground -mounted accessory equipment. Ground -mounted accessory equipment that is associated with a freestanding, roof -mounted or building - mounted CMRS facility are subject to the following requirements and shall be evaluated with the associated CMRS facility application. 1. Ground -mounted accessory equipment shall be subject to the accessory structure setback requirements in the underlying zone district. 2. Ground -mounted accessory equipment or buildings containing accessory equipment shall not exceed 12 feet in height. 3. Ground -mounted accessory equipment not fully enclosed in a building shall be fully screened from adjacent residential properties and public rights-of- way. 4. Buildings containing ground -mounted accessory equipment shall be architecturally compatible with the existing structures on the property and character of the neighborhood. J. Definitions. 1. Alternative Tower CMRS facility. An existing or proposed structure that is compatible with the natural setting and surrounding structures and that camouflages or conceals the presence of the antennae and can be used to house or mount CMRS antenna. Examples include manmade trees, clock towers, bell steeples, light poles, silos, existing utility poles, existing utility transmission towers and other similar alternative designed structures. 2. Tower. Any freestanding structure designed and constructed primarily for the purpose of supporting one (1) or more Federal Communications Commission - licensed or authorized antennae, including self-supporting lattice towers, guy towers and monopole towers, radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers and other similar structures. The term also includes any antenna or antenna array attached to the tower structure. Attachment 1 3. Substantially Change. A modification which substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria, including a single change or a series of changes over time whether made by a single owner or operator or different owners/operators over time, when viewed against the initial approval for the support structure. The following are considered substantial changes: a. For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater; b. For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the Tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet; c. For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, or more than four cabinets; or, for towers in the public rights- of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure; d. It entails any excavation or deployment outside the current site e. It would defeat the concealment elements of the eligible support structure; or f. It does not comply with conditions associated with the original siting approval for the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in paragraphs a through a of this definition. Section 2. The following definitions are hereby deleted from Section 26-123 and inserted within Section 26-615 under a new paragraph I: Building or structure -mounted commercial mobile radio service facility. A CMRS facility in which antenna are mounted to an existing structure (e.g., water tower, light pole, steeple, etc.) or building face. CDOT COLORADO DEPARTMENT OF TRANSPORTATION. Attachment 1 Commercial mobile radio service (CMRS) accessory building or cabinet. An unmanned building or cabinet used to house equipment associated with a CMRS facility. Commercial mobile radio service (CMRS) site. An unmanned facility consisting of equipment for the reception, switching and transmission of wireless telecommunications, including, but not limited to, personal communications service (PCS), enhanced specialized mobile radio (ESMR), paging, cellular telephone and similar technologies. Freestanding commercial mobile radio service (CMRS) facility. A CMRS facility that consists of a stand-alone support facility (monopole and/or lattice structure), antenna, associated equipment, accessory buildings and equipment cabinets. Roof -mounted commercial mobile radio service (CMRS) facility. A CMRS facility in which antenna are mounted on an existing building roof. SMALL CELL CMRS FACILITY MEANS EITHER: 1. A PERSONAL WIRELESS SERVICE FACILITY AS DEFINED BY THE FEDERAL TELECOMMUNICATIONS ACT OF 1996," AS AMENDED AS OF AUGUST 6, 2014; OR 2. A WIRELESS SERVICE FACILITY THAT MEETS BOTH OF THE FOLLOWING QUALIFICATIONS: a. EACH ANTENNA IS LOCATED INSIDE AN ENCLOSURE OF NO MORE THAN THREE CUBIC FEET IN VOLUME OR, IN THE CASE OF AN ANTENNA THAT HAS EXPOSED ELEMENTS, THE ANTENNA AND ALL OF ITS EXPOSED ELEMENTS COULD FIT WITHIN AN IMAGINARY ENCLOSURE OF NO MORE THAN THREE CUBIC FEET; AND b. PRIMARY EQUIPMENT ENCLOSURES ARE NOT LARGER THAN SEVENTEEN CUBIC FEET IN VOLUME. THE FOLLOWING ASSOCIATED EQUIPMENT MAY BE LOCATED OUTSIDE OF THE PRIMARY EQUIPMENT ENCLOSURE AND, IF SO LOCATED, IS NOT INCLUDED IN THE CALCULATION OF EQUIPMENT VOLUME: ELECTRIC METER, CONCEALMENT, TELECOMMUNICATIONS DEMARCATION BOX, GROUND-BASED ENCLOSURES, BACK-UP POWER SYSTEMS, GROUNDING EQUIPMENT, POWER TRANSFER SWITCH, AND CUT-OFF SWITCH. SMALL CELL CMRS NETWORK. A COLLECTION OF INTERRELATED SMALL CELL FACILITIES DESIGNED TO DELIVER WIRELESS SERVICE. Section 3. Severability, Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Attachment 1 Section 4. Effective Date. This Ordinance shall take effect upon adoption and signature by the Mayor and City Clerk, as permitted by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 8 to 0 on this 22nd day of May, 2017, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for June 12, 2017 at 7:00 p.m. in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of to , this day of , 2017. SIGNED by the Mayor on this day of , 2017. Joyce Jay, Mayor ATTEST: Janelle Shaver, City Clerk Approved as to Form Gerald E. Dahl, City Attorney First Publication: May 25, 2017 Second Publication: Wheat Ridge Transcript Effective Date: Published: Wheat Ridge Transcript and www.ci.wheatridge.co.us Attachment 1 HOUSE BELL 17-1193 BY REPRESENTATIVE(S) Kraft -Tharp and Becker J., Amdt, Becker K., Danielson, Ginal, Hansen, Hooton, Kennedy, McKean, Melton, Pabon, Van Winkle, Gray, Lontine, Wilson, Duran; also SENATOR(S) Tate and Kerr, Crowder, Donovan, Fields, Garcia, Guzman, Hill, Holbert, Jahn, Kefalas, Lundberg, Marble, Martinez Humenik, Merrifield, Neville T., Priola, Scott, Todd, Williams A., Zenzinger, Grantham. CONCERNING THE INSTALLATION OF SMALL WIRELESS SERVICE INFRASTRUCTURE WITHIN A LOCAL GOVERNMENT'S JURISDICTION, AND, IN CONNECTION THEREWITH, CLARIFYING THAT AN EXPEDITED PERMITTING PROCESS APPLIES TO SMALL CELL FACILITIES AND SMALL CELL NETWORKS AND THAT THE RIGHTS-OF-WAY ACCESS AFFORDED TELECOMMUNICATIONS PROVIDERS EXTENDS TO BROADBAND PROVIDERS AND TO SMALL CELL FACILITIES AND SMALL CELL NETWORKS. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 29-27401, add (2) as follows: 29-27-401. Legislative declaration. (2) THE GENERAL ASSEMBLY Attachment 2 Capital letters indicate new material added to existing statutes; dashes through words indicate deletions from existing statutes and such material not part of act. FURTHER FINDS AND DECLARES THAT: (a) SMALL CELL FACILITIES OFTEN MAY BE DEPLOYED MOST EFFECTIVELY IN THE PUBLIC RIGHTS-OF-WAY; AND (b) ACCESS TO LOCAL GOVERNMENT STRUCTURES IS ESSENTIAL TO THE CONSTRUCTION AND MAINTENANCE OF WIRELESS SERVICE FACILITIES OR BROADBAND FACILITIES. SECTION 2. In Colorado Revised Statutes, 29-27-402, amend (1), (4), and (7); and add (1.5), (3.5), and (6.5) as follows: 29-27-402. Definitions. As used in this part 4, unless the context otherwise requires: (1) "Broadband facility" m%.mis =y hifiasttuctute uscd-to-deliver broadbamtl scrvice or fbi dre pro isiomofbio adbmid sere "ANTENNA" MEANS COMMUNICATIONS EQUIPMENT THAT TRANSMITS OR RECEIVES ELECTROMAGNETIC RADIO FREQUENCY SIGNALS USED TO PROVIDE WIRELESS SERVICE. (1.5) "BROADBAND FACILITY" MEANS ANY INFRASTRUCTURE USED TO DELIVER BROADBAND SERVICE OR FOR THE PROVISION OF BROADBAND SERVICE. (3.5) "MICRO WIRELESS FACILITY" MEANS A SMALL WIRELESS FACILITY THAT IS NO LARGER IN DIMENSIONS THAN TWENTY-FOUR INCHES IN LENGTH, FIFTEEN INCHES IN WIDTH, AND TWELVE INCHES IN HEIGHT AND THAT HAS AN EXTERIORANTENNA, IF ANY, THAT IS NO MORE THAN ELEVEN INCHES IN LENGTH. (4) (a) "Small cell facility" means either: (a) (1) A personal wireless service facility as defined by the federal "Telecommunications Act of 1996", as amended as of August 6, 2014; or (b) (II) A wireless service facility that meets both of the following qualifications: (f) (A) Each antenna is located inside an enclosure of no more than PAGE 2 -HOUSE BILL 17-1193 three cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than three cubic feet; and "(B) Primary equipment enclosures are no larger than seventeen cubic feet in volume. The following associated equipment may be located outside of the primary equipment enclosure and, if so located, is not included in the calculation of equipment volume: Electric meter, concealment, telecommunications demarcation box, ground-based enclosures, back-up power systems, grounding equipment, power transfer switch, and cut-off switch. (b) "SMALL CELL FACILITY" INCLUDES A MICRO WIRELESS FACILITY. (6.5) "TOWER" MEANS ANY STRUCTURE BUILT FOR THE SOLE OR PRIMARYPURPOSE OF SUPPORTING ANTENNAS LICENSED OR AUTHORIZED BY THE FEDERAL COMMUNICATIONS COMMISSION AND THE ANTENNAS' ASSOCIATED FACILITIES, INCLUDING STRUCTURES THAT ARE CONSTRUCTED FOR WIRELESS COMMUNICATIONS SERVICES INCLUDING PRIVATE, BROADCAST, AND PUBLIC SAFETY SERVICES; UNLICENSED WIRELESS SERVICES; FIXED WIRELESS SERVICES SUCH AS BACKHAUL; AND THE ASSOCIATED SITE. (7) "Wireless service facility" means a facility for the provision of wireless services; EXCEPT THAT "WIRELESS SERVICE FACILITY" DOES NOT INCLUDE COAXIAL OR FIBER-OPTIC CABLE THAT IS NOT IMMEDIATELY ADJACENT TO, OR DIRECTLY ASSOCIATED WITH, A PARTICULAR ANTENNA. SECTION 3. In Colorado Revised Statutes, 29-27-403, amend (1) and (3) as follows: 29-27-403. Permit - approval - deadline - exception. (1) A local government may take up to: (a) NINETY DAYS TO PROCESS A COMPLETE APPLICATION FOR: (I) LOCATION OR COLLOCATION OF A SMALL CELL FACILITY OR A SMALL CELL NETWORK; OR (II) REPLACEMENT ORMODIFICATION OF A SMALL CELL FACILITYOR PAGE 3 -HOUSE BILL 17-1193 FACILITIES OR SMALL CELL NETWORK. (a) (b) Ninety days to process a complete application that involves a collocation of a tower, building, structure, or replacement structure OTHER THAN A SMALL CELL FACILITY OR SMALL CELL NETWORK; or (fir) (c) One hundred fifty days to process a complete application that involves a new structure or a new wireless service facility, OTHER THAN A SMALL CELL FACILITY OR SMALL CELL NETWORK AND other than a collocation. (3) An applicant and a local government ENTITY may mutually agree that an application may be processed in a longer period than set forth in subsection (1) of this section. SECTION 4. In Colorado Revised Statutes, 29-27404, amend (1) and (2) introductory portion; and add (3) as follows: 29-27404. Permit process. (1) (a) For small cell networks involving multiple individual small cell facilities within the jurisdiction of a single local governmentENTITY, the local government ENTITY shall allow the applicant, at the applicant's discretion, to file a consolidated application and receive a single permit for the small cell network instead of filing separate applications for each individual small cell facility. (b) FOR A CONSOLIDATED APPLICATION FILED PURSUANT TO SUBSECTION (1)(a) OF THIS SECTION, EACH SMALL CELL FACILITY WITHIN THE CONSOLIDATED APPLICATION REMAINS SUBJECT TO REVIEW FOR COMPLIANCE WITH OBJECTIVE REQUIREMENTS AND APPROVAL AS PROVIDED IN THIS ARTICLE 27. THE LOCAL GOVERNMENT'S DENIAL OF ANY INDIVIDUAL SMALL CELL FACILITY IS NOT A BASIS TO DENY THE CONSOLIDATED APPLICATION AS A WHOLE OR ANY OTHER SMALL CELL FACILITY INCORPORATED WITHIN THE CONSOLIDATED APPLICATION. (2) If a wireless service provider applies to LOCATE OR collocate several wireless service facilities within the jurisdiction of a single local government ENTITY, the local government ENTITY shall: (3) THE SITING, MOUNTING, PLACEMENT, CONSTRUCTION, AND OPERATION OF A SMALL CELL FACILITY OR A SMALL CELL NETWORK IS A PAGE 4 -HOUSE BILL 17-1193 PERMITTED USE BY RIGHT IN ANY ZONE. SECTION 5. In Colorado Revised Statutes, amend 38-5.5-102 as follows: 38-5.5-102. Definitions. As used in this ARTICLE 5.5, unless the context otherwise requires: (1) 'Broadband" or "broadband service" has the same meaning as set forth in 7 U.S.C. sec. 950bb (b)(1) as of August 6, 2014, and includes "cable service", as defined in 47 U.S.C. sec. 522 (6) as of August 6, 2014. " (2) 'Broadband facility" means any infrastructure used to deliver broadband service or for the provision of broadband service. " (3) 'Broadband provider" means a person that provides broadband service, and includes a "cable operator", as defined in 47 U.S.C. sec. 522 (5) as of August 6, 2014. (4) "COLLOCATION" HAS THE SAME MEANING AS SET FORTH IN SECTION 29-27-402 (3). (-%.7j (5) "Political subdivision" OR "LOCAL GOVERNMENT ENTITY" means a county; city and county; city; town; service authority; school district; local improvement district; law enforcement authority; water, sanitation, fire protection, metropolitan, irrigation, drainage, or other special district; or any other kind of municipal, quasi -municipal, or public corporation organized pursuant to law. M (6) "Public highway" or "highway" for purposes of this mfick ARTICLE 5.5 includes all roads, streets, and alleys and all other dedicated rights-of-way and utility easements of the state or any of its political subdivisions, whether located within the boundaries of a political subdivision or otherwise. (7) "SMALL CELL FACILITY" HAS THE SAME MEANING AS SET FORTH IN SECTION 29-27-402 (4). (8) "SMALL CELL NETWORK" HAS THE SAME MEANING ASSET FORTH IN SECTION 29-27402 (5). PAGE 5 -HOUSE BILL 17-1193 (3) (9) "Telecommunications provider" or -"provider" means a person that provides telecommunications service, as defined in section 40-15-102 (29), tom.$: with the exception of cable services as defined by section 602 (5) ofthe federal "Cable Communications Policy Act of 1984", 47 U.S.C. sec. 522 (6), pursuant to authority granted by the public utilities commission of this state or by the federal communications commission. "Telecommunications provider" or"pioroidzr't does not mean a person or business using antennas, support towers, equipment, and buildings used to transmit high power over -the -air broadcast of AM and FM radio, VHF and UHF television, and advanced television services, including high definition television. The term "telecommunications provider" is synonymous with "telecommunication provider". SECTION 6. In Colorado Revised Statutes, amend 38-5.5-103 as follows: 38-5.5-103. Use of public highways - discrimination prohibited - content regulation prohibited. (1) (a) Any domestic or foreign telecommunications provider or broadband provider authorized to do business under the laws of this state shall -havc HAS the right to construct, maintain, and operate conduit, cable, switches, and related appurtenances and facilities, AND COMMUNICATIONS AND BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELL NETWORKS, along, across, upon, ABOVE, and under any public highway in this state, subject to thernrntisiens-of this articic ARTICLE 5.5 and of article 1.5 of title 9. E:is., and (b) The construction, maintenance, operation, and regulation of such THE facilities DESCRIBED IN SUBSECTION (1)(a) OF THIS SECTION, including the right to occupy and utilize the public rights-of-way, by telecommunications providers and broadband providers are hereby deciared to -be matters of statewide concern. Such THE facilities shall be so constructed and maintained SO as not to obstruct or hinder the usual travel on such A highway. (2) No A political subdivision shall NOT discriminate among or grant a preference to competing telecommunications providers OR BROADBAND PROVIDERS in the issuance of permits or the passage of any ordinance for the use of its rights-of-way, nor create or erect any unreasonable requirements for entry to the rights-of-way for sack THE PAGE 6 -HOUSE BILL 17-1193 providers. (3) No A political subdivision shall NOT regulate A telecommunications pioviden PROVIDER OR A BROADBAND PROVIDER based upon the content or type of signals that are carried or capable of being carried over the provider's facilities; except that nothing in this subsection (3) shall be construed -to -prevent such PREVENTS regulation by a political subdivision when the authority to so regulate has been granted to the political subdivision under federal law. SECTION 7. In Colorado Revised Statutes, amend 38-5.5-104 as follows: 38-5.5-104. Right-of-way across state land. Any domestic or foreign telecommunications provider OR BROADBAND PROVIDER authorized to do business under the laws of this state HAS the right to construct, maintain, and operate lines of communication, switches, and related facilities, AND COMMUNICATIONS AND BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELL NETWORKS, and obtain A permanent right-of-way therefor FOR THE FACILITIES over, upon, under, and across all public lands owned by or under the control of the state, upon the payment of smh just compensation and upon compliance with smh reasonable conditions as May -be-required-fiq the state board of land commissioners MAY REQUIRE. SECTION 8. In Colorado Revised Statutes, add 38-5.5-104.5 as follows: 38-5.5-104.5. Use of local government entity structures. (1) EXCEPT AS PROVIDED IN SUBSECTION (2) OF THIS SECTION AND SUBJECT TO THE REQUIREMENTS AND LMTATIONS OF THIS ARTICLE 5.5, SECTIONS 29-27403 AND 29-27-404, AND A LOCAL GOVERNMENT ENTITY'S POLICE POWERS, A TELECOMMUNICATIONS PROVIDER OR A BROADBAND PROVIDER HAS THE RIGHT TO LOCATE OR COLLOCATE SMALL CELL FACILITIES OR SMALL CELL NETWORKS ON THE LIGHT POLES, LIGHT STANDARDS, TRAFFIC SIGNALS, OR UTILITY POLES IN THE RIGHTS-OF-WAY OWNED BY THE LOCAL GOVERNMENT ENTITY; EXCEPT THAT, A SMALL CELL FACILITY OR A SMALL CELL NETWORK SHALL NOT BE LOCATED OR MOUNTED ON ANY APPARATUS, POLE, OR SIGNAL WITH TOLLING COLLECTION OR ENFORCEMENT EQUIPMENT ATTACHED. PAGE 7 -HOUSE BILL 17-1193 (2) IF, AT ANY TDAE, THE CONSTRUCTION, INSTALLATION, OPERATION, OR MAINTENANCE OF A SMALL CELL FACILITY ON A LOCAL GOVERNMENTENTITY'S LIGHT POLE, LIGHT STANDARD, TRAFFIC SIGNAL, OR UTILITY POLE FAILS TO COMPLY WITH APPLICABLE LAW, THE LOCAL GOVERNMENT ENTITY, BY PROVIDING THE TELECOMMUNICATIONS PROVIDER OR THE BROADBAND PROVIDER NOTICE AND A REASONABLE OPPORTUNITY TO CURE THE NONCOMPLIANCE, MAY: (a) CAUSE THE ATTACHMENT ON THE AFFECTED STRUCTURE TO BE REMOVED; AND (b) PROHIBIT FUTURE, NONCOMPLIANT USE OF THE LIGHT POLE, LIGHT STANDARD, TRAFFIC SIGNAL, OR UTILITY POLE. (3) (a) EXCEPT AS PROVIDED IN SUBSECTIONS (3)(b) AND (3)(c) OF THIS SECTION, A LOCAL GOVERNMENT ENTITY SHALL NOT IMPOSE ANY FEE OR REQUIRE ANY APPLICATION OR PERMIT FOR THE INSTALLATION, PLACEMENT, OPERATION, MAINTENANCE, OR REPLACEMENT OF MICRO WIRELESS FACILITIES THAT ARE SUSPENDED ON CABLE OPERATOR -OWNED CABLES OR LINES THAT ARE STRUNG BETWEEN EXISTING UTILITY POLES IN COMPLIANCE WITH NATIONAL SAFETY CODES. (b) A LOCAL GOVERNMENT ENTITY WITH A MUNICIPAL OR COUNTY CODE THAT REQUIRES AN APPLICATION OR PERMIT FOR THE INSTALLATION OF MICRO WIRELESS FACILITIES MAY, BUT IS NOT REQUIRED TO, CONTINUE THE APPLICATION OR PERMIT REQUIREMENT SUBSEQUENT TO THE EFFECTIVE DATE OF THIS SECTION. (c) A LOCAL GOVERNMENT ENTITY MAY REQUIRE A SINGLE -USE RIGHT-OF-WAY PERMIT IF THE INSTALLATION, PLACEMENT, OPERATION, MAINTENANCE, OR REPLACEMENT OF MICRO WIRELESS FACILITIES: (I) INVOLVES WORKING WITHIN A HIGHWAY TRAVEL LANE OR REQUIRES THE CLOSURE OF A HIGHWAY TRAVEL LANE; LINE; (II) DISTURBS THE PAVEMENTORA SHOULDER, ROADWAY, OR DITCH (III) INCLUDES PLACEMENT ON LIMITED ACCESS RIGHTS-OF-WAY; OR PAGE 8 -HOUSE BILL 17-1193 (IV) REQUIRES ANY SPECIFIC PRECAUTIONS TO ENSURE THE SAFETY OF THE TRAVELING PUBLIC; THE PROTECTION OF PUBLIC INFRASTRUCTURE; OR THE OPERATION OF PUBLIC INFRASTRUCTURE; AND SUCH ACTIVITIES EITHER WERE NOT AUTHORIZED IN, OR WILL BE CONDUCTED IN A TIME, PLACE, OR MANNER THAT IS INCONSISTENT WITH, THE APPROVAL TERMS OF THE EXISTING PERMIT FOR THE FACILITY OR STRUCTURE UPON WHICH THE MICRO WIRELESS FACILITY IS ATTACHED. SECTION 9. In Colorado Revised Statutes, amend 38-5.5-105 as follows: 38-5.5-105. Power of companies to contract. Any domestic or foreign telecommunications provider shal�hm a OR BROADBAND PROVIDER HAS'I'D power to contract with any person= INDIVIDUAL; corporation; OR the owner of any lands, oz-miy franchise, easement, or interest therein over or under which the provider's conduits; cable; switches; acrd COMMUNICATIONS OR BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELL NETWORKS; OR related appurtenances and facilities are proposed to be laid or created for the right-of-way for the construction, maintenance, and operation of such THE facilities and OR for the erection, maintenance, occupation, and operation of offices at suitable distances for the public accommodation. SECTION 10. In Colorado Revised Statutes, amend 38-5.5-106 as follows: 38-5.5-106. Consent necessary for use of streets. (1) (a) in This wticle shali-bc-construed -to ARTICLE 5.5 DOES NOT authorize any telecommunications provider OR BROADBAND PROVIDER to erect, WITHIN A POLITICALSUBDIVISION, any poles or construct any COMMUNICATIONS OR BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELL NETWORKS; conduit; cable; switch; or related appurtenances and facilities along, through, in, upon, under, or over any public highway within -a- political -subdivision without first obtaining the consent of the authorities having power to give the consent of such THE political subdivision. (b) A telecommunications provider OR BROADBAND PROVIDER that, on or before April 12, JULY 1, 2017, either has obtained consent of the political subdivision having power to give such consent or is lawfully PAGE 9 -HOUSE BILL 17-1193 occupying a public highway in a political subdivision sfrali NEED not be requhtd-to apply for additional or continued consent of such THE political subdivision under this section. (c) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, APOLITICAL SUBDIVISION'S CONSENT GIVEN TO A TELECOMMUNICATIONS PROVIDER OR A BROADBAND PROVIDER TO ERECT OR CONSTRUCT ANY POLES, OR TO LOCATE OR COLLOCATE COMMUNICATIONS AND BROADBAND FACILITIES ON VERTICAL STRUCTURES IN A RIGHT-OF-WAY, DOES NOT EXTEND TO THE LOCATION OF NEW FACILITIES OR TO THE ERECTION OR CONSTRUCTION OF NEW POLES IN A RIGHT-OF-WAY NOT SPECIFICALLY REFERENCED IN THE GRANT OF CONSENT. (2) (a) THE consent OF A POLITICAL SUBDIVISION for the use of a public highway within ITS JURISDICTION shall be based upon a lawful exercise of the ITS police power of -such political subdivision and shall not be unreasonably withheld. nor (b) A POLITICAL SUBDIVISION shall NOT CREATE any preference or disadvantage be-cicatcd through the granting or withholding of such ITS consent. A POLITICAL SUBDIVISION'S DECISION THAT A VERTICAL STRUCTURE IN THE RIGHT-OF-WAY, INCLUDING A VERTICAL STRUCTURE OWNED BY A MUNICIPALITY, LACKS SPACE OR LOAD CAPACITY FOR COMMUI)CATIONS OR BROADBAND FACILITIES, OR THAT THE NUMBER OF ADDITIONAL VERTICAL STRUCTURES IN THE RIGHTS-OF-WAY SHOULD BE REASONABLY LIMITED, CONSISTENT WITH PROTECTION OF PUBLIC HEALTH, SAFETY, AND WELFARE, DOES NOT CREATE A PREFERENCE FOR OR DISADVANTAGE ANY TELECOMMUNICATIONS PROVIDER OR BROADBAND PROVIDER, PROVIDED THAT SUCH DECISION DOES NOT HAVE THE EFFECT OF PROHIBITING A PROVIDER'S ABILITY TO PROVIDE SERVICE WITHIN THE SERVICE AREA OF THE PROPOSED FACILITY. SECTION 11. In Colorado Revised Statutes, 38-5.5-107, amend (7) as follows: 38-5.5-107. Permissible taxes, fees, and charges. (7) As used in this section, "public highway" or "highway" as otherwise defined in section 38-5.5-102 (-2) (6) does not include excess and remainder rights-of-way under the department of transportation's jurisdiction. PAGE 10 -HOUSE BILL 17-1193 SECTION 12. In Colorado Revised Statutes, amend 38-5.5-108 as follows: 38-5.5-108. Pole attachment agreements - limitations on required payments. (1) No NEITHERA LOCAL GOVERNMENT ENTITY NOR A municipally owned utility shall request or receive from a telecommunications provider, BROADBAND PROVIDER, ora cable television provider, as defined in section 602 (5) of the federal "Cable Communications Policy Act of 1984", in exchange for permission to attach SMALL CELL FACILITIES, BROADBAND DEVICES, OR telecommunications devices to poles OR STRUCTURES IN A RIGHT-OF-WAY, any payment in excess of the amount that would be authorized if the LOCAL GOVERNMENT ENTITY OR municipally owned utility were regulated pursuant to 47 U.S.C. sec. 224, as amended. (2) No A municipality shall NOT request or receive from a telecommunications provider ORA BROADBAND PROVIDER, in exchange for or as a condition upon a grant of permission to attach telecommunications OR BROADBAND devices to poles, any in-kind payment. SECTION 13. Effective date - applicability. This act takes effect July 1, 2017, and applies to permit applications received on or after said date. SECTION 14. Safety clause. The general assembly hereby finds, PAGE 11 -HOUSE BILL 17-1193 determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety. SPEAKER OF THE HOUSE OF REPRESENTATIVES PRESIDENT OF THE SENATE Marilyn EdUs Effie Am► CHIEF CLERK OF THE HOUSE SEC OF REPRESENTATIVES THE SENATE APPROVED � 0( 0� l lj l y- John W. OR OF THE STATE PAGE 12 -HOUSE BILL 17-1193 City of Wheat Rd PLANNING COMMISSION C..m' uwTY DFVFL0PMFNF LEGISLATIVE ITEM STAFF REPORT MEETING DATE: June 1, 2017 TITLE: AN ORDINANCE AMENDING CHAPTER 26 OF THE WHEAT RIDGE CODE OF LAWS TO REGULATE AND ALLOW SMALL CELL COMMERCIAL MOBILE RADIO SERVICE (CMRS) FACILITIES CASE NO. ZOA-17-03 ® PUBLIC HEARING ® CODE CHANGE ORDINANCE Case Manager: Kenneth Johnstone, Community Development Director and Lauren Mikulak, Senior Planner Date of Preparation: May 26, 2017 SUMMARY: During the 2017 Colorado state legislative session, the legislature adopted, and the governor signed, House Bill 17-1193 pertaining to small cell wireless service infrastructure. As it pertains to local governments, the bill does two significant things: 1. Makes such facilities a use -by -right in all zoning districts; and 2. Allows them to locate in public rights-of-way (ROW) and on utility and traffic signal poles in those locations, and in public utility easements, with some limitations and subject to City review and approval. Based on this action, staff recommends the City adopt local regulations pertaining to the design parameters and approval processes for such facilities, particularly when they might propose to locate in the public ROW. The bill is effective July 1, 2017, and staff has received some inquiries from the small cell industry, potentially interested in making application for facilities in the City ROW. As such, staff recommends prompt action to ensure the City has the ability to proactively regulate their design and location, particularly when wishing to locate in the ROW. BACKGROUND: Since the 1996 adoption of the Federal Telecommunications Act, both the federal and state governments have placed some limitations on the manner in which local governments regulate the installation of Commercial Mobile Radio Services (CMRS) facilities. In addition to the previously mentioned new state regulations pertaining to small cell facilities, the FCC is also considering rulemaking that would limit the manner in which such facilities can be regulated at a local level. City staff has provided comment to the FCC on the draft regulations. The City has generally been permissive in regulating the industry, while maintaining reasonable design standards that ensure such facilities blend in with the community's built environment. ZOA-17-03/ Small Cell CMRS Facilities Attachment 3 Substantively, the draft ordinance would achieve the following: • Define "small cell CMRS facilities" in line with state and federal definitions; which are primarily based on a defined maximum size • Comply with the new legislation by allowing small cell facilities as a use by right in all zoning districts and allow them to locate in public rights of way and utility districts under certain design and location parameters • Regulate the design of said facilities on private property in a manner similar to how all other CMRS facilities are regulated • Regulate the design of said facilities in public rights of way and utility easements as follows: o Prioritize the location of small cell facilities such that they generally go on existing utility poles or secondarily on new utility poles designed to mimic the appearance of any other existing utility poles in the vicinity o Minimize the number of facilities by requiring a minimum separation of 1000 feet, which is the equivalent of approximately two (2) blocks. o Establish a permitting process for facilities when locating in public rights of way The City most recently updated our CMRS regulations late in 2016. This update was done principally to comply with updated Federal Communications Commission (FCC) regulations stipulating maximum local government review timeframes. City Council reviewed the draft ordinance pertaining to "small cell facilities" at a study session on May 15 and directed staff to proceed forward to package for Council's consideration at 1 st Reading on May 22. City Council approved this ordinance on 1St Reading On May 22 and set the public hearing for June 12. A Planning Commission recommendation to City Council is required for all amendments to Chapter 26. This compressed timeline allows the ordinance to go into effect prior to the July 1 effective date of the legislation, at which time, the City may quickly receive applications for permits in our rights of way. RECOMMENDED MOTION: "I move to recommend approval of the proposed ordinance amending Chapter 26 concerning the design, location and approval process for small cell CMRS facilities." Exhibits Draft Ordinance House Bill 17-1193 ZOA-09-01/ Residential Density in Planned Development Districts CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER WOODEN COUNCIL BILL NO. 09 ORDINANCE NO. Series 2017 TITLE: AN ORDINANCE AMENDING CHAPTER 26 OF THE WHEAT RIDGE CODE OF LAWS TO REGULATE AND ALLOW SMALL CELL COMMERCIAL MOBILE RADIO SERVICE (CMRS) FACILITIES WHEREAS, the City of Wheat Ridge, Colorado, is a Colorado home rule municipality, duly organized and existing pursuant to Section 6 of Article XX of the Colorado Constitution; and WHEREAS, pursuant to its home rule authority and C.R.S. § 31-23-101, the City, acting through its City Council is authorized to adopt ordinances for the protection of the public health, safety or welfare; and WHEREAS, in the exercise of this authority the Council has previously adopted Section 26-615 of the Wheat Ridge Code of Laws concerning commercial mobile radio service facilities; and WHEREAS, the Council wishes to amend Section 26-615 to address changes in state law affecting "small cell" facilities and to make conforming amendments in connection therewith; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 26-615 of the Code, concerning commercial mobile radio service facilities, is hereby amended as follows: Sec. 26-615. — Commercial mobile radio service (CMRS) facilities. A. Purpose and intent. The purpose and intent of this section 26-615 is to accommodate the communication needs of residents and businesses while protecting the public health, safety, and general welfare of the community. These regulations are necessary in order to: 1. Facilitate the provision of wireless telecommunication services to the residents and businesses of the city. 2. Minimize adverse impacts of facilities through careful design, siting and screening standards. 3. Encourage and maximize colocation and the use of existing and approved towers, buildings, and other structures to accommodate new wireless telecommunication antennas in order to reduce the number of towers needed to serve the community. 4. Provide specific regulations related to the review processes for CMRS facilities. Attachment 4 1:3 C. 5. Align the review and approval process for CMRS facilities with the FCC and any other agency of the federal government with the authority to regulate CMRS facilities. Applicability. The standards contained in this section shall apply to all applications for any CMRS facility. The applicant shall demonstrate in writing that its proposed CMRS facility meets all applicable standards and provisions of the code. Pre- existing CMRS facilities shall not be required to meet the requirements of this section, other than the requirements of subsection E. Changes and additions to pre-existing CMRS facilities must meet the applicable requirements of this section. Review and approval process. Proposed CMRS facilities shall be reviewed pursuant to the following procedures depending upon the facility type and/or proposed change: 1. Review procedure a. Building- or structure -mounted facilities in all zone districts shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. b. Roof -mounted facilities in all zone districts shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. c. New freestanding or alternative tower CMRS facilities must receive a special use permit, pursuant to sections 26-114, 26-204 and 26-1111. d. New freestanding or alternative tower CMRS facilities in all planned development zone districts (including planned residential districts) unless specifically listed or shown as such in the outline development plan, also require amendment of the outline development plan pursuant to Article III. At the sole discretion of the community development director, new freestanding or alternative tower CMRS facilities may be reviewed as a special use pursuant to sections 26- 114, 26-204 and 26-309. e. Applications for colocation on any existing facility shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. f. SMALL CELL CMRS FACILITIES AND NETWORKS IN PUBLIC RIGHTS-OF-WAY AND EASEMENTS SHALL BE REVIEWED BY THE PUBLIC WORKS DEPARTMENT AND SHALL REQUIRE A PERMIT UNDER SECTION 21-101, ET. SEQ.. g. SMALL CELL CMRS FACILITIES AND NETWORKS ON PRIVATE PROPERTY SHALL BE REVIEWED BY THE COMMUNITY DEVELOPMENT DEPARTMENT THROUGH A BUILDING PERMIT APPLICABLE FOR COMPLIANCE WITH THE REQUIREMENTS FOR SUCH FACILITIES. 2. Approval process a. The city shall review and act upon the application within the following time periods: Attachment 4 i. Within 30 days the city will give written notice of incompleteness if so determined, specifying the code section(s) that requires such missing information. This determination pauses the remaining deadlines until a complete application is filed. ii. Within 60 days the city will act on applications that are not a substantial change. iii. Within 90 days the city will act on APPLICATIONS FOR SMALL CELL FACILITIES OR colocation applications that are not a substantial increase in the size of a tower. iv. Within 150 days the city will act on applications for new CMRS facilities, colocation applications that are a substantial increase in the size of the tower or substantial increase of an existing CMRS facility. b. The final action of the city on any CMRS application shall be in writing and shall advise the applicant of the reasons for approval, approval with conditions, or denial. D. Standards for all CMRS facilities. The following are standards for all CMRS facilities. 1. Colocation. The shared use of existing freestanding or roof-mounted CMRS facilities shall be preferred to the construction of new facilities in order to minimize adverse visual impacts associated with the proliferation of towers. a. No CMRS application to construct a new freestanding or roof-mounted CMRS facility shall be approved unless the applicant demonstrates to the reasonable satisfaction of the city that no existing CMRS facility within a reasonable distance, regardless of municipal boundaries, can accommodate the applicant's needs. Evidence submitted to demonstrate that no existing facility can accommodate the applicant's proposed CMRS facility shall consist of one or more of the following: i. No existing CMRS facilities are located within the geographic area required to meet the applicant's coverage demands. ii. Existing CMRS facilities or structures are not of sufficient height to meet the applicant's coverage demands and cannot be extended to such height. iii. Existing CMRS facilities or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment. iv. Existing CMRS facilities or structures do not have adequate space on which proposed equipment can be placed so it can function effectively and reasonably. v. The applicant's proposed antenna would cause electromagnetic interference with the antennas on the existing CMRS facility, or the antennas on the existing facility would cause interference with the applicant's proposed antenna. vi. The applicant demonstrates that there are other compelling limiting factors, including but not limited to economic factors, that render CMRS facilities or structures unsuitable. Attachment 4 b. No CMRS facility owner or operator shall unreasonably exclude a telecommunication competitor from using the same facility or location. Upon request by the city, the owner or operator shall provide evidence and a written statement to explain why colocation is not possible at a particular facility or site. c. If a telecommunication competitor attempts to collocate a CMRS facility on an existing or approved CMRS facility or location, and the parties cannot reach an agreement, the city may require a third-party technical study to be completed at the applicant's expense to determine the feasibility of colocation. d. Applications for new freestanding CMRS facilities shall provide evidence that the facility can accommodate colocation of additional carriers. 2. Federal requirements. All CMRS facilities shall meet the current standards and regulations of the FAA, the FCC, and any other agency of the federal government with the authority to regulate CMRS facilities. Failure to meet such revised standards and regulations shall constitute grounds for revocation of city approvals and removal of the facility at the owner's expense. 3. Safety standards. All CMRS facilities shall conform to the requirements of the international building code, and national electrical code, as applicable. 4. Abandonment. CMRS facilities which are abandoned by nonuse, disconnection of power service, equipment removal or loss of lease for greater than six (6) months shall be removed by the CMRS facility owner. Should the owner fail to remove the facilities, the city may do so at its option, and the costs thereof shall be a charge against the owner and recovered by certification of the same to the county treasurer for collection as taxes in the manner provided by code section 2-93, or by any other means available under article x of chapter 26. 5. Third party review. a. CMRS providers use various methodologies and analysis tools, including geographically based computer software, to determine the specific technical parameters of CMRS facilities, such as expected coverage area, antenna configuration and topographic constraints that affect signal paths. In certain instances there may be a need for expert review by a third party of the technical data submitted by the CMRS provider. The city may require such a technical review to be paid for by the applicant for a CMRS facility. The selection of the third party expert may be by mutual agreement between the applicant and the city or at the discretion of the city, with a provision for the applicant and interested parties to comment on the proposed expert and review its qualifications. The expert review is intended to be a site-specific review of technical aspects of the CMRS facilities and not a subjective review of the site selection. The expert review of the technical submission shall address the following: i. The accuracy and completeness of the submission; Attachment 4 ii. The applicability of analysis techniques and methodologies; iii. The validity of conclusions reached; iv. Any specific technical issues designated by the city. b. Based on the results of the third party review, the city may require changes to the application for the CMRS facility that comply with the recommendation of the expert. 6. All CMRS facilities are accessory uses to the structure upon which they are placed or to the primary use of the property on which they are constructed. WITH THE EXCEPTION OF SMALL CELL FACILITIES, no CMRS facility shall be located on a vacant lot devoid of any primary or main building. 7. Siting of CMRS facilities in residential areas. The city encourages the siting of CMRS facilities in nonresidential areas. a. The city prohibits freestanding CMRS facilities in the following zone districts: i. Residential-One (R-1), ii. Residential-One A (R-1 A), iii. Residential-One B (R-1 B), iv. Residential-One C (R-1 C), v. Residential-Two (R-2), vi. Residential-Two A (R-2A), vii. Residential-Three (R-3), viii. Residential-Three A (R-3A), ix. Agricultural-One (A-1), x. Agricultural-Two (A-2), and A. Mixed Use-Neighborhood (MU-N) zone districts. b. The city prohibits all CMRS facilities on properties where the principal use is a single or two-family dwelling. c. Alternative tower CMRS facilities may be located on a property containing a non-residential use, regardless of underlying zoning. d. Building, structure or roof-mounted CMRS facilities may be located on a property containing a nonresidential or multi-family use, regardless of underlying zoning. e. AkeMatffiye tower StFUGtUFe6 may be IGGated OR a ge wt!, -- f. SMALL CELL FACILITIES ARE PERMITTED IN ALL ZONE DISTRICTS. E. Standards for freestanding and alternative tower CMRS facilities. Freestanding and alternative tower CMRS facilities are subject to the following requirements and shall be evaluated as a special use. 1. Freestanding CMRS facilities shall be visually screened from adjacent residential development and public rights-of-way. 2. Freestanding and alternative tower CMRS facilities shall be permitted only as an accessory use, and are subject to accessory use setback development standards in the applicable zone district. 3. Freestanding and alternative tower CMRS facilities shall not exceed the permitted height for the principal use on the subject property. Attachment 4 4. Freestanding CMRS facilities shall not be permitted between the principal structure and the street. F. Standards for building or structure -mounted CMRS facilities. Building or structure - mounted CMRS facilities are subject to the following requirements and shall be evaluated as part of the community development department's review process. 1. Such facilities shall be architecturally compatible with and textured and colored to match the building or structure to which they are attached. 2. The antenna shall be mounted as flush to the wall as technically possible. The maximum protrusion of such facilities from the building or structure face to which they are attached shall be two (2) feet. 3. Panel antennae shall not extend above the building wall or parapet to which they are mounted. 4. Whip antennae shall extend no more than ten (10) feet above the highest point of the building or structure to which they are attached. G. Standards for roof -mounted CMRS facilities. Roof -mounted CMRS facilities are subject to the following requirements and shall be evaluated as part of community development department's review process. 1. All roof -mounted CMRS facilities and accessory equipment shall be set back from the roof or parapet edge so that visibility from the street or adjacent residential properties is minimized to the greatest extent possible. 2. If roof -mounted equipment is visible from the street or adjacent residential properties, CMRS facilities and accessory equipment shall be screened by materials that are architecturally compatible with and colored to match the building or structure to which they are attached. 3. No roof -mounted facility, including antenna or accessory equipment, shall exceed twelve (12) feet in height, as measured from the roof deck. 4. Roof -mounted accessory equipment shall not be permitted on a sloped roof, unless it can be demonstrated that it is not visible from the street or adjacent residential areas. H. STANDARDS FOR SMALL CELL FACILITIES AND NETWORKS. 4: APPLICABLE REQUIREMENTS ON PRIVATE PROPERTY. SMALL CELL FACILITIES AND SMALL CELL NETWORKS ON PRIVATE PROPERTY SHALL COMPLY IN ALL RESPECTS WITH THE REQUIREMENTS OF THE PRECEDING SUBSECTIONS E, F, OR G. THIS SECTION ADDI'CAQI C TO ALL `MRS FACILITIES, WITH THE FOLLOWING OWING EXCEPTIONS; a. SETBACK REQUIREMENTS; AND b. DESIGN REQUIREMENTS 2. APPLICABLE REQUIREMENTS IN PUBLIC RIGHTS-OF-WAY. SMALL CELL FACILITIES AND SMALL CELL NETWORKS IN PUBLIC RIGHTS- OF-WAY SHALL COMPLY IN ALL RESPECTS WITH THE FOLLOWING REQUIREMENTS: a. LOCATION. SMALL CELL FACILITIES ARE PERMITTED IN CITY RIGHTS-OF-WAY, UPON FACILITIES IN THESE RIGHTS-OF-WAY AND ON PUBLIC EASEMENTS OWNED BY THE CITY UNDER THE FOLLOWING PRIORITY: Attachment 4 is FIRST, ON A CITY -OWNED UTILITY POLE, WHICH SHALL BE REMOVED AND REPLACED WITH A POLE DESIGNED TO CONTAIN ALL ANTENNAE AND EQUIPMENT WITHIN THE POLE TO CONCEAL ANY GROUND-BASED SUPPORT EQUIPMENT AND OWNERSHIP OF WHICH POLE IS CONVEYED TO THE CITY. ii. SECOND, A CITY -OWNED UTILITY POLE WITH ATTACHMENT OF THE SMALL CALL FACILITIES IN A CONFIGURATION APPROVED BY THE CITY. iii, THIRD, ON A THIRD -PARTY OWNED UTILITY POLE, (WITH THE CONSENT OF THE OWNER THEREOF), WITH ATTACHMENT OF THE SMALL CELL FACILITIES IN A CONFIGURATION APPROVED BY THE CITY. iv. FOURTH, ON A TRAFFIC SIGNAL POLE OR MAST ARM IN A CONFIGURATION APPROVED BY THE CITY, OR IN THE CASE OF A CDOT FACILITY, BY CDOT. v. FIFTH, ON A FREESTANDING OR GROUND -MOUNTED FACILITY WHICH MEETS THE DEFINITION OF AND REQUIREMENTS FOR AN ALTERNATIVE TOWER STRUCTURE IN A LOCATION AND CONFIGURATION APPROVED BY THE CITY. b. HEIGHT. ALL SMALL CELL FACILITIES SHALL NOT EXCEED TWO FEET ABOVE THE LIGHT POLE, TRAFFIC SIGNAL OR OTHER FACILITY OR STRUCTURE TO WHICH THEY ARE ATTACHED, OR THE MAXIMUM HEIGHT IN THE RELEVANT ZONE DISTRICT, WHICHEVER IS LESS. WHEN NEW UTILITY POLES ARE PROPOSED AS AN ALTERNATIVE TOWER, THEIR HEIGHT SHALL BE SIMILAR TO EXISTING UTILITY/LIGHT POLES IN THE VICINITY. c_ SPACING. NO SMALL CELL FACILITY SHALL BE LOCATED WITHIN ONE THOUSAND FEET (1000 FT) OF ANY OTHER SUCH FACILITY. d. DESIGN. SMALL CELL FACILITIES SHALL BE DESIGNED TO BLEND WITH AND BE CAMOUFLAGED IN RELATION TO THE STRUCTURE UPON WHICH THEY ARE LOCATED (E.G.: PAINTED TO MATCH THE STRUCTURE OR SAME MATERIAL AND COLOR AS ADJACENT UTILITY POLES). e. PERMITTING. SMALL CELL FACILITIES AND NETWORKS SHALL MAKE APPLICATION FOR A PERMIT FOR WORK IN THE RIGHT-OF- WAY UNDER CODE SECTION 21-11, ET. SEQ., AND FOR LOCATION AND MAINTENANCE OF SUCH FACILITY SHALL MAKE APPLICATION FOR A PERMIT FOR USE OF THE PUBLIC RIGHT OF WAY UNDER CODE SECTION 21-101, ET SEQ. SMALL CELL FACILITIES AND NETWORKS SHALL MAKE APPLICATION FOR LOCATION ON PRIVATE PROPERTY THROUGH THE BUILDING PERMIT PROCESS. THE CITY MAY ACCEPT APPLICATIONS FOR A Attachment 4 J SMALL CELL NETWORK, PROVIDED EACH SMALL CELL FACILITY SHALL BE SEPARATELY REVIEWED. f INDEMNIFICATION. THE OPERATOR OF A SMALL CELL FACILITY WHICH IS PERMITTED TO LOCATE ON A CITY -OWNED UTILITY POLE, TRAFFIC SIGNAL OR OTHER STRUCTURE OWNED BY THE CITY SHALL, AS A CONDITION OF PERMIT APPROVAL, INDEMNIFY THE CITY FROM AND AGAINST ALL LIABILITY AND CLAIMS ARISING AS A RESULT OF THAT ATTACHMENT, INCLUDING REPAIR AND REPLACEMENT OF DAMAGED POLES AND EQUIPMENT, IN A FORM APPROVED BY THE CITY ATTORNEY. g. BONDING. ALL PERMITS FOR LOCATION OF SMALL CELL FACILITIES ON REAL PROPERTY NOT OWNED BY THE SMALL CELL PERMITTEE SHALL INCLUDE AS A CONDITION OF APPROVAL A BOND, IN FORM APPROVED BY THE CITY ATTORNEY, TO GUARANTEE PAYMENT FOR ANY DAMAGES TO THE REAL PROPERTY AND REMOVAL OF THE FACILITY UPON ITS ABANDONMENT. I PERMIT EXPIRATION. A SHALL EXPIRE CONSTRUCTION INITIATED. NINE (9) OF TH EPERMIT FOR A SMALL CELL FACILITY MONTHS AFTER APPROVAL UNLESS PERMITTED STRUCTURE HAS BEEN Standards for ground -mounted accessory equipment. Ground -mounted accessory equipment that is associated with a freestanding, roof -mounted or building - mounted CMRS facility are subject to the following requirements and shall be evaluated with the associated CMRS facility application. 1. Ground -mounted accessory equipment shall be subject to the accessory structure setback requirements in the underlying zone district. 2. Ground -mounted accessory equipment or buildings containing accessory equipment shall not exceed 12 feet in height. 3. Ground -mounted accessory equipment not fully enclosed in a building shall be fully screened from adjacent residential properties and public rights-of- way. 4. Buildings containing ground -mounted accessory equipment shall be architecturally compatible with the existing structures on the property and character of the neighborhood. Definitions. Alternative Tower CMRS facility. An existing or proposed structure that is compatible with the natural setting and surrounding structures and that camouflages or conceals the presence of the antennae and can be used to house or mount CMRS antenna. Examples include manmade trees, clock towers, bell steeples, light poles, silos, existing utility poles, existing utility transmission towers and other similar alternative designed structures. Attachment 4 2. Tower. Any freestanding structure designed and constructed primarily for the purpose of supporting one (1) or more Federal Communications Commission - licensed or authorized antennae, including self-supporting lattice towers, guy towers and monopole towers, radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers and other similar structures. The term also includes any antenna or antenna array attached to the tower structure. 3. Substantially Change. A modification which substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria, including a single change or a series of changes over time whether made by a single owner or operator or different owners/operators over time, when viewed against the initial approval for the support structure. The following are considered substantial changes: a. For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater; b. For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the Tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet; c. For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, or more than four cabinets; or, for towers in the public rights- of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure; d. It entails any excavation or deployment outside the current site e. It would defeat the concealment elements of the eligible support structure; or f. It does not comply with conditions associated with the original siting approval for the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in paragraphs a through a of this definition. Attachment 4 Section 2. The following definitions are hereby deleted from Section 26-123 and inserted within Section 26-615 under a new paragraph I: Building or structure -mounted commercial mobile radio service facility. A CMRS facility in which antenna are mounted to an existing structure (e.g., water tower, light pole, steeple, etc.) or building face. CDOT COLORADO DEPARTMENT OF TRANSPORTATION. Commercial mobile radio service (CMRS) accessory building or cabinet. An unmanned building or cabinet used to house equipment associated with a CMRS facility. Commercial mobile radio service (CMRS) site. An unmanned facility consisting of equipment for the reception, switching and transmission of wireless telecommunications, including, but not limited to, personal communications service (PCS), enhanced specialized mobile radio (ESMR), paging, cellular telephone and similar technologies. Freestanding commercial mobile radio service (CMRS) facility. A CMRS facility that consists of a stand-alone support facility (monopole and/or lattice structure), antenna, associated equipment, accessory buildings and equipment cabinets. Roof -mounted commercial mobile radio service (CMRS) facility. A CMRS facility in which antenna are mounted on an existing building roof. SMALL CELL CMRS FACILITY MEANS EITHER: 1. A PERSONAL WIRELESS SERVICE FACILITY AS DEFINED BY THE FEDERAL TELECOMMUNICATIONS ACT OF 1996," AS AMENDED AS OF AUGUST 6, 2014; OR 2. A WIRELESS SERVICE FACILITY THAT MEETS BOTH OF THE FOLLOWING QUALIFICATIONS: a. EACH ANTENNA IS LOCATED INSIDE AN ENCLOSURE OF NO MORE THAN THREE CUBIC FEET IN VOLUME OR, IN THE CASE OF AN ANTENNA THAT HAS EXPOSED ELEMENTS, THE ANTENNA AND ALL OF ITS EXPOSED ELEMENTS COULD FIT WITHIN AN IMAGINARY ENCLOSURE OF NO MORE THAN THREE CUBIC FEET; AND b. PRIMARY EQUIPMENT ENCLOSURES ARE NOT LARGER THAN SEVENTEEN CUBIC FEET IN VOLUME. THE FOLLOWING ASSOCIATED EQUIPMENT MAY BE LOCATED OUTSIDE OF THE PRIMARY EQUIPMENT ENCLOSURE AND, IF SO LOCATED, IS NOT INCLUDED IN THE CALCULATION OF EQUIPMENT VOLUME: ELECTRIC METER, CONCEALMENT, TELECOMMUNICATIONS DEMARCATION BOX, GROUND-BASED ENCLOSURES, BACK-UP POWER SYSTEMS, GROUNDING EQUIPMENT, POWER TRANSFER SWITCH, AND CUT-OFF SWITCH. Attachment 4 SMALL CELL CMRS NETWORK. A COLLECTION OF INTERRELATED SMALL CELL FACILITIES DESIGNED TO DELIVER WIRELESS SERVICE. Section 3. Severability, Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 4. Effective Date. This Ordinance shall take effect upon adoption and signature by the Mayor and City Clerk, as permitted by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 8 to 0 on this 22nd day of May, 2017, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for June 12, 2017 at 7:00 p.m. in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of to , this day of 2017. SIGNED by the Mayor on this day of Joyce Jay, Mayor ATTEST: Janelle Shaver, City Clerk Approved as to Form .2017. Gerald E. Dahl, City Attorney First Publication: May 25, 2017 Second Publication: Wheat Ridge Transcript Effective Date: Attachment 4 Published: Wheat Ridge Transcript and www.ci.wheatridge.co.us Attachment 4 City of W heat -Midge ITEM NO: o� < DATE: May 22, 2017 REQUEST FOR CITY COUNCIL ACTION i TITLE: COUNCIL BILL NO. 09-2017 - AN ORDINANCE AMENDING CHAPTER 26 OF THE WHEAT RIDGE CODE OF LAWS TO REGULATE AND ALLOW SMALL CELL COMMERCIAL MOBILE RADIO SERVICE (CMRS) FACILITIES ❑ PUBLIC HEARING ® ORDINANCES FOR 1 ST READING (05/22/2017) ❑ BIDS/MOTIONS ❑ ORDINANCES FOR 2ND READING (06/12/2017) ❑ RESOLUTIONS QUASI-JUDICIAL: ❑ YES r Community Development Director o • City Manager4 ISSUE: During the 2017 Colorado state legislative session, the legislature adopted, and the governor signed, House Bill 17-1193 pertaining to small cell wireless service infrastructure. As it pertains to local governments, the bill does two significant things: 1. Makes such facilities a use -by -right in all zoning districts; and 2. Allows them to locate in public rights-of-way (ROW) and on utility and traffic signal poles in those locations, and in public utility easements, with some limitations and subject to City review and approval. Based on this action, staff recommends the City adopt local regulations pertaining to the design parameters and approval processes for such facilities. The bill is effective July 1, 2017, and staff has received some inquiries from the small cell industry, potentially interested in making application for facilities in the City ROW. As such, staff recommends prompt action to ensure the City has the ability to proactively regulate their design and location, particularly when wishing to locate in the ROW. PRIOR ACTION: Late in 2016, the City modified its regulations regarding commercial mobile radio service Council Action Form — Small Cell CMRS Facilities May 22, 2017 Page 2 (CMRS) facilities. This update was done principally to comply with updated Federal Communications Commission (FCC) regulations stipulating maximum local government review timeframes. City Council reviewed the draft ordinance at a study session on May 15 and directed staff to proceed forward to package for Council's consideration at 1St Reading on May 22. Based on discussion at that meeting, staff has added language in Section 1 of the ordinance, adding Section 26-615.H.9 regarding "Permit Expiration." FINANCIAL IMPACT: The City collects building permit application fees for all new CMRS facilities. In some cases, new facilities require review and approval of a special use permit, which also have small application fees. When requesting to locate in public ROWS, the state legislation allows municipalities to assess application fees, which cannot exceed strictly direct cost recovery. Cumulatively, these are minor revenue sources for the City. BACKGROUND: Since the 1996 adoption of the Federal Telecommunications Act, both the federal and state governments have placed some limitations on the manner in which local governments regulate the installation of CMRS facilities. In addition to the previously mentioned new state regulations pertaining to small cell facilities, the FCC is also considering rulemaking that would limit the manner in which such facilities can be regulated at a local level. City staff has provided comment to the FCC on the draft regulations. The City has generally been permissive in regulating the industry, while maintaining reasonable design standards that ensure such facilities blend in with the community's built environment. RECOMMENDATIONS: Staff has met internally to consider modifications to local regulations that will comply with the new state legislation and provide reasonable design standards and a review process for small cell wireless facilities. Staff believes this can be accomplished with an ordinance proposing relatively minor amendments to Chapter 26 (Zoning and Development). Given that such facilities are now mandated by the state to be allowed in public rights-of-way, staff believes it is particularly important to update City regulations to address the design parameters and location of such facilities. In order to have such regulations in place by the effective date of the legislation (July 1, 2017), staff proposes the following schedule for consideration of an ordinance: May 22 City Council 1St reading June 1 Planning Commission public hearing and recommendation June 12 City Council 2nd reading/public hearing RECOMMENDED MOTION: "I move to approve Council Bill No. 09-2017, an ordinance amending Chapter 26 of the Wheat Ridge Code of Laws to regulate and allow small cell commercial mobile radio service (CMRS) facilities on first reading, order it published, public hearing set for Council Action Form — Small Cell CMRS Facilities May 22, 2017 Page 3 Monday, June 12 at 7:00 p.m. in City Council Chambers, and that it take effect immediately." Or, "I move to postpone indefinitely the ordinance amending Chapter 26 of the Wheat Ridge Code of Laws to regulate and allow small cell commercial mobile radio service (CMRS) facilities for the following reason(s) " REPORT PREPARED BY; Kenneth Johnstone, Director of Community Development Patrick Goff, City Manager ATTACHMENTS: 1. Council Bill No. 09-2017 2. House Bill 17-1193 CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER COUNCIL BILL NO. 09 ORDINANCE NO. Series 2017 TITLE: AN ORDINANCE AMENDING CHAPTER 26 OF THE WHEAT RIDGE CODE OF LAWS TO REGULATE AND ALLOW SMALL CELL COMMERCIAL MOBILE RADIO SERVICE (CMRS) FACILITIES WHEREAS, the City of Wheat Ridge, Colorado, is a Colorado home rule municipality, duly organized and existing pursuant to Section 6 of Article XX of the Colorado Constitution; and WHEREAS, pursuant to its home rule authority and C.R.S. § 31-23-101, the City, acting through its City Council is authorized to adopt ordinances for the protection of the public health, safety or welfare; and WHEREAS, in the exercise of this authority the Council has previously adopted Section 26-215 of the Wheat Ridge Code of Laws concerning commercial mobile radio service facilities; and WHEREAS, the Council wishes to amend Section 26-615 to address changes in state law affecting "small cell" facilities and to make conforming amendments in connection therewith; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 26-615 of the Code, concerning commercial mobile radio service facilities, is hereby amended as follows: Sec. 26-615. — Commercial mobile radio service (CMRS) facilities. A. Purpose and intent. The purpose and intent of this section 26-615 is to accommodate the communication needs of residents and businesses while protecting the public health, safety, and general welfare of the community. These regulations are necessary in order to: 1. Facilitate the provision of wireless telecommunication services to the residents and businesses of the city. 2. Minimize adverse impacts of facilities through careful design, siting and screening standards. 3. Encourage and maximize colocation and the use of existing and approved towers, buildings, and other structures to accommodate new wireless telecommunication antennas in order to reduce the number of towers needed to serve the community. 4. Provide specific regulations related to the review processes for CMRS facilities. -1- Attachment 1 1:3 C 5. Align the review and approval process for CMRS facilities with the FCC and any other agency of the federal government with the authority to regulate CMRS facilities. Applicability. The standards contained in this section shall apply to all applications for any CMRS facility. The applicant shall demonstrate in writing that its proposed CMRS facility meets all applicable standards and provisions of the code. Pre- existing CMRS facilities shall not be required to meet the requirements of this section, other than the requirements of subsection E. Changes and additions to pre-existing CMRS facilities must meet the applicable requirements of this section. Review and approval process. Proposed CMRS facilities shall be reviewed pursuant to the following procedures depending upon the facility type and/or proposed change: 1. Review procedure a. Building- or structure -mounted facilities in all zone districts shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. b. Roof -mounted facilities in all zone districts shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. c. New freestanding or alternative tower CMRS facilities must receive a special use permit, pursuant to sections 26-114, 26-204 and 26-1111. d. New freestanding or alternative tower CMRS facilities in all planned development zone districts (including planned residential districts) unless specifically listed or shown as such in the outline development plan, also require amendment of the outline development plan pursuant to Article III. At the sole discretion of the community development director, new freestanding or alternative tower CMRS facilities may be reviewed as a special use pursuant to sections 26- 114, 26-204 and 26-309. e. Applications for colocation on any existing facility shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. f. SMALL CELL CMRS FACILITIES AND NETWORKS IN PUBLIC RIGHTS-OF-WAY AND EASEMENTS SHALL BE REVIEWED BY THE PUBLIC WORKS DEPARTMENT AND SHALL REQUIRE A PERMIT UNDER SECTION 21-101, ET. SEQ.. g. SMALL CELL CMRS FACILITIES AND NETWORKS ON PRIVATE PROPERTY SHALL BE REVIEWED BY THE COMMUNITY DEVELOPMENT DEPARTMENT THROUGH A BUILDING PERMIT APPLICABLE FOR COMPLIANCE WITH THE REQUIREMENTS FOR SUCH FACILITIES. 2. Approval process a. The city shall review and act upon the application within the following time periods: -2- i. Within 30 days the city will give written notice of incompleteness if so determined, specifying the code section(s) that requires such missing information. This determination pauses the remaining deadlines until a complete application is filed. ii. Within 60 days the city will act on applications that are not a substantial change. iii. Within 90 days the city will act on APPLICATIONS FOR SMALL CELL FACILITIES OR colocation applications that are not a substantial increase in the size of a tower. iv. Within 150 days the city will act on applications for new CMRS facilities, colocation applications that are a substantial increase in the size of the tower or substantial increase of an existing CMRS facility. b. The final action of the city on any CMRS application shall be in writing and shall advise the applicant of the reasons for approval, approval with conditions, or denial. D. Standards for all CMRS facilities. The following are standards for all CMRS facilities. 1. Colocation. The shared use of existing freestanding or roof-mounted CMRS facilities shall be preferred to the construction of new facilities in order to minimize adverse visual impacts associated with the proliferation of towers. a. No CMRS application to construct a new freestanding or roof-mounted CMRS facility shall be approved unless the applicant demonstrates to the reasonable satisfaction of the city that no existing CMRS facility within a reasonable distance, regardless of municipal boundaries, can accommodate the applicant's needs. Evidence submitted to demonstrate that no existing facility can accommodate the applicant's proposed CMRS facility shall consist of one or more of the following: i. No existing CMRS facilities are located within the geographic area required to meet the applicant's coverage demands. ii. Existing CMRS facilities or structures are not of sufficient height to meet the applicant's coverage demands and cannot be extended to such height. iii. Existing CMRS facilities or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment. iv. Existing CMRS facilities or structures do not have adequate space on which proposed equipment can be placed so it can function effectively and reasonably. v. The applicant's proposed antenna would cause electromagnetic interference with the antennas on the existing CMRS facility, or the antennas on the existing facility would cause interference with the applicant's proposed antenna. vi. The applicant demonstrates that there are other compelling limiting factors, including but not limited to economic factors, that render CMRS facilities or structures unsuitable. -3- b. No CMRS facility owner or operator shall unreasonably exclude a telecommunication competitor from using the same facility or location. Upon request by the city, the owner or operator shall provide evidence and a written statement to explain why colocation is not possible at a particular facility or site. c. If a telecommunication competitor attempts to collocate a CMRS facility on an existing or approved CMRS facility or location, and the parties cannot reach an agreement, the city may require a third -party technical study to be completed at the applicant's expense to determine the feasibility of colocation. d. Applications for new freestanding CMRS facilities shall provide evidence that the facility can accommodate colocation of additional carriers. 2. Federal requirements. All CMRS facilities shall meet the current standards and regulations of the FAA, the FCC, and any other agency of the federal government with the authority to regulate CMRS facilities. Failure to meet such revised standards and regulations shall constitute grounds for revocation of city approvals and removal of the facility at the owner's expense. 3. Safety standards. All CMRS facilities shall conform to the requirements of the international building code, and national electrical code, as applicable. 4. Abandonment. CMRS facilities which are abandoned by nonuse, disconnection of power service, equipment removal or loss of lease for greater than six (6) months shall be removed by the CMRS facility owner. Should the owner fail to remove the facilities, the city may do so at its option, and the costs thereof shall be a charge against the owner and recovered by certification of the same to the county treasurer for collection as taxes in the manner provided by code section 2-93, or by any other means available under article x of chapter 26. 5. Third party review. a. CMRS providers use various methodologies and analysis tools, including geographically based computer software, to determine the specific technical parameters of CMRS facilities, such as expected coverage area, antenna configuration and topographic constraints that affect signal paths. In certain instances there may be a need for expert review by a third party of the technical data submitted by the CMRS provider. The city may require such a technical review to be paid for by the applicant for a CMRS facility. The selection of the third party expert may be by mutual agreement between the applicant and the city or at the discretion of the city, with a provision for the applicant and interested parties to comment on the proposed expert and review its qualifications. The expert review is intended to be a site-specific review of technical aspects of the CMRS facilities and not a subjective review of the site selection. The expert review of the technical submission shall address the following: i. The accuracy and completeness of the submission; IN ii. The applicability of analysis techniques and methodologies; iii. The validity of conclusions reached; iv. Any specific technical issues designated by the city. b. Based on the results of the third party review, the city may require changes to the application for the CMRS facility that comply with the recommendation of the expert. 6. All CMRS facilities are accessory uses to the structure upon which they are placed or to the primary use of the property on which they are constructed. WITH THE EXCEPTION OF SMALL CELL FACILITIES, no CMRS facility shall be located on a vacant lot devoid of any primary or main building. 7. Siting of CMRS facilities in residential areas. The city encourages the siting of CMRS facilities in nonresidential areas. a. The city prohibits freestanding CMRS facilities in the following zone districts: i. Residential -One (R-1), ii. Residential -One A (R -1A), iii. Residential -One B (R-113), iv. Residential -One C (R -11C), v. Residential -Two (R-2), vi. Residential -Two A (R -2A), vii. Residential -Three (R-3), viii. Residential -Three A (R -3A), ix. Agricultural -One (A-1), x. Agricultural -Two (A-2), and A. Mixed Use -Neighborhood (MU -N) zone districts. b. The city prohibits all CMRS facilities on properties where the principal use is a single or two-family dwelling. c. Alternative tower CMRS facilities may be located on a property containing a non-residential use, regardless of underlying zoning. d. Building, structure or roof -mounted CMRS facilities may be located on a property containing a nonresidential or multi -family use, regardless of underlying zoning. e. Alternative tower structures may be located on a property f. SMALL CELL FACILITIES ARE PERMITTED IN ALL ZONE DISTRICTS. E. Standards for freestanding and alternative tower CMRS facilities. Freestanding and alternative tower CMRS facilities are subject to the following requirements and shall be evaluated as a special use. 1. Freestanding CMRS facilities shall be visually screened from adjacent residential development and public rights-of-way. 2. Freestanding and alternative tower CMRS facilities shall be permitted only as an accessory use, and are subject to accessory use setback development standards in the applicable zone district. 3. Freestanding and alternative tower CMRS facilities shall not exceed the permitted height for the principal use on the subject property. -5- 4. Freestanding CMRS facilities shall not be permitted between the principal structure and the street. F. Standards for building or structure -mounted CMRS facilities. Building or structure - mounted CMRS facilities are subject to the following requirements and shall be evaluated as part of the community development department's review process. 1. Such facilities shall be architecturally compatible with and textured and colored to match the building or structure to which they are attached. 2. The antenna shall be mounted as flush to the wall as technically possible. The maximum protrusion of such facilities from the building or structure face to which they are attached shall be two (2) feet. 3. Panel antennae shall not extend above the building wall or parapet to which they are mounted. 4. Whip antennae shall extend no more than ten (10) feet above the highest point of the building or structure to which they are attached. G. Standards for roof -mounted CMRS facilities. Roof -mounted CMRS facilities are subject to the following requirements and shall be evaluated as part of community development department's review process. 1. All roof -mounted CMRS facilities and accessory equipment shall be set back from the roof or parapet edge so that visibility from the street or adjacent residential properties is minimized to the greatest extent possible. 2. If roof -mounted equipment is visible from the street or adjacent residential properties, CMRS facilities and accessory equipment shall be screened by materials that are architecturally compatible with and colored to match the building or structure to which they are attached. 3. No roof -mounted facility, including antenna or accessory equipment, shall exceed twelve (12) feet in height, as measured from the roof deck. 4. Roof -mounted accessory equipment shall not be permitted on a sloped roof, unless it can be demonstrated that it is not visible from the street or adjacent residential areas. H. STANDARDS FOR SMALL CELL FACILITIES AND NETWORKS. 1. APPLICABLE REQUIREMENTS. SMALL CELL FACILITIES AND SMALL CELL NETWORKS, SHALL COMPLY IN ALL RESPECTS WITH THE REQUIREMENTS OF THIS SECTION APPLICABLE TO ALL CMRS FACILITIES, WITH THE FOLLOWING EXCEPTIONS: a. SETBACK REQUIREMENTS; AND b. DESIGN REQUIREMENTS 2. LOCATION. SMALL CELL FACILITIES ARE PERMITTED IN CITY RIGHTS- OF-WAY, UPON FACILITIES IN THESE RIGHTS-OF-WAY AND ON PUBLIC EASEMENTS OWNED BY THE CITY UNDER THE FOLLOWING PRIORITY: a. FIRST, ON A CITY -OWNED UTILITY POLE, WHICH SHALL BE REMOVED AND REPLACED WITH A POLE DESIGNED TO CONTAIN ALL ANTENNAE AND EQUIPMENT WITHIN THE POLE TO CONCEAL ANY GROUND-BASED SUPPORT EQUIPMENT AND OWNERSHIP OF WHICH POLE IS CONVEYED TO THE CITY. In b. SECOND, A CITY -OWNED UTILITY POLE WITH ATTACHMENT OF THE SMALL CALL FACILITIES IN A CONFIGURATION APPROVED BY THE CITY. c. THIRD, ON A THIRD -PARTY OWNED UTILITY POLE, (WITH THE CONSENT OF THE OWNER THEREOF), WITH ATTACHMENT OF THE SMALL CELL FACILITIES IN A CONFIGURATION APPROVED BY THE CITY. d. FOURTH, ON A TRAFFIC SIGNAL POLE OR MAST ARM IN A CONFIGURATION APPROVED BY THE CITY, OR IN THE CASE OF A CDOT FACILITY, BY CDOT. e. FIFTH, ON A FREESTANDING OR GROUND -MOUNTED FACILITY WHICH MEETS THE DEFINITION OF AND REQUIREMENTS FOR AN ALTTERNATIVE TOWER STRUCTURE IN A LOCATION AND CONFIGURATION APPROVED BY THE CITY. 3. HEIGHT. ALL SMALL CELL FACILITIES SHALL NOT EXCEED TWO FEET ABOVE THE LIGHT POLE, TRAFFIC SIGNAL OR OTHER FACILITY OR STRUCTURE TO WHICH THEY ARE ATTACHED, OR THE MAXIMUM HEIGHT IN THE RELEVANT ZONE DISTRICT, WHICHEVER IS LESS. WHEN NEW UTILITY POLES ARE PROPOSED AS AN ALTERNATIVE TOWER, THEIR HEIGHT SHALL BE SIMILAR TO EXISTING UTILITY/LIGHT POLES IN THE VICINITY. 4. SPACING. NO SMALL CELL FACILITY SHALL BE LOCATED WITHIN ONE THOUSAND FEET (1000 FT) OF ANY OTHER SUCH FACILITY. 5. DESIGN. SMALL CELL FACILITIES SHALL BE DESIGNED TO BLEND WITH AND BE CAMOUFLAGED IN RELATION TO THE STRUCTURE UPON WHICH THEY ARE LOCATED (E.G.: PAINTED TO MATCH THE STRUCTURE OR SAME MATERIAL AND COLOR AS ADJACENT UTILITY POLES). 6. PERMITTING. SMALL CELL FACILITIES AND NETWORKS SHALL MAKE APPLICATION FOR A PERMIT FOR WORK IN THE RIGHT-OF-WAY UNDER CODE SECTION 21-11, ET. SEQ., AND FOR LOCATION AND MAINTENANCE OF SUCH FACILITY SHALL MAKE APPLICATION FOR A PERMIT FOR USE OF THE PUBLIC RIGHT OF WAY UNDER CODE SECTION 21-101, ET SEQ. SMALL CELL FACILITIES AND NETWORKS SHALL MAKE APPLICATION FOR LOCATION ON PRIVATE PROPERTY THROUGH THE BUILDING PERMIT PROCESS. THE CITY MAY ACCEPT APPLICATIONS FOR A SMALL CELL NETWORK, PROVIDED EACH SMALL CELL FACILITY SHALL BE SEPARATELY REVIEWED. 7. INDEMNIFICATION. THE OPERATOR OF A SMALL CELL FACILITY WHICH IS PERMITTED TO LOCATE ON A CITY -OWNED UTILITY POLE, TRAFFIC SIGNAL OR OTHER STRUCTURE OWNED BY THE CITY SHALL, AS A CONDITION OF PERMIT APPROVAL, INDEMNIFY THE CITY FROM AND AGAINST ALL LIABILITY AND CLAIMS ARISING AS A RESULT OF THAT ATTACHMENT, INCLUDING REPAIR AND -7- REPLACEMENT OF DAMAGED POLES AND EQUIPMENT, IN A FORM APPROVED BY THE CITY ATTORNEY. 8. BONDING. ALL PERMITS FOR LOCATION OF SMALL CELL FACILITIES ON REAL PROPERTY NOT OWNED BY THE SMALL CELL PERMITTEE SHALL INCLUDE AS A CONDITION OF APPROVAL A BOND, IN FORM APPROVED BY THE CITY ATTORNEY, TO GUARANTEE PAYMENT FOR ANY DAMAGES TO THE REAL PROPERTY AND REMOVAL OF THE FACILITY UPON ITS ABANDONMENT. 9. PERMIT EXPIRATION. A PERMIT FOR A SMALL CELL FACILITY SHALL EXPIRE NINE (9) MONTHS AFTER APPROVAL UNLESS CONSTRUCTION OF THE PERMITTED STRUCTURE HAS BEEN INITIATED. Standards for ground -mounted accessory equipment. Ground -mounted accessory equipment that is associated with a freestanding, roof -mounted or building - mounted CMRS facility are subject to the following requirements and shall be evaluated with the associated CMRS facility application. 1. Ground -mounted accessory equipment shall be subject to the accessory structure setback requirements in the underlying zone district. 2. Ground -mounted accessory equipment or buildings containing accessory equipment shall not exceed 12 feet in height. 3. Ground -mounted accessory equipment not fully enclosed in a building shall be fully screened from adjacent residential properties and public rights-of- way. 4. Buildings containing ground -mounted accessory equipment shall be architecturally compatible with the existing structures on the property and character of the neighborhood. J. Definitions. 1. Alternative Tower CMRS facility. An existing or proposed structure that is compatible with the natural setting and surrounding structures and that camouflages or conceals the presence of the antennae and can be used to house or mount CMRS antenna. Examples include manmade trees, clock towers, bell steeples, light poles, silos, existing utility poles, existing utility transmission towers and other similar alternative designed structures. 2. Tower. Any freestanding structure designed and constructed primarily for the purpose of supporting one (1) or more Federal Communications Commission - licensed or authorized antennae, including self-supporting lattice towers, guy towers and monopole towers, radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers and other similar structures. The term also includes any antenna or antenna array attached to the tower structure. 3. Substantially Change. A modification which substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria, including a single change or a series of changes over time whether made by a single owner or operator or different owners/operators over time, when viewed against the initial approval for the support structure. The following are considered substantial changes: a. For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater; b. For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the Tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet; c. For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, or more than four cabinets; or, for towers in the public rights- of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure; d. It entails any excavation or deployment outside the current site e. It would defeat the concealment elements of the eligible support structure; or f. It does not comply with conditions associated with the original siting approval for the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in paragraphs a through a of this definition. Section 2. The following definitions are hereby deleted from Section 26-123 and inserted within Section 26-615 under a new paragraph I: Building or structure -mounted commercial mobile radio service facility. A CMRS facility in which antenna are mounted to an existing structure (e.g., water tower, light pole, steeple, etc.) or building face. CDOT COLORADO DEPARTMENT OF TRANSPORTATION. in Commercial mobile radio service (CMRS) accessory building or cabinet. An unmanned building or cabinet used to house equipment associated with a CMRS facility. Commercial mobile radio service (CMRS) site. An unmanned facility consisting of equipment for the reception, switching and transmission of wireless telecommunications, including, but not limited to, personal communications service (PCS), enhanced specialized mobile radio (ESMR), paging, cellular telephone and similar technologies. Freestanding commercial mobile radio service (CMRS) facility. A CMRS facility that consists of a stand-alone support facility (monopole and/or lattice structure), antenna, associated equipment, accessory buildings and equipment cabinets. Roof -mounted commercial mobile radio service (CMRS) facility. A CMRS facility in which antenna are mounted on an existing building roof. SMALL CELL CMRS FACILITY MEANS EITHER: 1. A PERSONAL WIRELESS SERVICE FACILITY AS DEFINED BY THE FEDERAL TELECOMMUNICATIONS ACT OF 1996," AS AMENDED AS OF AUGUST 6,2014; OR 2. A WIRELESS SERVICE FACILITY THAT MEETS BOTH OF THE FOLLOWING QUALIFICATIONS: a. EACH ANTENNA IS LOCATED INSIDE AN ENCLOSURE OF NO MORE THAN THREE CUBIC FEET IN VOLUME OR, IN THE CASE OF AN ANTENNA THAT HAS EXPOSED ELEMENTS, THE ANTENNA AND ALL OF ITS EXPOSED ELEMENTS COULD FIT WITHIN AN IMAGINARY ENCLOSURE OF NO MORE THAN THREE CUBIC FEET; AND b. PRIMARY EQUIPMENT ENCLOSURES ARE NOT LARGER THAN SEVENTEEN CUBIC FEET IN VOLUME. THE FOLLOWING ASSOCIATED EQUIPMENT MAY BE LOCATED OUTSIDE OF THE PRIMARY EQUIPMENT ENCLOSURE AND, IF SO LOCATED, IS NOT INCLUDED IN THE CALCULATION OF EQUIPMENT VOLUME: ELECTRIC METER, CONCEALMENT, TELECOMMUNICATIONS DEMARCATION BOX, GROUND-BASED ENCLOSURES, BACK-UP POWER SYSTEMS, GROUNDING EQUIPMENT, POWER TRANSFER SWITCH, AND CUT-OFF SWITCH. SMALL CELL CMRS NETWORK. A COLLECTION OF INTERRELATED SMALL CELL FACILITIES DESIGNED TO DELIVER WIRELESS SERVICE. Section 3. Severability, Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. -10- Section 4. Effective Date. This Ordinance shall take effect upon adoption and signature by the Mayor and City Clerk, as permitted by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of to on this day of , 2017, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for , 2017 at 7:00 p.m. in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of to , this day of 12017. SIGNED by the Mayor on this day of Joyce Jay, Mayor ATTEST: Janelle Shaver, City Clerk Approved as to Form , 2017. Gerald E. Dahl, City Attorney First Publication: Second Publication: Wheat Ridge Transcript Effective Date: Published: Wheat Ridge Transcript and www.ci.wheatridge.co.us -11- HOUSE BILL 17-1193 BY REPRESENTATIVE(S) Kraft -Tharp and Becker J., Arndt, Becker K., Danielson, GinaI, Hansen, Hooton, Kennedy, McKean, Melton, Pabon, Van Winkle, Gray, Lontine, Wilson, Duran; also SENATOR(S) Tate and Kerr, Crowder, Donovan, Fields, Garcia, Guzman, Hill, Holbert, Jahn, Kefalas, Lundberg, Marble, Martinez Humenik, Merrifield, Neville T., Priola, Scott, Todd, Williams A., Zenzinger, Grantham. CONCERNING THE INSTALLATION OF SMALL WIRELESS SERVICE INFRASTRUCTURE WITHIN A LOCAL GOVERNMENT'S JURISDICTION, AND, IN CONNECTION THEREWITH, CLARIFYING THAT AN EXPEDITED PERMITITNG PROCESS APPLIES TO SMALL CELL FACILITIES AND SMALL CELL NETWORKS AND THAT THE RIGHTS-OF-WAY ACCESS AFFORDED TELECOMMUNICATIONS PROVIDERS EXTENDS TO BROADBAND PROVIDERS AND TO SMALL CELL FACILITIES AND SMALL CELL NETWORKS. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 29-27401, add (2) as follows: 29-27-401. Legislative declaration. (2) THE GENERAL ASSEMBLY Attachment 2 Capital letters indicate new material added to existing statutes; dashes through words indicate FURTHER FINDS AND DECLARES THAT: (a) SMALL CELL FACILITIES OFTEN MAY BE DEPLOYED MOST EFFECTIVELY IN THE PUBLIC RIGHTS-OF-WAY; AND (b) ACCESS TO LOCAL GOVERNMENT STRUCTURES IS ESSENTIAL TO THE CONSTRUCTION AND MAINTENANCE OF WIRELESS SERVICE FACILITIES OR BROADBAND FACILITIES. SECTION 2. In Colorado Revised Statutes, 29-27-402, amend (1), (4), and (7); and add (1.5), (3.5), and (6.5) as follows: 29-27-402. Definitions. As used in this part 4, unless the context otherwise requires: (1) "Broaclband--facility"-means- any -itfi =tore uset}-to-deli Y et iroadbarid-service-or-fbi theTrovisianrof va&=d-sct v "ANTENNA" MEANS COMMUNICATIONS EQUIPMENT THAT TRANSMITS OR RECEIVES ELECTROMAGNETIC RADIO FREQUENCY SIGNALS USED TO PROVIDE WIRELESS SERVICE. (1.5) 'BROADBAND FACILITY" MEANS ANY INFRASTRUCTURE USED TO DELIVER BROADBAND SERVICE OR FOR THE PROVISION OF BROADBAND SERVICE. (3.5) "MICRO WIRELESS FACILITY" MEANS A SMALL WIRELESS FACILITY THAT IS NO LARGER IN DRAENSIONS THAN TWENTY-FOUR INCHES IN LENGTH, FIFTEEN INCHES IN WIDTH, AND TWELVE INCHES IN HEIGHT AND THAT HAS AN EXTERIOR ANTENNA, IF ANY, THAT IS NO MORE THAN ELEVEN INCHES IN LENGTH. (4) (a) "Small cell facility" means either: (a) (1) A personal wireless service facility as defined by the federal "Telecommunications Act of 1996", as amended as of August 6, 2014; or ft (II) A wireless service facility that meets both of the following qualifications: (f) (A) Each antenna is located inside an enclosure of no more than PAGE 2 -HOUSE BILL 17-1193 three cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than three cubic feet; and "(B) Primary equipment enclosures are no larger than seventeen cubic feet in volume. The following associated equipment may be located outside of the primary equipment enclosure and, if so located, is not included in the calculation of equipment volume: Electric meter, concealment, telecommunications demarcation box, ground-based enclosures, back-up power systems, grounding equipment, power transfer switch, and cut-off switch. (b) "SMALL CELL FACILITY" INCLUDES A MICRO WIRELESS FACILITY. (6.5) "TOWER" MEANS ANY STRUCTURE BUILT FOR THE SOLE OR PRIMARY PURPOSE OF SUPPORTING ANTENNAS LICENSED OR AUTHORIZED BY THE FEDERAL COMMUNICATIONS COMMISSION AND THE ANTENNAS' ASSOCIATED FACILITIES, INCLUDING STRUCTURES THATARE CONSTRUCTED FOR WIRELESS COMMUNICATIONS SERVICES INCLUDING PRIVATE, BROADCAST, AND PUBLIC SAFETY SERVICES; UNLICENSED WIRELESS SERVICES; FIXED WIRELESS SERVICES SUCH AS BACKHAUL; AND THE ASSOCIATED SITE. (7) "Wireless service facility" means a facility for the provision of wireless services; EXCEPT THAT "WIRELESS SERVICE FACILITY" DOES NOT INCLUDE COAXIAL OR FIBER-OPTIC CABLE THAT IS NOT D&VIEDIATELY ADJACENT TO, OR DIRECTLY ASSOCIATED WITH, A PARTICULAR ANTENNA. SECTION 3. In Colorado Revised Statutes, 29-27-403, amend (1) and (3) as follows: 29-27-403. Permit - approval - deadline - exception. (1) A local government may take up to: (a) NINETY DAYS TO PROCESS A COMPLETE APPLICATION FOR: (I) LOCATION OR COLLOCATION OF A SMALL CELL FACILITY OR A SMALL CELL NETWORK; OR (II) REPLACEMENT OR MODIFICATION OF A SMALL CELL FACILITY OR PAGE 3 -HOUSE BILL 17-1193 FACILITIES OR SMALL CELL NETWORK. (a) (b) Ninety days to process a complete application that involves a collocation of a tower, building, structure, or replacement structure OTHER THAN A SMALL CELL FACILITY OR SMALL CELL NETWORK; or (b) (c) One hundred fifty days to process a complete application that involves a new structure or a new wireless service facility, OTHER THAN A SMALL CELL FACILITY OR SMALL CELL NETWORK AND other than a collocation. (3) An applicant and a local government ENTITY may mutually agree that an application may be processed in a longer period than set forth in subsection (1) of this section. SECTION 4. In Colorado Revised Statutes, 29-27404, amend (1) and (2) introductory portion; and add (3) as follows: 29-27404. Permit process. (1) (a) For small cell networks involving multiple individual small cell facilities within the jurisdiction of a single local government ENTITY, the local government ENTITY shall allow the applicant, at the applicant's discretion, to file a consolidated application and receive a single permit for the small cell network instead of filing separate applications for each individual small cell facility. (b) FOR A CONSOLIDATED APPLICATION FILED PURSUANT TO SUBSECTION (1)(a) OF THIS SECTION, EACH SMALL CELL FACILITY WITHIN THE CONSOLIDATED APPLICATION REMAINS SUBJECT TO REVIEW FOR COMPLIANCE WITH OBJECTIVE REQUIREMENTS AND APPROVAL AS PROVIDED IN THIS ARTICLE 27. THE LOCAL GOVERNMENT'S DENIAL OF ANY INDIVIDUAL SMALL CELL FACILITY IS NOT A BASIS TO DENY THE CONSOLIDATED APPLICATION AS A WHOLE OR ANY OTHER SMALL CELL FACILITY INCORPORATED WITHIN THE CONSOLIDATED APPLICATION. (2) If a wireless service provider applies to LOCATE OR collocate several wireless service facilities within the jurisdiction of a single local government ENTITY, the local government ENTITY shall: (3) THE SITING, MOUNTING, PLACEMENT, CONSTRUCTION, AND OPERATION OF A SMALL CELL FACILITY OR A SMALL CELL NETWORK IS A PAGE 4 -HOUSE BILL 17-1193 PERMITTED USE BY RIGHT IN ANY ZONE. SECTION 5. In Colorado Revised Statutes, amend 38-5.5-102 as follows: 38-5.5-102. Definitions. As used in this mr6ric ARTICLE 5.5, unless the context otherwise requires: (1) 'Broadband" or "broadband service" has the same meaning as set forth in 7 U.S.C. sec. 950bb (b)(1) as of August 6, 2014, and includes "cable service", as defined in 47 U.S.C. sec. 522 (6) as of August 6, 2014. " (2) "Broadband facility" means any infrastructure used to deliver broadband service or for the provision of broadband service. " (3) 'Broadband provider" means a person that provides broadband service, and includes a "cable operator", as defined in 47 U.S.C. sec. 522 (5) as of August 6, 2014. (4) "COLLOCATION" HAS THE SAME MEANING AS SET FORTH IN SECTION 29-27402 (3). " (5) "Political subdivision" OR "LOCAL GOVERNMENT ENTITY" means a county; city and county; city; town; service authority; school district; local improvement district; law enforcement authority; water, sanitation, fire protection, metropolitan, irrigation, drainage, or other special district; or any other kind of municipal, quasi -municipal, or public corporation organized pursuant to law. (-j (6) "Public highway" or "highway" for purposes of this aftichn ARTICLE 5.5 includes all roads, streets, and alleys and all other dedicated rights-of-way and utility easements of the state or any of its political subdivisions, whether located within the boundaries of a political subdivision or otherwise. (7) "SMALL CELL FACILITY" HAS THE SAME MEANING AS SET FORTH IN SECTION 29-27-402 (4). (8) "SMALL CELL NETWORK" HAS THE SAME MEANING ASSET FORTH IN SECTION 29-27-402 (5). PAGE 5 -HOUSE BILL 17-1193 (3) (9) "Telecommunications provider" or "providerJL means a person that provides telecommunications service, as defined in section 40-15-102 (29), with the exception of cable services as defined by section 602 (5) of the federal "Cable Communications Policy Act of 1984", 47 U.S.C. sec. 522 (6), pursuant to authority granted by the public utilities commission of this state or by the federal communications commission. "Telecommunications provider" or"piovvidCLA does not mean a person or business using antennas, support towers, equipment, and buildings used to transmit high power over -the -air broadcast of AM and FM radio, VHF and UHF television, and advanced television services, including high definition television. The term "telecommunications provider" is synonymous with "telecommunication provider". SECTION 6. In Colorado Revised Statutes, amend 38-5.5-103 as follows: 38-5.5-103. Use of public highways - discrimination prohibited - content regulation prohibited. (1) (a) Any domestic or foreign telecommunications provider or broadband provider authorized to do business under the laws of this state shall -havc HAS the right to construct, maintain, and operate conduit, cable, switches, and related appurtenances and facilities, AND COMMUNICATIONS AND BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELL NETWORKS, along, across, upon, ABOVE, and under any public highway in this state, subject to thcrnnyisims-af this article ARTICLE 5.5 and of article 1.5 of title 9. e.R.S.; acid (b) The construction, maintenance, operation, and regulation of such THE facilities DESCRIBED IN SUBSECTION (1)(a) OF THIS SECTION, including the right to occupy and utilize the public rights-of-way, by telecommunications providers and broadband providers are hereby declared tv- m matters of statewide concern. Such THE facilities shall be so constructed and maintained SO as not to obstruct or hinder the usual travel on such A highway. (2) No A political subdivision shall NOT discriminate among or grant a preference to competing telecommunications providers OR BROADBAND PROVIDERS in the issuance of permits or the passage of any ordinance for the use of its rights-of-way, nor create or erect any unreasonable requirements for entry to the rights-of-way for sack THE PAGE 6 -HOUSE BILL 17-1193 providers. (3) No A political subdivision shall NOT regulate A telecommunications ptovidcrs PROVIDER OR A BROADBAND PROVIDER based upon the content or type of signals that are carried or capable of being carried over the provider's facilities; except that nothing in this subsection (3) small -be -construed to-preticnt-such PREVENTS regulation by a political subdivision when the authority to so regulate has been granted to the political subdivision under federal law. SECTION 7. In Colorado Revised Statutes, amend 38-5.5-104 as follows: 38-5.5-104. Right-of-way across state land. Any domestic or foreign telecommunications provider OR BROADBAND PROVIDER authorized to do business under the laws of this state -have HAS the right to construct, maintain, and operate lines of communication, switches, and related facilities, AND COMMUNICATIONS AND BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELL NETWORKS, and obtain A permanent right-of-way tl=rcfor FOR THE FACILITIES over, upon, under, and across all public lands owned by or under the control of the state, upon the payment of such just compensation and upon compliance with su'Ch reasonable conditions as may icgtmed—by the state board of land commissioners MAY REQUIRE. SECTION 8. In Colorado Revised Statutes, add 38-5.5-104.5 as follows: 38-5.5-104.5. Use of local government entity structures. (1) EXCEPT AS PROVIDED IN SUBSECTION (2) OF THIS SECTION AND SUBJECT TO THE REQUIREMENTS AND LIMITATIONS OF THIS ARTICLE 5.5, SECTIONS 29-27403 AND 29-27-404, AND A LOCAL GOVERNMENT ENTITY'S POLICE POWERS, A TELECOMMUNICATIONS PROVIDER OR A BROADBAND PROVIDER HAS THE RIGHT TO LOCATE OR COLLOCATE SMALL CELL FACILITIES OR SMALL CELL NETWORKS ON THE LIGHT POLES, LIGHT STANDARDS, TRAFFIC SIGNALS, OR UTILITY POLES IN THE RIGHTS-OF-WAY OWNED BY THE LOCAL GOVERNMENT ENTITY; EXCEPT THAT, A SMALL CELL FACILITY OR A SMALL CELL NETWORK SHALL NOT BE LOCATED OR MOUNTED ON ANY APPARATUS, POLE, OR SIGNAL WITH TOLLING COLLECTION OR ENFORCEMENT EQUIPMENT ATTACHED. PAGE 7 -HOUSE BILL 17-1193 (2) IF, AT ANY TIME, THE CONSTRUCTION, INSTALLATION, OPERATION, OR MAINTENANCE OF A SMALL CELL FACILITY ON A LOCAL GOVERNMENT ENTITY'S LIGHT POLE, LIGHT STANDARD, TRAFFIC SIGNAL, OR UTILITY POLE FAILS TO COMPLY WITH APPLICABLE LAW, THE LOCAL GOVERNMENT ENTITY, BY PROVIDING THE TELECOMMUNICATIONS PROVIDER OR THE BROADBAND PROVIDER NOTICE AND A REASONABLE OPPORTUNITY TO CURE THE NONCOMPLIANCE, MAY: (a) CAUSE THE ATTACHMENT ON THE AFFECTED STRUCTURE TO BE REMOVED; AND (b) PROHIBIT FUTURE, NONCOMPLIANT USE OF THE LIGHT POLE, LIGHT STANDARD, TRAFFIC SIGNAL, OR UTILITY POLE. (3) (a) EXCEPT AS PROVIDED IN SUBSECTIONS (3)(b) AND (3)(c) OF THIS SECTION, A LOCAL GOVERNMENT ENTITY SHALL NOT IMPOSE ANY FEE OR REQUIRE ANY APPLICATION OR PERMIT FOR THE INSTALLATION, PLACEMENT, OPERATION, MAINTENANCE, OR REPLACEMENT OF MICRO WIRELESS FACILITIES THAT ARE SUSPENDED ON CABLE OPERATOR -OWNED CABLES OR LINES THAT ARE STRUNG BETWEEN EXISTING UTILITY POLES IN COMPLIANCE WITH NATIONAL SAFETY CODES. (b) A LOCAL GOVERNMENT ENTITY WITH A MUNICIPAL OR COUNTY CODE THAT REQUIRES AN APPLICATION OR PERMIT FOR THE INSTALLATION OF MICRO WIRELESS FACILITIES MAY, BUT IS NOT REQUIRED TO, CONTINUE THE APPLICATION OR PERMIT REQUIREMENT SUBSEQUENT TO THE EFFECTIVE DATE OF THIS SECTION. (c) A LOCAL GOVERNMENT ENTITY MAY REQUIRE A SINGLE -USE RIGHT-OF-WAY PERMIT IF THE INSTALLATION, PLACEMENT, OPERATION, MAINTENANCE, OR REPLACEMENT OF MICRO WIRELESS FACILITIES: (I) INVOLVES WORKING WITHIN A HIGHWAY TRAVEL LANE OR REQUIRES THE CLOSURE OF A HIGHWAY TRAVEL LANE; LINE; (II) DISTURBS THE PAVEMENTORA SHOULDER, ROADWAY, OR DITCH (III) INCLUDES PLACEMENT ON LIMITED ACCESS RIGHTS-OF-WAY; OR PAGE 8 -HOUSE BILL 17-1193 (IV) REQUIRES ANY SPECIFIC PRECAUTIONS TO ENSURE THE SAFETY OF THE TRAVELING PUBLIC; THE PROTECTION OF PUBLIC INFRASTRUCTURE; OR THE OPERATION OF PUBLIC INFRASTRUCTURE; AND SUCH ACTIVITIES EITHER WERE NOT AUTHORIZED IN, OR WILL BE CONDUCTED IN A TIME, PLACE, OR MANNER THAT IS INCONSISTENT WITH, THE APPROVAL TERMS OF THE EXISTING PERMIT FOR THE FACILITY OR STRUCTURE UPON WHICH THE MICRO WIRELESS FACILITY IS ATTACHED. SECTION 9. In Colorado Revised Statutes, amend 38-5.5-105 as follows: 38-5.5-105. Power of companies to contract. Any domestic or foreign telecommunications providershall-havv OR BROADBAND PROVIDER HAS THEpowerto contract with anyp mcrrrvr-INDIVIDUAL; corporation; OR the owner of any lands, or -any franchise, easement, or interest therein over or under which the provider's conduits; cable; switches; acrd COMMUNICATIONS OR BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELL NETWORKS; OR related appurtenances and facilities are proposed to be laid or created for the right-of-way for the construction, maintenance, and operation of such THE facilities and OR for the erection, maintenance, occupation, and operation of offices at suitable distances for the public accommodation. SECTION 10. In Colorado Revised Statutes, amend 38-5.5-106 as follows: 38-5.5-106. Consent necessary for use of streets. (1) (a) in This article -shall -bc-vonshued-to ARTICLE 5.5 DOES NOT authorize any telecommunications provider OR BROADBAND PROVIDER to erect, WITHIN A POLITICALSUBDIVISION, any poles or construct any COMMUNICATIONS OR BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELL NETWORKS; conduit; cable; switch; or related appurtenances and facilities along, through, in, upon, under, or over any public highway withurapolitical -subdivision without first obtaining the consent of the authorities having power to give the consent of such THE political subdivision. (b) A telecommunications provider OR BROADBAND PROVIDER that, on or before ApLil-I2, 1996 JULY 1, 2017, either has obtained consent of the political subdivision having power to give Such consent or is lawfully PAGE 9 -HOUSE BILL 17-1193 occupying a public highway in a political subdivision shall NEED not be required -to apply for additional or continued consent of mch THE political subdivision under this section. (c) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A POLITICAL SUBDIVISION'S CONSENT GIVEN TO A TELECOMMUNICATIONS PROVIDER OR A BROADBAND PROVIDER TO ERECT OR CONSTRUCT ANY POLES, OR TO LOCATE OR COLLOCATE COMMUNICATIONS AND BROADBAND FACILITIES ON VERTICAL STRUCTURES IN A RIGHT-OF-WAY, DOES NOT EXTEND TO THE LOCATION OF NEW FACILITIES OR TO THE ERECTION OR CONSTRUCTION OF NEW POLES IN A RIGHT-OF-WAY NOT SPECIFICALLY REFERENCED IN THE GRANT OF CONSENT. (2) (a) THE consent OF A POLITICAL SUBDIVISION for the use of a public highway within ITS JURISDICTION shall be based upon a lawful exercise of the ITS police power of -such -political subdivision and shall not be unreasonably withheld. nor (b) A POLITICAL SUBDIVISION shall NOT CREATE any preference or disadvantage be-ercated through the granting or withholding of such ITS consent. A POLITICAL SUBDIVISION'S DECISION THAT A VERTICAL STRUCTURE IN THE RIGHT-OF-WAY, INCLUDING A VERTICAL STRUCTURE OWNED BY A MUNICIPALITY, LACKS SPACE OR LOAD CAPACITY FOR COMMUNICATIONS OR BROADBAND FACILITIES, OR THAT THE NUMBER OF ADDITIONAL VERTICAL STRUCTURES IN THE RIGHTS-OF-WAY SHOULD BE REASONABLY LIMITED, CONSISTENT WITH PROTECTION OF PUBLIC HEALTH, SAFETY, AND WELFARE, DOES NOT CREATE A PREFERENCE FOR OR DISADVANTAGE ANY TELECOMMUNICATIONS PROVIDER OR BROADBAND PROVIDER, PROVIDED THAT SUCH DECISION DOES NOT HAVE THE EFFECT OF PROHIBITING A PROVIDER'S ABILITY TO PROVIDE SERVICE WITHIN THE SERVICE AREA OF THE PROPOSED FACILITY. SECTION 11. In Colorado Revised Statutes, 38-5.5-107, amend (7) as follows: 38-5.5-107. Permissible taxes, fees, and charges. (7) As used in this section, "public highway" or "highway" as otherwise defined in section 38-5.5-102 M (d) does not include excess and remainder rights-of-way under the department of transportation's jurisdiction. PAGE 10 -HOUSE BILL 17-1193 SECTION 12. In Colorado Revised Statutes, amend 38-5.5-108 as follows: 38-5.5-108. Pole attachment agreements - limitations on required payments. (1) Nv NEITHER A LOCAL GOVERNMENT ENTITY NOR A municipally owned utility shall request or receive from a telecommunications provider, BROADBAND PROVIDER, ora cable television provider, as defined in section 602 (5) of the federal "Cable Communications Policy Act of 1984", in exchange for permission to attach SMALL CELL FACILITIES, BROADBAND DEVICES, OR telecommunications devices to poles OR STRUCTURES IN A RIGHT-OF-WAY, any payment in excess of the amount that would be authorized if the LOCAL GOVERNMENT ENTITY OR municipally owned utility were regulated pursuant to 47 U.S.C. sec. 224, as amended. (2) No A municipality shall NOT request or receive from a telecommunications provider ORA BROADBAND PROVIDER, in exchange for or as a condition upon a grant of permission to attach telecommunications OR BROADBAND devices to poles, any in-kind payment. SECTION 13. Effective date - applicability. This act takes effect July 1, 2017, and applies to permit applications received on or after said date. SECTION 14. Safety clause. The general assembly hereby finds, PAGE 11 -HOUSE BILL 17-1193 determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety. Crisanta Duran SPEAKER OF THE HOUSE OF REPRESENTATIVES Kevin J. Grantham PRESIDENT OF THE SENATE :�e� r Marilyn EdUs �EffieAmee CHIEF CLERK OF THE HOUSE SEC OF REPRESENTATIVES THE SENATE APPROVED PAGE 12 -HOUSE BILL 17-1193 j City of Wheat j,dg,e COMMUNITY DEVELOPMENT Memorandum TO: Mayor and City Council FROM: Kenneth Johnstone, Community Development Director Scott Brink, Public Works Director THROUGH: Patrick Goff, City Manager DATE: May 5, 2017 (for May 15 CC study session) SUBJECT: Commercial Mobile Radio Service regulations pertaining to "Small Cell Facilities" ISSUE: During the 2017 Colorado state legislative session, the legislature adopted, and the governor signed, House Bill 17-1193 pertaining to small cell wireless service infrastructure. As it pertains to local governments, the bill does two significant things: 1. Makes such facilities a use by right in all zoning districts; and 2. Allows them to locate in public rights-of-way (ROW) and on utility and traffic signal poles in those locations, and in public utility easements, with some limitations and subject to City review and approval. Based on this action, staff recommends the City adopt local regulations pertaining to the design parameters and approval processes for such facilities, particularly when they might propose to locate in the public ROW. The bill is effective July 1 and staff has received some inquiries from the small cell industry, potentially wishing to make application for facilities in the City ROW. As such, staff recommends prompt action to ensure the City has the ability to proactively regulate their design and location, particularly when wishing to locate in the ROW. PRIOR ACTION: The City most recently modified its regulations regarding commercial mobile radio service (CMRS) facilities in late 2016. This update was done principally to comply with updated Federal Communications Commission (FCC) regulations stipulating maximum timeframes for local government review. FINANCIAL IMPACT: The City collects building permit application fees for all new CMRS facilities. In some cases, new facilities require review and approval of special use permits, which also have small application fees. When requesting to locate in public ROWs, the state legislation allows municipalities to assess application fees, which cannot exceed strictly direct cost recovery. Cumulatively, these are minor revenue sources for the City. BACKGROUND: Since the 1996 adoption of the Federal Telecommunications Act, both the federal and state governments have placed some limitations on the manner in which local governments regulate the installation of CMRS facilities. In addition to the previously mentioned new state regulations pertaining to small cell facilities, the FCC is also considering rulemaking that would limit the manner in which such facilities can be regulated at a local level. The City has provided comment to the FCC on the draft regulations and has generally been permissive in regulating the industry, though the City maintains reasonable design standards that ensure such facilities blend in with the community's built environment. RECOMMENDATIONS: Staff has met internally to consider modifications to the City's local regulations that will comply with the new state legislation and also provide reasonable design standards and a review process for small cell wireless facilities. Staff believes this can be accomplished with an ordinance proposing relatively minor amendments to Chapter 26 - Zoning and Development (amendments are in Bold and CAPS in the attached proposed ordinance). Given that such facilities are now mandated by the state to be allowed in public rights-of-way, staff believes it is particularly important to update regulations to address the design parameters and location of such facilities. In order to have such regulations in place by the effective date of the legislation (July 1, 2017), staff proposes the following schedule for consideration of an ordinance: • May 22 City Council 1St reading • June 1 Planning Commission public hearing and recommendation • June 12 City Council 2nd reading/public hearing ATTACHMENTS: 1. Draft Ordinance 2. House Bill 17-1193 2 CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER COUNCIL BILL NO. ORDINANCE NO. Series 2017 TITLE: AN ORDINANCE AMENDING CHAPTER 26 OF THE WHEAT RIDGE CODE OF LAWS TO REGULATE AND ALLOW SMALL CELL COMMERCIAL MOBILE RADIO SERVICE (CMRS) FACILITIES WHEREAS, the City of Wheat Ridge, Colorado, is a Colorado home rule municipality, duly organized and existing pursuant to Section 6 of Article XX of the Colorado Constitution; and WHEREAS, pursuant to its home rule authority and C.R.S. § 31-23-101, the City, acting through its City Council is authorized to adopt ordinances for the protection of the public health, safety or welfare; and WHEREAS, in the exercise of this authority the Council has previously adopted Section 26-215 of the Wheat Ridge Code of Laws concerning commercial mobile radio service facilities; and WHEREAS, the Council wishes to amend Section 26-615 to address changes in state law affecting "small cell" facilities and to make conforming amendments in connection therewith; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 26-615 of the Code, concerning commercial mobile radio service facilities, is hereby amended as follows: Sec. 26-615. — Commercial mobile radio service (CMRS) facilities. A. Purpose and intent. The purpose and intent of this section 26-615 is to accommodate the communication needs of residents and businesses while protecting the public health, safety, and general welfare of the community. These regulations are necessary in order to: 1. Facilitate the provision of wireless telecommunication services to the residents and businesses of the city. 2. Minimize adverse impacts of facilities through careful design, siting and screening standards. 3. Encourage and maximize colocation and the use of existing and approved towers, buildings, and other structures to accommodate new wireless telecommunication antennas in order to reduce the number of towers needed to serve the community. 4. Provide specific regulations related to the review processes for CMRS facilities. -1- Attachment 1 C. 5. Align the review and approval process for CMRS facilities with the FCC and any other agency of the federal government with the authority to regulate CMRS facilities. Applicability. The standards contained in this section shall apply to all applications for any CMRS facility. The applicant shall demonstrate in writing that its proposed CMRS facility meets all applicable standards and provisions of the code. Pre- existing CMRS facilities shall not be required to meet the requirements of this section, other than the requirements of subsection E. Changes and additions to pre-existing CMRS facilities must meet the applicable requirements of this section. Review and approval process. Proposed CMRS facilities shall be reviewed pursuant to the following procedures depending upon the facility type and/or proposed change: 1. Review procedure a. Building- or structure -mounted facilities in all zone districts shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. b. Roof -mounted facilities in all zone districts shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. c. New freestanding or alternative tower CMRS facilities must receive a special use permit, pursuant to sections 26-114, 26-204 and 26-1111. d. New freestanding or alternative tower CMRS facilities in all planned development zone districts (including planned residential districts) unless specifically listed or shown as such in the outline development plan, also require amendment of the outline development plan pursuant to Article III. At the sole discretion of the community development director, new freestanding or alternative tower CMRS facilities may be reviewed as a special use pursuant to sections 26- 114, 26-204 and 26-309. e. Applications for colocation on any existing facility shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. f. SMALL CELL CMRS FACILITIES AND NETWORKS IN PUBLIC RIGHTS-OF-WAY AND EASEMENTS SHALL BE REVIEWED BY THE PUBLIC WORKS DEPARTMENT AND SHALL REQUIRE A PERMIT UNDER SECTION 21-101, ET. SEQ.. g. SMALL CELL CMRS FACILITIES AND NETWORKS ON PRIVATE PROPERTY SHALL BE REVIEWED BY THE COMMUNITY DEVELOPMENT DEPARTMENT THROUGH A BUILDING PERMIT APPLICABLE FOR COMPLIANCE WITH THE REQUIREMENTS FOR SUCH FACILITIES. 2. Approval process a. The city shall review and act upon the application within the following time periods: -2- i. Within 30 days the city will give written notice of incompleteness if so determined, specifying the code section(s) that requires such missing information. This determination pauses the remaining deadlines until a complete application is filed. ii. Within 60 days the city will act on applications that are not a substantial change. iii. Within 90 days the city will act on APPLICATIONS FOR SMALL CELL FACILITIES OR colocation applications that are not a substantial increase in the size of a tower. iv. Within 150 days the city will act on applications for new CMRS facilities, coloration applications that are a substantial increase in the size of the tower or substantial increase of an existing CMRS facility. b. The final action of the city on any CMRS application shall be in writing and shall advise the applicant of the reasons for approval, approval with conditions, or denial. D. Standards for all CMRS facilities. The following are standards for all CMRS facilities. 1. Colocation. The shared use of existing freestanding or roof-mounted CMRS facilities shall be preferred to the construction of new facilities in order to minimize adverse visual impacts associated with the proliferation of towers. a. No CMRS application to construct a new freestanding or roof-mounted CMRS facility shall be approved unless the applicant demonstrates to the reasonable satisfaction of the city that no existing CMRS facility within a reasonable distance, regardless of municipal boundaries, can accommodate the applicant's needs. Evidence submitted to demonstrate that no existing facility can accommodate the applicant's proposed CMRS facility shall consist of one or more of the following: i. No existing CMRS facilities are located within the geographic area required to meet the applicant's coverage demands. ii. Existing CMRS facilities or structures are not of sufficient height to meet the applicant's coverage demands and cannot be extended to such height. iii. Existing CMRS facilities or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment. iv. Existing CMRS facilities or structures do not have adequate space on which proposed equipment can be placed so it can function effectively and reasonably. v. The applicant's proposed antenna would cause electromagnetic interference with the antennas on the existing CMRS facility, or the antennas on the existing facility would cause interference with the applicant's proposed antenna. vi. The applicant demonstrates that there are other compelling limiting factors, including but not limited to economic factors, that render CMRS facilities or structures unsuitable. -3- b. No CMRS facility owner or operator shall unreasonably exclude a telecommunication competitor from using the same facility or location. Upon request by the city, the owner or operator shall provide evidence and a written statement to explain why coloration is not possible at a particular facility or site. c. If a telecommunication competitor attempts to collocate a CMRS facility on an existing or approved CMRS facility or location, and the parties cannot reach an agreement, the city may require a third -party technical study to be completed at the applicant's expense to determine the feasibility of coloration. d. Applications for new freestanding CMRS facilities shall provide evidence that the facility can accommodate colocation of additional carriers. 2. Federal requirements. All CMRS facilities shall meet the current standards and regulations of the FAA, the FCC, and any other agency of the federal government with the authority to regulate CMRS facilities. Failure to meet such revised standards and regulations shall constitute grounds for revocation of city approvals and removal of the facility at the owner's expense. 3. Safety standards. All CMRS facilities shall conform to the requirements of the international building code, and national electrical code, as applicable. 4. Abandonment. CMRS facilities which are abandoned by nonuse, disconnection of power service, equipment removal or loss of lease for greater than six (6) months shall be removed by the CMRS facility owner. Should the owner fail to remove the facilities, the city may do so at its option, and the costs thereof shall be a charge against the owner and recovered by certification of the same to the county treasurer for collection as taxes in the manner provided by code section 2-93, or by any other means available under article x of chapter 26. 5. Third party review. a. CMRS providers use various methodologies and analysis tools, including geographically based computer software, to determine the specific technical parameters of CMRS facilities, such as expected coverage area, antenna configuration and topographic constraints that affect signal paths. In certain instances there may be a need for expert review by a third party of the technical data submitted by the CMRS provider. The city may require such a technical review to be paid for by the applicant for a CMRS facility. The selection of the third party expert may be by mutual agreement between the applicant and the city or at the discretion of the city, with a provision for the applicant and interested parties to comment on the proposed expert and review its qualifications. The expert review is intended to be a site-specific review of technical aspects of the CMRS facilities and not a subjective review of the site selection. The expert review of the technical submission shall address the following: i. The accuracy and completeness of the submission; -4- ii. The applicability of analysis techniques and methodologies; iii. The validity of conclusions reached; iv. Any specific technical issues designated by the city. b. Based on the results of the third party review, the city may require changes to the application for the CMRS facility that comply with the recommendation of the expert. 6. All CMRS facilities are accessory uses to the structure upon which they are placed or to the primary use of the property on which they are constructed. WITH THE EXCEPTION OF SMALL CELL FACILITIES, no CMRS facility shall be located on a vacant lot devoid of any primary or main building. 7. Siting of CMRS facilities in residential areas. The city encourages the siting of CMRS facilities in nonresidential areas. a. The city prohibits freestanding CMRS facilities in the following zone districts: i. Residential -One (R-1), ii. Residential -One A (R -1A), iii. Residential -One B (R-1 B), iv. Residential -One C (R-1 C), v. Residential -Two (R-2), vi. Residential -Two A (R -2A), vii. Residential -Three (R-3), viii. Residential -Three A (R -3A), ix. Agricultural -One (A-1), x. Agricultural -Two (A-2), and A. Mixed Use -Neighborhood (MU -N) zone districts. b. The city prohibits all CMRS facilities on properties where the principal use is a single or two-family dwelling. c. Alternative tower CMRS facilities may be located on a property containing a non-residential use, regardless of underlying zoning. d. Building, structure or roof -mounted CMRS facilities may be located on a property containing a nonresidential or multi -family use, regardless of underlying zoning. e. Alternative tower structures may be located on a property f. SMALL CELL FACILITIES ARE PERMITTED IN ALL ZONE DISTRICTS. E. Standards for freestanding and alternative tower CMRS facilities. Freestanding and alternative tower CMRS facilities are subject to the following requirements and shall be evaluated as a special use. 1. Freestanding CMRS facilities shall be visually screened from adjacent residential development and public rights-of-way. 2. Freestanding and alternative tower CMRS facilities shall be permitted only as an accessory use, and are subject to accessory use setback development standards in the applicable zone district. 3. Freestanding and alternative tower CMRS facilities shall not exceed the permitted height for the principal use on the subject property. -5- 4. Freestanding CMRS facilities shall not be permitted between the principal structure and the street. F. Standards for building or structure -mounted CMRS facilities. Building or structure - mounted CMRS facilities are subject to the following requirements and shall be evaluated as part of the community development department's review process. 1. Such facilities shall be architecturally compatible with and textured and colored to match the building or structure to which they are attached. 2. The antenna shall be mounted as flush to the wall as technically possible. The maximum protrusion of such facilities from the building or structure face to which they are attached shall be two (2) feet. 3. Panel antennae shall not extend above the building wall or parapet to which they are mounted. 4. Whip antennae shall extend no more than ten (10) feet above the highest point of the building or structure to which they are attached. G. Standards for roof -mounted CMRS facilities. Roof -mounted CMRS facilities are subject to the following requirements and shall be evaluated as part of community development department's review process. 1. All roof -mounted CMRS facilities and accessory equipment shall be set back from the roof or parapet edge so that visibility from the street or adjacent residential properties is minimized to the greatest extent possible. 2. If roof -mounted equipment is visible from the street or adjacent residential properties, CMRS facilities and accessory equipment shall be screened by materials that are architecturally compatible with and colored to match the building or structure to which they are attached. 3. No roof -mounted facility, including antenna or accessory equipment, shall exceed twelve (12) feet in height, as measured from the roof deck. 4. Roof -mounted accessory equipment shall not be permitted on a sloped roof, unless it can be demonstrated that it is not visible from the street or adjacent residential areas. H. STANDARDS FOR SMALL CELL FACILITIES AND NETWORKS. 1. APPLICABLE REQUIREMENTS. SMALL CELL FACILITIES AND SMALL CELL NETWORKS, SHALL COMPLY IN ALL RESPECTS WITH THE REQUIREMENTS OF THIS SECTION APPLICABLE TO ALL CMRS FACILITIES, WITH THE FOLLOWING EXCEPTIONS: a. SETBACK REQUIREMENTS; AND b. DESIGN REQUIREMENTS 2. LOCATION. SMALL CELL FACILITIES ARE PERMITTED IN CITY RIGHTS- OF-WAY, UPON FACILITIES IN THESE RIGHTS-OF-WAY AND ON PUBLIC EASEMENTS OWNED BY THE CITY UNDER THE FOLLOWING PRIORITY: a. FIRST, ON A CITY -OWNED UTILITY POLE, WHICH SHALL BE REMOVED AND REPLACED WITH A POLE DESIGNED TO CONTAIN ALL ANTENNAE AND EQUIPMENT WITHIN THE POLE TO CONCEAL ANY GROUND-BASED SUPPORT EQUIPMENT AND OWNERSHIP OF WHICH POLE IS CONVEYED TO THE CITY. b. SECOND, A CITY -OWNED UTILITY POLE WITH ATTACHMENT OF THE SMALL CALL FACILITIES IN A CONFIGURATION APPROVED BY THE CITY. c. THIRD, ON A THIRD -PARTY OWNED UTILITY POLE, (WITH THE CONSENT OF THE OWNER THEREOF), WITH ATTACHMENT OF THE SMALL CELL FACILITIES IN A CONFIGURATION APPROVED BY THE CITY. d. FOURTH, ON A TRAFFIC SIGNAL POLE OR MAST ARM IN A CONFIGURATION APPROVED BY THE CITY, OR IN THE CASE OF A CDOT FACILITY, BY CDOT. e. FIFTH, ON A FREESTANDING OR GROUND -MOUNTED FACILITY WHICH MEETS THE DEFINITION OF AND REQUIREMENTS FOR AN ALTTERNATIVE TOWER STRUCTURE IN A LOCATION AND CONFIGURATION APPROVED BY THE CITY. 3. HEIGHT. ALL SMALL CELL FACILITIES SHALL NOT EXCEED TWO FEET ABOVE THE LIGHT POLE, TRAFFIC SIGNAL OR OTHER FACILITY OR STRUCTURE TO WHICH THEY ARE ATTACHED, OR THE MAXIMUM HEIGHT IN THE RELEVANT ZONE DISTRICT, WHICHEVER IS LESS. WHEN NEW UTILITY POLES ARE PROPOSED AS AN ALTERNATIVE TOWER, THEIR HEIGHT SHALL BE SIMILAR TO EXISTING UTILITY/LIGHT POLES IN THE VICINITY. 4. SPACING. NO SMALL CELL FACILITY SHALL BE LOCATED WITHIN ONE THOUSAND FEET (1000 FT) OF ANY OTHER SUCH FACILITY. 5. DESIGN. SMALL CELL FACILITIES SHALL BE DESIGNED TO BLEND WITH AND BE CAMOUFLAGED IN RELATION TO THE STRUCTURE UPON WHICH THEY ARE LOCATED (E.G.: PAINTED TO MATCH THE STRUCTURE OR SAME MATERIAL AND COLOR AS ADJACENT UTILITY POLES). 6. PERMITTING. SMALL CELL FACILITIES AND NETWORKS SHALL MAKE APPLICATION FOR A PERMIT FOR WORK IN THE RIGHT-OF-WAY UNDER CODE SECTION 21-11, ET. SEQ., AND FOR LOCATION AND MAINTENANCE OF SUCH FACILITY SHALL MAKE APPLICATION FOR A PERMIT FOR USE OF THE PUBLIC RIGHT OF WAY UNDER CODE SECTION 21-101, ET SEQ. SMALL CELL FACILITIES AND NETWORKS SHALL MAKE APPLICATION FOR LOCATION ON PRIVATE PROPERTY THROUGH THE BUILDING PERMIT PROCESS. THE CITY MAY ACCEPT APPLICATIONS FOR A SMALL CELL NETWORK, PROVIDED EACH SMALL CELL FACILITY SHALL BE SEPARATELY REVIEWED. 7. INDEMNIFICATION. THE OPERATOR OF A SMALL CELL FACILITY WHICH IS PERMITTED TO LOCATE ON A CITY -OWNED UTILITY POLE, TRAFFIC SIGNAL OR OTHER STRUCTURE OWNED BY THE CITY SHALL, AS A CONDITION OF PERMIT APPROVAL, INDEMNIFY THE CITY FROM AND AGAINST ALL LIABILITY AND CLAIMS ARISING AS A RESULT OF THAT ATTACHMENT, INCLUDING REPAIR AND -7- REPLACEMENT OF DAMAGED POLES AND EQUIPMENT, IN A FORM APPROVED BY THE CITY ATTORNEY. 8. BONDING. ALL PERMITS FOR LOCATION OF SMALL CELL FACILITIES ON REAL PROPERTY NOT OWNED BY THE SMALL CELL PERMITTEE SHALL INCLUDE AS A CONDITION OF APPROVAL A BOND, IN FORM APPROVED BY THE CITY ATTORNEY, TO GUARANTEE PAYMENT FOR ANY DAMAGES TO THE REAL PROPERTY AND REMOVAL OF THE FACILITY UPON ITS ABANDONMENT. Standards for ground -mounted accessory equipment. Ground -mounted accessory equipment that is associated with a freestanding, roof -mounted or building - mounted CMRS facility are subject to the following requirements and shall be evaluated with the associated CMRS facility application. 1. Ground -mounted accessory equipment shall be subject to the accessory structure setback requirements in the underlying zone district. 2. Ground -mounted accessory equipment or buildings containing accessory equipment shall not exceed 12 feet in height. 3. Ground -mounted accessory equipment not fully enclosed in a building shall be fully screened from adjacent residential properties and public rights-of- way. 4. Buildings containing ground -mounted accessory equipment shall be architecturally compatible with the existing structures on the property and character of the neighborhood. J. Definitions. Alternative Tower CMRS facility. An existing or proposed structure that is compatible with the natural setting and surrounding structures and that camouflages or conceals the presence of the antennae and can be used to house or mount CMRS antenna. Examples include manmade trees, clock towers, bell steeples, light poles, silos, existing utility poles, existing utility transmission towers and other similar alternative designed structures. 2. Tower. Any freestanding structure designed and constructed primarily for the purpose of supporting one (1) or more Federal Communications Commission - licensed or authorized antennae, including self-supporting lattice towers, guy towers and monopole towers, radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers and other similar structures. The term also includes any antenna or antenna array attached to the tower structure. 3. Substantially Change. A modification which substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria, including a single change or a series of changes over time whether made by a single owner or operator or different owners/operators over time, when viewed against the initial approval for the support structure. The following are considered substantial changes: In a. For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater; b. For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the Tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet; c. For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, or more than four cabinets; or, for towers in the public rights- of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure; d. It entails any excavation or deployment outside the current site e. It would defeat the concealment elements of the eligible support structure; or f. It does not comply with conditions associated with the original siting approval for the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in paragraphs a through a of this definition. Section 2. The following definitions are hereby deleted from Section 26-123 and inserted within Section 26-615 under a new paragraph I: Building or structure -mounted commercial mobile radio service facility. A CMRS facility in which antenna are mounted to an existing structure (e.g., water tower, light pole, steeple, etc.) or building face. CDOT COLORADO DEPARTMENT OF TRANSPORTATION. Commercial mobile radio service (CMRS) accessory building or cabinet. An unmanned building or cabinet used to house equipment associated with a CMRS facility. Commercial mobile radio service (CMRS) site. equipment for the reception, switching telecommunications, including, but not limited Me An unmanned facility consisting of and transmission of wireless to, personal communications service (PCS), enhanced specialized mobile radio (ESMR), paging, cellular telephone and similar technologies. Freestanding commercial mobile radio service (CMRS) facility. A CMRS facility that consists of a stand-alone support facility (monopole and/or lattice structure), antenna, associated equipment, accessory buildings and equipment cabinets. Roof -mounted commercial mobile radio service (CMRS) facility. A CMRS facility in which antenna are mounted on an existing building roof. SMALL CELL CMRS FACILITY MEANS EITHER: 1. A PERSONAL WIRELESS SERVICE FACILITY AS DEFINED BY THE FEDERAL TELECOMMUNICATIONS ACT OF 1996," AS AMENDED AS OF AUGUST 6, 2014; OR 2. A WIRELESS SERVICE FACILITY THAT MEETS BOTH OF THE FOLLOWING QUALIFICATIONS: a. EACH ANTENNA IS LOCATED INSIDE AN ENCLOSURE OF NO MORE THAN THREE CUBIC FEET IN VOLUME OR, IN THE CASE OF AN ANTENNA THAT HAS EXPOSED ELEMENTS, THE ANTENNA AND ALL OF ITS EXPOSED ELEMENTS COULD FIT WITHIN AN IMAGINARY ENCLOSURE OF NO MORE THAN THREE CUBIC FEET; AND b. PRIMARY EQUIPMENT ENCLOSURES ARE NOT LARGER THAN SEVENTEEN CUBIC FEET IN VOLUME. THE FOLLOWING ASSOCIATED EQUIPMENT MAY BE LOCATED OUTSIDE OF THE PRIMARY EQUIPMENT ENCLOSURE AND, IF SO LOCATED, IS NOT INCLUDED IN THE CALCULATION OF EQUIPMENT VOLUME: ELECTRIC METER, CONCEALMENT, TELECOMMUNICATIONS DEMARCATION BOX, GROUND-BASED ENCLOSURES, BACK-UP POWER SYSTEMS, GROUNDING EQUIPMENT, POWER TRANSFER SWITCH, AND CUT-OFF SWITCH. SMALL CELL CMRS NETWORK. A COLLECTION OF INTERRELATED SMALL CELL FACILITIES DESIGNED TO DELIVER WIRELESS SERVICE. Section 3. Severability, Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 4. Effective Date. This Ordinance shall take effect upon adoption and signature by the Mayor and City Clerk, as permitted by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of to on this day of , 2017, ordered published in full in a newspaper of -10- general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for , 2017 at 7:00 p.m. in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of to , this day of , 2017. SIGNED by the Mayor on this day of , 2017. Joyce Jay, Mayor ATTEST: Janelle Shaver, City Clerk Approved as to Form Gerald E. Dahl, City Attorney First Publication: Second Publication: Wheat Ridge Transcript Effective Date: Published: Wheat Ridge Transcript and www.ci.wheatridge.co.us -11- HOUSE BILL 17-1193 BY REPRESENTATIVE(S) Kraft -Tharp and Becker J., Arndt, Becker K., Danielson, Ginal, Hansen, Hooton, Kennedy, McKean, Melton, Pabon, Van Winkle, Gray, Lontine, Wilson, Duran; also SENATOR(S) Tate and Kerr, Crowder, Donovan, Fields, Garcia, Guzman, Hill, Holbert, Jahn, Kefalas, Lundberg, Marble, Martinez Humenik, Merrifield, Neville T., Priola, Scott, Todd, Williams A., Zenzinger, Grantham. CONCERNING THE INSTALLATION OF SMALL WIRELESS SERVICE INFRASTRUCTURE WITHIN A LOCAL GOVERNMENT'S JURISDICTION, AND, IN CONNECTION THEREWITH, CLARIFYING THAT AN EXPEDITED PERMITTING PROCESS APPLIES TO SMALL CELL FACILITIES AND SMALL CELL NETWORKS AND THAT THE RIGHTS-OF-WAY ACCESS AFFORDED TELECOMMUNICATIONS PROVIDERS EXTENDS TO BROADBAND PROVIDERS AND TO SMALL CELL FACILITIES AND SMALL CELL NETWORKS. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 29-27401, add (2) as follows: 29-27-401. Legislative declaration. (2) THE GENERAL ASSEMBLY Attachment 2 Capital letters indicate new material added to existing statutes; dashes through words indicate deletions from existing statutes and such material not part of act. FURTHER FINDS AND DECLARES THAT: (a) SMALL CELL FACILITIES OFTEN MAY BE DEPLOYED MOST EFFECTIVELY IN THE PUBLIC RIGHTS-OF-WAY; AND (b) ACCESS TO LOCAL GOVERNMENT STRUCTURES IS ESSENTIAL TO THE CONSTRUCTION AND MAINTENANCE OF WIRELESS SERVICE FACILITIES OR BROADBAND FACILITIES. SECTION 2. In Colorado Revised Statutes, 29-27-402, amend (1), (4), and (7); and add (1.5), (3.5), and (6.5) as follows: 29-27-402. Definitions. As used in this part 4, unless the context otherwise requires: (1) "Broadband acility"-mc ed -to -deliver broadbar ision-of{nffddbmid ScrvicC: "ANTENNA" MEANS COMMUNICATIONS EQUIPMENT THAT TRANSMITS OR RECEIVES ELECTROMAGNETIC RADIO FREQUENCY SIGNALS USED TO PROVIDE WIRELESS SERVICE. (1.5) 'BROADBAND FACILITY" MEANS ANY INFRASTRUCTURE USED TO DELIVER BROADBAND SERVICE OR FOR THE PROVISION OF BROADBAND SERVICE. (3.5) "MICRO WIRELESS FACILITY" MEANS A SMALL WIRELESS FACILITY THAT IS NO LARGER IN DIMENSIONS THAN TWENTY-FOUR INCHES IN LENGTH, FIFTEEN INCHES IN WIDTH, AND TWELVE INCHES IN HEIGHT AND THAT HAS AN EXTERIOR ANTENNA, IF ANY, THAT IS NO MORE THAN ELEVEN INCHES IN LENGTH. (4) (a) "Small cell facility" means either: (a) (1) A personal wireless service facility as defined by the federal "Telecommunications Act of 1996", as amended as of August 6, 2014; or (b) (II) A wireless service facility that meets both of the following qualifications: (f) (A) Each antenna is located inside an enclosure of no more than PAGE 2 -HOUSE BILL 17-1193 three cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than three cubic feet; and "(B) Primary equipment enclosures are no larger than seventeen cubic feet in volume. The following associated equipment may be located outside of the primary equipment enclosure and, if so located, is not included in the calculation of equipment volume: Electric meter, concealment, telecommunications demarcation box, ground-based enclosures, back-up power systems, grounding equipment, power transfer switch, and cut-off switch. (b) "SMALL CELL FACILITY" INCLUDES A MICRO WIRELESS FACILITY. (6.5) "TOWER" MEANS ANY STRUCTURE BUILT FOR THE SOLE OR PRIMARY PURPOSE OF SUPPORTING ANTENNAS LICENSED OR AUTHORIZED BY THE FEDERAL COMMUNICATIONS COMMISSION AND THE ANTENNAS' ASSOCIATED FACILITIES, INCLUDING STRUCTURES THAT ARE CONSTRUCTED FOR WIRELESS COMMUNICATIONS SERVICES INCLUDING PRIVATE, BROADCAST, AND PUBLIC SAFETY SERVICES; UNLICENSED WIRELESS SERVICES; FIXED WIRELESS SERVICES SUCH AS BACKHAUL; AND THE ASSOCIATED SITE. (7) "Wireless service facility" means a facility for the provision of wireless services; EXCEPT THAT "WIRELESS SERVICE FACILITY" DOES NOT INCLUDE COAXIAL OR FIBER-OPTIC CABLE THAT IS NOT RANIEDIATELY ADJACENT TO, OR DIRECTLY ASSOCIATED WITH, A PARTICULAR ANTENNA. SECTION 3. In Colorado Revised Statutes, 29-27-403, amend (1) and (3) as follows: 29-27403. Permit - approval - deadline - exception. (1) A local government may take up to: (a) NINETY DAYS TO PROCESS A COMPLETE APPLICATION FOR: (1) LOCATION OR COLLOCATION OF A SMALL CELL FACILITY OR A SMALL CELL NETWORK; OR (II) REPLACEMENT OR MODIFICATION OFA SMALL CELL FACILITY OR PAGE 3 -HOUSE BILL 17-1193 FACILITIES OR SMALL CELL NETWORK. (a) (b) Ninety days to process a complete application that involves a collocation of a tower, building, structure, or replacement structure OTHER THAN A SMALL CELL FACILITY OR SMALL CELL NETWORK; or fbj (c) One hundred fifty days to process a complete application that involves a new structure or a new wireless service facility, OTHER THAN A SMALL CELL FACILITY OR SMALL CELL NETWORK AND other than a collocation. (3) An applicant and a local government ENTITY may mutually agree that an application may be processed in a longer period than set forth in subsection (1) of this section. SECTION 4. In Colorado Revised Statutes, 29-27404, amend (1) and (2) introductory portion; and add (3) as follows: 29-27444. Permit process. (1) (a) For small cell networks involving multiple individual small cell facilities within the jurisdiction of a single local government ENTITY, the local government ENTITY shall allow the applicant, at the applicant's discretion, to file a consolidated application and receive a single permit for the small cell network instead of filing separate applications for each individual small cell facility. (b) FOR A CONSOLIDATED APPLICATION FILED PURSUANT TO SUBSECTION (1)(a) OF THIS SECTION, EACH SMALL CELL FACILITY WITHIN THE CONSOLIDATED APPLICATION REMAINS SUBJECT TO REVIEW FOR COMPLIANCE WITH OBJECTIVE REQUIREMENTS AND APPROVAL AS PROVIDED IN THIS ARTICLE 27. THE LOCAL GOVERNMENT'S DENIAL OF ANY INDIVIDUAL SMALL CELL FACILITY IS NOT A BASIS TO DENY THE CONSOLIDATED APPLICATION AS A WHOLE OR ANY OTHER SMALL CELL FACILITY INCORPORATED WITHIN THE CONSOLIDATED APPLICATION. (2) If a wireless service provider applies to LOCATE OR collocate several wireless service facilities within the jurisdiction of a single local government ENTITY, the local government ENTITY shall: (3) THE SITING, MOUNTING, PLACEMENT, CONSTRUCTION, AND OPERATION OF A SMALL CELL FACILITY OR A SMALL CELL NETWORK IS A PAGE 4 -HOUSE BILL 17-1193 PERMITTED USE BY RIGHT IN ANY ZONE. SECTION 5. In Colorado Revised Statutes, amend 38-5.5-102 as follows: 38-5.5-102. Def nitions. As used in this article ARTICLE 5.5, unless the context otherwise requires: (1) "Broadband" or "broadband service" has the same meaning as set forth in 7 U.S.C. sec. 950bb (b)(1) as of August 6, 2014, and includes "cable service", as defined in 47 U.S.C. sec. 522 (6) as of August 6, 2014. " (2) "Broadband facility" means any infrastructure used to deliver broadband service or for the provision of broadband service. " (3) "Broadband provider" means a person that provides broadband service, and includes a "cable operator", as defined in 47 U.S.C. sec. 522 (5) as of August 6, 2014. (4) "COLLOCATION" HAS THE SAME MEANING AS SET FORTH IN SECTION 29-27402 (3). " (5) "Political subdivision" OR "LOCAL GOVERNMENT ENTITY" means a county; city and county; city; town; service authority; school district; local improvement district; law enforcement authority; water, sanitation, fire protection, metropolitan, irrigation, drainage, or other special district; or any other kind of municipal, quasi -municipal, or public corporation organized pursuant to law. (2) (6) "Public highway" or "highway" for purposes of this article ARTICLE 5.5 includes all roads, streets, and alleys and all other dedicated rights-of-way and utility easements of the state or any of its political subdivisions, whether located within the boundaries of a political subdivision or otherwise. (7) "SMALL CELL FACILITY" HAS THE SAME MEANING AS SET FORTH IN SECTION 29-27-402 (4). (8) "SMALL CELL NETWORK" HAS THE SAME MEANING ASSET FORTH IN SECTION 29-27402 (5). PAGE 5 -HOUSE BILL 17-1193 143j (9) "Telecommunications provider" or "providee means a person that provides telecommunications service, as defined in section 40-15-102 (29), eas.; with the exception of cable services as defined by section 602 (5) of the federal "Cable Communications Policy Act of 1984", 47 U.S.C. sec. 522 (6), pursuant to authority granted by the public utilities commission of this state or by the federal communications commission. "Telecommunications provider" or "provider" does not mean a person or business using antennas, support towers, equipment, and buildings used to transmit high power over -the -air broadcast of AM and FM radio, VHF and UHF television, and advanced television services, including high definition television. The term "telecommunications provider" is synonymous with "telecommunication provider". SECTION 6. In Colorado Revised Statutes, amend 38-5.5-103 as follows: 38-5.5-103. Use of public highways - discrimination prohibited - content regulation prohibited. (1) (a) Any domestic or foreign telecommunications provider or broadband provider authorized to do business under the laws of this state shall have HAS the right to construct, maintain, and operate conduit, cable, switches, and related appurtenances and facilities, AND COMMUNICATIONS AND BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELL NETWORKS, along, across, upon, ABOVE, and under any public highway in this state, subject to die provisions-ofthis article ARTICLE 5.5 and of article 1.5 of title 9. Com; Mid (b) The construction, maintenance, operation, and regulation of such THE facilities DESCRIBED IN SUBSECTION (1)(a) OF THIS SECTION, including the right to occupy and utilize the public rights-of-way, by telecommunications providers and broadband providers are to—be matters of statewide concern. 6uzh THE facilities shall be so constructed and maintained so as not to obstruct or hinder the usual travel on such A highway. (2) Nv A political subdivision shall NOT discriminate among or grant a preference to competing telecommunications providers OR BROADBAND PROVIDERS in the issuance of permits or the passage of any ordinance for the use of its rights-of-way, nor create or erect any unreasonable requirements for entry to the rights-of-way for such THE PAGE 6 -HOUSE BILL 17-1193 providers. (3) Nv A political subdivision shall NOT regulate A telecommunications providers PROVIDER OR A BROADBAND PROVIDER based upon the content or type of signals that are carried or capable of being carried over the provider's facilities; except that nothing in this subsection (3) shali be construed to prevent such PREVENTS regulation by a political subdivision when the authority to so regulate has been granted to the political subdivision under federal law. SECTION 7. In Colorado Revised Statutes, amend 38-5.5-104 as follows: 38-5.5-104. Right-of-way across state land. Any domestic or foreign telecommunications provider OR BROADBAND PROVIDER authorized to do business under the laws of this state shailhave HAS the right to construct, maintain, and operate lines of communication, switches, and related facilities, AND COMMUNICATIONS AND BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELLNETWORKS, and obtain A permanent right-of-way tlzerefor FOR THE FACILITIES over, upon, under, and across all public lands owned by or under the control of the state, upon the payment of such just compensation and upon compliance with snch reasonable conditions as may be jLeqttimd the state board of land commissioners MAY REQUIRE. SECTION 8. In Colorado Revised Statutes, add 38-5.5-104.5 as follows: 38-5.5-104.5. Use of local government entity structures. (1) EXCEPT AS PROVIDED IN SUBSECTION (2) OF THIS SECTION AND SUBJECT TO THE REQUIREMENTS AND LIMITATIONS OF THIS ARTICLE 5.5, SECTIONS 29-27-403 AND 29-27-404, AND A LOCAL GOVERNMENT ENTITY'S POLICE POWERS, A TELECOMMUNICATIONS PROVIDER OR A BROADBAND PROVIDER HAS THE RIGHT TO LOCATE OR COLLOCATE SMALL CELL FACILITIES OR SMALL CELL NETWORKS ON THE LIGHT POLES, LIGHT STANDARDS, TRAFFIC SIGNALS, OR UTILITY POLES IN THE RIGHTS-OF-WAY OWNED BY THE LOCAL GOVERNMENT ENTITY; EXCEPT THAT, A SMALL CELL FACILITY OR A SMALL CELL NETWORK SHALL NOT BE LOCATED OR MOUNTED ON ANY APPARATUS, POLE, OR SIGNAL WITH TOLLING COLLECTION ORENFORCEMENTEQUIPMENT ATTACHED. PAGE 7 -HOUSE BILL 17-1193 (2) IF, AT ANY TIME, THE CONSTRUCTION, INSTALLATION, OPERATION, OR MAINTENANCE OF A SMALL CELL FACILITY ON A LOCAL GOVERNMENTENTITY'S LIGHTPOLE, LIGHT STANDARD, TRAFFIC SIGNAL, OR UTILITY POLE FAILS TO COMPLY WITH APPLICABLE LAW, THE LOCAL GOVERNMENT ENTITY, BY PROVIDING THE TELECOMMUNICATIONS PROVIDER OR THE BROADBAND PROVIDER NOTICE AND A REASONABLE OPPORTUNITY TO CURE THE NONCOMPLIANCE, MAY: (a) CAUSE THE ATTACHMENT ON THE AFFECTED STRUCTURE TO BE REMOVED; AND (b) PROHIBIT FUTURE, NONCOMPLIANT USE OF THE LIGHT POLE, LIGHT STANDARD, TRAFFIC SIGNAL, OR UTILITY POLE. (3) (a) EXCEPT AS PROVIDED IN SUBSECTIONS (3)(b) AND (3)(c) OF THIS SECTION, A LOCAL GOVERNMENT ENTITY SHALL NOT IMPOSE ANY FEE OR REQUIRE ANY APPLICATION OR PERMIT FOR THE INSTALLATION, PLACEMENT, OPERATION, MAINTENANCE, OR REPLACEMENT OF MICRO WIRELESS FACILITIES THAT ARE SUSPENDED ON CABLE OPERATOR -OWNED CABLES OR LINES THAT ARE STRUNG BETWEEN EXISTING UTILITY POLES IN COMPLIANCE WITH NATIONAL SAFETY CODES. (b) A LOCAL GOVERNMENT ENTITY WITH A MUNICIPAL OR COUNTY CODE THAT REQUIRES AN APPLICATION OR PERMIT FOR THE INSTALLATION OF MICRO WIRELESS FACILITIES MAY, BUT IS NOT REQUIRED TO, CONTINUE THE APPLICATION ORPERMIT REQUIREMENT SUBSEQUENTTO THE EFFECTIVE DATE OF THIS SECTION. (c) A LOCAL GOVERNMENT ENTITY MAY REQUIRE A SINGLE -USE RIGHT-OF-WAY PERMIT IF THE INSTALLATION, PLACEMENT, OPERATION, MAINTENANCE, OR REPLACEMENT OF MICRO WIRELESS FACILITIES: (I) INVOLVES WORKING WITHIN A HIGHWAY TRAVEL LANE OR REQUIRES THE CLOSURE OF A HIGHWAY TRAVEL LANE; LINE; (II) DISTURBS THE PAVEMENTORA SHOULDER, ROADWAY, OR DITCH (III] INCLUDES PLACEMENT ON LIMITED ACCESS RIGHTS-OF-WAY; OR PAGE 8 -HOUSE BILL 17-1193 (IV) REQUIRES ANY SPECIFIC PRECAUTIONS TO ENSURE THE SAFETY OF THE TRAVELING PUBLIC; THE PROTECTION OF PUBLIC INFRASTRUCTURE; OR THE OPERATION OF PUBLIC INFRASTRUCTURE; AND SUCH ACTIVITIES EITHER WERE NOT AUTHORIZED IN, OR WILL BE CONDUCTED IN A TIME, PLACE, OR MANNER THAT IS INCONSISTENT WITH, THE APPROVAL TERMS OF THE EXISTING PERMIT FOR THE FACILITY OR STRUCTURE UPON WHICH THE MICRO WIRELESS FACILITY IS ATTACHED. SECTION 9. In Colorado Revised Statutes, amend 38-5.5-105 as follows: 38-5.5-105. Power of companies to contract. Any domestic or foreign telecommunications provider shall-havc OR BROADBAND PROVIDER HAS THE power to contract with any personor INDIVIDUAL; corporation; OR the owner of any lands, ax mry franchise, easement, or interest therein over or under which the provider's conduits; cable; switches; acrd COMMUNICATIONS OR BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELL NETWORKS; OR related appurtenances and facilities are proposed to be laid or created for the right-of-way for the construction, maintenance, and operation of such THE facilities acrd OR for the erection, maintenance, occupation, and operation of offices at suitable distances for the public accommodation. SECTION 10. In Colorado Revised Statutes, amend 38-5.5-106 as follows: 38-5.5-106. Consent necessary for use of streets. (1) (a) Nodring in This w ticle shall be constr a ARTICLE 5.5 DOES NOT authorize any telecommunications provider OR BROADBAND PROVIDER to erect, WITHIN A POLITICAL SUBDIVISION, any poles or construct any COMMUNICATIONS OR BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELL NETWORKS; conduit; cable; switch; or related appurtenances and facilities along, through, in, upon, under, or over any public highway without first obtaining the consent of the authorities having power to give the consent of such THE political subdivision. (b) A telecommunications provider OR BROADBAND PROVIDER that, on or before Apr il i 2, 1 JULY 1, 2017, either has obtained consent of the political subdivision having power to give such consent or is lawfully PAGE 9 -HOUSE BILL 17-1193 occupying a public highway in a political subdivision sham NEED not be requiredto apply for additional or continued consent of such THE political subdivision under this section. (c) NOTWITHSTANDING ANYOTHERPROVISION OF LAW, APOLITICAL SUBDIVISION'S CONSENT GIVEN TO A TELECOMMUNICATIONS PROVIDER OR A BROADBAND PROVIDER TO ERECT OR CONSTRUCT ANY POLES, OR TO LOCATE OR COLLOCATE COMMUNICATIONS AND BROADBAND FACILITIES ON VERTICAL STRUCTURES IN A RIGHT-OF-WAY, DOES NOT EXTEND TO THE LOCATION OF NEW FACILITIES OR TO THE ERECTION OR CONSTRUCTION OF NEW POLES IN A RIGHT-OF-WAY NOT SPECIFICALLY REFERENCED IN THE GRANT OF CONSENT. (2) (a) THE consent OF A POLITICAL SUBDIVISION for the use of a public highway within a pofitical subdivision ITS JURISDICTION shall be based upon a lawful exercise of the ITS police power of such pol subdivisiour and shall not be unreasonably withheld. nor (b) A POLITICAL SUBDIVISION shall NOT CREATE any preference or disadvantage becreatedthrough the granting or withholding of such ITS consent. A POLITICAL SUBDIVISION'S DECISION THAT A VERTICAL STRUCTURE IN THE RIGHT-OF-WAY, INCLUDING A VERTICAL STRUCTURE OWNED BY A MUNICIPALITY, LACKS SPACE OR LOAD CAPACITY FOR COMMUNICATIONS OR BROADBAND FACILITIES, OR THAT THE NUMBER OF ADDITIONAL VERTICAL STRUCTURES IN THE RIGHTS-OF-WAY SHOULD BE REASONABLY LIMITED, CONSISTENT WITH PROTECTION OF PUBLIC HEALTH, SAFETY, AND WELFARE, DOES NOT CREATE A PREFERENCE FOR OR DISADVANTAGE ANY TELECOMMUNICATIONS PROVIDER OR BROADBAND PROVIDER, PROVIDED THAT SUCH DECISION DOES NOT HAVE THE EFFECT OF PROHIBITING A PROVIDER'S ABILITY TO PROVIDE SERVICE WITHIN THE SERVICE AREA OF THE PROPOSED FACILITY. SECTION 11. In Colorado Revised Statutes, 38-5.5-107, amend (7) as follows: 38-5.5-107. Permissible taxes, fees, and charges. (7) As used in this section, "public highway" or "highway" as otherwise defined in section 38-5.5-102 (z) (6) does not include excess and remainder rights-of-way under the department of transportation's jurisdiction. PAGE 10 -HOUSE BILL 17-1193 SECTION 12. In Colorado Revised Statutes, amend 38-5.5-108 as follows: 38-5.5-108. Pole attachment agreements - limitations on required payments. (1) No NEITHER A LOCAL GOVERNMENT ENTITY NOR A municipally owned utility shall request or receive from a telecommunications provider, BROADBAND PROVIDER, ora cable television provider, as defined in section 602 (5) of the federal "Cable Communications Policy Act of 1984", in exchange for permission to attach SMALL CELL FACILITIES, BROADBAND DEVICES, OR telecommunications devices to poles OR STRUCTURES IN A RIGHT-OF-WAY, any payment in excess of the amount that would be authorized if the LOCAL GOVERNMENT ENTITY OR municipally owned utility were regulated pursuant to 47 U.S.C. sec. 224, as amended. (2) No A municipality shall NOT request or receive from a telecommunications provider ORA BROADBAND PROVIDER, in exchange for or as a condition upon a grant of percussion to attach telecommunications OR BROADBAND devices to poles, any in-kind payment. SECTION 13. Effective date - applicability. This act takes effect July 1, 2017, and applies to permit applications received on or after said date. SECTION 14. Safety clause. The general assembly hereby finds, PAGE 11 -HOUSE BILL 17-1193 determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety. Crisanta Duran Kevin J. Grantham SPEAKER OF THE HOUSE PRESIDENT OF OF REPRESENTATIVES wa'4-4� Mari yn EddAs CHIEF CLERK OF THE HOUSE OF REPRESENTATIVES THE SENATE APPROVED LN 1 SECRETARY OF THE SENATE PAGE 12 -HOUSE BILL 17-1193 Kenneth Johnstone From: Kenneth Johnstone Sent: Tuesday, May 16, 2017 9:59 AM To: Kenneth Johnstone Subject: City Council - 5-15-17 City Council - 5-15-17 Larry, Zack absent RVs in prospect park Small Cell Facilities - Pond, cant use home rule?, Dahl, nope, can we deny, effectively yes - Tim, can these provide enough band width to allow cell distribution of things like Hulu, - Janeece, question on co -location - Janeece consensus to move forward - all agreed - Need to address issue of potential for a ROW applicant to get approval for a network, not build it and prevent others from getting permits having taken all the eligible locations Sent from my iPad Small Cell Ordinance — 5-15 study session • We are talking tonight about something called "small cell" CMRS facilities tonight— largely in reaction to recent actions taken by our state legislature • HB 1193 carves out certain rights and privileges for what are referred to "small cell" providers • These are defined as CMRS facilities that are indeed smaller than certain threshold size requirements — antennae or enclosure not larger than 3 cubic feet • These facilities are typically used to augment an existing cellular providers networks providing greater capacity to transmit data and communications at acceptable speeds • HB 1193 has been passed by both houses and signed by the governor and it accomplishes two important things as it pertaining to local governments ■ Makes such facilities a use by right in all zoning districts ■ Allows them to locate in all public rights of way and utility easements subject to reasonable design standards and a local review and approval process • The bill goes into effect July 1 • As such, we felt it was important to get this topic in front of City Council quickly to consider adopting design standards and a reasonable review and approval process for these facilities • Because of the time sensitive nature of these changes, staff has taken the liberty of drafting an ordinance that amends the City's existing CMRS facilities to allow for these facilities • On private property, they would be treated very similar to any other CMRS facility in regards to review process and design standards • In public rights of way, we propose a priority based scheme for how they would be allowed, which would encourage them to locate in the following order: 1) on existing City owned utility pole and being fully concealed 2) on existing City owned utility pole as an attachment 3) as an attachment to a 3rd party utility pole 4) as an attachment on traffic signal pole; and 5) in a freestanding location meeting the City's definition of an Alt Tower Structure • In terms of design standards, 3 general areas are proposed to be covered: 1) height, 2) spacing, and 3) compatible materials and design • We have forwarded the ordinance to one industry rep and are working to identify others who may want to review and comment • • May 22 1s' reading, June 1 PC hearing and June 12 CC public hearing CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER COUNCIL BILL NO. ORDINANCE NO. Series 2017 TITLE: AN ORDINANCE AMENDING CHAPTER 26 OF THE WHEAT RIDGE CODE OF LAWS TO REGULATE AND ALLOW SMALL CELL COMMERCIAL MOBILE RADIO SERVICE (CMRS) FACILITIES WHEREAS, the City of Wheat Ridge, Colorado (the "City"), is a Colorado home rule municipality, duly organized and existing pursuant to Section 6 of Article XX of the Colorado Constitution; and WHEREAS, pursuant to its home rule authority and C.R.S. § 31-23-101, the City, acting through its City Council (the "Council"), is authorized to adopt ordinances for the protection of the public health, safety or welfare; and WHEREAS, in the exercise of this authority the Council has previously adopted Section 26-215 of the Wheat Ridge Code of Laws concerning commercial mobile radio service facilities; and WHEREAS, the Council wishes to amend Section 26-615 to address changes in state law affecting "small cell" facilities and to make conforming amendments in connection therewith; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 26-615 of the Code, concerning commercial mobile radio service facilities, is hereby amended as follows: Sec. 26-615. — Commercial mobile radio service (CMRS) facilities. A. Purpose and intent. The purpose and intent of this section 26-615 is to accommodate the communication needs of residents and businesses while protecting the public health, safety, and general welfare of the community. These regulations are necessary in order to: 1. Facilitate the provision of wireless telecommunication services to the residents and businesses of the city. 2. Minimize adverse impacts of facilities through careful design, siting and screening standards. 3. Encourage and maximize colocation and the use of existing and approved towers, buildings, and other structures to accommodate new wireless telecommunication antennas in order to reduce the number of towers needed to serve the community. 4. Provide specific regulations related to the review processes for CMRS facilities. -1- A C. 5. Align the review and approval process for CMRS facilities with the FCC and any other agency of the federal government with the authority to regulate CMRS facilities. Applicability. The standards contained in this section shall apply to all applications for any CMRS facility. The applicant shall demonstrate in writing that its proposed CMRS facility meets all applicable standards and provisions of the code. Pre- existing CMRS facilities shall not be required to meet the requirements of this section, other than the requirements of subsection E. Changes and additions to pre- existing CMRS facilities must meet the applicable requirements of this section. Review and approval process. Proposed CMRS facilities shall be reviewed pursuant to the following procedures depending upon the facility type and/or proposed change: 1. Review procedure a. Building- or structure -mounted facilities in all zone districts shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. b. Roof -mounted facilities in all zone districts shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. c. New freestanding or alternative tower CMRS facilities must receive a special use permit, pursuant to sections 26-114, 26-204 and 26-1111. d. New freestanding or alternative tower CMRS facilities in all planned development zone districts (including planned residential districts) unless specifically listed or shown as such in the outline development plan, also require amendment of the outline development plan pursuant to Article III. At the sole discretion of the community development director, new freestanding or alternative tower CMRS facilities may be reviewed as a special use pursuant to sections 26-114, 26-204 and 26- 309. e. Applications for colocation on any existing facility shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. f. SMALL CELL CMRS FACILITIES AND NETWORKS IN PUBLIC RIGHTS-OF-WAY AND EASEMENTS SHALL BE REVIEWED BY THE PUBLIC WORKS DEPARTMENT AND SHALL REQUIRE A PERMIT UNDER SECTION 21-101, ET. SEQ.. g. SMALL CELL CMRS FACILITIES AND NETWORKS ON PRIVATE PROPERTY SHALL BE REVIEWED BY THE COMMUNITY DEVELOPMENT DEPARTMENT THROUGH A BUILDING PERMIT APPLICABLE FOR COMPLIANCE WITH THE REQUIREMENTS FOR SUCH FACILITIES. 2. Approval process a. The city shall review and act upon the application within the following time periods: -2- i. Within 30 days the city will give written notice of incompleteness if so determined, specifying the code section(s) that requires such missing information. This determination pauses the remaining deadlines until a complete application is filed. ii. Within 60 days the city will act on applications that are not a substantial change. iii. Within 90 days the city will act on APPLICATIONS FOR SMALL CELL FACILITIES OR colocation applications that are not a substantial increase in the size of a tower. iv. Within 150 days the city will act on applications for new CMRS facilities, colocation applications that are a substantial increase in the size of the tower or substantial increase of an existing CMRS facility. b. The final action of the city on any CMRS application shall be in writing and shall advise the applicant of the reasons for approval, approval with conditions, or denial. D. Standards for all CMRS facilities. The following are standards for all CMRS facilities. 1. Colocation. The shared use of existing freestanding or roof-mounted CMRS facilities shall be preferred to the construction of new facilities in order to minimize adverse visual impacts associated with the proliferation of towers. a. No CMRS application to construct a new freestanding or roof-mounted CMRS facility shall be approved unless the applicant demonstrates to the reasonable satisfaction of the city that no existing CMRS facility within a reasonable distance, regardless of municipal boundaries, can accommodate the applicant's needs. Evidence submitted to demonstrate that no existing facility can accommodate the applicant's proposed CMRS facility shall consist of one or more of the following: i. No existing CMRS facilities are located within the geographic area required to meet the applicant's coverage demands. ii. Existing CMRS facilities or structures are not of sufficient height to meet the applicant's coverage demands and cannot be extended to such height. iii. Existing CMRS facilities or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment. iv. Existing CMRS facilities or structures do not have adequate space on which proposed equipment can be placed so it can function effectively and reasonably. v. The applicant's proposed antenna would cause electromagnetic interference with the antennas on the existing CMRS facility, or the antennas on the existing facility would cause interference with the applicant's proposed antenna. vi. The applicant demonstrates that there are other compelling limiting factors, including but not limited to economic factors, that render CMRS facilities or structures unsuitable. -3- 2 3 4 5. b. No CMRS facility owner or operator shall unreasonably exclude a telecommunication competitor from using the same facility or location. Upon request by the city, the owner or operator shall provide evidence and a written statement to explain why colocation is not possible at a particular facility or site. c. If a telecommunication competitor attempts to collocate a CMRS facility on an existing or approved CMRS facility or location, and the parties cannot reach an agreement, the city may require a third -party technical study to be completed at the applicant's expense to determine the feasibility of colocation. d. Applications for new freestanding CMRS facilities shall provide evidence that the facility can accommodate colocation of additional carriers. Federal requirements. All CMRS facilities shall meet the current standards and regulations of the FAA, the FCC, and any other agency of the federal government with the authority to regulate CMRS facilities. Failure to meet such revised standards and regulations shall constitute grounds for revocation of city approvals and removal of the facility at the owner's expense. Safety standards. All CMRS facilities shall conform to the requirements of the international building code, and national electrical code, as applicable. Abandonment. CMRS facilities which are abandoned by nonuse, disconnection of power service, equipment removal or loss of lease for greater than six (6) months shall be removed by the CMRS facility owner. Should the owner fail to remove the facilities, the city may do so at its option, and the costs thereof shall be a charge against the owner and recovered by certification of the same to the county treasurer for collection as taxes in the manner provided by code section 2-93, or by any other means available under article x of chapter 26. Third party review. a. CMRS providers use various methodologies and analysis tools, including geographically based computer software, to determine the specific technical parameters of CMRS facilities, such as expected coverage area, antenna configuration and topographic constraints that affect signal paths. In certain instances there may be a need for expert review by a third party of the technical data submitted by the CMRS provider. The city may require such a technical review to be paid for by the applicant for a CMRS facility. The selection of the third party expert may be by mutual agreement between the applicant and the city or at the discretion of the city, with a provision for the applicant and interested parties to comment on the proposed expert and review its qualifications. The expert review is intended to be a site-specific review of technical aspects of the CMRS facilities and not a subjective review of the site selection. The expert review of the technical submission shall address the following: i. The accuracy and completeness of the submission; ii. The applicability of analysis techniques and methodologies; iii. The validity of conclusions reached; iv. Any specific technical issues designated by the city. In b. Based on the results of the third party review, the city may require changes to the application for the CMRS facility that comply with the recommendation of the expert. 6. All CMRS facilities are accessory uses to the structure upon which they are placed or to the primary use of the property on which they are constructed. WITH THE EXCEPTION OF SMALL CELL FACILITIES, no CMRS facility shall be located on a vacant lot devoid of any primary or main building. 7. Siting of CMRS facilities in residential areas. The city encourages the siting of CMRS facilities in nonresidential areas. a. The city prohibits freestanding CMRS facilities in the following zone districts: i. Residential -One (R-1), ii. Residential -One A (R-1 A), iii. Residential -One B (R-1 B), iv. Residential -One C (R -1C), v. Residential -Two (R-2), vi. Residential -Two A (R -2A), vii. Residential -Three (R-3), viii. Residential -Three A (R -3A), ix. Agricultural -One (A-1), x. Agricultural -Two (A-2), and xi. Mixed Use -Neighborhood (MU -N) zone districts. b. The city prohibits all CMRS facilities on properties where the principal use is a single or two-family dwelling. c. Alternative tower CMRS facilities may be located on a property containing a non-residential use, regardless of underlying zoning. d. Building, structure or roof -mounted CMRS facilities may be located on a property containing a nonresidential or multi -family use, regardless of underlying zoning. e. Alternative tower structures may be located on a property f. SMALL CELL FACILITIES ARE PERMITTED IN ALL ZONE DISTRICTS. E. Standards for freestanding and alternative tower CMRS facilities. Freestanding and alternative tower CMRS facilities are subject to the following requirements and shall be evaluated as a special use. 1. Freestanding CMRS facilities shall be visually screened from adjacent residential development and public rights-of-way. 2. Freestanding and alternative tower CMRS facilities shall be permitted only as an accessory use, and are subject to accessory use setback development standards in the applicable zone district. 3. Freestanding and alternative tower CMRS facilities shall not exceed the permitted height for the principal use on the subject property. 4. Freestanding CMRS facilities shall not be permitted between the principal structure and the street. 1672 F. Standards for building or structure -mounted CMRS facilities. Building or structure - mounted CMRS facilities are subject to the following requirements and shall be evaluated as part of the community development department's review process. 1. Such facilities shall be architecturally compatible with and textured and colored to match the building or structure to which they are attached. 2. The antenna shall be mounted as flush to the wall as technically possible. The maximum protrusion of such facilities from the building or structure face to which they are attached shall be two (2) feet. 3. Panel antennae shall not extend above the building wall or parapet to which they are mounted. 4. Whip antennae shall extend no more than ten (10) feet above the highest point of the building or structure to which they are attached. G. Standards for roof -mounted CMRS facilities. Roof -mounted CMRS facilities are subject to the following requirements and shall be evaluated as part of community development department's review process. 1. All roof -mounted CMRS facilities and accessory equipment shall be set back from the roof or parapet edge so that visibility from the street or adjacent residential properties is minimized to the greatest extent possible. 2. If roof -mounted equipment is visible from the street or adjacent residential properties, CMRS facilities and accessory equipment shall be screened by materials that are architecturally compatible with and colored to match the building or structure to which they are attached. 3. No roof -mounted facility, including antenna or accessory equipment, shall exceed twelve (12) feet in height, as measured from the roof deck. 4. Roof -mounted accessory equipment shall not be permitted on a sloped roof, unless it can be demonstrated that it is not visible from the street or adjacent residential areas. H. STANDARDS FOR SMALL CELL FACILITIES AND NETWORKS. 1. APPLICABLE REQUIREMENTS. SMALL CELL FACILITIES AND SMALL CELL NETWORKS, SHALL COMPLY IN ALL RESPECTS WITH THE REQUIREMENTS OF THIS SECTION APPLICABLE TO ALL CMRS FACILITIES, WITH THE FOLLOWING EXCEPTIONS: a. SETBACK REQUIREMENTS; AND b. DESIGN REQUIREMENTS 2. LOCATION. SMALL CELL FACILITIES ARE PERMITTED IN CITY RIGHTS- OF-WAY, UPON FACILITIES IN THESE RIGHTS-OF-WAY AND ON PUBLIC EASEMENTS OWNED BY THE CITY UNDER THE FOLLOWING PRIORITY: a. FIRST, ON A CITY -OWNED UTILITY POLE, WHICH SHALL BE REMOVED AND REPLACED WITH A POLE DESIGNED TO CONTAIN ALL ANTENNAE AND EQUIPMENT WITHIN THE POLE TO CONCEAL ANY GROUND-BASED SUPPORT EQUIPMENT AND OWNERSHIP OF WHICH POLE IS CONVEYED TO THE CITY. b. SECOND, A CITY -OWNED UTILITY POLE WITH ATTACHMENT OF THE SMALL CALL FACILITIES IN A CONFIGURATION APPROVED BY THE CITY. In c. THIRD, ON A THIRD -PARTY OWNED UTILITY POLE, (WITH THE CONSENT OF THE OWNER THEREOF), WITH ATTACHMENT OF THE SMALL CELL FACILITIES IN A CONFIGURATION APPROVED BY THE CITY. d. FOURTH, ON A TRAFFIC SIGNAL POLE OR MAST ARM IN A CONFIGURATION APPROVED BY THE CITY, OR IN THE CASE OF A CDOT FACILITY, BY CDOT. e. FIFTH, ON A FREESTANDING OR GROUND -MOUNTED FACILITY WHICH MEETS THE DEFINITION OF AND REQUIREMENTS FOR AN ALTTERNATIVE TOWER STRUCTURE IN A LOCATION AND CONFIGURATION APPROVED BY THE CITY. 3. HEIGHT. ALL SMALL CELL FACILITIES SHALL NOT EXCEED TWO FEET ABOVE THE LIGHT POLE, TRAFFIC SIGNAL OR OTHER FACILITY OR STRUCTURE TO WHICH THEY ARE ATTACHED, OR THE MAXIMUM HEIGHT IN THE RELEVANT ZONE DISTRICT, WHICHEVER IS LESS. WHEN NEW UTILITY POLES ARE PROPOSED AS AN ALTERNATIVE TOWER, THEIR HEIGHT SHALL BE SIMILAR TO EXISTING UTILITY/LIGHT POLES IN THE VICINITY. 4. SPACING. NO SMALL CELL FACILITY SHALL BE LOCATED WITHIN ONE THOUSAND FEET (1000 FT) OF ANY OTHER SUCH FACILITY. 5. DESIGN. SMALL CELL FACILITIES SHALL BE DESIGNED TO BLEND WITH AND BE CAMOUFLAGED IN RELATION TO THE STRUCTURE UPON WHICH THEY ARE LOCATED (E.G.: PAINTED TO MATCH THE STRUCTURE OR SAME MATERIAL AND COLOR AS ADJACENT UTILITY POLES). 6. PERMITTING. SMALL CELL FACILITIES AND NETWORKS SHALL MAKE APPLICATION FOR A PERMIT FOR WORK IN THE RIGHT-OF-WAY UNDER CODE SECTION 21-11, ET. SEQ., AND FOR LOCATION AND MAINTENANCE OF SUCH FACILITY SHALL MAKE APPLICATION FOR A PERMIT FOR USE OF THE PUBLIC RIGHT OF WAY UNDER CODE SECTION 21-101, ET SEQ. SMALL CELL FACILITIES AND NETWORKS SHALL MAKE APPLICATION FOR LOCATION ON PRIVATE PROPERTY THROUGH THE BUILDING PERMIT PROCESS. THE CITY MAY ACCEPT APPLICATIONS FOR A SMALL CELL NETWORK, PROVIDED EACH SMALL CELL FACILITY SHALL BE SEPARATELY REVIEWED. 7. INDEMNIFICATION. THE OPERATOR OF A SMALL CELL FACILITY WHICH IS PERMITTED TO LOCATE ON A CITY -OWNED UTILITY POLE, TRAFFIC SIGNAL OR OTHER STRUCTURE OWNED BY THE CITY SHALL, AS A CONDITION OF PERMIT APPROVAL, INDEMNIFY THE CITY FROM AND AGAINST ALL LIABILITY AND CLAIMS ARISING AS A RESULT OF THAT ATTACHMENT, INCLUDING REPAIR AND REPLACEMENT OF DAMAGED POLES AND EQUIPMENT, IN A FORM APPROVED BY THE CITY ATTORNEY. 8. BONDING. ALL PERMITS FOR LOCATION OF SMALL CELL FACILITIES ON REAL PROPERTY NOT OWNED BY THE SMALL CELL PERMITTEE -7- SHALL INCLUDE AS A CONDITION OF APPROVAL A BOND, IN FORM APPROVED BY THE CITY ATTORNEY, TO GUARANTEE PAYMENT FOR ANY DAMAGES TO THE REAL PROPERTY AND REMOVAL OF THE FACILITY UPON ITS ABANDONMENT. Standards for ground -mounted accessory equipment. Ground -mounted accessory equipment that is associated with a freestanding, roof -mounted or building -mounted CMRS facility are subject to the following requirements and shall be evaluated with the associated CMRS facility application. 1. Ground -mounted accessory equipment shall be subject to the accessory structure setback requirements in the underlying zone district. 2. Ground -mounted accessory equipment or buildings containing accessory equipment shall not exceed 12 feet in height. 3. Ground -mounted accessory equipment not fully enclosed in a building shall be fully screened from adjacent residential properties and public rights-of-way. 4. Buildings containing ground -mounted accessory equipment shall be architecturally compatible with the existing structures on the property and character of the neighborhood. J. Definitions. 1. Alternative Tower CMRS facility. An existing or proposed structure that is compatible with the natural setting and surrounding structures and that camouflages or conceals the presence of the antennae and can be used to house or mount CMRS antenna. Examples include manmade trees, clock towers, bell steeples, light poles, silos, existing utility poles, existing utility transmission towers and other similar alternative designed structures. 2. Tower. Any freestanding structure designed and constructed primarily for the purpose of supporting one (1) or more Federal Communications Commission - licensed or authorized antennae, including self-supporting lattice towers, guy towers and monopole towers, radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers and other similar structures. The term also includes any antenna or antenna array attached to the tower structure. 3. Substantially Change. A modification which substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria, including a single change or a series of changes over time whether made by a single owner or operator or different owners/operators over time, when viewed against the initial approval for the support structure. The following are considered substantial changes: a. For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support M structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater; b. For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the Tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet; c. For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, or more than four cabinets; or, for towers in the public rights- of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure; d. It entails any excavation or deployment outside the current site e. It would defeat the concealment elements of the eligible support structure; or f. It does not comply with conditions associated with the original siting approval for the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in paragraphs a through a of this definition. Section 2. The following definitions are hereby deleted from Section 26-123 and inserted within Section 26-615 under a new paragraph I: Building or structure -mounted commercial mobile radio service facility. A CMRS facility in which antenna are mounted to an existing structure (e.g., water tower, light pole, steeple, etc.) or building face. CDOT COLORADO DEPARTMENT OF TRANSPORTATION. Commercial mobile radio service (CMRS) accessory building or cabinet. An unmanned building or cabinet used to house equipment associated with a CMRS facility. Commercial mobile radio service (CMRS) site. An unmanned facility consisting of equipment for the reception, switching and transmission of wireless telecommunications, including, but not limited to, personal communications service (PCS), enhanced specialized mobile radio (ESMR), paging, cellular telephone and similar technologies. in Freestanding commercial mobile radio service (CMRS) facility. A CMRS facility that consists of a stand-alone support facility (monopole and/or lattice structure), antenna, associated equipment, accessory buildings and equipment cabinets. Roof -mounted commercial mobile radio service (CMRS) facility. A CMRS facility in which antenna are mounted on an existing building roof. SMALL CELL CMRS FACILITY MEANS EITHER: 1. A PERSONAL WIRELESS SERVICE FACILITY AS DEFINED BY THE FEDERAL TELECOMMUNICATIONS ACT OF 1996," AS AMENDED AS OF AUGUST 6,2014; OR 2. A WIRELESS SERVICE FACILITY THAT MEETS BOTH OF THE FOLLOWING QUALIFICATIONS: a. EACH ANTENNA IS LOCATED INSIDE AN ENCLOSURE OF NO MORE THAN THREE CUBIC FEET IN VOLUME OR, IN THE CASE OF AN ANTENNA THAT HAS EXPOSED ELEMENTS, THE ANTENNA AND ALL OF ITS EXPOSED ELEMENTS COULD FIT WITHIN AN IMAGINARY ENCLOSURE OF NO MORE THAN THREE CUBIC FEET; AND b. PRIMARY EQUIPMENT ENCLOSURES ARE NOT LARGER THAN SEVENTEEN CUBIC FEET IN VOLUME. THE FOLLOWING ASSOCIATED EQUIPMENT MAY BE LOCATED OUTSIDE OF THE PRIMARY EQUIPMENT ENCLOSURE AND, IF SO LOCATED, IS NOT INCLUDED IN THE CALCULATION OF EQUIPMENT VOLUME: ELECTRIC METER, CONCEALMENT, TELECOMMUNICATIONS DEMARCATION BOX, GROUND-BASED ENCLOSURES, BACK-UP POWER SYSTEMS, GROUNDING EQUIPMENT, POWER TRANSFER SWITCH, AND CUT-OFF SWITCH. SMALL CELL CMRS NETWORK. A COLLECTION OF INTERRELATED SMALL CELL FACILITIES DESIGNED TO DELIVER WIRELESS SERVICE. Section 3. Severability, Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 4. Effective Date. This Ordinance shall take effect upon adoption and signature by the Mayor and City Clerk, as permitted by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of to on this day of , 2017, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for , 2017 at 7:00 p.m. in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. -10- READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of to , this day of 2017. SIGNED by the Mayor on this day of 2017. Joyce Jay, Mayor ATTEST: Janelle Shaver, City Clerk Approved as to Form Gerald E. Dahl, City Attorney First Publication: Second Publication: Wheat Ridge Transcript Effective Date: Published: Wheat Ridge Transcript and www.ci.wheatridge.co.us -11- CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER MATHEWS COUNCIL BILL NO. 22 ORDINANCE NO. 161 z Series 2016 TITLE: AN ORDINANCE REPEALING AND REENACTING SECTION 26-615 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING COMMERCIAL MOBILE RADIO SERVICE AND MAKING CONFORMING AMENDMENTS IN CONNECTION THEREWITH WHEREAS, the City of Wheat Ridge is a home rule municipality having all powers conferred by Article XX of the Colorado Constitution; and WHEREAS, the City Council is authorized by the Constitution. the Home Rule Charter and CRS 31-23-101 et seq. to regulate land use and development within the City; and WHEREAS, in the exercise of that authority, the City Council of the City of Wheat Ridge has previously enacted Chapter 26 of the Wheat Ridge Code of Laws (the "Code") pertaining to zoning, land use, and development: and WHEREAS, in the exercise of this authority the Council has previously adopted Section 26-215 of the Wheat Ridge Code of Laws concerning commercial mobile radio service; and WHEREAS, the Council wishes to repeal and reenact Section 26-615 to better regulate these services, and to make conforming amendments in connection therewith, NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 26-615 of the Code, concerning commercial mobile radio service facilities, is hereby repealed and reenacted in its entirety to read as follows: Sec. 26-615. — Commercial mobile radio service (CMRS) facilities. A. Purpose and intent. The purpose and intent of this section 26-615 is to accommodate the communication needs of residents and businesses while protecting the public health, safety, and general welfare of the community. These regulations are necessary in order to: 1. Facilitate the provision of wireless telecommunication services to the residents and businesses of the city. 2 Minimize adverse impacts of facilities through careful design, siting and screening standards. 3. Encourage and maximize colocation and the use of existing and approved towers, buildings, and other structures to accommodate new wireless telecommunication antennas in order to reduce the number of towers needed to serve the community. 4. Provide specific regulations related to the review processes for CMRS facilities. 5. Align the review and approval process for CMRS facilities with the FCC and any other agency of the federal government with the authority to regulate CMRS facilities. B Applicability. The standards contained in this section shall apply to all applications for any CMRS facility. The applicant shall demonstrate in writing that its proposed CMRS facility meets all applicable standards and provisions of the code. Pre- existing CMRS facilities shall not be required to meet the requirements of this section, other than the requirements of subsection E. Changes and additions to pre-existing CMRS facilities must meet the applicable requirements of this section. C. Review and approval process. Proposed CMRS facilities shall be reviewed pursuant to the following procedures depending upon the facility type and/or proposed change: 1. Review procedure a. Building- or structure -mounted facilities in all zone districts shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. b. Roof -mounted facilities in all zone districts shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. c. New freestanding or alternative tower CMRS facilities must receive a special use permit, pursuant to sections 26-114, 26-204 and 26-1111. d. New freestanding or alternative tower CMRS facilities in all planned development zone districts (including planned residential districts) unless specifically listed or shown as such in the outline development plan, also require amendment of the outline development plan pursuant to Article III. At the sole discretion of the community development director, new freestanding or alternative tower CMRS facilities may be reviewed as a special use pursuant to sections 26- 114, 26-204 and 26-309. e. Applications for colocation on any existing facility shall be reviewed by the community development department through a building permit application for compliance with the requirements for such facilities. 0000,0,000,00000000 2. Approval process a. The city shall review and act upon the application within the following / time periods: l i. Within 30 days the city will give written notice of incompleteness I if so determined, specifying the code section(s) that requires such missing information This determination pauses the remaining deadlines until a complete application is filed. 2 � r� ii. Within 60 days the city will act on applications that are not a substantial change. iii. Within 90 days the city will act on colocation applications that are not a substantial increase in the size of a tower. iv. Within 150 days the city will act on applications for new CMRS facilities, colocation applications that are a substantial increase in the size of the tower or substantial increase of an existing CMRS facility. b. The final action of the city on any CMRS application shall be in writing and shall advise the applicant of the reasons for approval, approval with conditions, or denial. D. Standards for all CMRS facilities. The following are standards for all CMRS facilities. 1. Colocation. The shared use of existing freestanding or roof -mounted CMRS facilities shall be preferred to the construction of new facilities in order to minimize adverse visual impacts associated with the proliferation of towers. a. No CMRS application to construct a new freestanding or roof -mounted CMRS facility shall be approved unless the applicant demonstrates to the reasonable satisfaction of the city that no existing CMRS facility within a reasonable distance, regardless of municipal boundaries, can accommodate the applicant's needs. Evidence submitted to demonstrate that no existing facility can accommodate the applicant's proposed CMRS facility shall consist of one or more of the following. i No existing CMRS facilities are located within the geographic area required to meet the applicant's coverage demands. ii. Existing CMRS facilities or structures are not of sufficient height to meet the applicant's coverage demands and cannot be extended to such height iii. Existing CMRS facilities or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment. iv. Existing CMRS facilities or structures do not have adequate space on which proposed equipment can be placed so it can function effectively and reasonably. v. The applicant's proposed antenna would cause electromagnetic interference with the antennas on the existing CMRS facility, or the antennas on the existing facility would cause interference with the applicant's proposed antenna. vi. The applicant demonstrates that there are other compelling limiting factors, including but not limited to economic factors, that render CMRS facilities or structures unsuitable. b. No CMRS facility owner or operator shall unreasonably exclude a telecommunication competitor from using the same facility or location Upon request by the city, the owner or operator shall provide evidence and a written statement to explain why colocation is not possible at a particular facility or site. c If a telecommunication competitor attempts to collocate a CMRS facility on an existing or approved CMRS facility or location, and the parties cannot reach an agreement, the city may require a third -party technical study to be completed at the applicant's expense to determine the feasibility of coloration. d. Applications for new freestanding CMRS facilities shall provide evidence that the facility can accommodate coloration of additional carriers. 2. Federal requirements All CMRS facilities shall meet the current standards and regulations of the FAA, the FCC, and any other agency of the federal govemment with the authority to regulate CMRS facilities. Failure to meet such revised standards and regulations shall constitute grounds for revocation of city approvals and removal of the facility at the owner's expense. 3. Safety standards. All CMRS facilities shall conform to the requirements of the international building code, and national electrical code, as applicable. 4. Abandonment. CMRS facilities which are abandoned by nonuse, disconnection of power service, equipment removal or loss of lease for agreater than six (6) months shall be removed by the CMRS facility owner. Should the owner fail to remove the facilities, the city may do so at its option, 1 and the costs thereof shall be a charge against the owner and recovered by certification of the same to the county treasurer for collection as taxes in the manner provided by code section 2-93, or by any other means available under article x of chapter 26. 5. Third party review. a. CMRS providers use various methodologies and analysis tools, including geographically based computer software, to determine the specific technical parameters of CMRS facilities, such as expected coverage area, antenna configuration and topographic constraints that affect signal paths. In certain instances there may be a need for expert review by a third party of the technical data submitted by the CMRS provider. The city may require such a technical review to be paid for by the applicant for a CMRS facility. The selection of the third party expert may be by mutual agreement between the applicant and the city or at the discretion of the city, with a provision for the applicant and interested parties to comment on the proposed expert and review its qualifications. The expert review is intended to be a site-specific review of technical aspects of the CMRS facilities and not a subjective review of the site selection. The expert review of the technical submission shall address the following. i. The accuracy and completeness of the submission; ii. The applicability of analysis techniques and methodologies, iii. The validity of conclusions reached; iv Any specific technical issues designated by the city b Based on the results of the third party review, the city may require changes to the application for the CMRS facility that comply with the recommendation of the expert. & All CMRS facilities are accessory uses to the structure upon which they are placed or to the primary use of the property on which they are constructed No CMRS facility shall be locat d on a vaca(�t lot de id of,any primary or main building. C br `, "��I Ce �!3 i 7. Siting of CMRS facii' ieiin residential areas. The city encourages the siting of CMRS facilities in nonresidential areas. a. The city prohibits freestanding CMRS facilities in the following zone districts: i. Residential -One (R-1), ii. Residential -One A (R -1A), iii. Residential -One B (R -1B), iv. Residential -One C (R -1C), v. Residential -Two (R-2), vi. Residential -Two A (R -2A), vii. Residential -Three (R-3), viii. Residential -Three A (R -3A), ix. Agricultural -One (A-1), x. Agricultural -Two (A-2), and xi. Mixed Use -Neighborhood (MU -N) zone districts. b The city prohibits all CMRS facilities on properties where the principal use is a single or two-family dwelling. c. Alternative tower CMRS facilities may be located on a property containing a non-residential use, regardless of underlying zoning. d. Building, structure or roof -mounted CMRS facilities may be located on a property containing a nonresidential or multi -family use, regardless of underlying zoning. `' e. Alterna ive tower structures may be located on a property `, 4. �1-...��) (t IIS t ed . E. Standards for freestanding and a t� emative tower CMRS facilities. Freestanding and alternative tower CMRS facilities are subject to the following requirements and shall be evaluated as a special use. 1. Freestanding CMRS facilities shall be visually screened from adjacent residential development and public rights-of-way. 2 Freestanding and alternative tower CMRS facilities shall be permitted only as an accessory use, and are subject to accessory use setback development standards in the applicable zone district. 3. Freestanding and alternative tower CMRS facilities shall not exceed the permitted height for the principal use on the subject property. 4. Freestanding CMRS facilities shall not be permitted between the principal structure and the street F Standards for building or structure -mounted CMRS facilities. Building or structure - mounted CMRS facilities are subject to the following requirements and shall be evaluated as part of the community development department's review process. 1. Such facilities shall be architecturally compatible with and textured and colored to match the building or structure to which they are attached. 2. The antenna shall be mounted as flush to the wall as technically possible. The maximum protrusion of such facilities from the building or structure face to which they are attached shall be two (2) feet. 3. Panel antennae shall not extend above the building wall or parapet to which they are mounted. 4. Whip antennae shall extend no more than ten (10) feet above the highest point of the building or structure to which they are attached. G. Standards for roof -mounted CMRS facilities. Roof -mounted CMRS facilities are subject to the following requirements and shall be evaluated as part of community development department's review process. 1. All roof -mounted CMRS facilities and accessory equipment shall be set back from the roof or parapet edge so that visibility from the street or adjacent residential properties is minimized to the greatest extent possible, 2. If roof -mounted equipment is visible from the street or adjacent residential properties, CMRS facilities and accessory equipment shall be screened by materials that are architecturally compatible with and colored to match the building or structure to which they are attached. 3 No roof -mounted facility, including antenna or accessory equipment, shall exceed twelve (12) feet in height, as measured from the roof deck. 4. Roof -mounted accessory equipment shall not be permitted on a sloped roof, unless it can be demonstrated that it is not visible from the street or adjacent re den al area Standards for ground -mounted accessory equipment. Ground -mounted accessory equipment that is associated with a freestanding, roof -mounted or building - mounted CMRS facility are subject to the following requirements and shall be evaluated with the associated CMRS facility application. 1. Ground -mounted accessory equipment shall be subject to the accessory structure setback requirements in the underlying zone district. 2 Ground -mounted accessory equipment or buildings containing accessory equipment shall not exceed 12 feet in height. 3. Ground -mounted accessory equipment not fully enclosed in a building shall be fully screened from adjacent residential properties and public rights-of- way. 4. Buildings containing ground -mounted accessory equipment shall be architecturally compatible with the existing structures on the property and character of the neighborhood. N Definitions. 1 Alternative Tower CMRS facility. An existing or proposed structure that is compatible with the natural setting and surrounding structures and that camouflages or conceals the presence of the antennae and can be used to house or mount CMRS antenna. Examples include manmade trees, clock towers, bell steeples, light poles, silos, existing utility poles, existing utility transmission towers and other similar alternative designed structures. 2. Tower. Any freestanding structure designed and constructed primarily for the purpose of supporting one (1) or more Federal Communications Commission - licensed or authorized antennae, including self-supporting lattice towers, guy towers and monopole towers, radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers and other similar structures. The term also includes any antenna or antenna array attached to the tower structure. 3 Substantially Change. A modification which substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria, including a single change or a series of changes over time whether made by a single owner or operator or different owners/operators over time, when viewed against the initial approval for the support structure. The following are considered substantial changes: a. For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater, b. For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the Tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet; c For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, or more than four cabinets or, for towers in the public rights- of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure; d. It entails any excavation or deployment outside the current site; e. It would defeat the concealment elements of the eligible support structure; or f. It does not comply with conditions associated with the original siting approval for the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in paragraphs a through a of this definition Section 2. The following definitions are hereby deleted from Section 26-123 and inserted within Section 26-615 under a new paragraph L Building or structure -mounted commercial mobile radio service facility. A CMRS facility in which antenna are mounted to an existing structure (e.g., water tower, light pole, steeple, etc.) or building face Commercial mobile radio service (CMRS) accessory building or cabinet An unmanned building or cabinet used to house equipment associated with a CMRS facility. Commercial mobile radio service (CMRS) site. An unmanned facility consisting of equipment for the reception, switching and transmission of wireless telecommunications, including, but not limited to, personal communications service (PCS), enhanced specialized mobile radio (ESMR), paging, cellular telephone and similar technologies. Freestanding commercial mobile radio service (CMRS) facility. A CMRS facility that consists of a stand-alone support facility (monopole and/or lattice structure), antenna, associated equipment, accessory buildings and equipment cabinets Roof -mounted commercial mobile radio service (CMRS) facility. A CMRS facility in which antenna are mounted on an existing building roof. Section 3. Severability, Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 4. Effective Date. This Ordinance shall take effect fifteen (15) days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 7 to 0 on this 26"' day of September, 2016, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for October 10, 2016 at 7:00 p.m., continued to November 14, 2016 at 7:00 p.m. in the Council Chambers, 7500 West 2VI Avenue, Wheat Ridge. Colorado READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of 8 to 0 , this 14th day of November 2016. SIGNED by the Mayor on this 14th day of November 2016 ATTEST: J -4 -Ile Shaver, City C ok WHEAT U SEAOG) cOt 0RPP J yce ay r r Approved to Form Gerald E. Dahl, City Attorne First Publication: October 6, 2016: October 13, 2016 Second Publication: November 17, 2016 Wheat Ridge Transcript Effective Date: December 2, 2016 Published: Wheat Ridge Transcript and www.ci.wheatridge.co.us Kenneth Johnstone From: Kenneth Johnstone Sent: Tuesday, May 2, 2017 8:54 AM To: Kenneth Johnstone Subject: Small Cell Facilities - Scott, Ken and Jerry Small Cell Facilities - Scott, Ken and Jerry - they get to be rights of way and easements (constrain ability in easement in our local ordinance) - right of way permits for construction - some other type of permit or license for permanent facility - design standards - in 26-615 and Streetscape Design Manual - design standards - prioritize existing poles, regardless of ownership - maximum height - zoning, structure to which it is attached, max of 35 feet - design material to match surrounding facilities - indemnification - Bond for the cost of removal - possibly - Permitting done through CMRS chapter 26 process - May 15 study session - share bill, brief cover memo, subject them to current reg's, design standards, confirm review process, bonding in ROW for abandonment, miscellaneous - staff report - May 22 - 1st reading - June 1 PC hearing -June 12 2nd reading Sent from my iPad HOUSE BILL 17-1193 BY REPRESENTATIVES) Kraft -Tharp and Becker J., Arndt, Becker K., Danielson, Ginal, Hansen, Hooton, Kennedy, McKean, Melton, Pabon, Van Winkle, Gray, Lontine, Wilson, Duran; also SENATOR(S) Tate and Ken, Crowder, Donovan, Fields, Garcia, Guzman, Hill, Holbert, Jahn, Kefalas, Lundberg, Marble, Martinez Humenik, Merrifield, Neville T., Priola, Scott, Todd, Williams A., Zenzinger, Grantham. CONCERNING THE INSTALLATION OF SMALL WIRELESS SERVICE INFRASTRUCTURE WITHIN A LOCAL GOVERNMENT'S JURISDICTION, AND, IN CONNECTION THEREWITH, CLARIFYING THAT AN EXPEDITED PERMITTING PROCESS APPLIES TO SMALL CELL FACILITIES AND SMALL CELL NETWORKS AND THAT THE RIGHTS-OF-WAY ACCESS AFFORDED TELECOMMUNICATIONS PROVIDERS EXTENDS TO BROADBAND PROVIDERS AND TO SMALL CELL FACILITIES AND SMALL CELL NETWORKS. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 29-27401, add (2) as follows: 29-27-401. Legislative declaration. (2) THE GENERAL ASSEMBLY Capital letters indicate new material added to existing statutes; dashes through words indicate deletions from existing statutes and such material not part of act. FURTHER FINDS AND DECLARES THAT: (a) SMALL CELL FACILITIES OFTEN MAY BE DEPLOYED MOST EFFECTIVELY IN THE PUBLIC RIGHTS-OF-WAY; AND (b) ACCESS TO LOCAL GOVERNMENT STRUCTURES IS ESSENTIAL TO THE CONSTRUCTION AND MAINTENANCE OF WIRELESS SERVICE FACILITIES OR BROADBAND FACILITIES. SECTION 2. In Colorado Revised Statutes, 29-27-442, amend (1), (4), and (7); and add (1.5), (3.5), and (6.5) as follows: 29-27402. Definitions. As used in this part 4, unless the context otherwise requires: (1) "ANTENNA" MEANS COMMUNICATIONS EQUIPMENT THAT TRANSMITS OR RECEIVES ELECTROMAGNETIC RADIO FREQUENCY SIGNALS USED TO PROVIDE WIRELESS SERVICE. (1.5) 'BROADBAND FACILITY" MEANS ANY INFRASTRUCTURE USED TO DELIVER BROADBAND SERVICE OR FOR THE PROVISION OF BROADBAND SERVICE. (3.5) "MICRO WIRELESS FACILITY" MEANS A SMALL WIRELESS FACILITY THAT IS NO LARGER IN DIMENSIONS THAN TWENTY-FOUR INCHES IN LENGTH, FIFTEEN INCHES IN WIDTH, AND TWELVE INCHES IN HEIGHT AND THAT HAS AN EXTERIOR ANTENNA, IF ANY, THAT IS NO MORE THAN ELEVEN INCHES IN LENGTH. (4) (a) "Small cell facility" means either: (a) (1) A personal wireless service facility as defined by the federal "Telecommunications Act of 1996", as amended as of August 6, 2014; or (b) (In A wireless service facility that meets both of the following qualifications: (f) (A) Each antenna is located inside an enclosure of no more than PAGE 2 -HOUSE BILL 17-1193 three cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than three cubic feet; and "(B) Primary equipment enclosures are no larger than seventeen cubic feet in volume. The following associated equipment may be located outside of the primary equipment enclosure and, if so located, is not included in the calculation of equipment volume: Electric meter, concealment, telecommunications demarcation box, ground-based enclosures, back-up power systems, grounding equipment, power transfer switch, and cut-off switch. (b) "SMALL CELL FACILITY" INCLUDES A MICRO WIRELESS FACILITY. (6.5) "TOWER" MEANS ANY STRUCTURE BUILT FOR THE SOLE OR PRIMARY PURPOSE OF SUPPORTING ANTENNAS LICENSED OR AUTHORIZED BY THE FEDERAL COMMUNICATIONS COMMISSION AND THE ANTENNAS' ASSOCIATED FACILITIES, INCLUDING STRUCTURES THAT ARE CONSTRUCTED FOR WIRELESS COMMUNICATIONS SERVICES INCLUDING PRIVATE, BROADCAST, AND PUBLIC SAFETY SERVICES; UNLICENSED WIRELESS SERVICES; FIXED WIRELESS SERVICES SUCH AS BACKHAUL; AND THE ASSOCIATED SITE. (7) "Wireless service facility" means a facility for the provision of wireless services; EXCEPT THAT "WIRELESS SERVICE FACILITY" DOES NOT INCLUDE COAXIAL OR FIBER-OPTIC CABLE THAT IS NOT IMMEDIATELY ADJACENT TO, OR DIRECTLY ASSOCIATED WITH, A PARTICULAR ANTENNA. SECTION 3. In Colorado Revised Statutes, 29-27-403, amend (1) and (3) as follows: 29-27-403. Permit - approval - deadline - exception. (1) A local government may take up to: (a) NINETY DAYS TO PROCESS A COMPLETE APPLICATION FOR: (I) LOCATION OR COLLOCATION OF A SMALL CELL FACILITY OR A SMALL CELL NETWORK; OR (II) REPLACEMENT OR MODIFICATION OF A SMALL CELL FACILITY OR PAGE 3 -HOUSE BILL 17-1193 FACILITIES OR SMALL CELL NETWORK. (a) (b) Ninety days to process a complete application that involves a collocation of a tower, building, structure, or replacement structure OTHER THAN A SMALL CELL FACILITY OR SMALL CELL NETWORK; or (bj (c) One hundred fifty days to process a complete application that involves a new structure or a new wireless service facility, OTHER THAN A SMALL CELL FACILITY OR SMALL CELL NETWORK AND other than a collocation. (3) An applicant and a local government ENTITY may mutually agree that an application may be processed in a longer period than set forth in subsection (1) of this section. SECTION 4. In Colorado Revised Statutes, 29-27-404, amend (1) and (2) introductory portion; and add (3) as follows: 29-27404. Permit process. (1) (a) For small cell networks involving multiple individual small cell facilities within the jurisdiction of a single local government ENTITY, the local government ENTITY shall allow the applicant, at the applicant's discretion, to file a consolidated application and receive a single permit for the small cell network instead of filing separate applications for each individual small cell facility. (b) FOR A CONSOLIDATED APPLICATION FILED PURSUANT TO SUBSECTION (1)(a) OF THIS SECTION, EACH SMALL CELL FACILITY WITHIN THE CONSOLIDATED APPLICATION REMAINS SUBJECT TO REVIEW FOR COMPLIANCE WITH OBJECTIVE REQUIREMENTS AND APPROVAL AS PROVIDED IN THIS ARTICLE 27. THE LOCAL GOVERNMENT'S DENIAL OF ANY INDIVIDUAL SMALL CELL FACILITY IS NOT A BASIS TO DENY THE CONSOLIDATED APPLICATION AS A WHOLE OR ANY OTHER SMALL CELL FACILITY INCORPORATED WITHIN THE CONSOLIDATED APPLICATION. (2) If a wireless service provider applies to LOCATE OR collocate several wireless service facilities within the jurisdiction of a single local government ENTM, the local government ENTITY shall: (3) THE SITING, MOUNTING, PLACEMENT, CONSTRUCTION, AND OPERATION OF A SMALL CELL FACILITY OR A SMALL CELL NETWORK IS A PAGE 4 -HOUSE BILL 17-1193 PERMITTED USE BY RIGHT IN ANY ZONE. SECTION 5. In Colorado Revised Statutes, amend 38-5.5-102 as follows: 38-5.5-102. Definitions. As used in this article ARTICLE 5.5, unless the context otherwise requires: (1) 'Broadband" or "broadband service" has the same meaning as set forth in 7 U.S.C. sec. 950bb (b)(1) as of August 6, 2014, and includes "cable service", as defined in 47 U.S.C. sec. 522 (6) as of August 6, 2014. (2) 'Broadband facility" means any infrastructure used to deliver broadband service or for the provision of broadband service. (i.3) (3) "Broadband provider" means a person that provides broadband service, and includes a "cable operator", as defined in 47 U.S.C. sec. 522 (5) as of August 6, 2014. (4) "COLLOCATION" HAS THE SAME MEANING AS SET FORTH IN SECTION 29-27-402 (3). " (5) "Political subdivision" OR "LOCAL GOVERNMENT ENTITY" means a county; city and county; city; town; service authority; school district; local improvement district; law enforcement authority; water, sanitation, fire protection, metropolitan, irrigation, drainage, or other special district; or any other kind of municipal, quasi -municipal, or public corporation organized pursuant to law. M (6) "Public highway" or "highway" for purposes of this article ARTICLE 5.5 includes all roads, streets, and alleys and all other dedicated rights-of-way and utility easements of the state or any of its political subdivisions, whether located within the boundaries of a political subdivision or otherwise. (7) "SMALL CELL FACILITY" HAS THE SAME MEANING AS SET FORTH IN SECTION 29-27-402 (4). (8) "SMALL CELL NETWORK" HAS THE SAME MEANING ASSET FORTH IN SECTION 29-27-402 (5). PAGE 5 -HOUSE BILL 17-1193 (5) (9) "Telecommunications provider" or "provider' means a person that provides telecommunications service, as defined in section 40-15-102 (29), eas.., with the exception of cable services as defined by section 602 (5) of the federal "Cable Communications Policy Act of 1984", 47 U.S.C. sec. 522 (6), pursuant to authority granted by the public utilities commission of this state or by the federal communications commission. "Telecommunications provider" does not mean a person or business using antennas, support towers, equipment, and buildings used to transmit high power over -the -air broadcast of AM and FM radio, VHF and UHF television, and advanced television services, including high definition television. The term "telecommunications provider" is synonymous with "telecommunication provider". SECTION 6. In Colorado Revised Statutes, amend 38-5.5-103 as follows: 38-5.5-103. Use of public highways - discrimination prohibited - content regulation prohibited. (1) (a) Any domestic or foreign telecommunications provider or broadband provider authorized to do business under the laws of this state shall havc HAS the right to construct, maintain, and operate conduit, cable, switches, and related appurtenances and facilities, AND COMMUNICATIONS AND BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELL NETWORKS, along, across, upon, ABOVE, and under any public highway in this state, subject to the provisio this article ARTICLE 5.5 and of article 1.5 of title 9. e a.s., grid (b) The construction, maintenance, operation, and regulation of such THE facilities DESCRIBED IN SUBSECTION (1)(a) OF THIS SECTION, including the right to occupy and utilize the public rights-of-way, by telecommunications providers and broadband providers are to—be matters of statewide concern. Each THE facilities shall be so constructed and maintained s0 as not to obstruct or hinder the usual travel on such A highway. (2) No A political subdivision shall NOT discriminate among or grant a preference to competing telecommunications providers OR BROADBAND PROVIDERS in the issuance of permits or the passage of any ordinance for the use of its rights-of-way, nor create or erect any unreasonable requirements for entry to the rights-of-way for such THE PAGE 6 -HOUSE BILL 17-1193 providers. (3) No A political subdivision shall NOT regulate A telecommunications providers PROVIDER OR A BROADBAND PROVIDER based upon the content or type of signals that are carried or capable of being carried over the provider's facilities; except that nothing in this subsection (3) shall be construed to prevent such PREVENTS regulation by a political subdivision when the authority to so regulate has been granted to the political subdivision under federal law. SECTION 7. In Colorado Revised Statutes, amend 38-5.5-104 as follows: 38-5.5-104. Right-of-way across state land. Any domestic or foreign telecommunications provider OR BROADBAND PROVIDER authorized to do business under the laws of this state shall have HAS the right to construct, maintain, and operate lines of communication, switches, and related facilities, AND COMMUNICATIONS AND BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELLNETWORKS, and obtain A permanent right-of-way therefor FOR THE FACILITIES over, upon, under, and across all public lands owned by or under the control of the state, upon the payment of snrh just compensation and upon compliance with such reasonable conditions as may-be—required-bp the state board of land commissioners MAY REQUIRE. SECTION 8. In Colorado Revised Statutes, add 38-5.5-104.5 as follows: 38-5.5-104.5. Use of local government entity structures. (1) EXCEPTAS PROVIDED IN SUBSECTION (2) OF THIS SECTION AND SUBJECT TO THE REQUIREMENTS AND LIMITATIONS OF THIS ARTICLE 5.5, SECTIONS 29-27-403 AND 29-27-404, AND A LOCAL GOVERNMENT ENTITY'S POLICE POWERS, A TELECOMMUNICATIONS PROVIDER ORA BROADBAND PROVIDER HAS THE RIGHT TO LOCATE OR COLLOCATE SMALL CELL FACILITIES OR SMALL CELL NETWORKS ON THE LIGHT POLES, LIGHT STANDARDS, TRAFFIC SIGNALS, OR UTILITY POLES IN THE RIGHTS-OF-WAY OWNED BY THE LOCAL GOVERNMENT ENTITY; EXCEPT THAT, A SMALL CELL FACILITY OR A SMALL CELL NETWORK SHALL NOT BE LOCATED OR MOUNTED ON ANY APPARATUS, POLE, OR SIGNAL WITH TOLLING COLLECTION OR ENFORCEMENT EQUIPMENT ATTACHED. PAGE 7 -HOUSE BILL 17-1193 (2) IF, AT ANY TIME, THE CONSTRUCTION, INSTALLATION, OPERATION, OR MAINTENANCE OF A SMALL CELL FACILITY ON A LOCAL GOVERNMENTENTITY'S LIGHT POLE, LIGHT STANDARD, TRAFFIC SIGNAL, OR UTILITY POLE FAILS TO COMPLY WITH APPLICABLE LAW, THE LOCAL GOVERNMENT ENTITY, BY PROVIDING THE TELECOMMUNICATIONS PROVIDER OR THE BROADBAND PROVIDER NOTICE AND A REASONABLE OPPORTUNITY TO CURE THE NONCOMPLIANCE, MAY: (a) CAUSE THE ATTACHMENT ON THE AFFECTED STRUCTURE TO BE REMOVED; AND (b) PROHIBIT FUTURE, NONCOMPLIANT USE OF THE LIGHT POLE, LIGHT STANDARD, TRAFFIC SIGNAL, OR UTILITY POLE. (3) (a) EXCEPT AS PROVIDED IN SUBSECTIONS (3)(b) AND (3)(c) OF THIS SECTION, A LOCAL GOVERNMENT ENTITY SHALL NOT IMPOSE ANY FEE OR REQUIRE ANY APPLICATION OR PERMIT FOR THE INSTALLATION, PLACEMENT, OPERATION, MAINTENANCE, OR REPLACEMENT OF MICRO WIRELESS FACILITIES THAT ARE SUSPENDED ON CABLE OPERATOR -OWNED CABLES OR LINES THAT ARE STRUNG BETWEEN EXISTING UTILITY POLES IN COMPLIANCE WITFI NATIONAL SAFETY CODES. (b) A LOCAL GOVERNMENT ENTITY WITH A MUNICIPAL OR COUNTY CODE THAT REQUIRES AN APPLICATION OR PERMIT FOR THE INSTALLATION OF MICRO WIRELESS FACILITIES MAY, BUT IS NOT REQUIRED TO, CONTINUE THE APPLICATION OR PERMIT REQUIREMENT SUBSEQUENT TO THE EFFECTIVE DATE OF THIS SECTION. (c) A LOCAL GOVERNMENT ENTITY MAY REQUIRE A SINGLE -USE RIGHT-OF-WAY PERMIT IF THE INSTALLATION, PLACEMENT, OPERATION, MAINTENANCE, OR REPLACEMENT OF MICRO WIRELESS FACILITIES: (I) INVOLVES WORKING WITHIN A HIGHWAY TRAVEL LANE OR REQUIRES THE CLOSURE OF A HIGHWAY TRAVEL LANE; LINE; (II) DISTURBS THE PAVEMENTORA SHOULDER, ROADWAY, OR DITCH (III) INCLUDES PLACEMENT ON LIMITED ACCESS RIGHTS-OF-WAY; OR PAGE 8 -HOUSE BILL 17-1193 (IV) REQUIRES ANY SPECIFIC PRECAUTIONS TO ENSURE THE SAFETY OF THE TRAVELING PUBLIC; THE PROTECTION OF PUBLIC INFRASTRUCTURE; OR THE OPERATION OF PUBLIC INFRASTRUCTURE; AND SUCH ACTIVITIES EITHER WERE NOT AUTHORIZED IN, OR WILL BE CONDUCTED IN A TIME, PLACE, OR MANNER THAT IS INCONSISTENT WITH, THE APPROVAL TERMS OF THE EXISTING PERMIT FOR THE FACILITY OR STRUCTURE UPON WHICH THE MICRO WIRELESS FACILITY IS ATTACHED. SECTION 9. In Colorado Revised Statutes, amend 38-5.5-105 as follows: 38-5.5-105. Power of companies to contract. Any domestic or foreign telecommunications provider shall -hay OR BROADBAND PROVIDER HAS THE power to contract with any person or INDIVIDUAL; corporation; OR the owner of any lands, or franchise, easement, or interest therein over or under which the provider's conduits; cable; switches; and COMMUNICATIONS OR BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELL NETWORKS; OR related appurtenances and facilities are proposed to be laid or created for the right-of-way for the construction, maintenance, and operation of such THE facilities and OR for the erection, maintenance, occupation, and operation of offices at suitable distances for the public accommodation. SECTION 10. In Colorado Revised Statutes, amend 38-5.5-106 as follows: 38-5.5-106. Consent necessary for use of streets. (1) (a) Nothin in This wticle shall be constme ARTICLE 5.5 DOES NOT authorize any telecommunications provider OR BROADBAND PROVIDER to erect, WITHIN A POLITICAL SUBDIVISION, any poles or construct any COMMUNICATIONS OR BROADBAND FACILITIES, INCLUDING SMALL CELL FACILITIES AND SMALL CELL NETWORKS; conduit; cable; switch; or related appurtenances and facilities along, through, in, upon, under, or over any public highway within a politicai subdivision without first obtaining the consent of the authorities having power to give the consent of such THE political subdivision. (b) A telecommunications provider OR BROADBAND PROVIDER that, on or before April H, 1996 JULY 1, 2017, either has obtained consent of the political subdivision having power to give such consent or is lawfully PAGE 9 -HOUSE BILL 17-1193 occupying a public highway in a political subdivision shad NEED not be required to apply for additional or continued consent of sash THE political subdivision under this section. (c) NOTWITHSTANDING ANY OTHERPROVISION OF LAW, APOLITICAL SUBDIVISION'S CONSENT GIVEN TO A TELECOMMUNICATIONS PROVIDER OR A BROADBAND PROVIDER TO ERECT OR CONSTRUCT ANY POLES, OR TO LOCATE OR COLLOCATE COMMUNICATIONS AND BROADBAND FACILITIES ON VERTICAL STRUCTURES IN A RIGHT-OF-WAY, DOES NOT EXTEND TO THE LOCATION OF NEW FACILITIES OR TO THE ERECTION OR CONSTRUCTION OF NEW POLES IN A RIGHT-OF-WAY NOT SPECIFICALLY REFERENCED IN THE GRANT OF CONSENT. (2) (a) THE consent OF A POLITICAL SUBDIVISION for the use of a public highway within a political subdivision ITS JURISDICTION shall be based upon a lawful exercise of the ITS police power of such political subdivision and shall not be unreasonably withheld. = (b) A POLITICAL SUBDIVISION shall NOT CREATE any preference or disadvantage becreatedthrough the granting or withholding of such ITS consent. A POLITICAL SUBDIVISION'S DECISION THAT A VERTICAL STRUCTURE IN THE RIGHT-OF-WAY, INCLUDING A VERTICAL STRUCTURE OWNED BY A MUNICIPALITY, LACKS SPACE OR LOAD CAPACITY FOR COMMUNICATIONS OR BROADBAND FACILITIES, OR THAT THE NUMBER OF ADDITIONAL VERTICAL STRUCTURES IN THE RIGHTS-OF-WAY SHOULD BE REASONABLY LIMITED, CONSISTENT WITH PROTECTION OF PUBLIC HEALTH, SAFETY, AND WELFARE, DOES NOT CREATE A PREFERENCE FOR OR DISADVANTAGE ANY TELECOMMUNICATIONS PROVIDER OR BROADBAND PROVIDER, PROVIDED THAT SUCH DECISION DOES NOT HAVE THE EFFECT OF PROHIBITING A PROVIDER'S ABILITY TO PROVIDE SERVICE WITHIN THE SERVICE AREA OF THE PROPOSED FACILITY. SECTION 11. In Colorado Revised Statutes, 38-5.5-107, amend (7) as follows: 38-5.5-107. Permissible taxes, fees, and charges. (7) As used in this section, "public highway" or "highway" as otherwise defined in section 38-5.5-102 (-2) (6) does not include excess and remainder rights-of-way under the department of transportation's jurisdiction. PAGE 10 -HOUSE BILL 17-1193 SECTION 12. In Colorado Revised Statutes, amend 38-5.5-108 as follows: 38-5.5-108. Pole attachment agreements - limitations on required payments. (1) NoNEITHERALOCAL GOVERNMENT ENTITYNOR A municipally owned utility shall request or receive from a telecommunications provider, BROADBAND PROVIDER, ora cabletelevision provider, as defined in section 602 (5) of the federal "Cable Communications Policy Act of 1984", in exchange for permission to attach SMALL CELL FACILITIES, BROADBAND DEVICES, OR telecommunications devices to poles OR STRUCTURES IN A RIGHT-OF-WAY, any payment in excess of the amount that would be authorized if the LOCAL GOVERNMENT ENTITY OR municipally owned utility were regulated pursuant to 47 U.S.C. sec. 224, as amended. (2) No A municipality shall NOT request or receive from a telecommunications provider ORA BROADBAND PROVIDER, in exchange for or as a condition upon a grant of permission to attach telecommunications OR BROADBAND devices to poles, any in-kind payment. SECTION 13. Effective date - applicability. This act takes effect July 1, 2017, and applies to permit applications received on or after said date. SECTION 14. Safety clause. The general assembly hereby finds, PAGE 11 -HOUSE BILL 17-1193 determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety. Crisanta Duran SPEAKER OF THE HOUSE OF REPRESENTATIVES wa"7c-� 6 Lalen�l- Mardyn Ed s CHIEF CLERK OF THE HOUSE OF REPRESENTATIVES APPROVED ?7 i 1 �J ��' l Kevin J. Grantham PRESIDENT OF THE SENATE Effie Amee SECRETARY OF THE SENATE PAGE 12 -HOUSE BILL 17-1193 Kenneth Johnstone From: Kenneth Johnstone Sent: Tuesday, May 2, 2017 9:14 AM To: Karen Van Ert Cc: Patrick Goff (pgoff@ci.wheatridge.co.us); Scott Brink; Gerald E. Dahl (gdahl@mdkrlaw.com); Tammy Odean (todean@ci.wheatridge.co.us) Subject: CC and PC Agendas on In response to new state legislation, staff is recommending the City considering amending our CMRS regulations to accommodate facilities referred to as "small cells". Scott, Jerry and I met yesterday to discuss what a local ordinance might look like and I will be preparing a staff memo this week to go into the May 15 study session packet. So the agenda item is as follows: "An Ordinance amending Chapters 21 and 26 of the Code to regulate and allow Small Cell Commercial Mobile Radio Service facilities in public rights of way" Tammy, please create a case file and assign a case number. Schedule. The ordinance is effective July 1 and we have some concern that we may receive an application then or shortly thereafter and we want to be in the driver's seat as to the manner in which they can locate in the ROW. May 15 study session May 22 1St Reading June 1 PC public hearing June 12 Public Hearing (additional opportunity on June 26, if needed) Thanks Ken Johnstone, AICP Community Development Director 7500 W. 29th Avenue Wheat Ridge, Colorado 80033 Office Phone: 303-235-2844 Fax: 303-234-2824 www.ci.wheatridge.co.us City or WhcatlJljde cOMMUNIT) DIV1:1MMIN1 CONFIDENTIALITY NOTICE: This e-mail contains business -confidential information. It is intended only for the use of the individual or entity named above. If you are not the intended recipient, you are notified that any disclosure, copying, distribution, electronic storage or use of this communication is prohibited. If you received this communication in error, please notify us immediately by e-mail, attaching the original message, and delete the original message from your computer, and any network to which your computer is connected. Thank you. Kenneth Johnstone From: Gerald Dahl <gdahl@mdkrlaw.com> Sent: Thursday, April 27, 2017 12:46 AM To: Kenneth Johnstone Cc: Patrick Goff Subject: RE: Small Cell It is a little complicated. To the extent the facility is an "eligible facilities request" ( colocation, repair, modification or replacement of equipment), there is a federal rule making such activities immune from moratoria. New facilities would be subject to such a moratorium. I am in the final stages of doing small cell regs for the city of Fountain (as a part of a wholesale CMRS regulation revision) , and they are only about two pages. We can easily drop them into the Code; it might be a while before we get much in the way of applications from companies, but with Mobilite, you never know. Meantime, the City can still require its ROW permit process. Let me know if you want to discuss live to more fully explore the alternatives. Gerald E. Dahl gdahl@mdkrlaw.com Direct: 303-493-6686 Murray Dahl Kuechenmeister & Renaud LLP 710 Kipling Street Suite 300 Lakewood CO 80215 Phone: 303-493-6670 Fax: 303-945-7960 www.mdkrlaw.com This electronic mail transmission and any accompanying documents contain information belonging to the sender which may be confidential and legally privileged. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, and any attachments thereto, is strictly prohibited. If you have received this e-mail in error, please notify me immediately by telephone or e-mail and destroy the original message without making a copy. Thank you. -----Original Message ----- From: Kenneth Johnstone[maiIto:kjohnstone@ci.wheatridge.co.us] Sent: Tuesday, April 25, 2017 3:30 PM To: Gerald Dahl Cc: Patrick Goff Subject: Small Cell Jerry, do we have any options regarding a temporary moratorium on these facilities in the ROW? We have it penciled in for CC discussion on May 15, but it will be tight to get an ordinance passed, including a PC hearing prior to the July 1 effective date. Thanks. Ken Sent from my Wad Chapter 17.44 COMMERCIAL MOBILE RADIO SERVICE Sections: 17.440 Purpose and Intent 17.442 Scope; applicability 17.444 Design standards for all CMRS facilities 17.446 Design standards for freestanding CMRS facilities 17.448 Design standards for building mounted CMRS facilities 17.500 Design standards for roof mounted CMRS facilities 17.552 Permitted locations for CMRS facilities 17.553 Small cell facilities and networks 17.554 Review procedures 17.556 Discontinuance and abandonment 17.558 Definitions 17.440 Purpose and Intent. The purpose and intent of this Chapter is to accommodate the communication needs of residents and businesses while protecting the public health, safety, and general welfare of the community. These regulations are necessary in order to: A. Facilitate the provision of wireless telecommunication services to the residents and businesses of the city. B. Minimize adverse impacts of facilities through careful design, siting and screening standards. C. Encourage and maximize collocation and the use of existing and approved towers, buildings, and other structures to accommodate new wireless telecommunication antennas in order to reduce the number of towers needed to serve the community. D. Provide specific regulations related to the review processes for CMRS facilities. E. Align the review and approval process for CMRS facilities with the FCC and any other agency of the federal government with the authority to regulate CMRS facilities. 17.442 Scope; applicability. A. This Chapter applies to all CMRS facilities as defined in Section 17.558. For purposes of this Chapter, CMRS service includes broadband service. B. All CMRS facilities owned or operated by the City of Fountain or any agency or department thereof are exempt from all requirements of this Chapter. C. Existing CMRS facilities on the date of adoption of this Chapter ( , 2017) may continue to be operated and maintained despite the fact of their being nonconforming with respect to the requirements of this Chapter, provided, however, that such legally -nonconforming CMRS facilities shall be subject to the requirements of Chapter 17.60 of the Fountain Municipal Code. To the extent such legally nonconforming CMRS facilities are proposed to be expanded or modified, such expansion or modification shall follow the procedures and limitations set forth in Chapter 17.60, unless the expansion or modification is an "Eligible Telecommunications Facilities Request," in which case the time limit of Section 17.554.1).1 shall apply. D. To the extent CMRS facility applications were submitted for review prior to 2017, the same shall be reviewed pursuant to the process and under the criteria set forth in the applicable portions of this Chapter in force prior to that date. The prior version of this Chapter 17.44 is continued in force and effect for that limited purpose only. Upon approval or denial of all such remaining applications the prior regulation shall be deemed repealed. 17.444 Design standards for all CMRS facilities. A. Adequate screening. All CMRS facilities shall be screened by use of color, texture, architectural features, landscaping and fencing. B. Standards for Ground -Mounted Accessory Equipment. Ground -mounted accessory equipment and structures that are associated with a freestanding, roof -mounted or building -mounted CMRS facility are subject to the following requirements and shall be evaluated with the associated CMRS facility application. 1. Ground -mounted accessory equipment shall be subject to the accessory structure setback requirements, if any, in the underlying zone district. In the absence of such requirements, Code Section 17-528 applies. 2. Ground -mounted accessory equipment or buildings containing accessory equipment shall not exceed 12 feet in height. 3. Ground -mounted accessory equipment not fully enclosed in a building shall be screened from all adjacent residential properties and public rights-of-way by landscaping, fences or architectural features, or by undergrounding. 4. Buildings containing ground -mounted accessory equipment shall be architecturally compatible with the existing structures on the property and the character of the neighborhood. C. Safety standards. All CMRS facilities shall conform to the requirements of the International Building Code, or National Electrical Code, as applicable. D. Lighting. Signals, artificial lights, or illumination shall not be permitted on any antenna or tower unless required by the FCC. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance or visual impacts to the adjacent properties, while maintaining compliance with federal standards. E. Signs. Excluding any warning signs as provided herein, signs shall not be allowed on any part of an antenna, tower, or antenna or tower site. For the purposes herein, signs shall include commercial advertising, noncommercial signs, logos, political signs, flyers, flags, or banners. Any signs placed in violation of this subsection shall be removed immediately at the -2- operator's expense. Notwithstanding any other provision of this Code, warning signs listed below shall be utilized in connection with a tower or antenna site. 1. If high voltage is necessary to the operation of the tower or any accessory structures, "HIGH VOLTAGE — DANGER" warning signs shall be permanently attached to the fence or wall surrounding the structure. 2. "NO TRESPASSING" warning signs shall be permanently attached to the fence or wall surrounding the structure. 3. The warning signs shall be installed at least five feet above the finished grade. F. Collocation. The shared use of existing freestanding or roof -mounted CMRS facilities shall be preferred to the construction of new facilities in order to minimize adverse impacts associated with the proliferation of towers. The following collocation requirements apply: No CMRS application shall be approved to construct a new freestanding or roof - mounted CMRS facility unless the applicant demonstrates to the reasonable satisfaction of the City that no existing CMRS facility within a reasonable distance, regardless of municipal boundaries, can accommodate the applicant's needs. Evidence submitted shall consist of one or more of the following: a. No existing CMRS facilities are located within the geographic area required to meet the applicant's coverage demands. b. Existing CMRS facilities or structures are not of sufficient height to meet the applicant's coverage demands and cannot be extended to such height. c. Existing CMRS facilities or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment. d. Existing CMRS facilities or structures do not have adequate space on which proposed equipment can be placed so it can function effectively and reasonably. e. The applicant's proposed antenna would cause electromagnetic interference with the antennas on the existing CMRS facility, or the antennas on the existing facility would cause interference with the applicant's proposed antenna. f. The applicant demonstrates that there are other compelling limiting factors, including but not limited to economic factors, that render existing CMRS facilities or structures unsuitable. 2. No CMRS facility owner or operator shall unreasonably exclude a telecommunication competitor from using the same facility or location. Upon request by the city, the owner or operator shall provide evidence and a written statement to explain why collocation is not possible at a particular facility or site. 3. If a telecommunication competitor attempts to collocate a CMRS facility on an existing or approved CMRS facility or location, and the parties cannot reach an -3- agreement, the city may require a third -party technical study to be completed at the applicant's expense to determine the feasibility of collocation. 4. Applications for new freestanding CMRS facilities shall provide evidence that the (new) facility can accommodate collocation of additional carriers. 17.446 Design standards for freestanding CMRS facilities. A. Stealth design, as described in Section 17.558, is required for all freestanding CMRS facilities. Such facilities shall be subject to architectural review under Section 17.394. B. Height. All freestanding CMRS facilities shall be no taller than the height limit in the relevant zone district, or 35 feet, whichever is less. C. Setback: 1. Freestanding CMRS facilities shall comply with the side and rear yard setback requirements for principal structures of the zone districts in which they are located, or the setback shall be twenty percent (20%) of the height of the antenna support structure and associated equipment, whichever is greater. 2. The front yard setback from property lines for freestanding CMRS facilities adjacent to public or private streets shall be a distance equal to the height of the freestanding facility or twenty percent (20%) of the height of the antenna support structure and associated equipment, whichever is greater. D. Spacing. All freestanding CMRS facilities shall be located at least 1,000 feet from any other CMRS facility, measured in a straight line between the base of the tower structures. E. Landscaping and screening. Because stealth design, as described in Section 17.558, is required for all freestanding CMRS facilities, and because all other ground -mounted accessory equipment associated with such facilities must be adequately screened pursuant to Section 17.444, no aspect of a freestanding CMRS facility shall be immediately visible as such to the public or from adjacent properties. The City encourages, but does not require, ground mounted accessory equipment or structures required in support of a (mandatory) stealth designed freestanding CMRS facility to be fully incorporated into the freestanding stealth antenna facility itself, but only that all such accessory equipment be adequately screened pursuant to the same standards applicable to ground mounted facilities under Section 17.444. All landscaping shall be properly maintained at the operator's expense to ensure good health and viability. F. Security fencing. Towers shall be enclosed by security fencing which measures not less than six feet in height, and shall be equipped with an appropriate anti -climbing device or devices. 17-448 Design standards for building mounted CMRS facilities. All building mounted CMRS facilities must match the color and texture of the building to which they are attached, and may protrude no higher than the parapet wall or the top of the building if no parapet wall is present. A wall antenna may not protrude more than two feet from the building wall. 17-500 Design standards for roof mounted CMRS facilities. M A. All roof mounted CMRS facilities must match the color and texture of the building to which they are attached, and they must be located in the center of the roof to the greatest degree possible. B. All roof mounted CMRS facilities shall be screened, designed, and/or colored to be architecturally compatible with the building upon which they are mounted. Such color, design and screening is encouraged to mimic the techniques used to screen, color and design other rooftop equipment. All roof mounted CMRS facilities are limited in height to 10 feet (including antennae). In no case shall the total height of the antenna and the building exceed the maximum building height in the relevant zone district. 17-552 Permitted locations for CMRS facilities. This Section describes the locations within which various kinds of CMRS facilities, as defined herein and in Section 17.558, may be located. A. Residential districts: Building and roof mount on nonresidential buildings only. B. Commercial districts: Building and roof mount and freestanding (stealth only). C. Residential Mixed Use (RMU) districts: Building and roof mount on nonresidential buildings only. D. Commercial Mixed Use (CMU) districts: Building, roof mount, and freestanding (stealth only). E. Industrial districts: Building and roof mount and freestanding (stealth only). F. PUD. Permitted only if in the approved PUD list of uses and locations; subject to additional requirements and restrictions in the approved PUD, which may be more stringent, but not less stringent than this Chapter. G. City rights-of-way: Small cell CMRS facilities permitted under Section 17.553. 17.553 Small cell facilities and networks. A. Applicable requirements. Small cell facilities and small cell networks, as defined at Section 17.558, shall comply in all respects with the requirements of this Chapter applicable to all CMRS facilities, with the following exceptions: 1. setback requirements; 2. spacing requirements; and 3. design requirements. B. Location. Small cell facilities are permitted in City rights-of-way, upon City facilities in these rights-of-way and CDOT rights-of-way under the following priority: -5- I . First, on a City -owned utility pole, which shall be removed and replaced with a pole designed to contain all antennae and equipment within the pole to conceal any ground-based support equipment and ownership of which pole is conveyed to the City. 2. Second, on a City -owned utility pole with attachment of the small cell facilities in a configuration approved by the City. 3. Third, on a third -party owned utility pole, (with the consent of the owner thereof), with attachment of the small cell facilities in a configuration approved by the City. 4. Fourth, on a traffic signal pole or mast arm in a configuration approved by the City, or in the case of a CDOT facility, by CDOT. 5. Fifth, on a freestanding or ground -mounted facility which meets stealth requirements in a location and configuration approved by the City. C. Height. All small cell facilities shall not exceed two feet above the light pole, traffic signal or other facility or structure to which they are attached, or the maximum height in the relevant zone district, whichever is less. D. Design. Small cell facilities shall be designed to blend with and be camouflaged in relation to the structure upon which they are located (e.g.: painted to match the structure). E. Permitting. Small cell facilities and networks shall make application for location through a revocable permitting system maintained by the City, rather than as conditional use permit. The City may accept applications for a small cell network, provided each small cell facility shall be separately reviewed. F. Indemnification. The operator of a small cell facility which is permitted to locate on a City -owned utility pole, traffic signal or other structure owned by the City shall, as a condition of permit approval, indemnify the City from and against all liability and claims arising as a result of that attachment, including repair and replacement of damaged poles and equipment, in a form approved by the City Attorney. G. Proprietary facilities. Location on City electric facilities will require execution of a Fountain Electric Department Pole Attachment Agreement. 17.554 Review procedures. A. All building and roof mounted CMRS facilities and small cell facilities and networks, and modifications to an existing facility not a substantial change as defined at Section 17.558, shall be reviewed administratively. B. Applications for building or roof mounted facilities, or to place additional antennas on existing freestanding facilities, shall provide the information required on the City's development plan application form, as well as the following: Ell I . A project statement identifying the proposed CMRS facility and the telecommunication service to be provided by the proposed facility. 2. An indication as to whether the facility is designed to accommodate the equipment of additional carriers. 3. Each application for a CMRS facility shall be accompanied by a statement from the building/property owner indicating that they consent to the placement of the CMRS facility on the site and information which indicates that the lease does not preclude collocation. 4. A photo simulation which illustrates "before" and "after" what the building and/or site will look like once the antennas and associated ground -mounted facilities equipment have been installed. The photos should be taken from the adjoining public street and from any adjacent residential zoning from which the antennas and equipment will be visible. 5. Elevation drawings for each side of the building upon which the wall or roof mounted equipment will be visible, as well as any ground -mounted equipment. The drawings should indicate the appearance, color and material of the existing building as well as the location, height, color and material proposed for the antennas and associated equipment. 6. A rooftop plan, which indicates the location and height for any roof mounted antennas or equipment. 7. A site plan shall be required if the proposal includes ground mounted equipment. The plan shall illustrate all existing freestanding facilities, buildings, parking, easements and landscaping existing on the site as well as any proposed CMRS facilities, setbacks, landscaping, screening or security fencing. C. Freestanding CMRS facilities - Conditional use permit required. 1. Applications for freestanding CMRS facilities shall be reviewed by the Planning Commission and City Council as conditional uses pursuant to the procedure and review criteria in Chapter 17.56, as well as the review criteria of this Chapter. 2. Applications for stealth freestanding facilities shall provide the information required on the City's development plan application form, as well as the following: a. A project statement identifying the proposed CMRS facility and the telecommunication service to be provided by the proposed facility. b. An indication as to whether the facility is designed to accommodate the equipment of additional carriers. Each application for a CMRS facility shall be accompanied by a statement from the building/property owner indicating that they consent to the placement of the CMRS facility on the site and information which indicates that the lease does not preclude collocation. -7- c. If a new freestanding facility is proposed, evidence that the carrier has reasonably explored the use of wall or roof or stealth facilities within the search area and determined that said facilities are not feasible or appropriate and justification of the need for the proposed tower and height requested. d. A photo simulation, which illustrates "before" and "after" what the site will look like once the freestanding CMRS facility and ground -mounted equipment have been constructed. The photos should be taken from the adjoining public street and from any adjacent residential zoning from which the freestanding facility will be visible. e. Elevation drawings shall include the freestanding facility, as well as any ground -mounted equipment. The drawings should indicate the appearance, height, color and material proposed for the freestanding facility, antennas and associated equipment. f. The legal description of the subject property which shall be required to be a platted lot in accord with the Subdivision Codes. g. A site development plan shall be required for all freestanding facilities. The plan shall illustrate all existing buildings, parking, easements and landscaping existing on the site as well as any proposed CMRS facility locations, landscaping, screening or security fencing. D. Review deadlines. In compliance with federal law and regulations, the City shall review and act upon all applications within the following time periods: I . Within 30 days the City will give written notice of incompleteness, specifying the code section that requires the information. This halts the remaining deadlines until a complete application is filed. 2. Within 60 days the City will act on applications that are not a "substantial change" (an Eligible Telecommunications Facilities Request). 3. Within 90 days the City will act on collocation applications that are not a substantial change in the size of a tower, or location or collocation applications for a small cell facility or small cell network, or replacement or modification of the same. 4. Within 150 days the City will act on applications for new CMRS facilities, collocation applications that are a substantial increase in the size of the tower or substantial increase an existing CMRS facility that are not a small cell facility or small cell network. E. Third party review of conditional use applications. 1. CMRS service providers use various methodologies and analysis tools, including geographically based computer software, to determine the specific technical parameters of personal wireless services, such as expected coverage area, antenna in configuration and topographic constraints that affect signal paths. In certain instances there may be a need for expert review by a third party of the technical data submitted by the personal wireless services provider. The City may require such a technical review to be paid for by the applicant for the CMRS facility. The selection of the third party expert may be by mutual agreement between the applicant and City or at the discretion of the City, with a provision for the applicant and interested parties to comment on the proposed expert and review its qualifications. The expert review is intended to be a site-specific review of technical aspects of the CMRS facility and not a subjective review of the site selection. The expert review of the technical submission shall address the following: a. The accuracy and completeness of the submission; b. The applicability of analysis techniques and methodologies; c. The validity of conclusions reached; d. Any specific technical issues designated by the City. 2. Based on the results of the third party review, the City may require changes to the application that comply with the recommendations of the expert. F. Review Criteria. The reviewing official or body as appropriate, shall apply the design and location standards contained in Sections 17.444 through 17.553, as appropriate in its review and decision on the application. 17.556 Discontinuance and abandonment. All CMRS providers shall notify the City when they place the FCC on notice, via the filing of FCC form 489, that a specific CMRS facility is being discontinued. Antennas and support structures, which are not in use for six (6) months for CMRS purposes, shall be removed by the CMRS facility owner. This removal shall occur within sixty (60) days of the end of the six (6) month period. Upon removal, the site shall be restored to blend with the surrounding environment. If an abandoned facility is not removed within the required time frame the City shall remove the facility and bill the property owner upon which the facility is located for the cost incurred for the removal. In the event the property owner fails, within thirty (30) days after billing, to pay for the cost and expenses of removal the City may assess a lien against the property for such costs which may be certified to the County Treasurer for collection in the same manner as real property taxes under CRS 31-20-105 and 106. The lien created hereby shall be superior and prior to all other liens excepting liens for general and special taxes. 17.558 Definitions. A. Base station. A station at a fixed location, other than a freestanding CMRS facility, that enables wireless communication between user equipment and a communications network, including any associated equipment such as, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. It includes a structure that currently supports or houses an antenna, transceiver, or other associated equipment in that constitutes part of a base station. It may encompass such equipment in any technological configuration, including distributed antenna systems and small cells. B. Broadband service. Broadband is wide bandwidth data transmission which transports multiple signals and traffic types. The medium can be coaxial cable, optical fiber, radio or twisted pair. In the context of Internet access, broadband is used to mean any high-speed Internet access that is always on and faster than traditional dial-up access. C. Building or structure -mounted commercial mobile radio service (CMRS) facility. A CMRS facility in which antenna are mounted to an existing structure (e.g., water tower, light pole, steeple, etc.) or building face, but excluding roof -mounted facilities. D. CDOT Colorado Department of Transportation. E. Commercial mobile radio service (CMRS) accessory equipment. Equipment, including unmanned cabinets, used to protect and enable operation of radio switching equipment, back-up power and other devices, but not including antenna, that is necessary for the operation of a CMRS facility. F. CMRS facility. An unmanned building or structure consisting of equipment for the reception, switching and transmission of wireless telecommunications, including, but not limited to, personal communications service (PCS), enhanced specialized mobile radio (ESMR), paging, cellular telephone and similar technologies. G. Eligible telecommunications facilities request. Any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station and that involves the collocation of new transmission equipment, the removal of transmission equipment or the replacement of transmission equipment. H. FCC Federal Communications Commission. I. Freestanding CMRS facility. A CMRS facility that consists of a stand-alone support facility or tower (monopole and/or lattice structure), antennae, and associated equipment. J. Ground -mounted CMRS accessory equipment. Equipment, including unmanned cabinets, located on or beneath the ground, used to protect and enable operation of radio switching equipment, back-up power and other devices, but not including antenna, that is necessary for the operation of a CMRS facility including base stations. K. Height. The distance measured from the finished grade of the parcel to the highest point on the tower or other structure, including the base pad and any antenna or other equipment. L. Roof -mounted commercial mobile radio service (CMRS) facility. A CMRS facility in which antenna are mounted on an existing building roof. M. Small cell facility means either: -10- 1. A personal wireless service facility as defined by the federal "Telecommunications Act of 1996," as amended as of August 6, 2014; or 2. A wireless service facility that meets both of the following qualifications: a. Each antenna is located inside an enclosure of no more than three cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than three cubic feet; and b. Primary equipment enclosures are not larger than seventeen cubic feet in volume. The following associated equipment may be located outside of the primary equipment enclosure and, if so located, is not included in the calculation of equipment volume: Electric meter, concealment, telecommunications demarcation box, ground-based enclosures, back-up power systems, grounding equipment, power transfer switch, and cut-off switch. N. Small cell network. A collection of interrelated small cell facilities designed to deliver wireless service. O. Stealth freestanding facilities. Any freestanding CMRS facility which is designed to blend and camouflage the antennas and associated equipment. For example, architecturally screened roof -mounted antennae, building -mounted antennas painted to match the existing structure, and antennas integrated into architectural elements by bell towers, flagpoles, parking lot light poles, clock towers, decorative architectural features, tree towers, city utility poles, etc. P. Substantial change or substantial increase. A modification which substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria, including a single change or a series of changes over time whether made by a single owner or operator or different owners/operators over time, when viewed against the initial approval for the support structure: 1. For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater; 2. For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the Tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet; 3. For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base -11- stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure; 4. It entails any excavation or deployment outside the current site or make the support structure more visible; 5. It would defeat the concealment elements of the eligible support structure; or 6. It does not comply with conditions associated with the original siting approval of the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in paragraphs 1 through 6 of this definition. Q. Tower. Any freestanding structure designed and constructed primarily for the purpose of supporting one (1) or more Federal Communications Commission -licensed or authorized antennae, including self-supporting lattice towers, guy towers and monopole towers, radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers and other similar structures. The term also includes any antenna or antenna array attached to the tower structure. R. Tower Height (average). When referring to a tower or other structure, the distance measured from the average ground level to the highest point on the towner or other structure, even if said highest point is an antenna. -12- Chapter 17.44 COMMERCIAL MOBILE RADIO SERVICE Sections: 17.440 Purpose and Intent 17.442 Scope; applicability 17.444 Design standards for all CMRS facilities 17.446 Design standards for freestanding CMRS facilities 17.448 Design standards for building mounted CMRS facilities 17.500 Design standards for roof mounted CMRS facilities 17.552 Permitted locations for CMRS facilities 17.553 Small cell facilities and networks 17.554 Review procedures 17.556 Discontinuance and abandonment 17.558 Definitions 17.440 Purpose and Intent. The purpose and intent of this Chapter is to accommodate the communication needs of residents and businesses while protecting the public health, safety, and general welfare of the community. These regulations are necessary in order to: A. Facilitate the provision of wireless telecommunication services to the residents and businesses of the city. B. Minimize adverse impacts of facilities through careful design, siting and screening standards. C. Encourage and maximize collocation and the use of existing and approved towers, buildings, and other structures to accommodate new wireless telecommunication antennas in order to reduce the number of towers needed to serve the community. D. Provide specific regulations related to the review processes for CMRS facilities. E. Align the review and approval process for CMRS facilities with the FCC and any other agency of the federal government with the authority to regulate CMRS facilities. 17.442 Scope; applicability. A. This Chapter applies to all CMRS facilities as defined in Section 17.558. For purposes of this Chapter, CMRS service includes broadband service. B. All CMRS facilities owned or operated by the City of Fountain or any agency or department thereof are exempt from all requirements of this Chapter. C. Existing CMRS facilities on the date of adoption of this Chapter ( , 2017) may continue to be operated and maintained despite the fact of their being nonconforming with respect to the requirements of this Chapter, provided, however, that such legally -nonconforming CMRS facilities shall be subject to the requirements of Chapter 17.60 of the Fountain Municipal Code. To the extent such legally nonconforming CMRS facilities are proposed to be expanded or modified, such expansion or modification shall follow the procedures and limitations set forth in Chapter 17.60, unless the expansion or modification is an "Eligible Telecommunications Facilities Request," in which case the time limit of Section 17.554.D.1 shall apply. D. To the extent CMRS facility applications were submitted for review prior to 2017, the same shall be reviewed pursuant to the process and under the criteria set forth in the applicable portions of this Chapter in force prior to that date. The prior version of this Chapter 17.44 is continued in force and effect for that limited purpose only. Upon approval or denial of all such remaining applications the prior regulation shall be deemed repealed. 17.444 Design standards for all CMRS facilities. A. Adequate screening. All CMRS facilities shall be screened by use of color, texture, architectural features, landscaping and fencing. B. Standards for Ground -Mounted Accessory Equipment. Ground -mounted accessory equipment and structures that are associated with a freestanding, roof -mounted or building -mounted CMRS facility are subject to the following requirements and shall be evaluated with the associated CMRS facility application. Ground -mounted accessory equipment shall be subject to the accessory structure setback requirements, if any, in the underlying zone district. In the absence of such requirements, Code Section 17-528 applies. 2. Ground -mounted accessory equipment or buildings containing accessory equipment shall not exceed 12 feet in height. 3. Ground -mounted accessory equipment not fully enclosed in a building shall be screened from all adjacent residential properties and public rights-of-way by landscaping, fences or architectural features, or by undergrounding. 4. Buildings containing ground -mounted accessory equipment shall be architecturally compatible with the existing structures on the property and the character of the neighborhood. C. Safety standards. All CMRS facilities shall conform to the requirements of the International Building Code, or National Electrical Code, as applicable. D. Lighting. Signals, artificial lights, or illumination shall not be permitted on any antenna or tower unless required by the FCC. If lighting is required, the lighting alternatives and design chosen must cause the least disturbance or visual impacts to the adjacent properties, while maintaining compliance with federal standards. E. Signs. Excluding any warning signs as provided herein, signs shall not be allowed on any part of an antenna, tower, or antenna or tower site. For the purposes herein, signs shall include commercial advertising, noncommercial signs, logos, political signs, flyers, flags, or banners. Any signs placed in violation of this subsection shall be removed immediately at the In operator's expense. Notwithstanding any other provision of this Code, warning signs listed below shall be utilized in connection with a tower or antenna site. 1. If high voltage is necessary to the operation of the tower or any accessory structures, "HIGH VOLTAGE — DANGER" warning signs shall be permanently attached to the fence or wall surrounding the structure. 2. "NO TRESPASSING" warning signs shall be permanently attached to the fence or wall surrounding the structure. 3. The warning signs shall be installed at least five feet above the finished grade. F. Collocation. The shared use of existing freestanding or roof -mounted CMRS facilities shall be preferred to the construction of new facilities in order to minimize adverse impacts associated with the proliferation of towers. The following collocation requirements apply: 1. No CMRS application shall be approved to construct a new freestanding or roof - mounted CMRS facility unless the applicant demonstrates to the reasonable satisfaction of the City that no existing CMRS facility within a reasonable distance, regardless of municipal boundaries, can accommodate the applicant's needs. Evidence submitted shall consist of one or more of the following: a. No existing CMRS facilities are located within the geographic area required to meet the applicant's coverage demands. b. Existing CMRS facilities or structures are not of sufficient height to meet the applicant's coverage demands and cannot be extended to such height. c. Existing CMRS facilities or structures do not have sufficient structural strength to support applicant's proposed antenna and related equipment. d. Existing CMRS facilities or structures do not have adequate space on which proposed equipment can be placed so it can function effectively and reasonably. e. The applicant's proposed antenna would cause electromagnetic interference with the antennas on the existing CMRS facility, or the antennas on the existing facility would cause interference with the applicant's proposed antenna. f. The applicant demonstrates that there are other compelling limiting factors, including but not limited to economic factors, that render existing CMRS facilities or structures unsuitable. 2. No CMRS facility owner or operator shall unreasonably exclude a telecommunication competitor from using the same facility or location. Upon request by the city, the owner or operator shall provide evidence and a written statement to explain why collocation is not possible at a particular facility or site. 3. If a telecommunication competitor attempts to collocate a CMRS facility on an existing or approved CMRS facility or location, and the parties cannot reach an -3- agreement, the city may require a third -party technical study to be completed at the applicant's expense to determine the feasibility of collocation. 4. Applications for new freestanding CMRS facilities shall provide evidence that the (new) facility can accommodate collocation of additional carriers. 17.446 Design standards for freestanding CMRS facilities. A. Stealth design, as described in Section 17.558, is required for all freestanding CMRS facilities. Such facilities shall be subject to architectural review under Section 17.394. B. Height. All freestanding CMRS facilities shall be no taller than the height limit in the relevant zone district, or 35 feet, whichever is less. C. Setback: 1. Freestanding CMRS facilities shall comply with the side and rear yard setback requirements for principal structures of the zone districts in which they are located, or the setback shall be twenty percent (20%) of the height of the antenna support structure and associated equipment, whichever is greater. 2. The front yard setback from property lines for freestanding CMRS facilities adjacent to public or private streets shall be a distance equal to the height of the freestanding facility or twenty percent (20%) of the height of the antenna support structure and associated equipment, whichever is greater. D. Spacing. All freestanding CMRS facilities shall be located at least 1,000 feet from any other CMRS facility, measured in a straight line between the base of the tower structures. E. Landscaping and screening. Because stealth design, as described in Section 17.558, is required for all freestanding CMRS facilities, and because all other ground -mounted accessory equipment associated with such facilities must be adequately screened pursuant to Section 17.444, no aspect of a freestanding CMRS facility shall be immediately visible as such to the public or from adjacent properties. The City encourages, but does not require, ground mounted accessory equipment or structures required in support of a (mandatory) stealth designed freestanding CMRS facility to be fully incorporated into the freestanding stealth antenna facility itself, but only that all such accessory equipment be adequately screened pursuant to the same standards applicable to ground mounted facilities under Section 17.444. All landscaping shall be properly maintained at the operator's expense to ensure good health and viability. F. Security fencing. Towers shall be enclosed by security fencing which measures not less than six feet in height, and shall be equipped with an appropriate anti -climbing device or devices. 17-448 Design standards for building mounted CMRS facilities. All building mounted CMRS facilities must match the color and texture of the building to which they are attached, and may protrude no higher than the parapet wall or the top of the building if no parapet wall is present. A wall antenna may not protrude more than two feet from the building wall. 17-500 Design standards for roof mounted CMRS facilities. IN A. All roof mounted CMRS facilities must match the color and texture of the building to which they are attached, and they must be located in the center of the roof to the greatest degree possible. B. All roof mounted CMRS facilities shall be screened, designed, and/or colored to be architecturally compatible with the building upon which they are mounted. Such color, design and screening is encouraged to mimic the techniques used to screen, color and design other rooftop equipment. All roof mounted CMRS facilities are limited in height to 10 feet (including antennae). In no case shall the total height of the antenna and the building exceed the maximum building height in the relevant zone district. 17-552 Permitted locations for CMRS facilities. This Section describes the locations within which various kinds of CMRS facilities, as defined herein and in Section 17.558, may be located. A. Residential districts: Building and roof mount on nonresidential buildings only. B. Commercial districts: Building and roof mount and freestanding (stealth only). C. Residential Mixed Use (RMU) districts: Building and roof mount on nonresidential buildings only. D. Commercial Mixed Use (CMU) districts: Building, roof mount, and freestanding (stealth only). E. Industrial districts: Building and roof mount and freestanding (stealth only). F. PUD. Permitted only if in the approved PUD list of uses and locations; subject to additional requirements and restrictions in the approved PUD, which may be more stringent, but not less stringent than this Chapter. G. City rights-of-way: Small cell CMRS facilities permitted under Section 17.553. 17.553 Small cell facilities and networks. A. Applicable requirements. Small cell facilities and small cell networks, as defined at Section 17.558, shall comply in all respects with the requirements of this Chapter applicable to all CMRS facilities, with the following exceptions: 1. setback requirements; 2. spacing requirements; and 3. design requirements. B. Location. Small cell facilities are permitted in City rights-of-way, upon City facilities in these rights-of-way and CDOT rights-of-way under the following priority: -5- 1. First, on a City -owned utility pole, which shall be removed and replaced with a pole designed to contain all antennae and equipment within the pole to conceal any ground-based support equipment and ownership of which pole is conveyed to the City. 2. Second, on a City -owned utility pole with attachment of the small cell facilities in a configuration approved by the City. 3. Third, on a third -party owned utility pole, (with the consent of the owner thereof), with attachment of the small cell facilities in a configuration approved by the City. 4. Fourth, on a traffic signal pole or mast arm in a configuration approved by the City, or in the case of a CDOT facility, by CDOT. 5. Fifth, on a freestanding or ground -mounted facility which meets stealth requirements in a location and configuration approved by the City. C. Height. All small cell facilities shall not exceed two feet above the light pole, traffic signal or other facility or structure to which they are attached, or the maximum height in the relevant zone district, whichever is less. D. Design. Small cell facilities shall be designed to blend with and be camouflaged in relation to the structure upon which they are located (e.g.: painted to match the structure). E. Permitting. Small cell facilities and networks shall make application for location through a revocable permitting system maintained by the City, rather than as conditional use permit. The City may accept applications for a small cell network, provided each small cell facility shall be separately reviewed. F. Indemnification. The operator of a small cell facility which is permitted to locate on a City -owned utility pole, traffic signal or other structure owned by the City shall, as a condition of permit approval, indemnify the City from and against all liability and claims arising as a result of that attachment, including repair and replacement of damaged poles and equipment, in a form approved by the City Attorney. G. Proprietary facilities. Location on City electric facilities will require execution of a Fountain Electric Department Pole Attachment Agreement. 17.554 Review procedures. A. All building and roof mounted CMRS facilities and small cell facilities and networks, and modifications to an existing facility not a substantial change as defined at Section 17.558, shall be reviewed administratively. B. Applications for building or roof mounted facilities, or to place additional antennas on existing freestanding facilities, shall provide the information required on the City's development plan application form, as well as the following: on 1. A project statement identifying the proposed CMRS facility and the telecommunication service to be provided by the proposed facility. 2. An indication as to whether the facility is designed to accommodate the equipment of additional carriers. 3. Each application for a CMRS facility shall be accompanied by a statement from the building/property owner indicating that they consent to the placement of the CMRS facility on the site and information which indicates that the lease does not preclude collocation. 4. A photo simulation which illustrates "before" and "after" what the building and/or site will look like once the antennas and associated ground -mounted facilities equipment have been installed. The photos should be taken from the adjoining public street and from any adjacent residential zoning from which the antennas and equipment will be visible. 5. Elevation drawings for each side of the building upon which the wall or roof mounted equipment will be visible, as well as any ground -mounted equipment. The drawings should indicate the appearance, color and material of the existing building as well as the location, height, color and material proposed for the antennas and associated equipment. 6. A rooftop plan, which indicates the location and height for any roof mounted antennas or equipment. 7. A site plan shall be required if the proposal includes ground mounted equipment. The plan shall illustrate all existing freestanding facilities, buildings, parking, easements and landscaping existing on the site as well as any proposed CMRS facilities, setbacks, landscaping, screening or security fencing. C. Freestanding CMRS facilities - Conditional use permit required. 1. Applications for freestanding CMRS facilities shall be reviewed by the Planning Commission and City Council as conditional uses pursuant to the procedure and review criteria in Chapter 17.56, as well as the review criteria of this Chapter. 2. Applications for stealth freestanding facilities shall provide the information required on the City's development plan application form, as well as the following: a. A project statement identifying the proposed CMRS facility and the telecommunication service to be provided by the proposed facility. b. An indication as to whether the facility is designed to accommodate the equipment of additional carriers. Each application for a CMRS facility shall be accompanied by a statement from the building/property owner indicating that they consent to the placement of the CMRS facility on the site and information which indicates that the lease does not preclude collocation. -7- c. If a new freestanding facility is proposed, evidence that the carrier has reasonably explored the use of wall or roof or stealth facilities within the search area and determined that said facilities are not feasible or appropriate and justification of the need for the proposed tower and height requested. d. A photo simulation, which illustrates "before" and "after" what the site will look like once the freestanding CMRS facility and ground -mounted equipment have been constructed. The photos should be taken from the adjoining public street and from any adjacent residential zoning from which the freestanding facility will be visible. e. Elevation drawings shall include the freestanding facility, as well as any ground -mounted equipment. The drawings should indicate the appearance, height, color and material proposed for the freestanding facility, antennas and associated equipment. f. The legal description of the subject property which shall be required to be a platted lot in accord with the Subdivision Codes. g. A site development plan shall be required for all freestanding facilities. The plan shall illustrate all existing buildings, parking, easements and landscaping existing on the site as well as any proposed CMRS facility locations, landscaping, screening or security fencing. D. Review deadlines. In compliance with federal law and regulations, the City shall review and act upon all applications within the following time periods: 1. Within 30 days the City will give written notice of incompleteness, specifying the code section that requires the information. This halts the remaining deadlines until a complete application is filed. 2. Within 60 days the City will act on applications that are not a "substantial change" (an Eligible Telecommunications Facilities Request). 3. Within 90 days the City will act on collocation applications that are not a substantial change in the size of a tower, or location or collocation applications for a small cell facility or small cell network, or replacement or modification of the same. 4. Within 150 days the City will act on applications for new CMRS facilities, collocation applications that are a substantial increase in the size of the tower or substantial increase an existing CMRS facility that are not a small cell facility or small cell network. E. Third party review of conditional use applications. 1. CMRS service providers use various methodologies and analysis tools, including geographically based computer software, to determine the specific technical parameters of personal wireless services, such as expected coverage area, antenna configuration and topographic constraints that affect signal paths. In certain instances there may be a need for expert review by a third party of the technical data submitted by the personal wireless services provider. The City may require such a technical review to be paid for by the applicant for the CMRS facility. The selection of the third party expert may be by mutual agreement between the applicant and City or at the discretion of the City, with a provision for the applicant and interested parties to comment on the proposed expert and review its qualifications. The expert review is intended to be a site-specific review of technical aspects of the CMRS facility and not a subjective review of the site selection. The expert review of the technical submission shall address the following: a. The accuracy and completeness of the submission; b. The applicability of analysis techniques and methodologies; c. The validity of conclusions reached; d. Any specific technical issues designated by the City. 2. Based on the results of the third party review, the City may require changes to the application that comply with the recommendations of the expert. F. Review Criteria. The reviewing official or body as appropriate, shall apply the design and location standards contained in Sections 17.444 through 17.553, as appropriate in its review and decision on the application. 17.556 Discontinuance and abandonment. All CMRS providers shall notify the City when they place the FCC on notice, via the filing of FCC form 489, that a specific CMRS facility is being discontinued. Antennas and support structures, which are not in use for six (6) months for CMRS purposes, shall be removed by the CMRS facility owner. This removal shall occur within sixty (60) days of the end of the six (6) month period. Upon removal, the site shall be restored to blend with the surrounding environment. If an abandoned facility is not removed within the required time frame the City shall remove the facility and bill the property owner upon which the facility is located for the cost incurred for the removal. In the event the property owner fails, within thirty (30) days after billing, to pay for the cost and expenses of removal the City may assess a lien against the property for such costs which may be certified to the County Treasurer for collection in the same manner as real property taxes under CRS 31-20-105 and 106. The lien created hereby shall be superior and prior to all other liens excepting liens for general and special taxes. 17.558 Definitions. A. Base station. A station at a fixed location, other than a freestanding CMRS facility, that enables wireless communication between user equipment and a communications network, including any associated equipment such as, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. It includes a structure that currently supports or houses an antenna, transceiver, or other associated equipment In that constitutes part of a base station. It may encompass such equipment in any technological configuration, including distributed antenna systems and small cells. B. Broadband service. Broadband is wide bandwidth data transmission which transports multiple signals and traffic types. The medium can be coaxial cable, optical fiber, radio or twisted pair. In the context of Internet access, broadband is used to mean any high-speed Internet access that is always on and faster than traditional dial-up access. C. Building or structure -mounted commercial mobile radio service (CMRS) facility. A CMRS facility in which antenna are mounted to an existing structure (e.g., water tower, light pole, steeple, etc.) or building face, but excluding roof -mounted facilities. D. CDOT Colorado Department of Transportation. E. Commercial mobile radio service (CMRS) accessory equipment. Equipment, including unmanned cabinets, used to protect and enable operation of radio switching equipment, back-up power and other devices, but not including antenna, that is necessary for the operation of a CMRS facility. F. CMRS facility. An unmanned building or structure consisting of equipment for the reception, switching and transmission of wireless telecommunications, including, but not limited to, personal communications service (PCS), enhanced specialized mobile radio (ESMR), paging, cellular telephone and similar technologies. G. Eligible telecommunications facilities request. Any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station and that involves the collocation of new transmission equipment, the removal of transmission equipment or the replacement of transmission equipment. H. FCC Federal Communications Commission. I. Freestanding CMRS facility. A CMRS facility that consists of a stand-alone support facility or tower (monopole and/or lattice structure), antennae, and associated equipment. J. Ground -mounted CMRS accessory equipment. Equipment, including unmanned cabinets, located on or beneath the ground, used to protect and enable operation of radio switching equipment, back-up power and other devices, but not including antenna, that is necessary for the operation of a CMRS facility including base stations. K. Height. The distance measured from the finished grade of the parcel to the highest point on the tower or other structure, including the base pad and any antenna or other equipment. L. Roof -mounted commercial mobile radio service (CMRS) facility. A CMRS facility in which antenna are mounted on an existing building roof. M. Small cell facility means either: -10- 1. A personal wireless service facility as defined by the federal "Telecommunications Act of 1996," as amended as of August 6, 2014; or 2. A wireless service facility that meets both of the following qualifications: a. Each antenna is located inside an enclosure of no more than three cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than three cubic feet; and b. Primary equipment enclosures are not larger than seventeen cubic feet in volume. The following associated equipment may be located outside of the primary equipment enclosure and, if so located, is not included in the calculation of equipment volume: Electric meter, concealment, telecommunications demarcation box, ground-based enclosures, back-up power systems, grounding equipment, power transfer switch, and cut-off switch. N. Small cell network. A collection of interrelated small cell facilities designed to deliver wireless service. O. Stealth freestanding facilities. Any freestanding CMRS facility which is designed to blend and camouflage the antennas and associated equipment. For example, architecturally screened roof -mounted antennae, building -mounted antennas painted to match the existing structure, and antennas integrated into architectural elements by bell towers, flagpoles, parking lot light poles, clock towers, decorative architectural features, tree towers, city utility poles, etc. P. Substantial change or substantial increase. A modification which substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria, including a single change or a series of changes over time whether made by a single owner or operator or different owners/operators over time, when viewed against the initial approval for the support structure: 1. For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater; 2. For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the Tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet; 3. For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base -11- stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure; 4. It entails any excavation or deployment outside the current site or make the support structure more visible; 5. It would defeat the concealment elements of the eligible support structure; or 6. It does not comply with conditions associated with the original siting approval of the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in paragraphs 1 through 6 of this definition. Q. Tower. Any freestanding structure designed and constructed primarily for the purpose of supporting one (1) or more Federal Communications Commission -licensed or authorized antennae, including self-supporting lattice towers, guy towers and monopole towers, radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers and other similar structures. The term also includes any antenna or antenna array attached to the tower structure. R. Tower Height (average). When referring to a tower or other structure, the distance measured from the average ground level to the highest point on the towner or other structure, even if said highest point is an antenna. -12-