AN ORDINANCE TO AMEND THE CODE OF THE CITY OF EAST GRAND RAPIDS BY ADDING A NEW SUBSECTION E TO SECTION 5.75 OF CHAPTER 50 OF TITLE V OF THE CITY CODE TO REGULATE ZONING REVIEW AND APPROVAL OF SMALL CELL WIRELESS FACILITIES AND WIRELESS SUPPORT STRUCTURES

THE CITY OF EAST GRAND RAPIDS ORDAINS:

Section 1.

Title V, Chapter 50 the Code of the City of East Grand Rapids is amended by adding to Section 5.75, a new Subsection E to read in its entirety as follows:

E. Small Cell Wireless Facilities.

1. General

The collocation of a small cell wireless facility and associated support structure within a public right of way (“ROW”) is to the extent exempt from such reviews under Act 365 of 2018, as amended (“Act 365”), and Act 366 of 2018, as amended (“Act 366”). In such case, a utility pole in the ROW may not exceed 40 feet above ground level without special land use approval (pursuant to Section 5.75(E)(5) hereof) and a small cell wireless facility in the ROW shall not extend more than 5 feet above a utility pole or wireless support structure on which the small cell wireless facility is collocated.

Collocation of a small cell wireless facility or installation of an associated support structure shall require that the wireless provider apply for and obtain a permit from the City consistent with the City Code.

Small cell wireless facilities (as defined below) and associated wireless support structures not exempt from zoning reviews are only permitted in accordance with the provisions of this zoning ordinance and Act 365, and upon application for and receipt from the City of a permit consistent with the City Code.

2. Definitions

“Wireless Communications Equipment“: the set of equipment and network components used in the provision of wireless communication services, including, but not limited to, antennas, transmitters, receivers, base stations, equipment shelters, cabinets, emergency generators, power supply cables, coaxial and fiber optic cables, but excluding wireless communications support structures.

“Wireless Communications Support Structure“: a structure that is designed to support, or is capable of supporting, wireless communications equipment. A wireless communications support structure may include a monopole, lattice tower, guyed tower, water tower, utility pole or building.
“Small Cell Wireless Facility”: a wireless facility that meets both of the following requirements

(i) Each antenna is located inside an enclosure of not more than 6 cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements would fit within an imaginary enclosure of not more than 6 cubic feet.

(ii) All other wireless equipment associated with the facility is cumulatively not more than 25 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meters, concealment elements, telecommunications demarcation boxes, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs for the connection of power and other services.

“Wireless Support Structure” means a freestanding structure designed to support or capable of supporting small cell wireless facilities. Wireless support structure does not include a utility pole (as defined in Act 365).

3. Wireless Communications Equipment

Wireless communications equipment (but not a wireless communications support structure) is a permitted use and allowed in all zoning districts. Wireless communications equipment does not have to be related to the principal use of the site. Wireless communications equipment is not subject to zoning review and special land use approval if all of the following requirements are met:

(a) The wireless communications equipment will be collocated on an existing wireless communications support structure or in an existing equipment compound.

(b) The existing wireless communications support structure or existing equipment compound is in compliance with the City’s zoning ordinance or was approved by the City Commission.

(i) Increase the overall height of the wireless communications support structure by more than 20 feet or 10% of its original height, whichever is greater.

(ii) Increase the width of the wireless communications support structure by more than the minimum necessary to permit collocation.

(iii) Increase the area of the existing equipment compound to greater than 2,500 square feet.

(d) The proposed collocation complies with the terms and conditions of any previous final approval of the wireless communications support structure or equipment compound by the City Commission.

Notwithstanding the foregoing, wireless communications equipment otherwise exempt hereunder must still comply with all other applicable City Codes, including a determination by the building inspection that the collocation will not adversely impact the structure to which it is attached.

A collocation that meets the requirements of subsections (a) and (b), above, but which does not meet subsections (c) or (d), is subject to special land use review by the City Commission in accordance with the provisions hereof, Section 5.75(D) and Article 11 of this zoning ordinance, and Section 514 of Act 366, MCL 125.3514(2)-(6). Any equipment placed in a residential district shall not be erected at a height that requires lighting. Any equipment placed adjacent to a residential district or use that requires lighting shall be a continuous red beacon at night.

4. Special Land Use Standards – Wireless Communications Equipment and Wireless Communications Support Structures

A. A wireless communications support structure must be installed on a lawful lot for the zoning district in which it is located, either as a principal use, or as an accessory use related to the principal use.

B. Wireless communication equipment that is not attached to an existing structure (thus requiring the installation of a new wireless communications support structure) or that is not exempt under Section 5.75(E)(3) hereof, is subject to special land use review consistent with Section 5.75(D) and Article 11 of this zoning ordinance; provided, however, that in the event of conflict between these provisions and Act 366, the provisions of Act 366 shall control. Processing of a special land use application is subject to the following requirements:

(i) Within 14 business days after receiving an application under this Section, the City Commission shall notify the applicant in writing whether the application is complete. The notice tolls the running of the 14-business-day period.

(ii) The running of the time period tolled under subdivision (i) resumes when the applicant makes a supplemental submission in response to the City Commission’s notice of incompleteness.

(iii) If the application is for a collocation of wireless communications equipment that satisfies the requirements of Section 5.75(E)(3)(a) and (b) hereof, but does not satisfy the requirements of (c) and (d) hereof, then the City Commission shall approve or deny the application and notify the applicant in writing within 60 days after an application is deemed complete by the City Commission.

(iv) If the application is for a new wireless communications support structure and accompanying wireless communications equipment, then the City Commission shall approve or deny the application and notify the applicant in writing within 90 days after an application is deemed complete by the City Commission.

(v) The fee for zoning review of a special land use and associated site plan shall be as established by the City Commission by resolution from time to time, but shall not exceed the lesser of

(a) the City Commission’s actual, reasonable costs to review and process the special land use application, or

(b) $1,000.00.

C. Small cell wireless facilities and wireless support structures not exempt under Act 365 shall be subject to special land use approval pursuant to Section 5.75(E)(5) hereof.

5. Special Land Use Standards for Non-Exempt Small Cell Wireless Facilities

The modification of existing or installation of new small cell wireless facilities or the modification of existing or installation of new wireless support structures used for such small cell

wireless facilities that are not exempt from zoning review in accordance with the Act 365 shall be subject to special land use review and approval in accordance with the following procedures and standards:

A. The processing of a special land use application is subject to all of the following requirements:

(i) Within 30 days after receiving an application under this Section, the City Commission shall notify the applicant in writing whether the application is complete. The notice tolls the running of the 30-day period.

(ii) The running of the time period tolled under subdivision (i) resumes when the applicant makes a supplemental submission in response to the City Commission’s notice of incompleteness.

(iii) The City Commission shall approve or deny the application and notify the applicant in writing within 90 days after an application for a modification of a wireless support structure or installation of a small cell wireless facility is received or 150 days after an application for a new wireless support structure is received. The time period for approval may be extended by mutual agreement between the applicant and the City Commission.

B. The City Commission shall base its review of the special land use request on the standards contained in Section 5.94 and Article 11 of this zoning ordinance; provided, however, that a denial shall comply with all of the following:

(i) The denial is supported by substantial evidence contained in a written record that is publicly released contemporaneously.

(ii) There is a reasonable basis for the denial.

(iii) The denial would not discriminate against the applicant with respect to the placement of the facilities of other wireless providers.

C. In addition to the provisions set forth in Section 5.94 and Article 11 of this zoning ordinance, in the City Commission’s review:

(i) An applicant’s business decision on the type and location of small cell wireless facilities, wireless support structures, or technology to be used is presumed to be reasonable. This presumption does not apply with respect to the height of wireless facilities or wireless support structures.

(ii) An applicant shall not be required to submit information about its business decisions with respect to any of the following:

(a) The need for a wireless support structure or small cell wireless facilities.

(b) The applicant’s service, customer demand for the service, or the quality of service.

(iii) The City Commission may impose reasonable requirements regarding the appearance of facilities, including those relating to materials used or arranging, screening, or landscaping.

(iv) The City Commission may impose spacing, setback, and fall zone requirements substantially similar to spacing, setback, and fall zone requirements imposed on other types of commercial structures of a similar height in a similar location.

D. The fee for zoning review of a special land use and associated site plan shall be as established by the City Commission by resolution from time to time, but shall not exceed (i) $500.00 for a new small cell wireless facility or modification to an existing small cell wireless facility, and (ii) $1,000.00 for a new wireless support structure or a modification to an existing wireless support structure.

E. Within 1 year after a zoning approval is granted, a small cell wireless provider shall commence construction of the approved structure or facilities that are to be operational for use by a wireless services provider, unless the City Commission and the applicant agree to extend this period or the delay is caused by a lack of commercial power or communications facilities at the site. If the wireless provider fails to commence the construction of the approved structure or facilities within the time required the zoning approval is void.

Section 2. This ordinance shall be effective on November 15, 2019.

Section 3. Notice of adoption of this Ordinance shall be published within ten (10) days of its enactment by publication of a digest, summary, or statement of purpose of the Ordinance as provided by Chapter VII, Section 7.5 of the Charter of the City of East Grand Rapids.

NOTICE OF ADOPTION OF ORDINANCE BY THE CITY OF EAST GRAND RAPIDS:

Notice is hereby given that on November 4, 2019, the City Commission of the City of East Grand Rapids adopted an Ordinance adding a new Subsection E to Section 5.75 of Chapter 50 of Title V of the City Code. The purpose of this Subsection is to regulate zoning review and approval of small cell wireless facilities and wireless support structures. Certain small cell wireless facilities and wireless support structures are subject to zoning reviews and are permitted only in accordance with the provisions of this Ordinance. The full text of the Ordinance is available for inspection by and distribution to the public at the office of the City Clerk. No further publication of this Ordinance is required or contemplated.

Exhibit B:

AN ORDINANCE TO AMEND THE CODE OF THE CITY OF EAST GRAND RAPIDS BY ADDING A NEW CHAPTER 79D TO TITLE VII OF THE CODE OF THE CITY OF EAST GRAND RAPIDS TO REGULATE SMALL WIRELESS COMMUNICATION FACILITIES IN THE CITY OF EAST GRAND RAPIDS
THE CITY OF EAST GRAND RAPIDS ORDAINS:
Section 1. A new “Chapter 79D is added to Title VII of the Code of the City of East Grand Rapids to read in its entirety as follows:

Chapter 79D. Small Cell Wireless Facilities.

Section 1.60 Definitions.

For purposes of this Ordinance, the following words, terms and phrases shall be defined as follows:

(a) Act shall mean Public Act 365 of 2018, as amended, the Small Wireless Communications Facilities Deployment Act

(b) Co-locate means to install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to a wireless support structure or utility pole. “Co-location” has a corresponding meaning. Co-locate does not include make-ready work or the installation of a new utility pole or new wireless support structure.

(c) Public right-of-way or ROW means the area on, below, or above a public roadway, highway, street, alley, bridge, sidewalk, or utility easement dedicated for compatible uses. Public right-of-way does not include any of the following:

(i) A private right-of-way.

(ii) A limited access highway.

(iii) Land owned or controlled by a railroad as defined in section 109 of the railroad code of 1993, 1993 PA 354, MCL 462.109.

(iv) Railroad infrastructure.

(d) Small cell wireless facility means a wireless facility that meets both of the following requirements:

(ii) All other wireless equipment associated with the facility is cumulatively not more than 25 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meters, concealment elements telecommunications demarcation boxes, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs for the connection of power and other services.

(e) Utility pole means a pole or similar structure that is or may be used in whole or in part for cable or wireline communications service, electric distribution, lighting, traffic control, signage, or a similar function, or a pole or similar structure that does not exceed 40 feet above ground level unless a taller height is agreed to by the City, and is designed to support small cell wireless facilities. Utility pole does not include a sign pole less than 15 feet in height above ground.

(f) Wireless facility means equipment at a fixed location that enables the provision of wireless services between user equipment and a communications network, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. Wireless facility includes a small cell wireless facility. Wireless facility does not include any of the following:

(i) The structure or improvements on, under, or within which the equipment is co-located.

(ii) A wireline backhaul facility.

(iii) Coaxial or fiber-optic cable between utility poles or wireless support structures or that otherwise is not immediately adjacent to or directly associated with a particular antenna.

(g) Wireless infrastructure provider means any person, including a person authorized to provide telecommunications services in this state but not including a wireless services provider, that builds or installs wireless communication transmission equipment, wireless facilities, or wireless support structures and who, when filing an application with the City under this section, provides written authorization to perform the work on behalf of a wireless services provider.

(h) Wireless provider means a wireless infrastructure provider or a wireless services provider. Wireless provider does not include an investor-owned utility whose rates are regulated by the MPSC.

(i) Wireless services means any services, provided using permitted or unpermitted spectrum, including the use of Wi-Fi, whether at a fixed location or mobile.

(j) Wireless services provider means a person that provides wireless services.

(k) Wireless support structure means a freestanding structure designed to support or capable of supporting small cell wireless facilities. Wireless support structure does not include a utility pole.

All other terms and phrases used herein shall be defined consistent with the Act.

Section 7.161 Permit Required.

A wireless provider may not co-locate a small cell wireless facility or install, modify, or replace a utility pole or wireless support structure on which a small cell wireless facility will be co-located within the public right-of-way without first applying for and receiving a small cell wireless permit from the City in a form and subject to such terms and conditions as are acceptable to the City.

Section 7.162 Permitting Process.

The processing of an application for a permit under this section is subject to all of the following:

(a) An application in such form as prepared by the City shall be completed and submitted as set forth in this section.

(b) The City may require an applicant to provide information and documentation to enable the City to make a compliance determination with regard to the criteria in this section involving, without limitation, subsection 7.163(c). The City may also require a certificate of compliance with FCC rules related to radio frequency emissions from a small cell wireless facility.

(c) The City may require proof of other necessary permits, permit applications, or easements to ensure all necessary permissions for the proposed activity are obtained.

(d) The City may require an applicant to attest that the small cell wireless facilities will be operational for use by a wireless services provider within 1 year after the permit issuance date, unless the City and the applicant agree to extend this period or delay is caused by lack of commercial power or communications transport facilities to the site.

(e) An applicant may, at the applicant’s discretion, file a consolidated application and receive a single permit for the co-location of up to 20 small cell wireless facilities within the City. The small cell wireless facilities within a consolidated application must consist of substantially similar equipment and be placed on similar types of utility poles or wireless support structures. The City may approve a permit for 1 or more small cell wireless facilities included in a consolidated application and deny a permit for the remaining small cell facilities.

(f) The application for a permit under this section shall be accompanied by an application fee as set by resolution of the City from time to time.

(g) The permit application shall be accompanied by a map(s) for any proposed small cell wireless facilities which shall be legible, to scale, labeled with streets, and contain sufficient detail to precisely identify the proposed small cell wireless facilities’ locations and surroundings. Where applicable, the required map(s) shall include and identify any requested pole height(s), all attachments and detailed drawings of any attachment.

(h) The permittee shall field-stake all proposed locations for small cell wireless facilities which shall be subject to the advance approval of the City, Kent County Road Commission and/or the Michigan Department of Transportation as applicable. All approved small cell wireless facilities’ locations shall be on a per pole/equipment/other basis.

(i) Once precise locations have been approved, the permittee shall provide latitude and longitude coordinates for the small cell wireless facilities’ locations to the City’s engineering department as well as detailed as-built drawings within 90 days of the completion of installation.

Section 7.163 Determination.

(a) Within 25 days after receiving an application, the City shall notify the applicant in writing whether the application is complete. If the application is incomplete, the notice shall clearly and specifically identify all missing documents or information.

(b) Upon receipt of a complete application, the City shall approve or deny the application and notify the applicant in writing within the following period of time after the completed application is received:

(i) For an application for the co-location of small cell wireless facilities on a utility pole, 60 days, subject to the following adjustments:

(1) Add 15 days if an application from another wireless provider was received within 1 week of the application in question.

(2) Add 15 days if, before the otherwise applicable 60-day or 75-day time period elapses, the City notifies the applicant in writing that an extension is needed and the reasons for the extension.

(ii) For an application for a new or replacement utility pole that meets the height requirements of this Chapter, and for an associated small cell facility, 90 days, subject to the following adjustments:

(1) Add 15 days if an application from another wireless provider was received within 1 week of the application in question.

(2) Add 15 days if, before the otherwise applicable 90-day or 105-day time period elapses, the City notifies the applicant in writing that an extension is needed and the reasons for the extension.

If the City fails to comply with this subsection, an application otherwise complete is considered to be approved subject to the condition that the applicant provide the City not less than 7 days’ advance written notice that the applicant will be proceeding with the work pursuant to this automatic approval and the applicant shall be responsible to comply with all provisions of this Chapter and the Act.

The City and an applicant may extend a time period under this subsection by mutual agreement.

(c) The City may deny a completed application for a proposed co-location of a small cell wireless facility or installation, modification, or replacement of a utility pole that meets the height requirements of this Chapter if the proposed activity would do any of the following:

(i) Materially interfere with the safe operation of traffic control equipment.

(ii) Materially interfere with sight lines or clear zones for transportation or pedestrianns.

(iii) Materially interfere with compliance with the Americans with Disabilities Act of 1990, Public Law 101-336, or similar federal, state, or local standards regarding pedestrian access or movement.

(iv) Materially interfere with maintenance or full unobstructed use of public utility infrastructure under the jurisdiction of the City.

(v) With respect to drainage infrastructure under the jurisdiction of the City, either of the following:

(1) Materially interfere with maintenance or full unobstructed use of the drainage infrastructure as it was originally designed.

(2) Not be located a reasonable distance from the drainage infrastructure to ensure maintenance under the Drain Code of 1956, 1956 PA 40, MCL 280.1 to 280.630, and access to the drainage infrastructure.

(vi) Fail to comply with reasonable, nondiscriminatory, written spacing requirements of general applicability adopted by the City by ordinance or otherwise that apply to the location of ground-mounted equipment and new utility poles and that do not prevent a wireless provider from serving any location. The City’s design criteria for small cell facilities, support structures, and poles can be found on the City’s website.

(vii) Fail to comply with applicable codes.

(viii) Fail to comply with the design parameters of this Chapter.

(ix) Fail to meet reasonable, objective, written stealth or concealment criteria for small cell wireless facilities applicable in a historic district or other designated area, as specified in an ordinance or otherwise and nondiscriminatorily applied to all other occupants of the ROW, including electric utilities, incumbent or competitive local exchange carriers, fiber providers, cable television operators, and the City.

(d) Within 1 year after a permit is granted, a wireless provider shall complete co-location of a small cell wireless facility that is to be operational for use by a wireless services provider, unless the City and the applicant agree to extend this period or the delay is caused by the lack of commercial power or communications facilities at the site. If the wireless provider fails to complete the co-location within the applicable time, the permit is void, and the wireless provider may reapply for a permit.

(e) Approval of an application authorizes the wireless provider to do both of the following:

(i) Undertake the installation or co-location.

(ii) Subject to relocation requirements that apply to similarly situated users of the ROW and the applicant’s right to terminate at any time, maintain the small cell wireless facilities and any associated utility poles or wireless support structures covered by the permit for so long as the site is in use and in compliance with the initial permit under this Chapter.

(f) The City may propose an alternate location within the ROW or on property or structures owned or controlled by the City within 75 feet of the proposed location to either place the new utility pole or co-locate on an existing structure. The applicant shall use the alternate location if, as determined by the applicant, the applicant has the right to do so on reasonable terms and conditions and the alternate location does not impose unreasonable technical limits or significant additional costs. The City may request written confirmation of any decision rendered by the applicant under this subsection and the specific basis for the same.

(g) Nothing herein shall prohibit the City from requiring a separate ROW access permit for work that will unreasonably affect traffic patterns or obstruct vehicular or pedestrian traffic in the ROW.

(h) As a condition of the issuance of a permit, the applicant shall obtain and maintain a bond, in the amount of $1,000.00 per small cell wireless facility, in a form reasonably satisfactory to the City, for the small cell wireless facilities as applicable to similarly situated users of the ROW for one or more of the following purposes:

(i) To provide for the removal of abandoned or improperly maintained small cell wireless facilities, including those that an authority determines should be removed to protect public health, safety, or welfare.

(ii) To repair the ROW as provided under the Act.

(iii) To recoup rates or fees that have not been paid by a wireless provider in more than 12 months, if the wireless provider has received 60-day advance notice from the authority of the noncompliance.

(i) It is a condition of any permit issued under this section that:

(i) A wireless provider, with respect to a small cell wireless facility, a wireless support structure, or a utility pole, shall defend, indemnify, and hold harmless the City and its officers, agents, and employees against any claims, demands, damages, lawsuits, judgments, costs, liens, losses, expenses, and attorney fees resulting from the installation, construction, repair, replacement, operation, or maintenance of any wireless facilities, wireless support structures, or utility poles to the extent caused by the applicant, its contractors, its subcontractors, and the officers, employees, or agents of any of these. A wireless provider has no obligation to defend, indemnify, or hold harmless the City, or the officers, agents, or employees of the City or governing body against any liabilities or losses due to or caused by the sole negligence of the City or the City or its officers, agents, or employees.

(ii) A wireless provider, with respect to a small cell wireless facility, a wireless support structure, or a utility pole, shall obtain insurance, in an amount and of a type reasonably satisfactory to the City, naming the City and its officers, agents, and employees as additional insureds against any claims, demands, damages, lawsuits, judgments, costs, liens, losses, expenses, and attorney fees. A wireless provider may meet all or a portion of the City’s insurance coverage and limit requirements by self-insurance. To the extent it self-insures, a wireless provider is not required to name additional insureds under this subsection. To the extent a wireless provider elects to self-insure, the wireless provider shall provide to the City evidence demonstrating, to the City’s satisfaction, the wireless provider’s financial ability to meet the City’s insurance coverage and limit requirements.

It is the policy of the City to encourage the co-location of small cell wireless facilities first, outside of public rights-of-way and, secondarily, within the public rights-of-way. The colocation of uses shall be a condition of approval of any permit granted for a new wireless support structure or utility pole in the public right-of-way; provided, however, that the colocation requirement may be waived if the pole or support structure is disguised or stealthed so as to blend with the immediate environment (e.g., streetlights, power poles, etc.).
Section 7.164 METRO Act permit. No person shall install or operate “telecommunications facilities,” as defined in the Metropolitan Extension Telecommunications Rights-Of-Way Oversight Act, Act No. 48 of the Public Acts of 2002, as amended without first obtaining a permit in accordance with that act from the City, including any part of a small cell wireless facility, utility pole, or wireless support structure constituting telecommunication facilities.

Section 7.165 Design parameters.

The following minimal design parameters shall apply to small cell wireless facilities, utility poles and wireless support structures in the City’s public rights-of-way:

(a) A wireless provider may, subject to approval by the City under this section, co-locate small cell wireless facilities and construct, maintain, modify, operate, or replace utility poles in, along, across, upon, and under the ROW consistent with the following:

(i) A utility pole in the ROW installed or modified on or after the effective date of the Act shall not exceed 40 feet above ground level, unless a taller height is agreed to by the City consistent with all applicable laws.

(ii) A small cell wireless facility in the ROW installed or modified after the effective date of the Act shall not extend more than 5 feet above a utility pole or wireless support structure on which the small cell wireless facility is co-located.

(b) Such structures and facilities shall be constructed and maintained so as not to obstruct or hinder the usual travel or public safety on the ROW or obstruct the legal use of the City’s ROW or uses of the ROW by other utilities and communications service providers.

(c) A wireless provider may co-locate a small cell wireless facility or install, construct, maintain, modify, operate, or replace a utility pole, or a wireless support structure, in, along, across, upon, and under the ROW only upon issuance of a permit in accordance with this Chapter.

(d) The following design and concealment measures shall apply to the co-location of any small cell wireless facility or utility pole in an historic, residential, or downtown district:

(i) Equipment on a supporting structure may not exceed an aggregate width of four feet (centered on pole) and shall be secured a minimum of ten feet from the ground surface or 18 feet where equipment may overhang the back of curb line. Ground level equipment or shelters are not permitted.

(ii) Small cell wireless facilities shall be located no closer than 18 inches from an existing sidewalk/face of curb or 18 inches from a proposed future sidewalk/face of curb location.

(iii) Small cell wireless facilities shall be located no closer than ten feet from any driveway.

(iv) Small cell wireless facilities shall be located in line with a side lot line and not in front of a residence.

(v) Unless otherwise required by the Federal Communications Commission (FCC), the Federal Aviation Administration (FAA), or applicable codes, poles shall either maintain a galvanized silver, gray or concrete finish or, subject to any applicable standards of the FAA, FCC or such codes, be painted a neutral color so as to reduce visual obtrusiveness.

(vi) At all pole sites related equipment shall use materials, colors, textures, screening, and landscaping that will blend the facilities to the natural setting and environment to the extent reasonably practical.

(vii) All poles shall be of monopole design and construction unless noted in Section 7.166. Disguising or stealthing poles is encouraged.

Any such requirements shall not have the effect of prohibiting any wireless provider’s technology.

(e) A wireless provider shall comply with any prohibition on communications service providers from installing structures on or above ground in the ROW in an area designated solely for underground or buried cable and utility facilities if each of the following apply:

(i) The City has required all cable and utility facilities, other than City poles, along with any attachments, or poles used for street lights, traffic signals, or other attachments necessary for public safety, to be placed underground by a date that is not less than 90 days before the submission of the wireless provider’s application.

(ii) The City does not prohibit the replacement of City poles by a wireless provider in the designated area.

Section 7.166 Modification of design parameters.

Upon the written request of an applicant for a permit, the City’s Department of Public Works may modify or waive the design parameters of subsection 7.165(d) and (e) in its discretion following a hearing and based on its review of factors affecting the public health, safety and welfare including, but not limited to, the following: the presence of existing poles or other structures or equipment in the immediate vicinity; the ability to reasonably comply with the design parameters set forth in subsection 7.165 (d) and (e); the visual and aesthetic impact of the proposed pole, antenna or facilities on the adjacent area; the existing and planned character of the adjacent area; public comment; the scale and scope of the poles, antennas or facilities relative to the existing character of the area; whether granting the modification will adversely impact public safety; and the recommendations of City department heads (if any). Following its review, the City’s Department of Public Works may grant, deny or grant with conditions a request to modify or waive the design parameters and shall provide its decision and the basis for the same to the applicant in writing. All applications for a waiver or modification of the design parameters as set forth herein shall be addressed in a uniform and nondiscriminatory manner. The applicant shall be responsible to pay all costs of the City associated with the request to modify or waive the design parameters.

Section 7.167 Repair of ROW.

As a condition to the issuance of a permit under this section, a wireless provider is required to repair all damage to the ROW directly caused by the activities of the wireless provider while occupying, constructing, installing, mounting, maintaining, modifying, operating, or replacing small cell wireless facilities, utility poles, or wireless support structures in the ROW and to return the ROW to its functional equivalent before the damage. If the wireless provider fails to make the repairs required by the City within 60 days after written notice, the City may make those repairs and charge the wireless provider the reasonable, documented cost of the repairs.

Section 7.168 Discontinuance of Use.

Before discontinuing its use of a small cell wireless facility, utility pole, or wireless support structure, a wireless provider shall notify the City in writing. The notice shall specify when and how the wireless provider intends to remove the small cell wireless facility, utility pole, or wireless support structure. The City may impose reasonable and nondiscriminatory requirements and specifications for the wireless provider to return the property to its pre-installation condition. If the wireless provider does not complete the removal within 45 days after the discontinuance of use, the City may complete the removal and assess the costs of removal against the wireless provider. A permit under this section for a small cell wireless facility expires upon removal of the small cell wireless facility.

Section 7.169 Revocation of Permit.

The City may revoke a permit, upon 30 days’ notice and an opportunity to cure, if the permitted small cell wireless facilities and any associated utility pole fail to meet the requirements of subsection 7.163(c).

Section 7.169 Compliance with applicable law.

The permittee shall be responsible to comply with all applicable legal requirements and to obtain any permits or approvals otherwise required by law relative to the installation or operation of small cell wireless facilities in the City’s public rights-of-way (e.g., electrical permits). The City, in reviewing and authorizing a permit under the act and/or a permit referred to in this section, and the permittee, in the establishment and operation of any small cell wireless facilities, shall comply with all applicable federal and state laws.

Section 7.170 Fees.

Fees for the permits as authorized under the Act shall be as provided for in the Act or those documents and as periodically authorized by resolution of the City; provided, however, that for installations of utility poles designed to support small cell wireless facilities or co-locations of small cell wireless facilities installed and operational in the ROW before the effective date of the Act, the fees, rates, and terms of an agreement or ordinance for use of the

ROW remain in effect subject to the termination provisions contained in the agreement or ordinance.

Section 2. This Ordinance shall be effective on November 15, 2019.

Section 3. Notice of adoption of this Ordinance shall be published within ten (10) days of its enactment by publication of a digest, summary, or statement of purpose of the Ordinance as provided by Chapter VII, Section 7.5 of the Charter of the City of East Grand Rapids.

NOTICE OF ADOPTION ORDINANCE BY THE CITY OF EAST GRAND RAPIDS:

Notice is hereby given that on November 4, 2019, the City Commission of the City of East Grand Rapids adopted a new Chapter 79 D dealing with small cell wireless facilities. This Chapter provides a procedure and establishes a permit process for the location of small cell wireless facilities within the City. The full text of the Ordinance is available for inspection by and distribution to the public at the office of the City Clerk. No further or additional publication of this Ordinance is required or contemplated.