NOTICE IS HEREBY GIVEN that at its regular meeting on April 9, 2019, at the Township Hall located at 6483 Waldon Center Drive, Independence, MI  48346, the Charter Township of Independence Board of Trustees approved the Introduction and First Reading of an amendment to the Township’s Code of Ordinances and scheduled a Second Reading of the amendment at a regular meeting to be held on April 23, 2019 to consider adoption of the ordinance as follows:

STATE OF MICHIGAN

COUNTY OF OAKLAND

CHARTER TOWNSHIP OF INDEPENDENCE

ORDINANCE NO. 2019-44-TBD

     AN ORDINANCE TO AMEND THE INDEPENDENCE CHARTER TOWNSHIP CODE OF ORDINANCES TO CHANGE THE TITLE OF CHAPTER 44, ADD NEW SECTIONS INCLUDING PENALTY PROVISIONS IN ARTICLE I, AND ADD A NEW ARTICLE II, TO ESTABLISH REQUIREMENTS, STANDARDS, AND REGULATIONS FOR ACCESS TO AND USE OF PUBLIC RIGHT-OF-WAY FOR WIRELESS FACILITIES.

THE CHARTER TOWNSHIP OF INDEPENDENCE ORDAINS:

Section 1. ORDINANCE AMENDMENT.

The Independence Charter Township Code is hereby amended to change the title of Chapter 44 from TELECOMMUNICATIONS to TELECOMMUNICATION AND WIRELESS FACILITIES IN PUBLIC RIGHT-OF-WAY.

Section 2. ORDINANCE AMENDMENT.

Article I, In General, in Chapter 44 of the Independence Charter Township Code is hereby amended to add new Sections 44-1, 44-2, 44-3, and 44-4 to read as follows:

ARTICLE I.                IN GENERAL

Sec. 44-1.  Scope and application of regulations.

Article III of this Chapter addresses telecommunication facilities, which as defined by state statute, do not include antennas and related support structures, equipment shelters, equipment and hardware. Article II of the Chapter contains the requirements, standards, and regulations for wireless facilities and related wireless support structures and utility poles that are not considered by state law to be telecommunication facilities.

Sec. 44-2.  Right-of-Way Regulations.

Unless otherwise stated in this Chapter, the Right-of-Way Regulations in Article III of Chapter 42 of this Code, including the disruption permit and use permit provisions shall apply to applications for and reviews, decisions, terms, conditions, notices, and revocations of permits under this Chapter.

Sec. 44-3.  Disruption Permits.

In reviewing and acting on applications for a disruption permit as required in Section 44-430 of the Code for telecommunication facilities and in Article II for wireless facilities, the Township may rely on applications, plans, bonds, and other documents submitted to, and permits issued by, the Road Commission of Oakland County (RCOC) and Michigan Department of Transportation (MDOT) for construction of the same facilities for which the disruption permit is required.         

Sec. 44-4.  Violations.

A violation of any Section in this Chapter or a permit condition shall be a municipal civil infraction. Nothing in this Section shall be construed to limit the remedies available to the Township under a permit or by law for such violations.

Section 3. ORDINANCE AMENDMENT.

The Independence Charter Township Code is amended by adding new Sections 44-21 through 44-39 in a new Article II, Wireless Facilities in Right-of-Way, in Chapter 44 to read as follows:

ARTICLE II. – WIRELESS FACILITIES IN RIGHT-OF-WAY

Sec. 44-21. – Purpose.

This Article is adopted in response to new and differing State and Federal regulations, including Michigan Public Act No. 365 of 2018 (MCL 460.1301 – 460.1339), 47 USC 1455, Rules adopted by the Federal Communications Commission (FCC) as 47 CFR 1.40001 (now 47 CFR 1.6100) and 47 CFR 1.6001 – 1.6003, and the FCC’s Declaratory Ruling and Third Report and Order in FCC 18-133, that infringe on the Township’s constitutional and proprietary rights and interests in its public right-of-way and the reasonable control thereof under Article VII, Section 29 of the Michigan Constitution of 1963, the Charter Township Act, and other applicable laws, which would allow the Township to require public right-of-way users to obtain a franchise or license from the Township. Without waiving those Township rights, this Article is adopted for the purpose of complying with those State and Federal regulations by providing for and regulating access to and ongoing use of public rights-of-way for wireless facilities that are not considered to be telecommunications facilities covered by the Metropolitan Extension Telecommunications Rights-of-Way Oversight Act (Act No. 48 of the Public Acts of 2002) (“Act”), and permits applied for and issued under that Act and Article IV of this Chapter.

Sec. 44-22. – Definitions.

As used in this Article, the following words and phrases shall have the indicated meanings:

Applicant means a wireless provider that applies for a permit or approval for wireless facilities, a wireless support structure, or utility pole in a public right-of-way.

Collocation or collocate means to place, replace, modify, mount, or install wireless facilities on or adjacent to a wireless support structure or utility pole, but does not include make-ready work or the installation of a new wireless support structure or utility pole.

Eligible facilities request means a request for modification of a lawfully existing wireless tower or lawfully existing wireless base station in a public right-of-way that involves collocation, removal, or replacement of wireless facilities that will not substantially change the physical dimensions of the wireless tower or based station support structure, with wireless tower, wireless base station, and substantial change defined in Section 44-30.

Micro wireless facility means a small wireless that is not more than 24 inches in length, 15 inches in width, and 12 inches in height that does not have an exterior antenna more than 11 inches in length.

Public right-of-way means the area on, above, or below a public roadway, highway, street, alley, bridge, sidewalk, or utility easement dedicated for compatible uses, whether owned or controlled by, or under the jurisdiction of, the Township or county, state, or federal government but does not include a private right-of-way, limited access highway, land owned or controlled by a railroad, and railroad infrastructure.

Small wireless facility means a wireless facility that meets each of the following requirements:

(a)  Each antenna is enclosed or would fit within an enclosure of not more than 6 cubic feet in volume.

(b)  All other wireless facilities associated with all antennas at a single location are not more than 28 cubic feet in volume, with electric meters, telecommunications demarcation boxes, grounding equipment, power transfer and cut-off switches, vertical cable runs, and concealment elements required by the Township excluded from that calculation.

Supervisor means the Township Supervisor or Supervisor’s designee.

Utility pole means a pole or similar structure other than a wireless support structure, that is or may be fully or partially used for cable or wireline communications, electric distribution, lighting, traffic control, signage if the pole is at least 15 feet in height above ground level, or a similar function, or that is designed to support small wireless facilities.

Wireless facility or facilities means equipment and components at a fixed location that enable or facilitate the provision of wireless services, including antennas, transmitters, receivers, coaxial or fiber-optic cable, equipment shelters or cabinets, power supplies, comparable equipment, and miscellaneous hardware, but excluding structures or improvements on, under, or within which the equipment is collocated, telecommunication facilities as defined in Article IV, and a wireline backhaul facility.

Wireless provider means a person or entity that provides wireless services and a person or entity that builds wireless facilities or support structures for a disclosed provider of wireless services.

Wireless service means a wireless communication service that is permitted or authorized by the Federal Communications Commission, which includes but is broader than personal wireless services as defined in 47 USC 332.

Wireless service provider means a person or entity that provides wireless services.

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

Sec. 44-23. – Required permits and approvals to be applied for and complied with.

(a)  Wireless facilities, wireless support structures, and utility poles shall not be installed, used, operated, or maintained in a public right-of-way without complying with the applicable regulations in this Article and first obtaining and thereafter complying with the terms and conditions of all of the following permits or approvals:

(1)  A Use Permit to be applied for, reviewed, approved or denied, and issued based on the requirements, standards, and regulations in this Article, and as provided in the Right-of-Way Regulations in Article III of Chapter 42 of this Code as modified by the following:

1. No Township Board hearing and decision under Section 42-111(d) is required. Permit approval or denial and issuance shall be by the Supervisor.
2. The time allowed for approval or denial of a permit in Section 42-111(d) shall not apply. That time is specified in this Article.
3. The case by case review regarding the annual use permit fee in Section 42-112 shall not apply.
4. Section 42-113 regarding the term of the permit shall not apply.
5. Any other provisions in Article III of Chapter 42 of this Code that conflict with this Article shall not apply to the Use Permit.

(2)  A Disruption Permit to be applied for, reviewed, approved or denied, and issued based on the requirements, standards, and regulations in this Article, and as provided in the Right-of-Way Regulations in Article III of Chapter 42 of this Code subject to the following:

1. A Use Permit application that includes all application information in Section 42-81(c) shall be considered as an application for the corresponding Disruption Permit without payment of a separate application fee.
2. No Township Board hearing and decision is required. Permit approval or denial and issuance shall be by the Supervisor.
3. The time allowed for approval or denial of a permit in Section 42-81(e) shall not apply. That time is specified in this Article.
4. The Supervisor may waive the need for a Disruption Permit to the extent that the public right-of-way and facilities for which it was applied for are covered  by an approved Use Permit and construction permits issued by the Road Commission of Oakland County (RCOC) or Michigan Department of      Transportation (MDOT).

(3)  Required building, electrical, and other construction code permits from the Township Building Official to be applied for, reviewed, and issued or denied under Article II in Chapter 10 of the Code.

(4)  Any approvals or permits required, to be applied for, reviewed, and issued or denied under the Township Zoning Ordinance.

(b)  A permit or approval shall not be required, and fees shall not be payable for:

(1)  Replacement of a small wireless facility with a small wireless facility that is not larger or heavier and complies with applicable codes.

(2)  Routine maintenance of small wireless facilities, wireless support structures, or utility poles.

(3)  The installation, placement, maintenance, operation, or replacement of a micro wireless facility that is suspended on cables strung between utility poles or wireless support structures in compliance with applicable codes.

(c)  Any construction code and Zoning Ordinance permits or approvals for wireless facilities, wireless support structures, or utility poles shall be conditioned on the issuance of and compliance with the Use Permit and conditions of that Permit.

(d)  The time period for the Township to act on a wireless provider permit or approval application for wireless facilities, support structures, or utility poles under this Article shall not commence until the Township has complete applications for all of the required Township Permits listed in subsection (a).

(e)  In addition to Township permits and approvals, any required permits from other governmental entities that also have an ownership, control, or jurisdictional interest in the public right-of-way (Road Commission of Oakland County or RCOC and Michigan Department of Transportation or MDOT) must be obtained prior to construction, and thereafter complied with. Obtaining a permit for wireless facilities, wireless support structures, or utility poles from another governmental entity who shares the public right-of-way with the Township does not relieve a wireless provider from the need to comply with the standards in this Article and the Township reserves the right to require that a Use Permit under this Article be applied for, obtained, and complied with.

(f)  To the extent applicable and allowed under existing franchises, permits, and applicable law, the permit requirements under this Article shall apply to all new installations in the public right-of-way by electric and gas public utilities, incumbent or competitive local exchange carriers, fiber providers, and cable television video services providers.

Sec. 44-24. – Types of wireless facilities and applicable standards.

(a)  The following types of wireless facilities, support structures, and utility poles in the public right-of-way are addressed and subject to the application, review, and other standards and regulations in the indicated Section of this Article:

(1)  Section 44-28 for collocation of a small wireless facility on an existing wireless support structure or utility pole.

(2)  Section 44-29 for collocation of a small wireless facility on a new or replacement wireless support structure or utility pole.

(3)  Section 44-30 for eligible facilities requests.

(4)  Section 44-31 for collocation of wireless facilities other than small wireless facilities and eligible facilities requests.

(5)  Section 44-32 for replacement and new wireless support structures or utility poles not involving small wireless facilities or eligible facilities requests.

(b)  An application for a permit or approval required under this Article shall conspicuously identify the type of wireless facilities proposed and the ordinance Section(s) listed in subsection (a) that the applicant believes to be applicable.

Sec. 44-25. – Applications for use and disruption permits.

(a)  A single application for use and disruption permits for proposed wireless facilities, wireless support structures, and utility poles under this Article shall be filed as provided in Division 3 of Article III in Chapter 42 of this Code, with the statements, descriptions, plans, and construction and schedule information listed in Section 42-81(c) for disruption permits also required. The permits application shall include:

(1)  By reference to those listed in Section 44-24(a), a conspicuous identification of the type of wireless facilities proposed and applicable ordinance Section.

(2)  Documentation of the date when complete applications for construction code permits and any required Zoning Ordinance permits or approvals were or will be made.

(3)  Copies of all applications, plans, and other documents submitted to the Road Commission of Oakland County (RCOC) and Michigan Department of Transportation (MDOT) for a construction permit or documentation of the date when those submittals will be made and with an agreement to provide the Township with the required copies at that time.

(b)  The statements, descriptions, plans and application information under Section 42-81(c) and Section 42-111(b) shall include the following:

(1)  Information necessary to demonstrate compliance with the applicable standards for the type of wireless facilities, support structure, or utility poles for which approval is requested under Sections 44-28 through 44-32.

(2)  Information necessary to demonstrate compliance with the public, utility, and traffic safety and protection standards in Section 44-26.

(3)  Information necessary to demonstrate compliance with the aesthetic, spacing, and undergrounding standards in Section 44-27.

(4)  Manufacturer, model number, height, width, depth, weight, and volume in cubic feet of all proposed wireless facilities individually and collectively, specifically including the total cubic feet of each antenna and the total cubic feet of all other wireless facilities.

(5)  Certified documentation that each proposed wireless support structure or utility pole can structurally accommodate the proposed wireless facilities and documentation of any ability to accommodate any future wireless facilities.

(6)  Underground improvements and above-ground improvements, structures, and landscaping within 75 feet of the proposed location.

(7)  Geographic information system (GIS) coordinates for the proposed location.

(8)  Photos of existing conditions and photo simulations of proposed conditions.

(9)  A certificate of compliance with FCC rules related to radio frequency emissions from the proposed wireless facilities.

(10) A written certification by the applicant that the wireless facilities for which the permit is requested will be operational within one (1) year after permit issuance.

(11)     The information required for applicants in Section 42-111(b) for the owners of and wireless providers that will use the proposed wireless facilities, wireless support structures, and utility poles.

(12) Documentation of the applicant’s ability to provide any required bond under Section 44-35.

(13) Payment of any application, review, or processing fee established by resolution of the Township Board under Section 44-36.

(14) For applications that would involve exceeding the height limits under Public Act No. 365 of 2018, to the height limits allowed by 47 CFR 16.001 – 16.003, a statement of whether the applicant agrees to payment of the annual recurring fees recognized as presumptively valid under the Declaratory Ruling and Order in FCC 18-133.

(c)  An application may be for up to 20 collocations by the applicant of substantially similar small wireless facilities for placement on similar types of wireless support structures or utility poles.

Sec. 44-26. – Public, utility, traffic, and pedestrian safety protection standards.

(a)  Wireless facilities, wireless support structures, utility poles, and any related equipment shall be designed, installed, used, and maintained in compliance with the following standards that are adopted to address the anticipated proliferation of additional structures in the public right-of-way under the State and Federal regulations identified in Section 44-21 with the intention of preventing material interference with the safe operation of traffic equipment, sight lines and clear vision areas, Americans with Disabilities Act (ADA) compliance regarding pedestrian access or movement, and the maintenance and full unobstructed use of public utility and drainage infrastructure:

(1)  Shall have a separation distance of at least five (5′) feet from a sidewalk, safety path, and the back of a curb, or if there is no curb, from the edge of the improved public right-of-way used for motor vehicle travel.

(2)  Shall have a separation distance of at least five (5′) feet from the edge of any driveway and not be positioned to obstruct the ability to view traffic on the road from a vehicle exiting a driveway.

(3)  Shall be located outside the corner clearance area under the Zoning Ordinance and comply with any other traffic safety clear vision standard under any Township or other governmental ordinance, code, standard, rule, or regulation.

(4)  Shall not cause a physical or visual obstruction or safety hazard to pedestrian or vehicular traffic.

(5)  Shall comply with any setback, separation, or isolation distance requirement from existing or planned public utilities and lawful structures in the public right-of-way under any Township ordinance, code, or design standards.

(6)  The lowest part of wireless facilities shall be located at a height that is at least ten (10′) feet above existing grade or higher as necessary to not pose a hazard or obstruction to persons or vehicles and to provide sufficient separation distance from power lines and similar facilities.

(7)  Wireless support structures and utility poles shall not have more collocated wireless facilities than the structure or pole is designed and constructed to safely accommodate as documented by a certified structural analysis.

(8)  Construction and traffic control during construction shall be in accordance with the Michigan Manual of Uniform Traffic Control Devices, Michigan Vehicle Code, and the directives of the Township public safety department.

(9)  Shall not interfere or prevent compliance with Americans with Disabilities Act standards regarding pedestrian access and movement.

(10) Shall comply with all conditions of any required permits from other governmental entities.

(b)  To provide compliance with one or more of the standards in subsection (a), the Township may require that a proposed collocation involving a new or replacement utility pole be moved by up to 75 feet for collocation on a designated existing wireless support structure or utility pole or to a designated location for the new or replacement utility pole. The applicant may request a waiver of this requirement by demonstrating in writing that the applicant cannot secure the right to comply with the Township’s requirement on reasonable terms and conditions and that compliance imposes unreasonable technical problems or significant additional costs.

(c)  An applicant may request a waiver or modification of one or more of the standards in subsection (a) by demonstrating in writing that compliance will prevent a disclosed wireless service provider that would be using the proposed wireless facilities, support structure, or utility pole, from providing personal wireless services in violation of 47 USC 332, or that compliance is unreasonably burdensome, impossible without violating one or more other standards, or not necessary for safety as a result of the proposed facilities at that location. The Supervisor shall fully or partially approve, conditionally approve, or deny waiver and modification requests in writing.

Sec. 44-27. – Aesthetic, spacing, and undergrounding standards.

(a)  Wireless facilities, wireless support structures, utility poles, and any related equipment shall be designed, installed, used, and maintained in compliance with the following standards that are adopted to address the anticipated proliferation of additional structures in the public right-of-way under the State and Federal regulations identified in Section 44-21, and are intended to conceal such facilities, structures, and poles to the extent technically feasible in an effort to avoid or remedy the tangible and intangible public harm of installations in the public right-of-way that are unsightly, out-of-character with the surrounding area, or could result in the direct or indirect removal of trees and other aesthetically desirable features and appearances:

(1)  Shall be strictly limited to the location and what is shown on the approved plans.

(2)  Wireless facilities shall be treated and colored to be visually compatible with the wireless support structure or utility pole they are collocated on or associated with by painting or other coating. For existing wood utility poles, a finish color of conduit that is zinc, aluminum, or stainless steel is considered visually compatible.

(3)  Wireless facilities shall be compatible in scale and proportion to the structure or pole upon which they are to be attached, using the smallest and least intrusive technology available, with the diameter of top mounted antennas to not exceed twice the diameter of the top of the structure or pole.

(4)  Antennas shall be top mounted and aligned with the centerline of wireless support structures or utility poles, or side mounted with the vertical centerline of the antenna parallel with the support structure or utility pole.

(5)  All cables and wires shall be placed in conduit or otherwise properly secured and concealed on the wireless support structure or utility pole.

(6)  No more than three (3) antennas may be collocated on a utility pole and only if that number of antennas can be designed and accommodated in a manner that complies with all requirements of this Section.

(7)  Existing trees in the public right-of-way shall not be removed or trimmed to facilitate the installation, use, or maintenance of wireless facilities.

(8)  Wireless facilities, support structures, and utility poles shall not be located within the drip line (critical root zone) of an existing tree in or adjoining the public right-of-way.

(9)  Ground mounted wireless facilities, including equipment cabinets and enclosures, shall be located as close as legal and technically feasible to the wireless support structure or utility pole they are associated with.

(10) Ground mounted wireless facilities, including equipment cabinets and enclosures, shall be concealed to the extent technically feasible by matching color and materials to existing above-ground structures, landscaping, and placement to take advantage of concealment provided by the proposed structure or pole, existing landscaping, or above-ground improvements.

(11)     Wireless facilities shall not project more than two (2′) feet from any side of the utility pole or wireless support structure upon which they are collocated.

(12) Wireless facilities shall not be illuminated unless required by law or integral to a concealment design such as appearance as or on a street light pole.

(13) New and replacement utility poles shall be located in alignment with existing utility poles on either side.

(14) Unless an alternate location is required by subsection (17), new and replacement utility poles shall be located equidistant from existing utility poles on either side.

(15) New and replacement utility poles shall be made of the same material and have the same visual appearance as the existing utility poles on either side. If those existing utility poles are different, the new or replacement pole shall be metal or fiber if either existing pole is of that material and shall otherwise be the same material as the newer of the existing poles.

(16) Unless a greater height is approved under this Article as required by state or federal law, wireless support structures and utility poles shall not be taller than the existing utility poles on either side.

(17) In a public right-of-way abutting residentially used or zoned property, new wireless facilities, wireless support structures, and utility poles shall only be located in line with a side lot line.

(18) New wireless facilities shall not be collocated on an existing wireless support structure or utility pole that is directly in front of an existing residential dwelling or that is along the frontage of a property containing a building of historic significance under federal, state, or other laws.

(19) New wireless facilities, wireless support structures, and utility poles shall not be located directly in front of an existing residential dwelling.

(20) In a public right-of-way abutting residentially used or zoned property, wireless facilities that require a cooling system shall use a passive system, or if a motorized system is technologically required, shall use a system and fan with the lowest available noise level.

(21) Except for a label containing the name and emergency contact telephone number for the wireless provider responsible for the wireless facilities and wireless support structure or utility pole, information that identifies them and their location, and any information required to be displayed by state or federal law, no signage shall be allowed, with all manufacturer decals that are not needed for safety reasons to be removed or painted over.

(22) Regardless of the number of antennas that are collocated on a utility pole or wireless support structure, the other wireless facilities associated with those antennas shall not exceed 28 cubic feet in volume.

(23) Collocations on and replacement or new utility poles or wireless support structures in the Sashabaw Town Center, Dixie Highway, and Sashabaw North Overlay Districts under Sections 9.04, 9.05, and 9.10 of the Township Zoning Ordinance, or another public right-of-way that has been specifically designated or identified by ordinance or Township Board resolution for a program of improvement, redevelopment, beautification, regulation, or other planning goals, shall be subject to Township review and approval of the design, appearance, and method and height of attachment to assure consistency, compatibility, and uniformity with the standards, objectives, installations and streetscape appearance planned for that public right-of-way under the program.

(b)  To provide compliance with one or more of the standards in subsection (a), the Township may require that a proposed collocation involving a new or replacement utility pole be moved by up to 75 feet for collocation on a designated existing wireless support structure or utility pole or to a designated location for the new or replacement utility pole. The applicant may request a waiver of this requirement by demonstrating in writing that the applicant cannot secure the right to comply with the Township’s requirement on reasonable terms and conditions and that compliance imposes unreasonable technical problems or significant additional costs.

(c)  Above ground wireless facilities and support structures and utility poles shall not be allowed in an area designated by the Township Board solely for underground or buried cable and utility facilities if all of the following apply:

(1)  The Township has required all cable and utility facilities, other than Township, street light, and traffic signal poles and attachments, to be placed underground by a date that is not less than 90 days before the submission of the application.

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

(d)  An applicant may request a waiver or modification of one or more of the standards in subsections (a) and (c) by demonstrating in writing that compliance will prevent a disclosed wireless service provider that would be using the proposed wireless facilities, support structure, or utility pole, from providing personal wireless services in violation of 47 USC 332, or that compliance is unreasonably burdensome, impossible without violating one or more other standards, or not necessary for concealment of the proposed facilities at that location. The Supervisor shall fully or partially approve, conditionally approve, or deny waiver and modification requests in writing.

(e)  To the extent applicable and allowed under existing franchises, permits, and applicable law, the permit requirements under this Article shall apply to all new installations in the public right-of-way by electric and gas public utilities, incumbent or competitive local exchange carriers, fiber providers, and cable television video services providers.

Sec. 44-28. – Collocation of small wireless facilities on existing structures and poles.

(a)  This Section applies to the collocation of small wireless facilities on existing wireless support structures or utility poles.

(b)  For collocations where the applicant wants the annual rate limited to what is allowed by MCL 460.1313, wireless facilities shall not extend more than five (5) feet above the height of the wireless support structure or utility pole they are collocated on.

(c)  If the applicant has agreed to pay the annual recurring fee recognized as presumptively valid under the Declaratory Ruling and Order in FCC 18-133, subject to compliance with subsection (b), the collocation shall not result in a height that exceeds the greater of the following overall heights of the structure or pole and collocated wireless facilities:

(1)  50 feet.

(2)  A height that is 10% more than the height of the existing structure or pole.

(3)  A height that is 10% more than the height of immediately adjacent wireless support structures or utility poles in the public right-of-way.

(d)  Subject to the possible time adjustments in MCL 460.1315 and 47 CFR 1.6003 that are included in the Shot Clock Appendix to this Article, the Township shall approve or deny an application for a permit under this Section within 60 days of all applications for the requested facilities being submitted and complete.

(e)  A permit application under this Section may only be denied for reasons listed in Section 44-33(b).

Sec. 44-29. – Collocation of small wireless facilities on replacement/new structures and poles.

(a)  This Section applies to the collocation of small wireless facilities on new or replacement wireless support structures or utility poles.

(b)  For collocations where the applicant wants the annual rate limited to what is allowed by MCL 460.1313, wireless facilities shall not extend more than five (5) feet above the height of the wireless support structure or utility pole and the new or replacement wireless support structure or utility pole used for collocation shall not exceed 40 feet in height above ground level.

(c)  If the applicant has agreed to pay the annual recurring fee recognized as presumptively valid under the Declaratory Ruling and Order in FCC 18-133, the collocation shall not result in a height that exceeds the greater of the following overall heights of the new or replacement structure or pole and collocated wireless facilities:

(1)  50 feet.

(2)  For a replacement structure or pole, a height that is 10% more than the height of the structure or pole being replaced.

(3)  A height that is 10% more than the height of immediately adjacent wireless support structures or utility poles in the public right-of-way.

(d)  Subject to the possible time adjustments in MCL 460.1315 and 47 CFR 1.6003 that are included in the Shot Clock Appendix to this Article, the Township shall approve or deny an application for a permit under this Section within 90 days of all applications for the requested facilities being submitted and complete.

(e)  A permit application under this Section may only be denied for reasons listed in Section 44-33(b).

Sec. 44-30. – Eligible facilities requests.

(a)  This Section applies to eligible facilities requests as defined in Section 44-22.

(b)  For purposes of this Section:

(1)  Wireless tower means a structure in a public right-of-way, the sole or primary purpose of which is to support antennas and associated wireless equipment for the provision of wireless services.

(2)  Wireless base station means equipment or a structure (other than a wireless tower), that at the time of the application, supports or houses wireless facilities at a fixed location that enables wireless service between user equipment and a communications network.

(c)  An eligible facilities request application shall include the documents, plans, specifications, and statements necessary to establish that:

(1)  The wireless tower or base station is existing.

(2)  The wireless tower or base station to be modified is in compliance with all applicable prior Township, state, and other local zoning, siting, and regulatory reviews, permits, and approvals.

(3)  Modification is limited to collocation, removal or replacement of wireless equipment.

(4)  There will be no “substantial change” to the wireless tower or base station.

(d)  For purposes of this Section substantial change means any of the following:

(1)  Increasing the height over the height approved as of February 22, 2012, by more than 10% or more than 10 feet, whichever is greater.

(2)  Adding wireless facilities that would protrude from the edge of the structure by more than six (6) feet.

(3)  The installation of new ground equipment cabinets if there are no pre-existing ground cabinets.

(4)  If there are existing ground equipment cabinets, the installation of ground cabinets that are 10% larger in height or overall volume than the existing cabinets.

(5)  Excavation or deployment outside the perimeter of the area occupied by the wireless tower or base station and existing wireless facilities.

(6)  A modification that does not comply with prior approval conditions for the wireless support structure or base station unless the noncompliance is limited to a modification that would not be a substantial change under the above standards in subsections (1) through (5)

(7)  A modification that would defeat or be incompatible or inconsistent with existing elements of a wireless tower or base station designed to conceal or minimize its appearance as a wireless tower or base station.

(e)  Subject to the possible time adjustments under 47 CFR 1.6100 that is included in the Shot Clock Appendix to this Article, the Township shall approve or deny an application for a permit under this Section within 60 days of all applications for the requested facilities being submitted and complete.

Sec. 44-31. – Collocation of wireless facilities other than small wireless facilities and eligible facilities requests.

(a)  This Section applies to the collocation of wireless facilities that are not described in Sections 44-28, 44-29, or 44-30.

(b)  Collocations shall comply with all standards in Sections 44-26 and 44-27.

(c)  For collocations where the applicant wants the annual rate limited to what is allowed by MCL 460.1313, wireless facilities shall not extend more than five (5) feet above the height of the wireless support structure or utility pole they are collocated on.

(d)  If the applicant has agreed to pay the annual recurring fee recognized as presumptively valid under the Declaratory Ruling and Order in FCC 18-133, subject to compliance with subsection (c) and the applicant’s demonstration that a disclosed wireless provider will be prohibited from providing personal wireless services without the increased height, the collocation shall not result in a height that exceeds the greater of the following overall heights of the structure or pole and collocated wireless facilities:

(1)  50 feet.

(2)  A height that is 10% more than the height of the existing structure or pole.

(3)  A height that is 10% more than the height of immediately adjacent wireless support structures or utility poles in the public right-of-way.

(e)  Subject to the possible time adjustments in MCL 460.1315 and 47 CFR 1.6003 that are included in the Shot Clock Appendix to this Article, the Township shall approve or deny an application for a permit under this Section within 90 days of all applications for the requested facilities being submitted and complete.

Sec. 44-32. – Replacement and new wireless support structures and utility poles not involving small wireless facilities or eligible facilities requests.

(a)  This Section applies to the new and replacement wireless support structures and utility poles not involving collocation of wireless facilities under Sections 44-28, 44-29, or 44-30.

(b)  Wireless support structures and utility poles shall comply with all standards in Sections 44-26 and 44-27.

(c)  For wireless support structures and utility poles where the applicant wants the annual rate limited to what is allowed by MCL 460.1313, the height shall not exceed 40 feet above ground level and wireless facilities shall not extend more than five (5) feet above the height of the wireless support structure or utility pole.

(d)  If the applicant has agreed to pay the annual recurring fee recognized as presumptively valid under the Declaratory Ruling and Order in FCC 18-133, subject to the applicant’s demonstration that a disclosed wireless provider will be prohibited from providing personal wireless services without a height greater than in subsection (c), the wireless support structure or utility pole may be increased to a height that does not exceed the greater of the following overall heights of the structure or pole and collocated wireless facilities:

(1)  50 feet.

(2)  A height that is 10% more than the height of the existing structure or pole.

(3)  A height that is 10% more than the height of immediately adjacent wireless support structures or utility poles in the public right-of-way.

(e)  For new and replacement wireless support structures and utility poles under this Section, the Township may specify and require relocation from what is proposed to a new location in the same general public right-of-way area based on any standard listed in Sections 44-26 and 44-27, or permit condition listed in Section 44-34.

(f)  Subject to the possible time adjustments in MCL 460.1315 and 47 CFR 1.6003 that are included in the Shot Clock Appendix to this Article, the Township shall approve or deny an application for a permit under this Section within 150 days of all applications for the requested facilities being submitted and complete.

Sec. 44-33. – Review and decisions on use permit applications.

(a)  Within the time allowed for approval or denial of a permit application, the Supervisor shall issue a written notice to the applicant that either denies the requested permit for specified reasons with citations to applicable Sections of this Chapter or other codes or provides notice that the application has been approved and the requirements for the permit to be issued.

(b)  An application under Sections 44-28 or 44-29 for wireless facilities, support structures, or utility poles described in and complying with those Sections may only be denied if the facilities, structures, or poles would do one or more of the following:

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

(2) Materially interfere with sight lines or clear zones for transportation or pedestrians.

(3) 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.

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

(5) With respect to drainage infrastructure under the jurisdiction of the Township or other governmental entity, 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.

(6) Fail to comply with the one or more spacing standards in Sections 44-26 or 44-27 that do not prevent a wireless provider from serving any location.

(7) Fail to comply with applicable codes.

(8) Fail to comply with the aesthetic, spacing, or undergrounding standards in Section 44-27 in a historic, downtown, or residential district unless such compliance is demonstrated by the applicant to prohibit use of the wireless service provider’s technology.

(9) Fail to meet the aesthetic, spacing, or undergrounding standards in Section 44-27 unless such compliance is demonstrated by the applicant to prohibit the provision of personal wireless services.

(c) If an application is denied, the applicant may attempt to cure the reasons for denial by submitting a revised application with amended or supplemental information within 30 days of the denial without payment of an additional application fee. The Supervisor shall approve or deny the revised application within 30 days, limiting its review to the reasons for denial, and provide notice of that decision as provided in subsection (a).

(d)  Before issuance of a permit, any bond required by Section 44-35 shall be provided and the annual fee established by Resolution of the Township Board for the approved wireless facilities under Section 44-36 shall be paid.

Sec. 44-34. – Permit terms and conditions.

A permit issued under this Article shall be considered to include the terms, conditions, requirements, and regulations in Sections 42-84, 42-85, 42-86, 42-87, 42-114, 42-115, 42-116, and 42-117 of Article III in Chapter 42 of this Code as permit terms and conditions. In addition, every permit issued under this Article shall be considered to also include the following conditions, with these conditions to control in the event of any conflict or inconsistency with those in Article III of Chapter 42. Compliance with permit conditions is required, with a violation of permit conditions being a violation of this Article.

(a)  Repair. All wireless providers using the wireless facilities, support structures, or utility poles are responsible for repairing all damage to the public right-of-way caused by the activities of one or more of those providers while occupying, constructing, installing, mounting, maintaining, modifying, operating, or replacing wireless facilities, wireless support structures, or utility poles, and to restore the public right-of-way to the condition that existed prior to the damage. If the wireless providers fail to perform the repairs and restoration within 60 days of the Township’s written notice to do so, the Township may perform the repairs and restoration, with the wireless providers responsible for paying the Township its reasonable and documented costs within 30 days of the Township’s invoice or billing for those costs.

(b)  Electricity. All wireless providers using the wireless facilities, support structures, or utility poles shall be responsible for arranging and paying for all electricity used for the wireless facilities.

(c)  Indemnification. All wireless providers using the wireless facilities, support structures, or utility poles shall defend, indemnify, and hold harmless the Township 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, wireless providers using the facilities, structures, or poles, and their contractors, subcontractors, and the officers, employees, or agents of any of these. This obligation does not apply to any liabilities or losses due to or caused by the sole negligence of the Township or its officers, agents, or employees.

(d)  Insurance. All wireless providers using the wireless facilities, support structures, or utility poles obtain insurance naming the Township and its officers, agents, and employees as additional insureds against any claims, demands, damages, lawsuits, judgments, costs, liens, losses, expenses, and attorney fees in amounts required by the Township. A wireless provider may meet all or a portion of the Township’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 Section. To the extent a wireless provider elects to self-insure, the wireless provider shall provide to the Township evidence demonstrating, to the Township’s satisfaction, the wireless provider’s financial ability to meet the Township’s insurance coverage and limit requirements.

(e)  Marking. Permittee shall mark the Wireless facilities, structures, and poles in compliance with applicable federal and state law requirements, with each location at which Wireless facilities, structures, and poles are located to have a written sign that is readable from ground level that at a minimum states Permittee’s name and a toll-free telephone number to call for assistance, and if Wireless facilities, structures, and poles are underground, a statement that there is buried equipment at the site.

(f)  Coordination. Permittee shall coordinate its construction and all other work in the Public Right-of-Way with any Township programs or projects Permittee was notified of in the Township’s review comments on disruption permit application.

(g)  Underground Relocation. If Permittee has its wireless facilities on poles of a utility or telecommunications provider and such utility or telecommunications provider relocates its system underground, this Permit shall terminate as to any such pole that is no longer used except by Permittee for its wireless facilities. Permittee shall remove any such pole described in this subsection at its cost and expense within a reasonable time period specified by the Township in a written notice. If Permittee fails to satisfy this obligation, Township may take all reasonable actions it deems necessary to secure timely completion of the required work.

Sec. 44-35. – Bond.

A bond may be required to be posted prior to issuance of a Use Permit under this Article in an amount not exceeding $1,000.00 for each wireless facility at a location to provide for removal of abandoned or improperly maintained facilities, repair and restore the public right-of-way, and recoup rates or fees that have not been paid within 12 months of when they were due. The Township may not require the bond to be cash unless the wireless provider has failed to obtain or maintain a required bond in a form other than cash or the surety has defaulted or failed to perform on a bond given on behalf of the wireless provider.

Sec. 44-36. – Fees.

Application, review, inspection, and recurring annual rates or fees shall be payable to the Township in amounts established by Township Board resolution.

Sec. 44-37. Shot Clock Appendix.

     The attached Shot Clock Appendix containing MCL 460.1315, 47 CFR 1.6003, and 47 CFR 1.40001 is part of this Article.

Sec. 44-38. – Construction Permits.

(a)  A copy of every RCOC or MDOT issued construction permit for work in a public right-of-way for which a permit under this Article has been applied for, approved, or issued shall be filed with the Township within three (3) days of issuance.

(b)  Work in a public right-of-way authorized by a construction permit issued by RCOC or MDOT shall not be commenced or performed until all Township permits and approvals required under this Article have been issued.

Sec. 44-39. – Township Administration and Enforcement.

(a)  Upon the Ordinance that added this Article taking effect, the Township shall provide RCOC and MDOT with copies of Sections 44-26 and 44-27 with a request that those public, utility, traffic and pedestrian safety protection standards and aesthetic, spacing, and undergrounding standards be applied in the review and decision on construction permit applications.

(b)  Upon receiving and reviewing an application for a Use Permit under this Article, the Township shall provide written notice of any noncompliance with Sections 44-25, 44-26, or 44-27 to RCOC for a county road and to MDOT for a state highway with a request that any construction permit applied for be withheld until or conditioned on cure of the noncompliance.

(c)  The Township reserves the right to notify and request enforcement by RCOC or MDOT of violations of the terms and conditions of construction permits issued by them.

Section 4. REPEALER.

All ordinances, parts of ordinances, or sections of the Charter Township of Independence Code of Ordinances in conflict with this Ordinance are repealed only to the extent necessary to give this Ordinance full force and effect.

Section 5. SEVERABILITY.

Should any section, subdivision, clause, or phrase of this Ordinance be declared by the courts to be invalid, the validity of the Ordinance as a whole, or in part, shall not be affected other than the part invalidated.

Section 6. SAVINGS.

All proceedings pending and all rights and liabilities existing, acquired or incurred at the time this Ordinance takes effect, are saved and may be consummated according to the law in force when they were commenced.

Section 7. EFFECTIVE DATE.

This ordinance shall be effective upon publication in the manner prescribed by law.

Section 8. ENACTMENT.

This Ordinance is declared to have been enacted by the Township Board of Trustees of the Charter Township of Independence at a meeting called and held on the _____ day of ________, 2019, and ordered to be given publication in the manner prescribed by law.

Ayes:

Nays:

Abstentions:

Absent:

STATE OF MICHIGAN           )

)               ss.

COUNTY OF OAKLAND   )

I, the undersigned, the qualified and acting Township Clerk of the Charter Township of Independence, Oakland County, Michigan, do certify that the foregoing is a true and complete copy of the Ordinance adopted by the Board of Trustees of the Charter Township of Independence at a meeting held on the ____ day of _____________, 2019, the original of which is on file in my office.

CHARTER TOWNSHIP OF INDEPENDENCE

By: Barbara A. Pallotta, Clerk

Introduced:              April 9, 2019

Published: April 17, 2019-Clarkston News

Adopted:

Effective: