§ 104-6. Placement or maintenance of a communications facility in public rights-of-way.

(a)

A registrant shall at all times comply with and abide by all applicable provisions of the state and federal law and city ordinances, codes and regulations in placing or maintaining a communications facility in public rights-of-way, including, but not limited to, articles II and III of chapter 98, and article V of chapter 110 of this Code.

(b)

Registrant shall not commence to place or maintain a communications facility, including without limitation a collocation, in public rights-of-way until all applicable permits, if any, have been issued by the city or other appropriate authority, provided, however, in the case of an emergency, a registrant may restore its damaged facilities in the right-of-way to their pre-emergency condition or replace its destroyed facilities in the rights-of-way with facilities of the same size, character and quality, all without first applying for or receiving a permit. The term "emergency" shall mean a condition that affects the public's health, safety or welfare, which includes an unplanned out-of-service condition of a pre-existing service. Registrant shall provide prompt notice to the city of the repair or replacement of a communications facility in public rights-of-way in the event of an emergency, and shall be required to obtain an after-the-fact permit if a permit would have originally been required to perform the work undertaken in the public rights-of-way in connection with the emergency. Registrant acknowledges that as a condition of granting permits, the city may impose reasonable rules or regulations governing the placement or maintenance of a communications facility in public rights-of-way. Permits shall apply only to the areas of public rights-of-way specifically identified in the permit. The city may issue a blanket permit to cover certain activities, such as routine maintenance and repair activities that may otherwise require individual permits.

Communication facilities providers and pass-through providers understand and acknowledge that the city's policies strongly favor strengthening utility infrastructure, in particular as it relates to flooding and hurricane related events. Subject to any applicable regulatory approval, the communication facility providers and pass-through providers will implement an infrastructure hardening plan for any facilities within the city's boundaries.

(c)

As part of any permit application to place a new or replace an existing wireless communications facility in public rights-of-way, including, without limitation, a collocation, the registrant shall provide the following:

(1)

The location of the proposed facilities, including a description of the facilities to be installed, where the facilities are to be located, and the approximate size of facilities that will be located in public rights-of-way;

(2)

With respect to proposals to locate a new tower or replace an existing tower or wireless communication facility in the right-of-way, engineering documentation demonstrating either: (i) how the proposed tower or wireless communications facility can accommodate multiple collocations; (ii) why the city's interest in safe, aesthetic, efficient and effective management of the public rights-of-way is better served by the proposed tower or wireless communications facility than by a communications facility that could accommodate multiple collocations; or (iii) why a repurposed structure is not better suited to or feasible for the site;

(3)

A description of the manner in which the facility will be installed (i.e. anticipated construction methods or techniques);

(4)

A maintenance of traffic plan for any disruption of the public rights-of-way;

(5)

For purposes of assessing impact on right-of-way resources, effects on neighboring properties and potential for collocations or repurposed structures, information on the ability of the public rights-of-way to accommodate the proposed facility, including information that identifies all above-ground and below ground structures (including light poles, power poles, equipment boxes and antenna), currently existing in the public rights-of-way in the city within a 500-feet radius of the proposed facility, if available (such information may be provided without certification as to correctness, to the extent obtained from other registrants with facilities in the public rights-of-way); however, if the applicable board determines that it either: (i) better serves the city's interests in safe, aesthetic, efficient and effective management of the public rights-of-way; (ii) is necessary to address a documented lack of capacity for one or more carriers; or (iii) will help minimize the total number of communication facilities necessary to serve a particular area, then the 500-foot distance requirement may be modified. The applicant shall provide competent substantial evidence to reflect that the above conditions are met, in order to waive the 500-foot distance requirements, and ensure compliance with all the other requirements of this chapter;

(6)

If appropriate given the facility proposed, an estimate of the cost of restoration to the public rights-of-way;

(7)

The timetable for construction of the project or each phase thereof, and the areas of the city which will be affected;

(8)

Whether all or any portion of the proposed facilities will be rented, hired, leased, sublet, or licensed from or to any third party and, if so, the identity, and contact information of that third party;

(9)

Prior to installation of any new or additional equipment in the rights-of-way, including, but not limited to, collocation at a specific site, the communications provider or pass-through provider shall be required to remove any and all obsolete, unutilized or abandoned equipment. Any application to install new or additional equipment shall identify the abandoned, obsolete or unutilized equipment that shall be removed prior to the installation of any new or additional technology or equipment in the rights-of-way;

(10)

If there exists a telecommunication facility by the same provider or pass-through provider within the right-of-way that is adjacent to or within 15 feet of the proposed new telecommunication facility location, the telecommunication provider or pass-through provider shall be required to remove and consolidate the equipment into one facility, so as to not create a second location for street furniture within such a minimal distance.

(11)

Such additional information as the city finds reasonably necessary with respect to the placement or maintenance of the communications facility that is the subject of the permit application to review such permit application.

(d)

To the extent not otherwise prohibited by state or federal law, the city shall have the power to prohibit or limit the placement of new or additional communications facilities within a particular area of public rights-of-way and may consider, among other things and without limitation, the sufficiency of space to accommodate all of the present communications facilities and pending applications to plane and maintain facilities in that area of the public rights-of-way, the sufficiency of space to accommodate city announced plans for public improvements or projects that the city determines are in the public interest, the impact on traffic and traffic safety, and the impact upon existing facilities in the rights-of-way. The city manager or the manager's designee may impose additional reasonable regulations and conditions to ensure the public health, safety and welfare, and peaceful enjoyment of city residents and businesses.

(e)

All communications facilities shall be placed or maintained so as not to unreasonably interfere with the use of the public rights-of-way by the public and with the rights and convenience of property owners who adjoin any of the public rights-of-way. The use of trenchless technology (i.e., directional bore method) for the installation of facilities in the public rights-of-way as well as joint trenching or the co-location of facilities in existing conduit is strongly encouraged, and should be employed wherever feasible. To the extent not prohibited by federal and state law, the city shall require any registrant that does not have communications facilities in the city as of the date of adoption of this article to place any new cables, wires, fiber optics, splice boxes and similar communications facilities underground, unless such communications facilities can be co-located on existing poles. The city manager may promulgate reasonable rules and regulations concerning the placement or maintenance of a communications facility in public rights-of-way consistent with this article and other applicable law.

(f)

All safety practices required by applicable law or accepted industry practices and standards shall be used during the placement or maintenance of communications facilities.

(g)

After the completion of any placement or maintenance of a communications facility in public rights-of-way or each phase thereof, a registrant shall, at its own expense, restore the public rights-of-way to its original condition before such work. If the registrant fails to make such restoration within 30 days, or such longer period of time as may be reasonably required under the circumstances, following the completion of such placement or maintenance, the city may perform restoration and charge the costs of the restoration against the registrant in accordance with Florida Statutes § 337.402, as it may be amended. For 12 months following the original completion of the work, the registrant shall guarantee its restoration work and shall correct any restoration work that does not satisfy the requirements of this article at its own expense.

(h)

Removal or relocation at the direction of the city of a registrant's communications facility in public rights-of-way shall be governed by the provisions of Florida Statutes §§ 337.403 and 337.404, as they may be amended from time to time. Subject to the aforementioned Florida Statutes §§ 337.403 and 337.404 and other provisions of law, whenever existing overhead utility distribution facilities are converted to underground facilities pursuant to article V of chapter 110 of this Code, any registrant having communications facilities on poles that are to be removed shall arrange for the conversion to underground facilities on the same terms and conditions as the other utilities that are being converted to underground facilities.

(i)

A permit from the city constitutes authorization to undertake only certain activities in public rights-of-way in accordance with this article, and does not create a property right or grant authority to impinge upon the rights of others who may have an interest in the public rights-of-way.

(j)

A registrant shall maintain its communications facilities in public rights-of-way in a manner consistent with accepted industry practice and applicable law.

(k)

In connection with excavation in the public rights-of-way, a registrant shall, where applicable, comply with the underground facility damage prevention and safety act set forth in Florida Statutes Chapter 556, as it may be amended from time to time.

(l)

Registrant shall use and exercise due caution, care and skill in performing work in the public rights-of-way and shall take all reasonable steps to safeguard work site areas.

(m)

Upon request of the city, and as notified by the city of the other work, construction, installation or repairs referenced below, a registrant may be required to coordinate placement or maintenance activities under a permit with any other work, construction, installation or repairs that may be occurring or scheduled to occur within a reasonable timeframe in the subject public rights-of-way, and registrant may be required to reasonably alter its placement or maintenance schedule as necessary so as to minimize disruptions and disturbance in the public rights-of-way.

(n)

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

(o)

The city makes no warranties or representations regarding the fitness, suitability, or availability of the city's public rights-of-way for the registrant's communications facilities and any performance of work, costs incurred or services provided by registrant shall be at registrant's sole risk. Nothing in this article shall affect the city's authority to add, vacate, modify, abandon or otherwise dispose of public rights-of-way, and the city makes no warranties or representations regarding the availability of any added, vacated, modified or abandoned public rights-of-way for communications facilities.

(p)

The city shall have the right to make such inspections of communications facilities placed or maintained in public rights-of-way as it finds necessary to ensure compliance with this article.

(q)

A permit application to place a new or replace an existing communications facility in public rights-of-way shall include plans showing the location of the proposed installation of facilities in the public rights-of-way. If the plans so provided require revision based upon actual installation, the registrant shall promptly provide revised plans. The plans shall be in a hard copy format or an electronic format specified by the city, provided such electronic format is maintained by the registrant. Such plans in a format maintained by the registrant shall be provided at no cost to the city. Upon completion of any communications facilities, the communications services provider shall furnish to the city, at no cost to the city, one complete set of sealed "as built" plans, or in the case of any underground communications facilities, a sealed survey showing the exact location of such communications facilities, including their depth; or in either case, such other documentation describing the location (including height or depth, as the case may be), of communications facilities as the city manager, or his or her designee, may approve. This requirement shall be in addition to, and not in lieu of, any filings the registrant is required to make under the Underground Facility Damage Prevention and Safety Act set forth in Florida Statutes Chapter 556, as amended from time to time. The fact that such plans or survey is on file with the city shall in no way abrogate the duty of any person to comply with the aforesaid Underground Facility Damage Prevention and Safety Act when performing work in the public rights-of-way. Any proprietary confidential business information obtained from a registrant in connection with a permit application or a permit shall be held confidential by the city to the extent provided in Florida Statutes § 202.195, as amended from time to time.

(r)

The city reserves the right to place and maintain, and permit to be placed or maintained, sewer, gas, water, electric, storm drainage, communications, and other types of facilities, cables or conduit, and to do, and to permit to be done, any underground and overhead installation or improvement that may be deemed necessary or proper by the city in public rights-of-way occupied by the registrant, and the city also reserves the right to reserve any portion of the public rights-of-way for its own present or future use. The city further reserves without limitation the right to alter, change, or cause to be changed, the grading, installation, relocation, or width of the public rights-of-way within the limits of the city and within said limits as same may from time to time be altered.

(s)

A registrant shall promptly, at the request of any person holding a permit issued by the city, temporarily raise or lower its communications facilities to permit the work authorized by the permit. The expense of such temporary raising or lowering of facilities shall be paid by the person requesting the same, and the registrant shall have the authority to require such payment in advance. The registrant shall be given not less than 30 days' advance written notice to arrange for such temporary relocation.

(t)

The following additional requirements apply when a registrant seeks authority to locate a wireless communications facility in the public rights-of-way:

(1)

Registrants seeking to locate wireless communications facilities within the city are encouraged to locate on private property or government-owned property outside of the rights-of-way. An application for a permit to locate wireless communications facilities within the rights-of-way shall explain why the applicant is unable to locate the proposed facilities on private property or government owned property. The city may not deny an application based solely on the fact that the applicant is proposing to place a wireless telecommunications facility in the rights-of-way.

(2)

Registrants seeking to place, construct or modify a wireless communications facility in the right-of-way shall either:

a.

Collocate wireless communications facilities with the wireless communications facilities of other wireless providers, as set out in Florida Statutes § 365.172, as amended, or

b.

Install their wireless communications facilities on existing structures within the right-of-way, including without limitation existing power poles, light poles and telephone poles in a stealth design, or

c.

Repurpose an existing structure. With respect to proposals to locate a new tower or replace an existing tower or wireless communications facility in the right-of-way, engineering documentation demonstrating either: (i) how the proposed tower communications facility can accommodate multiple collocations; (ii) why the city's interest in safe, aesthetic, efficient and effective management of the public rights-of-way is better served by the proposed tower or wireless communications facility than by a communications facility that could accommodate multiple collocations; or (iii) why ether a repurposed structure is not would be better suited to or feasible for to the site.

(3)

Registrants seeking to construct wireless communications facilities within the rights-of-way shall locate their wireless communication facilities in the rights-of-way of arterial or collector roadways, whenever possible. An application for a permit to place wireless communication facilities in rights-of-way other than those of arterial or collector roadways shall explain why the applicant is unable to locate the wireless communications facilities in the rights-of-way of an arterial or collector roadway and shall include an engineering analysis from the applicant demonstrating to the satisfaction of the city engineer the need to locate the wireless communication facilities in the areas proposed in the application.

(4)

Whenever wireless communications facilities must be placed in a right-of-way with residential uses on one or both sides, neither towers, poles, equipment, antennas, or other structures shall be placed directly in front of a residential structure. If a right-of-way has residential structures on only one side, the wireless communications facilities shall be located on the opposite side of the right-of-way, whenever possible. All wireless communications facilities shall be located such that views from residential structures are not impaired. Newly installed poles and towers for wireless communications facilities should be located in areas with existing foliage or other aesthetic features in order to obscure the view of the pole or tower. The requirements of this subparagraph shall not apply to repurposed structures, when there is a one-to-one repurposing of an existing structure (ie: existing light pole).

(5)

Registrants are required to locate wireless communications facilities within rights-of-way in a manner that minimizes their impact in the city, including without limitation Miami Beach Historic Districts. Whenever a registrant applies for a permit to locate a wireless communications facility in a right-of-way within a Miami Beach Historic District, a copy of the permit application shall be simultaneously served on the City of Miami Beach Historic Preservation staff. All other applications for permits to locate a wireless communications facility within the city shall be simultaneously served on the design review staff. Registrant must obtain the approval of the design review board or the historic preservation board (depending on the proposed facility's location and each board's respective jurisdiction) for the design and location of the wireless communications facility, in accordance with their respective design review or appropriateness criteria. The city reserves the right to condition the grant of any permit to locate a wireless communications facility within the right-of-way upon the registrant taking such reasonable measures, consistent with the city authority's jurisdiction, as the city may determine are necessary to mitigate the impact of the wireless communications facility on a Miami Beach Historic District. Installation of a pole or tower under this chapter shall not interfere with a clear pedestrian path, at a minimum the width required by the Americans with Disabilities Act and Florida Building Code.

(6)

Stealth design shall be utilized wherever possible in order to minimize the visual impact of wireless communications facilities. Each application for a permit to place a wireless communications facility in the right-of-way shall include:

a.

Photographs clearly showing the nature and location of the site where each wireless communications facility is proposed to be located,

b.

Photographs showing the location and condition of properties adjacent to the site of each proposed wireless communications facility, and

c.

A description of the stealth design techniques proposed to minimize the visual impact of the wireless communications facility and shall include graphic depictions accurately representing the visual impact of the wireless communications facilities when viewed from the street and from adjacent properties.

(7)

Stealth design of communications facilities to be located on new towers or wireless communications facilities in the rights-of-way shall eliminate the need to locate any ground or elevated equipment (other than antennas) on the exterior of a tower or wireless communications facility. Stealth design of communications facilities to be located on existing structures other than towers shall minimize the need to locate any ground equipment or elevated equipment (other than antennas) on the exterior of the structure. The use of foliage and vegetation around any approved ground equipment may be required by the city based on conditions of the specific area where the ground equipment is to be located and in accordance with Subpart B, Land Development Regulations, Chapter 126, Landscaping.

(8)

Stealth design of communications facilities to be located on structures in the rights-of-way shall (a) top mount antennas within enclosures that do not extend the diameter of the supporting structure at the level of antenna attachment and (b) shall side mount antennas within enclosures that do not extend more than two feet beyond the exterior dimensions of the supporting structure at the level of antenna attachment. Under no circumstances shall antennas be mounted less than eight feet above ground level. For purposes of calculating (a) and (b), above, the dimensions of the supporting structure do not include any platform, rack, mount or other hardware used to attach an antenna or antenna enclosure to the supporting structure.

(9)

The following additional requirements shall apply to wireless communications facilities located in the rights-of-way:

a.

Each application to locate equipment at ground level on or, adjacent to, the exterior of a pole or tower and each proposal to locate elevated equipment (other than antennas) on or adjacent to the exterior of a tower or pole shall include engineering documentation demonstrating to the satisfaction of the city engineer that the facility cannot employ stealth design and that the proposed exterior location and configuration of equipment proposes the minimum equipment necessary to achieve needed function. In order to avoid the clustering of multiple items of approved ground equipment or elevated equipment in a single area, only one equipment box may be located in any single location.

b.

Where a registrant demonstrates that stealth design cannot be employed, the individual approved exterior equipment boxes shall not exceed 12 cubic feet in volume.

c.

Wireless communications facilities in the rights-of-way must be spaced a minimum of 500 linear feet of right-of-way apart from each other except that no distance requirement shall apply to repurposed structures. This subsection may be waived upon a factual showing, supported by sworn testimony or matters subject to official notice, demonstrating to the satisfaction of the city, as determined by the design review board or historic preservation board, depending upon which has jurisdiction, that locating a specific wireless communications facility less than 500 feet from other wireless communications facilities either: (1) better serves the city's interests in safe, aesthetic, efficient and effective management of the public rights-of-way than application of the 500 feet limitation; (2) is necessary to address a documented lack of coverage or capacity for one or more carriers; or (3) will help minimize the total number of wireless communication facilities necessary to serve a particular area. See subsection 104-6(c)(5).

d.

The size and height of new wireless communications facility towers and poles in the rights-of-way shall be no greater than the maximum size and height of any other utility or light poles located in the same portion of the right-of-way within the city; provided however, that registrants proposing wireless communications facilities with antennas to be located on existing poles or repurposed structures may increase the height of the existing pole or repurposed structure up to six feet, if necessary, to avoid adversely affecting existing pole attachments; and provided further that the overall height above ground of any wireless communications facility shall not exceed 40 feet or exceed the existing height of an existing light pole in the city's right-of-way, which ever height is greater. Any repurposed structure within Lincoln Road Mall shall not exceed 60 feet, to replace the existing 60-foot light poles within the center of the pedestrian mall.

e.

Wireless communications facilities installed on poles or towers that are not light poles, and repurposed structures that were not originally light poles, shall not be lit unless lighting is required to comply with FAA requirements.

f.

Registrants shall not place advertising on wireless communications facilities installed in the rights-of-way, provided, however, that repurposed structures that lawfully supported advertising before being repurposed may continue to support advertising as otherwise permitted by law.

(10)

The city's action on proposals to place, construct or modify wireless communications facilities shall be subject to the standards and time frames set out in Florida Statutes § 365.172. 47 USC § 1455(a), and orders issued by the FCC, as they may be amended.

(u)

The obligations imposed by the requirements of subsections 104-6(t)(1) through 104-6(t)(9), above, upon registrants proposing to place or maintain wireless communications facilities in the public rights-of-way shall also apply to registrants proposing to place or maintain any other type of communications facility in public rights-of-way, if that other type of communications facility involves placement of over-the-air radio transmission or reception equipment in the public rights-of-way.

(v)

Prior to the issuance of any permit pertaining to the placement and maintenance of communications facilities within the public rights-of-way, the city may require the registrant to issue notice of the work to property owners who adjoin such rights-of-way (the "notification area"), and based on the scope of the proposed work, the number of affected property owners and the potential severity of the impact to such property owners, may further require the registrant to hold a public information meeting for purposes of answering questions and taking comments from affected property owners. The notification area may be expanded at the city's discretion and notice shall be affected in a manner deemed appropriate by the city; provided, however, the notification area, as expanded, shall not exceed a radius of 375 feet from the site of the proposed communications facilities. Should a public information meeting be required, the registrant shall meet with city staff as soon as practical to review comments received at the public information meeting, and attempt to resolve all negative comments or issues raised.

(w)

Pursuant to Florida Statutes § 337.401(c)(1)(b) and other applicable provisions of law, and notwithstanding any other provisions of this Code, the city hereby elects not to charge permit fees to any registrant for permits to do work in the public rights-of-way.

(Ord. No. 2001-3306, § 1, 5-16-01; Ord. No. 2015-3924, § 1, 2-11-15)