Bill Text: IA SF431 | 2017-2018 | 87th General Assembly | Enrolled
Bill Title: A bill for an act relating to the siting of small wireless facilities. (Formerly SSB 1138.) Effective 7-1-17.
Spectrum: Committee Bill
Status: (Passed) 2017-05-09 - Signed by Governor. S.J. 1135. [SF431 Detail]
Download: Iowa-2017-SF431-Enrolled.html
Senate File 431 - Enrolled
SENATE FILE
BY COMMITTEE ON COMMERCE
(SUCCESSOR TO SSB
1138)
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A BILL FOR
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Senate File 431
AN ACT
RELATING TO THE SITING OF SMALL WIRELESS FACILITIES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
Section 1. Section 8C.2, subsections 3 and 14, Code 2017,
are amended to read as follows:
3. "Authority", used as a noun, means a state, county,
or city governing body, board, agency, office, or commission
authorized by law to make legislative, quasi=judicial,
or administrative decisions relative to an application.
"Authority" does not include state any of the following:
a. State courts having jurisdiction over land use, planning,
or zoning decisions made by an authority, the.
b. The utilities division of the department of commerce, or.
c. Any entities, including municipally owned utilities
established under or governed by Title IX, subtitle 4 of
the Code, that do not have zoning or permitting authority
jurisdiction.
14. "Utility pole" means a pole or similar structure
owned or operated utilized in whole or in part by a public
utility, municipality, wireless service provider, or electric
utility that is designed specifically for and used to carry
lines, cable, transmission equipment, or wires for telephone,
wireless service, cable television, or electricity service,
or to provide for lighting, the vertical portion of support
structures for traffic control signals or devices, signage,
information kiosks, or other similar functions.
Sec. 2. Section 8C.2, Code 2017, is amended by adding the
following new subsections:
NEW SUBSECTION. 9A. "Micro wireless facility" means a small
wireless facility with dimensions no larger than twenty=four
inches in length, fifteen inches in width, and twelve inches
in height and that has an exterior antenna, if any, that is no
more than eleven inches in length.
NEW SUBSECTION. 10A. a. "Small wireless facility" means a
wireless facility that meets the following requirements:
(1) Each antenna is no more than six cubic feet in volume.
(2) (a) All other equipment associated with the small
wireless facility is cumulatively no more than twenty=eight
cubic feet in volume.
(b) For purposes of this subparagraph, volume shall be
measured by the external displacement of the primary equipment
enclosure, not the internal volume of such enclosure. An
associated electric meter, concealment, telecommunications
demarcation box, ground=based enclosures, battery backup power
systems, grounding equipment, power transfer switch, cutoff
switch, cable, conduit, and any equipment that is concealed
from public view within or behind an existing structure or
concealment may be located outside of the primary equipment
enclosure and shall not be included in the calculation of the
equipment volume.
b. "Small wireless facility" includes a micro wireless
facility as defined in subsection 9A.
c. "Small wireless facility" does not include any structure
that supports or houses equipment described in this subsection.
NEW SUBSECTION. 14A. "Wireless facility" means equipment
at a fixed location that enables the transmission of wireless
communications or information of any kind between user
equipment and a communications network, except that "wireless
facility" does not include coaxial or fiberoptic cable that is
not immediately adjacent to, or directly associated with, a
particular antenna.
NEW SUBSECTION. 14B. "Wireless service" means any fixed or
mobile service using licensed or unlicensed wireless spectrum
and provided using a wireless facility.
NEW SUBSECTION. 14C. "Wireless service provider" means a
provider of wireless service.
Sec. 3. NEW SECTION. 8C.7A Uniform rules for small wireless
facilities ==== permit approval.
1. a. Except as provided in this section, an authority
shall not prohibit or restrict the siting of a small wireless
facility.
b. For purposes of this section, "siting" means the
mounting, installation, maintenance, modification, operation,
or replacement of a small wireless facility on or adjacent to
any of the following:
(1) An existing tower, utility pole, wireless support
structure, or other existing structure.
(2) A new utility pole of a similar height and appearance
as an existing utility pole and which is located within a
five=hundred=foot radius of the existing utility pole.
(3) A replacement utility pole of a similar height and
appearance as an existing utility pole and which is located
within a five=hundred=foot radius of the existing utility pole.
2. a. An authority that has adopted planning and zoning
regulations shall authorize the siting of a small wireless
facility within its jurisdiction and shall not require a person
to obtain a special or conditional land use permit for any of
the following:
(1) For siting the small wireless facility in a public
right=of=way or on an authority structure located outside of
a public right=of=way to the extent that such structure is
already in use as a wireless support structure by supporting
non=authority communications equipment that involve external
attachments, provided that such structure is not listed on the
national register of historic places.
(2) For siting the small wireless facility on an existing
tower, utility pole, or wireless support structure, regardless
of the location, except for on property zoned and used
exclusively for single=family residential use or within a
previously designated area of historical significance pursuant
to section 303.34.
b. A small wireless facility may be classified as a special
or conditional land use where such small wireless facility is
not sited in a manner as provided in paragraph "a".
c. A person may install a new utility pole or wireless
support structure in a public right=of=way subject to the
provisions of this section. An authority may reasonably limit
the number of new utility poles or wireless support structures,
consistent with the protection of public health, safety, and
welfare, and provided that such limitation does not have the
effect of prohibiting or significantly impairing a wireless
service provider's ability to provide wireless service within
the area of a proposed new structure. However, an authority
may require a person to obtain a special or conditional
land use permit to install a new utility pole or wireless
support structure for the siting of a small wireless facility
on property zoned and used exclusively for single=family
residential use or within a previously designated area of
historical significance pursuant to section 303.34.
3. a. (1) An authority may require a person to obtain a
building, electrical, or public right=of=way use permit for the
siting of a small wireless facility to the extent that such
permit is of general applicability and does not deny access
to site the small wireless facility in a public right=of=way.
Notwithstanding this paragraph, an authority shall not require
a person to obtain a permit for the routine maintenance of a
previously approved small wireless facility or the replacement
of a previously approved small wireless facility with a
facility of substantially similar height, weight, and wind
and structural loading, provided, however, that an authority
may require a person to obtain a permit to work in a public
right=of=way or on an authority structure located outside
of a public right=of=way with the same terms and conditions
provided for other commercial projects or uses in the public
right=of=way or on the authority structure.
(2) (a) Except as provided in subparagraph divisions (b)
and (c), an authority shall not impose any fee or require
any application or permit for the installation, placement,
operation, maintenance, or replacement of a micro wireless
facility that is suspended on operator=owned cables or lines
that are strung between existing utility poles in compliance
with national safety codes.
(b) An authority that has adopted a municipal or county code
which requires an application or permit for the installation,
placement, operation, maintenance, or replacement of a micro
wireless facility may continue the application or permit
requirement subsequent to the effective date of this Act.
(c) (i) An authority may require a single=use right=of=way
permit for the installation, placement, operation, maintenance,
or replacement of a micro wireless facility if any of the
following conditions apply:
(A) The work is contained within a highway lane or requires
the closure of a highway lane.
(B) The work disturbs the pavement, shoulder, ditch, or
operation of a highway.
(C) The work involves placement of a micro wireless facility
on a limited access right=of=way.
(D) The work requires any specific precautions to ensure the
safety of the traveling public or the protection or operation
of public infrastructure and such work was not authorized in,
or will not be conducted in, the same time, place, or manner
that is consistent with the approved terms of the existing
permit for the facility or structure upon which the micro
wireless facility is attached.
(ii) For purposes of this subparagraph division, "highway"
means the same as defined in section 325A.1.
b. An authority shall not require a person to apply for
or enter into an individual license, franchise, or other
agreement with the authority or any other entity for the siting
of a small wireless facility on a utility pole located in a
public right=of=way. However, an authority may, through the
conditions set forth in a building permit obtained pursuant to
this subsection, do any of the following:
(1) Establish nondiscriminatory, competitively neutral and
commercially reasonable rates, terms, and conditions for such
siting, which rates, terms, and conditions shall comply with
the federal pole attachment requirements provided in 47 U.S.C.
{224 and any regulations promulgated thereunder.
(2) Require compliance with the Iowa electrical safety
code, the national electrical safety code, applicable fire
safety codes, and any building code or similar code of general
applicability for the protection of the public health, safety,
or welfare that was adopted by an authority prior to the filing
of the application.
(3) Require that a small wireless facility reasonably match
the aesthetics of an existing utility pole or wireless support
structure that incorporates decorative elements.
(4) Require compliance with section 306.46, subsection 1,
and section 306.47.
(5) Require that after the construction of a small wireless
facility or new utility pole is completed in accordance
with all conditions under which the permit is granted, which
conditions shall be consistent with this section, the owner
of the small wireless facility or new utility pole, or the
owner's successor in interest, shall maintain the small
wireless facility or new utility pole at the expense of
the owner or successor and if the authority subsequently
undertakes any maintenance, public improvement project,
or reconstruction of authority property or equipment which
requires the modification, relocation, or reconstruction of
the small wireless facility or new utility pole, such work and
the costs thereof shall be the responsibility of the owner or
successor. If the project necessitating the modification,
relocation, or reconstruction of the small wireless facility
or new utility pole is for a private commercial purpose,
the authority may require the owner or successor to modify,
relocate, or reconstruct the small wireless facility or new
utility pole upon prepayment of the costs of such work by the
private commercial entity whose project facilitates the need
for such work. For purposes of this subparagraph, "new utility
pole" means a new utility pole installed by a wireless service
provider pursuant to this section solely for use as a wireless
support structure and that is owned by the wireless service
provider.
c. Beginning with applications filed on or after September
1, 2017, an authority shall accept an application for, process,
and issue a permit under this subsection as follows:
(1) An applicant shall not be required to provide more
information or pay a higher application fee, consulting fee,
or other fee associated with the processing or issuance of a
permit than the amount charged to a telecommunications service
provider that is not a wireless service provider. The total
amount of fees for processing or issuing a permit, including
any fees charged by third parties, shall not exceed five
hundred dollars for an application addressing no more than five
small wireless facilities, and an additional fifty dollars
for each small wireless facility addressed in an application
in excess of five small wireless facilities. An applicant
shall not be required to pay any additional fees or perform any
services relating to the acceptance, processing, or issuance
of a permit, nor provide any services unrelated to the siting
of the small wireless facility or of a new, replacement, or
modified utility pole on which a small wireless facility is
sited. For purposes of this subparagraph, engineering and
structural review are deemed to be related to the permitting
of a small wireless facility. The total amount of fees shall
be adjusted every five years to reflect any increases or
decreases in the consumer price index, rounded to the nearest
five dollars.
(2) An authority shall approve or deny a permit application
within ninety days following the submission of a completed
application. Except as provided herein, an application shall
be deemed approved if the authority fails to approve or deny
the application within ninety days following the submission
of a completed application. This period of time for the
processing of an application may be extended upon mutual
written agreement between the authority and the applicant.
An applicant may address up to twenty=five small wireless
facilities in a single application, provided, however, that a
single application may only address small wireless facilities
within a single two=mile radius consisting of substantially
similar equipment to be placed on substantially similar types
of wireless support structures or utility poles. In rendering
a decision on an application addressing more than one small
wireless facility, an authority may approve the application as
to certain individual small wireless facilities while denying
it as to others. An authority's denial of an individual small
wireless facility or subset of small wireless facilities within
an application is not a basis to deny the application as a
whole. If an authority receives applications for the approval
of more than seventy=five small wireless facilities within a
single seven=day period, whether from a single applicant or
from multiple applicants, the authority may notify an applicant
submitting any additional siting applications during that
seven=day period that the authority is invoking its right to
an automatic thirty=day extension for any additional siting
application submitted during that seven=day period.
(3) (a) An authority may only deny a completed application
if any of the following apply:
(i) The application fails to include reasonable information
required by the authority and in accordance with this
subsection.
(ii) The application does not comply with the Iowa
electrical safety code, the national electrical safety code,
applicable fire safety codes, or any building code or similar
code of general applicability for the protection of the public
health, safety, or welfare that was adopted by an authority
prior to the filing of the application.
(iii) The application would result in the authority being
noncompliant with the federal Americans With Disabilities Act.
(iv) (A) A licensed engineer selected by the applicant or
the authority certifies that siting the small wireless facility
as proposed would compromise the structural safety of, or
preclude the essential purpose of, the utility pole or wireless
support structure in the public right=of=way on which it is
proposed to be sited and any of the following conditions apply:
(I) The applicant fails to redesign the small wireless
facility in a manner determined necessary by the engineer to
make the existing utility pole or wireless support structure
structurally sound for the siting of the small wireless
facility.
(II) The applicant fails to modify the utility pole or
wireless support structure to make the structure structurally
sound for the siting of the small wireless facility.
(III) The applicant fails to replace the utility pole or
wireless support structure with a utility pole or wireless
support structure that is structurally sound for the siting of
the small wireless facility.
(IV) The applicant fails to propose an alternative location
for the siting of the small wireless facility.
(B) If an applicant chooses to modify or replace a utility
pole or wireless support structure to make the structure
structurally sound for the siting of a small wireless facility,
the applicant shall pay or advance to the authority the costs
of modifying or replacing the utility pole or wireless support
structure with a utility pole or wireless support structure
that would safely support the small wireless facility and
preserve the essential purpose of the utility pole or wireless
support structure.
(v) The application seeks approval of a new small wireless
facility, utility pole, or wireless support structure that
would impair, interfere with, or preclude the safe and
effective use of facilities already located in the public
right=of=way for pedestrian, vehicular, utility, or other
authority public right=of=way purposes.
(vi) The application seeks approval for the siting of
a small wireless facility outside the public right=of=way
that would impair, interfere with, or preclude the safe and
effective use of an authority structure or property for a
public purpose.
(vii) The application seeks approval for the siting of a
small wireless facility on a wireless support structure used
exclusively for emergency communications equipment.
(viii) The application seeks approval for the siting of a
small wireless facility on a utility pole that is the vertical
portion of a support structure for a traffic control signal
or device, and the authority determines that the utility pole
lacks sufficient space or load capacity for the proposed siting
or the small wireless facility cannot be sited on the utility
pole without impairing the public health, safety, or welfare.
(b) An authority denying an application shall document the
basis for the denial, including the specific code provisions
or standards on which the denial is based, and provide the
applicant with such documentation on or before the date the
application is denied.
(c) An applicant whose application is denied shall have
an opportunity to cure any deficiencies identified by the
authority as the basis for the denial and to submit a revised
application within thirty days following the date of denial
without paying an additional fee. The authority shall approve
or deny a revised application within thirty days following
submission. The authority shall not identify any deficiencies
in a second or subsequent denial that were not identified in
the original denial.
(4) An authority shall not limit the duration of a permit
issued for the siting of a small wireless facility in a public
right=of=way pursuant to this subsection, and shall not limit
the duration of a permit issued for the siting of a small
wireless facility on an authority structure located outside of
a public right=of=way to any period less than ten years, with
one automatic five=year renewal, provided, however, that the
owner of the small wireless facility may terminate the permit
upon providing ninety days' notice to the authority. The
construction of a small wireless facility permitted pursuant
to this subsection shall commence no later than two years
following the date that the permit is issued, or two years
after any appeals are exhausted.
(5) An authority shall not impose a moratorium on the
processing or issuance of permits under this subsection.
(6) An authority shall process and issue permits on a
nondiscriminatory basis. An authority shall receive an
application for, process, and issue a permit for the siting of
a small wireless facility in a manner substantially comparable
to the permitting of other applicants within the jurisdiction
of the authority, and may not impose discriminatory licensing
standards for persons siting small wireless facilities.
4. The annual recurring rate charged by an authority
for the siting of a small wireless facility on an authority
utility pole shall not exceed the rate computed by the
federal communications commission for telecommunications pole
attachments in 47 C.F.R. {1.1409(e)(2).
5. a. An authority shall authorize the siting of a small
wireless facility on an authority structure located outside
of a public right=of=way to the same extent the authority
authorizes access to such structures for other non=authority
communications equipment that involve external attachments,
and may authorize the siting even if the authority has not
previously permitted such access.
b. A siting authorized under this subsection shall be
subject to reasonable rates, terms, and conditions as provided
in one or more agreements between the authority and the
wireless service provider. Notwithstanding chapter 480A,
the annual recurring rate for such siting as charged by an
authority shall not exceed the lesser of the following:
(1) The amount charged for a similar commercial project or
use to occupy a similar area of space on similarly situated
property.
(2) The projected cost to the authority resulting from the
siting.
6. A party aggrieved by the final action of an authority,
either by its affirmative action on a permit, term or
condition, or rate under the provisions of this section or by
its inaction, may bring an action for review in any court of
competent jurisdiction, except that if the final action of the
authority was the denial of a conditional or special use permit
pursuant to this section, the party must first seek review
under section 335.13 or 414.10, as applicable.
7. This section only addresses an authority's approval of
zoning and building permits and the rates for the use of public
rights=of way and authority structures. This section shall not
modify the rights and obligations of a nonauthority owner of a
utility pole or a municipal utility that owns a utility pole,
under 47 C.F.R. {1.1401 et seq., and the Iowa electrical safety
code.
Sec. 4. NEW SECTION. 8C.7B Small wireless facilities ====
violation and removal.
1. A public utility that owns or controls a utility pole on
which a small wireless facility is sited in alleged violation
of this chapter or the Iowa electrical safety code shall
notify the owner of the small wireless facility of the alleged
violation, in writing or by any other method agreed upon by the
parties in writing. The notice shall include the following
information:
a. The address and location where the alleged violation
occurred.
b. A description of the alleged violation.
c. Suggested corrective action.
2. Upon the receipt of notice of an alleged violation, the
recipient of such notice shall respond to the public utility
within sixty days in writing or by any other method agreed upon
by the parties in writing. The response shall include the
following information:
a. A statement disclosing whether or not the recipient
of the notice is the owner of the small wireless facility at
issue.
b. A statement disclosing that the owner disputes that the
alleged violation has occurred, if applicable.
c. A plan for corrective action if the owner does not
dispute that the violation has occurred.
d. A statement disclosing whether the violation has been
corrected, if the owner does not dispute that the violation has
occurred.
3. The owner of a small wireless facility in alleged
violation of this chapter or the Iowa electrical safety
code shall correct the alleged violation within one hundred
eighty days after receiving notice of the violation unless,
for good cause shown, a delay for taking corrective action
is appropriate or if the parties otherwise agree in writing
to extend the time required to take corrective action. Good
cause for a delay in corrective action shall include but is
not limited to a dispute over whether the recipient of the
notice is the owner of the small wireless facility at issue, a
dispute over whether the alleged violation has occurred, or if
taking corrective action within the required time frame is not
possible due to circumstances which are beyond the control of
the owner of the small wireless facility. The public utility
and owner of the small wireless facility shall cooperate in
determining an efficient and cost=effective solution to correct
an alleged violation.
4. a. Notwithstanding subsections 1 through 3, in the event
of an emergency, an authority or public utility shall contact
the owner of the small wireless facility at issue and provide
the owner with a reasonable opportunity, given the nature of
the emergency, to alleviate such emergency or participate
with the authority or public utility to make any repairs
necessary to alleviate such emergency. If the owner of the
small wireless facility does not respond in a timely manner, as
determined by the authority or public utility given the nature
of the emergency, the authority or public utility may remove or
make alterations to the small wireless facility as necessary
to ensure public safety.
b. For purposes of this subsection, "emergency" means
exigent and extraordinary circumstances under which the
physical or electrical failure of a utility pole, wireless
support structure, or small wireless facility threatens
imminent physical harm to persons or there is a substantial
likelihood of imminent and significant harm to property.
5. If the parties cannot resolve a dispute after following
the procedures provided in this section, any party may file an
action concerning an alleged violation under this section in
the district court for the county in which the violation is
alleged to have occurred, for any appropriate remedy, including
the removal of a small wireless facility deemed by the court to
be in violation of this chapter or the Iowa electrical safety
code. However, this section shall not preclude a party from
bringing an action pursuant to the Iowa electrical safety code
or 47 C.F.R. {1.1401 et seq., or the application of a dispute
resolution process set forth in an applicable pole attachment
agreement between the parties.
6. Nothing in this section shall be deemed to limit the
ability of a public utility and the owner of a small wireless
facility to voluntarily enter into a pole attachment agreement
that establishes different terms for the siting of a small
wireless facility or the resolution of a dispute regarding such
a facility.
Sec. 5. NEW SECTION. 8C.7C Height limitations.
1. A new, replacement, or modified utility pole or wireless
support structure installed in a public right=of=way located
within the city limits of an incorporated city for the purpose
of siting a wireless facility, including a small wireless
facility under the provisions of this chapter shall not exceed
the greater of ten feet in height above the tallest utility
pole existing on or before July 1, 2017, located within five
hundred feet of the new, replacement, or modified utility pole
in the same public right=of=way, or forty feet in height above
ground level. Except as provided in section 8C.7A, subsection
2, paragraph "c", an authority shall not require a special or
conditional use permit for the installation of a utility pole
or wireless support structure that complies with the height
limitations of this subsection.
2. Notwithstanding subsection 1, a person may construct,
modify, or maintain a utility pole or wireless support
structure along, across, and under a public right=of=way
in excess of the size limits provided in subsection 1, to
the extent permitted by the authority's applicable zoning
regulations.
3. A person shall comply with nondiscriminatory
undergrounding requirements that prohibit wireless service
providers from installing structures in a public right=of=way
without prior zoning approval in areas designated as an
underground district pursuant to a resolution or ordinance
adopted by an authority prior to the date the application is
filed or in areas zoned and used for single=family residential
use, provided that such requirements shall not prohibit the
replacement of existing structures.
4. Nothing in this section shall be deemed to limit the
ability of a public utility to install a utility pole for the
purposes of electric utility transmission or distribution
within a public right=of=way subject to an authority's planning
and zoning regulations.
Sec. 6. Section 8C.9, Code 2017, is amended to read as
follows:
8C.9 Repeal.
This chapter is repealed July 1, 2020 2022.
JACK WHITVER
LINDA UPMEYER
W. CHARLES SMITH
TERRY E. BRANSTA
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