§ 36-66c-7 — Requirements of authority following receipt of application; notification of time lapse; consolidated application; limitation on installation locations and permits; reconditioning work; time restrictions; imminent risk to public safety; repair of damage; delivery of notice or decision

Georgia § 36-66c-7

• Jurisdiction: Georgia
• Title: 36

Text

(a) The requirements of this Code section govern an authority's review of applications for uses that are subject to administrative review as described in subsection (a) of Code Section 36-66C-6 . (b) Within 20 days of receipt of a written application, the authority shall: (1) Notify the applicant in writing of the commencement and completion dates of any widening, repair, reconstruction, or relocation of the applicable right of way that is scheduled to commence, or is anticipated in good faith to commence, within 24 months after the application is filed; (2) Notify the applicant, based on the authority's good faith preliminary review of the information provided in the application, of any aspect of the application that appears to be grounds for the authority's denial of the application pursuant to subsection (j) of this Code section; and (3) Determine whether the application is complete and inform the applicant of its determination in writing. If the authority determines that an application is incomplete, it shall specifically identify to the applicant in writing all missing information within such 20 day period; otherwise the application is deemed complete. If the authority identifies missing information to the applicant as provided in this paragraph, the applicant may submit such missing information to the authority within 20 days of receipt of notification in writing from the authority that the application is incomplete without paying any additional application fee, and any subsequent review of the application by the authority for completeness shall be limited to the previously identified missing information. If the authority determines that an application remains incomplete, or if the authority determines that the applicant has made material changes to the application other than to address the missing information identified by the authority, the authority shall notify the applicant of such determination in writing within ten days of receipt of the resubmission of the written application, and absent an agreement to the contrary between the authority and the applicant that is confirmed by email or other writing, such notice shall constitute a denial of the application. If the authority does not provide such written notification to the applicant within this ten-day period, the application shall be deemed complete. (c) The authority shall make its final decision to approve or deny the application within 30 days of the written determination that the application is complete or when the application is deemed complete under paragraph (3) of subsection (b) of this Code section, whichever is earlier, for a collocation, and within 70 days of the written determination that the application is complete or when the application is deemed complete under paragraph (3) of subsection (b) of this Code section, whichever is earlier, for the installation, modification, or replacement of a pole or decorative pole. (d) A decision to deny an application pursuant to this Code section shall be in writing, shall identify all reasons for the denial, and shall identify the provisions of applicable codes or other standards applicable pursuant to this chapter on which the denial was based. The decision to deny shall be sent to the applicant contemporaneously. The review period shall run until the written decision is delivered to the applicant in accordance with subsection (s) of this Code section. (e) If the authority fails to act on an application within the review period provided for in subsection (d) of this Code section, the applicant may provide the authority written notice that the time period for acting has lapsed, and the authority shall then have 20 days after receipt of such notice to render its written decision. The application shall be deemed approved by passage of time and operation of law if the authority does not render its written decision within such 20 days. (f) An applicant may, at the applicant's discretion and subject to the consolidated application requirements and processes under Code Section 36-66C-13 , file a consolidated application. (g) Notwithstanding any other provision of this chapter and to the extent that an application constitutes an eligible facilities request, the authority shall not deny the application and shall approve the application within 60 days according to the procedures established under 47 C.F.R. 1.40001(c) . (h) Small wireless facilities and new, modified, or replacement poles to be used for collocation of small wireless facilities may be placed in the right of way as a permitted use in accordance with Code Section 36-66C-6 , subject to applicable codes and the following requirements: (1) Each such new, modified, or replacement pole installed in the right of way in a historic district and in an area zoned primarily for residential use shall not exceed 50 feet above ground level; (2) Each such new, modified, or replacement pole installed in the right of way not in historic district or in an area zoned primarily for residential use shall not exceed the greater of: (A) Fifty feet above ground level; or (B) Ten feet greater in height above ground level than the tallest existing pole in the same authority right of way in place as of January 1, 2019, and located within 500 feet of the new proposed pole; and (3) New small wireless facilities in the right of way shall not exceed: (A) For a collocation on an existing pole or support structure, more than ten feet above the existing pole or support structure; or (B) For a collocation on a new, modified, or replacement pole under paragraph (1) or (2) of this subsection, the height limit provided in such paragraphs. (i) (1) A wireless provider shall comply with reasonable and nondiscriminatory requirements that prohibit communications service providers and electric service providers from installing poles in a right of way in an area designated solely for underground or buried facilities of communications service providers and electric service providers where the authority: (A) Has required all such facilities other than light poles and attachments to be placed underground and all such undergrounding has been completed prior to the submission of the application, or, for rights of way where such facilities other than light poles and attachments have not been deployed, has in effect a reasonable and nondiscriminatory zoning or development ordinance or regulation that requires such facilities other than light poles and attachments to be placed underground; (B) Does not prohibit the replacement of light poles or the collocation of small wireless facilities in the designated area; and (C) Permits wireless providers to seek a waiver of the underground requirements for the placement of a new pole to support small wireless facilities, which waivers shall be addressed in a nondiscriminatory manner and consistent with applicable law. (2) An authority that adopts undergrounding requirements shall: (A) Allow a wireless provider to maintain in place any previously collocated small wireless facilities subject to any applicable pole attachment agreement; or (B) Either allow the wireless provider to replace the pole associated with previously collocated small wireless facilities at the same location or propose an alternate location within 50 feet of the prior location, which the wireless provider shall use unless such alternate location imposes technical limits or significant additional costs. (j) An authority shall approve an application for permitted uses described in subsection (a) of Code Section 36-66C-6 unless the requested collocation of a small wireless facility or the requested installation, modification, or replacement of a pole or decorative pole: (1) Interferes with the operation of traffic control equipment; (2) Interferes with sight lines or clear zones for transportation or pedestrians; (3) Fails to comply with the federal Americans with Disabilities Act, 42 U.S.C. Section 12101 , et seq., or similar laws of general applicability regarding pedestrian access or movement; (4) Requests that ground-mounted small wireless facility equipment be located more than 7.5 feet in radial circumference from the base of the pole, decorative pole, or support structure to which the small wireless facility antenna would be attached, provided that the authority shall not deny the application if a greater distance from the base of the pole, decorative pole, or support structure is necessary to avoid interfering with sight lines or clear zones for transportation or pedestrians or to otherwise protect public safety; (5) Fails to comply with applicable codes; (6) Fails to comply with the maximum limitations set forth in subsection (h) of this Code section or the requirements of subsection (i) of this Code section; (7) With respect to an application to install a pole or decorative pole, interferes with the widening, repair, reconstruction, or relocation of a public road or highway by an authority or the Department of Transportation that has been advertised for bid and scheduled for completion within six months after the application is filed; (8) With respect to an application to install a pole or decorative pole, interferes with a public works construction project governed by Chapter 91 of Title 36 and scheduled for completion within six months after the application is filed; (9) Fails to comply with Code Section 36-66C-10 , 36-66C-11 , or 36-66C-12 ; (10) Fails to comply with laws of general applicability that address pedestrian and vehicular traffic and safety requirements; or (11) Fails to comply with laws of general applicability that address the occupancy or management of the right of way and that are not otherwise inconsistent with this chapter. (k) (1) A permit from the authority authorizes an applicant to undertake only certain activities in accordance with this chapter and shall not create a property right or grant authorization or license to the applicant to impinge upon the rights of other persons that may already have an interest in the right of way. (2) Collocation, installation, modification, or replacement for which a permit is issued under this chapter shall be completed within six months after issuance, provided that an extension shall be granted for up to an additional six months upon written request made to the authority before the end of the initial six-month period if a delay results from circumstances beyond the reasonable control of the applicant. Issuance of a permit authorizes the applicant to: (A) Undertake the collocation, installation, modification, or replacement approved by the permit; and (B) Operate and maintain the small wireless facilities and any associated pole covered by the permit for a period of not less than ten years, which shall be renewed for equivalent durations so long as the applicant is in compliance with the criteria set forth in subsection (j) of this Code section, subject to the relocation requirements described in subsection (l) of this Code section and the applicant's right to terminate at any time. (l) If, in the reasonable exercise of police powers, an authority requires widening, repair, reconstruction, or relocation of a public road or highway, or relocation of poles, support structures, or small wireless facilities is required as a result of a public project, a wireless provider shall relocate poles and support structures that such wireless provider has installed in the right of way for the collocation of small wireless facilities pursuant to this chapter at no cost to the authority in the event that such poles and support structures are found by the authority to unreasonably interfere with the widening, repair, reconstruction, or relocation project or the public project. If widening, repair, reconstruction, or relocation is required as a condition or result of a project by a person other than an authority, such person shall bear the cost of relocating such poles or support structures and any communications facilities on such poles or support structures. The wireless provider shall relocate the poles or support structures: (1) By the date designated in a written notice from the authority that contains a good faith estimate by the authority of the date by which the authority intends to commence work, whenever the authority has determined that such removal, relocation, change, or alteration is reasonably necessary for the construction, repair, maintenance, or installation of any authority improvement or operations in or upon the right of way so long as the same time frames are applied to all utilities in the right of way; provided, however, that the date designated for relocation shall be at least 45 days after the authority provides the written notice to the wireless provider; or (2) Within the time frame that the wireless provider estimates in good faith is reasonably needed to complete the relocation, so long as the wireless provider provides the authority written notice of its good faith estimate within 30 days following receipt of the written notice provided by the authority pursuant to paragraph (1) of this subsection and explains in detail why such wireless provider cannot reasonably complete the relocation by the date designated in the authority's written notice. (m) (1) The wireless provider shall reasonably cooperate with the authority to carry out reconditioning work activities in a manner that minimizes interference with the wireless provider's approved use of the facility. (2) The authority shall use reasonable efforts to provide the wireless provider with written notice of reconditioning work at least 120 days before such reconditioning work begins. Upon receiving such notice, it shall be the wireless provider's sole responsibility to provide adequate measures to cover, remove, or otherwise protect the wireless provider's communications facility from the consequences of the reconditioning work, including but not limited to paint and debris fallout. The authority reserves the right to require the wireless provider to remove all of the wireless provider's communications facilities from the authority pole and surrounding premises during reconditioning work, provided that the requirement to remove such is contained in the written notice required by this Code section. All costs associated with the protection measures, including temporary removal, shall be the sole responsibility of the wireless provider. If the authority fails in good faith to give notice within at least 120 days, it shall not affect the authority's rights under this subsection. In all cases, as much notice as possible shall be provided, but less than 30 days' notice shall be prohibited. The authority shall provide the wireless provider with a date by which its equipment must be protected or removed. (3) The wireless provider may request a modification of the authority procedures for carrying out reconditioning work in order to reduce interference with the wireless provider's operation of its communications facility. If the authority agrees to the modification, the wireless provider shall be responsible for all reasonable incremental costs related to the modification. (4) The authority shall provide the wireless provider with at least 120 days written notice of any replacement work before the authority may remove the wireless provider's communications facilities. The authority shall also promptly notify the wireless provider when the authority poles have been replaced and the wireless provider can reinstall its equipment. During the replacement work, the wireless provider may maintain a temporary communications facility on the property, or after approval by an authority on any land owned or controlled by an authority in the vicinity of the property. If the property will not accommodate the wireless provider's temporary communications facility or if the parties cannot agree on a temporary location, the wireless provider, at its sole discretion, shall have the right to suspend the applicable permit until the replacement pole is installed, upon 30 days' written notice to the authority. (n) For any collocation on authority poles in the right of way, the authority shall provide a good faith estimate for any make-ready work necessary to enable the authority pole to support the proposed facility, including replacement of the pole if necessary, within 60 days after receipt of a completed application requesting attachment to the authority pole. Alternatively, the authority may require the wireless provider to perform the make-ready work and notify the wireless provider of such within the 60 day period. If the wireless provider or its contractor performs the make-ready work, the wireless provider shall indemnify the authority for any negligence by the wireless provider or its contractor in the performance of such make-ready work, the work shall not be deemed to violate Chapter 91 of this title, and the work shall otherwise comply with applicable law. If the authority opts to perform the make-ready work itself, the authority shall complete the work, including any pole replacement, within 90 days of receipt of written acceptance of the good faith estimate by the wireless provider. Such acceptance shall be signified by payment via check or other commercially reasonable and customary means specified by the authority. The authority may require that the replacement authority pole have the same functionality as the pole being replaced. If the authority pole is replaced, the authority shall operate authority fixtures on the pole, and, absent an agreement to the contrary between the authority and the wireless provider that is confirmed in writing, the authority shall take ownership of the new pole. (o) If the wireless provider fails to relocate a support structure or pole or fails to provide a written good faith estimate of the time needed to relocate a support structure or pole within the time period prescribed in subsection (l) of this Code section, the authority shall have the right and privilege, ten days or more after the wireless provider receives written notice from the authority, to cut power to or move any support structure or pole located within the right of way, as the authority may determine to be necessary, appropriate, or useful in order to commence work on the public project. (p) (1) If a wireless provider decides to abandon any small wireless facility, support structure, or pole, it shall notify the authority in writing as soon as practicable, but no later than 30 days prior to the abandonment. Following receipt of such notice, the authority shall instruct the wireless provider in writing to remove all or any portion of the small wireless facility, support structure, or pole if the authority determines that such removal will be in the best interest of public safety and welfare. If the wireless provider fails to remove the abandoned small wireless facility, support structure, or pole within 90 days after such notice, the authority may do so and recover the actual and reasonable expenses of doing so from the wireless provider, its successors, or its assigns, plus a penalty not to exceed $500.00. The authority may suspend the ability of the wireless provider, its successors, or its assigns, as applicable, to receive any new permits from the authority until the wireless provider, its successors, or its assigns, as applicable, have paid the amount assessed for such removal costs and the penalty assessed, if any; provided, however, that the authority shall not suspend such ability of any applicant that has deposited the amount in controversy in escrow pending an adjudication of the merits of the dispute by a court of competent jurisdiction. Nothing in this chapter precludes an authority from adopting reasonable and nondiscriminatory requirements that are not inconsistent with this subsection with respect to the removal of abandoned small wireless facilities, support structures, or poles. (2) A small wireless facility that is not operated or a support structure or pole that is not utilized for a continuous period of 12 months shall be considered abandoned, and the owner of such small wireless facility, support structure, or pole shall remove such within 90 days after receipt of written notice from the authority notifying such owner of such small wireless facility, support structure, or pole of the abandonment. The authority shall send the notice by certified or registered mail, return receipt requested, to such owner at the last known address of such owner of the small wireless facility, support structure, or pole. If the owner does not provide written notice that the small wireless facility has not been out of operation or the support structure or pole has in fact been utilized for a continuous period of 12 months or does not remove such small wireless facility, support structure, or pole within the 90 day period, the authority may remove or cause the removal of such small wireless facility, support structure, or pole pursuant to the terms of its support structure or pole attachment agreement for authority poles or through actions provided for abatement of nuisances or by other law for removal and cost recovery. (q) If the authority determines that a wireless provider's activity in a right of way pursuant to this chapter creates an imminent risk to public safety, the authority may provide written notice to the wireless provider and demand that the wireless provider address such risk. If the wireless provider fails to reasonably address the risk within 24 hours of the written notice, the authority may take or cause to be taken action to reasonably address such risk and charge the wireless provider the reasonable documented cost of such actions. (r) The authority may require a wireless provider to repair all damage to a right of way directly caused by the activities of the wireless provider, while occupying, installing, repairing, or maintaining small wireless facilities, poles, or support structures, in such right of way and to restore the right of way to its condition before the damage occurred pursuant to the competitively neutral and reasonable requirements and specifications of the authority. If the wireless provider fails to return the right of way, to the extent practicable in the reasonable judgment of the authority, to its condition prior to the damage within 90 days of receipt of written notice from the authority, the authority may, at the sole discretion of the authority, restore the right of way to such condition and charge the wireless provider its reasonable, documented cost of doing so, plus a penalty not to exceed $500.00. The authority may suspend the ability of the wireless provider to receive any new permits from the authority until the wireless provider has paid the amount assessed for such restoration costs and the penalty assessed, if any; provided, however, that the authority shall not suspend such ability of any applicant that has deposited the amount in controversy in escrow pending an adjudication of the merits of the dispute by a court of competent jurisdiction. (s) An authority shall send any notice or decision required by this Code section by registered or certified mail, statutory overnight delivery, hand delivery, or email transmission. The decision or notice shall be deemed delivered upon email transmission, deposit into overnight mail or regular mail receptacle with adequate postage paid, or actual receipt if delivered by hand.

Legislative History

Added by 2019 Ga. Laws 53,§ 1, eff. 10/1/2019.