Chapter 31
PUBLIC RIGHT-OF-WAY1

Art. I.    Right-of-Way, §§ 31-131-32

Div. 1.    Generally, §§ 31-131-11

Div. 2.    Construction, §§ 31-1231-15

Div. 3.    Safety, §§ 31-1631-32

Art. II.    Curbs and Sidewalks, §§ 31-3331-65

Div. 1.    Generally, §§ 31-3331-45

Div. 2.    Construction, Reconstruction and Repair, §§ 31-4631-65

Art. III.    Encroachments, §§ 31-6631-84

Art. IV.    Street Names and House Numbering, §§ 31-8531-99

Art. V.    Vacation of Public Rights-of-Way, Easements, and Plats, §§ 31-10031-117

Art. VI.    Right-of-Way Regulations for Wireless Communication Facilities, §§ 31-12531-146

ARTICLE I. RIGHT-OF-WAY

DIVISION 1. GENERALLY

Sec. 31-1. Short title.

This chapter shall be referred to as the “Right-of-Way Ordinance of the City of Lewiston.” (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-2. Definitions.

City means the city of Lewiston, Idaho.

City standards means the most current city standard drawings and specifications adopted by the Lewiston city council.

Clear vision area means the triangular area within the intersection of the linear extension of the lateral curb lines, or edges, if no curb exists, of two (2) roadways, or a roadway and a railroad and extending back from the point of the intersection along each roadway or railroad a distance of forty (40) feet; except that where the angle of intersection is less than thirty (30) degrees, a greater distance may be required as determined by the director.

Curb means curb and gutter combination and/or curb sections, including paving of those areas between the curb and existing street pavement or to a distance to ensure sufficient cross drainage, per the city’s standard drawings.

Department of public works, hereinafter referred to as “department,” means the department of public works of the city.

Director means the director of the department of public works or his or her designee.

Emergency means an unforeseen circumstance that calls for immediate corrective action, which must be performed outside of the department’s normal working hours.

Encroachment means a structure or thing that exists permanently, semi-permanently, or temporarily within the public right-of-way.

Engineering means the engineering division of the department of public works of the city.

Major remodeling occurs when the value of additions, alterations or repairs, within any 12-month period, exceeds fifty (50) percent of the value of the existing building or structure constructed after 1950; or for buildings or structures constructed in 1950 or earlier, major remodeling occurs when the value of additions, alterations, or repairs, within any 12-month period, exceeds one hundred (100) percent of the value of the building or structure.

Manufactured home means a manufactured home as defined by Chapter 23 of this code.

New construction means the construction of any building or structure, as those terms are defined in the International Building Code, as adopted by the city, including the installation of any manufactured home or prefabricated structures for which a permit is issued after the effective date of the ordinance codified in this section.

Person means an individual, partnership, corporation, association, business venture, public or private utility, or special service district.

Right-of-way means any land dedicated and open to the public and under the jurisdiction of the city.

Routine maintenance services means the raising of utility fixtures, including necessary excavation, after city street improvements, the placement of utility poles, and any other maintenance or modification of existing utility facilities which does not require excavation of city street pavement, curb, gutter or sidewalk.

Sidewalk means that portion of a street between the curb lines, or the lateral lines of a roadway, and adjacent property lines intended for use by pedestrians.

Street means a road, thoroughfare, alley, highway, or bridge under the jurisdiction of the city.

Structure means that which is built or constructed, an edifice or building of any kind or any piece of work artificially built up or composed of parts joined together in some definite manner.

Substantial public improvement means an improvement that will become part of an existing or anticipated street and/or building improvement, which promotes the health, safety, and welfare of the residents of the city and is constructed with city funds.

Temporary use of right-of-way is any use proposed for the right-of-way for a duration of ninety (90) days or less.

Travel lanes means the portion of a street for the movement of vehicles, exclusive of the shoulders, berms, sidewalks, and parking areas, as illustrated on applicable city standard drawings.

Travelway means the area between the curbs or edges of asphalt that provides the surface for travelway. (Ord. No. 3726, § 1, 10-22-84; Ord. No. 3773, § 3, 4-29-85; Ord. No. 3872, § 1, 8-3-87; Ord. No. 3992, § 1, 1-28-91; Ord. No. 4025, § 1, 12-30-91; Ord. No. 4394, § 1, 4-11-05; Ord. No. 4384, § 1, 11-28-05; Ord. No. 4761, § 1, 9-23-19)

Sec. 31-3. Right-of-way work – Permit required.

No person shall dig up, break, excavate, obstruct, tunnel, undermine, or disturb any street or other public property, place any obstruction thereon or fill in, place, leave, or deposit upon the same any earth, rubbish, garbage, rock or other material that may obstruct, disturb or interfere with the free use thereof without first obtaining a permit therefor from the department. Construction of subdivision improvements performed under a subdivision improvement agreement and which are approved by the department are exempt from the above requirement and do not require a permit. Violations of this section within the travel lanes of the roadway shall constitute a public offense and are punishable as set forth in section 1-7 of this code. In addition to the penalty provision set forth in section 1-7 of this code, the public works director is authorized to immediately abate violations of this section by closing the traffic work zone until such time as the traffic zone is in compliance with this section. No fee permit shall be required for public utilities and districts, including their contractors, which are performing routine maintenance services within public rights-of-way. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 3992, § 2, 1-28-91; Ord. No. 4025, § 2, 12-30-91; Ord. No. 4384, § 2, 11-28-05)

Sec. 31-4. Same – Application.

An applicant for a right-of-way work permit hereunder shall file with the department an application showing:

(1) Name and address of the party doing the work;

(2) Location of the work area;

(3) Scope of work or use;

(4) Attached plans showing details of the proposed alteration or work;

(5) Estimated cost of the alteration;

(6) Such other information as the department of public works shall find reasonably necessary for the determination of whether a permit should issue hereunder;

(7) Plans shall be required by the department of public works. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 3992, § 3, 1-28-91)

Sec. 31-5. Same – Conditions for issuance.

(a) The director may issue a permit hereunder when it is determined:

(1) That the work will be done according to the standards of the city.

(2) That the work will not (a) unreasonably interfere with vehicular and pedestrian traffic, (b) adversely affect or demand more than four (4) parking spaces, (c) [interfere with] ingress or egress to and from the adjacent properties.

(3) That the work will not in the opinion of the director be overly deleterious to the surface or foundation of the existing improvements. Where determined appropriate, the director may require the permittee to bore, or utilize other means which will not disturb the existing surface improvements. The applicant shall have the right of appeal of such determination to the city council.

(4) That the proper required bonds are in order and in effect for the duration of the guarantee period.

(5) In cases of emergencies the work may be performed without a permit by a contractor or agency properly bonded and insured with the city; however, a permit shall be taken out and [the work] inspected on the next working day.

(6) When applicant is owner of property adjacent to sidewalk and right-of-way work permit is for sidewalk repair, there shall be no charge for the permit.

(b) Whenever any work for which a permit is required by this chapter has been commenced without first obtaining said permit, an investigation shall be made before a permit may be issued for such work. An investigation fee in addition to the permit fee shall be collected whether or not a permit is then or subsequently issued. The investigation fee shall be in an amount equal to the permit fee required by this section. The payment of such investigation fee shall not exempt any person from compliance with all other provisions of this chapter or any other penalty as may be presented. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 3992, § 4, 1-28-91)

Sec. 31-6. Same – Fees.

Before granting the permit, the director shall require the permittee to pay a fee in accordance with the fee schedule adopted by resolution of the city council. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 3818, § 1, 5-5-86; Ord. No. 3992, § 5, 1-28-91; Ord. No. 4506, § 1, 5-12-08; Ord. No. 4761, § 2, 9-23-19)

Sec. 31-7. Insurance required.

(a) The permittee obtaining a right-of-way work permit shall be required to provide and maintain proof of insurance. Proof shall be in the form of a certificate approved by the city. Alternate forms of insurance approved by the city will be acceptable if they meet the minimum required insurance limits. The certificate shall contain a provision that the insurance shown on the certificate will not be cancelled or materially altered without at least thirty (30) days’ prior written notice to the city.

(b) The insurance required shall contain the following coverages: Comprehensive general liability including blanket contractual, broad form property damage XCU coverages, and completed operations. Minimum limits shall be three hundred thousand dollars ($300,000.00) per occurrence for bodily injury and one hundred thousand dollars ($100,000.00) per occurrence for property damage or three hundred thousand dollars ($300,000.00) combined single limits for both bodily injury and property damage. Comprehensive automobile liability shall also be carried by the permittee which will include owned, nonowned and hired coverages. Limits shall be one hundred thousand dollars ($100,000.00) per person, three hundred thousand dollars ($300,000.00) per occurrence for bodily injury and one hundred thousand dollars ($100,000.00) for property damage or three hundred thousand dollars ($300,000.00) combined single limit. Workman’s compensation and employer’s liability shall also be carried with the employer’s limit of liability no less than one hundred thousand dollars ($100,000.00). The city shall be named as additional insured under all policies. The coverages shall be written with a company(ies) that is licensed and in good standing with the Idaho State Insurance Department and acceptable to the director of public works. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-8. Bonds required.

The following bonds shall accompany an application for a permit hereunder:

(1) Construction and maintenance. The director shall require of contractors a maintenance and construction bond on a yearly basis to be filed with the city for five thousand dollars ($5,000.00) and conditioned that such works done during that year shall be done in accordance with the city’s standards and requirements of the right-of-way work permit. Alternate forms of surety must be approved by the city prior to issuance of a right-of-way work permit. Such work shall be guaranteed for a period of two (2) years. In cases where the estimated cost of a particular project shall exceed five thousand dollars ($5,000.00), the director shall require a construction maintenance bond to be filed with the application for a permit hereunder in an amount equal to one hundred ten (110) percent of the estimated cost and conditioned that such work shall be done in accordance with the city’s standard specifications and the requirements of the right-of-way work permit. Such work shall be guaranteed for a period of two (2) years. In any case where a permittee hereunder shall be in default or shall fail to comply with the requirements of the city, the director shall order the completion of the work by the city and shall collect the costs from the permittee as permitted by law.

(2) When permit applicant is owner of property adjacent to a sidewalk and right-of-way work permit application is for sidewalk repair, no bond shall be required. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 3992 § 6, 1-28-91)

Sec. 31-9. Order from director to complete right-of-way permit work; effect of failure to complete work.

(a) Order from director. If a permittee fails to complete the work set forth in a right-of-way permit or such work is not completed in accordance with the terms of such permit or the provisions of this chapter, then the director may order such work to be completed or corrected by a certain date. Service of such order shall be accomplished in accordance with section 31-10 of this code, and a copy of such order shall be sent to the surety, if any. Service of the order upon the permittee shall suffice for purposes of providing notice, regardless of when the surety receives a copy of the order.

(b) Effect of failure to complete work. If the permittee does not complete or correct the work within the time approved by the director and no timely appeal of the order is filed, then the department may complete or correct the work identified in the director’s order. The department may contract with a private contractor to complete or correct such work. Money from the department’s street fund and/or the city’s general fund shall be used to pay for the work.

Within forty-five (45) days of completion or correction of the work, the city shall provide the permittee an itemized statement of actual costs of the department to complete or correct the work and the administration costs incurred in completing such work to satisfy the requirements of the right-of-way permit. The permittee shall pay such amount in full to the city within thirty (30) days or such longer period of time as agreed to by the city.

If the permittee does not timely pay such amount in full, then the city may assess the costs of the department to complete or correct the work, including administration costs, in accordance with Idaho Code, Section 50-1008, if applicable. In all other instances, and in addition to the right of a special assessment, the permittee’s surety bond may be used to reimburse such costs to the city. (Ord. No. 4761, § 3, 9-23-19)

Sec. 31-10. Appeals.

(a) Applicability. This section shall apply to all written orders and decisions of the department or director made pursuant to this chapter.

(b) Service of order or decision. Service of the department or director’s written order or decision may be accomplished by hand delivery or by mail. If such order or decision is hand delivered, it shall be deemed received immediately. If such order or decision is served by mail, it shall be deemed received seventy-two (72) hours after depositing the same in the U.S. mail, first class, certified, or registered; postage prepaid; and addressed to the recipient’s last known post office address.

(c) Notice of appeal. A person aggrieved by a written order or decision of the department or director pursuant to this chapter may appeal such written order or decision to the city manager. Written notice of the appeal shall be filed with the appeal fee, set by resolution of the city council, paid to the city clerk within fifteen (15) calendar days from the date of the receipt of the written order or decision. The notice of appeal shall specify the grounds for appeal. If an appeal is not filed within fifteen (15) calendar days of receipt of the department or director’s written order or decision, then the order or decision of the department or director shall be final.

(d) Appeal hearing. The city manager shall hold a hearing on the appeal within ten (10) calendar days of receipt of the notice of appeal. The appellant shall have the right to be represented by legal counsel at the hearing and rebut any evidence that is submitted. The formal rules of evidence shall not apply. The city manager’s review of the department or director’s order or decision shall be de novo. The city manager may affirm, reverse, or modify the order or decision of the department or director. The city manager shall issue a written decision within seven (7) calendar days after the hearing, and such decision shall be final.

(e) Automatic stay. A timely filed appeal shall stay enforcement of the department or director’s written order or decision until the appeal is heard and a final decision is rendered. (Ord. No. 4761, § 4, 9-23-19)

Sec. 31-11. Reserved.

DIVISION 2. CONSTRUCTION

Sec. 31-12. Right-of-way standards.

All construction work within the public right-of-way shall be accomplished in accordance with the city standards. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-13. Supervision of work by the department of public works.

(a) The permittee shall notify the department at least twenty-four (24) hours in advance of any work being pursued under a right-of-way work permit. The department shall be provided access to all parts of the work, and shall be furnished with such information and assistance by the permittee as is required to make a complete and detailed inspection. The department may direct the per- mittee to remove or uncover portions of the finished work which have not been inspected due to improper notification without the costs being incurred by the city regardless of the test results. After examination, the permittee shall restore said portions of the work to city standards.

(b) Upon the completion of all work the permittee shall advise the department that the work is complete and available for final inspection; upon receipt of this notification the department shall cause the work to be inspected. If the inspection reveals the work to have been performed in a satisfactory fashion the department shall so advise the permittee.

(c) In the event the work has not been completed in a satisfactory fashion, the department shall advise the permittee of the nature and extent of the deficiencies. Unacceptable work shall be removed and replaced to an acceptable condition at the permittee’s expense.

(d) Unacceptable work shall be defined as those repairs which:

(1) Deviate vertically more than one-quarter (1/4) inch per linear foot from the undisturbed surface abutting the repaired area, or

(2) Have cracked or no longer provide a waterproof surface, or

(3) Deteriorate to a condition where a friction course is not being provided.

(e) When the corrective work has been completed the permittee shall so advise the department. The department shall then cause the work to be reinspected and determine if the work is in accordance with the city standards and acceptable. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 3992, § 8, 1-28-91)

Sec. 31-14. Reserved.

Editor’s note – Ord. No. 4761, § 5, adopted Sept. 23, 2019, repealed § 31-14, pertaining to city notification and authorization to construct, reconstruct, and/or repair improvements when owner or permittee fails to do so; notice of order, derived from Ord. No. 3726, § 2 and Ord. No. 3992, § 9.

Sec. 31-15. Cost of relocating existing public utilities.

The cost of relocating existing public utilities in order to conform to the requirements of this chapter shall be borne by the developer or permittee requiring the relocation unless the improvement is a substantial public improvement. If a substantial public improvement as provided for in section 31-2 is proposed, the individual public utility that owns the facilities to be relocated shall be responsible for the cost of such relocation. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 3992, § 10, 1-28-91; Ord. No. 4025, § 3, 12-30-91)

DIVISION 3. SAFETY

Sec. 31-16. Department of public works to be notified.

Any person excavating, obstructing, or otherwise disturbing any right-of-way, shall notify the department of public works of the city at least twenty-four (24) hours prior to proceeding with any such work. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-17. Barricades and warnings required.

(a) Any person digging, excavating, disturbing, obstructing or undermining any right-of-way pursuant to a right-of-way work permit granted under the provisions of this chapter shall place proper barricades and warning signs to prevent injury to persons and property. All barricades, warning signs, traffic-control devices, and methods shall be in accordance with Part 6, “Traffic Control of Street and Highway Construction and Maintenance Operation” of the “Manual on Uniform Traffic Control Devices.”

(b) If the permittee fails to place and maintain proper traffic-control devices, the city may take action to correct the deficiencies or revoke the permittee’s right to continue work under the right-of-way work permit. Violations of this section within the travel lanes of the roadway shall constitute a public offense and are punishable as set forth in section 1-7 of this code. In addition to the penalty provision set forth in section 1-7 of this code, the public works director is authorized to immediately abate violations of this section by closing the traffic work zone until such time as the traffic zone is in compliance with this section. In the event costs are associated with correcting the problem, such costs shall be billed against the permittee. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 4384, § 3, 11-28-05)

Sec. 31-18. Department of public works may obstruct dangerous right-of-way.

The department may place a barrier, barricade or fence off any portion of any right-of-way which, by reason of any defect, obstruction or special condition, may cause a dangerous condition to exist for the passage of persons or vehicles. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-19. Removal of barricades.

No person shall knowingly and willfully remove, injure or destroy any barricade, fence or other traffic-control device lawfully directed, erected and maintained, whether by the department, permittee, or other persons lawfully authorized. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-20. Moving heavy equipment – Permit required.

No person shall move or cause to be moved any track vehicle or other machinery which does not have rubber tires, rubber tracks or street tracks on or across any crosswalks, sidewalks, culverts, bridges, or any wooden structure over concrete or asphalt paving within the city without having obtained a permit from the department. The owner, or party in charge of any such track vehicle or other machinery shall be held liable for any and all damage done to any of the structures or paving mentioned in the preceding section. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 3992, § 11, 1-28-91)

Sec. 31-21. Reserved.

Editor’s note – Ord. No. 3992, § 19, adopted Jan. 28, 1991, amended the code by deleting provisions contained in § 31-21. Said provisions pertained to the protection of the right-of-way while moving heavy equipment and derived from Ord. No. 3726, § 2, adopted Oct. 22, 1984.

Sec. 31-22. Removal of material from or damage to right-of-way.

No person shall injure or remove any rock, sand, gravel, soil, sod, turf, or like substance from any rights-of-way or public property or cause damage to said rights-of-way or public property without the consent of the department. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 3992, § 12, 1-28-91)

Sec. 31-23. Clear vision area requirements.

A clear vision area as defined in section 31-2 of this code shall be required and maintained on the corners of all public and private property within the intersection of roadways or of a roadway and railroad, of a roadway and alley or of a roadway. The clear vision area shall contain no trees, shrubs, or other vegetation, fences, walls, signs or other temporary or permanent sight obstructions of any nature exceeding thirty-six (36) inches in height above the existing centerline elevation of the adjacent roadway, except that trees exceeding thirty-six (36) inches in height may be permitted if all branches and foliage be removed to a height of ten (10) feet above the existing centerline elevation of the adjacent roadway. (Ord. No. 4523, § 3, 1-26-09)

Secs. 31-2431-32. Reserved.

ARTICLE II. CURBS AND SIDEWALKS

DIVISION 1. GENERALLY

Sec. 31-33. Sidewalks to be kept clear of snow, leaves, debris.

The owner, occupant, lessor or agent of any property abutting upon any sidewalk shall keep the sidewalk in front of such abutting property free and clear from snow, wood, leaves, weeds, litter, debris or other obstructions or impediments of whatsoever kind except as provided for in sections 6-22 through 6-29 and 31-74 and 31-75. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 3992, § 13, 1-28-91; Ord. No. 4436, § 6, 3-27-06)

Sec. 31-34. Reserved.

Editor’s note – Ord. No. 3992, § 19, adopted Jan. 28, 1991, amended the code by deleting provisions contained in § 31-34. Said provisions pertained to when snow should be removed from sidewalks and derived from Ord. No. 3726, § 2, adopted Oct. 22, 1984.

Secs. 31-3531-45. Reserved.

DIVISION 2. CONSTRUCTION, RECONSTRUCTION AND REPAIR

Sec. 31-46. Specifications; concrete sidewalks and curbs.

All concrete sidewalks and curbs shall be constructed, reconstructed and repaired under the supervision of the department in accordance with the city standards and with specifications on file in the office of the department. Curb cuts within existing or in new construction will be done in accordance with city standards. All work will be under the supervision of the department. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-47. Inspection of sidewalks; director may order construction, repair, or removal.

(a) The department may inspect sidewalks. Where any sidewalk is dangerous and unsafe, the director shall have the authority to order the owners or agents in charge of the property abutting or adjacent to the sidewalk to repair or remove such sidewalk. Where no sidewalk exists, the director shall have the authority to order the owners or agents in charge of the abutting or adjacent property to construct a sidewalk. Service of such an order shall be accomplished in accordance with section 31-10 of this code.

(b) A dangerous and unsafe sidewalk is a sidewalk that is:

(1) Separated or vertically misaligned by three-quarters (3/4) inch or greater;

(2) Spalled or has an irregular surface of three-quarters (3/4) inch or greater; or

(3) Missing sections or broken into pieces of less than eighteen (18) inches in any measurement.

(c) Notice and appeal of the director’s order shall be as provided in section 31-10 of this code. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 4761, § 6, 9-23-19)

Sec. 31-48. Order from director to alter curb cuts or replace curb.

Where the use, convenience, and necessity of the public requires, the director shall have the authority, in accordance with section 31-9 of this code, to order the owners or agents in charge of property abutting or adjacent to where the curb cuts are maintained to alter the curb cut or replace the curb in such manner as the director shall find reasonably necessary under the circumstances. Notice and appeal of the director’s order shall be as provided in section 31-10 of this code. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 4761, § 7, 9-23-19)

Sec. 31-49. Effect of failure to construct, repair, or remove sidewalk.

If the owners or agents in charge of the abutting or adjacent property do not begin construction, repair, or removal of a sidewalk within the period of time approved by the director and no timely appeal of the order is filed, then the department may complete such sidewalk construction, repair, or removal. The department may contract with a private contractor to complete such work. Money from the department’s street fund and/or the city’s general fund shall be used to pay for the sidewalk construction, repair, or removal.

Within forty-five (45) days of completion of the sidewalk construction, repair, or removal, the finance department shall serve upon the owners or agents in charge of the abutting or adjacent property an itemized statement of the actual costs of such sidewalk construction, repair, or removal and the administration costs incurred in completing such work. The owners or agents in charge of the abutting or adjacent property shall pay such amount in full to the city within thirty (30) days or such longer period of time as agreed to by the city.

If the owners or agents in charge of the abutting or adjacent property do not timely pay such amount in full, then the city may assess the costs of such sidewalk construction, repair, or removal, including administration costs, to the property in front of which the sidewalk was constructed, repaired, or removed, pursuant to Idaho Code, Sections 50-316 and 50-1008. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 4761, § 8, 9-23-19)

Sec. 31-50. Materials for repaired sidewalks and curbs.

Curbs and sidewalks shall be constructed of concrete, and shall be constructed in accordance with the city standards for such construction on file in the office of the department. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-51. Concrete sidewalks and curbs, or payment of “in lieu” fee, required in conjunction with all new construction and major remodeling; allowing “in lieu” fee to satisfy sidewalk postponement obligation.

(a) Concrete sidewalks and curbs shall be required in conjunction with all new construction and major remodeling, except as provided in planned unit developments and sections 31-51(d) and 31-51.1 of this code. No building permit for new construction, major remodeling of an existing structure or the installation of manufactured homes or prefabricated structures shall be issued by the building official until adequate provisions are made for necessary sidewalk and curb improvements required by this code in conformity with city standards.

(b) Curbs and sidewalks shall meet city standards and be installed under the supervision and control of the department and shall be installed at the expense of the owner of the property abutting the improvements. Improvements shall extend the full length of the parcel which fronts on any public street. Where no grade or line for curbs and sidewalks has been established for such street, curbs and sidewalks shall be constructed at a grade and line approved by the department.

(c) In planned unit developments approved pursuant to Chapter 37 of this code, curbs and sidewalks shall be required on both sides of all streets except as provided hereafter. Within planned unit developments an alternative sidewalk plan that provides for either a payment in lieu of sidewalks or construction of pedestrian pathways remote from the right-of-way may be approved by the city council. Money collected through the “in-lieu-of” program shall be used by the city to construct sidewalks from the planned unit development to other areas within the city. An agreement identifying the lots on which sidewalk construction is required, the lot on which an “in-lieu-of” payment is required and identifying the sidewalks to be constructed with the money collected under the “in-lieu-of” program shall be approved by the city council and recorded with the Nez Perce County recorder.

(d) Exemptions. At the request of the property owner, payment of a fee, in lieu of sidewalk construction, shall be allowed under the following circumstances:

(1) The street in question is a local residential road; and

(2) The side of the street on which the development is occurring has not been identified in the sidewalk master plan as a priority, or desirable for sidewalk installation; and

(3) Sidewalks or postponement agreements do not exist within one (1) block on the same side of the street of the parcel on which development is occurring; and

(4) Curbs and gutters have been postponed; and

(5) The right-of-way is insufficient, cannot be dedicated, and the city is unable or does not desire to purchase adequate right-of-way; and

(6) Where the director of public works determines a hazard may be created by such installation.

(e) The in-lieu fee shall be assessed per lineal foot of street frontage. The cost per lineal foot shall be determined by February 1st each year for all fees paid for the next twelve (12) months based on the current labor and material costs for sidewalk construction.

(f) Money collected through the “in-lieu-of” program shall be used by the city to construct sidewalks within the same neighborhood, as defined in the comprehensive plan, as the fees were generated from, in accordance with the sidewalk master plan.

(g) After notification by the public works department, property owners who have executed a sidewalk postponement application and have been granted said postponement or owners of real property on which a sidewalk postponement has been recorded in the office of the Nez Perce County recorder, where cause for said postponement is no longer valid and cause would not be valid under existing standards, may elect to satisfy the sidewalk construction obligation by paying a fee in lieu of actual sidewalk construction. The “in-lieu-of” fee shall be fifty (50) percent of the fee as computed pursuant to subsection (e) of this section and shall be paid to the city within three (3) years of election. Payment in full of the “in-lieu-of” fee shall discharge the requirement of sidewalk construction of the property owner. If a property owner elects not to pay the “in-lieu-of” fee after notification by the public works department, the postponement shall be called as provided in section 31-51.1(b)(3) and property owners shall construct the sidewalk previously postponed. If sidewalks are not constructed as provided herein the city may perform the necessary work and have the costs of construction assessed against the real property pursuant to Idaho Code, Sections 50-316 and 50-1008. Proceeds collected by the city pursuant to this section shall be used to construct sidewalks as provided by the city’s sidewalk master plan. All other sidewalk postponements granted prior to the effective date of the ordinance codified in this section shall be released; however, if future development that would trigger a requirement for right-of-way improvements under then current city ordinances occurs after the effective date of the ordinance codified in this section, sidewalks shall be constructed as provided by city codes. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 3992, § 14, 1-28-91; Ord. No. 4132, § 2, 6-26-95; Ord. No. 4270, § 4, 10-30-00; Ord. No. 4394, § 2, 4-11-05; Ord. No. 4539, § 1, 12-28-09)

Sec. 31-51.1. Additional requirements.

(a) Curbs. Curbs shall be required for all new construction, major remodeling, manufactured home installation, prefabricated structures or subdivisions located on all streets.

For all new construction, major remodeling, manufactured home installation and prefabricated structures involving single or duplex residences, the property owner shall be responsible for curb, gutter and sidewalk construction and the city shall be responsible for street construction between the curb and existing street pavement. In all other instances the property owner shall be responsible for curb, gutter, sidewalk and street construction between curb and existing pavement, all in conformity with city standards.

Curbs may be postponed by the public works director if:

(1) A storm drainage problem would be created; or

(2) The centerline of an existing street has not been formally designated.

Postponement in no way relieves the abutting property owner from the responsibility to construct curbs to city standards at such time as it becomes necessary, as determined by the public works director, for public safety or storm drainage.

(b) Sidewalks. Sidewalks shall be required on all streets except as provided for in section 31-51 of this code.

(1) Sidewalks shall be constructed under the supervision and control of the director in accordance with current city standards and shall be constructed at the expense of the owner of the property in front of which the sidewalk is constructed, except as may be provided by the city council for substantial public improvements.

(2) Construction of sidewalks as required by this section may be postponed by the director only when:

a. Curbs and gutters have been postponed;

b. Improvements to the abutting road have been adopted as part of the CIP and it is in the city’s interest to postpone sidewalk until such time as the road improvements have commenced.

(3) Postponement in no way relieves the abutting property owner from the responsibility to construct sidewalks to city standards at such time, as determined by the public works director, that the reason for the postponement no longer exists. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 3992, § 15, 1-28-91; Ord. No. 4025, § 4, 12-30-91; Ord. No. 4132, § 3, 6-26-95; Ord. No. 4394, § 3, 4-11-05)

Sec. 31-52. Liability of owner.

(a) The owners of the property in front of or for the use of which any structures referred to in the preceding section are constructed, kept or maintained shall be liable to the city for the condition thereof and shall construct, keep and maintain the same upon the express condition that the owner of such property will save and keep the city harmless from any and all damages, losses, claims and demands occurring on account of or by reason of the existence of such structures.

(b) Such covenant shall be deemed a covenant running with the land and the construction of such structures or the keeping or maintaining of those in existence for thirty (30) days after the passage of this section shall be deemed an acceptance of all the terms and conditions of this section. (Ord. No. 3726, § 2, 10-22-84)

Secs. 31-5331-65. Reserved.

ARTICLE III. ENCROACHMENTS

Sec. 31-66. Reserved.

Editor’s note – Ord. No. 3992, § 19, adopted Jan. 28, 1991, amended the code by deleting provisions contained in § 31-66. Said provisions pertained to banners existing within the right-of-way and derived from Ord. No. 3726, § 2, adopted Oct. 22, 1984.

Sec. 31-67. Posts, uprights and supports prohibited.

No person shall place, erect or construct in or upon any public street or sidewalk within the city any post, upright, support or other obstruction to support, uphold or attach to any porch, awning, banner, sign, advertising device or other structure, except as provided for in section 31-74; provided, that nothing in this or the preceding section shall be construed to prohibit the erection and maintenance of authorized utility poles and approved traffic-control devices. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-68. Buildings projecting over streets or sidewalks.

No building shall be erected, altered or repaired so as to project over, into or onto any street or sidewalk, except as provided for in section 31-74; provided, that this section shall not apply to the bases of columns projecting not to exceed six (6) inches or to cornice or projections placed at least ten (10) feet above the top of sidewalks. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-69. When railing required.

(a) All cellarways leading to cellars used for actual business places shall be protected with a solid, substantial railing at least two (2) feet nine (9) inches high on all sides except the direct entrance upon the street.

(b) The person occupying the cellar shall cause the cellarway to be kept lighted during the nighttime. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-70. Excavations and structures under sidewalks; permits; specifications; may be declared nuisances.

(a) No excavations shall be made under any sidewalk or sidewalk space in the city, nor shall any areaway, cellar door, stairway, coal hole or other like structure be constructed, kept or maintained in any such sidewalk or sidewalk space unless a permit shall first be obtained therefor as is or may be required by this code or other ordinances of the city and unless such structure shall be constructed in accordance with this code or other ordinances of the city governing such structures. Such structures shall be so secured, guarded and kept as to protect persons and property from injury by reason of the existence or condition of such structures.

(b) All such structures which are not constructed, kept and maintained in accordance with this section or which are permitted for any reason to become dangerous are hereby declared nuisances. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-71. Gates and doors swinging over sidewalks prohibited; same declared a nuisance.

(a) All gates and doors within the city which are built, constructed and fastened so that in opening the same they swing upon or over any portion of any sidewalk, street or alley of the city are hereby declared to be nuisances.

(b) No person shall build, construct, hang, maintain or keep any such gate or door within the city. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-72. Reserved.

Editor’s note – Ord. No. 3992, § 19, adopted Jan. 28, 1991, amended the code by deleting provisions contained in § 31-72. Said provisions pertained to chairs, benches and gatherings on sidewalks and derived from Ord. No. 3726, § 2, adopted Oct. 22, 1984.

Sec. 31-73. Cellarways; when cover required.

(a) All cellarways to cellars, which are not used for offices, stores, restaurants or other places of business where the general public is invited to enter, shall be covered with an iron or glass door or iron grating, the bars of which shall not be more than three-fourths (3/4) of an inch apart and not less than one-half (1/2) inch by one and one-half (1-1/2) inches.

(b) Such bars shall rest on a firm and solid support or iron sufficiently strong to support foot travelers and be so constructed that, when shut, they shall be even with and form a part of the sidewalk and shall not be opened except during the daytime and when open, shall have all the sides thereof, except the side facing the streetway or curb closed by a fence or railing at least two (2) feet high; provided that if double doors are used to hold such doors firmly upright when open, an iron bar shall be extended from door to door across the open space at the end of the next footway or pavement in lieu of such railing, so as to guard persons passing along the pavement or sidewalk from falling therein.

(c) No such door shall be open at any one time to exceed one (1) hour. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-74. Temporary right-of-way uses.

(a) Temporary uses of the right-of-way shall be limited to the following:

(1) Outdoor eating and drinking area furniture associated with an adjacent, licensed business within the central business district, as described in section 37-145 of this code, and outside of such district along Main Street to the Levee Bypass Road/18th Street. Such furniture shall be located directly in front and on the same side of the street as the business with which it is associated. Such areas and furniture may be allowed to encroach upon the store frontage of an adjoining business if allowed by the adjoining business or property owner.

(2) Temporary signs pursuant to the requirements of Chapter 30 of this code. For purposes of this section, temporary sign shall have the same meaning as defined in Chapter 30 of this code.

(3) Right-of-way work as permitted and governed by sections 31-3 through 31-8 of this code.

(4) Community and special events as permitted by the public works director.

(5) Landscaping and beautification consisting only of:

a. Grass.

b. Flowers, bushes, shrubbery no higher than thirty (30) inches.

c. Street trees maintained pursuant to the urban forestry program.

(6) Other uses as permitted upon review and approval of the public works director or his designee.

(b) In no event shall any temporary uses of the right-of-way cause a nuisance, hazard, danger or a sight obstruction for any traffic, vehicular, pedestrian, or bicyclist, using the right-of-way, or violate federal requirements for public accessibility pursuant to the Americans with Disabilities Act. The city of Lewiston shall not be liable for any theft, vandalism, etc., of any temporary right-of-way use objects. The owner of any such objects shall be subject to any liability caused by the owner’s placement of such objects in the right-of-way.

(c) Any business placing outdoor eating and drinking area furniture, temporary advertising signage, merchandise display items and other appurtenances upon a public sidewalk or public right-of-way shall provide and maintain proof of general business liability insurance for the associated business, with the city named as an additional insured thereon prior to such use of the public sidewalk or right-of-way. Said insurance shall comply with the limits of liability as set forth in section 31-76 of this code. Failure of any business to comply with this insurance requirement may result in the revocation of the business license for the associated business.

(d) Any establishment which serves and/or sells beer, wine, or liquor by the drink, as such terms are defined in Chapter 6 of this code, must comply with the requirements of Chapter 6 of this code. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 3872, § 2, 8-3-87; Ord. No. 3928, § 1, 7-5-88; Ord. No. 3992, § 16, 1-28-91; Ord. No. 4045, § 1, 9-14-92; Ord. No. 4436, § 7, 3-27-06; Ord. No. 4569, § 1, 2-13-12; Ord. No. 4692, § 10, 10-30-17; Ord. No. 4710, § 3, 12-10-18)

Sec. 31-75. Permanent and semi-permanent encroachments in the right-of-way.

Permanent encroachments in the right-of-way are hereby prohibited.

(1) A semi-permanent encroachment may be approved by the public works director upon application, provided the encroachment, conforms to the following requirements:

a. After placement of the encroachment, there remains eight (8) feet of unobstructed sidewalk in commercial districts and four (4) feet in residential and industrial districts.

b. The encroachment is not within the clear vision area as defined in Lewiston City Code section 31-2 nor blocks any traffic control device;

c. The encroachment does not pose any type of safety hazard because of wind, electrical cords, or similar uses.

(2) Nothing herein shall prohibit the placement of mailboxes, allowed by the United States Postal Service, adjacent to the edge of pavement of any right-of-way without permit.

(3) Nothing herein shall prohibit an outdoor eating facility or mobile cart properly licensed under section 6-87 et seq. (Ord. No. 3872, § 3, 8-3-87; Ord. No. 3928, § 2, 7-5-88; Ord. No. 3992, § 17, 1-28-91; Ord. No. 4436, § 8, 3-27-06)

Sec. 31-76. Insurance required.

(a) The permittee obtaining a right-of-way use permit for a semipermanent encroachment, as provided for in section 31-75(1), shall be required to provide and maintain proof of general homeowner’s liability or general business

liability insurance for the real property abutting the right-of-way encroachment, with the city named as an additional insured thereon.

(b) The permittee obtaining a right-of-way use permit in all other circumstances shall be required to provide and maintain proof of insurance coverage as described hereafter. Proof shall be in the form of a certificate approved by the city. Alternate forms of insurance approved by the city will be acceptable that meet the minimum required insurance limits. The certificate shall contain a provision that the insurance shown on the certificate will not be cancelled or materially altered without at least thirty (30) days’ prior written notice to the city.

(c) The insurance required shall contain the following coverages: Comprehensive general liability, including blanket contractual, broad-form property damage, XCU coverages and completed operations. Minimum limits shall be three hundred thousand dollars ($300,000.00) per occurrence for bodily injury and one hundred thousand dollars ($100,000.00) per occurrence for property damage, or three hundred thousand dollars ($300,000.00) combined single limits for both bodily injury and property damage. Comprehensive automobile liability shall also be carried by the permittee, which will include owned, nonowned and hired coverages. Limits shall be one hundred thousand dollars ($100,000.00) per person, three hundred thousand dollars ($300,000.00) per occurrence for bodily injury and one hundred thousand dollars ($100,000.00) for property damage, or three hundred thousand dollars ($300,000.00) combined single limit. Workmen’s compensation and employer’s liability shall also be carried with the employer’s liability limit of liability no less than one hundred thousand dollars ($100,000.00). The city shall be named as the additional insured under all policies. The coverages shall be written with a company (or companies) that is licensed and in good standing with the Idaho State Insurance Department and acceptable to the director of public works. (Ord. No. 3872, § 4, 8-3-87; Ord. No. 3928, § 3, 7-5-88)

Sec. 31-77. Reserved.

Editor’s note – Ord. No. 4263, § 2, adopted April 17, 2000, amended the code by deleting provisions contained in § 31-77. Said provisions pertained to political signs and derived from Ord. No. 3773, § 4, adopted April 29, 1985, as amended by Ord. No. 3962, § 1, adopted April 16, 1990.

Sec. 31-78. Reserved.

Editor’s note – Ord. No. 3992, § 19, adopted Jan. 28, 1991, amended the code by deleting provisions contained in § 31-78. Said provisions pertained to prohibited signs and derived from Ord. No. 3773, § 5, adopted April 29, 1985.

Secs. 31-7931-84. Reserved.

ARTICLE IV. STREET NAMES AND HOUSE NUMBERING

Sec. 31-85. Names of new streets shall be approved by city council.

(a) For purposes of this article, the city will be divided into three (3) sections, North Lewiston, Lewiston and Lewiston Orchards.

(1) The North Lewiston district of the city will be all that area north of the Clearwater River.

(2) The Lewiston district of the city will be all that area south of the Clearwater River and north and west of the following described line: The centerline of Stewart extended east and west. The north/south line will be a line extended south from the east/west boundary along the west boundary line of the east one-half of Sections 12, 13, 24 and 25, Township 35 North, Range 6 West through the south city limits line.

(3) The Orchards district of the city will be all that area south and east of the above-described line.

(b) All streets laid out and dedicated within the city shall be named to correspond with the streets and avenues of which they are extensions; all names shall be submitted to the city council for approval before filing for record.

(c) The general plan of the city is to number all north and south streets and call them “streets.”

(1) On the plats for the Lewiston district north of the bluff between Snake River Avenue and 9th Street, north of Idaho Street between 9th Street and 21st Street and south of the Clearwater River, west of 21st Street and east of the Snake River, the east and west streets are to be designated “streets.”

(2) In the remainder of the Lewiston district and in the North Lewiston district, east and west streets are to be designated as “avenues” and be numbered.

(3) In the Orchards district the original east/west streets are to be named and called “avenues”; all other through east/west streets are to be named and called “drives.”

(4) Streets not conforming to this grid in the judgment of the department of public works, such as diagonal, curvilinear, contour, cul-de-sac, etc., shall be assigned a name followed by an appropriate title such as “boulevard,” “road,” “trail,” “way,” “drive,” etc.

(d) The city council shall give final approval to all proposed street names by resolution. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 4490, § 1, 2-25-08; Ord. No. 4616, § 1, 11-24-14)

Sec. 31-86. All houses and buildings to be numbered.

All houses and buildings within the city shall be assigned a number by the director and shall be physically numbered by the owners or occupants thereof in accordance with the provisions of this article. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 4025, § 5, 12-30-91)

Sec. 31-87. Decimal system of numbering adopted.

The decimal system of numbering is hereby adopted for the numbering of buildings and houses within the city. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-88. System used in the Lewiston district of the city.

(a) Number assigned. One hundred (100) numbers are hereby assigned to each block and twenty (20) feet to each number, but in cases where the lots or blocks are irregularly platted the numbers shall be assigned in such manner as will, under all the circumstances, be most nearly in conformity with the system hereby adopted.

(b) Base line. Main Street is hereby adopted as the initial or base line for the numbering of all buildings and houses on streets running approximately north and south of the Lewiston district.

The following streets are hereby adopted as the initial or base line for the numbering of all buildings and houses on streets and avenues running approximately east and west in the city: First Street from its northern terminus to Main Street and Snake River Avenue from its intersection with Main Street to monument No. 7; thence east two hundred (200) feet; thence south to the intersection of Fifteenth Avenue and First Street to University Addition and thence south along First Street to the southern city limits.

(c) System used on streets running north and south. The numbering on all streets extending southerly from Main Street shall begin at Main Street with No. “101” and continue with the even numbers on the west side of the street and the odd numbers on the east side of the street in accordance with the system established by this article.

In like manner, the numbering on all streets extending northerly from Main Street to the Clearwater River shall begin with the even numbers on the west side and the odd numbers on the east side of the street, in accordance with such system.

All such numbers on streets running northerly from Main Street shall have the cipher preceding the number.

This shall constitute a part of the house or building number.

(d) System used on streets running east and west. The numbering on all streets and avenues extending easterly from the First Street base or initial line, with its extensions, shall commence at such base lines with No. “101” and continue on each street with the even numbers on the south side of the street and the odd numbers on the north side of the street or avenue.

The numbering on all streets or avenues extending westerly from the First Street initial or base line, with its extensions, shall commence at such initial line with No. “101” and continue on each street with the even numbers on the south and the odd numbers on the north side of the street, in accordance with such system.

Each and every number on such streets or avenues running westerly from the First Street initial line shall have the capital letter “W” prefixed.

Such letter shall constitute a part of the building or house number. (Ord. No. 3726, § 2, 10-22-84; Ord. No. 3992, § 18, 1-28-91)

Sec. 31-89. Systems used in North Lewiston district of the city.

(a) Number spacing. One hundred (100) numbers are hereby assigned to each block and twenty (20) feet to each number, but in cases where the lots or blocks are irregularly platted, the numbers shall be assigned in such manner as will, under all the circumstances, be most nearly in conformity with the system hereby adopted.

(b) Base line. First Avenue North is hereby adopted as the initial or base line for numbering of all buildings and houses on the streets running approximately north and south in the North Lewiston district. First Street North is hereby adopted as the initial or base line for the numbering of all buildings and houses on the avenues running approximately east and west in the North Lewiston District.

(c) System used on streets running north and south. The numbering on all streets extending northerly from First Avenue North shall begin at First Avenue with number “101” and continue with even numbers on the west side of the street and the odd numbers on the east side of the street in accordance with the system established by this article.

(d) System used on streets running east and west. The numbering on all streets and avenues extending easterly from the First Street base or initial line, with its extension, shall commence at such base lines with No. “101” and continue on each street with the even numbers on the south side of the street and the odd numbers on the north side of the street or avenue.

The numbering on all streets or avenues extending westerly from the First Street initial or base line, with its extensions, shall commence at such initial line with No. “101” and continue on each street with the even numbers on the north and the odd numbers on the south side of the street or avenue.

Each and every number on such streets or avenues running westerly from the First Street initial line shall have the capital letter “W” prefixed.

Such letter shall constitute a part of the building or house number. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-90. System used in the Lewiston Orchards District of the city.

(a) Numbering spacing. One hundred (100) numbers are hereby assigned to each block and 63.25 feet to each number, but in cases where the lots and blocks are irregularly platted, the numbers shall be assigned in such manner as will, under all the circumstances, be most nearly in conformity with the system hereby adopted.

(b) Base line. Fourth Street is hereby adopted as the initial or base line for the numbering of all streets and houses on streets running approximately east and west.

Stewart Avenue is hereby adopted as the initial or base line for the numbering of all buildings and houses on streets running approximately north and south.

(c) The numbering of all streets and avenues extending easterly from Fourth Street shall begin at Fourth Street starting with “401” and continuing on each street with the even numbers on the south side of the street and the odd numbers on the north side of the street or avenue.

In a like manner the numbering on all streets extending westerly from Fourth Street to the boundary of the Orchards shall begin with the number “340” and decrease with the even numbers on the north and the odd numbers on the south side of the street or avenue.

(d) The numbering of all streets extending southerly from the Stewart Avenue base line or initial line, with its extension shall commence at such base line with Number “3101” and continue on each street with the even numbers on the west side of the street and the odd numbers on the east side of the street in accordance with the system established by this article.

(e) The numbering of Thain Road will start at the center line of Preston with “101” numbers and continue with the even numbers on the west and the odd numbers on the east side of the road.

(f) The north and south street and Thain Road will change 100 block numbers only on Stewart, Preston, Warner, Bryden, Burrell, Grelle, Powers, Ripon and Richardson. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-91. Director to prepare and file map; assignment of numbers.

(a) The director shall prepare and place on record in the department a plat showing the numbers assigned, in accordance with this article to each house, building or tract of land within the city.

(b) Such map shall be a permanent record of the department and shall be kept for the inspection and use of the public.

(c) The director shall advise persons who inquire of the numbers assigned to any particular house, building, lot or parcel of land as to which information is sought. (Ord. No. 3726, § 2, 10-22-84)

Sec. 31-92. Owners to furnish own numbers; specifications of same.

(a) Building or house numbers to be used in accordance with the provisions of this article shall be obtained by the owners or occupants of the property at their own expense. Such numbers shall be of neat and legible character and of such size as will enable persons of ordinary eyesight to easily read the same from the street line in front of the house or building upon which such numbers are placed.

(b) Such numbers shall be placed in a conspicuous position upon such house or building, over or at the side of the front entrance thereto. (Ord. No. 3726, § 2, 10-22-84)

31-93 – 31-99 Reserved.

Editor’s note – Ord. No. 3992, § 19, adopted Jan. 28, 1991, amended the code by deleting provisions contained in § 31-93. Said provisions pertained to violations of Art. IV and derived from Ord. No. 3726, § 2, adopted Oct. 22, 1984.

ARTICLE V. VACATION OF PUBLIC RIGHTS-OF-WAY, EASEMENTS, AND PLATS

Sec. 31-100. Purpose and scope.

The purpose of this article is to establish procedures for the vacation of a subdivision plat, an easement granted for public use, a public street, way, alley, or other area dedicated for the use of the public. This article shall apply to the vacation of all or part of any subdivision plat, an easement granted for public use, a public street, avenue, boulevard, way, alley, plat, or other area dedicated for the use of the public. Sections 31-101 through 31-113 of this code define the procedure to vacate a subdivision plat or a public street, way, alley, or other area dedicated for public use. Sections 31-101 through 31-103 of this code and sections 31-114 through 31-117 of this code define the procedure to vacate an easement granted for public use. (Ord. No. 4595, § 2, 10-28-13; Ord. No. 4674, § 2, 2-13-17)

Sec. 31-101. Action – Recordation – Effective date.

(a) Approval of a vacation petition can be granted only by means of a city resolution approved by the city council.

(b) No vacation shall be recorded until:

(1) All fees have been paid as specified in section 31-112 of this code;

(2) All required actions by the city council are complete and the resolution document has been signed; and

(3) The petitioners have complied with all conditions of approval or have been granted an exception by the city council.

(c) The effective date of the vacation shall be the date that the signed resolution is recorded by the Nez Perce County recorder. (Ord. No. 4595, § 3, 10-28-13; Ord. No. 4674, § 3, 2-13-17)

Sec. 31-102. Process – Initiation.

A vacation petition may be initiated by any person, persons, firm, association, corporation or other legally recognized form of business and as further defined in Idaho Code, Section 50-1306A. (Ord. No. 4595, § 2, 10-28-13)

Sec. 31-103. Pre-petition conference required.

(a) The person(s) interested in submitting a vacation petition shall contact the public works secretary to schedule a pre-petition conference with the public works director, the city engineer, and the city surveyor or their designated representatives. The public works secretary must be given, at a minimum, the following information when scheduling a pre-petition conference:

(1) A basic reason for the vacation;

(2) A general description of the area to be vacated;

(3) Contact information including name(s), telephone number(s) and/or email address(es) for the interested person(s).

(b) The pre-petition conference shall be for the purpose of:

(1) Discussing the reasons for the proposed petition;

(2) Determining the specific area to be vacated;

(3) Explaining the vacation procedure;

(4) Explaining the approval criteria;

(5) Explaining the fees and other costs associated with a vacation;

(6) Identifying other options, if any; and

(7) Advising on the feasibility of the proposed petition. (Ord. No. 4595, § 2, 10-28-13; Ord. No. 4674, § 4, 2-13-17)

Sec. 31-104. Notice of intent to file vacation of public right-of-way or plat petition – Notice to interested parties.

(a) If the interested person(s) desires to proceed with the petition following the prepetition conference, they shall submit a notice of intent to file a vacation petition (notice) to the public works secretary with the initial fee, as provided by section 31-112 of this code, and notarized consent letters from all owners of property that are adjacent to the proposed vacation area if a public street, public right-of-way, or any part thereof is included in the proposed vacation area. Incomplete submittals shall not be accepted.

(b) The area to be vacated in the notice must be the same area that was defined in the pre-petition conference.

(c) The public works secretary shall forward to the public works director a copy of the notice, and the director or his or her designee shall provide a copy, with supporting maps and documents, to all utility providers, the county, and other interested parties, of the intent to file. The director or his or her designee shall request all utility providers and interested parties to provide a written response within fourteen (14) days. (Ord. No. 4595, § 2, 10-28-13; Ord. No. 4674, § 5, 2-13-17; Ord. No. 4719, § 1, 5-14-18)

Sec. 31-105. Summary letter for vacation of public right-of-way or plat petition.

When the utility providers and other interested parties have responded to the notice or the 14-day response period has expired, the public works director or his or her designee shall prepare a summary letter from the responses of the utility providers and other interested parties.

(1) The summary letter may contain:

a. Information on the rights claimed by utility providers and other interested parties;

b. The proposed means of protecting the rights of the utility providers and other interested parties; and

c. The course of action that the public works director will recommend to the city council regarding the vacation petition if the interested person(s) decides to continue the vacation petition process.

(2) The public works director or his or her designee shall transmit the summary letter to the interested person(s) that submitted the notice. (Ord. No. 4595, § 2, 10-28-13; Ord. No. 4674, § 6, 2-13-17)

Sec. 31-106. Vacation of public right-of-way or plat petition requirements and staff review.

(a) If the interested person(s) decides to proceed with the vacation process, a vacation petition (petition) shall be submitted to the public works secretary on a form prescribed by the city of Lewiston. After reviewing the petition, the public works department shall file the petition with the city clerk. Incomplete submittals shall not be accepted.

(b) A complete vacation petition submittal shall include:

(1) A completed petition, which shall include the information required in Idaho Code Title 50, Chapter 13, if the petition is for vacation of a plat or any part thereof; and

(2) The petition fee, as required by section 31-112 of this code. (Ord. No. 4595, § 2, 10-28-13; Ord. No. 4674, § 7, 2-13-17; Ord. No. 4719, § 2, 5-14-18)

Sec. 31-107. Vacation of public right-of-way or plat staff report and list of property owners.

The public works director or designated representative shall prepare a staff report that includes a recommendation to approve, approve with conditions, or deny the petition. The recommendation shall be based on the following items:

(1) The effect on:

a. Traffic, pedestrian and bicycle circulation;

b. The provision of fire and police service as related to increasing response time;

c. Storm water drainage;

d. Utilities.

(2) Compliance with the comprehensive plan and the transportation plan.

(3) Compliance with capital improvement programs.

The recommended conditions of approval, if any, shall be those conditions necessary to protect the rights and interest of the public.

The public works director or designated representative shall prepare a list of names and addresses of owners of property within three hundred (300) feet of the requested vacation and a corresponding map, which shall be delivered to the city clerk along with the staff report. (Ord. No. 4595, § 2, 10-28-13; Ord. No. 4674, § 8, 2-13-17)

Sec. 31-108. Public hearing and notice for vacation of public right-of-way or plat petition.

The city clerk shall schedule the public hearing and provide the hearing schedule to the public works director or designated representative, who posts the proposed vacation area with temporary signs containing information on the proposed vacation at least seven (7) days prior to the public hearing date.

(1) Notice of the public hearing shall be given as follows:

a. The city clerk shall give written notice of the petition and public hearing by certified mail with return receipt, at least ten (10) days prior to the date of the public hearing, to all property owners within three hundred (300) feet of the boundaries of the area described in the petition.

b. The city clerk shall give notice of the petition and hearing by publishing a notice in the city official newspaper once each week for two (2) consecutive weeks prior to the public hearing, the last of which shall not be less than seven (7) days prior to the date of the public hearing.

(2) The notice shall contain the following:

a. A heading entitled “Notice of Proposed Vacation of X” with “X” being what is proposed to be vacated;

b. A description of the area to be vacated by the petition;

c. The date the petition was filed;

d. The name of at least one (1) petitioner; and

e. The time and place set for the public hearing. (Ord. No. 4595, § 2, 10-28-13; Ord. No. 4674, § 9, 2-13-17)

Sec. 31-109. Council action, approval standards, conditions for vacation of public right-of-way or plat petition.

(a) The city council shall hold the public hearing and it shall approve, approve with conditions, or deny the petition, in whole or in part, by resolution based on findings that:

(1) Proper notice has been given as required by section 31-108 of this code; and

(2) The public interest will not be prejudiced by the vacation.

(b) The city council findings shall be based on:

(1) The petition;

(2) The public testimony;

(3) The staff report and recommendation of the public works director or designated representative; and

(4) The written information submitted by utility providers and interested parties.

(c) The conditions of approval shall be those conditions necessary to protect the rights and interest of the public and may include:

(1) The maintenance and use of underground public utilities or service facilities in the vacated area;

(2) Limitations on the use of the area above and adjacent to underground utilities or service facilities;

(3) Moving at petitioner’s expense the utilities or services either below, on, or above the surface;

(4) Construction, extension or relocation of sidewalks and curbs;

(5) Grading or pavement extensions;

(6) Dedication for public use of another area in lieu of the area to be vacated;

(7) Any other matter relating to the vacation that is necessary to protect the public or adjoining property owner or to carry out city adopted plans. (Ord. No. 4595, § 2, 10-28-13; Ord. No. 4674, § 10, 2-13-17)

Sec. 31-110. Satisfaction of conditions required and exception for vacation of public right-of-way or plat petition.

(a) Satisfaction of conditions required. All conditions of approval shall be satisfied prior to the recording of the resolution approving a petition for vacation unless an exception is granted by the city council under the provisions of subsection (b) of this section.

(b) Exception.

(1) The city council may grant an exception to the requirement that all conditions of approval be satisfied prior to the recording of the resolution if it finds that the vacation petition involves one (1) property owner and upon the conditions that:

a. The petitioner posts a performance bond, or other acceptable method of financial assurance approved by the city attorney, in the amount of one hundred fifty (150) percent of the project cost as estimated by an Idaho licensed civil engineer whose fees are paid by the property owner. The project cost estimate shall be reviewed and approved by the public works director or designated representative;

b. It is agreed in writing that the work will be completed, inspected, and approved by the city within one (1) year from the date of the recording of the vacation resolution. If the work is not completed, the financial surety may be used by the city to complete the work. (Ord. No. 4595, § 2, 10-28-13; Ord. No. 4674, § 11, 2-13-17)

Sec. 31-111. Payment of taxes and city liens for vacation of plat.

No resolution for the vacation of all or part of a plat shall be approved by the city council until the petitioner has provided the public works secretary a certificate showing that all city liens and all taxes have been satisfied and/or paid on the lands covered by the plat or the portion of the plat being vacated. This section does not apply to vacations in which only public rights-of-way are being vacated. (Ord. No. 4595, § 2, 10-28-13; Ord. No. 4674, § 12, 2-13-17)

Sec. 31-112. Fees for vacation of public right-of-way or plat.

The petitioner(s) shall be responsible for all fees associated with the vacation action. All fee amounts shall be set by resolution adopted by the city council. All fees shall be paid prior to the recording of the vacation resolution. (Ord. No. 4595, § 2, 10-28-13; Ord. No. 4674, § 13, 2-13-17)

Sec. 31-113. Title to vacated area.

The title to property in platted lots shall remain vested in the same owners as previous to the vacation. The title to a street or other publicly dedicated area shall revert to the owner of the adjacent real estate, one-half (1/2) on each side thereof, or as the city council deems in the best interests of the adjoining properties, but the right-of-way, easements, and franchise rights of any lot owner or public utility shall not be impaired thereby. (Ord. No. 4595, § 2, 10-28-13; Ord. No. 4674, § 14, 2-13-17)

Sec. 31-114. Filing of an easement vacation petition.

(a) If an interested person(s) desires to proceed with an easement vacation petition following the pre-petition conference, such person(s) shall submit an easement vacation petition to the public works secretary along with a fee, in the amount set forth by resolution adopted by the city council, and notarized consent letters from all utility companies that have the right to use the easement for the installation, maintenance, and access to their utility systems. A letter of consent to vacate signed by the public works director or designated representative shall be sufficient for all city of Lewiston water, wastewater, and stormwater utility systems. If one (1) or more utility companies with valid easement rights refuses to consent to the easement vacation, the easement vacation petition process shall be terminated. If one (1) or more utility companies with valid easement rights consents to the easement vacation with specific conditions, such as the relocation of existing utility lines at the petitioner’s expense, the easement vacation petition process may continue with the specified conditions.

(b) Incomplete submittals shall not be accepted. (Ord. No. 4674, § 15, 2-13-17)

Sec. 31-115. Easement vacation staff report and list of property owners.

The public works director or designated representative shall prepare a staff report that shall include a recommendation to approve, approve with conditions, or deny the easement vacation petition. The recommendation shall be based on verification of the notarized consent letters from all utility companies and an analysis by the public works director or designated representative of future public utility needs.

The public works director or designated representative shall prepare a list of names and addresses of property owners within three hundred (300) feet of the requested easement vacation and a corresponding map, which shall be delivered to the city clerk along with the staff report. (Ord. No. 4674, § 16, 2-13-17)

Sec. 31-116. Easement vacation public hearing and notice.

The city clerk shall schedule the easement vacation public hearing and provide the public hearing schedule to the public works director or designated representative.

(1) Notice of the public hearing shall be given as follows:

a. The city clerk shall give written notice of the petition and public hearing by certified mail with return receipt, at least ten (10) days prior to the date of the public hearing to all property owners within three hundred (300) feet of the boundaries of the area described in the petition.

b. The city clerk shall give notice of the petition and hearing by publishing a notice in the city official newspaper once each week for two (2) consecutive weeks prior to the public hearing, the last of which shall not be less than seven (7) days prior to the date of the public hearing.

(2) The notice shall contain the following:

a. A heading entitled “Notice of Proposed Easement Vacation of X,” with “X” being what is proposed to be vacated;

b. A description of the easement area to be vacated by the petition;

c. The date the petition was filed;

d. The name of at least one (1) petitioner; and

e. The time and place set for the public hearing. (Ord. No. 4674, § 17, 2-13-17)

Sec. 31-117. Council action, approval standards, conditions for easement vacations.

(a) The city council shall hold the public hearing on the easement vacation petition and approve, approve with conditions, or deny the easement vacation petition, in whole or in part, by resolution.

(b) The city council findings shall be based on the following:

(1) The easement vacation petition;

(2) The public testimony;

(3) The staff report and recommendation of the public works director or designated representative;

(4) The letters of consent submitted by utility providers;

(5) Verification that proper notice was given as required by section 31-116 of this code; and

(6) Verification that the public interest will not be prejudiced by the easement vacation.

(c) Any conditions of approval shall be those conditions necessary to protect the rights and interest of the public and the utility companies. Such conditions of approval may include, but are not limited to:

(1) Moving existing utilities at petitioner’s sole expense. This shall be allowed only with the written consent of the affected utilities.

(2) Granting an easement for public use across another area of the petitioner’s property in exchange for the easement to be vacated.

(3) Any other matter relating to the easement vacation that is necessary to protect the rights and interests of the utility companies, the public, or the adjoining property owners or to carry out city adopted plans. (Ord. No. 4674, § 18, 2-13-17)

ARTICLE VI. RIGHT-OF-WAY REGULATIONS FOR WIRELESS COMMUNICATION FACILITIES

Sec. 31-125. Purpose.

The provisions of this article shall be known as the right-of-way regulations for wireless communication facilities. It is the purpose of these provisions to delineate restrictions, development standards and siting criteria, and establish removal procedures in order to protect the city from the uncontrolled siting of wireless communication facilities in rights-of-way that have significant adverse effects and cause irreparable harm. It is further the purpose of these provisions:

(1) To protect the community’s visual quality and safety while facilitating the reasonable and balanced provision of wireless communication services. More specifically, it is the city’s goal to minimize the visual impact of wireless communication facilities on the community, particularly in rights-of-way in residential zones, the central business district, the Normal Hill Heritage Overlay Zone, and historic districts;

(2) To promote and protect the public health, safety and welfare, preserve the aesthetic character of the Lewiston community, and to reasonably regulate the development and operation of wireless communication facilities within rights-of-way to the extent permitted under state and federal law;

(3) To minimize the impact of wireless communication facilities by establishing standards for siting design and screening;

(4) To preserve the opportunity for continued and growing service from the wireless industry;

(5) To accommodate the growing need and demand for wireless communication services;

(6) To establish clear guidelines and standards and an orderly process for review intended to facilitate the deployment of wireless transmission equipment in rights-of-way, to provide advanced communication services to the city, its residents, businesses and community at large;

(7) To minimize the number of new poles in the rights-of-way and encourage the collocation of antenna arrays of more than one wireless communication service provider on a single pole;

(8) To ensure city regulations are applied consistently with federal and state telecommunications laws, rules, regulations, and controlling court decisions; and

(9) To provide regulations that are specifically not intended to, and shall not be interpreted or applied to: (a) prohibit or effectively prohibit the provision of wireless services, (b) unreasonably discriminate among functionally equivalent service providers, or (c) regulate wireless communication facilities and wireless transmission equipment on the basis of the environmental effects of radio frequency emissions to the extent that such emissions comply with the standards established by the Federal Communications Commission. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-126. Definitions

As used in this article, the following terms shall have the meanings set forth below:

Antenna is a WCF and means any exterior transmitting or receiving device mounted on a pole or structure and used in communications that sends or receives digital signals, analog signals, radio frequencies or wireless communication signals.

Antenna array is a WCF and means a single or group of antenna elements, not including small cells, and associated mounting hardware, transmission lines, or other appurtenances that share a common attachment device for the sole purpose of transmitting or receiving wireless communication signals.

Applicant means any person engaged in the business of providing wireless communication services or the wireless communication infrastructure required for wireless communication services and who submits an application pursuant to this article.

Application means the process by which an applicant submits a written request on a form provided by the city and indicates a desire to be granted a permit to utilize rights-of-way in the city. A complete application includes all written documentation, in whatever form or forum, made by an applicant to the city concerning the construction of wireless communication facilities; the wireless services proposed to be provided in the city by a provider; and any other matter pertaining to a proposed system or service.

Base station is a WCF and means a structure or equipment at a fixed location that enables city-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in this article or any equipment associated with a tower.

(1) The term includes, but is not limited to, equipment associated with wireless communication services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services, such as microwave backhaul.

(2) The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small cell networks).

(3) The term includes any structure other than a tower that, at the time the relevant application is filed with the city under this article, supports or houses equipment described in this section that has been reviewed and approved under the applicable zoning or siting process, or under state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.

(4) The term does not include any structure that, at the time the relevant application is filed with the state or the city under this article, does not support or house equipment described in this section.

Central business district means that area described as the central business district in section 37-145 of this code.

City means the city of Lewiston, Idaho.

Collocation means the mounting or installation of an antenna on an existing pole or structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.

Commercial zone means the following zoning districts within the city of Lewiston: the Local Commercial (C-1) Zone; the Tourist Commercial (C-2) Zone; the Community Commercial (C-3) Zone; the General Commercial (C-4) Zone; the Central Commercial (C-5) Zone, except that portion of the C-5 Zone located in the central business district; the Regional Commercial (C-6) Zone; the Light Industrial (M-1) Zone; the Heavy Industrial (M-2) Zone; the Planned Unit Development (PD) Zone, where commercial uses are allowed; the Port (P) Zone; and the Airport (A) Zone.

Distributed antenna system or DAS is a WCF and means a network consisting of transceiver equipment at a central hub site to support multiple antenna locations throughout the desired coverage area.

Eligible facilities request means any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving:

(1) Collocation of new transmission equipment;

(2) Removal of transmission equipment; or

(3) Replacement of transmission equipment.

Eligible support structure is a WCF and means any tower or base station as defined in this section; provided, that it is existing at the time the relevant application is filed with the city under this article.

Equipment cabinet means an enclosure that is either placed on a concrete slab, tower, or pole that contains a provider’s improvements and facilities to operate its antennas including, without limitation, radio receivers, transmitters, cables, utility lines, electrical meters, and any other equipment necessary for the operation of a wireless antenna.

Existing means a tower or base station that has been reviewed and approved under an applicable zoning or siting process, or under another state or local regulatory review process; provided, that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this definition.

FAA means the Federal Aviation Administration.

FCC means the Federal Communications Commission.

Historic district(s) means that historic district(s) described in Chapter 19.5 of this code.

Macro cell is a WCF and means a wireless communication facility that provides broad coverage (typically one (1) mile or greater) served by a high power cell site (tower, antenna or mast). Generally, macro cell antennas are mounted on ground-based towers and other existing structures, at a height that provides a clear view over the surrounding buildings and terrain. Macro cells typically cover large geographic areas with relatively high capacity and are capable of hosting multiple wireless service providers.

Mixed use zone means the following zoning districts within the city of Lewiston: the Bryden Avenue Special Planning Area A (BASPAA) Zone; the North Lewiston Mixed Use Development (MXD-NL) Zone; the Normal Hill Special Planning Area Mixed Use (NHMU) Zone; and the Planned Unit Development (PD) Zone, where commercial and residential uses are allowed.

Normal Hill Heritage Overlay Zone or NHHO means the NHHO zone described in Chapter 37, Article III of this code.

Operator means any person who provides service over a wireless communication system and directly or through one (1) or more persons owns a controlling interest in such system, or who otherwise controls or is responsible for the operation of such a system.

Person includes any individual, corporation, limited liability company, partnership, association, joint stock company, trust, or any other legal entity, but not the city.

Pole means a vertical structure in the right-of-way that typically supports utilities, cable television, telecommunications, or other types of facilities. A pole is a type of tower if it is constructed primarily for the purpose of supporting wireless communication facilities.

Protected areas mean all real property located in residential zones, within two hundred (200) feet of a residential zone, the central business district, the Normal Hill Heritage Overlay Zone, and all historic districts.

Provider means an operator, wireless infrastructure provider, or wireless services provider.

Public works director means the director of the public works department of the city of Lewiston and his/her designee(s).

Residential zone means the following zoning districts within the city of Lewiston: the Agricultural Transitional (F-2) Zone; the Suburban Residential (R-1) Zone; the Low Density Residential (R-2) Zone; the Low Density Residential (R-2A) Zone; the Medium Density Residential (R-3) Zone; the Higher Density Residential (R-4) Zone; the Bryden Avenue Special Planning Area B (BASPAB) Zone; the Normal Hill North (NHN) Zone; the Normal Hill South (NHS) Zone; and the Planned Unit Development (PD) Zone, where residential uses are allowed.

RF means radio frequency emissions at such levels as are determined by the FCC.

Rights-of-way or right-of-way means the same as defined or referenced in Chapter 31 of this code.

Site means the area in general proximity to a WCF.

Small cells and small wireless facilities mean facilities that meet the following conditions: (1) the facilities (a) are mounted on structures fifty (50) feet or less in height, including their antennas, or (b) are mounted on structures no more than ten (10) percent taller than other adjacent structures, or (c) do not extend existing structures on which they are located to a height of more than fifty (50) feet or by more than ten (10) percent, whichever is greater; (2) each antenna associated with the deployment, excluding associated antenna equipment, is no more than three (3) cubic feet in volume; (3) all other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure, is no more than twenty-eight (28) cubic feet in volume; (4) the facilities do not require antenna structure registration under federal law; (5) the facilities are not located on tribal land as defined under federal law; and (6) the facilities do not result in human exposure to radio frequency radiation in excess of the applicable safety standards specified under federal law.

Stealth design means a design that minimizes the visual impact of wireless communication facilities by camouflaging, disguising, screening or blending them into the surrounding environment. Examples of stealth design include, but are not limited to, WCFs disguised as trees (monopines), flagpoles, utility and light poles, bell towers, clock towers, ball field lights, and architecturally screened roof-mounted antennas.

Substantial change means a significant change to a WCF, as defined in the Code of Federal Regulations (Title 47, Part 1, Subpart U § 1.6100(b)(7), as amended from time to time).

Tower is a WCF and means any structure built for the sole or primary purpose of supporting any FCC licensed or authorized antenna arrays, antennas and their associated facilities, including structures that are constructed for wireless communication services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services, such as microwave backhaul, and the associated site.

Tower height means the vertical distance measured from the base of the building and including the tower structure to the highest point of the structure including the tower. A lightning rod, not to exceed ten (10) feet in height, shall not be included within tower height.

Transmission equipment is a WCF and means equipment that facilitates transmission for any FCC licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supplies. The term includes equipment associated with wireless communication services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services, such as microwave backhaul.

Utility support structure means utility poles or utility towers supporting electrical, telephone, cable, or other similar facilities.

Wireless communication facilities or WCF means equipment for the transmission or reception of: (1) radio frequency signals or other wireless communications; or (2) other signals for communications purposes. Such equipment may consist of, for example, antennas, antenna arrays, base stations, equipment cabinets, distributed antenna systems, macro cells, small cells, poles, towers, and transmission equipment.

Wireless infrastructure provider means a person, other than a wireless services provider, that builds or installs wireless communication transmission equipment, wireless facilities’ utility poles, or wireless support structures.

Wireless services provider means a person that provides wireless services. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-127. Applicability.

(a) Application to rights-of-way. The regulations set forth in this article shall apply to all WCFs located or proposed to be located within the rights-of-way. Wireless communication facilities regulations that apply to all other locations within the city of Lewiston are addressed in Chapter 37, Article XVII of this code.

(b) Exempt facilities. A government-owned WCF installed upon the declaration of a state of emergency by the federal, state, or local government, or a written determination of public necessity by the city is exempt from this article; except that such facility must comply with all federal and state requirements. The WCF shall be exempt from the provisions of this article for up to one (1) month after the duration of the state of emergency. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-128. General requirements.

(a) All WCFs in rights-of-way shall comply with the following regulations:

(1) Color. All WCFs shall be placed and colored to blend into their surroundings. The use of grays, blues, greens, dark bronze, browns or other site-specific colors may be appropriate; however, each case should be evaluated individually.

(2) Lighting. Security lighting for the equipment shelters or cabinets and other on-the-ground ancillary equipment is permitted, as long as it is appropriately down-shielded to keep light within the boundaries of the site.

(3) State or federal requirements. Towers and antennas must meet or exceed current standards and regulations of the FAA, the FCC, and any other agency of the state or federal government with the authority to regulate towers and antennas. Towers and antennas must comply with all applicable federal, state, and local laws, rules, and regulations.

(4) Permits. All WCFs shall be required to obtain permits in accordance with Chapter 10 of this code.

(5) Certificate of appropriateness and alternative use permits. All WCFs located in a historic district shall be required to obtain a certificate of appropriateness from the historic preservation commission so that the WCFs’ stealth design blends into the historic district in accordance with code requirements for new construction. All WCFs that are proposed to be located in a historic district shall be subject to the additional regulations governing those areas, including, but not limited to, securing a certificate of appropriateness when required. Additionally, all WCFs located in historic district(s) or the Normal Hill Heritage Overlay Zone shall be required to obtain an alternative use permit. The processes for obtaining a certificate of appropriateness and alternative use permit shall proceed simultaneously.

(6) Notice. When seeking an administrative permit or approval pursuant to this article, the applicant shall notify all surrounding property owners and utility providers located within three hundred (300) feet of the proposed location of the WCF. Notice shall also be provided to the Lewiston-Nez Perce County Regional Airport if the WCF is proposed to be installed within a three-mile radius of the center of the airport. Notice shall be provided not more than five (5) business days after the filing of an application and shall include, at a minimum: (a) a description, site plan, elevation drawing, and photo simulation of the proposed WCF; (b) an advisement that comments regarding the proposed WCF may be submitted to the public works department within fourteen (14) days; and (c) contact information for the public works department, including the physical address, mailing address, and phone number. The applicant shall, within five (5) business days of filing an application, provide a copy of such notice to the public works department, and a copy of such notice shall be forwarded to the building code official.

(7) Signs. A WCF shall not bear any signage or advertisement other than signage required by law or expressly required by the city.

(8) Visual impact. All WCFs, except for those located in the commercial and mixed use zones, shall be sited and designed in rights-of-way to minimize adverse visual impacts on surrounding properties and the traveling public to the greatest extent reasonably possible, consistent with the proper functioning of the WCF. Such WCFs and equipment enclosures shall be integrated through location and design to blend in with the existing characteristics of the site. Such WCFs shall also be designed to either resemble the surrounding landscape and other natural features where located in proximity to natural surroundings, or be compatible with the built environment, through matching and complementary existing structures and specific design considerations, such as architectural designs, height, scale, color, and texture, or be consistent with other uses and improvements permitted in the relevant zone.

(9) Use of stealth design. Stealth design is required as provided in Table 1 of section 31-131 of this code, and concealment techniques must be appropriate, given the proposed location, design, visual environment, and nearby uses, structures, and natural features. Stealth design shall be designed and constructed to substantially conform to surrounding building designs or natural settings, so as to be visually unobtrusive.

(10) Installation in rights-of-way. Installation of any WCF in rights-of-way requires a duly executed written agreement with the city prior to installation. The public works director shall have the authority to approve all such written agreements.

(11) Utility support structure or pole-mounted equipment. All transmission equipment mounted on a utility support structure or pole shall be mounted as close as possible to the structure or pole so as to reduce the overall visual profile to the maximum extent feasible in accordance with safety standards.

(12) Collocation encouraged. A written statement shall be provided demonstrating the applicant’s willingness to allow transmission equipment owned by others to collocate with the proposed wireless communication facility whenever technically and economically feasible and aesthetically desirable. The city desires that providers collocate onto existing or replacement poles in lieu of placing multiple poles in close proximity to one another.

(13) Accessory equipment. All accessory equipment located at the base of a WCF shall be located or placed (at the applicant’s choice) underground or in an equipment shelter or cabinet that is: (a) designed to blend in with existing surroundings, using architecturally compatible construction and colors; and (b) located so as to be as unobtrusive as possible, consistent with the proper functioning of the WCF.

(14) Compliance report. A written report shall be prepared, signed, and sealed by an Idaho-licensed professional engineer or another person with demonstrated expertise in the field of RF engineering. Such report shall assess whether the proposed WCF (whether it be new or replacement equipment) demonstrates compliance with the RF emissions limits established by the FCC. Such report shall be submitted with a permit application.

(15) Setback requirements. WCFs shall be set back from travel lanes as determined by the public works director. The public works director shall use the Manual on Uniform Traffic Control Devices (MUTCD) as a guide in determining the setback requirements for WCFs.

(b) Site design flexibility. Individual WCF sites in rights-of-way vary in the location of adjacent buildings, existing trees, topography, and other local variables. By mandating certain design standards, there may result a project that could have been less intrusive if the location of the various elements of the project could have been placed in more appropriate locations within a given site. Therefore, the WCF and supporting equipment may be installed so as to best camouflage, disguise, or conceal them, to make the WCF more closely compatible with and blend into the setting or host structure, upon approval from the public works director. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-129. Antenna arrays.

(a) Unless an alternative use permit is obtained, antenna arrays shall not be permitted: (1) in residential zones, (2) on signs, (3) in historic districts, or (4) in the Normal Hill Heritage Overlay Zone.

(b) Subject to subsection (a) of this section, antenna arrays are permitted if located on an existing structure such that they do not extend more than fifteen (15) feet above said structure. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-130. Distributed antenna systems and small cells.

(a) Distributed antenna systems and small cells are allowed in all zones, provided the applicant complies with all federal and state laws and requirements and structural industry standards.

(b) Distributed antenna systems and small cells are subject to approval via permits and administrative review unless their installation requires the construction of a pole that exceeds the height limitation set forth in Table 1 of section 31-131 of this code. If the height limitation is exceeded, a waiver pursuant to section 31-133 of this code shall be required. A waiver shall not be required for replacement utility support structures, so long as the height of a replacement structure, including antennas, does not exceed the height of the existing structure. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-131. Towers and poles.

(a) New towers and poles. New towers and poles shall be subject to the general requirements set forth in section 31-128 of this code. Additionally, new tower and pole locations shall meet all requirements of the Americans with Disabilities Act, as amended, and not interfere with sight distance triangle or approaches.

(b) Height restrictions and stealth design. New towers and poles shall be subject to the height restrictions and stealth design requirements set forth below in Table 1. If an applicant desires to exceed the maximum height restrictions set forth in Table 1, then the applicant shall be required to apply for a waiver pursuant to section 31-133 of this code.

Table 1

Height Restrictions

Zone

Maximum Height

Stealth Design

Residential Zones

40 feet

Required[1]

Central Business District

40 feet

Required[1]

Normal Hill Heritage Overlay

40 feet

Required[2]

Historic District(s)

40 feet

Required[2]

Commercial Zones

120 feet[3]

Optional[1]

Mixed Use Zones

90 feet[3]

Optional[1]

[1] Stealth design is subject to approval by the public works director and must comply with the general requirements set forth in section 31-128 of this code.

[2] Stealth design is subject to approval by the historic preservation commission and must comply with the general requirements set forth in section 31-128 of this code.

[3] Up to an additional thirty (30) feet in height is allowed if applicant uses stealth design.

(c) Preferred macro cell tower locations. The following siting priorities for macro cell towers, ordered from most-preferred (1) to least-preferred (7), are as follows and require an alternative sites analysis, as set forth in subsection (e) of this section:

(1) City-owned property and facilities, except those in protected areas, and not including rights-of-way;

(2) Commercial zones, except the central business district;

(3) Mixed use zones;

(4) Rights-of-way in nonresidential zones;

(5) City-owned property and facilities in protected areas, but not including rights-of-way;

(6) Other parcels of land in protected areas, but not including rights-of-way;

(7) Rights-of-way in protected areas.

(d) Macro cell towers in protected areas. Macro cell towers in the rights-of-way in protected areas are permitted only upon the issuance of an alternative use permit.

(e) Alternative sites for macro cell towers.

(1) Analysis.

a. For proposed macro cell towers, the applicant must address the city’s preferred macro cell tower locations with a detailed explanation justifying why a site of higher priority was not selected. The city’s macro cell tower location preferences must be addressed in a clear and complete written alternative sites analysis that shows at least three (3) higher ranked, alternative sites considered that are in the geographic range of the service coverage objectives of the applicant, together with a factually detailed and meaningful comparative analysis between each alternative site and the proposed site that explains the substantive reasons why the applicant rejected each alternative site.

b. A complete alternative sites analysis provided under this subsection may include fewer than three (3) alternative sites so long as the applicant provides a factually detailed written rationale for why it could not identify at least three (3) potentially available, higher ranked, alternative sites.

c. For purposes of disqualifying potential collocations or alternative sites for the failure to meet the applicant’s service coverage or capacity objectives, the applicant shall provide: (1) a description of its objective, whether it be to address a deficiency in coverage or capacity; (2) detailed maps or other exhibits with clear and concise RF data to illustrate that the objective is not met using the alternative site (whether it be collocation or a more preferred location); and (3) a description of why the alternative site (collocation or a more preferred location) does not meet the objective.

d. An applicant must apply for and be granted an alternative use permit in order to locate a macro cell tower at an alternative site.

(2) Documentation. The following materials shall be submitted with an alternative sites analysis:

a. A copy of the applicant’s FCC license or registration.

b. A color visual analysis that includes to-scale visual simulations that show unobstructed before- and after-construction daytime and clear-weather views from at least four (4) angles, together with a map that shows the location of each view, including all equipment and ground wires.

c. A written analysis that explains how the proposed design complies with the applicable design standards under this article to the maximum extent feasible. A complete design justification must identify all applicable design standards under this article and provide a factually detailed reason why the proposed design either complies or cannot feasibly comply.

d. A noise study for the proposed macro cell tower and all associated equipment.

e. A scaled site plan clearly indicating the location, type, height, and width of the proposed macro cell tower; on-site improvements; land uses and zoning; adjacent land uses and zoning (including when adjacent to the county); separation distances from a macro cell tower to property lines; adjacent roadways; buildings on adjoining properties; photo simulations; a depiction of all proposed transmission equipment; proposed means of access; setbacks from property lines; elevation drawings or renderings of the proposed macro cell tower; topography, utility runs, or other information deemed by the public works department to be necessary to assess compliance with this article.

f. An inventory of the applicant’s existing towers and antennas and sites approved for towers or antennas that are either within the jurisdiction of the city or within one (1) mile of the border thereof, including specific information about the location, height, and design of each tower and antenna. The public works department may share such information with other applicants applying for administrative approvals or alternative use permits under this article or other organizations seeking to locate macro cell towers within the jurisdiction of the city; provided, however, that the public works department is not, by sharing such information, in any way representing or warranting that such sites are available or suitable.

g. An updated site plan or map showing the separation distance from other macro cell towers and antennas that are described in the inventory of existing sites. The applicant shall also identify the type of construction of the existing macro cell towers and antennas and the owner/operator of the existing macro cell towers and antennas, if known.

h. A description of compliance with all applicable federal, state, and local laws.

i. A written statement of purpose, which shall minimally include: (1) a description of the objective to be achieved; (2) a to-scale map that identifies the proposed site location and the targeted service area to be benefited by the proposed project; and (3) full-color signal propagation maps with objective units of signal strength measurement that show the applicant’s current service coverage levels from all adjacent sites without the proposed site, predicted service coverage levels from all adjacent sites with the proposed site, and predicted service coverage levels from the proposed site without all adjacent sites. These materials shall be reviewed, signed, and sealed by an Idaho-licensed professional engineer.

(f) Separation requirements for macro cell towers. No macro cell tower may be constructed within one-half (1/2) mile of an existing macro cell tower unless a waiver is obtained pursuant to section 31-133 of this code or through an alternative use permit pursuant to section 31-132 of this code waiving or modifying this separation standard, and the applicant can demonstrate that: (1) an existing macro cell tower is not available or feasible for collocation of an additional wireless communication facility; (2) the location of the existing macro cell tower does not satisfy the operational requirements of the applicant; or (3) another departure from this standard is needed. Factors to be considered in determining whether an applicant has made this demonstration include those listed in section 31-132(g) of this code. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-132. Alternative use permits.

(a) Applicability. This section shall apply only to alternative use permits required by this article and shall have no applicability to Chapter 37 of this code.

(b) Application and fee. A request for an alternative use permit shall be made in writing on a form provided by the city. A request will not be processed until the application is completed in its entirety and the application fee, as set by resolution of the city council, is paid in full.

(c) Public comment required. Before the public works director shall act upon a request for an alternative use permit, the public works director shall solicit comments from the public in accordance with this section.

(d) Notice content. Each notice of a public comment period shall include, at a minimum: (1) a summary of the proposed action necessitating an alternative use permit; (2) a statement that additional information regarding the proposed action is available at the public works department for review by the public; (3) a statement that written comments may be submitted to the public works department via mail, hand delivery, email, and such other methods deemed appropriate by the public works director, if any; (4) the date by which written comments must be received by the public works director; and (5) the address and phone number of the public works department and the email address of the public works director.

(e) Notice required. At least fifteen (15) calendar days prior to the end date of the public comment period, notice of the public comment period shall be published in a newspaper of general circulation in the city and mailed to the owners of all properties within three hundred (300) feet of the proposed WCF.

(1) Public announcements in lieu of mailed notice. When notice is required to two hundred (200) or more property owners, mailed notice may be omitted. In lieu thereof, public announcements of the public comment period shall be made on local radio and television stations at least fifteen (15) calendar days prior to the end date of the public comment period.

(2) Failure to receive notice. Failure of any property owner to receive the notice prescribed in this section shall not impair the validity of the public comment period.

(f) Written response. Within five (5) calendar days of the end of the public comment period, the public works director shall provide copies of all written comments received during the public comment period to the applicant. The applicant shall be allowed at least five (5) calendar days to provide a written response to the comments to the public works director.

(g) Factors. In applying for an alternative use permit, the applicant shall address and the public works director shall consider the following factors. The public works director may waive or reduce the burden on the applicant of one (1) or more of these factors if the public works director concludes that the purposes of this article are, nevertheless, served thereby.

(1) Whether the proposed WCF meets the other applicable provisions of this article.

(2) Surrounding topography, trees, buildings and antennas that would impair RF signals.

(3) Proximity of the WCF to residential structures and residential zone boundaries and whether the WCF impairs the view shed.

(4) Proximity of the WCF to structures in historic district(s) or in the Normal Hill Heritage Overlay Zone so as to impair visual aesthetics.

(5) Nature of uses on adjacent and nearby properties and compatibility with those uses.

(6) Design of the WCF, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness.

(7) Whether existing towers or structures are available and located within the geographic area that meets the applicant’s service coverage and structural requirements.

(8) Whether existing towers or structures have sufficient structural strength to support applicant’s proposed WCF and related equipment.

(9) Whether the applicant demonstrates that there are other limiting factors not enumerated herein that render existing towers and structures unsuitable.

(10) Whether the WCF will be within the RF emission limits allowed by the FCC. The applicant shall provide documentation from an expert regarding this requirement.

(11) Whether the applicant’s proposed WCF would interfere with city communications equipment and/or frequency space.

(12) Whether the WCF will comply with applicable federal, state, and local laws, orders, rules, and regulations, including, but not limited to, those of the FAA and FCC.

(h) Contents of decision. The decision by the public works director to approve, approve with conditions, or deny an application for an alternative use permit shall be in writing and include, at a minimum: (1) the reasons for such decision; (2) a notice of the right to appeal, as set forth in this section; and (3) the date on which the decision was rendered. If the decision is to deny the alternative use permit, then the public works director shall also include in the decision the actions, if any, the applicant could take to obtain an alternative use permit.

(i) Decision. Within five (5) business days of the public works director’s receipt of the applicant’s written response, the public works director shall provide the applicant with a copy of the public works director’s written decision, and such decision shall be available for public inspection at the public works department. Such decision shall be final, unless appealed in accordance with this section.

(j) Appeal. The public works director’s decision regarding an application for an alternative use permit may be appealed to the city manager by the applicant or any property owner entitled to notice by mail pursuant to this section on a form provided by the city. Written notice of the appeal shall be filed with the appeal fee, set by resolution of the city council, and paid to the city clerk within fifteen (15) calendar days from the date of the public works director’s written decision. The notice of appeal shall specify the grounds for appeal.

The city manager shall hold a hearing on the appeal within ten (10) calendar days of receipt of the notice of appeal. The applicant shall have the right to be represented by legal counsel at the hearing and rebut any evidence that might be submitted. The formal rules of evidence shall not apply during the hearing. The city manager’s review of the public works director’s decision shall be de novo. The city manager shall issue a written decision within seven (7) calendar days after the hearing, and such decision shall be final. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-133. Waiver to standards.

(a) Applicability. No WCF shall be developed or modified contrary to any applicable development standard set forth in this article unless a waiver has been granted pursuant to this section or through an alternative use permit waiving or modifying a development standard.

(b) Application and fee. A request for a waiver shall be made in writing on a form provided by the city. A request will not be processed until the application is completed in its entirety and the application fee, as set by resolution of the city council, is paid in full.

(c) Notice and procedure. A waiver to an applicable WCF development standard shall require approval by the public works director. The notice and procedural requirements set forth in this article for alternative use permits shall apply to waivers sought pursuant to this section, including the procedures and timelines for notices, written responses, contents of the public works director’s decision, and appeals, and the requirement for payment of an appeal fee, as set by resolution of the city council.

(d) Submittal requirements. In applying for a waiver to a development standard, the applicant shall address and the public works director shall consider the following items. The public works director may waive or reduce the burden on the applicant of one (1) or more of these items if the public works director concludes that the purposes of this article are, nevertheless, served thereby.

(1) A description of the requested waiver.

(2) A written statement demonstrating how the waiver would not contradict or conflict with the purposes of this article.

(3) A site plan that includes:

a. Description of the proposed WCF’s design and dimensions, as it would appear with and without the waiver.

b. Elevations showing all components of the WCF, as it would appear with and without the waiver.

c. Color simulations of the WCF after construction, demonstrating compatibility with the vicinity, as it would appear with and without the waiver.

(4) An explanation that demonstrates the following:

a. The WCF development standard materially limits or inhibits the ability of the provider to compete in a fair and balanced legal and regulatory environment;

b. The problem can only be resolved by a waiver to one (1) or more of the standards in this article;

c. The waiver is narrowly tailored such that the WCF conforms to this article’s standards to the greatest extent possible; and

d. The impact on development standards, such as height requirements. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-134. Independent technical and other review.

(a) Although the city intends for city staff to review applications to the extent feasible, the city may retain the services of an independent technical expert and other consultants of its choice to provide technical and other evaluations of permit applications for WCFs. The third-party experts shall have recognized training or qualifications in their fields of radio frequency engineering or wireless communication facilities regulations.

(b) The expert’s review may include, but is not limited to: (1) the accuracy and completeness of the items submitted with the application; (2) the applicability of analysis and techniques and methodologies proposed by the applicant; (3) the validity of conclusions reached by the applicant; (4) whether the proposed WCF complies with the applicable approval criteria set forth in this article; and (5) an evaluation of the functionality of the equipment after addition or replacement.

(c) The applicant shall pay the cost for any independent consultant fees through a deposit, estimated by the city, within ten (10) days of the city’s request. When the city requests such payment, the application shall be deemed incomplete for purposes of application-processing timelines until the deposit is received. In the event that such costs and fees do not exceed the deposit amount, the city shall refund any unused portion within thirty (30) days after the final permit is released or, if no final permit is released, within thirty (30) days after the city receives a written request from the applicant. If the costs and fees exceed the deposit amount, then the applicant shall pay the difference to the city before the permit is issued. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-135. Final inspection.

A certificate of completion shall only be granted upon satisfactory evidence that the WCF was installed in substantial compliance with the approved plans and photo simulations. If it is found that the WCF installation does not substantially comply with the approved plans and photo simulations, the applicant shall make any and all changes required to bring the WCF installation into compliance promptly and, in any event, prior to putting the WCF in operation. If the WCF is not brought into substantial compliance within thirty (30) days of notice of noncompliance by the city, the applicant shall remove the noncompliant components. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-136. Compliance.

(a) All WCFs shall comply with all standards and regulations of the FCC and FAA and any state or other federal government agency with the authority to regulate wireless communication facilities.

(b) The site and WCFs, including all related transmission equipment, shall be maintained at all times in a neat and clean manner and in accordance with all approved plans.

(c) All graffiti on WCFs shall be removed at the sole expense of the permittee after notification by the city to the owner/operator of the WCF.

(d) If any FCC or FAA, state, or other governmental license or any other governmental approval to provide communication services is revoked as to any site permitted or authorized by the city, the permittee shall inform the city of the revocation within thirty (30) days of receiving notice of such revocation and cease using the site. The owner of the WCF shall also be subject to the removal provisions of section 31-137 of this code. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-137. Removal of abandoned WCFs.

(a) Any WCF that is not operated for a continuous period of twelve (12) months shall be considered abandoned, and the owner of such WCF shall so notify the city in writing and remove the same within ninety (90) days of giving notice to the city of such abandonment. Failure to remove an abandoned WCF within said ninety (90) days shall be grounds to remove the WCF at the owner’s expense, including all costs and attorneys’ fees.

(b) The city may contact the owner of the WCF to make a determination as to whether such WCF is abandoned. If the owner of such WCF does not respond within ninety (90) days, the city may remove the WCF (including its foundation) at the owner’s expense, including all costs and attorneys’ fees associated with such removal. Such notice by the city shall be by certified mail, return receipt requested, or posted on or near the WCF for fifteen (15) days, or both.

(c) If there are two (2) or more users of a WCF, then this section shall not become effective until all users cease using the WCF. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-138. Indemnification.

Each permit issued for a WCF shall be deemed to have as a condition of the permit a requirement that the applicant defend, indemnify, and hold harmless the city and its officers, agents, employees, volunteers, and contractors from any and all liability, damages, or charges (including attorneys’ fees and expenses) arising out of claims, suits, demands, or causes of action as a result of the permit process, a granted permit, construction, location, performance, operation, maintenance, repair, installation, replacement, removal, or restoration of the WCF. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-139. Eligible facilities modification request.

(a) Purpose. This section implements Section 6409(a) of the Spectrum Act (47 U.S.C. Section 1455(a)), as it may be amended from time to time and as interpreted by the FCC in its Report and Order No. 14-153 and Declaratory Ruling and Third Report and Order released September 27, 2018, which requires a state or local government to approve any eligible facilities request for a modification of an existing tower or base station that does not result in a substantial change to the physical dimensions of such tower or base station. Eligible facilities requests shall be governed solely by the provisions in this section and federal law.

(b) Application review.

(1) Application. The public works department shall prepare and make publicly available an application form, which form shall be used by the applicant. No information may be required from an applicant for any documentation intended to illustrate the need for any such wireless facilities or to justify the business decision to modify such wireless facilities.

(2) Review. Upon submission of an application for an eligible facilities request pursuant to this section, the public works department shall, within sixty (60) days (subject to the tolling provisions set forth below), review such application, make its final decision to approve or deny the application, and advise the applicant in writing of its final decision.

(3) Tolling of the time frame for review. The 60-day review period begins to run when the application is filed, and may be tolled only by mutual agreement between the public works department and the applicant, or in cases where the public works department determines that the application is incomplete.

a. To toll the time frame for incompleteness, the public works department must provide written notice to the applicant within thirty (30) days of receipt of the application, specifically delineating all missing documents or information required in the application.

b. The time frame for review begins running again when the applicant makes a supplemental submission in response to the public works department’s notice of incompleteness.

c. Following a supplemental submission, the public works department shall have ten (10) days to notify the applicant if the supplemental submission did not provide the information identified in the original notice delineating missing information. The time frame is tolled in the case of second or subsequent notices, pursuant to the procedures identified in this section. Second or subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.

(4) Failure to act. In the event the public works department fails to approve or deny a complete application under this section within the time frame for review (accounting for any tolling), the request shall be deemed granted, provided the applicant notifies the public works department in writing after the review period has expired.

(c) Change in federal law. If federal law changes regarding an application for an eligible facilities request, then this section shall be deemed amended to comply with federal law without further action by the city. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-140. Small wireless facilities – Collocation on existing structures.

(a) Purpose. This section implements a shot clock that is contained in the FCC’s Declaratory Ruling and Third Report and Order released September 27, 2018, regarding the collocation of small wireless facilities on existing structures.

(b) Application review.

(1) Application. The public works department shall prepare and make publicly available an application form, which form shall be used by the applicant.

(2) Review. Upon submission of an application for collocation of small wireless facilities on an existing structure pursuant to this section, the public works department shall, within sixty (60) days (subject to resetting of the shot clock and the tolling provisions set forth below), review such application, make its final decision to approve or deny the application, and advise the applicant in writing of its final decision.

(3) Tolling of the time frame for review. The 60-day review period begins to run when the application is filed. The public works department shall notify the applicant in writing within ten (10) days as to whether the application is incomplete. Upon resubmission by the applicant, a new 60-day shot clock shall commence, and the public works department shall have ten (10) days to notify the applicant again of an incomplete application. The shot clock may be tolled only by mutual agreement between the public works department and the applicant, or in cases where the public works department determines upon a resubmission that the application is incomplete.

a. The time frame is tolled in the case of subsequent notices, pursuant to the procedures identified in this section. Subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.

(4) Failure to act. In the event the public works department fails to approve or deny a complete application under this section within the time frame for review (accounting for resetting the shot clock once or any tolling), the applicant may pursue judicial relief.

(c) Change in federal law. If federal law changes regarding an application for the collocation of small wireless facilities on an existing structure, then this section shall be deemed amended to comply with federal law without further action by the city. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-141. Small wireless facilities – New construction (new builds).

(a) Purpose. This section implements a shot clock that is contained in the FCC’s Declaratory Ruling and Third Report and Order released September 27, 2018, regarding the construction of small wireless facilities on a new structure.

(b) Application review.

(1) Application. The public works department shall prepare and make publicly available an application form, which form shall be used by the applicant.

(2) Review. Upon submission of an application for the construction of small wireless facilities on a new structure pursuant to this section, the public works department shall, within ninety (90) days (subject to resetting of the shot clock and the tolling provisions set forth below), review such application, make its final decision to approve or deny the application, and advise the applicant in writing of its final decision.

(3) Tolling of the time frame for review. The 90-day review period begins to run when the application is filed. The public works department shall notify the applicant in writing within ten (10) days as to whether the application is incomplete. Upon resubmission by the applicant, a new 90-day shot clock shall commence, and the public works department shall have ten (10) days to notify the applicant again of an incomplete application. The shot clock may be tolled only by mutual agreement between the public works department and the applicant, or in cases where the public works department determines upon a resubmission that the application is incomplete.

a. The time frame is tolled in the case of subsequent notices pursuant to the procedures identified in this section. Subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.

(4) Failure to act. In the event the public works department fails to approve or deny a complete application under this section within the time frame for review (accounting for resetting the shot clock once or any tolling), the applicant may pursue judicial relief.

(c) Change in federal law. If federal law changes regarding an application for the construction of small wireless facilities on a new structure, then this section shall be deemed amended to comply with federal law without further action by the city. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-142. Collocation applications for other than small wireless facilities.

(a) Purpose. This section implements, in part, 47 U.S.C. Section 332(c)(7) of the Federal Communications Act of 1934, as it may be amended from time to time and as interpreted by the FCC in its Report and Order No. 14-153 and Declaratory Ruling and Third Report and Order released September 27, 2018. Except when a shorter time frame is otherwise required under this article, the following time frames apply to applications for collocation for other than small wireless facilities.

(b) Application review.

(1) Application. The public works department shall prepare and make publicly available an application form, which shall be used by the applicant.

(2) Review. Upon receipt of an application for a collocation request pursuant to this section, the public works department shall, within ninety (90) days (subject to the tolling provisions set forth below), review such application, make its final decision to approve or deny the application, and advise the applicant in writing of its final decision.

(3) Tolling of the time frame for review. The 90-day review period begins to run when the application is filed, and may be tolled only by mutual agreement between the public works department and the applicant, or in cases where the public works department determines that the application is incomplete.

a. To toll the time frame for incompleteness, the public works department must provide written notice to the applicant within thirty (30) days of receipt of the application, specifically delineating all missing documents or information required in the application.

b. The time frame for review begins running again when the applicant makes a supplemental submission in response to the public works department’s notice of incompleteness.

c. Following a supplemental submission, the public works department shall notify the applicant within ten (10) days if the supplemental submission did not provide the information identified in the original notice delineating missing information. The time frame is tolled in the case of second or subsequent notices pursuant to the procedures identified in this section. Second or subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.

(4) Failure to act. In the event the public works department fails to approve or deny a complete application under this section within the time frame for review (accounting for any tolling), the applicant may pursue judicial relief.

(c) Change in federal law. If federal law changes regarding applications for collocation for other than small wireless facilities, this section shall be deemed amended to comply with federal law without further action by the city. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-143. New macro cell tower applications.

(a) Purpose. This section also implements, in part, 47 U.S.C. Section 332(c)(7) of the Federal Communications Act of 1934, as it may be amended from time to time and as interpreted by the FCC in its Report and Order No. 14-153 and Declaratory Ruling and Third Report and Order released September 27, 2018.

(b) Application review.

(1) Application. The public works department shall prepare and make publicly available an application form, which shall be used by the applicant.

(2) Review. Upon receipt of an application for a request for a new macro cell tower pursuant to this section, the public works director shall review the application and make a recommendation to the city council. The city council shall render a decision within one hundred fifty (150) days of the filing of the application (subject to the tolling provisions set forth below) and notify the applicant in writing of its final decision. If the application is approved, any associated permit shall be issued and a master license agreement negotiated within the 150-day time period.

(3) Tolling of the time frame for review. The 150-day review period begins to run when the application is filed, and may be tolled only by mutual agreement between the public works department and the applicant, or in cases where the public works department determines that the application is incomplete.

a. To toll the time frame for incompleteness, the public works department must provide written notice to the applicant within thirty (30) days of receipt of the application, specifically delineating all missing documents or information required in the application.

b. The time frame for review begins running again when the applicant makes a supplemental submission in response to the public works department’s notice of incompleteness.

c. Following a supplemental submission, the public works department shall notify the applicant within ten (10) days if the supplemental submission did not provide the information identified in the original notice delineating missing information. The time frame is tolled in the case of second or subsequent notices pursuant to the procedures identified in this section. Second or subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.

(4) Failure to act. In the event the city council fails to approve or deny a complete application under this section within the time frame for review (accounting for any tolling), the applicant may pursue judicial relief.

(c) Change in federal law. If federal law changes regarding applications for a new macro cell tower, this section shall be deemed amended to comply with federal law without further action by the city. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-144. Fees.

In connection with the filing of an application pursuant to this article, the applicant or provider shall pay all applicable fees, as set by resolution of the city council. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-145. Laws, rules, and regulations.

This article shall be subject to all applicable laws, rules, and regulations. (Ord. No. 4745, § 1, 9-23-19)

Sec. 31-146. Severability.

The various parts, sentences, paragraphs, sections, and clauses of this article are hereby declared to be severable. If any part, sentence, paragraph, section or clause is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this article shall not be affected thereby. (Ord. No. 4745, § 1, 9-23-19)


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Editor’s note – Ord. No. 3726, §§ § 1, 2, adopted Oct. 22, 1984, repealed former Ch. 31, relative to streets and sidewalks, and enacted in lieu thereof a new Ch. 31 as herein set out. Former Ch. 31 was derived from the 1960 Code, §§ 2-17, 2-18, 31-1 – 31-12, 31-14, 31-16 – 31-16.9, 31-17 – 31-38, 31-41 – 31-52, and Ord. Nos. 2323, 2506, 2550, 2642, 2853, 2861, 3120, 3429, 3399, 3576, and 3656.

Cross references – Buildings and building regulations, Ch. 10; electricity, Ch. 14; manufactured homes, manufactured home parks and tourist facilities, Ch. 23; signs, Ch. 30; subdivisions, Ch. 32; traffic, Ch. 35; water and sewers, Ch. 36; zoning, Ch. 37.