Chapter 12.17


12.17.010    Definitions.

12.17.020    Purpose.

12.17.030    Scope.

12.17.040    Repealed.

12.17.050    Administration.

12.17.060    Application.

12.17.070    General standards.

12.17.080    Application processing, refusal to issue, revocation, and appeal.

12.17.090    Expiration, removal, and failure to obtain permit.

12.17.100    Penalty.

12.17.110    Repealed.

12.17.120    Repealed.

12.17.130    Repealed.

12.17.010 Definitions.

For the purposes of this chapter, the terms below shall have the following meanings:

“Antenna” means the same as in 47 CFR 1.1320, which is an apparatus designed for the purpose of emitting radiofrequency (RF) radiation to be operated or operating from a fixed location pursuant to FCC authorization for the transmission of writing, signs, signals, data, images, pictures, and sounds of all kinds, including the transmitting device and any on-site equipment, switches, wiring, cabling, power sources, shelters, or cabinets associated with that antenna and added to a tower, structure, or building as part of the original installation of the antenna. Antenna does not include unintentional radiators, mobile stations, or devices authorized under 47 CFR Part 15.

“Applicant” means a person filing an application for placement or modification of a wireless telecommunications facility in the right-of-way.

“Application” means a formal request, including all required and requested documentation and information, submitted by an applicant to the city of Brookfield for a wireless permit.

“Base station” means the same as in 47 CFR 1.6100(b)(1), which defines the term to mean a structure or wireless telecommunications equipment at a fixed location that enables FCC-licensed or FCC-authorized wireless communications between user equipment and a communications network. This definition does not include towers.

“City” means the city of Brookfield.

“City engineer” means the city engineer or his or her designee.

“Collocation” means the same as in 47 CFR 1.6002(g), which defines the term as mounting or installing an antenna facility on a preexisting structure; and/or modifying a structure for the purpose of mounting or installing an antenna facility on that structure; and 47 CFR 1.6100(b)(2), which defines the term as the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.

“Eligible facilities request” means the same as in 47 CFR 1.6100(b)(3), which defines the term to mean 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 collocation of new transmission equipment; removal of transmission equipment; or replacement of transmission equipment.

“FCC” means the Federal Communications Commission.

“Permittee” means a person issued a wireless permit under this chapter.

“Person” means any person, firm, entity, organization, or corporation.

“Right-of-way” means the surface of, and the space above and below, the entire width of an improved or unimproved public roadway, highway, street, bicycle lane, landscape terrace, shoulder, side slope, and public sidewalk over which the city of Brookfield exercises any rights of management and control or in which the city of Brookfield has an interest.

“Shot clock” means the time frame for a municipality to act on an application under this chapter as set forth in 47 CFR 1.6003 and 47 CFR 1.6100(C)(2).

“Small wireless facility,” consistent with 47 CFR 1.6002(l), means a facility that meets each of the following conditions:

A.    The structure on which antenna facilities are mounted:

1.    Is fifty (50) feet or less in height, or

2.    Is no more than ten percent taller than other adjacent structures, or

3.    Is not extended to a height of more than fifty (50) feet or by more than ten percent above its preexisting height, whichever is greater, as a result of the collocation of new antenna facilities;

B.    Each antenna, excluding associated antenna equipment, is no more than three cubic feet in volume;

C.    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 cumulatively no more than twenty-eight (28) cubic feet in volume;

D.    The facility does not require antenna structure registration; and

E.    The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified by federal law.

“Support structure” means any structure capable of supporting wireless telecommunications equipment.

“Tower” means the same as in 47 CFR 1.6100(b)(9), which defines the term as any structure built for the sole or primary purpose of supporting any FCC-licensed or FCC-authorized antennas and their associated facilities, including structures that are constructed for wireless communications 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. This definition does not include utility poles.

“Underground areas” means those areas where there are no electrical facilities or facilities of the incumbent local exchange carrier in the right-of-way; or where the wires associated with the same are or are required to be located underground; or where the same are scheduled to be converted from overhead to underground. Electrical facilities are distribution facilities owned by an electric utility and do not include transmission facilities used or intended to be used to transmit electricity at nominal voltages more than thirty-five thousand (35,000) volts.

“Utility pole” means a structure in the right-of-way designed to support electric, telephone, and similar utility distribution lines and associated equipment. A tower is not a utility pole.

“Wireless infrastructure provider” means a person that owns, controls, operates, or manages a wireless telecommunications facility or portion thereof within the right-of-way.

“Wireless permit” means a permit issued pursuant to this chapter and authorizing the placement or modification of a wireless telecommunications facility of a design specified in the permit at a particular location within the right-of-way, and the modification of any existing support structure to which the wireless telecommunications facility is proposed to be attached.

“Wireless service provider” means an entity that provides wireless services to end users.

“Wireless telecommunications equipment” means equipment at a fixed location that enables FCC-licensed or FCC-authorized wireless communications between user equipment and a communications network.

“Wireless telecommunications facility” means a facility at a fixed location in the right-of-way consisting of a base station, antennas and other accessory equipment, and a tower and underground wiring, if any, associated with the base station.

Definitions in this chapter may contain quotations or citations to 47 CFR 1.6002 and 1.6100. In the event that any referenced section is amended, creating a conflict between the definition as set forth in this chapter and the amended language of the referenced section, the definition in the referenced section, as amended, shall control. (Ord. 2564-19 § 11, 2019; Ord. 2555-19 § 1 (part), 2019)

12.17.020 Purpose.

In the exercise of its police powers, the city has priority over all other uses of the right-of-way. The purpose of this chapter is to provide the city with a process for managing and uniform standards for acting upon requests for the placement of wireless telecommunications facilities within the right-of-way, city-owned property, and land in which the city has an easement interest consistent with the city’s obligation to promote the public health, safety, and welfare; to manage the right-of-way, its property, and utilities; and to ensure that the public’s use is not obstructed or incommoded by the use of the right-of-way, city property, and land in which the city has an easement interest for the placement of wireless telecommunications facilities. The city recognizes the importance of wireless telecommunications facilities to provide high-quality communications and internet access services to residents and businesses within the city. The city also recognizes its obligation to comply with applicable federal and state laws regarding the placement of wireless telecommunications facilities in the right-of-way including, without limitation, the Telecommunications Act of 1996 (47 U.S.C. 151 et seq.), Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Sections 66.0404(4e), 66.0414, 182.017 and 196.58, Wisconsin Statutes, and this chapter shall be interpreted consistent with those provisions. (Ord. 2592-20 § 3: Ord. 2555-19 § 1 (part), 2019)

12.17.030 Scope.

A.    Applicability. Unless exempted by subsection (B) of this section, every person who wishes to place a wireless telecommunications facility in the right-of-way, on city-owned property, or land in which the city has an easement interest or modify an existing wireless telecommunications facility in the right-of-way, on city-owned property, or land in which the city has an easement interest must obtain a wireless permit under this chapter. For city-owned property, a person who wishes to place a wireless telecommunications facility on a portion of the land not located in the right-of-way shall enter into a license agreement, easement agreement, or similar type of agreement with the city before applying for a permit. The terms and provisions of such agreement may be more stringent than the relevant portions of this title, but cannot be less stringent unless the common council finds that a less stringent agreement is in the city’s best interests and does not conflict with Section 12.15.010; the terms of any such agreement shall prevail in the event of any conflict with the code provisions. All references in this chapter to “right-of-way” shall also apply to city-owned property and land in which the city has an easement interest unless specifically noted otherwise.

B.    Exempt Facilities. The provisions of this chapter shall not be applied to applications for the following:

1.    (Repealed by Ord. 2592-20).

2.    Installation of a mobile cell facility (commonly referred to as “cell on wheels” or “cell on truck”) for a temporary period in connection with an emergency or event, but no longer than required for the emergency or event; provided, that installation does not involve excavation, movement, or removal of existing facilities.

3.    Placement or modification of a wireless telecommunications facility by city staff or any person performing work under contract with the city.

4.    Modification of an existing wireless telecommunications facility that makes no material change to the footprint of a facility or to the surface or subsurface of a public street if the activity does not disrupt or impede traffic in the traveled portion of a street and if the work does not change the visual or audible characteristics of the wireless telecommunications facility. (Ord. 2592-20 §§ 4, 9 (part), 2020; Ord. 2555-19 § 1 (part), 2019)

12.17.040 Nondiscrimination.

Repealed by Ord. 2564-19. (Ord. 2555-19 § 1 (part), 2019)

12.17.050 Administration.

A.    City Engineer. The city engineer is responsible for administering this chapter.

B.    Powers. As part of the administration of this chapter, the city engineer may:

1.    Interpret the provisions of the chapter.

2.    Develop forms and procedures for submission of applications for wireless permits consistent with this chapter.

3.    Collect any fee required by this chapter.

4.    Require, as a condition of completeness of any application, notice to members of the public that may be affected by the placement or modification of the wireless telecommunications facility that is the subject of the wireless permit application.

5.    Establish deadlines for submission of information related to an application and extend or shorten deadlines where appropriate and consistent with federal laws and regulations.

6.    Issue notices of incompleteness or requests for information in connection with any wireless permit application.

7.    Select and retain an independent consultant with expertise in telecommunications to review any issue that involves specialized or expert knowledge in connection with any wireless permit application.

8.    Coordinate and consult with other city staff, committees, and governing bodies to ensure timely action on all other required permits under Section 12.17.060(B)(7).

9.    Subject to appeal as provided in Section 12.17.080(E), determine whether to grant, grant subject to conditions, or deny an application.

10.    Take such other steps as may be required to timely act upon wireless permit applications, including issuing written decisions and entering into agreements to mutually extend the time for action on an application. (Ord. 2564-19 § 12 (part), 2019; Ord. 2555-19 § 1 (part), 2019)

12.17.060 Application.

A.    Format. The applicant must submit its application electronically in a searchable, portable document format or other format approved by the city, as well as any amendments or supplements to the application or responses to requests for information regarding an application, to the city engineer. An application is not complete until the city engineer receives a properly formatted application.

B.    Content. To be considered complete, an application must contain:

1.    All information required pursuant to this chapter.

2.    The name of the applicant (including any corporate or trade name), and the name, address, email address, and telephone number. If the applicant is a wireless infrastructure provider, the name and contact information for the wireless service provider(s) that will be using the wireless telecommunications facility must also be provided.

3.    A statement of which shot clock or shot clocks apply to the application and the reasons the chosen shot clocks apply.

4.    A separate and complete description of each proposed facility and the work that will be required to install or modify it, including but not limited to detail regarding proposed excavations, if any; detailed site plans showing the location of the facility and technical specifications for each element of the facility, clearly describing the site and all structures and facilities at the site before and after installation or modification and identifying the owners of such preexisting structures and facilities; and describing the distance to the nearest residential dwelling unit. Before and after three hundred sixty (360) degree photo simulations must be provided for each utility pole, tower, structure, and aboveground equipment.

5.    (Repealed by Ord. 2564-19).

6.    A copy of the FCC license for the facility or a sworn written statement from the applicant attesting that the facility will comply with current FCC regulations.

7.    To the extent that filing of the wireless permit application establishes a deadline for action on any other permit that may be required in connection with the wireless telecommunications facility, the application must include complete copies of applications for every required permit, including without limitation electrical permits, building permits, traffic control permits, and excavation permits, with all design engineering completed and with all fees associated with each permit.

8.    A certification by a registered and qualified engineer that the installation can be supported by and does not exceed the tolerances of the structure on which it will be mounted and that all elements of the wireless telecommunications facility comply with applicable safety standards.

9.    Payment of all required fees.

10.    If an applicant contends that denial of the application would prohibit or effectively prohibit the provision of service in violation of federal law, or otherwise violate applicable law, the application must provide all evidence on which the applicant relies in support of that claim. Applicants are not permitted to supplement this evidence if doing so would prevent the city from complying with any deadline for action on an application.

11.    If the application is an eligible facilities request, the application must contain information sufficient to show that the application qualifies as an eligible facilities request under 47 CFR 1.6100(b)(3), including evidence that the application relates to an existing tower or base station that has been approved by the city. Before and after three hundred sixty (360) degree photo simulations must be provided with detailed specifications demonstrating that the modification does not substantially change the physical dimensions of the existing approved tower or base station.

C.    Waivers. Requests for waivers from any requirement of this section shall be made in writing to the city engineer. The city engineer may grant a request for waiver if it is demonstrated that, notwithstanding the issuance of the waiver, the city will be provided with all information necessary to understand the nature of the construction or other activity to be conducted pursuant to the wireless permit sought.

D.    Fees. Applicant must provide an application fee, as calculated by the city engineer, which shall include all costs reasonably incurred in reviewing the application, including costs incurred in retaining outside consultants, and an inspection deposit for the cost of inspecting the work. Additionally, if the applicant or permittee seeks to attach a facility to a city-owned structure, the applicant or permittee shall pay an annual fee of two hundred fifty dollars ($250.00) per facility that is located in the city right-of-way, but not city-owned land. (Ord. 2592-20 § 5, 2020; Ord. 2564-19 §§ 7—9, 12 (part), 2019; Ord. 2555-19 § 1 (part), 2019)

12.17.070 General standards.

A.    Generally. Facilities shall meet the minimum requirements set forth in this chapter in addition to the requirements of any other applicable law or regulation.

B.    Regulations. The decisions on wireless permits shall, at a minimum, ensure that the requirements of this chapter are satisfied, unless it is determined that the applicant has established that denial of an application would, within the meaning of federal law, prohibit or effectively prohibit the provision of telecommunications or personal wireless services, or otherwise violate applicable laws or regulations. If that determination is made, the requirements of this chapter and the wireless regulations may be waived, but only to the extent required to avoid the prohibition.

C.    Standards.

1.    Facilities shall be installed and modified in a manner that:

a.    Minimizes risks to public safety;

b.    Ensures that placement of facilities on existing structures is within the tolerance of those structures;

c.    Avoids placement of aboveground facilities or installation of new support structures or equipment cabinets in underground areas in the public right-of-way;

d.    Maintains the integrity and character of the neighborhoods and corridors in which the facilities are located;

e.    Ensures that installations are subject to periodic review to minimize the intrusion on the right-of-way;

f.    Ensures that the city bears no risk or liability as a result of the installations; and

g.    Ensures that applicant’s use does not inconvenience the public, interfere with the primary uses of the right-of-way, including existing utilities, or hinder the ability of the city or other government entities to improve, modify, relocate, abandon, or vacate the right-of-way or any portion thereof, or to cause the improvement, modification, relocation, vacation, or abandonment of facilities in the right-of-way. Specifically, the applicant’s use shall comply with the city’s Public Infrastructure and Development Handbook regarding placement of utilities in the public right-of-way and shall not encroach within five feet of an existing city utility.

2.    No wireless permit shall be issued unless the wireless service provider applicant has immediate plans to use the proposed facility or the wireless infrastructure applicant has a contract with a wireless service provider that has immediate plans to use the proposed facility. Wireless infrastructure applicants shall attach its contract with the wireless service provider to its wireless permit application.

3.    Installation of new and modification of existing small wireless facilities and wireless telecommunications facilities shall meet the following standards:

a.    Facilities and support structures, towers, and utility poles shall not obstruct, impede, or hinder vehicular, pedestrian, or bicycle travel or public safety within the right-of-way, except for authorized temporary lane or sidewalk closures.

b.    Facilities and support structures, towers, and utility poles shall not be located within vision setback lines as set forth in Section 17.112.010(B).

c.    Facilities and support structures, towers, utility poles, and any other ground-mounted equipment shall comply with the requirements of the Americans with Disabilities Act of 1990, as it is from time to time amended.

d.    New facilities and support structures, towers, and utility poles shall not be located directly in front of any existing residential or commercial structure.

e.    Rigid nonbreakaway poles and other support structures or towers shall be located a minimum of ten feet away from roadway curbs or shoulders, underground facilities, and behind existing or future sidewalks.

f.    The height of a facility, support structure, tower, or utility pole may not exceed the greater of fifty (50) feet above ground level or ten feet above the tallest existing support structure, tower, or utility pole that is in place on the effective date of the ordinance codified in this chapter and that is located in the same right-of-way and within five hundred (500) feet of the facility that is the subject of the application. The city engineer may waive this requirement upon consideration of such factors as whether the greater height is necessary and convenient to the provision of utility service to the public and/or will avoid the need for an additional site; whether the proposed facility will be located in a commercial, industrial, or nonresidential area; whether greater separation is required to avoid interference with other equipment on the pole or facility; whether a building or structure is within the fall zone radius of the facility, support structure, tower, or utility pole; and whether nearby buildings are taller than fifty (50) feet.

g.    Equipment mounted to support structures must be a minimum of ten feet above any pedestrian or bicycle thoroughfare or trail and a minimum of twenty (20) feet above any traffic lane.

h.    Unless in conflict with state or federal law, to conceal the nonantenna equipment, all nonantenna equipment shall be installed underground when proposed in an area where utilities or other equipment in the right-of-way is primarily located underground. In all other areas, nonantenna equipment shall be placed underground to the extent feasible. All installations shall be in accordance with the State Electrical Code. Additional expense to install and maintain an underground equipment enclosure does not exempt an applicant from this requirement, except where the applicant demonstrates by clear and convincing evidence that this requirement will effectively prohibit the provision of personal wireless services. Nothing in this subsection is intended to require the applicant to install any electric meter required by the applicant’s electrical service provider underground.

i.    All ground-mounted equipment other than the antenna shall be contained in a secured equipment shroud or cabinet to prevent public safety risks and unauthorized access. Any cables and conduits associated with the equipment shall be concealed from view.

j.    All facilities and support structures, towers, and utility poles shall have subdued colors and nonreflective materials that blend with the materials and colors of the surrounding area and structures.

k.    The owner and/or operator must post an identification sign at each facility, including current owner/operator emergency telephone numbers. The design, materials, colors, and location of the identification signs shall be subject to city review and approval. If at any time a new owner or operator provider takes over operation of an existing facility, the new personal wireless service provider shall notify the city of the change in operation within thirty (30) days and the required and approved signs shall be updated within thirty (30) days to reflect the name and phone number of the new wireless service provider. The colors, materials and design of the updated signs shall match those of the required and approved signs. No sign shall be greater than two square feet in size.

l.    Any proposed pruning of trees, shrubs, or other landscaping already existing in the right-of-way must be noted in the application and approved by the city.

D.    Standard Wireless Permit Conditions. All wireless permits under this chapter are issued subject to the following minimum conditions:

1.    Compliance. The permittee shall at all times maintain compliance with all applicable federal, state, and local laws, regulations, and other rules.

2.    Term. A wireless permit shall be valid in perpetuity from the date of issuance unless revoked pursuant to Section 12.17.080(D) or surrendered.

3.    Contact Information. The permittee shall at all times maintain with the city accurate contact information for the permittee and all wireless service providers making use of the facility, which shall include a phone number, mailing address, and email address for at least one natural person.

4.    Emergencies. The city shall have the right to support, repair, disable, or remove any elements of the facilities in emergencies or when the facility threatens imminent harm to persons or property.

5.    Indemnification. The permittee, by submitting an application for a facilities permit under this chapter, agrees to indemnify, defend, and hold harmless the city, its elected and appointed officials, officers, employees, agents, representatives, and volunteers (collectively, the “indemnified parties”) from and against any and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, interest, attorneys’ fees, costs, and expenses of whatsoever kind or nature in any manner caused in whole or in part, or claimed to be caused in whole or in part, by reason of any act, omission, fault, or negligence, whether active or passive, of the permittee or anyone acting under its direction or control or on its behalf, even if liability is also sought to be imposed on one or more of the indemnified parties. The obligation to indemnify, defend, and hold harmless the indemnified parties shall be applicable even if the liability results from an act or failure to act on the part of one or more of the indemnified parties. However, the obligation does not apply if the liability results from the sole negligence or willful misconduct of an indemnified party.

6.    Adverse Impacts on Adjacent Properties. The permittee shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification, or removal of the facility. At least three business days prior to any construction or placement of the facility, the permittee shall mail a notice to all property owners adjacent to the facility placement location. The notice shall contain the facility’s location, its description and scale image, and an email address and phone number for a representative of the applicant who will be available to answer questions from members of the public about the proposed project.

7.    General Maintenance. The facility, and any associated structures, shall be maintained in a neat and clean manner and in accordance with all approved plans and conditions of approval.

8.    Graffiti Removal. All graffiti on facilities shall be removed at the sole expense of the permittee within two business days after notification from the city.

9.    Relocation. At the request of the city, pursuant to Section 12.15.060, the permittee shall promptly and at its own expense permanently remove and relocate any facility in the right-of-way.

10.    Abandonment. The permittee shall promptly notify the city whenever a facility has not been in use for a continuous period of sixty (60) days or longer and must comply with Section 12.15.100.

11.    Restoration. A permittee who removes or relocates a facility from the right-of-way must restore the right-of-way in accordance with Section 12.15.070.

12.    Record Retention. The permittee shall retain full and complete copies of all permits and other regulatory approvals issued in connection with the facility, which includes without limitation all conditions of approval, approved plans, resolutions, and other documentation associated with the wireless permit or regulatory approval. In the event the city cannot locate any such full and complete permits or other regulatory approvals in its official records, and the permittee fails to retain full and complete records in the permittee’s files, any ambiguities or uncertainties that would be resolved through an examination of the missing documents will be conclusively resolved against the permittee.

13.    Radio Frequency Emissions. Every wireless facility shall at all times comply with applicable FCC regulations governing radio frequency emissions, and failure to comply with such regulations shall be treated as a material violation of the terms of the permit.

14.    Certificate of Insurance. A certificate of insurance with the following minimum insurance limits:

a.    Commercial General Liability Insurance. One million dollars ($1,000,000.00) per each occurrence, one million dollars ($1,000,000.00) personal and advertising injury, two million dollars ($2,000,000.00) products and completed operations, and two million dollars ($2,000,000.00) general aggregate—all written on an occurrence basis.

b.    Business Automobile Liability Insurance. One million dollars ($1,000,000.00) combined single limit, written on an occurrence basis, for “any auto.”

c.    Worker’s Compensation Insurance. Coverage as required by the state of Wisconsin and employers’ liability insurance with a minimum limit of one hundred thousand dollars ($100,000.00) each accident, five hundred thousand dollars ($500,000.00) disease policy, and one hundred thousand dollars ($100,000.00) disease each employee.

d.    Umbrella Liability Insurance. Five million dollars ($5,000,000.00) each occurrence and five million dollars ($5,000,000.00) general aggregate; the self-insured retention cannot exceed ten thousand dollars ($10,000.00).

e.    A request for waiver from the requirements of this subsection shall be made in writing to the city engineer. The city engineer may grant a waiver request if the city attorney and director of finance and administration or their designees conclude that the applicant’s insurance adequately protects the city from risk and liability. (Ord. 2592-20 § 6, 2020; Ord. 2564-19 §§ 10, 12 (part), 15, 16, 2019; Ord. 2555-19 § 1 (part), 2019)

12.17.080 Application processing, refusal to issue, revocation, and appeal.

A.    Rejection for Incompleteness. Notices of incompleteness shall be provided in conformity with state, local, and federal law, including 47 CFR 1.6003(d), as amended.

B.    Processing Timeline. Wireless permit applications, including applications for other permits under Section 12.17.060(B)(7) necessary to place or modify the facility, and appeals will be processed in conformity with the shot clocks set forth in state, local, and federal law, as they are from time to time amended.

C.    Written Decision. In the event that an application is denied, or approved with conditions beyond the standard permit conditions set forth in Section 12.17.070(D), the city engineer shall issue a written decision with the reasons therefor, supported by substantial evidence contained in a written record.

D.    Grounds. The city engineer may refuse to issue, revoke, suspend, or refuse to renew an existing permit if he or she finds any of the grounds stated below. The city engineer’s decision shall be in writing and shall state the reasons for the actions taken.

1.    The applicant or permittee is required by Section 12.16.020 to be registered and has not done so;

2.    The permit application is incomplete unless federal or state regulations provide otherwise;

3.    The applicant or permittee is seeking to place facilities that do not meet the standards set forth in one or more provisions of this chapter;

4.    Misrepresentation of any fact by the applicant or permittee;

5.    The proposed facility is contrary to the public health, safety, or welfare;

6.    The extent to which space is available in the right-of-way for which the permit is sought;

7.    The competing demands for the particular space in the right-of-way;

8.    The availability of other usable locations in the right-of-way or in other rights-of-way for the facilities of the permittee or applicant;

9.    The applicability of ordinances or other regulations of the right-of-way that affect location of facilities in the right-of-way;

10.    The permittee or applicant failed to comply with the conditions of the permit or applicable federal, state, or local laws, rules, or regulations.

E.    Appeal to Administrative Appeals Board. Any person adversely affected by the decision of the city engineer may appeal that decision to the administrative appeals board, which may decide the issues de novo, and whose written decision will be the final decision of the city. An appeal by a wireless infrastructure provider must be taken jointly with the wireless service provider that intends to use the wireless telecommunications facility. The city elects not to be governed by Chapter 68, Wisconsin Statutes, in whole for an appeal under this chapter.

F.    Deadline to Appeal.

1.    Appeals that involve eligible facilities requests must be filed within three business days of the written decision of the city engineer.

2.    All other appeals not governed by subsection (F)(1) of this section must be filed within ten business days of the written decision of the city engineer.

G.    Decision Deadline. All appeals shall be conducted so that a timely written decision may be issued in accordance with the applicable shot clock. (Ord. 2564-19 §§ 12 (part), 13, 2019; Ord. 2555-19 § 1 (part), 2019)

12.17.090 Expiration, removal, and failure to obtain permit.

A.    Expiration. A wireless permit issued pursuant to an eligible facilities request shall expire at the same time the permit for the underlying existing facility expires. All other wireless permits shall be valid for a period of five years from the date of issuance. Upon expiration of the wireless permit, the permittee must either:

1.    Remove the facility; or

2.    Submit an application to renew the permit at least ninety (90) days prior to its expiration. The facility must remain in place until the renewal application is acted on by the city and any appeals from the city’s decision are exhausted.

B.    Removal and Costs. Upon revocation or surrender of the permit, the facility must be removed within thirty (30) days of receipt of written notice from the city. All costs incurred by the city in connection with the revocation, removal, storage of removed facilities, and right-of-way restoration shall be paid by the person whose permit was revoked or surrendered.

C.    Failure to Obtain Wireless Permit. Unless exempted from permitting by Section 12.17.030(B), a facility installed without a wireless permit must be removed within thirty (30) days of receipt of written notice from the city. All costs incurred by the city in connection with the notice, removal, storage of removed facilities, and right-of-way restoration shall be paid by entities who own or control any part of the facility. (Ord. 2592-20 § 7, 2020; Ord. 2564-19 § 14, 2019; Ord. 2555-19 § 1 (part), 2019)

12.17.100 Penalty.

Any person, firm, partnership, or corporation who violates any part of this chapter shall be subject to the penalty and enforcement provisions in Chapter 1.12. (Ord. 2564-19 § 6, 2019)

12.17.110 Abandonment.

Repealed by Ord. 2564-19. (Ord. 2555-19 § 1 (part), 2019)

12.17.120 Restoration.

Repealed by Ord. 2564-19. (Ord. 2555-19 § 1 (part), 2019)

12.17.130 Storage and disposal of property.

Repealed by Ord. 2564-19. (Ord. 2555-19 § 1 (part), 2019)