Section 206N-5 - Use of the right of way for small wireless facilities and utility poles(a) The State or county shall not enter into an exclusive arrangement with any person for use of the right of way for the construction, operation, marketing, or maintenance of small wireless facilities or for small wireless facilities collocation.(b) Subject to this section, the construction or modification of small wireless facilities in the right of way shall be a permitted use not subject to zoning review or other discretionary approval; provided that such facilities shall be constructed and maintained so as not to obstruct the usual travel, public safety, on such right of way or obstruct the legal use of such right of way by utilities or authorized parties. The State or county shall have the authority to condition the approval of an application upon compliance with pre-established nondiscriminatory feasible design and collocation standards on small wireless facilities to be installed on property solely owned by the State or county. As part of a feasible design and collocation standard, the State or county may require the communications service provider to pay the State or county for the electricity that is used by the small wireless facilities and to place an appropriately sized fuse on the small cell to control the amount of electricity used by the communications service provider. To the extent the State or county establishes feasible design and collocation standards, they shall be made available in published guidelines and apply ninety calendar days after their publication. Nothing in this section requires the State or county to establish feasible design and collocation standards.
Modified or replaced utility poles associated with a small wireless facility that meet the requirements of this section are permitted uses subject to the permitting process in section 206N-6.
No additional discretionary permit shall be required to maintain, operate, modify, or replace small wireless facilities and associated utility poles along, across, upon, and under the right of way. The grant of a permit for a small wireless facility does not authorize the installation, placement, maintenance, or operation of any communications facility, including a wireline backhaul facility, other than a small wireless facility, in the right of way, and shall not otherwise be a general authorization to occupy and use the right of way.
(c) Each modified or replaced utility pole installed in the right of way for the collocation of small wireless facilities shall not exceed the greater of: (1) Ten feet in height above the tallest existing utility pole in place as of July 1, 2018, located within five hundred feet of the modified or replaced pole in the same right of way; or(2) Fifty feet above ground level. New small wireless facilities in the right of way shall not extend more than ten feet above an existing utility pole in place as of July 1, 2018. Subject to this section and section 206N-6, a communications service provider or wireless provider may modify, replace, and maintain a utility pole or small wireless facility that exceeds these height limits along, across, upon, and under the right of way, subject to applicable zoning regulations.
(d) A communications service provider may replace a decorative pole, when necessary to collocate a small wireless facility, if the replacement pole reasonably conforms to the design aesthetics of the decorative pole or poles being replaced.(e) Subject to section 206N-6, and except for facilities excluded from evaluation for effects on historic properties under title 47 Code of Federal Regulations section 1.1307(a)(4), a State or county may require reasonable, technically feasible, non-discriminatory, and technologically neutral design or concealment measures in a historic district. Any such design or concealment measures shall not have the effect of prohibiting any provider's technology, nor shall any such measures be considered a part of the small wireless facility for purposes of the size restrictions.(f) The State or county shall: (1) Be competitively neutral in the exercise of its administration and regulation related to the management of the right of way and with regard to other users of the right of way; and(2) Not impose any conditions that are unreasonable or discriminatory.(g) The State or county may require a communications service provider to repair all damage to the right of way directly caused by the activities of the communications service provider in the right of way and to return the right of way to the same or better condition before the damage pursuant to the competitively neutral, reasonable requirements and specifications of the State or county within thirty calendar days. If the communications service provider fails to make the repairs required by the State or county within thirty calendar days after written notice, the State or county may complete those repairs and charge the applicable party the reasonable, documented cost of the repairs.Added by L 2018, c 49,§ 2, eff. 7/1/2018 and applicable to permit applications filed with the state or county after 12/31/2018.