23-17-508. Aesthetic standards.

23-17-508. Aesthetic standards. (a) An authority that has adopted an ordinance under § 14-17-209 or § 14-56-416 may adopt and enforce standards that govern the aesthetic appearance of small wireless facilities and associated poles to ensure coordinated, adjusted, and harmonious development, as provided in this section. (b) Aesthetic standards adopted by an authority for small wireless facilities and associated poles shall meet the following requirements: (1) The aesthetic standards shall be: (A) Reasonable, in that they are technically feasible and reasonably directed to avoiding or remedying unsightly or out-of-character deployments; (B) No more burdensome than those applied to other types of utility and communications infrastructure deployments; and (C) Objective and published at least ninety (90) days in advance of the filing of an application under this subchapter; (2) Any design or concealment measures are not considered a part of the small wireless facility for purposes of the size parameters in the definition of “small wireless facility”; and (3) An authority may deny an application for not complying with aesthetic requirements only if the authority finds that the denial does not prohibit or have the effect of prohibiting the provision of wireless service. (c) An authority may prohibit wireless providers from installing poles in the right-of-way in areas where the authority has required that all communications and electric lines be placed underground, if: (1) The authority has required all electric and communications lines to be placed underground by a date certain that is three (3) months before the submission of the application; (2) Any poles the authority allows to remain shall be made available to wireless providers for the collocation of small wireless facilities, and may be replaced by a wireless provider to accommodate the collocation of small wireless facilities, in compliance with this subchapter; (3) A wireless provider may install a new pole in the designated area that otherwise complies with this section when it is not able to provide wireless service by collocating on a remaining structure; and (4)(A) For small wireless facilities installed before an authority adopts requirements that communications and electric lines be placed underground, an authority adopting the requirements shall: (i) Permit a wireless provider to maintain the small wireless facilities in a place on any pole not required to be removed, subject to any applicable pole attachment agreement with the pole owner; or (ii) Permit the wireless provider to replace an existing pole within fifty feet (50') of the prior location. (B) An authority may require wireless providers to comply with reasonable and nondiscriminatory horizontal spacing requirements of general application for new poles and ground-mounted small wireless facilities, but the requirements shall not prevent a wireless provider from serving any location. (d)(1) When a wireless provider applies to install a new pole in the right-of-way in an area zoned for residential use, the authority may propose an alternative location in the right-of-way within one hundred feet (100') of the location stated in the application, and the wireless provider shall use the authority's proposed alternative location unless the location imposes technical limits or significant additional costs. (2) The wireless provider shall certify that it has made the determination in good faith, based on the assessment of a licensed engineer, and the wireless provider shall provide a written summary of the basis for the determination. (e) Aesthetic standards shall be effective after approval by ordinance, resolution, or rule of the governing body of the authority. (f)(1) The board of zoning adjustment of an authority may: (A) Hear appeals of the decision of the administrative officers in respect to the enforcement and application of the aesthetic standards, and may affirm or reverse, in whole or in part, the decision of the administrative officers; and (B) Hear requests for variances from the literal provisions of the aesthetic standards and grant the variances only when it is necessary to avoid the prohibition of wireless service or otherwise comply with the law. (2) Decisions of the board in respect to subdivision (f)(1) of this section shall be subject to appeal only to a court of record having jurisdiction.