A. This section applies to the activities of a wireless provider in installing a new, replacement or modified utility pole associated with the collocation of a small wireless facility in a right of way.

B. A new, replacement or modified utility pole associated with the collocation of a small wireless facility and installed in a right of way is not subject to zoning review and approval, except for that which pertains to the under-grounding prohibitions described in Subparagraph (c) of Paragraph (1) of Subsection C of this section, unless the utility pole, as measured from the ground level, is higher than whichever of the following is greater:

1. (1) ten feet plus the height in feet of the tallest existing utility pole, other than a utility pole supporting only one or more wireless facilities, that is:

   1. (a) in place on the effective date of the Wireless Consumer Advanced Infrastructure Investment Act;
   2. (b) located within five hundred feet of the new, replacement or modified utility pole;
   3. (c) in the same right of way and within the jurisdictional boundary of the authority; and
   4. (d) fifty or fewer feet above ground level; or

2. (2) fifty feet.

   C. An authority may require an application for the installation of a new, replacement or modified utility pole associated with the collocation of a small wireless facility in a right of way. An authority shall approve such an application unless the authority finds that the installation of the utility pole does not conform with:

3. (1) applicable codes or local laws concerning:

   1. (a) public safety;
   2. (b) design for utility poles, but only to the extent that the standards the codes or laws impose are objective; and
   3. (c) under-grounding prohibitions on the installation of new, or the modification of existing, utility poles in a right of way without prior approval, if those regulations: 1) require that all cable and public utility facilities be placed underground by a date certain within one year after the application; 2) include a waiver, zoning or other process that addresses requests to install such new utility poles or modify such existing utility poles; and 3) allow the replacement of utility poles;
4. (2) the federal Americans with Disabilities Act of 1990 or similar federal or state standards for pedestrian access or movement;
5. (3) requirements imposed by the authority in accordance with Subsection H of Section 3 [63-9I-3 NMSA 1978] of the Wireless Consumer Advanced Infrastructure Investment Act;
6. (4) requirements imposed by contract between an authority and a private property owner concerning the design of utility poles in the right of way; or

7. (5) the authority's laws concerning public safety and imposing minimum spacing requirements, if reasonable, for new utility poles in rights of way.

   D. An authority shall process an application for a permit to install a new, replacement or modified utility pole associated with the collocation of a small wireless facility within one hundred fifty days after receiving the application. If the authority fails to approve or deny the application within that period, the authority shall deem the application approved. The application fee, if any, imposed by the authority for such an application shall conform with the requirements of Subsection M of Section 4 [63-9I-4 NMSA 1978] of the Wireless Consumer Advanced Infrastructure Investment Act and shall not exceed seven hundred fifty dollars ($750).

   E. The installation, modification or replacement for which a permit is issued under this section shall begin within one hundred eighty days after the permit issuance date, unless the authority and wireless provider agree to extend that period or a delay in the installation, modification or replacement is caused by the lack of commercial power or fiber at the site. The permit gives the wireless provider the right to:

8. (1) undertake the requested deployment; and

9. (2) subject to applicable relocation requirements, to the requirements imposed on the authority by this section and to the provider's right to terminate the installation at any time:

   1. (a) operate and maintain the new, modified or replacement utility pole for a period of at least ten years; and
   2. (b) renew the permit for that same period, unless the authority finds that the new or modified utility pole does not conform with the restrictions set forth in Subsection C of this section.

History: Laws 2018, ch. 17, § 5 and Laws 2018, ch. 69, § 5.

ANNOTATIONS

Cross references.— For the federal Americans with Disabilities Act of 1990, see titles 29, 42 and 47 of the U.S. Code.

Duplicate laws. — Laws 2018, ch. 17, § 5 and Laws 2018, ch. 69, § 5, both effective September 1, 2018, enacted identical new sections. The section was set out as enacted Laws 2018, ch. 69, § 5. See 12-1-8 NMSA 1978.