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CC SR 20160119 02 - Urgency Ordinance for Wireless Installations in Public ROWlltJ_'A-�Wa MEMORANDUM RANCHO PALOS VERDES TO: HONORABLE MAYOR & CITY COUNCIL MEMBERS FROM: DAVE ALESHIRE, CITY ATTORNEY DATE: JANUARY 19, 2016 SUBJECT: CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF- WAY REVIEWED: DOUG WILLMORE, CITY MANAGER MICHAEL THRONE, P.E., DIRECTORF PUBLIC WORKS Project Manager: Christy Marie Lopez, Special Counsel Nicole Jules, Deputy Director of Public Works`? RECOMMENDATION Adopt Urgency Ordinance No. AN URGENCY ORDINANCE OF THE CITY OF RANCHO PALOS VERDES, CALIFORNIA, ADDING A NEW CHAPTER ENTITLED "WIRELESS TELECOMMUNICATIONS FACILITIES" TO CHAPTER 18 OF TITLE 12 OF THE RANCHO PALOS VERDES MUNICIPAL CODE TO PROVIDE UNIFORM AND COMPREHENSIVE REGULATIONS AND STANDARDS, ALONG WITH PERMIT REQUIREMENTS, FOR THE INSTALLATION OF WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY FISCAL IMPACT Budgeted Amount: $ N/A Additional Appropriation: $ N/A New Amount Balance: $ N/A Fund Balance $ N/A Account Number(s): N/A EXECUTIVE SUMMARY The City's current regulations in the Rancho Palos Verdes Municipal Code (RPVMC) is very limited and lacking in needed criteria for governing wireless installations in the 01203.0015/277835 4 1 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 2 public right-of-way (ROW). There are a substantial number of existing wireless facilities in the City, and the City has received a plethora of requests for additional wireless facility installations. In an effort to better manage ROW installations and protect the aesthetics of the City and adjacent property values, the draft code implements all new regulations and procedures for wireless installations in the ROW. BACKGROUND In light of numerous proposals for additional wireless facility installations in the ROW and the lack of regulations governing such facilities, there is an urgent need for the City to adopt provisions to govern all installations so as to protect the community's property values and aesthetics. New regulations are necessary to ensure safe and aesthetically appropriate design of wireless facility installations. Public Outreach and Engagement: 1. Workshop On December 7, 2015, the City held a public workshop to discuss the draft ordinance. Representatives from the Southern California Gas Company and Crown Castle, seven residents, and one City Council member attended the workshop. All parties had an opportunity to express their concerns with the existing process for evaluating proposed wireless installations in the ROW and several attendees provided comments about the ordinance. The City addressed several of those comments. Many residents expressed concern over the lack of notice relating to the installation of mock-ups. Industry representatives outlined the need for more facilities and the need for a streamlined evaluation process (Minutes of the workshop are attached hereto as Attachment C). One key comment related to the need for a tiered permitting system, subject to administrative and ministerial approvals. Specifically, the proposed tiered system would designate preferred locations for installations. Such a tiered system has been incorporated into the ordinance proposed for adoption. 2. Comments Received Since the workshop held on December 7, 2015, the City has received a number of written comment letters. To the extent City Staff and the City Attorney's Office found it appropriate, changes were made to the draft ordinance (all comment letters are attached hereto as Attachments D through G). All changes made to the draft ordinance can be seen in the redlined version of the ordinance as Attachment H. In light of the fact that this is a very nuanced area of law, it is not surprising there is some discrepancy regarding the applicability or interpretation of current case law. Nonetheless, several changes were made in response to the comments received from both the residents and the industry. 3. Communication and Transaaren After the public workshop, Staff communicated with interested individuals via email by responding to questions and requests for information. On Thursday, January 7, 2016, staff created and publicized a dedicated webpage that focuses on cell -site activity, 01203.0015/277835.4 2 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 3 applications, permits, and site status. This webpage serves as a portal of cell -site information which allows the public to be fully -informed of proposed and active cell -site activity. DISCUSSION A. Federal and State Law: 1. Federal Law applicable to all telecommunications installations A number of Federal statutes regulate wireless communication facilities. The Telecommunications Act ("TCA") regulates the placement, construction, and maintenance of personal wireless facilities and telecommunications services. This section focuses on the TCA limitations that affect a local entity's authority to regulate wireless communication facilities. a) Section 332(c)(7) of the Telecommunications Act Section 332 of the TCA regulates personal wireless services defined under the statute as "commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services." (47 U.S.C.A. § 332 et seq.) Section 332(c)(7) of the TCA generally preserves local and state authority over the regulation of telecommunications infrastructure while simultaneously limiting its scope. (Sprint Telephony PCS, L.P. v. County of San Diego (9th Cir. 2008) 543 F.3d 571, 575.) The statute says that "nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities." Nonetheless, Section 332(c)(7) imposes several restrictions on local authority including the following: (1) Regulations and restrictions may not "unreasonably discriminate among providers of functionally equivalent services"; and (Section 332(c)(7)(B)(i)(I).) (2) "[T]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof (11) shall not prohibit or have the effect of prohibiting the provision of personal wireless services." (Section 332(c)(7)(13)(i)(11).) Even if local actions do not prohibit coverage or unreasonably discriminate against providers, "substantial evidence" must support a government decision to deny or grant permission to place, construct or modify personal wireless service facilities. 01203.0015/277835.4 3 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 4 Effective Prohibition Limitation Section 332(c)(7)(13)(i)(II) of the TCA says that "the regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government [... ] shall not prohibit or have the effect of prohibiting the provision of personal wireless services." A governmental entity violates Section 332 when it: (1) imposes an outright ban on wireless services; or (2) effectively prohibits wireless services. The mere possibility of prohibiting services is insufficient to state a claim under Section 332. (Sprint Telephony PCS, L.P., supra, 543 F.3d at 576.) The Ninth Circuit has held that an "effective prohibition" results when local restrictions cause a "significant gap" coverage. (Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, 726.) To allege that a governmental decision "effectively prohibits" wireless services, the complainant must show: (1) a significant gap in the applicant's in coverage; and (2) lack of potentially available and technologically feasible alternatives. (T -Mobile USA, Inc. v. city of Anacortes (9th Cir. 2009) 572 F.3d 987, 995.) '[S]ignificant gap' determinations are extremely fact -specific inquiries that defy any bright -line legal rule." (Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, 727, quoting MetroPCS, Inc. v. City and County of San Francisco (9th Cir. 2005) 400 F.3d 715, 733 abrogated by T -Mobile South, LLC v. City of Roswell, Ga. (2015) 135 S.Ct. 808.) The Ninth Circuit recognizes a significant gap in one provider's network even if that area is being serviced by other providers. The second prong requires the complainant show that the selected means of closing the gap is the "least intrusive" option. (Metro PCS, supra, 400 F.3d at 735.) A party challenging an ordinance or policy on the grounds that it effectively prohibits telecommunications services must meet the "high burden of proving that `no set of circumstances exists under which the [Ordinance] would be valid."' (Sprint Telephony PCS, L.P., supra, 543 F.3d at 580, quoting Salerno, U.S. v. Salerno (1987) 481 U.S. 739,745.)' ' Section 253 of the Telecommunications Act: Similarly, section 253 regulates state and local ROW management policies applied to telecommunications services. The statute reads in pertinent part as follows: "[N]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." [Telecommunication services is defined in the statute as "the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used." (47 U.S.C.A. § 153(53).)] 01203.0015/277835.4 4 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 5 California State law modifies the effective prohibition analysis as applied to telephone corporations in the ROW. As discussed below, state law grants CPUC -regulated telephone corporations access to the ROW subject to the local government's reasonable time, place and manner regulations. These applicants' right to use the ROW arises from State law and therefore does not necessarily depend on whether a significant gap in their service exists or not. However, telephone corporations must still show that their proposed facilities are the least intrusive means when required under local regulations or when the applicant desires to assert Federal preemption under the TCA. ii. Unreasonable Discrimination Limitation As previously described, Section 332(c)(7)(B)(i)(1) states that "[t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof [... ] shall not unreasonably discriminate among providers of functionally equivalent services. The two-part test in the Ninth Circuit for "unreasonable discrimination" is: (1) whether the plaintiff has been treated differently from other providers whose facilities are similarly situated; and (2) if there was different treatment, whether the treatment was unreasonable. (MetroPCS, Inc. v. City and County of San Francisco (9th Cir. 2005) 400 F.3d 715, 727 abrogated by T -Mobile South, LLC v. City of Roswell, Ga. (2015) 135 S.Ct. 808 [190 L.Ed.2d 679].) The Court will evaluate the "structure, placement, and cumulative impact of the facilities" in order to determine if two or more facilities are "similarly situated". (Id.) The Ninth Circuit considers traditional zoning regulations as reasonable, such as those used to "preserve the character of the neighborhood" and "avoid aesthetic blight." (Id. at 727.) The Court in Newpath Networks LLC v. City of Irvine, Cal. (C.D. Cal., Dec. 23, 2009, SACV 06-550-JVS ANX) 2009 WL 9050819, at *20 held that Plaintiff's allegation of unreasonable discrimination was invalid because the location of each facility was substantially different in character, the amount of light posts required by each facility differed, and no evidence demonstrated the facilities were "similarly situated" with respect to size, meter boxes, and concealment. (Id.) iii. Substantial Evidence Needed for a Denial Section 332(c)(7)(B)(iii) of the TCA says that a government's decision "to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record." (See also The Court in Sprint Telephony 543 F. 3d 571, 579 determined that the "effective prohibition" analysis under Section 332 applies to telecommunication services under Section 253. (Id. at 579.) Section 253 has essentially been harmonized with Section 332 above (Id. at 579.) In summary, under both Sections 332 and 253, a party must show that the local government action prohibited or "effectively prohibited" telecommunications coverage. (Sprint PCS Assets, L.L.C., supra, 583 F.3d at 728.) 01203.0015/277835.4 5 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 6 Sprint PCS Assets, L.L.C., supra, 583 F.3d at 721.) The substantial evidence standard is a traditional standard of review for agency decisions. (Newpath Networks LLC, supra, 2009 WL 9050819, at *18; See Cellular Telephone Co. v. Town of Oyster Bay (2d Cir. 1999) 166 F.3d 490, 494 [The substantial evidence standard is "less than a preponderance, but more than a scintilla of evidence."].) When a government decision is being judicially reviewed for substantial evidence, courts must decide whether: (1) the decision was authorized by local law; and (2) the decision was supported by a reasonable amount of evidence. (Sprint PCS Assets, L.L.C., supra, 583 F.3d at 721.) The substantial evidence determination is a case-by-case analysis. In T -Mobile USA, Inc. v. City of Anacortes (9th Cir. 2009) 572 F.3d 987, 994, the Court found substantial evidence to support the government's decision based on propagation maps, mock-ups of the proposed WCFs, reports on the effects of the aesthetic values, public comments, and oral presentations. Similarly, in Newpath Networks LLC, supra, 2009 WL 9050819, at *18, the Court held that the City's decision to deny the permit was supported by substantial evidence derived from visual simulations, reports detailing aesthetic impacts, public comment, and letters and emails about property values and aesthetics effects, and real estate agent opinions. 2. State Law applicable to telecommunications installations in the ROW In addition to the federal requirements and limitations outlined above, California State law regulates local authority over wireless facility deployments. The following are the State of California code provisions which govern local regulation of ROW installations and are significant to any analysis of proposed installations under the proposed ordinance. a) California Public Utilities Code Section 7901 and 7901.1 California Public Utilities Code ("CPUC") allows telecommunications facilities to be installed in the ROW and case law specifically prohibits local entities from charging rent for the ROW. CPUC Section 7901 says the following: "Telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this State, and may erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters." The term "incommode" as used in the statute includes inconvenience, impeding, obstructing, or hindering the use of the public rights of way. (Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, 723.) Thus, telephone companies do not have an absolute right to place or construct telephone facilities and 01203.0015/277835.4 6 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 7 lines in the public ROWs. (City of Huntington Beach v. Public Utilities Commission of the State of California (2013) 214 Cal.AppAth 566, 590, reh'g denied (Apr. 11, 2013), review denied (June 26, 2013).) The Supreme Court in the City of Huntington Beach v. Public Utilities Commission of the State of California held that section 7901 grants 'a limited right to use the highways and does so only to the extent necessary for the furnishing of services to the public."' (Id.) In essence, the right to construct in the public ROW is subject to a reasonableness standard — the construction, placement or modification must be reasonable so as not to incommode the public right of way. (Newpath Networks LLC, supra, 2009 WL 9050819, at *15.) Section 7901.1 reads as follows: "(a) It is the intent of the Legislature, consistent with Section 7901, that municipalities shall have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed. (b) The control, to be reasonable, shall, at a minimum, be applied to all entities in an equivalent manner. (c) Nothing in this section shall add to or subtract from any existing authority with respect to the imposition of fees by municipalities." Section 7901.1 was designed to "bolster the cities' abilities with regard to construction management and to send a message to telephone corporations that cities have authority to manage their construction, without jeopardizing the telephone corporations' statewide franchise. [citations omitted]." (Sprint PCS Assets, L.L.C., supra, 583 F.3d at 724.) However, Section 7901.1 does not grant absolute local authority over telecommunications facilities. (Newpath Networks LLC, supra, 2009 WL 9050819, at *15.) Rather, local governments may impose only reasonable time, place and manner restrictions on such facilities. (Id.) An unreasonable restriction is one that entirely prohibits or has the effect of prohibiting telephone companies in the public right of way. (Id. at 16.) The next section discusses how courts have interpreted Sections 7901 and 7901.1 to allow local entities to prevent the construction of telecommunication facilities on the basis of aesthetic concerns. b) The right to base decisions regarding the siting of telecommuni- cations facilities on aesthetic concerns Several recent cases have addressed the issue of whether cities can prohibit the placement, replacement, or construction of poles in the public ROW on the basis of aesthetic concerns. Although this issue has not been decided at the state court level, the Ninth Circuit determined that local governments can deny permits for poles in the right of way for aesthetic reasons. Sprint PCS Assets was the seminal case that established a local entity's right to deny on aesthetic grounds the construction of telecommunication facilities in the ROW. In that case, a city ordinance granted it the authority to deny wireless communication facility ("WCF") permits on the basis of "adverse aesthetic impacts arising from the 01203.0015/277835.4 7 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 8 proposed time, place, and manner of use of the public property." (Sprint PCS Assets, L.L.C., supra, 583 F.3d at 720.) Pursuant to this ordinance, the city denied Sprint PCS a WCF permit. (Id.) Sprint appealed the decision and thereafter brought a civil action requesting a declaration that the city violated the TCA in denying Sprint's WCF permit on aesthetic grounds. (Id.) The Court noted the expressive, social, and aesthetic objectives that go into planning a city as follows: "The experience of traveling along a picturesque street is different from the experience of traveling through the shadows of WCF, and we see nothing exceptional in the City's determination that the former is less discomforting, less troubling, less annoying, and less distressing than the latter." (Id. at 723.) The Court explained that the "time, place, and manner" in which companies "access" the public rights -of -ways can be aesthetically concerning and therefore a matter falling within the ambit of the city's authority to regulate. The Court emphasized that an aesthetic -based decision must still be supported by substantial evidence and may not prohibit the provision of wireless services. (Id.) Two years later, the Court in NextG Networks of California, Inc. v. City of Newport Beach, CA (C.D. Cal., Feb. 18, 2011, SACV 10-1286 DOC JCX) 2011 WL 717388, at *6-7, held that the city was justified in denying permits to construct new poles for telecommunication facilities because "degrading the aesthetic of the Pacific Coast Highway area [would] decreas[e] the public's ability to enjoy this area." (Id. at 7.) The Court found that the city's decision was supported by substantial evidence in the administrative record indicating that the aesthetic impacts would also diminish the public's enjoyment of the area and would decrease property values. (ld.) These cases demonstrate that it is now well-established in the Ninth Circuit that local entities can deny or conditionally approve construction of telecommunication facilities in the public rights of way on the basis of certain aesthetic concerns. Nonetheless, this right is not absolute. "A city that invokes aesthetics as a basis for a WCF permit denial is required to produce substantial evidence to support its decision, and even if it makes that showing, its decision is nevertheless invalid if it operates as a prohibition on the provision of wireless service in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II)." (Sprint PCS Assets, L.L.C., supra, 583 F.3d at 725.) B. New Ordinance Requirements: 1. New Permits Established Pursuant to the new ordinance, there are three new permits established. Both residents and industry representatives at the public workshop expressed support for a tiered 01203.0015/277835.4 8 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 9 permit system, with a relatively streamlined process for preferred designs in preferred locations. First, a Major Wireless Telecommunications Facilities Permit is required unless an applicant can demonstrate it meets the requirements for an administrative permit. Should an applicant seek a Major Wireless Telecommunications Facilities Permit, said permit is subject to a public hearing before the Planning Commission. Next, if the applicant can demonstrate that the proposed installation will be located in a preferred location (e.g., not in a residential area) and can comply with all other provisions of Chapter 12.18, it may be eligible for an Administrative Wireless Telecommunications Facilities Permit. Finally, if the applicant seeks approval of five or more installations in the ROW, it can seek a Master Deployment Plan Permit. Said permit shall provide approval of all facilities provided for in the plan and is subject to a public hearing before the Planning Commission. The same substantive standards applicable to the individual sites are applicable to Master Deployment Plan Permits, however applicants for a Master Deployment Plan Permit may obtain multiple approvals at a single public hearing. It should be noted that all permits shall still require the applicant to obtain any other applicable permit (e.g. encroachment permit) as may be required by the City. 2. Processing and Evaluation of Proposed Installations When a telecommunications company is interested in modifying or placing a new cell site, said applicant shall initiate the process with the Public Works Department. Staff will provide the interested party with informal instructions on how to proceed with filing an application for the proposed installation. A pre -submittal conference is strongly encouraged so that the applicant is fully informed regarding the particulars of the proposed site and application process. When an applicant is ready to submit a completed application, an appointment is scheduled after receipt of a written request. The Public Works Department will process the application, however the Community Development Department and the Planning Commission will render decisions on all major wireless facility permits. After the Planning Commission makes its ruling, the Public Works Department will follow-up and close-out the permit. Section 12.18.060 outlines the pre -submittal and application submittal process. a. Pre -submittal Conference — see section 12.18.060(A) b. Application submittal appointment — see section 12.18.060(8) 3. New Provisions There are many new regulations applicable to wireless installations. The following is a highlight of those most significant. a. Application Requirements Applicants seeking to install in the ROW shall be required to provide the following pursuant to the new application requirements, as applicable: 01203.0015/277835.4 9 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 10 i. Detailed plans regarding the proposed installation ii. Justification study to support the proposed installation including an Alternative Sites Analysis iii. Completed environmental assessment application iv. Visual impact analysis v. Radio Frequency compliance report vi. Noise study vii. Traffic control plan viii. Landscape plans ix. Geographic and propagation maps x. Certificate of Public Convenience or Necessity (CPCN) or other documentation to establish right to enter the ROW. A. Mock-up installation notice requirements xii. A deposit for independent expert to review all submitted documents and proposals xiii. Photo simulations of existing and proposed facilities b. Notice Requirements i. As stated above, the new ordinance includes new notice provisions for all mock-ups ii. All requests for a Major Wireless Telecommunications Faciltiy Permit shall be subject to a public hearing before the Planning Commission and shall require notice of the same iii. All applicant's are required to notify the city in advance of any shot clock expiration C. Standards Related to Community Impacts i. Screening or camouflage design ii. New poles are discouraged iii. Installations on existing poles are limited so as to protect aesthetics iv. Accessory equipment shall be installed underground to the extent feasible v. Landscaping required where appropriate vi. Lighting limitations as allowed vii. Noise limitations 01203.0015/277835.4 10 CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS INSTALLATIONS IN THE PUBLIC RIGHT-OF-WAY January 19, 2016 Page 11 d. Preferred Locations are as follows: i. Along arterial or non -local roads ii. Co -located with existing sites CONCLUSION As detailed above, due to a substantial need for increased regulations for installations in the ROW, it is recommended the City Council adopt the attached urgency ordinance. ALTERNATIVES 1. Continue the matter to a date certain to provide time to consider public comments and amendments to the proposed ordinance. 2. Maintain the existing regulations and process for wireless installations in the ROW. Attarhmantc A. RPVMC at section 13.12.330 regarding wireless installations in the ROW (page 12) B. Draft of ordinance made public on December 3, 2015 (page 14) C. Minutes from the community workshop held on December 7, 2015 (page 41) D. Comment letter from Paul R. Obyle on behalf of Crown Castle (page 45) E. Comment letter from Latham & Watkins on behalf of Southern California Gas Company (page 53) F. Comment letter from Mackenzie & Albritton on behalf of Verizon Wireless (page 59) G. Email comments from the public (page 69) H. Redlined draft of ordinance depicting changes made since December 3, 2015 in response to comments. (page 82) I. Proposed ordinance for recommended for adoption (page 117) J. Proposed Wireless Telecommunications Application (page 149) 01203.0015/277835.4 11 Attachment A 13.12.330 - Telecommunications service provided by telephone corporations. A. The city council finds and determines as follows: 1. The Federal Telecommunications Act of 1996 preempts and declares invalid all state rules that restrict entry or limit competition in both local and long-distance telephone service. 2. The California Public Utilities Commission ("CPUC") is primarily responsible for the implementation of local telephone competition, and it issues certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations. 3. Section 234(a) of the California Public Utilities Code defines a "telephone corporation" as "every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state." 4. Section 616 of the California Public Utilities Code provides that a telephone corporation "may condemn any property necessary for the construction and maintenance of its telephone line." 5. Section 2902 of the California Public Utilities Code authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets. 6. Section 7901 of the California Public Utilities Code authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abatements for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters. 7. Section 7901.1 of the California Public Utilities Code confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the imposition of fees. 8. Section 50030 of the California Government Code provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes. B. In recognition of and in compliance with the statutory authorizations and requirements set forth above in subsection A of this section, the following regulatory provisions are applicable to a telephone corporation that desires to provide telecommunications service by means of facilities that are proposed to be constructed within the city's public rights-of-way: 1. The telephone corporation must apply for and obtain, as may be applicable, an excavation permit, an encroachment permit, or a building permit ("ministerial permit"). 2. In addition to the information required by this Code in connection with an application for a ministerial permit, a telephone corporation must submit to the city the following supplemental information: a. A copy of the certificate of public convenience and necessity issued by the CPUC to the applicant, and a copy of the CPUC decision that authorizes the applicant to provide the telecommunications service for which the facilities are proposed to be constructed in the city's public rights-of-way. 12 Attachment A b. If the applicant has obtained from the CPUC a certificate of public convenience to operate as a "competitive local carrier," the following additional requirements are applicable: As required by Decision No. 95-12-057 of the CPUC, the applicant must establish that it has timely filed with the city a quarterly report that describes the type of construction and the location of each construction project proposed to be undertaken in the city during the calendar quarter in which the application is filed, which information is sufficient to enable the city to coordinate multiple projects, as may be necessary. If the applicant's proposed construction project will extend beyond the utility rights-of- way into undisturbed areas or other rights-of-way, the applicant must establish that it has filed a petition with the CPUC to amend its certificate of public convenience and necessity and that the proposed construction project has been subjected to a full-scale environmental analysis by the CPUC, as required by Decision No. 95-12-057 of the CPUC. iii. The applicant must inform the city whether its proposed construction project will be subject to any of the mitigation measures specified in the negative declaration ["Competitive Local Carriers" (CLCs) Projects for Local Exchange Communication Service throughout California] or to the mitigation monitoring plan adopted in connection with Decision No. 95-12-057 of the CPUC. The city's issuance of a ministerial permit will be conditioned upon the applicant's compliance with all applicable mitigation measures and monitoring requirements imposed by the CPUC upon telephone corporations that are designated as "competitive local carriers." C. In recognition of the fact that numerous excavations in the public rights-of-way diminish the useful life of the surface pavement, and for the purpose of mitigating the adverse impacts of numerous excavations on the quality and longevity of public street maintenance within the city, the following policies and procedures are adopted: The city manager is directed to ensure that all public utilities, including telephone corporations, comply with all local design, construction, maintenance and safety standards that are contained within, or are related to, a ministerial permit that authorizes the construction of facilities within the public rights-of-way. The city manager is directed to coordinate the construction and installation of facilities by public utilities, including telephone corporations, in order to minimize the number of excavations in the public rights-of-way. In this regard, based upon projected plans for street construction or renovation projects, the city manager is authorized to establish on a quarterly basis one or more construction time periods or "windows" for the installation of facilities within the public rights-of- way. Telephone corporations and other public utilities that submit applications for ministerial permits to construct facilities after a predetermined date may be required to delay such construction until the next quarterly "window" that is established by the city. D. Chapter 9.04 of Title 9 of this Code sets forth the city's regulatory requirements that apply to the installation and operation of burglar alarm devices within the city. (Ord. 339 § 2 (part), 1998) 13 Attachment B ORDINANCE NO. AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES, CALIFORNIA, ADDING A NEW CHAPTER ENTITLED "WIRELESS TELECOMMUNICATIONS FACILITIES" TO CHAPTER 18 OF TITLE 12 OF THE RANCHO PALOS VERDES MUNICIPAL CODE TO PROVIDE UNIFORM AND COMPREHENSIVE REGULATIONS AND STANDARDS, ALONG WITH PERMIT REQUIREMENTS, FOR THE INSTALLATION OF WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY A. Recitals. (i) The purpose of this Ordinance is to amend the City's Municipal Code to provide uniform and comprehensive standards and regulations, along with permit requirements, for the installation of wireless telecommunications facilities in the City's public right-of-way. (ii) On January 5, 2016, the City Council of the City of Rancho Palos Verdes conducted and concluded a duly noticed public hearing concerning the Municipal Code amendments contained herein as required by law, and received testimony from City staff and all interested parties regarding the proposed amendments. (iii) The city council finds and determines as follows: 1. The Federal Telecommunications Act of 1996 preempts and declares invalid all state rules that restrict entry or limit competition in both local and long-distance telephone service. 2 The California Public Utilities Commission ("CPUC") is primarily responsible for the implementation of local telephone competition, and it issues certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations. 3. Section 234(a) of the California Public Utilities Code defines a "telephone corporation" as "every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state." 4. Section 616 of the California Public Utilities Code provides that a telephone corporation "may condemn any property necessary for the construction and maintenance of its telephone line." 5. Section 2902 of the California Public Utilities Code authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets. Page 1 of 27 14 01203.0006/276114.3 Attachment B 6. Section 7901 of the California Public Utilities Code authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abatements for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters. 7. Section 7901.1 of the California Public Utilities Code confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the imposition of fees. 8. Section 50030 of the California Government Code provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes. (iv) All legal prerequisites to the adoption of the Ordinance have occurred. B. Ordinance. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES ORDAIN AS FOLLOWS: correct. SECTION 1. The facts set forth in the Recitals, Part A of this Ordinance, are true and SECTION 2. Environmental Review A. Pursuant to the California Environmental Quality Act ("CEQA"), as amended, the CEQA Guidelines promulgated thereunder, and the City's local CEQA Guidelines, City staff prepared an Initial Study of the potential environmental effects of this proposed Ordinance and the Municipal Code amendments contained herein (the "project"). On the basis of the Initial Study, City staff for the City of Rancho Palos Verdes, acting as Lead Agency, determined that there was no substantial evidence that the project could have a significant effect on the environment; as a result, City staff prepared a Negative Declaration for the project and provided public notice of the public comment period and of the intent to adopt the Negative Declaration. B. The City Council has independently reviewed (1) the Negative Declaration and Initial Study (both of which are attached hereto as Exhibit "A" and incorporated by this reference) and (2) all comments received, both written and oral, regarding the Negative Declaration and Initial Study, and based upon the whole record before it finds that those documents were prepared in compliance with CEQA, the CEQA Guidelines and the City's local CEQA Guidelines, that City staff has correctly concluded that there is no substantial evidence that the project will have a significant effect on the environment, and that the findings contained Page 2 of 27 15 01203.0006/276114.3 Attachment B therein represent the independent judgment and analysis of the City Council. Based on these findings, the City Council hereby approves and adopts the Negative Declaration for this project. C. The custodian of records for the Initial Study, Negative Declaration and all materials which constitute the record of proceedings upon which the City Council's decision was based is the City Clerk of the City of Rancho Palos Verdes. Those documents are available for public review in the Office of the City Clerk located at 30940 Hawthorne Blvd., Rancho Palos Verdes, California 90275. SECTION 3. Section 13.12.320 of Chapter 12, Title 13 is hereby amended and replaced in its entirety to read as follows: "13.12.320 Antennas for telecommunications services. A. Section 17.76.020 of Chapter 17.76 of Title 17 of this Code sets forth the city's regulatory requirements relating to the siting and construction of the following categories of antennas that are commonly used in providing or receiving telecommunications services: 1. Satellite earth station antennas, (also known as "satellite dish antennas"), which are parabolic or dish -shaped antennas which are in excess of one (1) meter in diameter or devices that are designed for over -the -air reception of radio or television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite services. 2. Commercial antennas, which are unstaffed facilities for the transmission or reception of radio, television, and communications signals, commonly consisting of an antenna array, connection cables, a support structure to achieve the necessary elevation, and an equipment facility to house accessory equipment, which may include cabinets, pedestals, shelters, and similar protective structures. B. Notwithstanding any other provision of this chapter, Chapter 12.18 of this code shall apply to siting, modification and construction of wireless telecommunication facilities, as defined therein, which in whole or in part, itself or as part of another structure, rests upon, in, over or under the public right-of-way, including, but not limited to, any such facility owned, controlled, operated or managed by an entity entitled to construct within the right-of-way pursuant to a franchise with the city or state law." SECTION 4. Section 13.12.320 of Chapter 12, Title 13 is hereby repealed. Page 3 of 27 16 01203.0006/276114.3 Attachment B SECTION 5. Chapter 18 "Wireless Telecommunications Facilities in the Public Right - of -Way" is hereby added to Title 12 of the Rancho Palos Verdes Municipal Code beginning at Section 12.18.010 to read as follows: "CHAPTER 18. WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY 12.18.010 Purpose. The purpose and intent of this chapter is to provide a uniform and comprehensive set of regulations and standards for the permitting, development, siting, installation, design, operation and maintenance of wireless telecommunications facilities in the city's public right-of-way. These regulations are intended to prescribe clear and reasonable criteria to assess and process applications in a consistent and expeditious manner, while reducing the impacts associated with wireless telecommunications facilities. This chapter provides standards necessary (1) for the preservation of the public right-of-way in the city for the maximum benefit and use of the public, (2) to promote and protect public health and safety, community welfare, visual resources and the aesthetic quality of the city consistent with the goals, objectives and policies of the General Plan, and (3) to provide for the orderly, managed and efficient development of wireless telecommunications facilities in accordance with the state and federal laws, rules and regulations. 12.18.020 Definitions. "Accessory equipment" means any equipment associated with the installation of a wireless telecommunications facility, including but not limited to cabling, generators, fans, air conditioning units, electrical panels, equipment shelters, equipment cabinets, equipment buildings, pedestals, meters, vaults, splice boxes, and surface location markers. "Antenna" means that part of a wireless telecommunications facility designed to radiate or receive radio frequency signals. "Cellular" means an analog or digital wireless telecommunications technology that is based on a system of interconnected neighboring cell sites. "Collocation" means the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signal for communication purposes. "COW" means a "cell on wheels," which is a wireless telecommunications facility temporarily rolled in or temporarily installed. "Director" means the director of public works, or his or her designee. "Facility(ies)" means wireless telecommunications facilities. "Ground -Mounted" means mounted to a telecommunications tower. Page 4 of 27 17 01203.0006/276114.3 Attachment B "Modification" means a change to an existing wireless telecommunications facility that involves any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation, including, but not limited to, changes in size, shape, color, visual design, or exterior material. "Modification" does not include repair, replacement or maintenance if those actions do not involve a change to the existing facility involving any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation. "Monopole" means a structure composed of a pole or tower used to support antennas or related equipment. A monopole also includes a monopine, monopalm and similar monopoles camouflaged to resemble faux trees or other faux objects attached on a monopole (e.g. water tower). "Mounted" means attached or supported. "Located within the public right-of-way" includes any facility which in whole or in part, itself or as part of another structure, rests upon, in, over or under the public right-of-way. "Pole" means a single shaft of wood, steel, concrete or other material capable of supporting the equipment mounted thereon in a safe and adequate manner and as required by provisions of this Code. "Public right-of-way" means any public street or public way now laid out or dedicated, and the space on, above or below it, and all extensions thereof, and additions thereto, under the jurisdiction of the city. "Telecommunications tower" means a freestanding mast, pole, monopole, guyed tower, lattice tower, free standing tower or other structure designed and primarily used to support wireless telecommunications facility antennas. "Utility Pole" means any pole or tower owned by any utility company that is primarily used to support wires or cables necessary to the provision of electrical or other utility services regulated by the California Public Utilities Commission. "Wireless telecommunications facility" or "facility" means any facility that transmits and/or receives electromagnetic waves. It includes, but is not limited to, antennas and/or other types of equipment for the transmission or receipt of such signals, telecommunications towers or similar structures supporting such equipment, related accessory equipment, equipment buildings, parking areas, and other accessory development. Exceptions: The term "wireless telecommunications facility" does not apply to the following: (a) Government owned and operated telecommunications facilities. (b) Emergency medical care provider -owned and operated telecommunications facilities. Page 5 of 27 18 01203.0006/276114.3 Attachment B (c) Mobile services providing public information coverage of news events of a temporary nature. (d) Any wireless telecommunications facilities exempted from this Code by federal law or state law. "Wireless telecommunications services" means the provision of services using a wireless telecommunications facility or a wireless telecommunications collocation facility, and shall include, but not limited to, the following services: personal wireless services as defined in the federal Telecommunications Act of 1996 at 47 U.S.C. §332(c)(7)(C) or its successor statute, cellular service, personal communication service, and/or data radio telecommunications. 12.18.030 Applicability. This division applies to the siting, construction or modification of any and all wireless telecommunications facilities located in the public right-of-way as follows: A. All facilities for which applications were not approved prior to January 5, 2016 shall be subject to and comply with all provisions of this division. B. All facilities for which applications were approved by the city prior to January 5, 2016 shall not be required to obtain a new or amended permit until such time as a provision of this code so requires. Any wireless telecommunication facility that was lawfully constructed prior to January 5, 2016 that does not comply with the standards, regulations and/or requirements of this division, shall be deemed a nonconforming use and shall also be subject to the provisions of section 12.18.230. C. All facilities, notwithstanding the date approved, shall be subject immediately to the provisions of this chapter governing the operation and maintenance (section 12.18.130), radio frequency emissions monitoring (section 12.18.140), cessation of use and abandonment (section 12.18.170), removal and restoration (section 12.18.180) of wireless telecommunications facilities and the prohibition of dangerous conditions or obstructions by such facilities (section 12.18.150); provided, however, that in the event a condition of approval conflicts with a provision of this division, the condition of approval shall control until the permit is amended or revoked. l 2.18.040 Wireless Telecommunications Facility Permit Requirements. A. Permit Required. 1. In addition to any other permit required pursuant to this Code, the installation or modification of a wireless telecommunications facility, which will be or is located within the public right-of-way shall require a Wireless Telecommunications Facility Permit. 2. In addition to any other permit required pursuant to this Code, the installation or modification of a wireless telecommunications facility, which will be or is located within the public right-of-way and is in any location listed in section 12.18.200, Page 6 of 27 19 01203.0006/276114.3 Attachment B shall require a Wireless Telecommunication Facility Permit and approval of an exception. B. Eligible Applicants. Only applicants who have been granted the right to enter the public right-of-way pursuant to state or federal law, or who have entered into a franchise agreement with the city permitting them to use the public right-of-way, shall be eligible for a permit to install or modify a wireless telecommunications facility or a wireless telecommunications collocation facility in the public right-of- way. C. Speculative Facility Prohibited. A wireless telecommunications facility, or wireless telecommunications support structure, or appurtenant facility thereto, which is built on speculation and for which there is no wireless tenant is prohibited within the city's public right-of-way. 12.18.050 Application for Wireless Telecommunications Facility Permit. A. Application. In addition to the information required of an applicant for an encroachment permit or any other permit required by this code, each applicant requesting approval of the installation or modification of a wireless telecommunications facility in the public right-of-way shall fully and completely submit to the city a written application on a form prepared by the director. B. Application Contents The director shall develop a an application form and make it available to applicants upon request. The supplemental application form for a new wireless telecommunications facility installation in the public right-of-way shall request the following information, in addition to all other information determined necessary by the director: 1. The name, address and telephone number of the owner and the operator of the proposed facility, if different from the applicant. 2. If the applicant is an agent, a letter of authorization from the owner of the facility. If the owner will not directly provide wireless telecommunications services, a letter of authorization from the person or entity that will provide those services. 3. If the facility will be located on or in the property of someone other than the owner of the facility (such as a street light pole, street signal pole, utility pole, utility cabinet, vault, or cable conduit), written authorization by any and all property owners authorizing the placement of the facility on or in the property owner's property. 4. A full written description of the proposed facility and its purpose. Page 7 of 27 20 01203.0006/276114.3 Attachment B 5. Detailed engineering plans of the proposed facility and related report prepared by a professional engineer registered in the state documenting the following: a. Height, diameter and design of the facility, including technical engineering specifications, economic and other pertinent factors governing selection of the proposed design, together with evidence that demonstrates that the proposed facility has been designed to the minimum height and diameter required from a technological standpoint for the proposed site. A cross-section of the tower structure shall be included. b. A photograph and model name and number of each piece of equipment included c. Power output and operating frequency for the proposed antenna. d. Total anticipated capacity of the structure, indicating the number and types of antennas and power and frequency ranges, which can be accommodated. e. Sufficient evidence of the structural integrity of the tower as required by the city. 6. The applicant has demonstrated, by way of a justification study, the rationale for selecting the proposed use, a detailed explanation of the coverage gap that the proposed use would serve, and how the proposed use is the least intrusive means for the applicant to provide wireless service. Said study shall include all existing structures and/ or alternative sites evaluated for potential installation of the proposed facility. 7. Site plan(s) to scale, specifying and depicting the exact proposed location of the pole, antennas, accessory equipment, landscaped areas, existing utilities, adjacent land uses, and showing compliance with section 12.18.080. 8. Scaled elevation plans of proposed poles, antennas, accessory equipment, and related landscaping and screening. 9. A completed environmental assessment application 10. If the applicant requests an exception to the requirements of this chapter (in accordance with section 12.18.190), the applicant shall provide all information and studies necessary for the city to evaluate that request. 11. An accurate visual impact analysis showing the maximum silhouette, viewshed analysis, color and finish palette and proposed screening for the facility, including scaled photo simulations from at least 3 different angles. 12. Completion of the radio frequency (RF) emissions exposure guidelines checklist contained in Appendix A to the Federal Communications Commission's (FCC) "Local Government Official's Guide to Transmitting Antenna RF Emission Page 8 of 27 21 01203.0006/276114.3 Attachment B Safety" to determine whether the facility will be "categorically excluded" as that term is used by the FCC. 13. For a facility that is not categorically excluded under the FCC regulations for RF emissions, the applicant shall also provide a technically detailed report certified by a qualified radio frequency engineer indicating the amount of radio frequency emissions expected from the proposed facility and associated accessory equipment, as well as the cumulative impacts of the other existing facilities at the site to the extent permitted by federal law, including co -located facilities, and stating that emissions from the proposed facility individually and combined with the cumulative emissions of on-site facilities will not exceed applicable standards set by the Federal Communications Commission. 14. Documentation certifying that the applicant has obtained all applicable licenses or other approvals required by the Federal Communications Commission to provide the services proposed in connection with the application. 15. Copies of any documents that the applicant is required to file pursuant to Federal Aviation Administration regulations for the facility. 16. A noise study prepared by a qualified acoustic engineer documenting that the level of noise to be emitted by the proposed facility and will comply with this Code including section 12.18.080(A)(6). 17. A traffic control when the proposed installation is in on any street in a non- residential zone. The City shall have the discretion to require a traffic control plan when the applicant seeks to use large equipment (e.g. crane). 18. A scaled conceptual landscape plan showing existing trees and vegetation and all proposed landscaping, concealment, screening and proposed irrigation with a discussion of how the chosen material at maturity will screen the site. 19. A written description identifying the geographic service area for the subject installation, accompanied by a master plan, including geographic and propagation maps, that identifies the location of the proposed facility in relation to all existing and planned facilities maintained within the city by each of the applicant, operator, and owner, if different entities. The master plan shall reflect all locations anticipated for new construction and/or modifications to existing facilities, including collocation, within two years of submittal of the application. Longer range conceptual plans for a period of five years shall also be provided, if available. 20. Certification that applicant is a telephone corporation or a statement providing the basis for its claimed right to enter the right-of-way. If the applicant has a certificate of public convenience and necessity (CPCN) issued by the California Public Utilities Commission, it shall provide a copy of its CPCN. Page 9 of 27 22 01203.0006/276114.3 Attachment B 21. An application fee, a deposit for a consultant's review as set forth in paragraph E of this section, and a deposit for review by the city's attorney, in an amount set by resolution by the City Council. 22. Proof that a temporary mock-up of the facility and sign has been installed at the proposed location for a period of at least thirty (30) calendar days. Applicant shall obtain an encroachment permit before installing the temporary mock-up, and must remove the temporary mock-up within five (5) calendar days of receiving a written notice to remove from the director. The mock-up shall demonstrate the height and mass of the facility, including all interconnecting cables and shall include a sign that displays the image of the proposed installation, including any accessory equipment cabinet, and the telephone number of the Public Works Department. Prior to the installation of the mock-up, the applicant shall give notice in accordance with the provisions at section 17.80.090 23. Any other information and/or studies determined necessary by the director may be required. C. Application Contents — Modification of Existing Facility. The content of the supplemental application form for a modification to an existing facility shall be determined by the director, and shall include the requirements listed in section 12.18.050(B) unless prohibited by state or federal law. D. Effect of State or Federal Law Change. In the event a subsequent state or federal law prohibits the collection of any information required by section 12.18.050(B), the director is authorized to omit, modify or add to that request from the city's application form with the written approval of the city attorney, which approval shall be a public record. E. Independent Expert. The director is authorized to retain on behalf of the city an independent, qualified consultant to review any application for a permit for a wireless telecommunications facility. The review is intended to be a review of technical aspects of the proposed wireless telecommunications facility and shall address any or all of the following: 1. Compliance with applicable radio frequency emission standards; 2. Whether any requested exception is necessary to close a significant gap in coverage and is the least intrusive means of doing so; 3. The accuracy and completeness of submissions; 4. Technical demonstration of the unavailability of alternative sites or configurations and/or coverage analysis; 5. The applicability of analysis techniques and methodologies; 6. The validity of conclusions reached or claims made by applicant; Page 10 of 27 23 01203.0006/276114.3 Attachment B 7. The viability of alternative sites and alternative designs; and S. Any other specific technical issues identified by the consultant or designated by the city. The cost of this review shall be paid by the applicant through a deposit pursuant to an adopted fee schedule resolution. No permit shall be issued to any applicant which has not fully reimbursed the city for the consultants cost. 12.18.060 Review Procedure A. Permit Approval. A wireless telecommunications facility permit shall be considered by the director once the application is complete, the public review period of the mock-up is complete, and the director is satisfied that the proposed wireless telecommunications facility meets all requirements of this code. The wireless telecommunications facility permit may be approved by the director after the director makes the findings required by section 12.18.090. The director's findings shall be in writing. The director shall have the discretion to forward all applications to the Traffic Safety Committee for review and approval in accordance with the provisions of this chapter 12. B. Appeal to city council. The decision of the director or the Traffic Safety Committee may be appealed to the city council pursuant to section 17.80.070 (Hearing Notice and Appeal Procedures) of Title 17. For purposes of this section, section 17.80.070 is modified by substituting the word "director" wherever "planning commission" appears in those sections, and the word "director" that appears in that section shall have the same meaning given that word in section 12.18.020. C. Action by city council. In conducting an appeal hearing, the city council may hear the appeal de novo. 12.18.080 Requirements for Facilities within the Public Right -of -Way A. Design and Development Standards. All wireless telecommunications facilities that are located within the public right-of-way shall be designed and maintained as to minimize visual, noise and other impacts on the surrounding community and shall be planned, designed, located, and erected in accordance with the following: 1. General Guidelines. a. The applicant shall employ screening, undergrounding and camouflage design techniques in the design and placement of wireless telecommunications facilities in order to ensure that the facility is as visually inconspicuous as possible, to prevent the facility from dominating the surrounding area and to hide the facility from predominant views from surrounding properties all in a manner that achieves compatibility with the community. Page 11 of 27 24 01203.0006/276114.3 Attachment B b. Screening shall be designed to be architecturally compatible with surrounding structures using appropriate techniques to camouflage, disguise, and/or blend into the environment, including landscaping, color, and other techniques to minimize the facility's visual impact as well as be compatible with the architectural character of the surrounding buildings or structures in terms of color, size, proportion, style, and quality. c. Facilities shall be located such that views from a residential structure are not significantly impaired. Facilities shall also be located in a manner that protects public views over city view corridors, as defined in the city's general plan, so that no significant view impairment results in accordance with this Code including section 17.02.040 This provision shall be applied consistent with local, state and federal law. 2. Notice. Applicant shall give notice of any proposed installation in accordance with section 17.80.090. For the purposes of this chapter section 17.80.090 is modified by substituting the word " proposed installation" for wherever "hearing," "public hearing" or "matter to be considered" appears in said section. 3. Traffic Safety. All facilities shall be designed and located in such a manner as to avoid adverse impacts on traffic safety. 4. Blending Methods. All facilities shall have subdued colors and non -reflective materials that blend with the materials and colors of the surrounding area and structures. 5. Equipment. The applicant shall use the least visible equipment possible. Antenna elements shall be flush mounted, to the extent feasible. All antenna mounts shall be designed so as not to preclude possible future collocation by the same or other operators or carriers. Unless otherwise provided in this section, antennas shall be situated as close to the ground as possible. 6. Poles. a. Facilities shall be located along arterial streets unless an exception pursuant to section 12.18.190 is granted. b. Only pole -mounted antennas shall be permitted in the right-of-way. All other telecommunications towers are prohibited, and no new poles are permitted that are not replacing an existing pole. (For exceptions see subparagraph (i) below and section 12.18.190.) c. Utility poles. The maximum height of any antenna shall not exceed forty-eight (48) inches above the height of an existing utility pole, nor shall any portion of the antenna or equipment mounted on a pole be less than sixteen and a half (16 1/2) feet above any drivable road surface. All installations on utility poles shall fully comply with the California Public Utilities Commission general orders, including, but not limited to, General Order 95, as revised. Page 12 of 27 25 01203.0006/276114.3 Attachment B d. Light poles. The maximum height of any antenna shall not exceed six (6) feet above the existing height of a light pole. Any portion of the antenna or equipment mounted on a pole shall be no less than sixteen and a half (16 1/2) feet above any drivable road surface. e. Replacement poles. If an applicant proposes to replace a pole in order to accommodate the facility, the pole shall match the appearance and dimensions of the original pole to the extent feasible. f. Pole mounted equipment, exclusive of antennas, shall not exceed six (6) cubic feet in dimension. g. All poles shall be designed to be the minimum functional height and width required to support the proposed antenna installation. h. An exception shall be required to place a new pole in the public right-of-way. If an exception is granted for placement of new poles in the right-of-way: i. Such new poles shall be designed to resemble existing poles in the right- of-way near that location, including size, height, color, materials and style, with the exception of any existing pole designs that are scheduled to be removed and not replaced. ii. Such new poles that are not replacement poles shall be located at least ninety (90) feet from any existing pole to the extent feasible to prevent pole clustering in the public right-of-way. iii. Such new poles shall not adversely impact public view corridors, as defined in the general plan, and shall be located to the extent feasible in an area where there is existing foliage or some other feature that obscures the view of the pole. iv. A new pole justification analysis shall be submitted to demonstrate why existing infrastructure cannot be utilized and demonstrating the new pole is the least intrusive means possible. i. All cables, including, but not limited to, electrical and utility cables, shall be run within the interior of the pole and shall be camouflaged or hidden to the fullest extent feasible without jeopardizing the physical integrity of the pole. Conduit and cables attached to the exterior of poles shall be flush thereto. 7. Space. Each facility shall be designed to occupy the least amount of space in the right-of-way that is technically feasible. 8. Wind Loads. Each facility shall be properly engineered to withstand wind loads as required by this Code or any duly adopted or incorporated code. An evaluation of high wind load capacity shall include the impact of modification of an existing facility. Page 13 of 27 26 01203.0006/276114.3 Attachment B 9. Obstructions. Each component part of a facility shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, inconvenience to the public's use of the right-of-way, or safety hazards to pedestrians and motorists and in compliance with section 17.48.070 so as not to obstruct the visibility triangle. 10. Public Facilities. A facility shall not be located within any portion of the public right-of-way interfering with access to fire hydrants, fire stations, fire escapes, water valves, underground vaults, valve housing structures, or any other public health or safety facility. 11. Screening. All ground -mounted facility, pole -mounted equipment, or walls, fences, landscaping or other screening methods shall be installed no less than eighteen (18) inches from the curb and gutter flow line. 12. Accessory Equipment. With the exception of the electric meter, all accessory equipment shall be located underground. a. Unless city staff determines that there is no room in the public right-of-way for undergrounding or that undergrounding is not feasible, an exception shall be required in order to place accessory equipment above -ground. b. When above -ground is the only feasible location for a particular type of accessory equipment and will be ground -mounted, such accessory equipment shall be enclosed within a structure, and shall not exceed a height of five (5) feet and a total footprint of fifteen (15) square feet, and shall be fully screened and/or camouflaged, including the use of landscaping, architectural treatment, or acceptable alternate screening. Required electrical meter cabinets shall be screened and/or camouflaged. c. In locations where homes are only along one side of a street, above -ground accessory equipment shall not be installed directly in front of a residential structure. Such above -ground accessory equipment shall be installed along the side of the street with no homes. Unless said location is located within the coastal setback or the landslide moratorium area, then such locations shall be referred to the city's geotechnical staff for review and recommendations. 13. Landscaping. Where appropriate, each facility shall be installed so as to maintain and enhance existing landscaping on the site, including trees, foliage and shrubs, whether or not utilized for screening. Additional landscaping shall be planted, irrigated and maintained by applicant where such vegetation is deemed necessary by the city to provide screening or to block the line of sight between facilities and adjacent uses. 14. Signage. No facility shall bear any signs or advertising devices other than certification, warning or other signage required by law or permitted by the city. Page 14 of 27 27 01203.0006/276114.3 Attachment B 15. Lighting. No facility may be illuminated unless specifically required by the Federal Aviation Administration or other government agency. Beacon lights are not permitted unless required by the Federal Aviation Administration or other government agency. Legally required lightning arresters and beacons shall be included when calculating the height of facilities such as towers, lattice towers and monopoles. Any required lighting shall be shielded to eliminate, to the maximum extent possible, impacts on the surrounding neighborhoods. The applicant shall submit a lighting study which shall be prepared by a qualified lighting professional to evaluate potential impacts to adjacent properties. 16. Noise. a. Backup generators shall only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of 7:00 PM and 7:00 AM. b. At no time shall equipment noise from any facility exceed an exterior noise level of fifty-five (55) dBA three (3) feet from the source of the noise if the facility is located in the public right-of-way adjacent to a business, commercial, manufacturing, utility or school zone; provided, however, that for any such facility located within five hundred (500) feet of any property zoned residential or improved with a residential use, such equipment noise shall not exceed forty-five (45) dBA. 17. Security. Each facility shall be designed to be resistant to, and minimize opportunities for, unauthorized access, climbing, vandalism, graffiti and other conditions that would result in hazardous situations, visual blight or attractive nuisances. The director may require the provision of warning signs, fencing, anti - climbing devices, or other techniques to prevent unauthorized access and vandalism when, because of their location and/or accessibility, a facility has the potential to become an attractive nuisance. Additionally, no lethal devices or elements shall be installed as a security device. 18. Modification. At the time of modification of a wireless telecommunications facility, existing equipment shall, to the extent feasible, be replaced with equipment that reduces visual, noise and other impacts, including, but not limited to, undergrounding the equipment and replacing larger, more visually intrusive facilities with smaller, less visually intrusive facilities. 19. The installation and construction approved by a wireless telecommunications facility permit shall begin within one (1) year after its approval or it will expire without further action by the city. B. Conditions of Approval. In addition to compliance with the design and development standards outlined in this section, all facilities shall be subject to the following conditions of approval (approval may be by operation of law), as well as any Page 15 of 27 28 01203.0006/276114.3 Attachment B modification of these conditions or additional conditions of approval deemed necessary by the director: 1. The permittee shall submit an as built drawing within ninety (90) days after installation of the facility. [As-builts shall be in an electronic format acceptable to the City which can be linked to the City's GIS] 2. The permittee shall submit and maintain current at all times basic contact and site information on a form to be supplied by the city. The permittee shall notify the city of any changes to the information submitted within seven (7) days of any change, including change of the name or legal status of the owner or operator. This information shall include, but is not limited to, the following: a. Identity, including the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator, and the agent or person responsible for the maintenance of the facility. b. The legal status of the owner of the wireless telecommunications facility. 3. Upon any transfer or assignment of the permit, the director may require submission of any supporting materials or documentation necessary to determine that the proposed use is in compliance with the existing permit and all of its conditions of approval including, but not limited to, statements, photographs, plans, drawings, models, and analysis by a qualified radio frequency engineer demonstrating compliance with all applicable regulations and standards of the Federal Communications Commission and the California Public Utilities Commission. If the director determines that the proposed operation is not consistent with the existing permit, the director shall notify the permittee who shall either revise the application or apply for modification of the permit pursuant to the requirements of this code. 4. At all times, all required notices and signs shall be posted on the site as required by the Federal Communications Commission and California Public Utilities Commission, and as approved by the City. The location and dimensions of a sign bearing the emergency contact name and telephone number shall be posted pursuant to the approved plans. 5. Permittee shall pay for and provide a performance bond, which shall be in effect until the facilities are fully and completely removed and the site reasonably returned to its original condition, to cover permittee's obligations under these conditions of approval and this code. The bond coverage shall include, but not be limited to, removal of the facility. (The amount of the performance bond shall be calculated by the applicant in its submittal documents in an amount rationally related to the obligations covered by the bond and shall be specified in the conditions of approval.) Before issuance of any building permit, permittee must submit said performance bond. Page 16 of 27 29 01203.0006/276114.3 Attachment B 6. If a nearby property owner registers a noise complaint and such complaint is verified as valid by the city, the city may hire a consultant to study, examine and evaluate the noise complaint and the permittee shall pay the fee for the consultant if the site is found in violation of this chapter. The matter shall be reviewed by the director. If the director determines sound proofing or other sound attenuation measures should be required to bring the project into compliance with the Code, the director may impose that condition on the project after notice and a public hearing. 7. A condition setting forth the permit expiration date in accordance with section 12.18.160 shall be included in the conditions of approval. 8. The wireless telecommunications facility shall be subject to such conditions, changes or limitations as are from time to time deemed necessary by the city engineer for the purpose of. (a) protecting the public health, safety, and welfare; (b) preventing interference with pedestrian and vehicular traffic; and/or (c) preventing damage to the public right-of-way or any property adjacent to it. The City may modify the permit to reflect such conditions, changes or limitations by following the same notice and public hearing procedures as are applicable to the grant of a wireless telecommunications facility permit for similarly located facilities, except the permittee shall be given notice by personal service or by registered or certified mail at the last address provided to the City by the permittee. 9. The permittee shall not transfer the permit to any person prior to completion of construction of the facility covered by the permit. 10. The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement or property without the prior consent of the owner of that structure, improvement or property. No structure, improvement or property owned by the city shall be moved to accommodate a wireless telecommunications facility unless the city determines that such movement will not adversely affect the city or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the city's structure, improvement or property. Prior to commencement of any work pursuant to an encroachment permit issued for any facility within the public right- of-way, the permittee shall provide the city with documentation establishing to the city's satisfaction that the permittee has the legal right to use or interfere with any other structure, improvement or property within the public right-of-way to be affected by applicant's facilities. 11. The permittee shall assume full liability for damage or injury caused to any property or person by the facility. 12. The permittee shall repair, at its sole cost and expense, any damage including, but not limited to subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to city streets, sidewalks, walks, curbs, gutters, trees, parkways, street Page 17 of 27 30 01203.0006/276114.3 Attachment B lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility line and systems, or sewer systems and sewer lines that result from any activities performed in connection with the installation and/or maintenance of a wireless telecommunications facility in the public right-of-way. The permittee shall restore such areas, structures and systems to the condition in which they existed prior to the installation or maintenance that necessitated the repairs. In the event the permittee fails to complete such repair within the number of days stated on a written notice by the city engineer, the city engineer shall cause such repair to be completed at permittee's sole cost and expense. 13. No facility shall be permitted to be installed in the drip line of any tree in the right-of-way. 14. Insurance. The permittee shall obtain, pay for and maintain, in full force and effect until the facility approved by the permit is removed in its entirety from the public right-of-way, an insurance policy or policies of public liability insurance, with minimum limits of Two Million Dollars ($2,000,000) for each occurrence and Four Million Dollars ($4,000,000) in the aggregate, that fully protects the city from claims and suits for bodily injury and property damage. The insurance must name the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers as additional named insureds, be issued by an insurer admitted in the State of California with a rating of at least a A:VII in the latest edition of A.M. Best's Insurance Guide, and include an endorsement providing that the policies cannot be canceled or reduced except with thirty (30) days prior written notice to the city, except for cancellation due to nonpayment of premium. The insurance provided by permittee shall be primary to any coverage available to the city, and any insurance or self-insurance maintained by the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers shall be excess of permittee's insurance and shall not contribute with it. The policies of insurance required by this permit shall include provisions for waiver of subrogation. In accepting the benefits of this permit, permittee hereby waives all rights of subrogation against the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers. The insurance must afford coverage for the permittee's and the wireless provider's use, operation and activity, vehicles, equipment, facility, representatives, agents and employees, as determined by the city's risk manager. Before issuance of any building permit for the facility, the permittee shall furnish the city risk manager certificates of insurance and endorsements, in the form satisfactory to the city attorney or the risk manager, evidencing the coverage required by the city. 15. Permittee shall defend, indemnify, protect and hold harmless city, its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers from and against any and all claims, actions, or proceeding against the city, and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, Page 18 of 27 31 01203.0006/276114.3 Attachment B and volunteers to attack, set aside, void or annul, an approval of the city, planning commission or city council concerning this permit and the project. Such indemnification shall include damages of any type, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, attorneys' fees and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding. The city shall promptly notify the permittee of any claim, action, or proceeding. Nothing contained herein shall prohibit City from participating in a defense of any claim, action or proceeding. The City shall have the option of coordinating the defense, including, but not limited to, choosing counsel for the defense at permittee's expense. 16. Additionally, to the fullest extent permitted by law, the permittee, and every permittee and person in a shared permit, jointly and severally, shall defend, indemnify, protect and hold the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers harmless from and against all claims, suits, demands, actions, losses, liabilities, judgments, settlements, costs (including, but not limited to, attorney's fees, interest and expert witness fees), or damages claimed by third parties against the city for any injury claim, and for property damage sustained by any person, arising out of, resulting from, or are in any way related to the wireless telecommunications facility, or to any work done by or use of the public right-of- way by the permittee, owner or operator of the wireless telecommunications facility, or their agents, excepting only liability arising out of the sole negligence or willful misconduct of the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers. 17. Should the utility company servicing the facility with electrical service that does not require the use of an above ground meter cabinet, the permittee shall at its sole cost and expense remove the meter cabinet and any related foundation within thirty (30) days of such service being offered and reasonably restore the area to its prior condition. 18. Relocation. The permittee shall modify, remove, or relocate its facility, or portion thereof, without cost or expense to city, if and when made necessary by (i) any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or above ground facilities including but not limited to sewers, storm drains, conduits, gas, water, electric or other utility systems, or pipes owned by city or any other public agency, (ii) any abandonment of any street, sidewalk or other public facility, (iii) any change of grade, alignment or width of any street, sidewalk or other public facility, or (iv) a determination by the director that the wireless telecommunications facility has become incompatible with public health, safety or welfare or the public's use of the public right-of-way. Such modification, removal, or relocation of the facility shall be completed within ninety (90) days of notification by city unless exigencies dictate a shorter period for removal or relocation. Modification or relocation of the facility shall require submittal, review and approval of a Page 19 of 27 32 01203.0006/276114.3 Attachment B modified permit pursuant to the Code. The permittee shall be entitled, on permittee's election, to either a pro -rata refund of fees paid for the original permit or to a new permit, without additional fee, at a location as close to the original location as the standards set forth in the Code allow. In the event the facility is not modified, removed, or relocated within said period of time, city may cause the same to be done at the sole cost and expense of permittee. Further, due to exigent circumstances as provided in the Code, the city may modify, remove, or relocate wireless telecommunications facilities without prior notice to permittee provided permittee is notified within a reasonable period thereafter. 19. Permittee shall agree in writing that the permittee is aware of, and agrees to abide by, all conditions of approval imposed by the wireless telecommunications facility permit within thirty (30) days of permit issuance. The permit shall be void and of no force or effect unless such written consent is received by the city within the thirty (30) day period. 20. Prior to the issuance of any encroachment , permittee may be required to enter into a right-of-way agreement with the city in accordance with Section 12.18.100. 21. "Permittee" shall include the applicant and all successors in interest to this permit. 12.18.090 Findings. No permit shall be granted for a wireless telecommunications facility unless all of the following findings are made by the director: A. The proposed facility has been designed and located in compliance with all applicable provisions of this chapter. B. If applicable, the applicant has demonstrated its inability to locate on existing infrastructure. C. The applicant has provided sufficient evidence supporting the applicant's claim that it has the right to enter the public right-of-way pursuant to state or federal law, or the applicant has entered into a franchise agreement with the city permitting them to use the public right-of-way. D. The applicant has demonstrated the proposed installation is designed such that the proposed installation represents the least intrusive means possible. 12.18.100 [Section Reserved] 12.18.110 Nonexclusive grant. No approval granted under this division shall confer any exclusive right, privilege, license or franchise to occupy or use the public right-of-way of the city for delivery of telecommunications services or any other purposes. Further, no approval shall be construed as any warranty of title. Page 20 of 27 33 01203.0006/276114.3 Attachment B 12.18.120 Emergency Deployment. A COW shall be permitted for the duration of an emergency declared by the city or at the discretion of the director. 12.18.130 Operation and Maintenance Standards. All wireless telecommunications facilities must comply at all times with the following operation and maintenance standards. All necessary repairs and restoration shall be completed by the permittee, owner, operator or any designated maintenance agent within forty-eight (48) hours (i) after discovery of the need by the permittee, owner, operator or any designated maintenance agent or (ii) after permittee, owner, operator or any designated maintenance agent receives notification from a resident or the director. A. Each permittee of a wireless telecommunications facility shall provide the director with the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator and the agent responsible for the maintenance of the facility ("contact information"). Contact information shall be updated within seven (7) days of any change. B. All facilities, including, but not limited to, telecommunication towers, poles, accessory equipment, lighting, fences, walls, shields, cabinets, artificial foliage or camouflage, and the facility site shall be maintained in good condition, including ensuring the facilities are reasonably free of: 1. General dirt and grease; 2. Chipped, faded, peeling, and cracked paint; 3. Rust and corrosion; 4. Cracks, dents, and discoloration; 5. Missing, discolored or damaged artificial foliage or other camouflage; 6. Graffiti, bills, stickers, advertisements, litter and debris; 7. Broken and misshapen structural parts; and 8. Any damage from any cause. C. Graffiti shall be removed by permittee from a facility as soon as practicable, and in no instance more than twenty-four (24) hours from the time of notification by the city. D. All trees, foliage or other landscaping elements approved as part of the facility shall be maintained in good condition at all times, and the permittee, owner and operator of the facility shall be responsible for replacing any damaged, dead or decayed Page 21 of 27 34 01203.0006/276114.3 Attachment B landscaping. No amendment to any approved landscaping plan may be made until it is submitted to and approved by the director. E. The permittee shall replace its facilities, after obtaining all required permits, if maintenance or repair is not sufficient to return the facility to the condition it was in at the time of installation. F. Each facility shall be operated and maintained to comply at all times with the noise standards of this Code and the facility's conditions of approval, and shall be operated and maintained in a manner that will minimize noise impacts to surrounding residents. Except for emergency repairs, any testing and maintenance activities that will be audible beyond the property line shall only occur between the hours of 7:00 a.m. and 7:00 p.m. on Monday through Friday, excluding holidays, unless alternative hours are approved by the director. Backup generators, if permitted, shall only be operated during periods of power outages or for testing. G. Each owner or operator of a facility shall routinely inspect each site to ensure compliance with the standards set forth in this section and the conditions of approval. 12.18.140 RF Emissions and Other Monitoring Requirements. The owner and operator of a facility shall submit within ninety (90) days of beginning operations under a new or amended permit, and every two years from the date the facility began operations, a technically sufficient report ("monitoring report") that demonstrates the following: A. The facility is in compliance with applicable federal regulations, including Federal Communications Commission RF emissions standards, as certified by a qualified radio frequency emissions engineer; B. The facility is in compliance with all provisions of this section and its conditions of approval. 12.18.150 No Dangerous Condition or Obstructions Allowed No person shall install, use or maintain any wireless telecommunications facility or wireless telecommunications collocation facility which in whole or in part rests upon, in or over any public right of way, when such installation, use or maintenance endangers or is reasonably likely to endanger the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other governmental use, or when such facility unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near said location. 12.18.160 Permit Expiration. A. A permit for any wireless telecommunications facility shall be valid for a period of ten (10) years, unless pursuant to another provision of this Code it lapses sooner or is Page 22 of 27 35 01203.0006/276114.3 Attachment B revoked. At the end of ten (10) years from the date of issuance, such permit shall expire. B. A permittee may apply for a new permit within six (6) months prior to expiration. Said application and proposal shall comply with the city's current code requirements for wireless telecommunications facilities. 12.18.170 Cessation of Use or Abandonment A. A wireless telecommunications facility is considered abandoned and shall be promptly removed as provided herein if it ceases to provide wireless telecommunications services for ninety (90) or more consecutive days unless the permittee has obtained prior written approval from the director which shall not be unreasonably denied. If there are two (2) or more users of a single facility, then this provision shall not become effective until all users cease using the facility. B. The operator of a facility shall notify the city in writing of its intent to abandon or cease use of a permitted site or a nonconforming site (including unpermitted sites) within ten (10) days of ceasing or abandoning use. Notwithstanding any other provision herein, the operator of the facility shall provide written notice to the director of any discontinuation of operations of thirty (30) days or more. C. Failure to inform the director of cessation or discontinuation of operations of any existing facility as required by this section shall constitute a violation of any approvals and be grounds for: 1. Litigation; 2. Revocation or modification of the permit; 3. Acting on any bond or other assurance required by this article or conditions of approval of the permit; 4. Removal of the facilities by the city in accordance with the procedures established under this Code for abatement of a public nuisance at the owner's expense; and/or 5. Any other remedies permitted under this Code. 12.18.180 Removal and Restoration — Permit Expiration, Revocation or Abandonment A. Upon the expiration date of the permit, including any extensions, earlier termination or revocation of the permit or abandonment of the facility, the permittee, owner or operator shall remove its wireless telecommunications facility and restore the site to its natural condition except for retaining the landscaping improvements and any other improvements at the discretion of the city. Removal shall be in accordance with proper health and safety requirements and all ordinances, rules, and regulations of the city. The facility shall be removed from the property, at no cost or expense to the city. Page 23 of 27 36 01203.0006/276114.3 Attachment B B. Failure of the permittee, owner or operator to promptly remove its facility and restore the property within thirty (30) days after expiration, earlier termination or revocation of the permit, or abandonment of the facility, shall be a violation of this code, and be grounds for: 1. Prosecution; 2. Acting on any bond or other assurance required by this division or conditions of approval of permit; 3. Removal of the facilities by the city in accordance with the procedures established under this Code for abatement of a public nuisance at the owner's expense; and/or 4. Any other remedies permitted under this Code. C. Summary Removal. In the event the director or city engineer determines that the condition or placement of a wireless telecommunications facility located in the public right-of-way constitutes a dangerous condition, obstruction of the public right-of- way, or an imminent threat to public safety, or determines other exigent circumstances require immediate corrective action (collectively, "exigent circumstances"), the director or city engineer may cause the facility to be removed summarily and immediately without advance notice or a hearing. Written notice of the removal shall be served upon the person who owns the facility within five (5) business days of removal and all property removed shall be preserved for the owner's pick-up as feasible. If the owner cannot be identified following reasonable effort or if the owner fails to pick-up the property within sixty (60) days, the facility shall be treated as abandoned property. D. Removal of Facilities by City. In the event the city removes a facility in accordance with nuisance abatement procedures or summary removal, any such removal shall be without any liability to the city for any damage to such facility that may result from reasonable efforts of removal. In addition to the procedures for recovering costs of nuisance abatement, the city may collect such costs from the performance bond posted and to the extent such costs exceed the amount of the performance bond, collect those excess costs in accordance with this Code. Unless otherwise provided herein, the city has no obligation to store such facility. Neither the permittee, owner nor operator shall have any claim if the city destroys any such facility not timely removed by the permittee, owner or operator after notice, or removed by the city due to exigent circumstances. 12.18.190 Exceptions. A. Exceptions pertaining to any provision of this chapter, including, but not limited to, exceptions from findings that would otherwise justify denial, may be granted by the director if the director makes the finding that (i) denial of the facility as proposed would violate local, state and/or federal law, or (ii) a provision of this chapter, as applied to applicant, would deprive applicant of its rights under state and/or federal law. Page 24 of 27 37 01203.0006/276114.3 Attachment B B. The applicant shall have the burden of proving by clear and convincing evidence that denial of the facility as proposed would violate state and/or federal law, or the provisions of this division, as applied to applicant, would deprive applicant of its rights under state and/or federal law, using the evidentiary standards required by that law at issue. The city shall have the right to hire an independent consultant, at the applicant's expense, to evaluate the issues raised by the exception request and shall have the right to submit rebuttal evidence to refute the applicant's claim. 12.18.200 Location Restrictions. Locations Requiring an Exception. Wireless telecommunications facilities shall not locate in any of the following districts, areas or locations without an exception: A. Public right-of-way of collector roadways as identified in the general plan; B. Public right-of-way of local streets as identified in the general plan if within the residential zones; C. Public right-of-way if mounted to a new pole that is not replacing an existing pole in an otherwise permitted location. 12.18.210 Effect on Other Ordinances. Compliance with the provisions of this chapter shall not relieve a person from complying with any other applicable provision of this Code. In the event of a conflict between any provision of this division and other sections of this Code, this chapter shall control. 12.18.220 State or Federal Law. A. In the event it is determined by the city attorney that state or federal law prohibits discretionary permitting requirements for certain wireless telecommunications facilities, the permits required by this division for those facilities shall be deemed to be ministerial permits. Such a determination by the city attorney shall be in writing with citations to legal authority and shall be a public record. For those facilities, in lieu of a minor conditional use permit or a conditional use permit, a ministerial permit shall be required prior to installation or modification of a wireless telecommunications facility, and all provisions of this division shall be applicable to any such facility with the exception that the required permit shall be reviewed and administered as a ministerial permit by the director rather than as a discretionary permit. Any conditions of approval set forth in this provision or deemed necessary by the director shall be imposed and administered as reasonable time, place and manner rules. B. If subsequent to the issuance of the city attorney's written determination pursuant to (A) above, the city attorney determines that the law has changed and that discretionary permitting is permissible, the city attorney shall issue such determination in writing with citations to legal authority and all discretionary Page 25 of 27 38 01203.0006/276114.3 Attachment B permitting requirements shall be reinstated. The city attorney's written determination shall be a public record. C. All installations permitted pursuant to this chapter shall comply with all federal and state laws including but not limited to the American with Disabilities Act. 12.18.230 Nonconforming Wireless Telecommunications Facilities in the Right -of -Way A. Nonconforming wireless telecommunications facilities are those facilities that do not conform to this chapter. B. Nonconforming wireless telecommunications facilities shall, within ten (10) years from the date such facility becomes nonconforming, be brought into conformity with all requirements of this article; provided, however, that should the owner desire to expand or modify the facility, intensify the use, or make some other change in a conditional use, the owner shall comply with all applicable provisions of this Code at such time, to the extent the city entitled under federal and state law. C. An aggrieved person may file an appeal to the city council of any decision of the director made pursuant to this section. In the event of an appeal alleging that the ten (10) year amortization period is not reasonable as applied to a particular property, the city council may consider the amount of investment or original cost, present actual or depreciated value, dates of construction, amortization for tax purposes, salvage value, remaining useful life, the length and remaining term of the lease under which it is maintained (if any), and the harm to the public if the structure remains standing beyond the prescribed amortization period, and set an amortization period accordingly for the specific property." SECTION 6. Section 17.96.090 of Chapter 96, Title 17 is amended and replaced in its entirety to read as follows: "Commercial antenna" means all antennas, parabolic dishes, relay towers and antenna support structures used for the transmission or reception of radio, television and communication signals for commercial purposes. For the purpose of this definition, "commercial purposes" shall mean communications for hire or material compensation, or the use of commercial frequencies, as these terms are defined by the Federal Communications Commission (FCC). "Commercial antennas" shall not include antennas owned or operated by governmental agencies. SECTION 7. Severability. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this ordinance or the application thereof to any person or place, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remainder of this ordinance. The City Council hereby declares that it would have adopted this ordinance, and each and every section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. SECTION 8. Effective Date. This ordinance shall go into effect immediately. Page 26 of 27 39 01203.0006/276114.3 Attachment B SECTION 9. Certification. The city clerk of the City of Rancho Palos Verdes shall certify to the passage and adoption of this ordinance and shall cause the same or a summary thereof to be published and posted in the manner required by law. PASSED, APPROVED AND ADOPTED this day of following vote to wit: Ken Dyda Mayor ATTEST: Carla Morreales City Clerk APPROVED AS TO FORM: David J. Aleshire City Attorney 2016, by the Page 27 of 27 40 01203.0006/276114.3 Attachment C MEETING MINUTES MONDAY DECEMBER 7, 2015 - 7:00 PM City of Rancho Palos Verdes City Hall Community Room ATTENDEES: Jeff Calvagna, Q. Sean Huang, John Freeman, Frank Yan, Connie Senoo, Marita Daly, Justina Krakowski, Brian Campbell (City Council), Shaun Baptiste (SoCalGas), Faviola Ochoa (SoCalGas), Albert Garcia (SoCalGas), Stephen Garcia (Crown Castle), Christy Marie Lopez (City Attorney's Office), Tripp May (Telecom Law Firm), Nicole Jules (RPV), Charles Eder (RPV) The purpose of the meeting is to share and receive public comments on the draft Wireless Telecommunications Ordinance to be presented to City Council for adoption. The ordinance is an attempt to address issues that residents, city staff and wireless telecommunications applicants have experienced during the process of proposing and placing new facilities, including existing facility upgrades throughout the City. Utilities are entitled to install facilities within the public rights of way. The City, through its permit process, is entitled to impose "time, place, and manner" restrictions upon each applicant, within a timely manner. . COMMUNITY COMMENTS: General ■ The regulations have been written very well. The draft ordinance is thorough and covers everything and is very detailed. ■ Process is problematic: the process needs to include more public involvement. Anything that is unprecedented should go forward to the Planning Commission. ■ Initial Decision should be from an aesthetics standpoint (location and appropriateness). The Planning Commission should be the front end of the process and decide this. Public Works would finish the process. ■ The notification process should be revised. It needs to be clear. Residences want transparency. The ordinance should avoid the word "discretion" in any context. ■ Planning Commission should review the sites in the context of Planning and Zoning. It should not be in the hands of the Traffic Safety Committee. Planning Commission hearings are televised as opposed to Traffic Safety Committee, which are not. It needs resident input. They should follow the process similar to the City of Palos Verdes Estates (PVE). ■ Council Member Brian Campbell believes that the Planning Commission is not as busy and would be able to handle the extra responsibility. ■ There should be a uniform policy on the "look" of the sites. Palos Verdes Estates has a uniform policy and the City should be following the same aesthetics as Wireless Communications Workshop December 7, 2015 Page 1 of 4 41 Attachment C PVE. PVE has a good checklist. City should adopt the best practices of other cities. Process should take no more than three rounds of checks from all entities. ■ It was reiterated that Federal Law regulates the work and may not allow the City to interfere. The City's hands are tied by federal regulations. ■ The City, however, can do something about illegal installations. ■ Mr. Calvagna believes that the right tools are in the ordinance. The ordinance is great, but it needs to be "aggressively enforced." Otherwise, it is not as strong as it can be. ■ Current non -conforming sites have a 10 -year limit (when permit expires) ■ The process should include retroactive beautification ■ Residents want: RF Radiation questions answered, have a health study done, a report on the long-term effects, a way to keep facility to remain in compliance. ■ Existing installations should have RF studies done every two years. Could this be added in the ordinance for compliance? ■ Mr. Garcia (Crown Castle) stated that he could provide ambient tests for their existing facilities. Crown Castle offered independent studies. ■ The Federal Communications Commission (FCC) only regulates thermal effects, so City may not regulate non -thermal effects. ■ The proposed process currently would be to go to Public Works, then be reviewed by the telecom law firm (make suggestions), and back to Public Works. ■ Public Works should decide on the need and Planning should decide on the aesthetics ■ The process is weak on enforcement. Enforcement is critical. ■ The language in the draft ordinance provides too much discretion. ■ Residents want to require a 3rd Party Review, and make this a requirement, not a judgement call ■ Try to create a General classification system (Tier 1, Tier 2, Tier 3,... ) Tier 1 would be an objective criteria, Tier 2 would be subject to a public hearing. Here should be a provision also to speed up the process (perhaps "skip" Planning Commission review, if not necessarily needed) ■ Ordinance should have a way to incentivize residents to propose locations of the sites, drawing a clear line on where to add these sites. ■ Mr. Garcia added that Crown Castle always looks for the easier, least intrusive option. Mr. Garcia also stated that they have a License Agreement (Right of Way Use Agreement) with the City (originally under NextG) COMMENTS REGARDING SOCAL GAS: ■ Southern California Gas (SCG) has 18 total sites proposed (have installed these sites in over 200 cities) ■ SCG has a Franchise Agreement (running from 2005-2030) to install their appurtenances and are covered under the CPUC. They are not subject to Rule Wireless Communications Workshop December 7, 2015 Page 2 of 4 WA Attachment C 7901, or any telecommunications regulations. But they will comply with "Time, Place, and Manner" restrictions and not have "surprises" in the city. ■ Council Member Campbell stated that he was at the meeting when Southern California Gas presented the sites, but have not heard about it since. Ms. Ochoa proposed that they can present to the City Council about the new proposals. ■ SCG's concerns about the new ordinance include: o Would they need to follow the landscaping requirement; o Are they held to the 10 -year limitation?; o There was no recognition of the Franchise Agreement in the ordinance, will this ordinance threaten the agreement?; o Is the ordinance intended to address both Crown Castle and SCG? ■ SCG intends to send written comments about new ordinance ■ Residences surprised to see that new poles are part of the proposal. Original proposal did not mention the new poles. ADDITIONAL COMMENTS: ■ Mr. Calvagna does not want to derail the process , but wants a full-fledged effort and an incentive -based ordinance ■ Councilman Campbell asked City to go look for a process that works and use it. Crown Castle offered to give a process that helps. ■ Residences asked about view regulations and wanted it in the design guidelines. Could there be a Preferred Sites vs. Unpreferred Sites. City Attorney stated that this is not legally allowed. ■ In terms of mock-ups, Crown Castle wants the mock-ups to be tangible, which means doing construction. Residences countered that there is no "real" notice, making the actual installation a surprise. ■ The process needs to account for aesthetics prior to mock-up and it must pass a level of scrutiny before the mock up goes up. ■ Public wants someone (possibly the telecom law firm)to "kill" any plan before it even goes to the public is it's just a "crazy" proposal ■ City should have informal guidelines (not needed in the ordinance and can be created by Staff) ■ Residents wants standardization and a clear understanding of: underground vs. above -ground; inside/outside wires need to be distinguished in/on the poles depending on material (wood vs. other material); define the streets clearer. ■ Resident had a question of the noise level. 7-11 cell towers have a decibel level of 60 dBA. Is the City now reducing it? Wireless Communications Workshop December 7, 2015 Page 3 of 4 43 Attachment C ■ Mr. Freeman's comments: o Can there be an executive summary between the old ordinance and new ordinance? (There was no previous ordinance) o An updated procedure to the document dated 2/19/13 (City stated that an updated application is coming) o Wants oversight of what's going on — Public needs to be involved o A status document for everyone to see. If there are 15 steps to the process, each proposed site should show which step it is currently in. Wants to see all the complaints and other info. ■ Residents asked if there was a separate ordinance now for amateur radio, antennas, tv antennas, etc... ■ City Attorney explained the "shot clock" principle. ■ City stated that Code Enforcement Division can go after the illegal installations. ■ A GIS coded map is in the works. The City is still identifying the sites. ■ A requested "future" map would be difficult to supply as site locations are dynamic, and would be very hard to predict future usage. Location is consumer driven. ■ City invites comments and will review other entities. Wireless Communications Workshop December 7, 2015 Page 4 of 4 Attachment D Paul R. O'Boyle Paul R ©'Boyle, JD/NMA w/ www.oboylelaw.com t/ (858) 922-8807 13269 Deer Canyon Place e/ pro@oboylelaw.com f/ (858) 484-7831 San Diego, CA 92129 December 23, 2015 Ms_ Nicole Jules, Deputy Director Public Works. Community Development Department City of Rancho Palo Verdes 30940 Hawthorne Boulevard Rancho Palos Verde, CA 90275 RE; City of Rancho Palos Verdes Amendment to Municipal Code- Section 13.12.320 of Chapter 12, Title 13 Wireless Telecommunication Facilities Ordinance in the Public ROW Comments on Draft Ordinance Dear Ms. Jules, My client, Crown Castle NG West LLC ("Crown Castle"), and I would like to express our appreciation to the City of Rancho Palos Verdes ("City") for allowing us to participate and assist the City in revising its standards and procedures regarding the placement of wireless telecommunication facilities ("WTF") within the public Right -of - Way ("ROW"), that is to be codified under an amended Rancho Palos Verdes' Municipal Code Section 13.12.320 of Chapter 12, Title 13 ("Ordinance"). As the largest provider of Small Cells and Distributed Antenna Systems (collectively "Small Cells") in the United States, Crown Castle has deployed thousands of WTF in the ROW. Consequently, Crown Castle has developed an expertise in working with jurisdictions to thoughtfully plan and deploy WTF in some of the most exclusive communities in southern California including Del Mar, La Jolla, Beverly Hills and Montecito to name but a few. While Crown Castle would like to have a similar relationship with the City, the current Draft Ordinance significantly and adversely affects Crown Castle's ability to conduct business, and violates federal and state law. It is acknowledged that local jurisdictions do have the ability to regulate WTF so long as the regulations are reasonable in regard to time, place and manner and so long as the regulations do not contravene federal and state law. Unfortunately, the City's proposed regulations are not reasonable and contravene federal law and state law. Specifically, the City's proposed regulations violate the intent and meaning of the Telecommunications Act of 1996 (USC 253), Section 6409 of the Spectrum Act, and Sections 7901 and 7901.1 of the California Public Utility Code. Crown Castle is a Competitive Local Exchange Carrier ("CLEC") in the State of California that provides regulated telecommunications services under Certificate of 45 Attachment D Public Convenience and Necessity ("CPCN") #U-6741 -C granted by the California Public Utilities Commission ("CPUC"). Crown Castle is not a wireless service provider, nor does it provide wireless services to the general public. Instead, Crown is a telephone utility or "carrier's carrier" that builds whole communications networks. These networks include fiber optic cabling, digital processing hubs, and small antennas collectively referred to as Small Cells. These WTF are used to provide coverage and capacity solutions to wireless carriers such as Verizon, AT&T, T -Mobile and Sprint to name but a few. Because Crown Castle is a telephone corporation under California law, it has express rights to access the ROW to install its facilities in order to provide regulated services. Therefore, Crown Castle's primary areas of concern with the Draft Ordinance are the treatment of Small Cells in the ROW. Below are specific areas of the Draft Ordinance that Crown Castle believes should be revised in order to comply with federal and state law. Section 12.18.020 Derrnitions Under the definition of Collocation "eligible support structures" and for that matter "eligible facilities requests" should be defined within the meaning and intent of Section 6449 of the Spectrum Act. The definition of Public right-of-way should be modified to include "any public Street, way or alley laid out now or in the future dedicated, or maintained and the space on, above..." Section 12.18.040(C) Speculative Facility Prohibited states that a WTF cannot be built without first having a tenant. This requirement is illegal because it unreasonably interferes with the business relations of wireless providers. The City should instead use the widely accepted "significant gap in coverage" standard which considers coverage holes and capacity bottlenecks when determining the necessity of a proposed WTF. Section 12.18.050 Application for WTF Permit Section 12.18.050(8)(3) the requirement that an Applicant secure "written authorization by any and all property owners authorizing the placement of the facility" is onerous and over -reaching. Although the City may own most of the poles within the ROW, there are poles and facilities in the ROW that have collective ownership such as the Joint Pole Authority ("JPA") poles. This requirement should therefore be re -written to read that Applicant's must secure "written authorization from the Property Owner authorizing the placement of the facility on or in the Property Owner's property." Section 12.18.050(B)(5) an Applicant should not be required to produce Construction Drawing ("CD") level drawings to gain zoning approval. While CD -level drawings may be preferred by some Applicants, submittal requirements need only be sufficient for the City to make a determination about the physical dimensions and R2of8 46 Attachment D appearance of a proposed WTF. As currently written "detailed engineering plans" imply CD level of detail which is unnecessary costly and time consuming for a VVTF that may never be approved or built. Section 12.18.050(B)(11) the need for photo simulations from at least 3 different angles is redundant and unnecessary given that the Applicant's is required to erect a mock-up of the facility under Section 12.18.050(B)(22). Section 12.18.050(B)(11) an Applicant should only be required to conduct a visual impact analysis and viewshed analysis to the extent that the proposed WTF is located in or would affect a visual resource as defined in the City's General Plan. Section 12.18.050(B)(14) documentation certifying that required licenses from the FCC have been obtained should be applicable to the end user of the WTF (tenant),. who may or may not be the same entity as the Applicant. Section 12.18.050(B)(21) the phrase "in accordance with California Government Code Section 50030." should be added at the end of this requirement. Section 12.18.050(B)(22) the thought that an Applicant must give Notice and obtain a permit (an Encroachment Permit for a mock-up in this case) in order to apply for another permit (WTF Permit) is nonsensical. If the City wants to control the mock-up activities it should be sufficient for the City to issue a Traffic Control Permit for this work, especially since the mock-up will be up for approximately 30 days. In any event, the City needs to be aware that its Notice and mock-up period requirements do count against the application processing times for the proposed WTF as dictated by the federal "Shot Clock" rule. Section 12.18.050(B)(22) the requirement that the mock up include a sign with the image of the proposed installation seems silly. If people want to know what the proposed facility would look like, they should just look up. Section 12.18.060(E)Review Procedure it should be clearly stated in the Ordinance that the City Review Procedure, even in its most protracted iteration, must comply with federal "Shot Clock" requirements. Section 12.18.080 Requirements for Facilities within the ROW Section 12.18.080(A)(1)(a) the visual inconspicuousness of a facility to hide from predominant views from surrounding properties needs to be tied back to specific sections of the General Plan referencing the views that must be protected. Section 12.18.080(A)(1)(c) the views that shall not be impaired should reference specific sections of the General Plan or Community Plans that address such issues. P. 3 of 8 47 Attachment D The protected views should be from "residences" not "residential structures". Surely the intent should not be to protect views from uninhabited structures such as garages. Section 12.18.080(A)(4) Blending Methods the phrase "to the maximum extent possible" should be added to the end of this requirement. Section 12.18.080(A)(6)Po►es Section 12.18.080(A)(6)(b) the City cannot prohibit the placement of new poles, unless the new pole is replacing an existing pole. This requirement clearly impinges on the rights of Certificate of Public Convenience and Necessity ("CPCN") holders and needs to be struck. Section 12.18.080(A)(9)Obstructions should read, Each component part of a facility shall be located, "to maximum extent possible", so as not to cause... Inconvenience to the public's use of the ROW is an extremely low standard and should not be allowed to frustrate wireless deployments. Section 12.18.080(A)(11)Screening it may not be possible for "all" pole - mounted equipment to be installed no less than eighteen (18) inches from the curb and gutter flow line. This requirement appears to conflict with Section 72.98.080(5) which requires antennas to be "flush mounted". Section 12.18.080(A)(12)(b) where did the standard of height not to exceed five (5) feet and total footprint of fifteen (15) square feet for accessory equipment come from? The Ordinance should mirror FCC guidelines on these matters. What other land use in the Municipal Code requiring an electrical meter cabinet requires it to be screened? The screening of street furniture should be equally applied to all electric cabinets in the ROW. Section 12.18.080(A)(92)(c) the requirement should read accessory equipment shall not be installed in front of "residences", not residential structures. This requirement should tie back to the General Plan and should be applied in a nondiscriminatory fashion to all electric meter pedestals and the like ("street furniture") in the ROW. Section 12.18.080(A)(13) Landscaping. There needs to be a reasonable nexus between required screening and the impact created by a WTF. The City cannot simply impose landscape requirements "whether or not utilized for screening". Section 12.18.080(A)(15) Lighting. It is inappropriate for the City to count legally required lightning arresters and beacons to a facility's height. A lighting study should only be required if it is tied back to specific sections of the General Plan. Are proposed street light and traffic signal placements in the ROW required to perform a light study for potential impacts to adjacent properties? P. 4 of 8 48 Attachment D Section 12.18.080(A)(16)(b)Noise the noise from a WTF should not exceed the stated General Plan and Municipal Code standards for business, commercial, manufacturing, utility or school zones at the Property Line of those uses. it does not make sense to require such a standard three (3) feet from the source, if the receptor would not be impacted. Furthermore, a 45TdBA requirement five hundred (500) feet from a residential use similarly must be codified elsewhere in the Municipal Code in order to be enforceable. Section 12.18.080(A)(18) Modification the requirement that modifications must use smaller equipment flies in the face of Section 6409 of the Spectrum Act that envisions ministerial approval for facilities modifications that increase a facilities' dimensions by less than 5%.. Section 12.18.080(B Conditions of Approval Section 12.18.080(B)(2) the Permittee should have thirty (30) days to notify the City of Ownership change. Given the size and geographic scope of such transactions and the number of jurisdictions involved seven (7) days is not practical. Section 12.18.080(B)(3) while the change of Ownership of facilities in the ROW is a legitimate City concern, why does such an event trigger a compliance review? Section 12.18.080(B)(5) the Permittee should have the option of providing a performance bond "or another form of financial surety such as a letter of credit" to cover the coast of removing a facility and restoring the ROW. Section 12.18.080(8)(6) the Permittee should be given the opportunity to cure a noise violation, if a noise complaint has been verified, prior to the City hiring a consultant to study, examine and evaluate the noise complaint, Noise complaints for WTF should be handled no differently that other noise complaints in the City. Section 12.18.080(B)(8) the City cannot have and create indefinite, open ended Conditions of Approval for WTF. If there are issues of public health and safety, interference with ROW uses, or damage to the ROW, the City should work in consultation with the Permittee to address those concerns. There is no justification for the City to hold another public hearing and impose additional conditions on a legally permitted land use. Section 12.18.080(B)(9) this condition does not allow the transfer of a permit for a WTF until after the completion of construction of a facility. This condition affects the alienability of the facility and should therefore be struck. Section 12.18.080(B)(10) as currently written, the Draft Ordinance requires that an Applicant must apply for an Encroachment Permit to erect a mock-up for a facility, in P.5of8 49 Attachment D order to apply for a WTF Permit. Following the issuance of the WTF Permit, the Permittee must then secure an Encroachment Permit? Section 12.98.080(6)(12) the last sentence should be modified to read, "In the event the Permittee fails to commence and continuously pursue repair within thirty (30) days, the City Engineer may cause such repair to be completed at Permittee's sole cost and expense". Section 12.18.080(B)(13) unless the City's General Plan or Community Plans prohibits all improvements in the ROW in the drip line of any tree, this requirement should be struck. The City must apply its regulations equally to all uses and users of the ROW. WTF cannot be singled out for discriminatory treatment. Section 12.18.080(8)(14) the City's insurance shall be in excess of Permittee's insurance. The extent of the City's insurance contribution, however, should be in relation to the City's culpability in causing the claim. The City and Permittee should both allow for subrogation or both Parties should waive subrogation rights. Permittee is already required to indemnify the City per Section 12.18.080(B)(15).. Section 12.18.080(B)(15) the last sentence should be modified to read, "The City shall have the option of coordinating the defense, including, but not limited to choosing counsel for the defense in consultation with Permittee, at Permittee's expense". Section 12.18.080(B)(16) the City's liability should be limited to the City's gross negligence or willful misconduct, not sole negligence or willful misconduct. The phrase, "are in any way related" in the ninth line should be struck. Section 12.18.080(6)(17) if an above electric meter cabinet is no longer required, the Permitte shall have one hundred eighty (180) days to remove and restore the area. The Permittee must work with the electrical utility provider to remove the cabinet, thirty (30) days is insufficient to complete the required tasks. Section 12.18.080(B)(18)(iv) Relocation. The Director must show cause and provide evidence that a WTF has become incompatible with public health, safety or welfare or the public's use of the ROW. Furthermore, the Permittee should have the right to address the Director's concerns prior to being required to relocate. The exigent circumstances mentioned in the last sentence whereby the City may remove, or relocate a WTF "without prior notice" to Permittee must be of an immediate and imminent threat to the public's health and safety before a Permittee's rights are abrogated. Section 12.18.080(6)(20) the City cannot require a Permittee to enter into a ROW Agreement with the City unless the Permittee is attaching to a City facility. P. 6 of 8 50 Attachment D Section 12.18.130 (ii) Operation and Maintenance Standards the words "a resident" should be struck from the last sentence, first paragraph. Section 12.18.130(C) the Permittee should have forty-eight (48) hours to remove graffiti in order to be consistent with the remainder of Section 12.18.130. Section 12.18.140 RF Emissions and Other Monitoring Requirements most jurisdictions in southern California require a monitoring report every five (5) years or if there have been changes to the equipment or power output at a facility. Section 92.18.150 No Dangerous Condition or Obstruction Allowed before the word impedes, the word "unreasonably" should be added in the V1 line. Section 12.18.180(B) Removal and Restoration — Permit Expiration, Revocation or Abandonment removal of a WTF and restoration of the ROW usually takes longer than thirty (30) days to complete. It is requested that this timeframe be one hundred (180) days. Section 12.18.180(C) The Director/City Engineer must document and demonstrate cause and provide evidence that a WTF constitutes a dangerous condition or imminent threat upon removing a WTF without Notice or hearing to the Permittee. The City additionally must use reasonable care during the removal and storage of Permittee's equipment. Section 12.18.190 Exceptions It is obvious from the substance of the Draft Ordinance that the City is trying to create a regulatory environment that disfavors or hinders the deployment of WTF in the ROW. While local siting sensitivities are apparent, the City's current approach will likely end in litigation. When an Applicant has to provide the same evidentiary standards required by a court of law, in order to secure a permit, there is little holding the Applicant back from proceeding to litigation. In the end, the City will therefore end up with WTF that aren't as small and inconspicuous as desired as well as litigation costs. It is therefore recommended that the City pause and work collaboratively with all stakeholders to develop siting criteria and design guidelines that all sides can live with. Crown Castle recommends that the City adopt "pre -approved" antenna configurations that have been vetted by the City Council so that Applicants will have certainty of process that such facilities could be approved ministerially. This is particularly true for ROW sites where the uniformity of vertical infrastructure, such as street lights, traffic signals or utility poles, lend themselves to standardization Section 12.18.200(A) and (B) Location Restrictions The City's Draft Ordinance does little if anything to address "last mile" connectivity issues at people's homes. Prohibiting WTF from local and collector streets precludes the use of Small Cells that have limited range, primarily due to their limited size. Consequently, the P. 7 ofs 51 Attachment D current Draft Ordinance will result in larger macro facilities along arterials. The aesthetic impacts from such deployments will more than likely result in an aesthetic outcomes that are less than optimum. Section 12.18.200(C) The City does not have the legal authority to require a new pole replace an existing pole in order to be approved. Section 72.78.220 State and Federal Law. if a determination is made that the City's discretionary permitting is prohibited by State or Federal law, it will not be sufficient for the City's to merely reclassify its discretionary requirements as now being ministerial requirements. If it walks like a duck, quacks like a duck, it's a duck. No amount of word-smithing will relive the City from its obligation to overhaul its wireless Ordinance to comply with State and Federal law. Section 72.18.230(B) The City is over -stepping its authority when it attempts to place a ten (10) year sunset on existing legal non -conforming facilities. In order for these facilities to come under the purview of any new Ordinance, the Applicant must request a modification which would then act as a trigger for the City to require compliance with any new regulations. Finally, the Ordinance is silent with respect to the recently adopted Assembly Bill 57, codified as Government Code 65954.1 and set to take effect January 1, 2016. This new law requires local jurisdictions to approve "non -covered" wireless projects within 90 -days for collocations and 150 -days for all other projects. These time limits should be included in the Ordinance. If you should have any questions regarding these comments, please do not hesitate to contact me. Crown Castle looks forward to continue working with the City to establish wireless regulations that are appropriate for the City and that can withstand legal scrutiny. Thank you. Respectfully, ,:��,r .,z Paul R. O'Boyle P. 8 of 8 52 Attachment E James L. Arnone 355 South Grand Avenue Direct Dial; (213) 891-8204 Los Angeles, California 90071-1560 james.arnone@lw.com Tel: +1,213.485.1234 Fax: +1.213.891.8763 www.lw.com L A T H A M& W A T K I N S LLP FIRM /AFFILIATE OFFICES Abu Dhabi Milan Barcelona Moscow Beijing Munich Boston New Jersey Brussels New York Century City Orange County VIA EMAIL AND FEDEX Chicago Paris Dubai Riyadh December 14, 2015 Dusseldorf Rome Frankfurt San Diego Hamburg San Francisco Christy Marie Lopez Hong Kong Shanghai Aleshire & Wynder, LLP Houston Silicon Valley 18881 Von Karman Avenue London Singapore Suite 1700 Los Angeles Tokyo Madrid Washington, D.C. Irvine, California 92612 Re: Wireless Telecommunications Facilities Ordinance Dear Ms. Lopez: We are writing on behalf of our client, Southern California Gas Company, concerning the City of Rancho Palos Verdes' consideration of a Wireless Telecommunications Facilities Ordinance. Our client appreciated the opportunity to meet with you about the Ordinance but remains concerned about how the Ordinance may affect SoCalGas' plans to install Data Collection Units associated with its Advanced Metering Infrastructure program, an important CPUC -approved safety and efficiency program. To avoid confusion regarding the Ordinance's application to this program we ask that the Ordinance be revised to clarify that DCUs, like government facilities, are exempt from the Ordinance. AMT technology is a critical component of California's long-term goals to develop more efficient delivery of electricity and gas, and improved customer -side management that will improve conservation and efficiency. (See, e.g., D.10-04-027 at 24-25; Pub. Utilities Code § 8366(a).) In 2003, the California Public Utilities Commission directed investor-owned utilities like SoCalGas to implement a pilot program for advanced metering and demand response technologies. (See D.03-03-036; see also Pub. Utilities Code § 8366(a) [directing the CPUC to consider the "implementation of new advanced metering initiatives" as part of a modernized "smart grid" infrastructure].) SoCalGas' AMI program is one of those programs. SoCalGas' AMI program will automatically read and securely transmit hourly gas usage information to SoCalGas. This information may then be accessed by customers to better manage energy use and costs. To collect and transmit this information, the AMI program requires the installation of: (1) gas meters with communication modules, and (2) DCUs. Installation of AMI facilities in SoCalGas service territory began in October 2012. In Rancho Palos Verdes, SoCalGas has plans to install only 19 DCUs, which may be attached to existing light poles or be freestanding units. Attached is a photograph showing a unit as installed and a diagram illustrating how the AMI system works. 53 December 14, 2015 Attachment E Page 2 LATHAM&WATKINSLLP SoCalGas has appreciated working with you and City staff on the AMI program over the past months and looks forward to continuing to work with the City to enhance gas safety and reliability. However, we are concerned that the City's proposed Ordinance, as written, could place undue restrictions on SoCalGas' ability to install and maintain the necessary DCUs and conflict with the rights and obligations set forth in SoCalGas' existing franchise agreement. DCUs are not traditional telecommunications facilities, which it appears the Ordinance was intended to regulate. In fact, given their purpose, method of operation, and limited numbers, they operate much more like an extension of SoCalGas' existing infrastructure. Exempting DCUs from the Ordinance will ensure that SoCalGas will be able to install the units quickly and efficiently and in compliance with the CPUC's direction. We propose the following modification to Section 12.18.020: Exceptions: The term "wireless telecommunications facility" does not apply to the following: (a) Government owned and operated telecommunications facilities. (b) Emergency medical care provider -owned and operated telecommunications facilities. (c) Mobile services providing public information coverage of news events of a temporary nature. (d) Natural gas and appurtenant communications facilities installed pursuant to an existing franchise agreement. (dee) Any wireless telecommunications facilities exempted from this Code by federal law or state law. Absent such an exemption, we have serious concerns concerning the scope of the Ordinance and its application to our client's natural gas distribution network. Subjecting these SoCalGas facilities to a telecommunications ordinance that vests the discretion to approve such facilities in City decisionmakers would appear to be an ultra vires act. Under California law, the CPUC has exclusive jurisdiction over the regulation of public utilities. (See, e.g., San Diego Gas & Electric Co. v. City of Carlsbad, 64 Cal.AppAth 785, 798 (1998).) This authority extends to a public utility's infrastructure, such as the installation of gas meters and related infrastructure. (Pub. Utilities Code § 761.) It is important that the CPUC have exclusive jurisdiction over utility matters and DCUs because the construction, design, operation and maintenance of public utilities are matters of state-wide concern, and should not be subject to a "checkerboard of regulations by local government." (San Diego Gas & Electric Co., supra, 64 Cal.AppAth at 798.) "The Commission's jurisdiction is necessary to ensure that decisions made on the basis of strictly local concerns do not impede or impair the placement of facilities necessary for the rational development of a statewide utility system." (Id. at 799.) As a result, local governments may not 54 December 14, 2015 Attachment E Page 3 LATHAMaWATKINSLLP enforce local regulations that conflict with CPUC rules and regulations. (S. Cal. Gas Co. v. City of Vernon, 41 Cal.AppAth 209, 215 (1995).) The CPUC has expressly endorsed SoCalGas' plan for implementing its AMI program. As a result, local government ordinances that would prevent or substantially interfere with the AMI program are preempted. In Decision 14-12-078, the CPUC stated: "[T]he installation of smart meters supports and is necessary for several statewide policies and goals, requiring Commission preemption of contrary local regulations." Likewise, in approving SoCalGas' AMI program in 2010, the CPUC found that "[t]he technology choices proposed by SoCal Gas, including the stand-alone communications equipment, the choice of battery technology, and the information technology systems are reasonable, appropriate, and technically feasible." (D.10-04- 027 at 48.) Moreover, SoCalGas already possesses the right to locate and construct DCUs in the City by virtue of the company's franchise agreement with the City. The franchise agreement expressly allows SoCalGas to install "pipes and appurtenances for transmitting and distributing gas for any and all purposes" within the City in exchange for the payment of an annual franchise fee to the City. Here, the DCUs are "appurtenances" to SoCalGas' gas system. The DCUs will be used to monitor the operations and safety of the natural gas pipeline system and have no capacity or capability to be used for non-utility telecommunications systems. Accordingly, further discretionary permits could unreasonably interfere with the company's contractual rights to install appurtenances, as set forth in the franchise agreement. Notwithstanding the CPUC's broad preemption authority and SoCalGas' contractual rights conferred by the franchise agreement, SoCalGas appreciates the City's interest in the time, manner, and place of installation for SoCalGas' DCUs. Accordingly, SoCalGas will, of course, secure all applicable ministerial permits and abide by the City's reasonable time, manner, and place requirements for installing DCUs. SoCalGas reserves its rights to contest any requirements that would prevent or substantially interfere with the AMI program, including the Ordinance as written. Therefore, we respectfully request that the City incorporate the exemption for DCUs proposed above into the next draft of the Ordinance. Thank you for your assistance in this matter. We look forward to working with you through this process. Very truly yours, ;6OJaes L. Arnone of LATHAM & WATKINS LLP cc: Mr. Albert Garcia, SoCalGas Enclosures LA\4350862.3 55 0 U) vw Attachment E 56 CD U � a7 E aoi co a) -0 � -� tk 0 C C Ou >, cn 4.. ._ >° Z �N CrN (1) -0 . ( a > Cl E x 4 •X'_ a) Q° E o o � U � 0 - v E v� C U) o _ E •; E o p o .(D(ll c X += U :DU C- Q Q civ m•�CUi = _ 56 LC Attachment E O 4a of _w M •� Q 3 o t.• 4.0 Qv .- J M -W O .a+ M 41 w 0 � o � a U C ® •C u a o M C S. ,0 c M vE 0 1.0 do C 0 op O V -v M `° a pr o 3 o a 0- loin 3ucv M� d .` 75 .� E S M F - n0 °�`-� t9 u = O U. L.. w u Z 57 PSIShip - FedEx Label Page 1 of 2 Attachment E Z N C. A C: (n M —1 0 <M X K fJ a ti _ T w � ^m CP r w4k — J157015091001uv LU F. 000 r 2 M �NCI) 055 z m r— ��m z N n 0 z C m17- r M O O 539J111308131D0 Cr( bwrM2 qw= AZA �Z.�L���'Z nmoZ*=o 'm oyn� A <2SPm CMZ-2 fAo Co o r 0 OD Ui W M 80 A o 00' ' .io. . � -Cocx N� wr W C x v 0 FOLD on this line and place in shipping pouch with bar Code and dellvery address visible— _ ^ ^ 1. Fold the first printed page in half and use as the shipping label. 2. Place the label in a waybill pouch and affix it to your shipment so that the barcode portion of the label can be read and scanned. 3. Keep the second page as a receipt for your records. The receipt contains the terms and conditions of shipping and information useful for tracking your package. 58 http://psship.1w,com/index.php 12/14/2015 Attachment F MACKENZIE & ALBRITTON LLP 220 SANSOME STREET, 14TH FLOOR SAN FRANcisco, CALIFORNIA 94104 TELEPHONE 415/288-4000 FACSIMILE 415 / 288-4010 January 5, 2016 VIA FMAII. Mayor Ken Dyda Mayor Pro Tem Brian Campbell Councilmembers Susan Brooks, Jerry Duhovic and Anthony M. Misetich City Council Rancho Palos Verdes 30940 Hawthorne Boulevard Rancho Palos Verdes, California 90275 Re: Ordinance Regulating Wireless Telecommunications Facilities in the Public Right -of -Way City Council Agenda, January 19, 2016 Dear Mayor Dyda, Mayor Pro Tem Campbell and Councilmembers: We write to you on behalf of our client Verizon Wireless regarding the draft ordinance regulating wireless telecommunications facilities in the public right-of-way (the "Draft Ordinance") to be considered at your meeting of January 19, 2016. Verizon Wireless only recently became aware of efforts by the City of Rancho Palos Verdes (the "City") to codify regulations for right-of-way wireless facilities, and believes that there are numerous problematic provisions in the Draft Ordinance that conflict with state and federal law. In particular, requirements to demonstrate the need for a new wireless facility and to analyze alternative locations conflict with the California Public Utilities Code, and certain restrictions on placement of facilities conflict with the federal Telecommunications Act. There also appear to be conflicts within the Draft Ordinance, which requires that equipment be placed underground while at the same time including standards for pole -mounted equipment. Certain provisions refer to zoning permits that are irrelevant to the proposed permits for right-of-way wireless facility installations. The Draft Ordinance will benefit from further consideration and consultation with industry, and we propose that adoption of the Draft Ordinance be deferred to allow for needed revisions. Our specific comments on the Draft Ordinance are as follows: 59 Attachment F Rancho Palos Verdes City Council January 5, 2016 Page 2 of 10 §12.18.050 — Application for Wireless Telecommunications Facility Permit (B) Application Contents (5) Engineering Plans (a) Minimum Height and Diameter This provision contains ambiguous language and can be read to limit the size of antennas and licensed radio equipment. Requiring wireless carriers to use equipment of the minimum height and size would amount to regulation of the type of technology to be used, and is therefore preempted by federal law. Federal courts have determined that local jurisdictions may not dictate the technology used by wireless providers. See New York SMSA v. Town of Clarkstown, 612 F.3d 97 (2d Cir. 2010). Requiring very small antennas could result in the need to deploy additional antennas to achieve a service objective. This requirement should be deleted. (6) Justification Study of Coverage Gap and Least Intrusive Means Verizon Wireless, as a telephone corporation, has been granted a statewide right to use the public right-of-way for the provision of its services under California Public Utilities Code §7901, and under Public Utilities Code §7901.1, the City is limited to regulating the "time, place and manner" in which Verizon Wireless occupies the right-of- way. As the franchise to use the right-of-way is granted under state law, the City may not lawfully require Verizon Wireless to justify the need for such use through a coverage gap analysis. Demonstration of a coverage gap has no relation to required findings for issuance of a wireless telecommunications facility permit under Draft Ordinance § 12.18.090. The requirement to demonstrate a coverage gap must be deleted. With respect to the demonstration of "least intrusive means" to provide service, Verizon Wireless does not need to establish its right to use the right-of-way over any other location outside the right-of-way. The City may not, under state law, require Verizon Wireless to evaluate alternatives to be used in lieu of the right-of-way. This requirement should clarify that carriers need only to evaluate alternatives within the public right-of-way and only in those circumstances where the proposed facility will create impacts that impede public use of the right-of-way. (10) Materials for Exception Application As discussed below, the exception granted by the Director under Draft Ordinance § 12.18.190 obligates the Director to make speculative legal judgments and is an unworkable means to regulate the use of right-of-way. M Rancho Palos Verdes City Council January 5, 2016 Page 3 of 10 (16) Noise Study Attachment F Certain new equipment boxes used for right-of-way facilities emit no noise, and for noiseless installations, applicants should be allowed to submit manufacturer specification sheets indicating that equipment is silent instead of a noise study prepared by an engineer. (18) Landscape Plan Many pole -mounted wireless facilities in the right-of-way are very small, present minimal visual impacts and should not require any landscaping. This requirement should be imposed only where landscaping is appropriate. (19) Master Plan This submittal requirement requests a projection of a carrier's future wireless facility installations, but such projections would be entirely speculative due to changing voice and data demand, varying use patterns and new technology. Such projections may be theoretically interesting but rarely shed light on future deployment of a dynamic wireless network. Demonstration of any future plans should not be required as Verizon Wireless's use of the right-of-way is authorized by state law. In lieu of a master plan, the City should consider requiring applicants to provide a list of existing facilities and pending applications. (22) Temporary Mock -Up Mock-ups of proposed facilities may be helpful in certain situations but should not be required for locations where a facility poses no visual impacts or encounters no opposition. Photosimulations provide sufficient visual representation for the Director to evaluate visual impacts. Mock-ups should only be required at the Director's discretion. (C) Application Contents — Modification of Existing Facility For modifications that qualify as eligible facilities requests under 47 U.S.C. § 1455, applicants may only be required to submit information to determine whether the modification is an eligible facilities request according to rules adopted by the Federal Communications Commission codified as 47 C.F.R. § 1.40001. These limitations must be better reflected in the Draft Ordinance. (E) Independent Expert Any third -party consultants evaluating certain technical aspects of an application for the City should be engineers registered in the State of California. As discussed above, Verizon Wireless does not need to demonstrate a significant gap in service as its use of 61 Attachment F Rancho Palos Verdes City Council January 5, 2016 Page 4 of 10 the right-of-way is authorized by state law, and any analysis of alternative locations must be limited to right-of-way locations and only when a facility may create impacts that impede public use of the right-of-way. Technical information will only be relevant where Verizon Wireless seeks to show why a particular alternative will not provide required service. &12.18.060 — Review Procedure (B) Appeal to City Council Wireless telecommunications facilities permits issued for right-of-way wireless facilities should not be appealable to the City Council where encroachment permits granted to other utilities are not similarly appealable. §12.18.080 — Requirements for Facilities within the Public Right -of -Way (A) Design and Development Standards (1) General Guidelines (a) Design Techniques In addition to screening, undergrounding and camouflage options to minimize visual impacts, the City should consider techniques for pole -mounted equipment such as painting to match pole color and rotation of pole -mounted equipment away from predominant views. Many new pole -mounted facilities in the right-of-way are very small, and painting and equipment rotation are sufficient to render such facilities unnoticeable. In some locations, small pole -mounted equipment boxes are concealed behind existing traffic signs. As discussed below, the City may not require Verizon Wireless to place equipment underground if other entities occupying the right-of-way are not subject to the same requirement. (c) Private Residential Views The Draft Ordinance cannot protect private views from residential structures of telephone corporation facilities in the public right-of-way. The City is limited by Public Utilities Code §7901 which only limits right-of-way facilities that "incommode the public use of the road." See California Public Utilities Code §7901. While federal case law provides for limited aesthetic review of the right-of-way facilities of telephone corporations and their effect on public views from the right-of-way, such review does not extend to private views of telephone corporation facilities. (2) Notice 62 Attachment F Rancho Palos Verdes City Council January 5, 2016 Page 5 of 10 By reference to the City's zoning regulations for noticing, this provision requires public notice to property owners within 500 feet of a proposed facility. Traditional land use noticing for right-of-way facilities would be inappropriate where 500 foot radius noticing would include yards or homes that have no relation to the street where the proposed facility is to be located. The City should consider a 150 -foot linear noticing along the right-of-way where the facility is to be located. (5) Equipment The City's requirements for equipment mounting distances must comply with California Public Utilities Commission General Order 95 which specifies certain safety clearances for antennas and wireless equipment. The requirement to flush -mount antennas would generally conflict with the two -foot horizontal separation from the pole required by General Order 95 Rule 94.4(E), and the City should instead encourage the use of side-arm antenna mounts which in certain cases may eliminate the need to extend a pole's height to provide optimal signal propagation. The requirement that antennas be situated as close to the ground as possible should be stricken as small antennas present minimal visual impacts. Lowered antenna heights may require installation of additional antennas to meet a service objective. (6) Poles (a) Requirement to Locate on Arterial Streets By a reference to Draft Ordinance § 12.18.190 regarding exceptions, this provision limits Verizon Wireless's state -mandated right to place wireless facilities on most City rights-of-way unless Verizon Wireless proves that this limitation violates state or federal law. There are few arterial streets in Rancho Palos Verdes. Restricting placement of small right-of-way wireless facilities, which may have a limited coverage area extending only 500 feet, could prohibit service to neighborhoods distant from arterial streets in violation of the Telecommunications Act, specifically 47 U.S.C. §332(c)(7)(B)(i)(II). We suggest that the City create a preference for arterial streets but allow placement of right-of-way facilities on all streets. As discussed below, the exception granted by the Director under Draft Ordinance § 12.18.190 obligates the Director to make speculative legal judgments and is an unworkable means to regulate the use of right-of-way. (b) Prohibition on New Poles The City should not require an exception for carriers to place new poles in the right-of-way. Though Verizon Wireless prefers to place wireless facilities at existing pole locations and appreciates that the City allows for replacement of existing poles, existing poles locations may not meet service objectives. Verizon Wireless's state - mandated right to occupy the right-of-way allows it to place new poles to support wireless equipment in the same manner that other telephone corporations regulated by the 63 Attachment F Rancho Palos Verdes City Council January 5, 2016 Page 6 of 10 Public Utilities Commission may place new utility poles to support their equipment. As discussed below, the exception granted by the Director under Draft Ordinance § 12.18.190 obligates the Director to make speculative legal judgments and is an unworkable means to regulate the use of right-of-way. We suggest that the City create a preference for existing pole locations but allow for placement of new poles if required to meet a service objective. (c) Utility Poles As noted above, General Order 95 specifies safety clearances for antennas and wireless equipment mounted to utility poles. By restricting antennas to a height not exceeding 48 inches above an existing utility pole, this provision contradicts the minimum six foot clearance above electrical supply lines required by General Order 95 Rule 94. The requirement that wireless equipment be mounted no less than 16.5 feet above the road surface only serves to increase visibility of such equipment. Southern California Edison may require that electrical meters be mounted a specific distance above ground level. (e) Replacement Poles The City should allow a modest increase in height for replacement poles to meet coverage objectives and General Order 95 safety clearance and structural requirements. Pole replacement requirements are governed by General Order 95 and rules established by the responsible utility under the joint pole authority. The City cannot arbitrarily dictate pole replacement specifications. ()9 Pole -Mounted Equipment Volume Limitation A limitation of six cubic feet in volume for pole -mounted equipment is overly restrictive. Ventura County recently proposed regulations for right-of-way facilities that allow for administrative approval of small cell facilities with equipment volumes of up to 8.2 cubic feet. See Ventura County Code of Ordinances §§ 12803(i)(1), 12814. While a jurisdiction may create incentives for certain equipment dimensions, blanket limitations on dimensions violate federal law as discussed above. (h) Exception Required for New Poles As noted above in our comments to Draft Ordinance § 12.18.080(A)(6)(b), the City cannot require carriers to obtain an exception under Draft Ordinance § 12.18.190 to place new poles in the right-of-way. Rather, the City should consider reasonable design standards for new poles, such as color, material and screening vegetation. (12) Accessory Equipment Undergrounding Requirement Me] Attachment F Rancho Palos Verdes City Council January 5, 2016 Page 7 of 10 The requirement to place equipment underground violates both state and federal laws, which state that local regulations must be applied equally to all users of the rights- of-way. Under state law, local regulation, "to be reasonable, shall, at a minimum, be applied to all entities in an equivalent manner." See California Public Utilities Code §7901.1(b). Federal law recognizes the authority of States and local governments to "manage the public rights of way" on a "competitively neutral and nondiscriminatory basis." See 47 U.S.C. §253(c). The Federal Communications Commission has stated that local governments may impose conditions only if they are applied "equally to all users of the rights-of-way" and may not impose conditions on one user, such as a telecommunications company, in a different manner than imposed on other users. See Second Report and Order, CS Docket 96-46, §209, FCC 96-249, adopted May 31, 1996. This body of federal and state law requires that a Verizon Wireless application for a facility within the public right-of-way should be treated as any other public utility application. In other words, Verizon Wireless cannot be obligated to underground equipment that is equivalent or similar in size and appearance to facilities mounted on right-of-way poles by other utilities. As discussed below, the requirement to obtain an exception under Draft Ordinance § 12.18.190 for above -ground equipment (limited to five feet in height) obligates the Director to make speculative legal judgments is an unworkable means to regulate the use of right-of-way. Certain development standards in the Draft Ordinance, including Sections 12.18.080(A)(6)(c) and 12.18.080(A)(6)(f), clearly contemplate pole - mounted equipment, and the City should allow for pole -mounted equipment with standards such as painting and rotation to minimize visual impacts. Screening or camouflage requirements for an electrical meter may contradict Southern California Edison policies. (18) Modification The City may not require carriers to place equipment underground or reduce equipment size when modifying a facility. As noted above, the requirement to place equipment underground violates state and federal law, and the requirement to reduce equipment size amounts to impermissible dictation of technology barred by federal law. Finally, federal law requires administrative approval of modifications that are "eligible facilities request" and does not allow for discretionary conditions. (B) Conditions of Approval (13) Prohibition of Facilities within Drip Line This condition of approval should be revised to exclude pole -mounted equipment. Pole -mounted equipment has no effect on the health of nearby trees that may provide screening. 65 Attachment F Rancho Palos Verdes City Council January 5, 2016 Page 8 of 10 &12.18.090 — Findinjjs (D) Proposed Installation is Least Intrusive Means Possible By basing this finding on the "least intrusive means" standard set forth in federal case law, the Draft Ordinance attempts to create a new hurdle out of the federal protection afforded wireless carriers under 47 U.S.C. §332(c)(7)(B)(i)(II), which provides, in relevant part, that the City's regulation of wireless facilities "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." Federal courts have interpreted this law to mandate approval of wireless facilities where a federal court has determined that the applicant has identified a "significant gap" and the facility represents the "least intrusive means" to fill that gap, even where the local jurisdiction has identified substantial evidence that would otherwise warrant denial of the application under local codes. See, e.g., MetroPCS v. City and County of San Francisco, 400 F.3d 715 (9th Cir. 2005). These cases have repeatedly held that evaluations of "significant gap" and "least intrusive means" are judicial determinations that defy any "bright -line" definition. See, e.g., Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates, 583 F.3d 716 (9th Cir. 2009) (citing numerous cases that make different factual findings of a significant gap). This approach must be rejected because it would place the City in a position to circumvent the judgment of federal courts and the protections afforded Verizon Wireless under federal law. The City should abandon the "least intrusive means" standard and we suggest revising this finding to compel applicants to minimize aesthetic impacts that may impede public use of right-of-way. &12.18.140 — RF Emission and Other Monitoring Requirements These requirements for post -installation testing of radio frequency emissions exceed the City's authority when a facility complies with the Federal Communications Commission's emissions standards. The City may only require the carrier to provide the calculations identified in A Local Government Official's Guide to Transmitting Antenna RF Emission Safety. Recent case law has determined that emissions testing requirements by local jurisdictions are preempted by federal law. See Crown Castle USA Inc. v. City of Calabasas (Los Angeles Superior Court BS140933, 2014) ("...the regulation of a facility's planned or ongoing operation constitutes an unlawful supplemental regulation into an area of federal preemption.") §12.18.160 — Permit Expiration Rather than terminating permits after ten years and requiring permittees to apply for new permit, the City should allow for renewal of an existing permit within six months of permit expiration. There is no reasonable justification to require a new permit for a facility that is not substantially changed from the originally -approved installation and remains in compliance with conditions of approval. We Attachment F Rancho Palos Verdes City Council January 5, 2016 Page 9 of 10 &12.18.190 — Exceptions Under the Draft Ordinance, an exception is required to place wireless facilities on certain streets, to place a new pole in a new location and to place accessory equipment above ground, but the process for granting an exception outlined in this provision places the burden on the applicant to prove the illegality of the City's regulations while absolving the City from any meaningful evaluation of the impacts of the proposed facility. Requiring the Director of Public Works to find that Draft Ordinance requirements violate state or federal law places inappropriate judicial duties on the Director and would result in speculative legal judgments. This provision uncovers the City's concern that provisions of the Draft Ordinance will result in denials that violate state or federal law, and we have outlined several of these violations above. Such expected violations should be resolved prior to adoption of the Draft Ordinance. §12.18.200 — Location Restrictions As noted above, prohibiting placement of wireless facilities on most City streets or on new poles is contrary to state and federal law, and the City should instead create preferences for arterial streets and existing pole locations while allowing for wireless facilities on all streets and in new pole locations. As discussed above, the exception granted by the Director under Draft Ordinance § 12.18.190 obligates the Director to make speculative legal judgments and is an unworkable means to regulate the use of right-of- way. §12.18.220 — State and Federal Law This provision appears to apply to conditional use permits issued under Title 17, Zoning, of the Rancho Palo Verdes Municipal Code, whereas the Draft Ordinance creates a wireless telecommunications facility permit for right-of-way facilities issued by the Director with findings distinct from conditional use permits. This inconsistency should be resolved. Additionally, as with Draft Ordinance § 12.18.190, this provision belies the City's concern that Draft Ordinance conflicts with state or federal law. Such conflicts should be addressed prior to adoption and not left to subsequent interpretations made solely by the City Attorney. Conclusion The Draft Ordinance must be revised in order to avoid conflicts with state and federal law. To this end, Verizon Wireless encourages the City to defer adoption of the Draft Ordinance to allow for City staff to meet with industry representatives. Verizon Wireless looks forward to an opportunity to work with the City of Rancho Palo Verdes to craft a workable ordinance that limits future conflict. 67 Attachment F Rancho Palos Verdes City Council January 5, 2016 Page 10 of 10 Very truly yours, Paul B. Albritton cc: Dave Aleshire, Esq. Christy Lopez, Esq. Nicole Jules 30 Attachment G Nicole Jules From: RPV Councilman B Campbell <b.camp@cox.net> Sent: Wednesday, December 09, 2015 10:33 AM To: jcalvagna@netzero.net; Nicole Jules; clopez@awattorneys.com Cc: huanggiang2005@gmail.com; jrfree@cox.net; ftyan@yahoo.com; bconmast@msn.com; kpdaly@verizon.net; justina@justina-design.com Subject: RE: Comments from RPV Wireless Workshop Thanks Jeff, good comments. I was also impressed with the efforts that were put into this ordinance in advance of our meeting by Nicole, Christy and their teams. I agree with you that this needs to be with our Planning Commission. I also agree that we should reach out to PVE and get their input so we can evaluate their overview and management processes of these cell sites and borrow what we can from them that makes sense for RPV. Brian Brian Campbell Vice Mayor City of Rancho Palos Verdes, CA 0 310-544-7400 cell + text 424-237-2582 office 888-855-9619 fax Join our Mailing List RPV Website: www.palosverdes.com/rpv Twitter: http://twitter.com/CampbellforRPV This e-mail message, and any attachments to it, are for the sole use of the intended recipients, and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution of this email message or its attachments is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message. Please note that any views or opinions presented in this email do not necessarily represent those of the City of Rancho Palos Verdes. Finally, while the company uses virus protection, the recipient should check this email and any attachments for the presence of viruses. The company accepts no liability for any damage caused by any virus transmitted by this email. From: jcalvagna@netzero.net [mailto:jcalvagna@netzero.net] Sent: Tuesday, December 08, 2015 6:28 PM To: nicolej@rpvca.gov; clopez@awattorneys.com Cc: huanggiang2005@gmail.com; jrfree@cox.net; ftyan@yahoo.com; bconmast@msn.com; kpdaly@verizon.net; b.camp@cox.net; justina@justina-design.com Subject: Comments from RPV Wireless Workshop Note: Copied to RPV residents in attendance Greetings Nicole and Christy, ro A • Attachment G First off, thanks for all your hard work on the new proposed ordinance. It's clear significant time, effort, and thought was expended to truly make the ordinance comprehensive, rigorous, and within established law regarding the city's right to regulate these sites. Also, thank you for hosting and facilitating the workshop. I thought it was extremely productive and heard the same from other members of the community afterwards. I have a few written comments regarding some of the items that were discussed: Process Ownership — Just to reemphasize for the record, I strongly believe the ownership of the approval process (the front end) belongs with the Planning Department and ownership of the inspection process (the back end) belongs with Public Works. Both organizations would work together through the entire process but there needs to be clear leadership and accountability for each phase. As was stated at the workshop, this division of labor is appropriate based on each department's area of expertise and the required skills. Furthermore, it appears to be in line with the best practices of other cities with proven and robust processes. Even if the city does not to implement this, the required public hearings must be conducted by the Planning Commission to ensure transparency, and since they have the appropriate expertise regarding aesthetics, view protection, neighborhood compatibility, and zoning/variances. Tier S.. ste — I believe this proposal has great merit. As Christy suggested, two tiers would probably be appropriate. Tier one would be "unobtrusive" sites that can be approved without a Planning Commission hearing, but the city reserves the right to elevate it to a PC hearing if there was an extenuating circumstance. Tier two would be those that are required to have a PC hearing. I have not yet looked into the criteria used by other cities, but would highly recommend the city investigate what has been proven to work elsewhere. Potential criteria for tier one for a site to be considered unobtrusive (all must apply) might be: arterial street location, greater that TBD feet from a residence, maximum size of TBD cubic feet of the additions, fits within the profile of existing infrastructure, and is not prominent within a view corridor. In addition, any exception to the new ordinance (e.g. closer than 90 foot spacing to another site) must go to a PC hearing even if it meets the tier 1 criteria. To reiterate, if there is a proven set of criteria from elsewhere it is probably better to adopt those than craft our own provided they are comprehensive. Gas Company issues — This has the potential to derail the ordinance if the city is not careful. I would strongly advise against any "carve out" exempting the Gas Company sites unless it is strictly based on objective criteria tied to factors cities are legally allowed to regulate (e.g. aesthetics) that can be fairly applied to all applicants. Also, any relief should not be a blanket ordinance exemption but should be limited to specific regulations in the ordinance. Steven Garcia (Crown Castle) made clear they wouldn't tolerate aspects that could be considered discriminatory, and the city needs to take him at his word on this. Again, it would be far preferable to adopt a proven method from another city than to trailblaze here. Another option would be to work with the Gas Company to ensure their sites fall into the Tier 1 criteria allowing a simpler approval process but the entire ordinance still applies. They only have 18 sites; we ought to be able to find a way to make them unobtrusive. Also the fact that they have delayed installations in cities with rigorous wireless ordinances demonstrates they aren't really sure what to do in this situation. They are going to need to figure it out sooner or later on their own anyways. TransparencX — I strongly agree with comments regarding required transparency of the process, particularly those regarding a clear and detailed method of tracking process progress online. With changing laws and deadlines, it is critical residents understand the process, what has been complete, what hasn't, when comments will be accepted, when PC hearings are scheduled, etc. Mandatory nearby resident notification is a large step in 70 Attachment G the right direction, but it is only the first in ensuring the process is transparent to the public. In addition, the city should strongly consider posting applications and submitted drawings online. Rolling Hills Estates does this and it is very helpful. The City's role in screening applications — It is absolutely imperative that the city rigorously screen applications for adherence to the new ordinance upon receipt and return those that don't comply. If a non-compliant site reaches the mock-up phase, the city will have failed in its screening obligation. Of course there may be some more subjective aspects that aren't fully apparent until a mock-up is installed. This is understandable and the purpose of the mock-up. However, sites that don't comply with objective requirements, sites submitted with inconsistent or incomplete documentation that don't allow comprehensive assessment must be immediately returned. This is where the city must leverage the experience of the Telecom Law Firm, in addition to cultivating our own in-house expertise. Timeliness of Process Execution — Stephen Garcia made the point that one of the reasons the Palos Verdes Estates process worked well was that they ran a tightly controlled process without delays (including three PC hearings within the 150 day window). I agree wholeheartedly having observed it myself. For the new ordinance to be effective, it must be executed in a meticulous and predictable fashion. This includes a clear timeline of events, milestones, intermediate deadlines, readily available material, and prompt responses to questions and submissions. This is particularly true with the AB57 Jan 1 changes to state law. I'm sure our neighbors in PVE would be happy to help us in this regard (Ms. Elizabeth Corpuz was the lead planner), in addition to the invaluable experience Telecom brings. Thanks for considering this and hopefully these comments are constructive. Best regards and thanks again for the hard work. Jeff Calvagna 71 Attachment G Nicole Jules From: Ara Mihranian Sent: Friday, December 11, 2015 11:52 AM To: Christy M. Lopez Cc: Nicole Jules; Joel Rojas Subject: RE: Wireless Ordinance - Preferred zones Hi Christy, I reviewed the draft ordinance presented at Monday's workshop which I also understand is being amended as you describe below. That being said, I have the following comments: • In your email message below you refer to "preferred zones." What does that mean since zoning doesn't apply to the public ROW? • In speaking to Joel, he clarified that the Planning Commission's review would be facilitated by PW staff and not CDD Staff. I will be interesting in seeing how this is described in the revised ordinance for processing purposes. • In regards to references that no significant view impairment will result from said wireless facilities pursuant to 17.02.040, if a facility is located in the center of a primary viewing area would that be considered significant? If so, would the carrier be asked to relocate the facility? I am trying to understand how the view ordinance which is for structures and foliage will apply to wireless facilities. • Proposed Section 12.18.080.A.6.c and d refer to heights measured from "any drivable road surface." Since road surfaces vary slight in elevation for drainage purposes (the center generally being the highest point) should it be clarified to read "...the highest point of the drivable road surface abutting the proposed facility." • Proposed 12.18.080.9 the end of the sentence should read "...so as not to obstruct the intersection visibility triangle." I added the word intersection. • In a few sections of the proposed ordinance, it cites that the permitted hours for testing and maintenance shall occur between lam and 7pm on Monday through Friday. In order to be consistent with the RPVMC for permitted hours of construction pursuant to Section 17.56.020 1 suggest changing the hours to lam to 6pm Monday through Friday. • Drop the "s" in Carla Morreale under the City Clerk signature block. Thanks for opportunity to review the document. I look forward to seeing the amended version. Have a great weekend. Ara Ara Michael Mihranian Deputy Director of Community Development 72 Attachment G CINOF LIRAMGHO PALM VERbES 30940 Hawthorne Blvd. Rancho Palos Verdes, CA 90275 310-544-5228 (telephone) 310-544-5293 (fax) aranjc�rpvca.gov www.rpvca.c�ov WE ARE IN PROCESS OF SWITCHING TO A NEW WEB AND EMAIL DOMAIN. IF YOU HAVE ME IN YOUR CONTACTS, PLEASE SWITCH MY EMAIL FROM ARAM@RPV.COM TO ARAM@RPVCA.GOV. ADo you really need to print this e-mail? This e-mail message contains information belonging to the City of Rancho Palos Verdes, which may be privileged, confidential and/or protected from disclosure. The information is intended only for use of the individual or entity named. Unauthorized dissemination, distribution, or copying is strictly prohibited. If you received this email in error, or are not an intended recipient, please notify the sender immediately. Thank you for your assistance and cooperation. From: Christy M. Lopez [mailto:clopez@awattorneys.com] Sent: Tuesday, December 08, 2015 6:07 PM To: Ara Mihranian Cc: Nicole Jules Subject: FW: Wireless Ordinance - Preferred zones http://www.rpvca.gov/DocumentCenterNiew/7614 Hi Ara — It was nice to see you yesterday. Above is a link to the draft ordinance. Based on last night's workshop this draft will be amended to reflect a two tier approval process (tier 1 = counter approval with preferred zones/locations and tier two = a public hearing). Also the public hearing/appeal body will be the planning commission not the traffic safety committee as indicated in the draft. As you may know, the City is moving very quickly due to a substantial number of proposed installation for WTFs in the ROW. If you could provide comments no later than Friday that would be great so that I can implement. This would be especially true for large big picture amendments. Finally, please see my email to PW below. If you have any thoughts feel free to share. Thanks for reviewing and I hope all is well, CML From: Christy M. Lopez Sent: Tuesday, December 08, 2015 6:03 PM To: NicoleJ@rpvca.aov; Michael Throne (MichaelT@rpvca.gov); Charles Eder (CharlesE@rpvca.gov); Ron Dragoo (RonD@rpvca.gov) Subject: Wireless Ordinance - Preferred zones Hi all — I was looking at your zoning map and municipal code re the zones in the City. We know that residential zones are not a preferred zone (though most of the City consist of residential zones). So I need input on the preferred zones. The zones to consider are as follows: 1) Commercial —consisting of CL, CW, CP, CG and CR zones 2) Institutional (note this includes schools is that a problem, should schools be treated a sensitive use requiring a public hearing?) 73 Attachment G 3) Cemetery 4) Open Space — consisting of OH and OR zones. Thanks for your thoughts, CML Christy Marie Lopez I Associate Aleshire & Wynder, LLP 1 18881 Von Karman Ave., Suite 1700, Irvine, CA 92612 Tel: (949) 223-1170 1 Dir: (949) 250-5419 , Fax: (949) 223-1180 , clopez@awattorneys.com , awattorneys.com This email and any files transmitted with it may contain privileged or otherwise confidential information. If you are not the intended recipient, or believe that you may have received this communication in error, please advise the sender via email and delete the email you received. FLA Attachment G Nicole Jules From: jcalvagna@netzero.net Sent: Tuesday, December 08, 2015 6:28 PM To: Nicole Jules; clopez@awattorneys.com Cc: huanggiang2005@gmail.com; jrfree@cox.net; ftyan@yahoo.com; bconmast@msn.com; kpdaly@verizon.net; Brian Campbell <b.camp@cox.net>;justina@justina-design.com Subject: Comments from RPV Wireless Workshop Note: Copied to RPV residents in attendance Greetings Nicole and Christy, First off, thanks for all your hard work on the new proposed ordinance. It's clear significant time, effort, and thought was expended to truly make the ordinance comprehensive, rigorous, and within established law regarding the city's right to regulate these sites. Also, thank you for hosting and facilitating the workshop. I thought it was extremely productive and heard the same from other members of the community afterwards. I have a few written comments regarding some of the items that were discussed: Process Ownership — Just to reemphasize for the record, I strongly believe the ownership of the approval process (the front end) belongs with the Planning Department and ownership of the inspection process (the back end) belongs with Public Works. Both organizations would work together through the entire process but there needs to be clear leadership and accountability for each phase. As was stated at the workshop, this division of labor is appropriate based on each department's area of expertise and the required skills. Furthermore, it appears to be in line with the best practices of other cities with proven and robust processes. Even if the city does not to implement this, the required public hearings must be conducted by the Planning Commission to ensure transparency, and since they have the appropriate expertise regarding aesthetics, view protection, neighborhood compatibility, and zoning/variances. Tier S. sy tem — I believe this proposal has great merit. As Christy suggested, two tiers would probably be appropriate. Tier one would be "unobtrusive" sites that can be approved without a Planning Commission hearing, but the city reserves the right to elevate it to a PC hearing if there was an extenuating circumstance. Tier two would be those that are required to have a PC hearing. I have not yet looked into the criteria used by other cities, but would highly recommend the city investigate what has been proven to work elsewhere. Potential criteria for tier one for a site to be considered unobtrusive (all must apply) might be: arterial street location, greater that TBD feet from a residence, maximum size of TBD cubic feet of the additions, fits within the profile of existing infrastructure, and is not prominent within a view corridor. In addition, any exception to the new ordinance (e.g. closer than 90 foot spacing to another site) must go to a PC hearing even if it meets the tier 1 criteria. To reiterate, if there is a proven set of criteria from elsewhere it is probably better to adopt those than craft our own provided they are comprehensive. Gas Company issues — This has the potential to derail the ordinance if the city is not careful. I would strongly advise against any "carve out" exempting the Gas Company sites unless it is strictly based on objective criteria tied to factors cities are legally allowed to regulate (e.g. aesthetics) that can be fairly applied to all applicants. Also, any relief should not be a blanket ordinance exemption but should be limited to specific regulations in the 75 Attachment G ordinance. Steven Garcia (Crown Castle) made clear they wouldn't tolerate aspects that could be considered discriminatory, and the city needs to take him at his word on this. Again, it would be far preferable to adopt a proven method from another city than to trailblaze here. Another option would be to work with the Gas Company to ensure their sites fall into the Tier 1 criteria allowing a simpler approval process but the entire ordinance still applies. They only have 18 sites; we ought to be able to find a way to make them unobtrusive. Also the fact that they have delayed installations in cities with rigorous wireless ordinances demonstrates they aren't really sure what to do in this situation. They are going to need to figure it out sooner or later on their own anyways. Transparency — I strongly agree with comments regarding required transparency of the process, particularly those regarding a clear and detailed method of tracking process progress online. With changing laws and deadlines, it is critical residents understand the process, what has been complete, what hasn't, when comments will be accepted, when PC hearings are scheduled, etc. Mandatory nearby resident notification is a large step in the right direction, but it is only the first in ensuring the process is transparent to the public. In addition, the city should strongly consider posting applications and submitted drawings online. Rolling Hills Estates does this and it is very helpful. The City's role in screening applications — It is absolutely imperative that the city rigorously screen applications for adherence to the new ordinance upon receipt and return those that don't comply. If a non-compliant site reaches the mock-up phase, the city will have failed in its screening obligation. Of course there may be some more subjective aspects that aren't fully apparent until a mock-up is installed. This is understandable and the purpose of the mock-up. However, sites that don't comply with objective requirements, sites submitted with inconsistent or incomplete documentation that don't allow comprehensive assessment must be immediately returned. This is where the city must leverage the experience of the Telecom Law Firm, in addition to cultivating our own in-house expertise. Timeliness of Process Execution — Stephen Garcia made the point that one of the reasons the Palos Verdes Estates process worked well was that they ran a tightly controlled process without delays (including three PC hearings within the 150 day window). I agree wholeheartedly having observed it myself. For the new ordinance to be effective, it must be executed in a meticulous and predictable fashion. This includes a clear timeline of events, milestones, intermediate deadlines, readily available material, and prompt responses to questions and submissions. This is particularly true with the AB57 Jan 1 changes to state law. I'm sure our neighbors in PVE would be happy to help us in this regard (Ms. Elizabeth Corpuz was the lead planner), in addition to the invaluable experience Telecom brings. Thanks for considering this and hopefully these comments are constructive. Best regards and thanks again for the hard work. Jeff Calvagna Fee Attachment G Nicole Jules From: John Freeman <jrfree@cox.net> Sent: Tuesday, December 08, 2015 9:10 PM To: Nicole Jules; clopez@awattorneys.com Subject: RPV Wireless Antenna Workshop comments 12/7/2015 Hello Nicole and Christy, Thank you and all the others for hosting the Wireless workshop last night. I thought it was very productive, respectful of various opinions, and hopefully contributed a lot of good feedback and suggestions for further refinement. I just want to follow up on one item I mentioned that relates to the RPV Municipal Code but is not directly related to the cell phone changes. As I mentioned at the meeting, I noticed what I think is probably a editing or typographical error relating to your change to the overall City ordinance for telecommunications. My question and concern relates to Page 3 of your draft Municipal Code ordinance, SECTION 3. Section 13.12.320 of Chapter 12, Title 13 is hereby amended and replaced in its entirety to read as follows: "13.12.320 Antennas for telecommunications services. In paragraph A. you reference Section 17.76.020 of Chapter 17.76 of Title 17 of this Code ... And list only 1.) Satellite earth station antennas and 2.) Commercial Antennas However when I look at Section 17.76.020 Antennas, it shows five categories of antennas in the ordinance: A. Commercial Antennas B. Satellite Dish Antennas C. Noncommercial Amateur Radio Antennas D. Noncommercial Amateur Radio Antenna Permit E. Noncommercial Nondish Antennas Did you intentionally leave out Section C, D, and E? You said "amended and replaced in its entirely..." which is what alarmed me, but it appears that would in effect remove C, D, and E entirely from the RPV Municipal Code. I'm assuming that's not what you intended, and that will be corrected in the updated draft? Thanks again for your help and contribution to this project. John Freeman 1 77 Attachment G Nicole Jules From: Ken Daly <kpdaly@verizon.net> Sent: Monday, December 21, 2015 12:47 PM To: Nicole Jules Subject: additional comments on wireless ordinance draft Additional comments regarding the wireless ordinance draft (WOD) discussed Monday, December 7, 2015: 1. light poles (per section 12.18.080 paragraph A.6.d) The WOD specifies that "...antenna shall not exceed six feet above the existing height of a light pole." does not seem to account for the differing styles of lijzht holes in RPV. This statement 2. spacing of poles (per section 12.18.080 paragraph A.6.h.ii) The WOD specifies that "... new poles ... shall be located at least 90 feet from any existing pole..." I am not sure that the WOD sufficiently addresses what to do in the case where wireless facilities already exist on poles less than 90 feet apart (ex. near Crenshaw and Crest) and how this situation would be rectified when a permit up for renewal. 3. location restrictions (per section 12.18.200) There are nine arterial roads in RPV: PV Drive East, PV Drive West, PV Drive South, Hawthorne Blvd, Miraleste Dr, Crest Rd, Silver Spur Rd, Crenshaw Blvd, and Western Ave. There are four collector roads in RPV: Indian Peak, Ridgegate Dr, Granvia Altimira, and Montemalaga Dr. I assume that all roads not named by the RPV general plan are local roads. It might be helpful if the arterial and collector roads were identified in the WOD. Please let me know when an updated draft is available. Thanks, Marita W• Attachment G From: David Offenbera To: Charles Eder Subject: Comments regarding wireless ordinance Date: Friday, December 04, 2015 2:14:19 PM Hi Charles - The City of Los Angeles has recently begun a test with new light poles that have built-in cell phone antennas. See for instance this link: http://www.techtimes.com/articles/103698/20151106/los-angeles-to-dello, street-lamas-equipped-with-philips-small-cells-to-bring-4g-lte-to-the- streets. Win I would really like to see RPV adopt this technology. The city would cover the cost of the installation, presumably with a bond issuance, and then recoup the cost and repay the bonds by leasing the network to all of the carriers (AT&T, Sprint, T - Mobile, Verizon, etc.). A distributed cell phone network on light poles is a superior solution for our hilly terrain than the existing technology. For instance, with the existing technology, homes that have no cell phone coverage are not able to use modern home security systems. An intruder can defeat most security systems by clipping the phone wire before entering. If there was a network of cell towers on every light pole, any home security system would have uninterruptable access to emergency services. Switching to new light poles also allows us to save money by switching to LED lighting. These poles take away the ugliness of the existing antennas on the power poles and allow the City to get out of the business of permitting cell phone antennas. And frankly, I have an old rusty pole in my front yard that I would really like to see updated. Before investing, I would want to make sure that the city could recoup its cost plus interest before the cell phone technology became obsolete. Included in that cost, I would also want to make sure the city could properly maintain the system with revenue from the leases, without placing any financial burden on the residents. In summary, building out a network of 4G streetlights looks like a much better solution to our need for cellular coverage than continuing to add the old-style antennas. I hope the City has the resources and the will to pursue this option to the fullest. Sincerely, David Offenberg RPV homeowner Attachment G From: 'It karo To: Charles Eder Subject: Proposed Wireless Antenna Ordinance Date: Wednesday, December 02, 2015 8:40:32 AM Charles, The list below is my suggestions for improving the process for Wireless Installations. I have previously been the President of Mediterrania HOA and have dealt with two different wireless installation companies. I am unable to attend the meeting Monday night but hope my information can help improve the process and result in an ordinance that is good for the residents and the wireless companies too. Everyone wants better wireless service but no one wants to live with an ugly installation. 1. Notification to the surrounding homeowners. Placing signs has been a disaster. The one presently on PVDS just east of Forrestal is a perfect example of what not to do. It is too small to be read as you drive by, it is posted in a no stopping and no parking zone and there are no sidewalks on that side of the street. This should not be the standard for notification. There should be notification to the homeowners in the 500' circle. 2. Aesthetics are important. The city of Palos Verdes Estates won a court case and prevented a cell installation based on aesthetics. The ordinance should mandate that the contractor hold a meeting with those in the 500' circle and work out some way to make the antenna less obtrusive and hide it as best they can. They can use trees, bushes or just a custom paint to blend it into the hillside. 3. Last but not least, the contractor should be aware when sites are proposed in neighborhoods that have underground utilities. No one wants any more poles. CC - locating on already established sites or on streetlights should be a mandate. Here in Mediterrania HOA we have one site in which we had the contractor build a wall and landscape in front of the wall with the antenna on a light post. This was not the original plan or location selected by the contractor. We worked with the contractor to select a better location that we can all live with. The final site is so unobtrusive that no one even knows it is there and it is right on the busy corner of PVDE and Ganado. Years later we had another wireless company propose a location that the contractor had to move three times before we convinced him to move it further uphill, place it behind a tall tree and paint it to match the hillside. It was repainted twice before it was right. All these delays of moving the sites, re -noticing and not taking into consideration the thoughts of the affected neighbors are not productive for the contractor or the neighborhood. If we start with marking the proposed site clearly so that people know a cell antenna is proposed at that location it would be a big plus from what goes on now. All of this boils down to marking the site so people know what is going on, notifying those who are to be affected, holding a meeting to discuss the site, co -locating if possible and working to make it aesthetically palatable. That would be a Win Win situation and move the process along more smoothly and quickly. Attachment G Thank you for soliciting input for this new ordinance. Lois Karp Attachment H ORDINANCE NO. U AN AN URGENCY ORDINANCE OF THE CITY OF RANCHO PALOS VERDES, CALIFORNIA, ADDING A NEW CHAPTER ENTITLED "WIRELESS TELECOMMUNICATIONS FACILITIES" TO CHAPTER 18 OF TITLE 12 OF THE RANCHO PALOS VERDES MUNICIPAL CODE TO PROVIDE UNIFORM AND COMPREHENSIVE REGULATIONS AND STANDARDS, ALONG WITH PERMIT REQUIREMENTS, FOR THE INSTALLATION OF WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY A. Recitals. (i) The purpose of this Ordinance is to amend the Gity's-city's Municipal Code to provide uniform and comprehensive standards and regulations, along with permit requirements, for the installation of wireless telecommunications facilities in the Vis- ublic right-of- way-.-(ROWI. ii The city currently has qpproximately 140 wireless installations in the ROW. The city has approximately 52 pending or anticipated applications for wireless installations in the ROW. iii The Municipal Code contains very minimal standards or regulations specifically designed to address the unique legal and/or practical issues that arise in connection with wireless telecommunications facilities deployed in the ROW. iv The city Council finds that the lack of current standards and regulations in the Municipal Code for wireless facilities in the ROW, the substantial number of pending and anticipated applications for wireless facilities in the ROW, the inability to adopt a temporary moratorium, and the potential liabilities and negative consequences for noncompliance with state and federal regulations (including, without limitation, automatic approvals) present current and immediate threat to the public health, safety and welfare. The city Council further finds and declares that the immediate implementation of the Ordinance is necessary to preserve and protect public health, safety and welfare. Lv) State and federal law requires local governments to act on permit applications for wireless facilities within a prescribed time period and may automatically deem an application approved when a failure to act occurs. See 47 U.S.C. § 332(c)(7)(B)(iii); 47 C.F.R. §§ 1.40001 etseg.; Cal. Gov't Code § 65964.1. The Federal Communications Commission (FCC,) may require a decision on certain applications in as few as 60 days. See 47 C.F.R. § 1.40001(c)(2),. see also In the Matter of Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Report and Order, 29 FCC Red. 12865 (Oct. 17, 2014)[hereinafter "2014 Report and Order"]; In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review, Declaratory Ruling, 24 FCC Rcd. 13994 (Nov. 18, 2009)[hereinafter "2009 Declaratory Ruling"]. Pursuant to FCC regulations, the city cannot adopt a moratorium ordinance to toll the time period for review, even when needed to allow the city to maintain the status quo while it reviews and revises its policies for compliance Page 1 of 35 Q 01203.0015/282213.1 82 m znz nnn�i���i i n z Attachment H with changes in state or federal law. See 47 C.F.R. $ 1.40001(c)(3); 2014 Report and Order, 29 FCC Rcd. at 219.265. vi State and federal law have changed substantially since the city last adopted regulations for wireless installation in the ROW. Such changes include modifications to "shot clocks" whereby the city must approve or deny installations within a certain period of time. The city is in immediate need of clear regulations for wireless installations in the ROW given the number of pending or anticipated applications and legal timelines upon which the city must act. vii The ROW in the city of Rancho Palos Verdes is a uniquely valuable public resource, closely linked with the city's residential character and natural beauty. Whereas the reasonably regulated and orderly deployment of wireless facilities in the ROW is desirable, unregulated or disorderly deployment represents an ever-increasing and true threat to the health, welfare and safety of the community. viii The regulations of wireless installations in the ROW are necessary to protect and preserve the aesthetics of the cit property values and to ensure that all wireless facilities are installed using the least intrusive means possible. ix (4)On January X19 2016, the C4y-ci�Council of the Com}-ci�of Rancho Palos Verdes conducted and concluded a duly noticed public hearing concerning the Municipal Code amendments contained herein as required by law,—_and received testimony from C4}-ci�staff and all interested parties regarding the proposed amendments. (xx) {4)The city council finds and determines as follows: 1. The Federal Telecommunications Act of 1996 preempts and declares invalid all state rules that restrict entry or limit competition in both local and long-distance telephone service. 2 The California Public Utilities Commission ("CPUC") is primarily responsible for the implementation of local telephone competition,—_and it issues certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations. 3. Section 234(a) of the California Public Utilities Code defines a "telephone corporation" as "every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state." 4. Section 616 of the California Public Utilities Code provides that a telephone corporation "may condemn any property necessary for the construction and maintenance of its telephone line." 5. Section 2902 of the California Public Utilities Code authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public Page 2 of 35 01203.0015/282213.1 83 04203.000614-276114.3 Attachment H utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets. 6. Section 7901 of the California Public Utilities Code authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abatements for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters. 7. Section 7901.1 of the California Public Utilities Code confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the imposition of fees. 8. Section 50030 of the California Government Code provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes. xi 0-v}All legal prerequisites to the adoption of the Ordinance have occurred. B. Ordinance. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES ORDAIN AS FOLLOWS: correct. SECTION 1. The facts set forth in the Recitals, Part A of this Ordinance, are true and SECTION 2. Environmental Review Page 3 of 35 Q 01203.0015/282213.1 84 m �nz nnn�i���i i n z .IOU, W. .. viewed (I I MS Sulam Page 3 of 35 Q 01203.0015/282213.1 84 m �nz nnn�i���i i n z Attachment H A. The Citv Council finds that. pursuant to CEOA Guidelines. section 15061(b)(3). it has determined with certainty that there is no possibility that this project may have a significant impact on the physical environment. This ordinance is being enacted to bring the City's processing_ procedures into compliance with existing State and federal law. The mere synchronization of these timelines into the City's zoning ordinance is not a "physical condition" that will impact the environment for the purposes of the California Environmental Quality Act ("CEQA"). Therefore, this project is not subject to CEQA SECTION 3. Section 13.12.320 of Chapter 12, Title 13 is hereby amended and replaced in its entirety to read as follows: "13.12.320 Antennas for telecommunications services. A. Section 17.76.020 of Chapter 17.76 of Title 17 of this Code sets forth the city's regulatory requirements relating to the siting and construction of the following categories of antennas that are commonly used in providing or receiving telecommunications services: 1. Satellite earth station antennas, (also known as "satellite dish antennas"), which are parabolic or dish -shaped antennas which are in excess of one (1) meter in diameter or devices that are designed for over -the -air reception of radio or television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite services. 2. Commercial antennas, which are unstaffed facilities for the transmission or reception of radio, television, and communications signals, commonly consisting of an antenna array, connection cables, a support structure to achieve the necessary elevation, and an equipment facility to house accessory equipment, which may include cabinets, pedestals, shelters, and similar protective structures. B. Notwithstanding any other provision of this chapter, Chapter 12.18 of this code shall apply to siting, modification and construction of wireless telecommunication facilities, as defined therein, which in whole or in part, itself or as part of another structure, rests upon, in, over or under the public right-of-way, including, but not limited to, any such facility owned, controlled, operated or managed by an entity Page 4 of 35 Q c 01203.0015/282213.1 8 5 04203.000614-276114.3 _•. _..MM MINNOW-- -�- MON. SIN "M .•.. A. The Citv Council finds that. pursuant to CEOA Guidelines. section 15061(b)(3). it has determined with certainty that there is no possibility that this project may have a significant impact on the physical environment. This ordinance is being enacted to bring the City's processing_ procedures into compliance with existing State and federal law. The mere synchronization of these timelines into the City's zoning ordinance is not a "physical condition" that will impact the environment for the purposes of the California Environmental Quality Act ("CEQA"). Therefore, this project is not subject to CEQA SECTION 3. Section 13.12.320 of Chapter 12, Title 13 is hereby amended and replaced in its entirety to read as follows: "13.12.320 Antennas for telecommunications services. A. Section 17.76.020 of Chapter 17.76 of Title 17 of this Code sets forth the city's regulatory requirements relating to the siting and construction of the following categories of antennas that are commonly used in providing or receiving telecommunications services: 1. Satellite earth station antennas, (also known as "satellite dish antennas"), which are parabolic or dish -shaped antennas which are in excess of one (1) meter in diameter or devices that are designed for over -the -air reception of radio or television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite services. 2. Commercial antennas, which are unstaffed facilities for the transmission or reception of radio, television, and communications signals, commonly consisting of an antenna array, connection cables, a support structure to achieve the necessary elevation, and an equipment facility to house accessory equipment, which may include cabinets, pedestals, shelters, and similar protective structures. B. Notwithstanding any other provision of this chapter, Chapter 12.18 of this code shall apply to siting, modification and construction of wireless telecommunication facilities, as defined therein, which in whole or in part, itself or as part of another structure, rests upon, in, over or under the public right-of-way, including, but not limited to, any such facility owned, controlled, operated or managed by an entity Page 4 of 35 Q c 01203.0015/282213.1 8 5 04203.000614-276114.3 Attachment H entitled to construct within the right-of-way pursuant to a franchise with the city or state law." SECTION 4. Section 13.12.320 of Chapter 12, Title 13 is hereby repealed. SECTION 5. Chapter 18 "Wireless Telecommunications Facilities in the Public Right - of -Way" is hereby added to Title 12 of the Rancho Palos Verdes Municipal Code beginning at Section 12.18.010 to read as follows: "CHAPTER 18. WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY 12.18.010 Purpose. The purpose and intent of this chapter is to provide a uniform and comprehensive set of regulations and standards for the permitting, development, siting, installation, design, operation and maintenance of wireless telecommunications facilities in the city's public right-of-way. These regulations are intended to prescribe clear and reasonable criteria to assess and process applications in a consistent and expeditious manner, while reducing the impacts associated with wireless telecommunications facilities. This chapter provides standards necessary (1) for the preservation of the public right-of-way in the city for the maximum benefit and use of the public, (2) to promote and protect public health and safety, community welfare, visual resources and the aesthetic quality of the city consistent with the goals, objectives and policies of the General Plan, and (3) to provide for the orderly, managed and efficient development of wireless telecommunications facilities in accordance with the state and federal laws, rules and regulations. 12.18.020 Definitions. "Accessory equipment" means any equipment associated with the installation of a wireless telecommunications facility, including but not limited to cabling, generators, fans, air conditioning units, electrical panels, equipment shelters, equipment cabinets, equipment buildings, pedestals, meters, vaults, splice boxes, and surface location markers. "Antenna" means that part of a wireless telecommunications facility designed to radiate or receive radio frequency signals. "Cellular" means an analog or digital wireless telecommunications technology that is based on a system of interconnected neighboring cell sites. "Code" means the Rancho Palos Verdes Municipal Code. "Collocation" means the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signal for communication purposes. "COW" means a "cell on wheels," which is a wireless telecommunications facility temporarily rolled in or temporarily installed. Page 5 of 35 Q G 01203.0015/282213.1 8 6 m znz nnn�i���i i n z Attachment H "Director" means the director of public works, or his or her designee. "Facility(ies)" means wireless telecommunications facilities. "Ground -Mounted" means mounted to a telecommunications tower. "Modification" means a change to an existing wireless telecommunications facility that involves any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation, including, but not limited to, changes in size, shape, color, visual design, or exterior material. "Modification" does not include repair, replacement or maintenance if those actions do not involve a change to the existing facility involving any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation. "Monopole" means a structure composed of a pole or tower used to support antennas or related equipment. A monopole also includes a monopine, monopalm and similar monopoles camouflaged to resemble faux trees or other faux objects attached on a monopole (e.g. water tower). "Mounted" means attached or supported. "Located within the public right-of-way" includes any facility which in whole or in part, itself or as part of another structure, rests upon, in, over or under the public right-of-way. "Pole" means a single shaft of wood, steel, concrete or other material capable of supporting the equipment mounted thereon in a safe and adequate manner and as required by provisions of this Code. "Public right-of-way" means any public , and the spaee on, above of belov�, it, and all extensions thereof, and additions thefeto, Undef th-e jur-isdietion of the .right-of-way as defined by section 17.96.1490 of this Code. "Sensitive uses" means any residential use, public or private school, day care, playground, and retirement facility. "Telecommunications tower" means a freestanding mast, pole, monopole, guyed tower, lattice tower, free standing tower or other structure designed and primarily used to support wireless telecommunications facility antennas. "Utility Pole" means any pole or tower owned by any utility company that is primarily used to support wires or cables necessary to the provision of electrical or other utility services regulated by the California Public Utilities Commission. "Wireless telecommunications facility!L-er—,,, "facility" mor "facilities" mean any facility that transmits and/or receives electromagnetic waves. It includes, but is not limited to, antennas and/or other types of equipment for the transmission or receipt of such signals, telecommunications towers or similar structures supporting such equipment, related accessory equipment, equipment buildings, parking areas, and other accessory development. Page 6 of 35 Q 01203.0015/282213.1 8 7 m �nz nnn�n��i i n z Attachment H Exceptions: The term "wireless telecommunications facility" does not apply to the following: (a) Government owned and operated telecommunications facilities. (b) Emergency medical care provider -owned and operated telecommunications facilities. (c) Mobile services providing public information coverage of news events of a temporary nature. (d) Any wireless telecommunications facilities exempted from this Code by federal law or state law. "Wireless telecommunications services" means the provision of services using a wireless telecommunications facility or a wireless telecommunications collocation facility, and shall include, but not limited to, the following services: personal wireless services as defined in the federal Telecommunications Act of 1996 at 47 U.S.C. §332(c)(7)(C) or its successor statute, cellular service, personal communication service, and/or data radio telecommunications. 12.18.030 Applicability. A. Thisierrchapter applies to the siting, construction or modification of any and all wireless telecommunications facilities proposed to be located in the public right-of- way as follows: 1. A -..All facilities for which applications were not approved prior to January 519, 2016 shall be subject to and comply with all provisions of this division. 2. B All facilities for which applications were approved by the city prior to January X19, 2016 shall not be required to obtain a new or amended permit until such time as a provision of this code so requires. Any wireless telecommunication facility that was lawfully constructed prior to January X19, 2016 that does not comply with the standards, regulations and/or requirements of this division, shall be deemed a nonconforming use and shall also be subject to the provisions of section 12.18.230. 3. All facilities, notwithstanding the date approved, shall be subject immediately to the provisions of this chapter governing the operation and maintenance (section 12.18.130), radio frequency emissions monitoring (section 12.18.140), cessation of use and abandonment (section 12.18.170), removal and restoration (section 12.18.180) of wireless telecommunications facilities and the prohibition of dangerous conditions or obstructions by such facilities (section 12.18.150); provided, however, that in the event a condition of approval conflicts with a provision of this division, the condition of approval shall control until the permit is amended or revoked. B. This chapter does not apply to the following_ Page 7 of 35 Q Q 01203.0015/282213.1 8 8 04203.000614-276114.3 Attachment H 1. Amateur radio facilities, 2. Over the Air Reception Devices ("OTARD") antennas; 3. Facilities owned and operated by the city for its use; 4. Any entity legally entitled to an exemption pursuant to state or federal law or governing franchise agreement. 12.18.040 Wireless Telecommunications Facility Permit Requirements. A. Maior Wireless Telecommunications Facilities Permit. All new wireless facilities or collocations or modifications to existing wireless facilities shall require a Major Wireless Telecommunications Facilities Permit subject to Planning Commission approval unless otherwise provided for in this chapter. B. Administrative Wireless Telecommunications Facilities Permit. 1. An Administrative Wireless Telecommunications Facilities Permit, subject to the Director's approval, may be issued for new facilities or collocations or modifications to existing facilities that meet all the following criteria: a. The proposal is not located in any location identified in section 12.18.200. b. The proposal would not significantly impair any view from any viewing area as those terms are interpreted and applied in Code section 17.02.040; and c. The proposal complies with all applicable provisions in this chapter without need for an exception pursuant to section 12.18.190. 2. The Director may, in the Director's discretion, refer any application for an Administrative Wireless Telecommunications Facilities Permit to the Planning Commission for approval. Page 8 of 35 Q 01203.0015/282213.1 8 9 m znz nnn�i���i i n z • �� A. Maior Wireless Telecommunications Facilities Permit. All new wireless facilities or collocations or modifications to existing wireless facilities shall require a Major Wireless Telecommunications Facilities Permit subject to Planning Commission approval unless otherwise provided for in this chapter. B. Administrative Wireless Telecommunications Facilities Permit. 1. An Administrative Wireless Telecommunications Facilities Permit, subject to the Director's approval, may be issued for new facilities or collocations or modifications to existing facilities that meet all the following criteria: a. The proposal is not located in any location identified in section 12.18.200. b. The proposal would not significantly impair any view from any viewing area as those terms are interpreted and applied in Code section 17.02.040; and c. The proposal complies with all applicable provisions in this chapter without need for an exception pursuant to section 12.18.190. 2. The Director may, in the Director's discretion, refer any application for an Administrative Wireless Telecommunications Facilities Permit to the Planning Commission for approval. Page 8 of 35 Q 01203.0015/282213.1 8 9 m znz nnn�i���i i n z Attachment H 3. In the event that the Director determines that anygpplication submitted for an Administrative Wireless Telecommunications Facilities Permit does not meet the criteria this Code, the Director shall convert the application to a Major Wireless Facilities Permit application and refer it to the Planning Commission. C. Master Deplovment Plan Permit. 1. Any applicant that seeks approval for five (5) or more wireless telecommunications facilities (including new facilities and collocations to existing facilities) may elect to submit an application for a Master Deployment Plan Permit subject to Planning Commission approval. The proposed facilities in a Master Deployment Plan shall be reviewed together at the same time and subject to the same requirements and procedures applicable to a Major Wireless Telecommunications Facilities Permit. 2. A Master Deployment Plan Permit shall be deemed an approval for all wireless telecommunications facilities within the plan; provided, however, that an individual encroachment permit shall be required for each wireless telecommunications facility. 3. After the Planning Commission approves a Master Deployment Plan Permit, any deviations or alterations from the approved Master Deployment Plan for an individual wireless telecommunications facility shall require either a Major Wireless Telecommunications Facilities Permit or an Administrative Wireless Telecommunications Facilities Permit, as applicable. D. Other Permits Required. In addition to any permit that may be required under this chapter, the applicant must obtain all other required prior permits or other approvals from other city departments, or state or federal agencies. Any permit granted under this chapter is subject to the conditions and/or requirements of other required prior permits or other approvals from other city departments, state or federal agencies. � E. Eligible Applicants. Only applicants who have been granted the right to enter the public right-of-way pursuant to state or federal law, or who have entered into a franchise agreement with the city permitting them to use the public right-of-way, shall be eligible for a permit to install or modify a wireless telecommunications facility or a wireless telecommunications collocation facility in the public right-of- way. F. Sneculative Eauinment Prohibited. The citv finds that the practice of "pre - approving" wireless equipment or other improvements that the applicant does not presently intend to install but may wish to install at some undetermined future time does not serve the public's best interest. The city shall not approve any equipment or Page 9 of 35 01203.0015/282213.1 90 m znz nnn�i���i i n z Attachment H other improvements in connection with a Wireless Telecommunications Facility Permit when the applicant does not actually and presently intend to install such equipment or construct such improvements. 12.18.050 Application for Wireless Telecommunications Facility Permit. A. Application. 1. ArIn addition to the information required of an applicant for an encroachment permit or any other permit required by this code, each applicant requesting approval of the installation or modification of a wireless telecommunications facility in the public right-of-way shall fully and completely submit to the city a written application on a form prepared by the director. 2. All applicant's seeking to install a wireless telecommunications facility shall not seek an encroachment permit to install fiber only and subsequently seek to install antennas and accessory equipment pursuant to a wireless telecommunications facility permit. The applications for all installations in the right -of -waw simultaneously request fiber installation or other cable installation when applying for an wireless telecommunications facility_ permit. B. Application Contents The director shall develop a -an application form and make it available to applicants upon request. The supplemental application form for a new wireless telecommunications facility installation in the public right-of-way shall require the following information, in addition to all other information determined necessary by the director: 1. The name, address and telephone number of the applicant, owner and the operator of the proposed facility, ;f d ff rent from the applicant. 2. If the applicant is an agent, a -the applicant shall provide a duly executed letter of authorization from the owner of the facility. If the owner will not directly provide wireless telecommunications services, the applicant shall provide a duly executed letter of authorization from the person -mor entity- iesthat will provide those services. 3. If the facility will be located on or in the property of someone other than the owner of the facility (such as a street light pole, street signal pole, utility pole, utility cabinet, vault, or cable conduit), the applicant shall provide a duly executed written authorization by any--and—all from the property owners owner(s) authorizing the placement of the facility on or in the property owner's property. 4. A full written description of the proposed facility and its purpose. Page 10 of 35 01203.0015/282213.1 91 m �nz nnn�i���i i n z Attachment H 5. Detailed engineering plans of the proposed facility and related report prepared by a professional engineer registered in the state documenting the following: a. Height, diameter and design of the facility, including technical engineering specifications, economic and other pertinent factors governing selection of the proposed design, together with evidence that demonstrates that the proposed facility has been designed to the minimum height and diameter required from a technological standpoint for the proposed site. A cross s^etion layout plan, section and elevation of the tower structure shall be included. b. A photograph and model name and number of each piece of equipment included c. Power output and operating frequency for the proposed antenna. d. Total anticipated capacity of the structure, indicating the number and types of antennas and power and frequency ranges, which can be accommodated. e. Sufficient evidence of the structural integrity of the tower- -pole or other supporting structure as required by the city. 6. The appheant has demonstfated, by way of ^ A justification study,— which includes the rationale for selecting the proposed use; if applicable, a detailed explanation of the coverage gap that the proposed use would serve,–Land how the proposed use is the least intrusive means for the applicant to provide wireless service. Said study shall include all existing structures and/or alternative sites evaluated for potential installation of the proposed facility and why alternatives are not a viable option. 7. Site plan(s) to scale, specifying and depicting the exact proposed location of the pole, pole diameter, antennas, accessory equipment, access or utility easements, landscaped areas, existing utilities, adjacent land uses, and showing compliance with section 12.18.080. 8. Scaled elevation plans of proposed poles, antennas, accessory equipment, and related landscaping and screening. 9. A completed environmental assessment application. 10. If the applicant requests an exception to the requirements of this chapter (in accordance with section 12.18.190), the applicant shall provide all information and studies necessary for the city to evaluate that request. 11. An accurate visual impact analysis showing the maximum silhouette, viewshed analysis, color and finish palette and proposed screening for the facility, including scaled photo simulations from at least 3 different angles. Page 11 of 35 (� 01203.0015/282213.1 92 0 201.000614-276114.3 Attachment H 12. Completion of the radio frequency (RF) emissions exposure guidelines checklist contained in Appendix A to the Federal Communications Commission's (FCC) "Local Government Official's Guide to Transmitting Antenna RF Emission Safety" to determine whether the facility will be "categorically excluded" as that term is used by the FCC. grass. rrsrr�sesrsr;�:ese!r:rrss. ,_ er.:e!r.E. • 13. For a facility that is not categorically excluded under the FCC regulations for RF emissions, the applicant shall submit an RF exposure compliance report prepared and certified by an RF engineer acceptable to the city that certifies that the proposed facility, as well as any facilities that contribute to the cumulative exposure in the subject area, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels (in watts Effective Radio Power `BRP") for all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/generalpopulation limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess of the controlled/occupational limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmittinIz antenna at the project site. 14. Reserved 15. Copies of any documents that the applicant is required to file pursuant to Federal Aviation Administration regulations for the facility. 16. A noise study prepared by a qualified acoustic engineer documenting that the level of noise to be emitted by the proposed wireless telecommunications facility and will comply with this Code including section i i 4 090(n v612.18.080(A�(161(B). Page 12 of 35 01203.0015/282213.1 93 m znz nnn�i���i i n z Attachment H 17. A traffic control plan when the proposed installation is in on any street in a non- residential zone. The Qtt- i�shall have the discretion to require a traffic control plan when the applicant seeks to use large equipment (e.g. crane). 18. A scaled conceptual landscape plan showing existing trees and vegetation and all proposed landscaping, concealment, screening and proposed irrigation with a discussion of how the chosen material at maturity will screen the site. 19. A written description identifying the geographic service area for the subject installation, aeeompanied by ^ master- plan, including geographic and propagation maps, that identifies the location of the proposed facility in relation to all existing and planned facilities maintained within the city by each of the applicant, operator, and owner, if different entities. As well, as the estimated number of potentially affected uses in the .geographic service area. Regardless of whether a Master Deployment Plan Permit is sought, the applicant shall depict all locations anticipated for new construction and/or modifications to existing facilities, including collocation, within two years of submittal of the application. Longer range conceptual plans for a period of five years shall also be provided, if available. a. In the event the applicant seeks to install a wireless telecommunications facility to address service coverage concerns, 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; b. In the event the applicant seeks to address service capacity concerns, a written explanation identifying the existing facilities with service capacity issues together with competent evidence to demonstrate the inability of those facilities to meet capacity demands. 20. Certification that applicant is a telephone corporation or a statement providing the basis for its claimed right to enter the right-of-way. If the applicant has a certificate of public convenience and necessity (CPCN) issued by the California Public Utilities Commission, it shall provide a copy of its CPCN. 21. An application fee, and a deposit for a consultant's review as set forth in paragraph E of this section, and a deposit for- ro by the eity's attefne , in an amount set by resolution by the Qty-ci�Council and un accordance with California Government Code section 50030. 22. Proof that a temporary mock-up of the facility and sign has been installed at the proposed location for a period of at least thirty (30) calendar days. a. Applicant shall obtain an encroachment permit before installing the temporary mock-up, and must remove the temporary mock-up within five (5) calendar Page 13 of 35 01203.0015/282213.1 94 04203.000614-276114.3 Attachment H days of receiving a written notice to remove from the director. The meek ttp shall demenstfate—the-fieight andmass of the ineliading intefeenneefing eables and shall inelude a sign that displays the itnage of the proposed installation, ineluding any ^vC-es.Iv^r-y equipmefA eabinet, and the telephone ntimbeF of the Publie Works Department. Prior- to the installation � the moek r, the applieant shall give notiee in aeeor-danee with the provisions at seetion 17.80.090 b. When seeking the encroachment permit, the applicant shall provide address labels for use by the city in noticing all property owners within 500 feet of the proposed installation. The city shall mail a notice regarding installation of the mock-up at least five (5) business days prior to the installation. c. The mock-up shall demonstrate the height and mass of the facility, including all interconnecting cables. The applicant shall not be entitled to install the facility it intends to be installed permanently. The mock-up may consist of story poles or the like. d. The mock-up shall include a sign that displays photo simulations depicting before and after images, including any accessory equipment cabinet, and the telephone number of the Public Works Department. e. The applicant shall be required to follow any other city practices or processes relevant to the installation of a mock-up as may be provided in a publicly accessible form or document. f. After installation of the mock-up, the applicant shall certify that the mock-up accurately represents the height and width of the proposed installation and has been installed consistent with this Code. 23. Any other information and/or studies determined necessary by the director may be required. C. Application Contents - Modification of Existing Facility. The content of the pplement application form for a modification to an existing facility shall be determined by the director, and shall include but not be limited to the requirements listed in section 12.18.050(B) unless prohibited by state or federal law. D. Effect of State or Federal Law Change. In the event a subsequent state or federal law prohibits the collection of any information required by section 12.18.050(B), the director is authorized to omit, modify or add to that request from the city's application form with the written approval of the city attorney, which approval shall be a public record. E. Independent Expert. The director is authorized to retain on behalf of the city an independent, qualified consultant to review any application for a permit for a wireless telecommunications facility. The review is intended to be a review of technical Page 14 of 35 01203.0015/282213.1 95 m �nz nnn�i���i i n z Attachment H aspects of the proposed wireless telecommunications facility and shall address any or all of the following: 1. Compliance with applicable radio frequency emission standards; 2. Whether any requested exception is necessary to close a significant gap in coverage and is the least intrusive means of doing so; 3. The accuracy and completeness of submissions; 4. Technical demonstration of the unavailability of alternative sites or configurations and/or coverage analysis; 5. The applicability of analysis techniques and methodologies; 6. The validity of conclusions reached or claims made by applicant; 7. The viability of alternative sites and alternative designs; and Any other specific technical issues identified by the consultant or designated by the city. The cost of this review shall be paid by the applicant through a deposit pursuant to an adopted fee schedule resolution. No permit shall be issued to any applicant which has not fully reimbursed the city for the consultants cost. 12.18.060 Review Procedure A. Pre -submittal Conference. Prior to application submittal, the cit.. strongly encourages all applicants to schedule and attend a pre -submittal conference with Public Works Department staff to receive informal feedback on the proposed location, design and Page 15 of 35 01203.0015/282213.1 96 m znz nnn�i���i i n z Will• ... INN•.. . A. Pre -submittal Conference. Prior to application submittal, the cit.. strongly encourages all applicants to schedule and attend a pre -submittal conference with Public Works Department staff to receive informal feedback on the proposed location, design and Page 15 of 35 01203.0015/282213.1 96 m znz nnn�i���i i n z Attachment H gpplication materials. The pre -submittal conference is intended to identify potential concerns and streamline the formal application review process after submittal. Public Works Department staff will endeavor to provide applicants with an appointment within approximately five (55) business days after receipt of a written request. B. implication Submittal Appointment. All applications must be submitted to the city at a pre -scheduled appointment. Applicants may submit one (1) application per gppointment but may schedule successive appointments for multiple applications whenever feasible as determined by the city. city staff will endeavor to provide gpplicants with an appointment within five (5) business days after receipt of a written request. C. Notice; Decisions. The provisions in this section describe the procedures for approval and any required notice and public hearings for an application. 1. Planning Commission Hearings. Any permit application under this chapter subject to Planning Commission approval shall require notice and a public hearing. Notice of such hearing shall be provided in accordance with Code section 17.80.090. The Planning Commission may approve, conditionally approve or deny an only after it makes the findings required in section 12.18.090. 2. Director's Decision Notice. The Director mayapprove, conditionally gpprove or deny an qpplication only after it makes the findings required in section 12.18.090. Within five days after the Director approves or conditionally pproves an application under this chapter, the Director shall provide notice in accordance with Code section 17.80.040. 3. Notice of Shot Clock Expiration. The city acknowledges there are federal and state shot clocks which may be applicable to a proposed wireless telecommunications facility. That is, federal and state law provide time periods in which the city must approve or deny a proposed wireless telecommunications facility. As such, the applicant is required to provide the city written notice of the expiration of any shot clock, which the applicant shall ensure is received b, the city (e.g. ovemi hg t mail) no later than twenty (20) dgys prior to the expiration. 4. Written Decision Required. All final decisions made pursuant to this chapter shall be in writing and based on substantial evidence in the written administrative record. The written decision shall include the reasons for the decision. D. .Aefien be ' 69HHeil. ifi eoaElrc eti31g an appeal hearing, the eity eounei4 peals. Any aggrieved person or entity may ppeal a decision by the Director or the Planning Commission as provided in accordance with the provisions in Code chapter 17.80. The appellate authority may hear the appeal de novo. Page 16 of 35 01203.0015/282213.1 97 m znz nnn�i���i i n z Attachment H 12.18.080 Requirements for Facilities within the Public Right -of -Way A. Design and Development Standards. All wireless telecommunications facilities that are located within the public right-of-way shall be designed and maintained as to minimize visual, noise and other impacts on the surrounding community and shall be planned, designed, located, and erected in accordance with the following: 1. General Guidelines. a. The applicant shall employ screening, undergrounding and camouflage design techniques in the design and placement of wireless telecommunications facilities in order to ensure that the facility is as visually screened as possible, to prevent the facility from dominating the surrounding area and to hide the facility from predominant views—minimize significant view impacts from surrounding properties all in a manner that achieves compatibility with the community and in compliance with section 17.02.040 of this Code_ b. Screening shall be designed to be architecturally compatible with surrounding structures using appropriate techniques to camouflage, disguise, and/or blend into the environment, including landscaping, color, and other techniques to minimize the facility's visual impact as well as be compatible with the architectural character of the surrounding buildings or structures in terms of color, size, proportion, style, and quality. c. Facilities shall be located such that views from a residential structure are not significantly impaired. Facilities shall also be located in a manner that protects public views over city view corridors, as defined in the city's general plan, so that no significant view impairment results in accordance with this Code including section 17.02.040-. This provision shall be applied consistent with local, state and federal law. 2. Reserved 3. Traffic Safety. All facilities shall be designed and located in such a manner as to avoid adverse impacts on traffic safety. 4. Blending Methods. All facilities shall have subdued colors and non -reflective materials that blend with the materials and colors of the surrounding area and structures. 5. Equipment. The applicant shall use the least visible equipment possible. Antenna elements shall be flush mounted, to the extent feasible. All antenna mounts shall Page 17 of 35 01203.0015/282213.1 98 04203.000614-276114.3 .0 '. Uftl INUIERTNTP.IIIII M. MW 2. Reserved 3. Traffic Safety. All facilities shall be designed and located in such a manner as to avoid adverse impacts on traffic safety. 4. Blending Methods. All facilities shall have subdued colors and non -reflective materials that blend with the materials and colors of the surrounding area and structures. 5. Equipment. The applicant shall use the least visible equipment possible. Antenna elements shall be flush mounted, to the extent feasible. All antenna mounts shall Page 17 of 35 01203.0015/282213.1 98 04203.000614-276114.3 Attachment H be designed so as not to preclude possible future collocation by the same or other operators or carriers. Unless otherwise provided in this section, antennas shall be situated as close to the ground as possible. 6. Poles. a. Facilities shall be located consistent with section 12.18.200 unless an exception pursuant to section 12.18.190 is granted. b. Only pole -mounted antennas shall be permitted in the right-of-way. All other telecommunications towers are prohibited, and no new poles are permitted that are not replacing an existing pole. (For exceptions see subparagraph (ih) below and se�tion sections 12.18.190 and 12.18.220.) c. Utility pelesPoles. The maximum height of any antenna shall not exceed forty-eight (48) inches above the height of an existing utility pole, nor shall any portion of the antenna or equipment mounted on a pole be less than sixteen and a half " ti ''twenty-four (24) feet above any drivable road surface. All installations on utility poles shall fully comply with the California Public Utilities Commission general orders, including, but not limited to, General Order 95, as may be revised or superseded. d. Light pelesPoles. The maximum height of any antenna shall not exceed si* (6four 4) feet above the existing height of a light pole. Any portion of the antenna or equipment mounted on a pole shall be no less than sixteen and a half (16 1/2) feet above any drivable road surface. e. Replacement pelesPoles. If an applicant proposes to replace a pole in order to accommodate the-q_proposed facility, the pole shall match -be designed to resemble the appearance and dimensions of the original . ele to the existing poles near the proposed location, including size, height, color, materials and style to the maximum extent feasible. f. Pole mounted equipment, exclusive of antennas, shall not exceed six (6) cubic feet in dimension. g.All poles shall be designed to be the minimum ffinetional height and width P Reserved h. An exception shall be required to place a new pole in the public right-of-way. If an exception is granted for placement of new poles in the right-of-way: i. Such new poles shall be designed to resemble existing poles in the right- of-way near that location, including size, height, color, materials and style, with the exception of any existing pole designs that are scheduled to be removed and not replaced. Page 18 of 35 01203.0015/282213.1 99 04203.000614-276114.3 Attachment H ii. Such new poles that are not replacement poles shall be located at least ninety (90) feet from any existing pole to the extent feasible to prevent pole elustefing in the publie right of way. iii. Such new poles shall not adversely impact public view corridors, as defined in the general plan, and shall be located to the extent feasible in an area where there is existing foliage or some7natural or other feature that obscures the view of the pole. The applicant shall further employ concealment techniques to blend the pole with said features. iv. A new pole justification analysis shall be submitted to demonstrate why existing infrastructure cannot be utilized and demonstrating the new pole is the least intrusive means possible including a demonstration that the new pole is designed to be the minimum functional height and width required to support the proposed facility. i. All cables, including, but not limited to, electrical and utility cables, shall be run within the interior of the pole and shall be camouflaged or hidden to the fullest extent feasible withetit ar-d zing the physieal integrity of the pole Conduit . For all wooden poles wherein interior installation is infeasible, conduit and cables attached to the exterior of poles shall be mounted flush thereto and painted to match the pole. 7. Space. Each facility shall be designed to occupy the least amount of space in the right-of-way that is technically feasible. 8. Wind Loads. Each facility shall be properly engineered to withstand wind loads as required by this Code or any duly adopted or incorporated code. An evaluation of high wind load capacity shall include the impact of modification of an existing facility. 9. Obstructions. Each component part of a facility shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, te—incommode the public's use of the right-of-way, or safety hazards to pedestrians and motorists and in compliance with section 17.48.070 so as not to obstruct the intersection visibility triangle. 10. Public Facilities. A facility shall not be located within any portion of the public right-of-way interfering with access to a fire'"hydrant, fire statiefisstation, fire ese-apesescape, water valvesvalve, underground veultsvault, valve housing structure, or any other public health or safety facility. 11. Screening. All ground -mounted facility, pole -mounted equipment, or walls, fences, landscaping or other screening methods shall be installed fie less than -at least eighteen (18) inches from the curb and gutter flow line. Page 19 of 35 01203.0015/282213.1 100 04203.000614-276114.3 Attachment H 12. Accessory Equipment. Not including the electric meter, all accessory equipment shall be located underground...; unless an exception has been granted consistent with this chapter: a. Unless city staff determines that there is no room in the public right-of-way for undergrounding or that undergrounding is not feasible, an exception shall be required in order to place accessory equipment above -ground and concealed with natural or manmade features to the maximum extent possible. b. When above -ground is the only feasible location for a particular type of accessory equipment and will be ground -mounted, such accessory equipment shall be enclosed within a structure, and shall not exceed a height of five (5) feet and a total footprint of fifteen (15) square feet, and shall be fully screened and/or camouflaged, including the use of landscaping, architectural treatment, or acceptable alternate screening. Required electrical meter cabinets shall be screened and/or camouflaged. c. In locations where homes are only along one side of a street, above -ground accessory equipment shall not be installed directly in front of a residential straetareresidence. Such above -ground accessory equipment shall be installed along the side of the street with no homes. Unless said location is located within the coastal setback or the landslide moratorium area, then such locations shall be referred to the city's geotechnical staff for review and recommendations. 13. Landscaping. Where appropriate, each facility shall be installed so as to maintain and enhance existing landscaping on the site, including trees, foliage and shrubs; whether -or- of „*died for-ser-eeffin Additional landscaping shall be planted, irrigated and maintained by applicant where such vegetation —landscaping -is deemed necessary by the city to provide screening or to bleek the 1i between facilities an adja ent u conceal the facility. 14. Signage. No facility shall bear any signs or advertising devices other than certification, warning or other signage required by law or permitted by the city. 15. Lighting. a. No facility may be illuminated unless specifically required by the Federal Aviation Administration or other government agency. Beacon lights are not permitted unless required by the Federal Aviation Administration or other government agency. b. Legally required lightning arresters and beacons shall be included when calculating the height of facilities such as towers, lattice towers and monopoles. c. Any required lighting shall be shielded to eliminate, to the maximum extent possible, impacts on the surrounding neighborhoods. Page 20 of 35 01203.0015/282213.1 101 04203.000614-276114.3 Attachment H d. Unless otherwise required under FAA or FCC regulations, applicants may install only timed or motion -sensitive light controllers and lights, and must install such lights so as to avoid illumination impacts to adjacent properties to the maximum extent feasible. The city may, in its discretion, exempt an gpplicant from the foregoing requirement when the applicant demonstrates a substantial public safety e. The applicant shall submit a lighting study which shall be prepared by a qualified lighting professional to evaluate potential impacts to adjacent properties. 16. Noise. a. Backup generators shall only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of 7:00 PM and 7:00 AM. b. At no time shall equipment noise from any facility exceed an exterior noise level of fifty-five (55) dBA three (3) feet from the source of the noise if the facility is located in the public right-of-way adjacent to a business, commercial, manufacturing, utility or school zone; provided, however, that for any such facility located within five hundred (500) feet of any property zoned residential or improved with a residential use, such equipment noise shall not exceed forty-five (45) dBA. 17. Security. Each facility shall be designed to be resistant to, and minimize opportunities for, unauthorized access, climbing, vandalism, graffiti and other conditions that would result in hazardous situations, visual blight or attractive nuisances. The director may require the provision of warning signs, fencing, anti - climbing devices, or other techniques to prevent unauthorized access and vandalism when, because of their location and/or accessibility, a facility has the potential to become an attractive nuisance. Additionally, no lethal devices or elements shall be installed as a security device. 18. Modification. Consistent with current state and federal laws and if permissible under the same, at the time of modification of a wireless telecommunications facility, existing equipment shall, to the extent feasible, be replaced with equipment that reduces visual, noise and other impacts, including, but not limited to, undergrounding the equipment and replacing larger, more visually intrusive facilities with smaller, less visually intrusive facilities. 19. The installation and construction approved by a wireless telecommunications facility permit shall begin within one (1) year after its approval or it will expire without further action by the city. B. Conditions of Approval. In addition to compliance with the design and development standards outlined in this section, all facilities shall be subject to the following conditions of approval (approval may be by operation of law), as well as any Page 21 of 35 01203.0015/282213.1 102 04203.000614-276114.3 Attachment H modification of these conditions or additional conditions of approval deemed necessary by the director: The permittee shall submit an as built drawing within ninety (90) days after installation of the facility._[As-builts shall be in an electronic format acceptable to the Cty-ciLwhich can be linked to the City's -city's GIS] 2. The permittee shall submit and maintain current at all times basic contact and site information on a form to be supplied by the city. The permittee shall notify the city of any changes to the information submitted within seven +7thirt30) days of any change, including change of the name or legal status of the owner or operator. This information shall include, but is not limited to, the following: a. Identity, including the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator, and the agent or person responsible for the maintenance of the facility. b. The legal status of the owner of the wireless telecommunications facility. F3perz The permittee shall notify the city in writing at least ninety (90) days prior to any transfer or assignment of the permit. The written notice required in this section must include: (1) the transferee's legal name; (2) the transferee's full contact information, the—direeter- fna-y r-equir-e s4mission of any suppet4ing including_a primary contact person, mailing address, telephone number and email address; and (3) a statement signed by the transferee that the transferee shall accept of all permit terms and conditions. The director may require the transferor and/or the transferee to submit any materials or documentation necessary to determine that the proposed transfer complies with the existing permit and all of -its conditions of approval ;,,eluding, but not limited to , cif any. Such materials or documentation may include, but shall not be limited to: federal, state and/or local approvals, licenses, certificates or franchise agreements; statements; photographs; site plans and/or as - built drawings models, ate; and/or an analysis by a qualified radio frequency engineer demonstrating compliance with all applicable regulations and standards of the Federal Communications Commission and the Gali fe,., i P4he Util ti Commission. if the dir-eetaf detet:tnines that the proposed opefation is not eonsistent with the , t l- pe lnit, t eetor- sh^ll notify the pet:mittee who shall either revise the application or- apply for- modifieation of the permit pufstia to the of this eode. Noncompliance with the permit and all its conditions of approval, if any, or failure to submit the materials required by the Director shall be a cause for the city to revoke the applicable permits pursuant to and following the procedure set on in section 12.18.180. 4. At all times, all required notices and -/or signs shall be posted on the site as required by the Federal Communications Commission,California Public Utilities Commission, any pplicable licenses or laws, and as approved by the Page 22 of 35 01203.0015/282213.1 103 m znz nnn�i���i i n z Attachment H Ciy�Lty. The location and dimensions of a sign bearing the emergency contact name and telephone number shall be posted pursuant to the approved plans. Permittee shall pay for and provide a performance bond or other form of security approved by the city attorney's office, which shall be in effect until the facilities are fully and completely removed and the site reasonably returned to its original condition, to cover permittee's obligations under these conditions of approval and this code. The bond security instrument coverage shall include, but not be limited to, removal of the facility. (The amount of the perfefma-t}ee bond security instrument shall be calculated by the applicant in its submittal documents in an amount rationally related to the obligations covered by the bond and shall be specified in the conditions of approval.) Before issuance of any building permit, permittee must submit said perr^fma-nee benasecurity instrument. 6. If a nearby property owner registers a noise complaint and stteh eamplaifft is veri ;oa as valid by the eity, the city shall forward the same to the permittee. Said compliant shall be reviewed and evaluated by the applicant. The permittee shall have ten (10) business days to file a written response regarding the complaint which shall include anyapplicable remedial measures. If the city determines the complaint is valid and the applicant has not taken any steps to minimize the noise, the city may hire a consultant to study, examine and evaluate the noise complaint and the permittee shall pay the fee for the consultant if the site is found in violation of this chapter. The matter shall be reviewed by the director. If the director determines sound proofing or other sound attenuation measures should be required to bring the project into compliance with the Code, the director may impose that enditi .n conditions on the project after- ,,etiev and a publie hoafi- g o achieve said objective. 7. A condition setting forth the permit expiration date in accordance with section 12.18.160 shall be included in the conditions of approval. 8. The wireless telecommunications facility shall be subject to such conditions, changes or limitations as are from time to time deemed necessary by the � director of public works for the purpose of. (a) protecting the public health, safety, and welfare; (b) preventing interference with pedestrian and vehicular traffic; and/or (c) preventing damage to the public right-of-way or any adjacent property . The CUy- i1vmay modify the permit to reflect such conditions, changes or limitations by following the same notice and public hearing procedures as are applicable to the faeyunderlying permit for similarly located facilities, except the permittee shall be given notice by personal service or by registered or certified mail at the last address provided to the Com}-ci�by the permittee. 9. The permittee shall not transfer the permit to any person prior to the completion of the construction of the facility covered by the permit, unless and until the transferee of the permit has submitted the security instrument required by section 12.18.080(B)(5). Page 23 of 35 01203.0015/282213.1 104 04203.000614-276114.3 Attachment H 10. The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement or property without the prior consent of the owner of that structure, improvement or property. No structure, improvement or property owned by the city shall be moved to accommodate a wireless telecommunications facility unless the city determines that such movement will not adversely affect the city or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the city's structure, improvement or property. Prior to commencement of any work pursuant to an encroachment permit issued for any facility within the public right- of-way, the permittee shall provide the city with documentation establishing to the city's satisfaction that the permittee has the legal right to use or interfere with any other structure, improvement or property within the public right-of-way to be affected by applicant's facilities. 11. The permittee shall assume full liability for damage or injury caused to any property or person by the facility. 12. The permittee shall repair, at its sole cost and expense, any damage including, but not limited to subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to city streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility line and systems, or sewer systems and sewer lines that result from any activities performed in connection with the installation and/or maintenance of a wireless telecommunications facility in the public right-of-way. The permittee shall restore such areas, structures and systems to the condition in which they existed prior to the installation or maintenance that necessitated the repairs. In the event the permittee fails to complete such repair within the number of days stated on a written notice by the city engineer. Such time period for correction shall be based on the facts and circumstances, danger to the community and severity of the disrepair. Should the permittee not make said correction within the time period allotted the city engineer shall cause such repair to be completed at permittee's sole cost and expense. 13. No facility shall be permitted to be installed in the drip line of any tree in the right-of-way. 14. Insurance. The permittee shall obtain, pay for and maintain, in full force and effect until the facility approved by the permit is removed in its entirety from the public right-of-way, an insurance policy or policies of public liability insurance, with minimum limits of Two Million Dollars ($2,000,000) for each occurrence and Four Million Dollars ($4,000,000) in the aggregate, that fully protects the city from claims and suits for bodily injury and property damage. The insurance must name the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers as additional named insureds, be issued by an insurer admitted in the State of California with a rating of at least a A:VII in the latest edition of A.M. Best's Insurance Guide, and include an endorsement providing that the policies cannot Page 24 of 35 01203.0015/282213.1 105 m znz nnn�i���i i n z Attachment H be canceled or reduced except with thirty (30) days prior written notice to the city, except for cancellation due to nonpayment of premium. The insurance provided by permittee shall be primary to any coverage available to the city, and any insurance or self-insurance maintained by the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers shall be excess of permittee's insurance and shall not contribute with it. The policies of insurance required by this permit shall include provisions for waiver of subrogation. In accepting the benefits of this permit, permittee hereby waives all rights of subrogation against the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers. The insurance must afford coverage for the permittee's and the wireless provider's use, operation and activity, vehicles, equipment, facility, representatives, agents and employees, as determined by the city's risk manager. Before issuance of any building permit for the facility, the permittee shall furnish the city risk manager certificates of insurance and endorsements, in the form satisfactory to the city attorney or the risk manager, evidencing the coverage required by the city. 15. Permittee shall defend, indemnify, protect and hold harmless city, its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers from and against any and all claims, actions, or proceeding against the city, and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers to attack, set aside, void or annul, an approval of the city, planning commission or city council concerning this permit and the project. Such indemnification shall include damages of any type, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, attorneys' fees and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding. The city shall promptly notify the permittee of any claim, action, or proceeding. Nothing contained herein shall prohibit C4ty--ci from participating in a defense of any claim, action or proceeding. The Ot)--ci�shall have the option of coordinating the defense, including, but not limited to, choosing counsel for- the defense after consulting with permittee and at permittee's expense. 16. Additionally, to the fullest extent permitted by law, the permittee, and every permittee and person in a shared permit, jointly and severally, shall defend, indemnify, protect and hold the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers harmless from and against all claims, suits, demands, actions, losses, liabilities, judgments, settlements, costs (including, but not limited to, attorney's fees, interest and expert witness fees), or damages claimed by third parties against the city for any injury claim, and for property damage sustained by any person, arising out of, resulting from, or are in any way related to the wireless telecommunications facility, or to any work done by or use of the public right-of- way by the permittee, owner or operator of the wireless telecommunications facility, or their agents, excepting only liability arising out of the sole negligence Page 25 of 35 01203.0015/282213.1 106 m znz nnn�i���i i n z Attachment H or willful misconduct of the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers. 17. Should the utility company servicing the facility with electrical service that does not require the use of an above ground meter cabinet, the permittee shall at its sole cost and expense remove the meter cabinet and any related foundation within thirty ninety (3090) days of such service being offered and reasonably restore the area to its prior condition. An extension may be granted if circumstances arise outside of the control of the permittee. 18. Relocation. The permittee shall modify, remove, or relocate its facility, or portion thereof, without cost or expense to city, if and when made necessary by (i) any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or above ground facilities including but not limited to sewers, storm drains, conduits, gas, water, electric or other utility systems, or pipes owned by city or any other public agency, (ii) any abandonment of any street, sidewalk or other public facility, (iii) any change of grade, alignment or width of any street, sidewalk or other public facility, or (iv) a determination by the director of public works that the wireless telecommunications facility has become incompatible with public health, safety or welfare or the public's use of the public right-of-way. Such modification, removal, or relocation of the facility shall be completed within ninety (90) days of notification by city unless exigencies dictate a shorter period for removal or relocation. Modification or relocation of the facility shall require submittal, review and approval of a modified permit pursuant to the Code including applicable notice and hearing �procedures. The permittee shall be entitled, on permittee's election, to either a pro -rata refund of fees paid for the original permit or to a new permit, without additional fee, at a location as close to the original location as the standards set forth in the Code allow. In the event the facility is not modified, removed, or relocated within said period of time, city may cause the same to be done at the sole cost and expense of permittee. Further, due to exigent circumstances as pfevided in the Godeincluding those of immediate or imminent threat to the public's health and safety, the city may modify, remove, or relocate wireless telecommunications facilities without prior notice to permittee provided permittee is notified within a reasonable period thereafter. 19. Permittee shall agree in writing that the permittee is aware of, and agrees to abide by, all conditions of approval imposed by the wireless telecommunications facility permit within thirty (30) days of permit issuance. The permit shall be void and of no force or effect unless such written consent is received by the city within the—said thirty (30) day period. 20. Prior to the issuance of any encroachment , permittee may be required to enter into a right-of-way agreement with the city in accordance with Section 12.18.100. 21. "Permittee" shall include the applicant and all successors in interest to this permit. Page 26 of 35 01203.0015/282213.1 107 m znz nnn�i���i i n z Attachment H 12.18.090 Findings. No permit shall be granted for a wireless telecommunications facility unless all of the following findings are made by the director: A. All notices required for the proposed installation have beenivgen. B. A.The proposed facility has been designed and located in compliance with all applicable provisions of this chapter. C. B -.If applicable, the applicant has demonstrated its inability to locate on existing infrastructure. D. The applicant has provided sufficient evidence supporting the applicant's claim that it has the right to enter the public right-of-way pursuant to state or federal law, or the applicant has entered into a franchise agreement with the city permitting them to use the public right-of-way. E. The applicant has demonstrated the proposed installation is designed such that the proposed installation represents the least intrusive means possible and supported bX factual evidence and a meaningful comparative analysis to show that all alternative locations and designs identified in the application review process were technically infeasible or not available. 12.18.100 [Section Reserved] 12.18.1 l0 Nonexclusive grant. No permit or approval granted under this division chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public right-of-way of the city for delivery of telo,,,,Y,..Y, -ani .,bons se i wr other- puFpe any purpose whatsoever. Further, no approval shall be construed as any warranty of title. 12.18.120 Emergency Deployment. A COW shall be permitted for the duration of an emergency declared by the city or at the discretion of the director. 12.18.130 Operation and Maintenance Standards. All wireless telecommunications facilities must comply at all times with the following operation and maintenance standards. (i) after- discovery of the need by the pefmittee, owner-, operator- or any designated maintenance Page 27 of 35 01203.0015/282213.1 108 m znz nnn�i���i i n z Attachment H A. Unless otherwise provided herein, all necessary repairs and restoration shall be completed by the permittee, owner, operator or any designated maintenance agent within forty-eight (48) hours: 1. After discovery of the need by the permittee, owner, operator or any designated maintenance agent; or 2. After permittee, owner, operator or any designated maintenance agent receives notification from the city. B. Each permittee of a wireless telecommunications facility shall provide the director with the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator and the agent responsible for the maintenance of the facility ("contact information"). Contact information shall be updated within seven (7) days of any change. C. B -.All facilities, including, but not limited to, telecommunication towers, poles, accessory equipment, lighting, fences, walls, shields, cabinets, artificial foliage or camouflage, and the facility site shall be maintained in good condition, including ensuring the facilities are reasonably free of - 1. £ 1. General dirt and grease; 2. Chipped, faded, peeling, and cracked paint; 3. Rust and corrosion; 4. Cracks, dents, and discoloration; 5. Missing, discolored or damaged artificial foliage or other camouflage; 6. Graffiti, bills, stickers, advertisements, litter and debris; 7. Broken and misshapen structural parts; and 8. Any damage from any cause. - WMW 11111 11- M 2 - - -= D. All trees, foliage or other landscaping elements approved as part of the facility shall be maintained in good condition at all times, and the permittee, owner and operator of the facility shall be responsible for replacing any damaged, dead or decayed landscaping. No amendment to any approved landscaping plan may be made until it is submitted to and approved by the director. Page 28 of 35 01203.0015/282213.1 109 m znz nnn�i���i i n z Attachment H E. The permittee shall replace its facilities, after obtaining all required permits, if maintenance or repair is not sufficient to return the facility to the condition it was in at the time of installation. F. G -.Each facility shall be operated and maintained to comply at all times with the noise and maintains Otwill in* * - Or-- impiets t9 stiffoundinwill be audible beyond the , residents. Except .'-. Mergene� 7 testing and maintenance activities th �proFei4y line shall only oeeer- between the hour -s of 7:00 >exeluding holidays, unless alteffifffive hours are approved by dir-eeton Backup generators,, if peffflitted,-sh shall ofilly be conditions of approval. Each owner or operator of a facility shall routinely inspect each site to ensure compliance with the same and the standards set forth in this seetien—and the—eonditions- of apprevelchapter. 12.18.140 RF Emissions and Other Monitoring Requirements. The owner and operator of a facility shall submit within ninety (90) days of beginning operations under a new or amended permit, and every two -five years from the date the facility began operations, a technically sufficient report ("monitoring report") that demonstrates the following: A. The facility is in compliance with applicable federal regulations, including Federal Communications Commission RF emissions standards, as certified by a qualified radio frequency emissions engineer; B. The facility is in compliance with all provisions of this section and its conditions of approval. 12.18.150 No Dangerous Condition or Obstructions Allowed No person shall install, use or maintain any T r^less tel- ;^^tion^ foe lit wifeless teleeemmttnieEfiens eelleeE�fian facility which in whole or in part rests upon, in or over any public right—af--of-way, when such installation, use or maintenance endangers or is reasonably likely to endanger the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other governmental use, or when such facility unreasonably interferes with or unreasonably impedes the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near said location. 12.18.160 Permit Expiration. A. A -Unless Government Code section 65964, as may be amended, authorizes the city to issue a permit with a shorter term, a permit for any wireless telecommunications facility shall be valid for a period of ten (10) years, unless pursuant to another Page 29 of 35 01203.0015/282213.1 110 m �nz nnn�i���i i n z Attachment H provision of this Code it lapses sooner or is revoked. At the end of ten (10) years from the date of issuance, such permit shall automatically expire. B. A permittee may apply for a new permit within si*-one hundred and eighty (6180) Mont +-,days-prior to expiration. Said application and proposal shall comply with the city's current code requirements for wireless telecommunications facilities. 12.18.170 Cessation of Use or Abandonment A. A wireless telecommunications facility is considered abandoned and shall be promptly removed as provided herein if it ceases to provide wireless telecommunications services for ninety (90) or more consecutive days unless the permittee has obtained prior written approval from the director of public works which shall not be unreasonably denied. If there are two (2) or more users of a single facility, then this provision shall not become effective until all users cease using the facility. B. The operator of a facility shall notify the city in writing of its intent to abandon or cease use of a permitted site or a nonconforming site (including unpermitted sites) within ten (10) days of ceasing or abandoning use. Notwithstanding any other provision herein, the operator of the facility shall provide written notice to the director of any discontinuation of operations of thirty (30) days or more. C. Failure to inform the director of cessation or discontinuation of operations of any existing facility as required by this section shall constitute a violation of any approvals and be grounds for: 1. Litigation; 2. Revocation or modification of the permit; 3. Acting on any bond or other assurance required by this article or conditions of approval of the permit; 4. Removal of the facilities by the city in accordance with the procedures established under this Code for abatement of a public nuisance at the owner's expense; and/or 5. Any other remedies permitted under this Code. 12.18.180 Removal and Restoration — Permit Expiration, Revocation or Abandonment A. Upon the expiration date of the permit, including any extensions, earlier termination or revocation of the permit or abandonment of the facility, the permittee, owner or operator shall remove its wireless telecommunications facility and restore the site to its natural condition except for retaining the landscaping improvements and any other improvements at the discretion of the city. Removal shall be in accordance with proper health and safety requirements and all ordinances, rules, and regulations of the Page 30 of 35 01203.0015/282213.1 111 m znz nnn�i���i i n z Attachment H city. The facility shall be removed from the property, at no cost or expense to the city. B. Failure of the permittee, owner or operator to promptly remove its facility and restore the property within thifty ninety (3.90) days after expiration, earlier termination or revocation of the permit, or abandonment of the facility, shall be a violation of this eo&Code. Upon a showing of good cause, -alb an extension may be granted by the director of public works where circumstances are beyond the control of the permittee after expiration. Further failure to abide by the timeline provided in this section shall be grounds for: 1. Prosecution; 2. Acting on any bond or- other assurance—security instrument required by this mel -chapter or conditions of approval of permit; 3. Removal of the facilities by the city in accordance with the procedures established under this Code for abatement of a public nuisance at the owner's expense; and/or 4. Any other remedies permitted under this Code. C. Summary Removal. In the event the director or city engineer determines that the condition or placement of a wireless telecommunications facility located in the public right-of-way constitutes a dangerous condition, obstruction of the public right-of- way, or an imminent threat to public safety, or determines other exigent circumstances require immediate corrective action (collectively, "exigent circumstances"), the director or city engineer may cause the facility to be removed summarily and immediately without advance notice or a hearing. Written notice of the removal shall include the basis for the removal and shall be served upon the permittee and person who owns the facility within five (5) business days of removal and all property removed shall be preserved for the owner's pick-up as feasible. If the owner cannot be identified following reasonable effort or if the owner fails to pick-up the property within sixty (60) days, the facility shall be treated as abandoned property. D. Removal of Facilities by CWpci . In the event the city removes a facility in accordance with nuisance abatement procedures or summary removal, any such removal shall be without any liability to the city for any damage to such facility that may result from reasonable efforts of removal. In addition to the procedures for recovering costs of nuisance abatement, the city may collect such costs from the performance bond posted and to the extent such costs exceed the amount of the performance bond, collect those excess costs in accordance with this Code. Unless otherwise provided herein, the city has no obligation to store such facility. Neither the permittee, owner nor operator shall have any claim if the city destroys any such facility not timely removed by the permittee, owner or operator after notice, or removed by the city due to exigent circumstances. Page 31 of 35 01203.0015/282213.1 112 04203.000614-276114.3 Attachment H 12.18.190 Exceptions. A. The citv Council recognizes that federal law prohibits a hermit denial when it would effectively prohibit the provision of personal wireless services and the applicant proposes the least intrusive means to provide such services. The city Council finds that, due to wide variation among wireless facilities, technical service objectives and changed circumstances over time, a limited exemption for proposals in which strict compliance with this chapter would effectively prohibit personal wireless services serves the public interest. The city Council further finds that circumstances in which an effective prohibition may occur are extremely difficult to discern, and that specified findings to guide the analysis s promotes clarity and the cit.. legitimate interest in well-planned wireless facilities deployment. Therefore, in the event that any applicant asserts that strict compliance with any provision in this chapter, as applied to a specific proposed personal wireless services facility, would effectively prohibit the provision of personal wireless services, the Planning Commission may grant a limited. one-time exemption from strict compliance subiect to the provisions in this section B. Required Findings. The Planning Commission shall not grant any exemption unless the applicant demonstrates with clear and convincing evidence all the following_ 1. The proposed wireless facility qualifies as a "personal wireless services facility' as defined in United States Code, Title 47, section 332(c)(7)(C)(ii); 2. The applicant has provided the city with a clearly defined technical service objective and a clearly defined potential site search area; 3. The applicant has provided the citv with a meaningful comparative analvsis that includes the factual reasons why any alternative location(s) or design(s) suggested by the city or otherwise identified in the administrative record, including but not limited to potential alternatives identified at any public meeting or hearing, are not technically feasible or potentially available; and Page 32 of 35 01203.0015/282213.1 113 04203.000614-276114.3 Attachment H 4. The applicant has provided the city with a meaningful comparative analysis that includes the factual reasons why the proposed location and design deviates is the least noncompliant location and design necessary to reasonably achieve the annlicant's reasonable technical service obiectives. C. Scope. The Planning Commission shall limit its exemption to the extent to which the applicant demonstrates such exemption is necessary to reasonably achieve its reasonable technical service objectives. The Planning Commission may adopt conditions of approval as reasonably necessary to promote the purposes in this chapter and protect the public health, safety and welfare. D. Independent Consultant. The city shall have the right to hire, at the applicant's expense, an independent consultant to evaluate issues raised by the exception and to submit recommendations and evidence in response to the application. 12.18.200 Location Restrictions. Locations Requiring an Exception. Wireless telecommunications facilities shall no :are strongly disfavored in certain areas. Therefore the following locations are permitted when an exception has been granted pursuant to section 12.18.190: A. Public right-of-way of local streets as identified in the general plan if within the residential zones; B. EPublic right-of-way if mounted to a new pole that is not replacing an existing pole in an otherwise permitted location. 12.18.210 Effect on Other Ordinances. Compliance with the provisions of this chapter shall not relieve a person from complying with any other applicable provision of this Code. In the event of a conflict between any provision of this division and other sections of this Code, this chapter shall control. 12.18.220 State or Federal Law. A. In the event it is determined by the city attorney that state or federal law prohibits discretionary permitting requirements for certain wireless telecommunications facilities, the pefmits Teqiiir-ed by this division for- these f4eilities such requirement shall be deemed severable and all remaining regulations shall remain in full force and effect. Such a determination by the city attorney shall be in writing with citations to legal authority and shall be a public record. For those facilities, in lieu of a minor conditional use permit or a conditional use permit, a ministerial permit shall be required prior to installation or modification of a wireless telecommunications facility, and all provisions of this division shall be applicable to any such facility with the exception that the required permit shall be reviewed and Page 33 of 35 01203.0015/282213.1 114 m �nz nnn�i���i i n z Attachment H administered as a ministerial permit by the director rather than as a discretionary permit. Any conditions of approval set forth in this provision or deemed necessary by the director shall be imposed and administered as reasonable time, place and manner rules. B. If subsequent to the issuance of the city attorney's written determination pursuant to (A) above, the city attorney determines that the law has changed and that discretionary permitting is permissible, the city attorney shall issue such determination in writing with citations to legal authority and all discretionary permitting requirements shall be reinstated. The city attorney's written determination shall be a public record. C. All installations permitted pursuant to this chapter shall comply with all federal and state laws including but not limited to the American with Disabilities Act. 12.18.230 Nonconforming Wireless Telecommunications Facilities in the Right -of -Way A. Nonconforming wireless telecommunications facilities are those facilities that do not conform to this chapter. B. Nonconforming wireless telecommunications facilities shall, within ten (10) years from the date such facility becomes nonconforming, be brought into conformity with all requirements of this article; provided, however, that should the owner desire to expand or modify the facility, intensify the use, or make some other change in a conditional use, the owner shall comply with all applicable provisions of this Code at such time, to the extent the city entitled can require such compliance under federal and state law. C. An aggrieved person may file an appeal to the city council of any decision of the director made pursuant to this section. In the event of an appeal alleging that the ten (10) year amortization period is not reasonable as applied to a particular property, the city council may consider the amount of investment or original cost, present actual or depreciated value, dates of construction, amortization for tax purposes, salvage value, remaining useful life, the length and remaining term of the lease under which it is maintained (if any), and the harm to the public if the structure remains standing beyond the prescribed amortization period, and set an amortization period accordingly for the specific property." SECTION 6. Section 17.96.090 of Chapter 96, Title 17 is amended and replaced in its entirety to read as follows: "Commercial antenna" means all antennas, parabolic dishes, relay towers and antenna support structures used for the transmission or reception of radio, television and communication signals for commercial purposes. For the purpose of this definition, "commercial purposes" shall mean communications for hire or material compensation, or the use of commercial frequencies, as these terms are defined by the Federal Communications Commission (FCC). "Commercial antennas" shall not include antennas owned or operated by governmental agencies. Page 34 of 35 01203.0015/282213.1 115 04203.000614-276114.3 Attachment H SECTION 7. Severability. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this ordinance or the application thereof to any person or place, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remainder of this ordinance. The Cty-ciyCouncil hereby declares that it would have adopted this ordinance, and each and every section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. SECTION 8. Effective Date. This ordinance shall go into effect immediately. SECTION 9. Certification. The city clerk of the Ei4�-ci�of Rancho Palos Verdes shall certify to the passage and adoption of this ordinance and shall cause the same or a summary thereof to be published and posted in the manner required by law. PASSED, APPROVED AND ADOPTED this day of 2016, by the following vote to wit: Ken Dyda Mayor ATTEST: Carla Morreales C4y-ci Clerk APPROVED AS TO FORM: David J. Aleshire City d1y Attorney Page 35 of 35 01203.0015/282213.1 116 m znz nnn�i���i i n z Attachment I ORDINANCE NO. U AN URGENCY ORDINANCE OF THE CITY OF RANCHO PALOS VERDES, CALIFORNIA, ADDING A NEW CHAPTER ENTITLED "WIRELESS TELECOMMUNICATIONS FACILITIES" TO CHAPTER 18 OF TITLE 12 OF THE RANCHO PALOS VERDES MUNICIPAL CODE TO PROVIDE UNIFORM AND COMPREHENSIVE REGULATIONS AND STANDARDS, ALONG WITH PERMIT REQUIREMENTS, FOR THE INSTALLATION OF WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY A. Recitals. (i) The purpose of this Ordinance is to amend the city's Municipal Code to provide uniform and comprehensive standards and regulations, along with permit requirements, for the installation of wireless telecommunications facilities in the city's public right-of-way (ROW). (ii) The city currently has approximately 140 wireless installations in the ROW. The city has approximately 52 pending or anticipated applications for wireless installations in the ROW. (iii) The Municipal Code contains very minimal standards or regulations specifically designed to address the unique legal and/or practical issues that arise in connection with wireless telecommunications facilities deployed in the ROW. (iv) The city Council finds that the lack of current standards and regulations in the Municipal Code for wireless facilities in the ROW, the substantial number of pending and anticipated applications for wireless facilities in the ROW, the inability to adopt a temporary moratorium, and the potential liabilities and negative consequences for noncompliance with state and federal regulations (including, without limitation, automatic approvals) present current and immediate threat to the public health, safety and welfare. The city Council further finds and declares that the immediate implementation of the Ordinance is necessary to preserve and protect public health, safety and welfare. (v) State and federal law requires local governments to act on permit applications for wireless facilities within a prescribed time period and may automatically deem an application approved when a failure to act occurs. See 47 U.S.C. § 332(c)(7)(B)(iii); 47 C.F.R. §§ 1.40001 et seq.; Cal. Gov't Code § 65964.1. The Federal Communications Commission (FCC) may require a decision on certain applications in as few as 60 days. See 47 C.F.R. § 1.40001(c)(2); see also In the Matter of Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Report and Order, 29 FCC Rcd. 12865 (Oct. 17, 2014) [hereinafter "2014 Report and Order"]; In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review, Declaratory Ruling, 24 FCC Rcd. 13994 (Nov. 18, 2009) [hereinafter "2009 Declaratory Ruling"]. Pursuant to FCC regulations, the city cannot adopt a moratorium ordinance to toll the time period for review, even when needed to allow the city to maintain the status quo while it reviews and revises its policies for compliance with changes in state or federal law. See 47 C.F.R. § 1.40001(c)(3); 2014 Report and Order, 29 FCC Rcd. at 219, 265. Page 1 of 32 117 01203.0006/276114.6 Attachment I (vi) State and federal law have changed substantially since the city last adopted regulations for wireless installation in the ROW. Such changes include modifications to "shot clocks" whereby the city must approve or deny installations within a certain period of time. The city is in immediate need of clear regulations for wireless installations in the ROW given the number of pending or anticipated applications and legal timelines upon which the city must act. (vii) The ROW in the city of Rancho Palos Verdes is a uniquely valuable public resource, closely linked with the city's residential character and natural beauty. Whereas the reasonably regulated and orderly deployment of wireless facilities in the ROW is desirable, unregulated or disorderly deployment represents an ever-increasing and true threat to the health, welfare and safety of the community. (viii) The regulations of wireless installations in the ROW are necessary to protect and preserve the aesthetics of the city's property values and to ensure that all wireless facilities are installed using the least intrusive means possible. (ix) On January 19, 2016, the city Council of the city of Rancho Palos Verdes conducted and concluded a duly noticed public hearing concerning the Municipal Code amendments contained herein as required by law and received testimony from city staff and all interested parties regarding the proposed amendments. (x) The city council finds and determines as follows: 1. The Federal Telecommunications Act of 1996 preempts and declares invalid all state rules that restrict entry or limit competition in both local and long-distance telephone service. 2 The California Public Utilities Commission ("CPUC") is primarily responsible for the implementation of local telephone competition and it issues certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations. 3. Section 234(a) of the California Public Utilities Code defines a "telephone corporation" as "every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state." 4. Section 616 of the California Public Utilities Code provides that a telephone corporation "may condemn any property necessary for the construction and maintenance of its telephone line." 5. Section 2902 of the California Public Utilities Code authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets. Page 2 of 32 118 01203.0006/276114.6 Attachment I 6. Section 7901 of the California Public Utilities Code authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abatements for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters. 7. Section 7901.1 of the California Public Utilities Code confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the imposition of fees. 8. Section 50030 of the California Government Code provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes. (xi) All legal prerequisites to the adoption of the Ordinance have occurred. B. Ordinance. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES ORDAIN AS FOLLOWS: correct. SECTION 1. The facts set forth in the Recitals, Part A of this Ordinance, are true and SECTION 2. Environmental Review A. The City Council finds that, pursuant to CEQA Guidelines, section 15061(b)(3), it has determined with certainty that there is no possibility that this project may have a significant impact on the physical environment. This ordinance is being enacted to bring the City's processing procedures into compliance with existing State and federal law. The mere synchronization of these timelines into the City's zoning ordinance is not a "physical condition" that will impact the environment for the purposes of the California Environmental Quality Act ("CEQA"). Therefore, this project is not subject to CEQA SECTION 3. Section 13.12.320 of Chapter 12, Title 13 is hereby amended and replaced in its entirety to read as follows: "13.12.320 Antennas for telecommunications services. A. Section 17.76.020 of Chapter 17.76 of Title 17 of this Code sets forth the city's regulatory requirements relating to the siting and construction of the following categories of antennas that are commonly used in providing or receiving telecommunications services: Page 3 of 32 119 01203.0006/276114.6 Attachment I 1. Satellite earth station antennas, (also known as "satellite dish antennas"), which are parabolic or dish -shaped antennas which are in excess of one (1) meter in diameter or devices that are designed for over -the -air reception of radio or television broadcast signals, multichannel multipoint distribution service, or direct broadcast satellite services. 2. Commercial antennas, which are unstaffed facilities for the transmission or reception of radio, television, and communications signals, commonly consisting of an antenna array, connection cables, a support structure to achieve the necessary elevation, and an equipment facility to house accessory equipment, which may include cabinets, pedestals, shelters, and similar protective structures. B. Notwithstanding any other provision of this chapter, Chapter 12.18 of this code shall apply to siting, modification and construction of wireless telecommunication facilities, as defined therein, which in whole or in part, itself or as part of another structure, rests upon, in, over or under the public right-of-way, including, but not limited to, any such facility owned, controlled, operated or managed by an entity entitled to construct within the right-of-way pursuant to a franchise with the city or state law." SECTION 4. Section 13.12.320 of Chapter 12, Title 13 is hereby repealed. SECTION 5. Chapter 18 "Wireless Telecommunications Facilities in the Public Right - of -Way" is hereby added to Title 12 of the Rancho Palos Verdes Municipal Code beginning at Section 12.18.010 to read as follows: "CHAPTER 18. WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY 12.18.010 Purpose. The purpose and intent of this chapter is to provide a uniform and comprehensive set of regulations and standards for the permitting, development, siting, installation, design, operation and maintenance of wireless telecommunications facilities in the city's public right-of-way. These regulations are intended to prescribe clear and reasonable criteria to assess and process applications in a consistent and expeditious manner, while reducing the impacts associated with wireless telecommunications facilities. This chapter provides standards necessary (1) for the preservation of the public right-of-way in the city for the maximum benefit and use of the public, (2) to promote and protect public health and safety, community welfare, visual resources and the aesthetic quality of the city consistent with the goals, objectives and policies of the General Plan, and (3) to provide for the orderly, managed and efficient development of wireless telecommunications facilities in accordance with the state and federal laws, rules and regulations. 12.18.020 Definitions. "Accessory equipment" means any equipment associated with the installation of a wireless telecommunications facility, including but not limited to cabling, generators, fans, air Page 4 of 32 120 01203.0006/276114.6 Attachment I conditioning units, electrical panels, equipment shelters, equipment cabinets, equipment buildings, pedestals, meters, vaults, splice boxes, and surface location markers. "Antenna" means that part of a wireless telecommunications facility designed to radiate or receive radio frequency signals. "Cellular" means an analog or digital wireless telecommunications technology that is based on a system of interconnected neighboring cell sites. "Code" means the Rancho Palos Verdes Municipal Code. "Collocation" means the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signal for communication purposes. "COW" means a "cell on wheels," which is a wireless telecommunications facility temporarily rolled in or temporarily installed. "Director" means the director of public works, or his or her designee. "Facility(ies)" means wireless telecommunications facilities. "Ground -Mounted" means mounted to a telecommunications tower. "Modification" means a change to an existing wireless telecommunications facility that involves any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation, including, but not limited to, changes in size, shape, color, visual design, or exterior material. "Modification" does not include repair, replacement or maintenance if those actions do not involve a change to the existing facility involving any of the following: collocation, expansion, alteration, enlargement, intensification, reduction, or augmentation. "Monopole" means a structure composed of a pole or tower used to support antennas or related equipment. A monopole also includes a monopine, monopalm and similar monopoles camouflaged to resemble faux trees or other faux objects attached on a monopole (e.g. water tower). "Mounted" means attached or supported. "Located within the public right-of-way" includes any facility which in whole or in part, itself or as part of another structure, rests upon, in, over or under the public right-of-way. "Pole" means a single shaft of wood, steel, concrete or other material capable of supporting the equipment mounted thereon in a safe and adequate manner and as required by provisions of this Code. "Public right-of-way" means any public right-of-way as defined by section 17.96.1490 of this Code. Page 5 of 32 121 01203.0006/276114.6 Attachment I "Sensitive uses" means any residential use, public or private school, day care, playground, and retirement facility. "Telecommunications tower" means a freestanding mast, pole, monopole, guyed tower, lattice tower, free standing tower or other structure designed and primarily used to support wireless telecommunications facility antennas. "Utility Pole" means any pole or tower owned by any utility company that is primarily used to support wires or cables necessary to the provision of electrical or other utility services regulated by the California Public Utilities Commission. "Wireless telecommunications facility," "facility" or "facilities" mean any facility that transmits and/or receives electromagnetic waves. It includes, but is not limited to, antennas and/or other types of equipment for the transmission or receipt of such signals, telecommunications towers or similar structures supporting such equipment, related accessory equipment, equipment buildings, parking areas, and other accessory development. Exceptions: The term "wireless telecommunications facility" does not apply to the following: (a) Government owned and operated telecommunications facilities. (b) Emergency medical care provider -owned and operated telecommunications facilities. (c) Mobile services providing public information coverage of news events of a temporary nature. (d) Any wireless telecommunications facilities exempted from this Code by federal law or state law. "Wireless telecommunications services" means the provision of services using a wireless telecommunications facility or a wireless telecommunications collocation facility, and shall include, but not limited to, the following services: personal wireless services as defined in the federal Telecommunications Act of 1996 at 47 U.S.C. §332(c)(7)(C) or its successor statute, cellular service, personal communication service, and/or data radio telecommunications. 12.18.030 Applicability. A. This chapter applies to the siting, construction or modification of any and all wireless telecommunications facilities proposed to be located in the public right-of-way as follows: 1. All facilities for which applications were not approved prior to January 19, 2016 shall be subject to and comply with all provisions of this division. 2. All facilities for which applications were approved by the city prior to January 19, 2016 shall not be required to obtain a new or amended permit until Page 6 of 32 122 01203.0006/276114.6 Attachment I such time as a provision of this code so requires. Any wireless telecommunication facility that was lawfully constructed prior to January 19, 2016 that does not comply with the standards, regulations and/or requirements of this division, shall be deemed a nonconforming use and shall also be subject to the provisions of section 12.18.230. 3. All facilities, notwithstanding the date approved, shall be subject immediately to the provisions of this chapter governing the operation and maintenance (section 12.18.130), radio frequency emissions monitoring (section 12.18.140), cessation of use and abandonment (section 12.18.170), removal and restoration (section 12.18.180) of wireless telecommunications facilities and the prohibition of dangerous conditions or obstructions by such facilities (section 12.18.150); provided, however, that in the event a condition of approval conflicts with a provision of this division, the condition of approval shall control until the permit is amended or revoked. B. This chapter does not apply to the following: 1. Amateur radio facilities; 2. Over the Air Reception Devices ("OTARD") antennas; 3. Facilities owned and operated by the city for its use; 4. Any entity legally entitled to an exemption pursuant to state or federal law or governing franchise agreement. l 2.18.040 Wireless Telecommunications Facility Permit Requirements. A. Major Wireless Telecommunications Facilities Permit. All new wireless facilities or collocations or modifications to existing wireless facilities shall require a Major Wireless Telecommunications Facilities Permit subject to Planning Commission approval unless otherwise provided for in this chapter. B. Administrative Wireless Telecommunications Facilities Permit. 1. An Administrative Wireless Telecommunications Facilities Permit, subject to the Director's approval, may be issued for new facilities or collocations or modifications to existing facilities that meet all the following criteria: a. The proposal is not located in any location identified in section 12.18.200. b. The proposal would not significantly impair any view from any viewing area as those terms are interpreted and applied in Code section 17.02.040; and Page 7 of 32 123 01203.0006/276114.6 Attachment I c. The proposal complies with all applicable provisions in this chapter without need for an exception pursuant to section 12.18.190. 2. The Director may, in the Director's discretion, refer any application for an Administrative Wireless Telecommunications Facilities Permit to the Planning Commission for approval. 3. In the event that the Director determines that any application submitted for an Administrative Wireless Telecommunications Facilities Permit does not meet the criteria this Code, the Director shall convert the application to a Major Wireless Facilities Permit application and refer it to the Planning Commission. C. Master Deployment Plan Permit. 1. Any applicant that seeks approval for five (5) or more wireless telecommunications facilities (including new facilities and collocations to existing facilities) may elect to submit an application for a Master Deployment Plan Permit subject to Planning Commission approval. The proposed facilities in a Master Deployment Plan shall be reviewed together at the same time and subject to the same requirements and procedures applicable to a Major Wireless Telecommunications Facilities Permit. 2. A Master Deployment Plan Permit shall be deemed an approval for all wireless telecommunications facilities within the plan; provided, however, that an individual encroachment permit shall be required for each wireless telecommunications facility. 3. After the Planning Commission approves a Master Deployment Plan Permit, any deviations or alterations from the approved Master Deployment Plan for an individual wireless telecommunications facility shall require either a Major Wireless Telecommunications Facilities Permit or an Administrative Wireless Telecommunications Facilities Permit, as applicable. D. Other Permits Required. In addition to any permit that may be required under this chapter, the applicant must obtain all other required prior permits or other approvals from other city departments, or state or federal agencies. Any permit granted under this chapter is subject to the conditions and/or requirements of other required prior permits or other approvals from other city departments, state or federal agencies. E. Eligible Applicants. Only applicants who have been granted the right to enter the public right-of-way pursuant to state or federal law, or who have entered into a franchise agreement with the city permitting them to use the public right-of-way, shall be eligible for a permit to install or modify a wireless telecommunications facility or a wireless telecommunications collocation facility in the public right-of- way. F. Speculative Equipment Prohibited. The city finds that the practice of "pre - approving" wireless equipment or other improvements that the applicant does not Page 8 of 32 124 01203.0006/276114.6 Attachment I presently intend to install but may wish to install at some undetermined future time does not serve the public's best interest. The city shall not approve any equipment or other improvements in connection with a Wireless Telecommunications Facility Permit when the applicant does not actually and presently intend to install such equipment or construct such improvements. 12.18.050 Application for Wireless Telecommunications Facility Permit. A. Application. In addition to the information required of an applicant for an encroachment permit or any other permit required by this code, each applicant requesting approval of the installation or modification of a wireless telecommunications facility in the public right-of-way shall fully and completely submit to the city a written application on a form prepared by the director. 2. All applicant's seeking to install a wireless telecommunications facility shall not seek an encroachment permit to install fiber only and subsequently seek to install antennas and accessory equipment pursuant to a wireless telecommunications facility permit. The applications for all installations in the right-of-way shall simultaneously request fiber installation or other cable installation when applying for an wireless telecommunications facility permit. B. Application Contents The director shall develop an application form and make it available to applicants upon request. The supplemental application form for a new wireless telecommunications facility installation in the public right-of-way shall require the following information, in addition to all other information determined necessary by the director: 1. The name, address and telephone number of the applicant, owner and the operator of the proposed facility. 2. If the applicant is an agent, the applicant shall provide a duly executed letter of authorization from the owner of the facility. If the owner will not directly provide wireless telecommunications services, the applicant shall provide a duly executed letter of authorization from the person(s) or entity(ies) that will provide those O"'FROM-1 3. If the facility will be located on or in the property of someone other than the owner of the facility (such as a street light pole, street signal pole, utility pole, utility cabinet, vault, or cable conduit), the applicant shall provide a duly executed written authorization from the property owner(s) authorizing the placement of the facility on or in the property owner's property. 4. A full written description of the proposed facility and its purpose. Page 9 of 32 125 01203.0006/276114.6 Attachment I 5. Detailed engineering plans of the proposed facility and related report prepared by a professional engineer registered in the state documenting the following: a. Height, diameter and design of the facility, including technical engineering specifications, economic and other pertinent factors governing selection of the proposed design, together with evidence that demonstrates that the proposed facility has been designed to the minimum height and diameter required from a technological standpoint for the proposed site. A layout plan, section and elevation of the tower structure shall be included. b. A photograph and model name and number of each piece of equipment included c. Power output and operating frequency for the proposed antenna. d. Total anticipated capacity of the structure, indicating the number and types of antennas and power and frequency ranges, which can be accommodated. e. Sufficient evidence of the structural integrity of the pole or other supporting structure as required by the city. 6. A justification study which includes the rationale for selecting the proposed use; if applicable, a detailed explanation of the coverage gap that the proposed use would serve; and how the proposed use is the least intrusive means for the applicant to provide wireless service. Said study shall include all existing structures and/or alternative sites evaluated for potential installation of the proposed facility and why said alternatives are not a viable option. 7. Site plan(s) to scale, specifying and depicting the exact proposed location of the pole, pole diameter, antennas, accessory equipment, access or utility easements, landscaped areas, existing utilities, adjacent land uses, and showing compliance with section 12.18.080. 8. Scaled elevation plans of proposed poles, antennas, accessory equipment, and related landscaping and screening. 9. A completed environmental assessment application. 10. If the applicant requests an exception to the requirements of this chapter (in accordance with section 12.18.190), the applicant shall provide all information and studies necessary for the city to evaluate that request. 11. An accurate visual impact analysis showing the maximum silhouette, viewshed analysis, color and finish palette and proposed screening for the facility, including scaled photo simulations from at least 3 different angles. 12. Completion of the radio frequency (RF) emissions exposure guidelines checklist contained in Appendix A to the Federal Communications Commission's (FCC) Page 10 of 32 126 01203.0006/276114.6 Attachment I "Local Government Official's Guide to Transmitting Antenna RF Emission Safety" to determine whether the facility will be "categorically excluded" as that term is used by the FCC. 13. For a facility that is not categorically excluded under the FCC regulations for RF emissions, the applicant shall submit an RF exposure compliance report prepared and certified by an RF engineer acceptable to the city that certifies that the proposed facility, as well as any facilities that contribute to the cumulative exposure in the subject area, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels (in watts Effective Radio Power "ERP") for all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC) and also the boundaries of areas with RF exposures in excess of the controlled/occupational limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site. 14. [Reserved] 15. Copies of any documents that the applicant is required to file pursuant to Federal Aviation Administration regulations for the facility. 16. A noise study prepared by a qualified acoustic engineer documenting that the level of noise to be emitted by the proposed wireless telecommunications facility will comply with this Code including section 12.18.080(A)(16)(B). 17. A traffic control plan when the proposed installation is in on any street in a non- residential zone. The city shall have the discretion to require a traffic control plan when the applicant seeks to use large equipment (e.g. crane). 18. A scaled conceptual landscape plan showing existing trees and vegetation and all proposed landscaping, concealment, screening and proposed irrigation with a discussion of how the chosen material at maturity will screen the site. 19. A written description identifying the geographic service area for the subject installation including geographic and propagation maps, that identifies the location of the proposed facility in relation to all existing and planned facilities maintained within the city by each of the applicant, operator, and owner, if different entities. As well, as the estimated number of potentially affected uses in the geographic service area. Regardless of whether a Master Deployment Plan Permit is sought, the applicant shall depict all locations anticipated for new construction and/or modifications to existing facilities, including collocation, within two years of submittal of the application. Longer range conceptual plans for a period of five years shall also be provided, if available. Page 11 of 32 127 01203.0006/276114.6 Attachment I a. In the event the applicant seeks to install a wireless telecommunications facility to address service coverage concerns, 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; b. In the event the applicant seeks to address service capacity concerns, a written explanation identifying the existing facilities with service capacity issues together with competent evidence to demonstrate the inability of those facilities to meet capacity demands. 20. Certification that applicant is a telephone corporation or a statement providing the basis for its claimed right to enter the right-of-way. If the applicant has a certificate of public convenience and necessity (CPCN) issued by the California Public Utilities Commission, it shall provide a copy of its CPCN. 21. An application fee, and a deposit for a consultant's review as set forth in paragraph E of this section in an amount set by resolution by the city Council and un accordance with California Government Code section 50030. 22. Proof that a temporary mock-up of the facility and sign has been installed at the proposed location for a period of at least thirty (30) calendar days. a. Applicant shall obtain an encroachment permit before installing the temporary mock-up, and must remove the temporary mock-up within five (5) calendar days of receiving a written notice to remove from the director. b. When seeking the encroachment permit, the applicant shall provide address labels for use by the city in noticing all property owners within 500 feet of the proposed installation. The city shall mail a notice regarding installation of the mock-up at least five (5) business days prior to the installation. c. The mock-up shall demonstrate the height and mass of the facility, including all interconnecting cables. The applicant shall not be entitled to install the facility it intends to be installed permanently. The mock-up may consist of story poles or the like. d. The mock-up shall include a sign that displays photo simulations depicting before and after images, including any accessory equipment cabinet, and the telephone number of the Public Works Department. e. The applicant shall be required to follow any other city practices or processes relevant to the installation of a mock-up as may be provided in a publicly accessible form or document. Page 12 of 32 128 01203.0006/276114.6 Attachment I f. After installation of the mock-up, the applicant shall certify that the mock-up accurately represents the height and width of the proposed installation and has been installed consistent with this Code. 23. Any other information and/or studies determined necessary by the director may be required. C. Application Contents — Modification of Existing Facility. The content of the application form for a modification to an existing facility shall be determined by the director, and shall include but not be limited to the requirements listed in section 12.18.050(B) unless prohibited by state or federal law. D. Effect of State or Federal Law Change. In the event a subsequent state or federal law prohibits the collection of any information required by section 12.18.050(B), the director is authorized to omit, modify or add to that request from the city's application form with the written approval of the city attorney, which approval shall be a public record. E. Independent Expert. The director is authorized to retain on behalf of the city an independent, qualified consultant to review any application for a permit for a wireless telecommunications facility. The review is intended to be a review of technical aspects of the proposed wireless telecommunications facility and shall address any or all of the following: 1. Compliance with applicable radio frequency emission standards; 2. Whether any requested exception is necessary to close a significant gap in coverage and is the least intrusive means of doing so; 3. The accuracy and completeness of submissions; 4. Technical demonstration of the unavailability of alternative sites or configurations and/or coverage analysis; 5. The applicability of analysis techniques and methodologies; 6. The validity of conclusions reached or claims made by applicant; 7. The viability of alternative sites and alternative designs; and 8. Any other specific technical issues identified by the consultant or designated by the city. The cost of this review shall be paid by the applicant through a deposit pursuant to an adopted fee schedule resolution. No permit shall be issued to any applicant which has not fully reimbursed the city for the consultants cost. Page 13 of 32 129 01203.0006/276114.6 Attachment I 12.18.060 Review Procedure A. Pre -submittal Conference. Prior to application submittal, the city strongly encourages all applicants to schedule and attend a pre -submittal conference with Public Works Department staff to receive informal feedback on the proposed location, design and application materials. The pre -submittal conference is intended to identify potential concerns and streamline the formal application review process after submittal. Public Works Department staff will endeavor to provide applicants with an appointment within approximately five (5) business days after receipt of a written request. B. Application Submittal Appointment. All applications must be submitted to the city at a pre -scheduled appointment. Applicants may submit one (1) application per appointment but may schedule successive appointments for multiple applications whenever feasible as determined by the city. city staff will endeavor to provide applicants with an appointment within five (5) business days after receipt of a written request. C. Notice; Decisions. The provisions in this section describe the procedures for approval and any required notice and public hearings for an application. Planning Commission Hearings. Any permit application under this chapter subject to Planning Commission approval shall require notice and a public hearing. Notice of such hearing shall be provided in accordance with Code section 17.80.090. The Planning Commission may approve, conditionally approve or deny an application only after it makes the findings required in section 12.18.090. 2. Director's Decision Notice. The Director may approve, conditionally approve or deny an application only after it makes the findings required in section 12.18.090. Within five days after the Director approves or conditionally approves an application under this chapter, the Director shall provide notice in accordance with Code section 17.80.040. 3. Notice of Shot Clock Expiration. The city acknowledges there are federal and state shot clocks which may be applicable to a proposed wireless telecommunications facility. That is, federal and state law provide time periods in which the city must approve or deny a proposed wireless telecommunications facility. As such, the applicant is required to provide the city written notice of the expiration of any shot clock, which the applicant shall ensure is received by the city (e.g. overnight mail) no later than twenty (20) days prior to the expiration. 4. Written Decision Required. All final decisions made pursuant to this chapter shall be in writing and based on substantial evidence in the written administrative record. The written decision shall include the reasons for the decision. D. Appeals. Any aggrieved person or entity may appeal a decision by the Director or the Planning Commission as provided in accordance with the provisions in Code chapter 17.80. The appellate authority may hear the appeal de novo. Page 14 of 32 130 01203.0006/276114.6 Attachment I 12.18.080 Requirements for Facilities within the Public Right -of -Way A. Design and Development Standards. All wireless telecommunications facilities that are located within the public right-of-way shall be designed and maintained as to minimize visual, noise and other impacts on the surrounding community and shall be planned, designed, located, and erected in accordance with the following: 1. General Guidelines. a. The applicant shall employ screening, undergrounding and camouflage design techniques in the design and placement of wireless telecommunications facilities in order to ensure that the facility is as visually screened as possible, to prevent the facility from dominating the surrounding area and to minimize significant view impacts from surrounding properties all in a manner that achieves compatibility with the community and in compliance with section 17.02.040 of this Code. b. Screening shall be designed to be architecturally compatible with surrounding structures using appropriate techniques to camouflage, disguise, and/or blend into the environment, including landscaping, color, and other techniques to minimize the facility's visual impact as well as be compatible with the architectural character of the surrounding buildings or structures in terms of color, size, proportion, style, and quality. c. Facilities shall be located such that views from a residential structure are not significantly impaired. Facilities shall also be located in a manner that protects public views over city view corridors, as defined in the city's general plan, so that no significant view impairment results in accordance with this Code including section 17.02.040. This provision shall be applied consistent with local, state and federal law. 2. [Reserved] 3. Traffic Safety. All facilities shall be designed and located in such a manner as to avoid adverse impacts on traffic safety. 4. Blending Methods. All facilities shall have subdued colors and non -reflective materials that blend with the materials and colors of the surrounding area and structures. 5. Equipment. The applicant shall use the least visible equipment possible. Antenna elements shall be flush mounted, to the extent feasible. All antenna mounts shall be designed so as not to preclude possible future collocation by the same or other operators or carriers. Unless otherwise provided in this section, antennas shall be situated as close to the ground as possible. Page 15 of 32 131 01203.0006/276114.6 Attachment I 6. Poles. a. Facilities shall be located consistent with section 12.18.200 unless an exception pursuant to section 12.18.190 is granted. b. Only pole -mounted antennas shall be permitted in the right-of-way. All other telecommunications towers are prohibited, and no new poles are permitted that are not replacing an existing pole. (For exceptions see subparagraph (h) below and sections 12.18.190 and 12.18.220.) c. Utility Poles. The maximum height of any antenna shall not exceed forty-eight (48) inches above the height of an existing utility pole, nor shall any portion of the antenna or equipment mounted on a pole be less than twenty-four (24) feet above any drivable road surface. All installations on utility poles shall fully comply with the California Public Utilities Commission general orders, including, but not limited to, General Order 95, as may be revised or superseded. d. Light Poles. The maximum height of any antenna shall not exceed four (4) feet above the existing height of a light pole. Any portion of the antenna or equipment mounted on a pole shall be no less than sixteen and a half (16 1/2) feet above any drivable road surface. e. Replacement Poles. If an applicant proposes to replace a pole in order to accommodate a proposed facility, the pole shall be designed to resemble the appearance and dimensions of existing poles near the proposed location, including size, height, color, materials and style to the maximum extent feasible. f. Pole mounted equipment, exclusive of antennas, shall not exceed six (6) cubic feet in dimension. g. [Reserved] h. An exception shall be required to place a new pole in the public right-of-way. If an exception is granted for placement of new poles in the right-of-way: i. Such new poles shall be designed to resemble existing poles in the right- of-way near that location, including size, height, color, materials and style, with the exception of any existing pole designs that are scheduled to be removed and not replaced. ii. Such new poles that are not replacement poles shall be located at least ninety (90) feet from any existing pole to the extent feasible. iii. Such new poles shall not adversely impact public view corridors, as defined in the general plan, and shall be located to the extent feasible in an area where there is existing natural or other feature that obscures the view Page 16 of 32 132 01203.0006/276114.6 Attachment I of the pole. The applicant shall further employ concealment techniques to blend the pole with said features. iv. A new pole justification analysis shall be submitted to demonstrate why existing infrastructure cannot be utilized and demonstrating the new pole is the least intrusive means possible including a demonstration that the new pole is designed to be the minimum functional height and width required to support the proposed facility. i. All cables, including, but not limited to, electrical and utility cables, shall be run within the interior of the pole and shall be camouflaged or hidden to the fullest extent feasible. For all wooden poles wherein interior installation is infeasible, conduit and cables attached to the exterior of poles shall be mounted flush thereto and painted to match the pole. 7. Space. Each facility shall be designed to occupy the least amount of space in the right-of-way that is technically feasible. 8. Wind Loads. Each facility shall be properly engineered to withstand wind loads as required by this Code or any duly adopted or incorporated code. An evaluation of high wind load capacity shall include the impact of modification of an existing facility. 9. Obstructions. Each component part of a facility shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, incommode the public's use of the right-of-way, or safety hazards to pedestrians and motorists and in compliance with section 17.48.070 so as not to obstruct the intersection visibility triangle. 10. Public Facilities. A facility shall not be located within any portion of the public right-of-way interfering with access to a fire hydrant, fire station, fire escape, water valve, underground vault, valve housing structure, or any other public health or safety facility. 11. Screening. All ground -mounted facility, pole -mounted equipment, or walls, fences, landscaping or other screening methods shall be installed at least eighteen (18) inches from the curb and gutter flow line. 12. Accessory Equipment. Not including the electric meter, all accessory equipment shall be located underground; unless an exception has been granted consistent with this chapter: a. Unless city staff determines that there is no room in the public right-of-way for undergrounding or that undergrounding is not feasible, an exception shall be required in order to place accessory equipment above -ground and concealed with natural or manmade features to the maximum extent possible. Page 17 of 32 133 01203.0006/276114.6 Attachment I b. When above -ground is the only feasible location for a particular type of accessory equipment and will be ground -mounted, such accessory equipment shall be enclosed within a structure, and shall not exceed a height of five (5) feet and a total footprint of fifteen (15) square feet, and shall be fully screened and/or camouflaged, including the use of landscaping, architectural treatment, or acceptable alternate screening. Required electrical meter cabinets shall be screened and/or camouflaged. c. In locations where homes are only along one side of a street, above -ground accessory equipment shall not be installed directly in front of a residence. Such above -ground accessory equipment shall be installed along the side of the street with no homes. Unless said location is located within the coastal setback or the landslide moratorium area, then such locations shall be referred to the city's geotechnical staff for review and recommendations. 13. Landscaping. Where appropriate, each facility shall be installed so as to maintain and enhance existing landscaping on the site, including trees, foliage and shrubs. Additional landscaping shall be planted, irrigated and maintained by applicant where such landscaping is deemed necessary by the city to provide screening or to conceal the facility. 14. Signage. No facility shall bear any signs or advertising devices other than certification, warning or other signage required by law or permitted by the city. 15. Lighting. a. No facility may be illuminated unless specifically required by the Federal Aviation Administration or other government agency. Beacon lights are not permitted unless required by the Federal Aviation Administration or other government agency. b. Legally required lightning arresters and beacons shall be included when calculating the height of facilities such as towers, lattice towers and monopoles. c. Any required lighting shall be shielded to eliminate, to the maximum extent possible, impacts on the surrounding neighborhoods. d. Unless otherwise required under FAA or FCC regulations, applicants may install only timed or motion -sensitive light controllers and lights, and must install such lights so as to avoid illumination impacts to adjacent properties to the maximum extent feasible. The city may, in its discretion, exempt an applicant from the foregoing requirement when the applicant demonstrates a substantial public safety need. e. The applicant shall submit a lighting study which shall be prepared by a qualified lighting professional to evaluate potential impacts to adjacent properties. Page 18 of 32 134 01203.0006/276114.6 Attachment I 16. Noise. a. Backup generators shall only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of 7:00 PM and 7:00 AM. b. At no time shall equipment noise from any facility exceed an exterior noise level of fifty-five (55) dBA three (3) feet from the source of the noise if the facility is located in the public right-of-way adjacent to a business, commercial, manufacturing, utility or school zone; provided, however, that for any such facility located within five hundred (500) feet of any property zoned residential or improved with a residential use, such equipment noise shall not exceed forty-five (45) dBA. 17. Security. Each facility shall be designed to be resistant to, and minimize opportunities for, unauthorized access, climbing, vandalism, graffiti and other conditions that would result in hazardous situations, visual blight or attractive nuisances. The director may require the provision of warning signs, fencing, anti - climbing devices, or other techniques to prevent unauthorized access and vandalism when, because of their location and/or accessibility, a facility has the potential to become an attractive nuisance. Additionally, no lethal devices or elements shall be installed as a security device. 18. Modification. Consistent with current state and federal laws and if permissible under the same, at the time of modification of a wireless telecommunications facility, existing equipment shall, to the extent feasible, be replaced with equipment that reduces visual, noise and other impacts, including, but not limited to, undergrounding the equipment and replacing larger, more visually intrusive facilities with smaller, less visually intrusive facilities. 19. The installation and construction approved by a wireless telecommunications facility permit shall begin within one (1) year after its approval or it will expire without further action by the city. B. Conditions of Approval. In addition to compliance with the design and development standards outlined in this section, all facilities shall be subject to the following conditions of approval (approval may be by operation of law), as well as any modification of these conditions or additional conditions of approval deemed necessary by the director: 1. The permittee shall submit an as built drawing within ninety (90) days after installation of the facility. [As-builts shall be in an electronic format acceptable to the city which can be linked to the city's GIS.] 2. The permittee shall submit and maintain current at all times basic contact and site information on a form to be supplied by the city. The permittee shall notify the city of any changes to the information submitted within thirty (30) days of any Page 19 of 32 135 01203.0006/276114.6 Attachment I change, including change of the name or legal status of the owner or operator. This information shall include, but is not limited to, the following: a. Identity, including the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator, and the agent or person responsible for the maintenance of the facility. b. The legal status of the owner of the wireless telecommunications facility. 3. The permittee shall notify the city in writing at least ninety (90) days prior to any transfer or assignment of the permit. The written notice required in this section must include: (1) the transferee's legal name; (2) the transferee's full contact information, including a primary contact person, mailing address, telephone number and email address; and (3) a statement signed by the transferee that the transferee shall accept of all permit terms and conditions. The director may require the transferor and/or the transferee to submit any materials or documentation necessary to determine that the proposed transfer complies with the existing permit and all its conditions of approval, if any. Such materials or documentation may include, but shall not be limited to: federal, state and/or local approvals, licenses, certificates or franchise agreements; statements; photographs; site plans and/or as -built drawings; and/or an analysis by a qualified radio frequency engineer demonstrating compliance with all applicable regulations and standards of the Federal Communications Commission. Noncompliance with the permit and all its conditions of approval, if any, or failure to submit the materials required by the Director shall be a cause for the city to revoke the applicable permits pursuant to and following the procedure set on in section 12.18.180. 4. At all times, all required notices and/or signs shall be posted on the site as required by the Federal Communications Commission, California Public Utilities Commission, any applicable licenses or laws, and as approved by the city. The location and dimensions of a sign bearing the emergency contact name and telephone number shall be posted pursuant to the approved plans. 5. Permittee shall pay for and provide a performance bond or other form of security approved by the city attorney's office, which shall be in effect until the facilities are fully and completely removed and the site reasonably returned to its original condition, to cover permittee's obligations under these conditions of approval and this code. The security instrument coverage shall include, but not be limited to, removal of the facility. (The amount of the security instrument shall be calculated by the applicant in its submittal documents in an amount rationally related to the obligations covered by the bond and shall be specified in the conditions of approval.) Before issuance of any building permit, permittee must submit said security instrument. 6. If a nearby property owner registers a noise complaint, the city shall forward the same to the permittee. Said compliant shall be reviewed and evaluated by the applicant. The permittee shall have ten (10) business days to file a written Page 20 of 32 136 01203.0006/276114.6 Attachment I response regarding the complaint which shall include any applicable remedial measures. If the city determines the complaint is valid and the applicant has not taken any steps to minimize the noise, the city may hire a consultant to study, examine and evaluate the noise complaint and the permittee shall pay the fee for the consultant if the site is found in violation of this chapter. The matter shall be reviewed by the director. If the director determines sound proofing or other sound attenuation measures should be required to bring the project into compliance with the Code, the director may impose conditions on the project to achieve said objective. 7. A condition setting forth the permit expiration date in accordance with section 12.18.160 shall be included in the conditions of approval. 8. The wireless telecommunications facility shall be subject to such conditions, changes or limitations as are from time to time deemed necessary by the director of public works for the purpose of. (a) protecting the public health, safety, and welfare; (b) preventing interference with pedestrian and vehicular traffic; and/or (c) preventing damage to the public right-of-way or any adjacent property. The city may modify the permit to reflect such conditions, changes or limitations by following the same notice and public hearing procedures as are applicable to the underlying permit for similarly located facilities, except the permittee shall be given notice by personal service or by registered or certified mail at the last address provided to the city by the permittee. 9. The permittee shall not transfer the permit to any person prior to the completion of the construction of the facility covered by the permit, unless and until the transferee of the permit has submitted the security instrument required by section 12.18.080(B)(5). 10. The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement or property without the prior consent of the owner of that structure, improvement or property. No structure, improvement or property owned by the city shall be moved to accommodate a wireless telecommunications facility unless the city determines that such movement will not adversely affect the city or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the city's structure, improvement or property. Prior to commencement of any work pursuant to an encroachment permit issued for any facility within the public right- of-way, the permittee shall provide the city with documentation establishing to the city's satisfaction that the permittee has the legal right to use or interfere with any other structure, improvement or property within the public right-of-way to be affected by applicant's facilities. 11. The permittee shall assume full liability for damage or injury caused to any property or person by the facility. Page 21 of 32 137 01203.0006/276114.6 Attachment I 12. The permittee shall repair, at its sole cost and expense, any damage including, but not limited to subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to city streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility line and systems, or sewer systems and sewer lines that result from any activities performed in connection with the installation and/or maintenance of a wireless telecommunications facility in the public right-of-way. The permittee shall restore such areas, structures and systems to the condition in which they existed prior to the installation or maintenance that necessitated the repairs. In the event the permittee fails to complete such repair within the number of days stated on a written notice by the city engineer. Such time period for correction shall be based on the facts and circumstances, danger to the community and severity of the disrepair. Should the permittee not make said correction within the time period allotted the city engineer shall cause such repair to be completed at permittee's sole cost and expense. 13. No facility shall be permitted to be installed in the drip line of any tree in the right-of-way. 14. Insurance. The permittee shall obtain, pay for and maintain, in full force and effect until the facility approved by the permit is removed in its entirety from the public right-of-way, an insurance policy or policies of public liability insurance, with minimum limits of Two Million Dollars ($2,000,000) for each occurrence and Four Million Dollars ($4,000,000) in the aggregate, that fully protects the city from claims and suits for bodily injury and property damage. The insurance must name the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers as additional named insureds, be issued by an insurer admitted in the State of California with a rating of at least a A:VII in the latest edition of A.M. Best's Insurance Guide, and include an endorsement providing that the policies cannot be canceled or reduced except with thirty (30) days prior written notice to the city, except for cancellation due to nonpayment of premium. The insurance provided by permittee shall be primary to any coverage available to the city, and any insurance or self-insurance maintained by the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers shall be excess of permittee's insurance and shall not contribute with it. The policies of insurance required by this permit shall include provisions for waiver of subrogation. In accepting the benefits of this permit, permittee hereby waives all rights of subrogation against the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers. The insurance must afford coverage for the permittee's and the wireless provider's use, operation and activity, vehicles, equipment, facility, representatives, agents and employees, as determined by the city's risk manager. Before issuance of any building permit for the facility, the permittee shall furnish the city risk manager certificates of insurance and endorsements, in the form satisfactory to the city attorney or the risk manager, evidencing the coverage required by the city. Page 22 of 32 138 01203.0006/276114.6 Attachment I 15. Permittee shall defend, indemnify, protect and hold harmless city, its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers from and against any and all claims, actions, or proceeding against the city, and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers to attack, set aside, void or annul, an approval of the city, planning commission or city council concerning this permit and the project. Such indemnification shall include damages of any type, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, attorneys' fees and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding. The city shall promptly notify the permittee of any claim, action, or proceeding. Nothing contained herein shall prohibit city from participating in a defense of any claim, action or proceeding. The city shall have the option of coordinating the defense, including, but not limited to, choosing counsel after consulting with permittee and at permittee's expense. 16. Additionally, to the fullest extent permitted by law, the permittee, and every permittee and person in a shared permit, jointly and severally, shall defend, indemnify, protect and hold the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers harmless from and against all claims, suits, demands, actions, losses, liabilities, judgments, settlements, costs (including, but not limited to, attorney's fees, interest and expert witness fees), or damages claimed by third parties against the city for any injury claim, and for property damage sustained by any person, arising out of, resulting from, or are in any way related to the wireless telecommunications facility, or to any work done by or use of the public right-of- way by the permittee, owner or operator of the wireless telecommunications facility, or their agents, excepting only liability arising out of the sole negligence or willful misconduct of the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers. 17. Should the utility company servicing the facility with electrical service that does not require the use of an above ground meter cabinet, the permittee shall at its sole cost and expense remove the meter cabinet and any related foundation within ninety (90) days of such service being offered and reasonably restore the area to its prior condition. An extension may be granted if circumstances arise outside of the control of the permittee. 18. Relocation. The permittee shall modify, remove, or relocate its facility, or portion thereof, without cost or expense to city, if and when made necessary by (i) any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or above ground facilities including but not limited to sewers, storm drains, conduits, gas, water, electric or other utility systems, or pipes owned by city or any other public agency, (ii) any abandonment of any street, sidewalk or other public facility, (iii) any change of Page 23 of 32 139 01203.0006/276114.6 Attachment I grade, alignment or width of any street, sidewalk or other public facility, or (iv) a determination by the director of public works that the wireless telecommunications facility has become incompatible with public health, safety or welfare or the public's use of the public right-of-way. Such modification, removal, or relocation of the facility shall be completed within ninety (90) days of notification by city unless exigencies dictate a shorter period for removal or relocation. Modification or relocation of the facility shall require submittal, review and approval of a modified permit pursuant to the Code including applicable notice and hearing procedures. The permittee shall be entitled, on permittee's election, to either a pro -rata refund of fees paid for the original permit or to a new permit, without additional fee, at a location as close to the original location as the standards set forth in the Code allow. In the event the facility is not modified, removed, or relocated within said period of time, city may cause the same to be done at the sole cost and expense of permittee. Further, due to exigent circumstances including those of immediate or imminent threat to the public's health and safety, the city may modify, remove, or relocate wireless telecommunications facilities without prior notice to permittee provided permittee is notified within a reasonable period thereafter. 19. Permittee shall agree in writing that the permittee is aware of, and agrees to abide by, all conditions of approval imposed by the wireless telecommunications facility permit within thirty (30) days of permit issuance. The permit shall be void and of no force or effect unless such written consent is received by the city within said thirty (30) day period. 20. Prior to the issuance of any encroachment , permittee may be required to enter into a right-of-way agreement with the city in accordance with Section 12.18.100. 21. "Permittee" shall include the applicant and all successors in interest to this permit. 12.18.090 Findings. No permit shall be granted for a wireless telecommunications facility unless all of the following findings are made by the director: A. All notices required for the proposed installation have been given. B. The proposed facility has been designed and located in compliance with all applicable provisions of this chapter. C. If applicable, the applicant has demonstrated its inability to locate on existing infrastructure. D. The applicant has provided sufficient evidence supporting the applicant's claim that it has the right to enter the public right-of-way pursuant to state or federal law, or the applicant has entered into a franchise agreement with the city permitting them to use the public right-of-way. Page 24 of 32 140 01203.0006/276114.6 Attachment I E. The applicant has demonstrated the proposed installation is designed such that the proposed installation represents the least intrusive means possible and supported by factual evidence and a meaningful comparative analysis to show that all alternative locations and designs identified in the application review process were technically infeasible or not available. 12.18.100 [Section Reserved] 12.18.110 Nonexclusive grant. No permit or approval granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public right-of-way of the city for any purpose whatsoever. Further, no approval shall be construed as any warranty of title. 12.18.120 Emergency Deployment. A COW shall be permitted for the duration of an emergency declared by the city or at the discretion of the director. 12.18.130 Operation and Maintenance Standards. All wireless telecommunications facilities must comply at all times with the following operation and maintenance standards. A. Unless otherwise provided herein, all necessary repairs and restoration shall be completed by the permittee, owner, operator or any designated maintenance agent within forty-eight (48) hours: 1. After discovery of the need by the permittee, owner, operator or any designated maintenance agent; or 2. After permittee, owner, operator or any designated maintenance agent receives notification from the city. B. Each permittee of a wireless telecommunications facility shall provide the director with the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator and the agent responsible for the maintenance of the facility ("contact information"). Contact information shall be updated within seven (7) days of any change. C. All facilities, including, but not limited to, telecommunication towers, poles, accessory equipment, lighting, fences, walls, shields, cabinets, artificial foliage or camouflage, and the facility site shall be maintained in good condition, including ensuring the facilities are reasonably free of - 1. £ 1. General dirt and grease; 2. Chipped, faded, peeling, and cracked paint; Page 25 of 32 141 01203.0006/276114.6 Attachment I 3. Rust and corrosion; 4. Cracks, dents, and discoloration; 5. Missing, discolored or damaged artificial foliage or other camouflage; 6. Graffiti, bills, stickers, advertisements, litter and debris; 7. Broken and misshapen structural parts; and 8. Any damage from any cause. D. All trees, foliage or other landscaping elements approved as part of the facility shall be maintained in good condition at all times, and the permittee, owner and operator of the facility shall be responsible for replacing any damaged, dead or decayed landscaping. No amendment to any approved landscaping plan may be made until it is submitted to and approved by the director. E. The permittee shall replace its facilities, after obtaining all required permits, if maintenance or repair is not sufficient to return the facility to the condition it was in at the time of installation. F. Each facility shall be operated and maintained to comply at all conditions of approval. Each owner or operator of a facility shall routinely inspect each site to ensure compliance with the same and the standards set forth in this chapter. 12.18.140 RF Emissions and Other Monitoring Requirements. The owner and operator of a facility shall submit within ninety (90) days of beginning operations under a new or amended permit, and every five years from the date the facility began operations, a technically sufficient report ("monitoring report") that demonstrates the following: A. The facility is in compliance with applicable federal regulations, including Federal Communications Commission RF emissions standards, as certified by a qualified radio frequency emissions engineer; B. The facility is in compliance with all provisions of this section and its conditions of approval. 12.18.150 No Dangerous Condition or Obstructions Allowed No person shall install, use or maintain any facility which in whole or in part rests upon, in or over any public right-of-way, when such installation, use or maintenance endangers or is reasonably likely to endanger the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other governmental use, or when such facility unreasonably interferes with or unreasonably impedes the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, Page 26 of 32 142 01203.0006/276114.6 Attachment I mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near said location. 12.18.160 Permit Expiration. A. Unless Government Code section 65964, as may be amended, authorizes the city to issue a permit with a shorter term, a permit for any wireless telecommunications facility shall be valid for a period of ten (10) years, unless pursuant to another provision of this Code it lapses sooner or is revoked. At the end of ten (10) years from the date of issuance, such permit shall automatically expire. B. A permittee may apply for a new permit within one hundred and eighty (180) days prior to expiration. Said application and proposal shall comply with the city's current code requirements for wireless telecommunications facilities. 12.18.170 Cessation of Use or Abandonment A. A wireless telecommunications facility is considered abandoned and shall be promptly removed as provided herein if it ceases to provide wireless telecommunications services for ninety (90) or more consecutive days unless the permittee has obtained prior written approval from the director of public works which shall not be unreasonably denied. If there are two (2) or more users of a single facility, then this provision shall not become effective until all users cease using the facility. B. The operator of a facility shall notify the city in writing of its intent to abandon or cease use of a permitted site or a nonconforming site (including unpermitted sites) within ten (10) days of ceasing or abandoning use. Notwithstanding any other provision herein, the operator of the facility shall provide written notice to the director of any discontinuation of operations of thirty (30) days or more. C. Failure to inform the director of cessation or discontinuation of operations of any existing facility as required by this section shall constitute a violation of any approvals and be grounds for: 1. Litigation; 2. Revocation or modification of the permit; 3. Acting on any bond or other assurance required by this article or conditions of approval of the permit; 4. Removal of the facilities by the city in accordance with the procedures established under this Code for abatement of a public nuisance at the owner's expense; and/or 5. Any other remedies permitted under this Code. Page 27 of 32 143 01203.0006/276114.6 Attachment I 12.18.180 Removal and Restoration — Permit Expiration, Revocation or Abandonment A. Upon the expiration date of the permit, including any extensions, earlier termination or revocation of the permit or abandonment of the facility, the permittee, owner or operator shall remove its wireless telecommunications facility and restore the site to its natural condition except for retaining the landscaping improvements and any other improvements at the discretion of the city. Removal shall be in accordance with proper health and safety requirements and all ordinances, rules, and regulations of the city. The facility shall be removed from the property, at no cost or expense to the city. B. Failure of the permittee, owner or operator to promptly remove its facility and restore the property within ninety (90) days after expiration, earlier termination or revocation of the permit, or abandonment of the facility, shall be a violation of this Code. Upon a showing of good cause, an extension may be granted by the director of public works where circumstances are beyond the control of the permittee after expiration. Further failure to abide by the timeline provided in this section shall be grounds for: 1. Prosecution; 2. Acting on any security instrument required by this chapter or conditions of approval of permit; 3. Removal of the facilities by the city in accordance with the procedures established under this Code for abatement of a public nuisance at the owner's expense; and/or 4. Any other remedies permitted under this Code. C. Summary Removal. In the event the director or city engineer determines that the condition or placement of a wireless telecommunications facility located in the public right-of-way constitutes a dangerous condition, obstruction of the public right-of- way, or an imminent threat to public safety, or determines other exigent circumstances require immediate corrective action (collectively, "exigent circumstances"), the director or city engineer may cause the facility to be removed summarily and immediately without advance notice or a hearing. Written notice of the removal shall include the basis for the removal and shall be served upon the permittee and person who owns the facility within five (5) business days of removal and all property removed shall be preserved for the owner's pick-up as feasible. If the owner cannot be identified following reasonable effort or if the owner fails to pick-up the property within sixty (60) days, the facility shall be treated as abandoned property. D. Removal of Facilities by city. In the event the city removes a facility in accordance with nuisance abatement procedures or summary removal, any such removal shall be without any liability to the city for any damage to such facility that may result from reasonable efforts of removal. In addition to the procedures for recovering costs of nuisance abatement, the city may collect such costs from the performance bond posted and to the extent such costs exceed the amount of the performance bond, Page 28 of 32 144 01203.0006/276114.6 Attachment I collect those excess costs in accordance with this Code. Unless otherwise provided herein, the city has no obligation to store such facility. Neither the permittee, owner nor operator shall have any claim if the city destroys any such facility not timely removed by the permittee, owner or operator after notice, or removed by the city due to exigent circumstances. 12.18.190 Exceptions. A. The city Council recognizes that federal law prohibits a permit denial when it would effectively prohibit the provision of personal wireless services and the applicant proposes the least intrusive means to provide such services. The city Council finds that, due to wide variation among wireless facilities, technical service objectives and changed circumstances over time, a limited exemption for proposals in which strict compliance with this chapter would effectively prohibit personal wireless services serves the public interest. The city Council further finds that circumstances in which an effective prohibition may occur are extremely difficult to discern, and that specified findings to guide the analysis promotes clarity and the city's legitimate interest in well-planned wireless facilities deployment. Therefore, in the event that any applicant asserts that strict compliance with any provision in this chapter, as applied to a specific proposed personal wireless services facility, would effectively prohibit the provision of personal wireless services, the Planning Commission may grant a limited, one-time exemption from strict compliance subject to the provisions in this section B. Required Findings. The Planning Commission shall not grant any exemption unless the applicant demonstrates with clear and convincing evidence all the following: 1. The proposed wireless facility qualifies as a "personal wireless services facility" as defined in United States Code, Title 47, section 332(c)(7)(C)(ii); 2. The applicant has provided the city with a clearly defined technical service objective and a clearly defined potential site search area; 3. The applicant has provided the city with a meaningful comparative analysis that includes the factual reasons why any alternative location(s) or design(s) suggested by the city or otherwise identified in the administrative record, including but not limited to potential alternatives identified at any public meeting or hearing, are not technically feasible or potentially available; and 4. The applicant has provided the city with a meaningful comparative analysis that includes the factual reasons why the proposed location and design deviates is the least noncompliant location and design necessary to reasonably achieve the applicant's reasonable technical service objectives. C. Scope. The Planning Commission shall limit its exemption to the extent to which the applicant demonstrates such exemption is necessary to reasonably achieve its reasonable technical service objectives. The Planning Commission may adopt Page 29 of 32 145 01203.0006/276114.6 Attachment I conditions of approval as reasonably necessary to promote the purposes in this chapter and protect the public health, safety and welfare. D. Independent Consultant. The city shall have the right to hire, at the applicant's expense, an independent consultant to evaluate issues raised by the exception and to submit recommendations and evidence in response to the application. 12.18.200 Location Restrictions. Locations Requiring an Exception. Wireless telecommunications facilities are strongly disfavored in certain areas. Therefore the following locations are permitted when an exception has been granted pursuant to section 12.18.190: A. Public right-of-way of local streets as identified in the general plan if within the residential zones; B. Public right-of-way if mounted to a new pole that is not replacing an existing pole in an otherwise permitted location. 12.18.210 Effect on Other Ordinances. Compliance with the provisions of this chapter shall not relieve a person from complying with any other applicable provision of this Code. In the event of a conflict between any provision of this division and other sections of this Code, this chapter shall control. 12.18.220 State or Federal Law. A. In the event it is determined by the city attorney that state or federal law prohibits discretionary permitting requirements for certain wireless telecommunications facilities, such requirement shall be deemed severable and all remaining regulations shall remain in full force and effect. Such a determination by the city attorney shall be in writing with citations to legal authority and shall be a public record. For those facilities, in lieu of a minor conditional use permit or a conditional use permit, a ministerial permit shall be required prior to installation or modification of a wireless telecommunications facility, and all provisions of this division shall be applicable to any such facility with the exception that the required permit shall be reviewed and administered as a ministerial permit by the director rather than as a discretionary permit. Any conditions of approval set forth in this provision or deemed necessary by the director shall be imposed and administered as reasonable time, place and manner rules. B. If subsequent to the issuance of the city attorney's written determination pursuant to (A) above, the city attorney determines that the law has changed and that discretionary permitting is permissible, the city attorney shall issue such determination in writing with citations to legal authority and all discretionary permitting requirements shall be reinstated. The city attorney's written determination shall be a public record. Page 30 of 32 146 01203.0006/276114.6 Attachment I C. All installations permitted pursuant to this chapter shall comply with all federal and state laws including but not limited to the American with Disabilities Act. 12.18.230 Nonconforming Wireless Telecommunications Facilities in the Right -of -Way A. Nonconforming wireless telecommunications facilities are those facilities that do not conform to this chapter. B. Nonconforming wireless telecommunications facilities shall, within ten (10) years from the date such facility becomes nonconforming, be brought into conformity with all requirements of this article; provided, however, that should the owner desire to expand or modify the facility, intensify the use, or make some other change in a conditional use, the owner shall comply with all applicable provisions of this Code at such time, to the extent the city can require such compliance under federal and state law. C. An aggrieved person may file an appeal to the city council of any decision of the director made pursuant to this section. In the event of an appeal alleging that the ten (10) year amortization period is not reasonable as applied to a particular property, the city council may consider the amount of investment or original cost, present actual or depreciated value, dates of construction, amortization for tax purposes, salvage value, remaining useful life, the length and remaining term of the lease under which it is maintained (if any), and the harm to the public if the structure remains standing beyond the prescribed amortization period, and set an amortization period accordingly for the specific property." SECTION 6. Section 17.96.090 of Chapter 96, Title 17 is amended and replaced in its entirety to read as follows: "Commercial antenna" means all antennas, parabolic dishes, relay towers and antenna support structures used for the transmission or reception of radio, television and communication signals for commercial purposes. For the purpose of this definition, "commercial purposes" shall mean communications for hire or material compensation, or the use of commercial frequencies, as these terms are defined by the Federal Communications Commission (FCC). "Commercial antennas" shall not include antennas owned or operated by governmental agencies. SECTION 7. Severability. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this ordinance or the application thereof to any person or place, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remainder of this ordinance. The city Council hereby declares that it would have adopted this ordinance, and each and every section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. SECTION 8. Effective Date. This ordinance shall go into effect immediately. Page 31 of 32 147 01203.0006/276114.6 Attachment I SECTION 9. Certification. The city clerk of the city of Rancho Palos Verdes shall certify to the passage and adoption of this ordinance and shall cause the same or a summary thereof to be published and posted in the manner required by law. PASSED, APPROVED AND ADOPTED this day of following vote to wit: Ken Dyda Mayor ATTEST: Carla Morreales city Clerk APPROVED AS TO FORM: David J. Aleshire city Attorney 2016, by the Page 32 of 32 148 01203.0006/276114.6 Attachment J Received: Initials Date Wireless Telecommunications Facility Permit Application INTRODUCTION a. All applicants for a wireless communication facility permit ("WTFP") or a modified WTFP must complete this application and submit all documentation requested thereunder. WTFPs apply to all facilities for the provision of wireless services including antennas, poles, towers, cables, and wires. b. For all WTFP applications, you must submit three (3) copies of this application with exhibits attached, a WTFP fee, and deposit(s) for an independent consultant(s) to review the application. C. Submit all application materials in person to the following location: i. 30940 Hawthorne Blvd., Rancho Palos Verdes, CA 90275 ii. Please call (310) 377-0360 for office hours. INSTRUCTIONS a. Complete the following application in its entirety. An incomplete application will result in any of the following: (1) denial of the permit; (2) delay in granting the permit; (3) a request for supplemental information. b. All written responses to the questions below must be typed in 12 point font. Several questions require you to attach as exhibits supplemental documentation and commentary to support your answers below. All your exhibits must be marked as directed in the application. All supporting documentation must be clear and legible. All exhibits must be stapled or bound to the application. PUBLIC NOTICE REQUIREMENTS a. The applicant is required to provide address labels for use by the city in noticing all property owners within 500 feet of the proposed installation. The notice will be mailed on or about 5 business days prior to any installation of the mock-up and will include photo simulations depicting before and after images. b. If applicable, prepare public hearing information pursuant to the public noticing requirements of the Rancho Palos Verdes Municipal Code ("RPVMC") Section 17.80.090. C. Provide proof that all applicable public notices articulated in the RPVMC and the noticing policies of the city of Rancho Palos Verdes ("city") have been met. d. Provide the city twenty (20) days advance notice of an upcoming shot clock expiration date to provide the city with a final opportunity to approve or deny the application before it is deemed approved. Attachment J I. CONTACT INFORMATION a. Property address: b. Assessor's Parcel No(s): C. Applicable homeowner's association: d. Contact information for the following: i. Wireless provider or operator: (1) Name: (2) Street Address: (3) city, State & Zip: (4) Phone No.: (5) Fax No.: (6) Email: ii. Applicant: (1) Name: (2) Street Address: (3) city, State & Zip: (4) Phone No.: (5) Fax No.: (6) Email: (7) Your property interest: ❑ Lease ❑ License ❑ Ownership ❑ Other: iii. Property owner: (1) Name: (2) Street Address: (3) city, State & Zip: (4) Phone No.: (5) Fax No.: (6) Email: iv. Person most knowledgeable about the proposed project: ❑ Same as Applicant listed above. (1) Name: (2) Street Address: (3) city, State & Zip: (4) Phone No.: (5) Fax No.: (6) Email: Attachment J II. Application Type Check the box identifying the permitting the application seeks ❑ Major Wireless Telecommunications Facilities Permit ❑ Administrative Wireless Telecommunications Facilities Permit ❑ Master Deployment Plan Permit For parts (1) — (2), provide a description supporting your selections below. Attach all rules, regulations, agreements, court documents, or other materials on which you base your response. Attach description and supporting documentation marked as Exhibit A. 1. Check the box(es) below that identify the statute(s) you believe govern(s) the application request: a. ❑ Section 6409(a) of the Middle Class Tax and Job Creation Act of 2012 for collocation or modification to an existing commission -authorized Wireless Telecommunications service b. ❑ Section 332(c)(7) of the Telecommunications Act for the provision of personal wireless telecommunications facilities c. ❑ California Government Code Section 65964.1 (AB -57) 2. Check the box below pertaining to the shot clock you believe applies to your application: a. ❑ 150 day shot clock for new facilities b. ❑ 90 day shot clock for modifications resulting in a substantial change c. ❑ 60 days shot clock for modifications that do not result in a substantial change III. Characteristics of the Property Specify the following characteristics about the existing property: a. Zoning designation: b. General Plan designation: c. Parcel Size: d. Parcel Width: e. Parcel Depth: f. Average Slope: g. Describe the current use of the parcel: h. Legal description of the parcel: 2. Attach pictures of the site and surrounding area as it currently exists. Attach and mark as Exhibit B. Attachment J IV. Description of Project Coverage and Purpose Provide a narrative description of the project. Your response shall include, but not be limited to, a description of the proposed facility or modification, the anticipated construction activities involved, the maintenance requirements and schedule for the new or modified facility, and the number of antennas to be installed. Provide any supporting documentation regarding the purpose of the project. Attach and mark responses and documentation as Exhibit Cl. 2. Is the purpose of the project, in whole or in part, designed to close what you believe to be a "significant gap" in coverage? a. ❑ Yes b. ❑ No Attach supporting documentation and commentary substantiating your response. If you selected "Yes" above, provide a justification study that provides the following: a. A detailed explanation of the coverage gap that the proposed use would serve; b. The rationale for selecting the proposed use; c. An explanation that identifies whether the proposed project is the least intrusive means of closing the significant gap and on what basis the applicant believes the project to be the least intrusive means. Attach and mark as Exhibit C2. 3. Provide three (3) copies of each of the following geographic and propagation maps illustrating the following (Attach and mark as Exhibit C3.): a. Geographic boundaries of a significant gap in coverage, if applicable. b. The proposed site that identifies the location of existing wireless telecommunications facilities owned and/or operated by the applicant. c. Location of the proposed facility in relation to all existing and planned facilities maintained within the city by the applicant, operator, and owner, if different entities. d. Existing network or radio frequency coverage e. Proposed radio frequency coverage 4. Provide a description identifying the geographic service area for the subject installation. Attach and mark as Exhibit C4. 5. If the applicant is seeking to install a facility that exceeds the maximum height permitted in the city's Municipal Code, attach and mark as Exhibit CS an analysis comparing the operation of the facility at its proposed height with its operation at the maximum height permitted. 6. Check the box below that most accurately identifies the primary purpose of the project: a. ❑ Increase network capacity without adding new radio frequency coverage b. ❑ Provide significant new radio frequency coverage in areas without radio frequency coverage Attachment J c. ❑ Increase existing radio frequency coverage in area with coverage d. ❑ Other: FE77V. Project Location and Authorizations 1. Facilities will be located: a. ❑ On private property b. ❑ In the public right of way (PROW) 2. If the facility will be sited in the PROW, state or provide the following (Attach and mark as Exhibit DI): a. Your authority to locate the facility in the PROW (state law, federal law, or franchise agreement); b. If applicable, include a copy of the certificate of public convenience and necessity (CPCN). Attach and mark as Exhibit D2; c. Whether the facility is proposed to be sited in the PROW of non -local roadways (as defined by the city); d. Whether a new pole that is not replacing an existing pole in an otherwise permitted location is proposed to be sited in the PROW. i. If so, attach and mark as Exhibit D3 anew pole justification analysis to demonstrate why existing infrastructure cannot be utilized and how the new pole is the least intrusive means possible. 3. If the facility will be co -located on a structure owned by someone other than the owner of the proposed installation provide: a. Written authorization by any and all property owners authorizing the placement of the facility on or in the property owner's property. Attach and mark as Exhibit D4. 4. If applicable, provide the following letter(s) of authorization to collocate, modify, or provide services: a. If the applicant is an agent, attach and mark as Exhibit D5 a letter of authorization from the owner of the facility. b. If the owner will not directly provide wireless telecommunications services, attach and mark as ExhibitD6 a letter of authorization from the person or entity that will provide those services. VI. Radio Frequency ("RF") Emissions and Monitoring Requirements 1. Provide proof or certification of completion of the RF emissions exposure guidelines checklist contained in Appendix A to the Federal Communications Commission's Attachment J ("FCC") "Local Government Official's Guide to Transmitting Antenna RF Emission Safety". Attach and mark as Exhibit E. The Guide can be found at: http://wireless. fee.gov/siting/FCC LSGAC RF_Guide.pdf 2. Pursuant to the completed checklist referenced above, will the facility be "categorically excluded" under the FCC regulations for RF emissions? a. ❑ Yes b. ❑ No If you selected "No" above, provide a technically detailed report certified by a qualified radio frequency engineer indicating the following: i. The amount of RF emissions expected from the proposed facility; ii. The associated accessory equipment required; iii. The cumulative impacts of the other existing facilities at the site to the extent permitted by federal law, including co -located facilities; iv. That the proposed facility individually or combined with the cumulative emissions of on-site facilities will not exceed applicable standards set by the FCC. VII. Engineering Plans for the Facility and Equipment Submit one (1) electronic copy and three (3) hard copies of stamped detailed engineering plans of the proposed facility and related reports prepared and signed by a professional engineer registered in the state of California documenting the following: 1. Height, diameter, design of the facility, including technical engineering specifications, economic and other pertinent factors governing selection of the proposed design, together with evidence that demonstrates that the proposed facility has been designed to the minimum height and diameter required from a technological standpoint for the proposed site. Attach and mark as Exhibit Fl. 2. A cross-section of the tower structure. Attach and mark as Exhibit F2. 3. A photograph and model name and number of each piece of equipment included. Attach and mark as Exhibit F3. 4. Power output and operating frequency for the proposed antenna. Attach and mark as Exhibit F4. 5. Total anticipated capacity of the structure, indicating the number and types of antennas and power and frequency ranges, which can be accommodated. Attach and mark as Exhibit F5. 6. Structural calculation demonstrating the structural integrity of the proposed facility. Attach and mark as Exhibit F6. 7. Wind velocity test. An evaluation of high wind load capacity shall include the impact of a modification to an existing facility. Attach and mark as Exhibit F7. 8. Seismic analysis. Attach and mark as Exhibit F8. Attachment J VIII. Site Plans 1. Attach the following documentation or information: a. One (1) electronic copy and three (3) hard copies of the site plans to scale in compliance with city requirements including, but not limited to, the requirements contained in the RPVMC. Attach and mark as Exhibit Hl. The site plans must at minimum include: (1) The location and dimensions of the existing facility and maximum height above ground of the facility; (2) The benchmarks and data used for elevations; (3) The location of existing accessways and the location and design for all proposed accessways; (4) The exact proposed location of the pole, antennas, accessory equipment, and landscaped areas; (5) The location of existing utilities and adjacent land uses; (6) The design of the facility, including the specific type of support structure, type, location, size, height, and configuration of applicant's existing and proposed facilities; (7) If applicable, the method by which an antenna will be attached to the mounting structure. b. Three (3) copies of the Master Plan of all existing and proposed facilities. The Master Plan shall reflect all locations anticipated for new construction and/or modifications to existing facilities, including collocation, that are anticipated to be installed within the next two years from submittal of this application. Attach and mark as Exhibit H2. c. If applicable, three (3) copies of the scaled conceptual landscape plan showing existing trees and vegetation and all proposed landscaping, concealment, screening and proposed irrigation. Provide a description of how the chosen material at maturity will screen the site. Attach and mark as Exhibit H3. d. Three (3) sets of scaled and dimensioned photo simulations of the before and after images of the project and project site from at least three (3) different angles and three (3) sets of an accurate visual impact analysis showing the maximum silhouette, viewshed analysis, color and finish palette and proposed screening for the facility. Attach and mark as Exhibit H4. 2. Attach a narrative description and supporting documentation marked as Exhibit H6 that: a. Identifies whether the proposed project is consistent with the General Plan and any specific plans; b. Identifies whether the proposed use is conditionally permitted within the zoned area; Attachment J c. Identifies applicable zoning and development codes and requirements and demonstrates whether the proposed project complies with all applicable provisions of the city's zoning and development code; d. Identifies applicable building codes and other generally applicable laws or prior conditions for approval that reasonably relate to public health and safety and demonstrates compliance therewith. FE77 IX. Alternative Sites 1. List a minimum of three (3) alternative sites for the proposed project, including at least one (1) collocated site. a. Alternative 1: i. Address of property: ii. Property owner(s) name(s): (1) Address: (2) Telephone number: iii. Zoning designation: iv. General Plan designation: V. Explanation of why Alternative 1 is inferior to proposed project. Attach and mark as Exhibit H. b. Alternative 2: i. Address of property: ii. Property owner(s) name(s): (1) Address: (2) Telephone number: iii. Zoning designation: iv. General Plan designation: V. Explanation of why Alternative 2 is inferior to proposed project. Attach and mark as Exhibit 12. c. Alternative 3: i. Address of property: ii. Property owner(s) name(s): (1) Address: (2) Telephone number: iii. Zoning designation: iv. General Plan designation: V. Explanation of why Alternative 3 is inferior to proposed project. Attach and mark as Exhibit B. X. Anticipated Impacts and Other Confounding Factors 1. Provide descriptions, commentary, and supporting documentation relating to the following: Attachment J a. A noise study prepared by a qualified acoustic engineer documenting that the level of noise to be emitted by the proposed facility will comply with the RPVMC. Attach and mark as Exhibit R. b. A completed environmental assessment application. The application can be found at <http://www.!pvca.gov/documentcenter/view/5995> c. Attach and mark the application as Exhibit J2. d. Historic preservation review. Attach and mark as Exhibit B. e. A traffic control plan if the proposed installation is to be sited on any street in a non-residential zone. Attach and mark as Exhibit J4. XI. Other Requirements 1. Attach and mark as Exhibit KI all other documentation certifying that all applicable licenses or other approvals required by the FCC have been obtained to provide the services proposed in connection with the application. 2. Attach and mark as Exhibit K2 any copies of all documents the applicant is required to file pursuant to the Federal Aviation Administration regulations for the facility. 3. Attach and mark as Exhibit K3 all other documentation required by the RPVMC. F=-- XII. Exceptions to the Application Requirements 1. Do you believe you are entitled to an exception to the requirement(s) of this application, including, but not limited to, exceptions from findings that would otherwise justify denial? a. ❑ Yes b. ❑ No 2. If you selected "Yes" above, attach and mark as Exhibit L all information and studies necessary for the city to evaluate a request for an exception to the requirements of this application. The narrative must demonstrate with clear and convincing evidence that denial of the facility would violate state and/or federal law, violate the provisions of this division, as applied to the applicant, or deprive the applicant of its rights under state and/or federal law. XIII. Supplemental Materials for Projects Subject to 6409 You must complete this section if you selected the box in Section II titled "Application Type" that indicates your project is subject to 6409. For parts (1) — (6), provide a narrative description and any supporting documentation for the selections you make below. Attach and mark as Exhibit M. Attachment J 1. Is the application for an eligible facilities request? a. ❑ Yes b. ❑ No 2. Will the proposed project cause a substantial change in the physical dimension of the structure? a. ❑ Yes b. ❑ No 3. Does the structure at issue involve an existing wireless tower or base station? a. ❑ Yes b. ❑ No 4. Check the box(es) below that are applicable to your project: a. ❑ Collocation of new transmission equipment b. ❑ Removal of transmission equipment c. ❑ Replacement of transmission equipment 5. If your project does not involve excavation, tower installation, or tower modification in the PROW, answer the following questions: a. Does the project propose a height increase of less than 10% or no more than one additional antenna not more than 20 feet in height (whichever is greater)? b. Does the project propose a width increase of less than 20 feet? c. Will the project require excavation near the ground -mounted equipment? d. Will the project preserve all existing concealment elements of the current tower or base station? e. Will the proposed collocation preserve all prior conditions of approval that do not conflict with FCC regulations for a substantial change? f. Does the project propose adding four or fewer additional equipment cabinets? 6. If your project involves excavation, tower or base station installation, or tower or base station modification in the PROW, answer the following questions: a. Does the project propose a height increase of less than 10% or 10 feet (whichever is greater)? b. Does the project propose a width increase of less than 6 feet? c. Does the project propose excavation entirely within the anticipated lease area of private property? d. Will the project preserve all existing concealment elements of the current tower or base station? e. Will the proposed collocation preserve all prior conditions of approval that do not conflict with FCC regulations for a substantial change? Date: Attachment J f. Does the project propose adding four or fewer additional equipment cabinets? Signature Printed Title/Company