CC SR 20160301 02 - Wireless TelecommunicationsCITY OF4�iRANCHO PALOS VERDES
PUBLIC HEARING
Date: March 1, 2016
Subject: Consideration and Possible Action to Introduce an Ordinance for
Wireless Telecommunication Installations in the City's Public
Rights -of -Way
Subject Property: Citywide
1. Report of Notice Given: City Clerk Morreale
2. Declare the Hearing Continued: Mayor Dyda — (Continued from February 16,
2016)
3. Staff Report & Recommendation: Special Counsel Lopez
Deputy Director of Public Works Jules
4. Public Testimony:
Appellant: N/A
Applicant: City
5. Council Questions:
6. Rebuttal:
7. Council Deliberation:
8. Declare Hearing Closed: Mayor Dyda
9. Council Action:
1
RANCHO PALOS VERDES CITY COUNCIL
AGENDA REPORT
AGENDA DESCRIPTION:
MEETING DATE: 03/01/2016
AGENDA HEADING: Public Hearings
Consideration and possible action to introduce an ordinance for wireless
telecommunications installations within the City's public rights-of-way.
RECOMMENDED COUNCIL ACTION:
1) Introduce 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
FISCAL IMPACT: None
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: Christy Marie Lopez, Special Counsel
Nicole Jules, PE, Deputy Director of Public Works
REVIEWED BY: Michael Throne, PE, Director of Public Works
APPROVED BY: Doug Willmore, City Manager -�l V;4.
ATTACHED SUPPORTING DOCUMENTS:
A. RPVMC Section 13.12.330 regarding wireless installations in the ROW
(page A-1)
B. Staff Report regarding the Urgency Ordinance, dated January 19, 2016
(page B-1)
C. Draft of ordinance made public on January 20, 2016 (page C-1)
D. Minutes from the Community Workshop held on February 1, 2016 (page
D-1)
E. Comment letter from CalWa, dated February 1, 2016 (page E-1)
F. Email comments from the public (page F-1)
G. Redlined draft of ordinance depicting changes made since January 19,
2016 (page G-1)
H. Proposed Ordinance No. , recommended for adoption (page H-1)
I. Proposed Wireless Telecommunications Application (page 1-1)
J. Additional public and industry comments received (page J-1)
K. Sample Wireless Process and Guideline document (page K-1)
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L. Sample Frequently -Asked Questions (FAQ) document (page L-1)
EXECUTIVE SUMMARY:
On January 19, 2016, the City adopted Urgency Ordinance No. 578U establishing
regulations for installations of wireless telecommunications facilities in the public right-
of-way (ROW). A substantially -similar ordinance is now being brought forth for a first
reading.
The City's current regulations in the Rancho Palos Verdes Municipal Code (RPVMC)
are very limited and lack needed criteria for governing wireless installations in the public
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 private property values, the proposed ordinance implements all new
regulations and procedures for wireless installations in the ROW.
BACKGROUND AND DISCUSSION:
Public Outreach and Engagement:
1. Workshops
On December 7, 2015, the City held a public workshop to discuss the first draft of the
urgency ordinance. As further described in the previous Staff report (Attachment B), in
response to comments made at the workshop, the urgency ordinance was revised prior
to its adoption on January 19, 2016.
On February 1, 2016, the City held a second workshop and invited members of the
community and wireless telecommunications industry to present their concerns,
thoughts or questions about the proposed ordinance. There were many residents and
one City Councilmember present. There were also representatives of Verizon, Crown
Castle, AT&T and Southern California Gas in attendance. Community members had
several questions addressed regarding the applicability of the code as installations are
proposed. The industry representatives were able to comment regarding some of the
concerns raised.
2. Comments Received
Since the first workshop held in December, the City has received a number of comment
letters. To the extent that City staff and the City Attorney's Office found it appropriate,
changes based upon these comments were made to the urgency ordinance prior to its
adoption on January 19, 2016. All of these comment letters are included in Attachment
B.
3
Prior to the second workshop in February, the City received one comment letter from
the California Wireless Association (CalWa), an industry trade group (Attachment E).
On February 8, 2016, the City received a comment letter from attorneys representing
Verizon Wireless (see Attachment J). On February 14, 2016, the City received an email
from a resident with some remaining concerns (Attachment J). In response to the
issues raised since adoption of the urgency ordinance, some further changes have
been made to the ordinance as depicted in the attached redline draft (Attachment G)
3. Communication and Transparency
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 focusing on cell -site activity,
applications, permits, and site status (http://www.rpvca.gov/916/Cell-Sites). This
webpage serves as a portal of cell -site information that allows the public to be fully -
informed about proposed and active cell -site activity.
Federal and State Law:
In the Staff report dated January 19, 2016, the City Attorney's Office addressed the
legal background relates to wireless telecommunications installations in the ROW. See
Attachment B for a detailed legal discussion.
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 workshops expressed support for a tiered
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 that the proposal 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;
11
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 will be strongly
encouraged so that the applicant is fully informed regarding the particulars of the
proposed site and the application process. When an applicant is ready to submit a
completed application, an appointment will be scheduled after receipt of a written
request. The Public Works Department will process the application, but the Community
Development Department and the Planning Commission will render decisions on all
major wireless facility permits. After the Planning Commission's ruling is final, the
Public Works Department will follow-up and close-out the permit. Proposed RPVMC
Section 12.18.060 outlines the pre -submittal and application submittal process.
3. New Provisions
There are many new regulations that will be applicable to wireless installations. The
following list highlights those of the most significance.
a. Application Requirements
Applicants seeking to install facilities in the ROW shall be required to provide the
following pursuant to the new application requirements, as applicable:
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.
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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 Facility Permit shall be
subject to a public hearing before the Planning Commission and shall require
notice of the same
iii. All applicants 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
d. Preferred Locations are as follows:
i. Along arterial or non -local roads
ii. Co -located with existing sites
CONCLUSION:
As discussed above, due to a substantial need for increased regulation for wireless
telecommunications installations in the ROW, it is recommended the City Council adopt
the attached draft ordinance.
ALTERNATIVES:
In addition to the Staff recommendation, the following alternative actions are available
for the City Council's consideration:
on
Continue the matter to a date certain to provide time to consider additional
public comments and amendments to the proposed ordinance.
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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.
A-1
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)
A-2
CITY OF RANCHO PALOS VERDES
T, I# IT, s:_►LBITEi
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 �� r•��
Nicole Jules, Deputy Director of Public Works 7/S
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: $ NIA
Additional Appropriation: $ NIA
New Amount Balance: $ NIA
Fund Balance $ NIA
Account Numbers): NIA
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
01203.0151277835.4
As
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 Transgare
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
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CONSIDER ADOPTION OF AN URGENCY ORDINANCE FOR NEW WIRELESS
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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)(B)(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
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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).)]
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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
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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
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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
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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. (/d.)
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." (/d. 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. (/d.)
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
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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(B)
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:
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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
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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.
Attarrhmantc
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
B-11 11
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 Ceity's Municipal Code to provide
uniform and comprehensive standards and regulations, along with permit requirements, for the
installation of wireless telecommunications facilities in the Ceity's public right-of-way (ROW).
(ii) The Ceity currently has approximately 140 wireless installations in the ROW.
The Ceity 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 Ceity CgGouncil 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 Ceity CeEouncil 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 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 Red. 13994
(Nov. 18, 2009) [hereinafter "2009 Declaratory Ruling"]. Pursuant to FCC regulations, the Ceity
cannot adopt a moratorium ordinance to toll the time period for review, even when needed to
allow the Ceity 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.
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(vi) State and federal law have changed substantially since the Ceity last adopted
regulations for wireless installation in the ROW. Such changes include modifications to "shot
clocks" whereby the Ceity must approve or deny installations within a certain period of time.
The Ceity 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 Ceity must
act.
(vii) The ROW in the Ceity of Rancho Palos Verdes is a uniquely valuable public
resource, closely linked with the Ceity'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 in the community, as well as the values of
properties within the CeitL and to ensure that all wireless facilities are installed using the least
intrusive means possible.
(ix) On January 19, 2016, the Ceity CpGouncil of the Ceity 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 Ceity staff and all
interested parties regarding the proposed amendments.
(x) The Ceity Ceouncil 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
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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) 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 CC-Gity CgGouncil 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 Oerdinance is being enacted to
bring the cEity's processing procedures into compliance with existing State and federal law. The
mere synchronization of these timelines into the Cc-C—ity's zoning Oerdinance 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.
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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."
of Chapter -Title 13 3s hereby r-epe-aled.
SECTION 45. 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,
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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.
"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.
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"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.
"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.
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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
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.
12.18.040 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 pPlanning
cEommission approval unless otherwise provided for in this chapter.
B. Administrative Wireless Telecommunications Facilities Permit.
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1. An Administrative Wireless Telecommunications Facilities Permit, subject to the
dDirector'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 dDirector may, in the dDirector's discretion, refer any application for an
Administrative Wireless Telecommunications Facilities Permit to the pPlanning
cEommission for approval.
3. In the event that the dDirector determines that any application submitted for an
Administrative Wireless Telecommunications Facilities Permit does not meet the
criteria this Code, the dDirector shall convert the application to a Major Wireless
Facilities Permit application and refer it to the pPlanning cEommission.
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 pPlanning cEommission 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 pPlanning cEommission 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.
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01203.0006/276114.7
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
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.
1. 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 --No applicants seeking to install -a wireless antennas telo,.,,w„,,,.,,ieations
faeilityshall ne4-seek-an encroachment permit for fiber or coaxial cable onlyan
Applicants and st&equently seek ta
iffstall antennas afld aeeess-.., Ilimpment to a- wireless
right of way shall simultaneously request fiber installation or other cable
installation when applying- or an wireless telecommunications - f4eility
pet:mitseeking to install antennas in the right-of-waX.
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
services.
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01203.0006/276114.7
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.
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.
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01203.0006/276114.7
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
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
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01203.0006/276114.7
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,—.Aas 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 in an amount set by resolution by the city cGouncil
and iun 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 tome installed permanently. The mock-up may consist of
story poles or the like.
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01203.0006/276114.7
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
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
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01203.0006/276114.7
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.
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. Ceity 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.
1. Planning Commission Hearings. Any permit application under this chapter
subject to pPlanning cEommission approval shall require notice and a public
hearing. Notice of such hearing shall be provided in accordance with Code section
17.80.090. The pPlanning cEommission may approve, or conditionally approve.,
or- an application only after it makes the findings required in section
12.18.090.
2. Director's Decision Notice. The dDirector may approve, or conditionally approve
of deny,= an application only after it makes the findings required in section
12.18.090. Within five days after the dDirector approves or conditionally
approves an application under this chapter, the dDirector shall provide notice in
accordance with Code section 17.80.040.
I 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.
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01203.0006/276114.7
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 dDirector or
the pglanning cEommission as provided in accordance with the provisions in Code
chapter 17.80. The appellate authority 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 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.
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01203.0006/276114.7
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 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.
Page 16 of 32 C-16
01203.0006/276114.7
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
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 undergrounds;
with this chap efexcept as provided below:
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01203.0006/276114.7
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 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
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01203.0006/276114.7
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.
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:
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01203.0006/276114.7
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
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 dDirector 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
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01203.0006/276114.7
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
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 p„1 he <..oFks 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
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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
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
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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 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.
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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 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.
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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.
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]
12.18.1 l0 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.
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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.
f
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.
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.
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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,
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 p„1.1:,...,, Ac- 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;
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01203.0006/276114.7
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.
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_-e€i-e
wefks-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
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01203.0006/276114.7
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. The city KGouncil 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 cEouncil 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 cEouncil 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 pglanning cEommission may
grant a limited, one-time exemption from strict compliance subject to the provisions
in this section
B. Required Findings. The gplanning cEommission 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
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01203.0006/276114.7
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 pPlanning cEommission 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 Pplanning cEommission 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 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
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01203.0006/276114.7
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 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 56. 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.
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01203.0006/276114.7
SECTION 67. Severability. If any section, subsection, subdivision, sentence,
clause, phrase, or portion of this Oerdinance 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 Oerdinance. The
Ceity Cc -Council hereby declares that it would have adopted this Oerdinance, 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 78. Effective Date. This Oerdinance shall go into effect immediately.
SECTION 81. Certification. The Ceity Celerk of the Ceity of Rancho Palos
Verdes shall certify to the passage and adoption of this Oerdinance 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
Ceity Clerk
APPROVED AS TO FORM:
David J. Aleshire
Ceity Attorney
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MEETING MINUTES
WIRELESS ANTENNA PUBLIC WORKSHOP #2
MONDAY FEBRUARY 2, 2016 - 7:00 PM
City of Rancho Palos Verdes City Hall Community Room
ATTENDEES: City Residents; Representatives from: Crown Castle, Verizon,
AT&T, Southern California Gas; Christy Marie Lopez (City
Attorney's Office); Tripp May (Telecom Law Firm); Jerry Duhovic
(Councilman), Nicole Jules (RPV), Charles Eder (RPV)
The purpose of the meeting is to publicly discuss the urgency ordinance and to receive
additional comments from the public and representatives of the telecom community.
The Wireless Telecommunications Ordinance was presented to and adopted by the City
Council on Tuesday, January 19, 2016 as an Urgency Ordinance. The Urgency
ordinance and draft application, is an initial step to address issues regarding the
process of proposing and installing these facilities throughout the City. The revised
draft ordinance introduces additional problematic requirements that conflict
with federal and state law. These conflicts are exacerbated in the revised ordinance.
The process of notification and public involvement is also pertinent in this discussion.
The comments received at this meeting will be incorporated and presented to the City
Council as a regular ordinance.
Assistant City Attorney Lopez provided introductions and opening remarks then
proceeded with receiving comments from the public.
COMMUNITY COMMENTS:
General
■ Mr. Jeff Calvagna stated that the new ordinance, adopted on 1/19/16, is a direct
response to decades of abusive tactics by the telecommunications industry. It is
better than what was in place before. The new ordinance is not perfect but
fantastic and comprehensive. There are few things that need tweaking.
■ Mr. Jay Thomas questioned the specifics of the ordinance and wanted to know
what was included. He wanted to ensure that residents had an opportunity to
challenge the proposal before a mock-up is constructed. He also wanted to make
sure the ordinance provides for public comments prior to the permanent site
being installed.
■ Assistant City Attorney Christy Lopez confirmed the elements of the Ordinance
and emphasized the Planning Commission's role in the approval process. She
Wireless Communications Workshop #2
February 1, 2016
Page 1 of 6
D-1
also confirmed that there will be an appeal's process for administratively
approved applications.
■ Mr. John Freeman expressed a desire for the ordinance to have provisions for
the process to stop before a final decision is made on an application.
Mr. Louis Fraix stated that the ordinance is a good ordinance. Crown Castle has
completed a lot of work. He was informed by the City Inspector that Crown Castle
would be replacing the street light. Residents were alarmed in December when
they were asked to sign an acknowledgement sheet. The Public Works
Inspector conducted this outreach during the Holiday break when City Hall was
closed. Residents did not get responses immediately from the City during this
time, as City Hall was closed.
■ There is concern about the physical distance between antennas. Some are
concerned that some sites are located too close together. There should be a
way to regulate "density" of these antennas. Minimum distance between antenna
sites should be specifically shown in the ordinance.
Question the need for two antennas 200 yards apart and new poles looking
different. There are still new poles that no one in the neighborhood knew about.
Residents want to ensure that the process includes provisions for aesthetic
compatibility and that all associated utility boxes go underground.
■ Assistant City Attorney Lopez remarked that Carriers are allowed to be in the
public right of way and that the City is limited in our regulatory position due to
topography and terrain.
■ Mr. John Freeman questioned when the meeting minutes from this meeting will
be available. He would like the minutes available in two days. Further, Mr.
Freeman expressed that the information currently on the Cell Site webpage
needs updating and he requests staff to perform weekly updates. Deputy
Director Jules responded that the City will complete and publish the meeting
minutes on the City's website by early next week. She also committed to
ensuring that the cell site webpage will be updated regularly with all known
information. For example, the spreadsheet was placed on the website as another
step to inform the public of all the proposed cell sites in the City. Residents are
able to view them once a proposed site is added to the list.
■ Residents commented that they want to see more detail on the initial draft of the
spreadsheet. The notes should be more detailed and straightforward (i.e.
expound on the term "Resident Outreach Pending"). All the photo simulations
should also be included in each sight. The industry's comments should also be
included in the website. Deputy Director Jules committed to posting all relevant
Wireless Communications Workshop #2
February 1, 2016
Page 2 of 6
D-2
information regarding a proposed site to the website. She also committed to
sending out a Listserve Notification when an application is received.
■ Assistant City Attorney Lopez reiterated that City is limited to federal regulations.
City can regulate only "time, place, and manner" in which antennas are installed.
Collocation is the preferred method. City can review how it looks.
■ Assistant City Attorney Lopez stated, the applicant can suggest that there is a
significant gap in coverage, but this is hard to quantify. City can rely on the
aspect of "least intrusive means (to close the gap)." City can force a better
alternative, as long as it is technically feasible. A resident expressed concerns
regarding Crown Castle splitting up applications and constructing the fiber -
portion of the work first without informing the City that a proposed cell site would
follow. This is what occurred on Valley View Road. The residents were very
upset. How do we prevent this from happening again and how are we
coordinating with our neighboring Cities?
■ Assistant City Attorney Lopez stated in terms of recent installations, splitting
applications between fiber installation and cell sites will be discontinued.
Applicant must disclose if fiber installation is part of a proposed cell site.
The process will now involve placing the proposed sites on the City Website once
they are initially submitted. Prior to mock-up, the notice will go out to everyone
subscribed on the Listserve, and mailed (within 5 days) to residents within 500
feet of the proposed site. Mock -Up will last for 30 days.
■ Residents asked about the City revenue made from cell sites. Crown Castle
pays about $500 per cell site on City infrastructure plus 5% of the gross revenue
for that site to the City, a voluntary agreement in place by NextG (the company
that was bought -out by Crown Castle).
■ Ms. Marita Daly expressed that aesthetics is important and that the residents
want something that looks good. She asked who will decide on the aesthetics.
Better aesthetic review process was requested. Residents would like a
consistent look.
■ Assistant City Attorney Lopez responded that one opinion from one resident may
be completely different from another's. It is a very subjective opinion.
■ Residents also want to know about RF signals coming from outside the City.
They are requesting that neighboring Cities coordinate with each other so that all
affected residents, no matter the municipal boundary is notified.
■ Neighbors want everything underground, no big boxes on the sidewalk.
Wireless Communications Workshop #2
February 1, 2016
Page 3 of 6
D-3
■ Residents opposed to the idea of "permament mock-ups." The idea that
something is built, even if it is a mock-up, feels like it's a done deal. The City is
no longer allowing this practice.
COMMENTS FROM VERIZON (Leslie Daigle):
■ Representative hopes to also relay or echo communication from AT&T, whose
representative left the workshop early on.
■ Verizon agrees that no notification fuels anxiety.
■ Upfront notification is reasonable.
■ All industry companies are challenged by the unique geography of the City and
the hilly terrain presents difficulty on minimizing sites.
■ Main points to consider:
o State Law authorized telecommunication companies to put facilities in
Public Right -of -Way;
o Local jurisdiction can only control "Time, Place, and Manner." Verizon
does not believe that Cities can stop State and Federal Laws;Nor does
Verizon feel that the Cities can force telecoms to protect views.
o Similar to other utilities, Verizon would like telecommunications
applications to be regulated by the Public Works department and not the
Planning Commission;
o Verizon Wireless does not need to demonstrate the need for a right-of-
way facility. State law authorizes Verizon Wireless's use of the right-of-
way for placement of telephone equipment. The City must strike new
requirements to provide evidence regarding coverage and/or capacity
gaps. (§12.18.050(6)(6), §12.18.050(B)(19))
o The City is limited to reasonable "time, place and manner" regulation of
the right-of-way and may not require evaluation of alternatives outside of
the right-of-way (§12.18.050(6)(6)) or protect private views
(§12.18.080(A)(1)(c)).
o Finding regarding "least intrusive means" exceeds City's authority. "Least
intrusive means" is only relevant when a wireless carrier claims a
prohibition of service by a local jurisdiction in federal court, and it should
not be required for approval if a proposed facility meets reasonable
ordinance criteria. Wireless carriers cannot be held to this standard where
other public utilities using the right-of-way are not and such discrimination
would violate state law. (§12.18.90(E))
o Placement of right-of-way wireless facilities, like any other utility, should
be regulated through the Department of Public Works, not by the Planning
Commission, as provided in the initial draft ordinance. (§12.18.040(A))
Neither the Director of Public Works nor the Planning Commission should
be placed in the judicial role of evaluating federal court concepts of
significant gap and least intrusive means. (§12.18.190)
Wireless Communications Workshop #2
February 1, 2016
Page 4 of 6
A
COMMENTS FROM CROWN CASTLE (Attorney Paul O'Boyle):
■ Crown Castle (Crown) always tries to go to Utility Right -of -Way. It is a cleaner
option and they have the right to do it.
■ Crown is following the agreement entered into by their former NextG ($500/ city
pole).
■ There WILL be a proliferation of cell sites. It's coming and everyone needs to
work together. State rights grant the companies the use of Right -of -Way.
■ The City can't stop it, the industry and the public will just need to work together
and Crown will work with the public. They want to be less obstructive.
■ Crown knows that "Visual Blight" is the big issue. The intent is to try to collocate
within the Right -of -Way.
■ Crown is using micro -cells which takes 12-14 sites in relation to one big
monopole.
■ Crown requests that the City tell them what is an acceptable design (pre -
approved installation configuration). Crown is willing to show options, and see
how they look like.
■ CPUC says Electric companies can do whatever they want. City and Public are
limited as to what they can do. Telecommunications companies are at a
disadvantage, but are willing to work with the public.
■ Crown has legal objections to the code and has communicated them with the
City through the City Attorney's Office.
OPEN DIALOGUE SESSION:
■ Residents asked that companies come in with concepts more reasonable, no
steamrolling the City and public.
■ Residents are not happy about telecom companies laying fiber without telling the
City the intent.
■ Residents still want to see these antennas on private property. But it will entail
acquiring landlord rights and industry will lean on state and federal regulations to
install in the public right-of-way.
■ One resident doesn't like the eye -level propagation of a proposed site in his
neighborhood. Is Crown Castle willing to modify this site, for one resident?
■ The process still needs to be refined.
■ The next City Council meeting is February 16th. An update to the Ordinance,
based on the comments received tonight will be presented then.
■ Assistant City Attorney Lopez provided closing remarks and outlined the next
steps:
o City will look at legal objections to the proposed ordinance from the
telecommunications companies
o We will continue to receive public comments
Wireless Communications Workshop #2
February 1, 2016
Page 5 of 6
D-5
o We will be presenting an updated ordinance to the City Council on
2/16/16.
o We will also present some antennae configurations to the City
Council for consideration.
o Staff will provide a link to sample antennae configurations
o Staff will update the cell site status spreadsheet on the City's
website.
Wireless Communications Workshop #2
February 1, 2016
Page 6 of 6
A e
CCALWAThe California Wireless Association
February 1, 2016
City of Rancho Palos Verdes
30940 Hawthorne Blvd
Rancho Palos Verdes, CA 90275
Re: ROW Wireless Telecommunications Ordinance
To Whom It May Concern:
The California Wireless Association (Ca1WA) has been given the opportunity to
provide feedback on the urgency ordinance relating to the installation of wireless
telecommunications facilities in the public right-of-way (ROW). We at Ca1WA
appreciate this opportunity and would like to add the following comments.
As a general matter, the referenced ordinance discourages deployment of wireless
infrastructure in the ROW. This is in contrast to the growing trend in most
municipalities, as well as at the federal level and at the state level in California. As
Section 12.18.190(A) of the RPV ordinance indicates, federal law prohibits a permit
denial when it would effectively prohibit the provision of personal wireless
services. Recognizing that new Wireless Telecommunication Facilities (WTF) must
receive approval in some form, the trend in recent ordinances throughout California
is to encourage deployment in the ROW. This is done through streamlined
processes and a reduction in application requirements. The RPV ordinance,
however, enacts significant restrictions and hurdles to deployments in the ROW, as
well as uncertainty as to whether an application will be processed administratively
or through planning commission approval.
Specifically, the most difficult and burdensome portions of the ordinance which are
unnecessarily restrictive to the deployment of new wireless facilities include the
following:
12.18.040(B)(1)(c), 12.18.040(B(2)- By requiring that a that a proposed WTF be
processed administratively only if it complies with all chapters of the ordinance
while also allowing discretion to refer the same application to the Planning
Commission, the City is harming the industry's ability to plan proposed facilities as
to timelines and certainty. The more typical ordinance which encourages WTF
deployments in the ROW will allow for more certain deployment through an
administrative processso long as a few key factors, such as size and aesthetics, are
adhered to.
E-1
CCALWAThe California Wireless Association
12.18.040(F)- Prohibiting speculative equipment does not seem to advance any
City objectives, while removing an option for a quicker installation of wireless
facilities. Speculative equipment can be made to go through the same approval
process as a carrier specific deployment, so the City's interests can be protected
during the application and review. An approved site without a carrier, however,
offers a significantly more certain and quicker method for wireless companies to
enhance their network.
12.18.050(B)(6)- The requirement for a justification study increases the burden on
the applicant while serving little City or public interest. It is well known, and
generally agreed upon, that changes in technology and consumer behavior are
driving a demand for more WTF's. New WTF's are generally aimed not at
coverage gaps but to solve the demand for capacity that increased data
consumption is driving. Put simply, a network with great coverage will still fail in
a situation where too many individuals are attempting to use it. This has serious
public safety implications, as even emergency calls can be disrupted by a network
experiencing a lack of capacity.
12.18.050(B)(19)- Very similar to the requirement for a justification study, the
written description regarding geographic service area and propagation maps
increases costs and timelines for wireless carriers, but serves little purpose in
helping the City make a decision as to approve or deny a proposed facility. This
requirement does not properly envision the technological needs of the public over
the next decade, and is instead a manner to unnecessarily delay new facilities.
Ca1WA instead recommends the City implement measures to protect their
aesthetic concerns, while allowing for more facility deployments in a quicker
timeline. Constantly changing technology needs also results in great difficulty in
forecasting the facility needs over the next couple years at time of application.
This is especially difficult when a carrier can not reasonably forecast whether the
WTF they are applying for will be approved.
12.18.050(B)(22)- Given the lengthy and comprehensive general application
requirements of 12.18.050(B)(1-23), a 30 day mock up of the facility on site is
additionally burdensome. The City will already have detailed engineering plans,
photographs, equipment specifications, site plans, elevation plans, and visual
impact analysis to help make such a decision.
Respectfully Submitted,
/s/ Sean Maddox
Sean Maddox
Regulatory Committee Co -Chair
California Wireless Association
E-2
Rancho Palos Verdes
Right -of -Way Wireless Ordinance
Talking Points
February 1, 2016
The revised draft ordinance introduces additional problematic requirements that conflict
with federal and state law. These conflicts are exacerbated in the revised ordinance.
o Verizon Wireless does not need to demonstrate the need for a right-of-way facility.
State law authorizes Verizon Wireless's use of the right-of-way for placement of
telephone equipment. The City must strike new requirements to provide evidence
regarding coverage and/or capacity gaps. (§12.18.050(6)(6), §12.18.050(B)(19))
o The City is limited to reasonable "time, place and manner" regulation of the right-of-
way and may not require evaluation of alternatives outside of the right-of-way
(§12.18.050(6)(6)) or protect private views (§12.18.080(A)(1)(c)).
o Finding regarding "least intrusive means" exceeds City's authority. "Least intrusive
means" is only relevant when a wireless carrier claims a prohibition of service by a
local jurisdiction in federal court, and it should not be required for approval if a
proposed facility meets reasonable ordinance criteria. Wireless carriers cannot be
held to this standard where other public utilities using the right-of-way are not and
such discrimination would violate state law. (§12.18.90(E))
o Placement of right-of-way wireless facilities, like any other utility, should be regulated
through the Department of Public Works, not by the Planning Commission, as
provided in the initial draft ordinance. (§12.18.040(A)) Neither the Director of Public
Works nor the Planning Commission should be placed in the judicial role of
evaluating federal court concepts of significant gap and least intrusive means.
(§12.18.190)
F-1
PUBLIC COMMENTS FOR ORDINANCE AND WEBSITE:
From: Thomas, Jay [mailto:jthomas@labiomed.org]
Sent: Friday, January 22, 2016 11:20 AM
To: Nicole Jules <NicoleJ@rpvca.gov>; jcalvagna@netzero.net; bconmast@msn.com;
jcalvagna@netzero.net; gemamail@cox.net; bconmast@msn.com; Ken Daly <kpdaly@verizon.net>;
slk6624@gmail.com; Tina Tsai <essentialtours@aol.com>; Q. Huang <huanggiang2005@gmail.com>;
Justina Krakowski <justina@justina-design.com>; Ed Hibsman <hibsmanx@cox.net>;
j135cooper@yahoo.com; Stewart Kanemaki <slk6624@gmail.com>; Tina Tsai
<essentialtours@aol.com>; MARYANN MEVERS <GEMAMAIL@COX.NET>;
Youngsoo_Kwon@gensler.com; judydeanzim@aol.com; Chuan Kao <chuan.mike@gmail.com>;
lorefraix@verizon.net; vluckyee@gmail.com; pechloff_a@yahoo.com
Cc: Christy M. Lopez <clopez@awattorneys.com>; Michael Throne <MichaelT@rpvca.gov>; Charles Eder
<CharlesE@rpvca.gov>; Ara Mihranian <AraM@rpvca.gov>
Subject: RE: Public Workshop #2 - Proposed Wireless Antenna Ordinance
Ms. Jules —
Thank you. I sincerely appreciate your convening this workshop.
However, there are only approximately 20 non -City recipients on this email notification. The potentially
affected residents are far more numerous than 20, making this attempt at notification of city residents
somewhat incomplete.
Will this meeting notification be shared by other means, announcements or mailings distributed in
neighborhoods where new installation applications have been submitted?
Thank you, again.
Joseph Thomas
Sent: Friday, February 05, 2016 8:55 PM
To: PublicWorks <PublicWorks@rpvca.gov>
Cc: John Freeman <jrfree@cox.net>
Subject: Cell Phone Spreadsheet
Dear Public Works,
I was reviewing the cell phone spreadsheet and noticed an inconsistency with information presented for
one of the proposed sites. Line 16 of the spreadsheet (ASG34) indicates the proposed site is located at
Kings Harbor and EI Rodeo, but the plans for ASG34 show the location to be Kings Harbor and Verde
Ridge. The photos also match Kings Harbor and Verde Ridge.
I'm not sure which site is the correct proposed location (Kings Harbor & EI Rodeo or Kings Harbor &
Verde Ridge) or if there was a change made to the proposed location. I just wanted to point out the
inconsistency in case a correction needs to be made.
David Pellicciarini
6938 Verde Ridge Rd
F-2
PUBLIC PROTESTS AT SITES:
From: Chuan Kao [mailto:chuan.mike@gmail.com]
Sent: Monday, January 18, 2016 4:39 PM
To: Nicole Jules <NicoleJ@rpvca.gov>
Subject: AT&T Cellular antenna project on the 28000 block of San Nicolas Drive, RPV
Nicole Jules
Deputy Director of Public Works
City of Rancho Palos Verdes
Dear Ms. Jules,
It was brought to our attention that a cellular antenna is planned to be installed on the 28000 block of
San Nicolas Drive. For the following reasons, we respectfully ask you to consider a relocation and do not
carry out the plan:
1) It would negatively impact the property values of the stated block.
2) It would negatively affect the walking friendliness of the bock.
3) It would introduce an ugly spot into the block.
Please kindly move this project to some open area of RPV. Please feel free to contact with us if there is
any question.
Best Regards,
Chuan and Chyoung Kao
28416 San Nicolas Drive
Rancho Palos Verdes, CA 90274
From: Alexander Pechloff <pechloff a@yahoo.com>
Sent: Tuesday, January 19, 2016 12:58:29 PM
To: CC
Subject: Fwd: Cell -phone tower objection Calle de Suenos
Dear City Council,
the Pechloff Family has been the owner of the property located at 30529 Calle de Suenos, Rancho Palos
Verdes, since 1974. Over many decades we have cherished the upscale, aesthetically pleasing, and
environmentally conscious neigborhood.
Just recently, it has come to our attention that a new transponder -equipped lamp -post is planned to be
installed on our block to serve as a cell -phone tower.
We are very concerned that the cell -phone tower will substantially reduce the neighborhood's appeal:
- The current cell -phone coverage is adequate for a low -traffic residential neighborhood and the
exposure to electro -magnetic radiation is kept minimal.
Any improvement in coverage does not warrant the residents increased exposure.
F-3
- The new cell -phone tower will be visually obtrusive, as it is taller than the current lamp -posts and is
equipped with external transponders, transformers, and wiring. All other utilities and
telecommunications, on the other hand, are underground.
- The loss in property value and commandable rent is incalculable.
- Information about this project has been sparsely provided to residents/owners in an "under -the -radar"
approach.
Thus, we strongly object to the planned installation of a cell -phone tower on our block.
Sincerely,
Alexander Pechloff.
Attorney-in-fact for Elisabeth Pechloff, Trustee of the Jakob Pechloff and Elisabeth Pechloff Survivor's
Trust & Bypass Trust (Owner).
From: jcalvagna@netzero.net [mailto:jcalvagna@netzero.net]
Sent: Sunday, January 31, 2016 5:12 PM
To: Nicole Jules <NicoleJ@rpvca.gov>
Cc: Charles Eder <CharlesE@rpvca.gov>
Subject: Cell site applications in October 2015
Nicole - I recently filed a PRA for encroachment permit list for the last six months. I noticed the October
2015 report states: "Cell site application - Across from 3486 Seaglen - Crown Castle". Is this a new
application that was submitted? Is this in addition to the original application that led to the public
notice posting in July 2015?
If a new application was submitted for Seaglen, please provide the application and submitted
drawings. If a new application was not submitted, please explain the intent of including this site under
the "cell site application" category in October 2015.
Note that this same October 2015 encroachment report also includes other sites such as Calle de Suenos
and 26759 Basswood under "cell site application" yet the list on the new cell site webpage says
"preliminary - no application submitted". Please let me know if I'm misinterpreting this.
Thanks,
Jeff
From: jcalvagna@netzero.net [mailto:jcalvagna@netzero.net]
Sent: Saturday, February 06, 2016 8:43 AM
To: Charles Eder <CharlesE@rpvca.gov>; Nicole Jules <NicoleJ@rpvca.gov>
Cc: Michael Throne <MichaelT@rpvca.gov>; clopez@awattorneys.com
Subject: RE: Cell site applications in October 2015
Charles and Nicole - I now have found that the newly updated cell site spreadsheet contains a link to
revised drawing package for the Seaglen site. These drawings are dated as being updated on
10/19/2015, a date that coincides with the encroachment report mention of the Seaglen site I discuss
below.
F-4
I have repeatedly asked Public Works that I be notified of any developments regarding the Seaglen site
yet I was never told that these documents were submitted.
Why wasn't I told about these when they were received?
The 150 day shot clock for the Seaglen site has expired as the application dates back to June 2015 or
possibly earlier. The 30 day period for Crown Castle to take action after shot clock expiration has also
passed.
If Crown Castle wishes to continue to pursue this site it must restart the process. Any proposed site must
be in full compliance with the documentation and site design requirements of the new ordinance.
The design shown in the posted drawing package is completely unacceptable as it violates multiple
aspects of the new ordinance.
Jeff Calvagna
From: jcalvagna@netzero.net [mailto:jcalvagna@netzero.net]
Sent: Wednesday, February 03, 2016 7:14 PM
To: Charles Eder <CharlesE@rpvca.gov>
Subject: RE: Cell site applications in October 2015
Hi Charles - Please see the bottom of page 12 of the attached PDF file. It shows a listing of "cell site
applications" in the Public Works October 2015 encroachment report. It includes one listed as "across
from 3486 Seaglen" in addition to several other sites. I'm asking specifically:
Was a new Seaglen application filed with the city in October 2015 as implied in the
encroachment report?.
If so, did the city accept the application?
If a new application was submitted as implied, please provide the submitted documentation.
This is important as the original Seaglen application (dating back to June or earlier) is older that 150 day
shot clock and has also exceeded the 30 day window for Crown Castle to take action. As such, the
original Seaglen application shoudl be considered expired. Also, I had asked for notification of any
changes regarding the Seaglen site and was not informed of any new action in October.
In addition, several other sites shown on the same list including Calle de Suenos and Basswood as having
applications in October 2015. On the 1/7/2016 list posted on the transparency webpage says an
application has not been submitted for these sites. I'm asking specifically:
• Has an application has been submitted and/or accepted by the city for any of the other sites on
this October 2015 list?
Please let me know if you need clarification. If applications were not submitted, I'd like to understand
why the encroachment report implies that they were.
Jeff
F-5
ORDINANCE NO. U
NURGENCY—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,
consistent with State and federal law, for the installation of wireless telecommunications
facilities in the City's public right-of-way (ROWY
(ii (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.
iii On January 19, 2016, the City Council held a duly noticed public hearing and
adopted Urgency Ordinance No. 578U (the "Urgency Ordinance"), which contained substantially
similar provisions intended to address the urgent need to regulate, to the maximum extent
permissible under State and federal law, wireless telecommunications facilities in the public
ROW because the City had approximately 52 pending or anticipated applications for wireless
telecommunications facilities in the ROW and very minimal standards or regulations specifically
designed to address the uniaue leual and/or practical issues that arise in connection with such
facilities.
iv The City did not introduce this Ordinance at the same time that it adopted the
Urgency Ordinance because it desired to afford the public and stakeholders, including
representatives from the wireless services and infrastructure industry and representatives from
franchised utilities and telecommunications services, to provide further comments and
refinements to the Urgency Ordinance that would ultimately be adopted as this Ordinance.
Page 1 of 34
01203.0015/287388.1 G-1
m znz nnn�i�ui i n a
-
�:
IN 10
Z11 211411
iii On January 19, 2016, the City Council held a duly noticed public hearing and
adopted Urgency Ordinance No. 578U (the "Urgency Ordinance"), which contained substantially
similar provisions intended to address the urgent need to regulate, to the maximum extent
permissible under State and federal law, wireless telecommunications facilities in the public
ROW because the City had approximately 52 pending or anticipated applications for wireless
telecommunications facilities in the ROW and very minimal standards or regulations specifically
designed to address the uniaue leual and/or practical issues that arise in connection with such
facilities.
iv The City did not introduce this Ordinance at the same time that it adopted the
Urgency Ordinance because it desired to afford the public and stakeholders, including
representatives from the wireless services and infrastructure industry and representatives from
franchised utilities and telecommunications services, to provide further comments and
refinements to the Urgency Ordinance that would ultimately be adopted as this Ordinance.
Page 1 of 34
01203.0015/287388.1 G-1
m znz nnn�i�ui i n a
Ov On February 1, 2016, the City conducted a noticed public workshop at which the
public and stakeholders, including representatives from the wireless services and infrastructure
industry and representatives from franchised utilities and telecommunications services, could
provide verbal comments and refinements to the proposed Ordinance. Approximately 48 people
attended the work shop. Representatives from Verizon, AT&T, Southern California Gas and
Crown Castle attended the workshop, but only representatives from Verizon and Crown Castle
offered any comments or refinements to the proposed Ordinance.
vi int -a e and federal law loeal govemments to State and federal law have
changed substantially and materially since the City last adopted regulations for wireless
telecommunications facilities installation in the ROW. Such changes include (1) modifications
to federal "shot clocks" whereby the Cites act on permit applications for wifeless f eili es
within a pr-eser-ibed time pefied and may atitomatieally deem an applieation appr-oved when a
rufe to aet occur See 47 U.S332(e)(7)(13)(4iknew and modified installations within as
few as sixty (60) days after an applicant submits an application, whether complete or incomplete;
(2) new State statutes and federal regulations that provide for "deemed -approved" or "deemed -
granted" remedies when the City fails to act within the applicable timeframes for review; and (3)
clarifications in decisional law about the City's authority, t�g;ulate aesthetics in the public
ROW. See 47 C.F.R. §§ 1.40001 etseq.; CAL. GOVT CODE § 65964.1.. The Fede
Communications Commission (FCC) may require a decision on certain applications in as few as
60 days. See -4 7 G.F.R. § 1. 4000 1(e)(2); seeak-e--iln 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 Red. 13994 (Nov. 18, 2009) [hereinafter "2009 Declaratory
Ruling"]. Pufsuant to FCC regulations, the City cannot adopt a moratorium ordinanee to to!!
d for- r-eview, even when needed to allow the Git i the states quo while it
G.F.R. § 1.4 000 1 (e)(3); 2014 Repan-urr'"cdder, 29 CC Red's.-at�219,265-.; (Sprint PCS Assets,
L.L.C. v. Ciiy of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, 726.)
........ !�5. _ . • !�S!E!!!: !!7S!!FI!!!!T.�!! !R'��l�.FtiRlS!�!l�lf.
.•
vii The ROW in the City of naneho Palos Verdes The public ROW in the City is a
uniquely valuable public resource, closely linked with the City's residential character-, civic
identity 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 r-egula tonsCity finds and declares that the regulation of wireless
telecommunications facilities in theup blic ROW pis necessary to protect and preserve the
aesthetics in the community, as well as Ow -property values of pr-epeftieithin the City, and to
ensure that all wireless facilities are installed using the least intrusive means possible.
Page 2 of 34
01203.0015/287388.1 G-2
m �nz nnn�i�ui i n a
(ix) On jami Pf4917ebruary 16, 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. The City Council then passed a motion to
continue the hearing to March 1, 2016.
(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 market entry to 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 ("CPCN") 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 790 1. 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
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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. The City previously adopted Urgency Ordinance No.
578U, which is currently in effect and established substantially the same processing_procedures.
This Ordinance is being enacted to bring the eity'sCity's processing procedures into compliance
with existing State and federal law. The -Regardless whether Urgency Ordinance No. 578U had
been adopted or not, to the extent that the regulations in this Ordinance involve mere
synchronization of these timelines into the City's zoning Ordinance, this 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—Lis 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
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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. 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.
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"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.
"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.
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"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
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), , cessation
of use and abandonment (section 12.18.170), removal and restoration (section
12.18.180) of wireless telecommunications facilities and the prohibition of
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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.
12.18.040 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.
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.
3. In the event that the director determines that any application submitted for an
Administrative Wireless Telecommunications Facilities Permit does not meet the
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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.
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 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.
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12.18.050 Application for Wireless Telecommunications Facility Permit.
A. Application.
1. 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. No applicant seeking to install wireless antennas shall seek an encroachment
permit for fiber or coaxial cable only. Applicants shall simultaneously request
fiber installation or other cable installation when seeking to install antennas in the
right-of-way.
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:
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
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 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.
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 fFom
technological standpoint for the „ sod *ebe the least visible equipment
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within the particular technology the carrier chooses to deploy. 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)
"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
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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 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.
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;
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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
in 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 install 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 application form for
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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.
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.
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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, or conditionally approve, an
application only after it makes the findings required in section 12.18.090.
2. Director's Decision Notice. The director may approve, or conditionally approve,
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.
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.
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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.
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.)
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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.
£ 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
of the pole. The applicant shall further employ concealment techniques to
blend the pole with said features including but not limited to the addition
of vegetation if appropriate.
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.
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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, except as provided below:
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. Also, while pole -mounted equipment is
generally the least favored installation, should pol-mounted equipment be
sought, it shall be installed as required in this Chapter.
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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. Should no lighting be proposed, no lighting study shall be required.
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.
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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 three (3) from the sources of the noise.
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
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.
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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 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
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
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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
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.
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
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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.
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
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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
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
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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:
FA
for the proposed installation have been given.
All notices required
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.
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
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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. General dirt and grease;
2. Chipped, faded, peeling, and cracked paint;
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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 .[Reservedl
"' "l,
11111111 WIN 11011
.�
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
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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. 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 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;
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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.
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 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.
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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. 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
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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 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
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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 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 5. 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,
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as these terms are defined by the Federal Communications Commission (FCC). "Commercial
antennas" shall not include antennas owned or operated by governmental agencies.
SECTION 6. 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 7. Effective Date. This ordinance
shall be in effective on the thirtieth (30th) day after the day of its adoption.
SECTION 8. Certification. The City Clerk shall
certify to the passage an adoption of this Ordinance and shall cause the same
t#e�to be posted in the manner required by law.
PASSED, APPROVED AND ADOPTED this day of
following vote to wit:
Ken Mayor
ATTEST:
Carla MoFfeales
City Clerk
APPROVED AS TO FORM:
David J. Aleshire
City Attorney
2016, by the
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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,
consistent with State and federal law, for the installation of wireless telecommunications
facilities in the City's public right-of-way ("ROW").
(ii) 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.
(iii) On January 19, 2016, the City Council held a duly noticed public hearing and
adopted Urgency Ordinance No. 578U (the "Urgency Ordinance"), which contained substantially
similar provisions intended to address the urgent need to regulate, to the maximum extent
permissible under State and federal law, wireless telecommunications facilities in the public
ROW because the City had approximately 52 pending or anticipated applications for wireless
telecommunications facilities in the ROW and very minimal standards or regulations specifically
designed to address the unique legal and/or practical issues that arise in connection with such
facilities.
(iv) The City did not introduce this Ordinance at the same time that it adopted the
Urgency Ordinance because it desired to afford the public and stakeholders, including
representatives from the wireless services and infrastructure industry and representatives from
franchised utilities and telecommunications services, to provide further comments and
refinements to the Urgency Ordinance that would ultimately be adopted as this Ordinance.
(v) On February 1, 2016, the City conducted a noticed public workshop at which the
public and stakeholders, including representatives from the wireless services and infrastructure
industry and representatives from franchised utilities and telecommunications services, could
provide verbal comments and refinements to the proposed Ordinance. Approximately 48 people
attended the work shop. Representatives from Verizon, AT&T, Southern California Gas and
Crown Castle attended the workshop, but only representatives from Verizon and Crown Castle
offered any comments or refinements to the proposed Ordinance.
(vi) State and federal law have changed substantially and materially since the City last
adopted regulations for wireless telecommunications facilities installation in the ROW. Such
changes include (1) modifications to federal "shot clocks" whereby the City must act on permit
applications for new and modified installations within as few as sixty (60) days after an applicant
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submits an application, whether complete or incomplete; (2) new State statutes and federal
regulations that provide for "deemed -approved" or "deemed -granted" remedies when the City
fails to act within the applicable timeframes for review; and (3) clarifications in decisional law
about the City's authority to regulate aesthetics in the public ROW. See 47 C.F.R. §§ 1.40001
et seq.; CAL. Gov'T CODE § 65964.1; 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"]; (Sprint PCS
Assets, L.L.C. v. City of Palos Verdes Estates (9th Cir. 2009) 583 F.3d 716, 726.)
(vii) The public ROW in the City is a uniquely valuable public resource, closely linked
with the City's residential character, civic identity 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 City finds and declares that the regulation of wireless telecommunications
facilities in the public ROW is necessary to protect and preserve the aesthetics in the community,
as well as property values within the City, and to ensure that all wireless facilities are installed
using the least intrusive means possible.
(ix) On February 16, 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. The City Council then passed a motion to
continue the hearing to March 1, 2016.
(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 market entry to 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 ("CPCN") 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."
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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.
(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. The City previously adopted Urgency Ordinance No.
578U, which is currently in effect and established substantially the same processing procedures.
This Ordinance is being enacted to bring the City's processing procedures into compliance with
existing State and federal law. Regardless whether Urgency Ordinance No. 578U had been
adopted or not, to the extent that the regulations in this Ordinance involve mere synchronization
of these timelines into the City's zoning Ordinance, this 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.
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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. 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,
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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.
"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.
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"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.
"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.
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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
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), , 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.
12.18.040 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.
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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.
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.
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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
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.
1. 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. No applicant seeking to install wireless antennas shall seek an encroachment
permit for fiber or coaxial cable only. Applicants shall simultaneously request
fiber installation or other cable installation when seeking to install antennas in the
right-of-way.
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
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
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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.
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 be the least visible equipment within the
particular technology the carrier chooses to deploy. 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.
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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
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 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
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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 in an amount set by resolution by the city council and
in 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 install 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.
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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
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.
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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 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.
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, or conditionally approve, an
application only after it makes the findings required in section 12.18.090.
2. Director's Decision Notice. The director may approve, or conditionally approve,
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.
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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.
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
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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 (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.
i 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.
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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
of the pole. The applicant shall further employ concealment techniques to
blend the pole with said features including but not limited to the addition
of vegetation if appropriate.
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, except as provided below:
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
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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. Also, while pole -mounted equipment is
generally the least favored installation, should pol-mounted equipment be
sought, it shall be installed as required in this Chapter.
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
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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. Should no lighting be proposed, no lighting study shall be required.
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 three (3) from the sources of the noise.
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:
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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
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 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
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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
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
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
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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
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
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01203.0015/287388.1
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 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.
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01203.0015/287388.1
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
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.
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01203.0015/287388.1
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.
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]
12.18.1 l0 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.
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01203.0015/287388.1
C. All facilities, including, but not limit&d
accessory equipment, lighting, fences, wa
camouflage, and the facility site shall be
ensuring the facilities are reasonably free of.
1. General dirt and grease;
to, telecommunication towers, poles,
lls, shields, cabinets, artificial foliage or
maintained in good condition, including
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.
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 [Reserved]
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,
mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or
near said location.
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01203.0015/287388.1
l 2.18.160 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 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
Page 27 of 32 H-27
01203.0015/287388.1
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 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,
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
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01203.0015/287388.1
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
conditions of approval as reasonably necessary to promote the purposes in this
chapter and protect the public health, safety and welfare.
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01203.0015/287388.1
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.
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.
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01203.0015/287388.1
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 5. 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 6. 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 7. Effective Date. This ordinance shall be in effective on the thirtieth (30th)
day after the day of its adoption.
SECTION 8. Certification. The City Clerk shall certify to the adoption of this
Ordinance and shall cause the same to be posted in the manner required by law.
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01203.0015/287388.1
PASSED, APPROVED AND ADOPTED this day of 2016, by the
following vote to wit:
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
David J. Aleshire
City Attorney
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01203.0015/287388.1
City of
RANCHO PALOS VERDES
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.
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.
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.
01203.0015/280944.4 Page 1 of 11
I-1
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 oroperator:
(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 & Zi
(4) Phone No.:
(5) Fax No.:
(6) Email: F
iv. Person most knowledgeable about the proposed project:
® Same as Applicant listed above.
(1) Name:
(2) Street Address:
(3) city, State & Zip:
01203.0015/280944.4 Page 2 of 11
1-2
(4)
Phone No.:
(5)
Fax No.:
(6)
Email:
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 govem(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.
01203.0015/280944.4 Page 3 of 11
-3
IV. Description of Project Coverage and Purpose
1. 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. E] 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
c. ❑ Increase existing radio frequency coverage in area with coverage
d. ❑ Other:
01203.0015/280944.4 Page 4 of 11
is
FE77V. Project Location and Authorizations
Facilities will be located:
a. ❑ On private property
b. ❑ In the public right of way (PROW)
1. If the facility will be sited in the PROW, state or provide the following:
a. Your authority to locate the facility in the PROW (state law, federal law, or
franchise agreement); Attach and mark as Exhibit Dla.
b. If applicable, include a copy of the certificate of public convenience and necessity
(CPCN). Attach and mark as Exhibit D1 b;
c. Whether a new pole that is not replacing an existing pole in an otherwise
permitted location is proposed to be sited in the PROW. If so, attach and mark
as Exhibit Dl c a new pole justification analysis to demonstrate why existing
infrastructure cannot be utilized and how the new pole is the least intrusive means
possible;
d. Whether the facility is proposed to be sited in the PROW of non-local roadways
(as defined by the city).
2. 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 D2.
3. 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 Dia 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 Exhibit D3b 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
("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.fec.gov/siting/F�CC_LSGAC RFeGuide.pdf
01203.0015/280944.4 Page 5 of 11
I-5
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.
E77VII.
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.
VIII. Site Plans
1.
Attach the following documentation or information:
01203.0015/280944.4 Page 6 of 11
I-6
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 Hla.
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 Hlb.
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 Hl c.
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 HId.
2. Attach a narrative description and supporting documentation marked as Exhibit H2
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;
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;
01203.0015/280944.4 Page 7 of 11
ISI%
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.
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: I
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 owners 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.
01203.0015/280944.4 Page 8 of 11
IN•
FE ---X. Anticipated Impacts and Other Confounding Factors
1. Provide descriptions, commentary, and supporting documentation relating to the
following:
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 Ba.
b. Attach and mark the application as Exhibit Rb.
c. Historic preservation review. Attach and mark as Exhibit J1c.
d. 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 JI d.
e. A completed environmental assessment application. The application can be found
at htt2://www.rl2vca.gov/documentcenter/view/5995
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
01203.0015/280944.4 Page 9 of 11
I-9
narrative description and any supporting documentation for the selections you make
below. Attach and mark as Exhibit M.
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. ❑ Allocation 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)?
❑ Yes
❑ No
b. Does the project propose a width increase of less than 6 feet?
❑ Yes
❑ No
01203.0015/280944.4 Page 10 of 11
1-10
Date:
c. Does the project propose excavation entirely within the anticipated lease area of
private property?
❑ Yes
❑ No
d. Will the project preserve all existing concealment elements of the current tower or
base station?
❑ Yes
❑ No
Will the proposed collocation preserve all prior conditions of approval that do not
conflict with FCC regulations for a substantial change?
❑ Yes
❑ No
f. Does the project propose adding four or fewer additional equipment cabinets?
❑ Yes
❑ No
Signature
Printed
Title/Company
01203.0015/280944.4 Page 11 of 11
MACKENZIE & ALBRITTON LLP
220 SANSOME STREET, 14"' FLOOR
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE 415/288-4000
FACsimiu 415 / 288-4010
February 8, 2016
VIA EMAIL
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, February 16, 2016
Dear Mayor Dyda, Mayor Pro Tem Campbell and Councilmembers:
We write to you again on behalf of our client Verizon Wireless regarding the
revisions to the draft ordinance regulating wireless telecommunications facilities in the
public right-of-way (the "Draft Ordinance"). In our prior correspondence dated January
5, 2016, we described numerous problems in the original draft presented to the City
Council on January 19, 2016, including provisions conflicting with state and federal law.
Unlike the situation in virtually every jurisdiction we have worked with, none of
our suggested revisions were incorporated into the revised Draft Ordinance released last
week except the deletion of "collector roadways" from the list of restricted locations
under Section 12.18.200, and the revised Draft Ordinance actually exacerbates conflicts
with state and federal law.
The Draft Ordinance has been converted to an urgency ordinance, but we
encourage the City not to rush in adopting flawed regulations and instead to take the time
to resolve issues in the Draft Ordinance. We strongly encourage the City to incorporate
our previous suggested revisions as well as additional comments on revisions to the Draft
Ordinance. To that end, we attach our prior correspondence and provide the following
supplemental comments.
J-1
Rancho Palos Verdes City Council
February 8, 2016
Page 2 of 6
412.18.040 — Wireless Telecommunications Facility Permit Requirements
While the revised Draft Ordinance retains an "administrative" Director -level
decision for certain proposed installations, there is a new permitting scheme for "major"
facilities under which certain facilities are considered by the Planning Commission at a
noticed public hearing. There is also an option for applicants to seek a "master
deployment" permit from the Planning Commission for multiple installations. The
appropriate duty of the City's Planning Commission is to review land use permits under
the discretionary findings of the City's zoning code, whereas the Director of Public
Works has the expertise to verify compliance and consider impacts of proposed right-of-
way utility installations. The requirement that the Planning Commission approve certain
right-of-way facilities of wireless carriers is in conflict with state and federal law where
other types of public utility entities using the right-of-way are not required to seek
Planning Commission approval.
Under both state and federal law, local regulations must be applied equally to all
users of the County right-of-way. Under state law, local regulation, "to be reasonable,
shall, at a minimum, be applied to all entities in an equivalent manner."' Federal law
recognizes the authority of States and local governments to "manage the public rights of
way" on a "competitively neutral and nondiscriminatory basis. ,2
The Federal
Communications Commission (the "FCC") has stated that local governments may impose
conditions only if they are applied "equally to all users of the rights-of-way" 3 and may
not impose conditions on one user, such as a telecommunications company, in a different
manner than imposed on other users. 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. On a local level, in the vast majority of
cases, such an installation requires only an encroachment and/or excavation permit, and
does not entail discretionary review. Similarly, appeal rights for such permits are
limited.
As required Planning Commission review of certain wireless facility installations
in the right-of-way constitutes unequal treatment of wireless carriers barred under state
and federal law, we suggest that the City return to the original permitting scheme under
which the Director reviews all right-of-way wireless facility applications under the
specific standards of the Draft Ordinance. The City may consider a provision allowing
the Director of Public Works to ask Planning Department staff to prepare an evaluation of
aesthetic impacts of certain applications under reasonable Draft Ordinance criteria. This
is the practice in jurisdictions such as San Francisco.
'Cal. Pub. Util. Code § 7901.1(b).
2 47 U.S.C. § 253(c).
3 Second Report and Order, CS Docket 96-46, §209, FCC 96-249, adopted May 31, 1996.
J-2
Rancho Palos Verdes City Council
February 8, 2016
Page 3 of 6
412.18.050 — Application for Wireless Telecommunications Facility Permit
(A) Application
(2) Barring of Applications for Fiber or Coaxial Cable
This new prohibition on encroachment permits for fiber or coaxial cable must be
stricken from the Draft Ordinance if other public utility entities using the City right-of-
way are allowed to obtain such permits. Such a prohibition would constitute unequal
treatment of wireless carriers which is in conflict with state and federal law. Further,
changes in nearby utility infrastructure beyond a wireless carrier's control may require
carriers to re -design fiber or coaxial cable access after a wireless facility permit is issued,
and this provision would prohibit reasonable requests for permits.
(B) Application Contents
(13) New Information Requirement for RF Exposure Compliance
Report
This provision has been revised to require exhibits showing location and
orientation of all antennas of a proposed facility as well as the areas exceeding FCC
exposure limits, and this exceeds the City's authority under federal regulation. 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 issued by the FCC. The
revisions should be stricken.
(19) Geographic Service Area
This provision has been revised to require applicants to provide coverage maps
and/or capacity exhaustion information to demonstrate the need for a facility under
subsections (a) and (b). A described in our previous correspondence, Verizon Wireless is
a public utility whose use of the right-of-way is authorized under California Public
Utilities Code §7901, and the City cannot require Verizon Wireless to prove that a right-
of-way facility is needed to address a gap in service. There is no relation between the
required information demonstrating need and the required findings under Draft Ordinance
§ 12.18.190. In fact, the findings emphasize that a carrier need only show it has the right
to use the right-of-way. The requirement to submit coverage maps and/or capacity
exhaustion information must be stricken. Similarly, as stated in our prior
correspondence, Verizon Wireless cannot be required to speculate on future planned
facilities and such a requirement is irrelevant where it has a statewide franchise to use the
right-of-way.
J-3
Rancho Palos Verdes City Council
February 8, 2016
Page 4 of 6
(22) Temporary Mock -Up
The new requirement to post photosimulations at the proposed facility location
now should obviate the need for mock-ups in most circumstances and the blanket
requirement for mock-ups should be deleted. We previously advised the City that
photosimulations prepared from multiple public vantage points are sufficient for the
Director to evaluate aesthetic impacts and that mock-ups should only be required at the
Director's discretion in the rare case of potential view impairment.
X12.18.060 — Review Procedure
(B) Application Submittal Appointment
We recognize that in the case of multiple site applications, a pre -submittal
appointment may be encouraged. But by delaying filing of a single pole application that
an applicant could otherwise file on a walk-in basis, the City may initiate a conflict with
federal "Shot Clock" deadlines that require local jurisdictions to review and act on
wireless facility applications within specified time periods. See In Re: Petition for
Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting
Review, Etc., FCC 09-99 (FCC November 18, 2009); see also In Re: Acceleration of
Broadband Deployment by Improving Wireless Facilities Siting Policies, Etc., FCC 14-
153 (FCC October 17, 2014), 9 258 ("...we note that under the 2009 Declaratory Ruling,
the presumptively reasonable timeframe begins to run when an application is first
submitted....")
While Verizon Wireless appreciates the option for a pre -submittal conference
included in the revised Draft Ordinance, the City should ensure that it is not, in the end,
delaying any single application.
X12.18.080 — Requirements for Facilities within the Public Right -of -Way
(A) Design and Development Standards
(6) Poles
(h) Exception Required
(iii) Concealment Requirement for New Poles
Placement of new poles should be encouraged by the City when a small wireless
facility on a new pole will present less visual impact than additional equipment on an
existing pole supporting other utility infrastructure. New pole locations may also allow
carriers to place facilities away from intersections or high -visibility corridors.
J-4
Rancho Palos Verdes City Council
February 8, 2016
Page 5 of 6
We previously objected to the requirement that applicants obtain an exception
under Draft Ordinance § 12.18.190 to place new poles, and we suggested that the City
instead consider reasonable design standards such as color and proximity of screening
vegetation. An exception is still necessary, and this provision now requires
"concealment" of a new pole which is an impossible standard for utility poles placed
along roadways. This provision, along with its concealment requirement, should be
stricken.
(12) Accessory Equipment
This provision has been revised to require concealment of above -ground
equipment. As stated in our prior correspondence, the requirement that wireless carriers
obtain an exception for above -ground equipment or else place equipment underground
violates state and federal law as it treats of wireless carriers differently than other users of
the right-of-way. The new requirement that any above -ground equipment be concealed
exacerbates this problem as other public utilities placing above -ground cabinets in the
right-of-way are not subject to the same concealment requirement. Both the requirement
to obtain an exception for above -ground equipment and the requirement that it be
concealed must be stricken, and the City should adopt reasonable standards for new
poles.
(15) Lighting
(e) Lighting Study
Most right-of-way wireless facilities emit no light, and a lighting study should not
be required when no light is added by the wireless facility.
&12.18.090 — Findings
(E) Least Intrusive Means
This language of this finding has been revised (and re -lettered), now requiring
factual evidence and an exhaustive analysis with a vague reference to "all" alternatives.
As noted in our prior correspondence, demonstrating that a wireless facility is the "least
intrusive means" for providing service is only relevant when a wireless carrier claims a
prohibition of service by a local jurisdiction in federal court, and it should not be required
for approval if a proposed facility meets reasonable Draft Ordinance criteria. This
finding should be stricken.
§12.18.190 — Exceptions
This provision has been revised to place the responsibility of granting exceptions
with the Planning Commission rather than the Director, but the concept remains flawed.
J-5
Rancho Palos Verdes City Council
February 8, 2016
Page 6 of 6
Placing inappropriate judicial duties on the Planning Commission will result in
speculative legal judgments. This is evident in new findings for an exception under
subsection (B) that allude to federal wireless case law concepts of significant gap and
least intrusive alternative, which suggest that a non -engineering Planning Commission is
now charged with guessing whether a carrier will file suit in federal court if a proposed
facility is denied. We again suggest that the exception process be stricken from the
ordinance, and that clear, reasonable criteria be adopted for new pole locations, above-
ground equipment and facilities on local residentially -zoned streets.
Conclusion
The revised Draft Ordinance introduces additional problematic provisions to draft
regulations that would already conflict with state and federal law. We urge the City to
invest time and work with industry to prepare regulations for right-of-way wireless
facilities with clear standards that allow wireless carriers to provide service with minimal
visual impacts..
Very truly yours,
OP
Paul B. Albritton
cc: Dave Aleshire, Esq.
Christy Lopez, Esq.
Nicole Jules
Attachment
J-6
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:
J-7
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.
HK•
Rancho Palos Verdes City Council
January 5, 2016
Page 3 of 10
(16) Noise Study
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
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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
J-10
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
J-11
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
J-12
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.
J-13
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.
J-14
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.
J-15
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
J-16
Nicole Jules
From: Christy M. Lopez <clopez@awattorneys.com>
Sent: Tuesday, February 16, 2016 7:55 PM
To: Nicole Jules
Subject: Fwd: Last minute ordinance comments
Sent from my iPhone
Begin forwarded message:
From: "jcalvagna@netzero.net<mai lto:jcalvagna@netzero.net>"
<jcalvagna@netzero.net<mailto:jcalvagna@netzero.net>>
Date: February 14, 2016 at 10:44:23 AM PST
To: <clopez@awattorneys.com<maiIto: clopez@ awattorneys.com>>
Subject: Last minute ordinance comments
Hi Christy,
There are a few items in the wireless ordinance I wanted to follow up on prior to Tuesday's CC meeting, a couple of
clarifications and a suggestion.
* Public Notification —Section 12.18.050(B)(22)(b) (Application contents) states that public notification for
residents within 500 feet will be 5 days prior to the mock-up period. As the 30 day mock-up must be complete for the
application, this would be prior to application submittal. Section 12.18.060(C)(1) (Notice; Decisions) describes
notification under RPV MC Section 17.80.090 which also requires notification of residents within 500 feet with timing
that would be after application submittal. Is there a timing discrepancy or is this a different notification?
* Noise Regulations— Section 12.18.080(A)(16) (Design guidelines) states that the 55 dBA noise limit applies at a
three foot distance. Regarding the lower 45 dBA residential limit, the sentence is ambiguous as to the distance as it isn't
specified. This came up during the first wireless workshop and my recollection was the intent was that it also applied at
three feet (I agree). I bring this up as after the second workshop, one of the industry reps told me they thought it should
apply at the property line. This ambiguity could cause trouble.
* Location Restrictions —The biggest ordinance concern I have heard is from residents that live on or adjacent to
collectors/arteries. The exact same site regulations apply to all sites but the approval process is different for these
locations. Residents are concerned Public Works will rubber-stamp these sites without a thorough vetting; this fear isn't
unreasonable based on past experience. Does it make sense to add a third locations restriction to Section 12.18.200?
Something like, "Public right of way of any street if within a 100 distance to any residential structure". This would not
prohibit these locations but ensure they require public hearings. It would also incentivize installers to select sites on
collectors/arteries that are not right next to homes.
One other comment, you may have seen I submitted about 25 pages of process documentation to the City. Obviously
this wasn't meant to be anything official, but to give staff some guidance and to set expectations regarding the
documentation level required to effectively manage a complex process. I'm considering submitting this to the City Clerk
J-17
on Monday potentially making it part of the staff report public archive for Tuesday's meeting. Let me know if you have
any concerns about this, as I don't want to muddle up activity you already have underway.
Thanks for all you have done on this. I truly believe the new ordinance will be remembered as a proud achievement by
the City, along the lines of the View Protection Ordinance. I've heard from a few people in Palos Verdes Estates asking
about what they can do to implement a tough ordinance like RPV's! That would have been unthinkable three months
ago.
Jeff
J-18
Wireless Facility Permit Approval Process
Documentation and Recommended Guidelines
Jeff Calvagna
11 February 2016
K-1
Wireless Process Timeline
Shows key milestones and process cadence
needed to meet shot clock time limits
K-2
New Site Process Milestones (typical)
Pre -application i
Process step I Month i Month 2 I Month 3 I Month .I Month 5 Post permit approval
submittal
Installation proposed
Informal public notification (PW website)
Presubmittal conference (recommended)
Mode -up encroachment permit request and issuance
Formal written public notification
Mode -up period
Application submission, shot clock starts
Application completeness review
Application accepted or rejected
Application compliance review
Application compliance updates (recommended as needed)
Permit type determination
Director review (administrative permits)
Planning Commission hearing(s) (non -administrative permits)
Public comment period
Findings complete, permit recommendation
Window for appeals
Appeal hearing (if applicable)
Appeal public comment period (if applicable)
Final permit determination
Final site inspection (after installation completed)
NOTE: need to clarify if appeal must fall within
the shot clock window, rulings are contradictory
and ambiguous
These
be oor
ire not timer stricted but
in an expeditilDus manner
30 day
all residents vothin 500 feet s@nt at least S bul iness days before mock-up installation I
Complete within 14 (TBR) alfndar days of initiation
Shotclock paused until applicant resubmits
Complete within 14(TBR) calendardays initiation
Agreement topauseshotcloccduring u dates(if ne
1 Refer to Planning Commission If non -ad nistrative
ri r0 a7t'ifpubTic co m rr%nT-iaybe
findings are completed sooner -A
site mate* approved d4sign and compl es with
150 days maximum unless paused by applicant
delays or extended by written mutual agreement
K-3
Co -location Site Process Milestones (typical)
Process step
Installation proposed
Informal public notification (PW website)
Presubmittal conference (recommended)
Mock-up encroachment permit request and issuance
Formal written public notification
Mode -up period
Application submission, shot clock starts
11 -------------- ._ ._...... ..... -
Application completeness review
Application accepted or rejected
Application compliance review
Application compliance updates (recommended as needed)
Pre -application
Montle 1 Montle ? Month 3
submittal
These events are not time restricted but should
i.'
..........
pus manner
be completed in an expedit-
Permit type determination
--------
- ----------...._._._._..-------- ----
Director review (administrative permits)
Planning Commission hearing(s) (non -administrative permits)
Public comment period - - -1
Findings complete, permit recommendation
Window for appeals
.._._.. .-------------------------
Appeal
- -- - --- Appeal hearing (if applicable)
Appeal public comment period (if applicable)
Final permit determination
Final site inspection (after installation completed)
NOTE: need to clarify if appeal must fall within
the shot clock window, rulings are contradictory
and ambiguous
Post -permit approval
cationtoall residents within feet sent at leastSbusinessdaytbeforemock-up Installation
30 day pe
shorter if find
IV Completjewithin 7(TBRyicalendardaysdfInitiation forcolocation
. Shot cloCk paused until applicant resubmits
:--.----...._
Complete withm7tT T) calendar daysafinitiation for colocation
a
. Agreement to pausllishot clock during updates (if needed)
Re ertoPlanning Commissionifnon-administrative
are comweltea sooner
Ersuressite mat es approved design and complies with regulations
90 days maximum unless paused by applicant
delays or extended by written mutual agreement
M
Wireless Facility Application Process
Flow Diagram
Shows major process steps, key decision points,
and process step relationships
K-5
Wireless Facility Application Process
Recommended
Yes Mock-up Mock-up
Wireless .Complies with i Public
Presubmittal Encroachment Installation
site city ordinance notification
proposed conference and guidelines? Permit request sent and 30 day
and issuance period
No
J
Application
submitted
Application Yes Ordinance \No Request �\
Application Compliant Corrections
requirements compliance ► correction and �
met? % accepted assessment o ordinance? ' resubmission made? Yes
No Application
Yes No
rejected -
� ) � Non-compliant applications not
eligible for administrative permit
Yes public
-11110- Permit type Administrative m`0- comments to
determination Permit? / PW Director
See separate detail page � No
'efer to PC No
based on
findings? -
Yes
Director option to refer
applications to the
Planning Commission
PW Director Planning Commission or
Lo. makes permit City Council as appropriate
decision Yes Appeal authority
Decision �.--Do- makes permit
Public Planning Appealed? / decision
Planning
comments to Commission 1110_ Commission
Planning g hearin s makes permit No � Final permit
Commission decision de*jOn
See separate detail page
Permit Type Determination Detail
Per RPV Code 12.18.040(C)
Per RPV Code 17.02.040
Master No Location
Application 0- Deployment ► restriction
Plan? applies?
Yes Yes
Master
Deployment
Permit "
i
Per RPV Code 12.18 (all)
No View No Requires No
► protection ► ordinance
applies? exceptions'?----
Yes
xceptions?iYes Yes
Major Permit
Per RPV Code 12.18.200
• Local street per RPV general plan
• New pole, not a replacement
• Within 100 feet to residential structure (proposed)
Administrative
Permit
K-7
Permit Decision Detail
Per RPV Code 12.18.090
A
Application Met Yes Findings and Permit
findings ► required decision in ---P- approve
findings? writing decision
Per RPV Code 12.18.190
Findings and Permit
decision in —0� deny
writing .",.decision.,
Wireless Facility Application Process -
Shows process roles, responsibility, authority, and
accountability (RRAAs)
K-9
Director of Public Works (1/3)
• Roles
- Manage overall wireless application process within the required "shot clock" time period
- Provide permit approve/deny decision for administrative permits
• Responsibilities
- Accept installation proposals, encourage presubmittal conference
- Provide informal public notification via city website once site is proposed
- Conduct presubmittal conference if requested, provide applicant guidance regarding city
application requirements and site design and location regulations, engage assistance of
wireless technical consultant as needed
- Formally notify residents in writing within 500 feet of proposed site 5 business days prior to
mock-up installation
- Review proposed mock-up, issue mock-up encroachment approval as required, ensure
mock-up as constructed accurately represents proposed site, ensure mock-up is in place for
30 days
- Receive application and initiate shot clock with application submittal. Manage shot clock
including pauses as required by applicant delays or extensions by written mutual agreement.
- Perform application completeness assessment to ensure provided documentation meets
ordinance requirements. Complete assessment within 14 (TBR) calendar days for new
sites, 7 (TBR) days for co -locations. Engage assistance of wireless technical consultant in
assessment.
K-10
Director of Public Works (2/3)
• Responsibilities (cont'd)
- Accept or reject application based on completeness, rejections to be in writing
listing application shortfalls.
- Perform compliance and installation justification assessment to ensure proposed
site meets ordinance requirements. Complete assessment within 14 (TBR)
calendar days for new sites, 7 (TBR) days for co -locations. Engage assistance of
wireless technical consultant in assessment
- Work with applicant to correct non-compliant applications
- Determine wireless application permit type, notify applicant and Planning
Commission if type is non -administrative and public hearings are required
- If site is eligible for an administrative permit:
• Receive and consider public comments
• Determine if new findings or other or considerations warrant permit type change and/or
transfer to Planning Commission
• Make findings required by ordinance in writing with decision to accept or deny facility permit
- If site is not eligible for an administrative permit:
• Assist Planning Commission with site history and earlier assessment findings
- Perform post -installation inspection of approved site, ensure installation matches
approved design and complies with all applicable regulations.
K-11
Director of Public Works (3/3)
• Authority
- Mock-up encroachment permit approval
- Application completeness assessment, decision to accept application
- Application compliance assessment and permit type determination
- Administrative permit approve/deny decision
- Final inspection approval
• Accountability
- The People of Rancho Palos Verdes - ensure ordinance is fully applied and
enforced within required time limits to protect the city's aesthetics and character
and its resident's quality of life
- Applicant - ensure ordinance is executed in a fair and equitable manner within
required time limits
K-12
Planning Commission
• Role
- Manage and conduct public hearings as required to provide permit approve/deny
decisions within the required time constraints
• Responsibilities
- If site is not eligible for an administrative permit:
• Obtain relevant documentation, prior findings, and history from the Director of Public Works
• Receive and consider public comments
• Conduct public hearing(s) to review site design, installation justification, and resident comments
• Determine if any requested exception is warranted under the ordinance (if applicable)
• Make findings required by ordinance in writing with decision to accept or deny facility permit
- Conduct appeal hearings for administrative permits (if required)
• Authority
- Non -administrative permit approve/deny decision
- Administrative permit appeal approve/deny decision (if required)
• Accountability
- The People of Rancho Palos Verdes — ensure ordinance is fully applied and enforced
within required time limits to protect the city's aesthetics and character and its resident's
quality of life
- Applicant — ensure ordinance is executed in a fair and equitable manner within required
time limits
K-13
City Council
• Role
- Manage and conduct appeal public hearings as required to provide permit
approve/deny decisions within the required time constraints
• Responsibilities
- Conduct appeal hearings for non -administrative permits (if required)
• Authority
- Non -administrative permit appeal approve/deny decision (if required)
• Accountability
- The People of Rancho Palos Verdes - ensure ordinance is fully applied and enforced
within required time limits to protect the city's aesthetics and character and its
resident's quality of life
- Applicant - ensure ordinance is executed in a fair and equitable manner within
required time limits
K-14
Non -Utility Pole Wireless Facility
Architectural Guideline Recommendations
(Streetlights, traffic signals, etc.)
K-15
Non-utility pole Wireless Installation
Architectural Compatibility Guidelines (1/5)
• Panel -style antennas on an existing or replacement pole
- Antenna installation not to extend height of existing pole
- Maximum two antenna panels per pole
- Antennas located as close to top of pole as possible to minimize
conspicuousness
- Antenna panels not to exceed the following sizes, larger antennas require
technical justification demonstrating clear need:
• Antenna panel surface area not to exceed 2.0 square feet
• Antenna panel height not to exceed 2'6"
• Antenna panel depth not to exceed 7".
- Antenna to be installed flush mount against pole, back of antenna spacing to
pole not to exceed 2"
- Antennas to be professionally painted to match pole with durable, non -fading
paint, no on-site spray can painting
K-16
Non-utility pole Wireless Installation
Architectural Compatibility Guidelines (2/5)
• Pole -top antenna on an existing or replacement pole
- Antenna installation not to exceed the following sizes, larger antennas
require technical justification demonstrating clear need:
• Antenna extension not to increase pole height more than 2'4"
• Antenna diameter including any canister cover not to exceed existing
pole diameter at attachment point
• A narrow pole -top whip antenna with less that 2" diameter may
exceed height limit above but to not exceed 36" in height
- Antenna and/or enclosing canister to be designed to architecturally
match pole, design and attachment to appear as a natural extension of
the pole
- Antennas and/or canister to be professionally painted to match pole with
durable, non -fading paint, no on-site spray can painting
K-17
Non-utility pole Wireless Installation
Architectural Compatibility Guidelines (3/5)
• Cables and Routing
- Cables to be located fully within pole except for short length of RF cable(s)
for attachment to panel antennas
- Pole -top antenna installations to keep cables entirely within the
pole/antenna/canister assembly
- No service loops or excess cable outside pole
- Installation to utilize right angle adapters for panel antenna attachment when
feasible to minimize external cable length
- Installation to utilize minimally sized cable egress holes to reduce visibility
- Cables and egress grommets to be professionally painted to match pole with
durable, non -fading paint, no on-site spray can painting except small touch
ups as needed
- Cable routing between pole and support equipment to be fully underground
K-18
Non-utility pole Wireless Installation
Architectural Compatibility Guidelines (4/5)
• SignslDecals
- RF radiation warnings to be placed only next to antenna, not at
ground level
- RF radiation warnings installed to be no larger than minimum size
required by law
- All visible manufacturer stickers or labels to be removed from any
pole mounted equipment
- Any required site identification (owner, phone number, etc.) to be
placed in an inconspicuous fashion away from casual view
K-19
Utility pole Wireless Installation Architectural
Compatibility Guidelines (5/5)
• Support Equipment
- All support equipment to be located off the pole and hidden from sight.
Only antennas are allowed on the pole.
- All support equipment to be underground unless infeasible as determined
by the city. Underground equipment to use the minimal size, height, and
quantity of ventilation stacks required to meet air flow needs.
- If allowed by the city, above ground equipment to be screened from view
using methods architecturally compatible with the existing environment
(foliage, stone walls, etc.). Foliage to be maintained.
- If required, visible electric meters to be the smallest size possible and
placed inconspicuously and away from casual view
- Encourage use of passive (silent) equipment cooling methods to meet
ordinance noise requirements
K-20
Utility Pole Wireless Facility
Architectural Guideline Recommendations
(Wooden "telephone" poles)
K-21
Utility pole Wireless Installation Architectural
Compatibility Guidelines (1/4)
• Panel -style antennas on a utility pole
- Antenna installation to comply with all aspects of CPUC General Order 95
- Maximum two antenna panels per utility pole
- Surface area of each panel area not to exceed 2.0 square feet with antenna
depth not to exceed 7". Larger antennas require technical justification
demonstrating clear need.
- For antennas located below existing circuits on cross -arms, antenna spacing
not to exceed 32" from the utility pole surface
- Cross -arms are to be mounted orthogonal to the pole and level with respect
to the horizon. Cross arms are not to sag over time. Antennas to be
mounted to the cross arm parallel to the pole.
- For antennas located above all existing circuits, antennas are to be flush
mounted to the pole. Back of antenna to be spaced no more than 2" from
pole surface.
- Antennas to be professionally painted to match pole with durable, non -fading
paint, no on site spray can painting
K-22
Utility pole Wireless Installation Architectural
Compatibility Guidelines (2/4)
• Cables and Routing
Cable installation to comply with all aspects of CPUC General Order 95
- Cables to be routed through conduit mounted to utility pole surface. Conduit
diameter to be the minimum size required to accommodate cables.
- No service loops or excess cable outside of conduit. No free cable routing
outside of conduit unless as required for antenna attachment. Any free cable
routing to be fully supported and attached to structure such as cross arms or
mounting brackets.
- Installation to utilize right angle adapters for panel antenna attachment when
feasible to minimize unsupported cable length
- Conduit and visible cables to be professionally painted to match pole with
durable, non -fading paint, no on-site spray can painting except small touch ups
as needed
- Cable routing between pole and support equipment to be fully underground
K-23
Utility pole Wireless Installation Architectural
Compatibility Guidelines (3/4)
• SignslDecals
- Signage to comply with all aspects of CPUC General Order 95
- RF radiation warnings to be placed only next to antenna, not to be
placed at ground level unless required by law
- RF radiation warnings installed to be no larger than minimum size
required by law
- All visible manufacturer stickers or labels to be removed from any
pole mounted equipment
- Any required site identification (owner, phone number, etc.) to be
placed in an inconspicuous fashion away from casual view
K-24
Utility pole Wireless Installation Architectural
Compatibility Guidelines (4/4)
• Support Equipment
- All support equipment to be located off the pole and hidden from sight. Only
antennas, support structures such as cross arms, and conduit -routed cable are
allowed on the pole. Passive power dividers or couplers may be mounted flush with
cross arms if the location and cable routing is inconspicuous.
- All support equipment to be underground unless infeasible as determined by the city.
Underground equipment to use the minimal size, height, and quantity of ventilation
stacks required to meet air flow needs.
- If allowed by the city, above ground equipment to be screened from view using
methods architecturally compatible with the existing environment (foliage, stone
walls, etc.). Foliage to be maintained.
- If required, visible electric meters to be the smallest size possible and placed
inconspicuously and away from casual view
- Encourage use of passive (silent) equipment cooling methods to meet ordinance
noise requirements
K-25
w �
SAN FRANCISCO
PLANNING DEPARTMENT
1.0
Frequently Asked Questions about Wireless Facilities on
Wooden Utility and Wooden Streetlight Poles
1650 Mission St.
Suite 400
San Francisco,
CA 94103-2479
1.
Can the City prohibit the installation of wireless facilities on wood poles? No.
Reception:
Under State law, telecommunications carriers have a right to install wireless facilities
415.558.6378
on wood poles in the public right-of-way. The City, however, regulates the design,
location, and placement of those facilities through Article 25 of the Public Works Code.
Fax:
The City will also conduct an environmental review under the California
415.558.6409
Environmental Quality Act (CEQA).
Planning
Information:
• LINK: SF Government TV video of Board of Supervisors committee hearing on
415.558.6377
Article 25
2. Does the City prefer wireless facilities on wood poles? No. Our preference is for
wireless carriers to work with the community, and Planning Department on well-
designed and scale -appropriate rooftop -mounted facilities (example photo simulations
on pages 37 & 38, and a second example on pages 32 & 33); which are then
complemented by wireless facilities on steel poles. Wireless facilities on rooftops and
steel poles are generally less intrusive than wood pole -mounted facilities.
Breakdown of one type of Personal Wireless Services Pati I ity
on a wood pale awned by the Joint Pale Association
N
Primary Electricity Distribution
Electrical Transformers
Secondary Electrical or Communications Zone
Aalso known as the "coram zone,' which typi Eally features cables used
for cable TV, landline telephone, & various fiber-0ptic cable providers
Cobra Dead Streetlight operated by 'PG&E
Transmittine & Rec+eivine Antenna
Typically mounted an a sidea rm extensian either
midway down the pole (as shown), or an extension arm
directly above the top of the pole.
Equipment Enclosures
_. Cabinets or radio relay units which provide signs I processing, akin
to computers, and route power and signals through cables to the
antenna(sl. These enclosures do not transmit radio-frequencyr
aw AAA energy into the air around them.
-- Disconnect Switch
v Smallerendosure which @I lows line w€arkers, wireless carrier, or
Iemergency responders to shutdown power to the antenna.
11� Electric Meter
., Alllvws electric
utility ba monitor and bill wireless carrier #or
��� electricity usage_
L-1
Frequently Asked Questions about Wireless Facilities on
Wood Streetlight and Wood Utility Poles
3. Does the City's permit review address health concerns? Only in part. Under federal law
(1996 Telecommunications Act), the City is prohibited from denying a permit to construct
a wireless facility based on health concerns over RF emissions, provided that the
emissions from the facility comply with Federal Communications Commission (FCC)
standards. In order to assure compliance with FCC standards, the Department of Public
Health (DPH) reviews every application for a wireless facility and generally requires an
RF emissions study for each facility.
If the facility is approved and installed, then field testing is required to ensure the facility
meets the FCC's standards. Residents can ask for testing of their dwelling units at no
charge (free) by contacting the City (Planning, Public Works, or Public Health). Testing is
also required every time a permit is renewed, and every time the site is modified
(replacing/adding antennas or equipment), when those modifications may affect the
antenna(s) output.
The City has not seen a pattern of wireless facilities on wooden poles exceeding RF
emissions standards set by the FCC.
4. The Radio -Frequency (RF) report indicates the maximum RF exposure level at ground
level. Does the RF report take into account the RF exposure level on upper stories of
residences closer to the antenna?
When an RF report is prepared it takes into account the location, orientation, and output
of the antenna, relative to the nearest publicly -accessible areas, such as balconies, roof
decks, and nearby dwellings (including upper stories). The RF emissions at any publicly -
accessible area must also comply with the standards set by the Federal Communications
Commission (FCC). Field testing can be arranged at no charge for residents, including
from within their dwelling.
Antennas are typically placed either midway up the wooden pole (side-arm
configuration) or on top of a pole (top -mount). When antennas are placed in a side arm
configuration and the placement is also parallel and close to a building, the antennas are
typically setup in such a manner where the RF emissions are focused ("sectorized
pattern") up and down streets, and not directly toward the building behind the antenna.
In other words, this means that while the antenna enclosure may be round in shape, the
RF emissions are not necessarily sent in all directions for antennas next to a building.
Further information can be obtained from the Department of Public Health.
5. How can I get more information about my health concerns? A copy of the DPH report
for every proposed and existing wireless facility can be obtained from Patrick Fosdahl
at (415) 252-3094 or Patrick.Fosdahl@sfdph.org. In addition, general information about
the safety of wireless facilities can be found on the FCC's web site (link).
Link 1: First Sample DPH Radio -Frequency (RF) emissions, and noise review.
Link 2: Second Sample RF Emissions Report
SAN FRANCISCO
PLANNINQ NEPARTRRENT Updated December 2015
L-2
Frequently Asked Questions about Wireless Facilities on
Wood Streetlight and Wood Utility Poles
6. Is a permit required from the City? Yes. The Department of Public Works (DPW) issues
permits* for wireless facilities in the public right-of-way under Article 25 of the Public
Works Code -and Department of Public Works (DPW) Order No. 183440. As required by
Article 25, DPW refers applications for wireless permits to the:
Department of Public Health (DPH) for radio frequency (RF) emissions and noise
review (see item 11).
Planning Department staff for design, environmental (CEQA), and historic
preservation review. These facilities are not reviewed by the Planning Commission.
Recreation and Parks Department for review, if the facility is located near a public
park or plaza.
*Permits for wireless facilities on lands under the jurisdiction of the Port of San Francisco
are issued by the Port. For a map of Port jurisdiction visit
http://bsm.sfdpw.org/mapviewer/, choose the Jurisdiction box on the left, and Port of San
Francisco.
7. Does the City's permit review address the design of the facility? Yes. The Planning
Department works with each applicant for a wireless facility permit to consider a design
that is appropriate for the proposed location. Each design has its own challenges, such as
the overall height of a top -mounted antenna, or the potential for a side -mount antenna to
impair views. In addition, City staff continually engages with wireless carriers and
equipment manufacturers to seek designs that are less intrusive. Residents are
encouraged to discuss their concerns with the Planning Department's Wireless Planner,
Omar Masry, at (415) 575-9116 or Omar.Masry@sfgov.org.
• LINK: Design Preferences for Wireless Facilities on Wooden Poles
8. Who owns the wood poles? The majority of wood utility poles in San Francisco are
managed by the Joint Pole Association (JPA), which is an association of utility companies
and government agencies. Other wood poles are solely owned by Pacific Gas & Electric.
These are typically streetlight -only wood poles. The City and County of San Francisco is a
member of the JPA.
9. How many wireless facilities are there in San Francisco? As of April 2015, there are 383
existing wireless facilities on wood poles and approximately 700 wireless facilities
outside of the public right-of-way; primarily on building rooftops.
Map of 1,000+ existing wireless facilities in San Francisco (map does not include all of the
383 existing facilities mounted on wooden utility poles):
3,
New! Wireless Telecommunications Facilities "'A Aprtl2D15
Interactive map and Google Fusion Table displaying
locations of wireless / cell tower telecommunications facilities
(including cell phone masts) in San Francisco.
SAN FRANCISCO
PL-ANNINO DEPARTMENT Updated December 2015
L-3
Frequently Asked Questions about Wireless Facilities on
Wood Streetlight and Wood Utility Poles
10. Does the City receive revenue from the use of wooden utility poles the facilities? No.
But the San Francisco Public Utilities Commission has started to allow the installation of
wireless facilities on its (steel) street light poles, and the San Francisco Municipal
Transportation Agency is allowing the installation of wireless facilities on its (steel)
support poles. Both agencies will receive license fees for use of their poles. Link to
information about wireless facilities on steel light and transit poles.
11. Who do these facilities serve and what companies operate them? The wireless facilities
installed on utility poles are primarily intended to serve customers of wireless carriers
licensed by the FCC to operate in San Francisco including AT&T Mobility, Sprint, T -
Mobile, and Verizon Wireless. You might see signs on the utility poles that identify
companies such as Crown Castle (NextG), ExteNet Systems, and Mobilitie as the owner
of the facilities. These companies are authorized by the California Public Utilities
Commission (CPUC) to install and operate the wireless facilities on wooden poles on
behalf of their wireless carrier customers, but they still must obtain permits from DPW.
The CPUC is a distinct State agency which regulates various utilities throughout
California. The San Francisco Public Utilities Commission (SFPUC) is not a part of the CPUC.
12. Do the antennas generate noise? No. However, some, but not all wireless facilities
feature cooling fans within the equipment cabinets, in order to regulate the temperature
for the computers inside. If an existing system seems to be generating excessive noise,
please contact the Department of Public Health at (415) 252-3904. In some instances, steps
can be taken to reduce noise from cooling fans.
13. Once DPW has issued a wireless permit can other carriers install additional facilities
on the same wooden pole? Generally, there will only be one wireless facility on each
pole. CPUC regulations generally prohibit installing enough equipment on a utility pole
that would accommodate two separate wireless facilities. It is possible, however, that a
single wireless facility on a utility pole could serve more than on carrier.
14. Can carriers install new (wood) poles on my street to support their wireless facilities?
No. DPW will generally only allow new wood poles to replace existing poles. Pole
replacements are sometimes needed to ensure the pole can handle the load of the
equipment or for wider vertical separation between various utility facilities on the pole.
Planning staff continues to work with carriers and PG&E to seek less intrusive pole
height replacements.
15. Is the City planning to underground the wood poles? There are no pending proposals
for new neighborhood -wide undergrounding efforts. In the event an undergrounding
effort begins, the wireless carriers would be required (as a condition of their utilities
permit) to remove their facilities from the wooden poles.
16. What equipment do wireless carriers typically install on the wood poles? A typical
wireless facility on a utility pole consists of one or more antennas and one or more
equipment boxes. To meet CPUC requirements, the antennas will be mounted either at
the top of the pole or on side arms midway down the pole. The equipment boxes will be
attached to the pole. While every system varies, the equipment boxes typically include
an electric meter, a disconnect switch, and computers to control the antennas. Some
wireless facilities also feature an equipment box, on the same pole or a nearby pole, that
contains batteries used to provide temporary emergency power to the facility in case of a
power outage.
SAN FRAHGISCO
PLANNINO DEPARTMENT Updated December 2015
L-4
Frequently Asked Questions about Wireless Facilities on
Wood Streetlight and Wood Utility Poles
17. Can carriers change the equipment they installed on a permitted wireless facility? Yes.
Consistent with federal law, Article 25 of the Public Works Code generally allows
modifications of permitted wireless facilities, provided those modifications are within
certain limits.
18. Can I protest the installation of a wireless facility on my block? Yes. If you have
received notice that a wireless facility has been proposed to be installed on your block it
means DPW has tentatively approved the application. It also means that the Planning
Department, DPH, and possibly the Recreation and Park Department have recommended
that DPW grant the permit. While you may protest the issuance of the permit, you must
do so in the time set forth in the notice, which will be 20 days after the notice is
postmarked. DPW will not consider an untimely protest. If your protest is timely, DPW
will hold a hearing to determine whether to issue the permit. DPW will notify you of the
date and time for the hearing. You will be given the opportunity during the hearing to
explain the reasons for your protest. Contact information for protests can be found on
the DPW web site (link).
19. Can I appeal DPW's issuance of a wireless permit? Yes. Whether or not you protested
the permit you may appeal DPW's issuance of the permit to the Board of Appeals. As
with protests, you must file your appeal in the time required by City law, which is
generally 15 days after the permit is issued. More information about filing an appeal can
be found on the Board of Appeals web site (link). Only the environmental determination
may be appealed to the Board of Supervisors (link).
20. Why do the conditions of approval include a street tree? The Planning Department
typically requests a street tree to be provided by the wireless carrier for each facility
mounted on a pole within the public right-of-way; in order to screen the equipment. In
the event a tree cannot be planted due to conflicts such as existing trees, driveways or
utility infrastructure (link to location requirements), the wireless carrier would be
required to pay an in -lieu fee to be used by the SF Bureau of Urban Forestry.
21. Are wireless facilities on poles banned in Europe or other California cities, including
Berkeley? No. Wireless systems can be found on poles and buildings in Europe, and on
poles in other California cities, including Berkeley. Berkeley recently passed an ordinance
to require that when people purchase cell phones that they are made aware that the
mobile device itself generates radio-frequency (RF) emissions, and provide relevant
information (link). The ordinance is currently subject to legal challenge.
22. Do Personal Wireless Services Facilities on wooden poles also provide public Wi-Fi?
No. The term "Personal Wireless Services Facility" is the term used in Federal law. The
City does provide public Wi-Fi in many locations, typically using smaller antennas,
known as Access Points. City public Wi-Fi (network name: #SFWiFi) can be found on
Market Street (Castro Street to Embarcadero), in many City buildings, and in over 30 City
parks (link).
For more information on wireless facilities visit www.sf-planning.org/wirelessforms
€A?4 rR ^,C+s'O
PLANNING DEPARTMENT Updated December 2015
L-5
Frequently Asked Questions about Wireless Facilities on
Wood Streetlight and Wood Utility Poles
Common Terms:
DAS — Acronym for a Distributed Antenna System (also referred to as oDAS, with the
"o" standing for outdoor installations). A network of antennas and equipment enclosures
usually attached to poles in in the public right-of-way.
"Macro" Wireless Telecommunication Services (WTS) Facility - Typically three to
sixteen panel antennas mounted on the roof of a building, along with multiple equipment
cabinets. Permits reviewed by the Planning Department, Fire Department, DPH, and
Department of Building Inspection (DBI). Also subject to the City's Wireless Guidelines,
and Planning Code. Macro WTS facilities typically require Planning Commission
approval in most residential, neighborhood commercial, and mixed-use zoning districts.
"Micro" Wireless Telecommunications Services (WTS) Facility - Typically one or two
antennas mounted on the roof of a building. Permits reviewed by the Planning
Department, Fire Department, DPH, and Department of Building Inspection (DBI);
subject to the City's Wireless Guidelines, Planning Code, and review by the Zoning
Administrator. Example link.
Personal Wireless Services Facility Permit — Permit for wireless facilities mounted on
(typically wood or steel) poles in the public right-of-way. Permits administered by the
Department of Public Works and subject to Article 25 of the Public Works Code.
Public Right of Way (PROW) — Typically streets and sidewalks, where light and utility
poles are placed.
Small Cells — Similar to DAS, though a different communications network architecture.
Please note, that some of the square boxes
mounted on wood poles in San Francisco,
similar to the example photo to the right, are
used for various purposes.
Wireless carriers sometimes use these
cabinets to hold batteries to power some
wireless facilities in the event of a power
outage.
However, many of these boxes are used by
"wired" telephone, internet, and/or cable TV
providers such as Comcast, Sonic, or Wave.
The boxes are used to splice cables, or to
boost power to communication wires and
increase signal quality. These boxes do not
create radio-frequency emissions, and
generally do not generate noise.
Disconnect Switch
Electric Meter
or
L-6
Frequently Asked Questions about Wireless Facilities on
Wood Streetlight and Wood Utility Poles
Sonic
Internet Service
Provider installed
fiber-optic cable
splice box
SAN FRANCISCO
PLANNINQ DEPARTMENT Updated December 2015
Pole Top Example
Existing Personal Wireless Facility
mounted on a wooden streetlight
pole in the Richmond
neighborhood.
The antenna is found at the top of
the pole.
An electric meter and equipment
enclosure (computers) are near the
bottom of the pole. The computer
cabinets sometimes feature cooling
fans, but do not emit radio-
frequency emissions; which are
created by the antenna on top of
the pole.
L-7
7
Frequently Asked Questions about Wireless Facilities on
Wood Streetlight and Wood Utility Poles
Side Arm Examples
Existing Personal Wireless Services Facilities mounted on woodE
and Pacific Heights neighborhoods. The antenna is found on a
(above), or below the communications zone (lower wires in photo
enclosure (computers) are near the bottom of the pole.
n streetlight poles in the Inner Richmond
side arm extension below the streetlight
below). An electric meter and equipment
SAN FRANCISCO
PLANNING DEPARTMENT Updated December 2015
19
Frequently Asked Questions about Wireless Facilities on
Wood Streetlight and Wood Utility Poles
Utility Pole Diagram
Link to a report by the California
Public Utilities Commission (CPUC)
"A Brief Introduction to Utilitv Poles"
Side Arm Example
Existing Personal Wireless Facility mounted on a
wooden streetlight pole in the Sunset neighborhood.
The two (2) panel antennas are on a side arm.
An electric meter and equipment enclosure
(computers) are near the bottom of the pole.
This type of design is considered one that
significantly detracts from streetscapes; and new
proposals such as this would not typically be
approved.
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PLANNING DEPARTMENT Updated December 2015
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