CC SR 20160315 N - Ord 580 Wireless Telecommunications in ROWRANCHO PALOS VERDES CITY COUNCIL
AGENDA REPORT
AGENDA DESCRIPTION:
MEETING DATE: 03/15/2016
AGENDA HEADING: Consent Calendar
Consideration and possible action to adopt an ordinance for wireless telecommunica-
tions installations in the City's public rights-of-way
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1) Adopt Ordinance No. 580 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, P.E., Deputy Director of Public Works
REVIEWED BY: Michael Throne, P.E., Director of Public Works
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APPROVED BY: Doug Willmore, City Manager',/A,.
ATTACHED SUPPORTING DOCUMENTS:
A. Ordinance No. 580 (page A-1)
BACKGROUND AND DISCUSSION:
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 non -urgency ordinance was brought forth for first
reading on March 1, 2016 and was unanimously approved by the City Council. The
attached ordinance is presented for its second reading and adoption tonight.
The City's current regulations are very limited and lacking in needed criteria for
governing wireless installations in the public right-of-way (ROW). There are many
existing wireless facilities in the City, and the City has received many requests for
additional installations. In an effort to better manage ROW installations and protect the
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aesthetics of the City and adjacent property values, the proposed ordinance implements
all new regulations and procedures for wireless installations in the ROW.
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ORDINANCE NO. 580
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) feet 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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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 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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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
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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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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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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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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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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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