20160119 Late CorrespondenceNOEL WEISS, ESQ.
13700 Marina Pointe Drive, #922
Marina del Rey, California 90292
Telephone: (310) 822-0239
Facsimile: (310) 822-7028
Email Address: :.=:,_"'~''--::;_=--=""=="'~=:.!
January 19, 2016
Hand-Delivered at the RPV Council Meeting
MEMBERS OF THE RANCHO PALOS VERDES CITY COUNCIL
MAYOR KEN DYDA
MAYOR PRO TEM BRIAN CAMPBELL
COUNCILWOMAN SUSAN BROOKS
COUNCILMAN JERRY DUHOVIC
COUNCILMAN ANTHONY MISETICH
30940 Hawthorne Blvd.
Rancho Palos Verdes, California 90275-5391
RE: SUBMISSION OF CLAIMS OF VISTA VERDE HOMEOWNERS VS. CITY
OF RANCHO PALOS VERDES OCCASIONED BY CONTINUING PUBLIC
NUISANCE BEING COMMITTED BY GREEN HILLS CEMETERY & THE
CITY'S REFUSAL TO ABATE THE SAME -REQUEST FOR MEDIATION
WITH THE CITY OF RANCHO PALOS VERDES ALONE TO RESOLVE
CLAIMS VS. THE CITY
Councilmembers:
Background:
Chapter 17 .28 of the City's Cemetery Zoning Ordinance establishes a 40' set-back
development standard controlling where burials occur on cemetery property which
abuts a residential zoning district. (Section 17 .028.040(A)(2)). In 1991, Green Hills
sought and procured a variance under the City's variance criteria (Chapter 17 .64 of
your City's codes) which modified the standard 40' set-back distance to 16' from the
boundary of the Vista Verde Condo complex. Until November 17, 2015, the City was
in the process of abating the public nuisance created by Green Hills' having violated
the foregoing zoning limitation as a result of burials having been effectuated within
16' of the boundaries of the Vista Verde condominium property sometime after
January 1, 2010.
The prior Council on September 1, 2015, voted to approve the recommendation of
the City's Planning Commission, consistent with the legal opinion of the City's (then)
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OFFICE OF THE CITY CLERK
CARLA MORREALE, CITY CLERK
MEMBERS OF THE RANCHO PALOS VERDES CITY COUNCIL
January 19, 2016
Page Two
City Attorney, that Green Hills be required to procure an "after-the-fact" variance to
"legalize" the burials that lie within the 16' set-back that Green Hills had
promised to respect. This represented the good-faith effort on the part of the City to
abate the public nuisance created by Green Hills violation of the City's zoning law as
it relates to the lawful development standards attendant to the set-back distances on
burials.
On November 17, 2015, the prior City Council reversed itself, using the opinion of
the new City Attorney as "cover", thereby allowing Green Hills to "vary" from the
current zoning standard without having to procure a formal variance; this despite the
fact that Section 17.64.050(8) specifically contemplates a circumstance where an
"after-the-fact" variance can be issued to "legalize" what is otherwise unlawful
development activity; the granting of which is premised on a finding of "significant
error' by the City in the issuance of the development permit.
When the City reversed its September 1st decision to require the variance, apart
from ignoring its own laws, the City signaled its refusal to abate the public nuisance.
Apart from the public nuisance created by Green Hills (purposefully) having ignored
its responsibilities to the people and to respect the legal protocol attendant to how it
uses and develops its property, the City permitted Green Hills to construct a
Mausoleum in contravention of the City's development standards incorporated into
Conditions of Approval set out in Resolution No. 2007-33 adopted on April 24, 2007.
A special internal investigation commissioned by the City reported on March 11,
2015, that Green Hills had "acted in bad-faith through the development of the project
site ... [by] consistently [having] modified plans, submittals, changed its requests
and persistently ignored the City's requirements and approvals .... [together with
having exhibited a pattern of] noncooperation, misrepresentation, and disregard for
local laws .... "(Page 25 of the 'Administrative Investigation Prepared for the City of
Rancho Palos Verdes' authored by Steve Rodig of RCS Investigations and
Consulting, LLC. (Emphasis Added).
The result? The views of the owners of the Vista Verde Condominiums lying
immediately to the north-west have been destroyed in varying degrees, as noted on
the claims which are submitted with this letter. This has resulted in significant
property damage to the Vista Verde claimants as set out in detail in the individual
claims submitted with this letter, including, but not limited to, the depreciated value of
their property, and the loss of regular use of the common area pool and community.
Many (but not all) of the claimants now wish to relocate given the adverse impact
Green Hills' zoning violations have had on their property, their sensitivities, their
MEMBERS OF THE RANCHO PALOS VERDES CITY COUNCIL
January 19, 2016
Page Three
state of mind (in some cases), and their emotional and (in some cases) physical
well-being.
All of this has been exacerbated by the fact that Green Hills does internments on the
roof-top of the Mausoleum which further work to undermine the privacy rights of
those Vista Verde homeowners who now feel that these burials are occurring literally
in their living rooms. For many homeowners, this has caused serious emotional and
physical distress, and a complete loss of privacy. Again, these amounts are broken
down on the claims of each Vista Verde resident and homeowner attached to this
letter.
The assumptions used to calculate the property damage claims are clearly identified
and explained on Exhibit "B" to the claims. The underlying factual premise is that the
Vista Verde condo property is unique in that each condo has an "RPV View",
although located within the boundaries of the City of Lomita. No other property in
Lomita occupies such an important cache and characteristic.
Claims of Vista Verde Condo Owners & Residents
A summary sheet of the combined total of the claims ($16,597,985.63) is attached to
this letter, broken down by property damages ($9,238,217.63), personal injuries
($6,395,608.00), and financial damages ($964, 160.00). There is no punitive damage
component since the City cannot be held liable for punitive damages; but a mass
action will be initiated against Green Hills which will include a punitive damage
component given that the facts evidence a clear intent by Green Hills throughout the
process to have acted with fraud, oppression, and malice toward my clients (the
claimants herein).
Resolution of the Claims via Mediation Between the City and the Claimants
The claimants intend to file a mass action against Green Hills and vigorously pursue
that action with the aid of counsel who would be associated in for that purpose.
The only issue before this (new) Council is whether it chooses to "own" the action of
the prior Council in refusing to abate the on-going public nuisance. We believe that
in fairness to the City and to the City's taxpayers, it is appropriate, and proper to give
this new Council what amounts to a "second bite at the apple", with the goal and
objective of providing the City with the opportunity to mitigate its exposure to the
greatest extent possible. Accordingly, the claimants are prepared to settle their
claims against the City for a substantial discount. Discussions concerning the same
can and should progress through a mediation presided over by Judge (Ret.) Peter D.
MEMBERS OF THE RANCHO PALOS VERDES CITY COUNCIL
January 19, 2016
Page Four
Lichtman, whose time would be paid for by the City. These discussions should be
held at the earliest possible time.
If the City is prepared to engage in this process, the claimants are prepared to
immediately move forward as well. What is being proposed is a one-on-one
mediation solely between the City and the Vista Verde claimants. By engaging in this
process, the City will be positioned to cut its exposure significantly, both in terms of
defense costs and ultimate liability exposure.
This is a one-time offer. There will be no "third bite at the apple". If this new council
wishes to sustain and maintain the City's embrace with Green Hills going forward,
then so be it. In summary, if our proposal to mediate is rejected, it will not be
resurrected. Also to be noted is the fact that the claims are increasing at a daily rate
of $4,938.61; so there is every reason for the City to engage in a one-on-one
mediation with the Vista Verde claimants sooner, rather than later.
The City's "Love-Hug" With Green Hills via Green Hills' Self-Serving (Professed)
"Indemnity".
On or about January 18, 2016, the City Manager executed an Indemnity Agreement
in which Green Hills is given a virtual veto over the City's ability to mitigate its
exposure to my clients. Although signed by Green Hills, the signature is not dated
(as to Green Hills), so it is not clear when Mr. Resich signed the document.
The City Council has never approved this specific "Indemnity Agreement'. The
Agreement is extremely prejudicial to the City and is defective in several important
particulars, all of which merits its review by the RPV City Council prior to its being
deemed effective and operational; particularly given the fact that the City's
interaction with Green Hills has been continually marked by Green Hills ability to
"game" the system and "game" the City; all of which has, to date, worked to burden
and prejudice the City and deny the City the independence of judgment needed to
protect its citizens, its treasury, and to respect the social contract that exists between
the City and its residents.
Specifically, the "Indemnity Agreement" has a false factual recitation because it
omits any reference to the deceit and bad-faith practiced by Green Hills on the City.
As noted above, this has been documented in the City's own investigation report
dated March 11, 2015, commissioned in part to enable the City to identify the
problems attendant to the Green Hills unlawful conduct; the role the City played in
allowing the zoning violations to have occurred; and how the City itself was "played"
by Green Hills. This is a very important and relevant omission because it serves to
continue the City's practice of enabling Green Hills (a clear law-breaker) to continue
MEMBERS OF THE RANCHO PALOS VERDES CITY COUNCIL
January 19, 2016
Page Five
to "game" the system. The enforceability of the Indemnity is thus adversely
impacted. This assures (given Green Hills prior practices) litigation over the
enforceability of Green Hills' indemnity promise (such as it is).
The relevance of the omission goes directly to whether Green Hills possesses any
"vested rights" in the permits erroneously issued. The underlying question is whether
Green Hills can reasonably rely on those permits when it practiced bad-faith and
deceived the City throughout the process. The City Attorney's report to the Council
did not deal with this specific issue (a glaring omission, particularly in light of the fact
that the prior City Attorney came to the precise opposite conclusion -i.e. that Green
Hills had to apply for and procure a variance).
Before the City is bound by this kind of Indemnity Agreement, with such a glaring
factual omission, the City Council should formally pass on its contents; and should
do so in open session with the opportunity to take public comment on the issue
because, as noted below, unlike the standard indemnity agreement, this one creates
a special loophole and empowers Green Hills to a prejudicial degree by giving Green
Hills a virtual veto on the ability of the City to mitigate its exposure and save the
taxpayers substantial sums by settling separately with the Vista Verde claimants.
Paragraph 3.3 of the Indemnity Agreement states that the City "waives" its indemnity
rights if it settles separate with my people, regardless of whether or not Green Hills
approves of the City's action.
Why the City should give Green Hills that kind of power over the City's financial
affairs given the manner in which Green Hills has conducted itself is an open (and
serious) question that the Council needs to ask. I dare say that there is no other
such Indemnity Agreement the City has ever entered into where the City gives away
this kind of power to the third-party lndemnitor. It is obtuse and obscene on the face
of it. But again, if the City really wishes to provide this kind of protection to an
acknowledged law-breaker (Green Hills), then this Council has a responsibility to
formally "own" such a decision, but only after an open discussion and open vote on
whether the Council actually approves of this "Indemnity Agreement".
The "Indemnity Agreement" is also burdened by the fact that Green Hills' promise of
indemnity is unsecured. Given the amount at stake, Green Hills should secure its
indemnity promise at least to the extent of $200,000, by requiring that sum to be
paid up front to the City to be used by the City in satisfaction of Green Hills promise;
and then as the sum is paid down, replenished monthly (if necessary). As things
stand now, all this "Indemnity Agreement" represents is another basis for another
lawsuit where the City and Green Hills will continue to be engaged in controversy.
MEMBERS OF THE RANCHO PALOS VERDES CITY COUNCIL
January 19, 2016
Page Six
The purpose of Indemnity Agreements is to resolve litigation not promote litigation.
Then there is the issue of the Agreement's failure to identify Green Hills' status. Mr.
Resich signed as "Chairman of the Board" .... (again the signature is undated .. a
very important omission which could come back to haunt the City unless clarified.) In
these situations, the City signs last; and only after formal City Council approval to
the specific agreement has been procured ... This was not done in this case. The
question is "Chairman of the Board" of what? The Agreement is silent on the type of
entity identified as "Green Hills Memorial Park"; and while the agreement contains a
warranty of authority that Mr. Resich has the authority to sign the Indemnity
Agreement on behalf of Green Hills, that "warranty" is unsecured. Would it not be
more prudent and proper under these circumstances to refrain from reliance on a
simple "warranty" of authority? Instead, this Agreement should be accompanied by
and have attached to it a formal Resolution reciting that the Green Hills Board met,
considered, and approved the Indemnity Agreement, and Mr. Resich has been
authorized to sign it. What exists at this point is yet another potential bone of
controversy and contention where Green Hills again purposely creates confusion,
ambiguity, opaqueness, and potential deflection ... all part of what appears to be a
systematic (and ongoing) effort by Green Hills to "game" the system and infect every
single aspect of its dealings with the City with some kind of "head-fake".
As trustees of a public trust, each Councilmember owes the city and its citizens a
fiduciary duty to do what is right, fair, just, and proper given the circumstances.
There is no reason to assume that this new council wishes to be burdened with the
mistakes of the prior City Council. That is the reason why logic and fairness to the
City would dictate this City Council be given the opportunity to cap its exposure to
my clients and settle their claims at a substantial discount via a one-on-one
mediation. Again, if this new council rejects that opportunity, then so be it; but at
least we will have tried.
Commencement of Separate Writ of Mandate Action Against the City & Green Hills
to Set Aside the Council's Unlawful Action of November 17, 2015.
Finally, to be noted is that the claimants will pursue separate litigation to set aside
the entitlements unlawfully granted Green Hills on November 17, 2015. The action
will also seek to compel the City to require Green Hills to apply for a variance
consistent with the City's zoning laws, the opinion of the prior City Attorney, the
Planning Commission, and the prior Council in is September 1, 2015, vote. The
action will be filed and served within the 90 day deadline set out in Code of Civil
Procedure §1094.6(b). Barring a separate settlement with the City, any action to
MEMBERS OF THE RANCHO PALOS VERDES CITY COUNCIL
January 19, 2016
Page Seven
enforce the claims will be prosecuted as a separate mass action against both the
City and Green Hills.
Enclosures & Attachment
NW: nww
011916-L1. CM
cc: Clients
Summary of Claims Against the City of Rancho Palos Verdes by the Vista Verde Homeowners
Unit Name Total Damages Property Damage Personal Injury Claims Financial Damage Claims Daily Valuation of Personal
Claims Injury Damages
102 Deborah Landes & Linda Ott $ 779,442.78 $ 543,612.78 $ 220,000.00 $ 15,830.0C $ 100.00
103 Carl & Linda Eichert $ 511,496.93 $ 469,846.93 $ 36,000.00 $ 5,650.0C $ 45.00
104 Curt Wuestenhagen $ 562,198.00 $ 136,548.00 $ 420,000.00 $ 5,650.0( $ 519.00
105 Karl & Sharon Loveys $ 915,983.44 $ 554,553.44 $ 250,000.00 $ 111,430.0C $ 167.00
106 Julie Reynolds $ 628,341.74 $ 551,691.74 $ 71,000.00 $ 5,650.0( $ 88.00
107 Veronica Lawlor $ 930,881.47 $ 556,403.47 $ 362,108.00 $ 12,370.0C $ 200.00
108 Barbara Astbury Hughes $ 1,124,446.76 $ 618,616.76 $ 500,000.00 $ 5,830.0C $ 334.00
109 Lane Mayhew $ 762,052.00 $ 221,722.00 $ 111,000.00 $ 429,330.0C $ 667.00
110 Kwangsik and Young Kim $ 315,800.15 $ 260,150.15 $ 50,000.00 $ 5,650.0C $ 56.00
111 Nevada E Prewitt $ 1,107,705.00 $ 446,875.00 $ 650,000.00 $ 10,830.0C $ 593.61
112 Anthony & Attilia Terralavoro $ 209,821.00 $ 104,171.00 $ 100,000.00 $ 5,650.0( $ 56.00
114 Lisa Pierson $ 440,731.52 $ 257,381.52 $ 177,700.00 $ 5,650.0C $ 197.00
201 Matthew Geier $ 343,160.37 $ 177,510.37 $ 160,000.00 $ 5,650.0C $ 178.00
202 Linda Spears $ 826,389.20 $ 570,739.20 $ 250,000.00 $ 5,650.0C $ 167.00
203 Brian & Lindsay Carter $ 783,551.07 $ 425,901.07 $ 250,000.00 $ 107,650.0C $ 170.00
204 Joanna Reed Jones $ 805,625.00 $ 474,975.00 $ 325,000.00 $ 5,650.0C $ 167.00
205 Lorraine Brown $ 715,708.93 $ 558,628.93 $ 100,000.00 $ 57,080.0C $ 111.00
206 Elmer Scheel $ 1,213,660.00 $ 590,010.00 $ 618,000.00 $ 5,650.0C $ 678.00
207 Nadejda Gueorguieva $ 856,234.27 $ 580,404.27 $ 250,000.00 $ 25,830.0C $ 278.00
208 Richard & Matthew Martin $ 1,916,341.00 $ 545, 711.00 $ 1,244,800.00 $ 125,830.0C $ -
210 Rhys William $ 848,415.00 $ 592,765.00 $ 250,000.00 $ 5,650.0C $ 167.00
Totals $ 16,597,985.63 $ 9,238,217.63 $ 6,395,608.00 $ 964,160.00 $ 4,938.61
NOTE: THIS RESOLUTION PASSED BY LAUSD BOARD OF EDUCATION ON JANUARY 12, 2016.
RESOLUTION SUPPORTING THE RELOCATION OF THE RANCHO LPG FACILITY
LOCATED IN SAN PEDRO, CALIFORNIA
Whereas, The United States Department of Labor's Occupational Safety and Health
Administration (OSHA) states that butane poses health factors causing the following
potential symptoms: drowsiness, narcosis, asphyxia, cardiac arrhythmia, and frostbite
from contact with liquid;
Whereas, The Centers for Disease Control and Prevention describes butane as a
colorless gas with gasoline-like or natural gas odor and lists butane as a chemical
hazard that targets the central nervous system through exposure from inhalation and/or
contact with skin or eyes;
Whereas, Butane is a gas that is typically shipped as a liquefied gas under its vapor
pressure, which makes it easily flammable and under prolonged exposure to fire or
intense heat the container may rupture violently;
Whereas, In 1973, Petrolane developed the property located at 2110 N. Gaffey St. San
Pedro, CA 90731 into a storage facility for liquid petroleum gas, which currently stores
butane and small amounts of propane;
Whereas, the Facility sits adjacent to the Palos Verdes earthquake fault which was not
identified when the Facility was originally constructed;
Whereas, In 2008, Rancho LPG Holdings LCC purchased Petrolane;
Whereas, Rancho LPG stores butane and small amounts of propane at the Facility in
two 12.5 million-gallon refrigerated tanks and five 60,000-gallon horizontal storage
tanks;
Whereas, The Facility is regulated by many local, state and federal enforcement
agencies including the U.S Environment Protection Agency (EPA), U.S. Department of
Occupational Safety and Health Administration, U.S . Department of Homeland Security,
U.S. Department of Transportation, U.S . Environment Cal/EPA, California Emergency
Management Agency, California Department of Toxic Substances Control, the South
Coast Air Quality Management District, the Los Angeles County Fire Department , the
City of Los Angeles Fire Department, the Los Angeles Police Department, and the City
of Los Angeles Bureau of Sanitation Industrial Waste Management Division, among
several other agencies;
Whereas, Federal, State and local agencies have established regulations governing
such facilities in the interest of protecting the public against excessive risk of injury,
illness, or death, whether the result of normal operations, or by the occurrence of
I
industrial accidents; 11.tbl Jc_ RECEIVED FROM ~::s;.a._.:~..:.=;;;;.._-
~~11b i\4'-AND MADE A PART OF TI1:flECORD.}~ ~HE C..0fl ~J \Cf\.i-COUNCIL MEETING OF~ 111 ~Q/b
OFFICE OF THE CITY CLERK
CARLA MORREALE, CITY CLERK
Whereas, The operation of the Facility predates the more stringent health-protective
land use statutes enacted in recent years and it may be operating under conditional use
permits that require periodic review to ensure the safety of continued operations;
Whereas, Three LAUSD educational sites are in close proximity of the Facility including
Taper Avenue Elementary School, Johnston Community Day School, and the Vic and
Bonnie Christensen Science Center;
Whereas, the proximity of the Facility to the surrounding schools and community may
pose a hazard in the case of a spill potentially causing a vapor fire, pool fire and boiling
liquid evaporative vapor explosion (BLEVE).
NOW THEREFORE BE IT RESOLVED THAT:
1. The Board of Education of the Los Angeles Unified School District (Board)
hereby supports the efforts for the relocation of the Facility to an area where it
does not pose any harm to students and their families.
2. The Board directs OEHS, in coordination with OGG, to work in collaboration with
regulatory agencies to monitor and comment on any new requests for permits or
modifications to any existing permits or land-use entitlements for the Facility; and
3. The Board directs the Superintendent to immediately submit this Resolution to
the City Officials, as well as other Federal, State and local agencies to request
their support in relocating the Facility.
2
[STATE LANDS COMMISSION REQUIRED TO MAKE INDEPENDENT FINDING
UNDER CEQA PROTOCOL THAT MINING ACTIVITIES ON PUBLIC TRUST LANDS
IS PROPER USE OF PUBLIC TRUST PROPERTY APART FROM CEQA WORK-UP ..
FAILURE TO HAVE DONE SO VIOLATED PUBLIC TRUST DOCTRINE -
RELEVANCE TO PLAINS/RANCHO SITUATION? AN INDEPENDENT EVALUATION
OF PLAINS/RANCHO'S USE OF (PUBLIC TRUST) RAIL LINE TO TRANSPORT
BUTAN E THROUGH THE PORT FOR PLAINS/RANCHO'S PRIVATE PURPOSES IS
REQUIRED -CASE SUPPORTS NEED FOR SLC (AND ITS DESIGNATED "AGENT"
THE CITY HARBOR COMMISSION TO UNDERTAKE A PUBLIC TRUST ANALYSIS
OF PLAINS/RANC HO'S USE OF PORT'S RAIL FACILITIES FOR
PLAINS/RANCHO'S SOLE PRIVATE COMMERCIAL PURPOSES-DITTO THE
RAILROAD (PHL -PAC IFIC HARBOR LINE) -HAVING FAILED TO DO SO , THE
HARBOR COMMISISON AND THE CITY IS IN VIOLATION OF THE PUBLIC TRUST
DOCTRINE -WHICH MEANS THAT THE PLAINSIRANCHO'S CURRENT USE OF
THE PHL (PORT) RAIL FACILITIES FOR PRIVATE USE IS UNLAWFUL AND
SHOULD CEASE PENDING THE REQUISITE DETERMINATION THAT THE RAIL
USE IS CONSISTENT WITH THE PUBLIC TRUST DOCTRINE]
SAN FRANCISCO BAYKEEPER, INC. Petitioner and Appellant,
v .
CALIFORNIA STA TE LANDS COMMISSION, Defendant and Respondent;
HANSON MARINE OPERATIONS, INC. et al., Real Parties in Interest.
No . A l42449 .
Court of Appeals of California, First District, Division Four.
Filed November 18, 2015.
San Francisco Baykeeper, Inc., George Torgun, Sejal Choksi -Chugh, Erica Maharg,
Environmental Law Foundation, James R. Wheaton, Counsel for Appellant.
David R. Owen, Professor of Law and Associate Dean for Research, University Maine School o f
Law, Counsel for Amicus Curiae Law Professors on Behalf of Appellant.
Eric Biber, Professor of Law, Universi ty of California, Berkeley School of Law, Alejandro E .
Camacho, Professor of Law, Director, Center for Land Environment, and Natural Resources
Un iversity of California, Irvine, Joseph F .C . DiMento, Professor of Law Univers ity of
California, Irvine, Holly Doremus, James H. House and Hiram H . Hurd Professor of
Environmental Regulation; Co-Director, Center for Law Energy & the Environment; Director,
Environmental Law Program , University of California, Berkeley School of Law, Tim Duane,
Visiting Professor of Law, University of San Diego School of Law, Professor of Env ironmental
Studies, Un iversity of California, Santa Cruz, Daniel A . Farber, Sho Sato Professor of Law, Co-
Director, Center for Law. Energy & the Environment, University of California, Berkeley School
of Law, Brian Gray, Professor of Law University of California, Hastings College of Law, Sean
B. Hecht, Co-Executive Director, Emmett Institute on Climate Change and the Environment,
IV .
PUBLIC TRUST DISCUSSION
A. Is sue on Appeal
As our factu a l summary refl ects , th e re is no di s pute that th e proj ect authori zes th e
pri va te use of la nd that is protecte d by the public tru st. "When California became a
state in 1850 it succ eeded to sovereign ownership of various tidelands and
submerged lands under the terms of the common law trust doctrine." (Western Oil
& Gas Assn. v. Sta te L ands Com . (1980) 105 Cal.App.3d 554 , 562 (Western Oil &
Gas).)
B. Guiding Princ iples
"The publ ic tru st doctrine , whi ch is traceabl e to Rom a n law , rests on severa l re lated
co nce pts. Firs t, t hat the pu bli c rights of co mmerce, navi gation, f is he ry , a nd rec rea tion
are so in trin sica lly im po rt a nt and vital to f re e citi ze ns th at their unfette red availability to
a ll is essentia l in a democ rat ic so ci ety . [Ci tatio n .] 'An all ie d pr inciple hold s th at certa in
in terests are so pa rt ic ul arly t he gifts of natu re 's bounty that th ey ought to be reserv ed for
th e wh o le of th e popul ace .... [1l] Fi nally, th ere is ofte n a recognitio n, a lb e it o ne that has
bee n irre g,ul a r~yy erceiv e d in legal do ct rin e , rtha t c ertain uses have a p eculiarly public
nature that makes their adaptati o n to private us e i nappropriate.' ... [Citation .]"
(Zack 's, Inc. v. City of Sausalito (2008 ) 165 Cal.App.4th 1163. 1175-1176, fn . omitted
(Zack's).)
T he United States S upre m e Court announce d th e public tru st doctrine in llfinois Central
Railroad v. Illinois (1892 ) 146 U .S 387 (fflinois CentraD , whi c h is still the prim ary
auth o rity e lu c idating its fun ction a nd purpose. (National Audubon Society v. Superior
Cowt (1983) 33 Cal.3d 419, 437 {National Audubon).) llfinois Cen tral establis hed th at
"th e titl e whi c h a St at e holds to land und e r navi gab le wate rs is ... held in trust for the
people of the State, in order that thev may enjoy the navigation of the waters and
carry on commerce over them, free from obstruction or interference by private
parties; that thi s tru st devolving upon th e St at e in th e pu bli c inte rest is on e whi ch
cann ot be reli nqui shed by a transfer of the prope rty ; th at a State ca n no more abdi ca te
it s trust over such property , in which th e who le peo pl e are interested, s o as to leave it
unde r th e control of private parti es, th an it ca n abdi cate its po lice powers in th e
administrati on of gove rnm e nt and the prese rvation of th e pea ce ; and th at the tru st und er
whic h such la nds are he ld is gove rnm ental so that th ey can not be ali e nated, exce pt to
be used for the improvement of the public use in them-" (Long Sault Development Co . v.
Ca//(1916) 242 U .S . 272, 278-279 .)
"While the public trust doctrine has evolved primarily around the rights of the public with
respect to tidelands and navigable waters , the doctrine is not so limited." (Center for
Biological Diversity. Inc. v. FPL Group. Inc. (2008) 166 Cal.App.4th 1349. 1360 (Center
for Biological Diversity).) More than "'a set of rules about tidelands."' or "'a restrai nt on
alienation by the government,'" this doctrine functions '"largely as a public property right
of access to certain public trust natural resources for various public purposes.'
[Citation.]" (Ibid.) Thus, the doctrine protects "expansive public use of trust property."
(Ibid.)
The range of public trust uses is broad, encompassing not just navigation,
commerce, and fishing, but also the public right to hunt, bathe or swim. (Citv of
Berkeley v. Superior Court (1980) 26 Cal.3d 515 . 521 (City of Berkeley).) Furthermore,
the concept of a public use is flexib le, accommodating changing public needs. (National
Audubon. supra . 33 Cal.3d at p. 434 .) For example, an increasingly important public use
is the preservation of trust lands "in their natural state, so that they may serve as
ecological units for scientific study, as open space , and as environments which provide
food and habitat for birds and marine life, and which favorably affect the scenery and
climate of the area.' [Citation.]" (Id. at pp. 434-435.)
The public trust is also "more than an affirmation of state power to use public property
for public purposes. It is an affirmation of the duty of the state to protect the people's
common heritage of streams, lakes, marshlands, and tidelands , surrendering that right
of protection only in rare cases when the abandonment of that right is consistent with
the purposes of the trust." (National Audubon. supra. 33 Cal.3d at p . 441 .) Jffi us. t!1
i tate or trustee has "an affirmative duty to take the public trust into account i
'he planning and allocation of [trust/ resources, and to protect public trust use
henever feasible.'" (Id. at p. 446, fn. omitted.)
"Where ... the propriety of a governmental relocation of trust land from one public use
to another is placed in question, the seminal opinion in Illinois Central, supra. 146 U .S .
~makes clear that courts should 'look with considerable .skepticism upon an!I)
overnmental conduct which is calculated either to reallocate that resource td
more restricted uses or to subject public uses to the self-interest of private
parties.' [Citation.] Trust lands may be devoted to purposes unrelated to the trust if
such purposes are incidental to and accommodate trust uses but ... !th ere are limits.
on the legislative authority to free use of trust land for nontrust purposes."
(Zack's . supra. 165 Cal.App.4th at p . 1176. italics omitted.)
There is no set "procedural matrix" for determining state compliance with the public
trust doctrine. (Citizens for East Shore Parks. supra, 202 Cal.App.4th at pp . 576-577 .)
However, "[a]ny action which will adversely affect traditional public rights in trust lands
is a matter of general public interest and should therefore be made only if there has
been full consideration of the state's public interest in the matter; such actions should
not be taken in some fragmentary and publicly invisible way. Only with such a safeguard
can there b[e] any assurance that the public interest will get adequate public attention.'
[Citation.]" (Zack's. supra. 165 Cal.App.4th at pp . 1188-1189.)
C. Analysis
rincitJfes summarized above. we conclude that the SL C's authori
o approve private sand mining teases of public trust property carries with it an
'affirmative duty to take the public trust into account ... and to protect public
trust uses whenever feasible-" (National Audubon. supra. 33 Cal.3d at p . 446. fn.
omitted.) The appellate record, jointly prepared by the parties, does not demonstrate
that the SLC fulfilled that duty in th is case.
The SLC acknowledges that it did not make any findings about this project under the
public doctrine , implicitly conceding that it did not consider whether Hanson's mining
project is a proper use of trust property. Nevertheless , the S LC takes the position that it
did not violate the public trust doctrine for three reasons : First, sand mining is
indisputably a public trust use of sovere ign land ; second , even if the mining leases are
not a public trust use, the public tru st doctrine does not apply to mineral extraction
leases which do not permanently ali enate the trust res ; and finally , CEQA review
eliminates the obligation to consider wh ether a project violates the public trust. We will
separately address the flaws in each of these theories.
1. Private Sand Mining Is Not Per Se a Public Trust Use
The SLC contends that it was not required to consider whether the project violates the
public trust doctrine because sand mining is categorically a public trust use and , in
National Audubon, supra . 33 C al.3d 419 . our Supreme Court expressly confirmed that
the public trustee has sole discretion to prefer one public trust use over any other.
In National Audubon. supra . 33 Cal.3d 419 . plaintiffs argued that permits authorizing the
Department of Water and Power of the City of Los Angeles to divert water from Mono
Lake violated the public trust doctrine. The Attorney General defended the permits as a
valid public trust use of the lake property which met the water needs of Los Angeles
residents , and argued that the public trust doctrine did not prevent the state "from
choosing between trust uses." (Id. at p. 440.) The National Audubon court rejected this
argument and remanded the case-for administrative review under the public trust
doctrine. In reaching its decision, our Supreme Court affirmed the state's authority to
chose between trust uses, but it rejected the Attorney General's improper attempt to
"maximize state power under the trust" by adopting an overbroad concept of trust uses
that would encompass "all public uses , so that in practical effect the doctrine would
impose no restrictions on the state's ability to allocate trust property." (Ibid.) Although
the court did not articulate a single test for identifying a valid public trust use, it
approved authority holding that trust uses "relate to uses and activities in the vicinity" of
the trust property at issue. In doing so, it explicitly rejected the idea that the state is free
to alienate trust property solely because the grant would serve "some public purpose,
3
applicable land use plans and policies. The record citations that the SLC has provided
to us consist of excerpts from the Final EIR finding that, without mitigation, the project
will conflict with policies in appl icable land use plans which require that "sand mining
operations be conducted in an environmentally sound manner, that agencies protect
public trust resources, and that sand mining operations be carried out in a manner that
minimizes interfe rence with critical wildlife activities ... The SLC concluded , however, that
mitigation measures for other impacts of the project "would also reduce conflicts with
applicable land use plans and policies to a less-than-s ignificant level," and therefore, no
additional mitigation would be required. These record citations do not demonstrate the
SLC fulfilled its public trust obligations during the env ironmental review process. To th e
contrary, the brief acknowl edgment of the obligation of other age ncies to protect public
trust resources reinforces our conclusion that the SLC did not implicitly consider its own
obligations under the public trust doctrine as part of its CEQA review of this project.
There may be so me activities which unquestionably constitute public tru st uses and, by
the same token, there may be activities which are so obviously consistent with the
public trust so as to require only a cursory consideration of the doctrine. However,
private commercial sand mining in the San Fran cisco Bay does not fall into either
of those categories . The length and breadth of appellate argume nt about the nature
and effects of this activity belies the claim each party makes that the law is decisively in
its favor. This debate could have been minimized if not avoided had the SLC addressed
the public trust doctrine before app roving the project. In any event , on this record we
cannot find that the SLC fulfilled its obligation to conduct a public trust analysis in the
CEQA process . Therefore , a remand for that purpose is required.
v.
DISPOSITION
The order denying the petition for writ of mandate is affirmed to the extent it finds that
the Final EIR com£!ies with CE QA. /that part of the trial court's order finding 7fia
rth'e SLC complieiJ with the public trust doctrine is hereby reversed, and the trial
court is directed to grant the writ of mandate to that extent consistent with this opinion.
RIVERA, J. and STREETER, J, concurs.
ill Statutory references are to the Public Resources Code unless otherwise stated.
0 The San Francisco Offshore Bar (B ar) "is an area directly west of the Golden Gate
Bridge wh ere sand and sediments flow through at high velocities from the narrow gate
into a wide and shallow horse-shoe shaped plateau wh ere sediments are deposited ...
QJ "A statement of overriding considerations is required '"[i]f approval of the project will
result in significant environmental effects which ·are not at least substantially mitigated .
. ""[Citations.] Such statement provides the agency's reasons for proceeding with th e
project despite its unavoidable en vironmental risks. [Citation.]" (Citizens for East Shore
10
APN: 7 412026006
PIN#:024B197 6
Block: None
Lot: A
Arb: None
City of Los Angeles
Department of City Planning
lains Property Outlined In Blue ~ -
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General Plan: Light Manufacturing, Heavy Manufac _,t __ ,
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Streets Copyright (c) Thomas Brothers Maps, Inc.
CITY OF RANCHO PALOS VERDES
TO:
FROM:
DATE:
SUBJECT:
HONORABLE MAYOR & CITY COUNCIL MEMBERS
CITY CLERK
JANUARY 19, 2016
ADDITIONS/REVISIONS AND AMENDMENTS TO
AGENDA** (AMENDED Agenda for Interviews)
Attached are revisions/additions and/or amendments to the agenda material presented
for tonight's meeting:
Item No.
2
Respectfully submitted,
Description of Material
Revised Ordinance; Emails from: Connie Semas; Robert
Mikami; John Freeman; Alexander Pechloff
c tPa/l~~-
carla Morreale
**PLEASE NOTE: Materials attached after the color page(s) were submitted
through Monday, January 18, 2016**.
W:\AGENDA\2016 Additions Revisions to agendas\20160119 additions revisions to agenda.doc
From:
Sent:
To:
Cc:
Subject:
Attachments:
Michael Throne
Tuesday, January 19, 2016 2:10 PM
Carla Morreale; Teresa Takaoka
Nicole Jules; Christy M. Lopez
FW: Red lined Version of WTF ordinance for Tonight
RPV -ROW Wireless Telecommunications Ordinance.DOCX
Please include the attachment as late correspondence from the City Attorney's office. Thank
you.
1
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 ~eity's Municipal Code to provide
uniform and comprehensive standards and regulations, along with permit requirements, for the
installation of wireless telecommunications facilities in the ~eity's public right-of-way (ROW).
(ii) The ~eity currently has approximately 140 wireless installations in the ROW.
The ~eity 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 ~eity CeGouncil 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 ~eity CeGouncil 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 4 7 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 Clarifj; 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 ~eity
cannot adopt a moratorium ordinance to toll the time period for review, even when needed to
allow the ~eity 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. § l.40001(c)(3); 2014 Report and Order,
29 FCC Red. at 219, 265.
Page 1 of32
01203.0006/276114.7
(vi) State and federal law have changed substantially since the ~sity last adopted
regulations for wireless installation in the ROW. Such changes include modifications to "shot
clocks" whereby the Csity must approve or deny installations within a certain period of time.
The ~sity is in immediate need of clear regulations for wireless installations in the ROW given
the number of pending or anticipated applications and legal time lines upon which the ~sity must
act.
(vii) The ROW in the ~sity 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 of the city's property valuesin the community, as well as the values of
prope1iies within the Csity, and to ensure that all wireless facilities are installed using the least
intrusive means possible.
(ix) On January 19, 2016, the ~sity C€Gouncil of the ~sity 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 ~sity staff and all
interested parties regarding the proposed amendments.
(x) The ~eity ~souncil finds and determines as follows:
1. The Federal Telecommunications Act of 1996 preempts and declares
invalid all state rules that restrict entry or limit competition in both local and long-distance
telephone service.
2 The California Public Utilities Commission ("CPUC") is primarily
responsible for the implementation of local telephone competition and it issues certificates of
public convenience and necessity to new entrants that are qualified to provide competitive local
telephone exchange services and related telecommunications service, whether using their own
facilities or the facilities or services provided by other authorized telephone corporations.
3. Section 234(a) of the California Public Utilities Code defines a "telephone
corporation" as "every corporation or person owning, controlling, operating, or managing any
telephone line for compensation within this state."
4. Section 616 of the California Public Utilities Code provides that a
telephone corporation "may condemn any property necessary for the construction and
maintenance of its telephone line."
5. Section 2902 of the California Public Utilities Code authorizes municipal
corporations to retain their powers of control to supervise and regulate the relationships between
a public utility and the general public in matters affecting the health, convenience, and safety of
the general public, including matters such as the use and repair of public streets by any public
Page 2 of32
01203.0006/276114.7
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:
SECTION 1. The facts set forth in the Recitals, Part A of this Ordinance, are true and
correct.
SECTION 2. Environmental Review
A. The CeGity CeGouncil finds that, pursuant to CEQA Guidelines, section
1506l(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 £Gity's processing procedures into compliance with existing State and federal law. The
mere synchronization of these timelines into the CeGity'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.
Page 3 of32
01203.0006/276114.7
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.
th-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 12, Title 13 is hereby repealed.
SECTION 4.
Section 13.12.320
SECTION 1s. 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,
Page 4 of32
01203.0006/276114.7
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 1s 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.
Page 5 of32
01203.0006/276114.7
"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.
Page 6 of32
01203.0006/276114.7
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:
12.18.040
1. Amateur radio facilities;
2. Over the Air Reception Devices ("OT ARD") 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.
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 pP.lanning
_g_Gommission approval unless otherwise provided for in this chapter.
B. Administrative Wireless Telecommunications Facilities Permit.
Page 7 of32
01203.0006/276114.7
1. An Administrative Wireless Telecommunications Facilities Permit, subject to the
.Q.-9irector'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 prov1s10ns in this chapter
without need for an exception pursuant to section 12.18.190.
2. The .Q.-9irector may, in the .Q.-9irector's discretion, refer any application for an
Administrative Wireless Telecommunications Facilities Permit to the Qfllanning
fGommission for approval.
3. In the event that the .Q.-9irector determines that any application submitted for an
Administrative Wireless Telecommunications Facilities Permit does not meet the
criteria this Code, the .Q.-9irector shall convert the application to a Major Wireless
Facilities Permit application and refer it to the .Q.P.lanning fGommission.
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 Q.P.lanning fGommission 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 gPlanning fGommission 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.
Page 8 of32
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-
12.18.050
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.
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. AU-No applicant~ seeking to install-a wireless antennas telecommunications
facility shall oot-seek_-an encroachment permit for fiber or coaxial cable onlyan
encroachment permit to install fiber only . Applicants and subsequently seek to
install antennas and accessory equipment pursuant to a wireless
telecommunications facility permit. The applications for all installations in the
right of way shall simultaneously request fiber installation or other cable
installation when applying for an wireless telecommunications facility
~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 .
Page 9 of32
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 ffi-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_,_-:--Afls 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 _g_Gouncil
and ittn 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.
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01203.0006/276114.7
a. Applicant shall obtain an encroachment permit before installing the temporary
mock-up, and must remove the temporary mock-up within five (5) calendar
days of receiving a written notice to remove from the director.
b. When seeking the encroachment permit, the applicant shall provide address
labels for use by the city in noticing all property owners within 500 feet of the
proposed installation. The city shall mail a notice regarding installation of the
mock-up at least five (5) business days prior to the installation.
c. The mock-up shall demonstrate the height and mass of the facility, including
all interconnecting cables. The applicant shall not be entitled to install the
facility it intends to-Be installea 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 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 QPlanning £Gommission approval shall require notice and a public
hearing. Notice of such hearing shall be provided in accordance with Code section
17.80.090. The QPlanning fGommission may approve, QL_conditionally approve1
or deny an application only after it makes the findings required in section
12.18.090.
2. Director's Decision Notice. The gl::)irector may approve, QLConditionally approve
or deny,_ -an application only after it makes the findings required in section
12.18.090. Within five days after the gl::)irector approves or conditionally
approves an application under this chapter, the gl::)irector 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.
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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 .Q-9irector or
the 12.Planning g_Gommission 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
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.
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01203.0006/276114.7
a. Facilities shall be located consistent with section 12.18.200 unless an
exception pursuant to section 12.18.190 is granted.
b. Only pole-mounted antennas shall be permitted in the right-of-way. All other
telecommunications towers are prohibited, and no new poles are permitted
that are not replacing an existing pole. (For exceptions see subparagraph (h)
below and sections 12.18.190 and 12.18.220.)
c. Utility Poles. The maximum height of any antenna shall not exceed forty-eight
( 48) inches above the height of an existing utility pole, nor shall any portion
of the antenna or equipment mounted on a pole be less than twenty-four (24)
feet above any drivable road surface. All installations on utility poles shall
fully comply with the California Public Utilities Commission general orders,
including, but not limited to, General Order 95, as may be revised or
superseded.
d. Light Poles. The maximum height of any antenna shall not exceed four (4)
feet above the existing height of a light pole. Any portion of the antenna or
equipment mounted on a pole shall be no less than sixteen and a half (16 1/2)
feet above any drivable road surface.
e. Replacement Poles. If an applicant proposes to replace a pole in order to
accommodate a proposed facility, the pole shall be designed to resemble the
appearance and dimensions of existing poles near the proposed location,
including size, height, color, materials and style to the maximum extent
feasible.
f. Pole mounted equipment, exclusive of antennas, shall not exceed six (6) cubic
feet in dimension.
g. [Reserved]
h. An exception shall be required to place a new pole in the public right-of-way.
If an exception is granted for placement of new poles in the right-of-way:
I. Such new poles shall be designed to resemble existing poles in the right-
of-way near that location, including size, height, color, materials and style,
with the exception of any existing pole designs that are scheduled to be
removed and not replaced.
ii. Such new poles that are not replacement poles shall be located at least
ninety (90) feet from any existing pole to the extent feasible.
iii. Such new poles shall not adversely impact public view corridors, as
defined in the general plan, and shall be located to the extent feasible in an
area where there is existing natural or other feature that obscures the view
of the pole. The applicant shall further employ concealment techniques to
blend the pole with said features.
1v. 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 underground1~ unless an exception has been granted consistent
vlith this chapterexcept 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.
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01203.0006/276114.7
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.
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 mm1m1ze
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-e.:f 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 g-9irector 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 public \Vorks 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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01203.0006/276114.7
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
Page 22 of32
01203.0006/276114.7
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.
Page 23 of32
01203.0006/276114.7
12.18.090
18. Relocation. The permittee shall modify, remove, or relocate its facility, or portion
thereof, without cost or expense to city, if and when made necessary by (i) any
public improvement project, including, but not limited to, the construction,
maintenance, or operation of any underground or above ground facilities
including but not limited to sewers, storm drains, conduits, gas, water, electric or
other utility systems, or pipes owned by city or any other public agency, (ii) any
abandonment of any street, sidewalk or other public facility, (iii) any change of
grade, alignment or width of any street, sidewalk or other public facility, or (iv) a
determination by the director_ of public \vorks 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.
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.
Page 24 of32
01203.0006/276114.7
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]
12.18.110 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.
Page 25 of32
01203.0006/276114.7
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;
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.
Page 26 of32
01203.0006/276114.7
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 public 'Norks 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;
Page 27 of32
01203.0006/276114.7
12.18.180
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.
Removal and Restoration -Permit Expiration, Revocation or Abandonment
A. Upon the expiration date of the permit, including any extensions, earlier termination
or revocation of the permit or abandonment of the facility, the permittee, owner or
operator shall remove its wireless telecommunications facility and restore the site to
its natural condition except for retaining the landscaping improvements and any other
improvements at the discretion of the city. Removal shall be in accordance with
proper health and safety requirements and all ordinances, rules, and regulations of the
city. The facility shall be removed from the property, at no cost or expense to the
city.
B. Failure of the permittee, owner or operator to promptly remove its facility and restore
the property within ninety (90) days after expiration, earlier termination or revocation
of the permit, or abandonment of the facility, shall be a violation of this Code. Upon
a showing of good cause, an extension may be granted by the director_ of public
works where circumstances are beyond the control of the permittee after expiration.
Further failure to abide by the timeline provided in this section shall be grounds for:
1. Prosecution;
2. Acting on any security instrument required by this chapter or conditions of
approval of permit;
3. Removal of the facilities by the city in accordance with the procedures established
under this Code for abatement of a public nuisance at the owner's expense; and/or
4. Any other remedies permitted under this Code.
C. Summary Removal. In the event the director or city engineer determines that the
condition or placement of a wireless telecommunications facility located in the public
right-of-way constitutes a dangerous condition, obstruction of the public right-of-
way, or an imminent threat to public safety, or determines other exigent
circumstances require immediate corrective action (collectively, "exigent
circumstances"), the director or city engineer may cause the facility to be removed
summarily and immediately without advance notice or a hearing. Written notice of
the removal shall include the basis for the removal and shall be served upon the
permittee and person who owns the facility within five (5) business days of removal
and all property removed shall be preserved for the owner's pick-up as feasible. If
the owner cannot be identified following reasonable effort or if the owner fails to
Page 28 of32
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 £Gouncil 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 £Gouncil 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 £Gouncil 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 QPlanning £Gommission may
grant a limited, one-time exemption from strict compliance subject to the provisions
in this section
B. Required Findings. The .P.12lanning £Gommission 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 4 7, 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
Page 29 of32
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 QPlanning fGommission 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 fGommission 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
Page 30 of32
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 ~6. Section 17 .96.090 of Chapter 96, Title 17 is amended and replaced in its
entirety to read as follows:
"Commercial antenna" means all antennas, parabolic dishes, relay towers and antenna
support structures used for the transmission or reception of radio, television and communication
signals for commercial purposes. For the purpose of this definition, "commercial purposes" shall
mean communications for hire or material compensation, or the use of commercial frequencies,
as these terms are defined by the Federal Communications Commission (FCC). "Commercial
antennas" shall not include antennas owned or operated by governmental agencies.
Page 31 of32
01203.0006/276114.7
SECTION§.+. 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
~eity CeGouncil 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 18. Effective Date. This Oerdinance shall go into effect immediately.
SECTION ~9. Certification. The ~eity ~elerk of the ~eity 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:
ATTEST:
Carla Morreales
~eity Clerk
APPROVED AS TO FORM:
David J. Aleshire
~eity Attorney
Page 32 of32
01203.0006/276114.7
Ken Dyda
Mayor
From:
Sent:
Connie Semas <bconmast@msn.com>
Monday, January 18, 2016 8:23 PM
To:
Cc:
Subject:
cc
john polk; PC
wireless ordinance
Mayor Dyda and Councilmembers,
I am concerned about the new ordinance resting in the hands of Public Works. There is a long time trust issue
with the Public Works Department. Just recently there has been a public records request from a resident from
from early January. As of yesterday, it is not on the Public Works new "transparency" page. Since last year, I
have been told by Public Works employees re cell antennas, "there's nothing we can do about it." Please
reference my emails from last October/November re my experience with Jim Pugh and Public Works.
I do not think Public Works advocates for residents.
Clearly the ordinance has had a great deal of work put into it and I applaud the city attorney's office for the end
result. It's inclusive and appears the best from other city ordinances has been used and applied to RPV. I
appreciate the workshop that was held on December 7, 2015 even though it took 5 weeks for those in attendance
to receive minutes of the workshop. Considerable time was spent at that workshop discussing the merits of
having the ordinance implemented and overseen by the Planning Department with appeals heard by the
Planning Commission. I did not read this in the minutes. Also, I take issue with a comment that was made by
the telecommunication law expert Tripp May. He said the reason the ordinance is in the hands of Public Works
is that RPV "has so many nooks and crannies." Hmm.
It would serve the residents best to have the "collector streets" looked at before signing off on this new
ordinance. Which ones are more residential and which are not? Include the more residential collector streets in
with the residential ones in the new ordinance. This will result in the implementation and oversight by the
Planning Department, heard if necessary by the Planning Commission and appealed by the City Council. This
is the procedure that residents are accustomed to and works well.
Monero Drive and Granvia Altamira from PVE to the corner at Hawthorne is residential. This entire
intersection has beeh residential for over 50 years. Except for the 7-11, even the gas station is residential with a
gas station overlay.
Lately, it seems that the Planning Department is under scrutiny. That's a good reason to place this ordinance or
at least the lions share of it with them. Another plus is that the Planning Commission meetings are televised.
My husband and I have had considerable experience with the Planning Department during our recent
remodel. The employees were very responsive and supportive, advocating on our behalf.
Planning now Community Development Department and the Planning Commission are charged with aesthetics
and neighborhood compatibility. Public Works has huge responsibilities with streets, sewers, the land slide,
and drainage, parks and recs, ...... not neighborhood compatibility or aesthetics. Public Works can oversee the
wireless apparatus in the cities arteries.
1
I feel the need for urgency re this matter and that it be approved quickly, but signing off on something that's
95% good leaves the 5% able to return in a rage.
Thank you,
Connie Semos
2
From:
Sent:
To:
Subject:
RPV City Council:
Virginia y <vluckyee@gmail.com>
Tuesday, January 19, 2016 8:10 AM
cc
no cell phone towers on residential streets
NO CELL PHONE TOWERS ON RESIDENTIAL STREETS.
They detract from the natural beauty of our area and reduce desirability of the properties.
Thanks.
Robert Mikami
6810 Crest Rd.
RPV
310-377-7571
1
From:
Sent:
To:
Subject:
Attachments:
John Freeman <jrfree@cox.net>
Tuesday, January 19, 2016 12:44 PM
cc
City Council meeting 1/19/2016 re wireless. The future of public Wi-Fi: What to do
before using free, fast hot spots
The Future of Public Wi-Fi_ What to Do Before Using Free, Fast Hot Spots -WSJ.pdf
Dear Mayor Dyda and City Council members,
Here's a timely article that just appeared today in the Wall St. Journal (see attached PDF copy):
The future of public Wi-Fi: What to do before using free, fast hot spots
http://on.wsj.com/1RRG6nR
John Freeman
1
1/19/2016 The Future of Public Wi-Fi: What to Do Before Using Free, Fast Hot Spots -WSJ
THE WALL STREET JOURNAL.
This copy is for your personal, non-commercial use only. To order presentation-ready copies for distribution to your colleagues, clients or customers visit
http://www.djreprints.com.
http://www.wsj.com/a rticles/th e-futu re-of-pu blic-wi-fi-wh at-to-do-befo re-u sin g-free-fast-h ot-spots-14 53 2 3 2 5 8 O
TECH I PERSONAL TECH I PERSONAL TECHNOLOGY
Tl1e l~uture of Public Wi-Fi: What to
Do Before Using Free, Fast Hot Spots
Like New York, cities all over are getting speedy public Wi-Fi, but proceed with caution
By JOANNA STERN
Jan. 19, 2016 2:43 p.m. ET
I'm considering moving my office to the bus stop on 17th and 3rd in Manhattan. Sure,
it's brutally cold right now and the bathroom across the street isn't the cleanest but, oh,
the Wi-Fi. It isn't only free, it's faster than anything else around, including my real
office's network.
The best thing about the neighborhood? It's one of the first parts of New York City to
turn old phone booths into hot spots. In the months ahead, they'll cover the city like
graffiti in the 80s, meaning I can walk around town using fast, free Wi-Fi-not Verizon's
slow, pricey data. Even better, it uses a new technology to automatically connect when
I'm in range. No need to re-login.
Welcome to the future of public Wi-Fi. It will soon spread well beyond the City That
Never Sleeps, and it's unlike the isolated free Wi-Fi hot spots in airports, coffee shops
and hotels, best known for slow speeds and posing serious risks to your digital security.
This is fast, it's ubiquitous and it's relatively more secure.
I got a glimpse of it this week while testing the LinkNYC network being deployed by city
http://www. w sj . com/arti cl es/the-Mure-of-publ i c-wi-fi-w hat-to-do-before-using-free-fast-hot-spots-1453232580?m od= dj em ptech _t 1/6
1/19/2016 The Future of Public Wi-Fi: What to Do Before Using Free, Fast Hot Spots-WSJ
New York's new Wi-Fi network moves as fast as the city. PHOTO: DREW EVANS/THE WALL STREET JOURNAL
officials
anda
consortium of companies called CityBridge. They expect to install 500 of the new ad-
supported booths by this summer. On Tuesday, it flipped the switch on near Union
Square.
New York's network may be far speedier than most, but it's a microcosm of what's
happening across the globe. Wi-Fi networks with widespread coverage and new
standards are popping up to allow us to cut back on paying the carriers an arm and a leg
for cellular data. It's downright exciting-and downright scary if you don't take some
real security precautions.
In the Fast Lane
To prepare a network for all of Gotham, City Bridge made an underground network of
fiber-optic cables that feed into each of the booths. Google has to do the same to deliver
its ultrafast Fiber Internet service, which is slowly spreading to more cities, including
Kansas City, Mo. CityBridge says New York's system will be the fastest citywide system
in the world, beating those in cities like Taipei or Helsinki.
What's it like in the fast lane? Dizzying. It took just 45 seconds to download a two-hour,
lGB file while sitting 10 feet away from the LinkNYC booth. That same file took 6
minutes to download on my home network and 15 minutes on the free Wi-Fi at
La Guardia Airport. On Verizon L TE, it said it would take 35 minutes. (I sure wasn't
about to use my precious remaining data to find out.)
As people start to flood the network those speeds will slow. However, City Bridge chief
technology officer Colin O'Donnell says he doesn't expect speeds to drop significantly.
http://www.w sj . com /arti cl es/the-Mure-of-publ i c-wi-fi-w hat-to-do-before-usi ng-free-fast-hot-spots-1453232580?m ad= dj em ptech _ t 216
1/19/2016 The Future of Public Wi-Fi: What to Do Before Using Free, Fast Hot Spots -WSJ
How Much Faster Is LinkNYC Gigabit Wi-Fi?
On New York City's new, free LinkNYC Wi-Fi it took 45 seconds
to download a lGB Video. That was ...
Airport
J!iH ~ ~ p
$!~~~~8S~
Bx
NYC
(Tim(~ Wamor
C<iblo 1wtwork)
Note: Actual Lir1kNYC speeds may be slowor onrn
the network is opened up to the public.
THE WALL STHE.E'l' .JOUltNAL.
Even without CityBridge's
special setups, other free
connections are getting
speedier. Boingo, which
provides Wi-Fi in half of
major U.S. airports, recently
upgraded speeds in seven
locations. Connected to its
faster, paid tier in LaGuardia,
I downloaded that same lGB
video in two minutes. And I
couldn't tell the difference
between it and the LinkNYC network in my typical email, web-browsing and music-
streaming routine.
Don't Forget Your Passpoint
\Mien you join the LinkNYC network on an iPhone, you will be prompted to join the encrypted Passpoint network. PHOTO:
DREW EVANS/THE WALL STREET JOURNAL
To get the most out of the updated public Wi-Fi in New York and elsewhere, there's
some new lingo to learn: Passpoint, which is sometimes referred to as Hotspot 2.0.
The technology allows a Wi-Fi hot spot to work like a cellphone tower. Your phone or
laptop's Wi-Fi connection can seamlessly switch from one hot spot to the next as you
move around-no need to repeatedly log in. On New York's LinkNYC network, it means
walking out of your apartment and being able to walk for blocks and blocks. On a
nationwide network, like Boingo's, it means when you are in range of Boingo's Pass point
http://www. w sj .com/articles/the-future-of-pub! i c-wi-fi-w hat-to-do-before-using-free-fast-hot-spots-1453232580?m od= dj em ptech _ t 3/6
1/19/2016 The Future of Public Wi-Fi: What to Do Before Using Free, Fast Hot Spots -WSJ
secure network, whether it be in Atlanta or Walla Walla, Wash., you'll be instantly
connected.
For all the future convenience, there is a bit more initial hassle. When you first join a
Passpoint network, you're required to download a small file called a profile to your
phone, tablet or laptop. The network will use it to ID you every time you've come back in
range of the network. Most new operating systems support Passpoint.
NYCLink will initially only offer the "Private" Passpoint network to iPhone users.
AT&T, Time Warner Cable and otherWi-Fi providers have already started offering
Passpoint support and networks.
~\'Oe~\S
·~ \S~z,\
f'-''c;;e
• ,;\\-S
Other Wi-Fi providers, like Time Warner and Boingo, offer Passpoint networks. PHOTO: DREW EVANS/THE WALL STREET
JOURNAL
Passpoint will be huge for those of us who want to cut back on cellular data. But it's also
going to benefit those who sit at the coffee shop all day, unaware of how at risk they are.
Unlike the open networks you find at Starbucks, Barnes & Noble and McDonald's,
Passpoint uses the same WPA2-encryption as your home or office's network.
Do Not Connect Until. ..
I was feeling great about how much more secure my data would be until I spoke to Mark
Wuergler, a security professional at Immunity Inc., who gets paid to find vulnerabilities
in high-value networks.
"An attack is inevitable on New York City's system," he says. "It is too big of a trophy."
City Bridge says it has a team of security experts working 24/7 to make sure that doesn't
http://www.wsj .com /arti cl es/the-Mure-of-publ i c-wi-fi-what-to-do-before-usi ng-free-fast-hot-spots-1453232580?m ad= dj em ptech_t 4/6
1/19/2016 The Future of Public Wi-Fi: What to Do Before Using Free, Fast Hot Spots-WSJ
happen. But Mr. Wuergler's point is that all public Wi-Fi networks, even ones with the
new security, are like dark alleys in tough neighborhoods-you don't go in without
protection.
With the help of Mr. Wuergler and several other security experts, I took the following
steps. You should too.
Encrypt, encrypt, encrypt: Passpoint hot spots will protect your wireless data with
encryption. But browser traffic, mail and social media data should still be protected via
SSL encryption. On websites where you input personal data or passwords, make sure it
says HTTPS in the address bar and you see the small padlock icon. If you don't see those,
you may be exposed.
Set up a VPN: A virtual private network (often called just a VPN) creates an encrypted
tunnel from your device onto the Internet via a remote server. "VPNs are like driving a
tank in a battlefield full of shotguns-the shotguns may try to stop youb but they can't
get through your armor," Mr. Wuergler says.
No matter what public Wi-Fi network you are on it is wise to use a VPN. PHOTO: DREW EVANS/THE WALL STREET
JOURNAL
Your employer may offer a VPN option for your laptop and phone ifit doesn't use a
trusted third-party service. For Windows PCs and Android phones, Hotspot Shield is a
good option. (It offers a free option, and a higher tier for $12 a month.) For iPhone and
Mac users, I recommend Cloak. (It starts at $3 a month.) You can configure both to
automatically connect as soon as you join any network.
Delete saved public networks: Unless it's a Passpoint network, don't allow your device
http://www.wsj .com /arti cl es/the-Mure-of-publi c-wi-fi-what-to-do-before-usi ng-free-fast-hot-spots-1453232580?m od= dj em ptech_t 516
1/19/2016 The Future of Public Wi-Fi: What to Do Before Using Free, Fast Hot Spots -WSJ
to remember or auto-join public networks. This can make it easy for an attacker to trick
your device into connecting to their malicious network pretending to be the real one.
Get your digital hygiene in order: The best way to protect your most important
accounts is to make sure you use a strong-and different-password on each of them. I
finally took my colleague Geoffrey A. Fowler's advice and set up a secure password
manager-I went with one called Dashlane-to help me keep track of them all.
I also enabled two-factor authentication on all my bank, email, shopping and social
media accounts. If someone steals your password, they won't be able to use just that to
get into your online accounts-they'll also need the text-messaged code.
Now if you'll excuse me, I'll be in my corner office backing up 200GB of old photos.
Write to Joanna Stern at j oanna.stern@wsj.com
Copyright 2014 Dow Jones & Company, Inc. All Rights Reserved
This copy is for your personal, non-commercial use only. Distribution and use of this material are governed by our Subscriber Agreement and by
copyright law. For non-personal use or to order multiple copies, please contact Dow Jones Reprints at 1-800-843-0008 or visit www.djreprints.com.
http://www.wsj.com/articles/the-future-of-public-wi-fi-what-to-do-before-using-free-fast-hot-spots-1453232580?mod=djemptech_t 6/6
From:
Sent:
To:
Cc:
Subject:
Michael Throne
Tuesday, January 19, 2016 12:52 PM
Alexander Pechloff; Carla Morreale
Teresa Takaoka
Re: Cell-phone tower objection Calle de Suenos
Thank you for your message. It will be included as late correspondence to tonight's city council meeting.
>On Jan 19, 2016, at 12:02 PM, Alexander Pechloff <pechloff _a@yahoo.com> wrote:
>
> Dear Mr. Throne,
>
>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.
>
> -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).
1
TO:
FROM:
DATE:
SUBJECT:
CITY OF RANCHO PALOS VERDES
HONORABLE MAYOR & CITY COUNCIL MEMBERS
CITY CLERK
JANUARY 18, 2016
ADDITIONS/REVISIONS AND AMENDMENTS TO
AGENDA
Attached are revisions/additions and/or amendments to the agenda material received
through Monday afternoon for the Tuesday, January 19, 2016 City Council meeting:
Item No.
1
2
Description of Material
Email from Cassie Jones
Email exchange between Staff and Jeff Calvagna; Emails
from: Virginia Yee; Ken Delong; Sharon Yarber; Lore and
Louis Fraix; Dr. Joseph Thomas and Dr. Natalie Diaz; Vic
and Thelma Flores
~ft_
· Carla Morreale
W:\AGENDA\2016 Additions Revisions to agendas\20160119 additions revisions to agenda thru Monday.doc
From:
Sent:
To:
Subject:
Hello,
Leza Mikhail
Monday, January 18, 2016 7:56 AM
Carla Morreale; Teresa Takaoka
FW: FW: Zone 1
Please include in Late Correspondence to the City Council.
Thank you,
Leza Mikhail
Senior Planner
L. City of CJ{anclio PaCos o/erdes
Community Development Department
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
www.rpvca.gov
(310) 544-5228 -(310) 544-5293 f
lezam@rpvca.gov
*Please Note: Effective 02/20/15, the City's new email address is "@rpvca.gov'' Please update your contact
information for me to reflect lezam@rpvca.gov as my new email.
From: Cassie <cassiej@aol.com>
Sent: Sunday, January 17, 2016 7:44:10 PM
To: Robert Cumby; CC
Subject: Re: FW:
The community association cannot allow this. The city has not dealt with building in zone two. They can't even
keep the road on PV drive south in decent shape. That is access for this area. It is unfortunate that the city is
making regular citizens become "complainers" simply to enforce the laws on the books. It is not the city's fault
nor the city's responsibility to allow people to build on the land that they purchased knowing that there was a
building moratorium in place. The landslide is real. We all drive over bumpy roads to access our community
every single day. The environmental impact report for the area was never dealt with. I would assume another
one is due for a building in zone one.
Cassie Jones
On Jan 17, 2016, at 5:07 PM, Robert Cumby <robert.cumby@cox.net> wrote:
1 /.
Below is the link to the Staff Report for the Zone 1 Code Amendment that is now available on
the City's website. As a reminder, the meeting is next Tuesday, January 19, 2016 at 7:00 pm at
Hesse Park.
http://rpv.granicus.com/GeneratedAgendaViewer.php?view id=S&event id=709
Leza Mikhail
Senior Planner
<imageOOJ.png>City of <.Rflncno <Paws 'Veraes
Community Development Department
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
www.rpvca.gov
(310) 544-5228 -(310) 544-5293 f
lezam@rpvca.gov
*Please Note: Eilective 02/20/15, the City's new email address is "(@rpvca.gov" Please update
your contact information for me to reflect lezam@rpvca.gov as my new email.
2
From: Nicole Jules
Sent: Friday, January 15, 2016 4:13 PM
jcalvagna@netzero.net; Michael Throne To:
Cc:
Subject:
CC; Charles Eder; clopez@awattorneys.com; Ron Dragoo
RE: PW request to "acknowledge" new wireless sites
Greetings Mr. Calvagna,
Thank you for your follow-up questions. Responses to your questions are provided below, are prefaced with PW
RESPONSE and are enclosed in brackets.
Let us know if you have additional questions.
Thank you,
Nicole
Department of Public Works
310-544-5275
From: jcalvagna@netzero.net [mailto:jcalvagna@netzero.net]
Sent: Wednesday, January 13, 2016 6:51 AM
To: Michael Throne <MichaelT@rpvca.gov>
Cc: CC <CC@rpvca.gov>; Nicole Jules <NicoleJ@rpvca.gov>; Charles Eder <CharlesE@rpvca.gov>;
clopez@awattorneys.com; Ron Dragoo <RonD@rpvca.gov>
Subject: Re: PW request to "acknowledge" new wireless sites
Director,
Thank you for the responses and thanks also to staff for putting the cell site transparency website online. I
would request that Public Works provide a link to the cell site page on the main PW page.
I have three follow up questions:
When was staff first informed of Crown Caste's intention to install this large scale project of new ATT sites
in RPV? This would include any notification either written or verbal.
[PW RESPONSE: The City of was first informed of Crown Castle's intention to deploy a large-scale project consisting
of AT&T sites in early 2015. No details were provided nor were locations decided-upon.]
2) When was staff first informed of the proposed site locations? This includes any list or map, even if
preliminary, indicating where Crown Castle desired to locate sites for this project.
[PW RESPONSE: The City was provided the proposed master plan site location map on December 21, 2015.]
3) There is a CEQA notice of exemption for this project filed with the state on 1/18/2015, approximately
one year ago (ref2015018126). The lead agency is lasted as CPUC. Was staff aware of this filing or in
any way involved its preparation or filing? Does the city agree this project is exempt?
1
[PW RESPONSE: City staff was not aware of Crown Castle's CEQA filing on 1/18/15 nor was the City involved in its
preparation. This is because the PUC was the lead agency for the AT&T DAS project. However, the permits to
install each of the proposed facility is subject to CEQA at the local level and may also qualify for an exemption
because it is a utility.]
filing link: http://www.ceqanet.ca.gov/NOEdescription.asp?DocPK =688151
Regards,
Jeff Calvagna
----------Original Message ----------
From: Michael Throne <MichaelT@rpvca.gov>
To: "j cal vagna@netzero.net" <j cal vagna@netzero.net>
Cc: CC <CC@rpvca.gov>, Nicole Jules <NicoleJ@rpvca.gov>, Charles Eder <CharlesE@rpvca.gov>, "Christy
M. Lopez" <clopez@awattorneys.com>, Ron Dragoo <RonD@rpvca.gov>
Subject: Re: PW request to "acknowledge" new wireless sites
Date: Fri, 8 Jan 2016 20:34:05 +0000
Dear Mr. Calvagna:
Thank you for your message attached below, and accordingly responses are enclosed to your
questions and requests (they are prefaced with PW RESPONSE and are enclosed with brackets).
I would encourage you to attend the City Council meeting of January 19 at McTaggart Hall,
Hesse Park, 7 pm, as the City Council will be discussing a draft wireless antenna ordinance and
application process. As you did at the December public workshop, your comments are
important and will help shape how the city will go forth when receiving wireless antenna
requests in the future.
Regards,
Michael Throne, PE, PWLF
Director of Public Works
City of Rancho Palos Verdes
30940 Hawthorne Blvd
Rancho Palos Verdes California 90275
2
310 544-5252
From: jcalvagna@netzero.net [mailto:jcalvagna@netzero.net]
Sent: Wednesday, December 30, 2015 7:00 PM
To: Michael Throne <MichaelT@rpvca.gov>
Cc: Doug Willmore <DWillmore@rpvca.gov>; CC <CC@rpvca.gov>
Subject: PW request to "acknowledge" new wireless sites
Director Throne,
This is in regards to recent city action regarding proposed wireless sites in RPV. On 12/29/2015, Jim Pugh from
the Public Works Department visited residents on the 30400 block of Camino Porvenir requesting they sign a
form "acknowledging" the presence of a new wireless installation. Several days earlier, Mr. Pugh had made the
same request or residents on the 30500 block of Calle de Suenos regarding a presumably different installation. It
is my understanding these installations are Crown Castle sites.
I have been quite active in the city on this issue, particularly in documenting Crown Castle's poor
workmanship, site documentation discrepancies, and disregard for CPUC regulations. These visits have caught
my attention; particularly with a new ordinance pending that will greatly change how the city regulates these
sites and process transparency going forward. The purpose of these visits isn't clear nor is the overall scope of
this activity. Several aspects have me concerned:
• Despite these visits, the city's website states there are no pending sites in the city (most recent entry
dated 12/17/15).
• It was not clear to these RPV residents, nor is it clear to me, what was the intent of the signature
collection. It is also not clear what residents were "acknowledging", what this entails from a legal
perspective, and what, if any, bearing it would have on a resident's right to file a complaint in the future.
• The signatures were collected when City Hall was closed for the holidays. Residents had no immediate
method to obtain more information or follow up with Department management.
• It is not clear what process or procedure the city was following in requesting resident signatures.
• The interaction, as reported to me, appears as if the residents were being pressed to sign the form as
opposed to a purely neutral request.
• The installation on Camino Porvenir, as described to me, would clearly not meet the aesthetic
requirements of the pending new wireless ordinance. (Calle de Suenos was not assessed.)
• It is not clear how many other sites exist beyond these in a similar state.
• Delays in hearing the new ordinance from the original December 1 date to the current January 19 date
could result in these sites (and others that may exist) falling under the old ordinance rather than the new
one.
I have multiple requests based on this:
3
• Please explain the status of the sites described above.
[PW RESPONSE: The sites above are proposed sites by Crown Castle as part of their 80 node
AT&T expansion project. A formal application has not been submitted by Crown Castle;
however, concept drawings were delivered on to our office via email and forwar-ded to the
City's Wireless consultant for analysis and comment.]
• Please provide a list of any other future wireless sites where the city has requested resident signatures.
[PW RESPONSE: There are no other locations where acknowledgement signatures were
obtained.]
• Please provide a list of all future sites in the city of which it is aware. This includes any site that the city
has been notified of in any manner regardless of city permitting status.
[PW RESPONSE: A complete list of all known sites can be found on the City's website using the
following link: http://www.rpvca.gov/916/Cell-Sites]
• Please explain the intent of the signature collection.
[PW RESPONSE: The intent of the outreach was to give residents an advance notice of a
proposed site prior to the mock-up being installed. The request for signatures was as part of
the inspector's due diligence (in his sole opinion), which was well-intentioned. In the past, the
inspector has experienced issues wherein he provided notice and later learned the residents did
not recall the notice. Regrettably, this created more confusion than benefit and our inspector
was instructed to discontinue outreaching to the public in a personal fashion until such time
that the City Council approves an application process that may contain notification criteria. Any
notifications related to cutTent project from this point forward will be via letter from the City.]
o Please also provide a copy of the text to which residents were requested to acknowledge with
their signature.
[PW RESPONSE: Attached is a copy of the document used.]
• Please explain the new ordinance applicability for these sites and any future sites of which the city is
now aware. Please explain if any agreement has been made with Crown Castle in particular regarding
these future sites.
[PW RESPONSE: The proposed ordinance will only apply to applications received after adoption
of the ordinance. The City is required to continue accepting and evaluating proposals under its
current standards. At such time as the new ordinance is effective the City can require that the
installations comply with the provisions outlined therein. No agreement has been made with
Crown Castle regarding these sites or any future sites.]
4
• Please provide all submitted documentation for the Camino Porvenir and Calle de Suenos sites. This
would include photo simulations, engineering drawings, coverage maps, etc.
[PW RESPONSE: Attached are the only documents received to date regarding the sites in
question.]
• Mr Pugh told residents that the Camino Porvenir installation would entail immediate new streetlight
construction. Please explain why the wireless site will not be mocked up on the existing streetlight for
community comment prior to installing a new streetlight.
[PW RESPONSE: Both sites will be required to follow the City's current process of mockup then
construction.]
5
From:
Sent:
To:
Subject:
RPV city council members,
Virginia y <vluckyee@gmail.com>
Saturday, January 16, 2016 8:22 AM
cc
cell phone towers
I am against any cell phone towers in residential areas.
The electromagnetic radiation pollution affects at the cellular level.
The public is not aware of the health dangers.
The 2012 Bioinitiative report,presented to the United Nations in May, 2015 signed by more than 200
international scientists, reviewing 1800 studies, asked for stricter standards, more independent research,
and public education.
Virginia Yee
6810 Crest Rd.
RPV
1
From:
Sent:
To:
Subject:
Ken Delong <ken.delong@verizon.net>
Sunday, January 17, 2016 1:44 PM
cc
Wireless Antenna Ordinance
Mayor Dyda, Mayor Pro Tern Campbell, Council Members Brooks, Duhovic, Misetich
Subject: Wireless Antenna Ordinance; Item 2 January 19th Council Agenda.
My concerns are the initial process of filing permits and jurisdictions therein. Specifically Attachment H, pages 90, 91,
Chapters 12.18.040 and 12.18.050.
There is too much gobblygook with the Director this and the Director that. All "Director reference should be replaced
with the City/ RPV.
All applications, after initial processing by the City, should be processed by the Planning Commission. There is excessive
verbiage concerning Administrative Permits and Master Plan permits and significant rewrite is needed. All permit
applications should have public scrutiny with a public hearing. The Planning Commission is the most qualified
organization to conduct public hearings. The code should include time limits for processing and review. For example,
processing by the Planning Commission must be completed in 40 days.
A master list of pending applications is to be maintained on the RPV website.
I have not thoroughly read the other chapters but likely similar issues prevail there as well.
Ken Delong
1 c2.
From:
Sent:
sharon yarber <momofyago@gmail.com>
Sunday, January 17, 2016 2:28 PM
To:
Subject:
clopez@awattorneys.com; CC; Dave Aleshire; Michael Throne; Nicole Jules
Fwd: Wireless Telecommunications Ordinance
Christy,
I have learned that you are taking the lead from the legal perspective on this Ordinance, so I am forwarding to
you my earlier email to Council and Dave, et al. from which you were omitted.
I do have an additional comment and that is with respect to Recital A (viii). It should read " ... are necessary to
protect and preserve the aesthetics in the community, as well as the values of properties within the City."
As it now reads, "to protect the aesthetics of the city's property values" is inaccurate. The concepts of aesthetics
and property value preservation are separate and distinct. Further, we are not concerned only with the City's
property values (property owned by the City), but the values of all properties within the City, including those
belonging to private property owners.
----------Forwarded message----------
From: sharon yarber <momofyago@gmail.com>
Date: Sun, Jan 17, 2016 at 11:04 AM
Subject: Wireless Telecommunications Ordinance
To: CC <cc@rpvca.gov>, mthrone@rpvca.gov, nicolej@rpvca.gov, Dave Aleshire
<daleshire@awattorneys.com>
Dear Council Members, Michael, Nicole and David,
I strongly support adoption of the new ordinance. It is overall quite excellent and comprehensive. I have noted a
few things, however, that I think need a bit of cleaning up.
First, I would go back and simply globally capitalize the word "City". That would eliminate a lot of errors like
"city Council", "city Clerk", "city Attorney", "city not being capitalized when it is the first word in a sentence,
etc. This is an easy fix.
Second, under B. 3 of the Ordinance it says "13.12.320 is amended to read in its entirety as follows ... ", then B .4
says "13.12.320 is repealed. I think this is supposed to read "13.12.330 (the existing Muni Code section) is
repealed". Why amend a section in its entirety and then concurrently repeal it?
12.18.050 A.2 is awkwardly written. it says "All apllicants ... shall not...". It would be better to say "No applicant
shall.. ... " and revise the paragraph accordingly.
12.18.050 B.17 says "is in on any street". Should say "is on any street" or "is in any ROW".
12.18.050 B.19 has a sentence that starts "As well, as ... ". This should be corrected such that the sentence before
ends with a comma so it reads ", as well as ... "
1
12.18.050 B.21 says "and un accordance" -Should be "and in accordance"
12.18.050 B22 (c) says " . .it intends to be installed" -Should be "it intends to install"
12.18.060 C. 1and2 say PC/Director may approve, modify or reject an application "after making the findings
in 12.18.090". This does not make sense. An application can only be approved ifthe PC or Director, as the case
may be, can make the findings in 12.18.090, but no application would be modified much less REJECTED upon
making the findings. It might be revised to say the PC/Director shall reject any application if the findings in
12.18.090 cannot be made.
12.18.080 A.12 -after the word "underground" there should be a comma, not a semi-colon. As written the
additional section (a) does not make sense.
I lost track of the section number but on page 22 of 35 of the redline, Paragraph 3, line 7 says "accept of all
permit..." The "of' should come out.
While some of these comments do not appear to be terribly substantive, it is important to clean this up as much
as possible before adoption.
I did not have time to review the entirety of the ordinance. If I get a chance to do so, and have other comments,
I will pass them along. I think a fresh set of eyes that has never read this needs to go over it for other
corrections.
Thank you for your efforts on this. Good work from what I can tell and know of the subject.
2
From:
Sent:
To:
Cc:
Subject:
Dear City Council members,
Lore Fraix < lorefraix@verizon.net>
Monday, January 18, 2016 2:25 PM
cc
lffraix@verizon.net; jcalvagna@netzero.net
Wireless Telecommunication Ordinance meeting on 1/19/2016 .
This e-mail is to let you know that our family is a strong supporter of the above referenced Wireless Telecommunication
Ordinance to be reviewed and hopefully approved at the City Council meeting of January 19th 2016 .
We have been residents of Rancho Palos Verdes since 1975 and we have greatly enjoyed our neighborhood and the
good services of our City .
Our house , at 30461 Camino Porvenir, will be directly impacted by the current expansion program of Wireless
Telecommunication poles/towers within our neighborhood and city . For this specific reason we
need this ordinance in order to have good and uniform guidelines for the implementation of such an expansion . Also
,as state in the ordinance, we need to have the review and approval of our City Planning in order to protect and
conserve the aesthetic and environmental aspects of our community , such as "underground "utilities and accessories
to the antennas/poles .
Also, I wishes to offer my sincere appreciation for the excellent work performed at the Wireless Antenna Public
Workshop ( 12/7 /2015 ) which greatly contributed to the quality and thoroughness of the ordinance .
Your support and understanding in this matter are greatly appreciated ,
Sincerely yours ,
Lore and Louis Fraix
310-541-7829
1
&.
December 19, 2015
Hawthorne Boulevard
ancho Palos Verdes, CA 90275
Dear Mr. Wilmore:
City of Ranc ho Palos Verd es
DEC 21 2015
City Manager's Office
We understand that City departments have been making plans for installation of
new cellular towers. We also understand that a location proximate to our home has
been identified as a new site.
Installation of a cellular tower or cellular communication equipment at the
proposed locations in the 28400 block of San Nicolas Drive will have unacceptable
deleterious effects on the neighborhood and the quality of our community. We are
profoundly concerned about view obstruction, aesthetics, potential health impacts,
noise, and the negative financial implications of any proposed installation.
We respectfully recommend that the City, involved utilities and subcontractors
cease any further preparations for such changes until all potentially affected
residents on San Nicolas Drive, Lomo, Scotgrove, Ella Road and Ridgethorne Court
are fully informed and are able to respond to any proposed plans.
Thank you for your kind consideration. As proud homeowners and residents of the
City, we are committed to protecting our property, neighborhood and community.
Very sincerely,
Joseph Thomas MD
Natalie Diaz MD
28409 San Nicolas Drive
Rancho Palos Verdes CA 90275
c2 .
December 19, 2015
Douglas Wilmore
City Mana
3094 awthorne Boulevard
Rancho Palos Verdes, CA 90275
Dear Mr. Wilmore:
City of Rancho p 1 a os Verdes
DEC 2 3 2015
City Manager's Office
We understand that City departments have been making plans for installation of
new cellular towers.
Installation of a cellular tower or cellular communication equipment at the
proposed locations in the 28400 block of San Nicolas Drive will have unacceptable
deleterious effects on the neighborhood and the quality of our community. We are
concerned about view obstruction, aesthetics, potential health impacts, noise, and
the negative financial implications of any proposed installation.
We respectfully recommend that the City, utilities and subcontractors cease any
further preparations for such changes until all potentially affected residents on San
Ni colas Drive, Lomo, Scotgrove, Ella Road and Ridgethorne Court are fully informed
and able to respond to any proposed plans.
Thank you for your consideration. As proud homeowners and residents of the City,
we are committed to protecting our property, neighborhood and community.
Vic and Thelma Flores
2841.J"San Nicolas Drive
Rancho Palos Verdes CA 90275