HomeMy WebLinkAboutOrdinance 621 Wireless Telecommunications w updated Exh AORDINANCE NO. 621
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF MORRO BAY, CALIFORNIA,
ADDING CHAPTER 12.12 TO TITLE 12 OF THE MORRO BAY
MUNICIPAL CODE, ENTITLED "WIRELESS TELECOMMUNICATIONS
FACILITIES IN THE PUBLIC RIGHT-OF-WAY"
THE CITY COUNCIL
City of Morro Bay, California
A. The City Council may make and enforce within its limits all local, police, sanitary
and other ordinances and regulations not in conflict with general laws.
B. Significant changes in Federal and State law that affect local authority over
wireless communications facilities ("WCFs") have occurred, including but not limited to the
following:
i. On November 18, 2009, the Federal Communications Commission
("FCC') adopted a declaratory ruling (the "2009 Shot Clock"), which
established presumptively reasonable timeframes for State and local
governments to act on applications for WCFs.
ii. On February 22, 2012, Congress adopted Section 6409(a) of the Middle
Class Tax Relief and Job Creation Act ("Section 6409(a)"), which
mandated that State and local governments approve certain modifications
and collocations to existing WCFs, known as eligible facilities requests.
iii. On October 17, 2014, the FCC adopted a report and order that, among
other things, implemented new limitations on now State and local
governments review applications covered by Section 6409(a), established
an automatic approval for such applications when the local reviewing
authority fails to act within 60 days, and also further restricted generally
applicable procedural rules under the 2009 Shot Clock.
iv. On October 9, 2015, California adopted Assembly Bill No. 57 (Quirk),
which deemed approved any WCF applications when the local reviewing
authority fails to act within the 2009 Shot Clock timeframes.
v. On August 2, 2018, the FCC adopted a declaratory ruling that formally
prohibited express and de facto moratoria for all telecommunications
services and facilities under 47 U.S.C. § 253(a).
vi. On September 26, 2018, the FCC adopted a declaratory ruling and report
and order that, among other things, creates a new regulatory classification
for small wireless facilities ("SWFs"), requires State and local
governments to process applications for small wireless facilities within 60
days or 90 days, establishes a national standard for an effective prohibition
and provides that a failure to act within the applicable timeframe
presumptively constitutes an effective prohibition.
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C. In addition to the changes described above, new Federal laws and regulations that
drastically alter local authority over WCFs are currently pending, including without limitation,
the following:
i. On March 30, 2017, the FCC issued a Notice of Proposed Rulemaking
(WT Docket No. 17-79, WC Docket No. 17-84) and has acted on some of
the noticed issues referenced above, but may adopt forthcoming rulings
and/or orders that further limit local authority over wireless facilities
deployment.
ii. On June 28, 2018, United States Senator John Thune introduced and
referred to the Senate Committee on Commerce, Science and
Transportation the "STREAMLINE Small Cell Deployment Act"
(S. 3157) that, among other things, would apply specifically to small cell
WCFs and require local governments to review applications based on
objective standards, shorten the 2009 Shot Clock timeframes, require all
proceedings to occur within the 2009 Shot Clock timeframes, and provide
a "deemed granted" remedy for failure to act within the applicable 2009
Shot Clock.
D. Given the rapid and significant changes in Federal and State law, the actual and
effective prohibition on moratoria to amend local policies in response to such changes and the
significant adverse consequences for noncompliance with Federal and State law, the City
Council desires to add Chapter 12.12 to Title 12 of the Morro Bay Municipal Code, entitled
"WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY" (the
"Ordinance") to allow greater flexibility and responsiveness to the new Federal and State laws
while still preserving the City's traditional authority to the maximum extent practicable.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MORRO BAY DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The facts set forth in the recitals in this Ordinance are true and correct and
incorporated by reference. The recitals constitute findings in this matter and, together with the
staff report, other written reports, public testimony and other information contained in the record,
are an adequate and appropriate evidentiary basis for the actions taken in the Ordinance.
SECTION 2. The Ordinance is consistent with the City's General Plan, Municipal Code,
Zoning Code and applicable Federal and State law.
SECTION 3. The Ordinance will not be detrimental to the public interest, health, safety,
convenience, or welfare.
SECTION 4. The Ordinance is not a project within the meaning of Section 15378 of
the State of California Environmental Quality Act ("CEQA") Guidelines, because it has no
potential for resulting in physical change in the environment, directly or indirectly. The
Ordinance does not authorize any specific development or installation on any specific piece of
property within the City's boundaries. The Ordinance is further exempt from CEQA because the
City Council's adoption of the Ordinance is covered by the general rule that CEQA applies only
to projects which have the potential for causing a significant effect on the environment (State
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CEQA Guidelines, § 15061(b)(3)). Installations, if any, would be exempt from CEQA review in
accordance with either State CEQA Guidelines Section 15302 (replacement or reconstruction),
State CEQA Guidelines Section 15303 (new construction or conversion of small structures),
and/or State CEQA Guidelines Section 15304 (minor alterations to land).
SECTION 5. The Ordinance is hereby adopted by the addition of a new Chapter 12.12,
"WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY" in
Title 12 of the Morro Bay Municipal Code to read in its entirety as shown in Exhibit "A"
attached hereto and incorporated herein by this reference.
SECTION 6. If the provisions in this Ordinance conflict in whole or in part with any
other City regulation or ordinance adopted prior to the effective date of this section, the
provisions in this Ordinance will control.
SECTION 7. If any subsection, subdivision, paragraph, sentence, clause or phrase of
this Ordinance or any part thereof is for any reason held to be unconstitutional or otherwise
unenforceable, such decision shall not affect the validity of the remaining portion of this
Ordinance or any part thereof. The City Council hereby declare that they would have passed each
subsection, subdivision, paragraph, sentence, clause, or phrase thereof, irrespective of the fact
that any one or more subsection, subdivision, paragraph, sentence, clause, or phrase be declared
unconstitutional or otherwise unenforceable.
SECTION 8. This Ordinance shall take effect 30 days after its adoption.
SECTION 9. The City Clerk shall certify as to the passage and adoption of this
Ordinance and shall cause the same to be posted at the designated locations in the City of Morro
Bay.
INTRODUCED at a regular meeting of the City Council held on the 26th day of March
2019, by motion of Councilmember Davis and seconded by Council Member McPherson.
PASSED and APPROVED on this 9t' day
SWANSON, City Clerk
CHRIS F. NEUNIEYER, City Attorney
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STATE OF CALIV KNIA )
COUNTY OF SAN LUIS OBISPO )
CITY OF MORRO BAY )
I, Dana Swanson, CITY CLERK OF THE CITY OF MORRO BAY, DO
HEREBY CERTIFY that the foregoing Ordinance Number 621 was duly adopted by the City
Council of the City of Morro Bay at a regular meeting of said Council on the 9th day of April,
2019, and that it was so adopted by the following vote:
AYES: Headding, Addis, Davis, Heller
NOES: None
ABSENT: McPherson
City Clerk, Dana Swanson.
01181.0015/539966.1
EXHIBIT A
Chapter 12.12 — WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC
RIGHT-OF-WAY
12.12.010 —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 ("PROW") in the city for
the maximum benefit and use of the public, (2) to promote and protect public health and safety,
community welfare, visual resources and the aesthetic quality of the city consistent with the goals,
objectives and policies of the general plan, and (3) to provide for the orderly, managed and efficient
development of wireless telecommunications facilities in accordance with the state and federal laws,
rules and regulations, including those regulations of the Federal Communications Commission ("FCC")
and California Public Utilities Commission ("CPUC"), and (4) to ensure that the use and enjoyment of
the PROW is not inconvenienced by the use of the PROW for the placement of wireless facilities. The
city recognizes the importance of wireless facilities to provide high -quality communications service to
the residents and businesses within the city, and the city also recognizes its obligation to comply with
applicable federal and state laws. This chapter shall be constructed and applied in consistency with the
provisions of state and federal laws, and the rules and regulations of FCC and CPUC. In the event of any
inconsistency between any such laws, rules, and regulations and this chapter, the laws, rules, and
regulations shall control.
12.12.020 —DEFINITIONS.
A. "Accessory equipment" means any and all on -site equipment, including, without limitation,
back-up generators and power supply units, cabinets, coaxial and fiber optic cables, connections,
equipment buildings, shelters, radio transceivers, transmitters, pedestals, splice boxes, fencing
and shielding, surface location markers, meters, regular power supply units, fans, air
conditioning units, cables and wiring, to which an antenna is attached in order to facilitate the
provision of wireless telecommunication services.
B. "Antenna" means that specific device for transmitting and/or receiving radio frequency or other
signals for purposes of wireless telecommunications services. "Antenna" is specific to the
antenna portion of a wireless telecommunications facility.
C. "Antenna array" shall mean two or more antennas having active elements extending in one or
more directions, and directional antennas mounted upon and rotated through a vertical mast or
tower interconnecting the beam and antenna support, all of which elements are deemed to be part
of the antenna.
D. "Base station" shall have the meaning set forth in 47 C.F.R. Section 1.6100(b)(1), or any
successor provision. This means a structure or equipment at a fixed location that enables licensed or or authorized wireless communications between user equipment and a communications
network (regardless of the technological configuration, and encompassing DAS and small cells).
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"Base station" does not encompass a tower or any equipment associated with a tower. Base
station includes, without limitation:
1. Equipment associated with wireless communications services such as private,
broadcast, and public safety services, as well as unlicensed wireless services and fixed
wireless services such as microwave backhaul.
2. Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power
supplies, and comparable equipment, regardless of technological configuration
(including Distributed Antenna Systems and small cells).
3. Any structure other than a tower that, at the time the relevant application is fled with
the city under this chapter, supports or houses equipment described in paragraphs 1
and 2 of this definition that has been reviewed and approved under the applicable
zoning or siting process, or under another state or local regulatory review process, even
if the structure was not built for the sole or primary purpose of providing that support.
4. "Base station" does not include any structure that, at the time the relevant application
is filed under this chapter, does not support or house equipment described in
paragraphs 1 and 2 of this definition. Wither structures that do not host wireless
telecommunications facilities are not "base stations."
As an illustration and not a limitation, the FCC's definition of "base station" refers to any structure that
actually supports wireless equipment even though it was not originally intended for that purpose.
Examples include, but are not limited to, wireless facilities mounted on buildings, utility poles, light
standards or traffic signals. A structure without wireless equipment replaced with a new structure
designed to bear the additional weight from wireless equipment constitutes a base station.
E. "Cellular" means an analog or digital wireless telecommunications technology that is based on a
system of interconnected neighboring cell sites.
F. "City" means the City of Morro Bay.
G. "Code" means the City of Morro Bay Municipal Code.
H. "Collocation" bears the following meanings:
1. For the purposes of any eligible facilities request, the same as defined by the FCC in
47 C.F.R. Section 1.6100(b)(2), as may be amended, which defines that term as "[t]he
mounting or installation of transmission equipment on an eligible support structure for
the purpose of transmitting and/or receiving radio frequency signals for
communications purposes." As an illustration and not a limitation, the FCC's
definition means to add transmission equipment to an existing facility and does not
necessarily refer to two or more different facility operators in the same location;
and
2. For all other purposes, the same as defined in 47 C.F.R. Sections 1.6002(g)(1) and (2),
as may be amended, which defines that term as (1) Mounting or installing an antenna
facility on a pre-existing structure, and/or (2) Modifying a structure for the purpose of
mounting or installing an antenna facility on that structure.
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I. "Collocation facility" means the eligible support structure on, or immediately adjacent to, which
a collocation is proposed, or a wireless telecommunications facility that includes collocation
facilities. (See Government Code Section 65850.6(d).)
J. "COW" means a "cell on wheels," which is a portable, self-contained wireless
telecommunications facility that can be moved to a location and set up to provide wireless
telecommunication services, which facility is temporarily rolled in, or temporarily installed, at a
location. Under this chapter, the maximum time a facility can be installed to be considered a
COW is five (5) days. A COW is normally vehicle -mounted and contains a telescoping boom as
the antenna support structure.
K. "Distributed antenna system" or "DAS" means a network of spatially separated antennas (nodes)
connected to a common source (a hub) via a transport medium (often fiber optics) that provide
wireless telecommunications service within a specific geographic area or building. DAS
includes the transport medium, the hub, and any other equipment to which the DAS network or
its antennas or nodes are connected to provide wireless telecommunication services.
L. "Eligible facilities request" means any request. for modification to an existing eligible support
structure that does not substantially change the physical dimensions of such structure, involving:
1. Collocation of new transmission equipment;
2. Removal of transmission equipment;
3. Replacement of transmission equipment (replacement does not include completely
replacing the underlying support structure); or
4. Hardening through structural enhancement where such hardening is necessary to
accomplish the eligible facilities request, but does not include replacement of the
underlying support structure.
M. "Eligible facilities request" does not include modifications or replacements when an eligible
support structure was constructed or deployed without proper local review, was not required to
undergo local review, or involves equipment that was not properly approved. "Eligible facilities
request" does include collocation facilities satisfying all the requirements for a non -discretionary
collocation facility pursuant to Government Code Section 65850.6.
N. "Eligible support structure" means any support structure located in the PROW that is existing at
the time the relevant application is filed with the city under this chapter.
O. "Existing" means a support structure, wireless telecommunications facility, or accessory
equipment that has been reviewed and approved under the city's applicable zoning or siting
process, or under another applicable state or local regulatory review process, and lawfully
constructed prior to the time the relevant application is filed under this chapter. However, a
support structure, wireless telecommunications facility, or accessory equipment that has not been
reviewed and approved because it was not in a zoned area when it was built, but was lawfully
constructed, is "existing" for purposes of this chapter. "Existing" does not apply to any structure
that (1) was illegally constructed without all proper local agency approvals, or (2) was
constructed in noncompliance with such approvals. "Existing" does not apply where an existing
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support structure is proposed to be replaced in furtherance of the proposed wireless
telecommunications facility.
P. "Facility(ies) " means wireless telecommunications facility(ies).
Q. "FCC" means the Federal Communications Commission.
R. "Ground -mounted" means mounted to a pole, tower or other freestanding structure which is
specifically constructed for the purpose of supporting an antenna or wireless telecommunications
facility and placed directly on the ground at grade level.
S. "Lattice tower" means an open framework structure used to support one or more antennas,
typically with three or four support legs.
T. "Located within (or in) 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 PROW.
U. "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 whatsoever any expansion, alteration, enlargement, intensification,
reduction, or augmentation of an existing wireless telecommunications facility.
V. "Monopole" means a structure composed of a pole or tower used to support antennas or related
equipment. A monopole also includes a monopme, monopalm and similar monopoles
camouflaged to resemble faux trees or other faux objects attached on a monopole (e.g., water
tower).
W. "Mounted" means attached or supported.
X. "OTARD antennas" means antennas covered by the "over -the -air reception devices" rule in 47
C.F.R. Section 1.4000 et seq. as may be amended or replaced from time to time.
Y. "Permittee" means any person or entity granted a WTFP pursuant to this chapter.
Z. "Personal wireless services" shall have the same meaning as set forth in 47 U.S.C. Section
332(c)(7)(C)(i), as may be amended.
AA. "Personal wireless service facility" shall have the same meaning as set forth in 47 U.S.C.
Section 332(c)(7)(C)(ii), as may be amended.
BB. "Planning director" means the community development director, or his or her designee.
CC. "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.
DD. "Public works director" means the director of public works, or his or her designee.
E. "Public right -of --way" or "PROW" means a strip of land acquired by reservation, dedication,
prescription, condemnation, or easement that allows for the passage of people and goods. The
PROW includes, but is not necessarily limited to, streets, curbs, gutters, sidewalks, roadway
medians, and parking strips. The PROW does not include lands owned, controlled or operated by
the city for uses unrelated to streets or the passage of people and goods, such as, without
limitation, parks, city hall and community center lands, city yards, and lands supporting
reservoirs, water towers, police or fire facilities and non -publicly accessible utilities.
FF. "Replacement" refers only to replacement of transmission equipment, wireless
telecommunications facilities or eligible support structures where the replacement structure will
be of like -for -like kind to resemble the appearance and dimensions of the structure or equipment
replaced, including size, height, color, landscaping, materials and style.
1. In the context of determining whether an application qualifies as an eligible facilities
request, the term "replacement" relates only to the replacement of transmission
equipment and does not include replacing the support structure on which the
equipment is located.
2. In the context of determining whether a SWF application qualifies as being placed
upon a new eligible support structure or qualifies as a collocation, an application
proposing the "replacement" of the underlying support structure qualifies as a new
pole proposal.
GG. "RF" means radio frequency.
HH. "Small cell" means aloes -powered antenna (node) that has a range of 10 meters to two
kilometers. The nodes of a "small cell" may or may not be connected by fiber. "Small," for
purposes of "small cell," refers to the area covered, not the size of the facility. "Small cell"
includes, but is not limited to, devices generally known as microcells, picocells and femtocells.
II. "Small cell network" means a network of small cells.
JJ. "Spectrum Act" means Section 6409(a) of the Middle Class Tax Relief Act and Job Creation Act
of 2012, codified as 47 U.S.C. Section 1455(a)5 as may be amended.
KK. "Substantial change" has the same meaning as "substantial change" as defined by the
FCC at 47 C.F.R. Section 1.40001(b)(7). Notwithstanding the definition above, if an existing
pole -mounted cabinet is proposed to be replaced with an underground cabinet at a facility where
there are no pre-existing ground cabinets associated with the structure, such modification may be
deemed a non -substantial change, in the discretion of the public works director and based upon
his/her reasonable consideration of the cabinet's proximity to residential view sheds, interference
to public views and/or degradation of concealment elements. If undergrounding the cabinet is
technologically infeasible such that it is materially inhibitive to the project, the public works
director may allow for a ground mounted cabinet. A modification or collocation results in a
"substantial change" to the physical dimensions of an eligible support structure if it does any of
the following:
1. It increases the height of the structure by more than 10% or more than ten feet,
whichever is greater;
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2. It involves adding an appurtenance to the body of the structure that would protrude from
the edge of the structure by more than six feet;
involves installation of more than the standard number of new equipment cabinets for
the technology involved, but not to exceed four cabinets. However, for towers and base
stations located in the public rights -of -way, it involves installation of any new equipment
cabinets on the ground if there are no pre-existing ground cabinets associated with the
structure, or else involves installation of ground cabinets that are more than 10% larger
in height or overall volume than any other ground cabinets associated with the structure;
4. It entails any excavation or deployment outside the current site. For purposes of this
Subsection, excavation outside the current site occurs where excavation more than
twelve feet from the eligible support structure is proposed;
5. It defeats the concealment or stealthing elements of the eligible support structure; or
6. It does not comply with conditions associated with the siting approval of the construction
or modification of the eligible support structure, provided however that this limitation
does not apply to any modification that is non -compliant only in a manner that would not
exceed the thresholds identified in paragraphs I through 4 of this definition.
7. For all proposed collocations and modifications, a substantial change occurs when:
a. The proposed collocation or modification involves more than the standard
number of new equipment cabinets for the technology involved, but not to
exceed four equipment cabinets;
b. The proposed collocation or modification would defeat the concealment
elements of the support structure; or
c. The proposed collocation or modification violates a prior condition of approval,
provided however that the collocation need not comply with any prior condition
of approval that is inconsistent with the thresholds for a substantial change
described in this Section.
The thresholds and conditions fora "substantial change" described in this Section are disjunctive
such that the violation of any individual threshold or condition results in a substantial change.
The height and width thresholds for a substantial change described in this Section are cumulative
for each individual support structure. The cumulative limit is measured from the physical
dimensions of the original structure for base stations, and for all other facilities sites in the
PROW from the smallest physical dimensions that existed on or after February 22, 2012,
inclusive of originally approved -appurtenances and any modifications that were approved prior
to that date.
LL. "Support structure" means a tower, pole, base station or other structure used to support a wireless
telecommunications facility.
MM. "SWF" means a "small wireless facility" as defined by the FCC in 47 C.F.R. Section
1.6002(1), as may be amended, which is a personal wireless service facility that meets all the
following conditions, listed here for convenience only:
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1. The facility:
a. Is mounted on an existing or proposed structure 50 feet or less in height,
including antennas, as defined in 47 C.F.R. Section 1.1320(d); or
b. Is mounted on an existing or proposed structure no more than 10 percent taller
than other adjacent structures; or
c. Does not extend an existing structure on which it is located to a height of more
than 50 feet or by more than 10 percent, whichever is greater;
2. Each antenna associated with the deployment, excluding associated antenna equipment
(as defined in 47 C.F.R. Section 1.1320(d), as may be amended), is no more than three
cubic feet in volume;
3. All other wireless equipment associated with the structure, including the wireless
equipment associated with the antenna and any pre-existing associated equipment on the
structure, is no more than 28 cubic feet in volume;
4. The facility does not require antenna structure registration under 47 C.F.R. Part 17;
5. The facility is not located on Tribal lands, as defined in 36 C.F.R. Section 800.16(x), as
may be amended; and
6. The facility does not result in human exposure to radiofrequency radiation in excess of
the applicable safety standards specified in 47 C.F.R. Section 1.1307(b), as may be
amended.
NN. "SWF Regulations" means those regulations adopted by the City Council Resolution 21-
19 implementing Lite provisions of this chapter applicable to SWFs and further regulations and
standards applicable to SWFs.
00. "Telecommunications tower" or "tower" has the meaning ascribed to wireless towers by
the FCC in 47 C.F.R. Section 1.6100(b)(9), as maybe amended, including without limitation a
freestanding mast, pole, monopole, guyed tower, lattice tower, free standing tower or other
structure designed and built for the sole or primary purpose of supporting any FCC -licensed or
authorized antennas and their associated facilities, including structures that are constructed for
wireless communications services including, but not limited to, private, broadcast, and public
safety services, as well as unlicensed wireless services and fixed wireless services such as
microwave backhaul, and the associated site. This definition does not include utility poles.
PP. "Transmission equipment" means equipment that facilitates transmission for any FCC -licensed
or authorized wireless communication service, including, but not limited to, radio transceivers,
antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes
equipment associated with wireless communications services including, but not limited to,
private, broadcast, and public safety services, as well as unlicensed wireless services and fixed
wireless services such as microwave backhaul.
QQ. "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
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regulated by the California Public Utilities Commission. A telecommunications tower is not a
utility pole.
RR. "Wireless telecommunications facility" means equipment and network components such
as antennas, accessory equipment, support structures, and emergency power systems that are
integral to providing wireless telecommunications services. Exceptions: The term "wireless
telecommunications facility" does not apply to the following:
1. Government -owned and operated telecommunications facilities.
2. Emergency medical care provider -owned and operated telecommunications facilities.
3. Mobile services providing public information coverage of news events of a temporary
nature.
4. Any wireless telecommunications facilities exempted from this code by federal law or
state law.
SS. "Wireless telecommunications services" means the provision of services using a wireless
telecommunications facility or a collocation facility, and shall include, but is not limited to, the
following services: personal wireless services as defined in the federal Telecommunications Act
of 1996 at 47 U.S.C. Section 332(c)(7)(C), as may be amended, cellular service, personal
communication service, and/or data radio telecommunications.
TT. "WTFP" means a "wireless telecommunications facility permit" required by this chapter, which
may be categorized as either a Major WTFP or an Administrative WTFP.
12.12.030 —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.
B. Pre-existing Facilities in the PROW. Nothing in this chapter shall validate any existing illegal
or unpermitted wireless facilities. All existing wireless facilities shall comply with and receive
a wireless encroachment permit, when applicable, to be considered legal and conforming.
C. This chapter does not apply to the following:
1. Amateur radio facilities;
2. OTARD antennas;
3. Facilities owned and operated by the city for its use or for public safety purposes;
4. Any entity legally entitled to an exemption pursuant to state or federal law or
governing franchise agreement, excepting that to the extent such the terms of state or
federal law, or franchise agreement, are preemptive of the terms of this chapter, then
the terms of this chapter shall be severable to the extent of such preemption and all
remaining regulations shall remain in full force and effect.
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5. Installation of a COW or a similar structure for a temporary period in connection with
an emergency or event at the discretion of the public works director, but no longer than
required for the emergency or event, provided that installation does not involve
excavation, movement, or removal of existing facilities.
D. Public use. Except as otherwise provided by state or federal law, any use of the PROW
authorized pursuant to this chapter will be subordinate to the city's use and use by the public.
12.12.040 —WIRELESS TELECOMMUNICATIONS FACILITY PERMIT
REQUIREMENTS.
A. Administration. Unless a matter is referred to the planning director as provided below, the
public works director is responsible for administering this chapter. As part of the
administration of this chapter, the public works director may:
1. Interpret the provisions of this chapter;
2. Develop and implement standards governing the placement and modification of
wireless telecommunications facilities consistent with the requirements ofthis chapter,
including regulations governing collocation and resolution of conflicting applications
for placement of wireless facilities;
3. Develop and implement acceptable design, location and development standards for
wireless telecommunications facilities in the PROW, taking into account the zoning
districts bounding the PROW;
4. Develop forms and procedures for submission of applications for placement or
modification of wireless facilities, and proposed changes to any support structure
consistent with this chapter;
5. Collect, as a condition of the completeness of any application, any fee established by
this chapter;
6. Establish deadlines for submission of information related to an application, and extend
or shorten deadlines where appropriate and consistent with federal laws and
regulations;
7. Issue any notices of incompleteness, requests for information, or conduct or
commission such studies as may be required to determine whether a permit should be
issued;
8. Require, as part of, and as a condition of completeness of any application, that an
applicant for a wireless encroachment permit send notice to members ofthe public that
may be affected by the placement or modification of the wireless facility and proposed
changes to any support structure;
9. Subject to appeal as provided herein, determine whether to approve, approve subject to
conditions, or deny an application; and
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1 us Take such other steps as may be required to timely act upon applications for placement
of wireless telecommunications facilities, including issuing written decisions and
entering into agreements to mutually extend the time for action on an application.
B. Administrative Wireless Telecommunications Facilities Permits ("Administrative WTFP").
1. An Administrative WTFP, subject to the public works director's approval, may be
issued for wireless telecommunications facilities, collocations, modifications or
replacements to an eligible support structure that meet the following criteria:
a. The proposal is determined to be for a SWF; or
b. The proposal is determined to be an eligible facilities request; or
c. Both.
2. In the event that the public works director determines that any application submitted
for an Administrative WTFP does not meet the administrative permit criteria of this
chapter, the public works director shall convert the application to a Major WTFP and
refer it to the planning director for a planning commission hearing pursuant to
subsection C.
3. Except in the case of an eligible facilities request, the public works director may refer,
in his/her discretion, any application for an Administrative WTFP to the planning
director, who shall have discretion to further refer the application to planning
commission for hearing. If the planning director determines not to present the
Administrative WTFP application to the planning commission for hearing, the
application shall be relegated back to the public works director for processing. This
exercise of discretion shall not apply to an eligible facilities request.
C. Major Wireless Telecommunications Facilities Permit ("Major WTFP"). All other new
wireless telecommunications facilities or replacements, collocations, or modifications to a
wireless telecommunications facility that are not qualified for an Administrative WTFP shall
require a Major WTFP subject to planning commission hearing and approval unless otherwise
provided for in this chapter.
D. Special Provisions for SWFs; SWF Regulations. Notwithstanding any other provision of this
chapter as provided herein, all SWFs are subject to a permit as specified in the SWF
Regulations, which are adopted and may be amended by city council resolution. All SWFs,
shall comply with the SWF Regulations, as they may be amended from time to time.
1. The SWF Regulations are intended to be constructed inconsistency with, and addition
to, the terms and provisions of this chapter. To the extent general provisions of this
chapter are lawfully applicable to SWFs, such terms shall apply unless in contradiction
to more specific terms set forth in the SWF Regulations, in which case the more
specific terms of the SWF Regulations shall control.
E. Other Permits Required. In addition to any permit that maybe 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
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the conditions and/or requirements of other required prior permits or other approvals from
other city departments, state or federal agencies. Building and encroachment permits, and all
city standards and requirements therefor, are applicable.
F. Eligible Applicants. Only applicants who have been granted the right to enter the PROW
pursuant to state or federal law, or who have entered into a franchise agreement with the city
permitting them to use the PROW, shall be eligible for a WTFP pursuant to this chapter.
12.12.050 —APPLICATION FOR WIRELESS TELECOMMUNICATIONS FACILITY
PERMITS.
A. Generally. Unless the SWF Regulations specifically provide otherwise, the applicant shall
submit a paper copy and an electronic copy of any application, amendments, or supplements to
a WTFP application, or responses to requests for information regarding a WTFP, in accordance
with the provisions of this section. SWF applications shall be governed by any additional
terms set forth in the SWF Regulations, and in the event of an inconsistency between the
provisions of this Section and the terms of the SWF Regulations, the Regulations shall control.
1. All applications for WTFPs shall be initially submitted to the public works director. In
addition to the information required of an applicant for an encroachment permit or any
other permit required by this code, each applicant shall fully and completely submit to
the city a written application on a form prepared by the public works director and
published on the city's website.
2. Application Submittal Appointment. All WTFP applications must be submitted to the
public works director at a pre -scheduled application submission appointment. City
staff will endeavor to provide applicants with an appointment within five business days
after receipt of a written request. A WTFP application will only be reviewed upon
submission of a complete application therefor.
3. If the wireless telecommunications facility will also require the installation of fiber,
cable or coaxial cable, such cable installations shall be included within the application
form and processed in conjunction with the proposal for vertical support structure(s).
Applicants shall simultaneously request fiber installation or other cable installation
when seeking to install antennas in the PROW. Standalone applications for the
installation of fiber, cable or coaxial cable, or accessory equipment designed to serve
an antenna must include all features of the wireless telecommunications facility
proposed.
B. Application Contents —Administrative WTFPs. The content of the application form for
facilities subject to an Administrative WTFP shall be determined by the public works director,
but at a minimum shall include the following:
1. The name of the applicant, its telephone number and contact information, and if the
applicant is a wireless infrastructure provider, the name and contact information for the
wireless service provider that will be using the wireless facility.
2. The name of the owner of the structure, if different from the applicant, and a signed
and notarized owner's authorization for use of the structure.
01181.0015/548498.1
3. A complete description of the proposed wireless telecommunications facility and any
and all work that will be required to install or modify it, including, but not limited to,
detail regarding proposed excavations, if any; detailed site plans showing the location
of the wireless telecommunications facility, and dimensioned drawings with
specifications for each element of the wireless facility, clearly describing the site and
all structures and facilities at the site before and after installation or modification; and
a dimensioned map identifying and describing the distance to the nearest residential
dwelling unit and any historical structure within 500 feet of the facility. Before and
after 360 degree photo simulations must be provided.
4. Documentation sufficient to show that the proposed facility will comply with
generally -applicable health and safety provisions of the Municipal Code and the FCC's
radio frequency emissions standards.
5. A copy of the lease or other agreement, if any, between the applicant and the owner of
the property to which the proposed facility will be attached.
6. If the application is for a SWF, the application shall state as such and shall explain why
the proposed facility meets the definition of a SWF.
7. If the application is for an eligible facilities request, the application shall state as such
and must contain information sufficient to show that the application qualifies as an
eligible facilities request, which information must demonstrate that the eligible support
structure was not constructed or deployed without proper local review, was not
required to undergo local review, or involves equipment that was not properly
approved. This shall include copies of all applicable local permits in -effect and as.
built drawings of the current site. Before and after 360 degree photo simulations must
be provided, as well as documentation sufficient to show that the proposed facility will
comply with generally -applicable health and safety provisions of the Municipal Code
and the FCC's radio frequency emissions standards.
8. For SWFs, the application must contain all additional application information, if any,
required by the SWF Regulations.
9. The Administrative WTFP applicant shall submit a fee for noticing, consistent with the
City's adopted fee schedule to provide notice all properties and record owners of
properties within 300 feet of the project location.
10. If the applicant contends that denial of the application would prohibit or effectively
prohibit the provision of service in violation of federal law, or otherwise violate
applicable law, the application must provide all information on which the applicant
relies on in support of that claim. Applicants are not permitted to supplement this
showing if doing so would prevent the city from complying with any deadline for
action on an application.
C. Application Contents —Major WTFPs. The public works director shall develop an application
form and make it available to applicants upon request and post the application form on the
city's website. The application form for a Major WTFP shall require the following
01181.0015/548498.1
information, in addition to all other information determined necessary by the public works
director:
1. The name, address and telephone number of the applicant, owner and the operator of
the proposed wireless telecommunication facility.
2. If the applicant does not, or will not, own the support structure, the applicant shall
provide a duly -executed letter of authorization from the owner of the structure. If the
owner of the support structure is the applicant, but such owner/applicant will not
directly provide wireless telecommunications services, the owner/applicant shall
provide a duly -executed letter of authorization from the person(s) or entity(ies) that
will provide those services.
3. A full written description of the proposed wireless telecommunications facility and its
purpose.
4. Detailed engineering plans of the proposed wireless telecommunications facility and
related report prepared by a professional engineer registered in the state documenting
the following:
a. Height/elevation, diameter, layout and design of the facility, including
technical engineering specifications, economic and other pertinent factors
governing selection of the proposed design, together with evidence that
demonstrates that the proposed facility has been designed to be the least
intrusive equipment within the particular technology available to the carrier for
deployment.
b. A photograph and model name and number of each piece of the facility or
proposed antenna array and accessory equipment included.
c. Power output and operating frequency for the proposed antenna array
(including any antennas existing as of the date of the application serving the
carrier identified in the application).
d. Total anticipated capacity of the wireless telecommunications facility for the
subject carrier, 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 support structure as
required by the city.
5. A written description identifying the geographic service area to be served by the
proposed WTFP, plus geographic or propagation maps showing applicant's service
area objectives.
6. A justification study which includes the rationale for selecting the proposed wireless
telecommunication facility design, support structure and location. A detailed
explanation of the applicant's coverage objectives that the proposal would serve, and
how the proposed use is the least intrusive means for the applicant to cover such
objectives. This shall include:
01181.0015/548498.1
a. A meaningful comparative analysis that includes the factual reasons why the
proposed location and design deviates is the least noncompliant or intrusive
location and design necessary to reasonably achieve the applicant's reasonable
objectives of covering an established significant gap (as established understate
and federal law).
b. Said study shall include all eligible support structures and/or alternative sites
evaluated for the proposed WTFP, and why said alternatives are not
reasonably available, technically feasible options that most closely conform to
the local values. The alternative site analysis must include the consideration of
at least two eligible support structures; or, if no eligible support facilities are
analyzed as alternatives, why no eligible support facilities are reasonably
available or technically feasible.
c. If a portion of the proposed facility lies within a jurisdiction other than the
city's jurisdiction, the applicant must demonstrate that alternative options for
locating the project fully within one jurisdiction or the other is not a viable
option. Applicant must demonstrate that it has obtained all approvals from the
adjacent jurisdiction for the installation of the extra jurisdictional portion of
the project.
7. Site plans) to scale, specifying and depicting the exact proposed location of the
proposed wireless telecommunications facility, location of accessory equipment in
relation to the support structure, access or utility easements, existing utilities, adjacent
land uses, and showing compliance with all design and safety requirements set forth in
this chapter.
8. A completed environmental assessment application, or in the alternative any and all
documentation identifying the proposed WTFP as exempt from environmental review
(under the California Environmental Quality Act, Public Resources Code 21000-
21189, the National Environmental Policy Act, 42 U.S.C. Section 4321 et seq., or
related environmental laws). Notwithstanding any determination of environmental
exemption issued by another governmental entity, the city reserves its right to exercise
its rights as a responsible agency to review de novo the environmental impacts of any
WTFP application.
9. An accurate visual impact analysis showing the maximum silhouette, view -shed
analysis, color and finish palette and proposed screening for the wireless
telecommunications facility, including scaled photo simulations from at least three
different angles.
10. Completion of the radio frequency (RF) emissions exposure guidelines checklist
contained in Appendix A to the FCC's "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.
11. 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
01181.0015/548498.1
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.
12. Copies of any documents that the applicant is required to file pursuant to Federal
Aviation Administration regulations for the proposed wireless telecommunications
facility.
13. 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 Chapter 8.28 (Noise) of this code.
14. A traffic control plan when the proposed installation. is on any street in a non-
residential zone. The city shall have the discretion to require a traffic control plan
when the applicant seeks to use large equipment (e.g., crane).
15. 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 wireless
telecommunication facility.
16. 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.
17. Evidence that the proposed wireless facility qualifies as a personal wireless service
facility.
18. Address labels for use by the city in noticing all property owners within 500 feet of the
proposed wireless telecommunication facility and, if applicable, all public hearing
information required by the municipal code for public noticing requirements.
19. Any other information and/or studies reasonably determined to be necessary by the
public works or planning directors) may be required.
D. Fees and Deposits Submitted with Application(s). For all WTFPs, application fee(s) shall be
required to be submitted with any application, as established by city council resolution and in
accordance with Government Code Section 50030. Notwithstanding the foregoing, no
application fee shall be refundable, in whole or in part, to an applicant for a WTFP unless paid
as a refundable deposit.
01181.0015/548498.1
E. Independent Expert. The public works and/or planning director, as applicable, is authorized to
retain on behalf of the city one or more independent, qualified consultant(s) to review any
WTFP application. The review is intended to be a review of technical aspects of the proposed
wireless telecommunications facility and shall include, but not be limited to, application
completeness or accuracy, structural engineering analysis, or compliance with FCC radio
frequency emissions standards.
F. Costs. Reasonable costs of city staff, consultant and attorney time (including that of the city
attorney) pertaining to the review, processing, noticing and hearing procedures directly
attributable to a WTFP shall be reimbursable to the city. To this end, the public works and/or
planning director, as applicable, may require applicants to enter a trust/deposit reimbursement
agreement, in a form approved by the city attorney, or other established trust/deposit
accounting mechanism for purposes of obtaining an applicant deposit from which the direct
costs of city processing of an application may be drawn -down.
G. Effect of State or Federal Law on Application Process. In the event a state or federal law
prohibits the collection of any information or application conditions required by this Section,
the public works director is authorized to omit, modify or add to that request from the city's
application form in consultation with the city attorney. Requests for waivers from any
application requirement of this Section shall be made in writing to the public works director or
his or her designee. The public works director may grant a request for waiver if it is
demonstrated that, notwithstanding the issuance of a waiver, the city will be provided all
information necessary to understand the nature of the construction or other activity to be
conducted pursuant to the WTFP sought. All waivers approved pursuant to this subsection
shall be (1) granted only on a case -by -case basis, and (2) narrowly -tailored to minimize
deviation from the requirements of the municipal code.
H. Applications Deemed Withdrawn. To promote efficient review and timely decisions, any
application governed under this chapter will be automatically deemed withdrawn by the
applicant when the applicant fails to tender a substantive response to the city on any
application within thirty (30) calendar days after the application is deemed incomplete in a
written notice to the applicant. The public works or planning director (as applicable) may, in
his/her discretion, grant a written extension for up to an additional thirty (30) calendar days
when the applicant submits a written request prior to the 90th day that shows good cause to
grant the extension.
I. Waiver of Applications Superseded by Submission of New Project. If an applicant submits a
WTFP application, but substantially revises the proposed facility during the application process
prior to any city hearing or decision on such application, the substantially revised application
shall be deemed a new application for all processing purposes, including federal shot clocks,
and the prior submittals deemed waived and superseded by the substantially revised
application. For purposes of this subparagraph, "substantially revised" means that the project
as initially -proposed has been alternately proposed for a location 300 feet or more from the
original proposal or constitutes a substantial change in the dimensions or equipment that was
proposed in the original WTFP application.
J. Rejection for Incompleteness. WTFPs will be processed, and notices of incompleteness
provided, inconformity with state, local, and federal law. If such an application is incomplete,
01181.0015/548498.1
it may be rejected by the public works director by notifying the applicant in writing and
specifying the material omitted from the application.
12.12.060 —REVIEW PROCEDURE.
A. Generally. Wireless telecommunications facilities shall be installed and modified in a manner
that minimizes risks to public safety and utilizes installation of new support structures or
equipment cabinets in the PROW only after all existing and replacement structure options have
been exhausted, and where feasible, places equipment underground, and otherwise maintains
the integrity and character of the neighborhoods and corridors in which the facilities are
located; ensures that installations are subject to periodic review to minimize the intrusion on
the PROW; and ensures that the city bears no risk or liability as a result of the installations, and
that such use does not inconvenience the public, interfere with the primary uses of the PROW,
or hinder the ability of the city or other government agencies to improve, modify, relocate,
abandon, or vacate the PROW or any portion thereof, or to cause the improvement,
modification, relocation, vacation, or abandonment of facilities in the PROW.
1�. Collocation Encouraged. Where the facility site is capable of accommodating a collocated
facility upon the same site in a manner consistent with the permit conditions for the existing
I the owner and operator of the existing facility shall allow collocation of third -party
facilities, provided the parties can mutually agree upon reasonable terms and conditions.
C. Findings Required for Approval.
L Administrative WTFP Applications for SWFs. For WTFP applications proposing a
SWF, the public works director or planning director, as the case may be, shall approve
such application if, on the basis of the application and other materials or evidence
provided in review thereof, all of the following findings can be made:
a. The facility qualifies as a SWF; and
b. The facility meets all standards, requirements and further findings as may be
speced in the SWF Regulations; and
c. The facility is not detrimental to the public health, safety, and welfare; and
d. The facility meets applicable requirements and standards of state and federal
law.
2. Administrative WTFP Applications for Eligible Facility Requests. For WTFP
applications proposing an eligible facilities request, the public works director shall
approve such application if, on the basis of the application and other materials or
evidence provided in review thereof, all of the following findings can be made:
a. That the application qualifies as an eligible facilities request; and
b. That the proposed facility will comply with all generally -applicable laws.
3. Major WTFP Applications. No Major WTFP shall be granted unless all of the
following findings are made by the applicable decision -maker:
01181.0015/548498.1
a. If applicable, all notices required for the proposed WTFP have been given,
including the inclusion, or placement on -site, of photo simulations for the
proposed facility.
b. The proposed wireless telecommunications facility has been designed and
located in compliance with all applicable provisions of this chapter.
c. If applicable, the applicant has demonstrated its inability to locate on an
eligible support structure.
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,
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 reasonably available.
D. Notice; Decisions. The provisions in this Section describe the procedures for the approval
process, any required notice and public hearings for a WTFP application.
1. Administrative WTFPs: Notice of a WTFP application for a SWF shall be mailed to
owners and occupants of real property surrounding the proposed SWF site in the
manner specified in the SWF Regulations. Applications qualifying for eligible
facilities requests shall not require notice.
2. Major WTFP Applications. Any Major WTFP application shall require notice and a
public hearing. Notice of such hearing shall be provided in accordance with
Government Code Section 65091. Public notices shall include color photo simulations
from three different angles depicting the wireless telecommunication facility as
proposed to be considered by the planning commission. If the application proposes the
use of an existing or replacement eligible support structure, such simulations shall be
posted upon the proposed support structure for a period of at least thirty (30) days prior
to the date of approval; such posted simulations shall remain in -place until final
decision on the application is reached.
3. Written Decision Required for All WTFP Determinations. Unless otherwise specified
for SWF's in the SWF Regulations, all final decisions made pursuant to this chapter,
including those for administratively -processed permits and eligible facilities requests,
shall be in writing and based on substantial evidence in the written administrative
record. Within five days after any decision to grant, approve, deny or conditionally
grant a WTFP application, the public works director or planning director, as
applicable, shall provide written notice including the following:
01181.0015/548498.1
a. A general explanation of the decision, including the findings required for the
decision, if any, and how those findings were supported or not supported by
substantial evidence;
b. A general description of the property involved;
c. Information about applicable rights to appeal the decision and explanation of
how that right may be exercised; and
d. To be given by first class mail to:
(i) The project applicant and property owner,
(ii) Any person who submitted written comments concerning the WTFP,
(iii) Any person who has filed a written request with the city to receive
such notice, and
(iv) Any homeowner association on file with the city that has jurisdiction
over the WTFP site.
4. Once a WTFP is approved, no changes shall be made to the approved plans without
review and approval in accordance with this chapter.
E. Appeals.
l . Administrative WTFP Appeals. Any person claiming to be adversely affected by an
administrative decision pursuant to this chapter may appeal such decision. The appeal
will be considered by a hearing officer appointed by the city manager. The hearing
officer may decide the issues de novo and his/her written decision will be the final
decision of the city. An appeal by a wireless infrastructure provider must be taken
jointly with the wireless service provider that intends to use the wireless facility.
Because Section 332(c)(7) of the Telecommunications Act preempts local decisions
premised directly or indirectly on the environmental effects of radio frequency (RF)
emissions, appeals of the administrative decision premised on the environmental
effects of radio frequency emissions will not be considered.
a. Where the administrative decision grants an application based on a finding that
denial would result in a prohibition or effective prohibition under applicable
federal law, the decision shall be automatically appealed to the hearing officer.
All appeals must be filed within two (2) business days of the written
administrative decision, unless the public works director extends the time
therefore. An extension may not be granted where extension would result in
approval of the application by operation of law.
b. Any appeal shall be conducted so that a timely written decision maybe issued
in accordance with applicable law. For SWFs, the appeal shall be conducted in
accordance with any procedures adopted in the SWF Regulations.
01181.0015/548498.1
2. Appeals on Major WTFPs shall proceed as provided in accordance with the appeal
provisions in Title 17 of the Municipal Code, Sections 17.58.100 and 17,60.130
(Appeals). The appellate authority may hear the appeal de novo.
F. 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 20 days prior to the expiration.
12.12.070 —DESIGN AND DEVELOPMENT STANDARDS.
A. SWF Design and Development Standards. SWFs are subject to those design and development
standards and conditions of approval set forth in the SWF Regulations. The city's grant of a
WTFP for a SWF does not waive, and shall not be construed to waive, any standing by the city
to challenge any FCC orders or rules related to small cell facilities, or any modification to
those FCC orders or rules.
B. Eligible Facilities Request Design and Development Standards. Approved eligible facili±ies
requests for which the findings set forth in Section 12.12.060 have been made are subject to the
following conditions, unless modified by the approving authority:
1. WTFP subject to conditions of underlying permit. Any WTFP granted in response to
an application qualifying as an eligible facilities request shall be subject to the terms
and conditions of the underlying permit and all such conditions that were applicable to
the facility prior to approval of the subject eligible facility request.
2. No permit term extension. The city's grant or grant by operation -Pi w of an elle
facilities request permit constitutes afedera lly-mandare d modification to the
underlying permit or approval for the subject tower or base station. Notwithstanding
any permit duration established in another permit condition, the city's grant or grant by
operation of law of a eligible facilities request permit will not extend the permit term
for the underlying permit or any other underlying regulatory approval, and its term
shall have the same term as the underlying permit or other regulatory approval for the
subject tower or base station.
3. No waiver of standing. The city's grant or grant by operation of law of an eligible
facilities request does not waive, and shall not be construed to waive, any standing by
the city to challenge Section 6409(a) of the Spectrum Act, any FCC rules that interpret
Section 6409(a) of the Spectrum Act, or any modification to Section 6409(a) of the
Spectrum Act.
C. Major WTFP Design and Development Standards. All wireless telecommunications facilities
subject to a Major WTFP that are located within the PROW 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 standards:
01181.0015/548498.1
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 and public views, all in a
manner that achieves compatibility with the community and in compliance
with 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. Wireless telecommunications facilities shall be located consistent with Section
12.12.080 (Location Restrictions) unless an exception is granted.
2. Traffic Safety. All facilities shall be designed and located in such a manner as to avoid
adverse impacts on traffic safety.
3. Blending Methods. All facilities shall have subdued colors and non -reflective materials
that blend with the materials and colors of the surrounding area, infrastructure and
structures.
4. Equipment. The applicant shall use the least visible equipment for the provision of
wireless telecommunications services that is technically feasible. Antenna elements
shall be flush mounted, to the extent feasible, with all cables and wires clipped -up or
otherwise out of public view. 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
technically feasible.
5. Support Structures.
a. Pole -Mounted Only. Only pole -mounted antennas (excepting wooden poles
per subparagraph S.b below) shall be permitted in the public right -of --way.
Mountings to all other forms of support structure in the public right -of --way are
prohibited unless an exception pursuant to Section 12.12.080 is granted.
b. Utility Poles. Wireless telecommunications facilities shall not be located on
wooden poles unless an exception pursuant to Section 12.12.080 is granted.
The maximum height of any antenna shall not exceed 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 24 feet above any drivable road
surface. All installations on utility poles shall fully comply with the California
01181.0015/548498.1
Public Utilities Commission general orders, including, but not limited to,
General Order 95, as may be revised or superseded.
c. Light Poles. The maximum height of any antenna shall not exceed four 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 16�/z feet above any
drivable road surface.
d. Replacement Poles. If an applicant proposes to replace a pole that is an
eligible support structure to accommodate the proposed %facility, the
replacement 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.
e. Equipment mounted on a support structure shall not exceed four (4) cubic feet
in dimension.
f. No new guy wires shall be allowed unless required by other laws or
regulations.
g. An exception pursuant to Section 12.12.080 shall be required to erect any new
support structure (non -eligible support structure) that is not the replacement of
an existing eligible support structure.
h. As applicable to all new support structures (non -eligible support structures),
regardless of location, the following requirements shall apply:
(i) Such new support structure shall be designed to resemble existing
support structures of the same type in the right -of --way near that
location, including size, height, color, materials and style, with the
exception of any existing structural designs that are scheduled to be
removed and not replaced.
(ii) Such new support structures that are not replacement structures shall
be located at least 90 feet from any eligible support structure to the
extent feasible.
Such new support structures shall not adversely impact public view
corridors, as defined in the General Plan &Local Coastal Program 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 new support
structure. The applicant shall further employ concealment techniques
to blend the new support structure with said features including, but not
limited to, the addition of vegetation if feasible.
(iv) A justification analysis shall be submitted for all new support
structures that are not replacements to demonstrate why an eligible
support facility cannot be utilized and demonstrating the new structure
is the least intrusive means possible, including a demonstration that
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the new structure is designed to be the minimum functional height and
width required to support the proposed wireless telecommunications
facility.
i. All cables, including, but not limited to, electrical and utility cables, shall be
run within the interior of the support structure and shall be camouflaged or
hidden to the fullest extent feasible. For all support structures wherein interior
installation is infeasible, conduit and cables attached to the exterior shall be
mounted flush thereto and painted to match the structure.
6. Space. Each facility shall be designed to occupy the least amount of space in the right-
of-way that is technically feasible.
7. 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.
8. 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 cause safety hazards to pedestrians and motorists.
9. 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.
10. Screening. All ground -mounted facility, pole -mounted equipment, or walls, fences,
landscaping or other screening methods shall be installed at least 18 inches from the
curb and gutter flow line.
11. Accessory Equipment. Not including the electric meter, all accessory equipment shall
be located underground, except as provided below:
a. Unless city staff determines that there is no room in the public right -of --way for
undergrounding, or that undergrounding is not feasible, an exception pursuant
to Section 12.12.080 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 feet
and a total footprint of 15 square feet, and shall be fully screened and/or
camouflaged, including the use of landscaping, architectural treatment, or
acceptable alternate screening. Required electrical meter cabinets shall be
screened and/or camouflaged. Also, while pole -mounted equipment is
generally the least favored installation, should pole -mounted equipment be
sought, it shall be installed as required in this chapter.
01181.0015/548498.1
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.
12. 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.
13. 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.
14. Lighting.
a. No facility may be illuminated unless specifically required by the Federal
Aviation Administration or other government agency. Beacon lights are not
permitted unless required by the Federal Aviation Administration or other
government agency.
b. Legally required lightning arresters and beacons shall be included when
calculating the height of facilities such as towers, lattice towers and
monopoles.
c. Any required lighting shall be shielded to eliminate, to the maximum extent
possible, impacts on the surrounding neighborhoods.
d. Unless otherwise required under FAA or FCC regulations, applicants may
install only timed or motion -sensitive light controllers and lights, and must
install such lights so as to avoid illumination impacts to adjacent properties to
the maximum extent feasible. The city may, in its discretion, exempt an
applicant from the foregoing requirement when the applicant demonstrates a
substantial public safety need.
e. The applicant shall submit a lighting study which shall be prepared by a
qualified lighting professional to evaluate potential impacts to adjacent
properties. Should no lighting be proposed, no lighting study shall be required.
15. Noise.
a. Backup generators shall only be operated during periods ofpower outages, and
shall not be tested on weekends or holidays, or between the hours of 7:00 p.m.
and 7:00 a.m.
b. At no time shall equipment noise from any facility exceed the noise levels
permitted by Chapter 9.28 of this code.
16. Security. Each facility shall be designed to be resistant to, and minimize opportunities
for, unauthorized access, climbing, vandalism, graffiti and other conditions that would
01181.0015/548498.1
result in hazardous situations, visual blight or attractive nuisances. The public works
director or the approving city body, as applicable, 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.
17. 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.
18. The installation and construction approved by a wireless telecommunications facility
permit shall begin within one year after its approval or it will expire without further
action by the city.
19. Conditions of Approval. All Major WTFPs shall be subject to such conditions of
approval as reasonably imposed by the public works director or the approving city
body, as applicable, as well as any modification of the conditions of approval deemed
necessary by the public works director or the approving city body.
12.12.080 —LOCATION RESTRICTIONS; EXCEPTIONS FOR NON -COMPLIANT MAJOR
WIRELESS TELECOMMUNICATIONS FACILITIES.
A. Locations Requiring an Exception. Major WTFPs are strongly disfavored in certain areas and
on certain support structures. Therefore the following locations are permitted only when an
exception has been granted pursuant to subsection B hereof.
l . Public right -of --way within those zones identified in the general plan as residential.
2. Public right -of --way within 100 feet of designated historic buildings.
B. Required Findings for an Exception on Major WTFPs. For any Major WTFP requiring an
"exception" under this chapter, no such exception shall be granted unless all the following
requirements are satisfied:
1. The proposed wireless facility qualifies as a personal wireless service facility.
2. The applicant has provided the city with clear and convincing evidence of a clearly
defined significant gap (as established under state and federal law) and of a clearly
defined potential site search area.
a. In the event the applicant seeks to install a wireless telecommunications
facility to address service coverage concerns, the applicant shall provide the
city with full -color signal propagation maps with objective units of signal
strength measurement that show the applicant's current service coverage levels
from all adjacent wireless telecommunications facilities without the proposed
facility, predicted service coverage levels from all adjacent facilities serving
01181.0015/548498.1
applicant with the proposed facility, and predicted service coverage levels
from the proposed facility without all adjacent facilities.
b. In the event the applicant seeks to address service capacity concerns, the
applicant shall provide the city with a written explanation and propagation
maps identifying the existing facilities with service capacity issues together
with competent evidence to demonstrate the inability of those facilities to meet
capacity demands.
3. The applicant has provided the city with a meaningful comparative analysis that
includes the factual reasons why any alternative location(s) or design(s) suggested by
the city or otherwise identified in the administrative record, including, but not limited
to, potential alternatives identified at any public meeting or hearing, are not technically
feasible or reasonably available.
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 objectives of covering an established significant gap (as established under
state and federal law).
5. The applicant has demonstrated that strict compliance with provisions in this chapter
from which the applicant seeks to be exempt would effectively prohibit the provision
of personal wireless services.
C. Scope. The planning commission or public works director, as applicable, shall limit an
exemption for a Major WTFP to the extent to which the applicant demonstrates such
exemption is necessary to reasonably achieve its objectives of covering an established
significant gap (as established under state and federal law). The planning commission or
public works director, as applicable, may adopt conditions of approval as reasonably necessary
to promote the purposes in this chapter and protect the public health, safety and welfare.
12.12.090 —OPERATION AND MAINTENANCE STANDARDS.
All wireless telecommunications facilities must comply at all times with the following operation and
maintenance standards:
A. The permittee shall at all times maintain compliance with all applicable federal, state and local
laws, regulations and other rules, including, without limitation, those applying to use of the
PROW. The permittee shall ensure that all equipment and other improvements to be
constructed and/or installed in connection with the approved WTFP are maintained in a
manner that is not detrimental or injurious to the public health, safety, and general welfare and
that the aesthetic appearance is continuously preserved, and substantially the same as shown in
the approved plans at all times relevant to the WTFP.
B. Unless otherwise provided herein, all necessary repairs and restoration shall be completed by
the permittee, owner, operator or any designated maintenance agent at its sole cost within 48
hours:
01181.0015/548498.1
1. After discovery of the need by the pennittee, owner, operator or any designated
maintenance agent; or
2. After permittee, owner, operator or any designated maintenance agent receives
notification from the city.
C. Insurance. The permittee shall obtain and maintain throughout the term of the permit a type
and amount of insurance as specified by city's risk management. The relevant policy(ies) shall
name the city, its elected/appointed officials, commission members, officers, representatives,
agents; and employees as additional insured. The permittee shall use its best efforts to provide
thirty (30) days prior notice to the public works director of to the cancellation or material
modification of any applicable insurance policy.
D. Indemnities. The permittee and, if applicable, the owner of the property upon which the
wireless facility is installed shall defend, indemnify and hold harmless flee city, its agents,
officers, officials, and employees (i) from any and all damages, liabilities, injuries, losses,
costs, and expenses, and from any and all claims, demands, law suits, writs of mandamus, and
other actions or proceedings brought against the city or its . agents, officers, officials, or
employees to challenge, attack, seek to modify, set aside, void or annul the city's approval of
the pennit, and (ii) from any and all damages, liabilities, injuries, losses, costs, and expenses,
and any and all claims, demands, law suits, or causes of action and other actions or
proceedings of any kind or form, whether for personal injury, death or property damage,
arising out of or in connection with the activities or performance of the permittee or, if
applicable, the private property owner or any of each one's agents, employees, licensees,
contractors, subcontractors, or independent contractors. In the event the city becomes aware of
any such actions or claims the city shall promptly notify the permittee and, if applicable, the
private property owner and shall reasonably cooperate in the defense. The city shall have the
right to approve, which approval shall not be unreasonably withheld, the legal counsel
providing the city's defense, and the property owner and/or Permittee (as applicable) shall
reimburse the city for any costs and expenses` directly and necessarily incurred by the city in
the course of defending itself against any such actions or claims as noted herein.
E. Performance Bond. Prior to issuance of a wireless encroachment permit, the permittee shall
file with the city, and shall maintain in good standing throughout the tern of the approval, a
performance bond or other surety or another form of security for the removal of the facility in
the event that the use is abandoned or the permit expires, or is revoked, or is otherwise
terminated. The security shall be in the amount equal to 100% of the cost of removal of the
facility as specified in the application for the WTFP or as that amount may be modified by the
public works director in in the permit based on the characteristics of the installation. The
permittee shall reimburse the city for staff time associated with the processing and tracking of
the bond, based on the hourly rate adopted by the city council. Reimbursement shall be paid
when the security is posted and during each administrative review.
F. Adverse Impacts on Adjacent Properties. Permittee shall undertake all reasonable efforts to
avoid undue adverse impacts to adjacent properties and/or uses that may arise from the
construction, operation, maintenance, modification, and removal of the facility. All facilities,
including each piece of equipment, shall be located and placed in a manner so as to not
interfere with the use of the PROW, impede the flow of vehicular or pedestrian traffic, impair
the primary use and purpose of poles/signs/traffic signals or other infrastructure, interfere with
01181.0015/548498.1
outdoor dining areas or emergency facilities, or otherwise obstruct the accessibility of the
PROW.
G. Contact Information. Each permittee of a wireless telecommunications facility shall provide
the public works 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 days
of any change.
H. 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. 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 (water, sewer, storm drains, gas, oil, electrical, etc.) that result from
any activities performed in connection with the installation and/or maintenance of a
wireless facility in the PROW.
2. General dirt and grease;
3. Chipped, faded, peeling, and cracked paint;
4. Rust and corrosion;
5. Cracks, dents, and discoloration;
6. Missing, discolored or damaged artificial foliage or other camouflage;
7. Graffiti, bills, stickers, advertisements, litter and debris. All graffiti on facilities must
be removed at the sole expense of the permittee within forty eight (48) hours after
notification from the city.
8. Broken and misshapen structural parts; and
9. Any damage from any cause.
I. All trees, foliage or other landscaping elements approved as part of the facility shall be
maintained in neat, safe and 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 public works director.
J. 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.
K. Each facility shall be operated and maintained to comply at all conditions of approval. The
permittee, when directed by the city, must perform an inspection of the facility and submit a
JiI63�1I1I6yGZ' f:� L%�
report to the public works director on the condition of the facility to include any identified
concerns and corrective action taken. Additionally, as the city performs maintenance on city -
owned infrastructure, additional maintenance concerns may be identified. These will be
reported to the permittee. The city shall give the permittee thirty (30) days to correct the
identified maintenance concerns after which the city reserves the right to take any action it
deems necessary, which could include revocation of the permit. The burden is on the Permittee
to demonstrate that it complies with the requirements herein. Prior to issuance of a permit
under this Chapter, the owner of the facility shall sign an affidavit attesting to understanding
the city's requirement for performance of annual inspections and reporting.
L. All facilities permitted pursuant to this chapter shall comply with the Americans with
Disabilities Act.
M. The permittee is responsible for obtaining power to the facility and for the cost of electrical
usage.
N. Failure to comply with the city's adopted noise standard after written notice and reasonable
opportunity to cure have been given shall be grounds for the city to revoke the permit.
O. Interference.
1. 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 permitted activity or
encroachment, 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 a wireless encroachment permit, the
permittee shall provide the city with documentation establishing to the city's
satisfaction that the permittee has the legal right to use or interfere with any other
structure, improvement, or property within the PROW or city utility easement to be
affected by permittee's facilities.
2. The facility shall not damage or interfere in any way with city property, the city's
operations or the operations ofprior-existing, third party installations. The city will
reasonably cooperate with the permittee and/or carrier to carry out such activities as
are necessary to correct the interference.
a. Signal Interference. The permittee shall correct any such interference within
24 hours of written notification of the interference. Upon the expiration of the
24-hour cure period and until the cause of the interference is eliminated, the
permittee shall cease operation of any facility causing such interference until
such interference is cured.
b. Physical Interference. The city shall give the permittee thirty (30) days to
correct the interference after which the city reserves the right to take any
action it deems necessary, which could include revocation of the permit.
01181.0015/548498.1
3. The city at all times reserves the right to take any action it deems necessary, in its sole
discretion, to repair, maintain, alter, or improve the sites. Such actions may temporarily
interfere with the operation of the facility. The city will in all cases, other than
emergencies, give the applicant 30 days written notification of such planned, non -
emergency actions.
Exposure Compliance. All facilities must comply with all standards and regulations ofthe
FCC and any other state or federal government agency with the authority to regulate RF
exposure standards. After transmitter and antenna system optimization, but prior to unattended
operations of the facility, the permittee or its representative must conduct on -site post -
installation RF emissions testing to demonstrate actual compliance with the FCC Office of
Engineering and Technology Bulletin 65 RF emissions safety rules for general
population/uncontrolled RF exposure in all sectors. For this testing, the transmitter shall be
operating at maximum operating power, and the testing shall occur outwards to a distance
where the RF emissions no longer exceed the uncontrolled/general population limit.
1. Testing of any equipment shall take place on weekdays only, and only between the
hours of 8:30 a.m. and 4:30 p.m., except that testing is prohibited on holidays that fall
on a weekday. In addition, testing is prohibited on weekend days.
Q. Records. The permittee must maintain complete and accurate copies of all permits and other
regulatory approvals issued in connection with the facility, which includes without limitation
this approval, the approved plans and photo simulations incorporated into this approval, all
conditions associated with this approval and any ministerial permits or approvals issued in
connection with this approval. In the event that the permittee does not maintain such records
as required in this condition or fails to produce true and complete copies of such records within
a reasonable time after a written request from the city, any ambiguities or uncertainties that
would be resolved through an inspection of the missing records will be construed against the
permittee.
R. Attorneys Fees. In the event the city determines that it is necessary to take legal action to
enforce any of these conditions, or to revoke a permit, and such legal action is taken, the
permittee shall be required to pay any and all costs of such legal action, including reasonable
attorney's fees, incurred by the city, even if the matter is not prosecuted to a final judgment or
is amicably resolved, unless the city should otherwise agree with permittee to waive said fees
or any part thereof. The foregoing shall not apply if the permittee prevails in the enforcement
proceeding.
12.12.100 — NO DANGEROUS CONDITION OR OBSTRUCTIONS ALLOWED.
No person shall install, use or maintain any wireless telecommunications facility that 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.
Ol 181.0015/5484981
12.12.110 — NONEXCLUSIVE GRANT; NO POSSESSORY INTERESTS.
A. 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 a warranty of title.
B. No possessory interest is created by a WTFP. However, to the extent that a possessory interest
is deemed created by a governmental entity with taxation authority, the permittee
acknowledges that the city has the applicant notice pursuant to Revenue and Taxation Code
Section 107.6 that the use or occupancy of any public property pursuant to a WTFP may create
a possessory interest which may be subject to the payment of property taxes levied upon such
interest. Wireless telecommunications facility operators shall be solely liable for, and shall pay
and discharge prior to delinquency, any and all possessory interest taxes or other taxes, fees,
and assessments levied against their right to possession, occupancy, or use of any public
property pursuant to any right of possession, occupancy, or use created by the WTFP.
C. The permission granted by a WTFP shall not in any event constitute an easement on or an
encumbrance against the PROW. No right, title, or interest (including franchise interest) in the
PROW, or any part thereof, shall vest or accrue in permittee by reason of a wireless
encroachment permit or the issuance of any other permit or exercise of any privilege given
thereby.
12.12.120 —PERMIT EXPIRATION; ABANDONMENT OF APPLICATIONS.
A. Permit Term. 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 180 days prior to expiration. Said application
and proposal shall comply with the city's current code requirements for wireless
telecommunications facilities.
C. Timing PT + 11 A . The installation and construction authorized by a WTFP shall begin
within one (1) year after its approval, or it will expire without further action by the city. The
installation and construction authorized by a WTFP shall conclude, including any necessary
post -installation repairs and/or restoration to the PROW, within thirty (30) days following the
day construction commenced.
D. Commencement of Operations. The operation of the approved facility shall commence no later
than ninety (90) days after the completion of installation, or the WTFP will expire without
further action by the city. The permittee shall provide the public works director notice that
operations have commenced by the same date.
12.12.130 —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 90
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or more consecutive days unless the permittee has obtained prior written approval from the
director which shall not be unreasonably denied. If there are two 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 public works director in writing of its intent to
abandon or cease use of a permitted site or a nonconforming site (including unpermitted sites)
within ten days of ceasing or abandoning use. Notwithstanding any other provision herein, the
operator of the facility shall provide written notice to the public works director of any
discontinuation of operations of 30 days or more.
C. Failure to inform the public works director of cessation or discontinuation of operations of any
existing facility as required by this Section shall constitute a violation of any approvals and be
grounds for:
1. Litigation;
2. Revocation or modification of the permit;
3. Acting on any bond or other assurance required by this article or conditions of
approval of the permit;
4. Removal of the facilities by the city in accordance with the procedures established
under this code for abatement of a public nuisance at the owner's expense; and/or
5. Any other remedies permitted under this code or by law.
12.12.140 —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 WTFP or abandonment of the facility, the permittee, owner or operator shall
remove its wireless telecommunications facility and restore the site to the condition it was in
prior to the granting of the WTFP, 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. Expired,
terminated or revoked wireless telecommunications facility equipment shall be removed from
the site 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 90 days after expiration, earlier termination or revocation of the WTFP, 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 public works director where circumstances are beyond the
control of the permittee after expiration. Further failure to abide by the timeline provided in
this Section shall be grounds for:
1. Prosecution;
2. Acting on any security instrument required by this chapter or conditions of approval of
permit;
01181.0015/548498.1
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 or by law.
C. Summary Removal In the event any city 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"), such 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 business days of removal and all
property removed shall be preserved for the owner's pick-up as feasible. If the owner cannot be
identified following reasonable effort or if the owner fails to pick-up the property within 60
days, the facility shall be treated as abandoned property.
D. Removal of Facilities by City. In the event the city removes a wireless telecommunications
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
removal by the city due to exigent circumstances.
12.12.150 —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 chapter and
other sections of this code, this chapter shall control.
12.12.160 —STATE OR FEDERAL LAW.
The implementation of this chapter and decisions on applications for placement of wireless
telecommunications facilities in the PROW shall, at a minimum, ensure that the requirements of this
chapter are satisfied, unless it is determined that the applicant has established that denial of an
application would, within the meaning of federal law, prohibit or effectively prohibit the provision of
personal wireless services, or otherwise violate applicable laws or regulations. If that determination is
made, the requirements of this Chapter may be waived, but only to the minimum extent required to
avoid the prohibition or violation.
12.12.170 —LEGAL NONCONFORMING WIRELESS TELECOMMUNICATIONS
FACILITIES IN THE RIGHT-OF-WAY.
A. Legal nonconforming wireless telecommunications facilities are those facilities that existed but
did not conform to this chapter on the date this chapter became effective.
01181.0015/548498.1
B. Legal nonconforming wireless telecommunications facilities shall, within ten years from the
date this chapter became effective, 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.
aggrieved person may file an appeal to the city council of any decision of the public works
director or other deciding body made pursuant to this Section. In the event of an appeal
alleging that the ten-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.
01181.0015/548498.1