A.
The
purpose of this chapter is to establish procedures and standards,
consistent with all applicable federal, state, and local laws for
small cell facilities and eligible facilities requests in the city's
public right-of-way and to ensure that facilities are carefully located,
designed, constructed, modified, maintained, unified, and removed
when no longer in use in conformance with all applicable health, safety,
and welfare regulations.
B.
Exemptions.
1.
In
the event that there is an emergency, disaster, special event, or
other extenuating circumstances, the community development director
may exempt from the requirements of this chapter the installation
of a "cell on wheels," "cell on truck," or a similar structure for
a temporary period in connection with the emergency or event, but
no longer than required for the emergency or event, provided that
installation does not involve excavation, movement, or removal of
existing facilities.
2.
The
placement or modification of wireless facilities by the city or by
any other agency of the state solely for public safety purposes.
(Ord. 755 § 2, 2019)
means any small cell facilities or wireless support structures
that are unused for a period of one hundred eighty days without the
operator otherwise notifying the city and receiving the city's approval.
means communications equipment that transmits or receives
radio frequency signals.
means any person applying for a small cell permit under Chapter 17.96.
shall have the meaning as set forth in 47 C.F.R. Section
1.6100(b)(1).
means the same as defined by the Federal Communications Commission
in 47 C.F.R. Section 1.6002(g)(1) and (2), as may be amended.
means a pole, arch, or other structure, except for a street
light pole, placed in the public right-of-way that is specifically
designed and placed for aesthetic purposes and on which no appurtenances
or attachments have been placed except for any of the following: (a)
electric lighting; (b) specially designed informational or directional
signage; (c) temporary holiday or special event attachments.
means those detailed design standards, specifications and examples adopted by the city council pursuant to Chapter 17.96 related to the design and installation of small cell facilities.
shall have the meaning as set forth in 47 C.F.R. Section
1.6100(b)(3).
means the housing for the main source of power and distribution
of panels for building, streetlights, parks and other uses.
means the applicant issued a small cell permit pursuant to
this chapter.
means any natural person or any association, firm, partnership,
joint venture, corporation, or other legally recognized entity, whether
for-profit or not-for-profit.
means the same as defined in 47 U.S.C. Section 332(c)(7)(C)(i),
as may be amended, which defines the term as commercial mobile services,
unlicensed wireless services and common carrier wireless exchange
access services.
means the surface of, and the space within, through, on,
across, above, or below, any public street, public sidewalk, public
boulevard, public parkway, and any other land dedicated or otherwise
designated for a compatible public use, which is owned or controlled
by the city of Loma Linda pursuant to Chapter 12.04.
means a type of wireless infrastructure comprised of small
antennas that are placed on existing or new vertical infrastructure
(such as utility poles) within the public right-of-way, and which
are accompanied by equipment installed on the pole, on or below the
ground.
More specifically, a small cell facility shall meet all of
the following requirements:
The facility:
Is mounted on a structure fifty feet or less in height, including
antennas, as defined in 47 C.F.R. Section 1.1320(d); or
Is mounted on a structure no more than ten percent taller than
other adjacent structures; or
Does not extend existing structures on which it is located to
a height of more than fifty feet or by more than ten percent, whichever
is greater;
Each antenna associated with the deployment, excluding associated
antenna equipment (as defined in the definition of antenna in 47 C.F.R.
Section 1.1320(d)), is no more than three cubic feet in volume;
All other wireless equipment associated with the facility, including
the wireless equipment associated with the antenna and any pre-existing
associated equipment on the structure, is cumulatively no more than
twenty-eight cubic feet in volume;
The facilities 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);
The facility is not located on Tribal lands, as defined under
36 CFR 800.16(x); and
The facility does not require antenna structure registration
under 47 C.F.R. Part 17.
means the non-exclusive grant of authority issued by the
city of Loma Linda to install a small cell facility in a portion of
the public right-of-way.
means any structure capable of supporting a base station.
means any structure 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 personal
wireless 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.
means a structure that is designed for, or used for the purpose
of, carrying lines, cables, or wires for electric or telecommunications
service. "Utility pole" excludes street signs, street light poles,
and decorative poles.
means equipment at a fixed location that enables wireless
communications between user equipment and a communications network,
including, without limitation, all of the following:
Equipment associated with wireless communications;
Radio transceivers, antennas, coaxial or fiber-optic cable,
regular and backup power supplies, and comparable equipment, regardless
of technological configuration;
Associated towers, support structures, or base stations; and
The term does not include coaxial or fiber-optic cable that
is not immediately adjacent to or directly associated with a particular
antenna and equipment.
(Ord. 755 § 2, 2019)
The following requirements shall apply to wireless facilities
which are proposed for installation within the public right-of-way:
A.
The permitting procedures and authorizations set forth in this chapter shall apply only to small cell facilities and eligible facilities requests in the public right-of-way. Except for small cell facilities, facilities qualifying as eligible facilities requests, exempt facilities, or any other type of facility expressly allowed in the public right-of-way by state or federal law, no other wireless facilities or Wireless Telecommunications Facilities as defined in Chapter 17.02 shall be permitted pursuant to this chapter.
B.
No
person shall occupy or use the public right-of-way without first obtaining
city approval and appropriate permit(s), and any requisite consent
of the city. Before placing wireless facilities in the public right-of-way
(other than exempt facilities), an applicant must apply for and receive
all necessary approvals and permits, including, but not limited to,
a general encroachment permit for work within public right-of-way
as provided under Chapter 12.04 of the Loma Linda Municipal Code.
C.
In
occupying or using the public right-of-way, no person shall compromise
the public health, safety, and welfare.
D.
Nothing
in this chapter precludes the city from applying its generally applicable
health, safety, and welfare regulations when granting a permit for
a wireless facility in the city's public right-of-way.
E.
Any
wireless facility already existing in the public right-of-way as of
the date of the ordinance codified in this chapter's adoption shall
remain subject to the provisions of the Loma Linda Municipal Code
in effect prior to this chapter, unless and until a renewal of such
then-existing permit is granted, at which time the provisions of this
chapter shall apply in full force going forward as to such facility.
The review of any request for a renewal of a permit for such preexisting
wireless facilities shall be conducted pursuant to this chapter, rather
than the portion(s) of the municipal code under which it was previously
reviewed.
(Ord. 755 § 2, 2019)
Community development director ("the director") or designee
is responsible for administering this chapter. As part of the administration
of this chapter, the director may:
A.
Interpret
the provisions of this chapter and the design standards;
B.
Develop
forms and procedures for submission of applications consistent with
this chapter;
C.
Determine
the amount of and collect, as a condition of the completeness of any
application, any fee established by this chapter in accordance with
applicable laws and regulations;
D.
Establish
deadlines for submission of information related to an application,
and extend or shorten deadlines where appropriate and consistent with
state and federal laws and regulations;
E.
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;
F.
Require,
as part of, and as a condition of completeness of any application,
notice to members of the public that may be affected by the application;
and
G.
Take
such other steps as may be required to timely act upon applications,
including issuing written decisions and entering into agreements to
mutually extend the time for action on an application.
(Ord. 755 § 2, 2019)
A.
Pre-Application
Conference. A pre-submittal conference with city staff and potential
applicants is strongly encouraged to discuss potential project applications
on a conceptual level.
B.
Application
Required. Prior to installation, modification, relocation or removal
of a wireless facility in the public right-of-way, the applicant shall
apply to the city in-person and receive approval from the city.
C.
Required
Application Materials. An applicant shall submit an application on
the form approved by the community development and public works departments,
which may be updated from time to time, but in any event shall require
the submission of all required fee(s), documents, information, and
any other materials necessary to allow the city to make required findings
and ensure that the proposed facility will comply with applicable
federal and state law and the Loma Linda Municipal Code, and will
not endanger the public health safety, or welfare. Application forms
shall be obtained from the department of community development.
D.
Application
Processing Fee. An application processing fee shall be collected at
the time an application is submitted for review and approval. The
fee amount shall be in conformance with the limits prescribed by law
and/or the established fee resolution of the city of Loma Linda.
E.
Incompleteness.
Applications will be processed to determine completeness and consistency
with all applicable federal, state, and local laws. If an application
is incomplete, the community development department and/or public
works department shall notify the applicant in writing of the specific
deficiencies with the submitted application and/or materials.
F.
Application
Approval. The final review and determination regarding a complete
application shall be made by the director.
1.
Except
for eligible facilities requests, the director shall approve an application
if, on the basis of the application and other materials or evidence
provided in review thereof, they find the following:
a.
Safety and compliance of the design of the proposed facilities, relevant
structures, landscaping, luminaries and other site features which
may include functional aspects of the site development, including
compliance with any applicable design standards, as adopted by resolution
of the city council, and
b.
Compliance with all applicable requirements and standards of state
and federal law; and
2.
For
eligible facilities requests, the director shall approve an application
if, on the basis of the application and other materials or evidence
provided in review thereof, it finds the following:
3.
Application
approval shall not be construed to waive standard permit fees for
building or public works permits authorizing construction activities
conducted within the city;
4.
Decisions
shall be in writing and include the reasons for the decision;
5.
The
director is authorized, in his or her discretion, to select and retain
independent consultant(s) with expertise in telecommunications in
connection with the review of any application under this chapter.
Such independent consultant review may be retained on any issue that
involves specialized or expert knowledge in connection with an application,
including, but not limited to, application completeness or accuracy,
structural engineering analysis, or compliance with FCC radio frequency
emissions standards.
(Ord. 755 § 2, 2019)
The city council shall adopt by resolution detailed design standards
to provide guidance and a degree of consistency in the design of small
cell facilities proposed for placement within the public right-of-way.
The guidelines are not intended to dictate a one-size-fits-all approach
for use at all times and/or for all potential locations, but to illustrate
how small cell facilities can be aesthetically integrated into the
existing public streetscape and neighborhood character with the least
amount of adverse visual impact as possible.
In the event that strict compliance with any provision contained
in the approved design standards, as applied to a specific proposed
small cell facility, would effectively prohibit the provision of personal
wireless services, the director may grant exceptions from strict compliance.
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 adopted design standards.
(Ord. 755 § 2, 2019)
All applications approved to install a small cell facility within
the public right-of-way shall be subject to the following standard
conditions of approval, in addition to any supplemental conditions
imposed by the city and other sections of this chapter, unless modified
by the director:
A.
Installation
Time Frame. Approved small cell facilities within the public right-of-way
shall be fully complete per approved plans within one hundred eighty
days from the date of approval.
1.
An
applicant may submit a written request for a time extension to the
community development director for an extended time frame not to exceed
one hundred eighty days from the last day of the previous approval
time frame.
2.
Requests
for a time extension shall be submitted in writing to the community
development director at least ten calendar days prior to the expiration
date of the initial small cell facility approval date. Requests for
the time frame extension shall provide a reason for the delay.
3.
Failure
to complete the project within above specified periods shall deem
the project approval null and void and require the removal of all
work performed in the right-of-way or require the submittal of a new
project application and payment of associated fees, including the
cost for new building and/or public works permits.
B.
Permit
Duration. A small cell permit shall be valid for a period of ten years,
unless pursuant to another provision of the code or these conditions,
it expires sooner or is terminated. At the end of ten years from the
date of issuance, such permit shall automatically expire, unless an
extension or renewal has been granted. A person holding a small cell
permit must either: (1) remove the small cell facility within thirty
days following the permit's expiration (provided that removal of support
structure owned by city, a utility, or another entity authorized to
maintain a support structure in the right-of-way need not be removed,
but must be restored to its prior condition, except as specifically
permitted by the city); or (2) at least ninety days prior to expiration,
submit an application to renew the small cell permit, which application
must, among all other requirements, demonstrate that the impact of
the small cell facility cannot be reduced. The small cell facility
must remain in place until it is acted upon by the city and all appeals
from the city's decision exhausted.
C.
Other
Permits Required. Upon the approval a small cell facility application,
and prior to the commencement of work in the public right-of-way,
the applicant shall obtain all required public works and/or building
permits to construct and/or install the approved small cell facility
and pay all applicable fees.
D.
Insurance.
Permittees obtaining a permit to install a small cell facility in
the public right-of-way, its successors and assigns, at its expense,
and without cost to the city, shall procure and maintain a single
limit commercial general liability insurance policy for bodily injury
and property damage and general aggregate amount as determined by
the city risk manager. All coverages are to be arranged on an occurrence
basis and include coverage for those hazards normally identified during
construction. All insurance coverage required herein shall be written
in a form and by a company or companies reasonably approved by the
risk manager of the city of Loma Linda and authorized to do business
in the state of California. All such insurance policies shall be specifically
endorsed to include all liability assumed by the permittee hereunder
and shall name the city of Loma Linda as an additional insured as
its interest may appear under this permit.
E.
Transferability.
The approval to operate a small cell facility within the public right-of-way
may be transferred to a new person upon written notice to the city
if no change to the physical configuration of the approved facility
is proposed. A new person seeking to make changes to the physical
components of an existing approved facility and/or desiring to upgrade
to new technology may be subject to the requirement of submitting
a new application and review process to utilize the subject location.
F.
Emergency
Contact and Access. The permittee shall provide a contact person and
phone number where a live individual can contacted in the event of
an emergency. In the event of an emergency, the city or its designee
may enter onto the facility to inspect upon a twenty-four hours' notice
to the permittee. The permittee shall cooperate with all inspections
and may be present for any inspection of its facility by the city.
The city reserves the right to enter or direct its designee to enter
the facility and support, repair, disable, or remove any elements
of the facility in emergencies or when the facility threatens imminent
harm to persons or property.
G.
Maintenance.
The permittee shall continually maintain the appearance of all components
related to the small cell facility or wireless support structure.
A description of the anticipated maintenance and monitoring program
for the antennae and back-up equipment, including frequency of maintenance
services, back-up service plans for disruption of service due to repair,
maintenance or monitoring activities shall be provided to the city
and kept on file for reference at any time.
H.
Generally
Applicable Health and Safety Regulations. All small cell facilities
shall be designed, constructed, operated, and maintained in compliance
with all generally applicable federal, state, and local health and
safety regulations, including, without limitation, all applicable
regulations for human exposure to RF emissions.
I.
No
Liability. The city shall not be liable to the permittee by reason
of inconvenience, annoyance, or injury to the small cell facilities
and related ground or pole-mounted equipment or activities conducted
by the permittee therefrom, arising from the necessity of repairing
any portion of the public right-of-way, or from the making of any
necessary alteration or improvements, in or to, any portion of the
public right-of-way, or in, or to, city's fixtures, appurtenances,
or equipment.
J.
Signal
Interference Prohibited. In the event that a permittee's small cell
facility interferes with the public safety radio system, or the city's
or state of California's traffic signal system, then the permittee
shall, at its cost, immediately cooperate with the city to either
rule out permittee as the interference source or eliminate the interference.
Cooperation with the city may include, but shall not be limited to,
temporarily switching the transmission equipment on and off for testing.
K.
Annual
Fee for Use of City-Owned Structures. For small cell facilities installed
on city-owned structures, the permittee shall be required to pay the
annual fee established in the master license agreement with the city.
L.
Annual
Certification. On or before January 15th of every year after commencing
operations, the permittee shall submit written confirmation to the
city that each facility is operating as approved. The certification
shall indicate that the facility is operating as approved and that
the facility complies with the most current FCC safety standards.
M.
Indemnification.
The permittee and, if applicable, the owner of the property on which
the small cell facilities or wireless support structures in the public
right-of-way are installed shall indemnify, protect, defend, and hold
the city and its elected officials, officers, employees, agents, and
volunteers harmless against any and all claims, lawsuits, judgments,
costs, liens, losses, expenses, fees to include reasonable attorney
fees and costs of defense, proceedings, actions, demands, causes of
action, liability and suits of any kind and nature, including personal
or bodily injury or death, property damage or other harm for which
recovery of damages is sought, to the extent that it is caused by
the negligence of the permittee who owns or operates small cell facilities
and wireless service in the public right-of-way, any agent, officer,
director, representative, employee, affiliate, or subcontractor of
the permittee, or their respective officers, agents, employees, directors,
or representatives while installing, repairing, or maintaining facilities
in the public right-of-way.
N.
Surety
Bond. All owners must procure and provide to the city a bond, or provide
proof of an equivalent financial mechanism, to ensure compliance with
all provisions of this chapter. The bond must be maintained for as
long as the owner has small cell facilities and/or wireless support
structures located in the public right-of-way. The bond or equivalent
financial method must specifically cover the cost of removal of unused
or Abandoned small cell facilities, wireless support structures, and
all other related facilities and equipment, based on the greater of
two contractors' quotes for removal that are provided by the permittee,
and damage to city property caused by a permittee or its agent of
each small cell facility and/or wireless support structure in case
the city has to remove or pay for its removal. Two acceptable alternatives
to a bond include a funds set-aside and a letter of credit.
O.
Priority
of City Right-of-way Improvements. All small cell facilities located
and/or utilizing existing structures, within the public right-of-way
are subject to modification and/or relocation as the result of right-of-way
improvements due to:
1.
New
development on private property requiring or conditioned to underground
existing overhead wires and utility poles; or
2.
Implementation
of a city council approved capital improvement project (CIP) necessitating
removal or placement of existing overhead wires, utility poles, and/or
other structures underground.
P.
Relocation
of a Small Cell Facility. The relocation of any small cell facility
shall require the submittal and approval of a new project application
and payment of associated processing and permit fees.
Q.
City
Removal for Safety and Imminent Danger Reasons. In the event that
the installation or operation of a small cell facility is determined
by the city engineer or building official to pose an imminent danger
to the public, health, safety, or welfare, then the city may:
1.
Order
the permittee to take immediate action, at the permittee's sole cost
and expense, to remedy the dangerous condition(s), including the requirement
to disconnect, remove, or relocate all, or a component of, the applicable
small cell facility; or
2.
Upon
the failure of the permittee to promptly remedy the dangerous condition,
the city, at the permittee's sole cost and expense, may take appropriate
action to address the dangerous condition(s), including the disconnection,
removal, or relocation of any component of the small cell.
R.
Removal/Abandonment
of Facilities. Any small cell facility that ceases to be operational
for a period of more than one hundred eighty days, without due cause
as approved by the city, shall be considered to be abandoned. Abandoned
facilities shall, at the permittee's sole cost and expense, be removed
in its entirety from the public right-of-way, with sixty days or notice
from the city.
S.
Restoration.
The permittee shall repair, at its sole cost and expense, any damage
to the public right-of-way, any facilities or landscaping located
within the public right-of-way, and/or the property of any third party
resulting from the permittee's installation, removal, or relocation
activities (or any other of the permittee's activities hereunder)
within ten calendar days following the date of such activities. Restoration
of the public right-of-way and such property must be to substantially
the same condition as it was immediately before the date that the
permittee was granted a small cell permit for the applicable location,
or did the work at such location (even if the permittee did not first
obtain a small cell permit). This includes restoration or replacement
of any damaged trees, shrubs, or other vegetation. Such repair, restoration,
and replacement shall be subject to the approval of the community
development director and/or public works director.
T.
Changes
in State or Federal Standards and Regulations. When required by any
revised applicable state or federal standards and regulations, the
owners of the small cell facilities governed by this chapter shall
bring any facilities and/or structures into compliance with the revised
standards and regulations within six months of the effective date
of the standards and regulations, unless a different compliance schedule
is mandated by the regulating agency. Failure to bring small cell
facilities into compliance with any applicable revised standards and
regulations shall constitute grounds for removal at the owner's expense.
U.
Tree
and Vegetation Trimming. The permittee and its contractors and agents
shall obtain prior written permission from the city public works director
before removing or trimming any trees or other vegetation in the public
right-of-way to install or maintain clearances for a small cell facility.
When trimming trees or vegetation on private property, the permittee
and its contractors and agents shall notify the city and obtain prior
written permission from the affected property owner(s). Improper pruning
or "topping" of trees is prohibited and may result in fines and/or
require replacement of the tree, at the permittee's sole cost and
expense, to the satisfaction of the community development director.
The city shall not be liable for any damages, injuries, or claims
arising from the permittee's actions under this section.
V.
Noise.
The permittee is required to incorporate ambient noise suppression
measures and/or to place the equipment in locations less likely to
impact adjacent residences or businesses to ensure compliance with
all applicable noise regulations.
W.
Code
Compliance. 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 the use of
public right-of-way.
X.
No
Waiver of Standing. The city's grant of a permit for a small cell
facility request 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.
(Ord. 755 § 2, 2019)
In addition to the conditions imposed by the director, all permits
for an eligible facility requests granted pursuant to this chapter
shall be subject to the following additional conditions, unless modified
by the director:
A.
Permit
Subject to Conditions of Underlying Permit. Any permit granted in
response to an application qualifying as an eligible facilities request
shall be subject to the terms and conditions of the underlying permit.
B.
No
Permit Term Extension. The city's grant or grant by operation of law
of an eligible facilities request permit constitutes a federally-mandated
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 be coterminous with the underlying permit
or other regulatory approval for the subject tower or base station.
C.
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.
(Ord. 755 § 2, 2019)
The provisions of this chapter are hereby declared to be severable,
and if any section, subsection, or clause of this chapter is held
by a court of competent jurisdiction to be unconstitutional or otherwise
invalid, such a ruling shall not affect the other parts of this chapter
that can be given effect.
(Ord. 755 § 2, 2019)
The city manager may excuse violations of this chapter for reasons
of force majeure. For purposes of this section, "force majeure" means
a strike, acts of God, acts of public enemies, orders of any kind
of a government of the United States of America or of the state of
California or any of their departments, agencies, or political subdivisions;
riots, epidemics, landslides, lightning, earthquakes, fires, tornadoes,
storms, floods, civil disturbances, explosions, partial or entire
failure of utilities or any other cause or event not reasonably within
the control of the permittee, but only to the extent the disabled
party notifies the other party as soon as practicable regarding such
force majeure and then for only so long as and to the extent that,
the force majeure prevents compliance or causes non-compliance with
the provisions hereof.
(Ord. 755 § 2, 2019)
