The city council of the city of Laguna Beach expressly finds
that the installation of small wireless facilities, the supporting
fiber backbone, and their accessory equipment throughout the city's
rights-of-way, requires city regulation, consistent with state and
federal law, in order to more fully protect the public health and
safety, preserve and protect the city's aesthetic interests, protect
city infrastructure and other public facilities, and to provide for
the orderly deployment of wireless telecommunications and wireless
utility facilities in order to ensure the continued quality of telecommunications
services to the public.
The city further places great emphasis on undergrounding facilities
and protecting undergrounded districts. For over four decades, the
city has facilitated and supported undergrounding efforts in neighborhoods
and along major scenic corridors and it is the intent of this ordinance
to protect this investment.
This chapter is intended to reflect and promote community interest
by: (a) ensuring that the balance between public and private interests
is maintained; (b) protecting the city's visual character from potential
adverse impacts and/or visual blight created or exacerbated by small
wireless facilities and accessory equipment; (c) protecting and preserving
the city's environmental resources; (d) protecting and preserving
the city's public rights-of-way; (e) protecting and preserving the
city's commitment and investment in undergrounding districts; (f)
promoting access to high-quality, advanced wireless services for the
city's residents, businesses and visitors; and (g) ensuring that providers
of telecommunications, and other similar wireless services, are treated
in a fair and equal manner throughout the city.
The city council further finds that regulations established
herein are not intended to, nor shall they be interpreted or applied
to:
(a)
Prohibit or effectively prohibit any provider's ability to provide
personal wireless services, or other similar wireless service;
(b)
Prohibit or effectively prohibit any personal wireless service provider's
ability to provide any interstate or intrastate telecommunications
service, subject to any competitively neutral and nondiscriminatory
rules or regulations;
(c)
Unreasonably discriminate among providers of functionally equivalent
services;
(d)
Deny any request for authorization to place, construct or modify
personal wireless service facilities on the basis of environmental
effects of radio frequency emissions to the extent that such facilities
comply with the Federal Communications Commission's regulations concerning
such emissions;
(e)
Prohibit any collocation or modification that the city may not deny
under federal or state law;
(f)
Impose any unfair, unreasonable, discriminatory or arbitrary fees
that exceed the reasonable cost to provide the services for which
the fee is charged;
(g)
Otherwise authorize the city to act in conflict with any applicable
federal or state law or regulation.
(Ord. 1320 § 5, 1996; Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
Unless the particular provisions or applicable law or the context
otherwise requires, the definitions contained in this section shall
govern the construction, meaning and application of words and phrases
used in this chapter.
means any and all on-site equipment associated with the installation
of a wireless telecommunications facility, including, but not limited
to, cabling, generators, back-up generators and power supply units,
wiring, coaxial and fiber optic cables, connections, fans, air conditioning
units, electrical panels, equipment shelters, equipment cabinets,
equipment buildings, pedestals, meters, vaults, splice boxes, radio
transceivers, transmitters, fencing, shielding, and surface location
markers. Accessory equipment does not include the support structure
or pole on which the wireless facility is attached to.
means the director's discretionary review of an application
relating to the review and issuance of a wireless facility permit,
including review by the approval authority to determine whether the
issuance of a permit is in conformity with the applicable provisions
of this chapter, the Policy adopted by resolution pursuant to this
chapter, and this code.
means that part of a wireless telecommunications facility
designed to radiate or receive radio frequency signals.
means any natural person, firm, partnership, association,
joint venture, corporation, or other entity (or combination of entities),
and the agents, employees, and contractors of such person or entity
that seeks city permits or other authorizations under this chapter.
means a written request, on a form provided by the city,
for a wireless facility permit under the authority of this chapter.
means the city official(s) designated to review and issue
a decision on a proposed permit or other authorization under this
chapter.
shall have the meaning as set forth in Title 47 Code of Federal
Regulations (C.F.R.) Section 1.40001(b)(1), or any successor provision.
This means a structure or equipment at a fixed location that enables
FCC-licensed or authorized wireless communications between user equipment
and a communications network (regardless of the technological configuration,
and encompassing DAS and small cells). "Base station" does not encompass
a tower or any equipment associated with a tower. Base station includes,
without limitation:
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.
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).
Any structure other than a tower that, at the time the relevant
application is filed with the city under this chapter, supports or
houses equipment described in paragraphs (a) and (b) 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.
"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 (a) and (b) of this definition.
Other 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.
means an analog or digital wireless telecommunications technology
that is based on a system of interconnected neighboring cell sites.
means the Code of Federal Regulations.
means the city of Laguna Beach.
means a stand-alone street light pole owned by the city of
Laguna Beach. These poles do not carry, hold, or support other utilities
such as electric, telephone or cable. The street light may be powered
by overhead conductors (the conductors are usually owned by the city),
underground direct connection to the electric utility, or underground
connection from an electric meter.
means the Laguna Beach Municipal Code.
means the mounting or installing of an antenna facility on
a pre-existing structure and/or modifying a structure for the purpose
of mounting or installing an antenna facility on that structure.
means a "cell on wheels," which is a wireless telecommunications
facility temporarily rolled in or temporarily installed. Under no
circumstances may a COW exist in the ROW for more than one month,
absent written approval of the director.
means the California Public Utilities Commission established in the California Constitution, Article XII, Section 5, or its duly appointed successor agency.
means a calendar day, except as otherwise set forth in this
chapter.
means any pole that includes decorative or ornamental features,
design elements and/or materials for aesthetic purposes.
means the public works department or community development
department of the city of Laguna Beach, as specified in this chapter.
means the installation, placement, construction, collocation
or modification of a small wireless facility, eligible facility, or
other wireless telecommunications facility.
means the director of public works or community development,
or designee.
means a request for approval of an eligible facility pursuant
to Section 6409(a), and as defined by the FCC in 47 C.F.R. Section
1.6100(b)(3), or any successor regulation, which defines that term
as any request for modification of an existing tower or base station
that does not substantially change the physical dimensions of such
tower or base station, involving: (1) collocation of new transmission
equipment; (2) removal of transmission equipment; or (3) replacement
of transmission equipment.
means the Federal Communications Commission or its duly appointed
successor agency.
means mounted to a pole, tower, or other freestanding structure
which is specifically constructed for the purpose of supporting an
antenna or wireless facility and placed directly on the ground at
grade level.
means the supplemental regulations established to exercise
reasonable local zoning control over wireless telecommunications facilities,
as may be amended from time to time by the director or city council.
means any city-owned or operated facility, equipment, pole,
pipe, cabinet, or other structure located in the public right-of-way
or in or on any other city-owned or operated property outside of the
public right-of-way.
includes any facility which in whole or in part, itself or
as part of another structure, rests upon, in, over or under the public
right-of-way.
means a change to an existing wireless telecommunications
facility that involves any of the following: collocation, expansion,
alteration, enlargement, intensification, reduction, or augmentation,
including, but not limited to, changes in size, shape, color, visual
design, or exterior material. "Modification" does not include repair,
replacement or maintenance if those actions do not involve a change
to the existing facility involving any of the following: collocation,
expansion, alteration, enlargement, intensification, reduction, or
augmentation.
means a structure composed of a single pole used to support
antennas or related equipment. A monopole also includes a monopine,
monopalm and similar monopoles camouflaged to resemble faux trees
or other faux objects attached on a monopole.
means attached or supported.
means the Laguna Beach Municipal Code, as amended from time
to time.
means a written authorization (in electronic or hard copy
format) to install a wireless telecommunications facility at a specified
location(s) in the city, including, but not limited to, in public
right-of-way, on any other city-owned or operated property, facility,
or other building or structure outside the PROW, or in or on any other
public or private property, facility, building or other structure
located anywhere else in the city. A permit may also consist of a
master agreement between the applicant and the city to install and
maintain one or more wireless telecommunications facilities in or
on any property, building, facility or other structure in the city.
means an applicant that has received a permit issued by the
city under this chapter, and all successors-in-interest.
means an individual, corporation, limited liability company,
partnership, association, trust, or other entity or organization,
including a governmental entity.
means the same as defined in 47 U.S.C. Section 332(c)(7)(C)(i),
as may be amended or superseded.
means the same as defined in 47 U.S.C. Section 332(c)(7)(C)(ii),
as may be amended or superseded.
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.
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, parkways,
and parking strips. The PROW does not include land 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.
means a permit issued ministerially to an appropriately licensed
contractor to perform work in the public right-of-way for the installation,
removal and replacement, and connections of utility infrastructure.
Permits are subject to time and place restrictions due to traffic
impacts and special noticing requirements. Permit issuance is often
dependent on prior discretionary review and approval by the planning
commission and/or prior permits issued by the community development
department.
means Section 6409(a) of the Middle-Class Tax Relief and
Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, codified
as 47 U.S.C. Section 1455(a) (also known as the "Spectrum Act'), as
may be amended or superseded.
means a wireless facility that provides telecommunications,
or other related services that meets each of the following conditions:
The facility:
Is mounted on structures fifty feet or less in height including
its antennas as defined in this section; or
Is mounted on structures 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 this section), is no more than three
cubic feet in volume;
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
twenty-eight cubic feet in volume;
The facility does not require antenna structure registration
under Part 17 of Subchapter A of Chapter 1 of Title 47 C.F.R., or
its successor regulations;
The facility is not located on Tribal lands, as defined under
36 C.F.R. Section 800.16(x), or its successor regulation; and
The facility does not result in human exposure to radio frequency
radiation in excess of the applicable safety standards specified in
47 C.F.R. Section 1.1307(b), or its successor regulation.
means the state of California.
means, with respect to an eligible facility request, the
same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(7), or any
successor regulation, which defines that term differently based on
the type of eligible support structure (tower or base station) and
location (in or outside the PROW). For clarity, this definition organizes
the FCC's criteria and thresholds for determining if a collocation
or modification substantially changes the physical dimensions of a
wireless tower or base station based on the type and location.
For towers outside the PROW, a substantial change occurs when:
The proposed collocation or modification increases the overall
height of the tower by more than ten percent or the height of one
additional antenna array with separation from the nearest existing
antenna not to exceed twenty feet (whichever is greater); or
The proposed collocation or modification adds an appurtenance
to the body of the tower that would protrude from the edge of the
tower more than twenty feet, or more than the width of the tower structure
at the level of the appurtenance (whichever is greater); or
The proposed collocation or modification involves the installation
of more than the standard number of equipment cabinets for the technology
involved, but not to exceed four; or
The proposed collocation or modification involves excavation
outside the current boundaries of the leased or owned property surrounding
the wireless tower, including any access or utility easements currently
related to the site.
For towers in the PROW and for all base stations, a substantial
change occurs when:
The proposed collocation or modification increases the overall
height of the tower more than ten percent or ten feet (whichever is
greater); or
The proposed collocation or modification involves adding an
appurtenance to the body of the structure that would protrude from
the edge of the tower or base station by more than six feet; or
The proposed collocation or modification involves the installation
of any new ground-mounted equipment cabinets when there are no pre-existing
ground-mounted equipment cabinets associated with the structure; or
The proposed collocation or modification involves the installation
of any new ground-mounted equipment cabinets that are more than ten
percent larger in height or overall volume than any other existing
ground-mounted equipment cabinets; or
The proposed collocation or modification involves excavation
outside the area in proximity to the structure and other transmission
equipment already deployed on the ground.
In addition, for all towers and base stations wherever located,
a substantial change occurs when:
The proposed collocation or modification would defeat the existing
concealment elements of the eligible support structure (wireless tower
or base station) as reasonably determined by the director; or
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 related to height, width, equipment
cabinets or excavation that is inconsistent with the thresholds for
a substantial change described in this section.
For purposes of this definition, changes in height should be
measured from the original support structure in cases where deployments
are or will be separated horizontally, such as on building rooftops;
in other circumstances, changes in height should be measured from
the dimensions of the tower or base station, inclusive of originally
approved appurtenances and any modifications that were approved prior
to the passage of the Spectrum Act.
means a freestanding mast, pole, monopole, guyed tower, lattice
tower, freestanding tower or other structure designed and primarily
used to support wireless telecommunications facility antennas.
means a circumstance in which compliance with a specific
requirement within this code is physically impossible and not merely
more difficult or expensive than a noncompliant alternative.
means any area in the city within which overhead wires, cables,
associated overhead equipment, appurtenances and other improvements
are either: (1) prohibited by ordinance, resolution or other applicable
law; (2) scheduled to be relocated underground within eighteen months
from the time an application is submitted; (3) planned to be relocated
underground with the city council's acceptance of a proposed assessment
district boundary and petition signed by no less than sixty percent
of the property owners within said boundary; or (4) primarily located
underground at the time an application is submitted.
means any pole or tower owned by any utility company that
is primarily used to support wires or cables necessary to the provision
of electrical or other utility services regulated by the California
Public Utilities Commission.
or "wireless telecommunications facility" ("WF") means the
equipment at a fixed location or locations in the city that enables
wireless telecommunications or wireless utility services. The term
does not include: (1) the support structure, tower or pole on, under,
or within which the equipment is located or collocated; or (2) coaxial,
fiber-optic or other cabling that is between telecommunications facilities
or poles or that is otherwise not immediately adjacent to or directly
associated with a particular antenna. Examples of wireless facilities
include small wireless facilities and eligible facilities.
Exceptions: The term "wireless facility" does not apply to
the following:
Government-owned and operated telecommunications facilities.
Emergency medical care provider-owned and operated telecommunications
facilities.
Mobile services providing public information coverage of news
events of a temporary nature.
Any wireless telecommunications facilities exempted from this
code by federal or state law.
means either a planning commission wireless facility permit
or administrative wireless facility permit issued by the city pursuant
to this chapter, and including the following categories:
"Planning commission wireless facility permit" or "PCWFP" means a permit issued by the planning commission for a new wireless
facility, collocation, or modification to an existing wireless facility.
"Small wireless facility permit" or "SWFP" means
a permit issued by the approval authority pursuant to the requirements
of this chapter for: (1) the deployment of a new small wireless facility;
or (2) the replacement of, collocation on, or modification of an existing
small wireless facility.
"Eligible facility permit" or "EFP" means a permit
issued by the approval authority for an eligible facility as defined
in Section 6409(a) and subject to the requirements of this chapter.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
(a)
This chapter applies to the siting, construction, installation, attachment,
operation, collocation, reconstruction, relocation, modification or
removal of any and all wireless facilities within the public right-of-way
within the city's jurisdictional and territorial boundaries as follows:
(1)
All facilities for which applications were not approved prior to
the adoption date shall be subject to and comply with all provisions
of this chapter.
(2)
All facilities for which applications were approved by the city prior
to the adoption date shall not be required to obtain a new or amended
permit until such time as a provision of this code so requires. Any
wireless telecommunication facility that was lawfully constructed
prior to adoption date that does not comply with the standards, regulations
and/or requirements of this chapter, shall be deemed a nonconforming
use and shall also be subject to the provisions of this chapter.
(3)
All facilities, notwithstanding the date approved, shall be subject immediately to the provisions of this chapter governing the operation and maintenance (Section 11.06.130), radio frequency emissions monitoring (Section 11.06.140), cessation of use and abandonment (Section 11.06.170), removal and restoration (Section 11.06.180) of wireless telecommunications facilities and the prohibition of dangerous conditions or obstructions by such facilities (Section 11.06.150); provided, however, that in the event a condition of approval conflicts with a provision of this chapter, the condition of approval shall control until the permit is amended or revoked.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
Notwithstanding any provision of the code to the contrary, a wireless facility shall not be deployed in the PROW within the city, except upon approval of a wireless facility permit issued in accordance with the requirements of this chapter and the rules, regulations, procedures and policies adopted from time to time by resolution of the city council pursuant to Chapter 11.06 of this code, and upon approval of any other related discretionary or ministerial permits. When required, the planning commission wireless facility permit or administrative permit, in conjunction with a coastal development permit as may also be required, shall constitute the city's discretionary entitlement governing the use, location, aesthetics, and other characteristics. Once the discretionary permit is issued and recorded, the project is considered entitled, and the permittee may then enter the construction phase to process any required ministerial approvals associated with the project, including a right-of-way work permit.
(a)
Planning Commission Wireless Facility Permit. All new wireless facilities,
collocations or modifications to existing wireless facilities, and
any associated aerial strands of fiber or coaxial cable within city
limits, shall require a planning commission wireless facility permit
unless otherwise provided for in this chapter.
(b)
Administrative Wireless Facility Permit.
(1)
Small Wireless Facility Permit. A small wireless facility permit,
subject to the director's approval, may be issued for new small wireless
facilities that meet all the following criteria:
(A)
All aspects of the proposed improvements and equipment qualify the
project as a "small wireless facility" as defined by this chapter.
(C)
New segments of fiber or coaxial cable serving the small wireless
facility and located beyond the support structure footprint are designed
as a below-grade network.
(2)
Eligible Facility Permit. An eligible facility permit, subject to
the director's approval, may be issued for modifications that meet
the following criteria:
(A)
The proposal qualifies as an eligible facilities request as defined
by 47 C.F.R. Section 1.6002 and 47 U.S.C. Section 1455, as those provisions
may be amended from time to time. In addition to the other factors
discussed therein, the director shall make an explicit finding demonstrating
that the proposed modification does not result in a substantial change
to the eligible support structure because it does not defeat the existing
concealment elements, which is to be defined as broadly as possible
in accordance with the law.
(B)
The applicant has provided sufficient information either showing
it owns the property on which the facility is located, or that the
property owner has provided its consent to locating the facility where
proposed.
(3)
In order for the director to approve a permit under this subsection
(b) (Administrative Wireless Facility Permit), the director must make
the following findings in writing:
(A)
The requirements of subsections (b)(1)—(b)(2) have been met.
(B)
All notices required for the proposed installation have been given.
(C)
The proposed facility has been designed and located in compliance
with all applicable provisions of this chapter and the city's Guidelines
for Site Selection and Visual Impact and Screening of Telecommunication
Facilities.
(D)
If applicable, the applicant has demonstrated its inability to locate
on existing or replacement infrastructure.
(E)
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.
(F)
The applicant has demonstrated the proposed installation is designed
such that the proposed installation represents the least intrusive
means possible as supported by factual evidence and a meaningful comparative
analysis to show that all preferred alternative locations and designs
identified in the application review process were technically infeasible
or not available.
(4)
The director may, in the director's discretion, refer any application
for an administrative wireless facility permit to the planning commission
for approval.
(5)
In the event the director determines that any application submitted
for an administrative wireless facility permit does not meet the criteria
of this code, the director shall deny the application and make the
required written findings.
(c)
Right-of-Way Work Permit. A right-of-way work permit may be issued
by the public works director subject to time and place restrictions
and only once all necessary discretionary entitlements have been approved
and recorded. This permit shall allow the appropriately licensed contractor
to perform work within the public right-of-way subject to appropriate
traffic control methods and associated public notification as determined
necessary by the director.
(d)
Other Permits Required. In addition to any permit that may be required under this chapter, the applicant must obtain all other required permits or other approvals from other city departments, or state or federal agencies. Any permit granted under this chapter is subject to the conditions and/or requirements of other required permits or other approvals from other city departments, or state or federal agencies. Any improvements within the coastal zone that constitute development as defined in Section 25.07.006(D) and is neither exempt from the requirements of that Chapter (Section 25.07.008) nor issued a waiver for de minimis development (Section 25.07.009) requires approval of a coastal development permit.
(e)
Eligible Applicants. Only applicants who have been granted the right
to enter the public right-of-way pursuant to state or federal law,
or who have entered into a franchise agreement with the city permitting
them to use the public right-of-way, shall be eligible for a permit
to install or modify a wireless telecommunications facility or a wireless
telecommunications collocation facility in the public right-of-way.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
(a)
Application.
(1)
In addition to the information required of an applicant for a wireless
facility permit or right-of-way work permit required by this code,
each applicant requesting approval of the installation or modification
of a wireless telecommunications facility in the public right-of-way
shall fully and completely submit to the city a written application
on a form prepared by the director.
(2)
No applicant seeking to install wireless antennas shall seek an encroachment
permit for fiber or coaxial cable only. Applicants shall simultaneously
request fiber installation or other cable/utility installation when
seeking to install wireless installations in the right-of-way.
(b)
Application Contents for Wireless Installations. In addition to all
other information determined by the director to be necessary as may
published in a written application form, an application for a wireless
installation in the right-of-way shall contain the following information:
(1)
The name, address and telephone number of the applicant, owner, and
operator of the proposed facility.
(2)
The name, telephone number, and email address of a single point of
contact in the wireless facility operator's engineering and maintenance
departments to ensure timely resolution of all interference issues.
(3)
If the applicant is an agent of the owner of the proposed facility,
the applicant shall provide a duly executed letter of authorization
from the owner of the facility. If the applicant and/or owner will
not directly provide wireless services, the applicant shall provide
a duly executed letter of authorization from the person(s) or entity(ies)
that will provide those services at the time in which the facilities
are completed.
(4)
If the facility will be located on or in the property of someone
other than the owner of the facility (such as a street light pole,
street signal pole, utility pole, utility cabinet, vault, cable conduit,
or real property), the applicant shall provide a duly executed written
authorization from the property owner(s) authorizing the submission
of an entitlement application for the placement of the facility on
or in the property owner's property.
(5)
A full written description of the proposed facility and its purpose.
(6)
Detailed engineering plans of the proposed facility and related report
prepared by a professional engineer registered in the state documenting
the following:
(A)
Height, diameter and design of the facility, including technical
engineering specifications, and economic and other pertinent factors
governing selection of the proposed design, together with evidence
that demonstrates the proposed facility has been designed to the minimum
height and diameter required from a technological standpoint for the
proposed site. A layout plan, section and elevation of the support
structure shall be included.
(B)
For all equipment that would be visible to the public once the facility
has been constructed and activated, a photograph and model name and
number of each piece of equipment.
(C)
Power output and operating frequency for the proposed antenna.
(D)
Total anticipated capacity of the structure, indicating the number
and types of antennas and power and frequency ranges which can be
accommodated.
(E)
Sufficient evidence of the structural integrity of the pole or other
supporting structure as required by the city.
(7)
A comprehensive justification study which includes the rationale
for selecting the proposed location, design, and equipment; if applicable,
a detailed explanation of the coverage gap or deficiency that the
proposed use would resolve; and how the proposed location and configuration
is the least intrusive means for the applicant to provide wireless
service. Said study shall include all existing structures and/or alternative
sites evaluated for potential installation of the proposed facility
and why said alternatives are not a viable option or more intrusive.
(8)
Scaled site plans, elevations, electrical and structural plans, and all relevant details (e.g., antennas, accessory equipment including fiber and coaxial cable, and signage) specifying and depicting the exact proposed location of the pole, antennas, accessory equipment, screening, pole and equipment heights and widths, access or utility easements, landscaped areas, existing utilities, and adjacent land uses, and demonstrating compliance with Section 11.06.080 and the Guidelines for Site Selection and Visual Impact and Screening of Telecommunication Facilities.
(9)
An accurate visual impact analysis showing the maximum silhouette,
viewshed analysis, color and finish palette and proposed screening
for the facility, including scaled photo simulations from at least
three different angles. Unless unique circumstances dictate otherwise,
photo simulations should be taken from pedestrian level along surrounding
sidewalks or other public spaces, including the motorist's perspective.
Note that photo simulations with excessive cropping or inadequate
aspect ratios will be rejected until a wider field of view is provided
to fully anticipate the visual impact on the surrounding environment.
(10)
Completion of the radio frequency (RF) emissions exposure guidelines
checklist contained in Appendix A to the Federal Communications Commission's
(FCC) "Local Government Official's Guide to Transmitting Antenna RF
Emission Safety" to determine whether the facility will be "categorically
excluded" as that term is used by the FCC.
(11)
For a facility that is not categorically excluded under the FCC regulations
for RF emissions, or if an applicant does not wish to provide a copy
of the checklist from Appendix A of the Federal Communications Commission's A Local Government Official's Guide to Transmitting Antenna RF Emission
Safety: Rules, Procedures, and Practical Guide for Categorical Exclusion, the applicant shall submit an RF exposure compliance report prepared
and certified by an RF engineer acceptable to the city that certifies
that the proposed facility, as well as any facilities that contribute
to the cumulative exposure in the subject area, will comply with applicable
federal RF exposure standards and exposure limits. The RF report must
include the actual frequency and power levels (in watts Effective
Radiated 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. The projected
exposure shall be provided at ground level and shall also model the
exposure conditions at any nearby building(s) located within thirty
feet of the antenna(s).
The RF report shall be accompanied by an executive summary prepared
and certified by a qualified RF engineer summarizing the following
information: (i) the existing base level radio frequency radiation,
(ii) the maximum radio frequency radiation, (iii) the effective radiated
power per channel, and (iv) the total number of channels for an omnidirectional
antenna or the maximum number of channels in any sector for a sectored
antenna at the proposed site.
(12)
Copies of any documents that the applicant is required to file pursuant
to Federal Aviation Administration regulations for the 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 Section 11.06.080(a)(14)(B), unless all equipment is proposed to remain passively cooled.
(14)
A traffic control plan when the proposed installation, including
power, fiber, or coaxial cable, is located within any street.
(15)
When landscaping is proposed to mitigate the visual impact of a wireless
facility, a scaled conceptual landscape plan showing existing trees
and vegetation and all proposed landscaping, concealment, screening,
and proposed irrigation with a discussion of how the chosen material
at maturity will screen the site.
(16)
A written description identifying the geographic service area for
the subject installation, including geographic and propagation maps
that identify the location of the proposed facility in relation to
all existing and planned facilities maintained within the city by
the wireless service provider(s).
(A)
In the event the applicant seeks to install a wireless telecommunications
facility to address service coverage concerns, full-color signal propagation
maps with objective units of signal strength measurement that show
the applicant's current service coverage levels from all adjacent
sites without the proposed site, predicted service coverage levels
from all adjacent sites with the proposed site, and predicted service
coverage levels from the proposed site without all adjacent sites.
(B)
In the event the applicant seeks to address service capacity
concerns, a written explanation identifying the existing facilities
with service capacity issues together with competent evidence to demonstrate
the inability of those facilities to meet capacity demands.
(17)
Should the applicant maintain that they have a right to access the
public right-of-way under either state or federal law, the applicant
shall provide the necessary proof to show that the applicant has the
right to install the project in question. By way of example, an applicant
can meet this requirement by the following examples:
(A)
Franchise agreement;
(B)
DIVCA designation;
(C)
Certification that the applicant is a telephone corporation
or a statement providing the basis for its claimed right to enter
the right-of-way;
(D)
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 for the facility in question.
(18)
An application fee and a deposit for post-construction radio frequency
testing as set forth in paragraph E of this section in an amount set
by resolution by the city council and in accordance with California
Government Code Section 50030. A separate deposit in accordance with
paragraph D of this section may be required at the director's sole
and absolute discretion.
(19)
For applications subject to planning commission review and involving
a wireless facility mounted to a new support structure – unless
said structure constitutes a one-for-one replacement within five feet
of the existing structure footprint – proof that a temporary
mock-up of the facility and sign has been installed at the proposed
location for a period of at least twenty-one calendar days.
(A)
Applicant shall obtain an encroachment permit before installing
the temporary mock-up, and must remove the temporary mock-up within
five calendar days of receiving a written notice to remove from the
director.
(B)
When seeking the encroachment permit, the applicant shall provide
address labels for use by the city in noticing all property owners
within three hundred feet and tenants within one hundred feet of the
proposed installation. The city shall mail a notice regarding installation
of the mock-up at least five business days prior to the installation.
(C)
The mock-up shall demonstrate the height and mass of the facility.
The applicant shall not be entitled to install the facility it intends
to install permanently. The mock-up may consist of a wood utility
pole topped to the propose facility height, with PVC used to outline
all pole-mounted equipment, or the like.
(D)
The mock-up shall include a weather-proofed sign (eleven inches
by seventeen inches required format) that displays photo simulations
depicting before and after images, including any accessory equipment
cabinet, and the contact information of the assigned project planner.
(E)
The applicant shall be required to follow any other city practices
or processes relevant to the installation of a mock-up as may be provided
in a publicly accessible form or document.
(F)
After installation of the mock-up, the applicant shall certify
that the mock-up accurately represents the height and width of the
proposed installation and has been installed consistent with this
code.
(20)
A list of all other applications that either have been, or will be,
submitted in furtherance of the project, including, but not limited
to, applications to the California Coastal Commission, encroachment
permits, Caltrans permits, etc.
(21)
Any other information and/or studies reasonably determined necessary
by the director may be required, provided it is published before an
application is submitted to the city.
(c)
Application Contents—Modification of Existing Facility. The
content of the application form for a modification to an existing
facility shall be determined by the director, and shall include, but
not be limited to, the requirements listed in Section 11.06.050(B)
unless prohibited by state or federal law.
(d)
Independent Expert. The director is authorized to retain on behalf
of the city an independent, qualified consultant to review and process
any discretionary entitlement application for a wireless telecommunications
facility. The review and processing may include an evaluation of the
accuracy and completeness of the items submitted with the application
and all subsequent application completeness determinations, presentations,
preparation of staff reports, and associated administrative tasks,
or the consultant review may be focused to a review of technical aspects
of the proposed wireless telecommunications facility addressing any
or all of the following:
(1)
Compliance with applicable radio frequency emission standards;
(2)
Whether any requested exception is necessary to close a significant
gap in coverage and is the least intrusive means of doing so;
(3)
The accuracy and completeness of submissions;
(4)
Technical demonstration of the unavailability of alternative sites
or configurations and/or coverage analysis;
(5)
The applicability of analysis techniques and methodologies;
(6)
The validity of conclusions reached or claims made by the applicant;
(7)
The viability of alternative sites and alternative designs; and
(8)
Any other specific technical issues identified by the consultant
or the city.
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The cost of this review shall be paid by the applicant through
a deposit pursuant to an adopted fee schedule resolution. No permit
shall be issued to any applicant which has not fully reimbursed the
city for the consultant's cost.
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(e)
Radio Frequency (RF) Radiation Standard. Within three months after
construction of a wireless facility which contains transmitting antenna(s),
except in relation to amateur ham radio antenna(s) and transmitting
antenna(s) with an effective radiated power (ERP) of five watts or
less per channel, the maximum radio frequency (RF) radiation shall
be measured and documented in a written report submitted to the city.
The measurement and report shall be performed and prepared by a qualified,
independent testing service/consultant retained by the city at the
applicant's expense. The measurement shall be made utilizing the most
current testing protocol established by the Federal Communications
Commission (FCC). The maximum RF radiation shall not exceed the most
current FCC safety standards.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
(a)
Pre-Submittal Conference. Prior to application submittal, the city
strongly encourages, but does not require, all applicants to schedule
and attend a pre-submittal conference with community development department
staff to receive informal feedback on the proposed location, design
and application materials. The pre-submittal conference is intended
to identify potential concerns and streamline the formal application
review process after submittal. Community development department staff
will endeavor to provide applicants with an appointment within approximately
ten business days after receipt of a written request.
(b)
Application Submittal Appointment. All applications must be submitted
to the city at a pre-scheduled appointment. city staff will endeavor
to provide applicants with an appointment within ten business days
after receipt of a written request. This appointment will be considered
the city's initial receipt of any application materials for the purposes
of assessing the time in which the city has reviewed the application.
(c)
Notice; Decisions. The provisions in this section describe the procedures for approval and any required notice and public hearings for an application, except that if a coastal development permit is required pursuant to Chapter 25.07, noticing for that type of permit shall instead be carried out through the public notice provisions of Section 25.07.014. Exception: when a coastal development permit is necessary and subject to ten-day public noticing, but the application otherwise requires twenty-one-day noticing, the longer noticing period shall prevail.
(1)
Planning Commission Hearings. Any permit application under this chapter subject to planning commission approval shall require notice and a public hearing. Notice of such hearing shall be sent by mail not less than twenty-one calendar days prior to the date of the hearing and in accordance with Section 25.05.065. The planning commission may approve or conditionally approve an application only after it makes the findings required in Section 11.06.090.
(2)
Director's Decision Notice. The director may approve or conditionally approve an application only after it makes the findings required in Section 11.06.040(b)(3). Within five days after the director approves or conditionally approves an application under this chapter, the director shall provide notice in accordance with Section 25.05.065.
(3)
Notice of Shot Clock Expiration. The city acknowledges there are
presumptive federal and state shot clocks, which certain applicants
may argue are applicable to a proposed project covered under this
chapter. 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 director (e.g., overnight mail) no later
than twenty days prior to the expiration.
(4)
Written Decision Required. All entitlement decisions made pursuant
to this chapter shall be in writing and based on substantial evidence
in the written administrative record. The written decision shall include
the reasons for the decision.
(d)
Appeals. All decisions regarding planning commission wireless facility permits may be appealed to the city council, or to the planning commission for any decision rendered by the director regarding an administrative wireless facility permit, by the applicant or any owner of property within three hundred feet of the subject wireless facility. An administrative wireless facility permit appealed to the planning commission cannot also be appealed to the city council. Appeals of any determinations and requirements regarding coastal development permit processing, including exemptions, determinations relative to appealable development, etc., shall be as described in Chapter 25.07.
(1)
Any appeal by the applicant or owner of property within three hundred
feet of the subject wireless facility shall be in written form specifically
stating the grounds for the appeal and shall be filed with the city
clerk within fourteen calendar days of the decision or determination.
(2)
The filing of any appeal shall be accompanied by payment of the appeal
fee as determined by resolution of the city council, and no appeal
shall be accepted or deemed filed unless such payment is made. Where
more than one appeal is allowed, and if more than one appeal is filed,
then following the filing expiration date for appeals, the city clerk
shall prorate the required appeal fee among the total number of appeals
and refund the excess amount paid by each appellant.
(3)
Notwithstanding any provision of this section, any decision or determination
of the planning commission shall be automatically appealed to the
city council where a member of the commission has an ownership, leasehold
or consulting interest in the property or project that is the subject
of the decision or determination.
(4)
City Council Review of Decisions.
(A)
Any member of the city council may obtain review of any decision
or determination of the planning commission or director by a written
request for review to the city clerk, directly or through the city
manager, within fourteen calendar days of the decision or determination.
Where the city is the applicant or an aggrieved property owner, the
city manager may initiate proceedings for review of the decision or
determination by written request to the city clerk within fourteen
calendar days of the decision or determination.
(B)
A request for review shall not require any statement of reasons,
and therefore shall not represent support of or opposition to an application.
No fee shall be required for a request for review. There shall be
a presumption that the reason for the request is that the application
may be of significant concern to the community or significant importance
to the quality of life within the community and/or applicable land
use policies and regulations. There shall be no inference or implication
of bias or prejudgment due to a request for review being filed.
(5)
Processing of Appeals and Requests for Review.
(A)
Upon the city clerk's receipt of a timely and otherwise proper appeal,
no appeal may thereafter be withdrawn except upon a majority vote
of the city council allowing a withdrawal of the appeal.
(B)
The city clerk shall set the appeal or request for review for a public hearing before the city council no less than fourteen calendar days nor more than sixty calendar days after receipt of the appeal or request for review. Public notice of the hearing for the appeal or request for review shall be subject to the provisions of Section 25.05.065, except that the public notice for appeals of coastal development permits shall be instead carried out through the public notice provisions of Section 25.07.014.
(6)
Hearing and Decision on Appeals and Requests for Review.
(A)
Upon the hearing of the appeal or request for review, the city council
shall conduct a de novo review of the underlying application and shall
not be limited to the grounds stated for the appeal, if an appeal
was filed, and shall not be limited to the evidence that was presented
to the approval authority. The city council shall exercise its independent
judgment and discretion as to the evidence presented at its hearing.
Nevertheless, there shall be a presumption that the decision or determination
made by the approval authority was reasonable, valid, and not an abuse
of discretion; and the appellant, if there is one, shall have the
burden of proof of demonstrating otherwise by a preponderance of the
evidence presented.
(B)
The city council may uphold, reverse, wholly or partly, modify or
remand any appealed or reviewed decision or determination in the following
manner.
(C)
Three or more affirmative votes shall be required to reverse a decision
or determination. A reversal shall be approved by the city council
upon the adoption of a resolution that sets forth in writing the findings
relied on to conclude that the appealed or reviewed decision or determination
was in error or an abuse of discretion.
(D)
In the event the city council upholds an appealed or reviewed decision
or determination approving the application, the city council may modify
the proposed project or conditions of project approval, by making
them more restrictive, or may add more restrictive conditions of approval
upon the adoption of a resolution and without the need for a finding
of error or an abuse of discretion. "More restrictive" for purposes
of this subdivision shall include, without limitation, an incorporation
of view protection measures, enhanced equipment screening, and other
similar time, place, and manner considerations.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
(a)
Design and Development Standards. All small wireless facilities that
are located within the public right-of-way shall be designed and maintained
as to minimize visual, noise and other impacts on the surrounding
community and shall be planned, designed, located, and erected in
accordance with the following:
(1)
The city's "Guidelines for Site Selection and Visual Impact and Screening
of Telecommunication Facilities" shall be utilized to reduce the visual
impact of the wireless facility. Guideline compliance is required;
however, the approval authority may waive some of these requirements
if: (A) the applicant demonstrates that the imposition of certain
requirements would effectively prohibit the provision of personal
wireless services, as supported by clear and convincing evidence in
the written record; or (B) the approval authority in her/his/its sole
and absolute discretion determines that guideline compliance would
result in a more visually obtrusive facility.
(2)
General Guidelines.
(A)
The applicant shall employ screening, undergrounding, and camouflage
design techniques in the design and placement of wireless telecommunications
facilities in order to ensure that the facility is as visually screened
as possible, to prevent the facility from dominating the surrounding
area, and to minimize significant view impacts from surrounding properties
all in a manner that achieves compatibility with the community and
in compliance with the applicable sections of this code. Collocations
involving two or more wireless service providers are encouraged insofar
as the wireless facility is designed to best meet the city's design
and location criteria.
(B)
Screening shall be designed to be architecturally compatible with
surrounding structures using appropriate techniques to camouflage,
disguise, and/or blend into the environment, including landscaping,
color, and other techniques to minimize the facility's visual impact,
as well as be compatible with the architectural character of the surrounding
buildings or structures in terms of color, size, proportion, style,
and quality.
(C)
Facilities shall be located such that views from a residential structure
are not significantly impaired. Facilities shall also be located in
a manner that protects public views across view corridors so that
no significant view impairment, where technically feasible, results
in accordance with this code. This provision shall be applied consistent
with local, state and federal law.
(3)
Traffic Safety. All facilities shall be designed and located in such
a manner as to avoid adverse impacts on traffic safety.
(4)
Equipment. The applicant shall use the least visible equipment possible.
All antenna mounts shall be designed so as not to preclude possible
future collocation by the same or other operators or carriers.
(5)
Poles.
(B)
Utility Poles. Any portion of the antenna or equipment mounted on
a pole shall be no less than twenty feet above any drivable road surface.
All installations on utility poles shall fully comply with the California
Public Utilities Commission general orders, including, but not limited
to, General Order 95, as may be revised or superseded.
(C)
Light Poles. Any portion of the antenna or equipment mounted on a
pole shall be no less than seventeen feet above any drivable road
surface.
(D)
Replacement Poles. If an applicant proposes to replace a pole in
order to accommodate a proposed facility, the pole shall be designed
to resemble the appearance and dimensions of existing poles near the
proposed location, including size, height, color, materials, and style.
(E)
New Poles. New poles shall be
designed to resemble existing poles in the right-of-way near that
location, including size, height, color, materials and style, with
the exception of any existing pole designs that are scheduled to be
removed and not replaced.
(i)
Such new poles that are not replacement poles shall be located
at least one hundred feet from any existing pole to the extent feasible
to be consistent with the city's pre-established street-lighting plan.
(ii)
Such new poles shall not significantly impact public view corridors,
and shall be located to the extent feasible in an area where there
is an existing natural or other feature that obscures the view of
the pole. The applicant shall further employ concealment techniques
to blend the pole with said features.
(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 safety hazards to pedestrians and motorists and in compliance with Chapter 11.30 so as not to obstruct the intersection visibility triangle. No facility shall be permitted to be installed in the drip line of any tree in the right-of-way.
(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, emergency access route, or emergency escape routes, or
any other public health or safety facility or route.
(10)
Proximity to Curb. Except for equipment and facilities, and portions
thereof installed underground, no facilities and equipment approved
under this chapter shall be installed within eighteen inches from
the face of the curb or edge of pavement if no curb exists. If equipment
and facilities are proposed for this area, such improvements must
provide no less than seventeen feet of clearance above any drivable
road surface.
(11)
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.
(12)
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.
(13)
Beacon/Warning 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
extent feasible, impacts on the surrounding neighborhood.
(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 glare and light trespass
impacts to adjacent properties to the 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.
(14)
Noise.
(A)
Backup generators shall only be operated during periods of power
outages, and shall not be tested on weekends or holidays, or between
the hours of 7:00 p.m. and 7:00 a.m.
(B)
At no time shall equipment noise from any facility exceed an
exterior noise level of fifty-five dBA three feet from the source
of the noise if the facility is located in the public right-of-way
adjacent to a business, commercial, manufacturing, utility or school
zone; provided, however, that for any such facility located within
five hundred feet of any property zoned residential or improved with
a residential use, such equipment noise shall not exceed forty-five
dBA.
(15)
Security. Each facility shall be designed to be resistant to, and
minimize opportunities for, unauthorized access, climbing, vandalism,
graffiti, and other conditions that would result in hazardous situations,
visual blight or attractive nuisances. The director may require the
provision of warning signs, fencing, anti-climbing devices, or other
techniques to prevent unauthorized access and vandalism when, because
of their location and/or accessibility, a facility has the potential
to become an attractive nuisance. Additionally, no lethal devices
or elements shall be installed as a security device.
(16)
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.
(17)
The installation and construction approved by a wireless facility
permit shall begin within one year after all necessary discretionary
approvals have been obtained or it will expire without further action
by the city. Development, once timely commenced, shall be pursued
in a diligent manner and completed in a reasonable period of time.
If the project is appealed to the California Coastal Commission, this
expiration period shall not begin until the appeal process is completed.
(18)
The aesthetic requirements imposed under this section and the city's
"Guidelines for Site Selection and Visual Impact and Screening of
Telecommunication Facilities" shall also be considered the necessary
"concealment elements" as defined by federal law, as it shall further
conceal the facilities to make them to be a part of the existing right-of-way
infrastructure.
(b)
Conditions of Approval. In addition to compliance with the design
and development standards outlined in this section, all facilities
shall be subject to the following conditions of approval (approval
may be by operation of law), as well as any modification of these
conditions or additional conditions of approval deemed necessary by
the approval authority:
(1)
The permittee shall submit as-built drawings within ninety days after
installation of the facility. Asbuilts shall be in an electronic format
acceptable to the city.
(2)
The permittee shall submit and maintain current at all times basic
contact and site information. The permittee shall notify the city
of any changes to the information submitted within thirty days of
any change, including change of the name or legal status of the owner
or operator. This information shall include, but is not limited to,
the following:
(3)
The permittee shall notify the city in writing at least ninety days prior to any transfer or assignment of the permit. The written notice required in this section must include: (A) the transferee's legal name; (B) the transferee's full contact information, including a primary contact person, mailing address, telephone number and email address; and (C) a statement signed by the transferee that the transferee shall accept all permit terms and conditions. The director may require the transferor and/or the transferee to submit any materials or documentation necessary to determine that the proposed transfer complies with the existing permit and all its conditions of approval, if any. Such materials or documentation may include, but shall not be limited to: federal, state and/or local approvals, licenses, certificates or franchise agreements; statements; photographs; site plans and/or as-built drawings; and/or an analysis by a qualified radio frequency engineer demonstrating compliance with all applicable regulations and standards of the Federal Communications Commission. Noncompliance with the permit and all its conditions of approval, if any, or failure to submit the materials required by the director shall be a cause for the city to revoke the applicable permits pursuant to and following the procedure set forth in Section 11.06.180.
(4)
At all times, all required notices and/or signs shall be posted on
the site as required by the Federal Communications Commission, California
Public Utilities Commission, any applicable licenses or laws, and
as approved by the city. The location and dimensions of a sign bearing
the emergency contact name and telephone number shall be posted pursuant
to the approved plans. The permittee shall utilize the smallest and
lowest visibility signage required by government or electric utility
regulations. The sign background shall be a muted color selected to
minimize contrast with the support structure.
(5)
The permittee shall pay for and provide a performance bond or other
form of security approved by the city attorney's office, which shall
be in effect until the facilities are fully and completely removed
and the site reasonably returned to its original condition, to cover
permittee's obligations under these conditions of approval and this
code. The security instrument coverage shall include, but not be limited
to, removal of the facility. (The amount of the security instrument
shall be calculated by the applicant in its ministerial permit submittal
documents in an amount rationally related to the obligations covered
by the bond and shall be specified in the conditions of approval.)
Before issuance of any construction permit, permittee must submit
said security instrument. At its option, the permittee may satisfy
this requirement by submitting one performance bond for a bundle of
small wireless facilities projected to be installed within the city.
(6)
If a nearby property owner registers a noise complaint, the city
shall forward the same to the permittee to be reviewed and evaluated.
The permittee shall have ten business days to file a written response
regarding the complaint which shall include any applicable remedial
measures. If the city determines the complaint is valid and the applicant
has not taken any steps to minimize the noise, the city may hire a
consultant to study, examine, and evaluate the noise complaint and
the permittee shall pay the fee for the consultant if the site is
found in violation of this chapter. The matter shall be reviewed by
the director. If the director determines sound proofing or other sound
attenuation measures should be required to bring the project into
compliance with the code, the director may impose conditions on the
project to achieve said objective.
(7)
A condition setting forth the permit expiration date in accordance with Section 11.06.160 shall be included in the conditions of approval.
(8)
The wireless telecommunications facility shall be subject to such
conditions, changes, or limitations as are from time to time deemed
necessary by the director for the purpose of: (A) protecting the public
health, safety, and welfare; (B) preventing interference with pedestrian
and vehicular traffic; and/or (C) preventing damage to the public
right-of-way or any adjacent property. The city may modify the permit
to reflect such conditions, changes, or limitations by following the
same notice and public hearing procedures as are applicable to the
underlying permit for similarly located facilities, except the permittee
shall be given notice by personal service or by registered or certified
mail at the last address provided to the city by the permittee.
(9)
The permittee shall not transfer the permit to any person prior to the completion of the construction of the facility covered by the permit, unless and until the transferee of the permit has submitted the security instrument required by Section 11.06.080(b)(5).
(10)
The permittee shall not move, alter, temporarily relocate, change,
or interfere with any existing structure, improvement or property
without the prior consent of the owner of that structure, improvement
or property. No structure, improvement or property owned by the city
shall be moved to accommodate a wireless telecommunications facility
unless the city determines that such movement will not adversely affect
the city or any surrounding businesses or residents, and the permittee
pays all costs and expenses related to the relocation of the city's
structure, improvement or property. Prior to commencement of any work
pursuant to an encroachment permit issued for any facility within
the public right-of-way, the permittee shall provide the city with
documentation establishing to the city's satisfaction that the permittee
has the legal right to use or interfere with any other structure,
improvement or property within the public right-of-way to be affected
by the applicant's facilities.
(11)
The permittee shall assume full liability for damage or injury caused
or alleged to have been caused to any property or person by the operation
of the facility, or the city's approval of a permit under this chapter.
(12)
The permittee shall repair, at its sole cost and expense, any damage
including, but not limited to, subsidence, cracking, erosion, collapse,
weakening, or loss of lateral support to city streets, sidewalks,
walks, curbs, gutters, trees, parkways, street lights, traffic signals,
improvements of any kind or nature, or utility lines and systems,
underground utility line and systems, or sewer systems and sewer lines
that result from any activities performed in connection with the installation
and/or maintenance of a wireless facility, and/or any related infrastructure,
in the public right-of-way. The permittee shall restore such areas,
structures and systems to the condition in which they existed prior
to the installation or maintenance that necessitated the repairs.
Such time period for correction shall be based on the facts and circumstances,
danger to the community, and severity of the disrepair. Should the
permittee not make said correction within the time period allotted,
the city engineer shall cause such repair to be completed at permittee's
sole cost and expense.
(13)
Insurance. The permittee shall obtain, pay for, and maintain, in
full force and effect until the facility approved by the permit is
removed in its entirety from the public right-of-way, an insurance
policy or policies of public liability insurance, with minimum limits
of two million dollars for each occurrence and four million dollars
in the aggregate, that fully protects the city from claims and suits
for bodily injury and property damage. The insurance must name the
city and its elected and appointed council members, boards, commissions,
officers, officials, agents, consultants, employees, and volunteers
as additional named insureds, be issued by an insurer admitted in
the state of California with a rating of at least a A:VII in the latest
edition of A.M. Best's Insurance Guide, and include an endorsement
providing that the policies cannot be canceled or reduced except with
thirty days prior written notice to the city, except for cancellation
due to nonpayment of premium. The insurance provided by permittee
shall be primary to any coverage available to the city, and any insurance
or self-insurance maintained by the city and its elected and appointed
council members, boards, commissions, officers, officials, agents,
consultants, employees, and volunteers shall be excess of permittee's
insurance and shall not contribute with it. The policies of insurance
required by this permit shall include provisions for waiver of subrogation.
In accepting the benefits of this permit, permittee hereby waives
all rights of subrogation against the city and its elected and appointed
council members, boards, commissions, officers, officials, agents,
consultants, employees, and volunteers. The insurance must afford
coverage for the permittee's and the wireless provider's use, operation
and activity, vehicles, equipment, facility, representatives, agents,
and employees, as determined by the city's risk manager. Before issuance
of any building or encroachment permit for the facility, the permittee
shall furnish the city risk manager certificates of insurance and
endorsements, in the form satisfactory to the city attorney or the
risk manager, evidencing the coverage required by the city.
(14)
The permittee shall defend, hold harmless, and indemnify, at his/her/its
expense, the city, the city council and other city bodies and members
thereof, officials, officers, employees, agents, and representatives
(collectively, the city) from and against any and all third-party
claims, actions, or proceedings to attack, set aside, void, or annul
the approval of this permit, or any associated determination made
pursuant to the California Environmental Quality Act. This obligation
shall encompass all costs and expenses incurred by the city in defending
against any claim, action, or proceeding, as well as costs, expenses,
or damages the city may pay as a result of such claim, action, or
proceeding. In the event an action or proceeding is filed in court
against the city, the permit, or any associated determination, the
permittee shall promptly be required to file a formal indemnification
agreement with the city, which shall include, among other things,
that the city will be defended by the counsel of its choice, and that
the permittee shall deposit with the city sufficient funding, and
thereafter replenish the funding, to ensure that the city's defense
is fully funded, by the permittee. The deposit amount and replenishment
schedule shall be established by the city.
(15)
The permittee, and every permittee and person in a shared permit,
jointly and severally, shall defend, indemnify, protect, and hold
the city and its elected and appointed council members, boards, commissions,
officers, officials, agents, consultants, employees, and volunteers
harmless from and against all claims, suits, demands, actions, losses,
liabilities, judgments, settlements, costs (including, but not limited
to, attorney's fees, interest, and expert witness fees), or damages
claimed by third parties against the city for any injury claim, and
for property damage sustained by any person, arising out of, resulting
from, or are in any way related to or alleged to be related to the
wireless telecommunications facility, or to any work done by or use
of the public right-of-way by the permittee, owner, or operator of
the wireless telecommunications facility, or their agents, excepting
only liability arising out of the sole negligence or willful misconduct
of the city and its elected and appointed council members, boards,
commissions, officers, officials, agents, consultants, employees,
and volunteers.
(16)
Should the facility require electrical service but not require the
use of an above-ground meter cabinet, the permittee shall at its sole
cost and expense remove the meter cabinet and any related foundation
within ninety days of such service being offered and reasonably restore
the area to its prior condition. An extension may be granted if circumstances
arise outside of the control of the permittee.
(17)
Relocation. The permittee shall modify, remove, or relocate its facility,
or portion thereof, without cost or expense to the city, if and when
made necessary by: (A) any public improvement project, including,
but not limited to, the construction, maintenance, or operation of
any underground or above-ground facilities including, but not limited
to, street lights, sewers, storm drains, conduits, gas, water, electric
or other utility systems, or pipes owned by the city or any other
public agency; (B) any abandonment of any street, sidewalk or other
public facility; (C) any change of grade, alignment or width of any
street, sidewalk, or other public facility; (D) a determination by
the director that the wireless telecommunications facility has become
incompatible with public health, safety or welfare or the public's
use of the public right-of-way; or (E) any modifications, changes,
or improvements to the streetlights themselves. Such modification,
removal, or relocation of the facility shall be completed within ninety
days of notification by the city unless exigencies dictate a shorter
period for removal or relocation, or as may be reasonably extended
provided that the permittee is diligently working to complete the
modification, removal, or relocation. Modification or relocation of
the facility shall require submittal, review and approval of a modified
permit pursuant to the code including applicable notice and hearing
procedures. The permittee shall be entitled, on permittee's election,
to either a pro-rata refund of fees paid for the original permit or
to a new permit, without additional fee, at a location as close to
the original location as the standards set forth in the code allow.
In the event the facility is not modified, removed, or relocated within
said period of time, the city may cause the same to be done at the
sole cost and expense of permittee. Further, due to exigent circumstances
including those of immediate or imminent threat to the public's health
and safety, the city may modify, remove, or relocate wireless telecommunications
facilities without prior notice to permittee provided permittee is
notified within a reasonable period thereafter.
(18)
No additions or enlargements to the use of structures for which this
wireless facility permit has been granted shall be allowed except
pursuant to subsequent entitlement as might otherwise be required
or granted pursuant to the terms of the Laguna Beach Municipal Code.
(19)
All development must occur in compliance with the approved plans
and elevations. Any deviation from these plans must be reviewed by
the director of community development and may require planning commission
review and approval.
(20)
The approved facilities shall be designed and operated in a manner
that complies with all of the most current Federal Communications
Commission (FCC) permits, requirements and conditions to prevent neighborhood
electrical interference.
(21)
The telecommunication facility's operator shall notify the city three
months after the construction completion and operation start-up of
the approved telecommunication facilities. The city will then retain
a qualified independent consultant to measure the maximum radio frequency
(RF) radiation at the site and prepare a written report documenting
the results of the independent test. The cost of obtaining these measurements
and preparing the report shall be fully paid for by the telecommunication
facility's operator. The measurements shall be made utilizing the
most current testing protocol established by the Federal Communications
Commission (FCC). The maximum RF radiation shall not exceed the most
current FCC safety standards. This condition is not applicable to
amateur ham radio antenna(s) or transmitting antenna(s) with an effective
radiated power (ERP) of five watts or less per channel.
(22)
In order to guarantee long-term compliance with conditions of approval
that power levels remain as specified, and that the equipment is operating
as designed, the operator of the approved transmitting antenna shall
submit an affidavit indicating that the telecommunication facility
is operating as approved, and that the facility complies with the
most current FCC safety standards. The affidavit shall be submitted
on a yearly basis prior to the anniversary date of the facility approval
for as long as the facility remains in operation and shall incorporate
a separate affidavit of a qualified, independent testing service/consultant
demonstrating and verifying compliance with the most current FCC safety
standards and approved power levels. In addition, the city may conduct
further independent tests, which must be paid for by the facility's
operator to verify compliance with the most current FCC safety standards.
(23)
The maximum RF radiation shall not exceed the most current FCC safety
standards.
(24)
Because the frequencies used by the proposed cellular facilities
are close to the frequencies used by the city of Laguna Beach for
public safety, extraordinary "comprehensive advanced planning and
frequency coordination" engineering measures to prevent interference
shall be utilized, especially in the choice of frequencies and radio
ancillary hardware. This is encouraged in the "Best Practices Guide"
established by the Association of Public-Safety Communications Officials-International,
Inc. (APCO), and as endorsed by the Federal Communications Commission
(FCC). Prior to the issuance of any building permits to install the
wireless communications facility, the permittee shall meet in good
faith to coordinate the use of frequencies and equipment with the
Communications Division of the Orange County Sheriff-Coroner Department
to minimize, to the greatest extent possible, any interference with
the Public Safety 800 MHz Countywide Coordinated Communications System
(CCCS). Similar consideration shall be given to any other existing
or proposed wireless communications facility that may be located on
the subject property.
(25)
At all times the permittee shall not prevent the city of Laguna Beach
from having adequate spectrum capacity on the city's 800 MHz radio
frequency.
(26)
Before activating the permitted wireless communications facility,
the permittee shall submit to a postinstallation test to confirm that
"advanced planning and frequency coordination" of the facility was
successful in not interfering with the city of Laguna Beach public
safety radio equipment. The communications division of the Orange
County Sheriff-Coroner Department or a division-approved contractor
at the expense of the permittee will conduct this test. This post-installation
testing process shall be repeated at the expense of the permittee
for every proposed frequency addition and/or change to confirm the
intent of the "frequency planning" process has been met.
(27)
The permittee shall cease operation of any facility causing interference
with city facilities immediately upon notification from the city or
Orange County to cease operations until the interference is eliminated.
Failure to cease such operation shall result in the immediate automatic
revocation of this permit.
(28)
The permittee and the city shall enter into a memorandum of understanding
for the purposes of relocating the facility onto a city-owned decorative
light pole, once such a standard is developed and deployed in the
vicinity of the facility location. The location and attachment height
of the replacement pole shall permit the permittee to continue to
meet its coverage objective for the area. The permittee shall agree
to relocate the facility within one hundred eighty days of the city's
written notice to the permittee.
(29)
An informational sign shall be posted at eye level and oriented toward
nearby pedestrian traffic. This sign shall inform the general public
that the structure supports wireless telecommunications equipment,
identify the wireless service provider by its trade name, and provide
a contact phone number for a representative of the telecommunications
service provider. The sign copy, design, and placement shall be subject
to city approval.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
No planning commission wireless facility permit shall be granted for a wireless facility unless all of the following findings are made by the planning commission, in addition to any findings required by Chapter 25.07 (coastal development permits):
(a)
All notices required for the proposed installation have been given.
(b)
The proposed facility has been designed and located in compliance
with all applicable provisions of this chapter and the city's Guidelines
for Site Selection and Visual Impact and Screening of Telecommunication
Facilities.
(c)
If applicable, the applicant has demonstrated its inability to locate
on existing or replacement infrastructure.
(d)
The applicant has provided sufficient evidence supporting the applicant's
claim that it has the right to enter the public right-of-way pursuant
to state or federal law, or the applicant has entered into a franchise
agreement with the city permitting them to use the public right-of-way.
(e)
The applicant has demonstrated the proposed installation is designed
such that the proposed installation represents the least intrusive
means possible as supported by factual evidence and a meaningful comparative
analysis to show that all preferred alternative locations and designs
identified in the application review process were technically infeasible
or not available.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
No permit or approval granted under this chapter shall confer
any exclusive right, privilege, license, or franchise to occupy or
use the public right-of-way of the city for any purpose whatsoever.
Further, no approval shall be construed as any warranty of title.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
A COW shall be permitted for the duration of an emergency declared
by the city or at the discretion of the director.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
All wireless telecommunications facilities must comply at all
times with the following operation and maintenance standards.
(a)
Unless otherwise provided herein, all necessary repairs and restoration
shall be completed by the permittee, owner, operator, or any designated
maintenance agent within forty-eight hours – or such longer
period as may reasonably be required provided that the permittee is
diligently working to repair and restore the same – of the sooner
between:
(b)
Each permittee of a wireless telecommunications facility shall provide
the director with the name, address, and twenty-four-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 shall be updated within seven days of any change.
(c)
All facilities, including, but not limited to, telecommunication
towers, poles, accessory equipment, lighting, fences, walls, shields,
cabinets, artificial foliage or camouflage, and the facility site
shall be maintained in good condition, including ensuring the facilities
are reasonably free of:
(1)
General dirt and grease;
(2)
Chipped, faded, peeling, and cracked paint;
(3)
Rust and corrosion;
(4)
Cracks, dents, and discoloration;
(5)
Missing, discolored or damaged artificial foliage or other camouflage;
(6)
Graffiti, bills, stickers, advertisements, litter, and debris;
(7)
Broken and misshapen structural parts; and
(8)
Any damage from any cause.
(d)
All trees, foliage or other landscaping elements approved as part
of the facility shall be maintained in good condition at all times,
and the permittee, owner, and operator of the facility shall be responsible
for replacing any damaged, dead, or decayed landscaping. No amendment
to any approved landscaping plan may be made until it is submitted
to and approved by the director.
(e)
The permittee shall replace its facilities, after obtaining all required
permits, if maintenance or repair is not sufficient to return the
facility to the condition it was in at the time of installation.
(f)
Each facility shall be operated and maintained to comply with all
conditions of approval. Each owner or operator of a facility shall
routinely inspect each site to ensure compliance with the same and
the standards set forth in this chapter.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
The owner and operator of a facility shall submit within ninety
days of beginning operations under a new or amended permit, and every
one year from the date the facility began operations, a technically
sufficient report ("monitoring report") prepared under penalty of
perjury with the information below. The annual report provided by
the owner and operator of the facility shall submit one, collated
monitoring report for each of their facilities operating within the
city at the time the report is prepared. This annual report shall
be submitted to the administrative services department no later than
January 1st when the annual lease payment is due.
(a)
The facility is in compliance with applicable federal regulations,
including Federal Communications Commission RF emissions standards,
as certified by a qualified radio frequency emissions engineer;
(b)
The facility is in compliance with all provisions of this chapter
and its conditions of approval.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
No person shall install, use or maintain any facility which
in whole or in part rests upon, in, or over any public right-of-way,
when such installation, use, or maintenance endangers or is reasonably
likely to endanger the safety of persons or property, or when such
site or location is used for public utility purposes, public transportation
purposes, or other governmental use, or when such facility unreasonably
interferes with or unreasonably impedes the flow of pedestrian or
vehicular traffic including any legally parked or stopped vehicle,
the ingress into or egress from any residence or place of business,
the use of poles, posts, traffic signs or signals, hydrants, mailboxes,
permitted sidewalk dining, permitted street furniture or other objects
permitted at or near said location.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
(a)
Unless Government Code Section 65964, as may be amended, authorizes
the city to issue an entitlement with a shorter term, a discretionary
permit for any wireless telecommunications facility shall be valid
for a period of ten years from the date of director, planning commission,
or city council approval. At the end of the term, the director may
extend the entitlement for an additional ten year term. The director's
determination will become effective fourteen calendar days from the
date of the decision unless a member of the city council initiates
proceedings to review the decision. A permit that has been renewed
once may not be renewed a second time. Instead, the permittee may
file a new entitlement application for the permitted facility at the
same location. Notwithstanding any other applicable law, if the permittee
submits an entitlement application no later than six months prior
to the expiration date of a previously issued permit, the director
shall not require the applicant to remove the permitted wireless facility
unless and until there is a final determination denying the application.
(b)
A permittee may apply for a new permit no sooner than one hundred
and eighty days prior to expiration. Said application and proposal
shall comply with the city's current code requirements for wireless
facilities, as it may exist at that time.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
(a)
Determination. A wireless telecommunications facility is considered
abandoned and shall be promptly removed as provided herein if it ceases
to provide wireless telecommunications services for ninety 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)
Notification. The operator of a facility shall notify the city in
writing of its intent to abandon or cease use of a permitted site
or a nonconforming site (including unpermitted sites) within ten days
of ceasing or abandoning use. Notwithstanding any other provision
herein, the operator of the facility shall provide written notice
to the director of any discontinuation of operations of thirty days
or more.
(c)
Violation. Failure to inform the director of cessation or discontinuation
of operations of any existing facility as required by this section
shall constitute a violation of any approvals and be grounds for:
(1)
Litigation;
(2)
Revocation or modification of the permit;
(3)
Acting on any bond or other assurance required by this article or
conditions of approval of the permit;
(4)
Removal of the facilities by the city in accordance with the procedures
established under this code for abatement of a public nuisance at
the owner's expense; and/or
(5)
Any other remedies permitted under this code.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
(a)
Upon the expiration date of the permit, including any extensions,
earlier termination or revocation of the permit, or abandonment of
the facility, the permittee, owner, or operator shall remove its wireless
telecommunications facility and restore the site to its natural condition
except for retaining the landscaping improvements and any other improvements
at the discretion of the city. Removal shall be in accordance with
proper health and safety requirements and all ordinances, rules, and
regulations of the city. The facility shall be removed from the property
at no cost or expense to the city.
(b)
Failure of the permittee, owner or operator to promptly remove its
facility and restore the property within ninety days after expiration,
earlier termination or revocation of the permit, or abandonment of
the facility, shall be a violation of this code. Upon a showing of
good cause, an extension may be granted by the director where circumstances
are beyond the control of the permittee after expiration. Further
failure to abide by the timeline provided in this section shall be
grounds for:
(1)
Litigation/prosecution;
(2)
Acting on any security instrument required by this chapter or the
conditions of approval of the permit;
(3)
Removal of the facilities by the city in accordance with the procedures
established under this code for abatement of a public nuisance at
the owner's expense; and/or
(4)
Any other remedies permitted under this code.
(c)
Summary Removal. In the event the director or city engineer determines
that the condition or placement of a wireless telecommunications facility
located in the public right-of-way constitutes a dangerous condition,
obstruction of the public right-of-way, or an imminent threat to public
safety, or determines other exigent circumstances require immediate
corrective action (collectively, "exigent circumstances"), the director
or city engineer may cause the facility to be removed summarily and
immediately without advance notice or a hearing. Written notice of
the removal shall include the basis for the removal and shall be served
upon the permittee and person who owns the facility within five business
days of removal and all property removed shall be preserved for the
owner's pick-up as feasible. If the owner cannot be identified following
reasonable effort or if the owner fails to pick up the property within
sixty days, the facility shall be treated as abandoned property.
(d)
Removal of Facilities by City. In the event the city removes a facility
in accordance with nuisance abatement procedures or summary removal,
any such removal shall be without any liability to the city for any
damage to such facility that may result from reasonable efforts of
removal. In addition to the procedures for recovering costs of nuisance
abatement, the city may collect such costs from the performance bond
posted and to the extent such costs exceed the amount of the performance
bond, collect those excess costs in accordance with this code. Unless
otherwise provided herein, the city has no obligation to store such
facility. Neither the permittee, owner, nor operator shall have any
claim if the city destroys any such facility not timely removed by
the permittee, owner, or operator after notice, or removed by the
city due to exigent circumstances.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
Locations Requiring an Exception. Wireless telecommunications
facilities are strongly disfavored in certain areas. All locations
can be reviewed by the director with the exception of the following:
(a)
Within one hundred feet of a residential building within a residential
zone. Residential zone shall mean and refer to R-1, R-2, R-3, R/HP,
LAG, VC, TAB, DCSP, and any other zone primarily intended to accommodate
residential development at any density.
(b)
Public right-of-way if mounted to a new pole that is not replacing
an existing pole in an otherwise permitted location.
(c)
Within one hundred feet of a school property.
(d)
Within one hundred feet of a public park.
(e)
Within one hundred feet of a medical facility.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
Compliance with the provisions of this chapter shall not relieve
a person from complying with any other applicable provision of this
code. In the event of a conflict between any provision of this division
and other sections of this code, this chapter shall control.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
(a)
In the event it is determined by the decision-maker that state or
federal law prohibits discretionary permitting requirements for certain
wireless telecommunications facilities, such requirement shall be
deemed severable and all remaining regulations shall remain in full
force and effect. Such a determination by the city attorney shall
be in writing with citations to legal authority and shall be a public
record. For those facilities, in lieu of a wireless facility permit,
a ministerial permit shall be required prior to installation or modification
of a wireless telecommunications facility, and all provisions of this
division shall be applicable to any such facility with the exception
that the required permit shall be reviewed and administered as a ministerial
permit by the director rather than as a discretionary permit. Any
conditions of approval set forth in this provision or deemed necessary
by the director shall be imposed and administered as reasonable time,
place, and manner rules.
(b)
If subsequent to the issuance of the city attorney's written determination
pursuant to (a) above, the city attorney determines that the law has
changed and that discretionary permitting is permissible, the city
attorney shall issue such determination in writing with citations
to legal authority and all discretionary permitting requirements shall
be reinstated. The city attorney's written determination shall be
a public record.
(c)
All installations permitted pursuant to this chapter shall comply
with all federal and state laws including, but not limited to, the
Americans with Disabilities Act.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
(a)
Nonconforming wireless telecommunications facilities are those facilities
that do not conform to this chapter.
(b)
Nonconforming wireless telecommunications facilities shall, within
ten years from the date such facility becomes nonconforming, be brought
into conformity with all requirements of this article; provided, however,
that should the owner desire to expand or modify the facility, intensify
the use, or make some other change in a conditional use, the owner
shall comply with all applicable provisions of this code at such time,
to the extent the city can require such compliance under federal and
state law.
(c)
An aggrieved person may file an appeal to the city council of any
decision of the director made pursuant to this section. In the event
of an appeal alleging that the ten 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.
(Ord. 1653 § 3, 2021; Ord. 1679 § 3, 2022)
