The purpose of this chapter is to provide regulations regarding
the location and design of wireless communications facilities. This
chapter is intended to ensure that the installation of wireless communication
facilities will not be detrimental to the city's public health, safety
or welfare and to establish standards, timelines, and criteria, in
accordance with applicable state and federal regulations, including,
without limitation, to be consistent with the Telecommunications Act
of 1996, 42 U.S.C. Sections 151 et seq., for the orderly development
and siting of wireless communication facilities in the city; Section
6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012,
applicable state laws, and administrative and court decisions and
determinations relating to the same. It is the intent of the chapter
to treat wireless communications facilities, including antennas, in
the same way that other mechanical equipment (e.g., air conditioners)
are treated, and to require screening and architectural compatibility.
(Ord. 1523 § 4, 2017)
The following definitions shall apply in this chapter:
"Antenna"
means any exterior transmitting or receiving device mounted
on a tower, building or structure and used in communications that
radiates or captures electromagnetic waves, digital signals, analog
signals, radio frequencies (excluding radar signals), wireless telecommunications
signals or other communication signals.
"Associated equipment"
means all on-site equipment, including, without limitation,
back-up generators and power supply units, cabinets, coaxial and fiber
optic cables, connections, shelters, radio transceivers, regular power
supply units, and wiring, to which a wireless antenna is attached
to facilitate mobile broadband service and personal wireless service
delivered on mobile broadband devices.
"Base station"
means a structure or equipment at a fixed location that enables
FCC-licensed or authorized wireless communications between user equipment
and a communications network. The term does not encompass a tower
as defined herein or any equipment located on a tower. Base station
includes, without limitation:
(a)
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.
(b)
Radio transceivers, antennas, coaxial or fiber-optic cable,
regular and backup power supplies, and comparable equipment, regardless
of technological configuration (including distributed antenna systems
("DAS") and small-cell networks).
(c)
Any structure other than a tower that, at the time the relevant
application is filed with the city under this section, supports or
houses equipment described in subsections (a) and (b) above and has
been previously reviewed and approved by the city.
"Collocation"
means the mounting or installation of transmission equipment
on an eligible support structure to transmit and/or receive radio
frequency signals for communications purposes which antennas are owned
or operated by more than one public or private entity and includes
the mounting or installation of additional wireless transmission equipment
at an existing wireless facility.
"Data collection unit" or "DCU"
means a wireless telecommunication facility comprised of
a collection unit, a solar panel and whip antennas used for receiving
and/or transmitting wireless signals from distributed gas and water
data collector meters, which is a stand-alone facility not connected
via fiber optic or other physical wiring to any other facility. No
wireless telecommunications facility operated by an electric corporation,
a telephone corporation, a personal wireless service provider, a commercial
mobile service provider or a mobile telephone service provider shall
be considered a DCU.
Size.
Solar panels not larger than seven square feet, whip antennas
not longer than forty inches, and collections units not larger than
one and one-half cubic feet. DCUs shall be designed to blend into
the surrounding environment and minimize the visual appearance by
matching the color of the poles or buildings where the DCU is located.
"Distributed antenna system" or "DAS"
means a network of one or more antennas and related fiber
optic nodes typically mounted to or located at streetlight poles,
utility poles, sporting venues, arenas or convention centers which
provide access and signal transfer for wireless service providers.
A distributed antenna system also includes the equipment location,
sometimes called a "hub" or "hotel" where the DAS network is interconnected
with one or more wireless service provider's facilities to provide
the signal transfer services.
"Eligible facilities request"
means the same as defined by the FCC in 47 C.F.R. Section
1.40001(b)(3), as may be amended, 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: (i) collocation of new transmission equipment;
(ii) removal of transmission equipment; or (iii) replacement of transmission
equipment."
"Eligible support structure"
means the same as defined by the FCC in 47 C.F.R. Section
1.40001(b)(4), as may be amended, which defines that term as "any
tower or base station as defined in this section, provided that it
is existing at the time the relevant application is filed with the
State or local government under this section."
"Existing"
means the same as defined by the FCC in 47 C.F.R. Section
1.40001(b)(4), as may be amended, which provides that a constructed
tower or base station is existing for purposes of the FCC's Section
6409(a) regulations if it has been reviewed and approved under the
applicable zoning or siting process, or under another State or local
regulatory review process, provided that a tower that has not been
reviewed and approved because it was not in a zoned area when it was
built, but was lawfully constructed, is existing for purposes of this
definition.
"FCC"
means the Federal Communications Commission or successor
agency.
"Micro wireless facility"
means a small cell that is no larger than twenty-four inches
long, fifteen inches in width, twelve inches in height, and that has
an exterior antenna, if any, no longer than eleven inches.
"Public right-of-way"
means the area across, along, beneath, in, on, over, under,
upon and within the dedicated public streets, roads, sidewalks, alleys,
and waterways within the city, as they now exist or hereafter will
exist, including unimproved areas that have been dedicated for public
street purposes. Public right-of-way does not include public utility
easements dedicated to the city outside dedicated public streets,
roads, sidewalks, alleys, waterways within the city, parks, city facilities,
and city owned infrastructure.
"RF"
means radio frequency on the radio spectrum.
"Small cell"
means a wireless telecommunications facility, as defined
in paragraph (2) of subdivision (d) of Section 65850.6, or a wireless
facility that uses licensed or unlicensed spectrum and that meets
the following qualifications:
(a)
The small cell antennas on the structure, excluding the associated
equipment, total no more than six cubic feet in volume, whether an
array or separate.
(b)
Any individual piece of associated equipment on pole structures
does not exceed nine cubic feet.
(c)
The cumulative total of associated equipment on pole structures
does not exceed twenty-one cubic feet.
(d)
The cumulative total of any ground-mounted equipment along with
the associated equipment on any pole or nonpole structure does not
exceed 35 cubic feet. The following types of associated ancillary
equipment are not included in the calculation of equipment volume:
(1)
Electric meters and any required pedestal.
(3)
Any telecommunications demarcation box.
(7)
Vertical cable runs for connection of power and other services.
(8)
Equipment concealed within an existing building or structure.
(e)
"Small cell" includes a micro wireless facility. "Small cell"
does not include the following:
(1)
Wireline backhaul facility, which is defined to mean a facility
used for the transport of communications data by wire from wireless
facilities to a network.
(2)
Coaxial or fiber optic cables that are not immediately adjacent
to or directly associated with a particular antenna or collocation.
(3)
The underlying vertical infrastructure.
"Spectrum Act"
means Section 6409(a) of the Middle-Class Tax Relief Act
and Job Creation Act of 2012, 47 U.S.C. Section 1455(a) (providing,
in part, "… a state or local government may not deny, and shall
approve, any eligible facilities request for a modification of any
existing wireless tower or base station that does not substantially
change the physical dimensions of such tower or base station.")
"Stealth"
means any wireless telecommunications facility that is architecturally
integrated into a building or other concealing structure, such that
no portion of any antenna, antenna equipment, or any other apparatus
associated with the function of the facility is visible. The concealing
structure shall have an aesthetically pleasing architectural design
which fits into the context of its surroundings.
"Substantial change"
means the same as defined by the FCC in 47 C.F.R. Section
1.40001(b)(7), as may be amended, which defines that term differently
based on the particular facility type and location. For clarity, the
definition in this chapter organizes the FCC's criteria and thresholds
for a substantial change according to the facility type and location.
(a)
For towers outside the public rights-of-way, a substantial change
occurs when:
(1)
The proposed collocation or modification increases the overall
height more than ten percent or the height of one additional antenna
array not to exceed twenty feet (whichever is greater);
(2)
The proposed collocation or modification increases the width
more than twenty feet from the edge of the wireless tower or the width
of the wireless tower at the level of the appurtenance (whichever
is greater);
(3)
The proposed collocation or modification involves the installation
of more than the standard number of equipment cabinets for the technology
involved, not to exceed four; or
(4)
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.
(b)
For towers in the public rights-of-way and for all base stations,
a substantial change occurs when:
(1)
The proposed collocation or modification increases the overall
height more than ten percent or ten feet (whichever is greater);
(2)
The proposed collocation or modification increases the width
more than six feet from the edge of the wireless tower or base station;
(3)
The proposed collocation or modification involves the installation
of any new equipment cabinets on the ground when there are no existing
ground-mounted equipment cabinets;
(4)
The proposed collocation or modification involves the installation
of any new ground-mounted equipment cabinets that are ten percent
larger in height or volume than any existing ground-mounted equipment
cabinets; or
(5)
The proposed collocation or modification involves excavation
outside the area in proximity to the structure and other transmission
equipment already deployed on the ground.
(c)
In addition, for all towers and base stations wherever located,
a substantial change occurs when:
(1)
The proposed collocation or modification would defeat the existing
concealment elements of the support structure as determined by the
planning/building director.
(2)
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.
Note: The thresholds for a substantial change outlined above
are disjunctive. The failure to meet any one or more of the applicable
thresholds means that a substantial change would occur. The thresholds
for height increases are cumulative limits. For sites with horizontally
separated deployments, the cumulative limit is measured from the originally
permitted support structure without regard to any increases in size
due to wireless equipment not included in the original design. For
sites with vertically separated deployments, the cumulative limit
is measured from the permitted site dimensions as they existed on
February 22, 2012—the date that Congress passed Section 6409(a).
|
"Tower"
means any structure built for the sole or primary purpose
of supporting any FCC-licensed or -authorized antenna, including any
structure constructed for wireless communications service. This term
does not include a base station.
"Transmission equipment"
means equipment that facilitates transmission of any FCC-licensed
or - authorized wireless communication service.
"Vertical infrastructure"
means all poles or similar facilities owned or "controlled"
by the city that are in the public rights-of-way or public utility
easements and meant for, or used in whole or in part for, communications
service, electric service, lighting, traffic control, or similar functions.
(a)
For purposes of this subsection, the term "controlled" means
having the right to allow subleases or sublicensing.
"Wireless telecommunication(s) facilities," "wireless communication(s)
facility," "wireless facility," or "facility"
means any device or system for transmitting and/or receiving
electromagnetic signals, including, but not limited to, radio waves
and microwaves for cellular technology, personal communication services,
mobile services, paging systems and related technologies. Facilities
include towers, freestanding facilities, ground-mounted facilities,
roof-top facilities, utility poles, transmitters, microwave dishes,
antennas and parabolic antennas, small cells, macro and micro cells,
DAS, DCU, all other types of equipment used in transmitting or receiving
signals, antenna structures, associated buildings, base stations,
emergency power systems or cabinets which house support equipment,
and other accessory development.
Exclusions: The term "wireless telecommunications facility"
does not apply to the following:
(a)
Government owned and operated telecommunications facilities.
(b)
Emergency medical care provider-owned and operated telecommunications
facilities.
(c)
Mobile services providing public information coverage of news
events of a temporary nature.
(d)
Any wireless telecommunications facilities exempted from this
code by federal law or state law.
(Ord. 1523 § 4, 2017)
To the extent necessary by federal or state law, the appropriate
criteria and burden of proof and production shall be applied as an
overlay with all other criteria:
(a) The city may deny a wireless telecommunications facility if a site
is inadequate for the facilities or the placement, construction, or
modification of the equipment will adversely affect the property or
surrounding neighborhood;
(b) If the city denies an application for a wireless telecommunications
facility, it must not discriminate against a provider;
(c) The provider shall bear the burden of production and proof that the
city discriminated;
(d) The city must not effectively prohibit or create a significant gap
in service;
(e) It is the provider's burden to show that the city created a significant
gap or effectively prohibited service, and the provider must demonstrate
that the proposed facility is the least intrusive means necessary
to provide the service;
(f) The city may not deny a wireless telecommunications facility because
of radio frequency effects that are in compliance with federal law;
and
(g) The city may regulate right-of-way facilities, which may be subject
to an administrative wireless permit, a master deployment plan permit,
an encroachment permit, a building permit and a license agreement.
(Ord. 1523 § 4, 2017)
All wireless telecommunication facilities shall be in compliance
with the following standards:
(a) General. Antennas allowed by this chapter shall comply with all applicable
zoning and building codes.
(b) Wireless telecommunications facilities are allowed in compliance with Section
21.10.030 (Commercial and manufacturing district land uses and permit requirements) of this title and also in areas governed by specific plans.
(c) Wireless telecommunication facilities are allowed on church properties in the R1 zone subject to FVMC Section
21.28.040(h).
(d) Wireless telecommunication facilities are allowed on school properties
and parks in the Public Institution and Open Space zone.
(e) Public right-of-way antennas and wireless telecommunications facilities shall be allowed in the public right-of-way subject to Section
21.28.100.
(f) Ten-Year Review. Allowed antennas and wireless telecommunication
facilities shall be reviewed ten years from their approval date in
order to review new technologies.
(g) Visual Impact. Wireless telecommunication facilities shall be located,
installed and mounted in a manner to minimize, to the greatest extent
possible, the visibility of the antennas and equipment.
(h) Nonexclusive Condition. Wireless telecommunication facilities on
private property shall be conditioned to be nonexclusive in order
to encourage collocation with separate providers.
(i) Screening. Antennas and accessory wireless equipment, if visible,
shall be screened with a solid wall and/or landscaping to the greatest
extent possible. The base shall be landscaped to screen equipment
cabinets or the equipment cabinets shall be architecturally compatible
with adjacent buildings. All landscaping screening shall be required
to be maintained and replaced if necessary by the applicant or property
owner as long as the associated antenna or wireless equipment is in
use.
(j) Stealthing. All wireless telecommunications facilities shall be stealth unless exempted by federal or state law. Stealthing shall include concealment of any component of the wireless facility. Examples include, but are not limited to, "monopines," flagpoles or windmills designed to conceal wireless communication equipment and those applications where wireless communication equipment is contained within another structure such as a scoreboard or sign. Wireless communication facilities in the public right-of-way shall be subject to the requirements of Section
21.28.100. A wireless communications facility that is not fully assimilated to its surroundings shall be prohibited.
(k) Change of Ownership. Notice of change of ownership shall be provided
to the city. Lawfully constructed wireless telecommunication facilities
that are no longer in operation shall be removed promptly from the
premises ninety days after the discontinuation of the facility.
(l) Indemnification. The applicant shall agree to indemnify, hold harmless
and defend the city, its officers, agents and employees from any and
all liability or claims that may be brought against the city arising
out of its approval of a conditional use permit, encroachment permit
or any other approval of a facility.
(m) Signage Prohibited. Signage shall be prohibited on wireless telecommunications
facilities unless required by federal, state or local law.
(Ord. 1523 § 4, 2017)
(a) Administrative Permit. Wireless communications facilities that are
fully assimilated to surroundings, or collocated on an existing antenna-supporting
structure, may be approved with an administrative permit. The purpose
of the administrative wireless communication facilities permit is
to provide planning/building director review of wireless communication
facilities to ensure they meet the intent of the development code
and the general plan.
(1) Administrative Permit Procedure.
(A) An application for an administrative wireless communication facilities
permit should be filed with the planning department. Application fees
for said permit shall be set by a separate resolution.
(B) The planning/building director will make a decision regarding a completed application within sixty calendar days of receipt. This decision will be final ten calendar days following the date of the decision unless an appeal is filed in compliance with Fountain Valley Municipal Code Chapter
21.60. A letter will be provided to the applicant describing the decision and any conditions of approval applicable to the project.
(C) The planning/building director may refer a request to the planning
commission when the planning/building director determines that the
project's complexity or the public interest warrants the referral.
(b) Conditional Use Permit. New freestanding wireless communication facilities that are not collocated on existing structures (i.e., new towers), or proposed substantial changes (not meeting the definition of an eligible facilities request) to facilities that were previously approved through a conditional use permit, require approval of a conditional use permit in compliance with Chapter
21.36 of this title.
(1) Public Hearing. Any permit application under this chapter subject to planning commission approval shall require notice and a public hearing. Notice of such hearing shall be provided in accordance with Chapter
21.58. The planning commission may approve, or conditionally approve, an application only after it makes the findings required in subsection (e).
(c) No discretionary permit is required for changes to existing telecommunications
facilities that qualify as an eligible facility request and do not
qualify as a substantial change.
(d) Timeframe for Review.
(1) The city acknowledges federal and state shot clocks which may apply
to a proposed wireless communication facility. That is, federal and
state law provide time periods in which the city must approve or deny
a proposed wireless communication facility. As such, the applicant
is required to provide the city written notice of the expiration of
any shot clock, which the applicant shall ensure is received by the
city (e.g., overnight mail) no later than ten calendar days prior
to expiration.
(2) All final decisions made pursuant to this chapter shall be in writing
and based on substantial evidence in the written administrative record.
The written decision shall include the reasons for any denial. The
planning/building director may approve, or conditionally approve,
an application only after the planning/building director makes the
findings required in subsection (e). Within five business days after
the planning/building director makes a final decision on an application
under this chapter, the planning/building director shall provide notice.
(e) Findings. Approval of a wireless telecommunication facility shall
require the following findings be made. These are in addition to any
applicable sections or criteria outlined in this code. The planning
commission or planning/building director shall determine that:
(1) There is adequate space on the property for the antenna and accessory
wireless equipment without conflict with existing structures on the
property, or reducing required parking, landscaping or other development
standards;
(2) The design and placement of the antenna and accessory wireless equipment
will not adversely impact the use of the property, other structures
located on the property or the surrounding area or neighborhood;
(3) The antenna and accessory wireless equipment as proposed are consistent
with the intent of this chapter and comply with the general standards
for wireless telecommunication facilities and any special standards
below; and
(4) The public right-of-way will not be adversely impacted and, for small
cells, the proposed wireless telecommunications facility will comply
with the adopted Small Cell Standards and Guideline Policy.
(f) Conditions of Approval. Conditions of approval may be imposed on
any permit and architectural approval granted in compliance with this
chapter. Permits shall not become effective until all applicable conditions
of approval have been met. All conditions of approval shall be observed
throughout the duration of the permit. Conditions shall include, but
shall not be limited to, the following:
(1) Indemnification. The applicant shall agree to indemnify, hold harmless
and defend the city, its officers, agents and employees from all liability
or claims that may be brought against the city from its approval of
a permit.
(2) Terms of Lease. A letter outlining the parties, contact information
and term of the lease, license or other agreement with the property
owner shall be submitted to the city prior to issuance of a building
permit for the facility. If the lease, license or agreement is extended
or terminated, notice and evidence thereof shall be provided to the
planning/building director. Upon termination or expiration of the
lease, the use permit for the facility shall be cancelled and the
facility removed within ninety days.
(3) Change of Ownership. Notice of change of ownership of the facility
shall be provided to the city.
(4) Noise Study. A noise study may be required subject to the determination
by the planning/building director. A noise study shall be prepared
and certified by an engineer for the proposed facility and all associated
equipment including all environmental control units, sump pumps, temporary
backup power generators, and permanent backup power generators demonstrating
compliance with the city's noise regulations. The noise study must
also include an analysis of the manufacturers' specifications for
all noise-emitting equipment and a depiction of the proposed equipment
relative to all adjacent property lines.
(5) Changes and Modifications. All changes and modifications to an approved
facility shall require prior approval by the city.
(6) Vandalism Repair. All graffiti and other forms of vandalism shall
be promptly removed and/or repaired within twenty-four hours of notification.
(Ord. 1523 § 4, 2017; Ord. 1563 §§ 6,7, 2020)
The provisions of this chapter shall be enforced in compliance with the provisions of Chapter
21.64 (Enforcement Provisions) of this title.
(Ord. 1523 § 4, 2017)
It is unlawful for any owner, operator, tenant or other person
in control of property within the city for which the standards set
forth in this chapter apply, to fail to comply with the provisions
of this chapter.
(Ord. 1523 § 4, 2017)