It is the purpose of this chapter to establish standards for the placement, and manner of installation and construction of, digital infrastructure and video system facilities ("DIVS") in the city's public rights-of-way so as to maintain and enhance the city's character as being a low-density, wooded, predominantly single-family residential and hillside community, while at the same time not unreasonably interfering with the development of the competitive cable television marketplace in the city. These standards and controls are intended to ensure that the location and manner of installation and construction of these related facilities are consistent with previously adopted policies of the city as set forth in the general plan; to guide the orderly development of the community; to promote the public health, safety, comfort, convenience and general welfare of the city; to encourage DIVS operators to configure equipment location and manner of construction in a way that minimizes any adverse impacts; and to enhance the ability of DIVS operators to provide such services throughout the city quickly, effectively and efficiently. Furthermore, it is the intent of this chapter to permit DIVS where they can be installed without creating adverse impacts on neighboring property owners and the overall community. This chapter shall be applied on a competitively neutral and nondiscriminatory basis to all applicants for DIVS within the public rights-of-way.
(Ord. 375 § 1, 2009)
A. 
For the purposes of this chapter, the following words, terms, phrases, and their derivations have the meanings given herein. Terms defined in the DIVCA Act shall have the same meanings herein unless expressly defined otherwise. When not inconsistent with the context, words used in the present tense include the future tense, and words in the singular number include the plural number.
"1984 Cable Act"
means the Cable Communications Policy Act of 1984.
"1992 Cable Act"
means the Cable Television Subscriber Protection and Competition Act of 1992.
"Applicant"
means a provider of digital infrastructure and video services who applies to the city to install DIVS in the public rights-of-way.
"Abandonment"
means inoperative or unused for a period of 180 days or more.
"Cable Act"
means the 1984 Cable Act, as amended by the 1992 Cable Act and by the Telecommunications Act.
"Cable operator"
means any person or group of persons (1) who provides DIVS over a DIVS system in the city and, directly or through one or more affiliates, owns a significant interest in that DIVS system; or (2) who otherwise controls or is responsible for, through any arrangement, the management and operation of a DIVS system in the city.
"Cable system" or "cable communications system" or "DIVS system" or "system"
means a facility, consisting of a set of closed transmission paths and associated signal generation reception, and control equipment that is designed to provide DIVS service, and which is provided to multiple subscribers within the city; but this term does not include: (1) a facility that serves one or more television broadcast stations; (2) a facility that serves subscribers without using any PROW; (3) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934 (47 U.S.C. Section 201 et seq.), except that the facility shall be considered a DIVS system (other than for purposes of Section 621(c) of the Cable Act) to the extent the facility is used in the transmission of video programming directly to subscribers, unless the extent of the use is solely to provide interactive on-demand services; (4) an open video system that complies with Section 653 of the Cable Act; or (5) any facilities of any electric utility used solely for operating its electric utility systems.
"California Public Utilities Commission" or "CPUC"
means the California Public Utilities Commission.
"City"
means the city of La Cañada Flintridge, California, acting by and through its city council, or a representative as the governing body may designate to act on DIVS matters on its behalf.
"Construction plan"
means a plan that describes in detail the designs, locations, and an estimated time schedule for construction of the DIVS.
"Department"
means the department of public works.
"Digital infrastructure and video service facility" (DIVS)
means a facility for the provision of DIVS services.
"Director"
means the director of the city's department of public works or designee.
"DIVS service"
means (1) the one-way transmission to subscribers of video programming or other programming service; and (2) subscriber interaction which is required for the selection of or use of video programming or other programming service.
"FCC"
means the Federal Communications Commission.
"Feasible"
means capable of being accomplished in a successful manner within a reasonable period of time, taking into account appropriate environmental, physical, legal, economical and technological factors.
"Project site"
means the location on which an applicant proposes to construct a DIVS, including any antenna, support structure, accessory building, or other components associated with, or ancillary to, the use of the DIVS.
"PROWP"
means a public right-of-way permit.
"Public property"
means all real property and improvements owned, operated or controlled by city, other than PROW, within the city's jurisdiction. Public property includes, but is not limited to, city owned buildings/facilities, recreational facilities, parks, libraries, street trees, signs, medians and traffic signal facilities.
"Public rights-of-way" or "right-of-way" or "PROW"
means any public street, public way, public place or rights-of-way, now laid out or dedicated, and the space on, above or below it, and all extensions thereof, and additions thereto, under the jurisdiction of city.
"Site"
means the public right-of-way location that contains a DIVS including any antenna, support structure, accessory building, or other components associated with, or ancillary to, the use of the DIVS.
"Stealth"
means: (1) not easily identifiable as a DIVS by a casual observer that is located on property other than the site, (2) is aesthetically compatible and blends with the site and immediate surroundings. Stealthing may be achieved by any state-of-the-art means or combination of means including, but not limited to, the use of camouflage, textures, screening, painting, or architectural integration with the surroundings.
"Telecommunications Act"
means the Telecommunications Act of 1996.
"Traffic control plan"
means a plan describing the manner in which applicant will manage vehicle, bicycle, and pedestrian traffic along affected streets when installing or maintaining facilities.
"Unlicensed wireless service"
means the offering of telecommunications services using duly authorized devices, which do not require individual license, but does not mean the provision of direct-to-home satellite services as defined in Section 303(v) of Title 47 of the United States Code.
B. 
Terms Not Defined. Words, terms, or phrases not defined herein shall first have the meaning as defined in the DIVS Act, and then the special meanings or connotations used in any industry, business, trade, or profession where they commonly carry special meanings. If those special meanings are not common, they will have the standard definitions as set forth in commonly used and accepted dictionaries of the English language.
(Ord. 375 § 1, 2009)
A. 
The procedures and rules set forth in this chapter shall be applicable to all DIVS proposed to be installed and installed within the public rights-of-way that are not subject to a city franchise agreement or other city agreement, such as a license agreement. No DIVS subject to this chapter shall be installed, modified or added onto within the city's public rights-of-way without first complying with the provisions of this chapter except as provided in subsections B and C of this section.
B. 
Notwithstanding anything stated herein, a PROWP shall not be required if, in the determination of the director, the proposed project relates solely to work on the inside of the DIVS without alteration to the enclosure itself. In lieu of the necessity of a PROWP, the applicant shall obtain all otherwise necessary city permits including, without limitation, building permits, electrical permits, and other permits which may be required by the code. Further, the applicant shall be responsible to coordinate with the director in regard to needed permits or determinations.
C. 
The director in his or her discretion may issue an annual PROWP to applicant to make extensions, routine maintenance and emergency repairs. Annual PROWPs shall be issued on a yearly basis.
(Ord. 375 § 1, 2009)
Applicants requesting approval for a DIVS within the public rights-of-way shall be required to apply for a public right-of-way permit ("PROWP") using the city's PROWP application. Applications shall include the following information:
A. 
Applicant's name, address, phone number, and fax number. For informational purposes only, the owner or operator of any DIVS shall submit and maintain current at all times basic contact and site information on a form to be supplied by the city. Applicant shall notify city of any changes to the information within 30 days of any change, including change of the name or legal status of the owner or operator. This information shall include the following:
1. 
Identity, including name, address and telephone number, and legal status of the owner of the DIVS including official identification numbers and FCC certification, and if different from the owner, the identity and legal status of the person or entity responsible for operating the DIVS;
2. 
Name, address and telephone number of a local contact person for emergencies and type of service provided.
B. 
Location of the site, including the address and the names of two nearest cross streets.
C. 
Present zone designation of the site, and if not R-1 zone, if within 50 feet of an R-1 zone.
D. 
Description of the site, including the current improvements within the general area of the project site.
E. 
Description of the proposed project. The applicant is not required to describe the proposed use of the facility to be constructed.
F. 
If the proposed project requires any grading, the applicant shall identify the number of cubic yards of materials to be moved.
G. 
Description of the facilities and/or equipment within the applicant's project that are expected to induce noise.
H. 
DIVS site plan. Nine copies at a scale of 1″ = 20′ or larger (or as otherwise approved by the director of public works) and including the following:
1. 
The proposed DIVS;
2. 
Location of lot lines, streets (with street names), and all structures existing and proposed;
3. 
Identification of street names;
4. 
Slopes, contours, trees and other pertinent physical features existing and proposed;
5. 
All exterior lighting, existing and proposed; and
6. 
Location, use and approximate distance from property line of nearest structures on all properties abutting the site.
I. 
Stealthing. The applicant shall provide a written description of the stealthing measures the applicant proposes to use to aesthetically blend the DIVS to the immediate surroundings. This should include at minimum a description of proposed camouflage and screening techniques, and the textures and colors to be used in the stealthing process.
J. 
Notice requirements. Applicant shall submit a list of the names and addresses of all current owners (pursuant to assessor records) of each property within a 400 foot radius of the site, two sets of envelope labels for the property owners, and a notice list affidavit. The city shall give notice of the PROWP hearing at least ten days prior to the hearing to the property owners within a 400 foot radius of the site. The notice of public hearing shall include the DIVS simulation if provided by photosimulation, or otherwise by reference to the field mock-up which demonstrates the DIVS as constructed.
K. 
DIVS simulation. The applicant shall submit a DIVS simulation, which may include photosimulation, field mock-up or other techniques, which demonstrates the DIVS after installation and construction. All costs for the DIVS simulation shall be borne by the applicant.
L. 
Landscape plans. Nine copies at a scale of 1/8″ = 1′ or larger (or as otherwise approved by the director) and including the following:
1. 
Existing trees with trunk diameter over six inches at four feet above grade and/or 15 feet in overall height within 50 feet of the proposed installation;
2. 
Species, diameter and condition of all such trees;
3. 
Final disposition of all existing trees; and
4. 
Species, location and sizes of proposed vegetation.
M. 
Color photographs of the site and its surroundings.
N. 
A construction plan disclosing, at a minimum, construction schedule, final completion date, and specific construction benchmark dates as to identify portions of the project.
O. 
A traffic control plan in accordance with such guidelines established by the director.
P. 
Application fee. The amount is established by the current fee schedule adopted by the city council.
Q. 
Waiver. Any application for a proposed DIVS, which has been identified as not meeting the general requirements or restrictions of this chapter may request a waiver as set forth in Section 8.04.080 of this Chapter.
(Ord. 375 § 1, 2009)
A. 
No DIVS shall be installed, modified or added to unless it meets the following location and construction standards and requirements:
1. 
Lights, Signals and Signs. No DIVS shall bear any sign or advertising device other than those required by applicable law. DIVS signals, lights or signs shall be designed so as to meet but not exceed minimum requirements for security and safety. Any required lighting shall be shielded to eliminate, to the maximum extent possible, impacts to the surrounding areas.
2. 
Ground Level Equipment and Structures. Ground level equipment and structures shall be screened from public view.
a. 
Except as provided in Section 8.04.050(A)(5), all ground level equipment associated with the operation of a DIVS shall be located inside an underground vault, within an above-ground stealth structure or within a stealthed above ground enclosure whenever and wherever feasible. The ground level equipment and structures shall be stealthed to the greatest extent feasible, considering technological requirements, by means of placement, screening, camouflage, color choice, architectural compatibility and other site characteristics. Ground level equipment and structures shall be screened from view by landscaping, fencing or other appropriate means.
b. 
The ground level equipment and structures shall have a color generally matching the surroundings or background that minimizes their visibility.
c. 
Site location and development shall preserve the pre-existing character of the site as much as possible. Existing vegetation should be preserved or improved, and disturbance of the existing topography of the site should be minimized, unless such disturbance would result in less visual impact of the site on the surrounding area.
d. 
Where appropriate, facilities shall be installed as to maintain and enhance existing landscaping on the site, including trees, foliage and shrubs, whether or not utilized for screening. Additional landscaping shall be planted where such vegetation is deemed necessary to provide screening or to block the line of sight between facilities and adjacent residential uses and residentially zoned properties.
e. 
Accessory equipment shall be equipped with tamperproof cabinets and/or locks to mitigate safety sitting issues. All DIVS shall be designed so as to be resistant to and minimize opportunities for unauthorized access, climbing, vandalism, graffiti and other conditions which would result in hazardous conditions, visual blight or attractive nuisances.
3. 
Building Codes. DIVS shall comply with all applicable building codes.
4. 
Signal/Power Cables. All DIVS cables, wires or similar electrical transmission devices must be placed underground or be placed within a structure or in cableways and properly stealthed to the maximum extent possible. Root protection shall be provided during all trenching operations.
5. 
The limitations on DIVS shall not apply to (a) an insubstantial modification, as determined by the director, to an existing DIVS; (b) to any new DIVS which, as determined by the director, does not produce a significant impact upon the PROW and/or public property and the environment surrounding it; and (c) to any installation specifically authorized pursuant to a pre-existing and valid local franchise agreement.
(Ord. 375 § 1, 2009)
A. 
Director Approval. Applications for DIVS to be located in the community planned development (CPD), residential multifamily (R-3), residential planned development (RPD), public/semi-public (PS), institutional (I), mixed use 1 (MU1), mixed used 2 (MU2) or park (P) zones and greater than 50 feet from a residential single-family (R-1) zone shall be subject to approval by the director.
B. 
Public Works and Traffic Commission Approval. Applications for a DIVS located in the residential single-family (R-1) or open space (OS) zones, or 50 feet or less from an R-1 zone shall be subject to approval by the public works and traffic commission following a public hearing, noticed as set forth in subsection 8.04.040(J).
(Ord. 375 § 1, 2009)
A. 
Any decision to deny, in whole or in part, an application for a DIVS shall be in writing and supported by substantial evidence contained in a written record.
B. 
Applications Subject to Director Approval.
1. 
The director shall approve a DIVS unless the director finds, upon substantial evidence, that the placement or manner of installation of the DIVS violates this chapter based upon any of the following:
a. 
That the applicant has failed to provide information required in Section 8.04.040;
b. 
That proposed lighting, if applicable, impacts the surrounding area;
c. 
That proposed ground level equipment is not undergrounded or otherwise screened from public view in a stealth manner and properly secure;
d. 
That any other requirements of Section 8.04.050 are not met by the applicant;
e. 
That the location of the DIVS interferes with the usual and customary use by pedestrians, bicycles or vehicles, or negatively impacts vehicular parking, circulation, line-of-sight or safety; or
f. 
That the location of the DIVS results in an over-concentration of above-ground structures along the public rights-of-way.
2. 
The director may impose conditions of approval as deemed necessary in order to make the findings required by this subsection.
3. 
Appeals. The decision of the director is final, unless appealed as set forth herein. If the director denies the application, the applicant shall have 15 calendar days from the date of decision to file a written appeal of the decision to the city council. The city council shall hold a public hearing for the appeal within 60 calendar days from the date the appeal was filed. The appeal hearing shall be noticed as set forth in Section 8.04.040(J). If the director approves or conditionally approves the application, the city shall provide written notice to the applicant and to the owner of each property within a 400 foot radius of the project site. The notice shall include the DIVS simulation or reference to the field mock-up which demonstrates the DIVS as constructed. Within 15 calendar days from the date of mailing notice of the decision, the applicant or any property owner within the noticed area may file a written appeal of the decision to the city council. The city council shall hold a public hearing for the appeal within 60 calendar days from the date the appeal was filed. The appeal hearing shall be noticed as set forth in the Section 8.04.040(J). If the city council fails to hold a public hearing within 60 calendar days of a filed appeal or to act upon the appeal within 30 calendar days after the hearing is closed, then in that event, the previous decision shall be deemed affirmed. The decision of the city council is final.
C. 
Applications Subject to Public Works and Traffic Commission Approval.
1. 
The public works and traffic commission shall hold a public hearing, noticed as set forth in Section 8.04.040(J).
2. 
The public works and traffic commission shall approve a DIVS unless the commission finds, upon substantial evidence, that the placement or manner of installation of the DIVS violates this chapter based upon any of the following:
a. 
That the applicant has failed to provide information required in Section 8.04.040;
b. 
That proposed lighting, if applicable, impacts the surrounding area;
c. 
That proposed ground level equipment is not undergrounded or otherwise screened from public view in a stealth manner and properly secure;
d. 
That any other requirements of Section 8.04.050 are not met by the applicant;
e. 
That the location of the DIVS interferes with the usual and customary use by pedestrians, bicycles or vehicles, or negatively impacts vehicular parking, circulation, line-of-sight or safety; or
f. 
That the location of the DIVS results in an over-concentration of above-ground structures along the public right-of-way.
3. 
The public works and traffic commission may impose conditions of approval as deemed necessary in order to make the findings required by this subsection.
4. 
Appeals. The decision of the commission is final, unless appealed within 15 calendar days from the date of decision to the city council by the applicant or any owner of property within the noticed area. The city council shall hold a public hearing for the appeal within 60 calendar days from the date the appeal was filed. The appeal hearing shall be noticed as set forth in Section 8.04.040(J). If the city council fails to hold a public hearing within 60 calendar days of the filed appeal or to act upon the appeal within 30 calendar days after the hearing is closed, then in that event, the previous decision shall be deemed affirmed. The decision of the city council is final.
(Ord. 375 § 1, 2009)
In addition to conditions of approval which may be imposed in order to make the findings required in this chapter, the following conditions shall be imposed on all PROWP approvals:
A. 
The applicant shall remove or relocate, at the applicant's expense and without expense to the city, any of its DIVS installed under the approved PROWP when made necessary, as determined by the city, by reason of any change in grade, alignment or width of any public right-of-way, installation of services, water pipes, drains, storm drains, lift stations, power or signal lines, traffic control devices, public right-of-way improvements, or any construction, repair or improvement to the public rights-of-way.
B. 
The applicant shall defend, indemnify and hold harmless the city and its officers, agents and employees from any claim, action or proceeding against the city or its officers, agents or employees to attack, set aside, void or annul approval of the PROWP. The applicant shall further defend, indemnify and hold harmless the city, its officers, agents and employees from any damages, liabilities, claims, suits or causes of action of any kind or form, whether personal injury, death or property damage, arising out of or in connection with applicant's, its agents, employees, licensees, contractors, subcontractors or independent contractors activities or performance pursuant to the approved PROWP.
(Ord. 375 § 1, 2009)
A. 
Waiver. A waiver of any of the siting, design or other requirements or restrictions set forth in this chapter may be granted by the public works and traffic commission at a noticed hearing upon the request of the applicant where the applicant demonstrates by clear and convincing evidence that such restriction or requirement violates then applicable law.
B. 
Independent Consultant. The city shall have the right to have an independent consultant, at the applicant's expense, evaluate the issues raised by the waiver request.
(Ord. 375 § 1, 2009)
A. 
Periodic Review. Each permit issued shall be subject to review by the city every five years. The director shall notify the owner/operator at their last known address at least 30 days prior to the review hearing. The review shall be by the same body that approved the original application. The review is to insure that the facility is still in operation, that it has been properly maintained and that the original conditions of approval have been adhered to and whether they are to remain the same or need to be modified.
B. 
Additional Conditions. Pursuant to the review, the city may add conditions to any permit as necessary to advance a significant governmental interest related to health, safety or welfare, provided, however, that any added condition shall comply with applicable FCC and PUC regulations and standards, laws and decisions relating to DIVS issued by any legislative body, court or agency with competent jurisdiction over the matter, and that reasonable advance notice has been provided to all affected parties.
(Ord. 375 § 1, 2009)
At any time, the director may initiate proceedings to revoke a permit issued pursuant to this chapter. Grounds for revocation shall be limited to a finding that:
A. 
The owner or operator has abandoned the DIVS; or
B. 
The owner or operator has failed to bring the DIVS into compliance with the conditions of approval, or the requirements of this chapter, within the period of time provided in a written notice sent by the city requiring the DIVS to be brought into compliance.
C. 
Any decision of the director may be appealed to the public works and traffic commission and then to the city council pursuant to Chapter 2.08 of this code.
(Ord. 375 § 1, 2009)
All DIVS shall comply at all times with the following operation and maintenance standards:
A. 
Equipment. All DIVS, including lighting, fences, cabinets and poles, shall be maintained by the owner or operator in good repair, free from trash, debris, litter and graffiti and other forms of vandalism, and any damage from any cause shall be repaired as soon as reasonably possible so as to minimize occurrences of dangerous conditions or visual blight.
B. 
Landscaping. Each DIVS which contains trees, foliage or other landscaping elements, whether or not used as screening, shall be maintained in good condition at all times, and the owner or operator of the DIVS shall be responsible for replacing any damaged, dead or decayed landscaping as promptly as reasonably possible. If a landscape plan was required and approved, the site shall be maintained in accordance with the approved landscape plan at all times. Amendments or modifications to the plan shall be submitted for approval to the director.
C. 
Noise. Each DIVS shall be operated in such a manner so as to minimize any possible disruption caused by noise, as determined by the director.
D. 
Inspections. Each owner or operator of a DIVS shall routinely and regularly inspect each site to ensure compliance with the standards set forth in this section.
(Ord. 375 § 1, 2009)
A. 
Notice. At such time that an owner or operator plans to abandon, or is required to discontinue operation of a DIVS or portion thereof, the owner or operator will notify the city by certified U.S. mail of the proposed date of abandonment or discontinuation of operations and the date the DIVS shall be removed. The notice should be given no less than 30 days prior to abandonment. Failure to give notice shall not affect the owner or operator's obligation to remove an abandoned DIVS.
B. 
Removal. Upon abandonment, the owner or operator shall physically remove the DIVS or abandoned elements within 180 days from the date of abandonment or discontinuation of use. "Physically remove" shall include, but not be limited to:
1. 
Removal of antennas, mounts, equipment cabinets and security barriers;
2. 
Transportation of the antennas, mount, equipment cabinets and security barriers to an appropriate repository;
3. 
Restoring the site of the DIVS to its natural condition except for retaining the landscaping improvements and any other improvements at the discretion of the city.
C. 
Stay. The city may stay the requirement to remove an abandoned DIVS upon written request and evidence submitted by the owner or operator that another carrier is in reasonable negotiation to acquire and use the DIVS.
D. 
Nuisance Abatement. If an owner or operator fails to remove a DIVS in accordance with this Chapter, the DIVS shall be deemed a public nuisance.
(Ord. 375 § 1, 2009)
Any person who violates any provision of this chapter shall be guilty of a misdemeanor punishable as set forth in this code.
(Ord. 375 § 1, 2009)