In 1996, Congress adopted the Telecommunications Act to balance
the national interest in advanced communications services and infrastructure
with legitimate local government authority to enforce zoning and other
regulations to manage infrastructure deployments on private property
and in the public rights-of-way. Under Section 704, which applies
to personal wireless service facilities, local governments retain
all their traditional zoning authority subject to specifically enumerated
limitations. Section 253 preempts local regulations that prohibit
or effectively prohibit telecommunication services (i.e., common carrier
services) except competitively neutral and nondiscriminatory regulations
to manage the public rights-of-way and require fair and reasonable
compensation.
Communication technologies have significantly changed since
1996. Whereas cell sites were traditionally deployed on tall towers
and rooftops over low frequency bands that traveled long distances,
cell sites are increasingly installed on streetlights and utility
infrastructure on new frequency bands that travel shorter distances.
According to the Federal Communications Commission ("FCC") and the
wireless industry, these so-called "small wireless facilities" or
"small cells" are essential to the next technological evolution. The
wireless industry is rapidly densifying their networks, with many
small cells in the public rights-of-way, in addition to the tradition
cell sites on towers and rooftops.
On September 27, 2018, the FCC adopted a Declaratory Ruling
and Third Report and Order, FCC 18-133 (the "Small Cell Order"), in
connection with two informal rulemaking proceedings entitled Accelerating
Wireless Broadband Deployment by Removing Barriers to Infrastructure
Investment, WT Docket No. 17-79, and Accelerating Wireline Broadband
Deployment by Removing Barriers to Infrastructure Investment, WC Docket
No. 17-84. In general, the Small Cell Order: (A) restricts the fees
and other compensation State and local governments may receive from
applicants; (B) requires all aesthetic regulations to be reasonable,
no more burdensome than those applied to other infrastructure deployments,
objective, and published in advance; (C) mandates that local officials
negotiate access agreements, review permit applications, and conduct
any appeals within significantly shorter timeframes; and (D) creates
new evidentiary presumptions that make it more difficult for local
governments to defend themselves if an action or failure to act is
challenged in court. The regulations adopted in the Small Cell Order
significantly curtail the local authority over wireless and wireline
communication facilities reserved to State and local governments under
Sections 253 and 704 in the Telecommunications Act.
On August 12, 2020, the United States Court of Appeals for the
Ninth Circuit invalidated many aesthetic restrictions in the Small
Cell Order but largely upheld the other restrictions. Portland
v. United States, 969 F.3d 1020 (9th Cir. 2020). However,
as of the date of the ordinance adopting this chapter, the Ninth Circuit's
decision remains subject to further appeals.
The City of Santa Barbara, nevertheless, retains "broad authority
to determine, for purposes of the public health, safety, and welfare,
the appropriate uses of land within a local jurisdiction's borders," T-Mobile West LLC v. City and County of San Francisco, 438
P.3d 1107 (Cal. 2019), including all zoning powers that are not specifically
preempted by Federal law, T-Mobile S., LLC v. City of Roswell, 574 U.S. 293 (2015).
(Ord. 6044 § 1, 2021)
This chapter is intended to establish reasonable, uniform and
comprehensive standards and procedures for small wireless facilities
deployment, construction, installation, collocation, modification,
operation, relocation and removal within the City's territorial boundaries,
consistent with and to the extent permitted under Federal and California
State law. The standards and procedures contained in this chapter
are intended to, and should be applied to, protect and promote public
health, safety and welfare, and balance the benefits that flow from
robust, advanced wireless services with the City's local values, which
include, without limitation, the aesthetic character of the City,
its neighborhoods, and community. This chapter is also intended to
reflect and promote the 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 or visual
blight created or exacerbated by small wireless facilities and related
communications infrastructure; (C) protecting and preserving the City's
environmental resources; (D) protecting and preserving the City's
public rights-of-way and municipal infrastructure located within the
City's public rights-of-way; (E) protecting and promoting the City's
residential neighborhoods and other family oriented environments,
such as parks, trails and beaches; and (F) promoting access to high-quality,
advanced wireless services for the City's residents, businesses and
visitors.
This chapter is intended to provide clear procedures for application
intake and completeness review. The City Council finds that chronically
incomplete applications significantly contribute to unreasonable delay
and create barriers to infrastructure deployment. Chronically incomplete
applications unfairly prejudice other applicants who may be prepared
to submit complete applications for infrastructure in the same or
substantially the same location. Chronically incomplete applications
also unfairly prejudice the City's ability to act on such applications
within the "presumptively reasonable" timeframes established by the
FCC. The provisions in this chapter afford applicants and City staff
opportunities for direct, real-time communication about completeness
issues to mitigate incomplete applications prior to submittal. The
provisions in this chapter also encourage applicants to timely respond
to incomplete notices.
This chapter is not intended to, nor shall it be interpreted
or applied to: (A) prohibit or effectively prohibit any personal wireless
service provider's ability to provide personal wireless services;
(B) prohibit or effectively prohibit any entity's ability to provide
any telecommunications service, subject to any competitively neutral
and nondiscriminatory rules, regulations or other legal requirements
for rights-of-way management; (C) unreasonably discriminate among
providers of functionally equivalent personal wireless 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 wireless facilities
comply with the FCC's regulations concerning such emissions; (E) prohibit
any collocation or modification that the City may not deny under Federal
or California State law; (F) impose any unreasonable, discriminatory
or anticompetitive fees that exceed the reasonable cost to provide
the services for which the fee is charged; or (G) otherwise authorize
the City to preempt any applicable Federal or California law.
(Ord. 6044 § 1, 2021)
The abbreviations, phrases, terms and words used in this chapter
will have the following meanings assigned to them unless context indicates
otherwise. Undefined phrases, terms or words in this chapter will
have their ordinary meanings.
The definitions in this chapter shall control over conflicting
definitions for the same or similar abbreviations, phrases, terms
or words as may be defined in the Code. However, if any definition
assigned to any phrase, term or word in this chapter conflicts with
any Federal or State-mandated definition, the Federal or State-mandated
definition will control.
Accessory Equipment.
Equipment other than antennas used in connection with a small
wireless facility or strand-mounted wireless facility. The term includes
"transmission equipment" as defined by the FCC in 47 C.F.R. Section
1.6100(b)(8), as may be amended or superseded.
Amateur Station.
The same as defined by the FCC in 47 C.F.R. Section 97.3,
as may be amended or superseded, which defines the term as "a station
in an amateur radio service consisting of the apparatus necessary
for carrying on radio communications." This term includes amateur
radio antennas and related facilities used for amateur radio services.
Antenna.
The same as defined by the FCC in 47 C.F.R. Section 1.6002(b),
as may be amended or superseded.
Approval Authority.
The City official or body responsible for application review
and vested with authority to approve or deny such applications.
Board.
The Architectural Board of Review, the Historic Landmarks
Commission, or the Single Family Design Board, as applicable.
Code.
The City of Santa Barbara Municipal Code.
Collocation.
The same as defined by the FCC in 47 C.F.R. Section 1.6002(g),
as may be amended or superseded, which defines that term as mounting
or installing an antenna facility on a pre-existing structure or modifying
a structure for the purpose of mounting or installing an antenna facility
on that structure. For clarification, the FCC defines the term "collocation"
in two contexts, one for small wireless facilities in 47 C.F.R. Section
1.6002(g) and another for requests pursuant to Section 6409 in 47
C.F.R. Section 1.6100(b)(2). This chapter uses the term "collocation"
as defined for small wireless facilities unless expressly provided
otherwise.
CPUC.
The California Public Utilities Commission established in
the California Constitution, Article XII, Section 5, or its duly appointed
successor agency.
Decorative Pole.
Any pole that includes decorative or ornamental features,
design elements and materials for aesthetic purposes.
Director.
The Public Works Director or the Director's designee.
Eligible Facilities Request.
The same as defined in 47 U.S.C. Section 1455(a)(2), as may
be amended or superseded, and as interpreted by the FCC in 47 C.F.R.
Section 1.6100(b)(3), as may be amended or superseded.
FCC.
The Federal Communications Commission, as constituted by
the Communications Act of 1934, Pub. L. 73-416, 48 Stat. 1064, codified
as 47 U.S.C. Sections 151 et seq. or its duly appointed successor
agency.
Local Street.
A roadway identified as functional classification 7 for "local"
on the Caltrans map.
Major Collector.
Those roadways identified as functional classification 5
for "major collector" on the Caltrans map.
Minor Arterial.
Those roadways identified as functional classification 4
for "minor arterial" on the Caltrans map.
Minor Collector.
Those roadways identified as functional classification 6
for "minor collector" on the Caltrans map.
Non-Pole Concealment Structure.
A structure within the public rights-of-way, other than a
pole, that can be adapted (either in its current form or through a
replacement) to conceal antennas or accessory equipment for small
wireless facilities. Examples may include, without limitation, monuments,
kiosks, bus shelters and other street furniture.
OTARD.
Any "over-the-air reception device" subject to 47 C.F.R.
Sections 1.4000 et seq., as may be amended or superseded, which generally
includes satellite television dishes and certain fixed wireless antennas
not greater than one meter in diameter.
Persons Entitled To Notice.
(1) All real property owners as shown on the most recent
equalized assessment roll within 500 feet from the location where
a small wireless facility or strand-mounted wireless facility is proposed;
and (2) all occupants of properties within 500 feet from the location
where a small wireless facility or strand-mounted wireless facility
is proposed. Mailed notice will be deemed given to real property owners
when sent to the address listed on the most recent equalized assessment
roll. Mailed notice will be deemed given to occupants of real property
when sent to the physical address of the real property within 500
feet from the location where a small wireless facility or strand-mounted
wireless facility is proposed. If the number of owners and occupants
to whom the notice would be mailed or delivered is greater than 1,000,
instead of mailed notice, notice may be provided by placing a display
advertisement of at least one-eighth page in at least one newspaper
of general circulation in the City. Generally interested parties who
are not a real property owner or occupant of a property within 500
feet from the location where a small wireless facility or strand-mounted
wireless facility is proposed may stay informed of pending applications
through a City maintained website that contains a list of various
applications, any decisions and when and how to appeal such decisions.
Principal Arterial.
Those roadways identified as functional classification 3
for "other principal arterial" on the Caltrans map.
Prohibited Support Structure.
Any support structure on which the City prohibits the deployment
of wireless facilities, except when authorized as a pre-approved design
pursuant to this chapter. Prohibited support structures include decorative
poles; traffic signal poles, cabinets or related structures; new,
nonreplacement wood poles; and any utility pole scheduled for removal
within 18 months from the time the Director acts on the application
for such pole.
Public Right-Of-Way or Public Rights-of-Way.
Land or an interest in land which by deed, conveyance, agreement,
easement, dedication, usage or process of law is reserved for or dedicated
to or open to the use by the general public for road or highway purposes.
The term does not include private or public utility easements unless
such easement is reserved for or dedicated to or open to the use by
the general public for road or highway purposes.
Section 6409.
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), as may be amended.
Shot Clock.
The presumptively reasonable time defined by the FCC in which
a State or local government must act on an application or request
for authorization to place, construct or modify personal wireless
service facilities.
State Highway.
Those roadways identified as functional classification 2
for "other freeway or expressway" on the Caltrans map.
(Ord. 6044 § 1, 2021)
In addition to the requirements in this chapter, the Director
may adopt and promulgate such orders, rules, or regulations as the
Director deems necessary or appropriate to protect and maintain public
health, safety, welfare and convenience. All such orders, rules, and
regulations must be in written form and publicly stated to provide
applicants with prior notice. All small wireless facilities and strand-mounted
wireless facilities must conform to all applicable orders and regulations
issued by the Director, unless the Director, in the Director's discretion,
grants a prior written waiver to deviate, in whole or in part, any
such order or regulation. Waivers by the Director shall be considered
and approved or denied on a competitively neutral and nondiscriminatory
basis. The Director shall develop and publish guidelines to implement
the waivers authorized by this section. Orders, rules, regulations
and guidelines will be available and on file with the City Engineer
and the City's website.
(Ord. 6044 § 1, 2021)
It is unlawful for any person to perform any act that is prohibited by this chapter or to cause or permit to exist any condition that violates this chapter. This chapter shall be enforceable as provided in Chapters
1.25 and
1.28. A violation of any of the provision of this chapter shall be and is hereby declared a public nuisance and may be subject to an action under California
Code of Civil Procedure Section 731, and any other remedy available to the City.
(Ord. 6044 § 1, 2021)