The purpose of this chapter is to establish a process for managing, and uniform standards for acting upon, requests for the placement of wireless facilities within the public rights-of-way of the city consistent with the city's obligation to promote the public health, safety, and welfare, to manage the public rights-of-way, and to ensure that the public is not incommoded by the use of the public rights-of-way for the placement of wireless facilities. The city recognizes the role of personal wireless facilities to provide personal wireless service to the residents and businesses within the city. No provision of this chapter shall be interpreted in a manner that violates state or federal law.
(Ord. 477U § 2, 2020; Ord. 477 § 2, 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 policy will have their ordinary meanings.
The definitions in this policy shall control over conflicting definitions for the same or similar abbreviations, phrases, terms or words as may be defined in the Malibu Municipal Code Chapter 17.02 and Section 17.46.040.
"Applicant"
means a person filing an application for placement or modification of a wireless facility in the public right-of-way.
"Application"
means a formal request, including all required and requested documentation and information, submitted by an applicant to the city for a wireless ROW permit.
"Eligible facilities request" or "EFR"
has the meaning as set forth in 47 C.F.R. Section 1.6100(b)(3), or any successor provision.
"FCC"
means the Federal Communications Commission or its lawful successor.
"Municipal infrastructure"
means city-owned or controlled property structures, objects, and equipment in the ROW, including, but not limited to, street lights, traffic control structures, banners, street furniture, bus stops, billboards, or other poles, lighting fixtures, or electroliers located within the ROW.
"Permittee"
means any person or entity granted a wireless ROW permit pursuant to this chapter.
"Personal wireless services"
has the same meaning as set forth in 47 U.S.C. Section 332(c)(7)(C)(i).
"Personal wireless services facility"
means a wireless facility used for the provision of personal wireless services.
"Professional engineer (PE)"
is as defined by Business and Professions Code Section 6701, and shall be interpreted to refer to the specific appropriate engineering branch in issue as defined in Sections 6702 through 6703 and "supervision of the construction of engineering structures" as defined in Section 6703.1.
"Public right-of-way" or "ROW"
means any public street, public way or public place within the city limits, either owned by the city or dedicated to the public for the purpose of travel and which the city has the responsibility to maintain or manage.
The term includes all or any part of the entire width of right-of-way, and above and below the same, whether or not such entire area is actually used for travel purposes.
"Small cell facility"
has the same meaning as "small wireless facility" in 47 C.F.R. 1.6002(l), or any successor provision (which is a personal wireless services facility that meets the following conditions that, solely for convenience, have been set forth below):
1. 
The facility:
a. 
Is mounted on a structure 50 feet or less in height, including antennas, as defined in 47 C.F.R. Section 1.1320(d), or
b. 
Is mounted on a structure no more than 10% taller than other adjacent structures, or
c. 
Does not extend an existing structure on which it are located to a height of more than 50 feet or by more than 10%, whichever is greater;
2. 
Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in 47 C.F.R. Section 1.1320(d)), is no more than three cubic feet in volume;
3. 
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 28 cubic feet in volume;
4. 
The facility does not require antenna structure registration under 47 C.F.R. Part 17;
5. 
The facility is not located on Tribal lands, as defined under 36 C.F.R. Section 800.16(x); and
6. 
The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 C.F.R. Section 1.1307(b).
"Support structure"
means any structure capable of supporting a base station.
"Underground areas"
means those areas where there are no electrical facilities or facilities of a local exchange carrier in the right-of-way; or where the wires associated with the same are or are required to be located underground; or where the same are scheduled to be converted from overhead to underground. Electrical facilities are distribution facilities owned by an electric utility and do not include transmission facilities used or intended to be used to transmit electricity at nominal voltages in excess of 35,000 volts.
"Utility pole"
means a structure in the ROW designed to support electric, telephone and similar utility lines. For the avoidance of doubt, any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities is not a utility pole.
"Wireless facility" or "facility"
means the transmitters, antenna structures and other types of installations used for the provision of wireless services at a fixed location, including, without limitation, any associated tower(s), support structure(s), and base station(s).
"Wireless infrastructure provider"
means a person that owns, controls, operates or manages a wireless facility or portion thereof within the ROW.
"Wireless regulations"
means those regulations adopted pursuant to Section 12.02.050 and implementing the provisions of this chapter.
"Wireless ROW permit" or "WRP"
means a permit issued pursuant to this chapter authorizing the placement or modification of a wireless facility of a design specified in the permit at a particular location within the ROW; and the modification of any existing support structure to which the wireless facility is proposed to be attached.
"Wireless service provider"
means an entity that provides personal wireless services to end users.
(Ord. 477U § 2, 2020; Ord. 477 § 2, 2021)
A. 
In General. There shall be a type of permit entitled a "wireless ROW permit (WRP)," which shall be subject to all of the requirements of this chapter. Unless exempted, every person who desires to place a wireless facility in the public rights-of-way or modify an existing wireless facility in the public rights-of-way must obtain a wireless ROW permit authorizing the placement or modification in accordance with this chapter. Except for small cell facilities, facilities qualifying as eligible facilities requests, or any other type of wireless facility expressly allowed in the public right-of-way by state or federal law, no other wireless facilities shall be permitted pursuant to this chapter.
B. 
Exemptions. This chapter does not apply to:
1. 
The placement or modification of facilities by the city or by any other agency of the state solely for public safety purposes.
2. 
Installation of a "cell on wheels," "cell on truck" or a similar structure for a temporary period in connection with an emergency or event, but no longer than required for the emergency or event, provided that installation does not involve excavation, movement, or removal of existing functional facilities.
C. 
Other Applicable Requirements. In addition to the WRP required herein, the placement and operation of a wireless facility in the public rights-of-way requires the persons who will own or control those facilities to obtain all permits required by Chapter 12.04 (Highway Permits) and other applicable law, and to comply with applicable law, including, but not limited to, applicable law governing radio frequency (RF) emissions and the Americans with Disabilities Act (ADA) and electrical and fire codes. If an applicant meets the requirements of this chapter and obtains a wireless ROW permit, then the applicant does not need to obtain a site plan review permit or conditional use permit pursuant to Malibu Municipal Code Sections 17.46.020 and 17.46.030.
D. 
Pre-Existing Facilities in the ROW. Any permitted wireless facility already existing in the ROW as of the date of this chapter's adoption shall remain subject to the standards and conditions of the city code in effect prior to this chapter, unless and until a renewal of such facility's then-existing permit is granted, at which time the provisions of this chapter shall apply in full force going forward as to such facility. The review of any request for a renewal of a permit for such pre-existing facilities shall be conducted pursuant to this chapter, rather than the portion(s) of the city code under which it was previously reviewed.
E. 
Public Use. Except as otherwise provided by California law, any use of the public right-of-way authorized pursuant to this chapter will be subordinate to the city's use and use by the public.
(Ord. 477U § 2, 2020; Ord. 477 § 2, 2021)
A. 
Reviewing Authority. The planning director or designee ("director") is responsible for administering this chapter. As part of the administration of this chapter, the director is responsible for the following:
1. 
Implement standards governing the placement and modification of wireless facilities consistent with the requirements of this chapter, including regulations governing collocation and resolution of conflicting applications for placement of wireless facilities;
2. 
Implement acceptable engineering design and development standards for wireless facilities in the public rights-of-way, taking into account the zoning districts adjacent to the public rights-of-way;
3. 
Develop forms and procedures for submission of applications for placement or modification of wireless facilities, and proposed changes to any support structure consistent with this chapter;
4. 
Collect, as a condition of the completeness of any application, any fee established by this chapter;
5. 
Establish deadlines for submission of information related to an application, and extend or shorten deadlines where appropriate and consistent with state and federal laws and regulations;
6. 
Issue any notices of incompleteness, requests for information, or conduct or commission such studies as may be required to determine whether a permit should be issued;
7. 
Require, as part of, and as a condition of completeness of any application, timely notice to members of the public that may be affected by the placement or modification of the wireless facility and proposed changes to any support structure;
8. 
Subject to appeal as provided herein, determine whether to approve, approve subject to conditions, or deny an application; and
9. 
Take such other steps as may be required to timely act upon applications for placement of wireless facilities, including issuing written decisions and entering into agreements to mutually extend the time for action on an application.
B. 
Appeals.
1. 
Any person adversely affected by a decision of the director pursuant to this chapter may request an administrative hearing to appeal the director's decision. In order to request a hearing, the person shall submit to the city clerk in the manner directed in the director's decision notice a fully completed request for administrative hearing form along with a full amount of the appeal fee (by way of check or money order). The request for administrative hearing shall be incomplete if it does not include the deposit in the full amount of the appeal fee. The deposit will be retained in a noninterest bearing account until the matter is resolved. The appeal fee shall be refunded to the appellant if their appeal is granted.
2. 
Appeals must be filed within five business days of the mailing of decision notice of the director, unless a different time period is specified by the director in such notice. The director may extend the time period for filing an appeal for due cause but an extension may not be granted where such extension would result in approval of the application by operation of law.
3. 
If a timely and complete request for hearing is not submitted, the director's decision shall be deemed final.
4. 
If a timely and complete request for hearing is submitted, the city manager shall appoint to an administrative hearing officer ("hearing officer") to conduct the administrative hearing. The hearing officer may decide the issues de novo. Administrative hearings are informal, and formal rules of evidence and discovery do not apply. The appellant and the applicant shall have the opportunity to present evidence in support of their case.
5. 
Any administrative hearing shall be conducted so that a timely written decision may be issued in accordance with applicable law.
6. 
The hearing officer's decision shall be in writing, shall explain the basis for the decision, and shall be served upon the applicant, and upon the appellant (if different) by first class mail, to the address stated on the request for hearing form. and the written decision of the hearing officer will be the final decision of the city effective on the date of mailing.
(Ord. 477U § 2, 2020; Ord. 477 § 2, 2021)
A. 
Generally. Wireless facilities in the ROW shall meet the minimum requirements set forth in this chapter and the wireless regulations, in addition to the requirements of any other applicable law.
B. 
Regulations. The wireless regulations and decisions on applications for placement of wireless facilities in the ROW shall, at a minimum, ensure that the requirements of this section are satisfied, unless a waiver is granted by the director or hearing officer pursuant to subsection E of this section.
C. 
Minimum Standards. Wireless facilities shall be installed and modified in a manner that does not incommode the public use of the ROW, in that it minimizes risks to public safety, avoids placement of above-ground facilities in underground areas, avoids installation of new support structures or equipment cabinets in the public rights-of-way, makes facilities stealth by using concealment elements, and otherwise maintains the integrity and character of the neighborhoods and corridors in which the facilities are located; ensures that installations are subject to periodic review to minimize the intrusion on the rights-of-way; and ensures that the city bears no risk or liability as a result of the installations, and that such use does not inconvenience the public or cause personal or economic harm, interfere with the primary uses of the rights-of-way, or hinder the ability of the city or other government agencies to improve, modify, relocate, abandon, or vacate the public rights-of-way or any portion thereof, or to cause the improvement, modification, relocation, vacation, or abandonment of facilities in the rights-of-way.
D. 
Engineering Design and Location Standards. All applicants shall engineer, design and locate the wireless facilities in accordance with the standards and wireless regulations set forth separately through the resolution adopted by the city council.
E. 
Waivers. Requests for waivers from any requirement of this chapter shall be made in writing to the director. The director or hearing officer may grant a request for waiver only if it is demonstrated through clear and convincing evidence that denial of an application would, within the meaning of federal law, prohibit or effectively prohibit the provision of personal wireless services, or otherwise violate applicable laws or regulations. All waivers approved pursuant to this subsection shall be: (1) granted only on a case-by-case basis; and (2) narrowly-tailored so that the requirements of this chapter are waived only to the minimum extent required to avoid the prohibition or violation.
(Ord. 477U § 2, 2020; Ord. 477 § 2, 2021)
A. 
Submission. Unless the wireless regulations provide otherwise, applicant shall submit a paper copy and an electronic copy of any application, amendments, or supplements to an application, or responses to requests for information regarding an application to the planning department.
B. 
Pre-Application Meeting. Prior to filing an application for a WRP, applicant is encouraged to schedule a voluntary pre-application meeting with the director to discuss the proposed facility, the requirements of this chapter, and any potential impacts of the proposed facility. Conducting a voluntary pre-application meeting shall not initiate any applicable "shot clock."
C. 
Public Notice.
1. 
Within seven calendar days after an application is submitted to the city, the applicant shall: (a) post notice at the proposed project site in a location near to and visible from the ROW; and (b) provide the city with evidence that such notice has been posted. The applicant shall maintain and replace the posted notice as necessary during the entire application review process until the director acts on the application and all appeals have been exhausted. The posted notice shall be composed from durable quality and weather-resistant materials that will not deteriorate under normal circumstances for at least 180 calendar days. The posted notice shall be at minimum 17 inches wide by 11 inches tall. The posted notice shall not be placed in any location where it would obstruct travel or visibility for vehicles, bicycles, pedestrians or other users in the ROW. The city encourages applicants to consult with the planning department on placement locations to avoid any potential hazards.
2. 
Within five business days from the date on which an application is determined to be complete, the director shall notify in writing of the filing of the application property owners and residents of all property within a 1,000 foot radius of the proposed project, but in no event fewer than the owners and occupants of 10 developed properties. The purpose of the notice is to inform the surrounding property owners and residents of the filing of the application and provide an opportunity for comment on the application prior to the director's decision. The notice shall describe the request, provide a map showing the specific location of the proposed project, describe the review process and timeframes, indicate how to contact the applicant and case planner assigned to the application, and the city-assigned application identifier.
D. 
Content. An applicant shall submit an application on the form approved by the director, which may be updated from time to time, but in any event shall require the submission of all required fee(s), documents, information, and any other materials necessary to allow the director to make required findings and ensure that the proposed facility will comply with applicable federal and state law, the city code, and will not endanger the public health, safety, or welfare. If no form has been approved, applications must contain all information listed in any applicable city council resolution and as necessary to show that applicant is entitled to the WRP requested and must specify whether the applicant believes state or federal law requires action on the application within a specified time period.
E. 
Fees. Application fee(s) shall be required to be submitted with any application for a wireless ROW permit and with any request for appeal of a director's decision. At the time of the adoption of the ordinance codified in this chapter, the application and appeal fees are set forth in the planning department fees in the city's Fiscal Year 2020-2021 Citywide Fee Schedule, which may be amended from time to time. Notwithstanding the foregoing, no application fee shall be refundable, in whole or in part, to an applicant for a WRP unless paid as a refundable deposit. Simultaneously with an appeal request, an affected resident may submit a request for waiver of appeal fees based on a showing of undue financial burden. If the request for waiver is granted, no fee shall apply. If the request for waiver is denied, the affected resident shall submit payment of the fee within three days after notice of the waiver request has been denied. Failure to timely submit the fee will result in dismissal of the appeal.
F. 
Incompleteness. Applications will be processed, and notices of incompleteness provided, in conformity with state, local, and federal law. If an application is incomplete, the director may notify the applicant in writing, and specifying the material omitted from the application. A failure to notify the applicant of any defect or omission does not relieve the applicant of its burden of proof on the merits and the city reserves the right to deny the application if all necessary information was not provided by the applicant.
G. 
Denials Without Prejudice/Extensions. To promote efficient review and timely decisions, if the applicant fails to tender a substantive response to the director within 90 calendar days after the director deems the application incomplete in a written notice to the applicant, the director may, in the director's discretion, deny the application without prejudice. However, if the applicant submits a written request to the director prior to the 90th day that shows good cause to grant an extension, the director may instead grant a written extension for up to an additional 30 calendar days for the applicant to tender a substantive response.
(Ord. 477U § 2, 2020; Ord. 477 § 2, 2021)
A. 
Findings Required for Approval.
1. 
Except for eligible facilities requests, the director or hearing officer, as the case may be, shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, he or she finds the following:
a. 
The facility is not detrimental to the public health, safety, and welfare;
b. 
The facility complies with this chapter and all applicable design and development standards;
c. 
The facility meets applicable requirements and standards of state and federal law;
d. 
The application is complete and provides all information required by this chapter; and
e. 
The applicant has satisfied the burden of proving full compliance with all procedural and substantive requirements in this chapter.
2. 
For eligible facilities requests, the director or hearing officer, as the case may be, shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, he or she finds the following:
a. 
That the application qualifies as an eligible facilities request in that:
i. 
The proposed colocation or modification meets each and every one of the applicable criteria for an eligible facilities request stated in 47 C.F.R. 1.6100(b)(3)-(9), after application of the definitions in 47 C.F.R. 1.6100(b). The director shall make an express finding for each criterion that applies and for any criterion found not to apply the director shall make independent findings justifying the determination that a criterion does not apply;
ii. 
The existing facility complies with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment; provided, however, that this limitation does not apply to any modification that is noncompliant only in a manner that would not exceed the thresholds identified in 47 C.F.R. 1.6100(b)(7)(i) through (iv); and
b. 
That the proposed facility will comply with all generally-applicable laws.
B. 
Decisions. Decisions on an application by the director or hearing officer shall be in writing and include the reasons for the decision.
C. 
Independent Consultants. The director or hearing officer, as the case may be, is authorized, in his or her discretion, to select and retain independent consultant(s) with expertise and appropriate credentials in telecommunications and/or electrical and fire safety in connection with the review of any application under this chapter. Such independent consultant review may be retained on any issue that involves specialized or expert knowledge in connection with an application, including, but not limited to, application completeness or accuracy, engineering analysis, or compliance with FCC radio frequency emissions limits.
(Ord. 477U § 2, 2020; Ord. 477 § 2, 2021)
In addition to any supplemental conditions imposed by the director or hearing officer, as the case may be, all permits under this chapter shall be subject to the conditions in the design standards and standard conditions of approval resolution adopted by the city council, unless modified by the director or hearing officer.
(Ord. 477U § 2, 2020; Ord. 477 § 2, 2021)
A. 
For Breach. A WRP may be revoked for failure to comply with the conditions of the permit or applicable law or if the permittee becomes ineligible for franchise rights under state law or if the permittee's FCC authorization to operate wireless facilities and/or provide wireless service is terminated for any reason. Upon revocation, the wireless facility must be removed; provided that removal of a support structure owned by city, a utility, or another entity authorized to maintain a support structure in the right-of-way need not be removed, but must be restored to its prior condition, except as specifically permitted by the city. All costs incurred by the city in connection with the revocation and removal shall be paid by entities who own or control any part of the wireless facility.
B. 
For Installation Without a Permit. A wireless facility or its modification installed after the effective date of the ordinance codified in this chapter without a WRP (except for those exempted from, or not subject to, this chapter) must be removed; provided that removal of a support structure owned by city, a utility, or another entity authorized to maintain a support structure in the right-of-way need not be removed, but must be restored to its prior condition, except as specifically permitted by the city. All costs incurred by the city in connection with enforcement of this provision and removal shall be paid by entities who own or control any part of the wireless facility.
C. 
Violations. In addition to any criminal, civil or other legal remedy established by law that may be pursued to address violations of the municipal code, violations of any provision of this chapter or the regulations adopted by this chapter are subject to the administrative penalty provisions of Chapter 1.10.
(Ord. 477U § 2, 2020; Ord. 477 § 2, 2021)
In establishing the rights, obligations and conditions set forth in this chapter, it is the intent of the city to treat each applicant or public right-of-way user in a competitively neutral and nondiscriminatory manner, to the extent required by law, and with considerations that may be unique to the technologies, situation and legal status of each particular applicant or request for use of the ROW.
(Ord. 477U § 2, 2020; Ord. 477 § 2, 2021)