Chapter 17.40 WIRELESS TELECOMMUNICATIONS FACILITIES

Note: Prior ordinance history: Ord. 1897.

The purpose and intent of this chapter is to provide a uniform and comprehensive set of regulations and standards for the permitting, development, siting, installation, design, operation and maintenance of wireless telecommunications facilities in the City of Upland. These regulations are intended to prescribe clear and reasonable criteria to assess and process applications in a consistent and expeditious manner, while reducing the impacts associated with wireless telecommunications facilities. This chapter provides standards necessary to: (1) preserve and promote harmonious land uses and the public right-of-way in the City; (2) promote and protect public health and safety, community welfare, visual resources, and the aesthetic quality of the City consistent with the goals, objectives and policies of the General Plan; (3) provide for the orderly, managed, and efficient development of wireless telecommunications facilities in accordance with the state and Federal laws, rules, and regulations; and (4) encourage new and more efficient technology in the provision of wireless telecommunications facilities.

This chapter is not intended to, nor shall it be interpreted or applied to: (1) prohibit or effectively prohibit any personal wireless service provider's ability to provide personal wireless services; (2) prohibit or effectively prohibit any entity's ability to provide any interstate or intrastate telecommunications service, subject to any competitively neutral and nondiscriminatory rules or regulation for rights-of-way management; (3) unreasonably discriminate among providers of functionally equivalent services; (4) 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; (5) prohibit any collocation or modification that the City may not deny under Federal or State law; or (6) otherwise authorize the City to preempt any applicable Federal or State law.

(Ord. 1944 § 3, 2020)

§ 17.40.020 Definitions.

For the purposes of this chapter, the following defined terms shall have the meaning set forth in this section unless the context clearly indicates or requires a different meaning:

"Accessory equipment"

means any equipment associated with the installation of a wireless telecommunications facility, including, but not limited to, cabling, generators, air conditioning units, electrical panels, equipment shelters, equipment cabinets, equipment buildings, pedestals, meters, vaults, splice boxes, and surface location markers.

"Antenna"

means that part of a wireless telecommunications facility designed to radiate or receive radio frequency signals or electromagnetic waves for the provision of services, including, but not limited to, cellular, paging, personal communications services (PCS) and microwave communications. Such devices include, but are not limited to, directional antennas, such as panel antenna, microwave dishes, and satellite dishes; omnidirectional antennas; wireless access points (Wi-Fi); and strand-mounted wireless access points. This definition does not apply to broadcast antennas, antennas designed for amateur radio use, or satellite dishes designed for residential or household purposes.

"Base station"

means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(1), as may be amended, which defines that term as 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 in 47 C.F.R. Section 1.40001(b)(9) or any equipment associated with a tower. The term includes, but is not limited to, 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. The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks). The term includes any structure other than a tower that, at the time the relevant application is filed with the State or local government under this section, supports or houses equipment described in 47 C.F.R. Section 1.40001(b)(1)(i) and (ii) that has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support. The term does not include any structure that, at the time the relevant application is filed with the State or local government under this section, does not support or house equipment described in 47 C.F.R. Section 1.40001(b)(1)(i) and (ii).

"Building-mounted"

means mounted to the side or façade, but not the roof, of a building or another structure such as a water tank, pump station, church steeple, freestanding sign, or similar structure.

"Cellular"

means an analog or digital wireless telecommunications technology that is based on a system of interconnected neighboring cell sites.

"Collocation"

means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(2), as may be amended, which defines that term as the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting or receiving radio frequency signals for communications purposes. As an illustration and not a limitation, the FCC's definition effectively means "to add" and does not necessarily refer to more than one wireless telecommunication facility installed at a single site.

"Director"

means the City Development Services Director or designee.

"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: (1) collocation of new transmission equipment; (2) removal of transmission equipment; or (3) 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 its duly appointed successor agency.

"Modification"

means any change to an existing wireless telecommunications facility that involves any of the following: collocation, expansion, modification, alteration, enlargement, intensification, reduction, or augmentation, including, but not limited to, a change in size, shape, color, visual design, or exterior material. Modification does not include repair, replacement, or maintenance if those actions do not involve a change to the existing facility involving any of the following: collocation, expansion, modification, alteration, enlargement, intensification, reduction, or augmentation.

"Monopole"

means a structure consisting of a single pole used to support antennas or related equipment and includes a monopine, monoredwood, and similar monopoles camouflaged to resemble trees or other objects.

"Personal wireless services"

means the same as defined in 47 U.S.C. Section 332(c)(7)(C)(i), as may be amended, which defines the term as commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services.

"Personal wireless service facilities"

means the same as defined in 47 U.S.C. Section 332(c)(7)(C)(i), as may be amended, which defines the term as facilities that provide personal wireless services.

"Pole"

means a single shaft of wood, steel, concrete, or other material capable of supporting the equipment mounted thereon in a safe and adequate manner and as required by provisions of the Upland Municipal Code.

"Public right-of-way or "right-of-way"

means any public street, public way, public alley or public place, laid out or dedicated, and the space on, above or below it, and all extensions thereof, and additions thereto, under the jurisdiction of the City.

"Reviewing authority"

means the person or body who has the authority to review and either grant or deny a wireless telecommunications facility permit pursuant to this chapter.

"RF"

means radio frequency or electromagnetic waves between 30 kHz and 300 GHz in the electromagnetic spectrum range.

"Roof-mounted"

means mounted directly on the roof of any building or structure, above the eave line of such building or structure.

"Section 6409(a)"

means Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, codified as 47 U.S.C. Section 1455(a), as such law may be amended from time to time. "Section 6409(a) approval" means the approval required by Section 6409(a).

"Site"

means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(6), as may be amended, which provides that for towers other than towers in the public rights-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.

"Small wireless facility" or "small wireless facilities"

means the same as defined by the FCC in 47 C.F.R. Section 1.6002(1), as may be amended or superseded.

"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 wireless facility type (tower or base station) and location (in or outside the public right-of-way). For clarity, this definition organizes the FCC's criteria and thresholds for a substantial change according to the wireless facility type and location.

For towers outside the public rights-of-way, a substantial change occurs when:

The proposed collocation or modification increases the overall height more than 10 percent or the height of one additional antenna array not to exceed 20 feet (whichever is greater); or

The proposed collocation or modification increases the width more than 20 feet from the edge of the wireless tower or the width of the wireless tower at the level of the appurtenance (whichever is greater); or

The proposed collocation or modification involves the installation of more than the standard number of equipment cabinets for the technology involved, not to exceed four; or

The proposed collocation or modification involves excavation outside the current boundaries of the leased or owned property surrounding the wireless tower, including any access or utility easements currently related to the site.

For towers in the public rights-of-way and for all base stations, a substantial change occurs when:

The proposed collocation or modification increases the overall height more than 10 percent or 10 feet (whichever is greater); or

The proposed collocation or modification increases the width more than six feet from the edge of the wireless tower or base station; or

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; or

The proposed collocation or modification involves the installation of any new ground-mounted equipment cabinets that are 10 percent larger in height or volume than any existing ground-mounted equipment cabinets; or

The proposed collocation or modification involves excavation outside the area in proximity to the structure and other transmission equipment already deployed on the ground.

In addition, for all towers and base stations wherever located, a substantial change occurs when:

The proposed collocation or modification would defeat the existing concealment elements of the support structure as determined by the Director; or

The proposed collocation or modification violates a prior condition of approval, provided however that the collocation need not comply with any prior condition of approval related to height, width, equipment cabinets or excavation that is inconsistent with the thresholds for a substantial change described in this section.

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).

"Telecommunications tower" or "tower"

means a freestanding mast, pole, monopole, guyed tower, lattice tower, free standing tower or other structure designed and primarily used to support wireless telecommunications facility antennas.

"Transmission equipment"

means the same as defined by the FCC in 47 C.F.R. Section 1.40001(b)(8), as may be amended, which defines that term as equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

"Utility pole"

means a pole or tower owned by any utility company that is primarily used to support wires or cables necessary to the provision of electrical or other utility services regulated by the California Public Utilities Commission.

"Wireless services"

means any FCC-licensed or authorized wireless communication service transmitted over frequencies in the electromagnetic spectrum.

"Wireless telecommunications facility"

means any facility constructed, installed, or operated for wireless service. "Wireless telecommunications facility" includes, but is not limited to, antennas or other types of equipment for the transmission or receipt of such signals, telecommunications towers or similar structures supporting such equipment, related accessory equipment, equipment buildings, parking areas, and other accessory development. "Wireless telecommunications facility" does not mean any of the following:

A facility that qualifies as an amateur station as defined by the FCC, 47 C.F.R. Part 97, of the Commission's Rules, or its successor regulation.

An antenna facility that is subject to the FCC Over-the-Air-Receiving Devices rule, 47 C.F.R. Section 1.4000, or any successor regulation, including, but not limited to, direct-to-home satellite dishes that are less than one meter in diameter, TV antennas used to receive television broadcast signals and wireless cable antennas.

Portable radios and devices including, but not limited to, hand-held, vehicular, or other portable receivers, transmitters or transceivers, cellular phones, CB radios, emergency services radio, and other similar portable devices as determined by the Director.

Telecommunications facilities owned and operated by any government agency.

Telecommunications facilities owned and operated by any emergency medical care provider.

Mobile services providing public information coverage of news events of a temporary nature.

Any wireless telecommunications facilities exempted from the Upland Municipal Code by Federal law or State law.

(Ord. 1944 § 3, 2020)

§ 17.40.030 Applicability.

This chapter applies to all wireless telecommunications facilities as follows:

All facilities for which applications were not approved prior to the effective date of the ordinance codified in this chapter shall be subject to and comply with all provisions of this chapter;

All facilities, notwithstanding the date approved, shall be subject immediately to the provisions of this chapter governing the operation and maintenance, cessation of use and abandonment, removal and restoration of wireless telecommunications facilities and wireless telecommunications collocation facilities and the prohibition of dangerous conditions or obstructions by such facilities; provided, however, that in the event a condition of approval conflicts with a provision of this chapter, the condition of approval shall control unless and until the permit is amended or revoked.

Title 17, including, but not limited to, this chapter shall not apply to a wireless telecommunications facility on property owned by the City. Prior to the establishment, construction, issuance of building permits or zoning permits for a wireless telecommunications facility on City-owned property, the applicant shall obtain a lease with the City of Upland for a (or the modification of) wireless telecommunication facility.

Notwithstanding any provision of the Upland Municipal Code to the contrary, provisions governing the installation of a public utility facility or accessory equipment shall not apply to wireless telecommunications facilities. This chapter shall govern all applications for wireless telecommunications facilities.

(Ord. 1944 § 3, 2020)

§ 17.40.040 Wireless Telecommunications Facility Permit Required.

Permit Required. No wireless telecommunications facility shall be located or modified within the City on any property, including the public right-of-way, without the issuance of a permit as required by this chapter as set forth in the table below. Such permit shall be in addition to any other permit required pursuant to the Upland Municipal Code.

Description Wireless Facility	Private Property		Public Right-of-Way⁴
Description Wireless Facility	RS-4, RS-6, RS-7.5, RS-10, RS-15, RS-20, MH, RM-10, RM-20, RM-30 Residential Specific Plans	All Other Zoning Districts	Nonresidential Zoning Districts
Roof-mounted facility, building-mounted facility, or facility mounted on an existing pole	Not Permitted	Conditional Use Permit/Development Plan Review	Conditional Use Permit/Development Plan Review
Facility-mounted on a replacement pole or new telecommunications tower	Not Permitted	Conditional Use Permit/Development Plan Review	Conditional Use Permit/Development Plan Review
New wireless telecommunications collocation facility	Not Permitted	Conditional Use Permit/Development Plan Review	Conditional Use Permit/Development Plan Review
Eligible facilities request¹ or application pursuant to California Government Code Section 65850.6²	Permitted	Permitted	Permitted
Small wireless facility³	Not Permitted	Permitted	Permitted

1	See requirements of Section 17.40.140.
2	See requirements of Section 17.40.150.
3	See requirements of Section 17.40.160
4	For any public right-of-way not within a zoning district, the location of a wireless telecommunication facility shall be determined based upon the closest district adjacent to the facility's location.

Non-Exclusive Grant. No approval granted under this chapter shall confer any exclusive right, privilege, license, or franchise to occupy or use the public right-of-way of the City for delivery of telecommunications services or any other purposes. Further, no approval shall be construed as any warranty of title.

(Ord. 1944 § 3, 2020)

§ 17.40.050 Application for Permit.

Application Content. All applications for a permit required by this chapter must be made in writing on such form as the Director prescribes, which shall include the following information, in addition to all other information determined necessary by the Director as well as all other information required by the City as part of an application for a conditional use permit:

Full name and contact information for the facility owner, facility operator, agent (if any), and property owner, and related letter(s) of authorization.

The type of facility, including a full written description of the proposed facility, its purpose and specifications.

A detailed site and engineering plan of the proposed facility containing the exact proposed location of the facility, created by a qualified licensed engineer and in accordance with requirements set by the Director.

Photographs of facility equipment and an accurate visual impact analysis with photo simulations.

Completion of an RF exposure guidelines checklist, and proof of all applicable licenses or other approvals required by the FCC.

If the application is for a facility that will be located within the public right-of-way, the applicant shall certify that it is a telephone corporation or state the basis for its claimed right to enter the right-of-way, and provide a copy of its certificate of public convenience and necessity (CPCN), if a CPCN has been issued by the California Public Utilities Commission.

A written description identifying the geographic service area for the subject installation, accompanied by a plan and maps showing anticipated future installations and modifications for the following two years.

A written report that analyzes acoustic levels for the proposed wireless telecommunications facility and all associated equipment including, without limitation, all environmental control units, sump pumps, temporary backup power generators, and permanent backup power generators in order to demonstrate compliance with Chapter 9.40 (Unnecessary Noise). The acoustic analysis must be prepared and certified by an engineer and 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. In lieu of a written report, the applicant may submit evidence from the equipment manufacturer that the ambient noise emitted from all the proposed equipment will not, both individually and cumulatively, exceed the applicable limits.

If the applicant claims it requires an exception to the requirements of this chapter, all information and studies necessary for the City to evaluate that claim.

10.

An application and processing fee and a deposit for a consultant review as set forth in subsection B of this section.

11.

Any other studies or information determined necessary by the Director may be required.

Independent Expert.

The Director is authorized to retain on behalf of the City an independent, qualified consultant to review any application for a permit for a wireless telecommunications facility to review the technical aspects of the application, including, but not limited to, the following matters:

The accuracy, adequacy, and completeness of submissions;

Compliance with applicable radio frequency emission standards;

Whether any requested exception is necessary to close a significant gap in coverage and is the least intrusive means of doing so;

Technical demonstration of the unavailability of alternative sites, facility designs or configurations, and coverage analysis; and

The validity of conclusions reached or claims made by applicant.

The cost of this review shall be paid by the applicant through a deposit pursuant to an adopted fee schedule resolution.

(Ord. 1944 § 3, 2020; Ord. 1949 § 2, 2021)

§ 17.40.060 Location and Configuration Preferences.

Purpose. The purpose of this section is to provide guidelines to applicants and the reviewing authority regarding the preferred locations and configurations for wireless telecommunication facilities in the City, provided that nothing in this section shall be construed to permit a wireless telecommunication facility in any location or configuration that it is otherwise prohibited by this chapter.

Review of Location and Configuration. The reviewing authority shall consider the extent to which a proposed wireless telecommunication facility complies with these preferences and whether there are feasible alternative locations or configurations to the proposed facility that are more preferred under this section. If the location or configuration of a proposed facility qualifies for two or more categories of preferred locations or configurations, it shall be deemed to belong to the least preferred category.

Order of Preference—Configurations. The order of preference for the configuration for wireless telecommunication facilities from most preferred to least preferred is:

Collocation with existing facilities;

Roof-mounted;

Building-mounted;

Mounted on an existing pole or utility pole;

Mounted on a new pole or utility pole that will replace an existing pole or utility pole;

Mounted on a new telecommunication tower.

Order of Preference—Location. The order of preference for the location of wireless telecommunications facilities from most preferred to least preferred is:

In the GI (General Industrial ) zoning district;

In the LI (Light Industrial) zoning district;

In the RC (Regional Commercial) zoning district;

In the C/I-MU (Commercial/Industrial Mixed-Use) zoning district;

In the HC (Highway Commercial) zoning district;

In the HC (Highway Commercial) land use designation in the Colonies Specific Plan;

In the C/O-MU (Commercial/Office Mixed-Use) zoning district;

In the NC (Neighborhood Commercial) zoning district;

In the NC (Neighborhood Commercial) land use designation in the Colonies Specific Plan;

10.

In the Commercial land use designation in the Park View Specific Plan;

11.

In the C/R-MU (Commercial/Residential Mixed-Use) zoning district;

12.

In the B/R-MU (Business/Residential Mixed-Use) zoning district;

13.

In the OP (Office Professional) zoning district;

14.

In the public right-of-way with the closest adjacent district being GI (General Industrial ) zoning district;

15.

In the public right-of-way with the closest adjacent district being LI (Light Industrial) zoning district;

16.

In the public right-of-way with the closest adjacent district being RC (Regional Commercial) zoning district;

17.

In the public right-of-way with the closest adjacent district being C/I-MU (Commercial/Industrial Mixed-Use) zoning district;

18.

In the public right-of-way with the closest adjacent district being HC (Highway Commercial) zoning district;

19.

In the public right-of-way with the closest adjacent district being HC (Highway Commercial) land use designation in the Colonies Specific Plan;

20.

In the public right-of-way with the closest adjacent district being C/O-MU (Commercial/Office Mixed-Use) zoning district;

21.

In the public right-of-way with the closest adjacent district being NC (Neighborhood Commercial) zoning district;

22.

In the public right-of-way with the closest adjacent district being NC (Neighborhood Commercial) land use designation in the Colonies Specific Plan;

23.

In the public right-of-way with the closest adjacent district being the Commercial land use designation in the Park View Specific Plan;

24.

In the public right-of-way with the closest adjacent district being C/R-MU (Commercial/Residential Mixed-Use) zoning district;

25.

In the public right-of-way with the closest adjacent district being B/R-MU (Business/Residential Mixed-Use) zoning district;

26.

In the public right-of-way with the closest adjacent district being OP (Office Professional) zoning district;

27.

In the public right-of-way with the closest adjacent district being the RM (Residential Multi-Family) zoning district;

28.

Any public right-of-way location that abuts the property line of a structure recognized as a local, State or national historic landmark, historic district or on the register of historic places;

29.

Any parcel or right-of-way within 500 feet of a school site.

Accessory Equipment. In order of preference from most preferred to least preferred, accessory equipment for wireless telecommunication facilities and wireless telecommunications collocation facilities shall be located underground, within a building or structure, on a screened roof top area or structure, or in a rear yard if not readily visible from surrounding properties and the roadway, unless the reviewing authority finds that another location is preferable under the circumstances of the application.

(Ord. 1944 § 3, 2020)

§ 17.40.070 Design and Development Standards for All Facilities.

Basic Requirements. The design and development standards set forth in this section apply to all wireless telecommunications facilities no matter where they are located. Wireless telecommunications facilities shall be designed and maintained so as to minimize visual, noise, and other impacts on the surrounding community and shall be planned, designed, located, and erected in accordance with the design and development standards in this section.

No Speculative Facilities. A wireless telecommunications facility, wireless telecommunications collocation facility, or a telecommunications tower, which is built on speculation and for which there is no wireless tenant is prohibited within the City.

General Guidelines. The applicant shall employ screening and camouflage design techniques in the design and placement of wireless telecommunications facilities in order to ensure that the facility is as visually inconspicuous as possible, to prevent the facility from dominating the surrounding area and to hide the facility from predominant views from surrounding properties, all in a manner that achieves compatibility with the community.

Traffic Safety. All facilities shall be designed and located in such a manner as to avoid adverse impacts on traffic safety.

Antennas. The applicant shall use the least visible antennas possible to accomplish the coverage objectives. Antenna elements shall be flush mounted, to the extent reasonably feasible. All antenna mounts shall be designed so as not to preclude possible future collocation by the same or other operators or carriers. Antennas shall be situated as to reduce visual impact without compromising their function. Whip antennas need not be screened.

Landscaping. Where appropriate, facilities shall be installed so 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, irrigated, and maintained where such vegetation is deemed necessary by the City to provide screening or to block the line of sight between facilities and adjacent uses.

Signage. Wireless telecommunications facilities and wireless telecommunications collocation facilities shall not bear any signs or advertising devices other than certification, warning or other signage required by law or permitted by the City.

Lighting. No wireless telecommunications facility may be illuminated unless either specifically required by the Federal Aviation Administration or other government agency or in association with the illumination of an athletic field on City or school property. Lightning arresters and beacon lights are not permitted unless required by the Federal Aviation Administration or other government agency. Legally required lightning arresters and beacons shall be included when calculating the height of facilities such as telecommunications towers, lattice towers, and monopoles.

Noise.

Each wireless telecommunications facility and wireless telecommunications collocation facility shall be operated in such a manner so as to minimize any possible disruption caused by noise.

Backup generators shall only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of 5:00 p.m. and 7:00 a.m.

At no time shall equipment noise from any facility exceed an exterior noise level of 50 dBA at the facility's property line if the facility is located in a business or commercial zone that permits those uses, provided, however, that for any such facility located within 500 feet of any property zoned residential or improved with a residential use, such equipment noise shall at no time be audible at the property line of any such residential property. For any facility located within a residential zone, such equipment noise shall at no time be audible at the property line of any residentially improved or residential zoned property.

Any equipment, including, but not limited to, air conditioning units, that may emit noise that would be audible from beyond three feet from the facility in the case of a facility located in the right-of-way, or in the case of other facilities the facility's property line, shall be enclosed or equipped with noise attenuation devices to the extent necessary to ensure compliance with applicable noise limitations under the Upland Municipal Code.

Security. Each wireless telecommunications facility and wireless telecommunications collocation facility shall be designed to be resistant to, and minimize opportunities for, unauthorized access, climbing, vandalism, graffiti and other conditions that would result in hazardous situations, visual blight, or attractive nuisances. The reviewing authority may require the provision of warning signs, fencing, anti-climbing devices, or other techniques to prevent unauthorized access and vandalism when, because of their location or accessibility, a facility has the potential to become an attractive nuisance.

Modification. At the time of modification of a wireless telecommunications facility, existing equipment shall, to the extent feasible, be replaced with equipment that reduces visual, noise, and other impacts, including, but not limited to, undergrounding the equipment and replacing larger, more visually intrusive facilities with smaller, less visually intrusive facilities.

(Ord. 1944 § 3, 2020)

§ 17.40.080 Additional Design and Development Standards for Facilities Outside the Public Right-of-Way.

Basic Requirements. Facilities located outside the public right-of-way are subject to the design and development standards set forth in this section in addition to all design and development standards that apply to all facilities.

Location. A wireless communication facility shall not be located within 1,500 feet of another wireless communication facility.

No Parking Interference. In no event shall the installation of facilities replace or interfere with parking spaces in such a way as to reduce the total number of parking spaces below the number that is required.

Roof-Mounted Facilities. Roof-mounted facilities shall be designed and constructed to be fully concealed or screened in a manner compatible with the existing architecture of the building the facility is mounted to in color, texture, and type of material. Screening shall not increase the bulk of the structure nor alter the character of the structure.

Facilities-Mounted to a Telecommunications Tower. Facilities mounted to a telecommunications tower shall be located in close proximity to existing above-ground utilities, such as electrical towers or utility poles (which are not scheduled for removal or under grounding for at least 18 months after the date of application), light poles, trees of comparable heights, and in areas where they will not detract from the appearance of the City.

Facilities mounted to a telecommunications tower, including, but not limited to, the attached antennas, shall be designed to be the minimum functional height and width required to adequately support the proposed facility and meet FCC requirements. The applicant shall provide documentation satisfactory to the Director establishing compliance with this paragraph. In any event, facilities mounted to a telecommunications tower shall not exceed the applicable height limit for structures in the applicable zoning district.

Aside from the antenna itself, no additional equipment may be visible. All cables, including, but not limited to, electrical and utility cables, shall be run within the interior of the telecommunications tower and shall be camouflaged or hidden to the fullest extent feasible without jeopardizing the physical integrity of the tower.

Monopole installations shall be situated so as to utilize existing natural or man-made features including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening.

All antenna components and accessory wireless equipment shall be treated with exterior coatings of a color and texture to match the predominant visual background or existing architectural elements so as to visually blend in with the surrounding development. Subdued colors and non-reflective materials that blend with surrounding materials and colors shall be used.

Monopoles shall be no greater in diameter or other cross-sectional dimensions than is necessary for the proper functioning of the facility.

If a faux tree is proposed for the monopole installation, it shall be of a type of tree compatible with those existing in the immediate areas of the installation. If no trees exist within the immediate areas, the applicant shall create a landscape setting that integrates the faux tree with added species of a similar height and type. Additional camouflage of the faux tree may be required depending on the type and design of faux tree proposed.

Accessory Equipment. All accessory equipment associated with the operation of any wireless telecommunications facility shall be fully screened or camouflaged, and located in a manner to minimize their visibility to the greatest extent possible utilizing the following methods for the type of installation:

Accessory equipment for roof-mounted facilities shall be installed inside the building to which it is mounted or underground, if feasible. If not feasible, such accessory equipment may be located on the roof of the building that the facility is mounted on, provided that both the equipment and screening materials are painted the color of the building, roof, or surroundings. All screening materials for roof-mounted facilities shall be of a quality and design that is architecturally integrated with the design of the building or structure.

Accessory equipment for facilities mounted to a telecommunications tower shall be visually screened by locating the equipment either within a nearby building, in an underground vault (with the exception of required electrical panels) or in another type of enclosed structure, which shall comply with the development and design standards of the zoning district in which the accessory equipment is located. Such enclosed structure shall be architecturally treated and adequately screened from view by landscape plantings, decorative walls, fencing or other appropriate means, selected so that the resulting screening will be visually integrated with the architecture and landscaping of the surroundings.

Height. Telecommunication facilities shall not exceed the maximum building height for the applicable zoning district except if:

The height of the tower exceeds the height limitation of the district in which it is located it must be set back an additional 10 feet from the setback line for every 10 feet added to the height, provided a maximum of 20 feet in height is allowed.

Residential Buffer. Telecommunication facilities shall be set back a minimum of 200 feet from the property line of a residential zoned property.

(Ord. 1944 § 3, 2020)

§ 17.40.090 Additional Design and Development Standards for Facilities in the Public Right-of-Way.

Basic Requirements. Facilities located in the public right-of-way are subject to the design and development standards set forth in this section in addition to all design and development standards that apply to all facilities.

Right-of-Way Authority. An encroachment permit must be obtained for any work in the public right-of-way. Only applicants authorized to enter the public right-of-way pursuant to state or Federal law or a franchise or other agreement with the City shall be eligible for a permit to install or modify a wireless telecommunications facility in the public right-of-way.

Antennas.

Utility Poles. The maximum height of any antenna mounted to an existing utility pole shall not exceed 24 inches above the height of an existing utility pole, nor shall any portion of the antenna or equipment mounted on a pole be less than 18 feet above any drivable road surface. All installations on utility poles shall fully comply with the California Public Utilities Commission general orders, including, but not limited to, General Order 95, as revised.

Street Light Poles. The maximum height of any antenna mounted to a street light pole shall not exceed seven feet above the existing height of a street light pole in a location with its closest adjacent district being a commercial zoning district and shall not exceed three feet above the existing height of a street light pole in any other zoning district. Any portion of the antenna or equipment mounted on such a pole shall be no less than 18 feet above any drivable road surface.

Poles.

Only pole-mounted antennas shall be permitted in the right-of-way. All other telecommunications towers are prohibited, and no new poles are permitted that are not replacing an existing pole.

Pole Height and Width Limitations:

All poles shall be designed to be the minimum functional height and width required to support the proposed antenna installation and meet FCC requirements. Poles and antennas and similar structures shall be no greater in diameter or other cross-sectional dimensions than is necessary for the proper functioning of the facility.

Notwithstanding the above, no facility shall be located on a pole that is less than 26 feet in height and no facility shall exceed 35 feet in height, including, but not limited to, the pole and any antenna that protrudes above the pole.

Pole mounted equipment shall not exceed six cubic feet in dimension.

If an applicant proposes to replace a pole in order to accommodate the facility, the pole shall match the appearance of the original pole to the extent feasible, unless another design better accomplishes the objectives of this section. Such replacement pole shall not exceed the height of the pole it is replacing by more than seven feet.

If an exception is granted for placement of new poles in the right-of-way, new poles shall be designed to resemble existing poles in the right-of-way, including size, height, color, materials and style, with the exception of any existing pole designs that are scheduled to be removed and not replaced, unless another design better accomplishes the objectives of this section. Such new poles that are not replacement poles shall be located no closer than 90 feet to an existing pole.

Space Occupied. Facilities shall be designed to occupy the least amount of space in the right-of-way that is technically feasible.

Location.

Each component part of a facility shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, inconvenience to the public's use of the right-of-way, or safety hazards to pedestrians and motorists.

A facility shall not be located within any portion of the public right-of-way interfering with access to fire hydrants, fire stations, fire escapes, water valves, underground vaults, valve housing structures, or any other vital public health and safety facility.

Facilities mounted to a telecommunications tower, above-ground accessory equipment, or walls, fences, landscaping or other screening methods shall be set back a minimum of 18 inches from the front of a curb.

Each pole mounted wireless telecommunications facility must be separated by at least 1,500 feet.

All cables, including, but not limited to, electrical and utility cables, between the pole and any accessory equipment shall be placed underground, if feasible.

All new wires needed to service the wireless telecommunications facility must be installed within the width of the existing utility pole so as to not exceed the diameter and height of the existing utility pole.

Americans with Disabilities Act Compliance. All facilities shall be built in compliance with the Americans with Disabilities Act (ADA).

Accessory Equipment. With the exception of the electric meter, which shall be pole-mounted to the extent feasible, all accessory equipment shall be located underground to the extent feasible. When above-ground is the only feasible location for a particular type of accessory equipment and when such accessory equipment cannot be pole-mounted, such accessory equipment shall be enclosed within a structure, and shall not exceed a height of five feet and a total footprint of 15 square feet, and shall be screened and camouflaged to the fullest extent possible, including the use of landscaping or alternate screening. Required electrical meter cabinets shall be adequately screened and camouflaged.

Documentation. The applicant shall provide documentation satisfactory to the Director establishing compliance with this section.

(Ord. 1944 § 3, 2020)

§ 17.40.100 Conditions of Approval for All Facilities.

In addition to compliance with the requirements of this chapter, upon approval all facilities shall be subject to each of the following conditions of approval, as well as any modification of these conditions or additional conditions of approval deemed necessary by the reviewing authority:

Before the permittee submits any application for a building permit or other permits required by the Upland Municipal Code, the permittee must incorporate the wireless telecommunication facility permit granted under this chapter, all conditions associated with the wireless telecommunications facility permit and the approved plans and any photo simulations (the "approved plans") into the project plans. The permittee must construct, install and operate the wireless telecommunications facility in strict compliance with the approved plans. The permittee shall submit an as built drawing within 90 days after installation of the facility.

Where feasible, as new technology becomes available, the permittee shall:

Place above-ground wireless telecommunications facilities below ground, including, but not limited to, accessory equipment that has been mounted to a telecommunications tower or mounted on the ground; and

Replace larger, more visually intrusive facilities with smaller, less visually intrusive facilities, after receiving all necessary permits and approvals required pursuant to the Upland Municipal Code.

The permittee shall submit and maintain current at all times basic contact and site information on a form to be supplied by the City. The permittee shall notify the City of any changes to the information submitted within seven days of any change, including change of the name or legal status of the owner or operator. This information shall include, but is not limited to, the following:

Identity, including the name, address and 24-hour local or toll free contact phone number of the permittee, the owner, the operator, and the agent or person responsible for the maintenance of the facility.

The legal status of the owner of the wireless telecommunications facility, including official identification numbers and FCC certification.

Name, address, and telephone number of the property owner if different than the permittee.

The permittee shall not place any facilities that will deny access to, or otherwise interfere with, any public utility, easement, or right-of-way located on the site. The permittee shall allow the City reasonable access to, and maintenance of, all utilities and existing public improvements within or adjacent to the site, including, but not limited to, pavement, trees, public utilities, lighting and public signage.

At all times, all required notices and signs shall be posted on the site as required by the FCC and California Public Utilities Commission, and as approved by the City. The location and dimensions of a sign bearing the emergency contact name and telephone number shall be posted pursuant to the approved plans.

At all times, the permittee shall ensure that the facility complies with the most current regulatory and operational standards including, but not limited to, radio frequency emissions standards adopted by the FCC and antenna height standards adopted by the Federal Aviation Administration. The City shall retain a consultant, at the sole expense of the permittee, to perform testing demonstrating compliance with current regulatory and operational standards. Tests shall occur upon commencement of operations and annually thereafter.

If the Director determines there is good cause to believe that the facility may emit radio frequency emissions that are likely to exceed FCC standards, the Director may require the permittee to submit a technically sufficient written report certified by a qualified radio frequency emissions engineer, certifying that the facility is in compliance with such FCC standards.

Permittee shall pay for and provide a performance bond, which shall be in effect until the facilities are fully and completely removed and the site reasonably returned to its original condition, to cover permittee's obligations under these conditions of approval and the Upland Municipal Code. The bond coverage shall include, but not be limited to, removal of the facility, maintenance obligations and landscaping obligations. The amount of the performance bond shall be set by the Director in an amount rationally related to the obligations covered by the bond and shall be specified in the conditions of approval.

Permittee shall defend, indemnify, protect and hold harmless the City, its elected and appointed Council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers from and against any and all claims, actions, or proceeding against the City and its elected and appointed Council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers to attack, set aside, void or annul, an approval of the City, Planning Commission or City Council concerning this permit and the project. Such indemnification shall include damages, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, attorneys' fees and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding. The City shall promptly notify the permittee of any claim, action, or proceeding. Nothing contained herein shall prohibit City from participating in a defense of any claim, action or proceeding. The City shall have the option of coordinating the defense, including, but not limited to, choosing counsel for the defense at permittee's expense.

All conditions of approval shall be binding as to the applicant and all successors in interest to permittee.

A condition setting forth the permit expiration date in accordance with Section 17.40.200 shall be included in the conditions of approval.

(Ord. 1944 § 3, 2020)

§ 17.40.110 Additional Conditions of Approval for Facilities in the Public Right-of-Way.

In addition to compliance with the requirements of this chapter, upon approval all facilities in the public right-of-way shall be subject to each of the conditions of approval set forth in Section 17.40.100, each of the following conditions of approval, and any modification of these conditions or additional conditions of approval deemed necessary by the reviewing authority:

The wireless telecommunications facility shall be subject to such conditions, changes or limitations as are from time to time deemed necessary by the City engineer for the purpose of: (1) protecting the public health, safety, and welfare; (2) preventing interference with pedestrian and vehicular traffic; and (3) preventing damage to the public right-of-way or any property adjacent to it. The City may modify the permit to reflect such conditions, changes or limitations by following the same notice and public hearing procedures as are applicable to the grant of a wireless telecommunications facility permit for similarly located facilities, except the permittee shall be given notice by personal service or by registered or certified mail at the last address provided to the City by the permittee.

The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement or property without the prior consent of the owner of that structure, improvement or property. No structure, improvement or property owned by the City shall be moved to accommodate a wireless telecommunications facility unless the City determines that such movement will not adversely affect the City or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the City's structure, improvement or property. Prior to commencement of any work pursuant to an encroachment permit issued for any facility within the public right-of-way, the permittee shall provide the City with documentation establishing to the City's satisfaction that the permittee has the legal right to use or interfere with any other structure, improvement or property within the public right-of-way to be affected by applicant's facilities.

The permittee shall assume full liability for damage or injury caused to any property or person by the facility.

The permittee shall repair, at its sole cost and expense, any damage including, but not limited to, subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to City streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility line and systems, or sewer systems and sewer lines that result from any activities performed in connection with the installation or maintenance of a wireless telecommunications facility in the public right-of-way. The permittee shall restore such areas, structures and systems to the condition in which they existed prior to the installation or maintenance that necessitated the repairs. In the event the permittee fails to complete such repair within the number of days stated on a written notice by the Director, the Director shall cause such repair to be completed at permittee's sole cost and expense.

Prior to issuance of a building permit, the applicant shall obtain the Director's approval of a tree protection plan prepared by a certified arborist if the installation of the wireless telecommunication facility will be located within the canopy of a street tree, or a protected tree on private property, or within a 10-foot radius of the base of such a tree. Depending on site specific criteria (e.g., location of tree, size, and type of tree, etc.), a radius greater than 10 feet may be required by the Director.

Should any utility company offer electrical service that does not require the use of a meter cabinet, the permittee shall at its sole cost and expense remove the meter cabinet and any related foundation within 30 days of such service being offered and reasonably restore the area to its prior condition.

The permittee shall modify, remove, or relocate its facility, or portion thereof, without cost or expense to the City, if and when made necessary by:

Any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or aboveground facilities including, but not limited to, sewers, storm drains, conduits, gas, water, electric or other utility systems, or pipes owned by the City or any other public agency;

Any abandonment of any street, sidewalk, or other public facility;

Any change of grade, alignment or width of any street, sidewalk or other public facility; or

A determination by the Director that the wireless telecommunications facility has become incompatible with public health, safety or welfare or the public's use of the public right-of-way.

Any modification, removal, or relocation of the facility shall be completed within 90 days of written notification by the City unless exigencies dictate a shorter period for removal or relocation. Modification or relocation of the facility shall require submittal, review and approval of a permit amendment pursuant to the Upland Municipal Code. The permittee shall be entitled, on permittee's election, to either a pro-rata refund of fees paid for the original permit or to a new permit, without additional fee, at a location as close to the original location as the standards set forth in the Upland Municipal Code allow. In the event the facility is not modified, removed, or relocated within said period of time, the City may cause the same to be done at the sole cost and expense of permittee. Further, due to exigent circumstances as provided in the Upland Municipal Code, the City may modify, remove, or relocate wireless telecommunications facilities without prior notice to permittee provided permittee is notified within a reasonable period thereafter.

The applicant shall obtain all required traffic control permits prior to the installation or repair of a wireless communication facility.

(Ord. 1944 § 3, 2020)

§ 17.40.120 Findings.

Where a wireless telecommunication facility requires a conditional use permit under this chapter, the reviewing authority shall not approve any application unless, in addition to the findings generally applicable to all conditional use permits, all of the following additional findings are made:

The proposed facility complies with all applicable provisions of this chapter.

The proposed facility has been designed and located to achieve compatibility with the community to the maximum extent reasonably feasible.

The applicant has submitted a statement of its willingness to allow other carriers to collocate on the proposed wireless telecommunications facility wherever technically and economically feasible and where collocation would not harm community compatibility.

Noise generated by equipment will not be excessive, annoying nor be detrimental to the public health, safety, and welfare and will not exceed the standards set forth in this chapter.

In addition to the findings in subsection A of this section, approval of a wireless telecommunications facility permit for a facility that will be located in the public right-of-way may be granted only if the following findings are made by the reviewing authority:

The applicant has provided substantial written evidence supporting the applicant's claim that it has the right to enter the public right-of-way pursuant to State or Federal law, or the applicant has entered into a franchise or other agreement with the City permitting them to use the public right-of-way.

The applicant has demonstrated that the facility will not interfere with the use of the public right-of-way, existing subterranean infrastructure, or the City's plans for modification or use of such location and infrastructure.

(Ord. 1944 § 3, 2020)

§ 17.40.130 Exceptions.

Exceptions pertaining to any provision of this chapter, including, but not limited to, exceptions from findings that would otherwise justify denial, may be granted by the reviewing authority if the reviewing authority makes the finding that:

Denial of the facility as proposed would violate Federal law, State law, or both; or

A provision of this chapter, as applied to applicant, would deprive applicant of its rights under Federal law, State law, or both.

An applicant may only request an exception at the time of applying for a wireless telecommunications facility permit. The request must include both the specific provision(s) of this chapter from which the exception is sought and the basis of the request. Any request for an exception after the City has deemed an application complete shall be treated as a new application.

Notwithstanding any other provision of this chapter, a conditional use permit shall be required for a facility when an exception is requested.

The applicant shall have the burden of proving that denial of the facility as proposed would violate Federal law, State law, or both, or that the provisions of this chapter, as applied to applicant, would deprive applicant of its rights under Federal law, State law, or both, using the evidentiary standards required by that law at issue. The City shall have the right to hire an independent consultant, at the applicant's expense, to evaluate the issues raised by the exception request and shall have the right to submit rebuttal evidence to refute the applicant's claim.

(Ord. 1944 § 3, 2020)

§ 17.40.140 Eligible Facility Requests Covered under Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012.

Purpose. Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, codified in 47 U.S.C. Section 1455(a), generally requires that State and local governments "may not deny, and shall approve" requests to collocate, remove or replace transmission equipment at an existing tower or base station. Federal Communication Commission regulations interpret this statute and create procedural rules for local review, which generally preempt certain subjective land use regulations, limit permit application content requirements and provide the applicant with a potential "deemed granted" remedy when the State or local government fails to approve or deny the request within 60 days after submittal (accounting for any tolling periods). Moreover, whereas Section 704 of the Telecommunications Act of 1996, Pub. L. 104-104, codified in 47 U.S.C. Section 332, applies to only "personal wireless service facilities" (e.g., cellular telephone towers and equipment), Section 6409(a) applies to all "wireless" facilities licensed or authorized by the FCC (e.g., cellular, Wi-Fi, satellite, microwave backhaul, etc.).

The overlap between wireless deployments covered under Section 6409(a) and other wireless deployments, combined with the different substantive and procedural rules applicable to such deployments, creates a potential for confusion that harms the public interest in both efficient wireless facilities deployment and carefully planned community development in accordance with local values. A separate permit application and review process specifically designed for compliance with Section 6409(a) contained in a section devoted to Section 6409(a) will mitigate such potential confusion, streamline local review and preserve the City's land use authority to the maximum extent possible.

Applicability. This section applies to all collocations or modifications to an existing wireless tower or base station submitted with a written request for approval pursuant to Section 6409(a).

Approval Required. Any request to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted with a written request for a Section 6409(a) approval shall be subject to the Director's approval, conditional approval or denial without prejudice pursuant to the standards and procedures contained in this chapter.

Other Regulatory Approvals. No collocation or modification approved under any Section 6409(a) approval may occur unless the applicant also obtains all other applicable permits or regulatory approvals from the City and State or Federal agencies. Furthermore, any Section 6409(a) approval granted under this chapter shall remain subject to any and all lawful conditions or requirements associated with such other permits or regulatory approvals from the City and State or Federal agencies.

Application Requirement. The City shall not approve any wireless facility subject to this chapter except upon a duly filed application consistent with this section and any other written rules the City or the Director may establish from time to time. An application must include the information required by Section 17.40.050 and the following additional information:

A title report prepared within the six months prior to the application filing date in order for the City verify the property owner's identity. If the applicant does not own the subject property, the application must include a written authorization signed by the property owner that empowers the applicant to file the application and perform all wireless facility construction, installation, operation and maintenance to the extent described in the application.

A written statement that explains in plain factual detail whether and why Section 6409(a) and the related FCC regulations at 47 C.F.R. Section 1.40001 et seq., require approval for the specific project. A complete written narrative analysis will state the applicable standard and all the facts that allow the City to conclude the standard has been met. Bare conclusions not factually supported do not constitute a complete written analysis. As part of this written statement the applicant must also include: (a) whether and why the support structure qualifies as an existing tower or existing base station; and (b) whether and why the proposed collocation or modification does not cause a substantial change in height, width, excavation, equipment cabinets, concealment or permit compliance.

Procedures for a Duly Filed Application. The City shall not review any application unless duly filed in accordance with this section, as follows:

Pre-Submittal Conference. Before application submittal, applicants must schedule and attend a pre-application meeting with the Director for all proposed modifications submitted for approval pursuant to Section 6409(a). The pre-submittal conference is intended to streamline the review process through informal discussion that includes, without limitation, the appropriate project classification, including whether the project qualifies for Section 6409(a); any latent issues in connection with the existing tower or base station; potential concealment issues (if applicable); coordination with other City departments responsible for application review; and application completeness issues. To mitigate unnecessary delays due to application incompleteness, applicants are encouraged (but not required) to bring any draft applications or other materials so that City staff may provide informal feedback about whether such applications or other materials may be incomplete or unacceptable. The Director may, in the Director's discretion, grant a written exemption to the submittal appointment under Section 17.40.140(F)(2) or for a specific requirement for a complete application to any applicant who: (a) schedules, attends and fully participates in any pre-submittal conference; and (b) shows to the Director's satisfaction that such specific requirement duplicates information already provided in other materials to be submitted or is otherwise unnecessary to the City's review under facts and circumstances in that particular case. Any written exemption will be limited to the project discussed at the pre-submittal conference and will not be extended to any other project.

Submittal Appointment. All applications must be filed with the City at a pre-scheduled appointment. Applicants may generally submit one application per appointment, but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. Any application received without an appointment, whether delivered in-person or through any other means, will not be considered duly filed unless the applicant received a written exemption from the Director at a pre-submittal conference.

Appointment Scheduling Procedures. For any event in the submittal process that requires an appointment, applicants must submit a written request to the Director. The Director shall endeavor to provide applicants with an appointment as soon as reasonably feasible and within five business days after a written request is received.

Applications Deemed Withdrawn. To promote efficient review and timely decisions, an application will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the City within 90 calendar days after the City deems the application incomplete in a written notice to the applicant. The Director may, in the Director's discretion, grant a written extension for up to an additional 30 calendar days when the applicant submits a written request prior to the 90th day that shows good cause to grant the extension. Delays due to circumstances outside the applicant's reasonable control will be considered good cause to grant the extension.

Departmental Forms, Rules and Other Regulations. The City Council authorizes the Director to develop and publish permit application forms, checklists, informational handouts and other related materials that the Director finds necessary, appropriate or useful for processing requests for Section 6409(a) approvals. Without further authorization from the City Council, the Director may, from time to time, update and alter any such permit application forms, checklists, informational handouts and other related materials as the Director deems necessary, appropriate or useful to respond to regulatory, technological or other changes related to this chapter. The City Council authorizes the Director to establish other reasonable rules and regulations, which may include, without limitation, regular hours for appointments with applicants, as the Director deems necessary or appropriate to organize, document and manage the application intake process.

Administrative Review—Decision Notices. The Director shall administratively review an application for a Section 6409(a) approval and act on such an application without prior notice or a public hearing. Within five working days after the Director conditionally approves or denies an application submitted for Section 6409(a) approval or before the FCC timeframe for review expires (whichever occurs first), the Director shall send a written notice to the applicant. In the event that the Director determines that an application submitted for approval pursuant to Section 6409(a) does not qualify for approval, the Director will send written notice to the applicant that includes the reasons to support the review authority's decision and states that the application will be automatically denied without prejudice on the 60th day after the date the application was filed unless the applicant withdraws the application.

Required Findings for 6409(a) Approval. The Director may approve or conditionally approve an application submitted for Section 6409(a) approval when the Director finds that the proposed project:

Involves collocation, removal or replacement of transmission equipment on an existing wireless tower or base station; and

Does not substantially change the physical dimensions of the existing wireless tower or base station.

Criteria for Denial Without Prejudice. Notwithstanding any other provisions in this chapter, and consistent with all applicable Federal laws and regulations, the Director may deny without prejudice an application submitted for approval pursuant to Section 6409(a) when it finds that the proposed project:

Does not satisfy the criteria for approval;

Violates any legally enforceable standard or permit condition reasonably related to public health and safety then in effect; or

Involves the replacement of the entire support structure.

Conditional 6409(a) Approvals. Subject to any applicable limitations in Federal or State law, nothing in this chapter is intended to limit the City's authority to conditionally approve an application for a Section 6409(a) approval to protect and promote the public health, safety and welfare.

Appeals. Notwithstanding any provision of the Upland Municipal Code to the contrary an applicant may appeal a decision by the Director to deny without prejudice a Section 6409(a) application. The appeal must be filed within 10 days from the Director's decision. The appeal must state in plain terms the grounds for reversal and the facts that support those grounds. The City Manager shall serve as the appellate authority for all appeals of all actions of the Director taken pursuant to this section. The City shall provide notice for an administrative hearing by the City Manager. The City Manager shall limit its review to whether the project should be approved or denied in accordance with the provisions in subsections H and I of this section. The decision of the City Manager shall be final and not subject to any further administrative appeals.

Standard Conditions of Approval. In addition to all other conditions adopted by the Director, all Section 6409(a) approvals, whether approved by the Director or deemed approved by the operation of law, shall be automatically subject to the following conditions in this section; provided, however, that the Director shall have discretion to modify or amend these conditions on a case-by-case basis as may be necessary or appropriate under the circumstances:

Approved Plans. Before the permittee submits any application for a building permit or other permits required by the Upland Municipal Code, the permittee must incorporate the wireless telecommunications facility permit granted under this section, all conditions associated with the wireless telecommunications facility permit and the approved plans and any photo simulations (the "approved plans") into the project plans. The permittee must construct, install and operate the wireless telecommunications facility in strict compliance with the approved plans. The permittee shall submit an as built drawing within 90 days after installation of the facility.

Permit Term. The City's grant or grant by operation of law of a Section 6409(a) approval constitutes a Federally-mandated modification to the underlying permit or other prior regulatory authorization for the subject tower or base station. The City's grant or grant by operation of law of a Section 6409(a) approval will not extend the permit term, if any, for any conditional use permit, or other underlying prior regulatory authorization. Accordingly, the term for a Section 6409(a) approval shall be coterminous with the underlying permit or other prior regulatory authorization for the subject tower or base station.

Accelerated Permit Terms Due to Invalidation. In the event that any court of competent jurisdiction invalidates any portion of Section 6409(a) or any FCC rule that interprets Section 6409(a) such that Federal law would not mandate approval for any Section 6409(a) approval, such 6409(a) approvals shall automatically expire one year from the effective date of the judicial order, unless the decision would not authorize accelerated termination of previously approved Section 6409(a) approvals or the Director grants an extension upon written request from the permittee that shows good cause for the extension, which includes, without limitation, extreme financial hardship. Notwithstanding anything in the previous sentence to the contrary, the Director may not grant a permanent exemption or indefinite extension. A permittee shall not be required to remove its improvements approved under the invalidated Section 6409(a) approval when it has submitted an application for a conditional use permit for those improvements before the one-year period ends.

No Waiver of Standing. The City's grant or grant by operation of law of a Section 6409(a) approval does not waive, and shall not be construed to waive, any standing by the City to challenge Section 6409(a), any FCC rules that interpret Section 6409(a) or any Section 6409(a) approval.

Build-Out Period. The Section 6409(a) approval will automatically expire one year from the issuance date unless the permittee obtains all other permits and approvals required to install, construct and operate the approved wireless facility, which includes without limitation any permits or approvals required by the any Federal, State or local public agencies with jurisdiction over the subject property, the wireless facility or its use. The Director may grant one written extension to a date certain when the permittee shows good cause to extend the limitations period in a written request for an extension submitted at least 30 days prior to the automatic expiration date in this condition. Any further extensions may be granted by the Planning Commission.

Maintenance Obligations—Vandalism. The permittee shall keep the site, which includes, without limitation, any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean and safe condition in accordance with the approved plans and all conditions in this Section 6409(a) approval. The permittee shall keep the site area free from all litter and debris at all times. The permittee, at no cost to the City, shall remove and remediate any graffiti or other vandalism at the site within 48 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.

Compliance with Laws. The permittee shall maintain compliance at all times with all Federal, state and local statutes, regulations, orders or other rules that carry the force of law ("laws") applicable to the permittee, the subject property, the wireless facility or any use or activities in connection with the use authorized in this Section 6409(a) approval. The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve or otherwise lessen the permittee's obligations to maintain compliance with all laws.

Adverse Impacts on Other Properties. The permittee shall use all reasonable efforts to avoid any and all undue or unnecessary adverse impacts on nearby properties that may arise from the permittee's construction, installation, operation, modification, maintenance, repair, removal or other activities at the site. The permittee shall not perform or cause others to perform any construction, installation, operation, modification, maintenance, repair, removal or other work that involves heavy equipment or machines on any day and at any time prohibited under the Upland Municipal Code. The restricted work hours in this condition will not prohibit any work required to prevent an actual, immediate harm to property or persons, or any work during an emergency declared by the City. The Director may issue a stop work order for any work that violates this condition.

Noise Complaints. The permittee shall conduct all activities on the site in compliance with the noise standards in the Upland Municipal Code. In the event that any person files a noise complaint and the City verifies that such complaint is valid, the permittee must remedy the violation within 10 days after notice from the City, which may include a demonstration that the permittee has amended its operational guidelines in situations where the violation arises from the permittee's personnel rather than the permittee's equipment.

10.

Inspections—Emergencies. The permittee expressly acknowledges and agrees that the City or its designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee; provided, however, that the City or its designee may, but will not be obligated to, enter onto the site area without prior notice to support, repair, disable or remove any improvements or equipment in emergencies or when such improvements or equipment threatens actual, imminent harm to property or persons. The permittee will be permitted to supervise the City or its designee while such inspection or emergency access occurs.

11.

Contact Information. The permittee shall furnish the City with accurate and up-to-date contact information for a person responsible for the wireless facility, which includes, without limitation, such person's full name, title, direct telephone number, facsimile number, mailing address and email address. The permittee shall keep such contact information up-to-date at all times.

12.

Indemnification. The permittee and, if applicable, the property owner upon which the wireless facility is installed shall defend, indemnify and hold harmless the City, its agents, officers, officials, employees and volunteers from any and all: (a) damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, law suits, writs and other actions or proceedings ("claims") brought against the City or its agents, officers, officials, employees or volunteers to challenge, attack, seek to modify, set aside, void or annul the City's approval of this Section 6409(a) approval; and (b) other claims any kind or form, whether for personal injury, death or property damage, that arise from or in connection with the permittee's or its agents', directors', officers', employees', contractors', subcontractors', licensees', or customers' acts or omissions in connection with this Section 6409(a) approval or the wireless facility. In the event the City becomes aware any claims, the City will use best efforts to promptly notify the permittee and the private property owner and shall reasonably cooperate in the defense. The permittee expressly acknowledges and agrees that the City shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the City's defense, and the property owner or permittee (as applicable) shall promptly reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. The permittee expressly acknowledges and agrees that the permittee's indemnification obligations under this condition are a material consideration that motivates the City to approve this Section 6409(a) approval, and that such indemnification obligations will survive the expiration or revocation of this Section 6409(a) approval.

13.

Performance Bond. Before the City issues any construction permit in connection with the wireless facility, the permittee shall post a performance bond from a surety and in a form acceptable to the City Manager in an amount equal to or greater than a written estimate from a qualified contractor with experience in wireless facilities removal. The written estimate must include the cost to remove all equipment and other improvements, which includes, without limitation, all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility. In establishing or adjusting the bond amount required under this condition, and in accordance with California Government Code Section 65964(a), the City Manager shall take into consideration information provided by the permittee regarding the cost to remove the wireless facility.

14.

Record Retention. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the wireless facility, which includes, without limitation, this approval, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval and any ministerial permits or approvals issued in connection with this approval. In the event that the permittee does not maintain such records as required in this condition, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee.

15.

Compliance Obligations. An applicant or permittee will not be relieved of its obligation to comply with every applicable provision in the Upland Municipal Code, any permit, any permit condition or any applicable law or regulation by reason of any failure by the City to timely notice, prompt or enforce compliance by the applicant or permittee.

(Ord. 1944 § 3, 2020)

§ 17.40.150 Collocation Facilities Covered Under California Government Code Section 65850.6.

Purpose. The purpose of this section is to comply with an application for a wireless telecommunications collocation facility under California Government Code Section 65850.6, for which a Section 6409(a) approval is not being requested. This section provides the requirements, standards and regulations for a wireless telecommunications collocation facility for which subsequent collocation is a permitted use pursuant to California law. Only those facilities that fully comply with the eligibility requirements set forth in California Government Code Section 65850.6, or its successor provision, and which strictly adhere to the requirements and regulations set forth in this section shall qualify as a wireless telecommunications collocation facility.

Definitions. For the purposes of this section, the following terms are defined as follows:

"Collocation facility"

means the placement or installation of wireless facilities, including antennas, and related equipment, on, or immediately adjacent to, a wireless telecommunications collocation facility.

"Wireless telecommunications facility"

means equipment and network components such as towers, utility poles, transmitters, base stations, and emergency power systems that are integral to providing wireless telecommunications services.

"Wireless telecommunications collocation facility"

means a wireless telecommunications facility that includes collocation facilities.

Procedures. An application for a wireless telecommunications collocation facility under California Government Code Section 65850.6 shall be processed in the same manner as an application for Section 6409(a) approval is processed, except that where the process requires justification for the Section 6409(a) approval, the applicant shall instead provide the justification for a wireless telecommunications collocation facility under California Government Code Section 65850.6.

Requirements. All requirements, regulations, and standards set forth in this chapter for a wireless telecommunications facility shall apply to a wireless telecommunications collocation facility; provided, however, the following shall also apply to a wireless telecommunications collocation facility:

The applicant for a wireless telecommunications collocation facility permit shall describe or depict:

The wireless telecommunications collocation facility as it will be initially built; and

All collocations at full build-out, including, but not limited to, all antennas, antenna support structures, and accessory equipment.

Any collocation shall use screening methods substantially similar to those used on the existing wireless telecommunications facilities unless other optional screening methods are specified in the conditions of approval.

A wireless telecommunications collocation facility permit shall not be approved unless an environmental impact report, negative declaration, or mitigated negative declaration was prepared and approved for the wireless telecommunications collocation facility.

Permitted Use. Notwithstanding any other provision of this chapter, a subsequent collocation on a wireless telecommunications collocation facility shall be a permitted use only if all of the following requirements are satisfied:

The wireless telecommunications collocation facility:

Was approved after January 1, 2007, by discretionary permit;

Was approved subject to an environmental impact report, negative declaration, or mitigated negative declaration; and

Otherwise complies with the requirements of California Government Code Section 65850.6(b), or its successor provision, for addition of a collocation facility to a wireless telecommunications collocation facility, including, but not limited to, compliance with all performance and maintenance requirements, regulations and standards in this chapter and the conditions of approval in the wireless telecommunications collocation facility permit.

The collocations were specifically considered when the relevant environmental document was prepared for the wireless telecommunications collocation facility.

Before collocation, the applicant seeking collocation shall obtain all other applicable non-discretionary permits, as required pursuant to the Upland Municipal Code.

New or Amended Permit. Except as otherwise provided above, approval of a new or amended permit shall be required when the facility is modified other than by collocation in accordance with this section, or the proposed collocation:

Increases the height of the existing permitted telecommunications tower or otherwise changes the bulk, size, location, or any other physical attributes of the existing permitted wireless telecommunications collocation facility unless specifically permitted under the conditions of approval applicable to such wireless telecommunications collocation facility; or

Adds any microwave dish or other antenna not expressly permitted to be included in a collocation facility by the conditions of approval.

Appeals. Notwithstanding any provision of the Upland Municipal Code to the contrary, including, but not limited to, Section 17.47.040, any applicant may appeal a decision by the Director. The appeal must be filed within 10 days from the Director's decision. The appeal must state in plain terms the grounds for reversal and the facts that support those grounds. The City Manager shall serve as the appellate authority for all appeals of all actions of the Director taken pursuant to this section. The City shall provide notice for an administrative hearing by the City Manager. The City Manager shall limit its review to whether the project should be approved or denied in accordance with the provisions in this section. The decision of the City Manager shall be final and not subject to any further administrative appeals.

(Ord. 1944 § 3, 2020; Ord. 1949 § 2, 2021)

§ 17.40.160 Small Wireless Facilities.

Purpose. This section has been established to implement the requirements of the restrictions imposed on the City's ability to regulate small wireless facilities by the Declaratory Ruling and Third Report and Order, FCC 18-133 by the Federal Communications Commission ("FCC") and regulations subsequently adopted pursuant thereto (collectively for purposes of this section referred to as the "Small Cell Order"), which significantly curtailed local authority over wireless and wireline communication facilities reserved to State and local governments under Sections 253 and 704 in the Federal Telecommunications Act. This section therefore establishes reasonable, uniform and comprehensive standards and procedures for small wireless facility 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 overlap between wireless deployments covered by the Small Cell Order and other wireless deployments, combined with the different substantive and procedural rules applicable to such deployments, creates a potential for confusion that harms the public interest in both efficient wireless facilities deployment and carefully planned community development in accordance with local values. A separate permit application and review process specifically designed for compliance with the Small Cell Order contained in a section devoted to small wireless facilities will mitigate such potential confusion, streamline local review and preserve the City's land use authority to the maximum extent possible.

Applicability. This section applies to all small wireless facilities, whether or not located in the public right-of-way. Small wireless facilities are subject to all requirements of this chapter to the extent not in conflict with the requirements of this section. In the event of any conflict between the provisions of this section and another provisions of this chapter, the provisions of this section shall apply. No person shall construct, install, attach, operate, collocate, modify, reconstruct, relocate, remove, or otherwise deploy any small wireless facility in violation of this section.

Decision Making Authority. The Director shall be the decision making authority for all small wireless facilities.

Other Regulatory Approvals. No approval under this section shall be effective unless and until the applicant also obtains all other applicable permits or regulatory approvals from the City and State or Federal agencies. Furthermore, any small wireless facility approval granted under this chapter shall remain subject to any and all lawful conditions or requirements associated with such other permits or regulatory approvals from the City and State or Federal agencies.

Application Requirement. The City shall not approve any small wireless facility subject to this chapter except upon a duly filed application consistent with this section and any other written rules the City or the Director may establish and publish from time to time. An application must include the information required by Section 17.40.050 and the following additional information:

A written statement that explains in plain factual detail whether and why the proposed wireless facility qualifies as a small wireless facility. A complete written narrative analysis will state the applicable standard and all the facts that allow the City to conclude the standard has been met. Bare conclusions not factually supported do not constitute a complete written analysis. As part of this written statement the applicant must also include: (a) whether and why the support structure qualifies as an existing tower or existing base station; and (b) whether and why the proposed collocation or modification does not cause a substantial change in height, width, excavation, equipment cabinets, concealment or permit compliance.

Procedures for a Duly Filed Application. The City shall not review any application unless duly filed in accordance with all mandatory requirements of the following procedures:

Pre-Submittal Conference. The City encourages, but does not require, potential applicants to schedule and attend a pre-submittal conference with the approval authority for all proposed projects that involve small wireless facilities. A voluntary pre-submittal conference is intended to streamline the review process through informal discussion between the potential applicant and staff that includes, without limitation, the appropriate project classification and review process; any latent issues in connection with the proposed project, including compliance with generally applicable rules for public health and safety; potential concealment issues or concerns (if applicable); coordination with other City departments responsible for application review; and application completeness issues.

Submittal Appointment. All applications must be submitted to the City at a pre-scheduled appointment with the approval authority. Potential applicants may generally submit either one application or one batched application per appointment as provided below. Potential applicants may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants for any other development project. The approval authority shall use reasonable efforts to offer an appointment within five working days after the approval authority receives a written request from a potential applicant. Any purported application received without an appointment, whether delivered in-person, by mail or through any other means, will not be considered duly filed, whether the City retains, returns or destroys the materials received.

Batched Applications. Applicants may submit applications individually or in a batch; provided, that the number of small wireless facilities in a batch should be limited to five and all facilities in the batch should be substantially the same with respect to equipment, configuration, and support structure. Applications submitted as a batch shall be reviewed together, provided that each application in the batch must meet all the requirements for a complete application, which includes, without limitation, the application fee for each application in the batch. If any individual application within a batch is deemed incomplete, the entire batch shall be automatically deemed incomplete. If any application is withdrawn or deemed withdrawn from a batch, all other applications in the same batch shall be automatically deemed withdrawn. If any application in a batch fails to meet the required findings for approval, the entire batch shall be denied.

Departmental Forms, Rules and Other Regulations. The City Council authorizes the Director to develop and publish permit application forms, checklists, informational handouts and other related materials that the Director finds necessary, appropriate or useful for processing requests for small wireless facility approvals. Without further authorization from the City Council, the Director may, from time to time, update and alter any such permit application forms, checklists, informational handouts and other related materials as the Director deems necessary, appropriate or useful to respond to regulatory, technological or other changes related to this chapter. The City Council authorizes the Director to establish other reasonable rules and regulations, which may include, without limitation, regular hours for appointments with applicants, as the Director deems necessary or appropriate to organize, document and manage the application intake process.

Administrative Review—Decision Notices. The Director shall administratively review an application for a small wireless facility approval and act on such an application without prior notice or a public hearing. Within five working days after the Director conditionally approves or denies an application submitted for small wireless facility approval or before the FCC timeframe for review expires (whichever occurs first), the Director shall send a written notice to the applicant. In the event that the Director determines that an application submitted for approval does not qualify for approval, the Director will send written notice to the applicant that includes the reasons to support the review authority's decision and states that the application will be automatically denied without prejudice on the 60th day after the date the application was filed unless the applicant withdraws the application.

Required Findings for Small Wireless Facility Approval. The Director may approve or conditionally approve an application submitted for approval when the Director finds that the proposed project:

The proposed project meets the definition for a "small wireless facility" as defined by the FCC;

The proposed facility would be in the most preferred location within 500 feet from the proposed site in any direction or the applicant has demonstrated with clear and convincing evidence in the written record that any more-preferred location(s) within 500 feet would be technically infeasible;

The proposed facility would not be located on a prohibited support structure identified in this policy;

The proposed facility would be on the most preferred support structure within 500 feet from the proposed site in any direction or the applicant has demonstrated with clear and convincing evidence in the written record that any more-preferred support structure(s) within 500 feet would be technically infeasible;

The proposed facility complies with all applicable design standards in this policy;

The applicant has demonstrated that the proposed project will be in planned compliance with all applicable FCC regulations and guidelines for human exposure to RF emissions.

Conditional Small Wireless Facility Approvals. Subject to any applicable limitations in Federal or State law, nothing in this chapter is intended to limit the City's authority to conditionally approve an application for a small wireless facility approval to protect and promote the public health, safety and welfare.

Appeals. Any decision by the Director shall be final and not subject to any administrative appeals.

Standard Conditions of Approval. In addition to all other conditions adopted by the Director, all small wireless facility approvals, whether approved by the Director or deemed approved by the operation of law, shall be automatically subject to the following conditions in this section; provided, however, that the Director shall have discretion to modify or amend these conditions on a case-by-case basis as may be necessary or appropriate under the circumstances:

Permit Term. The small wireless facility permit will automatically expire 10 years and one day from its issuance unless California Government Code Section 65964(b) authorizes the City to establish a shorter term for public safety reasons. Any other permits or approvals issued in connection with any collocation, modification or other change to the small wireless facility, which includes, without limitation, any permits or other approvals deemed-granted or deemed-approved under Federal or State law, will not extend the term limit unless expressly provided otherwise in such permit or approval or required under Federal or State law.

Permit Renewal. Within one year before the expiration date of this permit, the permittee may submit an application for permit renewal. To be eligible for renewal, the permittee must demonstrate that the subject wireless facility is in compliance with all the conditions of approval associated with this permit and all applicable provisions in the Upland Municipal Code and this policy that exist at the time the decision to renew the permit is rendered. The approval authority shall have discretion to modify or amend the conditions of approval for permit renewal on a case-by-case basis as may be necessary or appropriate to ensure compliance with this policy. Upon renewal, this permit will automatically expire 10 years and one day from its issuance, except when California Government Code Section 65964(b), as may be amended or superseded in the future, authorizes the City to establish a shorter term for public safety reasons.

Accelerated Permit Terms Due to Invalidation. In the event that any court of competent jurisdiction invalidates any provision of Federal law such that Federal law would not mandate approval of the small wireless facility approved by the City, such approval shall automatically expire one year from the effective date of the applicable judicial order, unless the decision would not authorize accelerated termination of previously approved small wireless facility approvals or the Director grants an extension upon written request from the permittee that shows good cause for the extension, which includes, without limitation, extreme financial hardship. Notwithstanding anything in the previous sentence to the contrary, the Director may not grant a permanent exemption or indefinite extension. A permittee shall not be required to remove its improvements approved under the invalidated small wireless facility approval when it has submitted an application for a conditional use permit for those improvements before the one-year period ends.

No Waiver of Standing. The City's approval does not waive, and shall not be construed to waive, any standing by the City to challenge any FCC rules that apply to small wireless facilities or any small wireless facility approval.

Build-Out Period. The small wireless facility approval will automatically expire one year from the issuance date unless the permittee obtains all other permits and approvals required to install, construct and operate the approved wireless facility, which includes, without limitation, any permits or approvals required by the any Federal, State or local public agencies with jurisdiction over the subject property, the wireless facility or its use. The Director may grant one written extension to a date certain when the permittee shows good cause to extend the limitations period in a written request for an extension submitted at least 30 days prior to the automatic expiration date in this condition. Any further extensions may be granted by the Planning Commission.

Post-Installation Certification. Within 60 calendar days after the permittee commences full, unattended operations of a small wireless facility approved or deemed-approved, the permittee shall provide the approval authority with documentation reasonably acceptable to the approval authority that the small wireless facility has been installed and/or constructed in strict compliance with the approved construction drawings and photo simulations. Such documentation shall include, without limitation, as-built drawings, and site photographs.

Maintenance Obligations—Vandalism. The permittee shall keep the site, which includes, without limitation, any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean and safe condition in accordance with the approved plans and all conditions in this small wireless facility approval. The permittee shall keep the site area free from all litter and debris at all times. The permittee, at no cost to the City, shall remove and remediate any graffiti or other vandalism at the site within 48 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.

Compliance with Laws. The permittee shall maintain compliance at all times with all Federal, State and local statutes, regulations, orders or other rules that carry the force of law ("laws") applicable to the permittee, the subject property, the wireless facility or any use or activities in connection with the use authorized in this small wireless facility approval. The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve or otherwise lessen the permittee's obligations to maintain compliance with all laws.

10.

11.

12.

Contact Information. The permittee shall furnish the City with accurate and up-to-date contact information for a person responsible for the small wireless facility, which includes, without limitation, such person's full name, title, direct telephone number, facsimile number, mailing address and email address. The permittee shall keep such contact information up-to-date at all times.

13.

Indemnification. The permittee and, if applicable, the property owner upon which the wireless facility is installed shall defend, indemnify and hold harmless the City, its agents, officers, officials, employees and volunteers from any and all: (a) damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, law suits, writs and other actions or proceedings ("claims") brought against the City or its agents, officers, officials, employees or volunteers to challenge, attack, seek to modify, set aside, void or annul the City's approval of this small wireless facility approval; and (b) other claims any kind or form, whether for personal injury, death or property damage, that arise from or in connection with the permittee's or its agents', directors', officers', employees', contractors', subcontractors', licensees', or customers' acts or omissions in connection with this Small wireless facility approval or the wireless facility. In the event the City becomes aware any claims, the City will use best efforts to promptly notify the permittee and the private property owner and shall reasonably cooperate in the defense. The permittee expressly acknowledges and agrees that the City shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the City's defense, and the property owner or permittee (as applicable) shall promptly reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. The permittee expressly acknowledges and agrees that the permittee's indemnification obligations under this condition are a material consideration that motivates the City to approve this small wireless facility approval, and that such indemnification obligations will survive the expiration or revocation of this small wireless facility approval.

14.

Performance Bond. Before the City issues any construction permit in connection with the small wireless facility, the permittee shall post a performance bond from a surety and in a form acceptable to the City Manager in an amount equal to or greater than a written estimate from a qualified contractor with experience in wireless facilities removal. The written estimate must include the cost to remove all equipment and other improvements, which includes, without limitation, all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility. In establishing or adjusting the bond amount required under this condition, and in accordance with California Government Code Section 65964(a), the City Manager shall take into consideration information provided by the permittee regarding the cost to remove the wireless facility.

15.

Permit Revocation. The approval authority may recall the small wireless facility approval for review at any time due to complaints about noncompliance with applicable laws or any approval conditions attached to the approval after notice and an opportunity to cure the violation is provided to the permittee. If the noncompliance thereafter continues, the Director may, following notice and an opportunity for the permittee to be heard (which hearing may be limited to written submittals), revoke the approval or amend the conditions of approval as the Director deems necessary or appropriate to correct any such noncompliance.

16.

Record Retention. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the small wireless facility, which includes, without limitation, this approval, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval and any ministerial permits or approvals issued in connection with this approval. In the event that the permittee does not maintain such records as required in this condition, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee.

17.

18.

Abandoned Wireless Facilities. A small wireless facility shall be deemed abandoned if not operated for any continuous six-month period. Within 90 days after a small wireless facility is abandoned or deemed abandoned, the permittee shall completely remove the small wireless facility and all related improvements and shall restore all affected areas to a condition compliant with all applicable laws, which includes, without limitation, the Upland Municipal Code. In the event that the permittee does not comply with the removal and restoration obligations under this condition within said 90-day period, the City shall have the right (but not the obligation) to perform such removal and restoration with or without notice, and the permittee shall be liable for all costs and expenses incurred by the City in connection with such removal and/or restoration activities.

19.

Landscaping. The permittee shall replace any landscape features damaged or displaced by the construction, installation, operation, maintenance or other work performed by the permittee or at the permittee's direction on or about the site. If any trees are damaged or displaced, the permittee shall hire and pay for a licensed arborist to select, plant and maintain replacement landscaping in an appropriate location for the species. Only workers under the supervision of a licensed arborist shall be used to install the replacement tree(s). Any replacement tree must be substantially the same size as the damaged tree unless otherwise approved by the approval authority. The permittee shall, at all times, be responsible to maintain any replacement landscape features.

20.

Cost Reimbursement (Applicable to small Wireless Facilities Within Public Rights-of-Way). The permittee is deemed to have acknowledged and agreed that: (a) the permittee's request for authorization to construct, install and/or operate small the wireless facility will cause the City to incur costs and expenses; (b) the permittee shall be responsible to reimburse the City for all costs incurred in connection with the permit, which includes without limitation costs related to application review, permit issuance, site inspection and any other costs reasonably related to or caused by the request for authorization to construct, install and/or operate the small wireless facility; (c) any application fees required for the application may not cover all such reimbursable costs and that the permittee shall have the obligation to reimburse City for all such costs 10 days after a written demand for reimbursement and reasonable documentation to support such costs; and (d) the City shall have the right to withhold any permits or other approvals in connection with the small wireless facility unless and until any outstanding costs have been reimbursed to the City by the permittee.

21.

Future Undergrounding Programs (Applicable to Small Wireless Facilities Within Public Rights-of-Way). Notwithstanding any term remaining on any small wireless facility approval, if other utilities or communications providers in the public rights-of-way underground their facilities in the segment of the public rights-of-way where the permittee's small wireless facility is located, the permittee must also underground its equipment, except the antennas and any approved electric meter, at approximately the same time. Accessory equipment such as radios and computers that require an environmentally controlled underground vault to function shall not be exempt from this condition. Small wireless facilities installed on wood utility poles that will be removed pursuant to the undergrounding program may be reinstalled on a streetlight that complies with the City's standards and specifications. Such undergrounding shall occur at the permittee's sole cost and expense except as may be reimbursed through tariffs approved by the State Public Utilities Commission for undergrounding costs.

22.

Electric Meter Upgrades (Applicable to Small Wireless Facilities Within Public Rights-of-Way). If the commercial electric utility provider adopts or changes its rules obviating the need for a separate or ground-mounted electric meter and enclosure, the permittee on its own initiative and at its sole cost and expense shall remove the separate or ground-mounted electric meter and enclosure. Prior to removing the electric meter, the permittee shall apply for any encroachment and/or other ministerial permit(s) required to perform the removal. Upon removal, the permittee shall restore the affected area to its original condition that existed prior to installation of the equipment.

23.

Rearrangement and Relocation (Applicable to Small Wireless Facilities Within Public Rights-of-Way). The permittee shall be deemed to have acknowledged and agreed that the City, in its sole discretion and at any time, may: (a) change any street grade, width or location; (b) add, remove or otherwise change any improvements in, on, under or along any street owned by the City or any other public agency, which includes, without limitation, any sewers, storm drains, conduits, pipes, vaults, boxes, cabinets, poles and utility systems for gas, water, electric or telecommunications; and/or (c) perform any other work deemed necessary, useful or desirable by the City (collectively, "City work"). The City reserves the rights to do any and all City work without any admission on its part that the City would not have such rights without the express reservation in this small cell permit. If the Public Works Director determines that any City work will require the permittee's small wireless facility located in the public rights-of-way to be rearranged and/or relocated, the permittee shall, at its sole cost and expense, do or cause to be done all things necessary to accomplish such rearrangement and/or relocation. If the permittee fails or refuses to either permanently or temporarily rearrange and/or relocate the permittee's small wireless facility within a reasonable time after the Public Works Director's notice, the City may (but will not be obligated to) cause the rearrangement or relocation to be performed at the permittee's sole cost and expense. The City may exercise its rights to rearrange or relocate the permittee's small wireless facility without prior notice to permittee when the Public Works Director determines that the City work is immediately necessary to protect public health or safety. The permittee shall reimburse the City for all costs and expenses in connection with such work within 10 days after a written demand for reimbursement and reasonable documentation to support such costs.

Location Requirements.

Preface to Location Requirements. To better assist applicants and decision makers to understand and respond to the community's aesthetic preferences and values, subsections (L)(2) and (3) set out listed preferences for locations and support structures to be used in connection with small wireless facilities in an ordered hierarchy. Applications that involve less-preferred locations or structures may be approved so long as the applicant demonstrates that either: (a) no more preferred locations or structures exist within 500 feet from the proposed site; or (b) any more preferred locations or structures within 500 feet from the proposed site would be technically infeasible as supported by clear and convincing evidence in the written record. Subsection (L)(4) identifies "prohibited" support structures on which the City shall not approve any small cell permit application for any competitor or potential competitor.

Locational Preferences. The City prefers small wireless facilities to be installed in locations, ordered from most preferred to least preferred, as follows: