The purpose of this chapter is to establish a process for managing, and uniform standards for acting upon, requests for the placement of wireless facilities within the public rights-of-way of the city consistent with the city's obligation to promote the public health, safety, and welfare, to manage the public rights-of-way, and to ensure that the public is not incommoded by the use of the public rights-of-way for the placement of wireless facilities. The city recognizes the importance of wireless facilities to provide high-quality communications service to the residents and businesses within the city, and the city also recognizes its obligation to comply with applicable federal and state law regarding the placement of personal wireless services facilities in its public rights-of-way. This chapter shall be interpreted consistent with those provisions.
(Ord. 1993 § 3, (2021))
The terms used in this chapter shall have the following meanings:
"Application"
means a formal request, including all required and requested documentation and information, submitted by an applicant to the city for a wireless encroachment permit.
"Applicant"
means a person filing an application for placement or modification of a wireless facility in the public right-of-way.
"Eligible facilities request"
shall have the meaning as set forth in 47 C.F.R. Section 1.6100(b)(3), or any successor provision.
"FCC"
means the Federal Communications Commission or its lawful successor.
"Municipal infrastructure"
means city-owned or controlled property structures, objects, and equipment in the ROW, including, but not limited to, street lights, traffic control structures, banners, street furniture, or other poles, lighting fixtures, or electroliers located within the ROW.
"Permittee"
means any person or entity granted a wireless encroachment permit pursuant to this chapter.
"Personal wireless services"
shall have the same meaning as set forth in 47 U.S.C. Section 332(c)(7)(C)(i).
"Personal wireless services facility"
means a wireless facility used for the provision of personal wireless services.
"Public rights-of-way, or ROW"
means any portion of any land dedicated, condemned or established and improved for use as a public thoroughfare for vehicular use and owned, maintained or managed by the city. Public right(s)-of-way includes public streets, roads, lanes, and alleys (including portions used for sidewalks, medians, and parkways). For the purposes of this chapter, the public right(s)-of-way includes public utility easements and does not include private streets.
"Small cell facility"
shall have the same meaning as "small wireless facility" in 47 C.F.R. Section 1.6002(l), or any successor provision (which is a personal wireless services facility that meets the following conditions that, solely for convenience, have been set forth below):
(a) 
The facilities:
(1) 
Are mounted on a structure 50 feet or less in height including their antennas as defined in 47 C.F.R. Section 1.1320(d), or
(2) 
Are mounted on a structure no more than 10% taller than other adjacent structures, or
(3) 
Do not extend an existing structure on which it are located to a height of more than 50 feet or by more than 10%, whichever is greater;
(b) 
Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in 47 C.F.R. Section 1.1320(d)), is no more than three cubic feet in volume;
(c) 
All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;
(d) 
The facility does not require antenna structure registration under 47 C.F.R. Part 17;
(e) 
The facility is not located on Tribal lands, as defined under 36 C.F.R. Section 800.16(x); and
(f) 
The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 C.F.R. Section 1.1307(b).
"Support Structure"
means any structure capable of supporting a base station.
"Underground areas"
means those areas where there are no electrical facilities or facilities of the incumbent local exchange carrier in the right-of-way; or where the wires associated with the same are or are required to be located underground; or where the same are scheduled to be converted from overhead to underground. Electrical facilities are distribution facilities owned by an electric utility and do not include transmission facilities used or intended to be used to transmit electricity at nominal voltages in excess of 35,000 volts.
"Utility pole"
means a structure in the ROW designed to support electric, telephone and similar utility lines. A tower is not a utility pole.
"Wireless encroachment permit"
means a permit issued pursuant to this chapter authorizing the placement or modification of a wireless facility of a design specified in the permit at a particular location within the ROW; and the modification of any existing support structure to which the wireless facility is proposed to be attached.
Wireless facility, or "facility"
means the transmitters, antenna structures and other types of installations used for the provision of wireless services at a fixed location, including, without limitation, any associated tower(s), support structure(s), and base station(s).
"Wireless infrastructure provider"
means a person that owns, controls, operates or manages a wireless facility or portion thereof within the ROW.
"Wireless regulations"
means those regulations adopted pursuant to Section 5 and implementing the provisions of this chapter.
"Wireless service provider"
means an entity that provides personal wireless services to end users.
(Ord. 1993 § 3, (2021))
(a) 
In General. There shall be a type of encroachment permit entitled a "wireless encroachment permit," which shall be subject to all of the same requirements as an encroachment permit would under Chapter 12.10 of this code in addition to all of the requirements of this chapter. Unless exempted, every person who desires to place a wireless facility in the public rights-of-way or modify an existing wireless facility in the public rights-of-way must obtain a wireless encroachment permit authorizing the placement or modification in accordance with this chapter. Except for small cell facilities, facilities qualifying as eligible facilities requests, or any other type of facility expressly allowed in the public right-of-way by state or federal law, no other wireless facilities shall be permitted pursuant to this chapter.
(1) 
Exemptions. This chapter does not apply to:
(A) 
The placement or modification of facilities by the city or by any public agency solely for public safety purposes.
(B) 
Installation of a "cell on wheels," "cell on truck" or a similar facility for a temporary period in connection with an emergency or a non-emergency event, but no longer than required for the emergency or the non-emergency event, provided: (i) that installation does not involve excavation, movement, or removal of existing facilities; (ii) that the public works director is notified in writing by the owner of the temporary facility at least two business days prior to the installation, or if advance notice is not possible in an emergency, within 48 hours after installation; and (iii) the owner of the installation complies with all reasonable directives of the public works director regarding the placement or relocation of placed temporary facilities.
(C) 
Installation of a wireless facility on the strand between two utility poles, provided that the cumulative volume of all wireless facilities on the strand shall not exceed one cubic foot and provided further that the installation does not require replacement of the strand, or excavation, modification or replacement of the utility poles.
(b) 
Other Applicable Requirements. In addition to the wireless encroachment permit required herein, the placement of a wireless facility in the ROW requires the persons who will own or control those facilities to obtain all permits required by applicable law, and to comply with applicable law, including, but not limited to, applicable law governing radio frequency (RF) emissions.
(c) 
Pre-Existing Facilities in the ROW. Any wireless facility already existing in the ROW as of the date of this chapter's adoption shall remain subject to the standards and conditions of this code in effect prior to this chapter, unless and until a renewal of such facility's then-existing permit is granted, at which time the provisions of this chapter shall apply in full force going forward as to such facility. The review of any request for a renewal of a permit for such preexisting facilities shall be conducted pursuant to this chapter, rather than the portion(s) of this code that it was previously reviewed under.
(d) 
Public Use. Except as otherwise provided by California law, any use of the public right-of-way authorized pursuant to this chapter will be subordinate to the city's use and use by the public.
(Ord. 1993 § 3, (2021))
(a) 
Reviewing Authority. The public works director or its designee (director) is responsible for administering this chapter. As part of the administration of this chapter, the director may:
(1) 
Interpret the provisions of this chapter;
(2) 
Develop and implement standards governing the placement and modification of wireless facilities consistent with the requirements of this chapter, including regulations governing collocation and resolution of conflicting applications for placement of wireless facilities;
(3) 
Develop and implement acceptable designs and development standards for wireless facilities in the public rights-of-way, taking into account the zoning districts bounding the public rights-of-way;
(4) 
Develop forms and procedures for submission of applications for placement or modification of wireless facilities, and proposed changes to any support structure consistent with this chapter;
(5) 
Determine the amount of and collect, as a condition of the completeness of any application, any fee or deposit established by the city;
(6) 
Establish deadlines for submission of information related to an application, and extend or shorten deadlines where appropriate and consistent with state and federal laws and regulations;
(7) 
Issue any notices of incompleteness, requests for information, or conduct or commission such studies as may be required to determine whether a permit should be issued;
(8) 
Require notice to members of the public that may be affected by the placement or modification of the wireless facility and proposed changes to any support structure in accordance with this chapter;
(9) 
Subject to appeal as provided herein, determine whether to approve, approve subject to conditions, or deny an application; and
(10) 
Take such other steps as may be required to timely act upon applications for placement of wireless facilities, including issuing written decisions and entering into agreements to mutually extend the time for action on an application.
(b) 
Appeal.
(1) 
Any person adversely affected by the decision of the director pursuant to this chapter may appeal the director's decision to a hearing officer appointed by the city manager. The hearing officer may decide the issues de novo, and their written decision will be the final decision of the city. An appeal by a wireless infrastructure provider must be taken jointly with the wireless service provider that intends to use the personal wireless services facility.
(2) 
Where the director grants an application based on a finding that denial would result in a prohibition or effective prohibition under applicable federal law, the decision shall be automatically appealed to a hearing officer appointed by the city manager. All appeals must be filed within five days of the written decision of the director, unless the director extends the time therefore. An extension may not be granted where extension would result in approval of the application by operation of law.
(3) 
Any appeal shall be conducted so that a timely written decision may be issued in accordance with applicable law.
(Ord. 1993 § 3, (2021))
(a) 
Generally. Wireless facilities in the ROW shall meet the minimum requirements set forth in this chapter and the wireless regulations, in addition to the requirements of any other applicable law.
(b) 
Minimum Standards. Wireless facilities shall be installed and modified in a manner that minimizes risks to public safety, avoids placement of new aboveground facilities in underground areas, avoids installation of new support structures or equipment cabinets in the public rights-of-way, and otherwise maintains the integrity and character of the neighborhoods and corridors in which the facilities are located; ensures that installations are subject to periodic review to minimize the intrusion on the rights-of-way; and ensures that the city bears no risk or liability as a result of the installations, and that such use does not inconvenience the public, interfere with the primary uses of the rights-of-way, or hinder the ability of the city or other government agencies to improve, modify, relocate, abandon, or vacate the public rights-of-way or any portion thereof, or to cause the improvement, modification, relocation, vacation, or abandonment of facilities in the public rights-of-way.
(c) 
Design and Location Standards. All applicants shall design and locate the wireless facilities in accordance with the standards and wireless regulations set forth separately through the resolution adopted by the city council. The director may propose updates to the standards for city council approval from time to time, in order to consider the inclusion of new technologies, innovations and materials which would further the goal of reducing the aesthetic impacts of facilities.
(Ord. 1993 § 3, (2021))
(a) 
Submission. Unless the wireless regulations provide otherwise, applicant shall submit a paper copy and an electronic copy of any application, amendments, or supplements to an application, or responses to requests for information regarding an application to: director, at the address posted on the city's website or listed in the applicable form.
(b) 
Pre-Application Meeting. Prior to filing an application for a wireless encroachment permit, an applicant is encouraged to schedule a pre-application meeting with the director to discuss the proposed facility, the requirements of this chapter, and any potential impacts of the proposed facility.
(c) 
Content. An applicant shall submit an application on the form approved by the director, which may be updated from time to time, but in any event shall require the submission of all required fee(s), documents, information, and any other material necessary to allow the director to make required findings and ensure that the proposed facility will comply with applicable federal and state law, the Municipal Code, and will not endanger the public health, safety, or welfare. If no form has been approved, applications must contain all information necessary to show that applicant is entitled to the wireless encroachment permit requested, and must specify whether the applicant believes state or federal law requires action on the application within a specified time period.
(d) 
Fees. Application fee(s) shall be required to be submitted with any application for a wireless encroachment permit. The city council is hereby authorized to determine, or cause to be determined, the amount, type, and other terms of such fee(s) from time to time by means of resolution. Notwithstanding the foregoing, no application fee shall be refundable, in whole or in part, to an applicant for a wireless encroachment permit unless paid as a refundable deposit.
(e) 
Incompleteness. For personal wireless facilities and eligible facilities requests, applications will be processed, and notices of incompleteness provided, in conformity with state, local, and federal law. If such an application is incomplete, the director may notify the applicant in writing, and specifying the material omitted from the application.
(f) 
Consultants. The director or hearing officer, as the case may be, is authorized, in its discretion, to select and retain consultant(s) with expertise in telecommunications in connection with the review of any application under this chapter. Such consultant review may be retained on any issue that involves specialized or expert knowledge in connection with an application, including, but not limited to, application completeness or accuracy, structural engineering analysis, or compliance with FCC radio frequency emissions standards.
(Ord. 1993 § 3, (2021))
(a) 
Findings Required for Approval.
(1) 
Except for eligible facilities requests, the director or hearing officer, as the case may be, shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, it finds the following:
(A) 
The facility is not detrimental to the public health, safety, and welfare;
(B) 
The facility complies with this chapter and all applicable design and development standards;
(C) 
The facility meets applicable requirements and standards of state and federal law; and
(b) 
For eligible facilities requests, the director or hearing officer, as the case may be, shall approve an application if, on the basis of the application and other materials or evidence provided in review thereof, it finds the following:
(1) 
That the application qualifies as an eligible facilities request; and
(2) 
That the proposed facility will comply with all generally-applicable laws.
(c) 
Decisions. Decisions on an application by the director or hearing officer shall be in writing and include the reasons for the decision.
(d) 
Noticing. Once the application and all supporting information and documentation have been received and reviewed by the public works department, notice of the proposed decision shall be given to the applicant and all owners of property which lies within a radius of 300 feet of the proposed facilities and any alternative sites identified by the applicant. The following information shall be provided:
(1) 
Project description and site plan as provided in the application.
(2) 
Map which accurately and clearly depicts location of entire project as provided in the application.
(3) 
A summary of the proposed decision.
(4) 
The effective date of the proposed decision, and how to submit an appeal.
More detailed information, including, but not limited to, photo simulations and elevations, as provided in the application, shall be placed on the city's website and this information shall be referenced in the notice.
(e) 
Waivers. The reviewing authority may grant waivers of the requirements for wireless communications facilities subject to this chapter, if it is determined that the applicant has established that denial of an application or strict adherence to the location and design standards would:
(1) 
Prohibit or effectively prohibit the provision of personal wireless services, within the meaning of federal law; or
(2) 
Otherwise violate applicable laws or regulations; or
(3) 
Require a technically infeasible design or installation of a wireless facility.
If that determination is made, said requirements may be waived, but only to the minimum extent required to avoid the prohibition, violation, or technically infeasible design or installation.
(Ord. 1993 § 3, (2021))
Generally. In addition to any supplemental conditions imposed by the director or hearing officer, as the case may be, all permits under this chapter shall be subject to the standard conditions adopted by resolution of the city council, unless modified by the director or hearing officer.
(a) 
For Breach. A wireless encroachment permit may be revoked for failure to comply with the conditions of the permit or applicable law. Upon revocation, the wireless facility must be removed; provided that removal of a support structure owned by City, a utility, or another entity authorized to maintain a support structure in the right-of-way need not be removed, but must be restored to its prior condition, except as specifically permitted by the city. All costs incurred by the city in connection with the revocation and removal shall be paid by entities who own or control any part of the wireless facility.
(b) 
For Installation Without a Permit. A wireless facility installed without a wireless encroachment permit (except for those exempted by this chapter) must be removed; provided that removal of support structure owned by city, a utility, or another entity authorized to maintain a support structure in the right-of-way need not be removed, but must be restored to its prior condition, except as specifically permitted by the city. All costs incurred by the city in connection with the revocation and removal shall be paid by entities who own or control any part of the wireless facility.
(c) 
Municipal Infraction. Any violation of this chapter will be subject to the same penalties as a violation of the Chapter 1.12.
(Ord. 1993 § 3, (2021))
The city, as a matter of policy, will negotiate agreements for use of municipal infrastructure. The placement of wireless facilities on those structures shall be subject to the agreement. The agreement shall specify the compensation to the city for use of the structures. The person seeking the agreement shall additionally reimburse the city for all costs the city incurs in connection with its review of, and action upon the person's request for, an agreement.
(Ord. 1993 § 3, (2021))
In establishing the rights, obligations and conditions set forth in this chapter, it is the intent of the city to treat each applicant or public right-of-way user in a competitively neutral and nondiscriminatory manner, to the extent required by law, and with considerations that may be unique to the technologies, situation and legal status of each particular applicant or request for use of the public rights-of-way.
(Ord. 1993 § 3, (2021))