The purpose of this chapter is to provide for the appropriate location and development standards for wireless communication facilities while serving the residents and businesses in the city.

(Ord. No. 669, 8-18-2015)

The following are permitted as a matter of right as an accessory use, subject to the standards outlined in Section 19.27.040 (residential zones) and Section 19.27.050 (nonresidential zones):

A.

Common skeletal-type radio and television antenna used to receive UHF, VHF, AM and FM signals of off-air broadcasts from radio and television stations.

B.

In residential zones, all satellite dish antennas that are one meter or less in diameter.

C.

In all nonresidential zones, all satellite antennas that are two meters or less in diameter.

(Ord. No. 669, 8-18-2015)

Building or ground-mounted cellular, personal communications service ("PCS"), or other wireless antenna shall be considered a public utility use subject to a conditional use permit review and approval, as specified in Chapter 19.39, Division 7 of this Title 19. Exempted from conditional use permit review and approval is "any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station" under Section 6409(a) of the Spectrum Act (codified at 47 U.S.C. 1455). Such modifications are covered by Section 19.27.090 of this chapter. Also exempted from conditional use permit review and approval are any applications for small wireless facilities in the public right-of-way as defined by Section 1.6002(I) of Subpart U, of Part 1, of Title 47 of the Code of Federal Regulations. The process for applying for a small wireless facilities permit in the public right-of-way shall be governed by Sections 19.27.100 and 19.27.110 of this chapter.

(Ord. No. 760, § 5, 7-7-2020)

Editor's note— Ord. No. 760, § 5, adopted July 7, 2020, repealed the former section and enacted a new section as set out herein. The former section pertained to similar subject matter and derived from Ord. No. 669, 8-18-2015.

Table 19.27.040A identifies the development standards applicable to all antennas located in the city. In addition, antennas located in any residential zone in the city shall conform to the following standards:

A.

No antenna or its supporting structure shall be located in the area between the front property line and the dwelling.

B.

No antenna, other than satellite antennas, shall exceed the height limit established in Table 19.27.040A. Antennas exceeding the permitted height may be approved; provided, the antenna is of the retractable variety, that the antenna is retractable to below the height limit, and the applicant executes a use agreement providing that the antenna will only be extended during actual use of such antenna.

(Ord. No. 669, 8-18-2015)

Table 19.27.040A identifies the development standards applicable to all antennas located in the city. In addition, antennas located in any nonresidential zone in the city shall conform to the following standards:

A.

No antenna or its supporting structure shall be located in the area between the front property line and the main structure or building.

B.

No antenna, other than a satellite antenna, shall be higher than the maximum height permitted in the zone, measured from grade level.

Table 19.27.040A
Antenna Regulations

(a) For applications subject to the CUP review process, the planning commission may approve additional antennas for uses and businesses which can demonstrate a clear and compelling need to establish additional antennas for purposes directly related to the operation of such use or business. For applications subject to Chapter 19.27.090, the applicant may submit the application to the public works and development services department for administrative review.

(Ord. No. 669, 8-18-2015)

The following regulations shall apply to the establishment, installation, and operation of antennas in all zones:

A.

Antennas shall be installed and maintained in compliance with the requirements of the building code. Antenna installers shall obtain a building permit prior to installation.

B.

No advertising material shall be allowed on any antenna.

C.

All electrical wiring associated with any antenna shall be buried underground or hidden in a manner acceptable to the community development director.

D.

No portion of an antenna array shall extend beyond the property lines or into any front yard area. Guy wires may be attached to the building but shall not be anchored within any front yard area.

E.

The antenna, including guy wires, supporting structures, and accessory equipment, shall be located and designed so as to minimize the visual impact on surrounding properties and from public streets. The materials used in constructing the antenna shall not be unnecessarily bright, shiny, garish, or reflective.

F.

1.

Every antenna must be adequately grounded with an adequate ground wire for protection against a direct strike of lightning. Ground wires shall be of the type approved by the latest edition of the electrical code for grounding masts and lightning arresters (per FCC standards) and shall be installed in a mechanical manner, with as few bends as possible, maintaining a clearance of at least two inches from combustible materials. Lightning arresters shall be used that are approved as safe by the Underwriter's Laboratories, Inc., and both sides of the line must be adequately protected with proper arresters to remove static charges accumulated on the line.

2.

When lead-in conductors of polyethylene ribbon-type are used, lightning arresters must be installed in each conductor. When coaxial cable or shielded twin lead is used for lead-in, suitable protection may be provided without lightning arresters by grounding the exterior metal sheath.

G.

A wind velocity test shall be required, if deemed necessary by the community development director.

H.

All cellular, pcs, and other wireless antenna shall be designed to enhance the surrounding physical environment by blending with that environment and by being as unobtrusive as possible. Screening shall be provided in the form of fencing, landscaping, structures, or parapets integral to the building. Such screening shall be provided to the satisfaction of the community development director.

I.

Co-location of cellular, pcs, and other wireless antenna shall be encouraged. Therefore, lease agreements shall not include exclusive rights which would prohibit co-location where it is technically feasible.

J.

For all cellular, pcs, and other wireless antenna for which a conditional use permit is required, a faithful performance bond to ensure the removal of abandoned antenna facilities shall be posted prior to the issuance of building permits.

K.

All cellular, pcs, and wireless antenna which are located in or use city right-of-way shall be subject to applicable franchise fee ordinance provisions or city lease agreement provisions.

(Ord. No. 669, 8-18-2015)

All antennas, in any zone, lawfully constructed and erected prior to the effective date of applicable ordinances, and which do not conform to the requirements of the provisions of this Chapter 19.27 for the particular zone in which they are located, shall be accepted as nonconforming uses and shall be subject to abatement pursuant to the provisions of Chapter 19.37 (Nonconforming Uses and Structures) of this Title 19.

(Ord. No. 669, 8-18-2015)

Where the planning commission finds that a nonconforming antenna, either in its present condition or as modified, can be used in compliance with the standards set forth in this Title 19 for the zone in which it is located, the nonconforming antenna may be granted an extension sufficient to permit it to relocate on the site wherein such use is permitted and which has substantially equivalent utility for the use. In no event shall such extension be more than two years.

(Ord. No. 669, 8-18-2015)

This section shall apply to modifications to existing wireless communications facilities and collocation of facilities on existing wireless towers under Section 6409(a) of the Spectrum Act (codified at 47 U.S.C. 1455).

A.

Purpose. This section implements § 6409 of the Spectrum Act (codified at 47 U.S.C. 1455), which requires a state or local government to approve any eligible facilities request for a modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station.

B.

Definitions. Terms used in this section have the following meanings.

1.

"Base Station." A structure or equipment at a fixed location that enables Commission-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in this subpart or any equipment associated with a tower.

a.

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.

b.

The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiberoptic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks).

c.

The term includes any structure other than a tower that, at the time the relevant application is filed with the city under this section, supports or houses equipment described in subsections (B)(1)(a)—(b) of this section that has been reviewed and approved under the applicable zoning or siting process, or under another city regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.

d.

The term does not include any structure that, at the time the relevant application is filed with the city under this section, does not support or house equipment described in subsections (B)(1)(a)—(b) of this section.

2.

"Collocation." The mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.

3.

"Eligible Facilities Request." 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:

a.

Collocation of new transmission equipment;

b.

Removal of transmission equipment; or

c.

Replacement of transmission equipment.

4.

"Eligible Support Structure." 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 city under this section.

5.

"Existing." A constructed tower or base station is existing for purposes of this section if it has been reviewed and approved under the applicable zoning or siting process, or under another city 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.

6.

"Site." 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.

7.

"Substantial Change." A modification substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria:

a.

For towers other than towers in the public rights-of-way, it increases the height of the tower by more than ten percent or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than ten percent or more than ten feet, whichever is greater;

i.

Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act.

ii.

For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;

iii.

For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than ten percent larger in height or overall volume than any other ground cabinets associated with the structure;

iv.

It entails any excavation or deployment outside the current site;

v.

It would defeat the concealment elements of the eligible support structure; or

vi.

It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, provided however that this limitation does not apply to any modification that is noncompliant only in a manner that would not exceed the thresholds identified in subsection (B)(7)(i)—(iv).

8.

"Transmission Equipment." Equipment that facilitates transmission for any Federal Communications Commission ("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.

9.

"Tower." Any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for 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, and the associated site.

C.

Review of Applications. The public works and development services department may not deny and shall approve any eligible facilities request for modification of an eligible support structure that does not substantially change the physical dimensions of such structure. All such facilities must also comply with the city's height, location, bulk, size and aesthetic or design requirements.

1.

Documentation Requirement for Review. When an applicant asserts in writing that a request for modification is covered by this section, the city may require the applicant to provide documentation or information reasonably related to determining whether the request meets the requirements of this section. The city may not require an applicant to submit any other documentation, including but not limited to documentation intended to illustrate the need for such wireless facilities or to justify the business decision to modify such wireless facilities.

2.

Timeframe for Review. Within sixty days of the date on which an applicant submits a request seeking approval under this section, the city shall approve the application unless it determines that the application is not covered by this section.

3.

Tolling of the Timeframe for Review. The sixty-day period begins to run when the application is filed, and may be tolled only by mutual agreement or in cases where the city determines that the application is incomplete. The timeframe for review is not tolled by a moratorium on the review of applications.

a.

To toll the timeframe for incompleteness, the city must provide written notice to the applicant within thirty days of receipt of the application, delineating all missing documents or information. Such delineated information is limited to documents or information meeting the standard under subsection (C)(1) of this section.

b.

The timeframe for review begins running again when the applicant makes a supplemental submission in response to the state or local government's notice of incompleteness.

c.

Following a supplemental submission, the city will have ten days to notify the applicant that the supplemental submission did not provide the information identified in the original notice delineating missing information. The timeframe is tolled in the case of second or subsequent notices pursuant to the procedures identified in this subsection (C)(3). Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.

4.

Failure to Act. In the event the city fails to approve or deny a request seeking approval under this section within the timeframe for review (accounting for any tolling), the request shall be deemed granted. The deemed grant does not become effective until the applicant notifies the public works and development services department in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.

5.

Remedies. Applicants and the city may bring claims related to Section 6409(a) of the Spectrum Act to any court of competent jurisdiction.

(Ord. No. 669, 8-18-2015)

A small wireless facility permit from the public works department shall be required for any small wireless facility and associated work in the public right-of-way. All applicable permit and inspection fees shall be established by resolution of the city council.

(Ord. No. 760, § 6, 7-7-2020)

The city council shall adopt by resolution standards and guidelines regulating the design of small wireless facilities (as defined by Section 1.6002(I) of Subpart U, of Part 1, of Title 47 of the Code of Federal Regulations) deployed in the public right-of-way in the City of Commerce. The director of public works, in consultation with the city engineer, shall have the authority to implement rules and promulgations to interpret and implement the standards and guidelines, as well as develop, implement, or modify any policies, regulations, conditions, forms, or documents necessary to regulate small wireless facilities in the public right-of-way.

(Ord. No. 760, § 7, 7-7-2020)