Davis City Zoning Code
ARTICLE 40
29 WIRELESS COMMUNICATION FACILITIES
§ 40.29.010 Purpose.
The purpose of this article is to provide uniform standards for the establishment and modification of wireless communications facilities (WFs) in the city and to provide for the desired location, design, installation, construction, maintenance, and operation of WFs consistent with applicable federal and state requirements. These standards are intended to address and balance the potentially adverse visual and aesthetic impacts of WFs while providing for the communication needs of residents, local businesses, and government agencies; manage the public rights-of-way and ensure the public is not incommoded by the placement of WFs in the public rights-of-way.
(Ord. 2570 § 1, 2020)
§ 40.29.020 Authority.
This article is enacted pursuant to the city's police power to regulate for the public health, safety and welfare subject to the limitations of that power under federal and state law, including, but not necessarily limited to, the Federal Telecommunications Act of 1996, Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, state laws regulating the processing and procedures associated with local WF approvals. This article shall be interpreted in conjunction with the federal and state laws and regulations regarding the processing and placement of telecommunications facilities within the city.
(Ord. 2570 § 1, 2020)
§ 40.29.030 Definitions.
For the purposes of this article, the following terms shall have the meanings set forth below:
Any system of wires, poles, rods, discs, reflecting discs, panels, flat panels, dishes, whip antennae, or other similar devices used for the transmission or reception of wireless signals. Antennae includes devices having active elements extending in any direction, and directional beam-type arrays having elements carried by and disposed from a generally horizontal boom that may be mounted upon and rotated through a vertical mast or tower interconnecting the boom and antenna support, all of which elements are deemed to be a part of the antenna. The height of the antenna shall include all array structures.
Antenna—Amateur radio.
A ground, building, or tower mounted antenna, or similar antenna structure, operated by a federally licensed amateur radio operator as part of the Amateur Radio Service, and as designated by the Federal Communications Commission (FCC).
Antenna array.
A group of antennas located on the same structure.
Antenna—Building mounted.
An antenna, other than an antenna with its supports resting on the ground, directly attached, façade-mounted or affixed to a building, tank, or structure other than a tower.
Antenna—Roof mounted.
Any antenna which is mounted to the roof of a building, tank, or similar structure.
Antenna—Flush mounted.
An antenna mounted to the wall of a structure that does not project above the façade to which it is mounted.
Antenna—Direct broadcast satellite service (DBS).
An antenna, usually a small home receiving satellite dish.
Antenna—Directional.
A device used to transmit and/or receive radio frequency signals in a directional pattern of less than three hundred sixty degrees. Also known as panel antenna.
Antenna—Ground mounted.
Any antenna with its base, single or multiple posts, placed directly on the ground.
Antenna—Satellite earth station (SES).
An antenna designed to receive and/or transmit radio frequency signals directly to and/or from a satellite.
Antenna—Television broadcast service (TVBS).
An antenna designed to receive only television broadcast signals.
Antenna—Radio antennas.
An antenna designed to receive AM/FM radio broadcast signals, or similar signals used for commercial purposes.
Antenna—Distributed antenna system (DAS).
Network of spatially separated antenna sites connected to a common source that provides wireless communication service within a geographic area or structure.
Antenna—All other antennas.
All other antenna(s) not previously covered in this section.
The same as defined by the FCC in 47 C.F.R. Section 1.60001(b)(1), as may be amended or superseded.
The mounting of one or more WFs, including antennas, on an existing or proposed WF or utility pole.
A Certificate of Public Convenience and Necessity granted by the California Public Utility Commission, or its duly appointed successor agency, pursuant to California Public Utilities Code Section 1001 et seq., as may be amended or superseded.
The director of the city's community development and sustainability department or designee.
An eligible facility request within the meaning of 47 C.F.R. Section 1.6100(b)(3) as may be amended or superseded.
A cabinet or building used by telecommunications providers to house equipment at a site or facility.
The Federal Communications Commission or its lawful successor.
A tower constructed of metal crossed strips or bars to support WF antennas and related equipment.
A tower that consists of a single pole structure (non-lattice), designed and erected on the ground or on top of a structure, to support WF antennas and related equipment.
The recipient, or its heirs, successors, or assigns of a permit issued pursuant to this article or any predecessors to this article, or any operator, user, or lessee of any permitted WF issued a permit pursuant to this or any predecessors to this article.
Commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services as defined in 47 U.S.C. Section 332(c)(7)(C)(i), as may be amended or superseded.
Any public road, highway, or waterway subject to Public Utilities Code Section 7901 (as it may be amended from time to time).
Radio frequency or electromagnetic waves generally between thirty kHz and three hundred GHz in the electromagnetic spectrum.
Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, codified as 47 U.S.C. Section 1455(a), as may be amended.
The presumptively reasonable time under federal law in which a local government must act on an application or request for authorization to place, construct, or modify WF facilities.
A small wireless facility within the meaning of 47 C.F.R. Section 1.6002(1) or any successor provision.
Methods of camouflaging or otherwise rendering minimally visible to the casual observer the visual appearance of WF towers, antenna, cabinets, and/or other related equipment. Stealth techniques render WF more visually appealing or blend WF into an existing structure and may utilize, but does not require, concealment of all components of the WF.
A portable wireless facility intended or used to provide personal wireless services on a temporary or emergency basis, such as a large scale special event in which more users than usually gather in a confined location or when a disaster disables permanent wireless facilities. Temporary wireless facilities include, without limitation, cells on wheels (COWS), sites on wheels (SOWs), cells on light trucks (COLTs) or other similarly portable wireless facilities not permanently affixed to the site on which it is located.
A freestanding mast, pole, monopole, guyed tower, lattice tower, free standing tower or other structure designed and primarily used to support WF antennae.
Transmissions through the airwaves including, but not limited to, infrared line of sight, cellular, PCS, microwave, satellite, radio, or television.
The transmitters, antenna structures and other types of installations used for the provision of personal wireless services at a fixed location, including, but not limited to, associated towers, support structures, base stations, poles, pipes, mains, conduits, ducts, pedestals, and electronic equipment, and antennas.
(Ord. 2570 § 1, 2020)
§ 40.29.040 Applicability-Exemptions.
(a)
Applicability. No person shall construct, install, attach, operate, collocate, modify, reconstruct, relocate, or otherwise deploy any WF within the city's jurisdictional and territorial boundaries, on private property and within the public right-of-way except in compliance with this article.
(b)
Other permits and regulatory approvals. In addition to any permit or approval required under this article, the applicant, owner or operator, who owns or controls an WF, must obtain all other permits and regulatory approvals (such as compliance with the California Environmental Quality Act) required by the city, any federal, state or local government agencies; and the applicant, owner or operator must comply with all applicable federal state and local government agency laws and regulations applicable to the WFs, including, without limitation, any applicable laws and regulations governing RF emissions.
(c)
Exemptions. Notwithstanding subsection (a), this article shall not apply to any of the following:
(1)
Television antennae, satellite dishes, and amateur radio facilities, whether interior or exterior, as follows:
(A)
Direct broadcast satellite (DBS) antennae and television broadcast service (TBS) antennae or other similarly scaled telecommunication device that neither exceeds one meter in diameter nor extends above the roof peak or parapet.
(B)
Ground mounted antennas and support structures: (i) located entirely on-site and not overhanging or extending beyond any property line; (ii) not located within any required front or side yard setback; and (iii) screened from public view to the extent practical.
(C)
Antenna height shall not exceed the maximum allowable building height for the zoning district in which it is located by more than ten feet. The antenna support structure shall not exceed a width or diameter of twenty-four inches.
(2)
WFs used only for public safety purposes, including transmitters, repeaters, and remote cameras so long as the facilities are designed to match the supporting structure.
(3)
WFs that are accessory to other publicly owned or operated equipment used for data acquisition such as irrigation controls, well monitoring, and traffic signal controls.
(4)
WFs erected and operated for emergency situations, as designated by the police chief, fire chief, or city manager so long as the facility is removed at the conclusion of the emergency.
(5)
Multipoint distribution service (MDS) antennas and other temporary mobile wireless service including mobile WFs and services providing public information coverage of news events (less than two-weeks duration).
(6)
Mobile WFs when placed on a site for less than seven consecutive days, provided any necessary building permit is obtained.
(7)
SES in a commercial or industrial zone that meet the following standards:
(A)
The antennas do not exceed two meters in either diameter or diagonal measurement.
(B)
The antennas are located as far away as possible from the edges of rooftops or are otherwise adequately screened to eliminate visibility from adjacent properties. The method of screening shall be approved by the director.
(8)
Commercial television (TVBS) and AM/FM radio antennas not extending more than twelve feet beyond the maximum allowed building height for the zone.
(9)
Personal wireless internet equipment, such as a wireless router, provided that the equipment is included entirely within a building or residence.
(10)
Any WF that is specifically and expressly exempt from local regulation pursuant to federal or state law, but only to the extent of any such exemption and provided that the applicant must provide the documentation necessary to prove the exemption to the satisfaction of the director.
(Ord. 2570 § 1, 2020)
§ 40.29.050 Conditionally permitted WFs.
§ 40.29.060 Permitted WFs.
§ 40.29.070 Prohibited WFs.
The following types of WFs are prohibited.
(a)
WFs that exceed current standards for RF emissions standards adopted by the FCC.
(b)
WFs in areas zoned or designated on the general plan land use map for residential uses; or within five hundred feet of areas so designated or zoned. Mixed use zones are subject to this prohibition.
(c)
WFs on sites containing existing or planned public or private school facilities; or within five hundred feet of said areas so designated or zoned.
(d)
WFs in designated sensitive habitat areas, such as habitat restoration areas, as designated by the city. The community development and sustainability department shall maintain a map identifying such areas.
(e)
WFs on a property that has been designated an historical resource in accordance with Article 40.23.
(Ord. 2570 § 1, 2020)
§ 40.29.080 Small wireless facilities.
Notwithstanding any other provision of the Davis Municipal Code to the contrary, all small wireless facilities shall be subject only to and must comply with the "Citywide Policy Regarding Permitting Requirements and Development Standards for Small Wireless Facilities" adopted by city council resolution. No person shall construct, install, attach, operate, collocate, modify, reconstruct, relocate, remove, or otherwise deploy any small wireless facility in violation of such policy.
(Ord. 2570 § 1, 2020)
§ 40.29.090 Applications.
(a)
Application required. All conditional use permit applications for WFs shall be submitted under the conditional use permit procedures set forth in Article 40.30 and must include the following:
(1)
All application materials generally required for a conditional use permit under Article 40.30.
(2)
Any other information or materials the director may require in order to properly assess a particular application. The director shall determine the required number, size, and contents of any required plans.
(3)
A vicinity map, including topographic areas, one-thousand-foot radius from proposed site/facility, residential and school zones and major roads/highways. The distance of the existing or proposed WF from existing residentially designated/zoned areas, existing residences, schools, major roads and highways, and all other telecommunication sites and facilities (including other providers locations) within a one-thousand-foot radius shall be delineated on the vicinity map.
(4)
A site plan that includes and identifies:
(A)
All facility related support and protection equipment;
(B)
A description of general project information, including the type of facility, number of antennas, height to top of antenna(s), radio frequency range, wattage output of equipment, and a statement of compliance with current FCC requirements;
(C)
Elevations of all proposed telecommunication structures and appurtenances, and composite elevations from the street(s) showing the proposed project and all buildings on the site.
(5)
Photo simulations, photo-montage, story poles, elevations and/or other visual or graphic illustrations necessary to determine potential visual impact of the proposed project. Visual impact demonstrations shall include accurate scale and coloration of the proposed facility. The visual simulation shall show the proposed structure as it would be seen from surrounding properties from perspective points to be determined in consultation with the community development and sustainability department prior to preparation. The city may also require the simulation analyzing stealth designs, and/or on-site demonstration mock-ups before the public hearing.
(6)
Landscape plan that shows existing vegetation, vegetation to be removed, and proposed plantings by type, size, and location. If deemed necessary, the director may require a report by a licensed landscape architect to verify project impacts on existing vegetation. This report may recommend protective measures to be implemented during and after construction. Where deemed appropriate by the community development and sustainability department, a landscape plan may be required for the entire parcel and leased area.
(7)
A written statement and supporting information, as requested by staff and/or the planning commission, regarding alternative site selection and co-location opportunities in the service area. The application shall describe the preferred location sites within the geographic service area, a statement why each alternative site was rejected, and a contact list used in the site selection process. Provide a statement and evidence of refusal regarding lack of co-location opportunities.
(8)
Noise and acoustical information for the base transceiver station(s), equipment buildings, and associated equipment such as air conditioning units and back-up generators. Such information shall be provided by a qualified firm or individual, approved by the city, and paid for by the project applicant.
(9)
An RF analysis conducted and certified by a state-licensed/registered RF engineer or qualified consultant to determine the maximum potential RF power density of the proposed WF at full build-out, along with a comparison of the maximum RF exposure calculations at ground level with the FCC's RF safety standards. The engineer shall use accepted industry standards for evaluating compliance with FCC-guidelines for human exposure to RF, such as OET 65, or any superseding reports/standards. The RF analysis shall be provided by a qualified firm or individual, approved by the city, and paid for by the project applicant.
(10)
A cumulative impact analysis for the proposed facility and other WFs on the project site or within one thousand three hundred feet of the proposed WF site. The analysis shall include all existing and proposed (application submitted to the community development and sustainability department) WFs on or near the site, dimensions of all antennas and support equipment on or near the site, power rating for all existing and proposed back-up equipment, and a report estimating the ambient RF fields and maximum potential cumulative electromagnetic radiation at, and surrounding, the proposed site that would result if the proposed WF were operating at full buildout.
(11)
Statement by the applicant of willingness to allow other carriers to co-locate on their facilities wherever technically and economically feasible and aesthetically desirable.
(12)
A signed copy of the proposed property lease agreement, exclusive of the financial terms of the lease, including provisions for removal of the WF and appurtenant equipment within ninety days of its abandonment and provisions for city access to the WF for removal where the provider fails to remove the WF and appurtenant equipment within ninety days of its abandonment pursuant to Section 40.29.170(b). The final agreement shall be submitted at the building permit stage.
(13)
An evidence of needs report detailing operational and capacity needs of the provider's system within the City of Davis and the immediate area adjacent to the city. The report shall detail how the proposed WF is technically necessary to address current demand and technical limitations of the current system, including technical evidence regarding significant gaps in the provider's coverage, if applicable, and that there are no less intrusive means to close that significant gap. Such report shall be evaluated by a qualified firm or individual, chosen by the city, and paid for by the project applicant. The qualified firm or individual chosen by the city may request additional information from the applicant to sufficiently evaluate the proposed project.
(14)
A security plan which includes emergency contact information, main breaker switch, emergency procedures to follow, and any other information as required by Section 40.29.180 and/or the director.
(15)
A description of the anticipated maintenance program and back-up generator power testing schedule.
(16)
Any other documents, information, and other materials the director deems necessary to make the findings required for approval and ensure that the WF will comply with applicable federal and state law, the City Code.
(17)
The name of the applicant, its telephone number and contact information, and if the applicant is a wireless infrastructure provider, the name and contact information for the wireless service provider that will be using the personal wireless services facility.
(18)
A complete description of the proposed WF and the work that will be required to install or modify it, including, but not limited to, detail regarding proposed excavations, if any; detailed site plans showing the location of the WF, and specifications for each element of the WF, clearly describing the site and all structures and facilities at the site before and after installation or modification; and describing the distance to the nearest residential dwelling unit and any historical structure within five hundred feet of the facility. Before and after three hundred sixty degree photosimulations must be provided.
(19)
Documentation sufficient to show that the proposed facility will comply with generally-applicable health and safety provisions of the City Code and the FCC's radio frequency emissions standards.
(20)
A copy of the lease or other agreement between the applicant and the owner of the property to which the proposed facility will be attached.
(21)
If the application is for an eligible facilities request, the application shall state as such and must contain information sufficient to show that the application qualifies as an eligible facilities request, which information must show that there is an existing WF that was approved by the city. Before and after three hundred sixty degree photosimulations must be provided, as well as documentation sufficient to show that the proposed facility will comply with generally-applicable health and safety provisions of the City Code and the FCC's radio frequency emissions standards.
(22)
Proof that notice has been mailed to owners of all property owners, and the resident manager for any multi-family dwelling unit that includes ten or more units, within three hundred feet of the proposed personal wireless services facility.
(23)
If applicant contends that denial of the application would prohibit or effectively prohibit the provision of service in violation of federal law, or otherwise violate applicable law, the application must provide all information on which the applicant relies on in support of that claim. Applicants are not permitted to supplement this showing if doing so would prevent the city from complying with any deadline for action on an application.
(24)
The electronic version of an application must be in a standard format that can be easily uploaded on a web page for review by the public.
(25)
Any required fees.
(26)
If the proposed WF is to be located in the public right-of-way, sufficient evidence of the permittee's regulatory status as a telephone corporation under the California Public Utilities Code (such as a valid CPCN).
(b)
The director may develop, publish, and from time to time update or amend any forms, checklists, guidelines, informational handouts, or other related materials that the director finds necessary, appropriate, or useful for processing any application governed under this article.
(c)
The director may establish any other reasonable rules and regulations as the director deems necessary or appropriate to organize, document and manage the application intake process, which may include without limitation regular hours for appointments with applicants. All such rules and regulations must be in written form and publicly stated to provide applicants with prior notice.
(d)
If deemed necessary by the director, the city may hire a third party independent RF engineer to evaluate any technical aspect or siting issues proposed in the application. The applicant will be responsible to pay for all charges of this analysis.
(e)
Pre-submittal conference.
(1)
The pre-submittal conference is intended to streamline the review process through informal discussion that includes, without limitation, the appropriate project classification and review process, any latent issues in connection with the proposed or existing wireless tower or base station, including compliance with generally applicable rules for public health and safety, potential concealment issues or concerns, if applicable; coordination with other 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 staff may provide informal feedback and guidance about whether such applications or other materials may be incomplete or unacceptable. The city shall use reasonable efforts to provide the applicant within an appointment within five working days after receiving a request and any applicable fee or deposit to reimburse the city for its reasonable costs to provide the services rendered in the pre-submittal conference.
(2)
A pre-submittal conference is required for all permitted and conditionally permitted WFs. Presubmittal conferences are allowed and encouraged, but not required, for small wireless facilities.
(f)
Submittal appointment. All applications must be submitted to the city at a pre-scheduled meeting with the director. The director shall use reasonable efforts to provide the applicant with an appointment within five working days after receipt of a request and if applicable, confirms that the applicant complied with the pre-submittal conference requirement. Any application received without an appointment, whether delivered in person, by mail or through any other means, will not be considered duly filed unless the applicant received a written exemption from the City of Davis at a pre-submittal conference.
(Ord. 2570 § 1, 2020; Ord. 2677, 11/4/2025)
§ 40.29.100 General requirements and design standards.
The following general requirements and development standards are applicable to all permitted and conditionally permitted WFs.
(a)
Upgrades. If technological improvements or developments occur that allow the use of materially smaller or less visually obtrusive equipment, the service provider may be required to replace or upgrade an approved WF upon application for a new permit in order to minimize the WF's adverse impacts on land use compatibility and aesthetics. This provision would only apply to the specific site where the application for modification is requested.
(b)
Business license. Each service provider with a WF in the city shall obtain a city business license prior to initiation of service.
(c)
Mixed-use projects. New mixed-use planned developments over fifty acres in size shall be encouraged to identify a preferred site or sites for WFs under the terms of the planned development. Such sites may be developed with WFs, even if subsequent land use development occurs.
(d)
Code compliance. All WFs shall be installed and maintained in compliance with the requirements of the Uniform Building Code, National Electrical Code, the Americans with Disabilities Act, as well as other restrictions specified in this article and other applicable provisions of the Davis Municipal Code.
(e)
Permit term. The city may impose a condition limiting the duration of any conditional use permit for a WF located on any property, but in no event shall such duration be less than ten years. Prior to expiration, the permittee may apply for an extension of its conditional use permit. An extension of the conditional use permit would be for a period of time determined by the city, and would be subject to the then existing requirements of this article. The city may approve, modify, or deny the application for extension subject to the then existing requirements of this article and applicable law.
(f)
Height. All WFs shall be designed to the minimum functional height required.
(1)
The height of the WF shall be measured from the natural, undisturbed ground surface below the center of the base of the structure to either the top of the structure or the highest antenna or related equipment attached thereto, whichever is higher.
(2)
If the WF is not attached to a building, the height of the facility shall be reviewed for the visual impact on the surrounding land uses and the community.
(g)
Setbacks.
(1)
All WFs shall comply with the building setbacks applicable to the zoning district in which it is located, provided that in no instance, shall the WF (including antennae and equipment) be located closer than five feet to any property line unless a reduced setback is approved pursuant to a conditional use permit based on a finding that aesthetic impacts would be reduced and/or open space improved.
(2)
No WF shall be located within any required front or side yard unless approved by pursuant to a conditional use permit based on a finding that aesthetic impacts would be reduced and/or open space improved.
(h)
Landscaping. Landscaping shall be used for screening as appropriate to reduce visual impacts of WFs.
(1)
Existing landscaping in the vicinity of a proposed WF shall be protected from damage during and after construction. Submission of a tree protection plan may be required to ensure compliance with this requirement.
(2)
Offsite landscaping may be required to mitigate off site impacts, subject to willing property owners. Additional landscaping may also be required in the public right-of-way to obscure visibility of a WF from passing motorists, bicyclists, and pedestrians.
(i)
Towers. Towers, where utilized, must be monopoles. Lattice towers are prohibited. Monopoles shall not exceed four feet in diameter unless technical evidence is provided showing that a larger diameter is necessary to attain the proposed tower height and the proposed tower height is necessary.
(j)
Stealth design. All WFs shall employ state of the art stealth technology and techniques shall be used, as appropriate to the site and the facility, to minimize visual impacts and provide appropriate screening to make the WF as visually inconspicuous as possible and to hide the WF from the predominant views from surrounding properties. In the case of WF mounted on existing structures, the WF shall also be located in a manner so as to minimize visual impacts from surrounding properties and PROW. Where no stealth technology is proposed for the site, a detailed analysis as to why stealth technology is physically and technically infeasible for the project shall be submitted with the application.
(k)
Building mounted antenna. All flush mounted antenna and support structures mounted on a building shall be painted to be architecturally compatible with the building on which it is located or painted to minimize the visual impacts where the structures extend above the roof line and minimize visual impacts from surrounding properties. The specific color is subject to city review based on a visual analysis of the particular site.
(l)
Accessory equipment. All accessory equipment shall be designed and screened from public view. The specific design is subject to city review based on a visual analysis of the particular site.
(m)
Collocation. Support structures and site area for WFs shall be designed and of adequate size to allow at least one additional service provider to potentially collocate on the structure, subject to any specific design standards and aesthetic considerations required as a condition of approval.
(n)
Fencing. All proposed fencing shall be decorative and compatible with the adjacent buildings and properties within the surrounding area and shall be designed to limit and/or allow for removal of graffiti.
(o)
Noise. WFs and all related equipment must comply with all noise regulations and shall not exceed such regulations, either individually or cumulatively. The city may require the applicant to incorporate appropriate noise baffling materials and/or strategies to avoid any ambient noise from equipment reasonably likely to exceed the applicable noise regulations. Back-up generators shall only be operated during power outages and/or for testing and maintenance purposes on weekdays between the hours of 9:00 a.m. and 4:00 p.m.
(p)
Security. WFs may incorporate reasonable and appropriate site security measures, such as locks and anti-climbing devices to prevent unauthorized access, theft or vandalism. All WFs shall be constructed of graffiti resistant materials. Barbed wire, razor wire, electrified fences or any similar security measures are prohibited.
(q)
Power sources. Permanent backup power sources that emit noise or exhaust fumes are prohibited.
(r)
Lighting. WFs may not include exterior lights other than as may be required by an applicable governmental regulation or applicable pole owner policies related to public or worker safety. All exterior lights permitted or required to be installed must comply with the City's Dark Sky Ordinance, No. 1966, if applicable, and shall be installed in locations and within enclosures that mitigate illumination impacts on other properties to the maximum extent feasible. The provisions of this subsection shall not be interpreted to prohibit installations on street lights or the installation of luminaires on new poles when required.
(s)
Signage. All WFs must include signage that accurately identifies the equipment owner/operator, the owner/operator's site name or identification number and a toll free number to the owner/operator's network operations center. WFs shall not bear any other signage or advertisements unless expressly approved by the city, required by law or recommended under governmental agencies for compliance with RF emissions regulations.
(t)
Utilities. All cables and connectors for telephone, primary electric and other similar utilities must be routed underground to the extent feasible in conduits large enough to accommodate future collocated WFs. To the extent feasible, undergrounded cables and wires must transition directly into the pole base without any external cabinet, doghouse, or similar equipment housing. Meters, panels, disconnect switches and other associated improvements must be placed in inconspicuous locations to the extent feasible. The city shall not approve new overhead utility lines or service drops merely because compliance with the undergrounding requirements would increase the project cost. Microwave or other wireless backhaul is discouraged when it would involve a separate and unconcealed antenna.
(u)
Public safety.
(1)
No WF shall interfere with access to any fire hydrant, fire station, fire escape, water valve, underground vault, valve housing structure, or any other public health or safety facility. No person shall install, use, or maintain any WF, which in whole or in part rest upon, in or over any public right-of-way, when such installation, use or maintenance endangers or is reasonably likely to endanger the safety of persons or property, or when such site or location is used for public utility, public transportation purposes, or other governmental purpose, or when such facility unreasonable interferes with or unreasonably impedes the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into to egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near the location where the WFs are located.
(2)
For the protection of emergency response personnel, each WF shall have a main breaker switch to disconnect electrical power at the site. For co-location WF sites, a single main switch shall be installed to disconnect electrical power for all carriers at the site in the event of an emergency.
(3)
WFs shall not be operated in any manner that would cause interference with the city's existing and/or future emergency telecommunication system. If such interference occurs, it is the service provider's responsibility to remedy the issue to the satisfaction of the city.
(v)
Security plan. A security plan, subject to the director's approval, must be kept on file with the city. Permittee must comply with the security plan at all times.
(w)
Indemnification—Liability. The following requirements shall be conditions of approval of all permits approved by the city for any WF.
(1)
The permittee shall defend, indemnify, and hold harmless the City of Davis, its officers, employees, or agents from or against any action or challenge to attack, set aside, void, or annul any approval or condition of approval of the City of Davis concerning this approval, including, but not limited to, any approval or condition of approval of the city council, planning commission, or director.
(2)
The permittee shall further defend, indemnify and hold harmless the City of Davis, its officers, agents, and employees from any damages, liabilities, claims, suits, or causes of action of any kind or form, whether for personal injury, death or property damage, arising out of or in connection with the activities or performance of the permittee, its agents, employees, licensees, contractors, subcontractors, or independent contractors, pursuant to the approval issued by the city.
(3)
WF operators and permittees shall be strictly liable for interference their WF causes with city communications systems and they shall be responsible for the all costs associated with determining the source of the interference, eliminating the interference (including, but not limited to, filtering, installing cavities, installing directional antennas, powering down systems, and engineering analysis), and arising from third party claims against the city attributable to the interference.
(4)
The city shall promptly notify the permittee of any claim, action, or proceeding concerning the project and the city shall cooperate fully in the defense of the matter. The city reserves the right, at its own option, to choose its own attorney to represent the city, its officers, employees and agents in the defense of the matter.
(5)
Failure to comply with any of these conditions shall constitute grounds for revoking a WF permit.
(Ord. 2570 § 1, 2020)
§ 40.29.110 Public hearing-Noticing.
Public hearings on proposed conditionally permitted WFs shall be conducted and noticed in accordance with Sections 40.30.070 of the Davis Municipal Code. The noticing radius for proposed WFs shall be five hundred feet. The noticing radius shall be measured from the outer boundary of the subject parcel, or, for those facilities in the PROW, from the outer boundary of the closest parcel adjacent to the subject PROW site.
(Ord. 2570 § 1, 2020)
§ 40.29.120 Findings.
In addition to the required findings for a conditional use permit, and other standards set forth in this article, the following findings shall be met prior to approval of any WF requiring a conditional use permit:
(a)
The proposed WF has been designed to minimize its visual and environmental impacts, including the utilization of stealth technology, when applicable.
(b)
The proposed site has the appropriate zoning, dimensions, slope, design, and configuration for the development of a WF.
(c)
That proposed site will be appropriately landscaped as required by this article.
(d)
Based on information submitted, the proposed WF is in compliance with all FCC and California Public Utilities Commission (PUC) requirements.
(Ord. 2570 § 1, 2020)
§ 40.29.130 Regulatory compliance and monitoring.
(a)
Permittees shall ensure that its WF complies at all times with all current regulatory and operational requirements, including, but not limited to, RF emission standards adopted by the FCC, antenna height standards adopted by the Federal Aviation Administration, and any other regulatory or operational standard established by any other government agency with regulatory authority over the WF.
(b)
No WF, either by itself or in combination with other such facilities, shall generate at any time, electromagnetic or RF emissions in excess of the FCC-adopted standards for human exposure, as they may be amended over time.
(c)
The permittee shall, at its own expense, obtain and maintain the most current information from the FCC regarding allowable RF emissions and all other applicable regulations and standards, and shall file a monitoring report documenting its WF's current emissions (including field measurements). The field measurements shall be conducted in accordance with accepted industry standards. The report shall include findings from a qualified engineer or consultant as to whether the monitoring results are in compliance with FCC standards.
(1)
The monitoring report shall be filed with the director as follows:
(A)
For WFs approved after June 1, 2012, within five days of the WF's first day of operation (i.e., within five days of when the WF "goes live"), or as set forth in the permit issued under this article;
(B)
For WFs approved after June 1, 2012, annually on the anniversary of the initial compliance report submittal date, and for existing WFs, upon request by the director and annually thereafter;
(C)
Within six months of the effective date of any amendment or revision of applicable regulatory and operational standards, unless the controlling agency mandates a more stringent compliance schedule, in which case the report shall be filed consistent with the more stringent compliance schedule;
(D)
Upon any change or alteration in the WF's equipment or operation, including, but not limited to, addition of new antennas, change in frequency use, increase in effective radiated power, or addition of a new wireless provider to an existing WF (e.g., addition of a new tenant to a DAS WF).
(2)
At the director's sole discretion, a qualified independent RF engineer or consultant, selected by and under contract to the city, may be retained to review and verify monitoring reports for compliance with FCC regulations. All costs associated with the city's review of these monitoring reports shall be the responsibility of the permittee, which shall reimburse the city for the review costs within thirty days of the city's demand for reimbursement.
(3)
If a new WF is not in compliance with applicable FCC standards and conditions of approval, a final building permit shall not be issued, any operation of the WF shall cease immediately, and the permittee will be subject to the revocation procedures under this article if compliance is not achieved within a reasonable period as specified by the director following written notice and an opportunity to cure.
(Ord. 2570 § 1, 2020)
§ 40.29.140 Existing conforming and legal nonconforming WFs.
(a)
Except as may otherwise be required by state or federal law (as in the case of an eligible facility request), modification of an existing legal nonconforming WF shall be subject to same permitting requirements as a new WF.
(Ord. 2570 § 1, 2020)
§ 40.29.150 Periodic review.
The city may conduct a periodic review of any WF to consider whether or not the facility is conforming with the conditions of its entitlements and permits.
(Ord. 2570 § 1, 2020)
§ 40.29.160 Transfer of operation.
The permittee shall not assign or transfer any interest in its permits for WFs without advance written notice to the director. The notice shall specify the identity of the assignee or transferee of the permit, as well as the assignee or transferee's address, telephone number, name of primary contact person(s), and other applicable contact information, such as an e-mail address or facsimile number. The new assignee or transferee shall comply with all of the WF's conditions of approval.
(Ord. 2570 § 1, 2020)
§ 40.29.170 Abandonment or discontinuation of use.
(a)
All permittees who intend to abandon or discontinue the use of any WF shall notify the city of such intentions no less than sixty days prior to the final day of use. Said notification shall be in writing, shall specify the date of termination, the date the WF will be removed, and the method of removal.
(b)
Non-operation, disuse (including, but not limited to, cessation of wireless services) or disrepair for ninety days or more shall constitute abandonment by the permittee under this article or any predecessors to this article. The director shall send a written notice of abandonment to the permittee.
(c)
Upon abandonment, the conditional use permit shall become null and void. Absent a timely request for a hearing pursuant to subsection (e) of this section, the WF shall be physically removed at the permittee's expense no more than ninety days from the date of the abandonment notice. The WF shall be removed in accordance with applicable health and safety requirements and the site upon which the WF was located shall be restored to the condition that existed prior to the installation of the WF, or as required by the director. The permittee shall be responsible for obtaining all necessary permits for the removal of the WF and site restoration.
(d)
At any time after ninety days following abandonment, the director may have the WF removed and restore the premises as he/she deems appropriate. The city may, but shall not be required to, store the removed WF (or any part thereof). The WF permittee shall be liable for the entire cost of such removal, repair, restoration, and storage. The city may, in lieu of storing the removed WF, convert it to the city's use, sell it, or dispose of it in any manner deemed appropriate by the city.
(e)
The permittee may request a hearing before a hearing officer appointed by the city manager regarding the notice of abandonment, provided a written hearing request is received by the director within ten days of the date of the notice of abandonment. The appeal hearing shall be conducted pursuant to Section 23.04.060(d). The hearing officer shall issue a written decision. The decision of the hearing officer regarding abandonment of the WF shall constitute the final administrative decision of the city and shall not be appealable to the city council or any committee or commission of the city. Failure to file a timely hearing request means the notice of abandonment is final and the WF shall be removed within ninety days from the date of the abandonment notice.
(f)
Prior to commencing operations of a WF, the permittee shall file with the city, and shall maintain in good standing throughout the term of its approval, a bond or other sufficient security in an amount equal to the cost of physically removing the WF and all related facilities and equipment on the site, as determined by the director. However, the city may not require the owner or operator to post a cash deposit or establish a cash escrow account as security under this subsection. In setting the amount of the bond or security, the director shall take into consideration the permittee's estimate of removal costs.
(Ord. 2570 § 1, 2020)
§ 40.29.180 Violations-Public nuisance.
Any violation of this article is deemed a public nuisance subject to abatement and shall, in addition to any other available legal penalty or remedy, constitute grounds for revocation of any permits and/or approvals granted under this article or any predecessors to this article.
(Ord. 2570 § 1, 2020)
§ 40.29.190 Revocation of permit.
(a)
Permittees shall fully comply with all conditions related to any permit or approval granted under this article or any predecessors to this article. Failure to comply with any condition of approval or maintenance of the WF in a matter that creates a public nuisance or otherwise causes jeopardy to the public health, welfare or safety shall constitute grounds for revocation. If such a violation is not remedied within a reasonable period, following written notice and an opportunity to cure, the director may schedule a public hearing before the planning commission to consider revocation of the permit. The planning commission revocation action may be appealed to the city council pursuant to Article 40.35.
(b)
If the permit is revoked pursuant to this section, the permittee shall remove its WF at its own expense and shall repair and restore the site to the condition that existed prior to the WF's installation or as required by the director within ninety days of revocation in accordance with applicable health and safety requirements. The permittee shall be responsible for obtaining all necessary permits for the WF's removal and site restoration.
(c)
At any time after ninety days following permit revocation, the director may have the WF removed and restore the premises as he/she deems appropriate. The city may, but shall not be required to, store the removed WF (or any part thereof). The WF permittee shall be liable for the entire cost of such removal, repair, restoration, and storage. The city may, in lieu of storing the removed WF, convert it to the city's use, sell it, or dispose of it in any manner deemed appropriate by the city.
(Ord. 2570 § 1, 2020)
§ 40.29.200 Mandatory removal and relocation.
If a WF must be modified or relocated because of an abandonment, undergrounding of utilities, or change of grade, alignment or width of any street, sidewalk or other public facility (including the construction, maintenance, or operation of any other city underground or aboveground facilities, including, but not limited to, sewers, storm drains, conduits, gas, water, electric or other utility systems, or pipes owned by city or any other public agency), the permittee shall modify, remove, or relocate its WF, or portion thereof, as necessary without cost or expense to the city. Said modification or removal of a WF shall be completed within ninety days of notification by the city unless exigencies dictate a different period of time as established by the director. In the event a WF is not modified or removed within the requisite period of time, the city may cause the same to be done at the sole expense of permittee. Further, in the event of an emergency, the city may modify, remove, or relocate WFs without prior notice to permittee provided permittee is notified within a reasonable period thereafter. A permittee electing to relocate a WF that was removed pursuant to this section shall be subject to the requirements of this article applicable to the proposed relocation site.
(Ord. 2570 § 1, 2020)
§ 40.29.210 Appeals.
Any person dissatisfied with the decision to approve, deny, or revoke a conditional use permit for the construction or modification of a WF subject to this article may file an appeal in accordance with Article 40.35.
(Ord. 2570 § 1, 2020)
§ 40.29.220 Effect of state or federal law.
(a)
Ministerial permits. In the event the city attorney determines that state or federal law prohibits any discretionary permitting requirements of this article, all provisions of this article shall be apply with the exception that the required permit shall be reviewed and administered as a ministerial permit by the director rather than as a discretionary permit. Any conditions of approval set forth in this article or deemed necessary by the director shall be imposed and administered as reasonable time, place, and manner rules. If the city attorney subsequently determines that the law has changed and that discretionary permitting has become permissible, the city attorney shall issue such determination in writing with citations to legal authority and all discretionary permitting requirements shall be reinstated. The city attorney's written determinations under this section shall be a public record.
(b)
Exceptions. Exceptions to any provision of this article, including, but not limited to, exceptions from findings that would otherwise justify denial, may be granted pursuant to a conditional use permit subject to the following:
(1)
An applicant must request the exception at the time its application is submitted. The request must include both the specific provision(s) of this article from which the exception is sought and the legal and factual basis of the request. Any request for an exception after the city has deemed an application complete shall be treated as a new application.
(2)
The exception shall only be granted upon a finding that application of the provision of this article from which the exception is sought would in the case of the proposed WF violate federal law, state law, or both. The applicant shall have the burden of proof as to this finding.
(3)
The city may 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. 2570 § 1, 2020)