Purpose. This subsection is intended to comply with the city's obligations under 47 C.F.R. Section 1.6001 et seq., which implements 47 U.S.C. Sections 332(c)(7) and 1455. This subsection creates a process for the city to review an application for a small wireless facility permit submitted by an applicant who asserts that a proposed collocation of a small wireless facility using an existing structure or the deployment of a small wireless facility using a new structure, and the modifications of such small wireless facilities, is covered by federal law and to determine whether the city must approve the proposed collocation or deployment.

Applicability. An applicant seeking approval of a collocation to a structure or a deployment to a new structure which the applicant contends is within the protection of 47 U.S.C. Section 1455 shall apply for the following at the same time: (i) a small wireless facility permit; (ii) an encroachment permit from the public works department (if required by applicable provisions of this code); and (iii) any other permit required by applicable provisions of this code including a building permit, an electrical permit, or a tree report under Chapter 17.21.

City-owned municipal wireless communications facilities.

Amateur radio facilities that are under seventy feet in height and are owned and operated by a federally licensed amateur radio station operator or are used exclusively for receive-only antennas.

Over-the-air receiving devices, as defined by the FCC at 47 C.F.R. Section 1.4000, with a maximum diameter of one meter (thirty-nine inches) for residential installations, and two meters (seventy-eight inches) for nonresidential installations, and designed, installed, and maintained in compliance with the FCC and the California Public Utilities Commission (hereinafter referred to as the "CPUC") regulations.

A clear and complete written analysis that explains how the proposed design complies with the applicable design standards under this chapter to the maximum extent feasible. A complete design justification must identify all applicable standards under this chapter and provide a factually detailed reason why the proposed design either complies or the requirement is preempted by applicable state or federal law; and

Scaled visual simulations showing the proposed facility superimposed on photographs of the site and surroundings, to assist the commission in assessing the visual impacts of the proposed facility and its compliance with the provisions of this chapter; and

For new facilities, the plans shall include (in plan view and elevations) a scaled depiction of the maximum permitted increase as authorized by Section 6409(a) of the 2012 Middle Class Jobs and Tax Relief Act, Title 47, United States Code, Section 1455 using the proposed project as a baseline; and

A siting analysis which identifies a minimum of two other feasible locations within or without the city which could serve the area intended to be served by the facility, unless the applicant provides compelling technical reasons for providing fewer than the minimum. The alternative site analysis shall include at least one collocation site; and

An affirmation, under penalty of perjury, that the proposed installation will be FCC compliant, in that it will not cause members of the general public to be exposed to RF levels that exceed the levels deemed safe by the FCC; and

A statement signed by a person with legal authority to bind the applicant attesting under penalty of perjury to the accuracy of the information provided in the application; and

A noise study, prepared by a qualified engineer, for the proposed wireless communication facility including, but not limited to, equipment, such as air conditioning units and back-up generators; and

A written statement of the applicant's willingness to allow other carriers to collocate on the proposed wireless communication facility wherever technically and economically feasible and aesthetically desirable; and

Such other information as the director shall establish from time to time pursuant to the Permit Streamlining Act, Government Code Section 65940, or to respond to changes in law or technology.

Application Form. The city's standard application form, available on the city's website or from the planning department, as may be amended.

Application Fee. An application fee as established by the city council by resolution.

Independent Consultant Deposit. An independent consultant fee deposit, if required by the city council by resolution, to reimburse the city for its costs to retain an independent consultant to review the technical aspects of the application.

Site and Construction Plans. Complete and accurate plans, drawn to scale, signed, and sealed by a California-licensed engineer, land surveyor, and/or architect, which include the following items:

Visual Simulations. A visual analysis that includes: (a) scaled visual simulations that show unobstructed before-and-after construction daytime and clear-weather views from at least four angles, together with a map that shows the location of each view angle; (b) a color and finished material palette for proposed screening materials; and (c) a photograph of a completed facility of the same design and in roughly the same setting as the proposed wireless communication facility.

Statement Asserting that Section 6409 Applies. A written statement asserting that the proposed collocation or modification is an "eligible facilities request" and does not result in a substantial change in the physical dimensions of the facility's wireless tower or base station, as defined by Section 6409, Title 47, United States Code, Section 1455, and justifying that assertion. The written statement shall identify and discuss each required finding for approval of a wireless facility minor modification permit and explain the facts that justify the request for the director to make each finding.

Prior Permits. True and correct copies of all previously issued permits, including all required conditions of approval and a certification by the applicant that the proposal will not violate any previous permit or conditions of approval or why any violated permit or condition does not prevent approval under Title 47, United States Code, Section 1455 and the FCC's regulations implementing this federal law.

Affirmation of Radio Frequency Standards Compliance. An affirmation, under penalty of perjury, that the proposed installation will be FCC compliant, because it will not cause members of the general public to be exposed to RF levels that exceed the levels deemed safe by the FCC.

Structural Analysis. A structural analysis, prepared, signed, and sealed by a California-licensed engineer that assesses whether the proposed wireless communications facility complies with all applicable building codes.

Noise Study. A noise study, prepared, signed, and sealed by a California-licensed engineer, for the proposed wireless communication facility including, but not limited to, equipment, such as air conditioning units and back-up generators; or a written statement signed and sealed by a California-licensed engineer indicating that the proposed modification(s) will not alter the existing noise levels or operational equipment which creates noise.

Other Permits. An application for a wireless facility minor modification permit shall include all permit applications with all required application materials for each and every separate permit required by the city for the proposed collocation or modification to an existing personal wireless communications facility, including a building permit, an encroachment permit (if applicable), and an electrical permit (if applicable).

Other Information. Such other information as the city may require, as specified in publicly available materials, including information required as stated on the city's website.

Application Form. The city's standard application form, available on the city's website or from the planning and building department, as may be amended.

Application Fee. An application fee as established by the city council by resolution.

Independent Consultant Deposit. An independent consultant fee deposit, if required by the city council by resolution, to reimburse the city for its costs to retain an independent consultant to review the technical aspects of the application.

Site and Construction Plans. Complete and accurate plans, drawn to scale, signed, and sealed by a California-licensed engineer, land surveyor, and/or architect, which include the following items:

Visual Simulations. A visual analysis that includes: (1) scaled visual simulations that show unobstructed before-and-after construction daytime and clear-weather views from at least four angles, together with a map that shows the location of each view angle; (2) a color and finished material palate for proposed screening materials; and (3) a photograph of a completed facility of the same design and in roughly the same setting as the proposed wireless communication facility.

Statement Asserting that 47 C.F.R. Section 1.6001 et seq. Applies. A written statement asserting that the proposed collocation or deployment is subject to 47 C.F.R. Section 1.6001 et seq.

Prior Permits. True and correct copies of all previously issued permits, including all required conditions of approval and a certification by the applicant that the proposal will not violate any previous permit or conditions of approval or why any violated permit or conditions do not prevent approval under 47 U.S.C. Section 1455 and the FCC's regulation implementing this federal law.

Affirmation of Radio Frequency Standards Compliance. An affirmation, under penalty of perjury, that the proposed installation will be FCC compliant, because it will not cause members of the general public to be exposed to RF levels that exceed the MPE levels deemed safe by the FCC. A copy of the fully completed FCC form "A Local Government Official's Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance: Appendix A" titled "Optional Checklist for Determination of Whether a Facility is Categorically Excluded" for each frequency band of RF emissions to be transmitted from the proposed facility upon the approval of the application. All planned radio frequency emissions on all frequency bands must be shown on the Appendix A form(s) attached to the application. All planned radio frequency emissions are to be entered on each Appendix A form only in wattage units of "effective radiated power."

Structural Analysis. A structural analysis, prepared, signed, and sealed by a California-licensed engineer, for the proposed small wireless facility including, but not limited to, equipment, such as air conditioning units and back-up generators; or a written statement signed and sealed by a California-licensed engineer indicating that the proposed facility will not alter the existing noise levels or operational equipment which creates noise.

Other Permits. An application for a small wireless facility permit shall include all permit applications with all required application materials for each and every separate permit required by the city for the proposed collocation or deployment, including a building permit, an encroachment permit (if applicable) and an electrical permit (if applicable).

The applicant has demonstrated by clear and convincing evidence that the new or substantially modified wireless facility is necessary to close a significant gap in the applicant's wireless service coverage. Such evidence shall include in-kind call testing of existing facilities within the area the applicant contends is a significant gap in coverage to be served by the facility.

The applicant has demonstrated by clear and convincing evidence that no feasible alternate site exists that would close a significant gap in the operator's wireless service coverage which alternative site is a more appropriate location for the facility under the standards of this section.

The proposed new or substantially modified wireless facility complies with all design standards and other requirements of this section, including the requirement that new or substantially modified facilities be camouflaged.

The proposed new or substantially modified wireless facility is consistent with the general plan and any other applicable provisions of this code.

Public notice of the proposed facility was provided under the standards set forth in Government Code Sections 65090 and 65091.

The proposed facility has been designed to blend with the surrounding environment, with minimal visual impact on the public right-of-way.

The proposed facility will not have an adverse impact on the use of the public right-of-way, including, but not limited to, the safe movement and visibility of vehicles and pedestrians.

An applicant seeking approval of a collocation or modification to an existing wireless communication facility which the applicant contends is within the protection of Title 47, United States Code, Section 1455, and qualifies as a minor or not substantial modification, must apply for and receive approval of a wireless facility permit for a minor modification in compliance with this section. This subsection is intended to comply with the city's obligations under federal law, which provides that the city "may not deny, and shall approve 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." (47 U.S.C. Section 1455, subd. (a)(1), adopted as Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, Pub.L No. 112-96, 126 Stat. 156.) This subsection sets forth standards for the city to review an application for a wireless facility minor modification permit submitted by an applicant who asserts that a proposed collocation or modification to an existing personal wireless communications facility is covered by this federal law. The city's review of these applications is structured to comply with the requirements of Title 47, United States Code, Section 1455 and the FCC's regulations implementing this federal law, adopted on December 17, 2014, and codified at 47 C.F.R. Section 1.40001 et seq. This subsection is intended to promote the public's health, safety, and welfare, and shall be interpreted consistent with the Federal Communications Act of 1996 (Pub.L. No. 104-104, 110 Stat. 56), Title 47, United States Code, Section 1455, and applicable FCC regulations and court decisions considering these laws and regulations. Under federal law, the city must approve or deny an application for a wireless facility permit for a minor modification, together with any other city permits required for a proposed wireless facility minor modification, within sixty days after the applicant submits the application for a wireless facility permit which the applicant contends is protected by Title 47, United States Code, Section 1455, unless tolled due to issuance of any notice of incomplete filing or by mutual agreement between the city and the applicant. Under federal law, failure to act on a wireless facility permit application for a minor modification within the sixty-day review period, excluding tolling period, may result in the permit being deemed granted by operation of law. In that case, the applicant must still comply with the standard conditions of approval in this section.

The director must approve an application for a wireless facility permit for a minor modification that is a collocation or modification to an existing wireless tower or base station only which the applicant contends is within the protection of Title 47, United States Code, Section 1455 if each of the following findings can be made:

Application Review. Each application for a new or modified small wireless facility permit shall be reviewed by the director. The city must approve or deny an application for a small wireless facility permit, together with any other city permits required for a proposed small wireless facility, within sixty days after the applicant submits an application to collocate a small wireless facility using an existing structure, and within ninety days after the applicant submits an application to deploy a small wireless facility using a new structure. The director shall provide written notice to all property owners within three hundred feet of the site of a proposed small wireless facility upon approval of an application for a small wireless facility permit.

Tolling Period. Unless a written agreement between the applicant and the city provides otherwise, the application is tolled when the city notifies the applicant within ten days of the applicant's submission of the application that the application is materially incomplete and identifies the missing documents or information. The shot clock may again be tolled if the city provides notice within ten days of the application's resubmittal that it is materially incomplete and identifies the missing documents or information. For an application to deploy small wireless facilities, if the city notifies the applicant on or before the tenth day after submission that the application is materially incomplete, and identifies the missing documents or information and the rule or regulation creating the obligation to submit such documents or information, the shot clock date calculation will restart at zero on the date the applicant submits a completed application.

Shall, with respect to its pole-mounted components, be located in a concealed manner on an existing or replaced utility pole; or

Shall be located in a concealed wireless facility consistent with other existing natural or manmade features in the rights-of-way near the location where the wireless facility is to be located; or

Shall, with respect to its pole-mounted components, be located in a concealed wireless facility on a new utility pole, if there are no reasonable alternatives, and the applicant is authorized to construct new utility poles.

To the extent the structures are utility boxes within the meaning of this code, be reviewed and subject to the same approvals as utility boxes installed by other communications companies; and

Shall be located flush to grade where necessary to avoid incommoding the public or creating a hazard; and

To the extent permitted aboveground, shall otherwise be appropriately screened, landscaped and camouflaged to blend in with the surroundings, and nonreflective paints shall be used. All ground-mounted outdoor transmission equipment and associated enclosures or shelters shall be screened. All wires, cables, and any other connections shall be completely concealed from public view to the maximum extent feasible.

Employ the least intrusive design for the proposed location in terms of size, mass, visual and physical impact, and effects on properties from which the wireless facility is visible; and

Accommodate collocation consistent with the other design requirements of this section; and

Be consistent with the general plan.

For proximity-triggered or timer-controlled security lighting; or

To comply with regulations for the illumination of any flag attached to a wireless facility; or

Where such lighting is required by the director to protect public health or welfare, or as part of the camouflage for a particular design which includes street or decorative lighting as integral to the design and as approved by the director.

The director shall approve or deny an application to collocate a small wireless facility using an existing structure by evaluating the following standards:

The director must approve an application to deploy a small wireless facility using a new structure only if each of the following findings can be made:

Small Cell Location and Configuration Preferences. The city prefers that small wireless facilities in the public right-of-way or in the equivalent right-of-way on homeowners' association owned lands and private streets be configured on the following support structures, in order of preference from most to least preferred: (1) existing or replacement street light standard; (2) existing or replacement concrete or steel utility pole; (3) existing or replacement wood utility pole; (4) new street light standard; (5) new utility pole. The city prefers that small wireless facilities outside the public right-of-way be configured on the following support structures, in order of preference from most to least preferred: (1) on existing, approved wireless facility support structures operating in compliance with this code; (2) on existing buildings or nontower structures; (3) on existing or replacement utility poles or towers; (4) in new towers meeting the height requirements of the applicable FCC regulations.

Wireless communication facilities that are no longer operating shall be removed at the expense of the applicant, operator, or owner no later than ninety days after the discontinuation of use. Disuse for ninety days or more shall also constitute a voluntary termination by the applicant of any land use entitlement under this code or any predecessor to this code.

The director shall send a written notice of the determination of nonoperation to the owner and operator of the wireless communication facility, who shall be entitled to a hearing on that determination before the city manager or a hearing officer appointed by the city manager; provided, that written request for such a hearing is received by the city clerk within ten days of the date of the notice. No further appeal from the decision of the city manager may be had other than pursuant to Code of Civil Procedure Section 1094.5. Upon a final decision of the city manager or the running of the time for a request for a hearing without such a request, the operator shall have ninety days to remove the facility.

The operator of a facility shall notify the city in writing of its intent to abandon a permitted site. Removal shall comply with applicable health and safety regulations. Upon completion of abandonment, the site shall be restored to its original condition at the expense of the applicant, operator, or owner.

All facilities not removed within the required ninety-day period shall be in violation of this code. In the event the city removes a disused facility upon the failure of the applicant, operator, or owner to timely do so, the applicant, operator, and owner shall be jointly and severally liable for the payment of all costs and expenses the city incurs for the removal of the facilities, including legal fees and costs.

No Automatic Renewal. The grant or approval of a wireless facility minor modification permit shall not renew or extend the underlying permit term.

Compliance with Previous Approvals. The grant or approval of a wireless facility minor modification permit shall be subject to the conditions of approval of the underlying permit, except as may be preempted by Section 6409(a) of the 2012 Middle Class Jobs and Tax Relief Act, Title 47, United States Code, Section 1455.

As-Built Plans. The applicant shall submit to the director an as-built set of plans and photographs depicting the entire personal wireless communications facility as modified, including all transmission equipment and all utilities, within ninety days after the completion of construction.

Indemnification. To the fullest extent permitted by law, the applicant and any successors and assigns, shall defend, indemnify and hold harmless city, its employees, agents and officials, from and against any liability, claims, suits, actions, arbitration proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, but not limited to, actual attorney fees, litigation expenses and court costs of any kind without restriction or limitation, incurred in relation to, as a consequence of, arising out of or in any way attributable to, actually, allegedly or impliedly, in whole or in part, related to the wireless facility minor modification permit and the issuance of any permit or entitlement in connection therewith. The applicant shall pay such obligations as they are incurred by city, its employees, agents and officials, and in the event of any claim or lawsuit, shall submit a deposit in such amount as the city reasonably determines necessary to protect the city from exposure to fees, costs or liability with respect to such claim or lawsuit.

Compliance with Applicable Laws. The applicant shall comply with all applicable provisions of this code, any permit issued under this code, and all other applicable federal, state, and local laws. Any failure by the city to enforce compliance with any applicable laws shall not relieve any applicant of its obligations under this code, any permit issued under this code, or all other applicable laws and regulations.

Compliance with Approved Plans. The proposed project shall be built in compliance with the approved plans on file with the planning department.

Violations. The facility shall be developed, maintained, and operated in full compliance with the conditions of the wireless facility minor modification permit, any other applicable permit, and any law, statute, ordinance or other regulation applicable to any development or activity on the site. Failure of the applicant to cease any development or activity not in full compliance shall be a violation of these conditions. Any violation of this code, the conditions of approval for the wireless facility minor modification permit, or any other law, statute, ordinance or other regulation applicable to any development or activity on the site may result in the revocation of this permit. The remedies specified in this chapter shall be cumulative and the city may resort to any other remedy available at law or in equity and resort to any one remedy shall not cause an election precluding the use of any other remedy with respect to a violation.

In the event that a court of competent jurisdiction invalidates or limits, in part or in whole, Title 47, United States Code, Section 1455, such that such statute would not mandate approval for the collocation or modification granted or deemed granted under a wireless facility minor modification permit, such permit shall automatically expire twelve months from the date of that opinion.

The grant, deemed grant or acceptance of wireless facility minor modification permit shall not waive and shall not be construed or deemed to waive the city's standing in a court of competent jurisdiction to challenge Title 47, United States Code, Section 1455 or any wireless facility minor modification permit issued pursuant to Title 47, United States Code, Section 1455 or this code.

No Automatic Renewal. The grant or approval of a small wireless facility permit shall not renew or extend the underlying permit term.

Compliance with Previous Approvals. The grant or approval of a small wireless facility permit shall be subject to the conditions of approval of the underlying permit.

As-Built Plans. The applicant shall submit to the director an as-built set of plans and photographs depicting the entire small wireless facility as modified, including all transmission equipment and all utilities, within ninety days after the completion of construction.

Indemnification. To the fullest extent permitted by law, the applicant and any successors and assigns, shall defend, indemnify and hold harmless the city, its employees, agents and officials, from and against any liability, claims, suits, actions, arbitration proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, but not limited to, actual attorney fees, litigation expenses and court costs of any kind without restriction or limitation, incurred in relation to, as a consequence of, arising out of or in any way attributable to, actually, allegedly or impliedly, in whole or in part, related to the wireless facility minor modification permit and the issuance of any permit or entitlement in connection therewith. The applicant shall pay such obligations as they are incurred by the city, its employees, agents and officials, and in the event of any claim or lawsuit, shall submit a deposit in such amount as the city reasonably determines necessary to protect the city from exposure to fees, costs or liability with respect to such claim or lawsuit.

Compliance with Applicable Laws. The applicant shall comply with all applicable provisions of this code, any permit issued under this code, and all other applicable federal, state, and local laws. Any failure by the city to enforce compliance with any applicable laws shall not relieve any applicant of its obligations under this code, any permit issued under this code, or all other applicable laws and regulations.

Compliance with Approved Plans. The proposed project shall be built in compliance with the approved plans on file with the planning and building department.

Violations. The small wireless facility shall be developed, maintained, and operated in full compliance with the conditions of the small wireless facility permit, any other applicable permit, and any law, statute, ordinance or other regulation applicable to any development or activity on the site. Failure of the applicant to cease any development or activity not in full compliance shall be a violation of these conditions. Any violation of this code, the conditions of approval for the wireless facility minor modification permit, or any other law, statute, ordinance or other regulation applicable to any development or activity on the site may result in the revocation of this permit. The remedies specified in this section shall be cumulative and the city may resort to any other remedy available at law or in equity and resort to any one remedy shall not cause an election precluding the use of any other remedy with respect to a violation.

In the event that a court of competent jurisdiction invalidates or limits, in part or in whole, 47 U.S.C. Section 1455, such that such statute would not mandate approval for the collocation or deployment granted or deemed granted under a wireless facility minor modification permit, such permit shall automatically expire twelve months from the date of that opinion.

The grant, deemed grant or acceptance of a small wireless facility permit shall not waive and shall not be construed or deemed to waive the city's standing in a court of competent jurisdiction to challenge 47 U.S.C. Section 1455 or any small wireless facility permit issued pursuant to 47 U.S.C. Section 1455 or this code.

Annual Monitoring Fee. The owner or operator of a facility subject to a permit under this chapter shall pay to the city an annual monitoring fee as established in the city's master fee schedule. The fee shall be used to recover the city's costs to inspect, review, and monitor compliance with the conditions of the permit.

The director cannot make all findings required for approval of a small wireless facility permit;

The proposed collocation or deployment would cause the violation of an objective, generally applicable law protecting public health or safety;

The proposed collocation or deployment involves the removal and replacement of an existing facility's entire supporting structure; or

The proposed collocation or deployment does not qualify for mandatory approval under 47 U.S.C. Section 1455, as may be amended or superseded, and as may be interpreted by any order of the FCC or any court of competent jurisdiction.

Submit a new small wireless facility permit application for the same or substantially the same proposed collocation or deployment; or

Submit an appeal of the director's decision to the city council in accordance with Section 17.41.100.

Whether the applicant submitted a complete and accurate application;

Whether the facts and materials presented in a particular application tend to support certain statements or analyses in the application;

Compliance with any applicable regulations;

Any other specific technical or specialized issues requested by the city; and/or

Presence or absence of a significant gap in service coverage, as appropriate.

Written notice of the default event has been provided to the wireless facility permit holder.

The wireless facility permit holder has been afforded a reasonable opportunity to cure and comply with its permit, or demonstrate that no default event occurred.

If the wireless facility permit holder fails to cure, the city council, or designee, shall conduct a noticed public hearing where the wireless facility permit holder shall be afforded an opportunity to speak and be heard and to provide written material prior to the hearing. If the city council or its designee, after the public hearing, finds that the wireless facility or the wireless facility permit holder has violated any law regulating the wireless facility or has failed to comply with the requirements of this chapter, the wireless facility permit, any applicable agreement or any condition of approval, the city council may revoke the permit.

Upon revocation, the city council may require the removal of the wireless facility or take any other legally permissible action or combination of actions necessary to protect the health and welfare of the city.

Notwithstanding the provisions of this chapter, one or more specific exceptions to the standards contained within this chapter may be granted if a denial of an exception would prohibit or have the effect of prohibiting the provision of wireless communications services by the applicant within the meaning of Title 47, United States Code Section 332, subdivision (c)(7) or if the denial of the exception is otherwise preempted or prohibited by state or federal law or regulations. The city may grant an exception, on such terms as the city may deem appropriate, in cases where the city determines that the grant of an exception is necessary to comply with state and federal law or regulations.

Prior to the issuance of an exception, the applicant shall be required to submit to the director a written explanation setting forth clear and convincing evidence that the location or locations and the design of the facility is necessary to close a significant gap in service coverage, that there is no feasible alternate location or locations, or design, that would close this significant gap in coverage or reduce this significant gap in coverage to less than significant, and that the facility is the least intrusive means to close a significant gap or to reduce it to less than a significant gap in coverage.

Exceptions shall be subject to the review and approval by the planning commission at noticed public hearings. The burden is on the applicant to prove significant gaps and least intrusive means as required herein.

Nothing in this section shall modify the existing standards for nonsmall wireless facility applications.

Nothing in this section shall limit the city's authority to negotiate different standards for small wireless facility applications.