Malibu City Zoning Code
CHAPTER 17
46 WIRELESS COMMUNICATIONS FACILITIES
§ 17.46.010 Purpose and objectives.
A.
Purpose. The purpose and intent of this chapter is to provide a uniform and comprehensive set of standards for the development, siting and installation of wireless communication facilities and antennas, other than those exempt under Section 17.46.020(B). The regulations contained herein are designed to protect and promote the public health, safety and community welfare and the aesthetic quality and value of the city as set forth within the goals, objectives and policies of the general plan, while at the same time providing for managed development of wireless communications infrastructure.
B.
Objectives. Recognizing the city's roles as regulator, service provider, facilitator and user, it is intended that the city shall apply these regulations in furtherance of the following goals and policy objectives, including, but not limited to:
1.
To retain control of private and public property within the confines of state and federal legislation to regulate wireless communications services.
2.
To facilitate the creation of an advanced wireless communications infrastructure for citizens, businesses, industries and schools.
3.
To protect the city from potential adverse effects of wireless communications facility development.
4.
To ensure that the wireless communications infrastructure is designed to enhance and not interfere with the city's emergency response network.
(Ord. 484, 4/26/2021)
§ 17.46.020 Scope.
A.
There shall be a type of permit entitled a "Wireless Permit (WP)," which shall be subject to all of the requirements of this chapter. Unless exempted, every person who desires to place or modify a wireless communications facility must obtain a WP authorizing the placement or modification in accordance with this chapter. The WP shall be obtained in one of the following ways, based on facility type:
1.
Type 1: The installation or modification of a facility that qualifies as a small cell facility, or eligible facilities request, or collocation of a non-small cell facility; or
2.
Type 2: (a) the installation or modification of all wireless facilities that do not qualify as Type 1; and (b) any WP application that includes a waiver request pursuant to MMC Section 17.46.060(D).
B.
Exemptions. Installation of the following antennas and/or appurtenant equipment which comply with all applicable requirements and standards pertaining to radio frequency (RF) emissions are not required to obtain a Wireless Permit:
1.
Antennas designed to receive video programming signals from direct broadcast satellite (DBS) services, residential fixed wireless communications, multi-channel multi-point distribution providers (MMD) or television broadcast stations in all zoning districts are exempted, provided that all of the following conditions are met:
a.
The antenna will be accessory to an existing use and measures 39 inches (one meter) or less in diameter.
b.
The antenna will be installed in a location where it is not readily visible from the public right-of-way.
c.
The antenna will not be located within a required setback area, driveway or parking space.
2.
Amateur radio antenna (including ham and short wave) provided the antenna does not exceed the maximum base building height for the zoning district in which it is located by more than 15 feet.
3.
Communications facilities exempt from the provisions of this chapter by operation of state or federal law.
4.
Wireless communication facilities in the public right-of-way and subject to the requirements of Chapter 12.02.
5.
The placement or modification of facilities by the city or by any other agency of the state solely for public safety purposes.
6.
Installation of a "cell on wheels," "cell on truck" or a similar structure for a temporary period in connection with an emergency or event, but no longer than required for the emergency or event, provided that installation does not involve excavation, movement, or removal of existing functional facilities.
C.
The determination of whether or not a proposed facility meets the requirements for an exemption shall be made by the planning director.
D.
Other applicable requirements. In addition to the WP required herein, the persons who will own or control the facility(ies) must comply with applicable laws, including, but not limited to, applicable laws governing RF emissions, the Americans with Disabilities Act (ADA) and electrical and fire codes.
(Ord. 484, 4/26/2021)
§ 17.46.030 Administration.
A.
Reviewing Authority. For Type 1 applications, the planning director or their designee ("director") is the reviewing authority responsible for taking action on the application. For Type 2 applications, the planning commission is the reviewing authority and will hold a public hearing to take action on the application.
B.
Heightened Review. Type 1 applications other than eligible facilities requests proposing installations in the following areas shall automatically be processed as Type 2 applications and subject to heightened review: all residential, planned development, and mobilehome zoning districts.
C.
Applications subject to heightened review must meet the findings required in MMC Section 17.46.110(A) and (B). Applications qualifying as eligible facilities requests must meet the findings in MMC Section 17.46.110(C). All other applications must meet the findings required in Section 17.46.110(A).
D.
As part of the administration of this chapter and in addition to authority granted pursuant to other provisions of this Title 17, the director may:
1.
Extend or shorten deadlines where necessary to be consistent with state and federal laws and regulations;
2.
Issue any notices of incompleteness, requests for information, or conduct or commission such studies as may be required to determine whether a permit should be issued; and
3.
Take such other steps as may be required to timely act upon applications for placement of wireless communications facilities, including entering into agreements to mutually extend the time for action on an application.
E.
Appeals.
1.
Type 1 Applications.
a.
Any person adversely affected by a decision of the director pursuant to this chapter may request an administrative hearing to appeal the director's decision. In order to request a hearing, the person shall submit to the city clerk in the manner directed in the director's decision notice a fully completed request for administrative hearing form along with a full amount of the appeal fee set by the city council (by way of check or money order). The request for administrative hearing shall be incomplete if it does not include the appeal fee in the full amount.
b.
Appeals must be filed within 10 calendar days of the mailing of decision notice of the director, unless a different time period is specified by the director in such notice. The director may extend the time period for filing an appeal for due cause, but an extension may not be granted where such extension would result in approval of the application by operation of law. If a timely and complete request for hearing is not submitted, the director's decision shall be deemed final.
c.
If a timely and complete request for hearing is submitted, the city manager shall appoint an administrative hearing officer or, if designated by action of the city council, two members of the planning commission and a member of the city council ("hearing officer") to conduct the administrative hearing. The hearing officer shall decide the issues de novo. Administrative hearings are informal, and formal rules of evidence and discovery do not apply. The appellant and the applicant shall have the opportunity to present evidence in support of their case.
d.
Any administrative hearing shall be conducted so that a timely written decision may be issued in accordance with applicable law.
e.
The hearing officer's decision shall be in writing, shall explain the basis for the decision, and shall be served upon the applicant, and upon the appellant (if different) by first class mail, to the address stated on the request for hearing form, and the written decision of the hearing officer will be the final decision of the city effective on the date of mailing.
2.
Type 2 Applications.
a.
Any person adversely affected by a decision of the planning commission pursuant to this chapter may request a public hearing to appeal the planning commission's decision to the city council. In order to request a hearing, the person shall submit to the city clerk in the manner directed in the planning commission's decision notice a fully completed request for a public hearing form along with the full amount of the appeal fee set by the city council (by way of check or money order). The request for a public hearing shall be incomplete if it does not include the deposit in the full amount of the appeal fee. The deposit will be retained in a noninterest bearing account until the matter is resolved. The appeal fee shall be refunded to the appellant if their appeal is granted.
b.
Appeals must be filed within 10 calendar days of the mailing of decision notice of the planning commission, unless a different time period is specified by the city in such notice. The city may extend the time period for filing an appeal for due cause, but an extension may not be granted where such extension would result in approval of the application by operation of law.
c.
If a timely and complete request for hearing is not submitted, the planning commission's decision shall be deemed final.
d.
Any public hearing shall be conducted so that a timely written decision may be issued in accordance with applicable law. The city council's review shall be de novo; it may receive new evidence and is not bound by the previous record.
e.
The city council's decision shall be in writing, shall explain the basis for the decision, and shall be served upon the applicant, and upon the appellant (if different) by first class mail, to the address stated on the request for hearing form. The written decision of the city council will be the final decision of the city effective on the date of mailing.
(Ord. 484, 4/26/2021)
§ 17.46.040 Definitions.
means a typically metallic device used for radiating or receiving radio waves.
means antennas which are located and/or mounted on an existing building's exterior walls.
means an antenna, and its associated support structure, that is attached to a roof of a building or similar structure.
means a person filing an application for placement or modification of a wireless communications facility in the city of Malibu.
means a formal request, including all required and requested documentation and information, submitted by an applicant to the city for a wireless permit.
shall have the meaning as set forth in 47 C.F.R. Section 1.6100(b)(3), or any successor provision.
is the Federal Communications Commission or its lawful successor.
means the applicant, or owners/occupants who reside within a 1,000-foot radius of the project property.
means a wireless communications facility used for the provision of personal wireless services.
shall have the same meaning as set forth in 47 U.S.C. Section 332(c)(7)(C)(i).
means any public street, public way or public place within the city limits, either owned by the city or dedicated to the public for the purpose of travel and which the city has the responsibility to maintain or manage. The term includes all or any part of the entire width of right-of-way, and above and below the same, whether or not such entire area is actually used for travel purposes.
shall have the same meaning as "small wireless facility" in 47 C.F.R. 1.6002(1), or any successor provision (which is a personal wireless services facility that meets the following conditions that, solely for convenience, have been set forth below):
The facility:
Is mounted on a structure 50 feet or less in height, including antennas, as defined in 47 C.F.R. Section 1.1320(d), or
Is mounted on a structure no more than 10% taller than other adjacent structures, or
Does not extend an existing structure on which are located to a height of more than 50 feet or by more than 10%, whichever is greater;
Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in 47 C.F.R. Section 1.1320(d)), is no more than three cubic feet in volume;
All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;
The facility does not require antenna structure registration under 47 C.F.R. Part 17;
The facility is not located on Tribal lands, as defined under 36 C.F.R. Section 800.16(x); and
The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 C.F.R. Section 1.1307(b).
means a wireless communications facility designed to look like something other than a wireless tower or base station.
means any structure capable of supporting a base station and/or antenna.
means the wiring, cables, electronic equipment, transmitters, antenna structures and other types of installations used for the provision of wireless services at a fixed location, including, without limitation, any associated tower(s), support structure(s), and base station(s).
(Ord. 484, 4/26/2021)
§ 17.46.050 Health and safety.
A.
No wireless communications facility shall be sited or operated in such a manner that it poses, either by itself or in combination with other such facilities, a potential threat to public health, safety or welfare. All wireless communications facilities shall be designed by qualified, licensed persons to provide the maximum protection that is technically feasible to prevent electrical and fire hazards. All wireless facilities should be proactively monitored and maintained to continue and, if possible, improve the safety design.
B.
No facility or combination of facilities shall produce at any time power densities or exposure levels in any general population area that exceed the applicable FCC standards for radiofrequency (RF) emissions.
(Ord. 484, 4/26/2021)
§ 17.46.060 General standards for wireless communications facilities.
A.
Generally. Wireless communications facilities shall meet the minimum requirements set forth in this chapter, in addition to the requirements of any other applicable law, unless a waiver is required to avoid a denial of an application. Waivers shall only be granted on a case-by-case basis, and shall be narrowly-tailored so that the requirements are waived only to the minimum extent required to address the request.
B.
Wireless communications facilities shall be installed and modified in a manner that does not interfere with the use of public or private property or the use of the public right-of-way, in that it minimizes risks to public safety, avoids above-ground facilities in underground areas, avoids installation of new support structures or equipment, makes facilities stealth by using concealment elements, and otherwise maintains the integrity and character of the neighborhoods in which the facilities are located and does not impede views; ensures that installations are subject to periodic review to minimize the intrusion on public and private property; and ensures that the city bears no risk or liability as a result of the installations, and that such use does not inconvenience the public or cause personal or economic harm, interfere with the primary uses of public or private property or the rights-of-way, or hinder the ability of the city or other government agencies to improve, modify, relocate, abandon, or vacate facilities or public property.
C.
Engineering, design, and location standards. The city council may adopt by resolution the engineering, design and location standards, conditions of approval and basic application requirements for wireless communications facilities on land other than public right-of-way. All applications shall comply with the engineering, design and location standards for wireless communications facilities set forth in the ordinance codified in this chapter and such Resolution, as amended.
D.
Waivers. Requests for waivers from any requirement of this chapter or the standards and wireless regulations set forth in the city council resolution shall be made in writing to the director. A waiver may be requested: (1) to avoid a denial of an application that would, within the meaning of federal law, prohibit or effectively prohibit the provision of personal wireless services, or otherwise violate applicable laws or regulations; or (2) for the technical or design reasons specified in the resolution described in subsection C of this section, as amended. A request for waiver may be granted only if it is demonstrated through clear and convincing evidence that the standard for the waiver has been met. All waivers approved pursuant to this subsection shall be: (1) granted only on a case-by-case basis; and (2) narrowly-tailored so that the requirements of this chapter or the standards in the city council resolution are waived only to the minimum extent required to address the request.
(Ord. 484, 4/26/2021)
§ 17.46.070 Standard conditions of approval.
Each wireless permit approved pursuant to this chapter shall be subject to the conditions of approval in the resolution that adopted the engineering, design and location standards, and conditions of approval for wireless communications facility on land other than public right-of-way. If no conditions are imposed in the WP or if the application is deemed approved by operation of law, then the standard permit conditions of approval in such resolution shall apply to that permit.
(Ord. 484, 4/26/2021)
§ 17.46.080 Minimum application requirements.
A.
Applicants shall submit applications on the forms and in the manner approved by the planning director. In addition to providing all required fees, all wireless communications facility carriers or providers shall provide the information required by a separate application form published, and updated from time to time, by the city. If no such form is available, then the applicant must submit all documents, information, and any other materials necessary to allow the city to make required findings and ensure that the proposed facility will comply with applicable laws and not endanger the public health, safety, or welfare. The director may waive certain submittal requirements if prohibited by applicable law or require additional information based on the characteristics of specific projects.
B.
Pre-Application Meeting. Prior to filing an application to install or modify a wireless communications facility subject to this chapter, the applicant is encouraged to schedule a voluntary pre-application meeting with the planning department to discuss the proposed facility, the requirements of this chapter, and any potential impacts of the proposed facility. Conducting a voluntary pre-application meeting shall not initiate any applicable "shot clock."
C.
Public Notice. In addition to any other noticing requirements:
1.
Within seven calendar days after an application is submitted to the city, the applicant shall: (1) post notice at the proposed project site in a location near to and visible to the public; and (2) provide the city with evidence that such notice has been posted. The applicant shall maintain and replace the posted notice as necessary during the entire application review process until the director or planning commission, as applicable, acts on the application and all appeals have been exhausted. The posted notice shall be composed from durable quality and weather-resistant materials that will not deteriorate under normal circumstances for at least 180 calendar days. The posted notice shall be at minimum 17 inches wide by 11 inches tall. The posted notice shall not be placed in any location where it would obstruct travel or visibility for vehicles, bicycles, or pedestrians. The city encourages applicants to consult with the planning department on placement locations to avoid any potential hazards.
2.
Within five business days from the date on which an application is determined to be complete, the director shall notify in writing of the filing of the application property owners and residents of all property within a 1,000 foot radius of the proposed project, but in no event fewer than the owners and occupants of 10 developed properties. The purpose of the notice is to inform the surrounding property owners and residents of the filing of the application and provide an opportunity for comment on the application prior to the approving authority's decision. The notice shall describe the request, provide a map showing the specific location of the proposed project, describe the review process and timeframes, indicate how to contact the applicant and case planner assigned to the application, and the city-assigned application identifier.
D.
Fire Department Review. After submittal by the applicant, the applicable application materials shall be transmitted to the fire department for its review and any recommended conditions.
(Ord. 484, 4/26/2021)
§ 17.46.090 Findings for approval.
A.
For all wireless communications facilities subject to Chapter 17.46, other than eligible facilities requests, the approving authority shall approve the proposed project provided it makes the following findings:
1.
The facility is not detrimental to the public health, safety, and welfare and will not pose an undue fire risk;
2.
The facility complies with Chapter 17.46 and all applicable design and development standards; and
3.
The facility complies with state and federal law.
For all Type 2 applications pursuant to Section 17.46.020(A)(2), other than eligible facilities requests, that are proposed to be located in a residential, planned development or mobilehome zoning district, the approving authority shall also make the following finding: |
4.
The facility could not feasibly be located within any other zoning district in the City.
B.
All eligible facilities requests subject to Chapter 17.46 must be approved on the basis of the application and other materials or evidence provided in review thereof provided the approving authority makes the following findings:
1.
The proposed colocation or modification meets each and every one of the applicable criteria for an eligible facilities request stated in 47 C.F.R. 1.6100(b)(3)-(9), or any successor provisions, after application of the definitions in 47 C.F.R. 1.6100(b). The approving authority shall make an express finding for each criterion;
2.
The proposed facility complies with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, provided this limitation only applies to any modification that would not exceed the thresholds identified in 47 C.F.R. 1.6100(b)(7)(i) through (iv), or any successor provisions; and
3.
That the proposed facility will comply with all generally applicable laws, including generally applicable building, structural, electrical and safety codes, noise control ordinances, and other laws codifying objective standards reasonably related to health and safety.
(Ord. 484, 4/26/2021)
§ 17.46.100 Permit review, renewal and revocation procedure.
A.
The city finds that the technology associated with communications equipment is subject to rapid changes and upgrades as a result of industry competition and customer demands, and anticipates that communications antennas and related equipment with reduced visual impacts will be available from time to time with comparable or improved coverage and capacity capabilities. There may also be advancements and enhancements with regard to design, practice, operations and structural safety. The city further finds that it is in the interest of the public health, safety, and welfare that communications providers be required to replace older facilities with newer equipment of equal or greater capabilities, reduced visual impacts safety enhancements as technological improvements become available. Therefore, any modifications, other than eligible facilities requests, requested to an existing facility for which a permit issued pursuant to this chapter authorizing establishment of a wireless communications facility shall permit the planning director to review the carrier's existing facility to determine whether requiring updates to concealment elements and screening techniques that reduce visual impacts is appropriate if technically feasible, and the planning director may require such updates as a condition of approval of such modification.
B.
At any time, the planning director may initiate proceedings to hold a public hearing before planning commission to revoke a wireless permit issued pursuant to this chapter. Notice of such a hearing shall be the same as that required for a new WP. Grounds for revocation shall be limited to a finding that: (1) the owner or operator has abandoned the facility; (2) the facility is no longer in compliance with either the general requirements or design standards of this title in effect at the time of approval; (3) the facility no longer complies with the conditions of approval and the owner or operator has failed to bring the facility into compliance within 90 days after the director sends a notice requiring the facility to be brought into compliance; (4) the facility does not comply with applicable FCC or FAA regulations, including those related to RF emissions; (5) the WP was obtained in a fraudulent manner; or (6) if the director determines that the facility poses a threat to the public health, safety, or welfare or is creating a nuisance.
(Ord. 484, 4/26/2021)