Martinez City Zoning Code

For towers outside the public rights-of-way, a substantial change occurs when:

For towers in the public rights-of-way and for all base stations, a substantial change occurs when:

In addition, for all towers and base stations wherever located, a substantial change occurs when:

A facility that qualifies as an amateur station as defined by the FCC, 47 C.F.R. Part 97, of the Commission's Rules, or its successor regulation.

An antenna facility that is subject to the FCC over-the-air-receiving devices rule, 47 C.F.R. Section 1.4000, or any successor regulation, including, but not limited to, direct-to-home satellite dishes that are less than one meter in diameter, TV antennas used to receive television broadcast signals and wireless cable antennas.

Portable radios and devices including, but not limited to, hand-held, vehicular, or other portable receivers, transmitters or transceivers, cellular phones, CB radios, emergency services radio, and other similar portable devices as determined by the Community and Economic Development Director.

Telecommunications facilities owned and operated by any government agency.

Telecommunications facilities owned and operated by any emergency medical care provider.

Mobile services providing public information coverage of news events of a temporary nature.

Any wireless telecommunications facilities exempted from the Martinez Municipal Code by federal law or state law.

All facilities for which applications are submitted after the effective date of the ordinance from which this Chapter derived shall be subject to and comply with all provisions of this Chapter.

All facilities, notwithstanding the date approved, shall be subject to the provisions of this Chapter governing the operation and maintenance, cessation of use and abandonment, removal and restoration of wireless telecommunications facilities and wireless telecommunications collocation facilities and the prohibition of dangerous conditions or obstructions by such facilities; provided, however, that in the event a condition of approval conflicts with a provision of this Chapter, the condition of approval shall control unless and until the permit is amended or revoked.

Full name and contact information for the facility owner, facility operator, agent (if any), and property owner, and related letter(s) of authorization of facility and/or property owner.

The type of facility, including a full written description of the proposed facility, its purpose and specifications.

A detailed site and engineering plan of the proposed facility containing the exact proposed location of the facility, created by a qualified licensed engineer and in accordance with requirements set by the Community and Economic Development Director.

Photographs of facility equipment and an accurate visual impact analysis with photo simulations, including reasonable line-of-sight locations from public streets or other adjacent viewpoints, and a map that shows the photo location of each view angle.

Building elevations and roof plan (for building- and/or rooftop-mounted facilities) indicating exact location and dimensions of equipment proposed. For freestanding facilities, indicate surrounding grades, structures, and landscaping from all sides.

Proposed landscaping and/or nonvegetative screening (including required safety fencing) plan for all aspects of the facility.

Written documentation demonstrating a good faith effort to locate the proposed facility in the least intrusive location and screened to the greatest extent feasible in accordance with the site selection and visual impact criteria of this Chapter.

If the application is for a facility that will be located within the public right-of-way, the applicant shall certify that it is a telephone corporation or state the basis for its claimed right to enter the right-of-way, and provide a copy of its certificate of public convenience and necessity (CPCN), if a CPCN has been issued by the California Public Utilities Commission.

A written description identifying the geographic service area for the subject installation, accompanied by a plan and maps showing anticipated future installations and modifications for the following two years, in addition to the master plan described by this Section.

A written report that analyzes acoustic levels for the proposed wireless telecommunications facility and all associated equipment including without limitation all environmental control units, sump pumps, temporary backup power generators, and permanent backup power generators in order to demonstrate compliance with ordinance 9.56 (Noise). The acoustic analysis must be prepared and certified by an engineer and include an analysis of the manufacturers' specifications for all noise-emitting equipment and a depiction of the noise contours for the proposed equipment relative to all adjacent property lines. In lieu of a written report, the applicant may submit evidence from the equipment manufacturer that the ambient noise emitted from all the proposed equipment will not, both individually and cumulatively, exceed the applicable limits.

If the applicant claims it requires an exception to the requirements of this Chapter, all information and studies necessary for the City to evaluate that claim.

An administrative review fee established by resolution of the City Council shall be charged per application, in the form of an advance reimbursable initial deposit within the range established by the City Council to fully recover the estimated cost of the City, including staff time, a consultant review as set forth in paragraph (B) of this Section, other legal and third party services, and all other costs of whatever type or variety, incurred for the processing, review, commenting upon, evaluation, hearing, and consideration of the application. The Community and Economic Development Director shall establish a reasonable deposit amount for each application that is no greater than the maximum established by the City Council in accordance with this provision. In addition, the applicant shall submit a fully executed cost recovery or letter agreement in the form provided by the City wherein the applicant agrees to replenish the deposited amount in full and fully reimburse the City otherwise where the advance deposit is insufficient to cover all of the City's costs related to the application. Where the advance deposit is insufficient to pay for the costs incurred by the City, the Community and Economic Development Director shall invoice the applicant who shall pay the invoice in full within ten calendar days after receipt of the invoice. No permit shall be issued to an applicant where that applicant has not timely paid a required fee, provided any required deposit or paid any invoice as required by this Code. A "reasonable deposit" under this paragraph shall take into consideration the scope and scale of the proposal being made by the application, the City's prior costs incurred with like or similar applications, and whether one or more exceptions are being requested by the applicant. Any portion of the deposit that is not expended by the City shall be reimbursed to the applicant upon the completion of the application and determination process.

An agreement in the form provided by the City that applicant agrees to defend, hold harmless and fully indemnify [the] City, its officers, employees, agents, attorneys, and volunteers, from any claim, action or proceeding brought against the City or its officers, employees, agents, or attorneys to attack, set aside, void, or annul any such approval of the City; and/or (b) an action taken to provide environmental clearance under the California Environmental Quality Act (CEQA) by its advisory agencies, appeal boards, or City Council. This indemnification agreement shall be in a form acceptable to the City Attorney and shall include, but not be limited to, damages, fees and/or costs awarded against the City, if any, and cost of suit, attorney's fees, and other costs, liabilities and expenses incurred in connection with such proceeding whether incurred by the applicant, the City and/or the parties initiating or bringing such proceeding. The agreement shall also include a provision obligating the applicant to indemnify the City for all of the City's costs, fees and damages which the City incurs in enforcing the indemnification provisions of this Section. Also at the time of submitting an application, the applicant shall agree, as part of the application, to defend, indemnify and hold harmless the City, its agents, officers, employees and attorneys for all costs incurred in additional investigation of or study of, or for supplementing, redrafting, revising, or amending any document (such as an EIR, negative declaration, specific plan, or general plan amendment) if made necessary by said proceeding and if the applicant desires to pursue securing such approvals and/or clearances, after initiation of the proceeding, which are conditioned on the approval of these documents. In the event that a proceeding described by this Section is brought, the City shall promptly notify the applicant of the existence of the proceeding and the City will cooperate fully in the defense of the proceeding. Nothing in this Section shall prohibit the City from participating in the defense of any proceeding. In the event that the applicant is required to defend the City in connection with any proceeding described in this Section, the City shall retain the right to approve: (a) the counsel to so defend the City; (b) all significant decisions concerning the manner in which the defense is conducted; and (c) any and all settlements, which approval shall not be unreasonably withheld.

A master plan which identifies the location of the proposed facility in relation to all existing and potential locations in the City that are reasonably anticipated for construction within two years of submittal of the application. Applicants may not file, and the City shall not accept, applications that are not consistent with the master plan for a period of two years from approval of a wireless facility conditional use permit unless: (a) the applicant demonstrates materially changed conditions which could not have been reasonably anticipated to justify the need for a wireless telecommunications facility site not shown on a master plan submitted to the City within the prior two years; (b) the applicant establishes that the application is needed to prevent the actual or effective prohibition of the provision of telecommunications wireless services under the Telecommunications Act of 1996.

A siting analysis which identifies a minimum of five other feasible locations within or outside the City which could serve the area intended to be served by the facility, unless the applicant provides compelling technical reasons for fewer than the minimum. The alternative site analysis should include at least one collocation site, if feasible.

Any request for exceptions to be made to the provisions of this Chapter shall be submitted at the time of the application. The request shall include an analysis as to the availability and feasibility of other alternatives to the exception(s) that are being requested and a description of the need for the exception and analysis of how the need would be met by the exception being requested.

An RF exposure compliance report prepared and certified by an RF engineer licensed by the State of California that certifies that the proposed facility, as well as any collocated facilities, will comply with applicable federal RF exposure standards and exposure limits. The RF report must include the actual frequency and power levels (in watts effective radio power (ERP)) for all existing and proposed antennas at the site and exhibits and show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC) and also limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site.

Every applicant applying for authorization to construct, modify, or remove a wireless communications facility located on private or public property must include with its application a written authorization signed by the property owner.

Any other studies or information as determined to be necessary by the Community and Economic Development Director in order to consider an application for a wireless telecommunications facility may be required.

In addition to any other action otherwise required by law pertaining to the process of a conditional wireless facility permit application that requires Planning Commission review, the applicant for which such review is being sought shall take all of the following actions:

All submittals required for a wireless telecommunications collocation facility.

In the event a subsequent state or federal law prohibits the collection of any information described herein, the director is authorized to omit, modify, or add to that request from the City's application form.

The Community and Economic Development Director is authorized to retain on behalf of the City any one or more independent, qualified consultants to review any application for a permit for a wireless telecommunications facility to review the technical aspects of the application, including but not limited to the following matters:

The applicant must pay for the cost of any review required under this Section and for the technical consultant's testimony in any hearing as requested by the director and must provide a reasonable advance deposit of the estimated cost of such review with the City prior to the commencement of any work. The cost of this review shall be paid by the applicant through a deposit and cost recovery agreement pursuant to the application requirements stated within subsection A above.

Each wireless telecommunications facility and wireless telecommunications collocation facility shall be operated in such a manner so as to minimize any possible disruption caused by noise.

Backup generators shall only be operated during periods of power outages, and shall not be tested on weekends or holidays, or between the hours of 5:00 p.m. and 8:00 a.m.

At no time shall equipment noise from any facility exceed 65 dbA intermittent or 55 dbA constant (Ldn or CNEL) for installations within the public right-of-way or an exterior noise level of 60 Ldn 50 dbA at the facility's property line if the facility is located within 100 feet of a residential dwelling unit.

Any equipment, including but not limited to air conditioning units, that may emit noise that would be audible from beyond three feet from the facility in the case of a facility located in the right-of-way, or in the case of other facilities the facility's property line, shall be enclosed or equipped with noise attenuation devices to the extent necessary to ensure compliance with applicable noise limitations under the Martinez Municipal Code.

Facilities mounted to a telecommunications tower, including, but not limited to, the attached antennas, shall be designed to be the minimum functional height and width required to adequately support the proposed facility and meet FCC requirements. The applicant shall provide documentation satisfactory to the Community and Economic Development Director establishing compliance with this paragraph. In any event, facilities mounted to a telecommunications tower shall not exceed the applicable height limit for structures in the applicable zoning district.

Aside from the antenna itself, no additional equipment may be visible. All cables, including, but not limited to, electrical and utility cables, shall be run within the interior of the telecommunications tower and shall be camouflaged or hidden to the fullest extent feasible without jeopardizing the physical integrity of the tower.

Monopole installations shall be situated so as to utilize existing natural or man-made features including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening.

All antenna components and accessory wireless equipment shall be treated with exterior coatings of a color and texture to match the predominant visual background or existing architectural elements so as to visually blend in with the surrounding development. Subdued colors and non-reflective materials that blend with surrounding materials and colors shall be used.

Monopoles shall be no greater in diameter or other cross-sectional dimensions than is necessary for the proper functioning of the facility.

If a faux tree is proposed for the monopole installation, it shall be of a type of tree compatible with those existing in the immediate areas of the installation. If no trees exist within the immediate areas, the applicant shall create a landscape setting that integrates the faux tree with added species of a similar height and type. Additional camouflage of the faux tree may be required depending on the type and design of faux tree proposed.

Wireless telecommunications facilities requiring permits under this Chapter shall not be located within any required yard setback area of the zoning district in which they are located with the exception of possible encroachment of the antenna array into airspace over said setback.

Accessory equipment for roof-mounted facilities shall be installed inside the building to which it is mounted or underground, if feasible. If not feasible, such accessory equipment may be located on the roof of the building that the facility is mounted on, provided that both the equipment and screening materials are painted the color of the building, roof, or surroundings. All screening materials for roof-mounted facilities shall be of a quality and design that is architecturally integrated with the design of the building or structure.

To preserve community aesthetics, all accessory equipment, excluding antennas, aboveground vents and the smallest possible electrical meter boxes, shall, to the greatest extent possible, be required to be located underground, flush to the finished grade, shall be fully enclosed, and not cross property lines. Equipment may include, but is not limited to, the following: meter pedestals, fiber optic nodes, radio remote units or heads, power filters, cables, cabinets, vaults, junction or power boxes, and gas generators. Wherever possible, electrical meter boxes related to wireless communications facilities shall be appropriately screened, not visible to the general public, and located in less prominent areas on public property and private property. Where it can be demonstrated that undergrounding of equipment is infeasible due to conflict with other utilities the reviewing authority may approve alternative above-grade equipment mounting when adequately screened in accordance with the following: facilities mounted to a telecommunications tower shall be visually screened by locating the equipment either within a nearby building, in an underground vault (with the exception of required electrical panels) or in another type of enclosed structure, which shall comply with the development and design standards of the zoning district in which the accessory equipment is located. Such enclosed structure shall be architecturally treated and adequately screened from view by landscape plantings, decorative walls, fencing or other appropriate means, selected so that the resulting screening will be visually integrated with the architecture and landscaping of the surroundings.

Utility poles. The maximum height of any antenna mounted to an existing utility pole shall not exceed 24 inches above the height of an existing utility pole, nor shall any portion of the antenna or equipment mounted on a pole be less than 18 feet above any drivable road surface. All installations on utility poles shall fully comply with the California Public Utilities Commission general orders, including, but not limited to, General Order 95, as revised.

Only pole-mounted antennas shall be permitted in the right-of-way. All other telecommunications towers are prohibited, and no new poles are permitted that are not replacing an existing pole.

Pole Height and Width Limitations:

If an applicant proposes to replace a pole in order to accommodate the facility, the pole shall match the appearance of the original pole to the extent feasible, unless another design better accomplishes the objectives of this Section. Such replacement pole shall not exceed the height of the pole it is replacing by more than seven feet.

If an exception is granted for placement of new poles in the right-of-way, new poles shall be designed to resemble existing poles in the right-of-way, including size, height, color, materials and style, with the exception of any existing pole designs that are scheduled to be removed and not replaced, unless another design better accomplishes the objectives of this Section. Such new poles that are not replacement poles shall be located no closer than 90 feet to an existing pole.

Each component part of a facility shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, inconvenience to the public's use of the right-of-way, or safety hazards to pedestrians and motorists.

A facility shall not be located within any portion of the public right-of-way interfering with access to fire hydrants, fire stations, fire escapes, water valves, underground vaults, valve housing structures, or any other vital public health and safety facility.

Each pole mounted wireless telecommunications facility must be separated by at least 1,500 feet.

All cables, including, but not limited to, electrical and utility cables, between the pole and any accessory equipment shall be placed underground, if not infeasible as described within subsection H.

All new wires needed to service the wireless telecommunications facility must be installed within the width of the existing utility pole so as to not exceed the diameter and height of the existing utility pole.

Before the permittee submits any application for a building permit or other permits required by the Martinez Municipal Code, the permittee must incorporate the wireless telecommunication facility permit granted under this Chapter, all conditions associated with the wireless telecommunications facility permit and the approved plans and any photo simulations (the "approved plans") into the project plans. The permittee must construct, install and operate the wireless telecommunications facility in strict compliance with the approved plans. The permittee shall submit an as built drawing within 90 days after installation of the facility.

Where feasible, as new technology becomes available, the permittee shall:

The permittee shall submit and maintain current at all times basic contact and site information on a form to be supplied by the City. The permittee shall notify the City of any changes to the information submitted within seven days of any change, including change of the name or legal status of the owner or operator. This information shall include, but is not limited to, the following:

The permittee shall not place any facilities that will deny access to, or otherwise interfere with, any public utility, easement, or right-of-way located on the site. The permittee shall allow the City reasonable access to, and maintenance of, all utilities and existing public improvements within or adjacent to the site, including, but not limited to, pavement, trees, public utilities, lighting and public signage.

At all times, all required notices and signs shall be posted on the site as required by the FCC and California Public Utilities Commission, and as approved by the City. The location and dimensions of a sign bearing the emergency contact name and telephone number shall be posted pursuant to the approved plans.

At all times, the permittee shall ensure that the facility complies with the most current regulatory and operational standards including, but not limited to, radio frequency emissions standards adopted by the FCC and antenna height standards adopted by the Federal Aviation Administration.

Every five years a technically sufficient written report certified by a qualified radio frequency emissions engineer, certifying that the facility follows the radio frequency emissions guidelines or standards of the FCC shall be submitted to the Community and Economic Development Director. Additionally, if at any time while the permit is in effect the Community and Economic Development Director determines there is good cause to believe that the facility may emit radio frequency emissions that are likely to exceed FCC standards, the Community and Economic Development Director may require the permittee to submit a report described by this Section. Failure to comply with this Section shall be grounds for revocation of the conditional use permit. The report shall also include an acoustical analysis that demonstrates compliance with the noise requirements herein.

Indemnification shall be made a condition of approval and shall include the following responsibilities: permittee shall defend, indemnify, protect and hold harmless the City, its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees, and volunteers from and against any and all claims, actions, or proceedings against the City and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers to attack, set aside, void or annul, an approval of the City, Planning Commission or City Council concerning this permit and the project. Such indemnification shall include damages, judgments, settlements, penalties, fines, defensive costs or expenses, including, but not limited to, interest, attorneys' fees and expert witness fees, or liability of any kind related to or arising from such claim, action, or proceeding. The City shall promptly notify the permittee of any claim, action, or proceeding. Nothing contained herein shall prohibit City from participating in a defense of any claim, action or proceeding. The City shall have the option of coordinating the defense, including, but not limited to, choosing counsel for the defense at permittee's expense. The indemnification responsibilities in a condition of approval shall also be inclusive of claims related to, connected with, or arising out of the construction, maintenance, operation, repair, alteration, or improvement of the wireless telecommunications facility if located within a public right-of-way.

All conditions of approval shall be binding as to the applicant and all successors in interest to permittee.

A condition setting forth the permit expiration date in accordance with this Chapter shall be included in the conditions of approval.

A condition setting forth the modification requirement stated in accordance with this Chapter shall be included in the conditions of approval.

The wireless telecommunications facility shall be subject to such conditions, changes or limitations as are from time to time deemed necessary by the City engineer for the purpose of: (a) protecting the public health, safety, and welfare, (b) preventing interference with pedestrian and vehicular traffic, and (c) preventing damage to the public right-of-way or any property adjacent to it. The City may modify the permit to reflect such conditions, changes or limitations by following the same notice and public hearing procedures as are applicable to the grant of a wireless telecommunications facility permit for similarly located facilities, except the permittee shall be given notice by personal service or by registered or certified mail at the last address provided to the City by the permittee.

The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement or property without the prior consent of the owner of that structure, improvement or property. No structure, improvement or property owned by the City shall be moved to accommodate a wireless telecommunications facility unless the City determines that such movement will not adversely affect the City or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the City's structure, improvement or property. Prior to commencement of any work pursuant to an encroachment permit issued for any facility within the public right-of-way, the permittee shall provide the City with documentation establishing to the City's satisfaction that the permittee has the legal right to use or interfere with any other structure, improvement or property within the public right-of-way to be affected by applicant's facilities.

The permittee shall assume full liability for damage or injury caused to any property or person by the facility.

The permittee shall repair, at its sole cost and expense, any damage including, but not limited to subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to City streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility line and systems, or sewer systems and sewer lines that result from any activities performed in connection with the installation or maintenance of a wireless telecommunications facility in the public right-of-way. The permittee shall restore such areas, structures and systems to the condition in which they existed prior to the installation or maintenance that necessitated the repairs. In the event the permittee fails to complete such repair within the number of days stated on a written notice by the Community and Economic Development Director, the Community and Economic Development Director shall cause such repair to be completed at permittee's sole cost and expense.

Prior to issuance of a building permit, the applicant shall obtain the Community and Economic Development Director's approval of a tree protection plan prepared by a certified arborist if the installation of the wireless telecommunication facility will be located within the canopy of a street tree, or a protected tree on private property, or within a ten-foot radius of the base of such a tree. Depending on site specific criteria (e.g., location of tree, size, and type of tree, etc.), a radius greater than ten feet may be required by the Community and Economic Development Director.

Should any utility company offer electrical service that does not require the use of a meter cabinet, the permittee shall at its sole cost and expense remove the meter cabinet and any related foundation within 30 days of such service being offered and reasonably restore the area to its prior condition.

The permittee shall modify, remove, or relocate its facility, or portion thereof, without cost or expense to City, if and when made necessary by:

Any modification, removal, or relocation of the facility shall be completed within 90 days of written notification by City unless exigencies dictate a shorter period for removal or relocation. Modification or relocation of the facility shall require submittal, review and approval of a permit amendment pursuant to the Martinez Municipal Code. The permittee shall be entitled, on permittee's election, to either a pro-rata refund of fees paid for the original permit or to a new permit, without additional fee, at a location as close to the original location as the standards set forth in the Martinez Municipal Code allow. In the event the facility is not modified, removed, or relocated within said period of time, the City may cause the same to be done at the sole cost and expense of permittee. Further, due to exigent circumstances as provided in the Martinez Municipal Code, the City may modify, remove, or relocate wireless telecommunications facilities without prior notice to permittee provided permittee is notified within a reasonable period thereafter.

The permittee shall pay for and provide a performance bond, which shall be in effect until the facilities are fully and completely removed and the site reasonably returned to its original condition, to cover permittee's obligations under these conditions of approval and the Martinez Municipal Code. The bond coverage shall include, but not be limited to, removal of the facility, maintenance obligations and landscaping obligations. The amount of the performance bond shall be set by the Community and Economic Development Director in an amount rationally related to the obligations covered by the bond and shall be specified in the conditions of approval.

The proposed facility complies with all applicable provisions of this Chapter.

The proposed facility has been designed and located to achieve compatibility with the community to the maximum extent reasonably feasible.

The applicant has submitted a statement of its willingness to allow other carriers to collocate on the proposed wireless telecommunications facility wherever technically and economically feasible and where collocation would not harm community compatibility.

Noise generated by equipment will not be excessive, annoying nor be detrimental to the public health, safety, and welfare and will not exceed the standards set forth in this Chapter.

The applicant has provided substantial written evidence supporting the applicant's claim that it has the right to enter the public right-of-way pursuant to state or federal law, or the applicant has entered into a franchise or other agreement with the City permitting them to use the public right-of-way.

The applicant has demonstrated that the facility will not interfere with the use of the public right-of-way, existing subterranean infrastructure, or the City's plans for modification or use of such location and infrastructure.

Denial of the facility as proposed would violate federal law, state law, or both; or

A provision of this Chapter, as applied to applicant, would deprive applicant of its rights under federal law, state law, or both.

A title report prepared within the six months prior to the application filing date in order for the City to verify the property owner's identity. If the applicant does not own the subject property, the application must include a written authorization signed by the property owner that empowers the applicant to file the application and perform all wireless facility construction, installation, operation and maintenance to the extent described in the application.

A written statement that explains in plain factual detail whether and why Section 6409(a) and the related FCC regulations at 47 C.F.R. § 1.40001 et seq. require approval for the specific project. A complete written narrative analysis will state the applicable standard and all the facts that allow the City to conclude the standard has been met. Bare conclusions not factually supported do not constitute a complete written analysis. As part of this written statement the applicant must also include (i) whether and why the support structure qualifies as an existing tower or existing base station; and (ii) whether and why the proposed collocation or modification does not cause a substantial change in height, width, excavation, equipment cabinets, concealment or permit compliance.

Pre-submittal conference. Before application submittal, applicants must schedule and attend a pre-application meeting with the Community and Economic Development Director for all proposed modifications submitted for approval pursuant to Section 6409(a). The pre-submittal conference is intended to streamline the review process through informal discussion that includes, without limitation, the appropriate project classification, including whether the project qualifies for Section 6409(a); any latent issues in connection with the existing tower or base station; potential concealment issues (if applicable); coordination with other City 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 City staff may provide informal feedback about whether such applications or other materials may be incomplete or unacceptable. The Community and Economic Development Director may, in the Community and Economic Development Director's discretion, grant a written exemption to the submittal appointment under this Chapter or for a specific requirement for a complete application to any applicant who (i) schedules, attends and fully participates in any pre-submittal conference and (ii) shows to the Community and Economic Development Director's satisfaction that such specific requirement duplicates information already provided in other materials to be submitted or is otherwise unnecessary to the City's review under facts and circumstances in that particular case. Any written exemption will be limited to the project discussed at the pre-submittal conference and will not be extended to any other project.

Submittal appointment. All applications must be filed with the City at a pre-scheduled appointment. Applicants may generally submit one application per appointment, but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. Any application received without an appointment, whether delivered in-person or through any other means, will not be considered duly filed unless the applicant received a written exemption from the Community and Economic Development Director at a pre-submittal conference.

Appointment scheduling procedures. For any event in the submittal process that requires an appointment, applicants must submit a written request to the Community and Economic Development Director. The Community and Economic Development Director shall endeavor to provide applicants with an appointment as soon as reasonably feasible and within five business days after a written request is received.

Applications deemed withdrawn. To promote efficient review and timely decisions, an application will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the City within 90 calendar days after the City deems the application incomplete in a written notice to the applicant. The Community and Economic Development Director may, in the Community and Economic Development Director's discretion, grant a written extension for up to an additional 30 calendar days when the applicant submits a written request prior to the 90 ^th day that shows good cause to grant the extension. Delays due to circumstances outside the applicant's reasonable control will be considered good cause to grant the extension.

Departmental forms, rules and other regulations. The City Council authorizes the Community and Economic Development Director to develop and publish permit application forms, checklists, informational handouts and other related materials that the Community and Economic Development Director finds necessary, appropriate or useful for processing requests for Section 6409(a) approvals. Without further authorization from the City Council, the Community and Economic Development Director may from time-to-time update and alter any such permit application forms, checklists, informational handouts and other related materials as the Community and Economic Development Director deems necessary, appropriate or useful to respond to regulatory, technological or other changes related to this Chapter. The City Council authorizes the Community and Economic Development Director to establish other reasonable rules and regulations, which may include without limitation regular hours for appointments with applicants, as the Community and Economic Development Director deems necessary or appropriate to organize, document and manage the application intake process.

Involves collocation, removal or replacement of transmission equipment on an existing wireless tower or base station; and

Does not substantially change the physical dimensions of the existing wireless tower or base station.

Does not satisfy the criteria for approval;

Violates any legally enforceable standard or permit condition reasonably related to public health and safety then in effect; or

Involves the replacement of the entire support structure.

Approved plans. Before the permittee submits any application for a building permit or other permits required by the Martinez Municipal Code, the permittee must incorporate the wireless telecommunications facility permit granted under this Section, all conditions associated with the wireless telecommunications facility permit and the approved plans and any photo simulations (the "approved plans") into the project plans. The permittee must construct, install and operate the wireless telecommunications facility in strict compliance with the approved plans. The permittee shall submit an as built drawing within 90 days after installation of the facility.

Permit term. The City's grant or grant by operation of law of a Section 6409(a) approval constitutes a federally-mandated modification to the underlying permit or other prior regulatory authorization for the subject tower or base station. The City's grant or grant by operation of law of a Section 6409(a) approval will not extend the permit term, if any, for any conditional use permit, or other underlying prior regulatory authorization. Accordingly, the term for a Section 6409(a) approval shall be coterminous with the underlying permit or other prior regulatory authorization for the subject tower or base station.

Accelerated permit terms due to invalidation. In the event that any court of competent jurisdiction invalidates any portion of Section 6409(a) or any FCC rule that interprets Section 6409(a) such that federal law would not mandate approval for any Section 6409(a) approval, such 6409(a) approvals shall automatically expire one year from the effective date of the judicial order, unless the decision would not authorize accelerated termination of previously approved Section 6409(a) approvals or the Community and Economic Development Director grants an extension upon written request from the permittee that shows good cause for the extension, which includes without limitation extreme financial hardship. Notwithstanding anything in the previous sentence to the contrary, the Community and Economic Development Director may not grant a permanent exemption or indefinite extension. A permittee shall not be required to remove its improvements approved under the invalidated Section 6409(a) approval when it has applied for a conditional use permit for those improvements before the one-year period ends.

No waiver of standing. The City's grant or grant by operation of law of a Section 6409(a) approval does not waive, and shall not be construed to waive, any standing by the City to challenge Section 6409(a), any FCC rules that interpret Section 6409(a) or any Section 6409(a) approval.

Build-out period. The Section 6409(a) approval will automatically expire one year from the issuance date unless the permittee obtains all other permits and approvals required to install, construct and operate the approved wireless facility, which includes without limitation any permits or approvals required by any federal, state or local public agencies with jurisdiction over the subject property, the wireless facility or its use. The Community and Economic Development Director may grant one written extension to a date certain when the permittee shows good cause to extend the limitations period in a written request for an extension submitted at least 30 days prior to the automatic expiration date in this condition. Any further extensions may be granted by the Planning Commission.

Maintenance obligations; vandalism. The permittee shall keep the site, which includes without limitation any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean and safe condition in accordance with the approved plans and all conditions in this Section 6409(a) approval. The permittee shall keep the site area free from all litter and debris at all times. The permittee, at no cost to the City, shall remove and remediate any graffiti or other vandalism at the site within 48 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.

Compliance with laws. The permittee shall maintain compliance at all times with all federal, state and local statutes, regulations, orders or other rules that carry the force of law ("laws") applicable to the permittee, the subject property, the wireless facility or any use or activities in connection with the use authorized in this Section 6409(a) approval. The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve or otherwise lessen the permittee's obligations to maintain compliance with all laws.

Adverse impacts on other properties. The permittee shall use all reasonable efforts to avoid any and all undue or unnecessary adverse impacts on nearby properties that may arise from the permittee's construction, installation, operation, modification, maintenance, repair, removal or other activities at the site. The permittee shall not perform or cause others to perform any construction, installation, operation, modification, maintenance, repair, removal or other work that involves heavy equipment or machines on any day and at any time prohibited under the Martinez Municipal Code. The restricted work hours in this condition will not prohibit any work required to prevent an actual, immediate harm to property or persons, or any work during an emergency declared by the City. The Community and Economic Development Director may issue a stop work order for any work that violates this condition.

Noise complaints. The permittee shall conduct all activities on the site in compliance with the noise standards listed in this Chapter. In the event that any person files a noise complaint and the City verifies that such complaint is valid, the permittee must remedy the violation within ten days after notice from the City, which may include a demonstration that the permittee has amended its operational guidelines in situations where the violation arises from the permittee's personnel rather than the permittee's equipment.

Inspections; emergencies. The permittee expressly acknowledges and agrees that the City or its designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee; provided, however, that the City or its designee may, but will not be obligated to, enter onto the site area without prior notice to support, repair, disable or remove any improvements or equipment in emergencies or when such improvements or equipment threatens actual, imminent harm to property or persons. The permittee will be permitted to supervise the City or its designee while such inspection or emergency access occurs.

Contact information. The permittee shall furnish the City with accurate and up-to-date contact information for a person responsible for the wireless facility, which includes without limitation such person's full name, title, direct telephone number, facsimile number, mailing address and email address. The permittee shall keep such contact information up-to-date at all times.

Indemnification. The permittee and, if applicable, the property owner upon which the wireless facility is installed shall defend, indemnify and hold harmless the City, its agents, officers, officials, employees and volunteers from any and all (1) damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, law suits, writs and other actions or proceedings ("claims") brought against the City or its agents, officers, officials, employees or volunteers to challenge, attack, seek to modify, set aside, void or annul the City's approval of this Section 6409(a) approval, and (2) other claims of any kind or form, whether for personal injury, death or property damage, that arise from or in connection with the permittee's or its agents', directors', officers', employees', contractors', subcontractors', licensees', or customers' acts or omissions in connection with this Section 6409(a) approval or the wireless facility. In the event the City becomes aware of any claims, the City will use best efforts to promptly notify the permittee and the private property owner and shall reasonably cooperate in the defense. The permittee expressly acknowledges and agrees that the City shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the City's defense, and the property owner or permittee (as applicable) shall promptly reimburse City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. The permittee expressly acknowledges and agrees that the permittee's indemnification obligations under this condition are a material consideration that motivates the City to approve this Section 6409(a) approval, and that such indemnification obligations will survive the expiration or revocation of this Section 6409(a) approval.

Performance bond. For wireless facilities in the public right-of-way, before the City issues any construction permit in connection with the wireless facility, the permittee shall post a performance bond from a surety and in a form acceptable to the City Manager in an amount equal to or greater than a written estimate from a qualified contractor with experience in wireless facilities removal. The written estimate must include the cost to remove all equipment and other improvements, which includes without limitation all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings, and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility. In establishing or adjusting the bond amount required under this condition, and in accordance with California Government Code § 65964(a), the City Manager shall take into consideration information provided by the permittee regarding the cost to remove the wireless facility.

Record retention. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the wireless facility, which includes without limitation this approval, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval and any ministerial permits or approvals issued in connection with this approval. In the event that the permittee does not maintain such records as required in this condition, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee.

Compliance obligations. An applicant or permittee will not be relieved of its obligation to comply with every applicable provision in the Martinez Municipal Code, any permit, any permit condition or any applicable law or regulation by reason of any failure by the City to timely notice, prompt or enforce compliance by the applicant or permittee.

The applicant for a wireless telecommunications collocation facility permit shall describe or depict:

Any collocation shall use screening methods substantially similar to those used on the existing wireless telecommunications facilities unless other optional screening methods are specified in the conditions of approval.

A wireless telecommunications collocation facility permit shall not be approved unless an environmental impact report, negative declaration, or mitigated negative declaration was prepared and approved for the wireless telecommunications collocation facility.

The wireless telecommunications collocation facility:

The collocations were specifically considered when the relevant environmental document was prepared for the wireless telecommunications collocation facility.

Before collocation, the applicant seeking collocation shall obtain all other applicable non-discretionary permits, as required pursuant to the Martinez Municipal Code.

Increases the height of the existing permitted telecommunications tower or otherwise changes the bulk, size, location, or any other physical attributes of the existing permitted wireless telecommunications collocation facility unless specifically permitted under the conditions of approval applicable to such wireless telecommunications collocation facility; or

Adds any microwave dish or other antenna not expressly permitted to be included in a collocation facility by the conditions of approval.

After discovery of the need by the permittee, owner, operator or any designated maintenance agent; or

After permittee, owner, operator, or any designated maintenance agent receives notification from a resident or the Community and Economic Development Director.

General dirt and grease;

Chipped, faded, peeling, and cracked paint;

Rust and corrosion;

Cracks, dents, and discoloration;

Missing, discolored, or damaged artificial foliage or other camouflage;

Graffiti, bills, stickers, advertisements, litter and debris;

Broken and misshapen structural parts; and

Any damage from any cause.

At the Community and Economic Development Director's discretion, additional studies and information may be required of the applicant.

If the Community and Economic Development Director determines that the facility is nonconforming or that additional conditions of approval are necessary to bring the facility into compliance with the provisions of the Martinez Municipal Code that are then in effect at the time of permit expiration, the Community and Economic Development Director shall refer the extension request to the Planning Commission.

Prosecution;

Revocation or modification of the permit;

Calling of any bond or other assurance required by this Chapter or conditions of approval of the permit;

Removal of the facilities by the City in accordance with the procedures established under the Martinez Municipal Code for abatement of a public nuisance at the owner's expense; and

Any other remedies permitted under the Martinez Municipal Code.

When the Community and Economic Development Director finds reason to believe that grounds for permit revocation exist, the Community and Economic Development Director shall send written notice by certified U.S. mail, return receipt requested, to the permittee at the permittee's last known address that states the nature of the noncompliance as grounds for permit revocation. The permittee shall have a reasonable time from the date of the notice, but no more than 30 days unless authorized by the Community and Economic Development Director, to cure the noncompliance or show that no noncompliance ever occurred.

If after notice and opportunity to show that no noncompliance ever occurred or to cure the noncompliance, the permittee fails to cure the noncompliance, the City Council shall conduct a noticed public hearing to determine whether to revoke the permit for uncured noncompliance. The permittee shall be afforded an opportunity to be heard and may speak and submit written materials to the City Council. After the noticed public hearing, the City Council may revoke or suspend the permit when it finds that the permittee had notice of the noncompliance and remained in noncompliance with an enforceable permit, permit condition or law applicable to the facility. Written notice of the City Council's determination and the reasons therefor shall be dispatched by certified U.S. mail, return receipt requested, to the permittee's last known address. Upon revocation, the City Council may take any legally permissible action or combination of actions necessary to protect public health, safety, and welfare.

Prosecution;

Calling of any bond or other assurance required by this Chapter or conditions of approval of permit;

Removal of the facilities by the City in accordance with the procedures established under the Martinez Municipal Code for abatement of a public nuisance at the owner's expense; or

Any other remedies permitted under the Martinez Municipal Code.